#23759-a-JKK 

2008 SD 6

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, 

 v. 

TORY TIEGEN, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE SEVENTH JUDICIAL CIRCUIT 

PENNINGTON COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE JANINE M. KERN 

Judge 

* * * * 

LAWRENCE E. LONG 

Attorney General 

FRANK GEAGHAN 

Assistant Attorney General Attorneys for plaintiff 

Pierre, South Dakota and appellee. 

KEVIN S. LEWIS Attorney for defendant 

Rapid City, South Dakota and appellant. 

* * * * 

ARGUED ON OCTOBER 3, 2007 

 OPINION FILED 01/16/08 
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KONENKAMP, Justice 

[¶1.] Defendant was convicted of kidnapping Troy Klug. Klug is believed to 

be dead, but his body has never been found. On appeal, defendant asserts trial 

court error in: (1) denial of his right to a speedy trial; (2) admission in evidence of 

multiple out-of-court statements by a co-conspirator; (3) admission of his 

incriminating jail-house messages written to a co-defendant, who defendant alleges 

acted as an agent for law enforcement investigators; and (4) his sentence of 100 

years imprisonment after the court made statements suggesting that defendant 

probably killed Klug. We affirm on all issues. 

Background 

[¶2.] On July 12, 2004, Troy Klug and his girlfriend’s brother, Robert, went 

to Cynthia Kindall’s home to obtain drugs. Klug called his girlfriend, Duanna 

Beebe, multiple times, but she would not answer because she was upset at him for 

buying drugs. Later that day, Klug sent Beebe a text message asking if her brother, 

Robert, was with her. She responded that he was not. That was the last 

communication she had with Klug. As the day went on, Klug never came home, and 

she began to worry. She called his cellular phone multiple times and left messages. 

After 7:00 p.m., however, Klug’s voice mailbox was full and she could no longer 

leave a message. 

[¶3.] Beebe later recounted in court that at 9:30 p.m. Cynthia Kindall and 

Tory Tiegen (defendant) showed up at her and Klug’s house. They came upstairs to 

her bedroom. She asked if they knew where Klug was. Kindall replied that Klug 

had shown up at her house, but she told him to leave. At some point, defendant and 
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Kindall, while in Beebe’s bedroom, rummaged through Klug’s possessions. 

Defendant took a bottle of Klug’s cologne and said, “Well, if it’s Troy’s, it’s ours 

now.” Both Kindall and defendant made similar remarks about Klug’s things. 

Beebe pressed the two about Klug’s whereabouts. Kindall said that Klug was no 

longer a problem, and remarked, “Isn’t that right, Tory” to which defendant 

responded, “Yes.” According to Beebe, they were smirking when they said this. 

[¶4.] The next day, July 13, Beebe had a friend staying with her. Just after 

midnight, Kindall and defendant showed up at her home again. They entered 

through her living room window and came running up the stairs. Kindall went into 

Beebe’s bedroom and kept asking Beebe what was wrong with her. Beebe was in 

bed recuperating from an operation. Her incision had become infected. Beebe’s 

friend asked them what happened to Klug. Kindall responded that she did not 

know where he was. Then, she said to Beebe, “Honey, I need you to come with me. 

I got to go away for a while and I need you to go with me.” Beebe refused to go. 

During this exchange defendant was pacing back and forth and finally said that 

they did not have time and needed to go. Beebe told them she had filed a missing 

persons report on Klug and that she was probably on twenty-four-hour surveillance. 

At that point, they left. 

[¶5.] At 3:00 a.m. on July 14, 2004, Kindall and defendant showed up in 

Kindall’s vehicle at Tell Cook’s home in Belle Fourche, South Dakota. According to 

Cook, Kindall and defendant were ranting about people owing money and about 

snitches. Klug allegedly owed Kindall $300 from previous drug deals. Defendant 

had Cook come to the trunk of Kindall’s vehicle. Defendant opened the trunk, 
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revealing a man inside. His hands, feet, and head were bound with duct tape. He 

was face down, with his feet in the air, stripped naked except for boxer shorts. 

Defendant punched him in the back and yelled, “wake up mother fucker.” The man 

made muffled noises. Cook believed he was still alive. When Cook asked what 

defendant was going to do, defendant said they would either “go to Denver and turn 

him in or go to North Dakota and dig a hole.” 

[¶6.] The next day, July 15, defendant and Kindall showed up again at 

Cook’s house. Cook asked defendant what he had done with the man in the trunk. 

Defendant replied that he put him in a toolbox and left him there all day. Cook 

asked if he gave him water because it was hot. Defendant replied, “No, and it’s too 

late for all that anyway.” Cook recalled that defendant said he had gone to the 

toolbox a few times throughout the day and was beating the man. Defendant said 

to Cook that he felt bones crush in his face and he thought “that’s what did him in.” 

[¶7.] At 4:00 a.m. on July 17, Kindall and defendant arrived in North 

Dakota at Ross Thomas’s home. Jamie Keefe saw both of them there. At 9:30 p.m., 

according to Keefe, defendant was cutting fringes on a blanket and Kindall was 

doing laundry. Defendant asked Kindall if she was washing the laundry in cold 

water, to which she responded, “Yes, I washed it in cold water.” 

[¶8.] On July 18, Kindall and defendant were still at Thomas’s residence. 

Keefe helped them clean out Kindall’s car. According to Keefe, the inside of the car 

was stripped down to the metal frame. Bleach had been poured in it. Maggots were 

floating in a solid layer on the bleach. Defendant told her he poured about three 

gallons of bleach in the car and that the maggots were from a milk spill. Keefe 
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helped defendant clean by scrubbing and using a shop vacuum to suck up the 

bleach. The rags they used to clean the car were eventually taken to a fire stoke 

and burned. According to Keefe, at some point, Kindall yelled at defendant that the 

car should have been cleaned five days ago. Keefe recalled that defendant 

attempted to clean the car’s upholstery with Febreze and Woolite. He also had 

Keefe scrub the floorboards, which had a rust-colored stain. 

[¶9.] Brent Gromer, a special agent for the South Dakota Division of 

Criminal Investigation, was assigned to look into Klug’s disappearance. At that 

time, defendant had been identified as a suspect based on Agent Gromer’s interview 

with Beebe. On July 20, 2004, Agent Gromer and two other officers interviewed 

Tell Cook. Cook told them of seeing defendant and Kindall at his house, but 

repeatedly denied seeing anyone in a car trunk. He did admit, however, that 

defendant mentioned “going back to Rapid City and snatchin some guy and . . . well 

you never know I might have already done it. . . . Could be in the trunk outside. . . 

.” Cook also recalled that the name “Troy” was mentioned. The officers were not 

satisfied that Cook was revealing everything he knew. Agent Gromer made several 

strong comments to motivate Cook to be more cooperative. On July 22, Cook was 

again interviewed, but this time by two different law enforcement officers. He told 

them that Klug was over at Kindall’s house and defendant was using Klug to move 

things in the basement and they hit him and duct taped him. Cook was arrested on 

August 6, 2004, and placed in the Pennington County jail. 

[¶10.] Agent Gromer and Special Agent John Griswold interviewed defendant 

in North Dakota on July 22, 2004. The next day, defendant was charged with 
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kidnapping Klug. On August 4, he was indicted on one count of kidnapping and one 

count of conspiracy to commit kidnapping.1 Defendant was placed in the 

Pennington County jail, in a cell adjacent to Cook’s. While they were there, Cook 

had contact with defendant through a “kiting system” whereby an inmate would 

have letters or notes sent from one cell to another. Cook had written defendant and 

defendant wrote back. Defendant used the nickname “Chopper” when referring to 

Cook. Cook gave defendant the nickname “Mad Hatter.” Cook told his lawyer 

about the notes he obtained and that they contained incriminating information 

about defendant. Cook and his lawyer met with law enforcement officers on 

September 30, 2004. He decided to tell everything he knew, and a plea agreement 

was reached.2 Cook told the officers of seeing Klug in the trunk, recounted the 

statements defendant and Kindall made, and turned over some of the notes 

defendant had written. 

[¶11.] After Cook made a plea agreement, Kindall and defendant remained to 

be tried together. Defendant moved to sever his trial from Kindall’s. The court 

granted the motion. Defendant also challenged the State’s intention to introduce 

Kindall’s out-of-court statements. She was not available to testify because she was 

found incompetent to stand trial. The State sought to introduce multiple 

statements made by Kindall to Beebe, Keefe, and Cook. It contended that the 

statements were not hearsay because they were made in furtherance of the 

1. The State dismissed the conspiracy charge on May 12, 2005. 

2. Cook pleaded guilty to misprision of a felony for his failure to contact law 

enforcement authorities when he observed a felony taking place.
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conspiracy to kidnap Klug. The court examined each statement the State sought to 

introduce and addressed whether each met the requirements of SDCL 19-16-3(5). It 

ruled that some statements were admissible and some were not. The court then 

took under advisement whether the statements would, nevertheless, be 

inadmissible because Kindall was unavailable. 

[¶12.] Defendant next challenged the State’s plan to introduce the jailhouse 

“kites” defendant sent to Cook. According to defendant, Cook obtained these notes 

in violation of his Sixth Amendment right to counsel because at the time Cook 

obtained information from defendant, he was represented by counsel. Cook, 

defendant argued, was acting as an agent of law enforcement and elicited the 

information at the direction of law enforcement officers. After a hearing, where 

Cook, the officers, and others testified, and certain transcripts of law enforcement 

interviews were admitted, the court found the “kites” admissible. It held that Cook 

was not acting as an agent for law enforcement: he wrote to defendant of his own 

volition and the investigating officers were not aware of Cook’s actions until after 

the fact. 

[¶13.] Defendant’s trial began on June 20, 2005, 308 days after he was 

arraigned, and thirty-three days short of a year from when he was arrested. 

Kindall did not testify at his trial. But many of her statements, previously 

determined by the court to be admissible, were admitted over defendant’s objection. 

The “kites” were also admitted. Defendant was found guilty of kidnapping Klug 

and sentenced to 100 years in the penitentiary. He appeals asserting the following 

six issues: (1) his right to a speedy trial under the Sixth Amendment to the United 
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States Constitution and Article VI, section 7 to the South Dakota Constitution was 

violated; (2) his Sixth Amendment right to counsel was violated when law 

enforcement used Cook to elicit information from defendant while defendant was 

represented by counsel and incarcerated; (3) the court erred when it admitted coconspirator statements of Kindall under SDCL 19-16-3(5); (4) the court erred in 

finding that a conspiracy existed because Kindall was found incompetent to stand 

trial and one cannot have a conspiracy with someone that is incompetent; (5) he was 

denied his right to cross examine Kindall in violation of his right to confront 

witnesses; and (6) the court erred when it imposed a grossly disproportionate 

sentence by considering facts not part of the kidnapping charge. 

Standard of Review 

[¶14.] We apply a de novo standard of review to claims of constitutional 

violations. State v. Dillon, 2001 SD 97, ¶12, 632 NW2d 37, 43 (citing State v. 

Stanga, 2000 SD 129, ¶8, 617 NW2d 486, 488). Decisions on motions to suppress for 

violations of legal rights are also reviewed de novo. State v. Stevens, 2007 SD 54, 

¶5, 734 NW2d 344, 346 (quoting State v. Hess, 2004 SD 60, ¶9, 680 NW2d 314, 319 

(quoting State v. Herrmann, 2002 SD 119, ¶9, 652 NW2d 725, 728 (citations 

omitted))). Findings of fact, however, are reviewed under the clearly erroneous 

standard. Id. (citing State v. Tofani, 2006 SD 63, ¶24, 719 NW2d 391, 398). A 

claim that a sentence is grossly disproportionate is reviewed by the standards set 

out in State v. Bonner, 1998 SD 30, ¶17, 577 NW2d 575, 580. 
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Analysis and Decision 

 1. Speedy Trial 

[¶15.] Defendant contends that he was denied his right to a speedy trial 

under the United States and South Dakota constitutions. He is not arguing that 

our 180-day rule was violated.3 See SDCL 23A-44-5.1. Rather, he asserts that the 

delay in bringing him to trial occurred because the State was “slow on discovery,” on 

scientific testing, and on its overall investigation of the case. According to 

defendant, he was prejudiced because he was deprived of his freedom while 

incarcerated the entire time, and the State, by its delay, had more time to organize 

its case against him. 

[¶16.] In examining whether a defendant’s constitutional right to a speedy 

trial was violated, we consider: “(1) the length of the delay; (2) the reason for the 

delay; (3) whether the accused asserted the right; and (4) whether the accused was 

prejudiced by the delay.” State v. Jones, 521 NW2d 662, 668 (SD 1994) (citing 

Barker v. Wingo, 407 US 514, 530, 92 SCt 2182, 2193, 33 LEd2d 101 (1972)). 

Delays of over a year are presumptively prejudicial; delays of less than a year are 

not. See State v. Karlen, 1999 SD 12, ¶¶20-21, 589 NW2d 594, 599; State v. 

Goodroad, 521 NW2d 433, 437 (SD 1994); State v. Stock, 361 NW2d 280, 284 (SD 

3. If this were an appeal on the 180-day rule, no violation presents itself. Trial 

counsel conceded during a motions hearing that the period from September 

27 through December 31, 2004, “would be held against the defense” in 

computing the 180-day rule. Indeed, the trial court found that in the time 

frame from September 27, 2004, through May 16, 2005, 261 days were 

properly excludable under the 180-day rule. Appellate counsel was not trial 

counsel. 
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1985); State v. Holiday, 335 NW2d 332, 334-35 (SD 1983); State v. Krana, 272 

NW2d 75, 77-78 (SD 1978); State v. Black Feather, 249 NW2d 261, 264 (SD 1976); 

State v. Pickering, 87 SD 331, 338, 207 NW2d 511, 515 (1973). 

[¶17.] Defendant was arrested on July 23, 2004. His trial began on June 20, 

2005. The delay falls thirty-three days short of a year, and therefore, it is not 

presumptively prejudicial. “Until there is some delay which is presumptively 

prejudicial, there is no necessity for inquiry into the other factors that go into the 

balance.” Holiday, 335 NW2d at 334-35 (quoting Barker, 407 US at 530, 92 SCt at 

2192, 33 LEd2d 101); see also Karlen, 1999 SD 12, ¶¶20-21, 589 NW2d at 599. 

[¶18.] Although defendant alleges that he was prejudiced because the State 

had more time to build its case against him, he has not shown how his defense was 

prejudiced by the delay. That is the more important question. Indeed, he makes no 

claim that because of the delay a defense witness became unavailable or evidence 

was lost or degraded. See Jones, 521 NW2d at 669-70; Goodroad, 521 NW2d at 437; 

People v. Holtzer, 660 NW2d 405, 414 (MichCtApp 2003) (“enhancement of the 

prosecution’s case” is not equal to “impairment of the defense”). His argument that 

he was prejudiced because he was incarcerated the entire time is unpersuasive. 

The right to a speedy trial is designed to protect a defendant from oppressive 

pretrial incarceration, but here his right to a speedy trial was not violated. See 

Jones, 521 NW2d at 669. Moreover, it would be unusual to find a constitutional 

violation when the 180-day rule has not been violated. See United States v. 

Titlbach, 339 F3d 692, 699 (8thCir 2003). 
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 2. Incriminating Notes 

[¶19.] Defendant argues that his right to counsel was violated when Cook 

obtained incriminating notes from him while they were in jail. According to 

defendant, Cook was acting as an agent for the State when he solicited defendant’s 

written responses at law enforcement direction. From defendant’s perspective, this 

arrangement began during the interview with Cook on July 20, 2004. Cook denied 

having seen Klug in the car trunk, and Agent Gromer strongly encouraged Cook to 

be more cooperative. For his part, Cook was concerned that he may be implicated in 

a crime and asked Gromer if he could “make it go away.” Agent Gromer said he 

could make no promises, but he could talk to the prosecutor and the judge. Gromer 

told Cook to “pound the pavement” and “do every God damn thing” he could to find 

defendant and Kindall. 

[¶20.] When asked at the motion hearing whether Agent Gromer was 

enlisting Cook to be an informant, Gromer replied, “Yes, or help us. Not necessarily 

be an informant, but to help us gather intelligence as to where [defendant and 

Kindall] were at and possibly gather other information.” At that time, both 

defendant and Kindall were still suspects and had not been apprehended. Neither 

of them was then represented by counsel. Agent Gromer testified that his remarks 

— “pounding the pavement” and “doing every God damn thing” — were directed at 

motivating Cook to help locate defendant and Kindall. 

[¶21.] Following this interview, Agent Gromer and Cook did not speak again 

until September 30, after Cook obtained the notes from defendant. It was in this 

meeting that Agent Gromer first learned that the notes even existed. At this 
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meeting, which was videotaped, Agent Gromer and Cook made statements 

defendant now relies on to further his argument. Cook told Agent Gromer that he 

had been trying for seven weeks to finally get these letters from defendant. 

Apparently, there was a joking reference to the happenstance of defendant’s and 

Cook’s adjacent cells: Gromer made a comment about using “every trick in the 

book.” And Cook remarked that he was “playing cop.” 

[¶22.] Several people testified at the suppression hearing, including Cook, 

Agent Gromer, Shawn Wood (a security lieutenant at the jail), and Cook’s attorney, 

Randy Connelly. The court also reviewed the transcripts from law enforcement 

interviews of Cook. Agent Gromer testified that he did not direct anyone at the jail 

to place defendant and Cook in adjacent cells. Nor did he tell Cook to elicit 

information from defendant while they were in jail. Cook testified that no one 

asked him to solicit incriminating responses from defendant and that he never 

considered himself to be an informant. He said that after his arraignment, which 

was held along with Kindall’s and defendant’s on August 16, he felt the impact the 

crime had when he saw one of Klug’s family members crying in court, and he then 

suggested his cooperation to his attorney. 

[¶23.] The circuit court’s decision to deny defendant’s motion to suppress was 

largely based upon credibility determinations. The court concluded that Cook made 

a personal decision to elicit the information, evidenced by the fact that he chose to 

keep some of the notes and throw others away. It also found that Agent Gromer did 

not recruit Cook to be an agent for law enforcement. No agreement existed, 

according to the court. It found that, despite Agent Gromer’s “quip,” law 
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enforcement officers did not direct that defendant and Cook be housed adjacent to 

each other. Accordingly, the court ruled that defendant’s constitutional rights were 

not violated and denied his motion to suppress. 

[¶24.] While failing to establish an explicit law enforcement agreement with 

Cook, defendant contends nonetheless that an agreement was implicit in the 

conduct between Cook and law enforcement officers. Defendant argues that 

because it is rare that a defendant will have direct proof of efforts to elicit 

information from an accused with counsel, the evidence need only establish that law 

enforcement officers must have known they were “circumventing the accused’s right 

to have counsel present[.]” See Maine v. Moulton, 474 US 159, 176, 106 SCt 477, 

487, 88 LEd2d 481 (1985). Thus, defendant claims that based on the statements 

made to Cook, the State “must have known” that Cook would obtain information 

from defendant while he was incarcerated. See id.

[¶25.] There was nothing in Agent Gromer’s statements to Cook at the July 

20th meeting that proves that the State knew or should have known that Cook 

would try to obtain information from defendant, while defendant was incarcerated 

and represented by an attorney. Agent Gromer’s comments were made when 

defendant was still at large and only a suspect. The circuit court found that there 

was no explicit or implicit agreement to have Cook prod defendant for admissions. 

A court’s findings of fact from a suppression hearing are reviewed under the clearly 

erroneous standard of review. State v. Lockstedt, 2005 SD 47, ¶14, 695 NW2d 718, 

722 (citing State v. Guthrie, 2001 SD 61, ¶56, 627 NW2d 401, 423 (citation omitted); 

SDCL 23A-32-9). “As long as the police do nothing to direct or control or involve 
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themselves in the questioning of a person in custody by a private citizen, such 

questioning does not violate the fifth or sixth amendments.” United States v. 

Surridge, 687 F2d 250, 255 (8thCir 1982). Because we give deference to the trial 

court’s findings of fact and particularly to credibility determinations, we conclude 

that the decision was not erroneous. 

 3. Admission of Co-Conspirator Statements 

[¶26.] Defendant argues that the court erred when it admitted Kindall’s outof-court statements under SDCL 19-16-3(5). That rule provides, in part, 

A statement is not hearsay if it is offered against a party and is: 

. . . 

 (5) A statement by a co-conspirator of a party during the course 

and in furtherance of the conspiracy. 

Id. According to defendant, the statements should not have been admitted because 

they were not made in furtherance of the conspiracy. 

[¶27.] Before a co-conspirator’s out-of-court statement may be admitted in 

evidence, (1) “there must be substantial evidence of conspiracy;” (2) “the statement 

must have been made while the conspiracy was continuing; and” (3) “the statement 

must have constituted a step in furtherance of the conspiracy.” State v. Stavig, 416 

NW2d 39, 41 (SD 1987) (citing State v. Smith, 353 NW2d 338 (SD 1984)) (additional 

citation omitted). “To satisfy the test of admissibility, there need only be a showing 

that there is some reasonable basis for concluding that the statement was made in 

furtherance of [the] conspiracy.” Id. (citing Smith, 353 NW2d at 343). A court’s 

decision to admit the statements under SDCL 19-16-3(5) is reviewed under the 
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clearly erroneous standard. See United States v. Beckman, 222 F3d 512, 523 

(8thCir 2000) (citing United States v. Oseby, 148 F3d 1016, 1023 (8thCir 1998)). 

[¶28.] In a pretrial motions hearing, the court addressed the admissibility of 

Kindall’s out-of-court statements that the State sought to use. The court found 

substantial evidence of a conspiracy and that the statements were made while the 

conspiracy was continuing. The crux of defendant’s argument was that the 

statements were not made in furtherance of the conspiracy, and were, therefore, 

inadmissible. The court examined each statement challenged by defendant and 

made a specific finding on whether it satisfied SDCL 19-16-3(5). At trial not all the 

statements previously found to be admissible by the court were offered.4 Therefore, 

we examine only those statements used in trial.5

[¶29.] First statement as offered at the motions hearing: “Kindall just 

laughed and was real jovial about it in calling him [Klug] a puss and that he was 

weak.” According to the court, this statement was made in furtherance of the 

conspiracy because it was made to induce defendant’s continued participation in the 

ongoing crime. The above-quoted statement was not specifically used at trial. 

Instead, it was testified that Kindall “thought he [Klug] was weak and she was 

4. The State referred to a statement during its opening remarks that was not 

later offered during the trial. However, because the court informed the jury 

that opening remarks are not evidence, we need not examine the statement. 

5. The State contends that even if we find certain statements were admitted in 

error we should examine them for admissibility under SDCL 19-16-3(1), 

defendant’s own statements. The State did not raise this argument below. 

Because the circuit court did not have an opportunity to rule on the 

admissibility of the statements under that subsection, this Court will not 

address the argument. See State v. Hays, 1999 SD 89, ¶16, 598 NW2d 200, 

203.
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really hung up about her money.” On appeal, defendant contends that the 

statement was inadmissible because it was merely Kindall bragging, which does not 

further the conspiracy. For the statement to be admissible there need only be a 

reasonable basis that it was made in furtherance of the conspiracy. Smith, 353 

NW2d at 343. We think that it was reasonable to conclude that Kindall made this 

statement to enlist Cook to join the conspiracy or to keep defendant in on it. 

[¶30.] Second statement as offered at the motions hearing: “She said 

that he owed them money from drug transactions that have occurred in the—prior to 

that night.” The statement that was ultimately used at trial was that “they

[defendant and Kindall] started talking about—going on about a guy in Rapid City 

that they knew had owed them money. . . . They said that the kid owed them money.” 

According to the court, the first statement was admissible because it “explained the 

nature of the conspiracy to kidnap Klug and collect the drug debt.” Explaining the 

nature of the conspiracy, however, does not provide a reasonable basis for 

concluding that the statement was made in furtherance of the conspiracy. This 

statement, while made when the conspiracy was continuing, was not made (1) to 

enlist someone to join the conspiracy; (2) to advance the aims of the conspiracy; (3) 

to allay suspicion; or (4) as a narrative statement by one conspirator to another 

about what each had done. See Smith, 353 NW2d at 343-44 (citing United States v. 

Handy, 668 F2d 407, 408 (8thCir 1982); United States v. Miller, 664 F2d 94, 98 
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(5thCir 1981); United States v. James, 510 F2d 546, 549 (5thCir 1975); United 

States v. Overshon, 494 F2d 894, 898-99 (8thCir 1974); United States v. Halpin, 374 

F2d 493, 495-96 (7thCir 1967)). The court erred in admitting this statement. 

[¶31.] Third statement as offered at the motions hearing: “When they 

came in the house, they were—when we first started talking, they were upset about 

[Klug] being a snitch and they wanted to tattoo the name ‘cop caller’ around his 

neck.” At trial, Cook stated that “they” were calling him a “snitch and a rat. . . . 

They asked me if I knew any tattooist because they wanted to get this guy [Klug] 

tattooed ‘cop caller’ around his neck.” The court concluded that the statement was 

admissible because it was made to “induce [defendant’s] continued participation in 

the conspiracy. . . . The statement was made to remind [defendant] that Klug gave 

information to police and to entice [defendant] to carry out the plan.” We think it 

was a reasonable conclusion that the statement was made by Kindall to enlist 

defendant’s continued participation in the conspiracy. 

[¶32.] Fourth statement as offered at the motions hearing: “Well, isn’t 

it [Klug’s]? . . . Well, then it’s ours now.” At trial, Beebe testified that Kindall said, 

“Well, if it’s [Klug’s], it’s ours now.” According to the court, the statement was made 

in furtherance of the conspiracy because it was made to “explain Kindall’s belief 

that she was entitled to Klug’s property to settle a drug debt.” This conclusion 

seems strained because it does not establish how the statement was made to further 

the conspiracy. It was not made to entice Beebe to join the conspiracy; nor was it 

made to keep defendant enlisted. It neither was made to allay Beebe’s suspicions, 

nor as a narrative statement to defendant about what she had done. See Smith, 353 
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NW2d at 343-44 (citations omitted). On the other hand, it might be considered a 

statement in furtherance of the conspiracy because it suggests that Kindall and 

defendant were still in the process of collecting on the debt Klug allegedly owed. We 

cannot conclude that admitting this statement was clearly erroneous. 

[¶33.] Fifth statement as offered at the motions hearing: “She [Kindall] 

said that he did come there [Kindall’s house], that she sent him away, and told him 

to leave, and that she hadn’t seen him since. . . . And she said that [Klug] would no 

longer be a problem for her. And she’s like, isn’t that right, Tory? And Tory’s like, 

‘yeah, we have that taken care of.’” At trial, Beebe stated that Kindall said, “Well, he 

[Klug] came to my house, but you know, I sent him away. I told him to leave. . . . 

They [defendant and Kindall] said he was no longer a problem for them. That it was 

taken care of.” Beebe also testified that Kindall said, “Isn’t that right Tory?”, to 

which defendant responded, “Yes.” The court found Beebe’s statements to be in 

furtherance of the conspiracy because it was intended to “calm Beebe’s fears about 

Klug.” Statements made to “allay suspicion” are admissible; therefore, the 

statements were not admitted in error. See Smith, 353 NW2d at 343-44 (citations 

omitted). 

[¶34.] Sixth statement as offered at the motions hearing: “Oh, honey, 

no, it’s okay. Don’t worry about it. Just come on, get up. I need you to come with 

me. . . . Honey, I’m going to go away to a cabin for a little while. I need you to come 

with me. . . . Well, if anything happens or if you get any worse or anything . . . .” At 

trial, Beebe claimed that Kindall said, “Honey, I need you to come with me. I got to 

go away for awhile and I need you to go with me. . . . I’m going away to a cabin. . . . 
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I need you to come with me.” Beebe then testified that defendant said, “We don’t 

have time for this. We got to go. . . . Just leave her. She’s not worth it. We got to 

go.” The court found the statements to be admissible because “they were made in 

an effort to further the conspiracy or conceal its existence[.]” According to the court, 

“[t]here is a reasonable basis to believe that [defendant] and Kindall intended to 

take Beebe with them as part of their efforts to conceal the crime.” It is reasonable 

to conclude that the statements were made in an effort to allay Beebe’s suspicions, 

conceal the crime, or enlist her in the conspiracy. See Smith, 353 NW2d at 343-44 

(citations omitted). The court did not err in finding the statements admissible. 

[¶35.] Seventh statement as offered at the motions hearing: “Yeah, I 

washed it in cold water.” This was Kindall’s response to defendant’s question about 

washing clothes when they were in North Dakota, a statement that Keefe overheard 

and testified to. The circuit court concluded that the statement was admissible 

because it was made in an effort to conceal the evidence of the crime. It is 

reasonable to deduce that this statement was made to further the conspiracy, which 

was to kidnap Klug and take him out of their lives forever. Cleaning up the 

evidence furthers that goal.6

 (continued . . .) 

6. As stated in McCormick on Evidence, § 267 at 645 (2d ed): 

Literally applied, the “in furtherance” requirement calls for general 

exclusion of statements possessing evidential value solely as 

admissions, yet in fact more emphasis seems to be placed upon the 

“during continuation” aspect and any statements so qualifying in point 

of time may be admitted in evidence without such regard to whether it 

in fact furthers the conspiracy. . . . Both the “in furtherance” and the 

“during continuation” requirement call for exclusion of admissions and 

confessions made after the termination of the conspiracy. Questions 

arise, of course, as to when termination occurs. Under certain 
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__________________ 

(. . . continued) 

[¶36.] Eighth statement as offered at the motions hearing: “She said 

that it should have been cleaned five days ago.” Keefe also testified to this 

statement, and the court found it admissible because it was made in an effort to 

conceal the crime. This statement, however, is a narrative statement about what 

should have been done in the past. Yet the statement was made during the process 

of cleaning up evidence of the crime, and suggests continuation of the conspiracy. 

We cannot say that it was clearly erroneous to admit this statement. 

[¶37.] Even if some of the statements defendant challenges should not have 

been admitted, he has not alleged nor shown how he was prejudiced by these 

admissions. He simply claims that they were inadmissible and we should reverse 

and grant a new trial. Not every error requires reversal. “[I]f the State shows 

beyond a reasonable doubt that the error was not prejudicial” it is considered 

harmless. Stanga, 2000 SD 129, ¶20, 617 NW2d at 491 (citations omitted). 

[¶38.] Even without these statements, there is overwhelming evidence 

supporting the verdict. Cook testified that defendant took him to the trunk of 

Kindall’s vehicle and showed him Klug inside. Klug’s legs and hands were bound 

with duct tape, and defendant punched Klug in the back, yelling, “wake up mother 

fucker.” Cook then testified that the next day he asked defendant what happened 

circumstances, extending the duration of the conspiracy beyond the 

commission of the principal crime to include concomitant and closely 

connected disposition of its fruits or concealment of its traces appears 

justifiable, as in the case of police officers who engage in writing up a 

false report to conceal police participation in a burglary or disposal of 

the body after a murder.
#23759 

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to the person in the trunk, to which defendant responded that he put him in a 

toolbox and left him there all day. That day was extremely hot and Cook asked 

defendant if Klug was given water. Defendant responded that he was not, and that 

it would have been too late anyway. There was also DNA evidence strongly tending 

to prove that Klug was in fact in Kindall’s trunk. 

[¶39.] Finally, there were the jailhouse notes written by defendant to Cook. 

In the notes, defendant stated, “Oh Yeah, even if they do find some so called 

physical evidence, where the hell are they going to get there [sic] DNA to compair 

[sic] it to? . . . And Believe Me they ain’t gonna find No body unless some one else 

planted somebody. It may have taken me a while to decide what to do but once I 

figured it out, it was the best plan, and I executed it with “grinding” precision! 

Don’t worry about them finding a body.” In a subsequent letter, defendant stated, 

“Yeah, You know that was one of the nastiest things I have ever done . . . . one of 

the Nastiest. If a guys gonna make fish food he just as well put it in bite size pieces 

Right! What the hell it wasn’t my first rodeo and I’m sure it won’t be my last if I 

stay in the business I’ve been in.” Considering the overwhelming evidence of guilt 

against defendant, we conclude that Kindall’s out-of-court statements, even if 

admitted in error, were not prejudicial. 

4. Admitting Statements of Incompetent Co-Conspirator 

[¶40.] According to defendant, because Kindall was found incompetent to 

stand trial, her out-of-court statements should not have been admitted against him 

under SDCL 19-16-3(5) because one cannot conspire with an incompetent person. 

Defendant has not directed this Court to any authority to support his proposition 
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that when one is found incompetent to stand trial, that person was incapable of 

earlier conspiring to commit a crime. Rather, he argues that because Kindall was 

found incompetent to stand trial, based on mental conditions she obviously suffered 

from for a while, she must also have been incapable of entering into the criminal 

agreement required in this case. 

[¶41.] Kindall was found incompetent to stand trial by the circuit court. 

Although Kindall had a history of brain injury and mental illness, nothing in the 

circuit court’s findings declaring Kindall incompetent to stand trial would suggest 

that she was insane at the time she conspired with defendant. Indeed, Kindall’s 

sanity at the time she entered into the criminal agreement with defendant to 

kidnap Klug has not been raised.7 “Incompetency to stand trial and incapacity to 

commit a crime because of insanity are, of course, distinct and separate issues.” 

State v. Jones, 406 NW2d 366, 369 (SD 1987); see also State v. Rough Surface, 440 

NW2d 746, 757 (SD 1989). Defendant cites no authority for the proposition that a 

person found incompetent to stand trial cannot be considered a responsible criminal 

conspirator at an earlier occasion. Defendant’s argument on this question is 

meritless. 

 5. Defendant’s Right to Confront and Cross-Examine Witnesses

[¶42.] Defendant claims that because Kindall was not available to testify at 

trial, the court erred when it admitted her out-of-court statements. Defendant 

7. This Court takes judicial notice of Pennington County criminal file number 

04-3272, in which it is recorded that Kindall has since been found competent 

to stand trial. 
#23759 

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raised this issue with the circuit court at the December 21, 2004 motion hearing. 

The court took the issue under advisement and never entered an oral or written 

ruling on the motion. Defendant failed to raise the issue again. At oral argument, 

however, appellate counsel insisted that because a general objection was made to 

Kindall’s statements and the trial court prohibited “speaking objections,” the 

general objection was adequate to preserve the question for appeal. Ordinarily, this 

would not be sufficient to avoid waiver of the issue. See Hays, 1999 SD 89, ¶16, 598 

NW2d at 203. 

[¶43.] Nevertheless, because of the importance of this question, we exercise 

our discretion to consider it. In Crawford v. Washington, the United States 

Supreme Court ruled that the Confrontation Clause applies to “witnesses,” “those 

who bear testimony.” 541 US 36, 51, 124 SCt 1354, 1364, 158 LEd2d 177 (2004). In 

that light, the Court stated that “[a]n accuser who makes a formal statement to 

government officers bears testimony in a sense that a person who makes a casual 

remark to an acquaintance does not.” Id. Therefore, the Confrontation Clause 

implicates a “core class” of testimonial statements: 

“ex parte in-court testimony or its functional equivalent—that is, 

material such as affidavits, custodial examinations, prior 

testimony that the defendant was unable to cross-examine, or 

similar pretrial statements that declarants would reasonably 

expect to be used prosecutorially,” . . . “extrajudicial statements . 

. . contained in formalized testimonial materials, such as 

affidavits, depositions, prior testimony, or confessions,” White v. 

Illinois, 502 US 346, 365, 112 SCt 736, 116 LEd2d 848 (1992) 

(Thomas, J., joined by Scalia, J., concurring in part and 

concurring in judgment); “statements that were made under 

circumstances which would lead an objective witness reasonably 

to believe that the statement would be available for use at a 

later trial,” . . . . 
#23759 

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Id. at 51-52, 124 SCt at 1364, 158 LEd2d 177. 

[¶44.] Although there are exceptions to the hearsay rule, the Court 

recognized that historically “there is scant evidence that exceptions were invoked to 

admit testimonial statements against the accused in a criminal case.” Id. at 55-56, 

124 SCt at 1367, 158 LEd2d 177. Nevertheless, the Court concluded that not 

considered as “testimonial” statements were those made in furtherance of a 

conspiracy. Id. at 56, 124 SCt at 1367, 158 LEd2d 177 (“Most of the hearsay 

exceptions covered statements that by their nature were not testimonial-for 

example, business records or statements in furtherance of a conspiracy.”).

[¶45.] In United States v. Inadi, 475 US 387, 394-96, 106 SCt 1121, 1125-26, 

89 LEd2d 390 (1986), the Supreme Court first recognized that statements made by 

a co-conspirator in furtherance of a conspiracy are not testimonial, and therefore, 

are admissible even when the declarant is unavailable. Specifically, the Court 

stated, “There are good reasons why the unavailability rule, developed in cases 

involving former testimony, is not applicable to co-conspirators’ out-of-court 

statements.” Id.

Because [the statements] are made while the conspiracy is in 

progress, such statements provide evidence of the conspiracy’s 

context that cannot be replicated, even if the declarant testifies 

to the same matters in court. When the Governmentas 

hereoffers the statement of one drug dealer to another in 

furtherance of an illegal conspiracy, the statement often will 

derive its significance from the circumstances in which it was 

made. Conspirators are likely to speak differently when talking 

to each other in furtherance of their illegal aims than when 

testifying on the witness stand. Even when the declarant takes 

the stand, his in-court testimony seldom will reproduce a 

significant portion of the evidentiary value of his statements 

during the course of the conspiracy. . . . 
#23759 

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The declarant himself may be facing indictment or trial, in 

which case he has little incentive to aid the prosecution, and yet 

will be equally wary of coming to the aid of his former partners 

in crime. In that situation, it is extremely unlikely that in-court 

testimony will recapture the evidentiary significance of 

statements made when the conspiracy was operating in full 

force. 

Id. at 395, 106 SCt at 1126, 89 LEd2d 390. Since Crawford, multiple courts have 

recognized that statements made in furtherance of a conspiracy are not testimonial. 

United States v. Ramirez, 479 F3d 1229, 1249 (10thCir 2007) (citing Crawford, 541 

US at 56, 124 SCt at 1367, 158 LEd2d 177); United States v. Sullivan, 455 F3d 248, 

258 (4thCir 2006) (citation omitted); United States v. Allen, 425 F3d 1231, 1235 

(9thCir 2005) (citation omitted); United States v. Lee, 374 F3d 637, 644 (8thCir 

2004). 

[¶46.] Here, although Kindall was unavailable, defendant’s Sixth 

Amendment rights were not violated when her statements were admitted at trial. 

Kindall was a co-conspirator and her statements were not testimonial. They were 

made in furtherance of the conspiracy. Therefore, we find no error. 

 6. Defendant’s Sentence 

[¶47.] Defendant contends that his sentence of 100 years is grossly 

disproportionate to the crime of kidnapping, because the court considered the 

uncharged crime of murder. According to defendant, because the court expressed 

that defendant likely killed Klug and destroyed the body, the court went beyond the 
#23759 

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scope permitted in sentencing for a kidnapping conviction.8 Defendant cites no 

authority prohibiting a court from considering uncharged conduct, or the probable 

consequences of defendant’s acts. A court is permitted to consider uncharged 

conduct when acquainting itself with the character of the defendant for sentencing. 

 (continued . . .) 

8. In its oral sentence the court stated: 

In this case, the [c]ourt has looked at a number of factors including the 

gravity of the offense. This [c]ourt presided over the trial and listened 

to and evaluated the credibility and the demeanor of each and every 

one of the witnesses that testified. The [c]ourt has considered the 

effect of this crime of kidnapping on the victim, Troy Klug, and Troy’s 

family. The evidence establishes that Troy was bound, beaten, 

detained in the trunk of a car in sweltering heat, duct taped. That he 

was then transferred to a toolbox where he was intermittently beaten 

until his death. He suffered terror, loneliness, misery and death. His 

body was destroyed and concealed. He was denied a burial. . . . 

In analyzing this rehabilitation factor, the Supreme Court has said 

that a defendant’s remorse and his prospect for rehabilitation are 

proper considerations in sentencing. After exercising your right to a 

trial, a defendant’s continued refusal to take accountability may be 

considered as a sign of a lack of remorse. . . . In your statement to the 

[c]ourt you told the [c]ourt, “yes, I should take responsibility” and you 

told the [c]ourt you used methamphetamine. Beyond that you did not 

take responsibility for the crime. Now the [c]ourt considers as perhaps 

one of the reasons is the fact that further criminal charges for murder 

or manslaughter could be brought against you. The [c]ourt considers 

that as a possible explanation. Nevertheless, your decision to not 

accept responsibility, not to disclose the location of the body is a factor 

that can and is considered—can be and is considered by this [c]ourt. . . 

. 

Your conduct thus far indicates to the [c]ourt that your plan for 

rehabilitation is to persist in your denial, bully others while in prison 

and keep secret the location of Troy’s body, continuing to conceal your 

involvement in this crime. . . . 

The jury found that you kidnapped Troy Klug. The legislature 

imposed wide discretion for trial courts in sentencing and the reason 

for that is there are different kinds of kidnapping. In this kidnapping 
#23759 

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__________________ 

(. . . continued) 

McKinney, 2005 SD 74, ¶17, 699 NW2d at 465-66; see also State v. McCary, 2004 

SD 18, ¶8, 676 NW2d 116, 120; State v. Arabie, 2003 SD 57, ¶21, 663 NW2d 250, 

257. 

[¶48.] We find nothing in the record to suggest that defendant’s sentence was 

grossly disproportionate. It is within the statutory maximum of life imprisonment. 

See SDCL 22-19-1(3); see also Bonner, 1998 SD 30, ¶17, 577 NW2d at 580. 

[¶49.] Affirmed. 

[¶50.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and 

MEIERHENRY, Justices, concur. 

the victim was placed at enormous risk and all the evidence 

establishes, suffered a horrible death at your hands.