Sprik v. Class, 19722

• Decision Date: 17 December 1997
• Docket Number: No. 19722,19722
• Citation: 572 N.W.2d 824,1997 SD 134
• Parties: Calvin Earle SPRIK, Petitioner and Appellant, v. Joe CLASS, acting in his capacity as the duly appointed Warden of the South Dakota State Penitentiary, Appellee.
• Court: South Dakota Supreme Court

Page 824

572 N.W.2d 824

1997 SD 134

Calvin Earle SPRIK, Petitioner and Appellant, v. Joe CLASS, acting in his capacity as the duly appointed Warden of the South Dakota State Penitentiary, Appellee.

No. 19722.

Supreme Court of South Dakota.

Argued March 24, 1997.

Decided Dec. 17, 1997.

Kenneth R. Dewell of Viken, Viken, Pechota, Leach & Dewell, LLP, Rapid City, for petitioner and appellant.

Mark Barnett, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, for appellee.

RUSCH, Circuit Judge.

¶1 Calvin Earle Sprik (Sprik) appeals from the denial of his application for a writ of habeas corpus. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 At trial, Sprik was convicted of one count of third degree (statutory) rape. He was acquitted of two counts of third degree rape and three counts of second degree (forcible) rape. His conviction was affirmed on direct appeal in State v. Sprik, 520 N.W.2d 595 (S.D.1994). Sprik then applied for a writ of habeas corpus which was denied by Judge Merton Tice following hearings on January 6, 9, 17 and 23, and February 6, 1995, and a motion for reconsideration which was heard on September 14, 1995.

¶3 The factual background of the charges against Sprik is set out in the South Dakota Supreme Court opinion on the direct appeal. However, because of the issues raised in this appeal a further discussion of the times involved is necessary. It was between 9:30 and 10:30 on the evening of September 14, 1992, when thirteen-year-old N.G. went to Hardee's on Fifth Street in Rapid City. After she had been at Hardee's for some time, N.G. went to Memorial Park where the rape occurred. The Park is several blocks north of Hardee's. Later that night, N.G. told the police that she left Hardee's at 10:45 p.m. but she told Dr. Charles Hart at Rapid City Regional Hospital that she left Hardee's at 11:30 p.m. At the trial she testified that she went to Hardee's at 9:30 p.m. or 10:00 p.m. and that she stayed at Hardee's until about 10:00 p.m.

¶4 In his various briefs, Sprik argues that "if N.G. is to be believed" the rape occurred over a three to three and one half hour period from 10:30 or 11:00 p.m. until 2:00 a.m. and that N.G. was "adamant" that the rape took three or three and one half hours. However, on the night of the rape, N.G. consistently reported that it took about two hours. At trial, she testified that she had no idea how long the rape took as she was not looking at the time. Although Sprik relies upon statements made by N.G. during cross-examination, in support of his claim that the rape took three to three and one half hours, it appears from her testimony that she did not know how long the rape took and was merely guessing as to its length. ¹ It is also unclear whether the times she referred to are the times of the rape or of the entire incident which began at Hardee's earlier in the evening.

¶5 Early the next morning on the south side of Memorial Park, N.G. flagged down a car, told the driver that she had been raped, gave a partial description of the perpetrator and asked to be taken home. N.G. actually had the driver take her to the home of a boyfriend. However, within a couple of blocks after leaving N.G., the driver saw police officers Michael Speer and Brionne Shegstad and reported the incident to them. Speer and Shegstad immediately put out a radio message about the rape which was recorded at 2:08 a.m. Based upon the times which elapsed from the time N.G. was picked up on Omaha Street, the rape ended about 1:30 a.m.

¶6 When they initially talked to N.G., Officers Speer and Shegstad obtained a statement from her including a detailed description of her assailant. N.G. described her assailant to the police officers as thirties, short dark hair, blue jeans, blue and white shirt, fanny pack, Harley Davidson hat, scratch on his ear and carrying a green backpack or bag. The description given by N.G. was broadcast on the police radio and Officer James, who was on patrol in the downtown Rapid City area at the time, responded that he had seen an individual with a green backpack just minutes before, proceeding south away from the area of Memorial Park. He immediately began a search for the individual he had seen.

¶7 Sprik claims that the description initially given to the police by N.G. was materially different from his actual appearance and that her description was tainted by many subsequent events. He claims repeatedly that when N.G. was picked up by the driver that she "made no mention of any backpack" but the driver specifically testified that N.G. told her of the backpack.

¶8 Sprik also repeatedly claims that "Officer James ... disclosed during his habeas testimony that he did not feel that the description of the alleged assailant which was being broadcast ... matched Sprik because Sprik had a red coat, medium length hair with no beard, whereas the reports were of 'very short, dark hair with a beard.' " However, no fair reading of Officer James' testimony supports Sprik's claim that James was of the opinion that the broadcast description did not match Sprik.

¶9 Sprik also repeatedly claims that N.G.'s description of the shirt her assailant was wearing did not match what he had on because she described a blue or blue and white shirt while he was wearing a red, white and blue shirt. The mug shots taken that night show that Sprik was wearing a blue and white plaid shirt that had some very fine red lines but that the shirt was predominately blue. The red lines are so small as to be virtually unnoticeable on the mug shots.

¶10 Sprik also claims that he had a very obvious 6 or 7-inch scar and that N.G.'s failure to mention the scar shows that her identification was not credible. However, the scar is not noticeable on the mug shots and Officer James, who saw Sprik that night, did not notice it. ² The police reports also show that N.G. described her assailant as having a "scratch." Although there was a discrepancy as to whether Sprik had a beard at that time, the mug shots show that he had several days growth of whiskers. Some observers may characterize what is shown on the mug shots as a beard while others may not. N.G.'s description of her assailant was highly accurate, and included the blue and white shirt, blue jeans, green backpack, Harley Davidson hat, fanny pack, and scratch on his left cheek. ³

¶11 Officer James initially stopped Sprik about 2:00 a.m. ⁴ He estimated that he heard the radio broadcast about the possible rape five or six minutes later. This is consistent with Officers Speer and Shegstad's radio broadcast at 2:08. Officer James immediately began searching for the person whom he had stopped just minutes earlier.

¶12 After talking briefly to N.G., Officers Speer and Shegstad took her across the alley to her home where they talked to her mother. Then they took her to Hardee's because she told them that her assailant had been there earlier and that his friend might still be there. Finding no one at Hardee's who could identify the assailant, Officer Speer then left to go to the west side of Rapid City to contact other witnesses who had been at Hardee's earlier that evening, while Officer Shegstad took N.G. to Memorial Park to look for the scene of the rape.

¶13 On the way to Memorial Park, N.G. showed Officer Shegstad the alley behind the Firehouse Brewery where her assailant had told her that he slept. Hearing that information over the radio, Officer Speer (who was looking for the other potential witnesses on the west side of town at the time) told the officers involved in the search that several days earlier he had received a complaint about a transient who was sleeping on the roof of the Firehouse Brewery. Officer James then went to that location and found Sprik. N.G. was brought back from Memorial Park (a distance of only a couple of blocks) by Officer Shegstad and identified Sprik at a "show-up" conducted in the alley behind the Brewery.

¶14 Officer James estimated that it was about twenty minutes after his initial contact with Sprik that he received the information about the Firehouse Brewery. He went directly to that location and located Sprik. He also estimated that it was twenty-five minutes after his first contact with Sprik when he found him. It was about 2:25 a.m. when Sprik was located at the Firehouse Brewery. Officer James testified that Officer Shegstad brought N.G. to that location for the "show-up" within five minutes which would have been about 2:30. This was one hour after the rape concluded and one half hour after Officer James first saw Sprik.

¶15 Sprik claims that N.G. never told the investigating officers that her assailant lived under the staircase at the Firehouse Brewery. He claims that this information came from Officer Speer based upon the earlier complaint which he had received about someone sleeping there. However, the police reports and testimony clearly show that Officer Shegstad received the information about the alley behind the Firehouse Brewery from N.G. and that Officer Speer then added the information about the rooftop location based upon the earlier complaint which he had received.

¶16 Sprik claims that Officer James agreed that the time lapse between the identification and the first time he saw Sprik was more like 1-1/2 hours rather than the twenty-five minutes he testified to at trial. However, the record shows that Officer James never "agreed" that the time lapse was 1-1/2 hours. Sprik's attorney was the only one who said that.

¶17 Sprik also claims that Officer James further admitted that during the approximately 20-30 minutes that Sprik was in his custody awaiting the drive-by identification that Sprik denied having had any sexual relationship with any woman that night. HCTT, 1/6/95, p. 10 and 26-27. However, there is nothing in the habeas transcript to support this claim, and other testimony in that transcript is contrary to Sprik's claim that he was in custody for 20-30 minutes awaiting the...