Gonzales v. Markland

#30400-r-JMK
2025 S.D. 14

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****
DONIKA RAE GONZALES, Petitioner and Appellee,

v.

WANDA MARKLAND, Warden,
South Dakota Women’s Prison, Respondent and Appellant.

****

APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
BUFFALO COUNTY, SOUTH DAKOTA

****

THE HONORABLE DOUGLAS E. HOFFMAN
Judge

****

MARTY J. JACKLEY
Attorney General

CHELSEA WENZEL
Assistant Attorney General
Pierre, South Dakota Attorneys for respondent and
appellant.

THOMAS P. REYNOLDS of
Kennedy, Pier, Loftus & Reynolds, LLP
Yankton, South Dakota Attorneys for petitioner and
appellee.

****

ARGUED
APRIL 24, 2024
OPINION FILED 03/05/25
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KERN, Justice

[¶1.] Donika Rae Gonzales was convicted in 2014 by a jury, comprised of

Brule and Buffalo County residents, of beating her boyfriend’s son to death.

Gonzales filed a petition for a writ of habeas corpus challenging her conviction on

the grounds that the use of a jury district, which included both Brule and Buffalo

County residents, unconstitutionally diluted the percentage of prospective Native

American jurors available for voir dire. Gonzales also claimed that she was

deprived of the effective assistance of counsel by her attorney’s alleged failure to

introduce certain items into evidence at trial. After an evidentiary hearing, the

habeas court concluded that the jury district violated both the federal and state

constitutions and reversed Gonzales’ conviction on these grounds. The habeas court

did not address the ineffective assistance of counsel claims. We reverse.

Factual and Procedural Background

[¶2.] On April 11, 2014, at the close of a nine-day jury trial in Brule County,

Donika Rae Gonzales was found guilty of first-degree manslaughter and aggravated

assault. Gonzales was sentenced to 130 years in prison for the manslaughter

conviction and a concurrent 15 years for the assault conviction. 1 During the trial,

the State accused Gonzales of beating her boyfriend’s four-year-old son to death in

Buffalo County. The State introduced evidence that, after the child wet his pants,

Gonzales threw him to the ground and began kicking and stomping on him. As a

result, the child suffered lacerations to his liver, an injured pancreas, and multiple

fractured ribs. The child ultimately died from blunt force trauma to his abdomen.

1. This sentence was later reduced to 90 years with 50 suspended.

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[¶3.] Leading up to the trial, the circuit court had several discussions with

both Gonzales and the State concerning the venue for the trial and the jury

selection process. The county seat for Buffalo County is in Gann Valley, an

unincorporated city with an extremely small courthouse facility. 2 Gonzales

expressed a preference for the trial to be held in Brule County, at the courthouse

located in Chamberlain, even though her actions constituting the charged offenses

had occurred exclusively in Buffalo County. Initially, at her arraignment on April

15, 2013, Gonzales was informed by the circuit court that she would be tried by a

Buffalo County jury.

[¶4.] The circuit court initially sent out jury questionnaires to only residents

of Buffalo County, however, an inadequate number were returned. In an email on

January 7, 2014, the circuit court explained to counsel that, since only 50 Buffalo

County residents—less than the minimum of 54 necessary for voir dire—had

returned the jury questionnaire, it would be necessary to include residents of Brule

County in the jury pool, as authorized by a 2011 standing order by the presiding

judge of the First Judicial Circuit. 3 This standing order was promulgated pursuant

to SDCL 16-13-18.4, which provides:

If any county within a circuit has a population of less than five
thousand, the presiding circuit court judge may create a jury

2. The population of Gann Valley in 2010 was 14. See U.S. Census Bureau,
South Dakota: 2010 (Nov. 2012),
https://www2.census.gov/library/publications/2012/dec/cph-1-43.pdf.

3. At a subsequent hearing, the court informed both parties that, in addition to
the 51 Buffalo County residents who ultimately completed the initial
questionnaire, 3 additional residents had responded to a follow-up special
questionnaire, for a total of 54.

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district by joining that county with one or more counties within
the circuit until the total population of the counties exceeds ten
thousand. Each county in such a jury district is entitled to pro
rata representation upon the master jury list to be computed by
the presiding judge upon the basis of the last official census.

In addition to the small number of residents, 39% of the population of Buffalo

County was below the age of 18, further reducing the number of prospective adult

jurors. 4

[¶5.] At a subsequent hearing on January 15, 2014, Gonzales—through her

counsel—expressed an understanding that the jury would be “made up of a mixture

as much as possible of Buffalo and Brule County residents.” This was confirmed by

a stipulation, later signed by both parties, that the jury questionnaires would be

sent to residents of both Brule and Buffalo Counties.

[¶6.] At the time of the jury trial, Buffalo County had a population of 1,912

residents, of which 84% were Native American. Brule County had a population of

5,264 residents, of which 8.5% were Native American. Pursuant to SDCL 16-13-

18.4, the 2011 standing order merged these two counties into a jury district with a

combined Native American population of 29%. The jurors were drawn on a 3-1 ratio

based on the population of the counties as prescribed by SDCL 16-13-18.4. As a

result, for Gonzales’ trial, the jury pool consisted of 236 total jurors, with 182 (77%)

residents of Brule County and 54 (22%) residents of Buffalo County. During voir

dire, both the State and Gonzales exercised 20 peremptory challenges each.

Gonzales struck two jurors from Buffalo County and the State struck one. In total,

4. These statistics are taken from the habeas testimony of Kim Allison, the
First Judicial Circuit Court Administrator.

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the State struck three Native American jurors and Gonzales struck two.

Ultimately, the jury was comprised of two Native American and twelve non-Native

American jurors. 5

[¶7.] After her conviction, Gonzales appealed, raising nine issues and asking

this Court to reverse her judgment of conviction. However, this Court summarily

affirmed the conviction by order on February 22, 2016. See State v. Gonzales, 877

N.W.2d 106 (S.D. 2016). Gonzales filed an application for writ of habeas corpus on

October 6, 2016. Gonzales subsequently filed several amended habeas applications,

with varying claims for relief. However, the third and final amended application,

filed on March 5, 2019, asserted two grounds for relief: 1) “the jury pool did not

consist of a fair cross-section of the community in which the crime occurred and

because she was not tried by a jury from the county in which the crime occurred,”

and 2) ineffective assistance of counsel, alleging trial counsel was ineffective by not

explaining and informing Gonzales “of the ramifications of the [c]ourt impaneling

both Brule and Buffalo County Jurors” and by not objecting to impaneling a jury in

such manner. 6

5. Two jurors were later dismissed as alternates.

6. Gonzales also alleged that her counsel was ineffective for failing to offer
certain evidence at trial that she claimed was exculpatory. However, in its
memorandum opinion, the habeas court ruled that all of Gonzales’ ineffective
assistance claims, with the exception of those relating to the jury
composition, were “facially without merit.” Accordingly, the habeas court’s
certificate of probable cause did not include these other claims.

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[¶8.] During a three-day trial, the habeas court heard from several

witnesses. 7 Gonzales first called Christine Obago, the tribal treasurer of the Crow

Creek Tribe, to provide information about the demographics of the jury panel used

for Gonzales’ trial. Obago testified that, based on her personal knowledge, 53 out of

the 236 individuals in the jury pool were Native American. However, Obago also

admitted that, because she was not as familiar with Brule County residents, she

might have failed to identify Native American members of this population on the

jury panel list. Indeed, she recognized only six Brule County residents as having

Native American heritage.

[¶9.] Next, Gonzales testified on her own behalf. She informed the habeas

court that she had not “waive[d] [her] right to a jury of [her] peers from Buffalo

County.” She also testified that her attorneys had not explained to her “the

repercussion[s] of having both Buffalo and Brule County jurors in the jury pool.”

However, on cross-examination, Gonzales conceded that she reviewed a list of

potential jurors—consisting of both Buffalo and Brule County residents—with her

attorneys. In addition, she acknowledged that she was present at a pretrial

conference on February 28, 2014, when jury logistics were discussed in detail. At

this conference, the court specifically noted that the jury would be drawn from both

Buffalo and Brule Counties and neither Gonzales nor her attorneys objected.

[¶10.] Gonzales also called Phil Peterson, a criminal defense lawyer with over

46 years of criminal and civil experience, as an expert witness. He testified that a

7. After all the judges of the First Circuit recused themselves, the case was
assigned to the Honorable Douglas Hoffman of the Second Judicial Circuit.

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jury comprised of Gonzales’ peers should be taken from “a county with 84 percent

Native American” population. Thus, according to Peterson, the jury pool in this

case violated the Sixth Amendment of the United States Constitution by depriving

Gonzales of a jury comprised of her peers. Peterson also concluded that the 2011

standing order unconstitutionally and systematically diluted the percentage of

Native American jurors available to Gonzales. However, Peterson readily admitted

on cross-examination that, in forming his opinions, he had not applied the “absolute

disparity” calculations related to jury composition found in St. Cloud v. Class, 1996

S.D. 64, 550 N.W.2d 70, and Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L.

Ed. 2d 579 (1979). 8 Peterson also acknowledged that he made no conclusions as to

whether SDCL 16-13-18.4 violated the South Dakota Constitution.

[¶11.] After both parties concluded their examination of Peterson, the habeas

court embarked on a lengthy series of narrative and leading questions. During

these exchanges, the court interjected previously unpled and unaddressed

arguments into the case. Most prominently, the court focused on the historical

concept of vicinage:

Court: I am going to throw you a real curve ball now.
Have you ever heard of the term, and I confess I
didn’t until I looked it up for the purposes of this
trial - - but have you heard of the term “vicinage,”
vicinage, V-I-C-I-N-A-G-E?

Peterson: Vicinage?

8. In St. Cloud, this Court concluded that an absolute disparity of 12.5%
between the percentage of Native Americans in the jury pool versus the
underlying population was less than the 15% “at which the jury panel should
be supplemented.” 1996 S.D. 64, ¶ 19, 550 N.W.2d at 76.

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Court: Vicinage.

Peterson: I don’t believe so.

Court: So according to “Blackstone,” and we recognize
Blackstone as being, kind of, the parent authority
of English common law, at least in the relative
modern era; is that fair from law school?

Peterson: That is fair.

Court: And so according to “Blackstone,” in medieval
England the vicinage of the jury referred to a jury
drawn from the relevant county; is this maybe
something that I should have the lawyers do a little
research on when they’re doing their post-trial
briefs if from time in memorial and the jury trial
system and our system of law that the vicinage of
the jury means the neighborhood of the jury is
historically as the county?

...

Court: So now that I have described for you what
“Blackstone[”] defined for you as the vicinage of the
jury. Does that seem to bear some significance to
this issue of whether there is any really big deal if
we take a little Native American county and mix it
in with a much bigger white county and try the
Native Americans for murder in - - with a white
jury?

Peterson: I think certainly.

Court: And so then if that concept of the vicinage in the
county was incorporated into the Constitution of
the State of South Dakota, does that mean that this
issue really is a Constitutional dimension and not
just statutory magnitude?

Peterson: Yes, very much.

[¶12.] As a result of this development, the State requested a continuance:

Thanks, Judge. Based on the Court’s comments and the
colloquy that the Court had with Mr. Peterson, frankly, at least,

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from Respondent’s perspective, it completely changes the
complexion as to where things are at. And at this point, the
Respondent is going to ask for a continuance, and respectfully
request. And I appreciate the Court making it’s [sic] remarks as
far as some of its concerns and so forth. These appear to be
branching, at least from Respondent’s perspective, outside of the
issues that are specifically alleged in the Third Amendment [sic]
position.

That being said, we would respectfully request the Court provide
us some guidance in terms of its concerns that it outlined or
some clarification. And a continuance or an opportunity to
conduct additional research and very likely develop additional
witnesses and alter the indicated testimony of our witnesses.

However, the habeas court directed both sides to continue presenting the testimony

of their witnesses. Although it expressed a willingness to grant further time for

research after the conclusion of the habeas hearing, the court strongly suggested

that the central issue remained the same—whether there was “systemic exclusion of

the Native American community.” In response, the State pointed out that, based on

Gonzales’ third amended habeas application, they had focused on whether the jury

pool was a “fair cross-section of the community.” The State suggested that the

relevant community was the jury district, which included both Buffalo and Brule

County.

[¶13.] As her final witness, Gonzales called Kim Allison, the Court

Administrator for the First Judicial Circuit, to testify regarding the jury pool

selection and the development of the 2011 standing order. Allison specifically

testified that Brule County was selected for combination with Buffalo County

because other nearby counties, such as Aurora and Douglas, had an even lower

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percentage of Native American residents. 9 Allison also explained that Charles Mix

County, which has a significant Native American population was considered for

inclusion, but rejected because of its distance from Buffalo County.

[¶14.] The State began its case by calling attorneys Donna Bucher and

Douglas Papendick, who represented Gonzales at trial. Among other topics, Bucher

testified regarding her general strategy for defending Gonzales. She highlighted

her concerns about the difficulty of selecting a sufficient number of jurors

exclusively from Buffalo County. She also expressed concerns about whether the

physical facilities at the Gann Valley courthouse could accommodate a jury trial.

She described the courthouse as comprised of a small community room, with one

bathroom and no available place nearby to get food for those involved in the trial.

[¶15.] Bucher testified that Gonzales had agreed to hold the trial in Brule

County using a jury combined of persons from the two counties:

Q: So just so we’re clear, [Gonzales] agreed that the trial
could be in Brule County?

A: Yes. We - - we’re talking about the jury districting issue,
and we did talk about a change of venue as well. But she
wanted it to be there.

Q: Okay. The jury district issue and the change of venue,
those were separate and distinct issues?

A: They were separate, yes. Yes.

Q: When you say “change of venue,” you’re talking about a
change to a different county other than Buffalo or Brule.

9. Allison also pointed out that neighboring Hughes and Hyde Counties, which
both had a higher percentage of Native American residents than Brule, could
not have been included in a jury district with Buffalo County because they
were in the Sixth Judicial Circuit.

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A: Right.

Q: And that would have been done with a separate motion
and a separate hearing?

A: I don’t think we ever filed a motion for it. She didn’t want
it. She didn’t want it changed.

Q: She wanted it to stay.

A: She wanted it to stay in Brule County so she would have a
Brule and Buffalo County jury.

Q: Using the jury district as you had explained to her.

A: Yes.

Q: Just so we’re clear, did Ms. Gonzales agree to the using of
the jury district?

A: Yes.

Bucher concluded by testifying that she was not aware of “any misfeasance or

malfeasance on the part of anyone that would tend to deprive Ms. Gonzales of a

substantial right[.]”

[¶16.] Doug Papendick, Gonzales’ other trial counsel, testified that the jury

district was authorized by the South Dakota Constitution and that Gonzales was

aware that Buffalo and Brule County jurors would be combined for purposes of

selecting her jury and did not object:

Q: Well, let me ask you this, if you know. Are jury - - if you
know, are jury districts authorized under the South
Dakota Constitution?

A: Yes, they are.

Q: Would that be pursuant to Article VI, Section 7 as you
understand it?

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A: Yes.

Q: Based on that, would there have been any logical basis to
object as to the jury district relative to our state
constitution?

A: No, there would be nothing prohibiting the court from
using jury districts.

Q: And as you understand, that would be under Judge - - or
within [the circuit court’s] discretion?

A: Yes.

Q: Any reason to object to it as Ms. Gonzales agreed to using
the jury district?

A: What was the question again?

Q: Would - - since - - I believe you previously testified that
Ms. Gonzales agreed to using the jury district; is that
correct?

A: That’s correct.

On cross-examination, however, Papendick acknowledged that Gonzales never

specifically stated on the record: “I waive having only a Buffalo County jury.”

[¶17.] Finally, the State called Mark Smith, a lawyer with over 30 years of

experience as a private practitioner, state’s attorney, assistant attorney general,

and magistrate judge, to testify as an expert witness. Based on his review of the

underlying trial transcript, Smith testified that Gonzales had been advised by her

attorneys concerning the venue of the trial and the makeup of the jury district. 10

10. Smith prepared a written report, Exhibit 10, which listed a number of
hearings at which the court discussed with Gonzales and her counsel the
issue of venue and using a jury district authorized by the standing order to
empanel the venire, namely: a May 7, 2013 motion hearing; a September 27,
2013 motion hearing where the court discussed the issue of where to hold the
(continued . . .)
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Smith also testified that—because the jury pool contained, at most, only 7% fewer

Native Americans than the overall population of the jury district—the jury

represented a fair cross-section of the community. 11 After the close of the evidence,

both parties submitted post-trial briefs.

[¶18.] On March 12, 2023, the habeas court released a memorandum opinion

granting habeas relief. The court did not analyze Gonzales’ ineffective assistance

claim. Instead, it focused on the composition of the jury pool as a freestanding

issue. The court noted that the ineffective assistance claims asserting a failure to

advise Gonzales of the jury composition issue and object thereto “are subsumed in

her larger claims of direct structural error in the selection of the jury pool.” As to

the freestanding claim, the court concluded that, in violation of the state and federal

constitutions, “[a]pplication of the blended jury pool district concept in this case had

the pernicious effect of excluding members of Gonzales’ community and race from

the process that determined her liberty.” The State appealed, raising the following

issues:

1. Whether the habeas court erred in its interpretation and
construction of the United States and South Dakota
Constitutions.

________________________
(. . . continued)
trial—Gann Valley or Chamberlain—and asked for a decision from counsel in
the near future; a February 28, 2014 pretrial conference at which there was a
lengthy discussion between the court and counsel about the logistics of
summoning jurors from Buffalo and Brule Counties, the plan to send the
sheriff to encourage Buffalo County jurors to complete the initial
questionnaire, and the method of exercising peremptory challenges.

11. This disparity of 7% was calculated by subtracting the percentage of Native
Americans in the jury pool—22%—from the percentage of Native Americans
in the jury district population—29%.

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2. Whether the habeas court erred in its application of the
Duren test.

3. Whether the habeas court erred in determining that the
alleged errors in Gonzales’ trial constituted structural
error.

Standard of Review

[¶19.] “A habeas corpus applicant has the initial burden of proof to establish

a colorable claim for relief.” Neels v. Dooley, 2022 S.D. 4, ¶ 10, 969 N.W.2d 729, 733

(quoting Jenner v. Dooley, 1999 S.D. 20, ¶ 11, 590 N.W.2d 463, 468). “However,

‘[h]abeas corpus is not a substitute for direct review.’” Id. (alteration in original)

(citing Loop v. Class, 1996 S.D. 107, ¶ 11, 554 N.W.2d 189, 191). “Habeas corpus

can be used only to review (1) whether the court had jurisdiction of the crime and

the person of the defendant; (2) whether the sentence was authorized by law; and

(3) in certain cases whether an incarcerated defendant has been deprived of basic

constitutional rights.” Jenner, 1999 S.D. 20, ¶ 11, 590 N.W.2d at 468 (citation

omitted). “We may affirm the ruling of the habeas court if it is ‘right for any

reason.’” Erickson v. Weber, 2008 S.D. 30, ¶ 17, 748 N.W.2d 739, 744 (citation

omitted). “We review findings of fact under the clearly erroneous standard, while

we give no deference to conclusions of law and thereby apply the de novo standard.”

Id.

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Analysis

1. Whether the habeas court erred in its interpretation
and construction of the United States and South
Dakota Constitutions.

[¶20.] “[T]his Court reviews de novo issues of constitutional interpretation.”

Dakota Constructors, Inc. v. Hanson Cnty. Bd. of Adjustment, 2023 S.D. 38, ¶ 12,

994 N.W.2d 222, 227. “When interpreting constitutional text, the goal is to discern

the most likely public understanding of a particular provision at the time it was

adopted.” McDonald v. City of Chicago, 561 U.S. 742, 828, 130 S. Ct. 3020, 3072,

177 L. Ed. 2d 894 (2010) (Thomas, J., concurring in part). Original meaning can be

discerned from “‘historical context’ of a constitutional provision”—including

constitutional debates and case law. Doe v. Nelson, 2004 S.D. 62, ¶ 10, 680 N.W.2d

302, 305–06 (quoting Cleveland v. BDL Enters., Inc., 2003 S.D. 54, ¶ 40, 663 N.W.2d

212, 223).

[¶21.] At the outset, we note that the habeas court interjected the concept of

vicinage, which had not been raised by either party. It appears from the record that

the court conducted and presented its own research concerning this new theory at

the habeas trial:

But the argument is [the jury district] shouldn’t have
been [both Buffalo and Brule Counties]. It should have
been just Buffalo. I mean, I have known that is the issue
in the case since I got the case. That is why I have been
so interested in this case. When I was visiting the library
at [a college] back in November and went into the library
and pulled a volume on “The History of English Common
Law on Juries,” and I will quote it to you right now. I just
happened to find this volume while I was browsing
around, but I thought . . . maybe they have something on
the history of jury trials in this law library at this college

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because it is a college that has been around since the
1840’s.

The court then went on to explain the fundamental principles of the constitutional

law in England, particularly those relating to the right of one accused of a crime to

a trial by jury. On that issue, the circuit court noted that in England, “the fact of

guilt or innocence on a criminal charge was determined in a public court and in the

county where the offense was alleged to have occurred[.]”

[¶22.] In its memorandum opinion, the habeas court, relying on several other

historical commentaries, dictionary definitions, and discussions in opinions

rendered by courts in other jurisdictions, concluded that “the legal concept of

‘vicinage’ in general is fundamental to a proper understanding” of the reference in

Article VI, § 7 of the South Dakota Constitution to a trial by a jury of the “county or

district in which the offense is alleged to have been committed.” However, there is

no vicinage issue here, and the habeas court unnecessarily complicated this case

when it conceived of, developed, and ruled on its own argument to support a

decision to grant post-conviction relief. See Ally v. Young, 2023 S.D. 65, ¶ 49 n.14,

999 N.W.2d 237, 253 n.14 (“Except in rare instances, the court is a neutral party

that adjudicates only those issues raised by the parties. By raising issues sua

sponte and participating as a pseudo-advocate at the evidentiary hearings, the

circuit court abandoned its post of neutrality, threatening the integrity of the very

process it was tasked with protecting.”).

[¶23.] Although the habeas court concluded that the Federal Constitution

“does not require trial within a county or vicinage,” the court ultimately held that

the jury district violated the South Dakota Constitution. In focusing heavily on the

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concept of “vicinage,” the habeas court reasoned that this historical concept—which

refers to a specific neighborhood or community—was incorporated into Article VI,

§ 7 of the South Dakota Constitution. In other words, jurors in a criminal trial

must be from the same “vicinage” or local community where the underlying offense

was committed. According to the court, this principle was violated because the jury

district “disregarded centuries of cultural and communal history and discord” by

combining Buffalo and Brule Counties.

[¶24.] Turning first to the Federal Constitution, the Sixth Amendment

guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district wherein the

crime shall have been committed.” U.S. Const. amend. VI. As the State points out,

this provision specifically does not use the term “vicinage” and instead focuses on

the more definite and readily discernible terms “State and district.” This is perhaps

because “vicinage” was “too vague if depending on limits to be fixed by the pleasure

of the law [and] too strict if limited to the county.” Williams v. Florida, 399 U.S. 78,

95, 90 S. Ct. 1893, 1903, 26 L. Ed. 2d 446 (1970). As a result, Congress has defined

“districts” as the various federal judicial districts and divisions throughout the

country. 12 See William W. Blume, The Place of Trial of Criminal Cases:

Constitutional Vicinage and Venue, 43 Mich. L. Rev. 59, 66 (1944).

12. “It is the policy of the United States that all litigants in Federal courts
entitled to trial by jury shall have the right to grand and petit juries selected
at random from a fair cross section of the community in the district or
division wherein the court convenes.” 28 U.S.C. § 1861.

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[¶25.] Gonzales argues that this requirement—an impartial jury from the

State or district where the crime was committed—has been incorporated and

applies to the States through the Due Process Clause of the Fourteenth

Amendment. In support of this proposition, Gonzales cites Nebraska Press

Association v. Stuart, where the Supreme Court held that “[b]ecause ‘trial by jury in

criminal cases is fundamental to the American scheme of justice,’ the Due Process

Clause of the Fourteenth Amendment guarantees the same right in state criminal

prosecutions.” 427 U.S. 539, 551, 96 S. Ct. 2791, 2799, 96 L. Ed. 2d 683 (1976)

(quoting Duncan v. Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444, 1447, 20 L. Ed. 2d

491 (1968)). Although the Supreme Court recognized that the right to a trial by an

impartial jury applies to the States, it makes no mention of any requirement that

the jury be of the “State and district.”

[¶26.] But, both state and federal courts have concluded that the “State and

district” requirement has not been applied to the states. In discussing

incorporation, the Supreme Court of California explained:

Because a vicinage guarantee does not serve the purpose of
protecting a criminal defendant from government oppression
and is not necessary to ensure a fair trial, it is not an essential
feature of the right to jury trial. For that reason, we conclude
that the vicinage clause of the Sixth Amendment is not
applicable to the states through the Fourteenth Amendment.

Price v. Superior Ct., 25 P.3d 618, 630 (Cal. 2001). See also Caudill v. Scott, 857

F.2d 344, 345 (6th Cir. 1988) (per curiam) (holding that in federal prosecutions, a

defendant need only be tried in the federal district where the offense was

committed); Zicarelli v. Dietz, 633 F.2d 312, 325–26 (3d Cir. 1980) (Zicarelli II)

(“[W]e conclude that the provision of the Sixth Amendment providing for the right

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to have a jury from a district ‘previously ascertained by law’ applies only to federal

criminal trials, and not to state criminal trials.”). We agree, and we note, in any

event that, the State of South Dakota is one single federal district, and Gonzales’

trial in Brule County would comply with the district clause of the Sixth

Amendment.

[¶27.] We next consider Article VI, § 7, of the South Dakota Constitution

which provides that “[i]n all criminal prosecutions the accused shall have the right

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. “Where a

constitutional provision is quite plain in its language, we construe it according to its

natural import.” Brendtro v. Nelson, 2006 S.D. 71, ¶ 16, 720 N.W.2d 670, 675.

When Article VI, § 7 was drafted, “district” was defined as “one of the portions into

which an entire state or country may be divided for judicial, political, or

administrative purposes.” District, Black’s Law Dictionary (1st ed. 1891). This

definition would seem to include the use of jury districts where a single county had

such a limited population that it would be difficult to summon an adequate number

of prospective jurors.

[¶28.] Nevertheless, the habeas court determined that the meaning of

“district” was ambiguous. The court cited to language from this Court’s holding in

In re Nelson, a 1902 decision, to suggest that the word “district”—due to its

supposed ambiguity—has been judicially “eliminated” from Article VI, § 7. See 19

S.D. 214, 102 N.W. 885, 887–88 (1902). A closer reading of Nelson, however, reveals

this is not the case.

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[¶29.] In Nelson, this Court considered the constitutionality of a statute that

authorized the removal of certain criminal proceedings to another county. Id. The

Court held that a change of venue, without the defendant’s consent, would violate

the constitutional guarantee of a trial by an impartial jury of the “county or district”

where the crime occurred. Id. However, this Court used limited and precise

language to interpret Article VI, § 7:

There is nothing uncertain or ambiguous in this language,
except, perhaps, the use of the word “district,” which has
uniformly been construed to mean the trial district, or territory
from which the jury is summoned. In this state, where
unorganized territory may be attached to an organized county
for judicial purposes, the phrase “judicial subdivision,”
frequently found in our statutes, would have more accurately
defined the right than the word “district.” However, so far as
this proceeding is concerned, the clause may be considered as if
the word “district” were eliminated, as the territory from which
the jury would be selected is coextensive with the boundaries of
Lyman county.

Id. at 887. (Emphasis added.)

[¶30.] Thus, the “elimination” of “district” was confined to the specific set of

circumstances found in Nelson, where the county and territory boundaries were

coextensive. The reference to “unorganized territory attached to an organized

county” was not central to the holding in Nelson, and in any event, we have never

held that a “district” under Article VI, § 7 could only ever apply to unorganized

counties attached to organized ones, as the habeas court held. Indeed, Nelson

explicitly suggests that “district” should be understood as a “judicial subdivision,”

which would seem to encompass administrative jury districts created under the

statutory authority of SDCL 16-13-18.4.

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[¶31.] The habeas court also pointed to In re Oberst, where the Kansas

Supreme Court reasoned that “district” applied only to the historical concept of

territorial districts outside of organized counties. See 299 P. 959 (Kan. 1931).

However, we are not persuaded by this authority, and conclude that the plain

meaning of “district” in Article VI, § 7 can also encompass judicial administrative

districts created by statute. 13 We thus hold that the use of a jury district comprised

of Buffalo and Brule Counties does not violate the “county or district” terminology of

Article VI, § 7. 14

[¶32.] According to Article VI, § 7, Gonzales is entitled to a petit jury either

from Buffalo County or from the overall jury district, which would necessarily

include both Buffalo and Brule County residents. Because the latter occurred in

this case, Article VI, § 7 is satisfied.

2. Whether the habeas court erred in its application of
the Duren test.

[¶33.] The Sixth Amendment guarantees the right to an “impartial jury of the

State and district wherein the crime shall have been committed.” U.S. Const.

13. The Legislature has empowered the presiding judge in each judicial circuit to
create jury districts where an individual county has a population of less than
five thousand. SDCL 16-13-18.4. Similarly, under the Federal Constitution,
Congress has defined specific judicial districts for federal courts. See 28
U.S.C. § 1861.

14. Gonzales suggests that the jury district violated SDCL 16-13-18.4 by
including fewer than 10,000 residents. However, this claim was not made on
direct review, and Gonzales offers no authority to support the cognizability of
such a statutory claim in this habeas action. Moreover, SDCL 16-13-18.4
specifically allows for the combination of counties into a jury district “until
the total population of the counties exceeds ten thousand.” (Emphasis
added.) Thus, the statute does not require that the jury district population
reach 10,000.

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amend. VI. Unlike the “State and district” requirement, the right to an impartial

jury drawn from a fair cross-section of the community has been incorporated

against the States through the Fourteenth Amendment. See State v. Hall, 272

N.W.2d 308, 310 (S.D. 1978). As a result, this Court has adopted the Supreme

Court’s Duren test to determine whether a particular jury was selected in

compliance with the fair cross-section requirement. See State v. Wright, 2009 S.D.

51, ¶ 48, 768 N.W.2d 512, 529 (applying Duren, 439 U.S. 357, 99 S. Ct. 664). In

order to establish a claim under Duren, a party must prove: “(1) the group excluded

is a ‘distinct’ group in the community; (2) the representation of this group in the

jury pool is not fair and reasonable in relation to the number of such persons in the

community; (3) this under representation is due to the systematic exclusion of the

group from the jury selection-process.” Duren, 439 U.S. at 363, 99 S. Ct. at 668.

[¶34.] It is uncontested that Native Americans are a distinct group under the

first prong of Duren. See St. Cloud, 1996 S.D. 64, ¶ 11, 550 N.W.2d at 74. The

second prong, however, requires further analysis. In St. Cloud, the defendant

argued on habeas that his constitutional right to a jury comprised of a fair cross-

section of the community had been violated because Native Americans were

underrepresented on the jury panel. Id. ¶ 5, 550 N.W.2d at 72. This Court noted

that the absolute disparity between the Native American proportion in the relevant

county and the jury pool was 12.5%, which was “less than the 15%

underrepresentation at which the jury panel should be supplemented.” Id. ¶ 19,

550 N.W.2d at 76.

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[¶35.] Performing a similar analysis in this case, the habeas court compared

the demographics of the combined jury panel with the demographics of Buffalo

County, not the overall jury district. As a result of this comparison, the court

determined that there was an absolute disparity of at least 58% between the

predicted proportion of Native American residents in the jury pool (26%) 15 and the

proportion of Native American residents in Buffalo County (84%).

[¶36.] The 26% proportion was based, in part, on testimony from Obago

concerning her identification—based on personal knowledge—of Native American

residents on the jury pool list. Obago admitted that she did not verify the Native

American heritage of the prospective jurors by checking the tribal roles. The State

argues that such identification is insufficient to establish the proportion of Native

American residents in the jury pool. It is well established that Gonzales bears the

burden of proof in these habeas proceedings. See Davi v. Class, 2000 S.D. 30, ¶ 26,

609 N.W.2d 107, 114. We decline to determine whether Obago’s personal

knowledge meets this bar because, even assuming that her numbers are correct, no

constitutional violation has occurred.

[¶37.] The State contends that the habeas court based its conclusions on the

wrong community—namely the population of Buffalo County instead of the overall

15. The habeas court acknowledged that Obago’s testimony could have
undercounted the percentage of Native American jurors in the jury pool
because she had less personal knowledge of the Native American population
in Brule County. Using the expected proportion of Native American
residents from Brule County with the known Native American residents in
the pool from Buffalo County, the court determined an expected Native
American percentage in the jury pool of 26%, which was slightly higher than
the 22% identified by Obago.

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jury district. As we have previously discussed, the 2011 standing order combining

the populations of Brule and Buffalo Counties into a jury district does not violate

the State or Federal Constitutions. Thus, the relevant community is the combined

jury district. Brule and Buffalo Counties, together, have a combined population

that is 29% Native American. Obago was able to identify 22% of the jury pool as

Native American residents of Brule and Buffalo Counties. Thus, the absolute

disparity is only 7%—and potentially less given Obago’s unfamiliarity with Brule

County residents—well below the constitutional threshold limit of 15%. See St.

Cloud, 1996 S.D. 64, ¶ 13, 550 N.W.2d at 74; United States v. Erickson, 436 F. Supp.

3d 1242, 1254 (D.S.D. 2020), aff’d, 999 F.3d 622 (8th Cir. 2021) (finding no

substantial underrepresentation where the disparity was 7.4%).

[¶38.] Because of this inability to meet the second prong of Duren, Gonzales

has failed to establish that the jury pool did not represent a fair cross-section of the

community. The habeas court thus erred in its application of the Duren test and in

its conclusion that Gonzales’ Sixth Amendment rights were violated.

3. Whether the habeas court erred in determining that
the alleged errors in Gonzales’ trial constituted
structural error.

[¶39.] Generally, in habeas review, constitutional error alone is not sufficient

for relief; actual prejudice must be shown. See Brecht v. Abrahamson, 507 U.S. 619,

637, 113 S. Ct. 1710, 1722, 123 L. Ed. 2d 353 (1993). As the habeas court correctly

noted, the Supreme Court has held that racial exclusions from a grand jury

constitute structural error. See Vasquez v. Hillery, 474 U.S. 254, 263–64, 106 S. Ct.

617, 623–24, 88 L. Ed. 2d 598 (1986). In addition to this holding, the Vasquez Court

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also suggested that the selection of a petit jury based on improper criteria would

constitute structural error “because the effect of the violation cannot be

ascertained.” Id. at 263. However, because there is no constitutional error present

in this case, any analysis of structural error is unnecessary.

Conclusion

[¶40.] The habeas court erred in concluding that the jury district created by

the 2011 standing order violated Gonzales’ right under the South Dakota

Constitution to a trial from the “county or district” where the offense was

committed. The habeas court also erred by concluding that Gonzales established a

violation of the Sixth Amendment of the Federal Constitution based on her claim

that she was denied a jury from a fair cross-section of her peers under Duren.

Given these determinations, Gonzales’ ineffective assistance claims relating to these

same issues are also without merit. Because Gonzales has failed to demonstrate

any deprivation of her constitutional rights to a fair and impartial jury and to the

effective assistance of counsel, she is not entitled to habeas relief. We therefore

reverse and vacate the judgment and order granting such relief.

[¶41.] DEVANEY and MYREN, Justices, and HENDRICKSON, Circuit Court

Judge, concur.

[¶42.] SALTER, Justice, concurs specially.

[¶43.] HENDRICKSON, Circuit Court Judge, sitting for JENSEN, Chief

Justice, who deemed himself disqualified and did not participate.

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SALTER, Justice (concurring specially).

[¶44.] I join the entirety of the Court’s opinion, and I write specially to note

the unusual procedural posture we confront in this habeas appeal. The parties and

the habeas court have treated the vicinage and cross-section arguments presented

here as freestanding habeas claims. They may not be. Neither was argued on

direct appeal, and the habeas court opted not to determine the vicinage and cross-

section claims within an ineffective assistance of counsel claim because it

considered them to be claims of structural error, which, in the court’s view,

rendered the claims cognizable on collateral review.

[¶45.] Structural errors are incapable of being assessed for harmlessness, and

we have recognized that they can be cognizable in a habeas case. See Guthmiller v.

Weber, 2011 S.D. 62, ¶ 16, 804 N.W.2d 400, 406. But Guthmiller did not hold that a

structural error habeas claim was exempt from the rule that requires a petitioner to

present claims, where possible, on direct appeal. See Piper v. Young, 2019 S.D. 65,

¶¶ 22–24, 936 N.W.2d 793, 804–05 (stating claim preclusion rules applicable in

habeas actions). And, in my view, our ability to review a defaulted claim of

structural error that could have been litigated on direct appeal presents a different

question. See e.g., Taylor v. Comm’r of Corr., 153 A.3d 1264, 1275 (Conn. 2017)

(“[T]he petitioner’s claim of structural defect was procedurally defaulted precisely

because it was a claim that could have, and should have, been raised at trial or on

direct appeal.”).

[¶46.] However, the prospect of vacating the circuit court’s decision because

of an unexcused default presents its own challenges. Because the default issue was

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not litigated by the parties before the habeas court or in this appeal, we lack the

benefit of the parties’ arguments on this novel and unsettled issue. See St. Cloud v.

Leapley, 521 N.W.2d 118, 123–24 (S.D. 1994) (prohibiting a habeas respondent from

raising the affirmative defense of procedural default for the first time on appeal).

[¶47.] Therefore, under the circumstances, I agree that we should reach the

merits of the case and determine it under the Court’s analysis, reserving our

consideration of the procedural default issue for another day.

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