*1 S.D. 91 Dakota, Plaintiff of South STATE Appellee, ROACH,
Arley Defendant F. Appellant.
No. 26212. Dakota. of South
Supreme Court 27, 2012. Aug. Briefs
Considered Dec.
Decided *3 General, Attorney
Marty Jackley, J. Gors, General, Attorney Max A. Assistant Pierre, Dakota, Attorneys plain- South for appellee. tiff and Da- Murphy, Rapid City, John R. South kota, Attorney appel- for and defendant lant.
WILBUR, Justice. Arley by was convicted Roach ap- second-degree rape. Roach hearsay involving a number of peals issues of a requested jury and the denial instruc- tion, objection Batson and an challenge, regarding State’s use of word during trial. “rape” We affirm. FACTS AND PROCEDURAL
BACKGROUND Roach H.S. were involved in and intimate, char- three-year relationship break-ups. acterized several The cou- ple frequently through consensual reunited sexual intercourse. February On the evening of relationship H.S. tried to end her begun
with Roach had a new because she relationship. That into the evening and morning February early hours of exchanged of text mes- couple a series bathroom, sages. message doorway Roach sent a text to H.S. and H.S. finally stating accepted that he had walked to the corner of bathroom and that H.S. fell out of love with him. He fact began cry. proceeded to undress should her whether he leave her asked himself, grabbed shelf, a blanket off of a responded alone. H.S. she did not placed it floor. on the Roach then “bug” him to her about it. In re- want H.S. her grabbed pushed to the floor. a “fucin sponse, Roach called H.S. whore” being held the weight While down Further, like “just [her] mom.” Roach Roach, H.S. told Roach repeatedly stop replied fucin me “U ur 2marow [know] and that she want have sex with *4 i right got [any condoms dont be- more] him. H.S. eventually stopped fighting u responded lieve used one.” H.S. “No H.S., Roach. Roach penetrated ejaculat- arley, we not in the [okay] god arent ed, and left the bathroom. stop [okay] gotta go damm mood rite now roommate, At point, [¶ 6.] this H.S.’s sleep.” replied to Roach then “Oh u can N.R., arrived home from school. In couple world [though].” [the] fuc con- presence, Roach’s N.R. asked H.S. what to exchange messages tinued text until wrong was crying. was because H.S. H.S. turned off her phone. H.S. cell respond. not In effort an to find out morning February On the [¶ 4.] information, more N.R. asked H.S. if apartment, Roach H.S.’s entered Roach had forced H.S. to have sex with H.S., into crawled bed with and tried to him. H.S. affirmatively. shook her head refused, sex got up have with her. H.S. any- Roach stated that he had not done bed, from the to the and moved couch. thing to if H.S. N.R. asked H.S. Roach had Roach continued to to have sex with try raped responded her yes. and H.S. N.R. and H.S. to refuse. her continued Roach 911. called picked up carry then tried to H.S. and her try- into bathroom. Roach was On March Roach While bathroom, H.S., carry to her ing in second-degree rape indicted for and sexual Roach, effort to stop attempted grab to person incapable with a contact consent- scraped onto walls and her thumb on ing. charge The sexual contact was later doorway. corner of a H.S. asked part In a two dismissed State. her stop put Roach and to down. Roach information, also charged Roach was as a eventually complied and H.S. walked into prior felony habitual offender to a due cigarette.1 bathroom to smoke a conviction. bathroom, Once in the H.S. again trial,2 After a Roach was jury relationship tried end her with Roach. guilty second-degree found rape and conversation, During their Roach became prison in with years sentenced to fifteen hickey when upset he saw a H.S.’s neck. years suspended. five response marking, Roach this said five in [¶ 9.] Roach raises issues H.S. go fuck the world but “c[ould] appeal: can’t fuck then him.” Roach started [she] 1. Whether court in pound erred de- his fist into his hand. H.S. be- jury going nying proposed came scared Roach’s instruc- that he was to harm her. Because Roach stood between her tion on consent. typically cigarettes represent Appellate
1. H.S. Roach smoked bath counsel did room because the exhaust fan removed the at the trial level. apartment. from the smoke that H.S. for him to believe to sexual reasonable H.S.’s statements 2. Whether encounter. to the sexual Mason, consented nurse, were Amber assault SDCL 19-16-8 under admissible in- proposed (Rule 803(4)). stated, two that “[i]f struction number reasonably believed H.S. con- Defendant in trial court erred de- 3. Whether act, rape oc- then no to the sex sented challenge to Roach’s Batson nying court considered curred.” The trial pro- strike of peremptory the State’s Instead, it. denied jury instruction and spective juror, C.B.B. in- proposed third gave Roach’s to Offi- 4. Whether H.S.’s statements instruction, struction, of fact” a “mistake admissible under cer Terviel were Pat- Dakota to the South Criminal similar (Rule 803(2)). SDCL 19-16-6 and similar Jury tern Instruction its trial court abused 5. Whether the approved by this Court to the instruction allowing the use of discretion (S.D. Woodfork, “rape” during trial. word 1990).4 three proposed instruction *5 17. Instruction 17 jury instruction became AND ANALYSIS DECISION provided: a crime when committed An act is not the trial court 1. Whether or mistake ignorance omitted under an denying proposed in erred any criminal in- disproves fact which of jury on consent. instruction honestly believes person tent. Where a theory Roach based his At facts, acts or fails to act certain and fact[s], nature of his of defense on the tumultuous in those upon based a belief H.S., which, true, well as their relationship with as not result if would crime, person is not of reconciliation—consensual sexu- commission of a method alleged guilty.5 He it was al intercourse. good Jury reasonably and in faith believed Pattern In- dant
3. South Dakota Criminal engage voluntarily to in sexu- provides: she consented struction give you must the defendant al intercourse crime when committed or An act is not a the doubt and find him not the benefit of ignorance or mistake of omitted under guilty. any disproves criminal intent. fact which give to Id. The trial court refused instruc- honestly reasonably person and Where a jury. at 334. The court in- tion to the Id. facts, and acts or fails to believes certain instructed, ultimately and this Court stead facts, upon act a belief in those based following in- approved, the mistake of fact which, true, if would not result in the com- struction: crime, person guilty. a is not mission of committed or An act not a crime when ignorance under an or mistake of omitted charged with and convicted Woodfork was any disproves criminal intent. fact which Woodfork, first-degree rape. 454 N.W.2d of honestly reasonably person and Where a "the trial court at 333. He contended that facts, fails certain and acts or to believes refusing grant requested in his in- erred facts, upon a in those act based belief relating Id. to the issue of consent.” struction which, true, if would not result in the com- jury requested be instructed with He that the crime, guilty. person is not mission of a following instruction: Id. charge rape a a that the It is defense to Jury Criminal Pattern 5.Unlike South Dakota defendant entertained a reasonable ap- the instruction good person Instruction 2-8-1 and faith belief that the female Woodfork, jury in- engage proved this Court voluntarily consented to in sexual "and you not contain the words struction 17 did intercourse. If from all the evidence reasonably” sentence. in the second have doubt whether the defen- reasonable Martin, has previously ing (quoting This Court it.” Id. S.D. ¶ 411). of review for a 683 N.W.2d at provided standard jury. to a “A trial court’s instructions argues 15.] wording has discretion court him deprived of his constitutional instructions, and arrangement jury of its rights process to due and a fair trial when we review a trial generally therefore it to instruct jury theory refused deny decision grant particu court’s of defense —consent. He further asserts instruction the abuse of lar under discre proposed that his second instruction was Klaudt, standard.” v. S.D. tion State supported by law and had a foundation in ¶ 117, 121 (quoting presented evidence trial. Roach Cottier, maintains he was prejudiced 125). This Court has also proposed jury court’s denial his second stated, however, that because, instruction had the instruction be afforded a mean- [a]n accused must been given jury, the verdict would present complete ingful opportunity have been different. theory defense. When a defendant’s State asserts that the ... some supported by law and has because, properly instructed evidence, ten- foundation in the however whole, when the instructions are read as a uous[,] right the defendant has a the law governing correctly the case is Nonetheless, present Q]ury it. instruc- stated. The State that lack contends whole, tions are to be considered as a *6 not an rape consent is element of forcible if and the instructions when so read 22-22-1(2), thus, under SDCL and correctly state the law and inform the jury given specific not be need a instruc jury, they ques- are sufficient. This is a citing tion consent. In as to State v. tion of law reviewed de novo. Faehnrich,6 concedes, however, the State (alterations (internal original)
Id. cita- freely voluntarily if the victim and omitted). quotations and tions coercion, force, threat, consents without or is a rape. then consent defense to forcible Further, an in re [¶ 14.] “[e]rror (S.D.1984). 359 N.W.2d 900 fusing proposed a instruction ‘is reversible only given if it prejudicial, and the defendant The instructions ” correctly proving any prejudice.’ jury applicable has burden of stated the law ¶ Martin, 2004 A of (quoting plain reading Id. 18 State v. this case. SDCL 22- 406). 22-1(2)7 S.D. “This does not include consent ele- 683 N.W.2d error, Jones, requires alleged that the ment. See State v. showing ¶ 12, in all probability, produced (quoting some effect 413 State v. (S.D.1987) Schnaidt, jury’s upon verdict was harmful N.W.2d (“When clear, assign language of rights party the substantial of a statute is Faehnrich, that, Rape penetration Court stated "con- an act of sexual accom- 6. this may any any plished person be a when there is evidence with sent defense under following in- offered and received that the victim did circumstances: consent; however, deed that evidence would force, coercion, negate (2) utterly any have to Through also element the use of force, coercion, at bodily or threat.” 359 N.W.2d great threats immediate and harm persons against the victim or other within presence, accompanied by ap- the victim's 22-22-1(2) parent power provides: 7. SDCL of execution!.] Roach believed H.S. as to whether certain, there is no occa- doubt unambiguous, to intercourse. construction, only consented and this Court’s sion for meaning as clear- function is to declare failed to ar- Finally, Roach has statute.”)). And, ly expressed he as a any prejudice suffered ticulate evidence of H.S.’s present not Roach does proposed his of the court’s denial of result that would any much less evidence consent though Even Roach’s second instruction. force, any element of “utterly negate” denied, was jury instruction proposed Faehnrich, coercion, threat. proposed “mistake of gave trial, Roach elicited at 900. At Additionally, Roach fact” instruction. on cross-examination testimony from H.S. testimony from H.S. on to elicit permitted had sexual frequently that he and H.S. supported his con- cross-examination in the weeks in the bathroom intercourse argued his consent defense. He also sent H.S. also to the event at issue. leading up argu- closing in his defense before least testified on cross-examination Thus, any suffer Roach did not ment. of sexual intercourse of the incidences one from the trial court’s denial prejudice This of simulated violence. included acts proposed jury instruction. evidence, however, “utterly ne- does force, coercion, or any element of statements gate” 2. Whether H.S.’s nurse, injuries Ma- threat in case. H.S. received assault Amber to sexual encounter, son, which were document- under from the were admissible SDCL (Rule 803(4)). H.S. also professionals. ed medical nature of testified as to the noneonsensual Prior the State Thus, with Roach. her sexual encounter hearsay offer evidence of filed a notice to containing the specifically an instruction Mason, nurse, re assault Amber sexual “consent,” by Roach in proposed word as to Mason statements H.S. made garding instruction, necessary. his second was not H.S. Mason during Mason’s examination of specialized with train registered is a nurse *7 Furthermore, in jury the Region Rapid City in sexual assault at ing whole, structions, correctly when read as a Hospital. al applicable law to this case and stated the hearing, the During a motions meaningful opportunity allowed Roach “a Klaudt, testimony. Mason’s presented present complete defense.” objected testimony arguing to the at 121. Roach hearsay not testimony was rejection of Roach’s instruction that Following (Rule 19-16-8 two, gave jury admissible under SDCL number the trial court 803(4)). subsequent hearing, in In a “mistake of fact” proposed portions that the of generally Roach’s “mistake court ruled struction. In addition to instruction, to Mason that were re- jury given was also H.S.’s statements of fact” were ad- diagnosis and treatment to the elements of forcible lated instructions as innocence stan missible at trial under SDCL rape, presumption (Rule 803(4)). court, however, dard, The trial reasonable doubt standard. and the whole, were ad- Thus, specify not which statements when read as a the instruc did (Rule under SDCL 19-16-8 jury to return a verdict of missible guided tions 803(4))and which were not.8 guilty if the had a reasonable that the statements of ruling, there is no indication In its the trial court noted that. victim to Nurse Mason were made with At Mason testified about She had also that stated at one point, just in the examination she stopped fighting the method she utilizes because she stated, rape Specifically, just victims. she wanted it over get with. In the it, middle of she her grabbed phone. cell history on them. I I do interview She was pushing just buttons ran- and — me basically everything ask them to tell dom buttons to call trying anybody so beginning to happened that from somebody that would be able to hear in; end; any any- were positions you what going was on. you; thing they they that where said to stated, Mason further you; absolutely anything touched that trauma, injuries, help any will me find A. Yes. an abrasion on There’s her the exam so anything they like that in thumb. repeating keep during don’t have to it Q. And maybe is that what she she— just exam can for me so I kind of you told about on her left thumb? know where to look. A. Yes. 24.] Mason further stated she rec- Q. Okay. youDo what recall told [H.S.] ords conversation she has with the you about how she received all of her victim a “narrative.” Mason testified injuries? pur- narrative serves medical A. She told me that she was forced provides guidance because it pose Ma- onto the floor she was fighting where for injuries in helping son her locate on the awhile stop. for him to And then she victim. Mason that she testified took finally just gave up she was laying prior physical H.S.’s narrative exam. on her back on the floor. narrative, quoting H.S.’s Mason testi- fied, that, Mason also testified Q. on, I I want to—before move I up told me that she had broke
[H.S.] want you, to ask tell you [H.S.] boyfriend her and he came into— with penetration? about uninvited, over to her house she he wanting was bathroom and was A. Yes. kept to have sex with She telling her. Q. And—and does that serve a medical anything. him that she didn’t want He purpose to find out about whether some- a blanket off a shelf pulled and laid it body penetrated not? *8 floor. She said that she didn’t A. Yes. anything. just kept
want saying She Q. penetration And what mean? does “No.” you explain Can that? it, And then in the middle she had A. just penis being Penetration is recalled that she forced into the inserted into the vagina. She walk willingly bathroom. didn’t into bathroom, injured Q. she And you and her what did tell about [H.S.] being thumb into the penetration? forced bathroom. [S]o, understanding they the clear that were for treatment in admissible.... es- diagnosis. sence, medical treatment telling or Accord- you that the [c]ourt ingly, identity admit [c]ourt will not provided by information Nurse Mason rele- information elicited. diagnosis vant to medical and treatment is ... by The rest of the information elicited admissible. diagnosis
Nurse Mason as it
relates
and
(D.S.D.1997)
1556,
rev’d
part,
with
that he had sex
told me
A. She
aff'd
Cir.1999).
(8th
part,
ing history, past present medical or or presumption spective jurors regarding sensation, in- symptoms, or the pain, C.B.B., American of innocence. a Native ception general character of the cause juror, stated that her under prospective not ex- or external source thereof are standing presumption innocence §by cluded 19-16-4 in so far as reason- *9 until was that the defendant is innocent treatment, ably diagnosis or pertinent to response In to counsel’s proven guilty. available as though even the declarant is request to elaborate on her affirmative a witness. the about whether it response question to ... question “The crucial under this rule is would be hard for her to look at Roach as nothing wrong, whether the out-of-court statements were C.B.B. re having done sitting looking him there ‘reasonably pertinent’ diagnosis sponded, “Seeing to Class, innocent, really don’t think he did F.Supp. you treatment.” v. 962 but Olesen
267
¶78,
something -wrong.”
questioning
11,
After
v. Overbey,
State
2010 S.D.
790
35,
H.L.S.,
responses
(quoting
about her
to Roach’s N.W.2d
40
In re
C.B.B.
2009
¶
92,
11,
803, 807-08).
questions,
State
S.D.
774 N.W.2d
counsel’s
the
exercised
peremptory
its
on C.B.B.
one of
strikes
The
[¶
test for examining
33.]
challenge
a Batson
consists of three steps.
Roach
challenge
30.]
raised a Batson
“[A] defendant must first establish prima
a
State’s
strike of
peremptory
the
C.B.B.
facie case of purposeful discrimination by
79,
v.
476
Kentucky,
See Batson
U.S.
106
showing he or she
a member
cogni
of a
(1986).
1712, 90
S.Ct.
L.Ed.2d 69
Based
zable racial group and the State used its
responses
inquiries,
its
C.B.B.’s
peremptory challenges to remove mem
responded
State
that it
not believe
that
bers of the
race
defendant’s
from the po
impartial juror.
could be a fair
C.B.B.
tential
Mulligan,
candidates.”
2007
relying
on its
notes and
detailed
obser-
¶67, 33,
S.D.
Batson,
here were related to a star- court or- victim’s statements reviewing credibility, therefore made under the stress tling event and findings great those give dinarily should excitement). deference”)). Thus, the trial court because judge position C.B.B.’s was in the best This reviews ev- Court [¶ 37.] throughout and demeanor credibility of the trial court under identiary rulings finding of the trial court proceedings, v. discretion standard. State an abuse of a race-neutral strike that the strike was ¶ Graham, N.W.2d 2012 S.D. 815 affirmed. 293, “An of discretion refers to 301. abuse purpose a discretion exercised to an end statements 4. Whether H.S.’s [¶ 35.] by, clearly against reason justified Terviel were admissible to Officer Fisher, 2011 S.D. and evidence.” State v. 803(2)). (Rule 19-16-6 under SDCL 571, 74, 32, (quoting N.W.2d 578 805 prior At trial and to H.S. ¶ 26, Krebs, 43, 714 State v. stand, Terviel testified taking the Officer 91, 101). N.W.2d Officer Terviel behalf of the State. on pur To be admissible February 911 call on responded to N.R.’s exception to suant to the excited utterance He testified as to his observations rule, hearsay hearsay statement began Officer Terviel of H.S. When startling “relate ‘to a event or condi must conversation with H.S. testify as to his was under tion made while the declarant happened, what had Roach ob regarding by excitement caused the stress of testimony arguing that it was jected to this ” Midgett, v. 2004 event or condition.’ State objection hearsay. His was overruled ¶ 31, (quoting S.D. 680 N.W.2d following day The explanation. without 803(2)). (Rule “The relia SDCL 19-16-6 supplemented State the record from the bility of the statement stems testimony of Officer and stated that the any event that overrides influence of the under the excited Terviel was admissible for fabrica capability reflective essential hearsay rule exception utterance Floody, v. tion.” State (Rule 803(2)).9 Fol under SDCL 19-16-6 (S.D.1992). “Thus, inquiry ‘the critical exchange, the court did not lowing made is whether the statements were regarding any findings make record still under the while the declarant was of Officer Terviel’s testimo the admission ” experience.’ (quoting influence of the Id. (Rule 803(2)). ny under SDCL 19-16-6 (S.D. 151, 159 Logue, State v. 372 N.W.2d Roach, relying on appeal, On State Orel- 1985))). lapse “The of time between the up, argues that the trial court erred when startling event and the out-of-court state testimony un it admitted Officer Terviel’s although dispositive ment relevant is not (Rule 803(2)) yet der SDCL 19-16-6 803(2).” application United [R]ule any findings not make on the record. See (8th Shell, 77, 85 States v. Iron 633 F.2d (S.D.1992) (finding Cir.1980). by admitting that the trial court erred has the record testimony of two witnesses under SDCL cited (Rule 803(2)) support when the record did in court’s admission condition, (Rule 803(2)) provides: is not excluded 9. SDCL 19-16-6 the event or 19-16-4, though § the declarant even relating startling A statement to a event or made while the declarant available as a witness. condition under the stress of excitement caused *11 testimony Officer Terviel’s under SDCL alternately crying, sobbing, and alternate — (Rule 803(2)). court, The trial appeared quite upset.” Specifically, Offi- however, findings did not make as to cer Terviel testified that whether the statements at issue were A. [s]he told me that she continu- —she under the made stress of excitement of the ally no, told but he [Roach] told her he event. just wanted to have sex with her one said, Midgett, we more time. problem here is that the
[t]he trial court Q. Did she break down at any point did not determine whether each state- during this conversation? ment at issue was made under the stress A. Again, Yes sir. she—she cry would of excitement caused this event. Al- throughout and off the conversation. though the State argues offi- [the Officer Terviel’s investigation involving indicated cer] [that the “seemed victim] H.S. lasted approximately 49 minutes.10 shaken,” to-appeared to be he also testi- [¶ 41.] Officer Terviel’s observations fied that “just she seemed hesitant and H.S.’s throughout demeanor Officer about coming over to talk to me. She Terviel’s investigation indicate that H.S.’s
just
stayed
Therefore,
kind a
back.”
excited statements
product
were the
of the
while
may have
[the victim]
been under
startling event she was
continuing
expe-
requisite
stress of excitement when
rience at the time she spoke with Officer
she made some of the statements to [the
Terviel rather than
product
of reflec-
officer],
cannot,
we
from the State’s lim-
tion. While the trial court did not make
record,
ited citation to the
make that
findings as to the stress of excitement of
assessment for all the statements.
the event on the record as discussed in
270 occurred). v. See also State what had Addition- jury. province the vaded 1244077, A03-699, Mireles, sug- the trial court No. 2004 WL that ally, he contends 2004) jury 8, as to (finding instruct the that it would June gested (Minn.Ct.App. *4 at but a “rape” word the use of the misconduct prosecutorial there was no This given. was never instruction specific “rape” the word use of prosecution’s trial court’s denial of the Court reviews offense). But see Arnold to describe the the word to the use of objection Roach’s 118, State, 313, 304 S.E.2d Ga.App. v. 166 an abuse of discretion “rape” at trial under (1983) case, that in this which (stating 123 Mattson, 2005 S.D. State v. standard. See identity the assailant on the turned (“[This ¶71, 13, Court] N.W.2d 538 698 occurred, rape the rather than on whether made evidentiary rulings the presume[s] word use of the “[unrestricted correct, and review[s] trial court are by absent may objectionable, be [“rape”] an abuse of discretion rulings under those question jury instruction that some standard.”). occurred was for any rape whether or the first time this Court This is determination”). jury’s] [the allowing the use of has whether addressed record, the a review of the On is an throughout “rape” the word are used both “rape” “raped” or words jurisdictions Other abuse of discretion. dire, cross-exami- in voir direct and parties to address opportunity have had the witnesses, closing argu- nation of Goss, 147, 293 N.C. 235 issue. See State v. objection, Prior to Roach’s first ments. (1977) 844, that the use (finding 849 S.E.2d times was used several “rape” “raped” or was clear “rape” by the victim of the term Notably, and Roach. by both the State term” and not ly a “convenient shorthand objection, Roach even after his second conclusion); legal State impermissible an in his cross-exami- 197, “rape” “raped” used Wonser, P.2d v. 217 Kan. (1975) closing argument. trial court did not nation of H.S. and (finding that the word repeated use of the of the use of the allowing prevalence err in witnesses, prosecuting “rape” by word lends credence to fact “rape” by both sides counsel when refer attorney, and defense was not used as a “rape” that the word inde an element of the offense of ring to conclusion, rather as shorthand legal but stating cent with a child and liberties the events that occurred. to describe simply designating were parties “the Further, court did not while the Amick, name”); v. act its common jury instruction as to give specific COA8-760, *3 No. WL “raped,” “rape” use of the words 2009) (stating that (N.C.Ct.App. Apr. instructions as to give specific court did was not “rape” the victim’s use of the word rape forcible under SDCL the elements of conclusion, legal but impermissible an 22-22-1(2) beyond a proven that must be “a ‘convenient shorthand term’ rather doubt, of reason- reasonable the definition events”); the victim’s version of describe doubt, of inno- presumption able and the A122908, Haynes, No. 2010 WL People prejudice be- cence. Roach did not suffer (Cal.Dist.Ct.App. Oct. *6-7 instructed, properly cause 2010) that it was not an abuse of (stating confusion, any, if avoiding thus prose for the court to allow the discretion “rape” may have caused. use of the word questions using the cutor to ask the victim Therefore, not abuse its dis- the court did “rape” word and for the victim to use objection to the denying cretion victim’s “rape” response word because during trial. “rape” use of the word responses describing were shorthand for be CONCLUSION hazardous to preserving objection *13 for appeal. properly The trial court denied [¶ 47.] Here, the sought pre- defense con- proposed jury
Roach’s instruction on exclude, trial to order other among things, given The instructions that were to sent. testimony the of Nurse Amber Mason accurately stated the law and the about statements the victim made regard- prejudicial not to Roach. were Additional- ing identity the alleged the assailant and ly, object because did not to Ma- other pertinent remarks not to medical trial, testimony pre- he failed to son’s diagnosis. granted The court the request, appeal. serve that issue on The trial court in part, saying it “will not admit the identi- chal- correctly also denied Roach’s Batson ty information elicited.” Defense counsel lenge to the peremptory State’s strike also the asked court for “clarification on Further, while court juror, C.B.B. the trial the purported the statements State is not rec- specific findings make on the introduce, seeking to as all statements ord, the cited State has to stress of excite- alleged victim made supposedly to ment evidence in the record to warrant the pertinent Ms. are Mason to medical diag- trial court’s admission of Officer Terviel’s nosis or treatment.” responded: The court testimony under the excited utterance ex- The court finds that rest of ... the the ception hearsay Lastly, to the rule. information elicited Nurse Mason as court abuse in did not its discretion diagnosis it relates to and treatment denying objection to the use your Now I in admissible. note re- Therefore, “rape” during word trial. counsel], sponse, you [defense are foregoing, based on the we affirm. asking for clarification regarding what statements the victim to the made nurse GILBERTSON, Justice, Chief pertinent diagnosis as to medical Justices, SEVERSON, and ZINTER and so, essence, treatment in the court is concur. telling you provided the information to to KONENKAMP, Nurse Mason relevant medical di- Justice, agnosis and treatment is admissible. specially. concurs identity question court finds to KONENKAMP, (concurring Justice be inadmissible. specially). Then the court asked if its counsel re- sponse provided “sufficient direction.” This case illustrates 50.] one of affirmatively, The State answered and de- pitfalls inherent in our rule in 19-9- SDCL replied, rely fense counsel do on our “We (Rule 103(a)). provides part: The rule letter, August letter dated 12th.” But that “Once ruling the court makes a definitive again, only sought the “clarification” same admitting on the record evi- excluding and commented that “not all statements dence, either at or before a party alleged victim made supposedly to Ms. objection need not renew an or offer of pertinent diagnosis Mason are to medical proof preserve a claim of for error or treatment.” (em- (Rule 103(a)) appeal.” SDCL 19-9-3 Harbert, added); phasis Papke also ruling? see Was there a definitive counsel, n. fairness defense a sense gives guid- n. 16. was was ruling Our rule no further definitive: it not condi- ance on what rul- provisional. Apparently, constitutes “definitive tional or ing.” may on its be provision ruling Overreliance this court intended its final given opportunity never subject. But was court was on the
word had, testimony, specific objections. If it ex- hear these that all the nurse’s saying may easily matter have been corrected. identity, pertinent to medical cept brought counsel have Or was the court Defense should or treatment? diagnosis attention at trial. it issue back court’s saying that would admit nurse’s explain, “Even testimony only diag- to medical As the Committee Notes pertaining definitive, noth- ques- ruling the court’s These are close where nosis or treatment? *14 prohibits ing in the from explained [rule] As in the Committee tions. evidence revisiting to SDCL its decision when the counterpart to the federal Notes (Rule Id. 103(a)), “imposes to be offered.” Since the court the rule clarify opportunity specific an to rule on the given whether obligation counsel us, evidentiary ruling now before we must declare or other concerns in limine waived. when there is doubt on that the issue definitive 103(a) advisory point.” See Fed.R.Evid. note. committee’s appeal, thoroughly On counsel testimony, parses arguing Nurse Mason’s were not at all related to portions diagnosis or treatment. But