State v. Buller

• Decision Date: 11 February 1992
• Docket Number: No. 17493,17493
• Citation: 484 N.W.2d 883
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Allen R. BULLER, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 883

484 N.W.2d 883

STATE of South Dakota, Plaintiff and Appellee, v. Allen R. BULLER, Defendant and Appellant.

No. 17493.

Supreme Court of South Dakota.

Considered on Briefs Feb. 11, 1992.

Decided April 29, 1992.

Mark W. Barnett, Atty. Gen., William J. Nevin, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

William A. Moore, Scotland, for defendant and appellant.

SABERS, Justice.

Buller appeals his conviction for first degree rape of his four-year-old son. We affirm.

FACTS

Allen Buller (Buller) married in 1973. He and his wife had five children. Buller's father committed acts of sexual abuse upon these five children. These acts eventually resulted in a divorce in 1989 for the Bullers.

Following the divorce, his wife sought counseling for the children from Benedictine Family Services in Yankton, S.D. The children were counseled by Rick Inhofer (Inhofer). Inhofer first met with I.B., the youngest child, on a one-to-one basis on June 29, 1989. He told Inhofer that his father touched him in his private spots with his hands, sucked on his penis, and inserted sticks and his penis in his anus. He was also counseled by Dr. Mary Curran (Curran). I.B. demonstrated to Curran, through the use of anatomically correct dolls, what was done to him. This version was similar but not identical to the statements made to Inhofer. The differences pertained to acts allegedly done to I.B. by his grandfather.

Buller was charged with first degree rape--sexual penetration of four-year-old I.B. On December 27, 1990, State moved to introduce hearsay statements made by I.B. to Inhofer and Curran. The court reserved its ruling on State's motion until the evidence could be reviewed. In a pre-trial hearing the morning of the trial on January 9, 1991, the court ruled that sufficient indicia of reliability existed and the hearsay statements would be allowed, providing I.B. testified at trial. During the three-day trial, after being qualified as competent by the court, I.B. testified to acts committed by Buller. Inhofer was allowed to testify to statements made to him by I.B. during their counseling sessions. Curran was also allowed to testify to the statements and demonstration made by I.B. during counseling with her. She further explained why I.B.'s versions of the events differed to Inhofer, herself, and the jury. On cross-examination, Curran testified that after investigation and interviews with the alleged victim, if she concludes that no abuse occurred, then the case is often not prosecuted. Dr. Harold Mardl later testified for the defense that, in his opinion, I.B.'s characteristics did not show he was sexually abused.

The jury found Buller guilty of first degree rape. He was sentenced to 25 years in the South Dakota Penitentiary with 15 years suspended on numerous conditions. Buller appeals claiming the court erred in (1) allowing hearsay testimony under SDCL 19-16-38; (2) violating his Sixth Amendment right to confront the witnesses against him; (3) allowing expert testimony concerning rape trauma syndrome; (4) allowing Curran to comment on the credibility of I.B.; and (5) denying his motion for judgment of acquittal. ¹

1. HEARSAY STATEMENTS.

Buller claims the court erred in allowing Inhofer and Curran to testify to statements made by I.B. during counseling sessions due to insufficient indicia of reliability. Buller bases his argument on the court's failure to enter written findings prior to trial and the court's failure to require I.B., Inhofer and Curran to testify at the pre-trial hearing. We review evidentiary rulings on the basis of abuse of discretion:

For us to disturb the evidentiary rulings of the circuit court, we must determine that an abuse of discretion has occurred. Once again, an abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.

State v. Pfaff, 456 N.W.2d 558, 561 (S.D.1990) (citing State v. Bartlett, 411 N.W.2d 411, 414 (S.D.1987)); see also, State v. Floody, 481 N.W.2d 242, 249 (S.D.1992).

Out-of-court statements by a minor sexual abuse victim are admissible at trial, provided the provisions of SDCL 19-16-38 ² are met. See, Floody, 481 N.W.2d at 251; State v. Schoenwetter, 452 N.W.2d 549, 550 (S.D.1990). No written findings were prepared by the court prior to the admission of the statements at trial. However, following examination of the case file, the Grand Jury transcript, and the records and notes of the psychologist and therapist, the court stated on the record prior to trial that:

[T]he Court finds from the examination of this evidence that the statements made by the victim, [I.B.], to Mr. Inhofer and Dr. Curran, according to the time, content and circumstances, show the Court that there is sufficient indicia of reliability in these statements and that they will be able to testify as to those statements made during trial, providing that the child testifies which I understand he intends to do.

Thus, the court made the findings required under SDCL 19-16-38. Therefore, the actual thrust of Buller's claim is the court's pre-trial determination that sufficient indicia of reliability existed under SDCL 19-16-38.

The factors for determining whether hearsay statements by a sexually abused minor are sufficiently reliable for admissibility under SDCL 19-16-38 are: the age and maturity of the child, the nature and duration of the abuse, the relationship of the child to the offender, the consistency of repetition and the reliability of the assertions, and the reliability of the child witness. Floody, 481 N.W.2d at 251; see also, Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 3150, 111 L.Ed.2d 638, 656 (1990); Schoenwetter, 452 N.W.2d at 550-51; State v. Thompson, 379 N.W.2d 295, 297-98 (S.D.1985); State v. McCafferty, 356 N.W.2d 159, 164 (S.D.1984); State v. O'Brien, 318 N.W.2d 108, 112 (S.D.1982).

Buller argues that there was insufficient evidence to determine reliability because the court erred in failing to require that I.B., Inhofer and Curran testify at the pre-trial hearing. However, SDCL 19-16-38 does not require that the child or the other witnesses testify at the pre-trial hearing. Buller claims that Thompson supports his argument. However, Thompson requires only that "the determination of reliability must be made prior to the admission of the hearsay." Thompson, 379 N.W.2d at 298. Buller also points to State v. Swan, 114 Wash.2d 613, 790 P.2d 610 (1990), cert. denied, --- U.S. ----, 111 S.Ct. 752, 112 L.Ed.2d 772, (1991), for the requirement that witnesses must testify prior to any determination of reliability of the hearsay statements. However, in applying a statute similar to SDCL 19-16-38, the Swan court did not rule that the witnesses must testify at the pre-trial hearing in order to find sufficient indicia of reliability. In Swan, the two minor victims were determined by the court to be incompetent to testify at trial, thereby requiring corroboration before the hearsay statements were admissible. Id. 790 P.2d at 614.

In this case, Buller did not request that these witnesses testify at the pre-trial hearing prior to the court's determination. Although the court found sufficient indicia of reliability, it made the final ruling on the admissibility of the hearsay statements contingent on whether I.B. testified at trial. The court found I.B. competent to testify and I.B. did testify at trial. Thus, corroboration was unnecessary. State v. Spaans, 455 N.W.2d 596, 598 (S.D.1990).

Buller also argues that the court, by failing to enter findings prior to admission of the hearsay statements, improperly relied upon the trial testimony of Inhofer and Curran when it prepared written findings following the trial. As indicated above, the court did make a determination on the record prior to trial that sufficient indicia of reliability existed within the evidence presented. Although no details were stated at that time, the subsequent written findings specify the factual support. Buller argues that these specifics were obtainable only from the testimony at trial. However, after reviewing the evidence available to the court at the pre-trial hearing, there is sufficient support, independent from the trial testimony, for the court's findings. Therefore, it has not been shown that the court abused its discretion in admitting I.B.'s out-of-court statements. Floody, 481 N.W.2d at 252.

2. CONFRONTATION.

Buller claims the court erred in allowing the hearsay testimony in violation of his Sixth Amendment right to confront witnesses against him. In McCafferty, basic confrontation clause analysis was set forth:

The framers of the constitution did not intend to exclude all hearsay. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). The policy behind the confrontation clause must give way to the public's interest in effective law enforcement, the probative necessities of particular cases and other policy considerations. 448 U.S. at 64, 100 S.Ct. at 2538, 65 L.Ed.2d at 606. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), controls when the declarant is available or testifies at trial. Prejudice to the defendant by admission of a child declarant's statements is reduced when the child is available for cross-examination. 8 J.JUV.L. 67 (1984).

[T]he Confrontation Clause does not require excluding from evidence the prior statements of a witness who concedes making the statements, and who may be asked to defend or otherwise explain the inconsistency between his prior and his present version of the events in question, thus opening himself to full cross-examination at trial as to both stories.

399 U.S. at 164, 90 S.Ct. at 1938, 26 L.Ed.2d at 501.

McCafferty, 356 N.W.2d at 162-63. However, the confrontation clause requires a finding of sufficient indicia of reliability for the hearsay statements even if the declarant is available for cross-examination. Roberts, 448 U.S. at 65, 100 S.Ct. at...