STATE OF SOUTH DAKOTA, Plaintiff and Appellant, v. NATHAN ANTUNA, Defendant and Appellee.
#30327-r-MES
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
OPINION FILED 12/11/24
2024 S.D. 78
APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT BRULE COUNTY, SOUTH DAKOTA. THE HONORABLE CHRIS GILES, Judge. CONSIDERED ON BRIEFS MARCH 20, 2024. REASSIGNED OCTOBER 8, 2024.
JOHN R. MURPHY, Rapid City, South Dakota, Attorney for defendant and appellee.
[¶1.] In February 2022, a Brule County grand jury returned an indictment charging Nathan Antuna with third-degree rape, alleged to have occurred in August 2016. Antuna sought an order requiring the State to obtain information related to any mental health treatment records of the victim, K.B. The State objected, stating it had no such records in its possession, nor did it know if any existed. Following a hearing, the circuit court entered an order directing the State to determine whether such records existed and, if so, provide them to the court for an in-camera review. The State, on behalf of K.B., notified the court that K.B. was asserting her rights under Marsy‘s Law. In turn, Antuna served a subpoena duces tecum on K.B. seeking the same records, which the State moved to quash. The court did not rule on the motion to quash but, instead, ordered the State to speak with K.B. to investigate whether any mental health records existed, obtain any records by subpoena, and provide them to the court for an in-camera inspection. The State filed a petition for an intermediate appeal, which we granted. We now reverse the circuit court‘s order and direct the court to enter an order granting the motion to quash.
Factual and Procedural Background1
[¶2.] In August 2016, K.B. and a friend visited a local bar in Chamberlain where they met a group of men, including Antuna, in town for work. K.B.‘s friend
[¶3.] That same day, law enforcement interviewed the men from the group, including Antuna. Antuna confirmed meeting K.B. and drinking with her at the bar but denied having any sexual contact with her. Based on the denials of the men during their interviews and K.B.‘s own doubt that intercourse occurred, law enforcement did not collect DNA samples from the men for comparison. Nonetheless, K.B.‘s vaginal swabs ultimately tested positive for the presence of sperm, but by the time law enforcement received these results, the men had left the area.
[¶4.] In September 2021, however, the state crime lab conducted a periodic search of the Combined DNA Index System (CODIS) and matched DNA from sperm cell samples taken from K.B.‘s vaginal swabs to Antuna‘s DNA.2 Based on this preliminary information, law enforcement procured a search warrant for a known sample of Antuna‘s DNA. Antuna‘s known DNA sample was later obtained and
[¶5.] In February 2022, a Brule County grand jury returned an indictment charging Antuna for third-degree rape under the theory that K.B. was “incapable of giving consent because of any intoxicating, narcotic, or anesthetic agent or hypnosis[.]”
- “disclose all medical reports related K.B.‘s physical and/or mental condition between August 2, 2016, and the present that relate to the allegations made in this criminal case;”
- “obtain from [K.B.] the names of all counselors, therapists, or other mental health treatment providers that she has conferred with regarding the allegations made in this case . . . ; and,”
- “obtain all records from the providers identified [above] and to release them to defense counsel subject to a protective order . . . .”
[¶6.] Antuna claimed he has a constitutional right to disclosure of the records by virtue of his right of confrontation and the due process right described in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).3
[¶7.] The State objected, asserting that K.B.‘s mental health records, if any, were not within its possession, custody, or control. Additionally, the State maintained that neither the constitutional rights nor discovery rights cited by Antuna “requir[ed] the State to gather materials on behalf of [Antuna] for discovery purposes.”
[¶8.] At a September 2022 hearing, Antuna expressed concern that the State “only intend[ed] to provide matters that are in its possession.” He contended that ”Brady and its progeny don‘t create a loophole for the State to avoid disclosure . . . by not taking them into their possession.” Further, Antuna noted that, under
[¶9.] The State acknowledged its obligation to comply with discovery statutes and Brady, but it asserted it was unaware of the existence of any counseling and mental health records for K.B. In the State‘s view, neither
[¶10.] In a September 26, 2022 order, the circuit court directed the State to:
- make inquiries with K.B. as to whether she has received any mental health, counseling, or treatment since August 2, 2016, and ascertain where or from whom such services were provided;
- attempt to obtain these records from the providers with K.B.‘s assistance;
- if such records are received by the State, for the State to provide them to the [c]ourt for its in camera review; and,
- if K.B. refuses to cooperate with the State or objects to the disclosure of the records to the [c]ourt, for the State to notify the [c]ourt so that further proceedings may be considered.
Antuna did not serve the State with a notice of entry regarding the court‘s September 26 order.
[¶11.] On November 29, 2022, the State notified the circuit court that K.B. was asserting her constitutional rights under Marsy‘s Law, including the right to privacy and its constituent right to refuse a “discovery request[.]”
[¶12.] In light of K.B.‘s assertion of rights, the circuit court scheduled a second hearing to address how to proceed. In the interim, Antuna served a subpoena duces tecum upon K.B. seeking the same treatment records. The State moved to quash the subpoena restating its earlier arguments and also asserting that the information was not subject to disclosure through a subpoena. The State
[¶13.] At the second hearing, the circuit court declined to rule on the State‘s motion to quash or apply the Nixon factors. Instead, it stated that it must first “ascertain whether or not there are even any relevant records” before determining the details of disclosure and conducting an in-camera review. The court initially proposed scheduling a hearing at which K.B. would appear pursuant to a subpoena to answer under oath whether she had seen any counselors:
We‘re going to have to schedule a hearing. K.B. is going to have to be subpoenaed to appear at that hearing. And I think the questions to K.B. would be: Have you seen any counselors in the last five or six years since this alleged incident took place? If she says no, we‘re done, and that line of discovery is over with. If she says yes, then I think she can be asked who and where and the time frames because then those records are discoverable for in camera inspection.
Now, I think the subpoenas can come from the defendant directing the material be turned directly over to the Court to protect K.B.‘s rights and privacy.
[¶14.] After further discussions with the parties, the circuit court ultimately altered its plan to eliminate the requirement for K.B. to appear to disclose whether she had received counseling or mental health treatment. In its written March 9, 2023 order, the court directed the State to assist K.B. in producing an affidavit stating whether she received counseling or mental health treatment. If K.B. indicated that she had received this treatment, the court instructed the State to subpoena any related records in order to provide them to the court for its review in-
[¶15.] Antuna filed a motion to dismiss the petition for discretionary appeal, arguing it was not timely. See
Analysis and Decision
[¶16.] The circuit court‘s March 2023 order cited “Mr. Antuna‘s confrontation, due process, and discovery rights [under
[¶17.] The rule originally stated in Brady, and calibrated in a succession of later cases, imposes an obligation upon prosecutors to disclose information to the defense that is either exculpatory or has impeachment value. See Strickler v. Greene, 527 U.S. 263, 280–81, 119 S. Ct. 1936, 1948, 144 L. Ed. 2d 286 (1999) (tracing the development of the Brady rule). A prosecutor‘s duty under Brady is a solemn one, rooted in due process and transcending subjective good faith. See State v. Absolu, 2024 S.D. 66, ¶¶ 37–39, ___ N.W.3d ___ (discussing Brady). For this reason, prosecutors cannot view information in their possession parochially but must meet their obligation to “learn of any favorable evidence known to the others acting on the government‘s behalf in [the] case, including the police.” Erickson v. Weber, 2008 S.D. 30, ¶ 18, 748 N.W.2d 739, 745 (quoting Strickler, 527 U.S. at 281, 119 S. Ct. at 1948).
[¶18.] There is nothing here that implicates Brady, at least not at this point. Brady‘s command is stern, to be sure, but it does not require prosecutors to investigate defense theories. Indeed, we have held precisely that.
[¶19.] In State v. Erickson, 525 N.W.2d 703 (S.D. 1994), the defendant was charged with sexual contact with a child and “filed a motion for discovery of names and addresses of all physicians or counselors with whom the victim may have
[¶20.] We affirmed the circuit court‘s decision which limited the prosecutor‘s disclosure, under the circumstances, to “copies of any counselors’ reports the State had obtained or may subsequently obtain . . . [and] . . . any releases of information signed by the victim.” Id. (emphasis added). On general principles, the circuit court recognized that “the victim had a right to consult with counselors and/or physicians in private.” Id. We stated our reasoning in the following terms:
There is no evidence in the present case that the prosecution ever had the information requested by [the defendant]. [The defendant] himself did not know whether such information existed. Consequently, the prosecution could not suppress this evidence. Further, while the State cannot suppress evidence favorable to a defendant, it is not the state‘s duty to conduct a discovery examination for a defendant. Brady does not impose on the prosecution a general duty to help the defense find witnesses who might be favorable to the defendant. Brady clearly does not impose an affirmative duty upon the government to take action to discover information which it does not possess.
Id. (cleaned up).
[¶21.] The same analysis applies here. The Brady rule is truly not a discovery tool, and the circuit court erred by regarding it as one. Properly viewed, the Brady rule is a due process standard imposed, in the first instance, upon
The right of confrontation
[¶22.] Nor is the Sixth Amendment right of confrontation a discovery rule. It is, instead, a trial right guaranteed to a criminal defendant. The Supreme Court recognized as much in Pennsylvania v. Ritchie, 480 U.S. 39, 52–53, 107 S. Ct. 989, 999, 94 L. Ed. 2d 40 (1987), and we have as well:
The Ritchie Court held that the Confrontation Clause does not create “a constitutionally compelled rule of pretrial discovery.” Id. at 52, 107 S. Ct. at 999. Instead, it affords criminal defendants two specific protections: “the right physically to face those who testify against him, and the right to conduct cross-examination.” Id. at 51, 107 S. Ct. at 998.
Milstead v. Smith, 2016 S.D. 55, ¶ 12, 883 N.W.2d 711, 717.
[¶23.] We cited this same rule in State v. Karlen, 1999 S.D. 12, 589 N.W.2d 594, where we found the existence of a confrontation clause violation after the defendant had been convicted of rape and sexual contact. We held the defendant
[¶24.] But Karlen cannot be read to authorize pretrial discovery to determine whether a broad class of information exists at all. The records in Karlen were known, and there was also evidence that the victim had related differing accounts of the events in question to third parties outside of the counseling setting.
[¶25.] Neither can Karlen be used to universally authorize an in-camera inspection of subpoenaed records under the auspices of the Sixth Amendment. Instead, we simply determined in Karlen that the in-camera procedure was an appropriate means of balancing the victim‘s general privacy interests with the defendant‘s right of confrontation for unprivileged counseling records whose existence was known—circumstances that are starkly at odds with those we confront in this appeal.
SDCL 23A-13-4
[¶26.] Unlike Brady or the confrontation clause,
Upon written request of a defendant, the prosecuting attorney shall permit a defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody, or control of the prosecuting attorney, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney, and which are material to the preparation of the defense or are intended for use by a prosecuting attorney as evidence in chief at the trial.
(Emphasis added.)
[¶27.] By its plain terms,
[¶28.] In sum, then, none of the bases identified by the circuit court were sufficient, alone or in concert, to support the court‘s decision to require the State to ask K.B. about the existence of counseling records. The court should have simply resolved the motion to quash before it under the Nixon analysis we have adopted and applied in our previous decisions.
[¶29.] In our recent opinion in State v. Waldner, 2024 S.D. 67, ___ N.W.3d ___, we held that a victim does not have an absolute right to privacy under Marsy‘s Law. That is to say, information relating to a victim may be subject to production under a subpoena issued pursuant to
[¶30.] The determination of whether information from a victim is subject to production through a subpoena is guided by the three Nixon factors, or “hurdles,” which must be established by the party seeking production: 1) relevancy, 2) admissibility, and 3) specificity with regard to the information requested. See Waldner, 2024 S.D. 67, ¶¶ 53–60, ___ N.W.3d ___ (applying factors from Nixon, 418 U.S. at 699, 94 S. Ct. at 3103); see also Milstead, 2016 S.D. 56, ¶ 20, 883 N.W.2d at 733–734 (adopting the Nixon test).
[¶31.] On the record before us, Antuna‘s subpoena falls patently short of the mark for any of these three areas of inquiry. The failure of proof under Nixon is self-evident; Antuna does not know if K.B. has even received counseling treatment as a result of the rape charged in the indictment. In the absence of this critical information, no court could begin to assess relevancy, admissibility, or specificity without asking instinctively, “of what?”
[¶32.] For this reason, we reverse the circuit court‘s order directing the State to compel K.B.‘s response about the existence of counseling records with the additional requirements to subpoena them and furnish them to the court for an in-
[¶33.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN, Justices, concur.