*1 SD 14 Dakota, Plaintiff of South STATE Appellee, Q. MORAN, Jr., Defendant
Douglas Appellant.
No. 22188. of South Dakota. Supreme Court Nov. 2002. on Briefs Considered 5, 2003. Decided Feb. March Rehearing Denied *3 General, Attorney Long, E.
Lawrence Attorney General Meyer, Ann Assistant C. Dakota, plain- Pierre, Attorneys for South appellee. tiff and Viken, Viken, Pe- Terry L. Pechota Dewell, LLP, chota, Rapid City, & Leach Dakota, defendant Attorneys for South appellant.
GILBERTSON, Chief Justice. Moran, Q. Douglas Jr. Defendant
[¶ (Moran) from his conviction appeals Degree Rape Aggravat- forcing upon They pulled the Second sex her. T.B. affirm. so, ed Assault. We doing out of the vehicle and in victim kicked the windshield her car. FACTS AND PROCEDURE ground, ripped Moran threw her on the off following version of the facts 2.] The her raped During clothes and her. T.B., case, is what the victim this testi- attack, put his fingers over her April to at trial. T.B. fied On was mouth and his thumbs underneath her drinking beer at Mor- visiting friends chin, forcing T.B.’s head backwards so Mission, an’s residence in South Dakota. passed she almost out. began arguing, After and his wife assault, [¶ 5.] After Moran finished his T.B. to leave the house. As T.B. decided he told his “it uncle was his turn.” Bear *4 car, suddenly Moran ap- reached her victim, penetrate Heels tried to but proached pushed her from behind and her Moran pushed him off after T.B. began away from the driver’s seat. After Moran crying screaming. got and After the three keys took T.B.’s and forced her into the vehicle, back into the Moran called T.B. a seat, to a passenger gas he drove local “whore,” “bitch” and a because he could station, gas pushed station. At the Moran not trust women. T.B. to the floor of her vehicle and told her just if away bring she ran “he’d back Moran made T.B. lap [her] sit on his pleaded car.” T.B. sped speeds with Moran to the car as he at high down a go gravel let her home. grabbed road. Moran her arm and cigarette burned her with his hot on her station, gas After Moran trial, wrist. At T.B. showed the River, housing drove to a area in White permanent scar left on her wrist. Some- picked up South Dakota where he his during time evening, the course of the T.B. uncle, handicapped Kermit Bear Heels mark, also received a human bite which (Bear Heels). also Moran testified that large left a bruise on her breast. These young nephew his was in the back seat were pictures verified taken law sleeping during the car most of the eve- shortly enforcement after the incident. ning. nephew T.B. denied was ever in burned, being After T.B. told Moran she pinned the car. T.B. testified she was needed up pulled to throw and he the car between Moran and Bear Heels in the over on the dirt road. vomiting After front seat of car. her The three of them car, outside the T.B. tried once again to drove stopped around White River and at escape grabbed but Moran her and forced stayed the Dollar T.B. Daze Café. her back into the car. car escape by and tried running down Moran, however, grabbed street. T.B. to big drove a water tank picked and up her over his shoulder. cattle, an “artesian well.” He and his evening [¶ 4.] Later and after con- uncle undressed jumped and into the tank. suming throughout night, alcohol Mor- T.B. noticed that Moran had left the car parked an park keys jeans. at a near a field grabbed baseball his She keys going told T.B. that the two men sped help. were off for T.B. drove to a her,” house, to “train which meant that Moran helped where a man her contact the and his going police.1 uncle were to take turns Subsequently, Rosebud During investigation, 1. drinking the course of the T.B. experienced had been and had trau- gave transpired different had versions of what memory experienced matic loss. She a mental night. explained T.B. at trial that she lack of sufficient and credi- cause of charged with were both Bear Heels assault, ble evidence. aggravated second-degree rape, a Bear Heels entered kidnapping. the trial court abused its 4. Whether to a pursuant assault aggravated plea it allowed the State discretion when testify he would agreement where plea testimony from Dr. to elicit certain against Moran. Dillon at trial. Dillon, by Dr. examined T.B. was gave improper 5. the State Whether experi- forensic with extensive physician opening statement. testified cases. He in sexual abuse ence its the trial court abused Whether expert related at trial. This
for the State when it allowed the State discretion T.B., pelvic exam on had conducted he trial that Moran’s to elicit in the tissue of had one laceration and she codefendant, Heels, pled Bear had vault, consistent vaginal which was her assault. guilty Dr. Dillon penetration. “forceful” with the trial court abused 7. Whether human bite that T.B. had a testified also imposed when it consecu- discretion breast, cigarette and a mark on her left tive sentences. He recalled on her inner left wrist. burn ha- improperly the State 8. Whether braises on her there were numerous *5 improper testi- rassed and elicited knees, back, legs lower and both lower during mony from Moran cross-ex- fluid found There was no seminal arms. amination. the course of his examination. during abused its 9. the trial court Whether trial, that he At Moran testified ques- it when answered discretion with engaged in consensual sex had twice jury posed during de- tion addition, claimed the victim. liberations. with a her own wrist the victim had burnt jury rejected his testi- cigarette. hot OF REVIEW STANDARD guilty Rape of mony and found Moran discovery A violation of a Aggravated As- Degree and the Second of, choice and the court’s resultant order twenty-five sentenced to sault. He was remedy, is reviewed grant failure to or fifteen rape conviction and years for the standard. an abuse of discretion under Assault. Aggravated of for the conviction ¶¶ 89, 7-11, Guthrie, 631 v. 2001 SD State following issues for review: He raises the tri 190, Additionally, the 193-95. N.W.2d the trial court abused 1. Whether power to fashion has the inherent al court it refused to dismiss discretion when discovery for vio appropriate an sanction charges against Moran because Guthrie, 2001 cases. lations in criminal discovery violations. of the State’s ¶89, 11, at 194-95. 631 N.W.2d SD trial abused its court 2. Whether it denied Moran’s discretion when a mo This reviews Court the vic- motion to dismiss because deciding judgment acquittal for of tion released without tim’s vehicle was forth sufficient State set [the] “whether notice to Moran. jury could reason from which the evidence crime guilty ably find the defendant abused its the trial court 3. Whether Frazier, 66, v. 2002 SD charged.” State when it denied discretion ¶ 744, (citing v. 8, 748 State 646 N.W.2d acquittal be- judgment of motion majority the trial. of time before Falls for the hospitalized in Sioux and was breakdown 324 ¶
Holzer, 75, 10, 647, 611 2000 SD N.W.2d tions create reversible error. v. Schaffer 650). ¶ Co., 94, 19, D. Edward Jones & 1996 SD 801, 808; 552 N.W.2d Wallahan v. Black Trial courts retain broad Inc., Co-op., 417, Hills Elec. 523 N.W.2d ruling admissibility discretion in on the (S.D.1994). Nonetheless, appellant 423 an Guthrie, expert’s opinion. 2001 only particular must show not that a in- (addition 401, 61, 30, SD 627 414 erroneous, struction was but also that omitted). al citations Decisions to admit prejudicial, meaning jury probably deny opinion evidence will not be re would have returned a different verdict if showing versed unless there is a clear faulty instruction had not given. been an abuse of discretion. Id. ¶31, 4, Knippling, Davis v. 1998 SD The standard of review 525, 526-7; Co., LDL Cattle Inc. v. prosecutorial misconduct is abuse of Guetter, 523, 544 N.W.2d 53, Corey, discretion. v. State 530; Sybesma Sybesma, v. 534 N.W.2d ¶ 19, 624 N.W.2d Under (S.D.1995) (quoting Chambers v. standard, only “not must be error demon Inc., Charter, Dakotah 488 N.W.2d strated, but must also be shown to be (S.D.1992)). Perovich, prejudicial error.” v. ¶96, 11, SD (citing 632 N.W.2d 15-16 Dep’t State ex rel AND Tramp, Spiry, ANALYSIS DECISION ¶14, 11, 263) (addi SD [¶ 16.] 1. Whether the trial court omitted). tional citations “The test is not abused its discretion when it re-
whether we would have made the same charges against fused to dismiss the ruling, judicial but whether we believe a Moran because of the State’s dis- mind, in view law and the circum *6 covery violations. stances, reasonably could have reached the conclusion.” (citing same Id. State v. argues [¶ 17.] Moran that the State re- Goodroad, 46, ¶9, 563 N.W.2d provide to discovery fused to which was he 129) 126, (citing Rufener, State v. 392 result, preparation entitled and as a his for (S.D.1986)). 424, N.W.2d 426 affected, trial adversely right was his to a [¶ 14.] This Court has stressed State speedy prevented, trial was right and his Walton, v. that the “trial court retains materially prejudiced. to a fair trial was broad concerning discretion the limitation Specifically, Moran complains he not was examination,” only cross and it will be given adequate discovery on all ambulance reversed when there is a showing clear reports, crew photographs, investigator’s 80, ¶25, prejudice. 1999 SD 600 N.W.2d reports, the that carrying rifle Moran was 524, 530. arrested, when he was results tests. Moran believes that “all the nondisclosed
[¶ 15.] Under our standard of cumulatively” items changed would have review, we construe instructions as a Essentially, the result of his trial. Moran they provided whole to learn if a full and deprived that he right was of a to a correct statement of the law. Sommervold Grevlos, Fourth, Sixth, fair trial 733, under (S.D.1994); 739 Norton, 865, Fourteenth Frazier v. Amendments to the 334 870 United N.W.2d (S.D.1983); Mueller, Mueller v. States and South Dakota 88 S.D. Constitutions. (1974). 446, 451, 39, result, 221 42 urges N.W.2d As a he Mis us to overturn his leading, conflicting, confusing or instruc- conviction.
325 2001, 10, during alleged by gun a that a was July On it was not T.B. alleged turned in connection with the acts it had used hearing, the State indicated hearing, place. prosecutor explained that took At this everything had. over jurisdic- requisite not that did not have argued that the should he Moran State in- pos compel that tion to disclosure of tribal only turn over information reports reports. sessed, vestigative evidence or ambulance it should also obtain but requested. The trial court All that he had been to obtain were able addition, reports. FBI Again, before some the State rejected this contention. 24, hearing, brought a contends that results of the sexual July kit, any discovery. testing, or did not regarding for an order assault DNA motion motion, anything expert set items that for an to evaluate. In his he forth ten show remedy, him. The As a the trial court allowed the give wanted the State to he depose investiga- to the discov to produce was ordered defense several state State 5, any remedy problems to ery by August tors with unwrit- reports. ten or undisclosed August another 19.] On [¶ discovery. At As the hearing regarding argues, held after re- [IT21.] was record, time, produce viewing appears to no the State was ordered there be discovery by August objection or risk sanc- renewal Moran of his to the all Finally, August at 2001 trial order which continued his trial tions. court’s hearing, everything September the court dismissed Moran’s ordered State, sup- kidnapping charge, all of produced suppressed not be ear. except potential DNA evi- the evidence discovered in the victim’s pressed ¶31, 19, Andrews, Significantly, an additional See State v. dence. sanction, kidnap- (stating the court 83-84 that “failure dismissed against object at trial ping charge both defendants.2 to constitutes waiver Roden, However, appeal”); it refused issue on dismiss (S.D.1986). charges. assault issue important assuming It is to note that the Even waived, court of Moran’s we find that the trial judge trial found that some beyond the not abuse its when it formu- discovery requests were did discretion different to deal with ability to obtain and that the State lated three sanctions State’s *7 investigate discovery by prosecu- required any not or violations prepare ¶ Guthrie, 11, 89, 2001 631 Additionally, case. the court tion. SD Moran’s 194 that a trial court (finding that none of nondisclo- N.W.2d at found the State’s power appro- problems had For has the inherent to fashion sure been deliberate. violations). photos park priate discovery or sanctions for example, the taken of analysis The trial court made a careful artesian well scenes not turn out. The did right discovery balanced gun that was found when he was Moran’s Moran jur- being against in evi- the State’s and tribal arrested was held the State’s forensic analysis, problems.3 room because to another isdictional After this dence it related Furthermore, court dismiss the kid- potential criminal situation. the trial decided to 263, lufkins, review 266-67 State did not file a notice of In State 3. (S.D.1986), recognized jurisdic- this Court upon this sanction the trial court. levied problems facing Dakota law en- tional South Therefore, express ap- opinion we on its no attempting when to exert the crimi- forcement propriateness. process of the South Dakota into nal State of Country. Indian Moran, napping charge against suppress the victim’s vehicle was released car, all found in victim’s of the evidence without notice to Moran. results, except potential give DNA [¶ The vehicle that T.B. 26.] owned was depose Moran additional time to five of the a customized Cadillac. This was the vehi- investigators in this case. State’s cle that Moran and T.B. traveled on the Moran cannot establish night of rape. the assault and The vehicle trial court abused its discretion and Moran possession by was taken into the State on prejudiced. cannot show that he was As 6, 2001, April at a residence near Bad Sorenson, we stated will “we Nation, where T.B. had driven it after she ruling reverse a not reviewed under an escaped captors. her It was taken to the abuse discretion standard absent a Department Transporta- South Dakota 127, 10, showing prejudice.” Shop tion at White River. Moran made a (citing State v. Dan- expert motion to have an appointed to iel, 535). SD examine the windshield of the vehicle. Although complains that he did T.B. had told authorities she had kicked opportunity have the expert to hire an to the windshield of the car when she was analyze any found, DNA evidence fighting her attackers. At a July defense at trial was that T.B. had consent- motion, hearing on that the State informed ed to sexual intercourse with him. There- the court that the car had been released fore, it would have been futile him back to the victim. expert. Additionally, hire his own DNA apparently there was no DNA evidence that pursuant kit, found on the sexual assault which the SDCL 23A-37-14 and release of the trial court gave the defense extra time to vehicle without notice to Moran violated pursue. Moran also conceded at trial that process his rights. due entirety, when he drinking, ejacu- he did not provides: SDCL 23A-37-14 late. This would support also the conclu- Any property, contraband, which is not sion that no semen would be found seized or confiscated law enforcement body, clothes, victim’s on the victim’s personnel, ostensibly for use as evidence her car. in a prosecution, criminal shall pre- be
[¶ 24.] Moran was convicted of the served, maintained or stored at the ex- charged crimes because of the victim’s tes- pense county where the criminal timony and Dr. testimony, Dillon’s along offense occurred. If property is not with other evidence presented at trial. contraband and is owned a victim of Dr. Dillon testified T.B. had a bite mark being the crime investigated, proper- breast, on her a burn mark on her left ty photographed by shall be appro- *8 wrist, bruising extensive on the outside of priate law personnel enforcement body, vault, her a vaginal and lesion on her returned to the victim of the crime with- which was consistent with forced sex. thirty days in completion of of forensic any cannot show how additional analysis unless the prosecuting attorney exculpatory evidence changed would have deems it essential to the prosecution the result of his trial. the case to retain the evidence. The photographs accurately
[¶ 25.] Whether the trial shall court cor- rectly represent abused its discretion property when denied the and are Moran’s motion to dismiss because pursuant admissible evidence chapter Weber, rights.” Fowler v. proceed- criminal any resulting in 19-18 omitted). (citations 252, 254-55 607 N.W.2d ing. imple court The trial [¶ 31.] provides: 23A-37-15 SDCL sanctions, discovery which includ mented returned to the any property is Before kidnapping ed the dismissal of Moran’s 23A-37-14, § the law pursuant to owner any charge suppression and the evi in personnel possession enforcement dence, in had been uncovered which notify shall the defendant property car, except possible DNA re victim’s be returned to the property will ruling although This meant that sults. motion made Upon a owner. items found in the car there were several cause shown upon good defendant testimony, supported that T.B.’s trial none exculpatory property contains that presented at trial. could be innocence, evidence of the defendant’s persuaded Moran has not us the law enforce- may the court order any exculpatory evidence that there was possession in personnel ment such, Moran present in the vehicle. As it to the owner. not to release property any how evidence found cannot show Lyerla, v. the defen- State to, or car would have been material interstate, dant, driving while down trial. changed the outcome of his Con- injured teenage girl and and killed a shot may cerning argument that there (S.D. 909-10 two others. car, T.B. have been semen testified 1988) (holding although the evidence at trial that the occurred outside the destroyed, it did not war- improperly Equally impor- field. car at the baseball de- charges). rant dismissal of tant, testified that he never Moran himself re- argued that the State fendant because drinking. ejaculates when he has been pickup back to leased the victim’s Therefore, and T.B.’s based on both Moran him, he was un- family notifying without any not have been testimony, there would tests to show to run certain forensic able found in the car. semen at 909. In that driving. Id. who was argues that other Moran also 33.] [¶ case, prose- that “whether the we stated have been exculpatory evidence would suppression of evidence violates cution’s However, car. the State present in the should be on the process, due the focus car and search of the conducted careful had on the out- influence nondisclosure Although evidence. found no such of the trial.” Id. at 910. come chance, he could given that if contends for items such have examined the car that a recently have held We mud, hairs, skin, highly it is cigarettes, following four must show the defendant of these items would improbable any a due affirmatively to establish questions outcome of his change have served (1) process violation: Was defense trial. (2) Is the evidence of the evidence? aware (3) Is the evi- Moran testi- favorable to the defense? Because T.B. and (4) present defense? Did the T.B.’s they dence material to the were both fied car, request for the evidence? from either of them would defense make hairs ¶ Likewise, Charles, anything relevant. have shown (additional smoking omit- that he had been citations Moran testified *9 therefore, any ashes or ted). “However, car and every case where the in T.B.’s found in the car would cigarettes in a results smoked suppressed has evidence State any As for irrelevant. equally have been process due violation of a defendant’s car, possible samples skin found inside the ed at trial support guilt by she had been burned T.B. testified second-degree rape as- Moran, any such recovered evidence sault. inculpatory, rather than would have been trial, At T.B. testified about . Strohl, 918, exculpatory State v. 255 Neb. what she night remembered from the she (1999) 928-29, 675, 587 N.W.2d 682-84 was attacked. She testified that she was (finding process is no due that there viola against park taken her will to the inculpatory tion when evidence is not forced to have sex with Moran. She tried defense). Finally, turned the in over escape several times but was unable to
vestigators by depo for the State testified get away until Moran and Bear Heels sition that there was a normal amount of jumped into the water tank. Dr. Dillon’s dirt, grass, gravel in T.B.’s car. injuries of T.B.’s corroborated exculpa defendant has not shown much of what she said. v. Bunger, State tory togeth value of all the evidence taken ¶ 116, 9, 606, 2001 SD 633 N.W.2d changed er would have the outcome of his (finding “although corroborating evi- Charles, 17, trial. 2001 SD necessary dence is never for conviction of at 738. offense, a sexual it tends to reinforce the 3. Whether the trial court proof supporting charge”). abused its discretion when it denied judgment Moran’s motion of ac- Moran testified that he quittal because of lack of sufficient engaged in consensual sex with T.B. on and credible evidence. separate two nephew occasions while his argues inwas the back seat of the car. He also trial improperly court his denied two mo testified that not until he told T.B. that he tions for judgment acquittal at the close going wife, was not to leave his did she presented by parties evidence both upset. become He also testified that the Moreover, at trial. that no on burn her wrist could be self-inflicted jury guilty beyond would have found him and he did not know the source the bite reasonable doubt because of the various However, and bruise mark on her breast. inconsistencies the victim’s trial testimo conviction, their jury rejected Mor However, ny. it is the function of the testimony. an’s It is not the function of conflicts, in resolving factual weigh reweigh this Court to or resolve conflicts credibility of those testify, who and ascer judge credibility of the witnesses. tain the truth. v. Pugh, State 2002 SD Holway, ¶ 9, 640 N.W.2d Karlen, (citing ¶12, 49, 605). Although may be true Further, we have stated: that T.B. had inconsistencies her trial testimony from earlier interviews with offi In determining the sufficiency of the cials, explained she by testify this at trial review, evidence question pre- ing that she had drinking been and had sented is whether there is evidence in been traumatized her experience. which, brutal the record if believed the fact Dr. Dillon finder, also testified that it was not is sufficient to sustain a finding unusual cases that a guilt beyond victim would a reasonable doubt. have remembering review, trouble exact accept we must that evi- Furthermore, events of the assault. dence, there and the most favorable inferences was more than present- sufficient evidence fairly therefrom, to be drawn which will *10 Q.(Prosecutor): right. All Would those determining the verdict.
support evidence, things consistent with a vic- be sufficiency Court evidence, in tim? not resolve conflicts will witnesses, or credibility
pass on A.(Dr. Dillon): Yes, sir. guilty verdict evidence. No weigh the Q.(Prosecutor): right, they All would evidence, if the includ- will be set aside non-rape not be consistent with a vic- and reason- circumstantial evidence ing tim? therefrom, sus- drawn inferences able A.(Dr. Dillon): No, sir. theory guilt. tains a reasonable Q.(Prosecutor): you So wouldn’t have ¶ Buchholz, v. 1999 SD State non-rape, if it consen- that with Knecht, 899, v. (citing State sual? ¶ 421). 22, 413, 53, 563 N.W.2d 1997 SD A.(Dr. Dillon): It —it was too violent to considering the evidence [¶ 40.] When be consensual. trial, conclude available at we that was that an Moran contends forth sufficient evidence set there was province cannot invade the expert witness jury could rea- from which the the State in offer his a criminal case and find sonably guilty defendant that the opinion question on the ultimate Frazier, 2002 SD charged. crimes However, jury has to determine. our ¶ Charles, 750; at see also 646 N.W.2d repealed the “ultimate issue” rule State (hold- 67, 17, 628 at 738 replaced 1993. This rule has been with unable to show ing that defendant was (FRE 704), provides 19-15-4 which SDCL light pre- of evidence prejudicial error “[t]estimony opinion that in the form of an trial). against him at sented is not or inference otherwise admissible the trial court 4. Whether objectionable it embraces an ulti because when it al- abused its discretion decided the trier of mate issue to be to elicit certain tes- lowed State expert testify An can as to the fact.” timony Dr. Dillon at trial. from is long “as as the witness ultimate issue the State inno the defendant is not asked whether improper ques- Dr. Dillon several asked Barber, guilty.” cent or during Specifically, (citations tions its case-in-chief. impermis- trial court he contends omitted). Furthermore, under 19- SDCL T.B. sibly opine Dr. Dillon to allowed (FRE 702): 15-2 intercourse with Mor- had nonconsensual technical, scientific, spe- If or otherwise an, that T.B. had burned been knowledge will assist the trier cialized experienced enough to someone who was the evidence or fact to understand very wrist was a know that her inner issue, qual- a witness determine a fact Additionally, charges he spot. sensitive skill, by knowledge, expert ified testimony elicited from following education, may training, or experience, “damning prejudicial”: Dr. Dillon was opinion in the form of an testify thereto bruises, Q.(Prosecutor): The that’s con- or otherwise. rape? sistent with Here, Dr. Dillon was
A.(Dr. Dillon): Yes, sir. He was guilty. Moran was asked whether any- act Q.(Prosecutor): Forcible sexual whether T.B.’s opinion regarding asked his or cut? And she had an abrasion how. sexual as injuries consistent with were A.(Dr. Dillon): simply expert Yes, sault. This was sir. *11 330 15-14-1(1) by many years (stating a doctor with
given under SDCL (2), experience medical and who had extensive opening statement is a “[t]he state- experience forensics in exam- medical and expects ment of what counsel the evidence recently ining rape victims. As we held show, to is not evidence in Bird, Running a medical doctor’s itself.”). testimony give opinion not an as does guilt only
to defendant’s states that Through opening injuries the victim’s did indicate con- statement, the State informed the sent, province does not invade of the present evidence it during would ¶40, jury. 2002 SD course of the trial. To substantiate what testimony, 617. The admission of this jury during opening was told to the state therefore, was not an abuse of discretion ments, victim testified to the violent province and did not invade the attack, nature of the sexual including how jury. See id. car, dragged she was from the how her back, forcefully pushed chin was and how gave 5. Whether the State she cigarette. was burned with a Parts of improper opening statement. T.B.’s were oth corroborated this issue that example, er witnesses as well. For Dr. following portion prosecutor’s injuries Dillon to testified T.B.’s and de opening argumentative statement was and scribed the sexual attack as “violent.” inflammatory: Also, an investigator, Many Her Grace rape.
It’s a going brutal We’re to show Horses, who shortly interviewed T.B. after you rape. just It it’s brutal wasn’t night question, testified that T.B. rape. They cigarette. burned her with a had a fresh human bite mark on her left They They bit her drug breast. her out wrist, cigarette breast and a burn on her going you of the car. We’re show which T.B. indicated Moran had caused. brutal, people it’s a brutal and as- photographs The jury depict shown to the sault. injuries ed much of the same that T.B. and others Accordingly, testified to at trial. Moran argues these remarks were in viola- 15-14-1(2). prosecution dishonesty did not use tion of SDCL or This statute deception provides: accurately when he portrayed physical abuse, and sexual which the plaintiff party having or the burden victim had suffered as brutal in nature. proof shall state the issues and the Lee, 81, ¶21, See State v. general nature of the evidence he ex- (finding although pects produce in substantiation of the prosecutor expressed opinion during his by stating issues what he claims the closing arguments, it did be, not reach the issuable facts to argument, without error). level of reversible These com naming and without or identifying any ments fell within the reasonable latitude particular witness exhibit which he prosecutors afforded in this context. expects prove any of such issuable Therefore, Moran is not entitled to relief permitted by facts unless the court. under this issue. all, 47.] First of the trial -jury, any court instructed the arguments 6. Whether the trial court attorneys or remarks on either side abused its discretion when it al- at trial does not constitute evidence. State lowed State to elicit trial testi- Brewer, (S.D.1978) mony codefendant, that Moran’s received, Heels, pled guilty ag- that Bear Heels did the State ask had
Bear
gravated
Special Agent Braley questions
assault.
about the
*12
agreement on direct examination.
plea
trial, the court ruled on
Prior to
Letcher,
88, 26, 552
See
States, that
of Bruion v. United
the basis
(concluding
that defen-
testimony at trial
could not elicit
the State
opened
expert
door to the
dant
State’s
made to law en-
concerning any statement
testimony).
original
code-
officers
forcement
fendant,
Heels. 391 U.S.
Bear
that
important
It is also
to note
[¶ 53.]
(1968).
Moran
jury merely if it should “consider” asked only fails to show not they per- the bruises from the sex act as particular comment was erroneous assault charge tained to the importantly, but more that it prejudi- cigarette the bite the breast point jury cial to the where would jury burn.6 It for the proper7 probably have returned a different verdict on the make such consideration basis if given. the court’s answer had not been duty credibility to determine the Davis, 527; 576 N.W.2d at conflicting two witnesses.8 Co., 22, ¶35, LDL Cattle 530; jury Sybesma, was instructed N.W.2d at at occur, to consider the instructions as a whole. 359. For this to would when, “Jury instructions are sufficient eon- to adopt highly unlikely have had testi- charged separate again. A supposed offense is in each count I’ll read it "Are we of the Information. You must consider consider the bruises and abrasions caused applies alleged each and the evidence charge count which from the in the second *15 you separately. to If aggravated find the defendant of assault?” guilty guilty any or not on one count of the say yes MR. STRAIN: I'd to include the Information, your verdict on that count in bruises there. You have bruises on the your added). must not control or influence verdict (emphasis [victim’s breast.”] any on other count. MS. TOLLEFSON: [THE DEFENSE AT- no, say TORNEY] I'd Your Honor. First of citation, 6. Without dissent the concludes "[i]n all, the information has to-wit in it that— context, to,' 'supposed translates to they that he burned and bit. There's —that ” 'should,' which translates to 'shall.' The nothing any about other bruises or abra- jury trial court never so informed the and sions ... authority there is no cited other than the subjective interpretation of the dissent that going THE COURT: I am to send the fol- suppositions by jury such were considered the lowing juiy. answer to the "The answer is or are even correct. yes.” Tr. 637-8. Thus, gave ruling before the court it's and jury's ques- 7. The "[t]he dissent that juiy, answer to the it had the benefit of nothing tion had whatsoever to do with the argument opposing from both council di- they pertained 'bruises from the sex act as to rectly point. on this aggravated charge the assault of the bite on " However, cigarette jury pertinent the breast and 8.Other burn.’ instructions are also to transcript receipt jury the trial of the this matter. The trial court of the instructed "intent contrary. surrounding note indicates to the is shown the circumstances act, done, the the manner in which it is Question THE COURT: Number "Are we (18). the means used.” It also instructed: supposed to consider the bruises and abra- alleged rape sions caused from the may ability in the opportunity You consider to observe, charge aggravated memoiy, second testifying, assault?” manner while your interest, bias, proposal? What’s any prejudice, and the MR. [THE STRAIN: testimony light Are PROSECUTOR] reasonableness of the in the they talking case, about deciding the lesser included? of all the evidence in the in No, they're THE talking COURT: about the which are witnesses credible and how charge aggravated (27) weight give testimony. assault. much to their back, leg and knee vaginal, that T.B. the bruises and mony advanced the defendant trauma) rape (rape abrasions from the on in while the car. herself self-mutilated charge aggravated the assault. The Affirmed. [¶ 72.] is, jury rape how did the that question use trauma evidence in consideration of the Justice, AMUNDSON, Retired aggravated charge. assault fo- Court concurs. permissible rape cuses on a of the use ZINTER, evidence, trauma while the dissent focuses KONENKAMP [¶ 74.] impermissible on an use of that Justices, evidence. specially. concur join I language While cannot the SABERS, Justice, concurs dissent, I agree with its conclusion part. part result and dissents jury’s the question the literal MEIERHENRY, Justice, not responsive trial language court’s theoretically possible at a member of the Court instruction made having been jury rape trauma as use this action was submitted to the time support charge substantive evidence Court, participate. did not hand, aggravated assault. On the other ZINTER, specially). (concurring Justice correctly points out that it the Court specially on I concur and write possible rape trauma was also trial court’s instruc- properly jury credibility Issue 9 to discuss the used jury reject evidence9 to permitted tion which “consider” attorney referring the trial was not even to use of the 9. The dissent concludes that neither attorneys suggested rape indicated that the trauma when he that the an- court nor "yes." anything juty question with the credibil- question had to do swer to the should be Moreover, ity certainly nothing transcript of witnesses. n. 10. in the There is Infra suggests suggest contemplated using that "counsel did contem- dissent that counsel plate rape trauma would be used as as substantive evidence in his trauma aggravated as- charge. substantive evidence of the prosecution of the assault support propositions, the *16 sault.” Id. To these anything, transcript actually If the entire defendant's, but not the dissent relies on the why explains jury probably most contem- the attorney's response jury question. to the states However, impeach- plated rape the trauma as use of portion of the discus- the omitted argument, ment evidence. In final Moran's clearly attorney suggests that the states sion defense theme of con- counsel continued the rape the as contemplate did not use of trauma evening. With sexual relations that sensual proving The substantive evidence in his case. assault, respect to the defense counsel contin- only argument answering attorney's for states arguing that the marks on ued that defense jury question in the affirmative was "I’d the were the result of consensual T.B.’s breast say yes to the bruises in there. You include argued at activity. counsel "I look Moran’s [breast]”, the which was an have bruises on any teeth marks picture the and I don't see trauma, obvious reference to the assault not you’ve got if a—it looks like and it looks to me rape the evidence the trauma. This use of sorry, hickey that’s what it looks a to me. I'm attorney's argu- with the states was consistent argument, it un- Given this defense is like.” argument, jury. that he never ment to the jury con- would ask to derstandable rape even inferred that the trauma was sub- rape physical as evidence sider the trauma aggravated stantive evidence of the assault. with Moran’s defense that was inconsistent attorney only contrary, the ar- On the states impeach tended to both Moran’s claim and supported gued that the burn and bite that his sexual intercourse and claim ("Then consensual charge go get aggravated we to the here, trauma on T.B.'s breast. Ulti- of consensual the And she had a bite but assault. however, may simply mately, be fairer to complete indifference burn itself is—that's Thus, transcript cold is not con- bodily injury.”). conclude that the and it's —it's a serious transcript that the state's clusive on this issue. appears from the 336 (S.D.1987) (de- lett, charge. proper This use was
the assault rape successfully trauma a circuit quite plausible because the fendant must show disprove claim clearly proportions tended to Moran’s that court error of such the that the sexual intercourse was consensual. jury probably come might and would have If trauma caused the the evidence if to a different verdict the defendant’s claim of consen- jury to disbelieve Moran’s given); Grey instruction had been State v. intercourse, jury that determi- sual sexual Owl, (S.D.1980)(ap- also tend to discredit Moran’s nation would prejudicial pellant must show error the assault trauma claim the evidence, jury effect under the the breast) (the and the mark on the burn bite might probably have would returned consensual, were self-inflicted or caused appellant’s if different verdict instruction problem is that we do someone else. Therefore, given). assuming had been definitively jury know whether the not erroneous, that the instruction was properly “considered” the evidence on must still have established under the credibility by the suggested as evidence, jury might, probably the Court, improperly as substantive evi- if a would have returned different verdict suggested by as the dissent. dence given. different instruction were case, being disposi- That the the However, Moran failed to meet appellate wheth- question tive review is First, burden three reasons. uses, er, light possible of these two out, points jury Court was correct- establishing Moran met his burden re- ly separately instructed on the need to from instruction. Mor- versible error separate charges sepa- consider the regard an’s in that is well settled. burden supporting charges. rate evidence those appellant “An has the to show not burden Supra jury correctly n. 5. The was also only given that the instruction er- impeachment. Supra instructed on n. 4. ror, prejudicial but also that it was error to Thus, correctly jury instructed on evidence, jury the effect that under the Second, disputed how to use the evidence. might probably would have returned a instructed, being properly in addition to [objectionable if in- different verdict physical there was substantial evidence of given.” had been struction] [not] bodily injury wholly serious that was inde- ¶47, Aesoph, 2002 SD pendent of the trauma suffered (citations omitted). Stated another rape. scarring Neither the from left that, way, appellant “must demonstrate cigarette bruising burn nor the and related given had been instruction allegedly bite mark were caused *17 ..., likely reached a would have differ- Therefore, rape. in- there was sufficient ¶48 (citing ent result.” Id. at v. State dependent jury’s evidence to sustain the ¶ Frazier, 19, 35, 2001 622 SD finding aggravated assault. 259). Accord, Pellegrino, v. State Finally, jury them- (defendant [¶ 81.] the verdicts 39, 9, 577 N.W.2d suggest rape selves trauma evi- grant must show refusal to an instruc- impeach dence was used to probably tion would have returned a dif- credibility being rather than used as sub- if requested ferent verdict the instruction all, Rhines, only stantive evidence. After the given); had been (defendant questions dispute in were whether the rape was consensual and the must show that the trial court’s refusal to whether give unfairly by burn and mark inflicted appropriate instruction bite were defendant); prejudiced disputed allegations the State v. Bart- Moran. Moran both jury separately intercourse was to consider each offense claiming that the sexual injuries applicable the assault consensual and that and the evidence thereto.” consensual, (S.D. Busack, self-inflicted or caused were by 1995) else. To resolve those factu- someone (emphasis supplied). The trial disputes, jury required the was de- al jury’s prej question court’s answer to the or T.B.’s cide whether it believed Moran by ignoring udiced the defendant this re Moran’s counsel version the events. quirement. argument jury. to the even made indicated, hearing As after ar- [¶ 86.] I gentlemen, stated “ladies and She gument question, on this the trial court attorney] state’s on one agree [the with answered in the the affirmative with re-
thing. you It comes down to whom do sponse: yes.” “The answer is A better believe, you you do believe or do [T.B.] answer, State, suggested by as the was: client, By my Doug believe Moran.” Please re-read the instructions. The cor- verdicts, jury clearly the made that both rect answer was: “No.” determination: it decided to believe T.B. “yes” jury A answer allowed the [¶ 87.] jury rather than Moran. Because the to convict Moran on the of conduct basis T.B.’s version obviously chose to believe in the charged information and tended events, and there was suf- of the because preclude jury returning the from ver- aggravated ficient evidence of an assault on dict the lesser-included offense of sim- abrasions apart from the bruises and ple prejudicial assault. Even more rape, the Moran has not es- caused jury the fact that it instructed the to con- jury tablished that the would have aggravated vict on assault based bruis- reached a different result had the trial alleged es and abrasions caused given. instruction not been For court’s reasons, rape. the same has not estab-
lished reversible error. majority opinion’s analysis confusing paragraph is and incorrect. KONENKAMP, Justice, joins majority opinion attempts special writing. change meaning jury’s question SABERS, (concurring in result Justice jury asking stating whether dissenting part). in part and “should consider bruises from sex they aggravated pertained act as part I concur but result charge assault of the bite on the breast dissent on Issue 9. jury’s question cigarette burn.” The The trial court erred when it nothing had whatsoever to do with sup- it was instructed they pertained act “bruises from the sex posed to consider bruises charge to the assault alleged abrasions caused from cigarette on the breast and burn.” bite charge aggra- in the second simply majority is a concoction of the This vated assault. opinion. joinder SDCL 23A-6-23 allows *18 offenses, case, joinder question actually in the The asked and instant was, jury supposed we to consid- aggravated rape “[a]re the assault and the However, and abrasions caused from charges appropriate. was we er the bruises rape’ charge in the 2nd joinder ‘alleged have stated that of offenses is not the context, when, prejudicial assault?” In this aggravated to the defendant “the to,” “should,” appropriately “supposed trial court instructed the translates Furthermore, By answering majority opin- which to “shall.” the translates ion is para- inconsistent with itself that “yes,” indicating court was the trial graph rape “... provides, ag- the and consider jury could the bruises the gravated separate assault were two and on and as evidence the credibili- abrasions distinct acts for Moran was which convict- Rather, ty of the trial court the witnesses. (emphasis supplied). ed.” The rape jury that it telling was the had to consider aggravated separate assault were “two the and abrasions caused the bruises distinct acts” and therefore it is obvious aggravated the alleged rape on assault that the supporting bruises and abrasions charge.' jury attempting to deter- rape the should not also be used to convict evidentiary charge, basis of mine the the aggravated assault. para- second sentence in contrary to the should reverse We Issue 9 incorrectly graph which states that the remand to trial court to the vacate the jury, the “clearly legal understood and evi- aggravated conviction and assault the sen- dentiary charges.” basis between two provide tence thereon and fair Likewise, absolutely nothing is in the there trial on assault and aggravated the lesser- question anything of the has simple included offense of assault. credibility. to do with This is whatsoever majority opinion of the another concoction justify
in an attempt to result.10 The majority opinion manner which question of the meaning skews the is cen- reasoning, tral to but when question jury, is as it written read holding are inappropriate. answer and the transcript support aggravated A review of the trial where this charges. assault jury question was discussed no, shows that nei- argued, say She ''I'd Your Honor. First attorneys ther nor the court indicated the all, [charging] information ... has question anything to do with the had credibil- that he [her]. burned and bit noth- There's ity of the witnesses. ing any about other bruises abrasions [in Contrary special to the assertion in the con- charging information].” currence, contemplate did counsel Attorney special Neither the State's nor the would be used trauma as substantive change concurrence can the substance and Specifi- assault. evidence cally, meaning jury's question by misinter- objected ''yes” defense counsel ato preting credibility, impeach- it to relate to arguing charging answer document ment, or other non-substantive use. allege did not the bruises abrasions to