#25005-a-JKK 

2009 SD 54

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellant, 

v. 

JAMES ROBERT STRAHL, Defendant and Appellee. 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

OF THE FIRST JUDICIAL CIRCUIT 

UNION COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE STEVEN R. JENSEN 

Judge 

* * * * 

LAWRENCE E. LONG 

Attorney General 

PATRICIA J. DeVANEY 

Assistant Attorney General Attorneys for plaintiff 

Pierre, South Dakota and appellant. 

PHILLIP O. PETERSON 

A. JASON RUMPCA of 

Peterson and Stuart, Prof. LLC Attorneys for defendant 

Beresford, South Dakota and appellee. 

* * * * 

 ARGUED ON MAY 27, 2009 

 OPINION FILED 07/01/09 
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KONENKAMP, Justice 

[¶1.] Defendant was convicted of first degree murder and grand theft. He 

moved for a new trial based on newly discovered evidence: the State’s key witness 

was twice convicted of perjury in an unrelated criminal case. Finding that the 

newly discovered evidence was material and probably would produce an acquittal 

on the first degree murder charge, the circuit court granted a new trial. On appeal, 

the State argues that the new evidence, being merely impeaching, was insufficient 

to support the grant of a new trial. We find no abuse of discretion because the 

newly discovered evidence was material and so discredited the State’s key witness 

as to probably produce an acquittal of first degree murder. 

Background 

[¶2.] Defendant James Robert Strahl was charged on June 28, 2006 with the 

1998 killing of William O’Hare. He was indicted on alternative counts of first 

degree murder, second degree murder, or first degree manslaughter. He was also 

indicted on one count of grand theft for stealing O’Hare’s car. Defendant pleaded 

not guilty to all charges and proceeded to trial. In August 2007, after twenty-one 

hours of deliberation, a jury returned guilty verdicts of first degree murder and 

grand theft. Defendant received a life sentence for the murder and an additional 

ten years for the grand theft. 

[¶3.] In September 2007, defendant moved for a new trial based on newly 

discovered evidence. He alleged that the State’s witness, Aloysius Black Crow, lied 

at trial because he lied during his testimony about another inmate in an unrelated 

Yankton County criminal case. During defendant’s trial, Black Crow testified about 
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incriminating statements defendant allegedly made to him while the two were 

incarcerated. The court denied defendant’s motion, finding the evidence to be 

merely impeaching and cumulative. Defendant appealed to this Court. 

[¶4.] In March 2008, while the appeal was pending, defendant moved for 

relief from judgment and requested a new trial based on newly discovered evidence 

and an alleged Brady violation. See Brady v. Maryland, 373 US 83, 83 SCt 1194, 10 

LEd2d 215 (1963). We remanded the matter for the circuit court’s consideration. 

Defendant again claimed that the State’s witness, Black Crow, committed perjury 

in his case. This time, however, defendant’s motion cited Black Crow’s two recent 

perjury convictions. While defendant’s appeal was pending, Black Crow had 

pleaded guilty to fabricating recorded conversations he claimed to have had with 

David Lykken, a fellow inmate, who allegedly confessed to Black Crow the rape and 

murder of Pamela Jackson and Cheryl Miller. While wearing a “wire,” Black Crow 

had staged a phony confession with another inmate who posed as Lykken. 

[¶5.] In resisting the defendant’s motion, the State argued that, although 

Black Crow fabricated evidence in another case, those falsehoods should not 

warrant reversal of defendant’s convictions in his case. Rather, the State averred 

that Black Crow’s perjurious actions constituted impeachment evidence, which 

would not have produced an acquittal for defendant. The State further argued that 

no Brady violation occurred because the State had no knowledge of Black Crow’s 

previous perjury at the time of defendant’s trial. 

[¶6.] In September 2008, after a hearing, the circuit court granted 

defendant’s motion for a new trial on the first degree murder conviction. According 
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to the court, although the evidence of Black Crow’s perjury was impeaching, it was 

not merely impeaching. The evidence, the court found, “would have totally 

destroyed the jurors’ ability to believe a word of Black Crow’s testimony. And the 

jury would probably have rejected Black Crow’s testimony in its entirety.” The 

court further found that the evidence was material and that without Black Crow’s 

testimony the jury probably would not have returned a guilty verdict against 

defendant for first degree murder. On the other hand, the court did not believe that 

the newly discovered evidence would have produced a different verdict on the grand 

theft charge because Black Crow’s testimony on that issue was minimal and DNA 

evidence and other circumstances solidly tied defendant to the theft. As for the 

alleged Brady violation, the court found it without merit. 

[¶7.] The State appeals the court’s decision to grant defendant a new trial 

on the charge of first degree murder. Neither party challenges the denial of a new 

trial on the grand theft charge. Defendant moved this Court to dismiss his pending 

direct appeal, which motion was granted. 

Analysis and Decision 

[¶8.] Defendant’s motion for relief from final judgment and request a new 

trial was considered under SDCL 23A-27-4.1 and SDCL 15-6-59(a)(4). 

Whether a new trial should be granted is left to the sound 

judicial discretion of the trial court, and this Court will not 

disturb the trial court’s decision absent a clear showing of abuse 

of discretion. If the trial court finds an injustice has been done 

by the jury’s verdict, the remedy lies in granting a new trial. 

State v. Gehm, 1999 SD 82, ¶12, 600 NW2d 535, 539 (quoting Border States Paving, 

Inc. v. State Dept. of Transp., 1998 SD 21, ¶11, 574 NW2d 898, 901 (quoting 
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Schuldies v. Millar, 1996 SD 120, ¶8, 555 NW2d 90, 95 (citation omitted))). To 

succeed on a motion for a new trial based on newly discovered evidence, the 

defendant must prove: 

(1) the evidence was undiscovered by the movant at the time of 

trial; (2) the evidence is material, not merely cumulative or 

impeaching; (3) that it would probably produce an acquittal; and 

(4) that no lack of diligence caused the movant to fail to discover 

the evidence earlier. 

Id. ¶13 (citing State v. Lufkins, 309 NW2d 331, 335-36 (SD 1981) (citing State v. 

Laper, 26 SD 151, 128 NW 476 (1910))). The State does not dispute that defendant 

met his burden of proving the first and fourth elements. However, the State asserts 

that the court failed to strictly apply the appropriate legal standards to its review of 

the second and third elements. In particular, the State claims that the court 

erroneously deemed impeachment evidence worthy of warranting a new trial. 

[¶9.] When a trial court grants, rather than denies, a new trial, a clearer 

showing of an abuse of discretion is required. State v. Springer-Ertl, 2000 SD 56, 

¶9, 610 NW2d 768, 770 (citations omitted). This is because trial judges stand in a 

better position to observe the witnesses and assess their testimony, while we can 

only review the transcripts. See Houck v. Hult, 60 SD 570, 245 NW 469, 470-71 

(1932). Nonetheless, “[n]ew trial motions based on newly discovered evidence 

request extraordinary relief; they should be granted only in exceptional 

circumstances and then only if the requirements are strictly met.” Gehm, 1999 SD 

82, ¶15, 600 NW2d at 540. 

[¶10.] The four-part test set out by this Court in Gehm is similar to tests 

applied by other courts, including federal courts, in assessing whether a new trial 
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should be granted based on newly discovered evidence. See United States v. Fuller, 

557 F3d 859, 863-64 (8thCir 2009) (citations omitted) (five-part test); United States 

v. Harrington, 410 F3d 598, 601 (9thCir 2005) (citation omitted); United States v. 

Lipowski, 423 FSupp 864, 867 (DCNJ 1976) (citation omitted) (five-part test); Quick 

v. State, 757 NW2d 278, 281 (Minn 2008) (citation omitted); State v. Ryan, 229 

SW3d 281, 288 (MoCtApp 2007) (citation omitted); State v. Clark, 125 P3d 1099, 

1105 (Mont 2005) (five-part test). A recurring question in these types of cases is 

whether impeachment evidence can ever result in a new trial. According to the 

State, such evidence should not, especially when the information provided by the 

witness (now allegedly not credible) was corroborated by physical evidence. 

Defendant, on the other hand, argues that when impeachment evidence is material

and would probably produce an acquittal, the evidence should support a new trial. 

[¶11.] In Gehm, this Court cited United States v. Taglia, 922 F2d 413, 415 

(7thCir 1991) for the proposition that in some cases newly discovered evidence 

should not be disregarded as merely impeaching. 1999 SD 82, ¶13, 600 NW2d at 

540. Other courts have similarly considered whether a new trial can be granted 

based on newly discovered impeachment evidence. See United States v. Hinkson, 

526 F3d 1262, 1285 (9thCir 2008); United States v. Wallach, 935 F2d 445, 458 

(2dCir 1991); Lipowski, 423 FSupp at 867; Mooney v. State, 167 P3d 81, 90-91 

(AlaskaCtApp 2007). According to several courts, while the general rule is that 

impeachment evidence cannot result in a new trial, the rule is not invariable. See 

Taglia, 922 F2d at 415; Hinkson, 526 F3d at 1285; United States v. Custis, 988 F2d 

1355, 1359 (4thCir 1993) (recognizing that a new trial may be justified); United 
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States v. Atkinson, 429 FSupp 880, 885 (DCNC 1977); State v. Rogers, 703 SW2d 

166, 169 (TennCrCtApp 1985) (citing Rosenthal v. State, 292 SW2d 1, 5 (Tenn 

1956)); see also 9A Federal Procedure, Lawyers Edition, Testimonial evidence, 

generally—Impeachment evidence § 22:1777 (updated 2008); 3 Charles Alan Wright 

et al., Federal Practice and Procedure, Newly Discovered Evidence—In General § 

557 (3ded updated 2009). There are times when newly discovered impeachment 

evidence is significant and should be given more weight. Atkinson, 429 FSupp at 

885. When new impeachment evidence effectively eradicates the credibility of a 

witness, the evidence might warrant a new trial. Id.; Taglia, 922 F2d at 415; 

Hinkson, 526 F3d at 1285. This is particularly true when the prosecution’s case 

relied heavily on the newly discredited witness. Atkinson, 429 FSupp at 885; 

Hinkson, 526 F3d at 1285; Alvarez v. United States, 808 FSupp 1066, 1093 (SDNY 

1992). 

[¶12.] “[N]ewly-discovered impeachment evidence may be so powerful that, if 

it were to be believed by the trier of fact, it could render the witness’[s] testimony 

totally incredible.” United States v. Davis, 960 F2d 820, 825 (9thCir 1992). “In 

such a case, if the witness’[s] testimony were uncorroborated and provided the only 

evidence of an essential element of the government’s case, the impeachment 

evidence would be ‘material[.]’” Id. This newly discovered impeachment evidence 

could be of such material weight that it would probably produce an acquittal. Id.; 

Taglia, 922 F2d at 415. 

[¶13.] Here, the court found that Black Crow’s fabrication of Lykken’s 

confession and the consequent perjury convictions constituted newly discovered 
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impeachment evidence. And the court concluded that the impeachment evidence 

was of such character that it would have shattered Black Crow’s credibility in 

defendant’s case. In the court’s view, the State bolstered Black Crow’s credibility 

when it elicited from Black Crow that he had previously worked with law 

enforcement agents in providing information obtained from inmates involved in 

other crimes, and more specifically, that Black Crow had worn a “wire” to record 

conversations with one inmate. The court believed this created a false inference 

that Black Crow’s information about inmate Lykken was corroborated by recorded 

conversations. While the court acknowledged that Black Crow was impeached 

several times during his cross-examination, the court believed the impeachment at 

trial went to his motive to lie, rather than to specific instances of dishonesty. 

Therefore, the court found that the perjury evidence was more than merely 

impeaching. 

[¶14.] The circuit court also considered that Black Crow’s actions with 

respect to Lykken and defendant were remarkably similar. Both cases involved 

“cold case” murders, unsolved for many years. Both cases had considerable media 

coverage. In fact, Black Crow testified that he knew who defendant was 

immediately when they were housed together in the Union County jail. Also similar 

was Black Crow’s claim to have befriended Lykken and defendant and convinced 

them both to tell him, in very specific detail, about their involvement in the 

respective murders. Based on these similarities, the court found that the newly 

discovered evidence was material, as it went “to the heart of Black Crow’s veracity 

about [defendant’s] ‘jailhouse confession’ to him[.]” 
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[¶15.] Finally, the court ruled that the newly discovered evidence would 

probably have produced an acquittal of defendant on his first degree murder charge. 

The court relied in a large part on the fact that the State’s evidence of 

premeditation came predominately from Black Crow’s testimony. Black Crow 

claimed defendant told him he killed O’Hare because O’Hare would not give 

defendant a ride back home to Sioux City. The State’s closing argument drew 

attention to the fact that the evidence of premeditation was, as Black Crow stated, 

that O’Hare would not give defendant a ride. Relying on this, the State urged and 

obtained a first degree murder conviction, despite the existence of the alternative 

charges of second degree murder and first degree manslaughter. Without Black 

Crow’s testimony, there was a paucity of evidence on how the murder occurred, 

defendant’s connection to the murder weapon, and, ultimately, proof of 

premeditation. Therefore, in light of Black Crow’s perjury in the Lykken case, the 

court found that his dishonesty “makes him . . . ‘utterly unworthy of being 

believed.’” The court ruled that it had “no hesitation in concluding that the jury 

probably would have rejected Black Crow’s testimony in its entirety” and probably 

would have acquitted defendant of first degree murder. 

[¶16.] We acknowledge that some of Black Crow’s testimony revealed 

evidence Black Crow would not have known unless he had talked with the actual 

killer. The court considered this argument, however, and we cannot say that the 

court’s conclusion was unwarranted that the jury would have probably disregarded 

all of Black Crow’s testimony if it had known of his perjury. That the jury would 

have disregarded all of Black Crow’s testimony means not that it would have 
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ignored just the parts that could not be corroborated by physical evidence, but that 

the jury would have rejected everything. Without Black Crow providing evidence of 

premeditation, defendant would probably not have been found guilty of first degree 

murder. This is not to say that the jury would have acquitted defendant on all 

charges. Our review, however, does not require a probability of an acquittal on 

every charge, but an acquittal at the degree of culpability found by the jury. See, 

e.g., Zuck v. State, 325 So2d 531, 537 (AlaCrCtApp 1975) (quoting Davis v. State, 18 

So2d 282, 283 (Ala 1944)). 

[¶17.] As we wrote in Gehm, new trial motions founded on newly discovered 

evidence “should be granted only in exceptional circumstances[.]” 1999 SD 82, ¶15, 

600 NW2d at 540. We find no abuse of discretion in the circuit court’s conclusion 

that such exceptional circumstances existed here. 

[¶18.] Affirmed. 

[¶19.] GILBERTSON, Chief Justice, and ZINTER, MEIERHENRY and 

SEVERSON, Justices, concur.