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2016 S.D. 67

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

KEITH WAYNEMCLAIN

HORNED EAGLE, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE ROBIN J. HOUWMAN

Judge

* * * *

MARTY J. JACKLEY

Attorney General

JOHN M. STROHMAN 

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff

and appellee. 

BEAU J. BLOUIN

Minnehaha County 

 Public Defender

Sioux Falls, South Dakota Attorneys for defendant 

and appellant.

* * * *

CONSIDERED ON BRIEFS 

ON AUGUST 29, 2016

OPINION FILED 09/28/16
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WILBUR, Justice

[¶1.] During defendant’s trial on an allegation of rape in the second degree, 

defendant moved the circuit court to order the prosecutor to produce any summaries 

written by the prosecutor or by others in the prosecutor’s office documenting the 

victim witness’s oral declarations about the alleged rape. The court denied 

defendant’s motion after concluding that SDCL 23A-13-10(4) did not mandate 

production. The jury found defendant guilty. Defendant appeals. We reverse and 

remand. 

Background

[¶2.] On September 28, 2014, in Sioux Falls, South Dakota, Cheryl Walking 

Crow called 911 to report that she had been raped earlier that morning. She 

explained that she had walked to a cement enclosure next to the Salvation Army 

building to sleep when a man approached her and raped her. Sioux Falls police 

officers Bridget O’Toole and Craig Boetel responded. Officer O’Toole noted that she 

did not observe any physical injuries on Walking Crow. Both officers took Walking 

Crow to the area near the Salvation Army building. There, the officers observed a 

man sleeping on the ground. The man, later identified as Keith Horned Eagle, 

appeared intoxicated. A preliminary breath test reported his blood alcohol content 

at 0.247 percent. According to Officer O’Toole, Horned Eagle claimed that he did 

not remember that he had been sleeping in the enclosure or whether a female was 

also sleeping there the night before. Horned Eagle agreed to speak with law 

enforcement at the Law Enforcement Center. Horned Eagle also consented to give 
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buccal, finger, and penile swabs for DNA purposes and to give the officers his 

clothing and other items from the scene for testing. 

[¶3.] The officers took Walking Crow to Avera Hospital to complete a sexual 

assault examination. The vaginal, cervical, oral, and anal perineum swabs obtained 

from Walking Crow were tested for evidence of semen. They also tested Walking 

Crow’s underwear. As part of Walking Crow’s sexual assault examination, the 

nurse collected from Walking Crow various swabs, fingernail scrapings, and pubic 

hair samples. The nurse also examined Walking Crow’s body for evidence of 

injuries, finding none. 

[¶4.] On December 31, 2014, a grand jury indicted Horned Eagle with one 

count of second-degree rape in violation of SDCL 22-22-1(2). Horned Eagle pleaded 

not guilty. A jury trial began on May 6, 2015. The emergency room nurse, Jennifer 

Canton, testified that she did not take any photographs of Walking Crow because 

she observed no sign of injuries. Canton also testified that Walking Crow reported 

that she knew her attacker as an acquaintance. Canton relayed that Walking Crow 

reported that she knew her assailant as “Keith.” 

[¶5.] A forensic scientist with the State of South Dakota, Amber Bell, 

testified with regard to the DNA testing of the sexual assault kit obtained from 

Walking Crow and the swabs and items collected from Horned Eagle. Horned 

Eagle’s penile swab contained a DNA profile matching Walking Crow. One of

Horned Eagle’s finger swabs contained the DNA profiles of Horned Eagle and 

Walking Crow. According to Bell, the DNA matching Walking Crow obtained from 

Horned Eagle’s swab samples did not indicate from what part of Walking Crow’s 
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body the DNA originated. The sample could be from Walking Crow’s skin cells, her 

hands, her mouth, her vagina, etc. Bell also testified that no swab from Walking 

Crow’s person indicated the presence of semen and her underwear tested negative 

for the presence of semen. Because Bell detected no seminal fluid on the swabs 

from Walking Crow, Bell conducted no other tests to determine the presence of 

Horned Eagle’s DNA on Walking Crow. 

[¶6.] Walking Crow testified about the events leading up to the rape. She 

said she went to her friend Doug’s house to shower before leaving to eat at The 

Banquet. After her meal, she walked to a gas station to purchase beer. She said 

that she ran into Horned Eagle as she exited the gas station and said hello to him 

while walking by. Walking Crow relayed that after obtaining the beer she went to a 

park to meet a friend. Walking Crow claimed that at the park she again saw 

Horned Eagle. 

[¶7.] According to Walking Crow, later that night she went to a friend’s 

house and continued drinking alcohol. She left her friend’s house after midnight 

and went back to Doug’s. Nobody was at Doug’s house, and Walking Crow found 

her pillows and blankets laying outside the house. She took them and walked 

toward the Salvation Army to sleep. She reported that she believed someone was 

walking behind her. On redirect, Walking Crow testified that Horned Eagle was 

the person walking behind her. 

[¶8.] Once Walking Crow reached the cement enclosure by the Salvation 

Army building, she laid out her blankets on the ground and began drinking more 

alcohol. Walking Crow said that Horned Eagle sat down and had a couple drinks 
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with her while the two of them talked. She said that at some point Horned Eagle 

stood up, took his pants off, and attempted to make Walking Crow give him oral 

sex. She claimed she pushed him away. She said Horned Eagle pushed her down 

and took her pants off. Walking Crow claimed she kicked and struck Horned Eagle 

but succumbed to his strength. She said Horned Eagle struck her in the chest with 

his knee, put his forearm against her throat, and pushed a pillow down on her face. 

Walking Crow explained that she was scared and stopped fighting. She said that,

at that point, Horned Eagle vaginally penetrated her with his penis. She recalled 

that Horned Eagle ejaculated inside her. Walking Crow testified that when Horned 

Eagle finished, he laid beside her and held her. A few hours later, while Horned 

Eagle slept, Walking Crow put on her clothes and walked to the gas station to call 

911. 

[¶9.] During a break in Walking Crow’s testimony, counsel for Horned Eagle 

informed the circuit court that he would be requesting access to the notes taken by 

the prosecutor or notes taken by anyone in the prosecutor’s office that summarized 

Walking Crow’s prior oral statements. Counsel claimed that the notes were 

discoverable under SDCL 23A-13-10(4). The State objected and argued that the 

prosecutor’s notes are protected attorney work product. The court agreed and held 

that the prosecutor’s notes (or notes by others in the prosecutor’s office) did not fall 

under SDCL 23A-13-10. 

[¶10.] The jury found Horned Eagle guilty of rape. The court sentenced 

Horned Eagle to fifty years in prison with ten years suspended. Horned Eagle 

appeals and asserts one issue for our review: 
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Whether Horned Eagle was denied due process when the circuit 

court denied his request to inspect written notes in the 

possession of the prosecuting attorney containing prior 

statements made by Walking Crow.

Standard of Review

[¶11.] We normally review a court’s discovery decision for an abuse of 

discretion. Andrews v. Ridco, Inc., 2015 S.D. 24, ¶ 14, 863 N.W.2d 540, 546. When 

the circuit court’s decision raises an issue of statutory interpretation, our review is 

de novo. Id. 

Analysis 

[¶12.] Horned Eagle contends that the circuit court erred when it denied his 

request that the court order the State to produce notes in the possession of the 

prosecutor containing summaries of Walking Crow’s prior statements related to the 

allegations against him. He avers that the circuit court should have reviewed the 

prosecutor’s notes in camera to determine if the notes contained attorney work 

product or relevant statements by Walking Crow on the subject matter of her 

testimony at trial. According to Horned Eagle, the court’s failure to order the State 

to produce Walking Crow’s prior statements violated his right to due process and 

his right to confront a witness against him. 

[¶13.] In response, the State seems to believe that Horned Eagle seeks only 

the notes summarizing Walking Crow’s grand jury testimony. The State writes, 

“Horned Eagle’s request is without merit since the entire verbatim statement of the 

grand jury was provided.” According to the State, “[w]hatever small quotes, notes 

or impressions that the state’s attorney’s office may have jotted down during 

[Walking Crow’s] grand jury testimony are work product[.]” (Emphasis added.) 
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[¶14.] This case does not involve whether the State is obligated to produce 

notes taken by the prosecutor or others in the prosecutor’s office during a witness’s 

grand jury testimony. In fact, Horned Eagle makes clear he does not seek the notes

taken during Walking Crow’s grand jury testimony. This case concerns whether 

“[a] summary of an oral declaration made by someone other than the witness that 

has been reduced to writing” under SDCL 23A-13-10(4) includes the summaries of 

Walking Crow’s oral declarations made by the prosecutor or others in the 

prosecutor’s office. 

[¶15.] According to the State, subsection (4) should not be interpreted to 

include a prosecutor’s notes taken while interviewing a witness because the “main 

objective” of the overall statutory scheme is akin to the federal rule—to allow for 

“discovery of verbatim or near verbatim statements by the testifying witness.” A 

comparison of the federal rule against South Dakota law, however, reveals that the 

federal rule does not contain the statutory language at issue here. Compare 18 

U.S.C. § 3500(e) (Jencks Act) with SDCL 23A-13-10. 

[¶16.] Under SDCL 23A-13-7, “[a]fter a witness called by the prosecuting 

attorney has testified on direct examination, the court shall, on motion of the 

defendant, order the prosecuting attorney to produce any statement, as defined by 

SDCL 23A-13-10, of the witness in the possession of the prosecuting attorney which 

relates to the subject matter as to which the witness has testified.” A “statement” is 

defined to include, “in relation to any witness called by the prosecuting attorney”: 

(1) A written statement made by such witness and signed or 

otherwise adopted or approved by him;

(2) A stenographic, mechanical, electrical, or other recording, or 

a transcription thereof, which is a substantially verbatim 
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recital of an oral statement made by such witness and 

recorded contemporaneously with the making of such oral 

statement;

(3) A statement, however taken or recorded, or a transcription 

thereof, if any, made by such witness to a grand jury;

(4) A summary of an oral declaration made by someone other 

than the witness that has been reduced to writing.

SDCL 23A-13-10. In contrast, the Jencks Act does not have a provision similar to 

subsection (4). It provides that “[t]he term ‘statement’, as used in subsections (b), 

(c), and (d) of this section in relation to any witness called by the United States, 

means”:

(1) a written statement made by said witness and signed or 

otherwise adopted or approved by him;

(2) a stenographic, mechanical, electrical, or other recording, or 

a transcription thereof, which is a substantially verbatim recital 

of an oral statement made by said witness and recorded 

contemporaneously with the making of such oral statement; or

(3) a statement, however taken or recorded, or a transcription 

thereof, if any, made by said witness to a grand jury.

18 U.S.C. § 3500(e). 

[¶17.] Nonetheless, the State also directs this Court to State v. Muetze, where 

we held that the police officer’s original notes were not subject to production. 368 

N.W.2d 575, 580 (S.D. 1985). But Muetze is distinguishable. In Muetze, the

defendant sought to discover the investigating officer’s original notes to “search” for 

“information which could be used to impeach prosecution witnesses.” 368 N.W.2d at 

580. The State had already given to defendant the “typed or handwritten reports 

from each investigating officer[.]” Id. And the Court noted that “all ‘statements’ 

were turned over to Muetze’s counsel prior to trial.” Id. at 581. Here, on the other

hand, the State has not made any similar assertion that it has produced all 

statements under SDCL 23A-13-10(4). 
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[¶18.] Alternatively, the State submits that ordering the production of the 

prosecutor’s notes from interviews with a witness “would subject prosecutors to be 

called regularly as witnesses . . . to explain comments they made while talking with 

witnesses.” The State claims that “a prosecutor might be fearful that mere visiting 

with a witness might subject personal thoughts, comments, opinions, theories or 

impressions to become part of the defendant’s discovery.” The State disagrees that 

having a court review the notes in camera would remedy that concern. According to 

the State, having a court review the notes in camera and ordering redaction “could 

result in road blocks to the prosecutor’s responsibility to do justice and thoroughly 

investigate a case.” 

[¶19.] First, SDCL 23A-13-5 protects attorney work product. It provides that 

chapter 23A-13 “does not authorize the discovery or inspection of reports, 

memoranda, or other internal prosecution documents made by the prosecuting 

attorney or other employees of law enforcement agencies in connection with the 

investigation or prosecution of the case[.]” SDCL 23A-13-5. Second, SDCL 23A-13-

10(4) is unambiguous, and the State presents no alternative interpretation. Upon 

Horned Eagle’s motion, the State was required to produce any summary of Walking 

Crow’s oral declarations written by someone other than Walking Crow on the 

subject matter of Walking Crow’s testimony. 

[¶20.] By no means is SDCL 23A-13-10(4) intended to give defense attorneys 

access to the prosecutor’s attorney work product. But Horned Eagle has a 

constitutional right to due process and a right to confront his accusers. “In all 

criminal prosecutions the accused shall have the right . . . to demand the nature 
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and cause of the accusation against him; to have a copy thereof; to meet the 

witnesses against him face to face[.]” S.D. Const. art. VI, § 7; see also S.D. Const. 

art VI, § 2. Here, the credibility of Walking Crow’s testimony was crucial to the 

State’s case. There were no eyewitnesses, and the evidence presented at trial 

conflicted with Walking Crow’s previous statements. For example, Walking Crow 

claimed that Horned Eagle ejaculated into her vagina, but seminal fluid testing 

indicated that no semen was present in Walking Crow’s vagina, on her person, or in 

her underwear. And the forensic expert testified that the presence of semen would 

remain detectible anywhere from twenty-four hours to three days. Walking Crow’s 

person and clothing were tested within five hours of the incident. Walking Crow 

also claimed to have been pushed by Horned Eagle, that a struggle ensued on the 

ground, and that he held her down with a knee on her chest. The police officers and 

the nurse testified that they found no injuries on Walking Crow’s person.

[¶21.] Because SDCL 23A-13-10(4) unambiguously requires the State to 

produce any “summary of an oral declaration made by someone other than the 

witness that has been reduced to writing[,]” the circuit court erred when it denied 

Horned Eagle’s motion. Horned Eagle is entitled to have notes in the possession of 

the prosecutor containing summaries of Walking Crow’s prior statements related to 

the allegations against him produced for an in camera review by the circuit court to 

determine if those notes contain discoverable statements under SDCL 23A-13-10(4). 

See, e.g., People v. Szabo, 447 N.E.2d 193, 201-02 (Ill. 1983); see also Dakota Minn. 

& E. R.R. Corp. v. Acuity, 2009 S.D. 69, ¶ 49, 771 N.W.2d 623, 637 (“the preferred 

procedure for handling privilege issues is to allow for an in camera review of the 
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documents”). If, after an in camera review of the notes, the court concludes that the 

notes contain discoverable statements under SDCL 23A-13-10, which could have 

affected the outcome of the trial, the court is directed to vacate Horned Eagle’s 

judgment of conviction and sentence and schedule a new trial. See State v. 

Birdshead, 2015 S.D. 77, ¶ 49, 871 N.W.2d 62, 79 (the suppressed evidence must be 

prejudicial in nature for defendant to receive a new trial). If, on the other hand, the 

notes do not contain statements discoverable under SDCL chapter 23A-13, the 

circuit court is directed to enter a new judgment of conviction and impose the same 

sentence. 

[¶22.] Reversed and remanded. 

[¶23.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN, 

Justices, concur.