SEVERSON, Justice.
[¶ 1.] A jury found Braiden McCahren guilty of second-degree murder after he fatally shot Dalton Williams. The jury also found him guilty of aggravated assault of Tyus Youngberg. On appeal, McCahren asserts that a jury instruction on second-degree murder violated his constitutional rights. He further asserts that the circuit court improperly limited his cross-examination of a State witness and improperly refused to suppress McCahren's statements made to a roommate at a juvenile facility and his statements made to an officer immediately after the shooting. Finally, McCahren asserts that his sentence for aggravated assault is cruel and unusual thereby violating the Eighth Amendment. We affirm.
[¶ 2.] On September 23, 2014, a jury found McCahren guilty of second-degree murder of Dalton Williams and aggravated assault of Tyus Youngberg. The jury heard testimony from Tyus Youngberg. He testified that the death was a result of an incident on December 18, 2012. Youngberg testified that McCahren, Youngberg, and Williams were at McCahren's house when McCahren went to a gun rack and grabbed a shotgun, shouldering it as if to shoot something. Youngberg initially told the police that they were messing around and that the shooting was accidental. He later testified at trial that it was intentional. He further testified that McCahren pulled the trigger of the gun as he was pointing it at Youngberg, but the gun just clicked. According to Youngberg, McCahren then opened a drawer and pulled out a 20-gauge shell. At this point, Youngberg tried to leave the house through a sliding glass door. In order to get to the door, he went past Williams, who was now between Youngberg and McCahren. Youngberg heard another click but no discharge occurred. Youngberg testified that he was unable to open the glass door, so he intended to run to the garage but Williams was in his path. As he was attempting to move Williams out of the way, the gun held by McCahren discharged. The shot hit Williams, who subsequently died. McCahren contends the shooting was an accident.
[¶ 3.] Youngberg called 911 to report the shooting. Upon arrival, law enforcement questioned Youngberg and McCahren about the incident. Officer Martin Waller interviewed McCahren in a patrol car, while another officer interviewed Youngberg. In the patrol car, Waller asked McCahren to tell him what happened. McCahren told Waller that he was messing around with a gun that he thought was empty but the gun discharged and a shot hit Williams. After obtaining some of the details of the incident, Waller asked McCahren if he had contacted his father yet. Upon McCahren's negative response, Waller contacted McCahren's father.
[¶ 4.] As a result of the incident, McCahren was indicted for first-degree murder, attempted first-degree murder, and aggravated assault. At the conclusion of a jury trial on those three charges, the State requested that the jury also receive an instruction for second-degree murder. The State made the request during the settling of jury instructions, after all evidence from the prosecution and defense had been presented to the jury, and 90 minutes before closing arguments. Over defense objection, the court granted the State's request and instructed the jury on second-degree murder. The jury found McCahren guilty of second-degree murder of Williams and aggravated assault of Youngberg. The court sentenced McCahren to twenty-five years with fifteen years suspended for second-degree murder and fifteen years for aggravated assault, to run concurrently with the second-degree murder sentence. McCahren now appeals the court's decision to instruct the jury on the offense of second-degree murder. McCahren further appeals the court's decision to limit the defense's cross-examination of one of the State's witnesses, the court's refusal to suppress McCahren's statements made to a roommate at Western Area Juvenile Services Center, and the court's refusal to suppress McCahren's statements made to Officer Waller in the patrol car. Lastly, McCahren asserts that the imposition of the maximum sentence for the aggravated-assault conviction is cruel and unusual.
[¶ 5.] "In general, we `review a trial 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 (quoting State v. Roach, 2012 S.D. 91, ¶ 13, 825 N.W.2d 258, 263). Questions of law are reviewed de novo. See id. at 113.
[¶ 6.] McCahren asserts that the court's decision to instruct the jury on second-degree murder deprived him of his constitutional right to notice of the charges against him and his right to defend against such because second-degree murder was not charged in the indictment. He relies on State v. Lohnes, 324 N.W.2d 409, 412 (S.D.1982), in which the lower court, over the defendant's objection, instructed on second-degree murder despite that offense not being charged. In Lohnes, we determined that such an approach violated the defendant's constitutional right to be informed of the nature and cause of the accusation against him. Id. Since Lohnes was decided, the jurisprudence surrounding homicide charges and lesser-included offenses in homicide trials has changed. Therefore, the question in front of us today is the applicability of Lohnes in light of our evolved statutes and precedent on lesser-included offenses, specifically with regard to the differing degrees of homicide.
[¶ 7.] Article VI, § 7 of our constitution provides an accused with the right to:
[¶ 8.] We have applied the elements test to determine which offenses are lesser-included. See Waloke, 2013 S.D. 55, ¶ 29, 835 N.W.2d at 113 (outlining the history of this Court's treatment of lesser-included offense instructions). The elements test is satisfied where:
State v. Giroux, 2004 S.D. 24, ¶ 5, 676 N.W.2d 139, 141 (quoting State v. Hoadley, 2002 S.D. 109, ¶ 61, 651 N.W.2d 249, 263). Once the elements test is met, an instruction on the lesser-included offense may only be given if some evidence was presented that supports the instruction. Hoadley, 2002 S.D. 109, ¶ 64, 651 N.W.2d at 264. Our elements test "provides certainty and predictability in determining lesser-included offenses and is compatible with the constitutional principles of double jeopardy, due process, and notice while maintaining mutuality." Id. ¶ 66, 651 N.W.2d at 265 (quoting Tim Dallas Tucker, State v. Black: Confusion in South Dakota's Determination of Lesser Included Offenses in Homicide Cases, 41 S.D. L. Rev. 465, 501 (1996)) (adopting elements test). "In 2005, the Legislature validated this approach ... in homicide cases by codifying the possible lesser included offenses for various degrees of murder and manslaughter." Waloke, 2013 S.D. 55, ¶ 29, 835 N.W.2d at 113 (citing SDCL 22-16-20.1). The Legislature provided that "[m]urder in the second degree is a lesser included offense of murder in the first degree." SDCL 22-16-20.1.
[¶ 10.] McCahren contends that as a result of those "different" elements, second-degree murder is not a true lesser-included offense. Nonetheless, as Judge Tucker explained, even under the elements test, second-degree murder is a lesser included offense of first-degree murder because we consider the mens rea requirement of depraved mind as a less culpable mens rea contained within the greater offense's requirement of premeditation —" evincing a depraved mind, regardless of human life, although without any premeditated design to effect death is a lesser mental state than premeditation." Tucker, State v. Black, 41 S.D. L. Rev. at 496 (quotation marks omitted) (footnote omitted). We adopted this approach to the mens rea requirements in Hoadley, 2002 S.D. 109, ¶ 61 n. 12, 651 N.W.2d at 263 n. 12. And when considering whether a second-degree murder or manslaughter instruction should be given on the charged offense of first-degree murder, we have previously determined that "the elements test was met[.]" Id. ¶ 64, 651 N.W.2d at 264. We also explained, two years later, in Giroux, "[t]he use of different words does not necessarily eliminate a crime as a lesser-included-offense. Our analysis ... uses the degree of culpability analysis...." 2004 S.D. 24, ¶ 8, 676 N.W.2d at 142. As soon as we adopted such an approach, the holding in Lohnes was overruled to the extent that it determined that second-degree murder could not be a lesser-included offense of first-degree murder due to the differing mens rea elements of the two crimes. See Lohnes, 324 N.W.2d at 412.
[¶ 11.] It is true, as McCahren states, that a statute cannot override constitutional protections. However, our elements test and statute operate to provide a defendant with the notice he or she is entitled. Under SDCL 22-16-20.2, a lesser-included instruction can only be given to the jury if there are "any facts ... which
[¶ 12.] Along with SDCL 20-16-20.1, -20.2, our law provides that "[a] defendant may be found guilty of an offense necessarily included in the offense charged [.]" SDCL 23A-26-8 (Rule 31(c)) (emphasis added). The statute clearly contemplates uncharged offenses. Our approach is not unique. The Supreme Court, when analyzing the federal rule of criminal procedure 31(c), which mirrors ours, adopted the elements test, in part, because it allows "both sides to know in advance what jury instructions will be available and to plan their trial strategies accordingly." Schmuck v. United States, 489 U.S. 705, 720, 109 S.Ct. 1443, 1453, 103 L.Ed.2d 734 (1989).
[¶ 13.] In addition to the United States Supreme Court, other courts have addressed the question of when a lesser-included offense instruction is appropriate. See State v. Rodriguez, 180 Conn. 382, 429 A.2d 919, 929 (1980) (collecting cases and noting that "courts consistently hold that where the evidence supports an instruction on a lesser degree of homicide than that charged, it is error to refuse to give such an instruction"). The Connecticut Supreme Court in Rodriguez faced the same issue that we now address. Id. Rodriguez was charged with murder, which required the specific intent to cause the death of another, and the trial court also instructed on manslaughter in the first and second-degree along with criminally negligent homicide, all of which required a state of mind different than intent to cause death. Id. at 927. Thus, he alleged that, by giving additional instructions, the trial court violated his right to be informed of the crime he allegedly committed. Id.
[¶ 14.] The Connecticut Supreme Court held:
Id. at 929 (citations omitted). The Connecticut Supreme Court also explained that its approach was consistent with the Model Penal Code (MPC). Id. at 930. See Model Penal Code § 1.07(4)(c) (emphasis added) ("A defendant may be convicted of an offense included in an offense charged in the indictment (or the information). An offense is so included when: (c) it differs from the offense charged only in the respect that a less serious injury or risk or injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission."); see also State v. Rush, 50 S.W.3d 424, 431-32 (Tenn.2001) (applying a modified version of the MPC and holding that "the trial court has a duty to instruct the jury regarding all applicable lesser-included offenses regardless of whether the defendant requests the instruction." Thus, the trial court erred because it did not instruct the jury of the lesser-included crime of reckless endangerment even though the facts supported the charge and reckless endangerment requires a lesser risk of harm and "lesser degree of culpability than the knowing intent to kill contemplated by the offense of second degree murder[.]"). Accordingly, McCahren had sufficient notice that second-degree murder instructions may be given by the court.
[¶ 15.] McCahren reasons that we should prospectively apply our decision. McCahren maintains that he should not be punished for reversal of precedent that is more than 30 years old. However, as we noted above, though Lohnes validly holds that a defendant has the right to notice of the charges he faces, the holding in Lohnes on lesser-included instructions for first-degree and second-degree murder became questionable at least in 2002 when we adopted the elements test with Judge Tucker's recommended approach to the mens rea elements. Supra ¶ 10. And in 2005, the Legislature explicitly provided that second-degree murder is a lesser-included offense of first-degree murder. It is important to note that the statute provides that when the facts support the instruction in a homicide trial, the court shall give a lesser-included instruction, which may be requested by either the State or defendant. SDCL 22-16-20.2. Thus, under the law as it has existed for over a decade, McCahren cannot claim surprise that second-degree murder would be considered a lesser-included offense for which the jury could be instructed.
[¶ 17.] Lastly, McCahren asserts that the decision to instruct on second-degree murder deprived him of his right to testify on his own behalf, propose alternative jury instructions, and call an expert witness on his psychological status. McCahren asserts that he was precluded from offering instructions that explain the difference between the differing counts of homicide. However, he has not argued that the circuit court's instructions misstated the law. "We consider jury instructions `as a whole, and if the instructions when so read correctly state the law and inform the jury, they are sufficient. This is a question of law reviewed de novo.'" State v. Birdshead, 2015 S.D. 77, ¶ 14, 871 N.W.2d 62, 70 (quoting Waloke, 2013 S.D. 55, ¶ 28, 835 N.W.2d at 113). From our review of the record, the court's instructions were sufficient. Additionally, because we have determined that McCahren had notice that second-degree-murder instructions could be given in this case, we do not find merit in McCahren's argument that he was prevented from taking the stand or presenting additional expert testimony.
[¶ 18.] Next, we address two issues that McCahren raises regarding the testimony of one of the State's witnesses. The State's witness, T.D., was McCahren's roommate while McCahren was at a juvenile facility in Pennington County. McCahren told T.D. details of the shooting, and McCahren now appeals admission of those statements at trial. He alleges that the statements are subject to the exclusionary rule because they are the result of illegal government activity.
[¶ 19.] In March 2013, pursuant to a court order, McCahren was transferred to the Pennington County Juvenile Services Center. The court ordered a psychological evaluation by Dr. Scovel. After the evaluation, McCahren was to return to the Hughes County Juvenile Services Center. McCahren arrived at the Pennington facility on March 14, 2013, and he left on March 25, 2013. T.D. roomed with McCahren for part of the time that McCahren was at the facility.
[¶ 20.] In September 2013, the circuit court denied McCahren's motion to transfer proceedings to juvenile court. Part of its decision was based on Dr. Scovel's testimony and the report of her evaluation of McCahren. McCahren sought and was granted intermediate appeal, where he alleged
[¶ 21.] McCahren contends that T.D.'s testimony regarding conversations that McCahren had with T.D. should be suppressed as "fruit of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). "The exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawful search, and of testimony concerning knowledge acquired during an unlawful search." State v. Heney, 2013 S.D. 77, ¶ 9, 839 N.W.2d 558, 562 (quoting State v. Boll, 2002 S.D. 114, ¶ 19, 651 N.W.2d 710, 716). "The exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality or `fruit of the poisonous tree.'" Id. (quoting Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 3385, 82 L.Ed.2d 599 (1984)). However, "[s]uppression is not justified unless the challenged evidence is in some sense the product of illegal governmental activity." Id. ¶ 11 (quoting Segura, 468 U.S. at 815, 104 S.Ct. at 3391). The party seeking to suppress the evidence has the burden "to establish that such evidence was illegally seized." Id. (quoting State v. Rigsbee, 89 S.D. 360, 376, 233 N.W.2d 312, 321 (1975)). This rule has been applied to Fifth and Sixth Amendment violations, as occurred in this case. See Nix v. Williams, 467 U.S. 431, 442, 104 S.Ct. 2501, 2508, 81 L.Ed.2d 377 (1984).
[¶ 22.] We previously determined in the intermediate appeal of the transfer hearing decision that the scope of the examination exceeded McCahren's constitutional rights. Therefore, in order to meet his burden, McCahren needs to initially demonstrate that there is a "factual nexus between the constitutional violation and the challenged evidence" and that the illegality "is at least the `but for' cause of the discovery of the evidence." Heney, 2013 S.D. 77, ¶¶ 11-12, 839 N.W.2d at 562. However, "`but-for causality is only a necessary, not a sufficient, condition for suppression' under the fruit of the poisonous tree doctrine." Id. (quoting Hudson v. Michigan, 547 U.S. 586, 592, 126 S.Ct. 2159, 2164, 165 L.Ed.2d 56 (2006)). "The primary focus of our analysis is `whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" Heney, 2013 S.D. 77, ¶ 12, 839 N.W.2d at 562-63 (quoting Boll, 2002 S.D. 114, ¶ 32, 651 N.W.2d at 719).
[¶ 23.] In its findings of fact on McCahren's motion to suppress T.D.'s statements, the circuit court found: T.D. and McCahren were placed together based on the availability of cells, and the roommate assignment was random; law enforcement had no involvement in placing T.D. in the same cell as McCahren; law enforcement had no contact with T.D. regarding this case prior to T.D.'s placement in the same cell with McCahren; there was no contact between law enforcement and T.D. until one month after T.D. had roomed with McCahren, and that contact occurred when
[¶ 24.] McCahren fails to address how his statements to T.D. satisfy the causal nexus requirement. Although he validly asserts that unconstitutional conduct should be deterred, the results of the constitutional violation (exceeding the scope of the exam), have already been suppressed. The order transferring McCahren to Pennington County was valid; as was the purpose of the psychological evaluation. It was only the scope of the evaluation that we deemed unconstitutional. Therefore, McCahren was properly placed in the juvenile center and randomly assigned a roommate. There is no indication that `but for' the illegal scope of Dr. Scovel's examination McCahren would not have discussed the details of his crime with his roommate.
[¶ 25.] Failing suppression, McCahren asserts that he was denied his constitutional right to cross-examine T.D. because the circuit court refused to allow cross-examination on T.D.'s mental health. The Sixth Amendment to the United States Constitution and Article VI, § 7 of the South Dakota Constitution guarantees an accused the right to confront witnesses. However, "[t]he Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." State v. McKinney, 2005 S.D. 73, ¶ 21, 699 N.W.2d 471, 479 (quoting Kentucky v. Stincer, 482 U.S. 730, 739, 107 S.Ct. 2658, 2664, 96 L.Ed.2d 631, 643 (1987)). "[T]he [circuit] court retains broad discretion concerning the limitation of cross-examination[,] and it will be reversed only when there is a clear showing of abuse of discretion and a showing of prejudice to the defendant." State v. Walton, 1999 S.D. 80, ¶ 25, 600 N.W.2d 524, 530 (quoting State v. Steichen, 1998 S.D. 126, ¶ 37, 588 N.W.2d 870, 878).
[¶ 26.] McCahren contends that "inherent in T.D.'s predispositions and symptoms recognized in his mental illness diagnosis" is his "inability to properly perceive and process events, relay his observations accurately in court, and his motivation to exaggerate, fabricate or lie without concern for the truth or the consequences of his actions for himself or others[.]" McCahren fails to point us to which diagnosis is relevant other than stating that T.D. had "active psychoses at the time he was incarcerated with [McCahren]" and that it was "a central fact prime for discussion and inquiry on cross-examination."
[¶ 27.] McCahren points us to federal decisions that have held, "evidence on mental capacity may be especially probative of the ability to `comprehend, know and correctly relate the truth[.]'" United States v. Lindstrom, 698 F.2d 1154, 1165-66 (11th Cir.1983) (quoting United States v. Partin, 493 F.2d 750, 763-64 (5th Cir. 1974)); United States v. Love, 329 F.3d 981, 985 (8th Cir.2003). However, McCahren's authority is distinguishable. The cases cited involved witnesses with significant and relevant diagnoses that are not at issue here. In Lindstrom, a key witness was diagnosed with schizophrenia, was delusional, and had a history of hallucinations. 698 F.2d at 1161-62. The court explained that "[c]ertain forms of mental disorder have high probative value on the issue of credibility." Id. at 1160. "A psychotic's veracity may be impaired by lack of capacity to observe, correlate or recollect actual events.... A schizophrenic may have difficulty distinguishing fact from fantasy and may have his memory distorted by delusions, hallucinations and paranoid thinking." Id. In Love, the court explained,
[¶ 28.] In this case, the circuit court allowed the defense to attack T.D's credibility through inconsistent, prior testimony and witness testimony. T.D's own father testified that T.D. "lies quite a bit, at least 80 to 90% of the time." After being questioned by defense counsel, T.D. admitted to various crimes of dishonesty, which included stealing people's identities, using credit cards belonging to other people, and stealing property. T.D. admitted that he had a lying problem in the past but testified that he no longer suffered such a problem. He also admitted that he tends to brag and seek attention. The defense impeached T.D. on prior inconsistent statements, and T.D. testified that he lied to Detective Kavanagh about assaulting McCahren immediately upon meeting McCahren at the juvenile facility. T.D. freely admitted that, at the time he reported the conversations he had with McCahren to Agent Kavanagh, he was "still laboring under [the] lying problem." As a result, McCahren "has not established that [the] limitation prejudiced him or that, if the jury [had] been presented with this evidence, it would have had a significantly different impression." See Walton, 1999 S.D. 80, ¶ 27, 600 N.W.2d at 530-31. The jury heard testimony, including from T.D. himself, that T.D. had a problem telling the truth. It had the opportunity to judge T.D.'s credibility, and the circuit court did not abuse its discretion by denying McCahren inquiry into T.D.'s mental health diagnoses. Thus, McCahren was not denied his right to confront witnesses.
[¶ 29.] Next, we address McCahren's contention that statements he made to Officer Waller should have been suppressed. Officer Waller was with Deputy Kyle Cummings en route to a program sponsored by the police department when they responded to the 911 call of a discharged shotgun injuring an individual. He testified that it took about two minutes to get to the reported address. Waller was among the first officers at the scene; Sergeant Walz and Officer Martin arrived separately before Waller and Cummings. He observed officers running across the lawn and two juveniles, later identified as Youngberg and McCahren, standing in the driveway. Waller was directed by Sergeant Walz to speak with the two juveniles. Waller asked the juveniles who the shooter was, and McCahren raised his hand in response. Waller asked McCahren to have a seat in Martin's car. Youngberg sat in Cummings' patrol vehicle with Cummings. Waller proceeded to ask McCahren what had happened. McCahren contends that he was in custody once Waller proceeded to ask questions after McCahren identified himself as the shooter. Therefore, McCahren maintains that Waller did not comply with the parental notification statute SDCL 26-7A-15
[¶ 30.] Individuals subject to a custodial interrogation are entitled to Miranda warnings. See State v. Wright, 2009 S.D. 51, ¶ 19, 768 N.W.2d 512, 520; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We utilize a two-part test when making a custody determination:
Wright, 2009 S.D. 51, ¶ 19, 768 N.W.2d at 520 (quoting State v. Johnson, 2007 S.D. 86, ¶ 22, 739 N.W.2d 1, 9). According to McCahren, any potential threats to the community were extinguished when officers observed the two juveniles on the lawn and McCahren immediately identified himself as the shooter. Therefore, McCahren believes his rights were violated as soon as Officer Waller asked any other questions. This is not the standard by which we determine whether McCahren was in custody and entitled to Miranda warnings.
[¶ 31.] When determining whether McCahren was in custody, the lower court found that McCahren was not searched or handcuffed, and he was allowed to keep his phone and make calls. It further found that Waller did not attempt to elicit a confession; his questions were ones to gain an understanding and determine whether a crime had been committed. The court concluded that McCahren was not in custody. Therefore, his Fifth Amendment rights were not violated nor did the parental notification statute apply.
[¶ 32.] Further, Officer Waller's questions were "general, on-the-scene" questions. "A law enforcement officer is not required to deliver a Miranda warning when his questions constitute `general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process.'" Bowker, 2008 S.D. 61, ¶ 31, 754 N.W.2d at 66 (quoting State v. Bartunek, 323 N.W.2d 121, 124 (S.D.1982)). As we have explained, "[g]eneral on-the-scene questioning and fact gathering is absolutely essential for law enforcement officers to perform their jobs well and to investigate possible crimes." State v. Herting, 2000 S.D. 12, ¶ 10, 604 N.W.2d 863, 865.
Id. (quoting People v. Haugland, 115 Cal.App.3d 248, 171 Cal.Rptr. 237, 241 (1981)). Upon arrival, Officer Waller did not know what had happened beyond the fact that at least one person had been shot. The circumstances of this case demonstrate the type of situation that requires "immediate investigation" to determine whether anyone else may be in danger and how law enforcement should proceed. A quick, general question of "what happened?" allowed Officer Waller to determine whether he "should allow [McCahren] to go about his business or hold him to answer charges." See id. During Waller's conversation with McCahren, Waller explicitly told McCahren that he was not going to jail at that time. See id. Thus, Officer Waller was properly attempting to determine whether a crime had occurred. Consequently, we affirm the circuit court's refusal to suppress McCahren's on-the-scene statements to Officer Waller. Because McCahren was not in custody, his Fifth Amendment rights were not violated and the parental notification statute, SDCL 26-7A-15, did not apply.
[¶ 33.] Lastly, McCahren asks us to remand this case for resentencing on the aggravated-assault conviction. Aggravated assault is a Class 3 felony punishable by a maximum of fifteen years imprisonment and a thirty-thousand dollar fine. SDCL 22-18-1.1; SDCL 22-6-1. The court sentenced McCahren to the maximum fifteen-year sentence for assaulting Youngberg. McCahren asserts that his sentence is cruel and unusual, which is prohibited by the Eighth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment.
[¶ 35.] First we consider the gravity of McCahren's offense — "the offense's relative position on the spectrum of all criminality[.]" State v. Rice, 2016 S.D. 18, ¶ 13, 877 N.W.2d 75. In this case the gravity of McCahren's offense is relatively great on the spectrum of all criminality. He took a shotgun, pointed it in the direction of Youngberg and repeatedly pulled the trigger. According to Youngberg, McCahren loaded the shotgun when it failed to discharge and pulled the trigger again. In McCahren's own words, this was in an attempt to "scare the shit out of" Youngberg. McCahren endangered Youngberg's life and may have killed Youngberg had Williams not been in front of Youngberg. See State v. Garreau, 2015 S.D. 36, ¶ 11, 864 N.W.2d 771, 776 (finding relevant for the gravity inquiry that, but for the officer's vest, defendant inflicted a potentially-life-threatening injury on a law enforcement officer).
[¶ 36.] Next, we consider the harshness of McCahren's penalty — "the penalty's relative position on the spectrum of all permitted punishments." Rice, 2016 S.D. 18, ¶ 13, 877 N.W.2d at 80 (quoting Chipps, 2016 S.D. 8, ¶ 37, 874 N.W.2d at 488). The Legislature has authorized more severe punishments of death (Class A felonies) and mandatory life imprisonment (Class A and Class B felonies). In addition, McCahren will be eligible for parole. See Chipps, 2016 S.D. 8, ¶ 37, 874 N.W.2d at 488 ("The possibility of parole is also considered in judging the harshness of the penalty."). His initial parole eligibility date is in March of 2021.
[¶ 37.] McCahren contends that receiving the maximum sentence allowed for aggravated assault is indicative of gross disproportionality. However, the fact that a defendant receives the "maximum [sentence] permitted by statute for [a] particular offense [is] not relevant to an Eighth Amendment analysis." Rice, 2016 S.D. 18, ¶ 19, 877 N.W.2d 82. Instead, such a fact is relevant in assessing whether the sentencing court abused its discretion. Id. ¶¶ 19, 23, 877 N.W.2d at 83. McCahren also asserts that "the absence of aggravating circumstances and the existence of mitigating qualities of youth illustrate the sentence's gross disproportionality." But "mitigating factors generally are not considered in noncapital cases." Id. ¶ 18 n. 3, 877 N.W.2d at 82. Although, "mitigating qualities of youth" must be considered before a court may impose a life sentence without parole on a juvenile, see State v. Springer, 2014 S.D. 80, ¶ 13, 856 N.W.2d 460, 465-66 (citing Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 2467, 183 L.Ed.2d 407 (2012)), a life sentence is not an authorized punishment for the offense
[¶ 38.] McCahren had sufficient notice that a lesser-included offense instruction on second-degree murder could be given when he was indicted on first-degree murder. The circuit court appropriately limited the defense's cross-examination of one of the State's witnesses. McCahren's constitutional and statutory rights were not violated when the court refused to suppress the statements McCahren made to T.D. or Officer Waller. Finally, McCahren's sentence for aggravated assault is neither cruel and unusual punishment nor an abuse of discretion. We affirm.
[¶ 39.] GILBERTSON, Chief Justice, and HOUWMAN, Circuit Court Judge, concurs.
[¶ 40.] MYREN and SABERS, Circuit Court Judges, concur specially.
[¶ 41.] MYREN, Circuit Court Judge, sitting for ZINTER, Justice, disqualified.
[¶ 42.] HOUWMAN, Circuit Court Judge, sitting for WILBUR, Justice, disqualified.
[¶ 43.] SABERS, Circuit Court Judge, sitting for KERN, Justice, disqualified.
SABERS, Circuit Court Judge (concurring specially).
[¶ 44.] What happened here was wrong in a great many ways. I write separately to discourage litigators from following this path in the future. Nevertheless, I respectfully but reluctantly concur.
[¶ 45.] In oral argument to this Court, defense counsel argued that this is a case about notice. And, indeed, it is. As outlined in the majority opinion, a state statute expressly informs its readers that second-degree murder is a lesser included offense of first-degree murder. SDCL 22-16-20.1. That statute went into effect in 2005. 2005 S.D. Sess. Laws ch. 120, § 436. Our caselaw also makes clear that, although a less-than-perfect fit, second-degree murder satisfies the elements test previously adopted by this Court. See, e.g., State v. Giroux, 2004 S.D. 24, ¶ 7, 676 N.W.2d 139, 142; State v. Hoadley, 2002 S.D. 109, ¶ 64, 651 N.W.2d 249, 264. But the prosecution tried this case, both in and out of the courtroom, as a first-degree murder case. It was never a second-degree murder case.
[¶ 46.] The trial court here was put in a remarkably difficult position by the procedural posture in which the issue arose. As the majority points out, the prosecution first requested the lesser included offense instruction following the close of evidence, just minutes before closing arguments were to be given. This was the very first time the defense or the trial court had heard of this reversal in the prosecution's theory of the case. Had the defense requested a continuance to respond to the newly added charge, the trial court would almost certainly have granted that request. After multiple days of trial, the jury would have been sent away for an indeterminate amount of time, while the court hoped for unfailing adherence to the jurors' oaths of confidentiality — all of this in a highly publicized case. Alternatively, the trial court could have denied the requested instruction, and risked reversal from this Court.
[¶ 47.] Meanwhile, the defense had no obligation to present any evidence. At the close of the prosecution's case, the defense likely reached the same conclusion as did the prosecution — that the record evidence of premeditated murder had fallen short of a conviction. So, the defense responded accordingly. The defense put on no psychiatric testimony — evidence that was arguably relevant to the depraved-mind-theory of the uncharged second-degree murder count.
[¶ 48.] Despite these concerns, I concur. The majority's opinion is well-reasoned and thoroughly and accurately sets forth the settled law of this State. According to that law, what occurred here was constitutionally permissible. It was also unnecessary. Just because we can do something, does not mean that we should. We have many rules in place throughout our system of justice to prevent trial by ambush. I suggest we steer clear of a practice that allows for charging by ambush.
[¶ 49.] MYREN, Circuit Court Judge, joins this special concurrence.
