*1 Dakota, STATE of South Plaintiff Appellee, FLOODY, Defendant
Levern A. Appellant.
No. 17366.
Supreme of South Dakota. Court
Argued Oct. 1991.
Decided Jan. *2 Floody came at the invitation Wil-
C.s. first or second week liam sometime arrived, 1989. When of December pantry him use the area the C.s allowed *3 in the as his bedroom. basement February was sentenced William Dakota State year one in the South guilty plea to Penitentiary as a result of his Prior possession of controlled substance. Floody leaving prison, asked for William eye family keep and on stay with his family friend things. Floody good was a along get well with the who seemed Floody’s lap, sit on children. A.C. would Gen., Barnett, Atty. Sherri Sundem Mark arm, up and watch T.V. curl under Pierre, Gen., plaintiff for Wald, Atty. Asst. L.A.” and Floody A.C. called her “Uncle appellee. and boyfriend. him her considered III, Hills Delaney Northern A. William 17,1990, Saturday, March Pennie was On Deadwood, Office, Defender’s Public leaving laundry room when she over- appellant. defendant and Randy, take them tell “You can heard A.C. Randy you playing if while with off want” WUEST, Justice. else, Hearing nothing Pen- in his bedroom. tried which was is a criminal case This door, into Ran- opened the and walked nie jury found defendant jury. The before Randy on dy’s Pennie observed bedroom. guilty of two counts of Floody (Floody) unzipped top pants were of A.C. A.C.’s 22-22-1(4). The of SDCL rape in violation Randy tugging on unsnapped, and and Judgment of Conviction court entered knowing to handle the pants. her Not how affirm. Floody appeals. We friend, from which situation, Kathy, to see she asked a helpful
if could find information. she FACTS eventually to discuss the Pennie decided (Pennie) married P.C. In November and incident A.C. A.C. was nervous mar- (William). At the time of their W.C. anyone if frightened. Pennie asked A.C. four-year-old son had a riage, Pennie At “private parts.”1 her had ever touched Kenneth; chil- William had two had, and first, began named anyone denied but A.C. six, Randy age four. dren, age and fingers. A.C. After Pennie fidgeting her and moved purchased fault, Pennie and William she was not at A.C. assured A.C. County, South in Lawrence into a home name. Pennie asked mentioned had three bed- Floody The residence A.C. said he Dakota. had done. A.C. what three bed- it,” meaning private parts, main floor and and rooms on the her “rubbed finger Pennie Wil- her.” A.C. also in the basement. stuck his “inside of rooms her,” on the Floody “sucked on one of the bedrooms stated had liam shared although Randy each had her “suck on him” Floody Kenneth and made main floor. began floor. to. A.C. then on the main she did not want of their own bedroom Pennie A.C. when this crying. asked basement. When A.C.’s bedroom happens responded, “It all happened, A.C. began living in then- the C.s Shortly after time, mommy.” family home, friends and numerous new Later, Kathy Pennie asked to talk with out of began periodically move Kathy asked Pennie listened. Floody one of the A.C. while their residence. happened. Hesi- her had the A.C. to tell what family came to live with friends who encourage chil- Pooh characters to terminology "private parts” in a Winnie the was used 1. The strangers, to discuss purchased dren not to talk with for the children Pennie had movie good concepts and bad touch. Strangers,” which uses "Too Smart For called off, and sometimes took them first, Kathy that off. A.C. told tant at Kathy she sex acts her.” A.C. told A.C. was able describe the “had on sucked Floody” stuff detail, recounting and “white had “to suck she had what described also came yucky out.” tasted Kathy. to Pennie and tongue “stuck his Kathy told touching Knuppe asked A.C. A.C. tell Pennie overheard her mouth.” thought Floody occurred. A.C. one time it came it tasted Kathy stuff out and “white happened did before Christmas. A.C. re- police called yucky.” Pennie her, time Floody the last touched know but ported the incident. weekend, thought it was while she on a brought A.C. to Servic- Pennie the Social visiting prison.2 Pennie was William in She *4 A.C. was interviewed es Office where touching stated the occurred when Pennie (Knuppe) and Knuppe Pam Social Worker baby- away and she was left with a was (Hum- Humphrey Deputy Pat Sheriff anyone A.C. denied had sitter. else ever ques- Knuppe primarily phrey). asked Floody in the touched her manner did. tions, during the Humphrey took notes and during present Pennie was not interview. Floody, At A.C. testified: she knew the interview. house, previously had her he lived at and slept in the he basement in a bedroom close Knuppe Humphrey and that A.C. told “private parts” to hers. A.C. identified her stated family. her A.C. Floody lived with being legs. her between She described Floody her. she and knew he loved liked “pri- her Floody touched the inside of how acknowledged and that A.C. demonstrated parts” “pinky finger” with his and his vate parts” “private she what her understood though she not want him mouth even did if ever been asked she had were. When Floody’s “private parts,” her A.C. to. further testified: she saw touched in or on She L.A., he it and “yes, always answered does her mouth “private parts”; Floody touched with by pointing he’s A.C. indicated 44.” “private parts”; Floody his would with finger Floody her had touched her between private parts” “suck on even make her his legs. questioned her about other When to; though she did not when she want replied her touching, Floody A.C. touched private parts, on his white would “suck every his chest hand few and bottom yucky”; come that tasted stuff would out days told it was dark outside. A.C. when parts.” Floody “private and sucked on her frightened she was interviewers Again, anyone denied that other than A.C. her, Floody Floody touched and had told private parts. Floody had ever touched her to do it. she did not want Floody many not know times A.C. did how Floody in his private parts, touched her she knew “it A.C. stated touched her but shop. and A.C. described bedroom happened a lot of times.” Floody Knuppe Humphrey how Floody own behalf. He testified his lay bring her into his would bedroom acknowledged he Dakota arrived South Floody her her on take his bed. would and moved the second week December pants underpants off rub her and then residence; family he had bed- into the C. “hiney” legs her and on her basement; very felt and A.C. room touch Floody A.C. stated hand. him she loved him and had told close to “pinky.” inside” her “on the with his shortly af- Floody also testified that him. touching A.C. also described incarcerated, out of he was ter William was shop. stated she was occurred in the Floody approximately for one week. state Floody on his knees sitting down and improper A.C. in an denied he ever touched Again, by the chair. A.C. stated any way. her in manner or molested “pinky.” “inside” with his She touched her counts of Floody was convicted of two she took her own clothes stated sometimes 9-12, the before the incident had visited March involving weekend It later established Pennie Randy February and A.C. weekends of 23-26 and William on the 22-22-l(4).3 apprises it with reason- the defendant in violation of SDCL rape following against raising certainty issues: accusations Floody appeals able him, plead it must him to indictment, failing enable (1) Whether dates, places a bar to future acquittal times and of conviction as the exact set out rapes violated offense.” State purported prosecutions the same right not to be process Basker, (S.D.1991). right to due N.W.2d jeopardy. put Wurtz, in double State v. Accord admitting (S.D.1989); (2) Logue, court trial Whether Swallow, testimony regarding child sexual admitted ex- syndrome improperly abuse implied A.C. was tell- pert The indictment under which ing truth. rape in charged, included counts of two sup- erred in (3) Whether degree of SDCL 22-22- first violation jury during its deliberation for the plying 1(4).4 for bill The defense filed a motion and “cunni- definitions “fellatio” response, the State in- particulars. its lingus.” alleged rape incidents of formed properly ad- the trial court Whether *5 and place took between the first second made certain statements mitted 17, through March of December 1989 week hearsay rule. exceptions the under to specific The indicated the 1990. State also (5) improperly the trial court Whether parts body of A.C.’s involved were the Floody’s other of admitted evidence vagina. Floody a and filed motion mouth crimes or bad acts. alleging dismiss the indictment was so (6) permitting an statutes ad- Whether right it vaguely drawn that violated ap- hearing an is versarial before placed process right not to be in due indigent in to assist an defendant pointed him jeopardy, rights secured to double right to due his defense violated amendments of the the fifth and fourteenth protection of process equal VI, and article United States Constitution5 law. 9 Dakota sections 2 and of the South Con- We affirm. stitution.6 Jeopardy. A. Double I. jeopardy We addressed the same double indictments on contends the argument in a similar factual scenario in vague so he could he stood were which charged four sep- Wurtz was with Wurtz. prepare trial and assert a properly not for child, of with a arate counts sexual contact prosecution. as a to further conviction bar alleged De- all to have occurred between if it “contains An indictment sufficient 15, 1, 1987. charged such 1986 and March The of offense cember the elements 1, 1991) 22-22-1(4) (1988) (amended pro- or dates October That between about the of SDCL 3. 1989, 20, 1990, pertinent part: March within Lawrence vides in Dakota, County, Alfred did South Levern Rape penetration of accom- is an act accomplish penetration an act a of sexual with any person plished with other than actor’s spouse, person other than actor’s where the any following spouse under circum- ... time, age years was less at victim than ten stances: pen- accomplish did an act of sexual to-wit: A.C., Contrary age SDCL 22- etration 6. (4) years than ten Where victim is less 22-1(4). age[.] pertinent provides in 22-22-2 SDCL the United States Con- 5. The fifth amendment of part: any person be states: shall sub- stitution "[NJor act, penetration however Sexual means put ject be twice for the same offense to intercourse, cunnilingus, slight, latio, fel- of sexual limb_” jeopardy life U.S. Const. intrusion, intercourse, any anal how- V. amend. body slight, any or of ever genital openings object and anal into provides: South Dakota’s Constitution “No 6. person’s body. another jeopardy person put shall ... be twice Const, VI, They 9.§ same offense.” S.D. art. I and II were identical. stated: 4. Counts 247 elements of that offense are “time merely set forth not de- information Wurtz allegedly oc- pendent.” Sysinger, 110, the acts between which 25 S.D. dates statutory language of curred and the 125 880 N.W. See Wurtz, 436 consisted. Basker, Swallow, violation 416; 468 N.W.2d at only distinguishing The N.W.2d general, at 608. In the State need caption four counts was feature allege specificity dates with where time “(FIRST stating IN- top of count each element, not material SDCL 23A-6-9 INCIDENT),” CIDENT),” “(SECOND etc. (1988); Basker, 416; 468 N.W.2d at Swal- noted the record revealed The court Wurtz 608; low, 350 N.W.2d at Commonwealth v. separate scenario each of the factual Niemetz, Pa.Super. 422 A.2d re- instructions four incidents. (1980); Case, So.2d on each count quired individual decisions (La.1978), or where time is not separate guilt or inno- decision on case, presented basic to a defense held, each. The cence “[a] e.g., People Long, Ill.App.3d proof, may proceed outside party 288, 295, Ill.Dec. 370 N.E.2d itself, determine the the information charge which the conviction based provided claimed he was not suf- it as a bar to a upon order to raise notice ficient to establish a defense. (citing Id. at subsequent prosecution.” Wurtz, the made defendant the same claim. 837, 839-40, State, Neb. Cowan investigative court noted Wurtz (1942)). reports furnished to Wurtz before us, A.C., case before while apprise specific trial to him of the acts the being by Humphrey interviewed relying prove State was on to the four Knuppe, prior one incident occurred stated *6 He individual counts. was aware what one the Christmas of occurred charged apprised he was away Pennie was visit on weekend while state’s evidence before trial. the Wurtz (sometime prison in after Feb ing William defense, prepare though able to even 12, 1990). addition, In ruary A.C. stated not the indictment did contain “all incident occurred in the that at least one Wurtz, 436 at lurid details.” 843- Floody’s one in shop, and at least occurred specifici- held 44. Wurtz court lack provided This information was bedroom. reversal, ty grounds to time no for as is Thus, Floody pretrial at a motion. based relying on where this court noted Swallow record, at upon information least two involving nature of offenses minor sex incidents occurred. separate and distinct precludes certainty often with re- children addition, In was instructed there time, spect reporting especially where separate alleged occasions of were two delayed. incident Id. at 842-43 is rape, required the State was both of which 608). Swallow, (quoting at We 350 N.W.2d prove independently. The trial court Basker, in rationale followed same separate on required a decision both where we stated: against Floody hold on his counts. We argument.7 jeopardy double Although information should be an time, possible respect to specific as B. Due Process. always possible not to know with it is certainty an offense occurred. The time of occurrence is not rape especially is true in sexual molesta- statutory in as the This material element inquiry is the State supported Grady Cor The critical what conduct This 7. conclusion bin, provef.] 110 S.Ct. 109 L.Ed.2d will 495 U.S. Grady, held: at 110 S.Ct. at which 495 U.S. holding, Grady L.Ed.2d at 564. Under the Jeopardy any Clause bars subse- Double [T]he prevent Floody’s retrial based conviction would government, quent prosecution in which the rape any second incidents to establish an essential element charged an offense March prosecution, prove of December 1989 and will con- week in that Floody's occurring shop bed for either duct constitutes an offense which prosecuted.... already room. has been defendant Cochrun, 434 State v. involving a minor victim who cases tion (S.D.1989), held “on or 372-73 author- immediately complain to does did not language in the indictment about” circumstances, speci- these ities. Under alibi defense where the prejudice Cochran’s required in an always is not ficity of time alleged to have committed crime was been indictment. had day period a two and defendant within (emphasis add- Basker, 468 N.W.2d day. only part of one “Alibi for alibi 608). Swallow, ed) (citing the accused could must show that evidence crime, case, alleged be Floody testified he was committed the In this not have time of its commission he was period cause at the during a one week out of state where such offense place at a other than incarcerated. shortly after William was (quoting Nel Id. was committed.” rape incidents oc stated one (S.D.1981)). son, Pennie was on a weekend while curred period testimony limited the time Pennie’s prison. Floody visiting away William of two of the second offense to one week charges vagueness of the as to argues ends, February 23-26 and March 9-12. deprived of the incidents dates and times he was out of town one testified opportunity to invoke a viable him of an February. had no alibi week late disagree. defense. We alibi in March. for the weekend Floody presented no evidence of alibi despite Floody’s “al his “alibi.” convicted prior to Christmas. As to existed which not sufficient to convince simply was ibi” rape allegedly occurred after Cochrun, jury. 434 N.W.2d at See incarcerated, question a closer William was must cover the An alibi “to be successful presented. support for Some [appellant’s] presence was entire time when Basker, the indictment position exists.8 accomplishment of required improperly alleged the defendant had purported that leaves crime.... alibi [A] a two- touched the victim sometime within guilty possible it for the accused to be argued reference. Basker month time Nelson, 310 person is no at all.” alibi vague right pre allegations so (citations omitted). N.W.2d at 780 adequate voluntary in pare an defense *7 Rejecting that II. ar
toxication was violated.
specific
held the lack of
dates
gument, we
expert
Floody’s next contention concerns
asserting
prohibit
from
vol
did not
Basker
regarding “child sexual abuse
testimony
defense,
a
because
untary intoxication as
syndrome.” At
a defense witness
is “time-
is not a defense which
intoxication
may
of A.C.
have
posited the interviews
inferring that an alibi defense
dependent,”
leading
proper
suggestive or
and a
been
417.
65
dependent.
Id. at
But see
is time
technique
have recorded
interview
would
(1972);
v.
Rape
Depu-
52
State God
relying
Am.Jur.2d
than
the interviews rather
§
243,
Peil,
dard,
P.
246-47
Kathy
69 Or.
a certi-
ty Humphrey’s notes.
worker,
(defendant
precise
make
date
testified in
the
cannot
fied social
rebuttal
case
by giv
techniques
material
used
A.C.’s
charged in the indictment
interview
acceptable:
his defense includes an al were
ing notice that
Nonetheless,
ibi).
the
is,
we conclude
State’s
in the
... The fact of the matter
specific
more
time
inability
provide
deputy
a
and the
by the sheriff’s
interview
rape
concerning
Department
the
which occurred
Services sometimes
period
of Social
They
ques-
her
preju
did not
would ask
incarceration
after William’s
[A.C.] would—
no,
say,
tion
and she would
Floody’s defense.
dice
[sic]
unquestiona
greater degree
specificity
Gingell,
App.3d
would
In State v.
7 Ohio
(1982),
opined
bly prejudice
in dicta
the court
the defense.” Id. 455 N.E.2d
N.E.2d
imprisoned or was
(dicta).
Long,
a "defendant had been
where
Ill.Dec. at
See also
during part
indisputably
but not all
Roberts,
elsewhere
101 Idaho
370 N.E.2d at
of time set out in the indict
of the intervals
ment!,]
P.2d
inability
produce
of the state to
(citing
have
lar victim.” Id.
There
been—there
United States v.
case.
wasn’t
Pierre,
(8th
thinking
Cir.1987)).
he sucked
saying and at least
viewer was
one state
testimony
argues
implied this
spontaneously indicating
ment was made
telling
thereby
invaded
the truth
being
A.C. was not
influenced
inter
jury
to determine the
province
implied
testimony
viewer. This
A.C.’s
credibility.
witness’
statements were accurate. We do not be
Peil’s testimony
prov
lieve Ms.
invaded the
court has
discre
trial
broad
“[T]he
jury to
ince of the
determine A.C.’s credibil
concerning
qualification
experts
tion
Rather,
ity.
her
helpful
testimony.
the admission of
jury
deciding
whether
interview
as to
matters
The trial court’s decision
such
ing techniques
Department
utilized
appeal
be reversed on
absent
will not
suggestive
Services
or lead
Social
were
showing
discre
clear
of an abuse
ing. The trial
did not
court
abuse its dis
Logue,
tling event or stress of while under the
the declarant caused the event or condi excitement B. Admitted Pursuant Statements *9 reliability of the statement stems tion: The Tender to South Dakota’s over influence of the event that from the Years Statute. capability essential for any reflective rides admitting A.C.’s state- Butt, In addition to 351 N.W.2d fabrication. State v. Kathy the excit- Thus, ments Pennie and under crit to 735-36 “[t]he exception, the trial court also ed utterance the statements were inquiry ical is whether Dako- the statements under South still under admitted the declarant was made while by or excitement caused the event provides: the stress of condition, 9. SDCL 19-16-6 19-16-4, by even § is not excluded startling relating event or to a A statement though is available as a witness. under the declarant the declarant was condition made while statute, ing years tender SDCL 19-16-38.10 the truth when the statement ta’s made.” Id. “provides That statute for admission of youth
hearsay statements of a
victim a
admitting
Prior to
A.C.’s state
only
sex crime
in the event
trial court
[the]
Pennie,
Kathy
ments to
the trial court
time, content,
circum-
finds that
properly considered all of the above factors
provide sufficient
stances of the statement
and concluded A.C.’s statements bore suffi
reliability.”
indicia of
v. Schoenwet
State
reliability
cient indicia of
to be admitted via
ter,
452 N.W.2d
SDCL
agree.
SDCL 19-16-38. We
A.C. was con
19-16-38(1). Since A.C. testified at
by
stepmother
engaged
fronted
her
while
only question presented is
her
whether
inappropriate
sexual behavior which had
previous statements bore sufficient indicia
previously;
occurred
ques
never
she was
reliability
to merit admission.
tioned while her ability to reflect was in
abeyance;
visibly
she
upset
McCafferty,
In
set
forth
we
tears;
point
repeated
she
story
to
factors the trial court should consider in Kathy
substantially consistent;
and it was
determining
hearsay
whether
state
experiences only
she related sexual
sufficiently
ments are
to
admit
reliable
be
subjected
abused child would have been
(the
ted under SDCL 19-16-35
residual
beyond
in detail
capacity
of children of
hearsay exception
requires
which also
age
up;
A.C.’s
make
there was minimal
showing
reliability):
age
and ma
“[T]he
prompting by
Kathy;
Pennie or
the time
child,
turity of the
the nature and duration
Kathy
discussions with Pennie and
abuse,
relationship
of the
of the child to
spent
birthday party
at a
where A.C.
offender,
reliability
of the asser
reflect;
had little time to
occu
tions,
reliability
and the
of the child wit
A.C.,
pied
position
superiority
over
ness.”
McCafferty,
1010
approved
This court has ...
the admis-
activity
uncharged criminal
is not con
sion of other crimes where such evidence
if it
‘other crimes’ evidence
‘arose
sidered
is ‘so blended or connected’ with the
or series of
out of the same transaction
proof
on trial
...
of one inci-
one[s]
”);
charged
offense....’
dently
other[s];
transactions as
explains
involves the
Weeks,
830,
circumstances;
716 F.2d
v.
logically
United States
tends
Graham,
Cir.1983);
(11th
Wright,
prove any
K.
charged.
C.
element of the crime
5239,
Procedure
Federal Practice and
§
(quoting
Bass,
Id.
United States
v.
Imwinkelreid,
(1978);
Uncharged
at 445
E.
1305,
(8th Cir.1986)).
F.2d
See also
Evidence;
(1984). The
2.10
Misconduct
§
Towne,
886;
870 F.2d at
United
v.
States
its discretion in
trial court did not abuse
Robbins,
688, 694,
613 F.2d
55 A.L.R.Fed.
admitting
continuing
na
evidence
(8th Cir.1979);
Carter v. United
penetration
the sexual
acts.
ture of
States,
77,
(8th Cir.1977) (“res
549 F.2d
gestae”
recognized exception
rule is well
of sexual contact which
Evidence
404(b));
State,
472,
Crisp v.
667 P.2d
during
rape
incidents was also
occurred
(act
(Okla.Crim.App.1983)
per
of sodomy
In
properly
admitted
the trial court.
immediately prior
formed
rape
admissi
cases,
quite impossible
prove
it is
some
part
gestae”);
ble
“res
Allan v.
revealing
one crime without
other crimes.
State,
92 Nev.
549 P.2d
cases,
impli
19-12-5 is not
such
SDCL
(1976) (in prosecution
performing
for
fella
“other” acts evidence is not
cated because
minors,
tio
evidence
other acts com
being introduced. Rather such evidence
boys
mitted with the same
admissible as
part
constitutes
of the circumstances of the
gestae”).
of the “res
Smith,
charged crime.
v.
trial court faced
similar scenario
33-34
age,
here. Because of her
A.C. was not
Burtts,
150, 156,
81 S.D.
separate
rape
able to
the acts of
from the
(1964) (evidence
211-12
of another crime
accompanying
acts of sexual contact
presence
explained police officer’s
rape.
only
testify
She was
able to
charge
dangerous weap
of assault with a
rapes
regular
in-
occurred on a
basis and
on).
Evidence,
also 2
su
See
Weinsteins
constituting sexual contact.
cluded acts
404-77,-79;
11404(10),
pra,
Imwinkel
necessarily in-
rape
Proof of the
incident
reid, supra,
6.21-6.24.
§
Thus,
proof
volved
contact.
evi-
Eighth
Appeals
has
Circuit Court
accompanying
contact
dence of the sexual
subsequent
repeatedly addressed this issue
properly
rape
the acts of
admitted
404(b) (the
to the enactment of Fed.R.Evid.
invoking
without
SDCL 19-12-5.
19-12-5).
equivalent of SDCL
United
Noncontemporaneous
B. Other
Bettelyoun,
892 F.2d
States
Evidence.
Sexual Contact
(8th Cir.1989),
Eighth
Circuit held testi-
perpetrated by
Regarding the acts of sexual con
mony regarding an assault
separate
approxi-
may
tact which
have occurred
the defendant on another victim
incidents, the trial court ad
mately
rape
hour
a murder
an
from the
one
before
charged,
pursuant
those acts
“integral part of the crime
and as mitted evidence of
The trial
governed by
19-12-5 as “other acts.”
such was not
SDCL
[Fed.R.Evid.
of sexual contact
404(b)].” Similarly, in
court concluded evidence
United States
during the
Tate,
(8th Cir.),
Floody on A.C.
committed
821 F.2d
cert.
denied,
place; and
period;
time
in the same
484 U.S.
108 S.Ct.
98 same
situations, although
(1987),
under similar factual
L.Ed.2d 662
the court held evidence
(and
charged
there
shooting
trooper
extrinsic to the crime
of a state
meaning of
integral part
prosecution
weapons
fore “other acts” within
19-12-5),
a continuous
necessary to ex- SDCL
would show
violations because it was
*12
purposes
proving
of
for the limited
criminal action and
sible
system”
or
of
“plan
motive,
intent, preparation,
circumstantially
opportunity,
an intent
establish
Floody’s
carry
the crimes
knowledge,
out
plan,
on
and a course
continu-
of
The trial court
charged
Roden,
indictment.
ous criminal action.”
probative force of
sexu-
(S.D.1986)
determined
(emphasis
N.W.2d
substantially
not
contact evidence was
al
(where
added)
charged
defendant was
outweighed by
prejudicial
its
effect.
specific
of
rape,
incidents
sexual contact
were ad-
by another child witness
related
jury it
court
instructed the
The trial
design or
missible to indicate common
acts” of sexual
consider the “other
could
scheme).
Sieler,
The Eleventh Circuit
Floody’s in Clark v.
very similar to
ment
Cir.1987),
(11th
cert.
MILLER, C.J.,
Dugger,
concurs.
denied,
S.Ct.
U.S.
SABERS, J.,
specially.
concurs
Clark,
defense
L.Ed.2d
appoint
requested the trial court
a
counsel
AMUNDSON, JJ.,
HENDERSON and
insanity de
psychiatrist to assist with an
concur in
and concur
result.
pro
applicable
rule of criminal
fense.
(concurring
SABERS,
specially).
Justice
findings
contemplated
expert’s
the
cedure
IV(a)
agree
majority
I
the
in issue
the court and
to be made available to
hearsay
that
it
error to admit the
motion,
hearing
prosecution.
a
At
under the “excited utterance ex-
statement
presented no evidence or
Clark’s counsel
ception”
stated
the ma-
reasons
be enti
argument
why
Clark should
jority
for the reason that
fit within
and
private psychia
a
appointment of
tled to
exception,
hearsay
statement must
that if Clark had
merely
trist but
stated
startling
or
in-
relate to a
event
condition
funds,
hired his
sufficient
he would have
volving
opposed
the defendant as
to a star-
strategy
expert.
followed to
own
This
tling
involving
event or condition
sex be-
prevent
learning facts which
the state from
two children.
tween the
have been detrimental
to Clark’s
result,
a
Id. at 1564 n.
As
case.
statement
must relate
involved
“[T]he
appoint
court refused to
a defense
trial
pertain
or condition that
event
rights
psychiatrist.
contended his
Clark
response.”
caused the immediate or excited
sixth, eighth, and fourteenth
“under the
803.2,
Evidence,
Larson,
J.
South Dakota
§
violated, relying on
amendments" were
(1991);
Graham,
at 576
M.
Hand-
see also
support
argument.
Elev
Ake to
Evidence,
803.2, at 837
book of Federal
§
rejected
claim not
enth Circuit
Clark’s Ake
Ed.1991); McCormick, Evidence,
(3rd
make the
ing
counsel failed to
Clark’s
(3rd Ed.1984). There-
at 857-858
§
showing necessary to mandate
threshold
fore,
“startling
ex-
event
condition”
psychiatrist,
a
and there
the assistance of
isting
Randy may sup-
and
fore,
depriva
no constitutional
there was
port
hearsay
statement about that event
tion.
Id. at 1564-65.
support
certainly
or condition but
will
hearsay
prior
some
and
statement about
II
Given the Clark and
Sahlie
that
remote
or condition
occurred
event
holdings,
perceive
it is
how
difficult
between A.C.
defendant.
rights
Floody’s
were violat
constitutional
reports
agree
majority
I
in issue
Revealing
experts’
V
ed.
defense
acts
A.C.’s
other
x-rays in
of trial would reveal
advance
strategy;
properly admitted. These
yet,
we have with her was
defendant’s trial
(quoting
Superior
perform
Court
prosecution
its function
Id.
Jones
County,
Cal.Rptr.
Other courts have protection entitled to of the law. Particu- of other occurrences a as to evidence larly, vigilant the law must be in providing exists moles- distinction between sexual strength very young its and the tation cases and other crimes. See State weak. was sentenced to two con- Friedrick, 135 Wis.2d years current terms of 70 in the State (1987). However, this distinction Penitentiary. given greater latitude to admission of prior bad acts sex crimes is and should Eeviewing record, the evidence in this I only exercised in the context of same totally am convinced that Floody got his *15 defendant/same victim. The rationale “just defenseless, Violating desserts.” this creating the distinction is that the girl’s body period little over an extended of testimony prior victim’s as to similar acts time, nothing dastardly. less than It by necessary the defendant is to “disc- is not jury’s difficult to understand the relationship par- the the los[e] guilty verdict of nor the severe sentence of ties, opportunity and inclination to [the] judge. the No arrow infliction is aimed of, complained commit the act and [to] defense, at counsel for the appel- but as an specific charge.” the ... corroborat[e] justice, late why it is understandable nei- Haala, (Minn. 415 State v. N.W.2d ther the nor sufficiency sentence of the victim, App.1987). Testimony by the but Here, evidence is attacked. the evidence step-sister, by prior not her as to instanc committed, reflects that in a series by es of sexual contact the defendant acts, penetration upon sexual this little may to the in be relevant issue of intent girl. SDCL 19-12-5 [Fed.E.Evidence charge a for a violation of SDCL 22-22- 404(b)] respect was not violated with (Emphasis original). in uncharged penetration other acts of sexual Basher, (S.D. 468 N.W.2d contemporaneous acts of sexual con- J., 1991) (Sabers, specially concurring) tact. (quoting Champagne, State v. issues, majority’s treatment of all (S.D.1986)(Sabers, J., dissent simply I concur. But I cannot—will not— ing)). academically approval, by accede to the this HENDEESON, (concurring Justice in Court, majority of the writer’s treatment of result). part; concurring Initially, question Issue II. is one
Sorely, I approving disapproving am troubled this case. or of “the child syndrome.” Correctly, abuse writing penned by This is the author on issue is framed as follows: 15, 1991, Sunday, An- December the 200th properly Did the trial court allow the niversary Eights. country’s of our Bill of present testimony state to rebuttal years protect For I have tried to our (a) (b) directly indirectly implied either rights Eights— citizens’ those Bill of —to testifying that the victim was in a truth- judge first as a trial and later as a Su- ful manner? preme years prior Justice. For 25 Court thereto, state, lawyer My position a in this is no. is fol- absent The answer as my infantryman Basically, question as an in the 7th lows: of fact is for service Beadles, Cavalry Eegiment jury. Bogh Korea 1952 and the S.D.
1953,1 (1961). lawyer, principal- It is not our function acted as a defense N.W.2d 342 evidence, ly pass A conflicts in the on Western South Dakota. man be- to resolve witnesses, weigh ingrained, years credibility of such the comes thinking, into a mental mold which is diffi- evidence. are within the Such functions course, Minkel, impartiality jury. on province cult to set aside. Of interviewing quality tech- There- 230 N.W.2d S.D. again the state- fore, niques. you not invade If will read an “witness” should Logue, Peil, jury. quoted majority province of the ment of Ms. 151, 157 further than opinion, comments went her techniques. My opinion interview on sleeping gi- testimony “Syndrome” reading quote opine causes me quickens mind prosecutor’s A ant. testimony is such a comment Soon, giant is elicited. evidence such girl. veracity little This witness ready for Then it is and awakened. stirred far, too became the fact finder. went she a vic- quick devour. It needs rampage, “spon- said A.C. was leaps She the statement of so from to eat that it victim tim—a once, She bolstering the credi- taneous.” Not but twice. testimony to general expression happens, characterizing, by adjective, Once that bility of witness. jeopar- Rights’ guarantee is girl stamp fair trial to thus add a Bill of little evidentiary enlargement runs credibility girl’s Such little remarks. It dized. VI, Rights, Bill of previous afoul of Article to me this was § seems forbidden It elimi- Constitution. Dakota State South Logue, law in this Court. case face an accuser. It right nates the Solem, 151, 157; McCafferty v. deciding from an issue of prevents troubling Another fea- 593-594. fact. testimony procedural ture of this is the background through which this majori scenario and in the In this factual jury. before the went Peil, “Kathy a certi ty opinion, it is noted: *16 worker, testified in rebuttal the fied social Background thereof now follows: Prior techniques used in A.C.’s case interview trial, filed a Motion in to the defendant Why acceptable.” Says who? should were seeking preclude Limine to the from tech able characterize “interview she be to concerning offering testimony at trial the being “acceptable?” Should not niques” as syndrome. so-called child abuse province find jury, within its to the the motion, the The state filed a resistance to facts, techniques if decide the interview pre-trial up the at a matter was taken “acceptable?” conclusory Such a hearing. expressed Defense counsel con- strips jury’s absolutely away a statement that if the court were to overrule this cern obligation to find the facts. Immense ener testimony, that motion and allow such learn gies required are sometimes to danger a that the there was energy quicken is prevail. Minds go imply alleged the too far and expended.* Expending energy, it is worth acts of sexual abuse occur. did noting “syndrome” testi that the so-called court, hearing argument further of after proceeding mony fraught the risk of counsel, the denied motion but cautioned bolstering general testimony the from to that no witness either for the state the witness, as credibility of a I have alluded to defendant, “opine that another witness have of our Court been above. Members (sic) lying.” tell the truth or by this on several occasions. troubled At of the state’s case in as Bachman, Read State v. chief, related, Peil, as I a certified have (S.D.1989), separate dissents of 277-80 worker, testify social did child Henderson, Sabers, J.; McCafferty J. However, during syndrome. sexual abuse 590, 596, Solem, dissent of case, of portion the rebuttal state Henderson, J.; Spaans, on ostensibly recalled her to comment (S.D.1990),dissent of techniques Deputy Humphrey, of Henderson, Azure, interview J.; United States present she heard as was in (8th Cir.1986); had she Lindsey, F.2d 336 Humphrey testified. Ms. the courtroom when 149 Ariz. 720 P.2d Peil presence jury, defendant permitted testify to Outside the should not have been * it, knowledge. why spring- how of chief contributor A desire know the mind, ing inquisitive is the from the lust of an body. physician A testified that he exam- testimony by Ms. any further objected 21, 1990 and noted a she ined A.C. on March danger that was Peil, as there square in a centimeter an area on indirectly comment on bruise directly or going to right genital lips. side of her Sexual or some other veracity the victim penetration certainly occurred. Direct and argued state state. The for the witness pointed to circumstantial evidence all to one testimony was rebuttal Peil’s that Ms. State, person perpetrator Floody. as the Flint, deputy Attor- Bryce State’s — record, proof “beyond met its procedures under this testified as to ney, who had Reviewing interviewing this entire County reasonable doubt.” in Meade followed case, I sexual abuse. am struck with view that subjects possible young would have been convicted of these two however, the state’s difficulty, rape regardless crimes of evidentia- specifically did not that Flint position was opinion I ry join majority error. its techniques on the interview comment in result due to the affirmance but concur fact, did not have case. he this liberality, viewpoint expansion, nay tech- interview knowledge of the actual workers, not, that the social certified or can or, for that mat- actually employed, niques usurp courtroom and the func- come into a ter, surrounding pro- this any other facts jury. despise I It is a far tion of the it. Nonetheless, trial court overruled ceeding. safeguard of cry from the constitutional then objection, allowed defense counsel’s “facing your accuser.” We have another testimony, and standing objection to Peil’s example prosecutorial by prose- overkill opin- to elicit an allowed state further Knowing that cutors of this state. quality of as to the ion from said witness girl going testify, why little interviewing techniques. I fear trial Kathy Peil called as a witness to character- supposed to be experts. Trials are testimony? you’ve Now “the ize her heard Ameri- are the soul of the jury. Jury trials vigilant, Let us story.” rest of the justice. system can Rights, birthday 200th of the Bill of right hope- a fair trial Was deep respect Rights for the Bill of instill a *17 Surely compromised? I doubt it. lessly legal infinity. liberty our dribble into lest I will damaged his defense. this evidence servant, F. Henderson. Your go did not so far that this witness concede that Jus- hereby I am authorized to state permitted But the trial court Logue. inas joins this concurrence. tice AMUNDSON evidentiary It go Peil to too far. on such the case be reversed error. Should Well, appellant to is on
error? burden only prejudicial error also not but
show
error, to the effect that and it must be evidence, might jury under the Dakota, Plaintiff of South STATE returned a different probably would have Appellee, Wimberly, 467 N.W.2d verdict. Davis, 499, 721, WALL, Marguerite L. Defendant to a fair A defendant is entitled Appellant. States, perfect one. Brown v. United No. 17458. 1570, 1565, 93 S.Ct. 411 U.S. of South Dakota. Supreme Court (1973); see v. Ben L.Ed.2d (S.D.1990) (quot nis, Briefs Oct. Submitted States, 411 U.S. ing Brown v. United 12, 1992. Decided Feb. 1565, 1570, 36 L.Ed.2d 93 S.Ct. 23, 1992. Rehearing Denied March this (1973)). juryA saw and heard testimony was vivid girl testify. Her little before the This
in detail. upon reflecting A.C.’s horrid conduct