State v. Cloud, #29479

CourtSupreme Court of South Dakota
Writing for the CourtKERN, Justice
Citation972 N.W.2d 517
Parties STATE of South Dakota, Plaintiff and Appellee, v. Anthony O. RED CLOUD, II, Defendant and Appellant.
Docket Number#29479
Decision Date23 March 2022

972 N.W.2d 517

STATE of South Dakota, Plaintiff and Appellee,
v.
Anthony O. RED CLOUD, II, Defendant and Appellant.

#29479

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS JANUARY 10, 2022
OPINION FILED March 23, 2022


KRISTI JONES of Dakota Law Firm, Prof. LLC, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

JASON R. RAVNSBORG, Attorney General, ERIN E. HANDKE, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

KERN, Justice

972 N.W.2d 521

[¶1.] A jury convicted Anthony Red Cloud II (Red Cloud) of burglary and two counts of simple assault arising from a home invasion. Joe Zueger (Zueger) encountered Red Cloud shortly after he broke into Zueger's home. Red Cloud fled the home and was arrested later that morning on another charge. Zueger identified him as the intruder during a one-person show-up identification. Although Red Cloud moved to suppress this identification, the circuit court denied his motion and the evidence was received at trial. The State also introduced the results of DNA testing through expert testimony but inadvertently failed to send the expert's report to the jury for their deliberations. Red Cloud moved for a mistrial on this basis, which the circuit court denied.

¶2.] Red Cloud was charged and tried on a part II habitual offender information alleging two prior felony convictions. Red Cloud moved for judgment of acquittal following the State's case-in-chief on the basis that the State failed to prove that Red Cloud had been released from supervision for the prior felonies within the past 15 years. The circuit court denied this motion, and the jury found Red Cloud to be a habitual offender. Red Cloud appeals the circuit court's denial of his motion to suppress the show-up identification, his motion for a mistrial because of the omission of the DNA exhibit from jury deliberations, and his motion for judgment of acquittal in the habitual offender trial. We affirm.

Factual and Procedural Background

[¶3.] Sometime shortly prior to 5:00 a.m. on July 1, 2019, Zueger, who was in his bedroom with his wife on the main floor of their home, heard a loud bang followed by a crash coming from the basement. The basement area had a sliding door entrance, and his two teenage children, Isabel and E.Z., were sleeping in their bedrooms in the basement. After hearing the crash, Zueger put on his glasses and went to the basement, where he turned on a hallway light and observed a person in the common room area of the basement stumbling toward him. The light in the common room was not on, and Zueger assumed this person had tripped over an ottoman in the middle of the common room. Zueger began yelling at the intruder to leave and noticed that the sliding glass door to their backyard was open. Zueger also noticed that the intruder was carrying a shovel at his side with a handle that appeared to be about four feet long.

[¶4.] The intruder moved into the lighted hallway area until he was just a few feet away from Zueger. The intruder then turned away from Zueger, lifted the shovel from his side, and flipped it over his back, where it hung over his shoulder on his right side. The intruder walked away from Zueger toward a smaller study room in the basement while Zueger continued yelling loudly at him to get out of the house. Zueger's son, E.Z., was awakened by the commotion and came out of his bedroom. E.Z. walked down the bedroom hallway toward the entry to the study room where the intruder was located. Zueger testified that E.Z. and the intruder "surprised" each other when E.Z. saw the intruder come out of the room. E.Z. put his fists up in a fighting stance, and the intruder brought the shovel across the front of his body in a "shielding" position. When E.Z. noticed the shovel, he backed away and moved toward his father until they were standing next to one another near the basement stairs. Zueger's wife, Kristen, called 911 and remained on the phone with dispatch throughout the remainder of the encounter.

[¶5.] The intruder then moved to the bar area of the basement, and E.Z. picked up a

[972 N.W.2d 522

guitar that was nearby, lifted it above his shoulder like a baseball bat, and "pumped" it at the intruder to try to scare him away. The intruder left the basement through the sliding glass door, taking the shovel he was carrying with him. Zueger quickly shut the sliding door and managed to secure it even though the lock was damaged. While he was doing so, his daughter, Isabel, came out of her room after having been awakened by the noise. Zueger testified that the time that had elapsed from when he first saw the intruder to when the intruder left the house was approximately 45 seconds to one minute and 15 seconds.

¶6.] After the intruder left the house, Kristen gave Zueger the phone and he spoke to 911 dispatch. Zueger described the intruder to the dispatcher as a Hispanic male with very short hair and many non-colored tattoos. Further, Zueger reported that the intruder was not wearing a shirt and was carrying a spade-like shovel.

[¶7.] Unsure if there were other intruders in the home, the family secured themselves in an inner room to wait for law enforcement to arrive. From a window, they could see a dark colored bike laying near the sliding glass door through which the intruder had fled. They were unsure at the time if it was one of the family members’ bikes, but later determined that it was not. When law enforcement arrived around 5:00 a.m., they cleared the home to make sure it was safe, interviewed the family, took photographs of the sliding door, and took DNA swabs from the handles of the dark colored bike. It appeared that the sliding glass door had been pried open and the intruder had entered the house through it, leaving the bike laying outside and failing to take the bike with him when he fled. During his interview with law enforcement, in addition to the details he described to the 911 dispatcher, Zueger described the intruder as a tall male (around 6’1") with a muscular build, barefoot, and wearing baggy gray shorts.

[¶8.] A couple of hours later, construction workers at a site about a quarter mile from the Zuegers’ house contacted law enforcement, reporting that there was a man sleeping in one of the construction trucks that had been left at the site overnight. The truck was locked with the man inside. Law enforcement officers responded and were able to get the man out of the truck without incident. The man, identified as Anthony Red Cloud II, was handcuffed and placed in the back of a police car. Red Cloud was Native American with a buzz cut and many black tattoos, and he was wearing wet, gray sweatpants but was not wearing a shirt or shoes. Based on the similarity of Red Cloud's appearance to the intruder described by the Zuegers and his close proximity to their house, law enforcement decided to see if the Zuegers could identify Red Cloud as the person who had been in their basement earlier that morning.

[¶9.] Officer Brian Rhinewald went to their home, finding only Zueger and Isabel present. He informed them that law enforcement officers had detained a man that may or may not fit the description of the intruder and asked if Zueger would accompany him to see if he could identify the individual. Zueger agreed, and Officer Rhinewald drove them to the construction site where Red Cloud had been arrested. They arrived around 8:00 a.m., and two police officers removed Red Cloud, who was handcuffed, from the back of their police vehicle and brought him to the front of the police car in which Zueger was sitting in the passenger seat. Upon seeing Red Cloud from the front, from a distance of approximately 30–45 feet, Zueger said he was 90–95% sure that Red Cloud was the intruder. Zueger asked to see Red Cloud's back. After the officers turned Red Cloud

[972 N.W.2d 523

around and Zueger saw the tattoos on Red Cloud's back, he stated that he was 110% sure that he was the intruder. Law enforcement also showed Zueger two shovels that were at the construction site, but Zueger did not believe either of them was the shovel carried by the intruder in his basement. Regardless, law enforcement took DNA swabs from the handles of both shovels for testing.

¶10.] The State charged Red Cloud by complaint and information with three alternative counts of first-degree burglary, two counts of aggravated assault (one as to Zueger and one as to E.Z.), two counts of simple assault, and one count of criminal entry of a motor vehicle.1 Additionally, the State filed a part II information alleging Red Cloud was a habitual offender having two prior felony convictions for robbery in 1994. Red Cloud filed a motion to suppress Zueger's identification of him on the day of the intrusion and also Zueger's subsequent in-court identification at the preliminary hearing. The circuit court held a hearing on Red Cloud's motion on January 28, 2020, at which Zueger testified to the intrusion and his identification of Red Cloud. Officer Blake Davis testified to Zueger's reported description of the intruder prior to the show-up identification of Red Cloud at the construction site, and Officer Rhinewald testified to Zueger's identification of Red Cloud in the show-up identification. The circuit court denied Red Cloud's motion in a memorandum decision and order dated February 14, 2020, concluding that while the identification was suggestive, the effect of the...

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1 practice notes
  • Bruggeman v. Ramos, #29308
    • United States
    • Supreme Court of South Dakota
    • March 23, 2022
    ...standard to consider whether a grantor has capacity to make end of life gifts.16 2010 S.D. 79, ¶ 27, 790 N.W.2d 52, 62 ; see also [972 N.W.2d 517 In re Est. of Long , 2014 S.D. 26, ¶ 18, 846 N.W.2d 782, 786. Stockwell explained this capacity as follows:Testamentary capacity and competence e......
1 cases
  • Bruggeman v. Ramos, #29308
    • United States
    • Supreme Court of South Dakota
    • March 23, 2022
    ...standard to consider whether a grantor has capacity to make end of life gifts.16 2010 S.D. 79, ¶ 27, 790 N.W.2d 52, 62 ; see also [972 N.W.2d 517 In re Est. of Long , 2014 S.D. 26, ¶ 18, 846 N.W.2d 782, 786. Stockwell explained this capacity as follows:Testamentary capacity and competence e......

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