State v. Absolu

1

2024 S.D. 66

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. ARNSON ABSOLU, Defendant and Appellant.

No. 30353-a-MES

Supreme Court of South Dakota

October 30, 2024

Argued April 25, 2024

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.

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.

[¶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 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 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 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 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...