State v. Wright

MILLER, Justice, Chief SABERS, AMUNDSON, KONENKAMP GILBERTSON, Justices, participating. SD Dakota,

STATE South Plaintiff Appellee, WRIGHT, E.

Melvin Defendant Appellant. 20364.

No.

Supreme Court of South Dakota.

Considered on Dec. Briefs 1998.

Reassigned Jan. April

Decided Barnett, General, Attorney

Mark Michele General, Bennett, Attorney K. Assistant Pierre, Dakota, plaintiff appel- South for and lee. Rensch, City, Rapid South Da-

Timothy J. kota, appellant. for and defendant (on KONENKAMP, reassignment). Justice responsible Believing his [¶ 1.] son was home, punched the a fire in their defendant stomach, in banged against his head child wall, his whipped and kicked him. In then abuse, asserted that trial for child defendant justified appropriate as these actions were discipline response in to the child’s parental prosecution dangerous misbehavior. proof of two similar was to offer allowed administered punishments defendant earlier relatively minor infrac- his children justification, was the defense tions. When for the trial court admit was error culpabili- abuse to show criminal acts of or a ty negate an inference of accident and to justification? of Because claim state highly relevant to the defendant’s was mind, not probative value was and its prejudicial substantially outweighed its affirm impact, uphold its admission. We we on all issues.

Facts Wright in Melvin lived [¶ 2.] Defendant son, Dakota, with his Rapid City, South fourteen, L.W., E.W., age daughter, age January Saturday night, eleven. On in- earlier to his father’s disobedient structions, lit in his E.W. candles basement to find his At a.m. he awoke 3:30 bedroom. player his record room with smoke and filled shirt. put the fire with his in flames. He out fire was never conclu- The exact cause determined, sively aggravated E.W. could not recall manner which does constitute certainty assault, if he snuffed the can- guilty felony.” had out of a Class He falling asleep. dles No one claimed before was also as a habitual offender un- intentionally fire, though. started der SDCL 22-7-7. out, After was the fire E.W. went sought 6.] The State to introduce six awoke, upstairs to his sister’s room. She alleged earlier instances abuse under Edwards, family Dena a friend of the who (Rule 404(b)). Following SDCL bedroom, in sleeping also awoke. L.W.’s hearing, the trial court to admit decided two upstairs portion Smoke had risen into the incident, involving of the six acts. The first yelled Wright, house. Edwards who L.W., years nine occurred earlier when she room, sleeping living on the couch years was two old. her ten struck house fire. been was on E.W. had twenty times on the back and buttocks for tell Wright quickly afraid to his father. result, spilling baby powder. As a she was extinguished found now fire the source severely bruised her across back down son, Confronting bedroom. his E.W.’s legs. back her She also had a bruise Wright began ‘Why yelling, you didn’t tell notably, on her forehead. But most she had pushed me?” He onto a E.W. couch ears, purple” bruising “dark inside both punched him the stomach with a closed well bruises on and behind her ears. For Then, ears, grabbing Wright fist. him the beating, Wright pleaded guilty to child banged against back the of his head the wall abuse. times, approximately “Why yelling five still episode 7.] The [¶ second involved E.W. Next, you up didn’t tell me?” told to clean February Wright in and occurred ar- mess, up pick the bent to E.W. down the Boys pick up. rived Club to him player. Wright melted remains of the record up late, Wright When E.W. showed back- grabbed lamp whipped a and back E.W.’s Crying handed him the face. across with a times, drawing four its cord or five bloody nose, went E.W. into the Club Girls him, blood. whipping Wright kicked While get injuries. L.W. Workers asked his about right him eye in the with his bare foot. he happened, they When told them what Monday, [¶ 4.] On after E.W his finished police. called The trial court found these class, following physical shower education present two occurrences relevant to the injuries. two teachers noticed his When charge probative and concluded that their them, boy neigh- asked about blamed the substantially outweighed by value was not dog. Skeptical, bor’s the teachers notified danger prejudice. Nonetheless, of unfair the principal, Deputy who in turn contacted the court refused to allow the intro- Ebach, Maryann the school liaison officer. Wright’s pic- duce child abuse conviction or beating. her E.W. told about the fire and the injuries. tures L.W.’s Department She notified the of Social Ser- Cory Brubakken, vices protection trial, and a child At [¶ 8.] defense a counsel asserted worker, came to interview E.W. Ebach and single justification.1 empha- defense: While questioned then Brubakken L.W. at her fire, sizing culpability E.W.’s for the the de- school. injuries pain, fense minimized his and and claimed he being lied about kicked and children, speaking [¶ 5.] After with both Nonetheless, punched. neither counsel de- Wright’s Ebach went and Brubakken punishment deliberately nied was im- fire, told home. He them after about but posed injuries contended that E.W.’s .nor learning they investigating were his accidentally. opening- were inflicted In her injuries, son’s he declined to with them talk statement, public she ongoing referred to an attorney. further without an Ebach arrested appropriate discipline debate about child in him protec- and the children were taken into quoted biblically extreme cases and custody. Wright tive with felo- ny injunction, in “spare spoil child abuse violation of based the rod SDCL 26-10-1: and abuses, “Any tortures, person exposes, who child.” The trial court instructed torments, cruelly punishes or a minor that the other act evidence be used to Appellate attorney counsel was not defendant’s at trial. when no intent, prejudicial error there was relevant “motive, of mistake or absence show scheme, intent, accident, identity identity, knowledge, common issue of modus (2) charged.” person operandi.” “Whether the reference to Wright’s refusal to talk to author- Melvin trial, and During the both Ebach objected in a which was to and resulted ities declined testified that Brubakken (3) error.” motion mistrial reversible they them after broached further with talk give or not-the court’s refusal to injuries. Wright ob- “Whether subject of E.W.’s testimony violated a mo- claiming proposed jury instruction jected, consti- defendant’s (4) on his precluding comment in limine tion error.” tutes reversible “Whether attorney. right have an invocation of his juror’s dictionary ‘mal- use of a definition of The court denied a mistrial. He demanded have resulted in a new trial.” treat’ should testimony did not finding that the motion merit for three lacks sufficient discus- Issue limine the motion violate one, We will discuss issues two and sion. men- the witnesses never prejudicial because four. attorney. an Wright’s remark about tioned of Review Standard felony Wright guilty of child found [¶ We review trial court’s de pleaded guilty to the later abuse to admit other acts evidence under cision charge. He was sentenced habitual offender of discretion State v. years penitentiary. in the abuse standard. fifteen Lof ¶ tus, 94, 21, trial, inter- the defense 10.] After Ondricek, (citing had jurors learned that note viewed (S.D.1995)). applies The same standard judge before final recess sent to the been reviewing jury in proposed a refusal of The note day of deliberations. on the first Star, Eagle SD structions. State dictionary aspirin. It was asked omitted). ¶ (citation bailiff, delivered to given to the never morning following ruling for mistri judge. On the “A trial court’s a motion counsel, and reached a verdict continued deliberations al, based on misconduct of will only juror happened, by one noon. As a abuse of disturbed absent clear discre be dictionary. sought to learn She ¶ wanted 6, Buntrock, 84, v. 1996 SD tion.” Robbins in- used in the of “maltreat” the definition omitted). (citations 422, 425 N.W.2d 550 defining During the ov- “abuse.”2 struction clearly ap Lastly, the erroneous standard break, juror up word ernight looked reviewing a trial factual plies “when court’s dictionary; the definition was consis- in her regarding juror misconduct.” determination by jurors. given with the one her other tent ¶ 12, Class, 55, v. 1998 SD N.W.2d Jones juror telling that he one She remembered (citations omitted). 154, 159 right about definition. juror alleging miscon- for a new trial moved Analysis and Decision hearing, of At eleven the twelve duct. a A. of Other Incidents Admission that jurors The trial court found testified. occurred, juror had but declined misconduct opportunity take [¶ We 13.] trial it found that the grant a new because principles applicable to other reexamine not influenced the verdict. misconduct had (Rule 404(b)). § under act evidence “[generally, past, that In the we stressed fol- appeal, Wright On asserts (1) of or acts other than evidence crimes lowing the admission of issues: “Whether charged are during which the defendant is case-in-ehief was ones with prior bad acts 7: Instruction No. No. 6: Instruction physical "Tor- "Abuse” maltreatment. means of as The of the offense child abuse elements suffering or to to cause Information, ture” means intense each of in the which by inflicting excruciating doubt, punish coerce beyond prove a reasonable state must pain. means to cause severe "Torment” are: unusually persistent or recurrent distress place alleged at the time and 1. That tortured, "Cruelly punish” abused, body means to or mind. Information the defendant [E.W.]; way intentionally punish inflict cruelly in such as to punished tormented suffering physical with reckless indifference time at the under [E.W.] 2. That pain. age eighteen years. inadmissible, added) (cita- exception applies.” ry (emphasis an unless Committee’s Note ¶ 17, omitted). 94, Huddleston, Loftus, at 1997 SD 566 N.W.2d 828 tion See also 485 U.S. ¶ Moeller, 60, 12, (citing 686-87, gen- at See S.Ct. 1499-1500. (citations 465, omitted)); see Christopher also erally B. Mueller Laird & C. 19-12-5; Thomas, Kirkpatrick, SDCL Modern Evidence: Doctrine and (S.D.1986). 232, view, (1995).4 4.20, This § Practice exclusionary, per- is the rule to have seems possible [¶ 14.] Because the uses adoption despite sisted Federal limitless, act other evidence are Rule Nevertheless, Rules of in 1978.3 Evidence 404(b) only suggests a list of nonexclusive though prohibition against character evi- character, purposes, other than for which 404(b) strong ever, § dence as remains as is they may be admissible: not a rule of exclusion. It is rule of crimes, wrongs, Evidence of other or acts showing “preliminary inclusion—no is neces prove is not admissible to the character of sary such before evidence be introduced person in order to show that he acted in proper purpose.” for a Huddleston Unit conformity however, may, therewith. States, 681, 687-88, ed 108 S.Ct. U.S. purposes, admissible such as (1988); 99 L.Ed.2d 771 contra motive, intent, proof opportunity, prepa- (S.D. Titus, State v. 579-80 ration, plan, knowledge, identity, or ab- 1988). South Dakota’s Professor Larson ex sence mistake or accident. plains: “It must be remembered that FRE (Rule 404(b)). SDCL 19-12-5 un- 404(b) Relevance inclusionary an is rule indicated 404(b) § der “only is established if the Advisory Note, Committee’s not an ex reasonably can conclude that the act oc- Larson, clusionary rule.” John W. South curred and that the 404.2(1) (1991). defendant was the ac- § Dakota Evidence “The Huddleston, tor.” U.S. at S.Ct. rule only establishes that such evidence is in Furthermore, at 1501. prove if relevance of admissible offered character.” Id. 404(b) added). § (emphasis Advisory is determined lower As Commit cautioned, proof required standard of than that anticipated tee “it for a 1501; respect permissible evidence, conviction. Id. at uses of S.Ct. at see such (Rule 104(b)). judge may the trial SDCL 19-9-8 proponent exclude [similar acts] showing on the basis of those has the considerations set burden the relevance of i.e., confusion, crimes, prejudice, wrongs, forth in Rule the other or acts. See 404(b) (Rule 401); or waste of time.” FedREvid Adviso- SDCL 19-12-1 19-12-2 SDCL omitted). 2.31, Perhaps (footnotes partially § the confusion comes from the Id. at 164 gen- § title to 19-12-5: "Evidence of other acts However, erally Exceptions.” (Rule 403) ti- (Rule § 4. SDCL 19-12-3 and 19-12-5 inadmissible— part any tles of "constitute no statute.” SDCL 404(b)) adopted were verbatim from the Federal noted, though, 2-14-9. should be that at least Although interpreta Rules of Evidence. federal authority having one lists South Dakota as tradi- us, binding tions of these rules are not it on is " tionally “inclusionary” approach taken the even helpful to 'turn to the federal court decisions adopted. before the federal evidence rules were guidance application interpreta for in their and Imwinkelried, Uncharged See Edward J. Miscon- ” Geib,Elston, Ass’n, v. tion.' Sander 'l Frost Prof 2.28, (Rev. 1998) § duct Evidence (citation omitted). ed. 107, (S.D.1993) (quoting 506 N.W.2d 122-23 adoption The the Federal Co., 207, Ry. Wilson v. Great N. 83 S.D. 157 Rules should have removed all For doubt. some 19, (1968); Myers, N.W.2d 21 Brasel v. 89 S.D. jurisdictions, it did not. 114, 569, (S.D.1975)). 229 N.W.2d 570 hermo Furt 404(b) construing Most courts Rule have re, with reference Federal Rules of Civil reached correct conclusion that rule Hernandez, we Procedure wrote in Miller v. 520 incorporates inclusionary approach. 266, (S.D.1994), N.W.2d 269 that these rules These courts have declared the rule is "have become similar to uniform law.” SDCL designed "one of inclusion” to serve as a 2-14-13 that a be states uniform law is to inter "broad avenue” for the admission of the defen- preted general and construed "as to its effectuate uncharged dant's misconduct. marvel is purpose make uniform law of those states shortly that Rules, after the enactment of Federal courts, which enact it.” We including think same said number Evidence, Appeal Eighth of the Courts of for the and Federal Rules of at least with Sixth Circuits, 404(b) occasionally respect adopted treated Rule as if to those rules verbatim. exclusionary embodied view.

799 (5th 404(b)). (Rule denied, Cir.1982), (Rule If 671 F.2d 1379 cert. 402); SDCL 825, denied, 57, is offering the evidence 74 459 U.S. 103 S.Ct. reason (1982). then it is propensity, a defendant’s show L.Ed.2d 61 To exclude relevant evi country it is a “In this clearly irrelevant. might dence because it also raise forbid per principle that fundamental settled ignores reality den inference character tried for with crimes must be sons any act simulta “[a]lmost bad evidence did, they they allegedly not for who what besmirching neously character condemns ¶60, Moeller, 6, 548 N.W.2d are.” ‘motive, by showing or more of one omitted). (citation Once the evidence 468 at intent, plan, opportunity, preparation, knowl however, relevant, tips the balance found is identity, edge, mistake acci absence of unless the in favor admission emphatically dent,’ purposes’ not mention ‘other “substantially” 403 dangers out Rule set list meant illustrative.” which this to be Imwinkelried, su outweigh probative value. 1273, 1279 Beasley, v. F.2d United States 809 8.28, 3, § 118-19. Before pra note at (7th Cir.1987) original). (emphasis in Rule relating acts facts to other may consider permit judges 403 will not to exclude testimo present to the of an issue relevant proof McDonald, ny plain disbelief. offense, the defen must conclude at 246. prepon acts committed other dant Huddleston, 485 the evidence. derance of Damage [¶ to the defendant’s 689, 108 at 1501. also State S.Ct. See U.S. exclusion; position is no the harm basis (S.D.1993) 243, McDonald, 500 N.W.2d v. prejudice, must “un come from from standard) (declining convincing” “clear and Holland, prejudice. fair” State v. 89, Sieler, (citing 93-94 v. 302, (S.D.1984); United States (S.D.1986)). (1st Munoz, Cir.1994), 36 F.3d injury are cases of 15.] Child Martinez v. cert. denied sub nom. United deciding emotion-charged. In whether ten States, 1164, 130 513 U.S. 115 S.Ct. instances of abuse admit relevant other (1995). truth, In “‘[u]nless L.Ed.2d 404(b), cautiously § judges trial should under scenarios, on trials are to be conducted against prejudicial probative balance value ..., unreal facts tailored sanitized (Rule 403) Nonetheless, § 19-12-3 effect.5 application of Rule 403 must be cautious ” in the admission of evidence ab “favors the Rivera, 83 F.3d sparing.’ United States strong con sence considerations (1st Cir.1996) (quoting United States (1998 Larson, supra, § Cumu trary.” 403.1 (5th Cir.1979), McRae, F.2d juries hear As all Supplement). lative should 128, 62 cert. 444 U.S. 100 S.Ct. denied evidence, sparingly in judges must relevant (1979)). striking as L.Ed.2d 83 “The most to exclude evidence under voke discretion 404(b) .... is its inclusive pect [Rule ] Betancourt, rule. United States v. See exclusionary than nature: should rather (11th (Rule Cir.1984) F.2d 403 is way prove it is relevant “extraordinary remedy be used which should admissible, subject rarely only to invoked only sparingly permits trial court since it v. States limitations of Rule 403.” United concededly probative evidence” to exclude (1st Cir.1984). 813, Zeuli, “The F.2d 816 725 “in relevant evidence is and criminal trials objecting party to the admission evidence denied, prejudicial”), reh’g 740 inherently establishing that the trial has the burden of (11th Cir.1984), cert. denied F.2d 979 and expressed [Rule 403] in substantial concerns States, 469 sub nom. Gerwitz v. United U.S. Larson, ly outweigh probative su value.” (1984); 1021, 440, L.Ed.2d 365 105 S.Ct. 83 Hofmeyer, A § Jane C. pra, 403.1. See also (2d 638, Jamil, 642 v. 707 F.2d United States b0b(b) Rule Relaxed Standard Cir.1983) (trial judge special must take care of Proof for Huddleston, 6 States v. United Evidence: sparingly); v. to use Rule 403 United States (1989). (5th Cir.1982) summary, In under Thevis, 616, Cooley L.Rev. 79 F.2d 633-34 404(b) (Rule may ad- “extraordinary remedy”), § not be reh’g other act evidence is necessarily, according monly, though an not emotional prejudice/' to the Federal 5. “Unfair Advisory Committee, tendency Advisory an one.” FedREvid 403 Committee’s "means undue basis, suggest improper Note. decision an com- to on purpose if prove its sole to an were mitted is establish dren not relevant to modus a con- event, inference from bad character to criminal operandi. any In operandi modus evi duct. is when similar in admissible nature identity requires dence used to establish a issue, a not and relevant to material high degree similarity. But close similari substantially outweighed prejudicial by its ty required plan not is of common or scheme degree similarity impact. required The evidence, prove identity. if it is not to used depend act will other evidence on clear, Supreme As the Court California made purpose for which is offered. With these uncharged “Unlike evidence of acts used to principles, challenged we now examine the prove identity, plan not need be unusual evidence. distinctive; only support or it need exist to employed the inference that the defendant The trial court admitted plan theories, committing charged multiple offense.” two earlier incidents under Ewoldt, v. People of which not But Cal.4th 27 Cal. some were valid. under standard, (en 646, 659, (1994) if act Rptr.2d abuse discretion other 867 P.2d any purpose banc) (decided is evidence admissible equivalent under California’s “ character, simply than then its use is 404(b)). sustaina § plan, design to or ‘[C]ommon 105) (Rule (evidence ble.6 SDCL 19-9-12 plan, larger continuing scheme’ refers to a purpose be inadmissible for one conspiracy present scheme or of which the another). prohibit admissible for All that is charged crime at trial part....” is a 404(b) § under ed is that similar act evidence Ondricek, (quoting Cham “solely prove not be to admitted character.” 842); pagne, 422 N.W.2d at see also Huddleston, 485 U.S. at 108 S.Ct. at White, (S.D.1995) 243-44 Here, the evidence relevant (even occurring charged acts after the event prove plan design, or and absence of mistake 404(b) plan). § are admissible under to show Ondricek, explained or accident. In we (Rule 404(b)), § under the admissi [¶ 19.] The two other here acts bility depends of other acts a evidence were admissible establish that the defen (1) two-step analysis: Whether the evidence plan or design dant had a to inflict excessive character, is relevant to an issue other than punishment ferocity in similar a manner and (2) probative whether “the value regardless transgressions. of his children’s substantially outweighed is evidence its required All that is plan show common prejudicial 873; effect.” N.W.2d at see uncharged that the events “have (Rule 403). SDCL 19-12-3 points in sufficient common.” United States Elizondo, (7th F.2d Cir. “plan” term encom 1990) (citations omitted). The evidence passes plan, design “both ‘common or merely similarity ‘not “must demonstrate operandi’ scheme’- and ‘modus situations.” results, but such a concurrence Champagne, of common (S.D.1988). thus, Identity issue; naturally features that the various acts are not against explained general the two other abusive chil- acts be caused plan encourage explain limiting 6. We avoid trial courts to the "blun- Trial courts should in their in- exactly permissible approach, declaring impermis- structions derbuss” ad- motive, sible uses of the other act ple, exam- evidence. For prove including missible to issue respect plan design court intent, identity, mistake, plan, absence of evidence, might instruct as follows: This if be- theory independently applying without each lieved, may prove used to defendant is a course, single the facts. Of instance of person of bad character has a or that defendant may misconduct be admissible on several theo- disposition may to commit crime. be consid- Yet, may distinguish "[i]t ries. be to critical purpose determining ered for the of if it limited theories; between the test for relevance varies plan, design tends show a characteristic or proponent's theory, the with and some theories scheme that would further tend show a clear stringent requirements have much more than connection between the other acts and one the However, uncharged others. an act of miscon- the is so which defendant accused that it conceivably requirements duct can meet all inferred that if defendant committed the independent for several theories of relevance.” acts, also defendant committed the crime Imwinkelried, 3.01, (foot- supra § note charged structions, Jury in this case. See California In- omitted). process. and violative of due was irrelevant This about stances. makes information prose- ignores ruling the fact that This discipline of his children on other occasions 802 ary prove probative

ration must all the elements of a acts can be the most evi- beyond criminal offense reasonable disciplinary dence of whether or her his prosecution’s [T]he doubt.... burden to corporal punishment imposed malicious- prove every element the crime is injure, ly, with an intent with or by a tactical relieved defendant’s decision appropriate to use correc- sincere desire an not to contest essential element of tive measures. offense.... The evidence of battered child at Id. have also Other courts concluded syndrome intent, was relevant to show prior instances of child abuse are admis nothing in the Due Clause of the Process negate an sible inference that the current requires Fourteenth Amendment the State injuries resulted from an isolated incident. introducing evi- to refrain from relevant State, 1308, Aldridge v. 398 So.2d 1312 simply dence because the defense chooses (Miss.1981), State, reaff'd, rule v. Shelton 445 So.2d point. not to contest the (Miss.1984). 844, People Taggart, 848 v. See (citation omitted). Although specific intent is 1375, (Colo.1981) (prior P.2d 621 1384-85 abuse, felony not an element of child terms culpability abuse admissible show criminal abuse, torture, punish import cruelly like negate justification), claim of accident state. certain malicious mental On rejected grounds rule on other v. Peo James hand, argument other about decisions made (Colo.1986); 727 ple, P.2d 850 v. Mayberry frightening suggest tense situations State, (Fla.Dist.Ct.App.1982) 430 So.2d 908 consequences. actions taken with inadvertent (prior in trial abuse admissible for second- Certainly, [¶ 23.] the use of other degree abuse); murder and v. child State wrongs crimes and to show “absence of mis Morosin, 62, 194, Neb. 200 262 197 N.W.2d established, particu take or accident is well (1978). larly in child cases.” v. abuse United States contends the incident (10th Harris, 138, Cir.1981); 661 F.2d 142 Henson, daughter with his was too remote to be rele 63, v. People 33 N.Y.2d 349 steadfastly 657, adopt vant. have (App.1973). We refused to N.Y.S.2d 304 N.E.2d 358 parent corporal an pun “Where uses severe inflexible rule on remoteness. State v. ishment, (S.D.1983) way Wedemann, 112, often the to determine 339 N.W.2d 115 punishment (asserted whether the is a non-criminal act prior remoteness of acts “real will discipline unintentionally that was harsh istically nature”); depend upon their see On felony or whether it constitutes the of child dricek, (bad twenty 535 at N.W.2d 877 acts parent’s history abuse is to look at the remote); years Christopher earlier not too disciplining Taylor, the child.” v. State 347 son, (prior 482 at N.W.2d 302 molestation 363, 389, (Ct.App.1997). Md. 701 A.2d 396 occurring years seventeen too earlier not re cases, By comparison, in child sexual contact mote). prior purported As both instances we often held that bad are have other acts discipline occurred within the same familial showing intent, relevant for even when setting, question we believe the remoteness Ondricek, defendant denied contact. 535 goes weight more to the of the evidence than 875; Christopherson, N.W.2d v. State 482 admissibility. to its generally See State 298, (S.D.1992); 301-02 Roden, (S.D.1986). 380 N.W.2d 669 See Basker, 413, (S.D.1991); Hassett, 357, 955, State v. Idaho 859 P.2d Klein, 16, (S.D.1989); State v. 444 N.W.2d (Ct.App.1993); Hadley, United States v. 843; Champagne, 422 N.W.2d at (9th Cir.1990), 848, F.2d 851-52 cert. (S.D.1985). Means, 568-69 granted, 503 U.S. S.Ct. A admitting better reason for ex acts dismissed, L.Ed.2d and cert. 506 U.S. ists in child cases abuse than sexual con (1992). S.Ct. L.Ed.2d 324 tact it is cases because never claimed doubt, Without a [¶25.] inclusive ad- justified. sex Taylor, abuse was 701 A.2d at missibility of other act evidence should not policy protecting erode the elemental an speak

Victims of child abuse cannot often prejudice. accused from unfair safe- very Four themselves are reluctant testify unfavorably guards parent, about a an abide within the rules evidence to even Huddleston, parent. parent’s A disciplin- abusive problem. deal See First, respect guilt any the defendant’s of 691-92, 1502. other S.Ct. at U.S. at which the 404(b) be of- the offense with defendant is requires that the evidence § logically purpose, charged.” appeal, the burden falls on the a relevant On fered for Second, a not con- prejudicial to establish error.7 than character. defendant by Anderson, 46, ¶ 22, first a unless it finds other acts sider the 1996 SD that the de- 401; Fender, the evidence preponderance 395, of N.W.2d acts. (S.D.1984). fact those SDCL committed 248, Considering fendant the (Rule (Rule 104(b)); 19-12-2 SDCL scrutiny questions court’s careful trial 402). Third, court must determine the trial say prejudice, we it of relevance cannot of the other misconduct probative if the value admitting this its discretion in evi abused outweighed by potential substantially dence. must, Fourth, court prejudice. for unfair jury that the requested, explain to the when B. to Talk Authorities Refusal With may only be considered other act trial, Wright [¶ Before moved to 27.] it was admitted. purpose for which for the suppress “[t]he defendant’s all evidence 105). (Rule SDCL 19-9-12 attorney[.]” right have an invocation of his to Here, took several the trial court testimony, granted. motion In them His was protect the In sift- to defendant. measures both referred to Ebach and Brubakken offer evi- ing through prosecution’s Wright’s speak to with them after refusal dence, of the six court excluded four injur investigating learning they were E.W.’s sought to introduce. prior acts the State Wright’s remark ies.8 Neither mentioned remaining court incidents the the two With objected attorney. to Wright an about they for a were offered determined testimony grant the court to and moved they clearly proper, purpose, relevant The court denied motion find mistrial. were, respect to the at least with issues testimony ing that did not violate its and common of mistake or accident absence order. (Rule plan. § 19-12-3 Under scheme an in a violation of “For 403), specifically found that the court for a limine motion to serve as basis substantially out- probative value was trial, new and a later motion mistrial prejudice. weighed by potential unfair specific in prohibition, the order must its court the defendant Lastly, shielded Robbins, must be clear.” and a violation misuse of this evidence against possible ¶ 6, (citing ad- advising that was specifically Inc., Publications, Kjerstad Ravellette that it purposes, for limited mitted (S.D.1994)). when a Even tending show N.W.2d to could not be considered “as decision, Objection. [Wright’s and an- counsel]: Asked appellate of a review Rule “On discretion, a swered. must establish abuse defendant showing by a mere COURT: Overruled. standard that is not satisfied THE No, any pros- proof that to talk us fur- alternative means of A: he didn’t to some want rely to in its discretion chose not ecution broad ther. States, upon." you. nothing v. United 519 U.S. Okay. Old Q: I have further. Thank Chief n. 136 L.Ed.2d 183 n. 117 S.Ct. testified: Brubakken (1997). you thing Q: said Mr. What was first you Wright when arrived the door? Wright’s to talk with refusal Reference that was a social A: I advised Mr. I Services, end the State's direct came at the Ebach with Child Protection worker examination: with con- that we had received referral regarding [E.W.] cerns his son [Wright's] Q demeanor What [State] say you? Q: And what did he talking you about fire? he was when reporting who He to know A: wanted angry just upset and He' seemed [Ebach]: A time him I person was. At I told which the fire. about information, kept it’s share that could not response you Q: what his Did tell he said he had noth- law. So confidential ing respect to the fire? [E.W.] toward say to me now. A: No. you Q: conversation with Did have further right. you Q: All He never indicated Wright? Mr. [E.W.] had toward over reaction that he day. A: Not on weekend? (cid:127)804 occurs, only allusions,

violation will new trial the comments are “When indirect required party prejudiced if the violation intelligent test is whether a reasonable Kjerstad, fail' or subverted a trial. 517 jury point would understand the[m] to out omitted). (citation at (citation N.W.2d testify.” defendant’s failure to Id. omitted). prosecutor’s The here comments Wright’s speak 29] with [¶ refusal closing Wright’s arguments. rebutted No Ebach and Brubakken was made his before juror reasonable infer could these comments arrest, before his warn he received Miranda Wright’s to be a reference to silence as an impeachment ings, pur and was not used for guilt. Therefore, indication of his there was poses by explaining the State. While error. no arrest, Wright’s that events led to Ebach and that Wright Brubakken mentioned did C. Juror Misconduct being they not to talk after want told that investigating injuries. were See E.W.’s Lastly, 32.] [¶ defendant claims that Jones, 55, ¶ 34, 1998 SD 578 N.W.2d at 164 granted trial court should have a new trial (stating no in “there is the record juror juror on based misconduct because a sought bring that the State out this forbid dictionary during overnight consulted a subject, directly allusion, by den or break The deliberations. court held a pre-ar- [the brief reference to defendant’s] Wright’s hearing on motion for new trial. It detective”); through Phyle rest silence v. juror occurred, found that misconduct had (S.D.1992) Leapley, 491 N.W.2d Wright that prejudiced. but was not (stating “[t]he circuit court found ... that juror [¶ 33.] “Even if misconduct testimony the sheriffs did not touch on the inquiry, every occurs and warrants an [the fact that right defendant] invoked his irregular prejudicial of a conduct statement, refused to make ex rather Wilkins, warrants new trial.” State plained happened what when arrested (S.D.1995) (citations omitted). procedural irregu [him]. No constitutional ¶ Jones, 55, 16, also See 578 N.W.2d thereto”). larities attended (citations omitted). A pre rebuttable prevented [¶ 30.] The trial court’s order sumption prejudice juror arises when mis broaching Wright’s from State “invoca- Wilkins, conduct occurs. at 99. attorney[.]” right tion of his to an The court (1) presumption: The State can rebut testimony heard Ebach and Brubakk- “[b]y showing the information was harmless en. It jury. observed the effect on the (2) guilt”; “by view all the evidence of Wright’s mistrial, finding denied motion for a determining significant there possibil was no testimony that the did not violate its order ity prejudiced”; the defendant was prejudicial Wright. and was not ordi- We (3) “by showing that the nature of the extra- narily Robbins, rulings. defer to these record evidence could not have had or had ¶84, 6, SD 550 N.W.2d at has upon jury[.]” minimal effect at Id. 99- not shown the trial court abused its discre- (citations omitted). tion. The trial court found that the [¶ 31.] Defendant also claims State the presumption prejudice. rebutted indirectly argu closing State alluded in its jurors Eleven the twelve testified right ment to his exercise of his to remain hearing. Only juror one question had a silent.9 Prosecutors are forbidden “to call about the definition of “maltreat” and looked attention to the failure of defen Wilson, up testify.” dictionary during the word in a dant to the over State 297 N.W.2d (S.D.1980) Winckler, (citing night jury foreperson break. The testified Brown, (S.D.1977); dictionary State v. that he did not recall definition (S.D.1965)). being S.D. 132 N.W.2d 840 of “maltreat” with shared the other argued presented The its rebuttal today. defense that are them She's argument: closing here, counsel’s standing up Melvin saw Melvin this. thought you speculate. [defense She You counsel] said can this. don't know what he saw or No, you Okay. thought. can’t. You're here to listen to your [Objection evidence and make decision on the facts made defense counsel overruled.] acts, it makes no they poison of the jurors did bad testified that jurors. Eight second sense. conversations not recall up juror looking about a day of deliberations majority goes on writer [¶ 43.] 5. juror re- she testified One definition. the trial court in- remind the reader up the defi- being told looked someone called prior jury bad that acts structed However, not she did “maltreat.” nition of purpose. to be used for limited were the definition. whether she heard remember Nonsense, apples mule muffins horse as “mal- the definition Each that testified prior acts stated M.A.S.H. These bad were no in their verdict. played part treat” proceedings jury, poison the and used to extra- court found that “the The trial [¶ 35] beginning, Wright that Mr. was a from the and im- negligible had a neous information man, did it before and who did it who bad impact jury.” conclud- perceptible on again. significant probability was “no ed there Wright saying Mr. was 44.] 6. I am [¶ by act prejudiced this was defendant system wrong to stack the right, but the strong evi- Based on the juror misconduct.” against pretend give him him a and to deck the miscon- guilt, concluded that it dence of impartial A fair should “fair trial.” and Wright has not shown harmless. duct was determined whether committed have its discretion. trial court abused was suffi- and whether there acts Affirmed. [¶ 36.] not, justification It did for his conduct. cient jury’s They it not the fault. were but was Justice, MILLER, and Chief [¶ 37.] Wright beginning and Mr. poisoned from

GILBERTSON, Justice, concur. wronged by system. He never had SABERS, AMUNDSON, and [¶ 38.] in this get a fair trial case. chance Justices, dissent. Therefore, reverse we should and [¶ 45.] 7. J., SABERS, dissenting. for a fair trial. remand prior poison these bad 1. If the [¶ 39.] Justice, AMUNDSON, joins this 46.] [¶ writer, majority upon this effect acts has dissent. objective jurist, reasonably and what fail’ jurors in Mr. on the twelve effect did have

Wright’s ease.10 have Mr. 2. What chance did

[¶ 40.] jurors a fair when the were trial receive through poison judging his conduct none. prior acts? None almost bad Dakota, Plaintiff of South STATE case, poison In 3. Appellant, trial from the prior acts bad dominates a fore- Wright’s conviction was outset. Mr. HERRBOLDT, Defendant Todd going If trials are gone conclusion. Appellee. acts, why prior have by dominated bad be appeals going to trial all? If are No. 20625. acts, why bad not elimi- dominated Supreme of South Dakota. Court simply rubber-stamp con- appeals nate victions. Argued Feb. 1999. majority writer discourses 4. April Decided attempt paragraphs con- and on for vey justice fairness to these a sense why? proceed- If these

proceedings. But from start

ings dominated are Wright. proceedings, point it even seems in the At this Mr. defendant as strange to me to refer notes (1998 Revision). Criminal 2.50 “ manifesta essential and relevant. ‘Relevant evidence’ they the individual are which Ewoldt, 27 Cal. having any tendency 867 P.2d at tions.’” means evidence to make Henry Wig Rptr.2d (quoting John at any that the existence of fact is of conse- Law more, in Trials at Common Evidence quence to determination of the action (James ed., A. rev. § Chadbourn at probable probable or less than it would more 1979)). indi The “common features must ed. be without the evidence.” SDCL plan rather than existence of cate the 401). (Rule Wright’s infer Jurors could from AId. spontaneous acts.” of similar series past punishment of two instances child that showing is insuffi simple similar results of “discipline” this was unreasonable and not required connection cient to establish necessary,” merely part but was “rendered A charge and other acts. present plan design or his chil- an overall abuse circumstantially design plan can be shown or given provocation. The dren when fact committed that defendant evidence equally that he used extreme measures for acts. similar but “unconnected” a series of infractions, spilling such as minor childhood 768-69, P.2d Cal.Rptr.2d at Id. at baby powder, plan tends to establish or type evi should allow this 757. Courts design physical force as use excessive only consequential in dis support dence bearing probability that punishment, on is design plan of a or puted issues. Proof discipline present unreasonable. was an accused com to establish that admissible conduct, high without mitted the [¶22.] The two acts were allowed as a sub similarity it should not be also to show absence of mistake admissible requirements stringent for the more stitute testify, or accident. As did not operandi to establish for modus evidence jury could draw from the circumstances a blan identity, nor should it be considered state of mind when themselves a sense his intent. use to establish ket authorization for “disciplined” his son. E.W.’s Whether Cal.Rptr.2d at P.2d Id. cruelly injuries or inflicted were unintended abusively open remained to inference. punish The issue here was [¶ 20] True, lawyer to limit issue to his tried Wright’s it ment —was cruel abusive? lawyer’s justified discipline, but a remarks 22- grounded in attorney his defense SDCL Millea, Estes v. are evidence. 18-5, parents authorizes to use reason which (S.D.1990). so, 616, 619 Even she moderate force to correct their chil able and punishment admin was told Thus, degree in of force relation dren. Wright’s “mental state” was istered when formed the crux to the child’s misconduct extremely “it influenced the fire: was Indeed, argued dispute. defense counsel scary.” are frightening Juries tense disciplined Wright appropriately at trial that embrace, do, theories other free to often home, starting a fire in their “one his son lawyers, by the so propounded than those things a child can do.” of the most extreme legitimately found long as theories are those closing Wright’s discipline in Referring to plea “A evidence and law. ed within the attorney jury, “The argument, his told every in fact guilty puts material of not issue Accordingly, the punishment fit the crime .” charged in an indict constituting an offense decide, the parental left under ment, complaint.” SDCL information or statute, Wright’s discipline if use force Supreme United 23A-22-4. The States his “reason son was “restrain correct” ' McGuire, 502 U.S. wrote Estelle Court necessary the mis and “rendered able” 475, 480-81, 62, 69-70, 116 L.Ed.2d 112 S.Ct. of such child.” SDCL 22-18-5. conduct (1991): though how to conceive [¶ 21.] Difficult prior injury holding In evidence inad- reasonable, per- “punishment” Wright’s missible, Appeals ... relied the Court of isolation, haps reaction his alarmed viewed that, theory no claim was because danger of a fire the home to the extreme victim] acciden- [the made at trial died might doubt on raise reasonable whether syndrome tally, child battered under the circum- his actions were abusive

Case Details

Case Name: State v. Wright

Court Name: South Dakota Supreme Court

Date Published: Apr 14, 1999

Citation: 593 N.W.2d 792

Docket Number: None

Court Abbreviation: S.D.