State v. Tiegen

• Decision Date: 16 January 2008
• Docket Number: No. 23759.,23759.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Tory TIEGEN, Defendant and Appellant.
• Court: South Dakota Supreme Court

744 N.W.2d 578

2008 SD 6

STATE of South Dakota, Plaintiff and Appellee, v. Tory TIEGEN, Defendant and Appellant.

No. 23759.

Supreme Court of South Dakota.

Argued On October 3, 2007.

Decided January 16, 2008.

Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, for plaintiff and appellee.

Kevin S. Lewis, Rapid City, South Dakota, for defendant and appellant.

KONENKAMP, Justice.

[¶ 1.] Defendant was convicted of kidnapping Troy Klug. Klug is believed to be dead, but his body has never been found. On appeal, defendant asserts trial court error in: (1) denial of his right to a speedy trial; (2) admission in evidence of multiple out-of-court statements by a co-conspirator; (3) admission of his incriminating jailhouse messages written to a co-defendant, who defendant alleges acted as an agent for law enforcement investigators; and (4) his sentence of 100 years imprisonment after the court made statements suggesting that defendant probably killed Klug. We affirm on all issues.

Background

[¶ 2.] On July 12, 2004, Troy Klug and his girlfriend's brother, Robert, went to Cynthia Kindall's home to obtain drugs. Klug called his girlfriend, Duanna Beebe, multiple times, but she would not answer because she was upset at him for buying drugs. Later that day, Klug sent Beebe a text message asking if her brother, Robert, was with her. She responded that he was not. That was the last communication she had with. Klug. As the day went on, Klug never came home, and she began to worry. She called his cellular phone multiple times and left messages. After 7:00 p.m., however, Klug's voice mailbox was full and she could no longer leave a message.

[¶ 3.] Beebe later recounted in court that at 9:30 p.m. Cynthia Kindall and Tory Tiegen (defendant) showed up at her and Klug's house. They came upstairs to her bedroom. She asked if they knew where Klug was. Kindall replied that Klug had shown up at her house, but she told him to leave. At some point, defendant and Kindall, while in Beebe's bedroom, rummaged through Klug's possessions. Defendant took a bottle of Klug's cologne and said, "Well, if it's Troy's, it's ours now." Both Kindall and defendant made similar remarks about Klug's things. Beebe pressed the two about Klug's whereabouts. Kindall said that Klug was no longer a problem, and remarked, "Isn't that right, Tory" to which defendant responded, "Yes." According to Beebe, they were smirking when they said this.

[¶ 4.] The next day, July 13, Beebe had affriend staying with her. Just after midnight, Kindall and defendant showed up at her home again. They entered through her living room window and came running up the stairs. Kindall went into Beebe's bedroom and kept asking Beebe what was wrong with her. Beebe was in bed recuperating from an operation. Her incision had become infected. Beebe's friend asked them what happened to Klug. Kindall responded that she did not know where he was. Then, she said to Beebe, "Honey, I need you to come with me. I got to go away for a while and I need you to go with me." Beebe refused to go. During this exchange defendant was pacing back and forth and finally said that they did not have time and needed to go. Beebe told them she had filed a missing persons report on Klug and that she was probably on twenty-four-hour surveillance. At that point, they left.

[¶ 5.] At 3:00 a.m. on July 14, 2004, Kindall and defendant showed up in Kindall's vehicle at Tell Cook's home in Belle Fourche, South Dakota. According to Cook, Kindall and defendant were ranting about people owing money and about snitches. Klug allegedly owed Kindall $300 from previous drug deals. Defendant had Cook come to the trunk of Kindall's vehicle. Defendant opened the trunk, revealing a man inside. His hands, feet, and head were bound with duct tape. He was face down, with his feet in the air, stripped naked except for boxer shorts. Defendant punched him in the back and yelled, "wake up mother fucker." The man made muffled noises. Cook believed he was still alive. When Cook asked what defendant was going to do, defendant said they would either "go to Denver and turn him in or go to North Dakota and dig a hole."

[¶ 6.] The next day, July 15, defendant and Kindall showed up again at Cook's house. Cook asked defendant what he had done with the man in the trunk. Defendant replied that he put him in a toolbox and left him there all day. Cook asked if he gave him water because it was hot. Defendant replied, "No, and it's too late for all that anyway." Cook recalled that defendant said he had gone to the toolbox a few times throughout the day and was beating the man. Defendant said to Cook that he felt bones crush in his face and he thought "that's what did him in."

[¶ 7.] At 4:00 a.m. on July 17, Kindall and defendant arrived in North Dakota at Ross Thomas's home. Jamie Keefe saw both of them there. At 9:30 p.m., according to Keefe, defendant was cutting fringes on a blanket and Kindall was doing laundry. Defendant asked Kindall if she was washing the laundry in cold water, to which she responded, "Yes, I washed it in cold water."

[¶ 8.] On July 18, Kindall and defendant were still at Thomas's residence. Keefe helped them clean out Kindall's car. According to Keefe, the inside of the car was stripped down to the metal frame. Bleach had been poured in it. Maggots were floating in a solid layer on the bleach. Defendant told her he poured about three gallons of bleach in the car and that the maggots were from a milk spill. Keefe helped defendant clean by scrubbing and using a shop vacuum to suck up the bleach. The rags they used to clean the car were eventually taken to a fire stoke and burned. According to Keefe, at some point, Kindall yelled at defendant that the car should have been cleaned five days ago. Keefe recalled that defendant attempted to clean the car's upholstery with Febreze and Woolite. He also had Keefe scrub the floorboards, which had a rustcolored stain.

[¶ 9.] Brent Gromer, a special agent for the South Dakota Division of Criminal Investigation, was assigned to look into Klug's disappearance. At that time, defendant had been identified as a suspect based on Agent Gromer's interview with Beebe. On July 20, 2004, Agent Gromer and two other officers interviewed Tell Cook. Cook told them of seeing defendant and Kindall at his house, but repeatedly denied seeing anyone in a car trunk. He did admit, however, that defendant mentioned "going back to Rapid City and snatchin some guy and ... well you never know I might have already done it .... Could be in the trunk outside...." Cook also recalled that the name "Troy" was mentioned. The officers were not satisfied that Cook was revealing everything he knew. Agent Gromer made, several strong comments to motivate Cook to be more cooperative. On July 22, Cook was again interviewed, but this time by two different law enforcement officers. He told them that Klug was over at Kindall's house and defendant was using Klug to move things in the basement and they hit him and duct taped him. Cook was arrested on August 6, 2004, and placed in the Pennington County jail.

[¶ 10.] Agent Gromer and Special Agent John Griswold interviewed defendant in North Dakota on July 22, 2004. The next day, defendant was charged with kidnapping Klug. On August 4, he was indicted on one count of kidnapping and one count of conspiracy to commit kidnapping.¹ Defendant was placed in the Pennington County jail, in a cell adjacent to Cook's. While they were there, Cook had contact with defendant through a "kiting system" whereby an inmate would have letters or notes sent from one cell to another. Cook had written defendant and defendant wrote back. Defendant used the nickname "Chopper" when referring to Cook. Cook gave defendant the nickname "Mad Hatter." Cook told his lawyer about the notes he obtained and that they contained incriminating information about defendant. Cook and his lawyer met with law enforcement officers on September 30, 2004. He decided to tell everything he knew, and a plea agreement was reached.² Cook told the officers of seeing Klug in the trunk, recounted the statements defendant and Kindall made, and turned over some of the notes defendant had written.

[¶ 11.] After Cook made a plea agreement, Kindall and defendant remained to be tried together. Defendant moved to sever his trial from Kindall's. The court granted the motion. Defendant also challenged the State's intention to introduce Kindall's out-of-court statements. She was not available to testify because she was found incompetent to stand trial. The State sought to introduce multiple statements made by Kindall to Beebe, Keefe, and Cook. It contended that the statements were not hearsay because they were made in furtherance of the conspiracy to kidnap Klug. The court examined each statement the State sought to introduce and addressed whether each met the requirements of SDCL 19-16-3(5). It ruled that some statements were admissible and some were not. The court then took under advisement whether the statements would, nevertheless, be inadmissible because Kindall was unavailable.

[¶ 12.] Defendant next challenged the State's plan to introduce the jailhouse "kites" defendant sent to Cook. According to defendant, Cook obtained these notes in violation of his Sixth Amendment right to counsel because at the time Cook obtained information from defendant, he was represented by counsel. Cook, defendant argued, was acting as an agent of law enforcement and elicited the information at the direction of law enforcement officers. After a hearing, where Cook, the officers, and others testified, and certain transcripts of law enforcement interviews were admitted, the court found the "kites" admissible. It held that Cook was not acting as an agent for law enforcement: he wrote to defendant of his own volition and the investigating officers were not aware of Cook's actions until after the fact.

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