State v. Ball

Decision Date21 January 2004
Docket NumberNo. 22343.,22343.
Citation2004 SD 9,675 N.W.2d 192
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. John BALL, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Lawrence E. Long, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Bryan T. Andersen, Office of the Public Defender for Pennington County, Rapid City, South Dakota, Attorney for defendant and appellant.

ZINTER, Justice (on reassignment).

[¶ 1.] John Ball was convicted on two counts of first degree rape. On appeal, he asserts that the trial court erred in: (1) denying his request for a mistrial for a discovery violation; (2) denying him access to Department of Social Services records; (3) denying his motion for a judgment of acquittal on one count of the indictment; (4) denying his request for a mistrial because the prosecutor commented on his failure to testify; and (5) imposing a cruel and unusual punishment. Because we conclude that the prosecutor improperly commented on Ball's constitutional right to remain silent, we reverse and remand on Issue 4. We also review the discovery question in Issue 2.


[¶ 2.] We relate the facts in a light most favorable to the verdict. State v. Hage, 532 N.W.2d 406, 410 (S.D.1995). On December 29, 2000, Tonya Arendt, the mother of M.B., contacted Box Elder Police Detective Chris Misselt. She informed him that M.B. had made allegations of sexual abuse by John Ball, M.B.'s father.1 Arendt was concerned because M.B. reported two incidents of Ball "sniffing" her during visitations that year. On January 1, 2001, Misselt interviewed M.B. In the interview, M.B. reported seven incidents of inappropriate contact by Ball, including the two allegations of sexual penetration that are the subject of Ball's rape convictions in this appeal. [¶ 3.] The first incident allegedly occurred on a day the two were involved in a vehicular accident. Although M.B. believed that it occurred some time in February 2000, it was later determined that the accident occurred on January 1, 2000. On that day, Ball's car struck two concrete poles and ruptured a gas line. Ball and M.B. left the scene of the accident before the police arrived and proceeded to the Dakota Rose Motel where they were staying. After returning to the motel, M.B., age eight at the time, began to take a shower. According to M.B., when she asked Ball to bring her a towel, he came into the bathroom, disrobed and got into the shower with her. She indicated that Ball got down on his knees and took her by the hips and began to "lick her privates," sticking his tongue and fingers into her. Although M.B. indicated that she escaped from the bathroom, sexual activity continued. She alleged that she later went to bed, but awoke to find herself naked and felt her father pulling her legs apart and inserting his tongue in her. Around one or two that morning, while Ball was asleep, Arendt picked M.B. up at the motel and took her home. M.B. did not apparently report this incident at that time.

[¶ 4.] M.B. testified that the second incident occurred on Christmas Eve, December 24, 2000. On this occasion, M.B. was visiting Ball at his apartment in Box Elder. She indicated that during the visit, Ball "kissed, licked and sucked her private parts" and "rubbed his penis on her butt." However, actual penetration sufficient to constitute rape became a matter of dispute in M.B.'s subsequent statements and testimony at trial.

[¶ 5.] The first of M.B.'s subsequent statements was made four days after M.B. first reported the Christmas incident. On this occasion, she spoke to school counselor John Barnett about the matter. M.B. told Barnett that while she was visiting Ball on Christmas Eve, he kissed, licked, and sucked her private parts. Barnett testified to this conversation at trial.

[¶ 6.] Dr. Lori Strong conducted a physical examination of M.B. on March 13, 2001. Although M.B. denied any sexual penetration of her mouth or vagina in this statement, and although M.B. denied any anal penetration at trial, she reported to Dr. Strong that Ball had penetrated her anally with his penis during the Christmas incident.

[¶ 7.] M.B.'s initial reports to Detective Misselt were turned over to Pennington County Deputy Sheriff Misti Gray. Gray first met with Ball on February 21, 2001, but no specific questions were asked. Later, on March 2, 2001, Ball contacted Gray's office and asked to speak with her. Ball repeatedly denied his daughter's allegations, specifically denying any of the rape allegations while saying that he did not remember other things. At one point, when asked if his child had been lying, he replied, "She is not lying. I am not lying. I just don't remember." Ball also conceded that "[s]ome of the things" were true. He said he was sorry he "hurt her." Ball expressed his wish to not go to jail. He was later arrested and made an initial appearance on March 26, 2001.

[¶ 8.] At trial, the State called M.B., Arendt, Barnett, Dr. Strong, Misselt, Gray, Officer Johns, and Kay Lindgren as witnesses. The defense witnesses were Lynette Barse and Troy Fegueroa. Ball did not testify. The jury found Ball guilty on both counts of first degree rape of a child less than ten years of age. He appeals, asserting the following issues: (1) "The trial court erred in denying Ball's motion for a mistrial for the violation of the discovery order and failure of the State to give proper notice under the medical exception to the hearsay rules." (2) "The trial court erred in denying Ball access to the requested Department of Social Services records." (3) "The trial court erred in denying Ball's motion for a judgment of acquittal on count II of the indictment." (4) "The trial court erred in not finding the prosecutor's comments during closing arguments about the fact that Ball did not testify improper and denying Ball's motion for a mistrial." (5) "The trial court's sentence shocks the conscience and constitutes cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution." We address Issue 2 (discovery) and Issue 4 (prosecutorial comments).

Discovery of DSS Records

[¶ 9.] The trial court performed an in camera review of the confidential Department of Social Services (DSS) records and found nothing of relevance. Ball asks us to review the sealed records to ensure that the trial court did not err in its review. We review a trial court's decision on release of confidential records under an abuse of discretion standard. State v. Cates, 2001 SD 99, ¶ 17, 632 N.W.2d 28, 36.

[¶ 10.] Our review of the one thousand pages reflects that most of the material was irrelevant. However, we found the following: "Ann [the mother of a child named `R'] stated that [R] has been helpful with a girlfriend [M.B.] that confided in [R] about some sexual abuse and that she may have to testify in court. Ann stated that many of [R's] friends feel comfortable in talking with her about their problems."

[¶ 11.] While this passage may have been relevant, nothing in this note suggests that M.B. gave a contradictory rendition of events to R. More importantly, R's name was listed in the police report attached to the complaint along with a rendition of what M.B. told her. R was also subpoenaed to testify at a June 18, 2001 evidentiary hearing. She did not, however, testify. Both the subpoena and the police report are in the record. Thus, the defense had knowledge of R, what M.B. had purportedly told her, and what R reported to law enforcement. Therefore, the trial court was within its discretion in refusing to open the confidential DSS records.

Request for MistrialProsecutor's Comments on Ball's Refusal to Tell "Us" What Happened

[¶ 12.] Although Ball did not testify, the prosecutor made three comments in closing argument that Ball "knows [not knew] what happened." The prosecutor also pointed out that Ball admitted some things, and then the prosecutor asked the rhetorical question "what's true John?" The prosecutor concluded by conceding that although there was no physical evidence of trauma, Ball "knows what happened, but he's not talking. He's not telling us what happened." The prosecutor specifically commented:

So again, folks, look at what's going on. [M.B.] was there. In the traffic accident [M.B.] is a fine witness for him. Now when she says he molested her and raped her, [M.B.] is lying and making it up and out to get him. Don't get lost in all this, all this smoke that's being put up. Mr. Ball knows what happened and we know that by his statements. He can't hide from those.

He told Misti Gray that some of the things are true, some of the allegations, "Tell my daughter I'm sorry I hurt her." He said he didn't want to go to jail and he needed a psychiatric ward, he needed counseling. Again, look at the parameters of which he was talking about, allegations of a rape. He's saying that he doesn't want to go to jail. That was what he followed up with when he said, "Some of the things are true." "What's true, John?" "I don't want to go to jail." For running around naked and handing your daughter a towel, you're going to jail?

The defendant knows what happened. He raped her. He wouldn't tell law enforcement. He stopped giving the details as far as the allegations, although some of the allegations are true.
Defense will point out there's no signs of trauma on [M.B.]. Again, that's been brought out. Dr. Strong stated it's very [un]common you'll have any sort of damage on a child for rape. We talked about that in voir dire. It doesn't happen all the time. This wasn't a forced act. This wasn't something that left scars or injuries or bruising. The examination took place sometime thereafter, but even so, pen[ile] penetration, the doctor said that wouldn't leave anything. It's a flexible opening. Oral contact with genitals, common sense, folks,

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