State v. Bolden

1

2024 S.D. 22

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. MAX BOLDEN, Defendant and Appellant.

No. 30146-a-JMK

Supreme Court of South Dakota

April 17, 2024

ARGUED JANUARY 9, 2024

APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE ROBIN J. HOUWMAN Judge

KRISTI JONES of Dakota Law Firm, Prof. LLC Sioux Falls, South Dakota

MANUEL J. de CASTRO JR Sioux Falls, South Dakota

Attorneys for defendant and appellant.

MARTY J. JACKLEY Attorney General

ERIN E. HANDKE Assistant Attorney General Pierre, South Dakota

Attorneys for plaintiff and appellee.

OPINION

KERN JUSTICE

[¶1.] Max Bolden shot and killed Benjamin Donahue in October 2019 outside a club in Sioux Falls. Bolden was indicted for first-degree murder, second-degree murder, and possession of a firearm by a convicted felon. At trial, Bolden claimed that he shot Donahue in self-defense. At the conclusion of the State's case, and again at the close of the evidence Bolden moved for a judgment of acquittal on the murder charges. The circuit court denied both motions. The jury returned a guilty verdict on the charges of first-degree murder and possession of a firearm by a convicted felon. Bolden appeals his first-degree murder conviction on the grounds of insufficient evidence. We affirm.

Factual and Procedural Background

[¶2.] Although some of the facts are disputed, "we restate the evidence and testimony 'in a light most favorable to the jury's verdict.'" State v. Seidel, 2020 S.D. 73, ¶ 2, 953 N.W.2d 301, 305 (citing State v Huber, 2010 S.D. 63, ¶ 2, 789 N.W.2d 283, 286).

[¶3.] Bolden and Donahue were involved in similar social circles in Sioux Falls, South Dakota, and had a contentious relationship in the months preceding the October 26, 2019, incident. Bolden testified that Donahue sent him a number of threatening text messages accusing him of being involved with the mother of Donahue's child. Bolden also asserted that he had a hostile face-to-face encounter with Donahue during this time. At trial, Bolden and several others testified that a few weeks earlier, Donahue became agitated with a group of individuals-including Bolden-while standing outside Club David, a nightclub in downtown Sioux Falls, and brandished a gun toward the group. Bolden testified that because of this incident he had decided to avoid future contact with Donahue.

[¶4.] In the early afternoon of October 25, 2019, Bolden and his girlfriend, Krista Kruckenberg, took their children to purchase Halloween costumes. After the family finished shopping, they went back to their home and began carving pumpkins. Bolden's brother brought his children over to participate in the activity. Once the pumpkin carving was completed, the adults cleaned up the mess and put the children to bed.

[¶5.] Bolden was invited to Club David to celebrate a friend's birthday that night but declined because he wanted to avoid the risk of an encounter with Donahue. Instead, Bolden, Kruckenberg, and Armika Agic drove to Mitchell to see one of Bolden's friends who had invited him to hang out. They left Sioux Falls around 9:00 that evening, leaving the children at home with Kruckenberg's brother who lived with the couple. The group eventually gathered at Thirsty's, a bar in Mitchell, where they had a couple of drinks. They stayed in Mitchell for a short time before returning to Sioux Falls around midnight.

[¶6.] Bolden, Kruckenberg, and Agic returned to Bolden and Kruckenberg's home in Sioux Falls, where they had additional drinks as they planned to stay in for the remainder of the evening. However, Bolden received a phone call and text messages from a friend who requested that he come to Club David to help resolve a dispute. One of Bolden's friends, Thomas Roberts, was being held at gunpoint in the bathroom at the club. Bolden knew the individual who pointed the gun at Roberts and believed that, because he knew the parties involved and what the altercation was likely about, he could go down to the club and diffuse the situation.

[¶7.] Bolden drove to the club in a white Ford Explorer, accompanied by Kruckenberg and Agic. They arrived around 1:00 a.m. and parked in the parking lot south of the club near the Carnegie building. After Bolden parked the car, he called both Roberts and the friend that had informed him of the altercation, but neither party answered. Bolden felt uneasy about the situation, so Kruckenberg handed Bolden a revolver before he got out of the car. He put the gun in his back right pocket, got out the vehicle, and started walking toward Club David. Bolden saw Roberts come out of the club and he attempted to talk to him, but Roberts waved him off, jumped in his vehicle, and drove away.

[¶8.] Shortly after Bolden had walked across the street to Club David, Donahue pulled into the Carnegie building parking lot and parked his vehicle to the southeast of the vehicle Bolden was driving. Donahue got out of his vehicle and made his way toward the club. While Donahue was walking north toward the club, Bolden was making his way south toward the parking lot, heading in Donahue's direction. As the two men neared each other, Kruckenberg and Agic got out of Bolden's vehicle and followed behind Donahue. At that same time, Darneisha Williams, who was leaving the club, was walking toward the Carnegie building parking lot behind Bolden.

[¶9.] Bolden and Donahue met face-to-face near the north entryway of the parking lot. At this point, Kruckenberg and Agic were approaching the men and were just a few feet away. The two men spoke for roughly ten seconds before Bolden pulled the gun from his back pocket and shot Donahue point blank in the face between the bottom of his nose and the top of his upper lip. Donahue fell to the ground and did not move. After Bolden fired the gun, he jumped back a step and began walking in the direction of his vehicle. As he neared Donahue's body, Bolden bent over and fired a second shot into Donahue's head just above his left ear. The second shot was fired approximately five seconds after the first.

[¶10.] Bolden, Kruckenberg, and Agic walked to their vehicle, got in, and drove out of the parking lot using the east exit, heading south down South Main Avenue. Williams, who saw the entire encounter between Bolden and Donahue from a distance of approximately ten feet or less, called 911 to report the shooting. Because Williams was on probation and prohibited from going into bars, she gave a false name to the dispatcher and left the area.

[¶11.] Cody Nachreiner, an officer with the Sioux Falls Police Department (SFPD), was the first to arrive on scene and located Donahue's body. Officer Mathew Cook arrived next and entered the Carnegie building parking lot through the east entrance. After locating Officer Nachreiner and Donahue, Officer Cook began to administer CPR chest compressions on Donahue. Officer Hector Soto also arrived and helped Officer Cook render aid.

[¶12.] Shortly thereafter, emergency medical services (EMS) personnel arrived on scene and, with the help of law enforcement, moved Donahue's body onto a stretcher. The EMS personnel placed Donahue in the back of the ambulance and performed various medical interventions while transporting Donahue to Avera McKennan Hospital. Despite the efforts of hospital personnel, Donahue died at the hospital. Because of the violent nature of his death, his body was transported to the morgue at Sanford Hospital until an autopsy could be conducted. Dr. Kenneth Snell, a forensic pathologist and the county coroner, later concluded that Donahue's death was caused by a gunshot wound to his head.

[¶13.] Approximately ten to fifteen minutes after the shooting occurred, Anthony Buss, a detective with the SFPD, arrived at the parking lot to help maintain scene security. He also assisted crime lab personnel in photographing and preserving items of evidentiary value in the area. Detective Buss looked for and identified security cameras located near the scene, namely at the intersection of 10th Street and South Main Avenue and several cameras surrounding the Carnegie building. He retrieved security footage from these cameras to aid the investigation. Although Bolden and Donahue were standing beside a vehicle that partially obscured the video footage of the shooting, Detective Buss was able to identify the white Ford Explorer that fled the scene and the color of clothing that the suspect was wearing.

[¶14.] Because many of the witnesses fled the scene after the shooting, Detective Christopher Schoepf, the lead detective on the case, began trying to identify the suspect from the video surveillance recordings. Detective Pat Mertes also helped organize the investigation and went through the video surveillance to try to identify the shooter. Brianna Anderson, a forensic specialist with the SFPD, identified and photographed areas of interest at the scene. Aside from Donahue's body and the surrounding blood and tissue present as a result of the gunshot wounds, law enforcement found a bullet fragment inside Donahue's red stocking hat that was lying on the ground near his head. Notably, a gun was not discovered on or near Donahue.

[¶15.] While the shooting scene was being investigated, Bolden, Kruckenberg, and Agic were driving south and west of where the shooting took place. Eventually, Bolden pulled over in a neighborhood and told Agic that he had to get out of there. He and Kruckenberg got out of the vehicle and fled on foot. Agic moved to the driver's seat, drove the vehicle to her house, and parked it in the garage.

[¶16.] After further investigation, law enforcement identified the suspect as Bolden. He was indicted on November 13, 2019, on charges of first-degree murder (SDCL 22-16-4(1)),...