McCafferty v. Solem

Decision Date29 August 1988
Docket Number16137,Nos. 16121,s. 16121
Citation449 N.W.2d 590
PartiesBruce McCAFFERTY, Petitioner and Appellee, v. Herman SOLEM, Warden, South Dakota State Penitentiary, Respondent and Appellant. . Considered on Briefs
CourtSouth Dakota Supreme Court

Timothy M. Gebhart of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for petitioner and appellee.

Mark L. Bratt, Asst. Atty. Gen., Pierre, for respondent and appellant; Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief.

MORGAN, Justice (on reassignment).

This appeal arises from a decision on the habeas corpus petition of Bruce McCafferty (McCafferty) challenging the constitutionality of his conviction for a sexual contact offense. This court affirmed that conviction on direct appeal. State v. McCafferty, 356 N.W.2d 159 (S.D.1984) (McCafferty I ). From the determination of the court below (habeas court) that certain testimony should not have been admitted, State appeals. By notice of review McCafferty appeals, claiming that the habeas court erred in its ruling on certain other procedural errors at trial. We reverse the decision of the habeas court on the admission of the testimony but affirm on the issues raised by McCafferty's notice of review.

The facts of this case are stated in McCafferty I. He was convicted on the charge that he knowingly engaged in sexual contact with another person under fifteen years of age, in violation of SDCL 22-22-7. 1 He was also found to be a habitual offender under SDCL 22-7-8. The trial court sentenced McCafferty to fifteen years in the South Dakota Penitentiary. McCafferty appealed his conviction to this court, where the trial court's decision was affirmed in part and remanded with instructions to the trial court to determine whether the victim's out-of-court statements had sufficient "indicia of reliability." McCafferty I, supra. On remand, the trial court found that the hearsay statements bore sufficient indicia of reliability to be admissible under SDCL 19-16-35. McCafferty appealed for the second time, McCafferty II, and this court summarily affirmed the trial court. State v. McCafferty, 384 N.W.2d 323 (1986). The United States Supreme Court denied McCafferty's petition for writ of certiorari. McCafferty v. South Dakota, 476 U.S. 1172, 106 S.Ct. 2897, 90 L.Ed.2d 983 (1986).

McCafferty initiated this habeas corpus action against Herman Solem (State), Warden of the South Dakota State Penitentiary. The habeas court granted McCafferty's petition for writ of habeas corpus on the grounds that his conviction was based on the erroneously admitted testimony of two expert witnesses who offered expert testimony on the believability or credibility of the victim. However, the habeas court denied McCafferty's petition to the extent that his convictions were based on the allegedly erroneous admission at the trial of evidence of his prior felony convictions and the trial court's refusal to appoint a psychiatrist or psychologist to examine the victim.

State appeals only that part of the judgment relating to the admissibility of the experts' testimony on the believability of the victim, stating the issue: whether it is error for an expert witness to give an opinion regarding the believability of a child sexual abuse victim "unavailable" at trial. McCafferty notices for review that part of the judgment relating to the admission of his prior convictions and the trial court's refusal to appoint a psychiatrist to examine the victim. 2 He grounds his issues as constitutional violations thusly: (1) whether the refusal of the trial court to appoint a psychiatrist to assist the defense violated McCafferty's right to a fair trial and his due process rights; and (2) whether the admission of McCafferty's prior felony convictions deprived him of due process.

The remedy of post-conviction habeas corpus is restricted by the provisions of SDCL 21-27-16 and the prior decisions of this court. The statutory provisions were fairly well summarized in our decision, State v. Erickson, 80 S.D. 639, 129 N.W.2d 712 (1964), wherein we pointed out that, since the remedy is in the nature of a collateral attack upon a final judgment, the scope of review in habeas corpus proceedings is limited. As we said: "habeas corpus can be used only to review (1) whether the court had jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) in certain cases, whether an incarcerated defendant has been deprived of basic constitutional rights." Id., 80 S.D. at 645, 129 N.W.2d at 715. See also Goodroad v. Solem, 406 N.W.2d 141 (S.D.1987). Habeas corpus is not a proper remedy to correct irregular procedures, rather, habeas corpus reaches only jurisdictional error. Id. 406 N.W.2d at 143; SDCL 21-27-16. For purposes of habeas corpus, constitutional violations in a criminal case deprive the trial court of jurisdiction. Goodroad, 406 N.W.2d at 143; Podoll v. Solem, 408 N.W.2d 759 (S.D.1987). Therefore, if McCafferty can show in a habeas corpus action that his conviction has been obtained in violation of the constitution, he is entitled to relief. Further, we may not upset the habeas court's findings unless they are clearly erroneous. SDCL 15-6-52(a); Satter v. Solem, 422 N.W.2d 425 (S.D.1988).

We first address the issue raised by State on the admissibility of the experts' testimony in the form of an opinion as to the believability of a victim of child sexual abuse. This specific issue has not been previously addressed by this court.

In this case, the testimony of the witnesses presently under attack was:

Pam Haugland, a preschool teacher, who testified as follows:

Q Would you say you had established some rapport with [S.F.]?

A Yes, very much.

Q Has she on other occasions opened up to you?

A Oh, yes.

Q Did you feel that you could rely on what she told you or believe what she told you?

A Definitely.


Q Did you ask her anything else, Mrs. Haugland, or pursue this any further?

A Oh, we talked a lot and talked about different, that kind of thing, and the touching and feeling game. And I just at this point felt I better find out if there'd been any penetration, or anything of this nature. And I asked her if Daddy ever put anything in her. And she was very honest, "No. Just kleenex." 3 And I truly don't know what [S.F.] meant about that. Then she stopped talking pretty much about that. Very honest.

Dr. Curran, a clinical psychologist, testified as follows:

Q Have you ever had any trouble with [S.F.] in the past telling you things that were not true?

A No, I can't say that I have.

Q You think you can tell when kids are trying to pull the wool over your eyes?

A Not always. I think kids are pretty good. One area, you know, based on the psychological research, is that in areas of child sexual abuse, it would be less than one percent of the population lie about that. And it would take a pretty sophisticated cognitive system to create that. And I don't think [S.F.] has that kind of system functioning yet that she could create that.

Because of the special circumstances in child sexual abuse cases, several evidentiary rules have developed. Testimony relating to the child's statements concerning sexual contact are admissible if the court finds sufficient indicia of reliability. Matter of C.L., 397 N.W.2d 81 (S.D.1986); McCafferty I, supra; SDCL 19-16-38. An expert may testify as to certain characteristics of sexually abused children and may even compare those characteristics to actions of a particular victim. United States v. Saint Pierre, 812 F.2d 417 (8th Cir.1987).

The general rule, however, is that one witness may not testify as to another witness' credibility or truth-telling capacity because such testimony would invade the exclusive province of the jury to determine the credibility of a witness. Of recent years, the impact of allowing this type of testimony in child sexual abuse cases has been considered, coupled with the general rule. "[E]xpert testimony particularly courts the danger of undue prejudice or of confusing the issues or misleading the jury because of its aura of special reliability and trustworthiness." State v. Logue, 372 N.W.2d 151, 157 (1985) (citation omitted). Thus, some courts have held that permitting an expert to give her opinion that the victim is telling the truth, puts an impermissible stamp of believability to that testimony. United States v. Azure, 801 F.2d 336, 340 (8th Cir.1986); State v. Lindsey, 149 Ariz. 472, 720 P.2d 73 (1986); State v. Myers, 382 N.W.2d 91 (Iowa 1986); People v. Matlock, 153 Mich.App. 171, 395 N.W.2d 274 (1986); Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (Penn.1986).

These cases were not, however, bright-line tests. They emerged slowly and haltingly out of the problems surrounding the prosecution of child sexual abuse cases. Over the past decade, courts have struggled with how far to allow experts to go in explaining whether children generally lie about sexual abuse, while attempting to protect the rights of the defendant. See Hutton, Child Sexual Abuse Cases: Reestablishing the Balance Within the Adversary System, 20 Univ. of Mich.J.L.Ref. 491, 498-501 (1987). At the time of McCafferty's trial, courts were permitting experts to express their opinions as to the believability of children because these cases were recognized as being "different." State v. Kim, 64 Haw. 598, 602, 645 P.2d 1330, 1334 (1982); State v. Myers, 359 N.W.2d 604 (Minn.1984).

In McCafferty I, we recognized that cases involving very young sexual abuse victims are special cases for confrontation clause purposes and that the legislature had adopted a "tender years" exception to the hearsay rule for just such cases. Indeed, we seem to have stated empirically that "a young child is unlikely to fabricate a graphic account of sexual activity because such activity is beyond the realm of his or her experience." 356...

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