State v. Bawdon

(4)A party surmise that a prevail will not dangerous bors a condition. springs Law upon trial is grant not sufficient basis to reasoning. Reasoning springs from a the motion on issues which are not sense of what is wrong. sham, shown to be frivolous or so unsub- is not reasonable for an owner or stantial it be obvious it would be possessor of land to somebody invite onto try futile to them. Summary judg- property escape liability, when, and all ment is remedy an extreme and should but for a inspection, reasonable he could only be awarded when the truth is clear dangerous discover a condition thereby and and touching reasonable doubts the exist- injury avoid Again, an invitee. as I did genuine ence of a issue as to material Mortenson, 349 N.W.2d at I cite against fact should be resolved the mov- (Second) (1965): Restatement of Torts § (6) Where, however, ant. genuine is- possessor A of land is subject to liabili- sue of fact exists it is looked ty physical for harm caused to his invi- favor and is particularly adaptable to ex- if, tees a condition on the land but pose sham claims and defenses. if, (footnotes Id. at 157 N.W.2d (a) knows or the exercise of reason- omitted). There no material issues able care condition, would discover the fact, the trial court properly awarded a and should realize that it involves an summary judgment Appellee. unreasonable risk of harm to such invi- tees, and (b) expect should they will not WUEST, JJ„ HERTZ, MORGAN and discover or danger, realize the or will Judge Circuit acting as a protect it, fail to against themselves Justice, concur. HENDERSON, J., specially. concurs (c) fails to exercise reasonable care to SABERS, J., having been a member protect against them danger. of the Court at the time this action was Court, submitted to the participate. did not

HENDERSON, (concurring spe- Justice

cially). case,

To understand this the reader must

appreciate majority minority opin-

ions in Mortenson Braley, Dakota, STATE of South Plaintiff Mortenson, footpad rubber anti-skid Appellee, missing from the ladder. It could reasonably inspected. Here,

have been however, there was a foot of covering dirt BAWDON, Jesse Harold Defendant the well and it reasonably could not have Appellant. inspected. Therefore, been concur No. 14829. decision Court, hue to thought my content in dissent in Morten Supreme Court of South Dakota. son, 349 N.W.2d at 446. Stenholtz v. Mo Argued Sept. 1985. dica, should be expanded explained my dissent in April Decided Certainly, Mortenson. it is reasonable that reasonably inspect owner of land should property safety when he invites the

public onto his land to do business with so, Especially

them. is this where he har- Moreno, Gen., Atty. A. Asst.

Mark Pierre, plaintiff appellee; Mark V. Gen., Pierre, Meierhenry, Atty. on brief. Richard Braithwaite of Braithwaite Law Offices, Falls, ap- for defendant and Sioux pellant.

MORGAN, Justice. (Bawdon)

Defendant Bawdon Jesse first-degree rape, convicted of SDCL 22- victim, 22-1(4), involving a six-year-old A.K., was left Bawdon’s care who twenty a period mother for of about min- affirm. utes. We On Bawdon at the October approxi- home A.K. her mother. At p.m., a mately 11:30 friend mother’s home, leaving sleeping mother left the two Approxi- in the care of Bawdon. children later, twenty fifteen minutes mately and friend returned. After enter- mother home, ing mother noticed that A.K. was bed, light not in that the in the bath- found on. Mother in and room was walked toilet, sitting Bawdon A.K. appeared nerv- kneeling beside her. A.K. crying. Mother’s friend ous and had been explain going Bawdon to what was asked go had to on. He stated that A.K. taking and he was her. bathroom wiping nervous and after then became hand, off his appeared to be what blood A.K. quickly left house. Mother asked said Bawdon hurt happened, what and she her, fingers “put had down and that he the bed- carried there.” Mother noticed blood room, and friend where she approximately At genital area. on A.K.’s a.m., taken to the 12:30 A.K. was then Department A hospital by police officer. caseworker, Ella Keen of Social Services (Goldsmith), called after the Goldsmith examination, and arrived physical child’s 2:15 hospital approximately a.m. raises two issues on ap- basic (1) peal: brought trial court erred in along admitting The caseworker anatomical- hearsay statements in his trial and ly explain de- correct dolls asked A.K. prived him of his constitutional happened. what had A.K. identified an confrontation; court im- Bawdon, adult male and a female doll posed unconstitutionally impermissible agitated, herself. child doll as A.K. was upon him in it longer that was a story the explained to Goldsmith and prison term previously than he had been Department Huron Police Officer Jeff plea sentenced to under the ar- (Trandal) by putting Trandal adult the male rangement. doll’s hand into the crotch of the female child first regarding doll. We examine the issue admission the statements made to Gold- by The child was examined Dr. Mark Trandal, smith and who were named in the (Dr. Mogan Mogan), who testified that pretrial suppression. motion for upon he found blood in examination dried reviewing When the admission of evi- area, genital along A.K.’s with traumatized dence, this court will disturb the decision of hymel and torn tissue. He testified also court showing the trial injury type that an of the A.K. suffered Percy, abuse discretion. State penetration gen- was with consistent (1962) I). (Percy S.D. examination, ital area. In the course of his Wedemann, also State N.W.2d 112 Mogan Dr. A.K. if asked someone had genital region. respond- touched her The trial court admitted the nodding affirmatively. ed state ments under the excep excited utterance 11, 1988, On October Bawdon was rule, the hearsay tion to SDCL 19-16-6. charged rape degree. in the first He has held such This court that statements plea initially guilty. entered a of not Fol- strictly are admissible even if not contem lowing arrangement, plea bargaining exciting poraneous with the cause. Percy plea changed Bawdon and in I, supra. inquiry “The critical whether return the State recommended a sentence they were made while [the declarations] twenty years. not to exceed trial court declarant was still under the influence of accepted plea and sentenced Bawdon experience.” Id., S.D. at twenty years penitentiary. in the state I, at 102. In the court Percy N.W.2d noted subsequently plea by “ attacked this age that the victim is of an as to ‘[w]here granted. writ of habeas which was improbable her utterance render bound was then over to the Beadle premeditated and its deliberate effect County Sheriff to await Prior to trial. nearly contempo utterance need not be so suppress Bawdon moved to certain with the act as in the case of an raneous ” hearsay, referring statements as to a mo- person.’ Id., quoting older tion filed before initial which McFall, S.D. N.W.2d asking, named numerous individuals and assessing whether 301-302 suppression hearsay addition to of- qualifies statement under excited utter persons, suppression fered those exception, elapsed ance “the time be hearsay offered mother and friend. the event statement is a tween and the motion, judge rejected The trial Bawdon’s considered, to be not determina factor claiming the hearsay, all in- Id. Each be determined tive.” case must A.K., volved statements actions of surrounding circumstances ex- admissible under excited utterance Percy, utterance. Id. S.D. ception. fur- 519, 525, (Percy SDCL 19-16-5. The court “ II), ther noted that the actions conduct of court noted that utterance ‘[t]he hospital hearsay A.K. at the were has been time must have been there before i.e., misrepresent, while testimony. were admissible as observation contrive supposed suppress. scope He claims that the may excitement of the the nervous dominate_’” motion, origi- (Emphasis hearing, as noted at the motion still to nal.) suppress was to statements to all third parties. lacking find his We contention II, upheld the admis- Percy this court credence, subsequently Bawdon did file five-year-old made sion of statement suppress testimony specifically motion approx- his parents victim of a sex crime to of A.K.’s mother mother’s friend. two hours after the al- imately to three object Bawdon did at trial and the trial leged sex crime occurred. There was no court determined that actions of A.K. opinion that the victim evidence hospital, which would include the Instead, upset. the court stated highly, nodding affirmative of her head in re- boy that “the made the declarations sponse Mogan’s question, to Dr. were not parents to his such stress question respect, hearsay. In this the trial court in evi- to warrant admission ... as their Hearsay was incorrect. includes nonverbal II, 526, 137 Percy dence.” 81 S.D. conduct if it is intended to be assertion. N.W.2d also, Weinstein SDCL 19-16-1. J. & McCafferty, cites 356 801(a)(01) Berger, Evidence Weinstein’s § (S.D.1984), proposition 159 for the (1985). hearsay testimony was admis- anatomically that demonstrations with the sible, however, 19-16-8, under SDCL which fall the excit- correct dolls would not within pur- hearsay given allows admission exception. McCafferty, a ed utterance poses diagnosis. of medical seven-year-old girl at school with a arrived Garza, this neck, ques- “hickey” on her and a teacher hearsay court stated that was admissible mark, using ana- the child about the tioned if exception rape victims under tomically not the use correct dolls. given the doctor to describe what to anatomically correct dolls that victim, happened rather than who rule us to hold the excited utterance caused Mogan Dr. assaulted the victim. testified Rather, it was inapplicable McCafferty. affirmatively response that A.K. nodded lapse lack the time and the of evidence anyone you “Did question: touch accomplished while the demonstration was genital in the This is down there area?” of the event. the child was the stress hearsay type contemplated as admis- case, exposed to the In this A.K. had been exception. diagnosis sible the medical rape approximately two and one- alleged court did not err in We hold that the trial ques- hours half to three before Goldsmith testimony Mogan. of Dr. admitting the appear her It would tioned dolls. by Percy if rationales advanced claim examine Bawdon’s We next represent violated, Percy closely II most rights were process that his due of this case. We hold that circumstances greater to a term of he sentenced applying did not err in the trial court following conviction his and, ex- exception such guilty plea excited utterance given after his originally than exception, ception being firmly rooted bargain. previ As we pursuant to the more. reliability can be inferred without noted, for a first sentence was ously Roberts, 56, S.Ct. 448 U.S. sen twenty years Ohio and the second term of 2531, L.Ed.2d tence, trial, twenty-five was for after essence, claims that years. objects to the trial Bawdon also pun by being process denied due testimony of the at admission of court’s rights. exercising legal his ished Mogan, tending physician, Dr. Carolina v. on North affirmatively Dr. Bawdon relies her head when nodded Pearce, S.Ct. during 395 U.S. examination Mogan asked (1969), United wherein the her in the L.Ed.2d 656 anyone touched whether had scope delineated the Supreme Court did not include the States genital area. Bawdon resentencing one judicial discretion Mogan pretrial motion to of Dr. name post-plea convicted retrial after the successful bargaining proceedings. Ehl v. through ap- reversal the first Estelle, (5th conviction Cir.1981); 656 F.2d 166 Frank peal or collateral attack. The Court first Blackburn, (5th Cir.1980). 646 F.2d 873 emphasized process requires that due that The Fifth Circuit Appeals citing Court of against a defendant for vindictiveness hav- Jersey, Corbitt v. New 439 U.S. ing successfully attacked his first convic- (1978), S.Ct. L.Ed.2d and Bor play part resentencing. tion Addi- Hayes, denkircher v. 98 S.Ct. tionally, to free a defendant from even (1978), 54 L.Ed.2d 604 found these motivation, apprehension retaliatory decisions made it clear that might unconstitutionally deter him encourage pleas state free to exercising or col- by offering substantial benefits to a de- laterally conviction, attack his first fendant, or by threatening an accused what has been termed a punishment with more severe should a prophylactic rule: refused, negotiated plea (citations In order to the absence of such assure omitted) equally It is clear that a de- motivation, we have conclud- [vindictive] accept fendant is free reject judge imposes ed that whenever more ‘bargain’ offered Once state. severe sentence a defendant after a it be charges, reduced —whether his doing new the reasons for so sentence, a recommended or some other affirmatively appear. must Those rea- however, rejected, concession—is the de- upon objective sons must be based infor- complain fendant cannot the that denial concerning mation identifiable conduct rejected of punish- the offer a constitutes part on occurring the of the defendant ment or is of judicial evidence vindictive- original the the sentencing after time of accept ness. To argument such an is to proceeding. the upon And factual data ignore completely philoso- the underlying the increased sentence is based phy purposes plea and of bargaining the record, part must be made of the so that system. If a successfully defendant can of legitimacy the constitutional the in- the leniency standing demand same after may fully creased sentence reviewed prior trial that was offered to him to trial appeal. on exchange in a guilty plea, for all the at 89 S.Ct. at 23 L.Ed.2d bargain plea disappear; incentives to the at 670. nothing by going defendant has to lose adopted prophylac- court the This Pearce to trial. in Owl, tic the of Grey rule case Frank, 646 F.2d at 883. and its Pearce sentencing following progeny applied by have never been convic the judge tion Supreme plea specifically United States Court in a the trial bar- fact, increasing gaining situation. least noted that he was not the sen one appeals upon federal circuit court of has tence his found based vindictiveness.* He arguably apply agreed that not accept Pearce does in noted that he to the recom- * sentencing transcript following given guess the contains would have him that sentence. I by twenty put years statement the court: "I want to on the that the reason the that was really given penalty by record that I as a don't view this earlier time was virtue of the against exercising plea Jesse for his which I was constitutional felt reasonable under rights appeal existing to under writ of habeas the then circumstances from the stand- otherwise, post point having go through conviction or to the mis- to ordeal of the whole understanding previous his and had with of a trial the—and save all the witnesses attorney parties having plea and to be allowed to and from to come withdraw the concerned testify. guilty. thought judi- of and to I it was don’t feel that the sentence that I into court cially —I economical, guess given any now one be a better have is vindictive nor I would but, penalty very emphasize frankly again, is involved. It one that I basis for want to I— given guilty of this would have even—even that if Jesse had been found defendant before, gone earlier if he had was a trial I would not have sen- trial and found virtue of any differently today." guilty am of this on an than I offense earlier occasion. tenced him plea following guilty plea bargaining process as state law. sentence mended judicial this appreciated author that judicial economy. Judicial based economy is one of the recognized reasons as desir- economy clearly Legislature True, policy. so this Corbitt, plea bargaining. end for able protect judge the trial tried to his flank apply prophylac- supra. We decline to by expressing rule the Pearce that he agree case and rule tic Pearce being willing vindictive. And I am effect, not we Fifth Circuit decision. give him the benefit the doubt and find Bawdon with initial say he was not vindictive. leniency stopped pay- then “bought” and pro- due ment on his check. Fundamental sentence, for Reasons a more severe offended the trial cess of law not then, affirmatively appearing on the sentencing in this case. judge’s record, they? Only economy what are angle upon by was touched court. consideration, itself, That and of should increasing HERTZ, not be a sufficient reason for J., WUEST, Judge, Circuit five confinement. Justice, acting Court McMURCHIE, Judge, Circuit concur. abides in the conviction that: This author jury trial is the backbone our [A] HENDERSON, J., part concurs man, judicial every system entire part. dissents woman, put and child has the McMURCHIE, sitting Judge, Circuit proof. The process State on its Justice, FOSHEIM, disqualified. Chief exceptions is one of the few jury trial SABERS, J., having lawyers permit judges not been member we still where action ordinary at the time this citizens to involve themselves Court, government. participate. judicial did not branch submitted to punish citizens for Judges should HENDERSON, (concurring in Justice asking trials. dissenting part, part). 298, Huettl, (S.D. 306 379 N.W.2d State v. agree aspect opinion I with that 1985) J., (Henderson, dissenting part, of evidence and pertaining to admission part). “Whether a concurring result in support thereof. the authorities cited exercises his constitutional defendant Furthermore, I criminal agree that this guilt jury determine his trial a severe sentence. offense cries out for bearing on the must have innocence However, sentencing remand the would Braun, imposed.” 351 State v. 25-year sentence to procedure to reduce J., 149, (S.D.1984)(Henderson, 153 years upon grounds 20 support To that statement dissenting). punished judge appel- reason that Braun, Hess v. I cited these authorities: jury. By before a taking his case lant for Cir.1974); (8th States, F.2d 936 496 United sentencing judge re- plea bargain, Marzette, F.2d 207 485 v. United States years be punishment 20 viewed the Stockwell, —to Cir.1973); (8th v. States United requesting just. By virtue denied, (9th Cir.), 411 1186 cert. 472 F.2d lawfully set after the 1924, 409 948, 36 L.Ed.2d 93 S.Ct. U.S. aside, sentencing judge reviewed the 150 Hopkins, U.S. (1973); v. United States just. I do punishment of 25 be 816, (1972); 307, —to F.2d 822 App.D.C. 464 having stopped pay- Bawdon as not view U.S.App.D.C. States, Scott v. United check because he exercised ment on his 264, (1969); 377, Baker F.2d 269-74 duly which was habeas writ of 1069, (5th States, F.2d United granted. 1018, denied, Cir.1969), cert. (1970); United 24 L.Ed.2d adopted plea S.Ct. Legislature has Our State (7th Wiley, 278 F.2d Apparent- States bargaining per SDCL 23A-7-8. also, Mollberg, 310 Cir.1960). adopt fit to Legislature saw ly, the State (1976); Minn. Drink State,

water v. 73 Wis.2d 245 N.W.2d rule, fully appreciate that the Pearce Owl, Grey in State v. a retrial circum- plea bargaining

stance and this case is a Nonetheless,

scenario. the writ of habeas

corpus, an eternal friend of oppressed, imprisoned,

unlawfully illegally re-

strained, should never made unavailable fear an increased sentence in the

event of its success. HOPES,

Jean A. Plaintiff Appellant, BLACK HILLS POWER AND Roubideaux, LIGHT Ramon A. Rapid City, for COMPANY, Appellee. plaintiff Defendant and appellant.

No. 14872. Morrill, K. Hansen, Portia Brown of Brown, Rapid City, Hubbard & for defend- South Dakota. appellee. ant and Sept. Considered Briefs 1985. PER CURIAM. April

Decided This is summary judg- from a granted ment to defendant Black Hills (Black Light Hills). Power and Company began Hopes working Plaintiff Jean A. for Black Hills aas district clerk in 1978. parties contract, employment had no Hills promises Hopes and Black made no length of employment. about ap- Black Hills does have a performance praisal procedure which calls semi-an- employee; pur- nual reviews of each procedure pose is to evaluate the employee’s perform- document work procedure any ance. The does contain discharge employ- regarding rules ees. 1980, Hopes began to suffer dur-

epilepsy. Her condition deteriorated

Case Details

Case Name: State v. Bawdon

Court Name: South Dakota Supreme Court

Date Published: Apr 23, 1986

Citation: 386 N.W.2d 484

Docket Number: 14829

Court Abbreviation: S.D.