State v. Karlen

SD 12 Dakota Plaintiff of South STATE Appellee, KARLEN,

Trey Defendant L. Appellant. 20299.

No. Dakota. Court of South

Supreme

Argued Oct.

Reassigned Dec. 3, 1999.

Decided Feb.

Rehearing March Denied Barnett, General, Clyde R. Attorney

Mark Calhoon, Attorney, Brookings County State’s Kratoehvil, Brookings William Mark and Brookings County Attorney, Deputy State’s Brookings, appellant. plaintiff and Arneson, Gienapp & David R. of Issenhuth Madison, Gienapp, appel- for defendant and lant. Counsel, Sheklteon,

James F. General Pierre, Regents, Dakota Board of South Re- Amicus South Dakota Board of Curiae gents. (on

GILBERTSON, reassignment). Justice appeals 1.] Karlen his conviction of two degree rape, of counts of second three counts with unauthorized distribution of substance potential moderate for abuse and three with counts sexual contact without consent person capable consenting. We affirm one, to issues two four and reverse and and three. remand with instructions as issue

FACTS Trey manager [¶ 2.] was business publicity for the South Dakota director (SDSU) University Au- Theater. On State 15, 1996, Brookings gust he was indicted County thirteen-count indictment. The on a crimes, charged which occurred Oc- between 31, 1994, 8, 1996, July tober involved male with the the- victims associated SDSU community. included ater The indictment five of sexual contact without consent counts capable person consenting; with three rape; degree five counts second a sub- counts of unauthorized distribution of potential moderate for abuse. stance with pled guilty charges. all On following hearing December motions, (unautho- eleven parties’ counts of a with moder- rized distribution substance abuse) (sexual potential for and twelve ate OF STANDARD REVIEW capable person without consent contact We review trial court’s find consenting) were of the indictment dis- ings clearly under the fact erroneous stan missed. ¶ Westerfield, dard. State 1997 SD 866. A N.W.2d trial court’s eviden- 4,1997, January On the state’s attor- tiary presumed rulings “are correct are ney Karlen that the intended notified State reviewed under abuse of discretion stan charges in the indictment. dismiss Larson, dard.” charges formally were on Jan- dismissed (citation omitted). “The later, uary 1997. One week Karlen was [a] construction of statute and application its on fourteen indicted counts. crimes present questions law, to [the] facts charged included de- three counts of second we novo.” Springer-Ertl, review de gree rape;1 six counts of sexual contact ¶ SD 40. “In N.W.2d person capable consent with of con- without reviewing judg the denial of a motion for senting;2 and five counts of unauthorized acquittal, ment of question ultimate of a substance moderate distribution with whether the evidence was sufficient to sus potential pleaded for abuse.3 Karlen not Larson, tain the conviction.” SD 80 all guilty counts. ¶ 9, 582 at 17. charges The trial on com- [¶4.] these September 2, on menced 1997. Karlen was DECISION degree guilty found on two counts of second rape, three counts of distribu- unauthorized [¶ 1. The trial court 7.] did not err in potential tion of a substance with moderate denying Karlen’s motion dismiss. abuse,4 for and three counts of contact sexual claims [¶ 8.] Karlen the trial court should person capable without consent with of con- charges have dismissed because 180- senting. day rule was violated. He also claims appeal, In this the fol- raises charges dismissed, have been should because lowing issues: he was speedy denied to a trial. disagree We both claims. with deny-

1. the trial in Whether court erred a, ing 180-Day 9.] Karlen’s motion to dismiss. Rule. [¶ 2. the trial in Whether court erred 23A-44-5.1, [¶ 10.] SDCL which 180- is the granting Karlen a continuance because rule, day pertinent in provides, part: unavailability of of a witness. (1) indicted, Every person or informed grant- 3. the trial court in Whether erred complained against any be offense shall ing subpoena quash motion to is- brought eighty within to trial one hundred Henry the defense Fulda. sued days, computed and such time shall be provided in section. deny- the trial Whether court erred (2) judgment

ing eighty Karlen’s motion for a day period Such one hundred acquittal as to Count to run IV. shall commence from the date the degree rape though capable consenting, 1. Second is a violation SDCL 22- has not consent- which, part, provides: 22-1 ed to such contact. penetration Rape is an act of sexual accom- any Unauthorized distribution of a substance with plished person any with under of the fol- lowing potential abuse moderate is violation of SDCL circumstances: 22-42-3, provides pertinent part: incapable giving If the victim is consent manufacture, may person or [N]o distribute any intoxicating, or an- because narcotic III; dispense a substance listed in Schedule agent hypnosis[.] esthetic or distribute, manufacture, possess intent to with 2. These six counts are in SDCL 22- violation of dispense a substance listed in Schedule 22-7.4, which states: IIIU years may person age No knowingly engage fifteen or older Acetaminophen/Codeine # 3 in sexual contact with an- was the substance who, person spouse other other than al- Karlen distributed. 180-day period judi- when appeared elude the commenced has before .first reindictment, appeared indictment, Karlen first on the on an information cial officer 5,1997. February which was complaint. Moreover, 14.] a review of the record [¶ Karlen contends the State’s 11.] [¶ delay much of reveals that was attribut- 15, 1996, August indictment dismissal of 5, 1997, February At able Karlen. January him on reindict and its decision ready arraignment, it the State indicated was 180-day rule violation. caused proceed time the court the trial would been held He claims counsel, Gienapp, would and Karlen’s David 180-day frame time had the dis- within the tentatively set to available. trial was be reindictment occurred.5 We mjssal tentative, May begin on 13. The date was By claims to be without merit. find these Gienapp was tri- because involved another date, using Karlen cannot establish either might May felt conflict with the al 180-day rule violation.6 did, fact, trial date. The conflict arise. adopted a two- Court letter, April Gienapp, by informed On determining date from part test prosecutor that court and the he would begins 180-day to run when period which the May for the trial dates unavailable because has been dismissed and an initial indictment Karlen, April 25, court, On the conflict. v. Lowth the is reindicted. State defendant associates, Gienapp’s prosecu- one of and the (S.D.1989); er, 747, see also 434 751 N.W.2d tor, telephonic held a conference to deter- Tiedeman, 237, N.W.2d 239-40 State v. 433 parties mine the manner the which should (S.D.1988) Pennsylvania (applying the court’s proceed. parties The court informed it the determine the date on two-pronged test to treating Gienapp’s April 14 a was letter as run). 180-day period begins to which the and, thus, granted motion a for continuance 180-day period The commences when the the continuance. The court then the tolled on appeared first the reindiet defendant has trial, 180-day until rule the date of “(1) prop indictment was ment if the earlier 2, September Clearly, set this was for judicial erly by competent officer dismissed delay the was not demonstrates the result (2) and record does not reveal evidence of the 180-day rule the State’s actions and that the prosecutorial attempt to circumvent the was not violated. Lowther, 434 at 751 180-day rule.” N.W.2d Karlen [¶ 15.] further asserts SDCL 239) (other Tiedeman, (citing prohibits 23A-44-5.1 a reindictment from n omitted). citations starting 180-day period. a new conten closely reviewing the rec After language tion is erroneous. of SDCL ord, original the we find no evidence show clear unambiguous. 23A-44-5.1 is and See improperly Trownsell, More 36, 14, was dismissed. indictment v. Dahn 1998 SD 576 over, Guttormson, nothing 535, reveals that the the record v. (citing N.W.2d 539 Moss 14, 17) charges original 76, (stating State in the 551 dismissed the N.W.2d 180-day the rule. language indictment to circumvent that when the of a is clear statute unambiguous, prongs of Lowtk our function is declare record shows that both Therefore, meaning expressed). we con- its as it is The rule er have been satisfied. September January would concedes under SDCL 23A-44-2 3 be excluded Karlen that prosecution right to computation days. the the dismiss the in- from tion, addi- the of the 180 In did, it in the manner that but he contin- dictment period the time between defense counsel's argue ues that the dismissal interfered with his 14, 1997, request April for continuance on rights. granting April the on must continuance calculation, also be excluded from the as must appeared first on the initial indictment Karlen period granting from of the continuance 3, 1996, 180-day September on the date the 2, 1997, Clearly, September until trial date. period running. on commenced violated, if, 180-day rule was not even day, determining same when an available date argues, computed time should be trial, like the court stated it would appearance from his initial on first indict- trial date the time tolled until first ment. January after 1997. The trial was set available for then, January period, 1997. The between

599 (1) Goodroad, things: 180-day 521 five re- See at 437 addresses N.W.2d (2) States, Doggett the commencement of the quirement; v. United 505 U.S. indictment, (1992)). period following 2686,120 an informa- time L.Ed.2d 520 (3) tion, complaint; the commencement of delays [¶ 20.] This Court has found of more period following time for a new order year presumptively prejudi- than one to be mistrial, trial, following a trial and the Jones, (four- cial. See at 668 N.W.2d (4) remand; filing on of mandate time delay presumptively prejudi- teen-month was in computing the time for periods excluded cial); Goodroad, 521 N.W.2d 437-41 trial; charges the dismissal of the (twenty-seven-month delay presumptive- was prejudice brought if prejudicial, ly but dismissal was denied be- 180-day to trial within the time frame. responsible cause the defendant was Nothing language rule can Krana, delay); much of the State v. interpreted prohibit a from reindictment (S.D.1978) (thirty-nine- N.W.2d 77-78 starting 180-day period. a new delay prejudicial, month presumptively but dismissal was denied because defen- speedy b. to a trial. Right responsible delay); dant was for much The Sixth Amendment of the Feather, v. State Black N.W.2d VI, States and Article United Constitution (S.D.1976) (thirty-three-month delay was guaran § 7 of the South Dakota Constitution Starnes, presumptively prejudicial); right speedy tee defendant the to a trial. S.D. N.W.2d Jones, See (twenty-five-month delay resulted dismiss- (S.D.1994). claims he denied charges). We pre- al have also found no through the State’s dismissal sumption prejudice delays of less than subsequent first indictment and reindictment Stock, eight See State months. January 1997. He further contends (S.D.1985) 280, (delay N.W.2d of 284 seven prejudiced by delay, was the because a he enough months was a not constitute con- witness, would “critical” defense who have violation); Holiday, stitutional 335 N.W.2d at trial, January been available for the was not (five-month delay presumptively 335 was not September for trial. available the prejudicial); 331, v. Pickering, 87 S.D. State determining [¶ 18.] When whether a 338, (1973) (four-month 511, 207 515 N.W.2d right speedy to a defendant’s trial has been delay require was not sufficient to dismissal denied, this Court considers four factors. charges). Jones, 521 at N.W.2d 668. We must consid case, [¶ 21.] In this claims the Karlen “(1) delay; length er: the the length delay nine He is months. concedes . (3) delay; the ac reason the whether delay may insignificant light “in seem trial]; right speedy [for cused asserted a delays speedy seen in other cases where prejudiced accused whether the agree trial issue raised.” has been We delay.” (citing Wingo, v. Id. Barker delay his concession. Because a nine-month 530, 2182, 514, 2193, 407 U.S. 92 S.Ct. 33 presumptively prejudicial, not is other 101, (1972)); L.Ed.2d 116-7 See State v. We, need be factors not considered. there- Goodroad, (S.D.1994). 437 fore, speedy to a hold that Karlen’s factor, length first [¶ 19.] The of the trial was not violated. delay, triggering “is to extent a mecha some delay nism. Until there is some which is [¶ 22.] 2. The trial court did not abuse its presumptively prejudicial, there no is neces by denying discretion Karlen contin- sity inquiry go into other factors that unavailability uance because of the Holiday, into balance.” 335 a witness. (S.D.1983) (quoting N.W.2d 334-35 Barker, 92 at A U.S. at trial court’s decision to 117). However, delay grant deny L.Ed.2d at if a or reviewed un is continuance is “presumptively prejudi determined be der abuse of discretion standard. State ¶ cial,” Letcher, the other must N.W.2d factors be considered. 1996 SD ruling proposed testimony nor trial contents of Barnett’s of the court’s is 407. Reversal charged. showing knowledge clear of the crimes upon a of abuse. proper standard, Further, he gives test us no reason to believe “[t]he not Id. Under the testimony help have rul- Barnett’s would the defense. made same we would whether mind, judicial we believe a ing, but whether hold, therefore, the trial [¶ 26.] We circumstances, of the law view denying did not abuse its discretion court reasonably con- reached the same could the continuance. ¶ Larson, 1998 SD at clusion.” Goodroad, (quoting at 17 1997 SD 46 N.W.2d grant- 3. The trial court erred 129) omitted). (citation at at quash subpoena ing a motion Henry Fulda. issued the defense to a witness is unavail [¶ When 24.] able, met for requirements three must be te- subpoena issued a duces Letcher, a continuance. to obtain attempt cum an to obtain Addison John- ¶30, 552 at 407. at (Johnston) Henry Dr. ston’s records from First, testimony of the absent witness (Fulda), Fulda a counselor SDSU Counsel- Next, diligence must be material. due must jury ing determined that John- Center. attendance used to the witness’ or secure Karlen’s ston one of victims. Finally, “reasonably deposition. it must be claims, least, very counseling rec- presence of the witness certain the ords should have been reviewed in camera testimony procured by the time will be exculpatory or contradic- determine whether postponed.” would be Id. tory present. Karlen con- information was Davies, 243, 247-8, 33 S.D. tends since the record shows Johnston N,W. (1914) (citation omitted)). given varying regarding inci- statements defendant has failed to estab if the charged, the with which Karlen was dents requirements, three the court lish evi- counseling contain additional records denying its abused discretion credibility may go dence to Johnston’s Davies, 248-9, continuance. S.D. even Karlen. exonerate omitted). (citation N.W. at 720 eight [¶ 29.] Karlen was convicted on Here, fourteen in the indictment. Three of Karlen has estab counts [¶25.] X, Although requirement. these counts involved Johnston: Count lished first witness, Barnett, Degree; in the Rape Mike conviction for claims that the absent Second XII, charges a witness to the involv Count a conviction for Unauthorized was “critical” accusers, ing provided has Distribution a with Moderate two of his no Substance and; XIV, testimony a con- Barnett’s was mate Potential for abuse Count evidence that anticipated of a He that he viction for unauthorized rial. claims Barnett’s Distribution testimony contradict the two accusers’ Substance with Moderate Potential would testimony, supports trial, nothing regard- in At the record abuse.7 Johnston testified but Clearly, unsupported ing claims these admitted he this claim. are incidents. Johnston testimony given previous con- not to establish that is several statements sufficient (cid:127) showing trary testimony.8 his material. Karlen makes no such, remaining Q: long ... 7. As we affirm on the How did that continue ? counts dó not they upon cribbage was convicted as night. playing which Karlen But I A: Into the involve Johnston. game. ... I and couldn't finish important It is to note that at the time each So, cribbage you Q: complete couldn’t charged, Karlen was occurrence for which John- game? marijuana drugs using ston was and other No, A: sir. literally passed that he out. such extent John- Why Q: not? testimony depicts during ston's state of mind concentrating very A: I wasn't well. Because nights occurred. the incidents My keep game. focused in on couldn't —I just drugs? Q: take You would all of those zone, guess. I I was kind of in a A: Yes. zone, by you Q: What do mean kind of in Along smoking marijuana? Q: with Addison? Yes, A: sir. apply privilege a. does if the itself Waiver disclosure is added). privileged. (Emphasis under SDCL 19-13-26. argues the lan State chapter Since 19-13-21.2 in the as same guage privi creates a of SDCL 19-13-21.2 19-13-26, provides an SDCL 19-13-26 addi- (Johnston) lege in that can the student applicable tional method of that is waiver in by pro waiver. The statute be overcome Johnston, this case. The record indicates vides, pertinent part: in trial, prior to the Karlen discussed incidents counselor, regularly employed No M.J.E., girlfriend, with his his aunt on two private as a for a full-time basis counselor occasions, faculty, two members Dr. public college university in or or the State Johnson, Ackman, J.D. James and two Dakota, may divulge any of South other individuals, other N.S. C.W. Johnston any concerning be person, or examined also admitted he discussed Karlen mat- given information communication Therefore, ters some form with Fulda.9 capacity by counselor in his official a client under SDCL 19-13-26 Johnston waived unless: privilege concerning the facts relevant to privilege writing by is waived charges against Karlen as these conver- student; or parties with sations third cannot be claimed information or communication privileged. themselves to also be express pur- made to the counselor for disclosing We have held that infor- pose being being communicated destroys privi- to a party mation third public. made Bear, lege. In State v. Catch 352 N.W.2d Relying solely on the contained waivers with (S.D.1984) interpreted we 19- SDCL 19-13-21.2, argues State no SDCL if 13-26 to invoke waiver client voluntari- waiver occurred this case as Johnston did ly discloses the contents of the communica- give permission Fulda written to release party. tion to third See also State v. provide the information nor did Johnston McKercher, (S.D.1983) publicly Fulda with the instructions to com (statements made in a tele- municate the information. related phone conversation his wife while he together statutes must construed to deter confidential, jail were not was detained Heeren, legislative Maynard mine v. intent. protected by spousal privilege were not 1997 SD 60 835. Fur admissible, and were since the statements ther, narrowly privileges are to be construed privately go were not made or intended they as constitute barrier search person). undisclosed to other Johnston’s Witchey, truth. him claim- multiple prevent disclosures from (S.D.1986) Nixon, United States ing privileged any he had conversation 3090, 3108, 41 U.S. regarding with Fulda Karlen. (1974)). 1039, 1065 L.Ed.2d [¶ 32.] SDCL 19-13-26 states: statutory policy [¶ is constitution- ally appropriate. seeking The State is to person upon chapter A whom this confers using privilege is convict Karlen and thus the privilege against the disclosure waives prosecution, as a sword that not as shield privilege predecessor if he or while his an voluntarily protect to itself and citizen from action privilege holder of the its discloses against any significant by Maynard, to consents disclosure of them. Cf. part privileged at 836. the matter. This section SD 60 at 563 N.W.2d Trey Being asleep you’re sexually A: when awake. Numb- A: I had told her that ness, being raped unconsciousness while conscious. harassed me and me. time, Q: caused that? Q: What at was a stu- [M.J.E.] And that —she drugs. dent, A: The right? A: Yes. following testimony brought the The out you anyone you Q: What did did tell —or attorney questioning state’s of Johnston: faculty? college the admission you Henry Q: What did tell A: told Fulda. [M.J.E.]? I enjoy prosecutions, accused shall employ adversary an criminal the elected to have We justice right in which ... to be with wit- criminal confronted system of against him.” amend VI. all before a court of nesses US Const contest issues parties provides develop to all relevant facts Dakota sim- need The South Constitution law. The adversary prosecutions both fundamen- system protections: is “In all criminal in the ilar of crimi- comprehensive. right The ends ... to accused shall de- tal have judgments if justice would defeated the accusation nal be the nature and cause of mand thereof; partial specula- him; founded on a to against copy were to be meet very The presentation of the facts. against tive face to face....” witnesses him public judicial system and VI, of the integrity § art Confron- Const 7. The so-called SD depend on full system in the protec- specific confidence provides tation two Clause facts, all within the Pennsylvania disclosure tions for criminal defendants. of the rules of evidence. To 989, framework Ritchie, 39, 51, 998, 480 U.S. 107 S.Ct. done, imperative justice it is that is (1987). ensure being The first is 94 L.Ed.2d compulsory that function of courts to the right to face his and the second accusers production for the -of process be available right to those who testi- is the cross-examine prosecution needed either evidence him. Id. fy against privi- [the defense.... Whatever or the that 38.] It is well settled origins, the de- leges’] exceptions to these Id. absolute. at to cross-examine is not every are not mand for man’s evidence 53,107 L.Ed.2d at 54-5. The construed, expansively nor lightly created ability does to cross-examine witnesses for they derogation are of the search for power compel production of all include the truth. may that useful to de information be 709-10, Nixon, S.Ct. at 418 U.S. “[T]he fense. Confrontation Clause society can 41 L.Éd.2d at 1064-5. Before guarantees opportunity cross- effective spend good portion of a man to force examination, not cross-examination is prison, much to life in “it is not too ask adult way, effective in whatever and to whatever infor- be allowed to relevant that he access extent, might the defense Id. at wish.” society argue with mation (emphasis 94 L.Ed.2d at 54 107 S.Ct. Class, charge.” Black v. guilty added). Therefore, wheth we must consider ¶ 1997 SD opportunity er Karlen was denied an Thus, remaining con he could effective cross-examination because is whether the trial court’s refusal sideration privileged information to cross- not use inspection Fulda records in to allow of the examine Johnston. harmless error reasonable manner is some beyond v. Phil a reasonable doubt. State produc When it comes (S.D.1992). lips, 489 N.W.2d statutory tion of material covered under proving harmless error rests with burden privilege, the often not be defendant will able ¶ Nelson, the State. “Every privileged to access the information. being Rather than privilege limits evidence available se, per depending harmless contents Maynard, judicial fact-finding process.” file, Fulda be a violation of could (cita .it 60 at at 833 SD constitutional dimensions.10 omitted). public an interest in tion encourages protecting such as it information b. Clause. [¶ 36.] Confrontation open patients and candid their provi The Amendment of counselors. Id. it is basic Sixth that a statu- provides, jurisprudence “[i]n Constitution all sion of American United States court, require you hap- Q: And what tell had [Ackman] trial when it refused to did The 10. documents, pened? production of the stated that SDCL Trey raped apply him had me. did not was no disclo- A: I told that “[t]here 19-13-26 any part Compare description to Fulda privileged of matter.” in sure of Johnston’s "Trey sexually harassed support As footnote 9: record does not this conclusion. example raped me.” Johnston testified:

603 trump a tory provision never be allowed to cross-examine the witness. The Court noted right. “The Constitution is that the Constitutional Confrontation Clause does not cre mother Statutes must conform law.... “constitutionally ate a compelled pre rule of U;S. Constitution, not vice versa.” Beals v. to the discovery.” 52, 107 Id. 480 at S.Ct. Dist., 42, Sanitary Pickerel Lake 999, at 94 L.Ed.2d at 54. “[T]he Confronta 134, 142 (Sabers, 578 N.W.2d J. dissent only guarantees tion Clause an opportunity result) alternatively ing concurring cross-examination, for effective not cross-ex Walker, 238, (citing Poppen v. 520 N.W.2d that is way, amination effective in whatever (S.D.1994) (quoting Cummings 242 v. Mick extent, and to whatever might defense (S.D.1993) elson, 493, 495 507 53, 107 999, at wish.” Id. at 94 S.Ct. L.Ed.2d (Henderson, J., concurring part dis at process 55. The Court found that due senting part)). principles required an camera review of 56-7, privileged material. Id. at 107 Supreme In con- S.Ct. at [¶ 40.] Ritchie Court 1001-2, question espe of state’s 94 L.Ed.2d at This whether a 57-8. sidered confidentiality cially when interest of its child true evidence material. investigation yield 57, 107 1001, files must de- abuse to Id. at S.Ct. at L.Ed.2d 94 at 57. Fourteenth fendant’s Sixth and Amendment The defined Court material evidence: right In that to discover favorable evidence. only if [E]vidence is material there is a ease, charged the defendant was with the that, probability reasonable had the evi- rape subpoenaed of his minor child. He had defense, dence been disclosed to (CYS) and Youth to Child Services disclose the proceeding result of would have been charge related to and certain other file A probability’ different. ‘reasonable is a 43, 994, records. Id. at 107 at 94 S.Ct. probability sufficient to undermine confi- refused, claiming L.Ed.2d at that .CYS in the dence outcome. Pennsylvania statute records under Id.11 privileged. The trial refused were Id. court 44, compel Id. at at to disclosure. 107 S.Ct. A case that also is instructive is 994, particular 94 stat- L.Ed.2d at Alaska, Davis v. 415 94 S.Ct. U.S. provided exceptions privi- ute several (1974). 347 39 L.Ed.2d In Davis the defen- lege, being one material would be dis- sought regard- dant to introduce information competent jurisdiction to a closed court of ing probation prosecution witness’ status 43-4, pursuant to a court order. Id. at 107 adjudication juvenile following an delin- judge 94 at S.Ct. L.Ed.2d 49. The Davis, 310-1, quency. 94 U.S. at S.Ct. compel pro- motion to denied defendant’s 39 L.Ed.2d at 350-1. defendant Id. at duction. sought to show that the acted out witness L.Ed.2d at 49. jeopardy possible fear or concern of to his probation might faulty Supreme [¶ 41.] The Court Rit- considered made iden- suspicion chie’s claim that he was denied his to shift tification defendant to Furthermore, many juris they competent courts of conducted to ascertain contain whether evi analysis defense); reasonably necessary diction have used the Ritchie to allow a dence to Paradee, (Minn. 1987) inspection criminal defendant an in camera State v. H., (defendant, privileged charged information. See In re Robert who was with criminal sexu conduct, (1986) (in discovery Conn. 509 A.2d 475 camera in al moved human ser records, spection department of sexual records assault counselor vices and welfare the court requested by should be conducted to determine con whether held that evidence defendant sistent and relevant statements of the victim should be viewed in the court camera defendants); should be disclosed to v. Le determine whether information contained there duc, (1996) Conn.App. prior releasing privi A.2d 1309 in is relevant defense (remanded information); Shiffra, leged as defendant was entitled to an in Wis.2d (defendant inspection camera of confidential records from 499 N.W.2d 719 families); department People materiality preliminary showing of children and made a so as Stanaway, pretrial inspection Mich. to entitle him in camera (where records); can establish reasonable victim's mental health treatment but probability likely privileged Ennatinger, (Mo.App. records are see State v. 752 S.W.2d E.D.1988) necessary (physician-patient protected privilege contain material information to de fense, treating psychiatrist). in camera review those records must be victim's conversations with 604 311, by quashing that the 94 at claims

away Id. at S.Ct. from himself. regarding subpoena duces tecum Johnston’s 1108, at court trial 39 L.Ed.2d records, counseling the trial court has denied request based on refused defendant’s the prepare him access to information crucial to anonymity of provisions protecting the state defense, therefore, his and interfered with 311, 94 at Id. at S.Ct. juvenile offenders.12 right effectively to cross-examine John- 1108, at 351. 39 L.Ed.2d dispute no has ston. There is Johnston Supreme found that the Court [¶ 43.] The given different as to what several renditions pres- to Davis to refusal allow trial court’s strong and that under the occurred he was regarding proba- witness’ the ent evidence drugs at the influence of alcohol and the time possible motivations for and his tion status place. 'allegedly took If Karlen incidents denied him his identifying the defendant file, counseling were allowed access to witnesses, right to confront constitutional may gave discover that Johnston also indeed protecting notwithstanding policy the state’s a version to Fulda. This is ex- different juvenile anonymity of offenders. case, any in tremely important in this and by at this first con- Court arrived conclusion case, goes sexual assault as this to Johnston’s right sidering of cross- purpose of the credibility. Credibility key at was issue from the Confronta- examination that stems trial from since evidence tion Clause. jury Kar- made its determination to convict principal means Cross-examination credibility of len the three counts was the on by believability of a witness and which the testimony Johnston’s verses Karlen’s testi- testimony are tested. Sub- truth of us, mony. record this is Based before ject always discretion of a broad credibility general not a attack on Johnston’s preclude repetitive undu- judge and possible revealing but bias- “directed toward interrogation, ly harassing the cross-exam- es, they prejudices, or ulterior motives ... as only permitted to delve into the iner is not may directly personalities relate to issues story percep- the witness’ witness’ test Sprik, in at 520 the case hand.” State v. memory, tions but the cross-examiner and (S.D.1994) 595, v. traditionally impeach, has been allowed (S.D. Surface, Rough i.e., discredit, the witness. 1989)). yet If there another version in counseling facts Johnston’s records or at Id. at S.Ct. at L.Ed.2d testimony an that the trial indication weighed state’s interest The Court falsehood, a outright there is ‘reasonable juvenile protecting a offender and the probability’ that had the evidence been dis- right to the wit- defendant’s cross-examine jury, closed to the the outcome as to the policy in- “[t]he ness and found State’s three counts would have been different. confidentiality a protecting terest juvenile require Requiring record cannot full disclosure of John- offender’s records, however, counseling yielding would vital constitutional ston’s of so creating chilling run for bias of an the risk of effect on cross-examination effective relationships. may patient-counselor There adverse Id. at S.Ct. witness.” portions of the Fulda'records 39 L.Ed.2d 356.13 substantial Egelhoff provided: Rather and focus on 12. chie. statute Scheffer whether the exclusion of evidence is unconstitu placement The commitment child "infringed upon weighty given the court are not admissible as inter evidence tional as it subsequent at -, against case evidence Scheffer, minor 523 U.S. est of the accused." proceeding other court.... S.Ct. at L.Ed.2d 419. In Schef- § 47.10.080(g) (repealed, § Alaska 55 ch 59 Stat fully Egelhoff aware the defendants were fer 1996). SLA they sought place the nature the evidence points he has before the trier of fact. Karlen out argument by Contrary advanced inspection even been allowed an in camera Regents South Board in its amicus Dakota court file con the trial to determine if the brief, Egelhoff, U.S. 116 S.Ct. Montana exculpatory, alone tained items that would be let 135 L.Ed.2d United States the Fulda on John full access Karlen to file Scheffer, 523 U.S. 118 modify L.Ed.2d do Davis or Rit- ston. nothing Karlen [¶ 47.] which have to do with 4. The trial court did not err totally may denying concern individuals unconnected acquittal the motion for on purpose case. The with this of the relation Count IV. ship between student and a counselor [¶48.] At the close of the State’s hampered if all confidential materi

would be case, judgment Karlen moved for acquittal of upon be turned over al had to the defendant’s indictment, on count four of the of violation There are strike a demand. methods used to 22-22-7.4, SDCL sexual contact con without balance in tension that exists between capable person sent with of consenting. The rights accused and the confidences of of argues trial court denied the motion. justA ..Karlen patient. compromise is an in granted, the motion should have been be inspection records, of all camera relevant cause the State failed to introduce sufficient by the performed Sprik, trial court. evidence to the crime charged establish 600. Maynard, N.W.2d at 1997 SD 60 at Cf. committed, ¶ 15, been or to establish states he was the 563 N.W.2d 835-6. Other privi disagree. one who committed the inspection have allowed camera crime. We State, lege Scurry v. material. 701 So.2d 587 1997) (defendant Dist., (Fla.App. was enti [¶ 49.] The standard of review compel production Depart tled to of victim’s judgment denial a motion for acquittal .of of Health and ment Rehabilitative Services is whether the “evidence was sufficient for court records to conduct an in camera Larson, sustain the convictions.” SD review and determine whether information reviewing 582 N.W.2d at 17. “When necessary within was contained de sufficiency evidence, con [C]ourt fense, although may expedition fishing it be a in light siders the evidence most favorable may contain the records some relevant infor Jones, to the verdict.” 521 N.W.2d at 672-3 mation). argument At oral Karlen stated he Blalack, (citing State v. 434 N.W.2d inspec satisfied

would be with an in camera (S.D.1988)). guilty “A verdict will set not be tion conducted the trial court. if aside the state’s evidence and all favorable can may sup As Karlen inferences that be drawn have been denied his therefrom effectively port theory guilt.” cross-examine the witness a rational Id. at Blalack, 60). against (quoting him Johnston has waived his 434 N.W.2d at do “We 19-13-26, privilege under evidence, SDCL we remand not resolve in the pass conflicts on to the court with witnesses, instructions. credibility determine probability has shown reasonable that the plausibility explanation, weigh of an may contain records material evidence based White, the evidence.” State v. pre-trial testimony on own Johnston’s statements. is entitled to have Ful- Andrews, (S.D.1986); file reviewed the trial cam- da’s court (S.D. Blakey, Spnlc, era. 520 N.W.2d at 599-600. The 1983)). trial court should make a determination of Here, viewing when the evidence file concerning what the contains Johnston’s verdict, light jury’s most favorable to the Copies only discussions Karlen. those sup- we find there sufficient evidence to portions of relevant Fulda’s notes should be port it. The evidence' established that to Karlen furnished and the State. After Grimsley March 5 or Karlen invited hearing party’s position, each the trial court Grimsley, to his home. who arrived there give should determine whether the failure to p.m., about had been drinking 11:00 before portion Karlen access relevant throughout he continued to drink arrived and probability notes created reasonable evening. Popham, Chad room- Karlen’s of the trial differ- result would have been mate, joined Grimsley Karlen and in the ent if Karlen was able to notes. If use those living does, room watch movies. given it Karlen must be a new trial started, shortly Popham after the first movie on those counts and access to be allowed parts bed, leaving Grimsley only the of the file went to Karlen and material Grimsley at retrial. defense alone the room. testified that armchair, stitution-provided was in counselors. SDCL 19-13- in an which was seated pertinent part: provides 21.2 in Karlen was to the couch which proximity floor, counselor, later moved to the regularly employed on a seated. No Grimsley testi- Grimsley’s private chair. also full-time basis as a counselor for near watching university one about in public college movie and or or the State fied that after movie, Dakota, may divulge any a second he fell of South to other forty-five minutes of awakened, concerning any or person, be examined passed out. When he asleep or given to off, turned information or communication the the television was lights were capacity in official off, counselor client was He found and no one else around. blanket, unless: lap covered with a that his had been have or writing by he to been behind privilege believed is waived in evening. student; in He the couch earlier

beside or up, he that when he stood further testified information communication underwear, pants, including his realized his to the made counselor ejacu- pulled and down that he had been express purpose being communicat- lated. being public. ed or made support interpreting statute [¶ 57.] this evidence could When to

[¶ 51.] We find privilege, extent of theory guilt. juryA rea- determine the a rational could “ phrases in must engaged [the] ‘words and statute be sonably knowingly find Karlen in meaning Grimsley, given plain their and effect. When did not sexual contact with who clear, language in a statute is certain and As consent to the contact. this Court unambiguous, no there is reason for con- stated, “jury reasonably if a could find struction, only function is and the Court’s guilty, denial of a motion for ac- meaning clearly White, declare statute as quittal will disturbed.” not be ” Trownsell, expressed.’ Dahn v. 1998 SD SD 67 549 N.W.2d (quoting Moss part in and Affirmed and reversed [¶ 52.] ¶76, Guttormson, 1996 SD part in remanded with instructions. 17). “This court assumes that statutes they say legislators mean what and that AMUNDSON, and [¶ 53.] SABERS they Mid-Century said what meant.” Ins. Justices, concur. ¶50, 9, Lyon, N.W.2d Co. Inc., Brands, In re Famous MILLER, Justice, Chief and [¶ 54.] (S.D.1984)). N.W.2d Justice, KONENKAMP, part concur in and part. in dissent language I [¶ 58.] find the of SDCL 19-13- legis- unambiguous. 21.2 to be and clear MILLER, (concurring Justice Chief certainly lature intended that the information part). part dissenting and revealed a full-time counselor at South majority opinion I concur with the university privileged. college Dakota respectively on issues and but dissent addition, legislature In clear the it is intend- majority’s opinion as to the on issue 3. I prohibit being ed to the counselor from ex- majority’s disagree holding that with the Further, amined about the communication. any privilege to conver- Johnston waived his privilege the student the holder of the and Karlen, regarding sations he had with Fulda ways. it can be waived one of two in camera Karlen is entitled to an privilege The student can waive writ- review the trial of Fulda’s records. court by disclosing ing or the information express purpose allowing counselor Generally, privi- “unless there is the counselor to communicate informa- lege, all information is discoverable.” relevant exceptions tion to others. These are the sole Heeren, Maynard v. SD f provided for in the statute. 830, 835; generally 15-6- see SDCL recognizes exceptions specifically 26. South Neither of those Dakota privileged present need for between this case. Johnston elected to communications Fulda, university in- of Dr. college and their seek the services full-time students Fulda give at SDSU. He did not establish that records are counselor relevant informa- permission disclose written contain material information. ar- tion, provide him with information nor did gued, supporting position, without publicly it. that he could communicate so the records contained that are statements Therefore, privi- Johnston did not waive the “relevant, exculpatory important for in lege provided SDCL 19-13-21.2. defense,” are needed to John- establish However, majority argues gave contradictory that ston [¶ 60.] statements. privilege he dis- general Johnston waived because enough assertion of relevance is not parties incidents with third as cussed the require camera an in review of confidential agree privilege I well as Fulda. While that a Court, People City records. v. Dist. See party, can be waived disclosure to a third (Colo. Denver, County 719 P.2d did not occur Mere con- that waiver here. 1986) vague (stating “[t]he that the assertion regarding the versation same incident does may victim have made her statements to requires privilege waiver. It not constitute might therapist possibly that differ from the requires specific than that. It much more anticipated testimony victim’s not does privilege of the information disclosure provide justify ignoring a sufficient basis to with John holder shared the coünselor. See rely upon statutory victim’s her Larson, § South Dakota 510.0 W. Evidence privilege”); People Stanaway, Mich. (1991) (citing (proposed) FedREvid 511 advi- 643, (1994) (stating note) sory (stating privi- committee’s that Stanaway’s general assertion rec- lege, attorney-client privilege, as the such ords were to attack an needed accuser’s testi- communication, subject covers the not the mony specific justification “falls short matter,' occur, and that for waiver to necessary privilege” to overcome client would to make a disclosure specific request, “without a more itself). communication fishing”). Also, majority Pennsylva- cites Moreover, SDCL does 19-13-21.2 Ritchie, nia v. U.S. S.Ct. prevent all John- cross-examination of (1987), holding pro- L.Ed.2d 40 that “due fact, Karlen ample opportunity ston. In principles required cess camera review fully cross-examine Johnston about his privileged material.” Ritchie easily distinguished allegations can from the instant inconsistent statements sought may case. The record was not Ritchie have made. Fulda’s were records of a confidential communication between a purpose. needed to serve but, university student and his counselor reasons, respectful- I [¶ 64.] For above rather, investigative compiled by anwas file ly dissent on issue investigating agency suspected a state child addition, Pennsylva- abuse. In the relevant

nia allowed the “to statute file to be available I authorized to [¶ 65.] am state that Justice jurisdiction competent pursuant court of joins writing. special KONENKAMP PaStatAnn, Tit court order.” See (Purdon 2215(a)(5) 1986). Supp privi- §

lege qualified, Ritchie was unlike issue here, privilege which is Fur- absolute.

ther, expressly the Ritchie court stated it opinion no

would offer as to whether

result would have been different a stat- anyone accessing

ute that forbid from

files, 19-13-21.2 as SDCL does here. n. n.

U.S. 57 n.

L.Ed.2d at addition, In no review of Fulda’s required

records is because Karlen has failed

Case Details

Case Name: State v. Karlen

Court Name: South Dakota Supreme Court

Date Published: Feb 3, 1999

Citation: 589 N.W.2d 594

Docket Number: None

Court Abbreviation: S.D.