#27832-a-LSW

2016 S.D. 87

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

CHARLES BIRDSHEAD, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SEVENTH JUDICIAL CIRCUIT

PENNINGTON COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE WALLY EKLUND

Judge

* * * *

MARTY J. JACKLEY

Attorney General

CRAIG M. EICHSTADT

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff 

and appellee. 

JAMY PATTERSON

Rapid City, South Dakota Attorney for defendant 

and appellant.

* * * *

CONSIDERED ON BRIEFS 

ON NOVEMBER 7, 2016

OPINION FILED 12/07/16
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WILBUR, Justice 

[¶1.] In this second appeal, the defendant challenges the circuit court’s 

ruling on limited remand that the State did not violate the defendant’s due process 

rights or commit a Brady violation in regard to the production of certain records. 

We affirm.

Background

[¶2.] In 2013, a jury found Charles Birdshead guilty of first-degree 

manslaughter, commission of a felony with a firearm, and possession of a controlled 

weapon. Birdshead appealed his convictions, asserting eight issues for this Court’s 

review. See State v. Birdshead (Birdshead I), 2015 S.D. 77, 871 N.W.2d 62. One 

issue from the first appeal is relevant to this appeal—whether the State committed 

a Brady violation when it denied Birdshead access to the Unified Narcotics 

Enforcement Team (UNET) files. See id. ¶ 46. This Court could not determine if a 

Brady violation occurred because the UNET files were not in the record. We, 

therefore, issued a limited remand. We directed the circuit court “to include the 

UNET files within the record and reconsider the Brady issue as to the UNET files.” 

Id. ¶ 49. 

[¶3.] On remand, the circuit court issued a letter to the parties. The court 

informed the parties that it “reviewed the entire file [on remand] and the 

UNET/intelligence files are not contained therein.” It asked “the State to submit 

the records which it was ordered to provide on May 7, 2013, for [the court’s] incamera review so that [the court] may determine whether a Brady violation 
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occurred.” The court indicated that it would issue a written decision after reviewing 

the evidence. 

[¶4.] Birdshead responded with a motion for a new trial. He asserted that 

the circuit court could not comply with this Court’s remand directive because the 

record as it existed before the trial did not contain the UNET files. In Birdshead’s 

view, the fact the record never contained the files meant that the State violated the 

circuit court’s discovery order in 2013 by not submitting any UNET files prior to 

trial. Birdshead also requested a new trial because of newly discovered evidence 

that one of the State’s key witnesses committed perjury. 

[¶5.] On January 11, 2016, the circuit court held a hearing. The court 

indicated that it had mistakenly believed it had received the UNET records prior to 

the 2013 trial. The court concluded that it could nevertheless review the 

information it directed the State to submit on remand and rule whether the UNET 

records contained Brady material and whether Birdshead should receive a new 

trial. Birdshead requested an evidentiary hearing. The court denied Birdshead an 

evidentiary hearing on his claim that newly discovered evidence warranted a new 

trial, and, ultimately, denied his motion for a new trial. The court did not give a 

reason for the denial. 

[¶6.] In regard to the UNET records, the court held an evidentiary hearing 

on February 1, 2016. Birdshead again argued that the State violated the circuit 

court’s discovery order when it submitted no UNET files in 2013 and when it 

submitted UNET files in 2015 only on those witnesses the State had called to testify 

at trial. According to Birdshead, the court’s 2013 discovery order meant the State 
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had to conduct a UNET record search on all the witnesses on the State’s pre-trial 

witness list. He argued that to conclude otherwise would deprive him of the right to 

determine whether Brady material existed on potential witnesses. Birdshead also 

requested access to review the materials submitted to the circuit court by the State 

and to examine the procedure in which the records were produced to the circuit 

court. 

[¶7.] In response, the State argued that it did not violate the circuit court’s 

2013 discovery order. The State claimed that the language of the court’s order 

required the State to produce UNET records on witnesses it intended to call at trial, 

not the 40-plus witnesses on its pre-trial witness list. So, in the State’s view, it was 

required on remand to conduct a search on the witnesses that it had in fact called to 

testify at Birdshead’s 2013 trial. 

[¶8.] At the hearing, Birdshead called Gina Nelson, a prosecutor for the 

Pennington County State’s Attorney Office, and Pat West, the supervisor for the 

Division of Criminal Investigation in western South Dakota, to testify. West 

testified that he conducted the 2015 search for any files, records, or documents 

related to the witnesses the State had called to testify at Birdshead’s 2013 trial. 

The search, according to West, produced 77 pages of information. West relayed that 

he had someone from his office deliver the information to the circuit court. Attorney 

Nelson testified that she had not seen the information contained in the 77 pages. In 

regard to the State’s compliance with the court’s discovery order prior to 

Birdshead’s trial, Attorney Nelson testified that, in 2013, she had asked that a 

UNET file search be conducted prior to trial, although she could not recall exactly 
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what names she had asked to be searched. The court continued the hearing to allow 

Birdshead an opportunity to examine Sergeant Tony Harrison of the Pennington 

County Sheriff’s Office. 

[¶9.] In the second evidentiary hearing, Sergeant Harrison testified that in 

2013, someone from the State’s Attorney Office had asked him to conduct a UNET 

file search on “several” persons. Sergeant Harrison testified that he kept no record 

of the State’s Attorney Office’s 2013 request, the parameters of the search he 

conducted, or the results. He testified from memory that his 2013 search produced 

no UNET files for the persons on the State’s Attorney Office’s list. 

[¶10.] At the conclusion of the continued hearing, Birdshead argued that the 

State continued to violate the circuit court’s 2013 discovery order because the State 

had yet to produce the UNET search results for all 40-plus witnesses on the State’s 

pre-trial witness list. The circuit court disagreed with Birdshead’s interpretation of 

the court’s 2013 discovery order. The court quoted exchanges between counsel and 

the court in April and May 2013, during which Birdshead’s counsel agreed that a 

proper interpretation of the court’s discovery order meant that the State was 

required to produce the “UNET/intelligence files” on the witnesses the State

intended to call at trial, not all the witnesses on the State’s pre-trial witness list. In 

regard to the UNET information produced in 2015, the circuit court ruled that the 

State did not violate the court’s discovery order when it requested a UNET record

search only on those witnesses the State had called to testify in 2013. In regard to 

the information produced, the court ruled that the records contained no evidence 

warranting a new trial. 
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[¶11.] The State issued proposed findings and conclusions, and Birdshead 

issued objections and proposed findings and conclusions. The court identified that a 

representative from UNET had provided the court with records on two individuals 

in December 2015 for an in-camera review. The court held that the UNET records 

contained “no evidence favorable to the accused; as either inculpatory or 

exculpatory information.” The court also found that the UNET records contained no 

impeachment evidence. The court noted that the records contained information 

about a testifying witness, Shy Bettelyoun. The record described her as a drug 

dealer. But, during Birdshead’s trial, Birdshead examined Bettelyoun and learned 

that Bettelyoun was under federal indictment as a drug dealer. So the court 

concluded that the information was made available for the jury’s consideration at 

trial. The court held upon its review that the State committed no Brady violation as 

it pertained to the UNET records. The court denied Birdshead relief.

[¶12.] Birdshead appeals, asserting two issues for our review:

1. Whether the State committed a Brady violation and 

violated Birdshead’s due process rights when it failed to 

disclose certain records for an in-camera review prior to 

Birdshead’s jury trial.

2. Whether the circuit court abused its discretion and 

violated Birdshead’s due process rights when it denied 

Birdshead a new trial. 

Analysis 

1. Discovery Order Violation and Brady Violation

[¶13.] Birdshead argues that there is an inadequate record for this Court to 

review whether his due process rights were violated in 2013 because the State 

produced no UNET records in 2013, and the circuit court did not in fact review any 
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UNET records prior to his trial. Birdshead relies on his view that our decision in 

Birdshead I hinged on our belief that the State in fact produced the records for the 

circuit court’s review and that the circuit court had reviewed the records. 

[¶14.] Whether Birdshead’s due process rights were violated in 2013 depends 

on what could have been produced in 2013 and if what could have been produced 

contains evidence material to the issue of Birdshead’s guilt.* “[I]n order to find 

error, the defendant must establish that the belated disclosure of evidence was 

material to the issue of guilt, because if it was not material, it could not be violative 

of due process.” State v. Moeller, 2000 S.D. 122, ¶ 76, 616 N.W.2d 424, 446 (internal 

citation omitted). 

[¶15.] In response, Birdshead argues that this Court (and the circuit court) 

cannot determine if a Brady violation occurred in 2013 because the State has yet to 

comply with the circuit court’s 2013 discovery order. The circuit court’s 2013 

discovery order provided “that the State disclose, for in-camera review, any 

information contained in criminal cases and/or UNET/intelligence files on any 

witness the State intends to call at the jury trial in this matter.” Birdshead claims 

that the only way to know who the State “intended” to call in 2013 would be to look 

at who the State listed on its pre-trial witnesses list in 2013. As an example, 

 

* In a footnote, Birdshead argues that he was prejudiced because he could not 

in 2013, and cannot now, determine whether the information the court 

reviewed in camera contained evidence material to the issue of guilt. 

Birdshead does not have an absolute right to see the UNET records. The 

circuit court, by conducting an in-camera review of the information, protected 

the confidentiality of the UNET documents while ensuring Birdshead’s due 

process rights were not violated. This Court provides the same protection by 

independently reviewing the information the circuit court examined.
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Birdshead refers to witness Milk. The State did not call Milk at trial, Birdshead 

did. But according to Birdshead, the State intended to call Milk in its case-in-chief 

because Milk’s testimony was central to the State’s conviction of Birdshead.

[¶16.] Before we examine whether a Brady violation occurred in 2013, we 

address Birdshead’s claim that the State violated the circuit court’s 2013 discovery 

order. We review the violation of a discovery order for an abuse of discretion. State 

v. Muhm, 2009 S.D. 100, ¶ 37, 775 N.W.2d 508, 521. We “presume the evidentiary 

rulings made by a trial court are correct, and review those rulings under an abuse of 

discretion standard.” State v. Krebs, 2006 S.D. 43, ¶ 19, 714 N.W.2d 91, 99. 

[¶17.] The circuit court rejected Birdshead’s interpretation of the 2013 

discovery order and ruled that the State complied with the discovery order by 

requesting a UNET record search on the witnesses the State had called to testify in 

the 2013 trial. As support, the court relied on the exchange during the April and 

May 2013 hearings between the court and counsel. In those hearings, Birdshead’s 

counsel agreed that the discovery order did not include all the witnesses on the 

State’s pre-trial witness list—only the witnesses the State intended to call at trial. 

After quoting this language aloud to Birdshead’s counsel at the 2015 hearing, the 

circuit court said, “So that was the state of the record as of May 6, 2013.” Counsel 

for Birdshead responded, “Right.” Birdshead has not established that the circuit 

court abused its discretion in interpreting its 2013 discovery order. 

[¶18.] We next address the circuit court’s conclusion that the State did not 

commit a Brady violation. A violation of a defendant’s due process rights occurs 

when the State suppresses evidence favorable to the defendant when the evidence is 
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material either to guilt or punishment. Birdshead I, 2015 S.D. 77, ¶ 44, 871 N.W.2d 

at 77 (quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. 

Ed. 2d 215 (1963)). “Such evidence is material ‘if there is a reasonable probability 

that, had the evidence been disclosed to the defense, the result of the proceeding 

would have been different.’” Strickler v. Greene, 527 U.S. 263, 280, 119 S. Ct. 1936, 

1948, 144 L. Ed. 2d 286 (1999). As the United States Supreme Court noted in 

Strickler, 

There are three components of a true Brady violation: The 

evidence at issue must be favorable to the accused, either

because it is exculpatory, or because it is impeaching; that 

evidence must have been suppressed by the State, either 

willfully or inadvertently; and prejudice must have ensued.

Id. at 281-82, 119 S. Ct. at 1948. See also Thompson v. Weber, 2013 S.D. 87, ¶ 38, 

841 N.W.2d 3, 12. “Prejudicial error is ‘that which in all probability must have 

produced some effect upon the final result and affected rights of the party assigning 

it.’” State v. Spiry, 1996 S.D. 14, ¶ 11, 543 N.W.2d 260, 263 (quoting K & E Land & 

Cattle, Inc. v. Mayer, 330 N.W.2d 529, 533 (S.D. 1983)).

[¶19.] The circuit court directed the State to produce documents in 

compliance with its 2013 discovery order. The State submitted documents, and the

court added those documents to the record in two sealed manila envelopes. Both 

envelopes display the respective dates the envelopes were received. One envelope 

has “Attn: Judge Eklund” on the cover, the judge’s initials, and a notation of “77 

pages.” The other envelope denotes that it was “received in open court February 1, 

2016 From Pat West.” We have reviewed the documents in these envelopes and the 

related hearing transcripts. Based on our independent review, we conclude that the 
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circuit court’s portrayal of the information is accurate. The documents do not 

contain evidence favorable to Birdshead in exculpation or impeachment. The court 

did not err when it concluded that the State committed no Brady violation.

2. Motion for a New Trial

[¶20.] Birdshead asserts that a new trial is warranted because of misconduct 

of an adverse party, inadvertence or mistake, and newly discovered evidence, citing 

SDCL 15-6-60(b). Birdshead claims that the State committed misconduct when it 

did not produce UNET records prior to the 2013 trial. He also asserts that, at the 

very least, the circuit court’s failure to ensure it reviewed the UNET records prior to 

the 2013 trial constitutes a mistake. In regard to his claim that newly discovered 

evidence warrants a new trial, Birdshead argues that witness Milk perjured his 

testimony at Birdshead’s trial and that Attorney Mark Vargo told Milk that 

Attorney Vargo would try to get Milk out of the parole violation he was facing if he 

cooperated with the prosecution. 

[¶21.] Birdshead did not file a motion for a new trial under SDCL 23A-29-1. 

Birdshead, however, claims that he timely filed his motion for a new trial under 

SDCL 15-6-60(b) because this Court did not file the remitter on Birdshead I until 

February 7, 2014, and he did not learn of the circuit court’s failure to review the 

UNET records in 2013 until after this Court’s decision in Birdshead I. While we 

agree that Birdshead could not have known how this Court would decide Birdshead 

I, Birdshead cites no authority for the proposition that SDCL 15-6-60(b) applies in 

this case. More importantly, Birdshead’s motion for a new trial on the basis of the 

UNET records was unnecessary. Our remand directive required the circuit court to 
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consider whether Birdshead would be entitled to a new trial related to the UNET 

records. 

[¶22.] In regard to his motion for a new trial because of newly discovered 

evidence about witness Milk, Birdshead argues that the circuit court was required 

to hold an evidentiary hearing. We disagree. “When the scope of remand is limited, 

the entire case is not reopened, but rather, the lower tribunal is only authorized to 

carry out the appellate court’s mandate.” State v. Piper (Piper III), 2014 S.D. 2, 

¶ 11, 842 N.W.2d 338, 343 (quoting In re Conditional Use Permit to Van Zanten, 

1999 S.D. 79, ¶ 13, 598 N.W.2d 861, 864). Our remand directive in Birdshead I did 

not resurrect the circuit court’s original jurisdiction. See id. ¶ 10. It placed before 

the circuit court only the issue whether a Brady violation occurred in regard to the 

UNET records. We have said that where a direct appeal is no longer an option, 

habeas corpus is a possible avenue for post-conviction relief. State v. Pentecost, 

2015 S.D. 71, ¶ 6, 868 N.W.2d 590, 592 (quoting State v. Anderson, 2005 S.D. 22, 

¶ 24, 693 N.W.2d 675, 682). 

[¶23.] Alternatively, Birdshead claims that plain error occurred and that,

because of the cumulative errors in his case, he was denied due process. “In South 

Dakota, due process does not guarantee a defendant the right to an error-free 

trial[;] nevertheless it must be a fair trial.” State v. Hayes, 2014 S.D. 72, ¶ 37, 855 

N.W.2d 668, 680 (quoting State v. Smith, 1999 S.D. 83, ¶ 52, 599 N.W.2d 344, 355). 

Although Birdshead did not have an error-free trial, Birdshead has failed to prove 

he was denied a fair trial. See State v. Wright, 2009 S.D. 51, ¶ 69, 768 N.W.2d 512, 

534. 
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[¶24.] Affirmed.

[¶25.] GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices, 

and MACY, Circuit Court Judge, concur.

[¶26.] MACY, Circuit Court Judge, sitting for KERN, Justice, disqualified.