State Of South Dakota v. Dillon
| Decision Date | 25 August 2010 |
| Docket Number | No. 24986.,24986. |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Farrell DILLON, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
COPYRIGHT MATERIAL OMITTED.
Marty J. Jackley, Attorney General, Sherri Sundem Wald, Deputy Attorney General, Meghan N. Dilges, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
Timothy J. Rensch, Rensch Law Office, Rapid City, South Dakota, Attorneys for defendant and appellant.
[¶ 1.] Defendant was retried on two counts of first degree rape and three counts of criminal pedophilia for sexual crimes against his daughter and her four friends after his 1999 conviction was overturned on habeas review. Defendant was found guilty by a jury and sentenced by the trial court to 125 years in the state penitentiary. Defendant argues the trial court erred when it denied his motion for acquittal for the first degree rape charges concerning his daughter, K.D., because she recanted during cross-examination. He argues the trial court also erred when it did not grant his motion for mistrial after the State's psychiatric expert vouched for the victims, and in the alternative because of a display of children's shoes that was briefly within the jury's view while walking from the courtroom to the jury room. Defendant also argues his right to Due Process was violated when the trial court refused to admit into evidence cards and letters he wrote to K.D. after the charges were filed. Finally, Defendant argues the trial court erred when it did not grant his motion for retrial after it was discovered that the jury obtained and discussed extrinsic information. We affirm on all issues.
[¶ 2.] An overview of the factual history of this case is set forth in State v. Dillon, 2001 S.D. 97, 632 N.W.2d 37 (hereinafter Dillon I ). A condensed version of those facts pertinent to the present appeal is presented below.
[¶ 3.] On December 9, 1998, Farrell Dillon (Defendant), age forty at that time, was charged with seven counts of first degree rape, two counts of third degree rape, and five counts of criminal pedophilia based on the allegations of five child victims for the events of July 10, 1998, and September 11, 1998. The victims included K.D., Defendant's then seven-year-old daughter, and four of K.D.'s girlfriends: seven-year-old L.R., eight-year-old N.R., eight-year-old S.R.B., and eight-year-old T.T. The two counts of third degree rape were removed from an amended information filed on August 17, 1999. In 1999, Defendant was tried on the remaining twelve counts and was convicted on seven counts of first degree rape and five counts of criminal pedophilia. He was acquitted on an additional charge involving sexual contact with T.T. and two other charges involving L.R. for the events of July 10, 1998. 1 Defendant was sentenced to 175 years in the State Penitentiary.
[¶ 4.] On appeal, this Court vacated three of the first degree rape convictions based on the double jeopardy prohibition because the same acts of penetration were used to support separate counts of first degree rape and counts of criminal pedophilia. Dillon I, 2001 S.D. 97, ¶ 22, 632 N.W.2d at 46. On remand, the trial court sentenced Defendant to 115 years on the remaining convictions. Defendant's subsequent state habeas corpus action alleging ineffective assistance of counsel was denied by the trial court, but reversed by this Court. Dillon v. Weber, 2007 S.D. 81, 737 N.W.2d 420.
[¶ 5.] The State gave timely notice of its intention to retry Defendant and filed an Information with the following counts:
+--------------------------------------------------------------+
¦¦Count 1¦First Degree Rape ¦K.D. ¦July 10, 1998 ¦¦
++-------+-------------------+------+-------------------------+¦
¦¦Count 2¦First Degree Rape ¦K.D. ¦September 11, 1998 ¦¦
++-------+-------------------+------+-------------------------+¦
¦¦Count 3¦Criminal Pedophilia¦S.R.B.¦July 10, 1998 ¦¦
++-------+-------------------+------+-------------------------+¦
¦¦Count 4¦Criminal Pedophilia¦L.R. ¦September 11, 1998 ¦¦
++-------+-------------------+------+-------------------------+¦
¦¦Count 5¦Criminal Pedophilia¦N.R. ¦September 11, 1998 ^[FN2]¦¦
+--------------------------------------------------------------+
In a pretrial motion in limine, Defendant asked for preclusion of any reference to the previous trial, sentencing, direct appeal, and habeas proceedings under SDCL 19-12-3 (Rule 403) without specifying what portion of the rule pertained to his motion. 3 The State did not resist the motion, which was granted in its entirety by the trial court.
[¶ 6.] As previously noted, the facts from the first trial are detailed in Dillon I, 2001 S.D. 97, ¶¶ 2-10, 632 N.W.2d at 41-42. In May 2008 at the second trial, the State called Dr. Leslie Fiferman, a clinical psychologist who had worked with between 2,000 and 3,000 sexual abuse victims over twenty years of practice in the military and as a private practitioner. Dr. Fiferman testified that he had no contact with any of the victims, nor had he read any of the police reports in this case. He was asked to testify generally about the characteristics of sexual abuse victims and their ability to recall and recount their abuse experiences. Dr. Fiferman testified that most sexual abuse victims suffer from post traumatic stress disorder as a consequence of their experiences. He also testified that victims can experience emotional regression as a consequence. Dr. Fiferman further testified that it is common for victims to dissociate themselves from the experience as a self-defense mechanism; dissociated victims' minds can fail to capture the details of the events that transpired, or may only store a portion of the events. He also gave background on the dynamics of “grooming” of sexual abuse victims by a perpetrator, including the shame and self-blame that a victim experiences as a consequence. As a final characteristic, the following exchange occurred on direct examination:
Q. I just have one final area to discuss with you, and that-and it's kind of maybe combined in what you've testified to so it could be brief. But just in a short synopsis, you've seen certain behaviors of children that-have you seen certain behaviors that would tell you that-potentially lend credibility to the fact that kids have had this occur to them?
A. Yes.
Q. Okay. Have you testified to those with this jury?
A. With this jury today, I believe I have. I missed out probably one of the most important ones, and that is that when somebody reports being sexually abused, in the majority of cases, that's the truth. That's the one.
(Emphasis added). Defendant moved for a mistrial contending that Dr. Fiferman's testimony invaded the province of the jury. A brief hearing was held on the motion outside the presence of the jury. Defendant's motion for mistrial was denied.
[¶ 7.] Defendant was able, however, to object in the jury's presence to the last statement in Dr. Fiferman's testimony as being without foundation and beyond the scope of Dr. Fiferman's expertise. The trial court sustained the objection and instructed the jury to disregard that portion of his testimony. The trial court further instructed that at the conclusion of the case the jury, as the exclusive trier of fact, would determine from all the evidence, excluding Dr. Fiferman's last statement, the veracity of each witness.
[¶ 8.] The State then called the victims, beginning with K.D., to testify to the events of July 10, 1998, and September 11, 1998. After K.D. testified, the recordings of her prior interviews with police were played for the jury. After each victim testified live, the relevant interviews for each witness were played for the jury. Based on the physical appearance of the victims and the ages each gave on the videotapes versus on the witness stand, it became obvious to the jury that the allegations happened approximately ten years prior to trial.
[¶ 9.] During K.D.'s direct testimony in 2008, she testified that on the night of her birthday party, Defendant tried to lick her “private parts,” however K.D. closed her legs. K.D. testified that she could not remember what her father did next. When asked if her father tried to touch K.D. in any other sexual manner that night, K.D. replied “I don't remember.” On cross-examination K.D. testified as follows:
Q. Ma'am, is it your position here today that your father did more than touch your vagina with his penis?
A. What do you mean?
Q. Okay. What did your father do with his penis to your vagina?
A. He didn't do anything with his penis with my vagina.
...
Q. Okay. His penis did not go in your vagina?
A. Yes.
Q. And that's what you told Detective Fox long ago, correct?
A. Yeah.
Q. Okay. So there was never a point in time when your father's penis went inside your vagina; is that correct?
A. Yeah.
[¶ 10.] The other victims testified with some discrepancies between their prior testimony and police interviews concerning the details of whether the molestations happened in Defendant's bedroom, or K.D.'s bedroom, and the details of who removed their clothing. However, each victim was able to articulate the acts that were perpetrated by Defendant upon the girls.
[¶ 11.] On the third day of trial, Detective Fox testified. Following her live testimony, the jury heard a portion of the audiotaped interview of K.D. with Detective Fox and Horan, a Department of Social Services (DSS) employee. After hearing a portion of the tape, the trial court recessed the jury for a few minutes. After the jury left the courtroom, the jurors walked through a hallway and into the jury room. The trial judge soon followed that same hallway to reach judge's chambers and discovered a display of children's shoes, including shoes for both girls and boys, in the hallway traveled by the jury. The trial...
To continue reading
Request your trial
-
Morris v. State
...expert); In re C.C., 187 Ohio App.3d 365, 372, 375, 932 N.E.2d 360, 365, 367–68 (8th Dist.2010) (social worker); State v. Dillon, 788 N.W.2d 360, 364 (S.D.2010) (clinical psychologist); Commonwealth v. Miller, 273 Va. 540, 544, 643 S.E.2d 208, 210 (2007) (clinical psychologist); State v. Tr......
-
Smith v. State
...the "risk of undue influence" from the showing of police in the courtroom was not "unacceptably high." Id. ; see also State v. Dillon , 788 N.W.2d 360, 363 (S.D. 2010) (holding that a display of children's shoes in a hallway that the jury walked through did not inherently prejudice the defe......
-
Davis v. State Dakota
...evidence produced. The trial court's findings are reviewed under a clearly erroneous standard. State v. Dillon, 2010 S.D. 72, ¶ 49, 788 N.W.2d 360, 373. 23. School districts segregate their revenues into a number of separate fund accounts including the general fund, the capital outlay fund,......
-
Davis v. State, 2011 S.D. 51
...evidence produced. The trial court's findings are reviewed under a clearly erroneous standard. State v. Dillon, 2010 S.D. 72, ¶ 49, 788 N.W.2d 360, 373. 23. School districts segregate their revenues into a number of separate fund accounts including the general fund, the capital outlay fund,......
-
ICEBERG AHEAD: WHY COURTS SHOULD PRESUME BIAS IN CASES OF EXTRANEOUS JUROR CONTACTS.
...to receive a mistrial, the defendant must show error and resulting prejudice."). (309.) State v. Dillon, 2010 S.D. 72, [paragraph] 51, 788 N.W.2d 360, 373-74 (maintaining the presumption of prejudice, but providing a three-pronged framework allowing the government to rebut that (310.) State......