#26996-a-DG

2015 S.D. 2

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

EUGENE EDWARD MARTIN, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE JOSEPH NEILES

Judge

* * * *

MARTY J. JACKLEY

Attorney General

KIRSTEN E. JASPER

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff

and appellee.

MICHAEL G. MILLER

Minnehaha County Public

 Defender’s Office

Sioux Falls, South Dakota Attorneys for defendant and 

appellant.

* * * * 

CONSIDERED ON BRIEFS ON 

JANUARY 12, 2015

OPINION FILED 01/28/15
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GILBERTSON, Chief Justice

[¶1.] Eugene Edward Martin appeals his conviction on one count of firstdegree murder and sentence of life without the possibility of parole for the 

premeditated killing of Robert Thunderhawk. Martin argues that the circuit court 

erroneously admitted into evidence a recording of a 911 call and allowed two officers 

to testify about several out-of-court statements made by Martin. Martin also argues 

that there is insufficient evidence in the record for a jury to have concluded that 

Martin acted with premeditation. Consequently, Martin asks us to reverse and 

remand with an order directing the circuit court to enter a judgment of acquittal or 

schedule a new trial. We affirm.

Facts and Procedural History

[¶2.] In May 2012, Martin, who had been homeless for several years, was 

living at a campsite in a drainage plain located in an undeveloped area of Sioux 

Falls. Clint Lawrence Cottonwood lived at his own campsite nearby. On the 

evening of May 2, 2012, Martin, Martin’s girlfriend, Cottonwood, and Thunderhawk 

were drinking and socializing at Martin’s campsite. Martin’s girlfriend eventually

left, and Martin, Thunderhawk, and Cottonwood fell asleep. The drinking resumed 

after they awoke the next morning.

[¶3.] Eventually, Thunderhawk began commenting about Martin’s 

girlfriend’s breasts. Martin became angry and attacked Thunderhawk, striking him 

with his fists. Although Cottonwood averted his eyes from the attack, he heard

what he described as a “smack, smack” sound and then eventually “dink, dink, 

dink.” At that time, Cottonwood saw Martin—completely unclothed and wielding a 
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shovel—standing over Thunderhawk. Martin put his clothes back on and sat down 

in silence. Martin and Cottonwood sat there for some time, continuing to drink 

beer, until Cottonwood left to buy more. Rather than buy more beer, however,

Cottonwood called his friend Kevin Skogstad. Cottonwood relayed the 

circumstances of the killing to Skogstad, and the two called 911.

[¶4.] Police officers arrived at the scene and discovered Thunderhawk’s body

at Martin’s campsite, partially hidden under a tarp. Although Martin was sitting in 

a chair approximately eight feet away from where the victim lay, Martin claimed 

not to see the victim’s body or the tarp. A shovel with a broken handle was located 

on the ground next to Martin’s chair. The officers arrested Cottonwood and Martin, 

who were transported to the police station and interviewed by law enforcement 

officers. While alone in an interview room, Martin appeared to clean his fingernails 

and legs and said, “I know you are snitching.” The following morning, at Martin’s 

campsite, law enforcement located a long-handled shovel—matching a description 

given by Cottonwood—standing next to a small, freshly dug, trench.

[¶5.] A jury convicted Martin of first-degree murder, and the circuit court 

sentenced Martin to a term of life without the possibility of parole on January 13, 

2014.1 Martin raises two issues in this appeal:

1. Whether Cottonwood’s out-of-court statements were 

inadmissible hearsay that should have been excluded.

2. Whether there was sufficient evidence of premeditation to 

sustain the jury’s guilty verdict for first-degree murder.

 

1. Cottonwood was also charged as a co-defendant, but pleaded guilty to aiding 

and abetting first-degree manslaughter in accordance with a plea agreement.
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Analysis and Decision

[¶6.] 1. Whether Cottonwood’s out-of-court statements were inadmissible 

hearsay that should have been excluded.

[¶7.] Our review of a circuit court’s evidentiary ruling follows a two-step 

analysis: “first, to determine whether the trial court abused its discretion in making 

an evidentiary ruling; and second, whether this error was a prejudicial error that ‘in 

all probability’ affected the jury’s conclusion.” Supreme Pork, Inc. v. Master Blaster, 

Inc., 2009 S.D. 20, ¶ 59, 764 N.W.2d 474, 491. We recently summarized the abuse 

of discretion standard in Gartner v. Temple:

An abuse of discretion is a fundamental error of judgment, a 

choice outside the range of permissible choices, a decision, 

which, on full consideration, is arbitrary or unreasonable. We 

do not determine whether we would have made the same 

decision as the circuit court. Rather, our function in reviewing 

matters which rest in the discretion of the trial court is to 

protect litigants from conclusions which exceed the bounds of 

reason.

2014 S.D. 74, ¶ 7, 855 N.W.2d 846, 850 (citations omitted) (internal quotation 

marks omitted).

[¶8.] Martin argues that the circuit court erred in admitting hearsay 

evidence in three instances: (1) a recorded 911 call in which Skogstad repeated 

statements made by Cottonwood, (2) testimony of Officer Stevens stating that 

Cottonwood told him that Martin “finished [the victim] off with a shovel[,]” and (3) 

testimony of Detective Olson stating that Cottonwood and Martin discussed how to 

dispose of the victim’s body.2 “‘Hearsay’ is a statement, other than one made by the 

 

2. In his brief to this Court, Martin also claims it was error for the circuit court 

to overrule his objection to Detective Olson’s testimony relaying Cottonwood’s 

(continued . . .)
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declarant while testifying at the trial or hearing, offered in evidence to prove the 

truth of the matter asserted.” SDCL 19-16-1(3) (Rule 801(a) to (c)). Hearsay is 

generally not admissible. SDCL 19-16-4 (Rule 802). However, “[c]ourts have 

discretion to allow an ordinarily inadmissible inquiry when an adversary ‘opens the 

door’ to that line of inquiry.” State v. Buchholtz, 2013 S.D. 96, ¶ 12, 841 N.W.2d 

449, 454. In such a case, the party who “‘opens the door’ to admission of 

evidence . . . may not challenge the admission of that evidence.” Veith v. O’Brien, 

2007 S.D. 88, ¶ 27, 739 N.W.2d 15, 24.

[¶9.] Martin first argues that portions of the testimony of Officer Stevens—

one of the officers who responded to the 911 call and spoke with Cottonwood at the 

scene—were inadmissible hearsay. Specifically, Martin objects to the circuit court 

permitting Officer Stevens to testify that Cottonwood told him that “[Martin]

finished [the victim] off with a shovel.” An examination of the trial transcript 

surrounding this statement, however, reveals that Martin’s defense counsel opened 

the door for this testimony. On cross-examination, the following exchange took 

place between Martin’s defense counsel and Officer Stevens:

[Defense Counsel]: Now, when you first came into contact 

with Cottonwood, he immediately said that he had killed a man 

and you want to handcuff me?

[Officer Stevens]: Yes.

________________________

(. . . continued)

description of the two shovels. The circuit court overruled Martin’s objection 

without comment. Even if we were to agree with Martin that the circuit 

court abused its discretion in doing so—a conclusion we do not reach—Martin 

has not attempted to explain how the inclusion of this testimony is 

prejudicial. Therefore we consider this argument waived and do not address 

it.
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[Defense Counsel]: Cottonwood described to you he had 

gotten into an argument with [the victim] and that he punched 

him once?

[Officer Stevens]: Yes.

[Defense Counsel]: He did not say anything about [Martin] 

punching [the victim]?

[Officer Stevens]: No.

In response to this questioning, on redirect examination, the following exchange 

took place between the state’s attorney and Officer Stevens:

[State’s Attorney]: Now, Officer Stevens, you just were asked 

on cross-examination that Clint Cottonwood said, I punched 

him, did he ever tell you what [Martin] did?

[Officer Stevens]: Yes. He said, followed it up with—

[Defense Counsel]: Objection, beyond the scope.

. . . .

[State’s Attorney]: I guess, we’re following up with the fact 

that he was already asked about statements that Cottonwood 

had made.

[The Court]: I don’t find it to be beyond the scope. I’m going to 

overrule the objection.

[Defense Counsel]: Objection, hearsay.

[The Court]: And I’m a little concerned about hearsay but 

we’re going to allow the testimony here.

. . . .

[Officer Stevens]: He followed it up with, I hit him, and 

actually he made a fist and showed he swung with his right 

hand but then [Martin] finished [the victim] off with a shovel.

Defense counsel clearly raised the issue of what information Cottonwood relayed to 

Officer Stevens. Not only did Martin’s defense counsel generally raise the issue of 

the content of Cottonwood’s conversation with Officer Stevens, counsel specifically 

asked Officer Stevens whether Cottonwood said Martin punched the victim. The 

defense cannot ask whether Cottonwood said Martin struck the victim with his fists 
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and then object when testimony is later introduced indicating instead that 

Cottonwood said Martin struck the victim with a shovel. At the very least, we are 

unable to say that the circuit court’s conclusion that defense counsel opened the 

door to this testimony was arbitrary or outside the bounds of reason.

[¶10.] We are similarly unpersuaded that the circuit court abused its 

discretion in allowing Detective Olson’s testimony. Specifically, Martin objects to 

the circuit court permitting Detective Olson—a detective who interviewed 

Cottonwood at the police station—to testify regarding Cottonwood’s description of 

the shovels and the discussion that took place between Cottonwood and Martin 

regarding how to dispose of the victim’s body. Again, from a review of the trial 

transcript, it appears that Martin’s defense counsel opened the door for Detective 

Olson’s testimony. On cross-examination, the following exchange took place 

between Martin’s defense counsel and Detective Olson:

[Defense Counsel]: [Cottonwood] told you that after they were 

sitting down smoking a cigarette, [Martin] then said he wanted 

to go kill his girlfriend?

[Detective Olson]: Yeah.

[Defense Counsel]: Or according to [Cottonwood], [Martin] 

said he also wanted to go kill his brother Nick?

[Detective Olson]: [Martin]—yeah.

On redirect examination, the State asked Detective Olson to provide context for his 

answers to Martin’s defense counsel’s questioning. The following exchange took 

place between the state’s attorney and Detective Olson:

[State’s Attorney]: The defense asked you a question about 

[Martin] saying he had to then go kill his girlfriend and Nick. 

Could you tell us the context that statement was given in?

[Detective Olson]: They were discussing on what to do with 

[the victim]—
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[Defense Counsel]: Objection. That’s hearsay as well, your 

Honor.

[The Court]: You asked about it . . . . It’s fair to allow a little 

expansion on that. Overruled.

[Detective Olson]: Mr. Cottonwood said that he and Mr. 

Martin were discussing on what to do with the body. There was 

discussion about having to bury it to get rid of it. It was then 

brought up that they couldn’t bury the body because Mr. 

Martin’s girlfriend and his friend knew that [the victim] was 

down at camp with them.

It was then brought up that Mr. Cottonwood said that Mr. 

Martin brought it up that then we need to go take care of his 

girlfriend and his friend if they were going to do that because he 

was getting that they had knowledge that he was down there.

Given defense counsel’s questioning of Detective Olson regarding Cottonwood’s and 

Martin’s discussion, we are similarly unconvinced that the circuit court abused its 

discretion in permitting Detective Olson’s testimony. The context provided by his 

answers to the state’s attorney’s redirect examination provided an explanation for 

why Martin would raise the possibility of killing his girlfriend or brother.

[¶11.] Finally, the circuit court did not abuse its discretion by admitting the 

recording of the 911 call into evidence. Martin argues that no hearsay exception 

applies. However, Martin ignores the antecedent requirement of excluding evidence 

as hearsay: the out-of-court statement must be “offered to prove the truth of the 

matter asserted.” SDCL 19-16-1 (Rule 801(a) to (c)). Here, the State offered the 

recording during its direct examination of Skogstad. In responding to Martin’s 

objection, the circuit court explicitly allowed the recording for a purpose other than 

to prove the facts asserted in the recording. The circuit court said:

[The Court]: I’m going to allow the exhibit, not to prove the 

truth of what’s contained in the exhibit, but only to show what 

happened and why certain things happened; including police 
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arriving at the scene, et cetera. So it’s an explanation, but it’s 

not offered for the truth of the matter asserted.

The circuit court gave this disclaimer in the presence of the jury. Given the 

deference with which we review a circuit court’s evidentiary determinations, Martin 

has not convinced us that the circuit court’s decision was arbitrary or outside the 

range of permissible choices. Even if we did so decide, the objected-to statements 

made by Skogstad in the 911 recording—regarding information communicated to 

him by Cottonwood—are reproduced in the testimony of Officer Stevens and 

Detective Olson. Considering our conclusion that the circuit court did not abuse its 

discretion in allowing their testimony, Martin would have to establish that

admitting the 911 recording was prejudicial error independent of the testimony of 

Officer Stevens and Detective Olson. Martin has not done so and, consequently, has 

not met his burden.

[¶12.] 2. Whether there was sufficient evidence of premeditation to sustain 

the jury’s guilty verdict for first-degree murder.

[¶13.] We review challenges to the sufficiency of evidence de novo. State v. 

Brende, 2013 S.D. 56, ¶ 21, 835 N.W.2d 131, 140. The ultimate question in such an 

appeal is “whether there is evidence in the record which, if believed by the fact 

finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt.” State v. 

Carter, 2009 S.D. 65, ¶ 44, 771 N.W.2d 329, 342 (quoting State v. Shaw, 2005 S.D. 

105, ¶ 19, 705 N.W.2d 620, 626) (internal quotation marks omitted).

However, an appellate court is not required to ask itself whether 

it believes that the evidence at the trial established guilt beyond 

a reasonable doubt. Instead, the relevant question is whether,

after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.
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Brende, 2013 S.D. 56, ¶ 21, 835 N.W.2d at 140 (citations omitted) (internal 

quotation marks omitted). Therefore, “we accept the evidence and the most 

favorable inferences that can be fairly drawn from it that support the verdict.” 

Carter, 2009 S.D. 65, ¶ 44, 771 N.W.2d at 342 (quoting Shaw, 2005 S.D. 105, ¶ 19, 

705 N.W.2d at 626) (internal quotation mark omitted). “We do not resolve conflicts 

in the evidence, pass on the credibility of witnesses, or reweigh the evidence on 

appeal.” Id. “Consequently, the evidence is insufficient only ‘when no rational trier 

of fact could find guilt beyond a reasonable doubt.’” Brende, 2013 S.D. 56, ¶ 21, 835 

N.W.2d at 140 (quoting State v. Plenty Horse, 2007 S.D. 114, ¶ 5, 741 N.W.2d 763, 

765).

[¶14.] Martin argues that the State did not present evidence sufficient for a 

rational jury to find that Martin killed the victim with a premeditated design. 

First-degree murder occurs when one human being kills another “without authority 

of law and with a premeditated design to effect the death of the person killed[.]” 

SDCL 22-16-1, -4(1). “Premeditation” is defined in SDCL 22-16-5.

The term, premeditated design to effect the death, means an 

intention, purpose, or determination to kill or take the life of the 

person killed, distinctly formed and existing in the mind of the 

perpetrator before committing the act resulting in the death of 

the person killed. A premeditated design to effect death 

sufficient to constitute murder may be formed instantly before 

committing the act.

Proof of premeditation may be inferred, State v. Owens, 2002 S.D. 42, ¶ 96, 643 

N.W.2d 735, 757-58, from “1) the use of a lethal weapon; 2) the manner and nature 

of the killing; 3) the defendant’s actions before and after the murder; and 4) whether 

there was provocation[,]” State v. Wright, 2009 S.D. 51, ¶ 60, 768 N.W.2d 512, 532 
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(quoting State v. Owen, 2007 S.D. 21, ¶ 36, 729 N.W.2d 356, 367) (internal quotation 

mark omitted).

[¶15.] All four factors are present in the record. Several pages of 

Cottonwood’s testimony are particularly useful. Cottonwood testified as follows:

[State’s Attorney]: At some point, did you guys become upset 

with [the victim]?

[Cottonwood]: After he drank enough and he started getting a 

little bit mouthy and stuff, mouthy and talking out of his—

talking out of his head more or less.

. . . .

Talking about [Martin’s girlfriend] . . . .

[State’s Attorney]: Was [Martin] upset that he was talking 

about this?

[Cottonwood]: I didn’t really pay attention to it too much. It 

just felt like something they normally do, I mean, the way they 

were talking.

[State’s Attorney]: And so what do you remember happening?

. . . .

[Cottonwood]: At a point after we sat there for a little while, 

finally [Martin] got mad enough where he got up and started 

smacking [the victim].

[State’s Attorney]: When you say he was smacking him, 

how—what do you mean?

[Cottonwood]: I could hear [Martin] hitting [the victim], but I 

didn’t look over there, I guess.

. . . .

. . . So I keep messing with the radio and I didn’t even pay 

attention to what they were doing.

. . . .

At one point it stopped, so I looked over real quick and [Martin 

is] helping him up and it started again. I could hear [Martin] 

smacking him. And I was—it was, like, smack, smack. Then all 

of a sudden you heard dink, dink, dink.

[State’s Attorney]: And what did [Martin] have in his hands?

[Cottonwood]: I looked over and he had a shovel, a little 

broken handle shovel in his hand.
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. . . .

[Martin] was standing there over [the victim].

[State’s Attorney]: Was there anything unusual about 

[Martin] at that point?

[Cottonwood]: Yeah. He was naked.

. . . .

I continued just to try not to look over there and try to figure out 

what the heck is going to happen next. So I just sat there and 

heard dink, dink again and then several more times. And then 

[Martin] comes back and stands in front of me with a shovel in 

his hand still naked, so I’m not looking at him.

[State’s Attorney]: What shovel—does he still have that same 

broken handled shovel?

[Cottonwood]: No, he has the longer shovel then.

[State’s Attorney]: Okay. Now, between the time that you see 

him with the shorter handled shovel and the upper handled 

shovel, what was [the victim] doing?

[Cottonwood]: He was laying on the ground over there.

. . . .

Making a gurgling sound.

. . . .

Like an animal that’s been shot in the lungs and it’s gurgling on 

his blood.

. . . .

[State’s Attorney]: And then you heard—then is when 

[Martin] got the bigger handled shovel?

[Cottonwood]: Somewhere in that timeframe, yeah.

[State’s Attorney]: After he had the bigger handled shovel, did 

you hear anything else from [the victim]?

[Cottonwood]: No.

[State’s Attorney]: What happened at that point?

[Cottonwood]: [Martin] came and sat down and got his clothes 

back on and sat down and sat quietly after that.

[¶16.] First, a rational jury could infer premeditation because Martin used a 

lethal weapon to kill the victim. A deadly—or lethal—weapon is statutorily defined 
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as “any firearm, stun gun, knife, or device, instrument, material, or substance, 

whether animate or inanimate, which is calculated or designed to inflict death or 

serious bodily harm, or by the manner in which it is used is likely to inflict death or 

serious bodily harm[.]” SDCL 22-1-2(10). Cottonwood testified that he saw Martin 

standing over the victim with a shovel and that he heard a “dink, dink, dink.” 

Given the standard of review in this case, a rational jury could easily infer that 

Martin used the shovels to beat the victim. Such an inference is strongly supported 

by the medical examiner’s testimony that the victim suffered extensive injuries, 

including multiple skull fractures consistent with the type of injury that would be 

caused by a shovel. Using a shovel as a bludgeon to repeatedly strike another 

person in the head is using it in a manner likely to inflict death or serious bodily 

harm; therefore, the first factor weighs in favor of a finding of premeditation.

[¶17.] Second, a rational jury could infer premeditation from the nature of 

the killing. According to Cottonwood’s testimony, the killing took place in multiple 

phases. Martin first struck the victim with his fists. He then stopped and helped 

the victim get up before striking him again. Martin stopped striking the victim 

with his fists, got undressed, and then started striking the victim with a shovel. At 

some point, Martin again temporarily ceased the attack in order to retrieve a 

longer-handled shovel with which to continue beating the victim. Therefore the 

second factor weighs in favor of a finding of premeditation.

[¶18.] Third, a rational jury could infer premeditation from Martin’s actions 

before and after the murder. A rational jury could view Martin’s removal of his 

clothing before beating the victim with a shovel as a conscious attempt to avoid the 
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transfer of physical evidence to his clothing. Detective Olson also testified that he 

observed Martin “sucking” his fingernails in an attempt—in Detective Olson’s 

view—to clean underneath his fingernails. The State presented, and the jury 

viewed, a recording of this conduct. Detective Olson also testified that he witnessed 

Martin rubbing and scratching his legs in a manner that led Detective Olson to 

believe Martin “was trying to remove something or get something off his leg or clean 

his legs[.]” Finally, the jury also heard testimony that the victim’s body was covered 

with a tarp, and that one of the shovels used to beat the victim was found next to a 

freshly dug trench near the camp. Because “[a]ttempts to conceal or dispose of 

evidence may also support an implicit finding of premeditation[,]” Owens, 2002 S.D. 

42, ¶ 97, 643 N.W.2d at 758, this third factor also weighs in favor of a finding of 

premeditation.

[¶19.] Finally, a rational jury could infer premeditation from evidence that 

the victim provoked Martin. Cottonwood described the victim as “mouthy” and said 

the victim repeatedly commented on Martin’s girlfriend’s breasts. According to 

Cottonwood, Martin finally “got mad enough” to physically attack the victim. 

Considering this provocation, the use of a deadly weapon, the prolonged and 

intermittent nature of the attack, and Martin’s apparent efforts to conceal or 

dispose of evidence, this evidence, if believed by the jury, was sufficient to establish 

Martin’s guilt of premeditation beyond a reasonable doubt.

Conclusion

[¶20.] The circuit court’s decision to allow the objected-to testimony of Officer 

Stevens and Detective Olson, as well as the 911 recording, was not arbitrary or 
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unreasonable; consequently, it was not an abuse of discretion. Similarly, the record 

reflects ample evidence that, if believed, would be sufficient for a rational trier of 

fact to convict Martin. Therefore, we affirm.

[¶21.] ZINTER, SEVERSON, WILBUR, Justices and KONENKAMP, Retired 

Justice, concur.

[¶22.] KERN, Justice, not having been a member of the Court at the time this 

action was assigned to the Court, did not participate.