Motions filed as Fallon homicide investigation continues

Prosecutors have filed an affidavit in support of amended charges against one of the defendants in a Fallon homicide case. Meanwhile, the defense in the case has filed a motion to dismiss for lack of probable cause.

The investigation into the death of Fallon resident Isaac Carrier is ongoing, with attorneys currently reviewing the first round of findings.

A bond hearing for one of the defendants in the case, Jake Burghduff, was postponed earlier in March as his representatives requested more time to look over the new information coming in.

Carrier was found dead in his apartment in Fallon after a fire that occurred on Jan. 23. Through the ensuing investigation, two South Dakota men were arrested and charged in connection to Carrier's death and the fire. Burghduff was arrested on Feb. 7 and charged with one count of arson and one count of fabricating or tampering with physical evidence, both felonies, while Sterling Brown was arrested on Feb. 8 and charged with one count of deliberate homicide and one count of arson, both felonies.

Both men pleaded not guilty to their respective charges during their separate initial appearances in Seventh Judicial District Court in Glendive on Feb. 21. Bond hearings were set for both, with Burghduff's being set for March 20 while Brown's hearing was scheduled for April 11.

It is alleged that Burghduff and Brown drove to Fallon on the night of Jan. 23 while Brown had the intent to kill Carrier and the fire that destroyed his apartment was started in order to destroy evidence.

Brown is married to Carrier's ex-wife, Katie Bivens, a former agriculture instructor at Dawson Community College, who was engaged in a "high conflict" custody battle with Carrier over their young son. The situation has resulted in altercations between Carrier and Brown previously, including at least one altercation that turned physically violent, according to court documents.

The night Carrier was killed, Brown met up with Burghduff, his friend, at a bar in Ludlow, S.D. From there, the two claimed they drove around several back roads while drinking. Brown denied ever going to Fallon that night while Burghduff has told investigators they did go to Fallon in a Feb. 7 interview with the Department of Criminal Investigations in Spearfish, S.D, according to court documents.

Special Deputy County Attorneys Dan Guzynski and Michael Gee and Prairie County Attorney Dan Rice, the prosecutors in the case, support amending the charges against Burghduff to include one additional count of deliberate homicide based on information received through the first round of discovery in the case.

The affidavit in support of amended charges states that during the initial investigation, Burghduff's interview with DCI indicated that on the night of Jan. 23 when he was driving around with Brown, he saw Brown possessed a firearm and that he knew they were traveling to Carrier's residence but did not know if Brown intended on using the gun. The affidavit states that on March 10, the State attorneys received a draft review and transcript of Burghduff's interview that indicated he did actually know what Brown intended to do.

Court documents state Burghduff said Brown did not explicitly say what he was planning to do, but said he was going to "take care of" Carrier and ensure his son would not be returned to his custody. Carrier was killed a couple of days prior to a custody hearing between Carrier and Bivens.

Burghduff was asked by law enforcement if he tried to talk Brown out of what he intended to do, to which Burghduff stated that Brown had made his decision and it was likely his mind could not be changed.

"His mind was pretty well set and, not too easy to change Sterling's mind if he ... his mind is set, so. I just sat there and kept drinking," he said during his interview, according to court documents.

On March 30, Burghduff's defense attorneys Hailey Forcella and Michael Haase filed a motion to dismiss the amended charges for lack of probable cause. They argue that Burghduff holds no legal accountability for Brown's crimes, saying he did not "solicit, aid, abet or in any way facilitate" crimes Brown is alleged to have committed.

Citing prior Supreme Court holdings, the defense argues that the charges should be dismissed on three points: that "knowledge that a crime is about to be committed does not make one an accomplice," that "failure to disapprove or oppose another's commission of an offense is insufficient to sustain an accountability charge" and that "mere presence at the scene of a crime does not establish criminal responsibility."

The prosecution filed an answer brief shortly after the defense made its motion, noting that motioning to dismiss before the court had accepted the amended charges was improper court procedure. The answer brief states that the prosecution is not even required to notify the defense before the charges are accepted, but it did in this case inadvertently.

"Though the State did provide notice, it was inadvertent, and that fact does not change the nature of charging documents - they are ex parte by design. There is no authority for a defendant to challenge the sufficiency of probable cause before the court grants leave. There certainly is no authority to dismiss the charges with prejudice utilizing the approach advanced by the Defendant here," the prosecution writes.

The state goes on to say that if the court accepts the amended charges, the parties can debate the dismissal motion then, or if the state does not accept the charges, then the case proceeds on the current charges.

A ruling on either motion had not been made as of March 30. A new bond hearing for Burghduff has also not been scheduled. According to Dawson County records, both men are still being held at the Dawson County Correctional Facility.