State v. Garreau

• Decision Date: 27 May 2015
• Docket Number: No. 27122.,27122.
• Citation: 864 N.W.2d 771
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Jason GARREAU, Defendant and Appellant.
• Court: South Dakota Supreme Court

864 N.W.2d 771

STATE of South Dakota, Plaintiff and Appellee

v.Jason GARREAU, Defendant and Appellant.

No. 27122.

Supreme Court of South Dakota.

Considered on Briefs March 23, 2015.

Decided May 27, 2015.

Marty J. Jackley, Attorney General, Ellie J. Bailey, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Patricia A. Carlson, Pierre, South Dakota, Attorney for defendant and appellant.

Opinion

GILBERTSON, Chief Justice.

[¶ 1.] Jason Todd Garreau appeals the circuit court's imposition of a 25–year sentence for his conviction on one count of attempted first-degree murder. Garreau asserts his sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment. He also asserts the circuit court violated his due process rights in considering a federal presentence investigation report that was included in the state presentence investigation report. Finally, Garreau asserts he was denied his right to counsel and right against self-incrimination during the court services interview in violation of the Fifth and Sixth Amendments. We affirm.

Facts and Procedural History

[¶ 2.] On October 30, 2013, Garreau borrowed a vehicle from his friend, Jason Mahto, to travel from Pierre to Fort Thompson. Mahto had active warrants. Although Garreau asserts his physical appearance is substantially different from that of Mahto, law enforcement apparently believed Garreau to be the owner of the vehicle and attempted to initiate a traffic stop before Garreau left Pierre. Rather than comply, Garreau led law enforcement on a high-speed chase through the City of Pierre, ignoring traffic signs, disregarding other motorists, and even driving on a sidewalk in order to evade a law enforcement roadblock. Garreau continued eastbound out of Pierre on highway 34, travelling at speeds in excess of 95 miles per hour.

[¶ 3.] While fleeing from law enforcement, Garreau called his cousin, John. John intercepted Garreau on the highway, produced a firearm, and opened fire on the U.S. marshals in pursuit. At some point during the chase, John turned down a gravel road, while Garreau continued along the highway. The marshals abandoned their pursuit of Garreau and instead pursued John. The chase culminated in an exchange of gunfire in which law enforcement officers shot and wounded

John. Garreau drove another few miles, abandoned his vehicle, and continued on foot into Fort Thompson. Garreau was on the phone with John when he was shot. Garreau later learned that John died as a result of his wounds.

[¶ 4.] Garreau returned to Pierre by the following day. Upon his return, Garreau armed himself with two firearms and went into hiding in a friend's mobile home. Law enforcement learned of his location and surrounded the home at approximately 3:45 p.m. on October 31, 2013. Garreau barricaded himself in the bathroom and sat in the bathtub. Law enforcement officers were unable to convince Garreau to surrender. Garreau persisted in his refusal to surrender, and law enforcement employed gas canisters, flash bombs, and a robot. At approximately 7:45 p.m., the SWAT team entered the home. Garreau, still positioned in the bathtub with the bathroom door closed, opened fire with his weapons through the door and walls as he heard law enforcement approach. Garreau shot Officer Cole Martin in the chest. Fortunately, Officer Martin's body armor spared him from serious injury. Officer Martin Waller also sustained injuries as an indirect result of Garreau's gunfire.^* The standoff lasted another four hours before Garreau finally surrendered.

[¶ 5.] Garreau was indicted on two counts of attempted first-degree murder in violation of SDCL 22–4–1, SDCL 22–16–4(1), and SDCL 22–16–12. Garreau entered into a plea agreement with the State. Under the terms of that agreement, Garreau pleaded guilty to the attempted murder of Officer Martin, and the State dismissed the second count for the attempted murder of Officer Waller. Additionally, the State agreed to limit its sentencing recommendation to 20 years. The circuit court sentenced Garreau to the maximum term of 25 years.

[¶ 6.] Prior to sentencing, Garreau filed objections to the presentence investigation report. In particular, Garreau objected to the inclusion of the federal presentence investigation report in the state presentence investigation report. Garreau also objected to being denied counsel at his presentence interview with court services. The circuit court denied the motions, and Garreau appeals. He raises three issues:

1. Whether his sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment.

2. Whether the inclusion of the federal presentence investigation report in the state presentence investigation report violated due process.

3. Whether he was improperly denied counsel during his interview with court services.

Standard of Review

[¶ 7.] We generally review a circuit court's decision regarding sentencing for abuse of discretion. See State v. Buchhold, 2007 S.D. 15, ¶ 17, 727 N.W.2d 816, 821. However, in reviewing a challenge to a sentence under the Eighth Amendment, we have consistently applied Justice Kennedy's analysis from his concurrence in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (plurality opinion). See State v. Bonner, 1998 S.D. 30, ¶ 16, 577 N.W.2d 575, 580. Therefore, “when a defendant challenges a sentence on Eighth Amendment grounds, our review is conducted using the gross disproportionality standard” instead of the abuse of discretion standard. See Buchhold, 2007 S.D. 15, ¶ 17, 727 N.W.2d at 821.

Analysis and Decision

[¶ 8.] 1. Whether Garreau's sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment.

[¶ 9.] Garreau asserts that a sentence of 25 years is grossly disproportionate to the circumstances of the crime to which he pleaded guilty. “The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are grossly disproportionate to the crime.”

Bonner, 1998 S.D. 30, ¶ 15, 577 N.W.2d at 579 (emphasis added) (quoting Harmelin, 501 U.S. at 1001, 111 S.Ct. at 2705 (Kennedy, J., concurring)) (internal quotation marks omitted). “[T]o assess a challenge to proportionality we first determine whether the sentence appears grossly disproportionate.” Id. ¶ 17, 577 N.W.2d at 580 (emphasis added). To answer this threshold question, we consider “the gravity of the offense and the harshness of the penalty.” Solem v. Helm, 463 U.S. 277, 290–91, 103 S.Ct. 3001, 3010, 77 L.Ed.2d 637 (1983), quoted in State v. Guthmiller, 2003 S.D. 83, ¶ 43, 667 N.W.2d 295, 309. This comparison rarely “leads to an inference of gross disproportionality [,]” Bonner, 1998 S.D. 30, ¶ 27, 577 N.W.2d at 582 (quoting Harmelin, 501 U.S. at 1005, 111 S.Ct. at 2707 (Kennedy, J., concurring)) (internal quotation mark omitted), and typically marks the end of our review, id. ¶ 17, 577 N.W.2d at 580. “[I]ntrajurisdictional and interjurisdictional analyses are appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” Harmelin, 501 U.S. at 1005, 111 S.Ct. at 2707 (Kennedy, J., concurring); see also Bonner, 1998 S.D. 30, ¶ 17, 577 N.W.2d at 580.

[¶ 10.] Garreau's sentence of 25 years imprisonment is the maximum sentence permitted by statute for this offense but substantially less than the maximum punishment assigned to the most egregious crimes in this state. Garreau pleaded guilty to attempted first-degree murder. Attempted first-degree murder occurs when one human being attempts the unlawful, premeditated killing of another and “does any act toward the commission of the crime, but fails or is prevented or intercepted in the perpetration of that crime [.]” SDCL 22–4–1, –16–1, –16–4(1). While first-degree murder is a Class A felony, which carries a sentence of death or mandatory life imprisonment, an attempted first-degree murder is a Class 2 felony, which carries a maximum sentence of only 25 years imprisonment. SDCL 22–4–1, –6–1, –16–12. Other sentences authorized by the Legislature include nonmandatory life imprisonment, SDCL 22–6–1(3) (Class C felonies), and 50 years imprisonment, SDCL 22–6–1(4) (Class 1 felonies). Thus, Garreau's sentence is far from “the most severe punishment that the State could have imposed on any criminal for any crime.” See Solem, 463 U.S. at 297, 103 S.Ct. at 3013.

[¶ 11.] Consistent with Garreau's sentence, the gravity of his offense is relatively great. The crime to which Garreau pleaded guilty was the attempt to commit first-degree murder. Therefore, our analysis must focus on the seriousness of the attempt. However, because the punishment assigned to an attempt relies on the nature of the target offense, see SDCL 22–4–1, it stands to reason that the seriousness of an attempted criminal act also relies, in part, on the gravity of the target offense. It is axiomatic that the unlawful, premeditated killing of one person by another—an act Garreau nearly completed—is one of the most egregious acts contemplated by our criminal justice system. Here, Garreau took shelter in a mobile home and refused to cooperate with law enforcement for four hours before law enforcement entered the home. He waited, armed with a handgun and a shotgun, until he heard Officers Martin and Waller. After he was aware of their presence, Garreau indiscriminately opened fire with both weapons in the officers' direction. A bullet from Garreau's weapon actually struck Officer Martin in the chest. Thus, not only did Garreau commit “any act toward the commission of the crime,” SDCL 22–4–1, he potentially committed all acts necessary for the crime—but for Officer Martin's body armor, Garreau's bullet would have inflicted a potentially-life-threatening injury on Officer Martin.

[¶ 12.] In conducting the threshold comparison between the crime and the sentence, ...