*1 question permitted rephrase areas, him to it. court abused its discretion in both fact, Zepp rephrase stated he would it. that such error prejudicial. but was not Though failing the trial court erred in Henderson, Justice speaking for this portion deposition, strike that of the this Cattle, court in K & E Land and Inc. v. cumulative, was as Dr. Nicholas later was Mayer, (S.D.1983), permitted give opinion a similar without “prejudicial defined error” as “that which objection. probability produced all must have some upon effect the final result and affected Finally, Hofmann
c. claims that rights party assigning of the it.” striking portion court erred following deposition testimony of Dr. Nich- Considering compelling all of the other olas: evidence, including eyewitness testimo- Q Doctor, upon a reasonable de- Iny, am convinced that the error commit- gree certainty, you of medical are ted the trial court had no effect on the opinion Zepp that Frank hit in was jury result and the would have reached the
face with a board?
Anton,
Koupal
same verdict. See also
&
doubt,
A
I
Wieczorek,
(S.D.
Uh-huh.' have no
no reserva-
Inc. v.
answer “Uh-huh” be stricken as
non-responsive. The court denied this mo- question
tion. Hofmann claims that “yes for a
asked or no” answer and the non-responsive.
rest of the answer was
The court ruled that the answer was responsive, question phrased as the Dakota, STATE of South Plaintiff Dr. such that Nicholas did not have to limit Appellee, “yes his answer to or no.” The trial court ruling objections. has broad discretion in
Magbuhat, supra. say cannot PERKINS, John Defendant court abused striking its discretion in not Appellant. ruling the answer and respon that it was No. 16337. sive. Supreme Court South Dakota.
Affirmed. Argued March 1989. WUEST, C.J., HENDERSON, J., July Decided 1989. writing. concur result without MILLER, JJ., MORGAN and concur
in result.
MILLER, result). (concurring disagree
I majority holding with the
the trial court did not abuse its discretion
(1) denying (2) expert testimony
in the manner deposition it/handled the
testimony. I hold would the trial *2 Gen., Campbell, Atty. Pierre,
Ron Asst. Cremer, Atty. On the brief: Karen E. Asst. Gen., Roger Tellinghuisen, Atty. A. Gen., Pierre, plaintiff appellee. Miller, Gregory Rediger, G. event, for defen- an edited version of the saying only appellant. dant and grabbed that he had her breasts. —Incident 2— HENDERSON, Justice. *3 The next encounter occurred in June or 1984, July, years when D.J.K. was fourteen PROCEDURAL HISTORY/ISSUES old. Perkins called her at home and ar- (Perkins) Defendant John Perkins ranged baby-sit for her to for his children charged by information with three counts night. As D.J.K. lived a distance second-degree rape, under 22-22- away, stayed overnight, she slept and on a 1(5),stemming from three incidents involv- living couch in the room after Perkins re- ing a female County minor. After a Hand turned from a bar with an unidentified jury counts, convicted Perkins on all three (his marriage woman to Donna had ended imposed the trial court a sentence of fif- divorce). in During night, Perkins en- years teen in Penitentiary the State and a room, living tered the by which was lit $10,000 fine for each of the three convic- kitchen, light in the couch, sat down on the (total: $30,000 years, fines). tions began rubbing and D.J.K.’s breasts. He The three sentences were to be served con- inserted his hand under her clothes and secutively. Perkins, aged twenty-seven at fingers moved his vagina. and out of her trial, the time appeals of his his convictions pulled He then clothing, off her had con- sentences, alleging and that the trial court her, ventional intercourse with ejacu- and regards: erred in three lated on her stomach. I concerning Admission of evidence oth- —Incident 3— acts; er bad II testimony Admission of from a Sher- last sexual adventure with regarding
iff incriminating happened D.J.K. in February state- or March 1985, by ments made Perkins in violation when D.J.K. again was fifteen. He right against baby-sitter. time, self-incrimina- hired her as a At this tion; and wife, Perkins was married to a new Bar- bara, living and was in the basement of her Imposition III of three consecutive fif- parents’ again home. stayed D.J.K. over- teen-year $30,000 sentences and night, slept During on a couch. fines constituted cruel and unusual night, go bathroom, she arose to but punishment. followed into the bathroom Perkins. We affirm. He asked her if she wanted “to mess around,” incident, as he had in the 1982 FACTS and, refusal, despite her kissing started her charges against Perkins stem from rubbing her breasts. As in the earlier three sexual young girl, encounters awith incidents, penetrated Perkins vagina her D.J.K., all of which took within the fingers. hand, with his He then took her dwelling. defendant’s D.J.K. testified that placed it penis, on his and showed her how penetrated vagina her on each oc- he wanted her manually stimulate him. casion, as follows: performed act, She the desired which culmi- —Incident 1— ejaculation. nated in his 1982, In the summer of twelve-year-old D.J.K. went to Perkins’ trailer house to —BAD ACTS TESTIMONY— Donna, visit his wife who was not home at the time. Perkins asked D.J.K. if she DJ.K.’s was followed and, wanted “to despite mess around” M.K., her young girls, two additional D.J. negative answer, proceeded her, younger sister, P.B., to kiss K.’s who is not breasts, finger fondle her and move his girls. related to the other M.K. recounted vagina. and out of her He desisted after separate three instances of sexual contact hearing a car outside 1) thirteen, and instructed her age with Perkins: anyone. not to tell gave D.J.K. her babysitting trailer, mother after at Perkins’ he sat on, sleeping on the couch Although suppression she was touched hearing concerning breast, hand, grabbed her her moved it such apparently statements was held on penis, stopped toward his after she May transcript no hearing pulled 2) away; age her hand was included in the record for this Court’s fourteen, babysitting for Perkins in findings review. The trial court’s of fact basement, Eckstein’s he sat on the couch law, and conclusions of opin- memorandum breasts, rubbing with her and started her incorporated ion findings into such and con- scream; desisting only began to when she clusions, and the Sheriff’s memoranda of 3) fifteen, when she was at his meetings indicate that three conversa- Byron, residence put at Lake tions were at An interrogation by issue: *4 breast, vagina, hand on her reached for her Sheriff, lasting forty-five minutes to an “oh, me, me,” saying love stopped love and hour, September 3, 1987, on during which after she him kicked and reminded him of Perkins touching denied the breasts or va- wife, crying, pregnant his who was an- ginas M.K., of D.J.K. and and stated that other room. he did not taking remember their hands placing and them on penis; his if the latter testimony P.B.’s recounted an incident happened, then he must have been “in a happened which when she was trance or sleepwalking.” The second inter- fifteen, during overnight stay an at Per- September 25, 1987, view took sleeping couch, kins’ trailer. While on a which time Perkins wrongdoing denied Perkins, she was awakened who sat repeated and sleepwalking his or trance down, whispering unintelligibly. He took According Fechner, assertion. to Sheriff her hand and moved it penis, to his Perkins also claimed that D.J.K. tried to point jerked which she her hand from his follow him into the bathroom at his in-laws’ left, grasp. telling He then her that residence, and simply that he told her to he would her leave alone. given wait outside. Perkins was Miranda trial, during Before and defense counsel warnings interview, before this second and suppress made motions to the “bad acts” appears to have spoken waived counsel and P.B., testimony of M.K. and but the trial voluntarily. A later conversation with the court declined to do so. The trial court Sheriff, which occurred while Perkins was findings entered of fact and conclusions of being transported, in a car was not used at law to the effect that the acts” testi- “bad by agreement trial, trial parties.1 At demonstrated, mony by clear and convinc- Perkins’ statements from the first in- two ing 1) evidence: An intent to commit the impeachment terviews were used for 2) charged; 3) 4) acts plan; identity; purposes. rebuttal course of continuous criminal action Regarding the sentences Perkins re- against young engaged women baby- ceived, again we note that this Court has sitting capacity; motive, opportuni- provided transcript. been with no Perkins ty, preparation knowledge regarding statutory received the maximum sentence charged. commission of the acts aAs mat- count, $10,000 possible for each of a law, ter the trial court concluded that $15,000 fine for each count. testimony was relevant to material is- sues, probative and that its value was not substantially outweighed by danger DECISION prejudice Hence,
unfair to the defendant. I. BAD ACTS testimony the bad acts was admitted. The bad acts of M.K. and 19-12-5,
—INCRIMINATING STATEMENTS— P.B. was admissible under provides: which pretrial Perkins also submitted a motion suppress during crimes, statements he made wrongs, Evidence of other conversations with Sheriff Chuck Fechner. acts is not prove admissible to the char- only incriminating aspect 1. The doing anything girls, of this third not recall he was but that conversation drinking was Perkins’ statement that he did a lot at the time. 38 Roden, in order to show that he than Roden did State v. person
acter of (S.D.1986).2 may, sexually conformity therewith. It Roden acted pur- however, girls for other be admissible assaulted little within household. motive, opportu- proof girls poses, sexually such as Perkins attacked little intent, plan, knowl- nity, preparation, unfairly This evidence was not house. of mistake or edge, identity, or absence its effect resulted from prejudicial because evidence; accident. legitimate probative force of the advantage per- there no unfair from testimony demonstrates a challenged by illegitimate suasion means. State v. molesting young girls pattern of consistent (S.D.1988). Kerkhove, 423 N.W.2d long acquainted, Perkins was with whom Means, As in they within his home. each when were (S.D.1985), preyed on those whose victim, instance, approached the trusted him. families fondling began their breasts. Between inci- charges stemming from the D.J.K. grounds Nor does Perkins have dents, involving the other and the four acts temporal remoteness. reversal because girls, a total of seven sexual encounters Determining of other acts the remoteness *5 seven, In four of the presented. were realistically depend upon nature. must their baby- present in the home as a victim was 568-69, Means, 363 N.W.2d at this Court fifth, overnight. staying In a sitter prior affirmed introduction of a bad act incident, spending P.B. the victim was years prior charged, the act a three to help night staying late to Perkins’ here, greater lapse presented time than Al- baby, babysitting. a new i.e. wife with 1982, in charged where the acts occurred though asserts that the incidents 1984, 1985, whereas the other bad acts involving M.K. and P.B. were so different 1984,1985, occurred in and 1986. On these irrelevant, patterns are as to be factual facts, the did not its dis trial court abuse remarkably only The real differ- similar. cretion. rape ence between the bad acts and the raised, The issue of intent was physical incidents is that made no D.J.K. through police Perkins’ to statements Perkins, stop to whereas P.B. and M.K. act he have unconscious when the been did. Circumstances which surrounded place (sleepwalking events took or trance up and Perkins’ behavior to various acts state). rape general Even if is a intent (which point physical resistance of statute, Houghton, v. 272 N.W.2d State offer) virtually D.J.K. did not are the same. (S.D.1978),a claim of unconsciousness 788 charged and convicted Perkins was making an would be a defense intent issue crime, singular upon prior with a (the gave trial court instructions on uncon “wrong” criminal or conduct as the dissent sciousness). claims in Where a defendant Sabers, J., rather, postulates; of factor, by mitigating nocence “he thus charged with a series of criminal acts begets the of intent as a establishment reflecting plan engage in sexual activi- rape.” material issue in.the crime of State young girls. typi- ty very with These acts Willis, 193, (S.D.1985). v. 370 N.W.2d 198 plan underage fied the same toward vic- scheme, plan features show a Common tims which this Court determined was ad- and are relevant to intent. Id.3 Dace, 812, 333 missible State v. N.W.2d (S.D.1983). 816 The trial court found relevant, This defendant has no more valid com- of M.K. and P.B. to be State v. Pedde, (S.D.1983), 334 41 a rele- plaint about evidence of his “other acts” N.W.2d See, also, (Roden II), women 2. Roden v. Solem 431 3. Willis involved isolation of retarded 665, J., (S.D.1980) (Henderson, by using position authority; N.W.2d 670-1 it an official Sabers, J., specially concurring; dissenting); Henderson, J., joined by was authored Chief 840, (S.D. Champagne, State v. 844 Wollman, Fosheim, Justice Justice Mor- Justice J., 1988) (Henderson, specially concurring; Sa- (now gan, Acting and then Justice Wuest bers, J., dissenting). pedophilia Both were Justice). cases.
39
tion,
outweighed by
prejudice,
provide
vanee not
unfair
justification
little
for Perkins’
(S.D.1986),
Thomas,
237
claims.
Johnson, 316
State v.
not too remote.
(S.D.1982).
find no abuse
We
Perkins’
meeting
first
N.W.2d
with Fech-
of review
September 3,
here.4 The standard
on
of discretion
ner
occurred after Fechner
admitting
evidence
telephoned
on abuse
discretion
had
mother,
ascer
acts,
wrongs, or other bad
criminal
other
fair,
tained that he
atwas
and informed
Rose, 324
v.
set forth
State
her that he
to speak
wanted
to Perkins and
(S.D.1982).
recently written
As
that he would
be
touch with Perkins
Court,
Sabers,
this
behalf
later. Perkins then went to the station on
(S.D.1988),
Titus,
4. State v.
The State has the burden of
because one of his child vic-
person
that a confes
tims
he
beyond a reasonable doubt
thinks
is
“neat
whom she
respects”. This latter
is
incriminating
sion or
statement made
an
statement
less
accused,
prosecution
offered
reflection on this defendant’s merit than an
to,
why statutory rape
objected
freely
voluntarily
indication of
is an of-
DuBois,
girls
any
Little
id. at 804. The trial court
fense.
do not know
better.
made.
here,
argument
goals
hearing,
punishment
that Per His
are
determined
voluntary,
by giving
long
not served
him
kins’ statements were
and made
sentence is
cites,
contrary
very
they
setting.
sug
in a noncustodial
cases he
as
persuade
the trial
indicate that retribution and deterrence are
gests no facts to
us that
goals.5 See,
clearly
Gregg Georgia,
determination was
errone
both valid
v.
court’s
id.).
2909,
(see DuBois,
428
III. SEVERITY OF PUNISHMENT SABERS, J., dissenting. argument Perkins’ last is that his sentence, statutory the SABERS, maximum of fifteen (dissenting). Justice years offense, for each was too harsh. The trial court in allowed evidence subse- Again, transcript there is no of the sentenc quent against baby-sitters bad acts two ing hearing. is, therefore, It difficult every one of the reasons under SDCL 19- complaint, review which is that his addition, 12-5. balancing preju- sentence should shock the conscience of against probative dice extremely value was this Court. superficial. argues The State’s brief even
The cases cited “identity” Perkins do not favor that anwas issue because Per- argument. He concedes that his sen- charges. kins denied the If this statement limits, statutory true, tence is within why and that he were would the statute waste its very Yet, reasons, convicted of serious crimes. referring time even to the other i.e., he advocates that he is entitled a always to break all other bad acts would be recognize only goal. 5. We that these are not two goals, and observe that rehabilitation is also a A
admissible unless defendant admitted the man should not be convicted because or, man”; he is charges, and then evidence would not a that previously “bad he my acted as a man” in given be needed. As stated in dissent in “bad a factual for, if situation convictions Champagne, were secured fashion, in (S.D.1988): principle such that a man punished only be for those acts with require is clear that fair a trials new [I]t violated, which was charged, he be would interpretation of SDCL 19-12-5. We (emphasis added). stop allowing must the first sentence of being SDCL from “entirely Now, 19-12-5 swal- majority opinion, in the we have up by lowed the second sentence.”1 statements that: The bad acts of M.K. and way have come a long wrong P.B. was admissible under SDCL 19-12- way “prior in short time on bad acts.” In 5_ challenged testimony demon- concurring opinion in Rufener pattern molesting strates a consistent I, supra Morgan wrote: young girls long with whom Perkins was SDCL has much 19-12-5 been abused acquainted, they when were within his this court. The first sentence: “Evi charged home.... Perkins was awith crimes, wrongs, dence of other acts is reflecting series of criminal acts a plan prove not admissible to the character of engage very sexual activity with person in order to show that he acted young girls. typified These acts conformity therewith” has been entire plan underage same toward victims ly up by the swallowed second sen which this Court determined was admis- think tence.... I court trial Dace, (citation omitted) sible in (empha- admitting erred the evidence under added). sis holding our 19-12-5 under The above statements are set forth in the (S.D. Gage, N.W.2d 793 [State v.] [302 majority opinion despite the fact that the ]. (the rationale behind SDCL 19-12-5 “anti- case, In the same Justice Henderson rule”) person propensity is: a should not be wrote: upon suggest- convicted of crime based appears It to me that the bad evi acts propensity ed act a criminal manner dence quite prejudicial. My many prior upon “wrong” criminal or con- dissents on the bad acts evidence rule Berger, duct. Weinstein & M. J. Wein- have been in vain but this does not mean ¶ Evidence, stein’s 404-29 404[04] they wrong. been have See State v. (1988). Excluding prevents such evidence (S.D. Eagle, 377 inferring the trier fact from the ac- *8 1985) (Henderson, J., dissenting); and on guilt propensity cused’s Wedemann, v. State Although crime. of commit this rule exclu- (Henderson, J., (S.D.1983)2 dissent inapplicable profered sion be when the ing). substantially evidence is to a ma- relevant I, supra at 429. Rufener issue, terial it should not on be done 147-48, Eagle, supra In pretense, interchang- basis of facade or or ing substituting Henderson wrote: or concept the word or (S.D. crime, Rufener, 1. specific for a faces trial he should not J., I) (Rufener (Morgan, concurring spe be for held answer the scandal that his cially). certainly pro- earlier vices would most duce .... Wedemann, Slough 2. In Justice Henderson cited very principles ... Imbedded in these is the Vices, Crimes, Knightly, & Other Iowa Other concept presumed constitutional that one is (1956), begins L.Rev. 325 which with the funda- proven guilty, closely innocent until al- premise: mental premise lied is the man should not be Strongly among many entrenched Ameri- judged light abominations of his concept can traditions is that man should past. judged strenuously be reference (citations omitted). Id. at 116-17 spectre past awesome of his life. one When supposed Plan is plan propensity. for part crime as of “a committing
mean one scheme, conspiracy, or
larger plan, part,” on trial is McCor-
which crime Evidence, (3d 190 at 559 ed.
mick § part
1984), example, stealing a car as for robbery. plan to commit above, long we have come
As indicated way in wrong a short time
way the fact, anti-propensity Dakota.
South propensity in effect become the
rule has my previously indicated in writ-
rule. As and,
ings,3 I cannot travel down this road
therefore, I dissent. Gen., Tornow, Atty. R. Asst. Shawn Dakota, Plaintiff of South
STATE Pierre, Roger plaintiff appellee; A. Appellee, Pierre, Gen., Tellinghuisen, Atty. on brief. Johnson, Craig of Public De- M. Office PARKER, Defendant H. James fender, ap- Rapid City, for defendant and Appellant. pellant. No. 16510. Supreme Court of South Dakota. PER CURIAM. May 1989.
Considered on Briefs ACTION July Decided 1989. (Parker) appeals his James H. Parker driving physi- third offense conviction of under the control of a vehicle while cal (DWI). alcohol We reverse influence of remand.
FACTS Parker was arrested for DWI a Pen- nington County Deputy At the Sheriff. arrest, deputy failed to read time of the *9 “implied Parker the so-called consent warn- ings” contained in SDCL 32-23-10.1 arrest, making deputy After took Pennington County jail Parker blood, Solem, analysis breath or 3. See Roden v. to a chemical 844; (S.D.1988); Champagne, supra bodily see also determine the (cid:127)other substance to Klein, 16,-(S.D.1989). blood, provided amount of alcohol in his as 32-23-7, presence and to determine the § arrest, 1. At the time of Parker's SDCL 32-23-10 drug marijuana controlled or sub- (Supp.1988) provided: stance, provided that the test is administered Any person operates any who vehicle in this at the direction of a law enforcement officer given state is considered to have his consent