#27325-a-GAS

2016 S.D. 34

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

BRAIDEN MCCAHREN, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SIXTH JUDICIAL CIRCUIT

HUGHES COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE JOHN L. BROWN

Judge

* * * *

MARTY J. JACKLEY

Attorney General

PATRICIA ARCHER

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff

and appellee.

MICHAEL J. BUTLER

Sioux Falls, South Dakota

and

CLINT L. SARGENT

RALEIGH HANSMAN of

Meierhenry & Sargent, LLP

Sioux Falls, South Dakota Attorneys for defendant

and appellant.

* * * *

ARGUED ON 

JANUARY 13, 2016

OPINION FILED 04/20/16
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SEVERSON, Justice

[¶1.] A jury found Braiden McCahren guilty of second-degree murder after

he fatally shot Dalton Williams. The jury also found him guilty of aggravated 

assault of Tyus Youngberg. On appeal, McCahren asserts that a jury instruction on 

second-degree murder violated his constitutional rights. He further asserts that the 

circuit court improperly limited his cross-examination of a State witness and

improperly refused to suppress McCahren’s statements made to a roommate at a 

juvenile facility and his statements made to an officer immediately after the 

shooting. Finally, McCahren asserts that his sentence for aggravated assault is 

cruel and unusual thereby violating the Eighth Amendment. We affirm.

Background

[¶2.] On September 23, 2014, a jury found McCahren guilty of second-degree 

murder of Dalton Williams and aggravated assault of Tyus Youngberg. The jury 

heard testimony from Tyus Youngberg. He testified that the death was a result of 

an incident on December 18, 2012. Youngberg testified that McCahren, Youngberg, 

and Williams were at McCahren’s house when McCahren went to a gun rack and 

grabbed a shotgun, shouldering it as if to shoot something. Youngberg initially told 

the police that they were messing around and that the shooting was accidental. He 

later testified at trial that it was intentional. He further testified that McCahren

pulled the trigger of the gun as he was pointing it at Youngberg, but the gun just 

clicked. According to Youngberg, McCahren then opened a drawer and pulled out a 

20-gauge shell. At this point, Youngberg tried to leave the house through a sliding 

glass door. In order to get to the door, he went past Williams, who was now 
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between Youngberg and McCahren. Youngberg heard another click but no 

discharge occurred. Youngberg testified that he was unable to open the glass door, 

so he intended to run to the garage but Williams was in his path. As he was 

attempting to move Williams out of the way, the gun held by McCahren discharged. 

The shot hit Williams, who subsequently died. McCahren contends the shooting 

was an accident.

[¶3.] Youngberg called 911 to report the shooting. Upon arrival, law 

enforcement questioned Youngberg and McCahren about the incident. Officer 

Martin Waller interviewed McCahren in a patrol car, while another officer 

interviewed Youngberg. In the patrol car, Waller asked McCahren to tell him what 

happened. McCahren told Waller that he was messing around with a gun that he 

thought was empty but the gun discharged and a shot hit Williams. After obtaining 

some of the details of the incident, Waller asked McCahren if he had contacted his 

father yet. Upon McCahren’s negative response, Waller contacted McCahren’s 

father. Waller informed the father, Kit McCahren, about the incident and then 

allowed McCahren to speak with his father. Later, upon learning that the incident 

may not have been an accident, Waller placed McCahren under arrest.

[¶4.] As a result of the incident, McCahren was indicted for first-degree 

murder, attempted first-degree murder, and aggravated assault. At the conclusion 

of a jury trial on those three charges, the State requested that the jury also receive 

an instruction for second-degree murder. The State made the request during the

settling of jury instructions, after all evidence from the prosecution and defense had 

been presented to the jury, and 90 minutes before closing arguments. Over defense 
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objection, the court granted the State’s request and instructed the jury on seconddegree murder. The jury found McCahren guilty of second-degree murder of 

Williams and aggravated assault of Youngberg. The court sentenced McCahren to 

twenty-five years with fifteen years suspended for second-degree murder and fifteen 

years for aggravated assault, to run concurrently with the second-degree murder 

sentence. McCahren now appeals the court’s decision to instruct the jury on the 

offense of second-degree murder. McCahren further appeals the court’s decision to 

limit the defense’s cross-examination of one of the State’s witnesses, the court’s 

refusal to suppress McCahren’s statements made to a roommate at Western Area 

Juvenile Services Center, and the court’s refusal to suppress McCahren’s 

statements made to Officer Waller in the patrol car. Lastly, McCahren asserts that 

the imposition of the maximum sentence for the aggravated-assault conviction is 

cruel and unusual.

Analysis

Second-degree murder instructions

[¶5.] “In general, we ‘review a trial court’s decision to grant or deny a 

particular instruction under the abuse of discretion standard.’” State v. Waloke, 

2013 S.D. 55, ¶ 28, 835 N.W.2d 105, 112-13 (quoting State v. Roach, 2012 S.D. 91, ¶ 

13, 825 N.W.2d 258, 263). Questions of law are reviewed de novo. See id. at 113.

[¶6.] McCahren asserts that the court’s decision to instruct the jury on 

second-degree murder deprived him of his constitutional right to notice of the 

charges against him and his right to defend against such because second-degree 

murder was not charged in the indictment. He relies on State v. Lohnes, 324 
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N.W.2d 409, 412 (S.D. 1982), in which the lower court, over the defendant’s 

objection, instructed on second-degree murder despite that offense not being 

charged. In Lohnes, we determined that such an approach violated the defendant’s 

constitutional right to be informed of the nature and cause of the accusation against 

him. Id. Since Lohnes was decided, the jurisprudence surrounding homicide 

charges and lesser-included offenses in homicide trials has changed. Therefore, the 

question in front of us today is the applicability of Lohnes in light of our evolved 

statutes and precedent on lesser-included offenses, specifically with regard to the 

differing degrees of homicide. 

[¶7.] Article VI, § 7 of our constitution provides an accused with the right to: 

defend in person and by counsel; to demand the nature and 

cause of the accusation against him; to have a copy thereof; to 

meet the witnesses against him face to face; to have compulsory 

process served for obtaining witnesses in his behalf, and to a 

speedy public trial by an impartial jury of the county or district 

in which the offense is alleged to have been committed.

S.D. Const. art. VI, § 7. The indictment’s “principal office . . . is to inform the 

accused of the nature and cause of the accusation against him; to be thus informed 

being one of the accused’s most important constitutional rights.” Lohnes, 324 

N.W.2d at 412 (quoting State ex. rel. Kotilinic v. Swenson, 18 S.D. 196, 202, 99 N.W.

1114, 1115 (1904)). Courts have explained that “[a] lesser included offense need not 

be charged in an indictment, as it is already included in the offense charged.” 

United States v. McGeehan, 824 F.2d 677, 679 n.2 (8th Cir. 1987) (citing United 

States v. Martel, 792 F.2d 630, 638 (7th Cir. 1986)); accord Fed. R. Crim. P. 31(c) (“A 

defendant may be found guilty of any of the following: (1) an offense necessarily 

included in the offense charged; (2) an attempt to commit the offense charged; or (3) 
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an attempt to commit an offense necessarily included in the offense charged, if the 

attempt is an offense in its own right.”); SDCL 23A-26-8 (Rule 31 (c)) (“A defendant 

may be found guilty of an offense necessarily included in the offense charged[.]”).

[¶8.] We have applied the elements test to determine which offenses are

lesser-included. See Waloke, 2013 S.D. 55, ¶ 29, 835 N.W.2d at 113 (outlining the 

history of this Court’s treatment of lesser-included offense instructions). The 

elements test is satisfied where:

(1) all of the elements of the included offense are fewer in 

number than the elements of the greater offense;[1] (2) the 

penalty for the included lesser offense must be less than that of 

the greater offense; and (3) both offenses must contain common 

elements so that the greater offense cannot be committed 

without also committing the lesser offense.

State v. Giroux, 2004 S.D. 24, ¶ 5, 676 N.W.2d 139, 141 (quoting State v. Hoadley, 

2002 S.D. 109, ¶ 61, 651 N.W.2d 249, 263). Once the elements test is met, an 

instruction on the lesser-included offense may only be given if some evidence was 

presented that supports the instruction. Hoadley, 2002 S.D. 109, ¶ 64, 651 N.W.2d 

at 264. Our elements test “provides certainty and predictability in determining 

lesser-included offenses and is compatible with the constitutional principles of 

double jeopardy, due process, and notice while maintaining mutuality.” Id. ¶ 66, 

651 N.W.2d at 265 (quoting Tim Dallas Tucker, State v. Black: Confusion in South 

Dakota’s Determination of Lesser Included Offenses in Homicide Cases, 41 S.D. L. 

Rev. 465, 501 (1996)) (adopting elements test). “In 2005, the Legislature validated 

 

1. If two homicide offenses contain common elements but require differing levels 

of intent, this part of the test is also met where the mens rea requirement of 

a lesser crime is a lesser element contained within the greater offenses’s 

mens rea requirement. See infra ¶¶ 10-11. 
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this approach . . . in homicide cases by codifying the possible lesser included 

offenses for various degrees of murder and manslaughter.” Waloke, 2013 S.D. 55, ¶ 

29, 835 N.W.2d at 113 (citing SDCL 22-16-20.1). The Legislature provided that 

“[m]urder in the second degree is a lesser included offense of murder in the first 

degree.” SDCL 22-16-20.1.2 It also codified the factual requirement in SDCL 22-16-

20.2.3

[¶9.] Our adoption of the elements test and the Legislature’s codification of 

the lesser-included murder and manslaughter offenses occurred well after our 

Lohnes decision, where we were concerned that second-degree murder was an 

offense never charged that had “distinctly different elements than first-degree 

murder.” Lohnes, 324 N.W.2d at 412. We rejected the State’s argument in Lohnes

that a lesser-included instruction was appropriate due to SDCL 23A-26-7,4 which 

 

2. SDCL 22-16-20.1 provides in full: 

Murder in the second degree is a lesser included offense of 

murder in the first degree. Manslaughter in the first degree is a 

lesser included offense of murder in the first degree and murder 

in the second degree. Manslaughter in the second degree is a 

lesser included offense of murder in the first degree, murder in 

the second degree, and manslaughter in the first degree.

3. SDCL 22-16-20.2 states:

A lesser included offense instruction shall be given at any 

homicide trial whenever any facts are submitted to the trier of 

fact which would support such an offense pursuant to this 

chapter. The state and the defendant each have the separate 

right to request a lesser included offense instruction. The 

failure to request a lesser included offense instruction 

constitutes a waiver of the right to such an instruction.

4. SDCL 23A-26-7 stated in 1982, as it does today:

(continued . . .)
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mandates that the jury find the degree of the crime that it convicts the defendant of 

having committed. Id. We explained that the statute “ha[s] no effect on the 

elements of the first and second-degree murder charge.” Id. McCahren points out 

that the elements of first and second-degree murder remain different today because 

first-degree murder requires premeditation. SDCL 22-16-4(1). In contrast, seconddegree murder requires a depraved mind. SDCL 22-16-7. 

[¶10.] McCahren contends that as a result of those “different” elements,

second-degree murder is not a true lesser-included offense. Nonetheless, as Judge 

Tucker explained, even under the elements test, second-degree murder is a lesser 

included offense of first-degree murder because we consider the mens rea 

requirement of depraved mind as a less culpable mens rea contained within the 

greater offense’s requirement of premeditation—“evincing a depraved mind, 

regardless of human life, although without any premeditated design to effect death 

is a lesser mental state than premeditation.” Tucker, State v. Black, 41 S.D. L. Rev. 

at 496 (quotation marks omitted) (footnote omitted). We adopted this approach to 

the mens rea requirements in Hoadley, 2002 S.D. 109, ¶ 61 n.12, 651 N.W.2d at 263 

n.12. And when considering whether a second-degree murder or manslaughter 

instruction should be given on the charged offense of first-degree murder, we have 

previously determined that “the elements test was met[.]” Id. ¶ 64, 651 N.W.2d at 

_________________________________________________

(. . . continued)

Whenever a crime is distinguished by degrees, a jury, if it 

convicts an accused, shall find the degree of the crime of which 

he is guilty and include that finding in its verdict. When there 

is a reasonable ground of doubt as to which of two or more 

degrees an accused is guilty, he can be convicted of only the 

lowest degree.
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264. We also explained, two years later, in Giroux, “[t]he use of different words does 

not necessarily eliminate a crime as a lesser-included-offense. Our analysis . . . uses 

the degree of culpability analysis . . . .” 2004 S.D. 24, ¶ 8, 676 N.W.2d at 142. As

soon as we adopted such an approach, the holding in Lohnes was overruled to the 

extent that it determined that second-degree murder could not be a lesser-included 

offense of first-degree murder due to the differing mens rea elements of the two 

crimes. See Lohnes, 324 N.W.2d at 412.

[¶11.] It is true, as McCahren states, that a statute cannot override 

constitutional protections. However, our elements test and statute operate to 

provide a defendant with the notice he or she is entitled. Under SDCL 22-16-20.2, a 

lesser-included instruction can only be given to the jury if there are “any facts . . . 

which would support such an offense[.]” Although a court may need to wait until 

the close of evidence to determine whether a lesser-included instruction is 

warranted, such an approach does not deprive a defendant of constitutionally 

required notice. Our elements test established a number of years ago that seconddegree murder is a lesser-included offense of first-degree murder, and SDCL 22-16-

20.1 removed any doubt regarding such. Due process is fulfilled under our approach 

to lesser-included homicide offenses because each lesser offense has lesser elements, 

either in number or degree of culpability, than the greater offense. The greater 

offense cannot be committed without also committing the lesser offense. Thus, a 

defendant will be able to anticipate and defend against lesser-included offenses 

during preparation and trial on the greater offense because the lesser-included is 

“already included in the offense charged.” See McGeehan, 824 F.2d at 679 n.2. 
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Further, SDCL 22-16-20.2 ensures that an instruction will not be given if no facts 

support the instruction. Such an approach satisfies due process concerns. See 

Hoadley, 2002 S.D. 109, ¶ 66, 651 N.W.2d at 265.

[¶12.] Along with SDCL 20-16-20.1, -20.2, our law provides that “[a] 

defendant may be found guilty of an offense necessarily included in the offense 

charged[.]” SDCL 23A-26-8 (Rule 31(c)) (emphasis added). The statute clearly 

contemplates uncharged offenses. Our approach is not unique. The Supreme 

Court, when analyzing the federal rule of criminal procedure 31(c), which mirrors

ours, adopted the elements test, in part, because it allows “both sides to know in 

advance what jury instructions will be available and to plan their trial strategies 

accordingly.” Schmuck v. United States, 489 U.S. 705, 720, 109 S. Ct. 1443, 1453, 

103 L. Ed. 2d 734 (1989). 

[¶13.] In addition to the United States Supreme Court, other courts have 

addressed the question of when a lesser-included offense instruction is appropriate. 

See State v. Rodriguez, 429 A.2d 919, 929 (Conn. 1980) (collecting cases and noting 

that “courts consistently hold that where the evidence supports an instruction on a 

lesser degree of homicide than that charged, it is error to refuse to give such an 

instruction”). The Connecticut Supreme Court in Rodriguez faced the same issue 

that we now address. Id. Rodriguez was charged with murder, which required the

specific intent to cause the death of another, and the trial court also instructed on 

manslaughter in the first and second-degree along with criminally negligent 

homicide, all of which required a state of mind different than intent to cause death. 
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Id. at 927. Thus, he alleged that, by giving additional instructions, the trial court 

violated his right to be informed of the crime he allegedly committed. Id. 

[¶14.] The Connecticut Supreme Court held:

Where the state is faced with a homicide prosecution, it may, in 

good faith and where the circumstances reasonably warrant, 

assume that an accused acted with the most culpable state of 

mind. But where the evidence is reasonably susceptible of 

another conclusion, the jury, or three judge panel, as the case 

may be . . . should not be bound by that assumption and forced 

by its verdict to choose only between the offense with the most 

culpable state of mind and acquittal. Such a result would limit 

the jury’s function of determining questions of fact and 

undermine a defendant’s right to a trial by jury. . . . Permitting

the jury to find the defendant guilty of a lesser charge of 

homicide than that charged, where the evidence supports such a 

finding, does not violate the defendant’s sixth amendment right 

to notice. By the charge on the greater offense of murder, the 

defendant is put on notice that he will be put on trial for his 

action in causing the death of another person. Thus, having 

been given notice of the most serious degree of culpable intent 

by the murder indictment, he is implicitly given notice of those 

lesser included homicides that require a less serious degree of 

culpable intent.

Id. at 929 (citations omitted). The Connecticut Supreme Court also explained that 

its approach was consistent with the Model Penal Code (MPC). Id. at 930. See 

Model Penal Code § 1.07 (4)(c) (emphasis added) (“A defendant may be convicted of 

an offense included in an offense charged in the indictment (or the information). An 

offense is so included when: (c) it differs from the offense charged only in the respect 

that a less serious injury or risk or injury to the same person, property or public 

interest or a lesser kind of culpability suffices to establish its commission.”); see also

State v. Rush, 50 S.W.3d 424, 431-32 (Tenn. 2001) (applying a modified version of 

the MPC and holding that “the trial court has a duty to instruct the jury regarding 

all applicable lesser-included offenses regardless of whether the defendant requests 
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the instruction.” Thus, the trial court erred because it did not instruct the jury of 

the lesser-included crime of reckless endangerment even though the facts supported 

the charge and reckless endangerment requires a lesser risk of harm and “lesser 

degree of culpability than the knowing intent to kill contemplated by the offense of 

second degree murder[.]”). Accordingly, McCahren had sufficient notice that 

second-degree murder instructions may be given by the court.

[¶15.] McCahren reasons that we should prospectively apply our decision. 

McCahren maintains that he should not be punished for reversal of precedent that 

is more than 30 years old. However, as we noted above, though Lohnes validly 

holds that a defendant has the right to notice of the charges he faces, the holding in 

Lohnes on lesser-included instructions for first-degree and second-degree murder 

became questionable at least in 2002 when we adopted the elements test with Judge 

Tucker’s recommended approach to the mens rea elements. Supra ¶ 10. And in 

2005, the Legislature explicitly provided that second-degree murder is a lesserincluded offense of first-degree murder. It is important to note that the statute 

provides that when the facts support the instruction in a homicide trial, the court 

shall give a lesser-included instruction, which may be requested by either the State 

or defendant. SDCL 22-16-20.2. Thus, under the law as it has existed for over a 

decade, McCahren cannot claim surprise that second-degree murder would be 

considered a lesser-included offense for which the jury could be instructed.5

 

5. On August 28, 2014, the State moved to exclude a lessor-included instruction 

on second-degree manslaughter. In its motion, the State asserted that no 

facts supported such an instruction. The court and counsel addressed the 

motion at a pretrial hearing on September 4, 2014. Although the motion 

(continued . . .)
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[¶16.] Because second-degree murder instructions were warranted in this 

case if some facts supported it, we next consider McCahren’s argument that the 

facts were insufficient to warrant the circuit court giving the instruction to the jury. 

Like the Hoadley court, we emphasize, “the question is not . . . whether there was 

sufficient evidence[,]” but whether there is some evidence. 2002 S.D. 109, ¶ 64 & 

n.14, 651 N.W.2d at 264 & n.14. We review the court’s decision for an abuse of 

discretion. Waloke, 2013 S.D. 55, ¶ 28, 835 N.W.2d at 112-13. In this case, 

Youngberg testified that after the gun, which McCahren shouldered and pointed at 

Youngberg, failed to discharge, McCahren took a shell from a drawer and loaded the 

shotgun. Once again, McCahren pulled the trigger with the shotgun shouldered 

and pointed in the direction of Youngberg and Williams. This type of conduct 

supports the court’s decision that the evidence supported instructing the jury on 

second-degree murder. We do not find an abuse of discretion. The law and facts 

supported a lesser-included offense instruction for second-degree murder. 

[¶17.] Lastly, McCahren asserts that the decision to instruct on seconddegree murder deprived him of his right to testify on his own behalf, propose 

_________________________________________________

(. . . continued)

addressed second-degree manslaughter rather than second-degree murder, 

the defense was aware of SDCL 22-16-20.1 at the pretrial hearing. Defense 

counsel argued that it was premature to address lesser-included offenses 

because the “sole test on homicide lesser includeds [is whether] there’s some 

evidence that would support [the] giving of it.” The State agreed that such a 

motion was premature but stated that “it was something that [the State] 

wanted to bring to everybody’s attention rather than doing it in the middle of 

the trial when instructions are settled so it gives time for people to research 

the issue.” The court ruled that “it’s well to have raised the issue and put 

everyone on notice as to the potential for that. But whether such an 

instruction will be requested or whether any evidence at trial would tend to 

support such an instruction will await for settling instructions at trial.” 
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alternative jury instructions, and call an expert witness on his psychological status. 

McCahren asserts that he was precluded from offering instructions that explain the 

difference between the differing counts of homicide. However, he has not argued 

that the circuit court’s instructions misstated the law. “We consider jury 

instructions ‘as a whole, and if the instructions when so read correctly state the law 

and inform the jury, they are sufficient. This is a question of law reviewed de 

novo.’” State v. Birdshead, 2015 S.D. 77, ¶ 14, 871 N.W.2d 62, 70 (quoting Waloke, 

2013 S.D. 55, ¶ 28, 835 N.W.2d at 113). From our review of the record, the court’s 

instructions were sufficient. Additionally, because we have determined that 

McCahren had notice that second-degree-murder instructions could be given in this 

case, we do not find merit in McCahren’s argument that he was prevented from 

taking the stand or presenting additional expert testimony. 

Testimony and cross-examination of T.D.

[¶18.] Next, we address two issues that McCahren raises regarding the 

testimony of one of the State’s witnesses. The State’s witness, T.D., was 

McCahren’s roommate while McCahren was at a juvenile facility in Pennington 

County. McCahren told T.D. details of the shooting, and McCahren now appeals 

admission of those statements at trial. He alleges that the statements are subject 

to the exclusionary rule because they are the result of illegal government activity.

[¶19.] In March 2013, pursuant to a court order, McCahren was transferred 

to the Pennington County Juvenile Services Center. The court ordered a 

psychological evaluation by Dr. Scovel. After the evaluation, McCahren was to 

return to the Hughes County Juvenile Services Center. McCahren arrived at the 
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Pennington facility on March 14, 2013, and he left on March 25, 2013. T.D. roomed 

with McCahren for part of the time that McCahren was at the facility.

[¶20.] In September 2013, the circuit court denied McCahren’s motion to 

transfer proceedings to juvenile court. Part of its decision was based on Dr. Scovel’s 

testimony and the report of her evaluation of McCahren. McCahren sought and was 

granted intermediate appeal, where he alleged that Dr. Scovel’s examination of him 

exceeded the scope of an agreement between the State’s Attorney and defense 

attorneys. The State’s Attorney and defense had agreed that Dr. Scovel would not 

inquire into the December incident. We issued an order reversing the September 

order and remanding for the court to reconsider the motion without Dr. Scovel’s 

report or testimony. We held, “It appears that Defendant’s Fifth and Sixth 

Amendment rights were violated by breach of the agreement between the State and 

defense counsel on the scope of Dr. Scovel’s examination of Defendant.” 

[¶21.] McCahren contends that T.D.’s testimony regarding conversations that 

McCahren had with T.D. should be suppressed as “fruit of the poisonous tree.” See 

Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). “The 

exclusionary rule prohibits introduction into evidence of tangible materials seized 

during an unlawful search, and of testimony concerning knowledge acquired during 

an unlawful search.” State v. Heney, 2013 S.D. 77, ¶ 9, 839 N.W.2d 558, 562 

(quoting State v. Boll, 2002 S.D. 114, ¶ 19, 651 N.W.2d 710, 716). “The exclusionary 

rule reaches not only primary evidence obtained as a direct result of an illegal 

search or seizure, but also evidence later discovered and found to be derivative of an 

illegality or ‘fruit of the poisonous tree.’” Id. (quoting Segura v. United States, 468 
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U.S. 796, 804, 104 S. Ct. 3380, 3385, 82 L. Ed. 2d 599 (1984)). However, 

“[s]uppression is not justified unless the challenged evidence is in some sense the 

product of illegal governmental activity.” Id. ¶ 11 (quoting Segura, 468 U.S. at 815, 

104 S. Ct. at 3391). The party seeking to suppress the evidence has the burden “to 

establish that such evidence was illegally seized.” Id. (quoting State v. Rigsbee, 89 

S.D. 360, 376, 233 N.W.2d 312, 321 (1975)). This rule has been applied to Fifth and 

Sixth Amendment violations, as occurred in this case. See Nix v. Williams, 467 U.S. 

431, 442, 104 S. Ct. 2501, 2508, 81 L. Ed. 3d 377 (1984).

[¶22.] We previously determined in the intermediate appeal of the transfer 

hearing decision that the scope of the examination exceeded McCahren’s 

constitutional rights. Therefore, in order to meet his burden, McCahren needs to 

initially demonstrate that there is a “factual nexus between the constitutional 

violation and the challenged evidence” and that the illegality “is at least the ‘but for’ 

cause of the discovery of the evidence.” Heney, 2013 S.D. 77, ¶¶ 11-12, 839 N.W.2d 

at 562. However, “‘but-for causality is only a necessary, not a sufficient, condition 

for suppression’ under the fruit of the poisonous tree doctrine.” Id. (quoting Hudson 

v. Michigan, 547 U.S. 586, 592, 126 S. Ct. 2159, 2164, 165 L. Ed. 2d 56 (2006)). 

“The primary focus of our analysis is ‘whether, granting establishment of the 

primary illegality, the evidence to which instant objection is made has been come at 

by exploitation of that illegality or instead by means sufficiently distinguishable to 

be purged of the primary taint.’” Heney, 2013 S.D. 77, ¶ 12, 839 N.W.2d at 562-63

(quoting Boll, 2002 S.D. 114, ¶ 32, 651 N.W.2d at 719).
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[¶23.] In its findings of fact on McCahren’s motion to suppress T.D.’s 

statements, the circuit court found: T.D. and McCahren were placed together based 

on the availability of cells, and the roommate assignment was random; law 

enforcement had no involvement in placing T.D. in the same cell as McCahren; law 

enforcement had no contact with T.D. regarding this case prior to T.D.’s placement

in the same cell with McCahren; there was no contact between law enforcement and 

T.D. until one month after T.D. had roomed with McCahren, and that contact 

occurred when T.D. initiated the disclosure of his conversations with McCahren; 

law enforcement did not direct or control T.D.; and T.D. did not ask for any benefit 

or reward for talking to law enforcement. 

[¶24.] McCahren fails to address how his statements to T.D. satisfy the 

causal nexus requirement. Although he validly asserts that unconstitutional 

conduct should be deterred, the results of the constitutional violation (exceeding the 

scope of the exam), have already been suppressed. The order transferring 

McCahren to Pennington County was valid; as was the purpose of the psychological 

evaluation. It was only the scope of the evaluation that we deemed 

unconstitutional. Therefore, McCahren was properly placed in the juvenile center 

and randomly assigned a roommate. There is no indication that ‘but for’ the illegal 

scope of Dr. Scovel’s examination McCahren would not have discussed the details of 

his crime with his roommate. 

[¶25.] Failing suppression, McCahren asserts that he was denied his 

constitutional right to cross-examine T.D. because the circuit court refused to allow 

cross-examination on T.D.’s mental health. The Sixth Amendment to the United 
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States Constitution and Article VI, § 7 of the South Dakota Constitution guarantees

an accused the right to confront witnesses. However, “[t]he Confrontation Clause 

guarantees only an opportunity for effective cross-examination, not crossexamination that is effective in whatever way, and to whatever extent, the defense 

might wish.” State v. McKinney, 2005 S.D. 73, ¶ 21, 699 N.W.2d 471, 479 (quoting 

Kentucky v. Stincer, 482 U.S. 730, 739, 107 S. Ct. 2658, 2664, 96 L. Ed. 2d 631, 643 

(1987)). “[T]he [circuit] court retains broad discretion concerning the limitation of 

cross-examination[,] and it will be reversed only when there is a clear showing of 

abuse of discretion and a showing of prejudice to the defendant.” State v. Walton, 

1999 S.D. 80, ¶ 25, 600 N.W.2d 524, 530 (quoting State v. Steichen, 1998 S.D. 126, ¶ 

37, 588 N.W.2d 870, 878). 

[¶26.] McCahren contends that “inherent in T.D.’s predispositions and 

symptoms recognized in his mental illness diagnosis” is his “inability to properly 

perceive and process events, relay his observations accurately in court, and his 

motivation to exaggerate, fabricate or lie without concern for the truth or the 

consequences of his actions for himself or others[.]” McCahren fails to point us to 

which diagnosis is relevant other than stating that T.D. had “active psychoses at 

the time he was incarcerated with [McCahren]” and that it was “a central fact prime 

for discussion and inquiry on cross-examination.” 

[¶27.] McCahren points us to federal decisions that have held, “evidence on 

mental capacity may be especially probative of the ability to ‘comprehend, know and 

correctly relate the truth[.]’” United States v. Lindstrom, 698 F.2d 1154, 1165-66

(11th Cir. 1983) (quoting United States v. Partin, 493 F.2d 750, 763-64 (5th Cir.
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1974)); United States v. Love, 329 F.3d 981, 985 (8th Cir. 2003). However, 

McCahren’s authority is distinguishable. The cases cited involved witnesses with 

significant and relevant diagnoses that are not at issue here. In Lindstrom, a key 

witness was diagnosed with schizophrenia, was delusional, and had a history of 

hallucinations. 698 F.2d at 1161-62. The court explained that “[c]ertain forms of

mental disorder have high probative value on the issue of credibility.” Id. at 1160. 

“A psychotic’s veracity may be impaired by lack of capacity to observe, correlate or 

recollect actual events. . . . A schizophrenic may have difficulty distinguishing fact 

from fantasy and may have his memory distorted by delusions, hallucinations and 

paranoid thinking.” Id. In Love, the court explained, “the nature of the 

psychological problem in question [was] memory loss—a condition that implicates 

[the witness’s] ability ‘to comprehend, know and correctly relate the truth.’” 329 

F.3d at 985 (quoting United States v. Jimenez, 256 F.3d 330, 343 (5th Cir. 2001)). 

Nothing established that these types of problems existed with T.D. See also, Love, 

329 F.3d at 984 (quoting United States v. Jimenez, 256 F.3d 330, 343 (5th Cir. 

2001)) (“[T]o be relevant, the mental health records must evince an impairment of 

the witness’s ability to comprehend, know, and correctly relate the truth.”).

[¶28.] In this case, the circuit court allowed the defense to attack T.D’s 

credibility through inconsistent, prior testimony and witness testimony. T.D’s own 

father testified that T.D. “lies quite a bit, at least 80 to 90% of the time.” After 

being questioned by defense counsel, T.D. admitted to various crimes of dishonesty, 

which included stealing people’s identities, using credit cards belonging to other 

people, and stealing property. T.D. admitted that he had a lying problem in the 
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past but testified that he no longer suffered such a problem. He also admitted that 

he tends to brag and seek attention. The defense impeached T.D. on prior 

inconsistent statements, and T.D. testified that he lied to Detective Kavanagh about 

assaulting McCahren immediately upon meeting McCahren at the juvenile facility. 

T.D. freely admitted that, at the time he reported the conversations he had with 

McCahren to Agent Kavanagh, he was “still laboring under [the] lying problem.” As 

a result, McCahren “has not established that [the] limitation prejudiced him or 

that, if the jury [had] been presented with this evidence, it would have had a 

significantly different impression.” See Walton, 1999 S.D. 80, ¶ 27, 600 N.W.2d at 

530-31. The jury heard testimony, including from T.D. himself, that T.D. had a 

problem telling the truth. It had the opportunity to judge T.D.’s credibility, and the 

circuit court did not abuse its discretion by denying McCahren inquiry into T.D.’s 

mental health diagnoses. Thus, McCahren was not denied his right to confront 

witnesses. 

Suppression of statements made to Officer Waller

[¶29.] Next, we address McCahren’s contention that statements he made to 

Officer Waller should have been suppressed. Officer Waller was with Deputy Kyle 

Cummings en route to a program sponsored by the police department when they 

responded to the 911 call of a discharged shotgun injuring an individual. He 

testified that it took about two minutes to get to the reported address. Waller was 

among the first officers at the scene; Sergeant Walz and Officer Martin arrived 

separately before Waller and Cummings. He observed officers running across the 

lawn and two juveniles, later identified as Youngberg and McCahren, standing in 
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the driveway. Waller was directed by Sergeant Walz to speak with the two

juveniles. Waller asked the juveniles who the shooter was, and McCahren raised 

his hand in response. Waller asked McCahren to have a seat in Martin’s car. 

Youngberg sat in Cummings’ patrol vehicle with Cummings. Waller proceeded to 

ask McCahren what had happened. McCahren contends that he was in custody

once Waller proceeded to ask questions after McCahren identified himself as the 

shooter. Therefore, McCahren maintains that Waller did not comply with the 

parental notification statute SDCL 26-7A-156 and his statements made in response 

to Waller’s questions should be suppressed as they are in violation of his Fifth 

Amendment rights.7

[¶30.] Individuals subject to a custodial interrogation are entitled to Miranda 

warnings. See State v. Wright, 2009 S.D. 51, ¶ 19, 768 N.W.2d 512, 520; Miranda v. 

Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). We utilize a two-part 

test when making a custody determination: 

First, what were the circumstances surrounding the 

interrogation; and second, given those circumstances, would a 

 

6. SDCL 26-7A-15 provides in part: 

The officer or party who takes a child into temporary custody, 

with or without a court order, except under a court order issued 

during a noticed hearing after an action has been commenced, 

shall immediately, without unnecessary delay in keeping with 

the circumstances, inform the child’s parents, guardian, or 

custodian of the temporary custody and of the right to a prompt 

hearing by the court to determine whether temporary custody 

should be continued.

7. “This Court reviews the denial of a motion to suppress alleging a violation of 

a constitutionally protected right as a question of law by applying the de novo 

standard.” State v. Bowker, 2008 S.D. 61, ¶ 17, 754 N.W.2d 56, 62. “However 

we apply the clearly erroneous standard to the factual findings below.” Id. 
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reasonable person have felt he or she was not at liberty to 

terminate the interrogation and leave. Once the scene is set and 

the players’ lines and actions are reconstructed, the court must 

apply an objective test to resolve the ultimate inquiry: was there 

a formal arrest or restraint on freedom of movement of the 

degree associated with a formal arrest.

Wright, 2009 S.D. 51, ¶ 19, 768 N.W.2d at 520 (quoting State v. Johnson, 2007 S.D. 

86, ¶ 22, 739 N.W.2d 1, 9). According to McCahren, any potential threats to the 

community were extinguished when officers observed the two juveniles on the lawn

and McCahren immediately identified himself as the shooter. Therefore, McCahren

believes his rights were violated as soon as Officer Waller asked any other 

questions. This is not the standard by which we determine whether McCahren was

in custody and entitled to Miranda warnings. 

[¶31.] When determining whether McCahren was in custody, the lower court 

found that McCahren was not searched or handcuffed, and he was allowed to keep 

his phone and make calls. It further found that Waller did not attempt to elicit a 

confession; his questions were ones to gain an understanding and determine 

whether a crime had been committed. The court concluded that McCahren was not 

in custody. Therefore, his Fifth Amendment rights were not violated nor did the 

parental notification statute apply.8 Our review of the record supports the circuit 

 

8. Even if SDCL 26-7A-15 was applicable, Defendant has not cited authority 

that suppression of the statements at issue is the appropriate remedy for 

failing to follow a statute as contrasted with the constitutional rights 

enumerated in Miranda, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. 

Although failure to notify a parent could be relevant to a determination of 

whether a statement was voluntary, the involuntariness of any statement 

has not been shown under the totality of the circumstances. See State v. 

Horse, 2002 S.D. 47, ¶ 26, 644 N.W.2d 211, 224.
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court’s findings and conclusions. At one point during the conversation, Officer 

Waller told McCahren that the door of the police car was unlocked. At no point did 

Waller tell McCahren that he was not free to leave the patrol car, and he did not 

restrain McCahren’s ability to leave. See State v. Deal, 2015 S.D. 51, ¶ 18, 866 

N.W.2d 141, 147. As the circuit court found, Waller’s questioning was neither 

lengthy nor aimed at McCahren as a suspect. The objective circumstances 

surrounding Waller’s questioning of McCahren were not such that a reasonable 

person would have felt he or she was not at liberty to terminate the interrogation 

and leave. Id. McCahren was “not so deprived of his freedom as to be ‘in custody’ 

for Miranda purposes.” See id. (quoting Thompson, 1997 S.D. 15, ¶ 26, 560 N.W.2d 

at 541).9

[¶32.] Further, Officer Waller’s questions were “general, on-the-scene” 

questions. “A law enforcement officer is not required to deliver a Miranda warning 

when his questions constitute ‘general on-the-scene questioning as to facts 

surrounding a crime or other general questioning of citizens in the fact-finding 

process.’” Bowker, 2008 S.D. 61, ¶ 31, 754 N.W.2d at 66 (quoting State v. Bartunek, 

323 N.W.2d 121, 124 (S.D. 1982)). As we have explained, “[g]eneral on-the-scene 

questioning and fact gathering is absolutely essential for law enforcement officers to 

 

9. McCahren was later arrested, and transported to the police station. No one 

read him his Miranda rights, but he was asked several questions during the 

ride to the police station. The court suppressed the statements McCahren 

made during that transport. At the station McCahren was placed in a 

sequestered room for two and a half hours while waiting for his father to 

arrive. An officer continued to make conversation with McCahren without 

reading him any Miranda rights. The court also suppressed the statements 

McCahren made during that time.
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perform their jobs well and to investigate possible crimes.” State v. Herting, 2000 

S.D. 12, ¶ 10, 604 N.W.2d 863, 865. 

When circumstances demand immediate investigation by the 

police, the most useful, the most available tool for such 

investigation is general on-the-scene questioning, designed to 

bring out the person’s explanation or lack of explanation of the 

circumstances which aroused the suspicion of the police, and 

enable the police to quickly determine whether they should 

allow the suspect to go about his business or hold him to answer 

charges.

Id. (quoting People v. Haugland, 171 Cal. Rptr. 237, 241 (Cal. Ct. App. 1981)). 

Upon arrival, Officer Waller did not know what had happened beyond the fact that 

at least one person had been shot. The circumstances of this case demonstrate the 

type of situation that requires “immediate investigation” to determine whether 

anyone else may be in danger and how law enforcement should proceed. A quick, 

general question of “what happened?” allowed Officer Waller to determine whether 

he “should allow [McCahren] to go about his business or hold him to answer 

charges.” See id. During Waller’s conversation with McCahren, Waller explicitly 

told McCahren that he was not going to jail at that time. See id. Thus, Officer 

Waller was properly attempting to determine whether a crime had occurred. 

Consequently, we affirm the circuit court’s refusal to suppress McCahren’s on-thescene statements to Officer Waller. Because McCahren was not in custody, his 

Fifth Amendment rights were not violated and the parental notification statute, 

SDCL 26-7A-15, did not apply.
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Sentence for aggravated assault

[¶33.] Lastly, McCahren asks us to remand this case for resentencing on the 

aggravated-assault conviction. Aggravated assault is a Class 3 felony punishable by 

a maximum of fifteen years imprisonment and a thirty-thousand dollar fine. SDCL 

22-18-1.1; SDCL 22-6-1. The court sentenced McCahren to the maximum fifteenyear sentence for assaulting Youngberg. McCahren asserts that his sentence is 

cruel and unusual, which is prohibited by the Eighth Amendment to the United 

States Constitution, applicable to the states through the Fourteenth Amendment.

[¶34.] “When a defendant challenges a sentence as cruel and unusual under 

the Eighth Amendment, this Court reviews it for gross disproportionality.” State v. 

Craig, 2014 S.D. 43, ¶ 33, 850 N.W.2d 828, 837. “[T]he Eighth Amendment does not 

require strict proportionality between the crime and sentence. Rather, it forbids 

only extreme sentences that are grossly disproportionate to the crime.” State v. 

Chipps, 2016 S.D. 8, ¶ 33, 874 N.W.2d 475, 487 (quoting Harmelin v. Michigan, 501 

U.S. 957, 1001, 111 S. Ct. 2680, 2705, 115 L. Ed. 2d. 836 (1991) (Kennedy, J., 

concurring in part and concurring in the judgment)). Our threshold inquiry is 

whether the sentence appears grossly disproportionate. Id. ¶ 35. To answer the 

threshold question, we consider “the gravity of the offense and the harshness of the 

penalty.” Id. ¶ 38, 874 N.W.2d at 488 (quoting Solem v. Helm, 463 U.S. 277, 290-91, 

103 S. Ct. 3001, 3010, 77 L. Ed. 2d 637 (1983)). If the comparison fails to suggest 

gross disproportionality, our review ends. Id. at 489.

[¶35.] First we consider the gravity of McCahren’s offense—“the offense’s 

relative position on the spectrum of all criminality[.]” State v. Rice, 2016 S.D. 18, ¶ 
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13, ___ N.W.2d ___. In this case the gravity of McCahren’s offense is relatively 

great on the spectrum of all criminality. He took a shotgun, pointed it in the 

direction of Youngberg and repeatedly pulled the trigger. According to Youngberg, 

McCahren loaded the shotgun when it failed to discharge and pulled the trigger 

again. In McCahren’s own words, this was in an attempt to “scare the shit out of” 

Youngberg. McCahren endangered Youngberg’s life and may have killed Youngberg 

had Williams not been in front of Youngberg. See State v. Garreau, 2015 S.D. 36, ¶ 

11, 864 N.W.2d 771, 776 (finding relevant for the gravity inquiry that, but for the 

officer’s vest, defendant inflicted a potentially-life-threatening injury on a law 

enforcement officer). 

[¶36.] Next, we consider the harshness of McCahren’s penalty—“the penalty’s 

relative position on the spectrum of all permitted punishments.” Rice, 2016 S.D. 18, 

¶ 13, ___ N.W.2d at___ (quoting Chipps, 2016 S.D. 8, ¶ 37, 874 N.W.2d at 488). The

Legislature has authorized more severe punishments of death (Class A felonies) and 

mandatory life imprisonment (Class A and Class B felonies). In addition, 

McCahren will be eligible for parole. See Chipps, 2016 S.D. 8, ¶37, 874 N.W.2d at 

488 (“The possibility of parole is also considered in judging the harshness of the 

penalty.”). His initial parole eligibility date is in March of 2021. 

[¶37.] McCahren contends that receiving the maximum sentence allowed for 

aggravated assault is indicative of gross disproportionality. However, the fact that 

a defendant receives the “maximum [sentence] permitted by statute for [a] 

particular offense [is] not relevant to an Eighth Amendment analysis.” Rice, 2016 

S.D. 18, ¶ 19, ___ N.W.2d ___. Instead, such a fact is relevant in assessing whether 
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the sentencing court abused its discretion. Id. ¶¶ 19, 23, ___ N.W.2d at___. 

McCahren also asserts that “the absence of aggravating circumstances and the 

existence of mitigating qualities of youth illustrate the sentence’s gross 

disproportionality.” But “mitigating factors generally are not considered in 

noncapital cases.” Id. ¶ 18 n.3, ___N.W.2d at ____. Although, “mitigating qualities 

of youth” must be considered before a court may impose a life sentence without 

parole on a juvenile, see State v. Springer, 2014 S.D. 80, ¶ 13, 856 N.W.2d 460, 465-

66 (citing Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 2467, 183 L. Ed. 2d 407 

(2012)), a life sentence is not an authorized punishment for the offense of 

aggravated assault, and the court did not impose such a sentence. Springer and

Miller do not require the court to consider the mitigating qualities of youth for 

Eighth Amendment challenges. Youth may be considered in crafting a sentence, 

but such a consideration is a “discretional dimension[] of sentencing.” Rice,

2016 S.D. 18, ¶ 29, ___ N.W.2d at ___. McCahren’s sentence fails to suggest gross 

disproportionality, and thus our review ends. See State v. Coleman, 2015 S.D. 48, ¶ 

11, 865 N.W.2d 848, 851. Finally, McCahren’s arguments regarding his sentence do 

not demonstrate that the court abused its discretion. See Rice, 2016 S.D. 18, ¶ 23, 

___ N.W.2d at ___. We affirm McCahren’s sentence.

Conclusion

[¶38.] McCahren had sufficient notice that a lesser-included offense 

instruction on second-degree murder could be given when he was indicted on firstdegree murder. The circuit court appropriately limited the defense’s crossexamination of one of the State’s witnesses. McCahren’s constitutional and 
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statutory rights were not violated when the court refused to suppress the 

statements McCahren made to T.D. or Officer Waller. Finally, McCahren’s 

sentence for aggravated assault is neither cruel and unusual punishment nor an 

abuse of discretion. We affirm.

[¶39.] GILBERTSON, Chief Justice, and HOUWMAN, Circuit Court Judge, 

concurs.

[¶40.] MYREN and SABERS, Circuit Court Judges, concur specially.

[¶41.] MYREN, Circuit Court Judge, sitting for ZINTER, Justice, 

disqualified.

[¶42.] HOUWMAN, Circuit Court Judge, sitting for WILBUR, Justice, 

disqualified.

[¶43.] SABERS, Circuit Court Judge, sitting for KERN, Justice, 

disqualified. 

SABERS, Circuit Court Judge (concurring specially).

[¶44.] What happened here was wrong in a great many ways. I write 

separately to discourage litigators from following this path in the future. 

Nevertheless, I respectfully but reluctantly concur. 

[¶45.] In oral argument to this Court, defense counsel argued that this is a 

case about notice. And, indeed, it is. As outlined in the majority opinion, a state 

statute expressly informs its readers that second-degree murder is a lesser included 

offense of first-degree murder. SDCL 22-16-20.1. That statute went into effect in 

2005. 2005 S.D. Sess. Laws ch. 120, § 436. Our caselaw also makes clear that, 
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although a less-than-perfect fit, second-degree murder satisfies the elements test 

previously adopted by this Court. See, e.g., State v. Giroux, 2004 S.D. 24, ¶ 7, 676 

N.W.2d 139, 142; State v. Hoadley, 2002 S.D. 109, ¶ 64, 651 N.W.2d 249, 264. But 

the prosecution tried this case, both in and out of the courtroom, as a first-degree 

murder case. It was never a second-degree murder case.10 Before trial began, the 

prosecution even filed a motion to preclude the defense from asking for an 

instruction on second-degree manslaughter arguing, in part, that there was no basis 

for such an instruction because the evidence of premeditation was so strong. As a 

result, no one can fault the defense for being surprised at the prosecution’s 

eleventh-hour request for an instruction on second-degree murder. 

[¶46.] The trial court here was put in a remarkably difficult position by the 

procedural posture in which the issue arose. As the majority points out, the 

prosecution first requested the lesser included offense instruction following the close 

of evidence, just minutes before closing arguments were to be given. This was the 

very first time the defense or the trial court had heard of this reversal in the 

prosecution’s theory of the case. Had the defense requested a continuance to 

respond to the newly added charge, the trial court would almost certainly have 

granted that request. After multiple days of trial, the jury would have been sent 

away for an indeterminate amount of time, while the court hoped for unfailing 

adherence to the jurors’ oaths of confidentiality—all of this in a highly publicized 

case. Alternatively, the trial court could have denied the requested instruction, and 

 

10. As to the homicide, the prosecution sought and secured an indictment for 

first-degree murder only. The indictment did not include any charges of 

second-degree murder or manslaughter. 
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risked reversal from this Court.11 Neither of these options are fair expectations of 

the trial court. 

[¶47.] Meanwhile, the defense had no obligation to present any evidence. At 

the close of the prosecution’s case, the defense likely reached the same conclusion as 

did the prosecution—that the record evidence of premeditated murder had fallen 

short of a conviction. So, the defense responded accordingly. The defense put on no 

psychiatric testimony—evidence that was arguably relevant to the depraved-mindtheory of the uncharged second-degree murder count.12 The defendant did not take 

the stand—perhaps signaling a strategic decision that it was unnecessary, given the 

weak evidence of premeditation. And then, just minutes before closing arguments, 

the defense was met with an entirely new and, on these facts, unexpected theory of 

the case when the prosecution threw a new charge at the wall hoping it would stick. 

[¶48.] Despite these concerns, I concur. The majority’s opinion is wellreasoned and thoroughly and accurately sets forth the settled law of this State. 

According to that law, what occurred here was constitutionally permissible. It was 

also unnecessary. Just because we can do something, does not mean that we 

should. We have many rules in place throughout our system of justice to prevent 

 

11. When a defendant files a direct appeal, the prosecution may file a notice of 

review challenging the refusal to give a requested instruction. See SDCL 

23A-32-14; see generally State v. Vandergrift, 1997 S.D. 5, ¶ 8, 558 N.W.2d 

862, 864 (declining to consider an issue where the prosecution failed to file a 

notice of review under SDCL 15-26A-22). 

12. Such testimony was available given the expert testimony previously offered 

at the juvenile transfer hearing. That testimony included an opinion that the 

defendant’s executive functioning capability was that of an 11- or 12-year-old. 
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trial by ambush. I suggest we steer clear of a practice that allows for charging by 

ambush. 

[¶49.] MYREN, Circuit Court Judge, joins this special concurrence.