STATE of South Dakota, Plaintiff and Appellee, v. Phillip Don STEELE, Defendant and Appellant.
No. 18077
Supreme Court of South Dakota
Decided Jan. 5, 1994
Considered on Briefs Sept. 2, 1993.
661
Patrick M. Schroeder, Minnehaha County Public Defender‘s Office, Sioux Falls, for defendant and appellant.
WUEST, Justice.
Defendant, Phillip Steele (Steele) appeals his rape conviction, raising multiple issues. We reverse the circuit court‘s denial of a motion for new trial based on newly-discovered evidence that was suppressed by the
FACTS AND PROCEDURAL HISTORY
On January 3, 1992, A.S., the alleged victim, was a seventeen-year-old female living and working on her own in Sioux Falls. After spending the evening and early morning hours of the following day “cruising the loop” with friends, A.S. encountered Steele at a convenience store where he was looking for a ride home. A.S. left the store with Steele in her car at 3:16 a.m. on January 4. Later that morning, A.S. dropped Steele off at the bus depot located at 7th and Minnesota, then drove south to 41st and Minnesota where at 5:27 a.m., she signaled a police officer and reported a rape. Steele and A.S. had two very different versions of what happened that morning. A.S. testified to a continuous and brutal two and one-half to three hour rape, while Steele testified to two incidents of brief consensual sex. The issue for the jury was which version to believe, which witness was more credible.
Steele was arrested on January 4, 1992 and charged with Rape in the Second Degree in violation of
Prior to trial, the Defense sent a letter of discovery to the Minnehaha County State‘s Attorney‘s Office, and also relied on the circuit court‘s adopted rules of criminal discovery which require open files and disclosure of all information. Subsequent to the trial and
Sentencing was set for July 22, but was delayed for one week to allow hearing on the motion for new trial prior to sentencing. The trial court allowed A.S. to make her victim impact statement on July 22, and she offered to retract her statements alleging that she had gotten chlamydia from Steele. On July 29, 1992, hearing was held on the motion for new trial. The court denied the motion, and proceeded immediately to sentence the defendant to 100 years in the penitentiary. Steele appeals from this judgment and sentence.
DISCUSSION
1. Motion for New Trial Based on Newly Discovered Evidence
The granting or refusing of a new trial upon the ground of newly discovered evidence is largely in the discretion of the trial court. Unless there has been an abuse of such discretion, this court will not interfere with the action of the trial court upon such motion. State v. Willis, 396 N.W.2d 152, 153 (S.D.1986) (Willis II) (citing State v. Lufkins, 309 N.W.2d 331 (S.D.1981); State v. Martinez, 88 S.D. 369, 220 N.W.2d 530 (1974)). See also State v. Feuillerat, 292 N.W.2d 326, 333 (S.D.1980) (citing State v. Gerdes, 258 N.W.2d 839 (S.D.1977); State v. Coleman, 17 S.D. 594, 98 N.W. 175 (1904); Wilson v. Seaman, 15 S.D. 103, 87 N.W. 577 (1901)).
We note at the outset that this is not the first time that this court has been called upon to examine the actions of the Minnehaha County State‘s Attorney‘s Office in suppression of evidence. In at least one other case, we reviewed a situation where the prosecution knew that the alleged victim in a pending rape case brought second rape charges against another individual. Willis II, 396 N.W.2d at 153-54. The Sioux Falls Police Department investigated and filed a report, but the State‘s Attorney decided not to bring charges. Id. at 153. It was undisputed that “[n]o mention of this alleged rape was ever made to Willis or his counsel inspite [sic] of direct and continuing requests for any exculpatory evidence.” Id. In his defense, Willis alleged that he had the consent of the victim. See State v. Willis, 370 N.W.2d 193, 195-96 (S.D.1985) (Willis I). After analyzing the actions of the State‘s Attorney‘s office, this court stated that, “We certainly do not condone the activities of the Minnehaha County State‘s Attorney‘s Office in handling this newly discovered evidence. We do not believe, however, that there is a reasonable probability that this evidence would probably produce a different result at a new trial.”2
Suppression of evidence by the prosecution goes directly to the fundamental fairness of the trial, the basic due process rights of the accused. We look to the words of the U.S. Supreme Court in what has become known as the Brady rule case: “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). The Court later explained the Brady rule stating, “A fair analysis of the holding in Brady indicates that implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial.” United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976) (emphasis added). After reviewing the entire line of cases stemming from Brady, we stated: “Thus, where [the defendant] was not aware of the evidence, if the evidence is both favorable and material, and he has made a request for the evidence, there has been a due process violation.” Ashker v. Solem, 457 N.W.2d 473, 477 (S.D.1990). In other words, four questions are to be answered when there is suppression of evidence by the prosecution. If the answers to these four questions are in the affirmative, the defendant‘s due process rights have been violated and a new trial must be granted:
- Was the defense unaware of the evidence?
- Is the evidence favorable to the defense?
- Is the evidence material to the defense?
- Did the defense make a request for the evidence?
Evidence is favorable where it creates a reasonable doubt that did not otherwise exist. Ashker, 457 N.W.2d at 477 (citing United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2402, 49 L.Ed.2d 342 (1976)). The U.S. Supreme Court has stated that “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985) (emphasis added). See Ashker, 457 N.W.2d at 477.
As outlined previously, it was only through a post-conviction news story that the Defense discovered A.S.‘s allegations that she contracted chlamydia from Steele. The Alabama Supreme Court was faced with a similar situation to that presented here. Ex parte Geeslin, 505 So.2d 1246 (Ala.1986). In Geeslin, two weeks after defendant‘s conviction of rape, the defense attorney discovered evidence that the standard rape examination performed on the victim included a vaginal smear showing the presence of gonorrhea. Geeslin, 505 So.2d at 1247. It was undisputed that the prosecutor never revealed to the defense that the victim‘s gonorrhea test was positive while the defendant‘s test was negative, in spite of a discovery request for all information held by the prosecution. Id. at 1246-47. Prior to trial, the prosecuting attorney even spent time preparing expert testimony to show that the defendant‘s negative test result could have been affected by antibiotics taken during the time period between the alleged rape and the defendant‘s gonorrhea test. Id. at 1247. However, no information regarding the gonorrhea testing was
In the present case, Steele‘s defense was that he believed he had the consent of the alleged victim. Steele and A.S. told two very different versions of the events of that night. The victim‘s version was that the assault lasted for two and one-half to three hours and consisted of continuous and repeated assaults.3 Steele‘s version was that there were a couple of attempts to have intercourse and also oral sex, but that these did not last very long and terminated after a short period of time. Information hurriedly put together by the Defense, so that the new trial motion hearing could be held the same day as sentencing,4 tended to show that the male‘s chances of contracting chlamydia increase as the number of sexual contacts increases. The fact that both Steele and his wife tested negative for chlamydia, while the alleged victim tested positive should have been given to the jury so that this could be weighed along with other evidence as they decided which version of the events was more believable. Further, the Defense argues that A.S.‘s public accusation that Steele infected her with a sexually transmitted disease without any real basis for the accusation, and her later offer of retraction, goes directly to her credibility. Again, credibility was a key issue in the trial, and this information may well have raised a reasonable doubt in the minds of jurors. The Defense also argued that had the State revealed this information prior to trial, it could have influenced other decisions made regarding trial strategy; i.e., the Defense may have rested at the end of the State‘s case and relied on whether or not they had proven their case beyond a reasonable doubt.5
The State suggests that Steele may have contracted chlamydia, but that it could have self-resolved, or cleared up by prescription medicine taken by Steele while he was in jail. However, if the State had not suppressed the evidence at the outset, Steele could have
The circuit court‘s letter outlining the rationale for denial of the new trial motion shows its basis in the rape shield statute,
This suppression of evidence by the prosecution denied Steele his right to a fair trial as guaranteed by the due process clauses of the U.S. and our State constitutions.
2. Prior Bad Act Evidence
The trial court ruled that evidence regarding Steele‘s arrests of the same day for public indecency (urinating outside) and disorderly conduct were admissible under
As occurred in Chapin, the trial court in the present case made findings that were “generic in nature,” simply restating that the evidence of prior bad acts was admissible for the purpose of showing intent, preparation, plan and knowledge. See Chapin, 460 N.W.2d at 421. The trial court did not iden-
3. Admissibility of Photographs of the Defendant Where Identity is Not a Jury Issue
Steele admitted to sexual contact with A.S.; his defense was consent. Nevertheless, the State obtained color photographs of Steele and had these enlarged and mounted. The close-up shots showed Steele bare-chested, and were clear depictions of the various Native American tattoos on his chest and arms. A.S. had already made an unchallenged positive identification of Steele, who in fact stipulated to the identification, and that he was involved in the incident. The Defense argues that admission of these photographs into evidence was improper, as it only served the State‘s purpose of arousing the jury with pictures of an Indian male with tattoos on his bare chest.
This court has generally considered admission of photographs into evidence. See, e.g., Woodfork, 454 N.W.2d at 337 (citing State v. Swallow, 350 N.W.2d 606, 610 (S.D.1984); State v. Kane, 266 N.W.2d 552, 558 (S.D. 1978)). We have stated that the trial court should “weigh the probative value of the photographs in resolving a material issue as against the dangers of prejudice to the appellant through needless arousals of the passions of the jurors.” Kane, 266 N.W.2d at 558. However, we have not specifically addressed the situation where the defendant‘s identity is not an issue.
Other courts have discussed the offering of photographs of the defendant into evidence. See, e.g., United States v. Reed, 376 F.2d 226, 228 n. 2 (7th Cir.1967), cert. denied, 393 U.S. 984, 89 S.Ct. 457, 21 L.Ed.2d 445 (1968). In Reed, the court stated:
[W]e point out that there is grave risk in the introduction of photographs [of the defendant] where other evidence is produced or available to show the accused is the person who committed the crime charged. The character of the pictures themselves may carry prejudicial implications, through police notations or the appearance or pose of the accused in the photograph.... Where the existence of other evidence makes the use of photographs unnecessary, and there is no other reason for their use, their use, in itself, may imply that their purpose in evidence is to indicate to the jury that the accused has a history of convictions or arrests. In determining the relevancy of photographs, the balance of the possibility of prejudice as against the necessity of their use is one factor to be considered by the trial court.
Id. Likewise, the West Virginia Supreme Court has considered this issue. West Virginia v. Reed, 166 W.Va. 558, 276 S.E.2d 313 (1981). This case concerned admission of a photograph depicting the defendant in long hair at time of arrest, as opposed to short hair at time of trial. The court stated:
We have always held that the admission of photographs rests in the sound discretion of the trial court and that its rulings will be upheld unless there is a clear showing of abuse of discretion. [Citations omitted.] However, to be admissible photographs must be offered for some relevant purpose and must have probative value which outweighs any prejudicial effect.
Similarly, the Maryland Court of Appeals has considered the situation where photographs of a defendant are offered where his identity is not an issue. Arca v. Maryland, 71 Md.App. 102, 523 A.2d 1064 (1987). The defendant was charged with first degree murder, and convicted of manslaughter. The defendant‘s sole defense was that he acted in self-defense. “That appellant was the actor ... was never an issue at trial.” Arca, 523 A.2d at 1064. The state moved into evidence a police photograph of the defendant. The defense objected based on relevance, arguing that identification was not an issue. Nevertheless, the trial court admitted a “sanitized” version of the police photograph, removing indications that this was a “mug shot” from the photograph. The court held that this was reversible error, stating:
In most cases where police photographs are offered, the identity of the defendant, either as the criminal agent or as a recidivist for enhanced punishment purposes, is at issue, and the photographs are offered to help establish that identity. [Citation omitted.] Here, as we have observed, identity was not in issue. The State had absolutely no need for the photographs—either the original array or a “sanitized” copy of them. They simply were not relevant to any issue that the jury would be asked to decide.
Arca, 523 A.2d at 1065-66 (emphasis added). In reaching its decision, the Arca court considered the tests utilized for admission of police photographs or “mug shots.” Some federal courts apply a three-prong test which requires the state to show three elements. See United States v. Harrington, 490 F.2d 487, 494 (2nd Cir.1973). The Harrington court stated:
We perceive three prerequisites to a ruling that the introduction of “mug shot” type photographs does not result in reversible error:
- The Government must have a demonstrable need to introduce the photographs; and
- The photographs themselves, if shown to the jury, must not imply that the defendant has a prior criminal record; and
- The manner of introduction at trial must be such that it does not draw particular attention to the source or implications of the photographs.
Id. at 494. Courts applying this test state that all three prerequisites must be met so that admission of the photographs does not amount to an abuse of discretion. See, e.g., United States v. Fosher, 568 F.2d 207, 214 (1st Cir.1978); United States v. Torres-Flores, 827 F.2d 1031, 1037 (5th Cir.1987). The Fosher court, repeating the test set out in Harrington, further noted: “While it should be clear to all, we reiterate that this test presupposes that the photographs themselves are relevant to a material issue at hand.” Fosher, 568 F.2d at 215 (citing
Other courts have chosen to utilize the Harrington factors in the application of a balancing test, where in “the exercise of discretion, the trial court must balance the probative value of the mug shots against their prejudicial impact on the defendant.” Arca, 523 A.2d at 1065 (quoting Straughn v. Maryland, 297 Md. 329, 465 A.2d 1166, 1169 (1983) (citing United States v. Johnson, 623 F.2d 339 (4th Cir.1980), cert. denied, 449 U.S. 957, 101 S.Ct. 366, 66 L.Ed.2d 222 (1980); Connecticut v. Woods, 171 Conn. 610, 370 A.2d 1080 (1976); Illinois v. Jones, 34 Ill. App.3d 103, 339 N.E.2d 485 (1975), cert. denied, 426 U.S. 953, 96 S.Ct. 3179, 49 L.Ed.2d 1192 (1976); North Carolina v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970))). See also United States v. Oliver, 626 F.2d 254 (2d Cir.1980); United States v. Johnson, 623 F.2d 339 (4th Cir.1980), cert. denied, 449 U.S. 957, 101 S.Ct. 366, 66 L.Ed.2d 222 (1980). A “critical element” in this balancing test is the state‘s need for the photographs. “[W]ere they merely cumulative to other unim-
The photographs of Steele were not relevant to any issue that the jury was asked to decide. Steele‘s identity, whether he had tattoos, and whether he is a Native American were not issues for the jury. Since there was no probative value whatsoever to these photographs, the prejudice caused to Steele cannot be “outweighed,” and it was error for the trial court to allow these photographs into evidence.
4. Jury Instruction on Credibility of Alleged Victim
The trial court gave the following jury instruction offered by the State, over the objections of the Defense:
In order for the Defendant to be convicted of the offense charged in the indictment, it is not necessary that the testimony of the victim be corroborated by other witnesses. It is sufficient if you find her testimony credible beyond a reasonable doubt.
During settling of the jury instructions, the Defense asked if this was a “stock” instruction. The State replied that it was not, but that it was from the case of State v. Willis, and the trial court indicated that it had checked the citation. It was the Defense position that this instruction was misleading, placed too much weight on the testimony of A.S., and was unnecessary since there was already a jury instruction regarding the credibility of the witnesses.
Authority for this jury instruction cannot be located in either Willis case. See Willis I, 370 N.W.2d at 193; Willis II, 396 N.W.2d at 152.
In regard to the present case, we have stated that “as a general rule, it is not essential to a sexual offense conviction that the testimony of the victim be corroborated by other evidence.” State v. Blalack, 434 N.W.2d 55, 59 (S.D.1988) (citing State v. Grey Owl, 316 N.W.2d 801, 804 (S.D.1982)). Based on these prior holdings, the language contained in the first sentence of the instruction is appropriate. No authority is located to support the second sentence of the instruction, which is not even clear or complete on its face—sufficient for what? Therefore, the language of the second sentence of the instruction should properly be deleted.
5. Testimony Regarding Steele‘s Place of Employment
The trial court denied Steele‘s motion in limine asking that no testimony regarding his place of employment be allowed. Steele (and his wife) were both employed at Studio One, an adult theater and bookstore. Steele argues that any probative value of such testimony was outweighed by the prejudicial effect it could have on the jury. State opposed the motion, arguing that Steele‘s place of employment was part of the scheme of events leading up to the rape, which events the State planned to introduce as prior bad acts evidence. Further, Steele had told a police officer that he had seen A.S. in Studio One on some prior occasion. A.S. denied that she had ever been inside Studio One, and the State wished to use that for impeachment purposes.
State argues that Studio One was a “geographical center around which the events of that night revolved,” and that Studio One was “the base of the Defendant‘s operations that night” and “an essential link in the chain.” These arguments appear ludicrous. Steele and A.S. met at a convenience store that night, and left together from that loca-
The State places much reliance on the “vehemence” of A.S.‘s denial that she had ever been in Studio One. Although a clerk did not recall seeing A.S. in the store, she also testified that “many times” she had to ask people under eighteen to leave the store, especially around tournament time, and that she was not on duty twenty-four hours a day. Even if there were any relevance to mention of Steele‘s place of employment, the prejudicial effect of the evidence outweighs its probative value. See, e.g., Woodfork, 454 N.W.2d at 335 (citations omitted). In a rape prosecution, the fact that Steele worked at an adult bookstore and theater, even as a janitor, could have a highly prejudicial effect on the jury‘s perception that such a person would be more likely to commit a rape.
SABERS, J., concurs in part; concurs specially in part.
MILLER, C.J., and HENDERSON and AMUNDSON, JJ., concur in part and dissent in part.
SABERS, Justice (concurring in part; concurring specially in part).
I concur on Issues 1, 2, and 4, but I believe some of the evidence under Issues 2, 3, and 5 would be admissible on remand, if properly presented.
MILLER, Chief Justice (concurring in part and dissenting in part).
But for the appallingly lax procedure under which Steele was bonded out of jail after his second arrest, the tragic events of January 4, 1992, would probably never have occurred.
Steele was arrested shortly after 1:00 a.m. when a co-worker at Studio One, his place of employment, called the police and reported he was creating a disturbance. After being led outside by a customer, Steele returned and threatened to rape the co-worker. He went back outside, was seen urinating on a parked vehicle and was arrested for public indecency. He was booked into jail at 1:27 a.m. and, after posting a $50.00 bond, was released at 1:45 a.m.
Within twenty minutes, Steele had returned to Studio One. He continued his disturbance and made various threats, among them a threat to kill the co-worker. The police were called again. Steele was arrested, this time charged with disorderly conduct and, again, booked into jail at 2:26 a.m. In less than thirty minutes, despite the potential danger to the public, he was released after posting a $75.00 bond. Steele left the jail and walked across the street to a 7-Eleven where he encountered A.S.
The South Dakota Constitution provides that bail will be available for criminal offenses under most circumstances:
All persons shall be bailable by sufficient sureties, except for capital offenses when proof is evident or presumption great. The privilege of the writ of habeas corpus shall not be suspended unless, when in case of rebellion or invasion, the public safety may require it.
A South Dakota statute sets forth the factors a judge must examine when determining the conditions of bail.
In determining which conditions of release will reasonably assure appearance, a committing magistrate or court shall, on the basis of available information, take into account the nature and circumstances of the offense charged, the weight of the evidence against the defendant, the defendant‘s family ties, employment, financial resources, character and mental condition, the length of his residence in the communi-
ty, his record of convictions, his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings, and the risk that he will flee or pose a danger to any person or to the community. (Emphasis added).
The law requires that before bail is established, the factors set forth in
South Dakota law allows designated persons to accept written appearances and bond.
The presiding judge in each judicial circuit, to be appointed by the chief justice, subject to the rules of the Supreme Court, shall have administrative supervision and authority over the operation of the circuit courts, the courts of limited jurisdiction, and clerks and other court personnel in the circuit. These powers and duties include, but are not limited to, the following:
* * * * * *
(8) Promulgating a schedule of offenses for which magistrates or other designated persons may accept written appearances, waivers of trial and pleas of guilty, and establishing a schedule of fines and bails therefor[.]
While “other designated persons” may accept written appearances and bond as provided in a fine and bond schedule, that bond must be set in accord with the law.
The issue of whether the factors expressed in
Motion for New Trial Based on Newly Discovered Evidence Jury Instruction on Credibility of the Alleged Victim
I concur in result on issue one, which grants a new trial based on the failure of the Minnehaha County State‘s Attorney‘s Office to disclose information under the Brady rule. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215, 218 (1963); Ashker v. Solem, 457 N.W.2d 473, 477 (S.D.1990). I also concur on issue four, the jury instruction on credibility of the alleged victim.
Prior Bad Act Evidence
I dissent on issue two as evidence of Steele‘s prior arrests on the evening of January 4, 1992, was admissible under both
After bonding out of jail, he immediately went back to Studio One and again threatened the co-worker, “if I ever get ahold of you, I will kill you, you backstabbing bitch.” This behavior continued and he was arrested, this time for disorderly conduct. The officer
Minutes afterward, improvidently bonded out of the Minnehaha County jail, Steele walked across the street to a 7-Eleven. His behavior at the convenience store so concerned the clerk that she wrote down a description of A.S. and the license plate number of the car when she saw Steele leave with the girl.1
This court has ruled that evidence concerning events directly before and leading up to a criminal act or a series of continuing acts which are helpful in understanding the main event are admissible as part of the res gestae or circumstances so closely connected as to be part of the happening. State v. Bonrud, 90 S.D. 185, 189-90, 240 N.W.2d 77, 79 (1976) (holding evidence of different crime committed against different victim minutes after crime charged was properly admitted as part of res gestae); State v. Burtts, 81 S.D. 150, 155-56, 132 N.W.2d 209, 211–12 (1964). “Evidence when a part of the res gestae was proper if it was related to and tended to prove the crime charged although it also proved or tended to prove the defendant guilty of another crime.” Burtts, 81 S.D. at 156, 132 N.W.2d at 212 (citing State v. Staley, 54 S.D. 552, 223 N.W. 943 (1929)).
The trial court cited Bonrud during the hearing on the admissibility of evidence. The court ruled that “the evidence of other acts [is] so closely related in time so as the whole situation may in actuality be considered as one continuous criminal enterprise.” Steele‘s arrests for public indecency and disorderly conduct occurred less than two hours before he got in the car with A.S. He had threatened to rape and kill a co-worker. He was described as intoxicated and belligerent. I am convinced there was more than sufficient evidence to support the trial court‘s ruling admitting the evidence as part of a series of continuing acts.
Additionally, the court ruled Steele‘s prior acts that evening were admissible under
Testimony Regarding Steele‘s Place of Employment
I also dissent to the majority‘s conclusion on issue five, the testimony regarding Steele‘s place of employment. Steele began his continuing series of acts in Studio One, the place where he received his paycheck before he started drinking. It was where he urinated in public and threatened to rape and kill a co-worker. It was the place he returned to when he got out of A.S.‘s car, the place police arrested him, and the place A.S. identified him.
Most importantly, when he was first questioned by police, Steele indicated he had seen A.S. in Studio One on prior occasions, an accusation she vehemently denied at trial. This fact alone is extremely relevant to the credibility of both A.S. and Steele. Contrary to the majority‘s assertion that “his place of employment had no relationship to the events that occurred,” it was an integral part of the continuing events on the night of
The trial court did not exercise its discretion to an end or purpose not justified by, and clearly against, reason and evidence. State v. Woodfork, 454 N.W.2d 332, 335 (S.D.1990); State v. Bartlett, 411 N.W.2d 411, 414 (S.D.1987). The trial court did not abuse its discretion in admitting evidence of Steele‘s place of employment. Moreover, in his ruling admitting the evidence, the trial judge limited the prosecution‘s reference to Studio One; “I am not going to let you dwell upon that particular fact in any undue length.”2
Admissibility of Photographs of the Defendant Where Identity is Not a Jury Issue
I also dissent as to issue three concerning admission of the photographs showing Steele‘s tattoos. Contrary to the majority‘s assertion, the identification of Steele was an issue at trial. The prosecution was required to prove beyond a reasonable doubt that Steele was the person A.S. accused of rape. Although the defense had offered to stipulate to Steele‘s identity, the prosecution rejected the offer.3 State v. Huth, 334 N.W.2d 485, 489 (S.D.1983); State v. Krana, 272 N.W.2d 75, 79 (S.D.1978) (holding state is not required to accept defense stipulation if it wishes to present its case). It is a well-established general rule that the government is not bound by a defendant‘s offer to stipulate.
The reason for the rule is to permit a party “to present to the jury a picture of the events relied upon. To substitute for such a picture a naked admission might have the effect to rob the evidence of much of its fair and legitimate weight.” Parr v. United States, 255 F.2d 86, 88 (5th Cir.1958) (quoting Dunning v. Maine Central R.R. Co., 91 Me. 87, 39 A. 352, 356 (1897)), cert. denied, 358 U.S. 824, 79 S.Ct. 40, 3 L.Ed.2d 64 (1958); United States v. Spletzer, 535 F.2d 950, 955 (5th Cir.1976); People v. Nicholls, 42 Ill.2d 91, 245 N.E.2d 771, 776 (1969); State v. Gibb, 303 N.W.2d 673, 682 (Iowa 1981); State v. Saul, 434 N.W.2d 572, 575 (N.D.1989).
Further, despite the majority‘s citation to a federal balancing test, the law in South Dakota is that relevant photographs are admissible when they accurately portray anything which it is competent for a witness to describe in his or her own words. State v. Menard, 424 N.W.2d 382, 383 (S.D.1988) (admitting photograph of defendant spotted with red substance not abuse of discretion when witness so described him); Huth, 334 N.W.2d at 489; State v. Rash, 294 N.W.2d 416, 418 (S.D.1980). “Even though photographs are somewhat gruesome, cumulative, or capable of arousing passion or prejudice in the jury, the admissibility of the photos is within the sound discretion of the trial court.” Huth, 334 N.W.2d at 489.
Courts have repeatedly admitted photographs where a witness testifies concerning an assailant‘s appearance. United States v. Weeks, 919 F.2d 248, 253 (5th Cir.1990) (holding photograph was properly admitted to show defendant did have the tattoos witness described) cert. denied, 499 U.S. 954, 111 S.Ct. 1430, 113 L.Ed.2d 481 (1991); State v. Cowans, 503 So.2d 772, 774 (La.App.1987) (holding photographs depicting defendant‘s tattoos and deep tan were properly admitted as corresponding to witnesses’ descriptions); State v. Lane, 791 S.W.2d 947, 953 (Mo.App. 1990) (finding photographs depicting defendant‘s scars and tattoos were properly admitted to corroborate victims’ testimony); Peo-ple v. Baez, 131 A.D.2d 687, 516 N.Y.S.2d 764, 765 (N.Y.App.1987) (holding photograph was admissible to show defendant‘s appearance at time of the robbery).
A.S. described her assailant as having an unidentifiable tattoo on one arm, two tattoos on his chest and “from what I could tell they were swords.” The photographs of Steele show two feathers tattooed on his upper chest and a tattoo on the upper part of each arm. Moreover, the pictures do not show any insignia, police notations, or other indication of being mug shots as in United States v. Harrington, 490 F.2d 487, 494 (2nd Cir.1973), the case relied on by the majority. In my opinion, the trial court did not abuse its discretion in admitting the photographs.
In summary, I concur in result in granting a new trial based on newly discovered evidence, concur the language in the jury instruction on credibility of the alleged victim should be deleted, and dissent as to the continuing and prior bad act evidence, the admissibility of Steele‘s place of employment and the admissibility of the photographs.
I strongly advise the authorities in Minnehaha County, and any other county where bonding procedures have become mere routine, to examine their policies to insure compliance with the law.
HENDERSON, Justice (concurring in part, dissenting in part).
I generally concur in the entirety of this opinion with the exception of the treatment of Issue II. I would agree with the discourse on Issue II were it not for the exception to the general rule that criminal conduct is admissible where the evidence is connected with or leads up to the offense for which the accused is being tried. Chief Justice Miller refers to the res gestae cases in South Dakota, viz, Bonrud and Burtts.
It is my opinion that evidence of acts constituting continuous offenses or criminal action is admissible under
Undoubtedly, the evidence placed Steele at the 7-Eleven at the time he encountered the alleged victim; it also helped to explain how he was able to convince her to let him ride in her car. It is noted Steele himself utilized his prior conduct and his two arrests as part of his defense. Steele testified that because of these arrests the police officers knew he had been drinking and he felt they were “out to get him.” See Jury Transcript at 283. Thus, he did not want to drive his car and he went to the 7-Eleven to try to find a ride. Jury Transcript at 238. Steele also testified that he told the 7-Eleven clerk about his arrests, and more importantly, he told alleged victim when explaining his need for a ride. Jury Transcript at 243. Therefore, under Steele‘s own theory, the fact that the alleged victim gave him a ride, knowing of his earlier arrests, helped to show that she was a much more willing participant that morning than she testified. Thereby, because of the foregoing defense, evidence of Steele‘s prior conduct was totally relevant.
AMUNDSON, Justice (concurring in part and dissenting in part).
The majority writer is absolutely correct in stating that the evidence regarding chlamydia should have been disclosed to the defense under the Brady rule. The trial court at its post-trial hearing also agreed that it should have been. After it is discovered that Brady evidence has been suppressed, a trial court has to determine whether or not the undisclosed evidence was material to the conviction. United States v. Kelley, 790 F.2d 130 (D.C.Cir.1986).
That is exactly what the trial court did in this case when it stated in its post-trial written opinion: “The question then becomes: What bearing does where the victim contracted chlamydia have upon any issues to be presented to the jury? And the answer is very simply none.” I fully agree with this conclusion reached by the trial court. In this case, there was no testimony during trial by the victim charging this defendant with infecting her with this sexually transmitted disease. If, in fact, the prosecution had played upon this type of testimony to gain favor with the jury, I would certainly look at this case from a different perspective.
This court has rejected any distinction between impeachment evidence and exculpatory evidence. In Giglio v. U.S., [405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)], the Government failed to disclose impeachment evidence similar to the evidence at issue in the present case, that is, a promise made to the key Government witness that he would not be prosecuted if he testified for the Government. The Court said:
When the ‘reliability of a given witness may be determinative of guilt or innocence,’ non-disclosure of evidence affecting credibility falls within th[e] general rule [of Brady]. We do not, however, automatically require a new trial whenever “a combing of the prosecutors’ files after the trial has disclosed evidence possibly useful to the defense but not likely to change the verdict....” A finding of materiality of the evidence is required under Brady.... A new trial is required if “the false testimony could ... in any reasonable likelihood have affected the judgment of the jury....”
United States v. Bagley, 473 U.S. 667, 676-77, 105 S.Ct. 3375, 3380-81, 87 L.Ed.2d 481, 490 (1985) (citing Giglio v. United States, 405 U.S. at 154, 92 S.Ct. at 766, 31 L.Ed.2d at 108) (citations omitted).
By the holding on this issue, this court is automatically reversing based on the prosecution‘s failure to comply with the court‘s prior decision. This reaction totally disregards the fact that the issue of materiality is fact bound and the trial court found that where the victim encountered this sexually transmitted disease was factually immaterial to the rape prosecution. When a defendant testifies that he had sex with the victim, but it was with her consent, the only issue to be decided is “was there consent or was there not consent.” A statement made to the press after the trial, which was obviously not under oath, should never amount to reversible error. Therefore, I dissent on this issue.
I totally concur with the majority position on the bad acts evidence. This court in State v. Chapin, 460 N.W.2d 420 (S.D.1990), sent a message to the practicing bar that this type of evidence should not be admitted based upon a “shotgun” or “smorgasbord” approach. After Chapin, this court veered off course in State v. Werner, 482 N.W.2d 286 (S.D.1992) (Justices Sabers and Amundson dissenting) and State v. Christopherson, 482 N.W.2d 298 (S.D.1992) (Justices Sabers and Amundson dissenting). With this holding, the court is back on course in requiring guilt or innocence to be determined by evidence relevant to only this particular charge and not by simply showing that the defendant had engaged in other bad acts, thus painting him as a bad person.
Further, I concur with that portion of Chief Justice Miller‘s dissent in part dealing with the admission of the photographs and the balance of the majority opinion.