STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. KEVIN XAVIER DICKERSON, Defendant and Appellant. STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. ARIANNA CHERELLE REECY, Defendant and Appellant.
#29333, #29337-r-PJD
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
2022 S.D. 23, OPINION FILED 04/20/22
THE HONORABLE ROBIN J. HOUWMAN Judge
ARGUED MAY 24, 2021
APPEALS FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA
ERIN E. HANDKE QUINCY R. KJERSTAD Assistant Attorneys General Pierre, South Dakota Attorneys for plaintiff and appellee.
CHRISTOPHER MILES of Minnehaha County Public Defender‘s Office Sioux Falls, South Dakota Attorneys for defendant and appellant Kevin Dickerson.
MARK KADI of Minnehaha County Office of the Public Advocate Sioux Falls, South Dakota Attorneys for defendant and appellant Arianna Reecy.
DEVANEY, Justice
[¶1.] A jury found co-defendants Arianna Reecy and Kevin Dickerson guilty of robbery and burglary and also found Dickerson guilty of aggravated assault against Julio Gomez Rojas. Reecy and Dickerson separately appeal. They both assert that the circuit court erred in precluding any reference to Gomez Rojas‘s immigration status and in admitting into evidence an exhibit listing transactions purportedly from Gomez Rojas‘s debit card. Dickerson additionally asserts that the circuit court erred in denying his motion for judgment of acquittal. We consolidate the appeals and reverse and remand.
Factual and Procedural Background
[¶2.] Arianna Reecy worked as an exotic dancer at a bar in Lesterville, South Dakota. In July 2019, Reecy, who went by the name “Kisses,” met Julio Gomez Rojas at the bar after he asked her for a private dance. Gomez Rojas explained that he found Reecy attractive and was interested in her. The two began exchanging text messages and also spoke to each other on the phone.
[¶3.] On November 19, 2019, Reecy asked Gomez Rojas, via text message, to lend her money so she could feed her children. He agreed and invited Reecy to come to his apartment. She arrived at approximately 7:30 p.m. but only stayed for three to five minutes. She returned to the apartment building approximately an hour later. As the two went up the stairs to Gomez Rojas‘s apartment, Reecy‘s boyfriend, Kevin Dickerson, entered the building unbeknownst to Gomez Rojas. What happened thereafter is disputed. According to Gomez Rojas, after they were inside his apartment, Reecy opened the door for Dickerson to enter, after which Dickerson held him at gun point, assaulted him, and stole his wallet. In contrast, Reecy claimed that after she and Gomez Rojas were inside his apartment, he tried to rape her, and she struck him on the head with a cellular phone before fleeing.
[¶4.] After the incident, Gomez Rojas‘s neighbors, who had heard him screaming, called 911, and an investigation ensued. Dickerson and Reecy were eventually arrested, and both were charged with first-degree robbery with a dangerous weapon and alternative counts of first-degree burglary.
[¶5.] Dickerson and Reecy were tried together. On the day prior to trial, the State filed a motion in limine to preclude defense counsel from referring in any manner to Gomez Rojas‘s immigration status. The State acknowledged that he was an illegal immigrant; however, it claimed that his immigration status was not material to any issue at trial. The State further asserted that the evidence would be more prejudicial than probative. Finally, the State argued that admitting the evidence would potentially place Gomez Rojas in a position of having to invoke his right against self-incrimination.
[¶6.] At the start of the trial, the circuit court heard arguments from counsel on the State‘s motion and allowed the parties to examine Gomez Rojas for purposes of the court‘s ruling. Gomez Rojas admitted he was in the United States illegally. He testified that approximately a week after the incident, he consulted with an immigration attorney to learn whether his contacts with law enforcement as a victim of a crime would have any adverse effect on his immigration status. He claimed that the attorney told him he could continue to cooperate with the investigation and that at some point he could apply for a special visa available to victims of crimes, called a U-Visa.1 Gomez Rojas testified that he had not yet applied for a U-Visa, “but if it comes to that point perhaps, yes, of course” he would.
[¶7.] Counsel for both Reecy and Dickerson argued that Gomez Rojas‘s immigration status is relevant and probative to his bias and motivation to lie. Counsel for Dickerson emphasized that credibility is the central issue in the case and to exclude the evidence would violate Dickerson‘s Sixth Amendment right to confront and cross-examine Gomez Rojas.
[¶8.] The circuit court granted the State‘s motion in limine. It noted serious public policy concerns associated with allowing evidence of a victim‘s immigration status, including that it might deter people from reporting crimes. The court also relied upon Gomez Rojas‘s testimony that no one had promised him anything in exchange for his testimony. The court thus concluded that his immigration status was of limited relevance and was more prejudicial than probative. The court further expressed
[¶9.] During the three-day trial, multiple witnesses testified, including Gomez Rojas, his neighbors, Reecy, and multiple law enforcement officers. The jury also watched surveillance videos from the apartment complex showing Reecy and Dickerson enter and exit the building; listened to a recording of a 911 call; and observed the photographs documenting a wound above Gomez Rojas‘s left eyebrow and bruises on Reecy‘s arm and neck.
[¶10.] Gomez Rojas testified about his relationship with Reecy. He admitted that he was attracted to her and had hopes that their relationship would turn physical. He claimed that he had lent Reecy $200 when she first came to his apartment on the evening of the incident. He testified that she was in his apartment for only a few minutes but promised to return. He believed it was possible something sexual would happen when she returned.
[¶11.] Gomez Rojas then related that after he and Reecy entered the apartment during her second visit, he locked the door and sat down on his sofa. He claimed that Reecy asked him if anyone else was home. He said no, and thereafter, Reecy unlocked the door to the apartment, after which she moved away from the door and a male (later identified as Dickerson) with a mask on his face charged into the apartment. Gomez Rojas testified that he did not recognize Dickerson. He further testified that Dickerson grabbed him by the back of the neck, pointed a gun at him, and demanded money.
[¶12.] According to Gomez Rojas, Dickerson then ordered Reecy to search the apartment for money, and Dickerson grabbed Gomez Rojas‘s wallet from a table, opened it, and threw it on the floor after noticing that it contained no cash. Gomez Rojas claimed that he was able to wrangle free of Dickerson‘s grip, but Dickerson then struck him on the left side of his head with the gun. He testified that he fell on the floor after being hit but got up and retreated to the bathroom. Gomez Rojas also testified that he screamed for help and waited to exit his bathroom until he stopped hearing noises.
[¶13.] When Gomez Rojas came out of his bathroom, he noticed that his neighbors, Sylvia Paragonzalez and Sofia Parada, were inside his apartment. They had heard a scream coming from his apartment and attempted to enter but could not open the door. Sylvia and Sofia also claimed that they saw a black male and a female exit Gomez Rojas‘s apartment and run down the stairs. Neither recalled seeing a mask covering the man‘s face or a gun. They were then able to enter the apartment where they found Gomez Rojas bleeding from an injury on the side of his head. According to Gomez Rojas, Sylvia and Sofia asked him if he wanted them to call 911 and he said yes; but according to Sofia, she and her sister decided to call the police. After Sofia called 911, the dispatcher asked her questions about the incident. Sofia translated these questions to Gomez Rojas in Spanish. She then translated Gomez Rojas‘s answers in English. She relayed that two people entered the apartment, assaulted Gomez Rojas, and left with his wallet. She further relayed Gomez Rojas‘s descriptions of them and his statement that he recognized the female but not the male.
[¶14.] Officer Christian O‘Brien arrived at the apartment in response to the 911 call and interviewed Gomez Rojas. He observed that Gomez Rojas had a large gash above his left eyebrow and that the area around the wound had started to swell. During the interview, Gomez Rojas provided many details consistent with his trial
[¶15.] Officer O‘Brien testified that following his initial interview, Gomez Rojas was transported to the hospital to address his injury. While there, Officer O‘Brien continued to discuss the incident with him. Gomez Rojas told Officer O‘Brien that he had met Reecy a few months prior at the bar she works at in Lesterville and only knew her by the name of Kisses. He also explained that she had come over to his apartment approximately a month and a half ago. He provided Officer O‘Brien with Reecy‘s phone number but did not inform the officer that he had been exchanging text messages with Reecy throughout the day of the incident. Officer O‘Brien asked Gomez Rojas about the contents of his wallet and learned that the wallet contained a debit card. The officer asked Gomez Rojas to determine if any transactions had been attempted with his card. Gomez Rojas looked up his account information on his phone and confirmed that no transactions had been made, and upon advice of Officer O‘Brien, he then froze his debit card.
[¶16.] Detective Scott Vandervelde also testified. He had been assigned to investigate the incident, and during his investigation, he interviewed Gomez Rojas, Sofia, and Sylvia. He also obtained the apartment building‘s surveillance videos from the date of the incident. After watching the videos, the detective noted a discrepancy between what Gomez Rojas had told Officer O‘Brien and what the videos depicted. In particular, the videos revealed that Gomez Rojas let Reecy into the apartment building rather than Reecy simply letting herself into his apartment. Detective Vandervelde spoke to Gomez Rojas about the videos, and Gomez Rojas explained that he let Reecy into the apartment that evening because he believed she wanted to get to know him better and he wanted to see how their physical relationship would play out. However, like his omission in his interview with Officer O‘Brien, Gomez Rojas did not inform Detective Vendervelde that he and Reecy had been exchanging text messages throughout the day, and at no point did the detective obtain Gomez Rojas‘s phone or messaging history as evidence.
[¶17.] The day after the incident, Gomez Rojas‘s bank, MetaBank, contacted him about certain transactions that were attempted with his debit card. He testified that he informed Detective Vandervelde about these transactions and the two met at MetaBank to obtain information related to the transactions. At trial, the State sought to admit a printout purportedly from MetaBank, which, according to the State, detailed transactions attempted with Gomez Rojas‘s debit card after the incident. Dickerson and Reecy objected, asserting that the document was hearsay and lacked adequate foundation. The court instructed the State to lay additional foundation. Gomez Rojas testified that the document was the one provided to him by MetaBank and that it contained a list of transactions made or attempted with his debit card. The court overruled the objection and admitted the document under the business records exception to the hearsay rule. Thereafter, Gomez Rojas testified that only the first three transactions on the list were ones he recalled making himself and that he did not make any of the other transactions.
[¶18.] Detective Vandervelde also testified about the transaction document from
[¶19.] Officer Chase Vanderhull, who participated in the arrest of Dickerson and Reecy, testified that during the search of the vehicle in which the two were stopped, he found 40-caliber bullets in a plastic bag in the center console. He did not find a gun. Officer Vanderhull further testified about a recording of his interaction with Reecy while he was placing her in his vehicle. On the video recording, which was admitted into evidence, Reecy can be heard complaining about her arm hurting as her hands were being cuffed behind her back. Officer Vanderhull noticed bruising on her hand and asked her what had happened. Reecy explained that she was injured during her work as a pole dancer.
[¶20.] After the State rested its case, Dickerson and Reecy moved for judgment of acquittal on all counts. The court denied the motion. Thereafter, Dickerson presented testimony from Derek Kuchenreuther, a computer forensic examiner. Kuchenreuther testified that he obtained a text message and call log from Verizon for Gomez Rojas‘s phone number for November 19, 2019. He then explained how the exhibit detailed who sent the text, if it was received, and by whom. He identified that approximately 75 text messages were sent between the number associated with Reecy and the number associated with Gomez Rojas on November 19. He also testified that the phone record depicted approximately four calls between Reecy‘s phone and Gomes Rojas‘s and claimed that it appeared that the two were calling each other in equal amounts. The phone record also depicted a message containing a picture; however, Kuchenreuther testified that he could not obtain the actual picture that was sent.
[¶21.] Reecy testified in her defense. She agreed that she had asked Gomez Rojas to loan her money and that she went to his apartment twice on November 19, 2019. However, she disagreed that Gomez Rojas lent her $200. Rather, she claimed she went to his apartment the first time believing he was going to lend her approximately $300. When she got to his apartment, he told her that he only had $20, so she suggested he could transfer her additional funds with what she called a “cash app.” Gomez Rojas did not have the app, and according to Reecy, he instead gave her his debit card. Reecy further testified that when she began to leave his apartment during that first visit, Gomez Rojas blocked the door and asked her to have sex with him. She claimed that she told him no, but she promised she would return. She also testified that before he allowed her to exit the apartment, he reached out for a hug, and while she hugged him back, he tried to kiss her.
she unlocked it. She further testified that Gomez Rojas then grabbed her by the arm and swung her around onto the couch and attempted to force her to perform oral sex on him. She claimed that she slipped away, and while she was on the floor, he forced himself on top of her and put his hands in her pants. She claimed that she tried to fight back by choking him, but he “smacked” her. She testified that she was screaming and putting her arms up to protect herself. She claimed that she grabbed a cellular phone that she noticed to her right side and struck Gomez Rojas on the head as hard as she could. She testified that Gomez Rojas screamed, and shortly after that, Dickerson opened the apartment door, and Gomez Rojas ran to the back of the apartment. She testified that she was then able to leave, and after doing so, she discarded the debit card.
[¶23.] Defense counsel entered pictures into evidence depicting bruises on Reecy‘s arms and neck and a scratch on her neck. The pictures were taken seven days after the incident. Reecy claimed that Gomez Rojas caused the injuries. She testified that she did not report the incident because she just wanted to forget about what had happened. She also claimed that she did not even tell Dickerson about what happened in the apartment.
[¶24.] The defense rested, and after closing arguments, the jury found both Dickerson and Reecy guilty of first-degree robbery with a dangerous weapon and first-degree burglary committed in the nighttime. The jury also found Dickerson guilty of aggravated assault under circumstances manifesting extreme indifference to human life. Having consolidated Dickerson‘s and Reecy‘s appeals, we restate their issues as follows:
- Whether the circuit court erred in precluding evidence of Gomez Rojas‘s immigration status.
- Whether the circuit court erred in admitting the printout of transactions related to Gomez Rojas‘s bank account.
- Whether the circuit court erred in denying Dickerson‘s motion for judgment of acquittal.
Analysis and Decision
- Whether the circuit court erred in precluding evidence of Gomez Rojas‘s immigration status.
[¶25.] Dickerson contends that the circuit court‘s decision to exclude the evidence of Gomez Rojas‘s immigration status “prevented the jury from receiving the full picture” of “his motivation to fabricate important details related to the charges.” Dickerson further asserts that the circuit court improperly focused on the fact Gomez Rojas had not yet filed an application for a U-Visa. In his view, the timing of the application is irrelevant under the circumstances because Gomez Rojas testified that he would likely be applying for a U-Visa in
[¶26.] Reecy similarly argues that the circuit court‘s exclusion of the evidence violated her Sixth Amendment right to confront and cross-examine Gomez Rojas. She claims that the partiality of a witness is always subject to exploration at trial. In her view, the circuit court‘s concern about a minitrial related to Gomez Rojas‘s current immigration status, including what, if anything, he has applied for, “is overstated[.]” Reecy notes that Gomez Rojas admitted, during his testimony about his immigration status provided outside the presence of the jury, that he was in the United States illegally, and his testimony on this topic, in total, spans only six pages. Reecy also contends that in denying her the opportunity to cross-examine Gomez Rojas on this topic, the court effectively prevented her from presenting her defense theory, namely, that Gomez Rojas lied about the incident because he was concerned that a rape allegation, a deportable offense, would compromise his immigration status.
[¶27.] “The Sixth Amendment to the United States Constitution provides that a criminal defendant has the right to be ‘confronted with the witnesses against him.‘” State v. Carothers (Carothers I), 2005 S.D. 16, ¶ 8, 692 N.W.2d 544, 546 (quoting
[¶28.] The United States Supreme Court has long recognized “that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” Olden v. Kentucky, 488 U.S. 227, 231, 109 S. Ct. 480, 483, 102 L. Ed. 2d 513 (1988) (quoting Davis v. Alaska, 415 U.S. 308, 316-17, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347 (1974)). But “[i]t does not follow . . . that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsel‘s inquiry into the potential bias of a prosecution witness.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674 (1986). Therefore, a court may impose reasonable limits on defense counsel‘s cross-examination as to the potential bias of a prosecution witness to avoid such things as “harassment, prejudice, confusion of the issues . . . or interrogation that [would be] . . . only marginally relevant[.]” Olden, 488 U.S. at 232, 109 S. Ct. at 483 (quoting Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435).
[¶29.] However, when a court cuts “off all questioning about an event that the State conceded had taken place and that a jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony, the court‘s ruling violate[s] [a defendant‘s] rights secured by the Confrontation Clause.” Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435. Therefore, while we generally review evidentiary rulings for an abuse of discretion, the issue here concerns
(reviewing de novo whether the circuit court‘s denial of an evidentiary motion violated defendant‘s Sixth Amendment right).
[¶30.] We have not before examined whether or how a witness‘s immigration status or efforts to obtain a U-Visa may be admissible to show motive to testify in a certain manner.4 However, multiple other appellate courts have examined the issue and have concluded that a witness‘s immigration status is relevant and admissible when such evidence has the tendency to demonstrate the witness‘s bias or motive to fabricate. While the facts of these cases are not all identical to those at issue here, the legal reasoning underlying the courts’ rulings is persuasive.
[¶31.] For example, in Romero-Perez v. Commonwealth, one of the alleged domestic assault victims had applied for a U-Visa, and during the trial, defense
counsel sought to use the evidence to support that she was biased, had a motive to fabricate, and an incentive to exaggerate her testimony at trial. 492 S.W.3d 902, 904 (Ky. Ct. App. 2016). The trial court excluded the evidence, citing concerns that the case would turn into an immigration trial and that permitting such cross-examination would defeat the purpose of such visas. The appellate court reversed, noting that “[i]n order for the jury to properly weigh the testimony of the witness, it is entitled to hear all of the evidence calculated to influence the witness’ testimony.” Id. at 905. It determined that “[t]he ability to transform oneself from illegal immigrant, to legal visa holder, to permanent legal resident in a relatively short amount of time without ever having to the [sic] leave the United States, could provide a strong motive for fabrication or embellishment.” Id. at 907. Thus, the court concluded that “it is clear that there was a ‘practical connection between the evidence sought to
[¶32.] Similarly, in State v. Valle, 298 P.3d 1237 (Or. Ct. App. 2013), the defendant sought to introduce evidence that the victim had applied for a U-Visa. Id. at 1240. The trial court excluded the evidence, stating that “none of us seem[] to understand it quite well enough to allow it in or out” and that “the cause of the visa is speculative, at best.” Id. The appellate court, however, explained that “[a]t the admissibility stage, the only question is whether a jury could find that the witness has a motive to testify in a certain manner. Whether the witness actually has a motive and, if so, whether the motive has influenced the witness‘s testimony, are separate and subsequent questions for the jury.” Id. at 1243. The court rejected the notion that there had to be “an established quid pro quo” before the witness could be cross-examined on this topic. Id. at 1245. Rather, it determined that the trial court erred in excluding the evidence because the jury could infer that the witness had a personal interest in testifying a certain way from the evidence that the victim had applied for an opportunity to stay in the United States on the basis that she had been a victim of a qualifying crime. Id. at 1243-44.
[¶33.] Outside the U-Visa context, other courts have also addressed the admissibility of evidence of a witness‘s immigration status if it suggests a motive to testify falsely to avoid deportation. A special court of appeals in Maryland reversed a trial court‘s exclusion of evidence of a witness‘s status as an illegal immigrant. Carrero-Vasquez v. State, 63 A.3d 647, 661 (Md. Ct. Spec. App. 2013). The defendant had borrowed the witness‘s vehicle and was pulled over for traffic offenses. While searching the vehicle incident to the defendant‘s arrest, officers found a loaded revolver in the center console, which was later determined to be stolen. The defendant was charged with possession of a regulated firearm and at trial, he sought to question the owner of the vehicle, who had denied owning the handgun, about her immigration status and whether she would be subject to deportation if she were convicted of possessing a stolen handgun. The trial court precluded admission of the evidence. Id. at 655.
[¶34.] On appeal, the Maryland court concluded that the lower court‘s ruling violated the defendant‘s right of confrontation. Id. at 657 (relying on Davis, 415 U.S. at 316-17 and Olden, 488 U.S. 227). In particular, the court noted the United States Supreme Court‘s holding in Davis “rejecting the claim that the State‘s interest in securing the confidentiality of juvenile records outweighed Davis‘s constitutional right to confront his accuser,” and its conclusion that “[w]hatever temporary embarrassment might result to [the witness] or his family by disclosure of his juvenile record . . . is outweighed by [Davis‘s] right to probe into the influence of possible bias in the testimony of a crucial identification witness.” Id. (quoting Davis, 415 U.S. at 319, 94 S. Ct. at 1105). Noting “that the right of confrontation is the cornerstone of a fair trial[,]” the court ultimately held that the State‘s “desire to protect immigrant witnesses from intimidation and unfair prejudice[] is truly subordinate to appellant‘s right to confront the witnesses against him.”5 Id. at 659.
[¶36.] Against the backdrop of the disparities in Gomez Rojas‘s initial description of the events in question and his evolving narrative after being confronted by law enforcement with the later discovered video and cellphone records, a jury could infer that his immigration status may have caused him to make a false report against Reecy to deflect a possible rape allegation by her. Also, although Gomez Rojas had not yet applied for a U-Visa, a jury could infer from his knowledge of the program and his indication that “if it comes to that point” he would “of course” apply for one, that he had an incentive to embellish or exaggerate his testimony against Dickerson and Reecy in order to be perceived as the victim in the events in question.7 This evidence was therefore relevant
[¶37.] It is also significant that Gomez Rojas was a critical witness. Without his testimony, the State could not have proven the elements of the charges at issue. As the State told the jury, this case “comes down to one question: Who do you believe? Do you believe [Gomez Rojas]? Do you believe Ms. Reecy?” Yet the jury was not fully informed as to Gomez Rojas‘s potential motives in assessing his credibility. More importantly, the court‘s ruling prevented defense counsel from discrediting the State‘s explicit argument to the jury that Gomez Rojas “doesn‘t have anything at stake in this case” and “doesn‘t stand to gain or lose anything from the outcome of the case.”
[¶38.] Contrary to the circuit court‘s ruling, allowing admission of the evidence here would not confuse the issues or require a minitrial as to his immigration status given Gomez Rojas‘s admissions. And even if Gomez Rojas would be prejudiced by the admission of this evidence, whether Gomez Rojas was lying about his encounter with Reecy and Dickerson goes to the heart of their defenses, and the State has not established that any danger of unfair prejudice substantially outweighs its probative value. See
[¶39.] This Court has observed that “the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” State v. Packed, 2007 S.D. 75, ¶ 23, 736 N.W.2d 851, 859 (quoting Davis, 415 U.S. at 316–17, 94 S. Ct. at 1110). Moreover, “[t]he right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the ‘accuracy of the truth-determining process.‘” Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 1046, 35 L. Ed. 2d 297 (1973) (quoting Dutton v. Evans, 400 U.S. 74, 89, 91 S. Ct. 210, 220, 27 L. Ed. 2d 213 (1970)). Because the evidence related to Gomez Rojas‘s immigration status was relevant given the circumstances in this case and the danger of unfair prejudice did not substantially
[¶40.] “When a defendant has shown his constitutional right to confrontation has been violated, he is entitled to a new trial unless the [violation] constitutes harmless error.” State v. Taylor, 2020 S.D. 48, ¶ 49, 948 N.W.2d 342, 356 (quoting State v. Richmond, 2019 S.D. 62, ¶ 35, 935 N.W.2d 792, 802); see
[¶41.] In determining whether a violation of a defendant‘s constitutional right to confrontation is harmless, the relevant inquiry is “whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” Van Arsdall, 475 U.S. at 684, 106 S. Ct. at 1438. See also State v. Zakaria, 2007 S.D. 27, ¶ 19, 730 N.W.2d 140, 146 (providing that we must be “able to declare a belief beyond a reasonable doubt that the error was harmless and did not contribute to the verdict obtained” (citation omitted)). The Supreme Court has further explained that:
Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution‘s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution‘s case.
Van Arsdall, 475 U.S. at 684, 106 S. Ct. at 1438 (emphasis added).
[¶42.] In its appellate briefs, the State focuses only on whether the circuit court‘s exclusion of the immigration evidence was error and not whether, in the event this Court would determine that error occurred, the error was harmless. When asked during oral argument to explain on what basis the error could be considered harmless beyond a reasonable doubt, the State claimed that admission of the evidence concerning Gomez Rojas‘s immigration status would not have changed the jury‘s verdict in light of the evidence in the record supporting that Reecy and Dickerson entered Gomez Rojas‘s apartment, assaulted him, and robbed him. In the State‘s view, Reecy and Dickerson were able to ask questions challenging Gomez Rojas‘s credibility. In particular, the State noted that Gomez Rojas was asked questions about inconsistencies in his statements to law enforcement and his testimony at trial. The State further argued that given Reecy‘s testimony that Gomez Rojas had raped her, the defense still had the opportunity to argue that Gomez Rojas had a motivation to lie to avoid being prosecuted for rape.8
2. Whether the circuit court erred in admitting the printout of transactions related to Gomez Rojas‘s bank account.
[¶44.] Dickerson and Reecy assert that the circuit court erred in applying the business records exception to the hearsay rule to allow admission of the printout of transactions purportedly from MetaBank. They note that the exhibit contains no symbols or other indicia that it was produced by MetaBank or any identifying information connecting the document to Gomez Rojas. They then claim that the court erred in simply relying on Gomez Rojas‘s representation that the document was produced by the bank. In its appellate briefing, the State only addresses whether Dickerson and Reecy were prejudiced by the admission of the evidence, essentially conceding an error in its admission.10
[¶45.] “Business records qualify for a hearsay exception if they are records of a regularly conducted business activity.” State v. Stokes, 2017 S.D. 21, ¶ 13, 895 N.W.2d 351, 354. The exception requires that:
(A) The record was made at or near the time by—or from information transmitted by—someone with knowledge;
(B) The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) Making the record was a regular practice of that activity;
(D) All these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with a rule or a statute permitting certification; and
(E) The opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
[¶46.] Here, the State did not lay an adequate foundation for the admission of the transaction document, and the circuit court erroneously determined that Gomez Rojas was a qualified witness as contemplated by the exception to the hearsay rule. Gomez Rojas did not claim to be familiar with MetaBank‘s recordkeeping practices or with how the transaction list was prepared. Even more problematic, he had no knowledge of the 19 transactions most pertinent to the charges at issue. Similarly, although Detective Vandervelde also testified about these records, he had no firsthand knowledge of the existence of the transactions or how the list was created and could only make assumptions about the date and time stamps on the document. “While ‘[t]he phrase “another qualified witness” is given a very broad interpretation,’ the witness must nonetheless possess ‘enough familiarity with the record-keeping system of the entity in question to explain how the record came into existence in the course of a regularly conducted activity of the entity.‘” Stokes, 2017 S.D. 21, ¶ 16, 895 N.W.2d at 356 (citation omitted). Therefore, the circuit court erred in admitting these bank records.11 If admission of the transaction document arises again on remand, the circuit court is directed to properly apply the business records exception prior to admitting such evidence.
[¶47.] Reversed and remanded.12
[¶48.] JENSEN, Chief Justice, and MYREN, Justice, concur.
[¶49.] KERN and SALTER, Justices, dissent.
SALTER, Justice (dissenting).
[¶50.] I believe that the exclusion of U-Visa evidence relating to a witness could, in some cases, result in a violation of a defendant‘s Sixth Amendment right of confrontation. However, I do not believe this is such a case, and I write to respectfully note my dissent.
[¶51.] As an initial matter, the U-Visa evidence sought for cross-examination here lacks logical relevance, and I would affirm the circuit court‘s decision to exclude it on that uncomplicated basis. The only evidence in the record relating to Gomez Rojas and the U-Visa program indicates that he was not aware of it when he told police that he had been assaulted and robbed by Reecy and Dickerson. Gomez Rojas learned of the U-Visa program a week after the November 19 incident when he asked an immigration attorney if assisting in the police investigation would jeopardize
[¶52.] Other courts confronted with similar circumstances have upheld trial court decisions excluding U-Visa evidence where a witness was unaware of the program at the time the criminal behavior was initially reported. See, e.g., State v. Deleon-Yuja, No. 2019AP2059-CR, 2021 WL 1883365, at *7, *9 (Wis. Ct. App. May 11, 2021) (affirming trial court‘s exclusion of U-Visa evidence where it determined there was “nothing in the record [indicating] that the victims or their family knew about a U-[V]isa when the sexual assault disclosures were made“); Ramos Pabon v. State, No. 02-18-00517-CR, 2019 WL 4122611, at *4 (Tex. App. Aug. 29, 2019) (affirming the exclusion of U-Visa evidence where the defendant “did not offer any evidence” that “getting a U-Visa was on the . . . complainant‘s radar when she [reported] the sexual abuse“).
[¶53.] But the fact-bound results in these cases, and the U-Visa cases cited by the Court, are more illustrative of established principles than reflective of new ones—a point the Court seems to overlook in its effort to explain the details of these non-binding decisions. There is nothing new or distinct about U-Visa information that differs from other types of evidence that could support an inference of bias and, yet, is properly excluded. See Kryger, 2018 S.D. 13, ¶ 15, 907 N.W.2d at 808 (affirming circuit court‘s decision prohibiting cross examination about a witness‘s threatening comments because, among other reasons, the threats occurred after the factual circumstances associated with the witness‘s testimony).
[¶54.] I also do not believe the circuit court‘s decision to exclude the U-Visa evidence “prohibited all inquiry into the possibility” that Gomez Rojas would be motivated to lie as a means of diverting attention from an alleged effort to rape Reecy. Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435. The defense theory that Gomez Rojas falsely reported the assault and robbery in a preemptive effort to avoid criminal liability for allegedly attempting to rape Reecy was probably a stronger basis for impeachment than the potential of simply being removed from the country. But, in any event, the attempted-rape defense theory was fully developed at trial, in part by cross examining Gomez Rojas.
[¶55.] I do agree with the Court‘s conclusion that the circuit court abused its discretion by admitting the MetaBank document detailing Gomez Rojas‘s unauthorized debit card charges. However, the error was, in my view, harmless. See State v. Brown, 480 N.W.2d 761, 764 (S.D. 1992) (holding the erroneous admission of evidence under the business records exception “does not warrant reversal absent a showing that substantial rights of the party were affected“). The significance of the MetaBank transaction history was simply to confirm that Gomez Rojas had not authorized certain debit card purchases. His corresponding testimony established as much, without regard to the specific transactions themselves, and the bank information did not impact the jury‘s verdict.
[¶56.] Finally, I am not persuaded by the defendants’ arguments challenging the sufficiency of the evidence. In my view, the jury‘s verdicts are supported by the evidence, and I would affirm the defendants’ convictions in all respects.
[¶57.] KERN, Justice, joins this dissent.
Notes
In Ramos Pabon, the victim, then seven years old, accused the defendant in 2005 of sexually abusing her, but no charges were brought at that time. 2019 WL 4122611, *2. By the time charges were brought in 2016, the victim had obtained a U-Visa and permanent residency. The trial court denied the defendant‘s attempt to introduce this evidence to show an ulterior motive to pursue her claim against him. On appeal, the defendant raised a Sixth Amendment Confrontation Clause issue, but the appellate court found he had forfeited such a claim because he did not raise it below. The court therefore reviewed the alleged error for an abuse of discretion and concluded that no such abuse occurred because at the time the case was reinvestigated and the defendant was arrested, the victim, who had obtained permanent residency in 2014, “was not subject to the U-Visa requirement that she cooperate with law enforcement or risk deportation[.]” Notably, the appellate court remarked that “[t]he excluded evidence could certainly be admissible in a different factual scenario[.]” Id. *4.