State v. Absolu

#30353-a-MES
2024 S.D. 66

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

ARNSON ABSOLU, Defendant and Appellant.

****

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

****

THE HONORABLE ROBERT GUSINSKY
Judge

****

TIMOTHY J. RENSCH of
Rensch Law
Rapid City, South Dakota Attorneys for defendant and
appellant.

MARTY J. JACKLEY
Attorney General

MATTHEW W. TEMPLAR
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff and
appellee.

****

ARGUED
APRIL 25, 2024
OPINION FILED 10/30/24
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SALTER, Justice

[¶1.] A jury convicted Arnson Absolu of three counts of first-degree murder.

Absolu moved for a new trial after discovering undisclosed information about a

State witness. The circuit court denied the motion. Absolu appeals, arguing the

court erred when it denied the motion for new trial because, he asserts, the State’s

failure to provide the information was a denial of due process and a violation of the

court’s pretrial discovery order. We affirm.

Factual and Procedural Background

The murders of Ashley Nagy and Charles Red Willow

[¶2.] In the evening hours of August 24, 2020, Rapid City police officers

responded to a call from a Thompson Park area resident who had heard several

gunshots. Once at the park, officers observed a parked Chevrolet Tahoe SUV inside

of which were two individuals with apparent gunshot wounds.

[¶3.] In the passenger seat was a man who would later be identified as

Charles Red Willow. He had suffered multiple gunshot wounds and appeared to be

deceased. A female in the driver seat, later identified as Ashley Nagy, was

breathing but had suffered a traumatic gunshot wound to her head. Emergency

medical responders determined that Nagy was exhibiting what is known as agonal

breathing and could not be saved. 1 As one emergency medical responder grimly

described it, “She was dead, her body just didn’t know it yet.” Law enforcement

officers took immediate action to preserve the crime scene.

1. At trial, a paramedic who responded to the scene described agonal breathing
as not being “conducive to life.” Rather, it is “a reaction from the brain . . .
due to insults to the brain such as hypoxia, hemorrhage, traumatic injury.”
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[¶4.] Detectives began their investigation without any apparent suspects or

witnesses. However, after collecting video surveillance from surrounding homes

and businesses, the detectives were able to identify a dark-colored Chevrolet Malibu

that had driven near Thompson Park. The video showed two males getting out of

the vehicle, walking towards the parked Tahoe, and then running back to the

Malibu. One of the men was African American and appeared to be wearing white

shoes. The other man was Caucasian and was wearing a red shirt.

[¶5.] In the initial phase of the investigation, detectives began to search for

the dark-colored Chevrolet Malibu in the Rapid City area and, on a hunch, they

decided to focus on two rental vehicles that were owned by Casey’s Auto. The

detectives learned that on the morning of the shootings, one of the Malibus had

been rented by a man named Arnson Absolu. Surveillance footage from Casey’s

Auto that morning revealed that Absolu’s appearance was generally consistent with

one of the men depicted in the park video surveillance—an African American male

wearing white shoes. The detectives were also told that the Malibu Absolu rented

was fitted with a global positioning system, or GPS, device that was programmed to

record the vehicle’s location every 12 hours and could also be activated, or “pinged,”

to locate the vehicle in real time.

[¶6.] Detectives learned more about Absolu from interviews with Red

Willow’s associates. Red Willow was a known heroin dealer in the area, and the

detectives quickly concluded that the common link between Red Willow, Nagy, and

Absolu was the local drug trade. Interviews with Red Willow’s associates revealed

that Absolu was from New York and came to Rapid City to sell fentanyl-laced

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heroin, known as “China White,” using local dealers. Red Willow had a reputation

for not paying his debts, and it was rumored that he owed Absolu a substantial

amount of money for drugs and that Absolu had threatened Red Willow because of

the debt.

[¶7.] Shortly after the shootings, it appeared that Absolu had traveled back

to New York in the rented Malibu based upon information relayed by the car’s GPS

tracker. Detectives continued to monitor Absolu’s location along the east coast as

they continued their investigation, which ultimately led them to conclude that

Absolu had murdered Red Willow and Nagy. With the assistance of the New York

City Police Department (NYPD), Absolu was arrested on September 9, 2020, and

transported back to South Dakota by Rapid City Police Department detectives.

[¶8.] In Absolu’s rented Malibu, NYPD officers found a 9mm black semi-

automatic pistol, heroin, and Absolu’s cell phone. Text messages found on Absolu’s

phone revealed he had negotiated for the purchase of the 9mm gun and also a .40

caliber black and silver Smith & Wesson pistol that resembled a handgun later

discovered by a South Dakota School of Mines student in a creek near the Rapid

City fairgrounds. Officers also observed damage to the undercarriage of the rented

Malibu.

The murder of Dakota Zaiser

[¶9.] Detectives believed that the Caucasian male depicted in the park

surveillance footage from the night of the park shootings resembled a man named

Dakota Zaiser. The detectives were familiar with Zaiser and knew that he had been

released from the Pennington County Jail wearing a red Nike t-shirt just hours

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before the shootings. Phone records also showed that Zaiser had made multiple

calls to Red Willow between the time Zaiser was released from jail and when the

shootings occurred.

[¶10.] Zaiser’s mother became concerned about her son’s whereabouts the day

after the shootings and contacted the Rapid City Police Department to report him

missing. She explained that Zaiser maintained daily contact with her, but she had

not heard from him and had been unable to reach him by phone.

[¶11.] During their initial interviews, detectives learned from one of Absolu’s

dealers, Breeze Stock, 2 that around 2 a.m. on August 25, a frantic and sweaty

Absolu FaceTimed her, told her he had hurt somebody, and was cleaning

something. Later that morning, Absolu drove the Malibu to Stock’s apartment to

collect money she owed him for drugs. When she went out to meet Absolu in the

apartment complex parking lot, the trunk of his vehicle was open, and she saw a

blue tub inside. Absolu closed the trunk and asked Stock where he could get some

shovels to bury something. She told detectives that she refused to help Absolu.

[¶12.] Based on this information, detectives obtained surveillance footage of

the parking lot at Stock’s apartment complex. The video confirmed that on the

morning of August 25, Absolu arrived at the apartment complex and parked the

Malibu which remained in the parking lot through the day. In the early morning

hours of August 26, the video showed a man identified as Shamar Bennett arriving

at the complex. He and Absolu looked into the trunk of the Malibu and appeared to

2. Stock testified before the grand jury but passed away prior to trial.
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engage in an animated conversation, after which they left in separate vehicles—

Absolu drove the Malibu, and Bennett drove a different car.

[¶13.] Detectives located Bennett who first told them that the argument they

had observed on the apartment surveillance footage related to Bennett’s request to

purchase heroin from Absolu. Bennett told detectives that there were some bags of

China White in the trunk and that he had shown Absolu a place to conceal the

drugs by driving him out of town. Bennett continued to maintain that he did not

know anything about Zaiser’s whereabouts.

[¶14.] That changed, however, midway through a subsequent interview when

Bennett admitted to knowing where Zaiser’s body was located and also admitted to

helping Absolu conceal it. Approximately one month after Red Willow and Nagy

were shot, Bennett brought detectives to a shallow grave near Sheridan Lake,

where they discovered Zaiser’s remains.

[¶15.] On January 6, 2021, a Pennington County grand jury issued an

indictment charging Absolu with three separate counts of first-degree murder in

violation of SDCL 22-16-4(1). Bennett was one of seven witnesses who testified

before the grand jury. Absolu pled not guilty to all three charges. 3

The trial

[¶16.] The jury trial began on January 9, 2023, and over the course of

approximately three weeks, jurors heard testimony from 49 witnesses, including

law enforcement officers and detectives, former drug dealers, and forensic

3. The State initially viewed this as a capital case, but it ultimately decided not
to pursue the death penalty.
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pathologists. Through these witnesses, the State introduced evidence that placed

Absolu’s cell phone in the area of Thompson Park around the time of the shootings

on August 24. The cell phone location could also be traced to Sheridan Lake on

August 26, and the State presented testimony that Absolu’s rented Malibu was

damaged when he hit a stump near Zaiser’s grave.

[¶17.] The State also introduced evidence of the substantial drug debt Red

Willow owed to Absolu and relevant portions of the surveillance footage detectives

had collected. But of all the witnesses who testified, two were particularly notable

because of their personal interactions with Absolu in the time leading up to and

following the Thompson Park shootings.

[¶18.] The first of these witnesses was Maddie Ziegler, who was a former

heroin dealer and user. She explained that Red Willow introduced her to Absolu,

who she knew as “D.” Ziegler testified that she had become deeply involved in

Absolu’s drug distribution operation. She assisted him with packaging the fentanyl-

laced heroin and then distributing it to retail dealers in the Rapid City area.

Ziegler also explained that Absolu would stay at her apartment when he was in

Rapid City.

[¶19.] Ziegler stated that on the morning prior to the Thompson Park

shootings, Absolu was agitated and brandished a gun she did not know he had been

keeping in a dresser drawer. The two argued, and Absolu accused Ziegler of

“bugging” his rental car. The two ultimately went to Casey’s Auto and replaced the

rental car Absolu had been driving with the Chevrolet Malibu that police had

observed in the surveillance footage. Ziegler did not hear from Absolu the rest of

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the day, which she described as odd because, as one of his dealers, he managed

Ziegler very closely.

[¶20.] In the early morning hours of the day after the Thompson Park

shootings, Ziegler returned to her apartment and immediately noticed that her

armchair and area rug were missing and had been replaced. She explained that her

apartment smelled like bleach and the windows were open. In her bathroom, the

shower curtain was missing and there was a “hole . . . the size of a head[,]” as she

described it, in the wall next to the bathtub. Absolu was in the apartment, and

when she asked him why her chair and rug were missing, he stated that he had

replaced them after he had experienced severe diarrhea and soiled them. When she

asked about the missing shower curtain, his response was simply that he had

purchased a new one. Ziegler had already heard about the Nagy and Red Willow

shootings and had seen a concerned Facebook post from Zaiser’s mother about her

missing son. She suspected Absolu was involved somehow but did not inquire

further.

[¶21.] When asked about Absolu’s demeanor that morning, Ziegler said he

was “very sweet” and “in a good mood[,]” which struck her as unusual since he had

been angry and armed with a gun the previous day. He gave her drugs and left the

apartment. Ziegler testified that she did not see Absolu again, but she later called

him to ask if he had heard from Zaiser. Absolu claimed, at first, to not know Zaiser

and then said he did not know of Zaiser’s whereabouts. Absolu told Ziegler he was

leaving town and not coming back. He had left some drugs with another associate

who, he said, could supply Ziegler. According to Ziegler, Absolu had never before

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left town prior to selling all of the drugs that he had brought with him from New

York.

[¶22.] The other witness to have close contact with Absolu in the time

surrounding the fateful events of August 24 was Bennett. At the outset of his

testimony, Bennett testified that he had signed an immunity agreement with the

State that shielded him from criminal liability in exchange for his truthful

testimony. He also admitted that he had received immunity for testifying before

the grand jury and acknowledged he was a convicted felon.

[¶23.] Bennett testified that in August 2020, he was involved in the Rapid

City drug trade and was introduced to Absolu by a friend. Bennett stated that

Absolu contacted him on August 24 or 25 and asked Bennett to help him dispose of

a chair and a rug. Bennett agreed and, after the chair and rug were gone, he

explained that Absolu “pretty much” told him that he was “trying to find somewhere

to hide a body.”

[¶24.] When the two met later on the morning of August 26 in the apartment

complex parking lot, as depicted in the surveillance video, Absolu opened the trunk

of his rented Malibu, and Bennett saw an arm and leg protruding from a blue tub—

not drugs, as Bennett had initially told detectives. 4 Bennett stated that Absolu told

him the body was Zaiser’s and that he had “thumped him[,]” which Bennett testified

meant that Absolu “admitted to [killing him] without admitting to it.” Bennett

explained he then became upset with Absolu and told him to leave town with the

4. The front of Absolu’s car faced the surveillance camera, and the car’s position
and the open trunk lid prevented a view inside the trunk on the recorded
footage.
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body and not involve anyone else. But, in exchange for drugs and money, Bennett

agreed to help Absolu dispose of the body.

[¶25.] Bennett testified that the two men drove to Sheridan Lake in separate

cars. He stated that Absolu hit a tree stump and caused some damage to the rented

Malibu as he pulled off the side of the road to park his car. Once parked, Bennett

and Absolu carried the blue tub containing Zaiser’s body until the tub broke, and

the body fell out. After carrying the body a little further, the men stopped and

found a low spot where they placed the body. Bennett laid a few branches to cover

Zaiser’s body but returned to the parked cars and left Absolu to finish concealing

the body on his own. About ten minutes later, Absolu returned, and the two men

left in their separate cars. Bennett never spoke to Absolu again.

[¶26.] Bennett also described his interaction with detectives when they

confronted him a few weeks later. He acknowledged that he was not truthful

during this first interview because he was protecting himself and Absolu. Later,

during his second interview, Bennett explained that he decided to tell the truth

after concluding that Absolu would not protect him. He ultimately took detectives

to Zaiser’s body.

[¶27.] Defense counsel’s cross-examination of Bennett focused primarily on

three things. First, defense counsel pressed Bennett on what Absolu actually said

to him about Zaiser, challenging Bennett’s statement that Absolu told Bennett that

he had killed Zaiser. Defense counsel also challenged Bennett’s statement that he

did not receive any benefit from the State, pointing particularly to unrelated

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charges he had faced that were ultimately dismissed. 5 Finally, and most

extensively, defense counsel asked Bennett about the “dozens and dozens and

dozens” of lies he had told detectives during his first interview with them. Defense

counsel questioned Bennett about individual lies in succession, and Bennett

confirmed each was, in fact, a lie he had told.

[¶28.] Absolu’s theory of the case was focused on creating reasonable doubt

that he was the person who killed Red Willow and Nagy. Absolu argued that the

African American male depicted in the Thompson Park surveillance video appeared

to be taller than Zaiser, who was 5’10” and “roughly the same height” as Absolu.

Absolu contrasted this with the fact that Bennett was 6’1” and also an African

American. And as to Zaiser’s murder, Absolu claimed the roles were reversed—

Bennett murdered Zaiser and asked Absolu to help cover it up.

[¶29.] The case was submitted to the jury, and on January 26, 2023, the jury

returned a guilty verdict on all three counts of first-degree murder.

The unrelated infant death and abuse and neglect case

[¶30.] Prior to sentencing, Absolu made a motion to continue and also a

motion that was styled as a “Motion for Review and Preservation of Undisclosed

Primary Witness Information[.]” At a related hearing, Absolu’s defense counsel

explained that, after the trial had concluded, he asked the prosecutor whether

5. Bennett’s statement on cross-examination that he was not receiving any
benefit for his testimony came in response to a leading question and may
have been unexpected in light of Bennett’s earlier testimony about the details
of his immunity agreement. On redirect examination, Bennett clarified that
he was not receiving any additional benefit beyond the immunity agreement.
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Bennett had been involved in the death of an infant, though what may have

prompted the inquiry is not well-developed in the record.

[¶31.] The prosecutor responded by acknowledging that, approximately two

months prior to trial, in November 2022, an infant had died under what appeared to

be non-accidental circumstances while in the care of Bennett and his girlfriend.

The prosecutor learned of the incident and investigation just weeks before trial

began and indicated that Bennett was not a suspect. In light of the request,

however, the prosecutor provided Absolu’s counsel with the relevant police reports,

which, Absolu alleged, contained material that should have been disclosed as part of

the State’s Brady obligation and pursuant to the court’s pretrial discovery order. 6

Absolu asked the court to conduct an in-camera review of a related, but undisclosed,

abuse and neglect (A&N) file, concerning other children affected by the infant’s

death. The State opposed the request, citing the confidential nature of A&N

records.

[¶32.] The circuit court denied the motion to continue Absolu’s sentencing

and sentenced him to three consecutive mandatory life sentences. However, the

court agreed to review in-camera the evidence relating to the infant-death case,

6. In Brady v. Maryland, the United States Supreme Court held that the
defendant’s due process rights were violated when favorable evidence was
withheld by the State. 373 U.S. 83, 87, 83 S. Ct. 1194, 1196−97, 10 L. Ed. 2d
215 (1963). Brady was later extended to impeachment evidence, United
States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481
(1985), and the resulting rule imposes an obligation upon prosecutors to
unilaterally disclose what is now commonly known as Brady material. See
infra ¶ 38.
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including the A&N records, stating the motion was “essentially a precursor to a

motion for a new trial[,]” which Absolu subsequently filed.

[¶33.] After completing its in-camera review, the circuit court denied Absolu’s

motion for a new trial in a memorandum opinion and order. Though it reviewed all

of the material and included it in the record under seal, the court drew a distinction

between the police reports relating to the infant’s death and the A&N records

themselves:

The materials include police investigative records as well as
Abuse and Neglect (A&N) records. The State argues that
records involving A&N proceedings are confidential and are not
accessible except to the attorneys and staff directly involved in
the A&N proceeding. The description provided herein is from
the police investigation. The A&N records rely on the same
police investigative records. While the A&N records offer
opinions and conclusions by Family Service Specialists and the
civil State’s Attorney in charge of A&N cases, for the reasons set
forth below, they are not relevant.

[¶34.] The circuit court’s “not relevant” comment appears to relate to

information indicating that a Department of Social Services (DSS) employee had

described Bennett as a “suspect” in the infant’s death. The court explained that

whether Bennett had been classified as a suspect by DSS was not the critical

inquiry under Brady, which instead focused on the type of information actually

available to the prosecutor. In that regard, the court determined that the police

reports that mention Bennett in connection with the investigation into the infant’s

death should have been provided to Absolu because they were favorable to the

defense under Brady. In the court’s view, this information would have allowed

Absolu to impeach Bennett and suggest to the jury that Bennett had further

motivation to testify in a manner favorable to the State at the trial.

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[¶35.] However, despite concluding the information was Brady material, the

circuit court also found that Absolu was not prejudiced by the State’s failure to

disclose the evidence because Absolu was able to thoroughly cross-examine Bennett

about, among other things, his immunity agreement and his initial lies to

detectives. The court also noted that Bennett’s trial testimony was consistent with

his grand jury testimony, which the court concluded neutralized Absolu’s argument

that Bennett was motivated to lie in an effort to obtain favorable treatment from

the State in the recent infant-death case:

Bennett testified in a manner consistent with his grand jury
testimony . . . . Bennett’s trial testimony was not more favorable
to the State than this grand jury testimony. Bennett provided
his grand jury testimony on January 6, 2021. Therefore, he
could not have been motivated by the events that were about to
occur in November 2022.

(Emphasis added.)

[¶36.] Absolu appeals, arguing the circuit court abused its discretion by

denying his motion for a new trial because the State failed to disclose evidence in

violation of the court’s discovery order and in violation of Brady.

Analysis and Decision

[¶37.] “The Due Process Clause of the Fourteenth Amendment imposes upon

states the requirement to ensure that ‘criminal prosecutions . . . comport with

prevailing notions of fundamental fairness.’” State v. Zephier, 2020 S.D. 54, ¶ 20,

949 N.W.2d 560, 565 (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct.

2528, 2532, 81 L. Ed. 2d 413 (1984)). This includes the requirement that “criminal

defendants be afforded a meaningful opportunity to present a complete defense.”

Id. (citation omitted). “The resulting body of decisional law from the United States

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Supreme Court and this Court exists under a topical heading that ‘might loosely be

called the area of constitutionally guaranteed access to evidence.’” Id. (quoting

Trombetta, 467 U.S. at 485, 104 S. Ct. at 2532).

[¶38.] Included within this area is a prosecutor’s obligation under Brady to

disclose evidence that is “either material to the guilt of the defendant or relevant to

the punishment to be imposed.” Id. ¶ 21 (quoting Trombetta, 467 U.S. at 485, 104

S. Ct. at 2532) (discussing Brady); see United States v. Bagley, 473 U.S. 667, 676,

105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481 (1985) (“Impeachment evidence, however, as

well as exculpatory evidence, falls within the Brady rule.”); see also United States v.

Agurs, 427 U.S. 97, 110, 96 S. Ct. 2392, 2401, 49 L. Ed. 2d 342 (1976) (holding that

prosecutors must disclose exculpatory evidence that would raise a reasonable doubt

about the defendant’s guilt, even in the absence of a specific request). “Whether the

prosecution’s suppression of this type of evidence will lead to a due process violation

that results in a new trial turns on the materiality of the suppressed evidence—not

the good faith or bad faith of the prosecutor.” Zephier, 2020 S.D. 54, ¶ 21, 949

N.W.2d at 565 (citing State v. Birdshead, 2016 S.D. 87, ¶ 18, 888 N.W.2d 209, 215). 7

[¶39.] The United States Supreme Court and our own case law have

identified three components of a Brady violation: “The evidence at issue must be

7. Claims that a defendant’s due process rights have been violated are reviewed
de novo. State v. Apple, 2008 S.D. 120, ¶ 8, 759 N.W.2d 283, 286. We
otherwise review the denial of a motion for a new trial itself for an abuse of
discretion. State v. Timmons, 2022 S.D. 28, ¶ 19, 974 N.W.2d 881, 888. “An
abuse of discretion is a fundamental error of judgment, a choice outside the
range of permissible choices.” State v. Mitchell, 2021 S.D. 46, ¶ 27, 963
N.W.2d 326, 332 (quoting State v. Rice, 2016 S.D. 18, ¶ 23, 877 N.W.2d 75,
83).
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favorable to the accused, either because it is exculpatory, or because it is

impeaching; that evidence must have been suppressed by the State, either willfully

or inadvertently; and prejudice must have ensued.” Birdshead, 2016 S.D. 87, ¶ 18,

888 N.W.2d at 215 (quoting Strickler v. Greene, 527 U.S. 263, 281–82, 119 S. Ct.

1936, 1948, 144 L. Ed. 2d 286 (1999)).

[¶40.] In this case, the State concedes that the suppression element is met

because it did not disclose the information relating to the infant-death

investigation. 8 However, it maintains the evidence was not favorable and, in any

event, its non-disclosure did not prejudice Absolu.

[¶41.] The Eighth Circuit Court of Appeals has held that “[a] witness’s

nebulous expectation of help from the state is not Brady material [because,] absent

evidence that the State communicated an agreement that it would consider

rewarding [a witness’s] testimony, there [is] nothing for the government to disclose.”

Moore-El v. Luebbers, 446 F.3d 890, 900 (8th Cir. 2006) (cleaned up). One might

hope for, or even expect, favorable treatment in exchange for a witness’s testimony.

But without evidence to support it, this hope alone does not implicate Brady under

the attenuated theory that the State is an unwitting participant in a tacit

8. Before the circuit court, the State noted the confidential nature of A&N
investigations and claimed that, despite being told by a law enforcement
officer that an infant had suffered a non-accidental death while in Bennett’s
care, it had no knowledge of the A&N investigation. It is true that A&N
investigations are confidential pursuant to SDCL 26-8A-13, but because the
prosecutor’s office is a single entity, Giglio v. United States, 405 U.S. 150,
154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), information in the possession of
any one prosecutor in the prosecutor’s office is imputed to all others for the
purposes of Brady. Smith v. Sec’y of N.M. Dep’t of Corrs., 50 F.3d 801, 824
(10th Cir. 1995); State v. Etienne, 35 A.3d 523, 549–50 (N.H. 2011); State v.
Williams, 896 A.2d 973, 990 (Md. 2006).
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agreement with a testifying witness that renders all unrelated information about

the witness in its possession subject to compulsory disclosure. Id.; Knox v. Johnson,

224 F.3d 470, 482 (5th Cir. 2000) (holding a unilateral hope for favor is not Brady

material). “[T]here must be some assurance or promise from the prosecution that

gives rise to a mutual understanding or tacit agreement.” Akrawi v. Booker, 572

F.3d 252, 263 (6th Cir. 2009).

[¶42.] Under the circumstances, we question whether the material related to

the infant’s death was even subject to disclosure under Brady. There is no evidence

of any agreement, formal or informal, that Bennett made with the State in

connection to the infant-death case. And any unilateral hope that Bennett may

have had for leniency in the infant-death case was unaccompanied by an objective

basis in fact. Bennett testified at trial that his immunity agreement was the only

benefit he was receiving, or expected to receive, in exchange for his testimony. 9

[¶43.] However, we need not definitively resolve the question of whether the

information was favorable impeachment evidence under Brady because it appears,

in any event, as though it was subject to disclosure under the perceptibly broad

terms of the circuit court’s discovery order, which required the State to disclose the

following:

Any and all consideration or promises of consideration given to
or on behalf of each witness or expected or hoped for by the
witness. “Consideration” means absolutely anything, bargained

9. Notably, Bennett’s immunity agreement with the State relating to his role as
an accessory to the murders at issue in this case excluded immunity for any
crimes of violence. Given this limitation, the suggestion that Bennett was
testifying with the hope of receiving further leniency from the State with
respect to his suspected involvement in the unrelated death of an infant is
even more attenuated.
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for or not, which arguably could be of value or use to the witness
or to person of concern to the witness, including but not limited
to formal or informal, direct or indirect leniency, favorable
treatment or recommendation or other assistance with respect to
any pending or potential criminal, parole, probation, pardon,
clemency, social services matter, civil matter, administrative
matter or other dispute involving the State of South Dakota.

(Emphasis added.) 10

[¶44.] This sweeping language from the discovery order seems to contemplate

that the State would be required to disclose that Bennett may expect or hope for

leniency in the infant-death case, “bargained for or not[.]” The State’s failure to do

so violates this provision of the circuit court’s discovery order. But this

determination does not end our inquiry because we must determine the impact of

the non-disclosure by considering whether it was prejudicial to Absolu. State v.

Krebs, 2006 S.D. 43, ¶ 19, 714 N.W.2d 91, 98 (“[If] a discovery order is violated, the

inquiry is whether the defendant suffered any material prejudice as a result of the

late disclosure.”). 11

[¶45.] We have recently clarified that, to prove prejudice, a defendant must

prove “a reasonable probability that, but for the error, the result of the proceeding

would have been different. In other words, a probability sufficient to undermine

confidence in the outcome.” State v. Richard, 2023 S.D. 71, ¶ 31, 1 N.W.3d 654, 662

10. The State stipulated to the discovery order that was proposed by the defense.

11. The circuit court did not address Absolu’s claim that not disclosing the
material related to the infant’s death violated the court’s discovery order,
perhaps given its determination that this information should have been
disclosed under Brady. However, both parties have addressed the discovery
order issue on appeal, and, under either theory, the critical analysis in this
case relates to prejudice, not disclosure.
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(quoting State v. Carter, 2023 S.D. 67, ¶ 26, 1 N.W.3d 674, 686) (cleaned up). This

test is essentially the same standard used to determine materiality under Brady.

Compare id. (describing the prejudice test), with Birdshead, 2016 S.D. 87, ¶ 18, 888

N.W.2d at 215 (stating that “evidence is material if there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different”); see also United States v. Wilson, 481 F.3d 475, 480 (7th

Cir. 2007) (stating that materiality “is the same thing as prejudice”).

[¶46.] In the context of Brady, failing to disclose impeachment evidence is not

material, or prejudicial, when it “merely furnishes an additional basis on which to

impeach a witness whose credibility has already been shown to be questionable.”

United States v. Amiel, 95 F.3d 135, 145 (2d Cir. 1996) (quoting United States v.

Wong, 78 F.3d 73, 79 (2d Cir. 1996)); see, e.g., Clay v. Bowersox, 367 F.3d 993, 1000

(8th Cir. 2004) (holding the evidence was not material where, in part, the witness’s

credibility had already been attacked); Moore-El, 446 F.3d at 901 (same); Shabazz v.

Artuz, 336 F.3d 154, 166 (2d Cir. 2003) (same). “[I]f the information withheld is

merely cumulative of equally impeaching evidence introduced at trial, so that it

would not have materially increased the jury’s likelihood of discrediting the witness,

it is not material.” United States v. Spinelli, 551 F.3d 159, 165 (2d Cir. 2008); cf.

Amiel, 95 F.3d at 145 (“Evidence of impeachment is material if ‘the witness whose

testimony is attacked supplied the only evidence linking the defendants to the

crime, or where the likely impact on the witness’s credibility would have

undermined a critical element of the prosecution’s case.’” (quoting Wong, 78 F.3d at

79)).

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[¶47.] Absolu asserts the failure to disclose the information regarding the

infant-death investigation was prejudicial. He claims he could have used it to

illuminate Bennett’s bias towards the State which translated into favorable

testimony in the hope of obtaining leniency in the infant-death case. In Absolu’s

view, had he been able to question Bennett using the undisclosed information, there

is a reasonable probability the outcome of the trial would have been different. But

based upon our review of the entire trial record, we cannot accept this argument.

[¶48.] Bennett’s trial testimony was consistent with his testimony before the

grand jury and no more favorable to the State, as the circuit court correctly noted.

Consequently, there is no logical basis for determining that Bennett became

motivated to provide testimony that was adverse to Absolu shortly before trial as a

result of the incident involving the infant’s death that occurred almost two years

after he provided the same testimony to the grand jury.

[¶49.] This is not to say that there was no evidence of Bennett’s motivation to

lie at Absolu’s trial. There was. Bennett received immunity from the State for his

testimony before the grand jury and at trial, and the details of the immunity

agreement were laid bare before the jury along with Bennett’s dishonesty with

detectives, particularly in his first interview.

[¶50.] Absolu acknowledges that he had the opportunity to attack Bennett’s

credibility on cross-examination with this information and by also asking Bennett

about other, unrelated drug charges and a probation violation that had been

brought against him but dismissed during the pendency of the case. Nevertheless,

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Absolu contends that “[t]he fact that he had not been charged in this child’s death

would have been the straw that broke the camel’s back.”

[¶51.] We believe Absolu overstates the significance of this evidence in two

respects. First, the information was not fundamentally different from the other

impeachment evidence Absolu used effectively at trial. The idea that Bennett had a

motive to lie because of his immunity agreement that protected him from actual

criminal jeopardy for assisting Absolu by disposing of Zaiser’s body and lying to the

police seems like a more direct and compelling form of impeachment than the

attenuated claim that Bennett could potentially receive favorable treatment for a

recent, unrelated infant-death investigation that had apparently not concluded. It

seems unlikely the jury would discredit Bennett as a witness based on an inchoate

hope for leniency in the infant-death case if the jury did not already discredit him

based on his actual immunity agreement with the State for his conduct in this case.

[¶52.] Presumably, Absolu would have used the undisclosed information as

he did with the information that Bennett’s unrelated drug charge and probation

violation cases had been dismissed. For these, Absolu impeached Bennett, without

objection, using questions suggesting they were further evidence of favorable

treatment beyond the immunity agreement. 12 But once he was confronted with the

prospect that he was testifying in the hope of obtaining favor with the State in the

recent infant-death case, any utility in the voluminous information relating to the

12. Bennett denied that his testimony had anything to do with the dismissal of
his drug charge and probation violation cases. On redirect examination, he
testified that both were dismissed as part of his successful completion of a
court-approved probationary diversion program.

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police investigation and the A&N records would have been at an end. 13 However,

Absolu’s argument seems to contemplate a more prominent use for this evidence,

which prompts our second observation regarding his overestimation of the infant-

death information.

[¶53.] The use of information from the A&N investigation would have been

significantly restricted by the rules of evidence. Although Absolu acknowledges, for

the most part, that the undisclosed information implicated an impeachment theory,

not an exculpatory theory, he also suggests that the evidence would have assisted

him in his argument that the taller Bennett—not Absolu—was depicted in the

Thompson Park surveillance video. 14 This evidence seems less related to

impeachment and more an effort to claim that Bennett killed the infant, making it

more likely that he was also involved in the Thompson Park shootings. See State v.

Little Long, 2021 S.D. 38, ¶ 38, 962 N.W.2d 237, 251 (stating that “[i]mpeachment

evidence is evidence introduced into the record for the limited purpose of attacking

a witness’s credibility[,]” whereas substantive evidence is admitted for the truth of a

proposition). But any such use would be contrary to SDCL 19-19-404(b) because

there is no identified “non-character” purpose for which to offer the information.

See SDCL 19-19-404(b) (limiting exceptions to other acts evidence to non-character

13. For this reason, our review of the sealed material was not that helpful to our
analysis. The voluminous material cannot be used to prove Bennett is
responsible for the infant’s murder; at most, it would only ever be used to
suggest Bennett was motivated to lie.

14. In his brief, Absolu states, “A reasonable doubt exists for a witness in a
murder case and his credibility when he is facing the possibility of his own
prosecution for another murder.”
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purposes such as motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, and lack of accident).

[¶54.] Beyond this, the investigative material appears ill-suited to admission

under the impeachment rules. Bennett had not been charged in connection with the

infant’s death, much less convicted. See SDCL 19-19-609 (restricting impeachment

to a criminal conviction). And extrinsic evidence is generally not permitted for

impeachment under SDCL 19-19-608. Notably, Absolu did not ask Bennett if he

was depicted with Zaiser in the Thompson Park surveillance video.

[¶55.] Other considerations also support the view that not disclosing

information about the infant-death investigation did not prejudice Absolu. Even

without the evidence, Absolu was able to develop his defense that Bennett killed

Red Willow, Nagy, and Zaiser. 15

[¶56.] And the State’s case was strong. Bennett’s testimony was corroborated

by other evidence, including Ziegler’s testimony that Absolu had hastily disposed of

the rug and chair from her apartment, photographs that revealed damage to

Absolu’s rented Malibu that were consistent with hitting a tree stump, and the

apartment surveillance footage depicting Absolu showing Bennett something in the

trunk of his car that prompted an argument between the two.

15. The State contends that Absolu’s claim that Bennett was the murderer
violated the circuit court’s discovery order requiring disclosure of third-party
perpetrator evidence. Absolu claims that the arguments he made were
simply comments in response to the State’s case-in-chief. Regardless, as
Absolu points out, the State made no objection at trial, and the issue is not
before us on appeal.
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[¶57.] In addition, the State presented photographs found on Absolu’s phone

of a .40 caliber Smith & Wesson gun that were consistent with the .40 caliber Smith

& Wesson gun found in an area creek. Also found on Absolu’s phone were images

saved from internet searches on how to make lye, a cleaning agent that can also be

used to dissolve tissue. Further, Absolu was seen on surveillance video from

Casey’s Auto the morning of the Thompson Park shootings renting the Malibu that

appears to be depicted in the Thompson Park surveillance footage. And even if

Absolu’s identification in this video was not certain, he is unquestionably driving

the Malibu in the apartment surveillance video when he meets up with Bennett

who is driving a different car.

[¶58.] Also, evidence relating to the location of Absolu’s cell phone and the

GPS-equipped Malibu corresponded to the areas of Thompson Park at the time of

the shootings and to Sheridan Lake around the time it appears that Zaiser’s body

was placed there in a shallow grave. And lastly, Absolu did not challenge his

involvement in the Rapid City drug trade, which explained his motive to kill Red

Willow—a drug debt—and Nagy and Zaiser—as witnesses.

Conclusion

[¶59.] We conclude that, although the broad language of the circuit court’s

discovery order would include at least some of the information relating to Bennett’s

involvement in the infant-death investigation, Absolu cannot prove he was

prejudiced by the State’s failure to disclose it. Therefore, the circuit court did not

err when it denied Absolu’s motion for a new trial.

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[¶60.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN,

Justices, concur.

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