STATE of South Dakota, Plaintiff and Appellee, v. Share Dunn CLOTHIER, Defendant and Appellant.
No. 15058.
Supreme Court of South Dakota.
Argued March 17, 1986. Decided July 16, 1986.
391 N.W.2d 197
What I am driving at is this: Incest victims or rape trauma victims cannot be singled out, specifically, in a given factual scenario, by professional experts as having had a crime perpetrated upon them. The dynamics involved in a like crime may be testified to by experts but for certain limited purposes. Such a purpose would be to support that a class of victims typically make poor witnesses and are reluctant to disclose sordid episodes. Another example would be to permit a professional expert to reveal to the jury that professional research reveals certain findings on the subject of a victim‘s reaction to sexual assault, given to rehabilitate the complaining witness. People v. Bledsoe, 36 Cal.3d 236, 681 P.2d 291, 203 Cal.Rptr. 450 (1984).
I can specially concur in this case without condoning trials by experts based upon these rationales as gleaned from the record. (1) The psychologists never testified that the victim told them she was raped. (2) The psychologists never testified that in their opinion she was raped. (3) The psychologists’ most objectionable statements can reasonably be read not to go to the the substance of the crime. (4) The defendant failed to object on the basis that the psychologists were testifying to the substance of the crime. (5) The defendant objected to the psychologists testifying because he, the defendant, was not appointed an expert of his own. (6) The jury was instructed that such testimony was for impeachment purposes and was not substantive evidence.
Leslie J. England, Rapid City, for defendant and appellant.
FOSHEIM, Chief Justice.
Share Clothier (Clothier) was convicted of Accessory to Manslaughter. She was also found to be an habitual offender. We affirm in part, reverse in part and remand.
Clothier is the wife of Guy Clothier who was convicted of first-degree manslaughter for the shooting of Mike Hawkins following a disturbance near Rapid City involving the Clothiers, Hawkins, and Hawkins’ girlfriend, Muriel Riggins. Share Clothier‘s role in the crime included participation in the altercation prior to the killing and covering up the homicide. For further details of the episode, see State v. Clothier, 381 N.W.2d 253 (S.D.1986). This appeal raises issues which do not require further reference to the facts.
Clothier first contends that a 1982 Oklahoma conviction for possession of explosives was improperly used to enhance her principal offense and, thus, increase her penitentiary sentence. Her argument is founded on the difference in the intent required for conviction under each statute. The Oklahoma statute1 requires “unlawful” intent. In South Dakota,2 the requisite intent is “to injure, intimidate, or terrify any person, or with intent to wrongfully injure or destroy any property....”
Under
Here, the Judgment on Plea of Guilty from Oklahoma provides no facts on which that conviction was based, so we must look to the language of the Oklahoma and South Dakota statutes. Following a detailed comparison, we cannot conclude that the minimum elements6 are substantially similar. Acts can readily be conceived which violate the intent element of the Oklahoma provision but not the narrower intent element of the South Dakota statute. For example, if one possessing explosives intended to use them in trade for illegal drugs, he would possess an “unlawful intent,” but not a mens rea violative of
Clothier next challenges the trial court‘s denial of two motions for mistrial. During the trial on the principal offense, State‘s psychiatrist, when asked to explain an antisocial diagnosis of Clothier replied, “[It is o]ne who‘s at odds with society or the establishment. And there are other important factors in that that [sic] I believe that I‘m not supposed to talk about.” Following this statement, Clothier moved for a mistrial. Clothier did not consent to the trial court‘s offer to admonish the jury. A mistrial motion was then denied.
Clothier argues that this statement, coupled with prior character attacks, resulted in the opening and attacking of Clothier‘s character by innuendo, although the issue was not opened by her. She consequently maintains that denial of this mistrial motion was clearly prejudicial.
It is difficult to find prejudicial error in the trial court‘s denial of this mistrial motion. See State v. Clabaugh, 346 N.W.2d 448, 451 (S.D.1984); see also State v. Dirk, 364 N.W.2d 117, 124 (S.D.1985). The psychiatrist‘s statement was actually ambiguous and not conclusive.
Near the conclusion of the habitual offender trial, Clothier had an emotional outburst in the proximity of the court and jury rooms. A mistrial motion following this scene was also denied.
Clothier points out that the initial display was due to a migraine headache, of which the trial court was advised, that a scene occurred before the jury, and that she was placed next to the jury room during her “illness.” Clothier consequently argues that denial of this mistrial motion was a clear abuse of discretion.
Trial courts must be alert not to allow the accused in a criminal trial to structure a self-serving scene as the basis for a mistrial. Otherwise a defendant, by orchestrating his own mistrial, could effectively prevent a completed trial. The outbursts here occurred during the habitual offender trial when the only unresolved issue was whether Clothier had a prior felony conviction. We are unable to find prejudicial
Clothier‘s final argument is that her constitutional and statutorial rights to a fair and impartial jury were violated. She contends that her change of venue motions should have been granted and that a new jury should have heard and decided the habitual offender issue.7
A motion for continuance was granted and a sufficient time lag occurred between much of the pretrial publicity and the actual accessory trial. Additionally, the pretrial publicity, although expansive, was factual and not inflamatory or sensational. State v. Reutter, 374 N.W.2d 617, 628-29 (S.D.1985); State v. Brandenburg, 344 N.W.2d 702, 704 (S.D.1984); State v. Reiman, 284 N.W.2d 860, 867 (S.D.1979). Finally, Clothier has not provided a record upon which we can conclude that an impartial jury was not found in Pennington County. See Reutter, 374 N.W.2d at 629; Brandenburg, 344 N.W.2d at 704; Reiman, 284 N.W.2d at 867-68.
Affirmed in part, but reversed for re-sentencing in conformity with this decision, and remanded.
MORGAN, WUEST, and SABERS, JJ., concur.
HENDERSON, J., specially concurs.
HENDERSON, Justice (specially concurring).
Inasmuch as this Court is reversing the enhancement aspect of this case, it would not be necessary to address Clothier‘s contentions that she was entitled to “another jury” on the habitual offender charge. See State v. Moves Camp, 376 N.W.2d 567, 570 (S.D.1985). In Moves Camp, there was no record of any request for another jury. Here, there was. However, we are reversing the enhancement penalty (ten years), and thus we need not address the issue foursquare. In my opinion, the South Dakota Supreme Court has never ruled on the precise issue of “another jury.” It has, however, been addressed by the State of Michigan in People v. Schram, 98 Mich.App. 292, 302, 296 N.W.2d 840, 845 (1980).