State v. Willingham

#28584-a-JMK
2019 S.D. 55

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

DONALD M. WILLINGHAM, Defendant and Appellant.

****

APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

****

THE HONORABLE WALLY EKLUND
Retired Judge

****

MARTY J. JACKLEY
Attorney General

PATRICIA ARCHER
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.

SHILOH M. MACNALLY
Rapid City, South Dakota Attorney for defendant
and appellant.

****

CONSIDERED ON BRIEFS
ON MARCH 25, 2019
OPINION FILED 09/11/19
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KERN, Justice

[¶1.] Donald Willingham appeals convictions of attempted first-degree

murder, aggravated assault on a law enforcement officer, possession of marijuana

with the intent to distribute, possession of marijuana, and commission of a felony

with a firearm. He argues the circuit court erred by denying his motions to

suppress and abused its discretion by denying his proposed jury instructions on

lesser-included offenses. We affirm.

Facts and Procedural History

[¶2.] On the morning of October 24, 2015, while patrolling I-90 east of Rapid

City, South Dakota, Trooper Zac Bader observed a Suburban traveling 75 miles per

hour in a 65 mile-per-hour zone. He turned on his emergency lights, which

activated his forward-facing dash camera, and pulled the vehicle over. The driver of

the Suburban stopped the vehicle on the shoulder of the road near mile marker 70.

[¶3.] When Trooper Bader approached the passenger side of the vehicle, he

immediately smelled a strong odor of marijuana coming from inside the Suburban.

He requested that the driver, later identified as Chase Sukert, accompany him back

to his patrol car. While issuing Chase a warning ticket for speeding, Trooper Bader

commented that Chase and the interior of the Suburban smelled like marijuana.

He left Chase in his patrol car and approached the vehicle again.

[¶4.] Trooper Bader instructed the three passengers—later identified as

Donald Willingham, Jonathan Melendez, and Desiree Sukert (Chase’s sister)—to

exit the Suburban and stand in the ditch while he searched the vehicle for

marijuana. After finding a black duffel bag containing packages of marijuana,

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Trooper Bader turned toward the ditch to place the suspects under arrest. As he

approached them, he walked outside the range of his dash camera.

[¶5.] Addressing Willingham first, Trooper Bader told him to put his hands

behind his back. Instead of complying, Willingham, a six-foot tall, 270-pound

former semi-pro football player, advanced on Trooper Bader and punched him in the

face, knocking him to the ground. While delivering forceful blows to Trooper

Bader’s face, Willingham began yelling “go, go, go!” to the others. At his command,

Desiree jumped into the driver’s seat of the Suburban and Melendez and Chase

followed. Meanwhile, Willingham continued to beat Trooper Bader, telling him to

“go to sleep” twice as he delivered his final punches.

[¶6.] Willingham, Melendez, Desiree, and Chase fled the crime scene,

leaving Trooper Bader, who was struggling to breathe and unable to move, lying in

a pool of blood by the side of the road. When first responders arrived to render aid,

he was barely conscious. It soon became clear that Trooper Bader was suffering

from extensive, life-threatening injuries. Nearly every bone on the left side of his

face (including his jaw) was broken, he was bleeding profusely, and he had severe

swelling. He was rushed to the hospital for treatment and surgery.

[¶7.] In the meantime, Willingham, Chase, Desiree, and Melendez decided

to hide approximately fifty pounds of marijuana and a .380 caliber hand gun in a

pasture next to a nearby country road. Before they left the field, Chase took a photo

of the location on his phone so that they could relocate their stash. After disposing

of the evidence, they drove to a motel in Wall. Willingham, Chase, and Desiree

remained in the vehicle while Melendez went inside to rent a room.

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[¶8.] Around the same time, Deputy Sheriff Dan Rose, heard radio

broadcasts describing the suspects’ vehicle and pulled into a gas station to fill up his

tank. While at the pump, he noticed a Suburban matching the description in the

parking lot of a motel. He called for backup. With the help of two United States

Forest Service Officers, Deputy Rose approached the Suburban and ordered the

suspects out of the car. Willingham got out with his hands in the air, one of which

was wrapped in a towel with ice, saying, “I did it. I did it. It was just me. No one

else was involved.” All four individuals were taken into custody. Law enforcement

officers searched the vehicle and found $30,000 cash inside.

[¶9.] An officer called an ambulance to address Willingham’s injured hand.

While waiting for medical professionals, Willingham repeatedly told Officer Eric

Nelson that he assaulted the officer. Although Officer Nelson was not questioning

Willingham, he informed him that it was in his best interest to remain silent.

Willingham ignored this advice and made further statements to the officers

guarding him while riding in the ambulance and at the hospital. When paramedics

asked whether he was under the influence of any drugs, Willingham said he had

smoked marijuana earlier in the day and had taken a Vicodin tablet. After

diagnosing him with a broken hand, Willingham’s doctor administered pain

medication to him.

[¶10.] Once Willingham received treatment, officers transported him to the

Criminal Investigations Division (CID) for questioning. At approximately 7:40 p.m.,

Willingham was advised of his Miranda rights and orally waived them. He spoke to

Investigator Paul Stevens and Detective Stephen Neavill for nearly an hour before

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invoking his right to remain silent. At his request, law enforcement ceased

questioning him and ended the interview shortly thereafter. However, even though

he had asserted his right to remain silent, Willingham engaged in conversation with

a sergeant while being transported to the jail.

[¶11.] Later that evening, officers located the gun and marijuana in a field

along I-90 by referencing the photo Chase had taken earlier in the day. The

following afternoon, a detective contacted Willingham at the jail and asked if he

wanted to talk. Willingham agreed to a second interview and was taken back to the

CID. At 3:30 p.m., officers again read him his Miranda rights, which he waived.

Willingham made several incriminating statements regarding the assault and

discussed his role in transporting the marijuana through South Dakota. He also

admitted to carrying a gun, which he transported in the Suburban with the drugs

and money.

[¶12.] Due to swift and extensive medical attention that involved several

surgeries and a prolonged stay in the hospital, Trooper Bader survived the attack.

A Pennington County grand jury indicted Willingham for attempted first-degree

murder, alternative counts of aggravated assault on a law enforcement officer,

possession of marijuana with the intent to distribute, possession of marijuana, and

commission of a felony with a firearm.1

[¶13.] Prior to trial, Willingham filed three motions to suppress his

statements to law enforcement. He also moved to suppress evidence derivative of

1. Each of Willingham’s three co-defendants pled guilty to possession of
marijuana with the intent to distribute and accessory to a crime after the
fact.
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his arrest, arguing that Trooper Bader engaged in racial profiling as the basis for

the traffic stop. According to defense counsel, although the driver of the vehicle

(Chase) is Caucasian, Willingham, the back-seat passenger, is African American

and Melendez is Hispanic. The Suburban had tinted windows.

[¶14.] To address these claims, the court held two evidentiary hearings. At

the first hearing, the parties stipulated to the admission of Trooper Bader’s patrol

camera video for the court’s review with reference to Willingham’s motion

challenging the legality of the stop. The State also called several law enforcement

officials to testify about the statements made by Willingham after his arrest. The

State also entered the recordings of Willingham’s interviews into evidence.

[¶15.] Officer Nelson testified regarding his role in arresting Willingham

outside the motel in Wall. He described Willingham’s hand injury and the

incriminating statements he made despite being advised to remain silent. Deputy

Daniel Lewis detailed his experience with Willingham while guarding him at Rapid

City Regional Hospital. Deputy Lewis testified that Willingham made several

unsolicited statements to him—including, “I hit him too many times” and, “I hate

when I fight. I can’t stop”—which he recorded in his report. Investigator Paul

Stevens, who was present during both of Willingham’s interviews described

Willingham’s conduct during the interviews and recounted the statements

Willingham made.

[¶16.] At the second evidentiary hearing, Sergeant Chris Hislip testified

about his encounter with Willingham while transporting him from the CID to the

Pennington County Jail for booking. He narrated Willingham’s statements about

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his fear that jail personnel and the police would not “treat him nicely” because he

assaulted an officer. Sergeant Hislip stated that he assured Willingham he would

not be assaulted but never questioned him.

[¶17.] After considering the evidence and oral arguments of the parties, the

circuit court issued a memorandum decision denying Willingham’s motions to

suppress his statements. The court also denied his motion to suppress the evidence

seized as a result of the stop, finding that Trooper Bader “had a reasonable

articulable suspicion to initiate a traffic stop” for speeding.

[¶18.] During the three-day jury trial held in December 2017, twenty-two

witnesses testified, including Melendez, who testified against Willingham as a

condition of his plea agreement. Trooper Bader, who was still recovering from his

injuries, also took the stand. At the close of the evidence, Willingham requested the

court give the jury two lesser-included offense instructions for the greater offense of

commission of a felony with a firearm—one for carrying a pistol or revolver without

a permit and the other for concealment of a weapon with intent to commit a felony.

The court did not give either instruction.

[¶19.] The jury found Willingham guilty of attempted first-degree murder,

aggravated assault on a law enforcement officer, possession of marijuana with the

intent to distribute, possession of marijuana, and commission of a felony with a

firearm. The circuit court sentenced Willingham to 45 years in the penitentiary,

imposed significant fines, and ordered $146,277.98 in restitution.

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[¶20.] Willingham appeals his conviction. We restate his issues as follows:

1. Whether the circuit court erred in denying Willingham’s
motions to suppress evidence discovered as a result of the
traffic stop.

2. Whether the circuit court erred by denying Willingham’s
motions to suppress statements.

3. Whether the circuit court erred by rejecting Willingham’s
lesser-included offense instructions.

Standard of Review

[¶21.] We review “the denial of a motion to suppress based on the alleged

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

novo standard of review.” State v. Rolfe, 2018 S.D. 86, ¶ 10, 921 N.W.2d 706, 709.

However, “[w]e review the circuit court’s factual findings for clear error.” Id. ¶ 10,

921 N.W.2d at 709–10.

[¶22.] “[W]e review de novo a [circuit] court’s ruling on the question whether

a defendant knowingly, intelligently, and voluntarily waived Miranda rights.”

State v. Tuttle, 2002 S.D. 94, ¶ 6, 650 N.W.2d 20, 25. The burden is on the State to

prove the defendant’s admissions were voluntary by a preponderance of the

evidence. State v. Ralios, 2010 S.D. 43, ¶ 24, 783 N.W.2d 647, 654.

[¶23.] Generally, “we review a [circuit] 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. However, when the issue requires this

Court to analyze the elements of the given offenses, this is a question of law

reviewed de novo. State v. McCahren, 2016 S.D. 34, ¶ 5, 878 N.W.2d 586, 590; State

v. Giroux, 2004 S.D. 24, ¶ 4, 676 N.W.2d 139, 140–41.

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Analysis and Decision

1. Whether the circuit court erred in denying
Willingham’s motions to suppress evidence
discovered as a result of the traffic stop.

[¶24.] On appeal, Willingham argues that all evidence seized as a result of

the traffic stop should be suppressed because Trooper Bader unconstitutionally

extended the stop beyond the time necessary to issue the warning ticket for

speeding in order to ask drug interdiction questions. Additionally, Willingham

asserts that the circuit court erred because it did not enter findings of fact and

conclusions of law in ruling on his motion to suppress evidence on this issue.

[¶25.] However, Willingham did not advance his argument that the duration

of the stop was unlawful before the circuit court, instead challenging the stop only

on a theory of racial profiling. By failing to bring this claim before the trial court,

Willingham failed to preserve the argument for our review. See State v. DuFault,

2001 S.D. 66, ¶ 7, 628 N.W.2d 755, 757. Issues not raised before the circuit court

cannot ordinarily be raised for the first time on appeal. State v. Henjum, 1996 S.D.

7, ¶ 13, 542 N.W.2d 760, 763. Although, “[o]rdinarily we would review a forfeited

claim such as this for plain error[,]” because “neither party has identified plain

error as the correct standard of review, we decline to apply it sua sponte in this

case.” State v. Roedder, 2019 S.D. 9, ¶ 11 n.2, 923 N.W.2d 537, 542 n.2. Therefore,

Willingham has “waive[d] the issue before this Court.” See DuFault, 2001 S.D. 66,

¶¶ 7-8, 628 N.W.2d at 757.

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[¶26.] Moreover, even if Willingham’s claims were not waived, the relief he

seeks is not available. As we understand Willingham’s argument to “quash” his

arrest and “suppress evidence derivative thereof[,]” his request relates exclusively

to evidence associated with his assault of Trooper Bader.2 Although Bader’s

attempt to arrest Willingham was not illegal, we have held that a defendant may

not resist an arrest even if it is unlawful. State v. Miskimins, 435 N.W.2d 217, 221

(S.D. 1989) (quoting State v. Wick, 331 N.W.2d 769, 771 (Minn. 1983)).

[¶27.] In Miskimins, we aligned our view with other state and federal courts

which generally hold that a defendant who reacts to an arrest, even if it is unlawful,

by committing a new and distinct criminal act may not seek the remedy of

exclusion. See id. at 220–21. This rule is pragmatic and sensible, and “[t]o [hold]

otherwise would allow a defendant carte blanche authority to go on whatever

criminal rampage he desired and do so with virtual legal impunity as long as such

actions stemmed from the chain of causation started by the police misconduct, be it

minor or major.” Id. at 221. Because the remedy of exclusion is not available to

Willingham, his unrelated claim that the circuit court did not issue findings of fact

and conclusions of law when it denied his now-abandoned theory of racial profiling,

does not impact our review.

2. We do not interpret Willingham’s suppression argument to implicate other
evidence because, so far as we can discern from the record, Trooper Bader did
not seize any evidence prior to the assault. He did observe the bag of
marijuana, but this observation was unconnected with its eventual discovery
and seizure which was based instead upon photographic evidence from
Chase’s phone discovered independently by officers after his arrest.
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2. Whether the circuit court erred by denying
Willingham’s motions to suppress statements.

[¶28.] Next, Willingham challenges the denial of his motions to suppress his

statements by arguing: (1) his statements prior to his custodial interview were

involuntary; (2) he was not adequately advised of his Miranda rights; and (3) law

enforcement did not honor his right to remain silent.

Statements made prior to custodial interview

[¶29.] Willingham argues the statements he made to police after arrest,

during the ambulance ride, and at the hospital were involuntary because he was in

pain, in shock, and under the influence of narcotics. Although he initially briefed

the circuit court on the issue, his counsel later conceded that his primary authority,

Mincey v. Arizona, involved injuries “different than the case here,” and he was

therefore “abandoning that issue.”3 See 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d

290 (1978). Because Willingham waived his argument that he was in pain and

shock from his injuries, we will not consider this portion of his claim. See Rosales-

Mireles v. United States, __ U.S __, 138 S. Ct. 1897, 1905, 201 L. Ed. 2d 376 (2018).

[¶30.] Before considering the remaining portion of his argument that the

statements he made prior to his formal interview were involuntary due to the

influence of narcotics, we begin by examining his custodial status. “When a person

is in the custody of law enforcement and law enforcement intends to perform a

3. The defendant’s injuries in Mincey were much more extensive than
Willingham’s injury. In Mincey, the defendant was seriously wounded a few
hours before the interrogation, was in the intensive care unit in unbearable
pain during the interview, encumbered by medical apparatus, and slipping in
and out of consciousness. Mincey v. Arizona, 437 U.S. 385, 398–99, 98 S. Ct.
2408, 2416–17, 57 L. Ed. 2d (1978).
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custodial interrogation of that person, they are required to read them their Miranda

rights.” State v. Lewandowski, 2019 S.D. 2, ¶ 20, 921 N.W.2d 915, 920. “[T]he

definition of interrogation can extend only to words or actions on the part of police

officers that they should have known were reasonably likely to elicit an

incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 302, 100 S. Ct. 1682,

1690, 64 L. Ed. 2d 297 (1980) (emphasis in original). In contrast, “[u]ncoerced,

voluntary, and spontaneous statements are not protected by Miranda.”

Lewandowski, 2019 S.D. 2, ¶ 22, 921 N.W.2d at 921. Willingham, although under

arrest and in custody, was not interrogated by officers until transported to the CID

for questioning.

[¶31.] In Lewandowski, we addressed a similar set of circumstances. The

defendant was in custody and taken to a hospital to be treated for Taser injuries.

Id. ¶ 11, 921 N.W.2d at 919. When an officer entered the defendant’s hospital room

and informed him that he wished to speak with him, the defendant began making

statements such as, “I’m sorry, sorry man,” and, “I done a bad thing,” before the

officer read him his Miranda rights. Id. The officer indicated to the defendant that

he should wait to begin speaking about the crime until others left the hospital room.

Id. ¶ 22, 921 N.W.2d at 921. After the room was cleared, the officer read the

defendant his Miranda rights and interrogated him. Id. ¶ 11, 921 N.W.2d at 919.

We determined that statements the defendant made after he was arrested but prior

to the officer reading him his Miranda rights, were not made in response to any

questions posed by law enforcement; rather the statements were uncoerced and

voluntary. Id. ¶ 22, 921 N.W.2d at 921.

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[¶32.] In this instance, no evidence suggests that the officers provoked

Willingham into speaking or that they initiated conversations with him designed to

elicit incriminating statements. On the contrary, Officer Nelson informed

Willingham shortly after his arrest and prior to his custodial interview that he may

wish to remain silent. Willingham disregarded this advice and made numerous

statements that were entirely self-generated and voluntary.

[¶33.] We find equally unavailing Willingham’s argument that taking a

Vicodin pill for pain and ingesting marijuana rendered his statements involuntary.

As noted, Miranda warnings do not preclude the admission of statements made

voluntarily outside of custodial interrogation. Id. Here, the record indicates that

Willingham’s intoxication, if any, did not impair his ability to speak voluntarily and

of his own free will. Moreover, several officers contradicted Willingham’s assertion

of intoxication by testifying that Willingham was cognizant of his surroundings,

“act[ed] normally,” and did not appear to be under the influence during his arrest

and at the hospital. Therefore, we affirm the circuit court’s denial of Willingham’s

motion to suppress.

Adequacy of Miranda warnings

[¶34.] Willingham next argues the Miranda warnings he received prior to his

interviews at the CID were inadequate because law enforcement did not insert the

phrase “in a court of law” into the advisement. This omission, in Willingham’s view,

requires suppression of all statements made during both interviews. In Miranda v.

Arizona, the United States Supreme Court held that a criminal defendant must be

advised of certain safeguards before custodial interviews. 384 U.S. 436, 444, 86 S.

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Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966). Law enforcement’s advisement prior to a

custodial interview should include the following:

He must be warned prior to any questioning that he has the
right to remain silent, that anything he says can be used against
him in a court of law, that he has the right to the presence of an
attorney, and that if he cannot afford an attorney one will be
appointed for him prior to any questioning if he so desires.

Id. at 479, 86 S. Ct. at 1630.

[¶35.] Yet Miranda warnings need not “be given in the exact form described

in that decision.” State v. Rhines, 1996 S.D. 55, ¶ 12, 548 N.W.2d 415, 426. This is

because “the words of Miranda do not constitute a ritualistic formula which must be

repeated without variation in order to be effective. Words which convey the

substance of the warning along with the required information are sufficient.” Evans

v. Swenson, 455 F.2d 291, 295 (8th Cir. 1972).

[¶36.] Prior to each custodial interview, law enforcement used a pre-printed

Miranda warning card to inform Willingham:

You have a continued right to remain silent and to stop
questioning at any time. Anything you say can be used as
evidence against you. You have the continuing right to consult
with and have the presence of an attorney and if you cannot
afford an attorney, an attorney will be appointed for you.

Even though Willingham was not advised that evidence could be used against him

in a court of law, this fact alone is insufficient to invalidate his Miranda warnings.

Law enforcement included “[t]he substance of the warning along with the required

information” by informing him he had the right to remain silent; his statements

could be used against him; he had the right to an attorney; and one would be

appointed to him if he could not afford an attorney. Rhines, 1996 S.D. 55, ¶ 12, 548

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N.W.2d at 426. Therefore, Willingham’s Miranda warnings were accurate and

adequate.

Invocation of his right to remain silent

[¶37.] As his final argument that his statements should be suppressed,

Willingham claims that although he invoked his right to remain silent at the end of

his first interview, the officers continued speaking to him and returned the next day

for a second interview. By not promptly ending all further questioning after the

invocation of his right, Willingham argues all subsequent statements must be

suppressed.

[¶38.] The Supreme Court has unequivocally stated that “the admissibility of

statements obtained after the person in custody has decided to remain silent

depends . . . on whether his ‘right to cut off questioning’ was scrupulously honored.”

Michigan v. Mosley, 423 U.S. 96, 104, 96 S. Ct. 321, 326, 46 L. Ed. 2d 313 (1975). To

determine whether police have “scrupulously honored” a suspect’s invocation of his

right to remain silent, we examine: whether police immediately ended the

interrogation; whether there was a significant passage of time before questioning

was resumed accompanied by fresh Miranda warnings; and whether the subject

matter of the second interrogation concerned a crime different than the subject of

the prior interrogation. Id. at 106, 96 S. Ct. 327; Hatley v. Lockhart, 990 F.2d 1070,

1073-74 (8th Cir. 1993).

[¶39.] During the first interview, after Willingham made several

incriminating statements regarding his role in the crimes, he began to disagree

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with the officers about whether he delivered marijuana in Wyoming. At that point,

he decided to end the interview stating:

Willingham: I don’t wanna talk no more. That’s a lie,
that’s a lie, that’s a lie, that is a lie. I did not do sell no drugs in
fucking Wyoming.
Detective Neavill: And just so you know what you did today,
there are so many factures in [Bader’s] face the doctors can’t
even count them. He’s injured to the point where he can’t even
breathe on his own. That’s what YOU did!
Investigator Stevens: And you know that [Bader], he knows
that when he tries to arrest you, lawful arrest, you attack him
and then go for his gun on his belt.
Willingham: I didn’t go for his gun.
Detective Neavill: Go ahead and stay here, we have a search
warrant that we’re going to process on you, and just so you
know, nobody is going to attack you. They’re gonna have to
touch you, take photographs, what they need to do.

[¶40.] Even if the two statements made by the officers after Willingham’s

request to end the interview were designed to “elicit an incriminating response,” he

made no further admissions. See Innis, 446 U.S. at 300–02, 100 S. Ct. at 1689–90.

After the colloquy cited above, the officers engaged in a short conversation with

Willingham about the booking process and the charges that would be filed against

him. After the interview ended, Willingham engaged Sergeant Hislip in

conversation as he transported him to the jail, but Hislip did not question him

except to encourage him to answer booking questions.4

4. On several occasions, the United States Supreme Court has carved out
routine booking questions as an exception to Miranda. See Pennsylvania v.
Muniz, 496 U.S. 582, 601, 110 S. Ct. 2638, 2650, 110 L. Ed. 2d 528 (1990).
Questions such as the suspect’s “name, address, height, weight, eye color,
date of birth, and current age do not qualify as custodial interrogation . . .
because the questions were not intended to elicit information for
investigatory purposes.” Id.
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[¶41.] The second factor, which requires that “a significant period of time”

pass before the next interview and that the defendant receive a “fresh set” of

Miranda warnings, is also satisfied. Law enforcement did not interview

Willingham again until 3:30 p.m. the next day, nearly eighteen hours after

Willingham invoked his right to remain silent. This was a “significant period of

time” sufficient to satisfy the criteria set forth in Mosley; indeed, in Mosley itself, an

interval of two hours was significant. 423 U.S. at 104, 96 S. Ct. at 327; see also

Hatley, 990 F.2d at 1074 (two hours was significant); Brown v. Caspari, 186 F.3d

1011, 1015 (8th Cir. 1999) (three-hour interval significant). Additionally, at the

onset of the second interview, Willingham was given a “fresh set of Miranda

warnings,” which he again waived.

[¶42.] The State admits it cannot meet the third Mosley criterion, namely,

whether the subsequent interview involved a crime that was not the subject of the

first interview. Nevertheless, “a second interrogation is not rendered

unconstitutional simply because it involves the same subject matter discussed

during the first interview.” United States v. DeMarce, 564 F.3d 989, 994 (8th Cir.

2009). This is especially so when there is no showing that the police conducted the

subsequent interview “to induce [the defendant] to abandon his earlier assertion of

his right to remain silent.” Brown, 186 F.3d at 1015.

[¶43.] Here, law enforcement desired to interview Willingham again because

the investigation was continuing and they had uncovered additional evidence—a

gun and fifty pounds of marijuana. Prior to the interview, Sergeant Stevens

approached him at the jail and asked if he would consent to another interview.

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Willingham agreed and was then transported back to the CID for a second

interview. He was Mirandized and again chose to waive his rights and speak to the

officers. Although the interviews concerned the same crime, there is no evidence of

repeated efforts by the officers to “wear down [Willingham’s] resistance” or to

convince him to waive his “earlier assertion of his right to remain silent” by

interviewing him a second time. Brown, 186 F.3d at 1015. The officers

scrupulously honored his right to stop questioning after the first interview. Based

on our review of the circumstances surrounding the second interview we conclude

Willingham’s rights were not violated. The circuit court did not err by denying

Willingham’s motion to suppress his statements.

3. Whether the circuit court erred by rejecting
Willingham’s proposed lesser-included offense
instructions.

[¶44.] Willingham was charged with commission of a felony with a firearm.

He tendered instructions on concealment of a weapon with intent to commit a felony

and carrying a concealed pistol or revolver without a permit as lesser-included

offenses. A lesser-included offense instruction is appropriate if the elements test is

satisfied and there exists “some evidence in support of such instructions[.]” Giroux,

2004 S.D. 24, ¶ 5, 676 N.W.2d at 141. To meet the elements test, three factors must

be present:

(1) [A]ll of the elements of the included offense are fewer in
number than the elements of the greater offense; (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.

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Id. It is unnecessary to assess whether some evidence exists in the record to

support the instruction unless the elements test is met. State v. Hoadley, 2002 S.D.

109, ¶ 49, 651 N.W.2d 249, 260.

[¶45.] A person is guilty of commission of a felony with a firearm—the

“greater offense” in this case—when he “commits or attempts to commit any felony

while armed with a firearm, including a machine gun or short shotgun[.]” SDCL 22-

14-12. In comparison, concealment of a weapon with the intent to commit a felony

prohibits a person from “conceal[ing] on or about his or her person a controlled or

dangerous weapon with intent to commit a felony[.]” SDCL 22-14-8. Upon review

of the elements of each crime, while concealing a weapon is required to commit the

lesser offense, it is not required for the greater offense. This is because it is possible

to commit or attempt to commit a felony while armed with a firearm that was not

concealed. Accordingly, concealment of a weapon with the intent to commit a felony

is not a lesser-included offense of commission of a felony with a firearm.

[¶46.] For the same reason, carrying a concealed pistol or revolver without a

permit is not a lesser-included offense of commission of a felony with a firearm.

SDCL 22-14-9,5 lists the elements of unlawfully carrying a concealed weapon, as

follows:

Any person, other than a law enforcement officer as defined in §
22-1-2 acting under color of authority, who:
(1) Carries a pistol or revolver, loaded or unloaded,
concealed on or about his or her person without a
permit as provided in chapter 23-7; or

5. The Legislature repealed SDCL 22-14-9 with Act of July 1, 2019, ch. 113, §§
1, 2 (altering the permit requirements for carrying a concealed weapon).
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(2) Carries a pistol or revolver, loaded or unloaded,
concealed in any vehicle while operating the vehicle,
without a permit as provided in chapter 23-7;
is guilty of a class 1 misdemeanor.

To violate this provision, a defendant must carry a concealed weapon, whereas

commission of a felony with a firearm does not require concealment. Again, a

defendant could be convicted of committing the greater offense without also

committing the lesser. Indeed, we have previously held that carrying a concealed

pistol or revolver without a permit is not a lesser-included offense of commission of

a felony with a firearm. State v. McGarrett, 535 N.W.2d 765, 769 (S.D. 1995).

Because neither of Willingham’s proposed lesser included offenses pass the

elements test, reviewing the record for supporting evidence is unnecessary. The

circuit court did not err in refusing to give Willingham’s proposed lesser included

offense instructions. We affirm.

[¶47.] GILBERTSON, Chief Justice, and JENSEN and SALTER, Justices,

and SEVERSON, Retired Justice, concur.

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