State v. Cady, 15769

• Decision Date: 20 April 1988
• Docket Number: No. 15769,15769
• Citation: 422 N.W.2d 828
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Daniel C. CADY, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 828

422 N.W.2d 828

STATE of South Dakota, Plaintiff and Appellee, v. Daniel C. CADY, Defendant and Appellant.

No. 15769.

Supreme Court of South Dakota.

Argued Feb. 16, 1988.

Decided April 20, 1988.

Thomas Harmon, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief.

Scott D. McGregor of Finch, Viken, Viken & Pechota, Rapid City, for defendant and appellant.

MILLER, Justice.

This is a criminal appeal ¹ from a jury verdict of guilty and a subsequent judgment of conviction for first-degree rape (SDCL 22-22-1(1)), first-degree burglary (SDCL 22-32-1(2)), and aggravated assault (SDCL 22-18-1.1(5)). We affirm.

FACTS

Daniel Charles Cady (defendant) entered a home without permission of the occupants on the pretext of using the telephone. However, defendant took the mother and her five-year-old child upstairs at knife point, put the child in her room and shut the door. Defendant then took the mother to her room and performed various sexual acts against her. The child, hearing her mother's screams, took the screen off the window, jumped to the ground, and ran to her uncle's neighboring apartment for help. The victim's brother came to the house and upon entering the bedroom saw the naked defendant with a knife, which was gestured at brother. Brother attempted to call the police, then chased the defendant and helped the police locate him.

ISSUE I

WHETHER THE TRIAL COURT ERRED IN ALLOWING THE TESTIMONY OF THE MINOR CHILD TO BE PRESENTED TO THE JURY.

Defendant argues that the minor child witness (child) was not competent to testify and that her testimony was irrelevant. Specifically, defendant claims irrelevant the testimony that (1) the child jumped out of a window and ran for help and (2) that she was subsequently taken to a hospital.

A determination of whether a witness is competent to testify is within the trial court's discretion, and thus will be reversed only upon a showing of abuse of such discretion. State v. Lufkins, 381 N.W.2d 263 (S.D.1986); State v. Phipps, 318 N.W.2d 128 (S.D.1982). In State v. Lutheran, 76 S.D. 561, 82 N.W.2d 507 (1957), a nine-year-old girl was found competent to testify. See also State v. Southmayd, 37 S.D. 375, 158 N.W. 404 (1916), wherein a six-year-old girl was allowed to testify. Also, in Lutheran, the court stated that "[t]he credibility of the witnesses, and the weight and value of their testimony, are matters within the exclusive province of the jury." 76 S.D. at 564, 82 N.W.2d at 509.

Before child's testimony was received, the trial court conducted an in-camera hearing to determine whether she was competent to testify. The court concluded that she understood the importance of speaking the truth, appreciated the seriousness of the oath, and understood that the oath required that she tell the truth.

Here, child demonstrated that she had the mental capability to observe, recollect, and communicate. Thus, the court did not abuse its discretion in deciding that she was competent to testify. The jury was appropriately allowed to assess her credibility.

Defendant cites State v. Goodnow, 41 S.D. 391, 170 N.W. 661 (1919); 22A C.J.S. Criminal Law Sec. 600 (1961), and argues that child's testimony was irrelevant because it did not relate to the offenses charged. Defendant claims child's testimony merely served to create sympathy in the jury and prejudice against him and thus it should have been excluded.

"Balancing probative value of evidence against risk of unfair prejudice is a delicate function of the trial judge in the exercise of discretion." State v. Wedemann, 339 N.W.2d 112, 115 (S.D.1983); SDCL 19-12-3. "The trial judge has wide discretion in determining the prejudicial effect of a witness' statements, and it is only when this discretion is clearly abused that this court will overturn a decision." State v. Farley, 290 N.W.2d 491, 494 (S.D.1980); see generally Shamburger v. Behrens, 380 N.W.2d 659 (S.D.1986).

Prior to trial, the court ruled that it would allow the testimony but would carefully watch to make sure the fact that child jumped out the window was not used excessively to distract the jury. Also, the court ruled that it would allow, to some extent, the testimony that she went to the hospital. In fact, at trial, this testimony was not used excessively. We cannot conclude that the prejudicial effect outweighed the probative value as child's testimony demonstrated her ability to recall and recount. As a victim-witness, her testimony was relevant.

ISSUE II

WHETHER THE TRIAL COURT ERRED IN ITS WRITTEN SENTENCE OF DEFENDANT.

Defendant claims that the court's written judgment imposed an additional eighty-five-year sentence not handed down orally by the trial court. State argues that the oral sentences were ambiguous and that the written judgment merely clarifies the ambiguity.

It is settled law in this state that the oral sentence is the only sentence and the written sentence must conform to it. State v. Ford, 328 N.W.2d 263 (S.D.1982). See also United States v. Villano, 816 F.2d 1448 (10th Cir.1987); United States v. Pagan, 785 F.2d 378 (2d Cir.1986), cert. denied --- U.S. ----, 107 S.Ct. 667, 93 L.Ed.2d 719 (1986); United States v. Glass, 720 F.2d 21 (8th Cir.1983), cert. denied 474 U.S. 856, 106 S.Ct. 161, 88 L.Ed.2d 134 (1985); United States v. McDonald, 672 F.2d 864 (11th Cir.1982) (per curiam); Schurmann v. United States, 658 F.2d 389 (5th Cir.1981); United States v. Lewis, 626 F.2d 940 (D.C.Cir.1980); United States v. Munoz-Dela Rosa, 495 F.2d 253 (9th Cir.1974) (per curiam); Scott v. United States, 434 F.2d 11 (5th Cir.1970); United States v. Morse, 344 F.2d 27 (4th Cir.1965); Payne v. Madigan, 274 F.2d 702 (9th Cir.1960), aff'd by an equally divided court, 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853 (1961).

However, we have not previously had an opportunity to determine what occurs when the oral sentence is ambiguous and unclear. As we noted in Ford, supra, we must look to federal authority since our rules of criminal procedure (SDCL ch. 23A) were adopted from the federal rules of criminal procedure.

It seems to be uniformly held in the federal courts that when an orally pronounced sentence is ambiguous, the written judgment may be relied upon to clarify the ambiguity. United States v. Munoz-Dela Rosa, supra, citing Boyd v. Archer, 42 F.2d 43 (9th Cir.1930); Payne, supra; Young v. United States, 274 F.2d 698 (8th Cir.1960); see also Villano, supra, citing Baca v. United States, 383 F.2d 154 (10th Cir.1967), cert. denied, 390 U.S. 929, 88 S.Ct. 868, 19 L.Ed.2d 994 (1968); Walden v. Hudspeth, 115 F.2d 558 (10th Cir.1940).

As stated in Villano, 816 F.2d at 1452:

... the true function of the written document is to help clarify an ambiguous oral sentence by providing evidence of what was stated.

The Villano court observed that an ambiguity may take many forms. It stated:

The following include some of the circumstances when an ambiguity may exist:

(1) when the words used have more than one meaning;

(2) when otherwise unambiguous words are used in an unusual way;

(3) the extent of the sentence cannot be ascertained from the language used; or

(4) the plain meaning of the words used lead to an irrational or absurd result.

816 F.2d at 1453 fn. 6.

We therefore must first ascertain whether the trial court's oral pronouncements were ambiguous.

The sentencing hearing transcript of the April 3, 1987, sentencing reveals that the following occurred:

(BY THE TRIAL COURT): Daniel Charles Cady, upon your conviction of rape in the first degree, burglary in the first degree, and aggravated assault, upon your conviction of being an habitual offender, I sentence you to 85 years in the State Penitentiary. The sentences shall run concurrently, and I remand you to the custody of the sheriff for transportation to the penitentiary, and I also give you credit for all the time that you have served in jail and any sentencing in this case....

(STATE'S ATTORNEY): Before we close, I have one question for you. The way the sentence was pronounced its even though the sentences are to run concurrent it would be my belief from my knowledge of the law that the 85 year sentence would be a valid sentence for count one which he faces up to life on, but not valid on counts two and count three, impose whatever the number of years would be--count one and two could be 85 years, even though the most he could face would be up to 25 years.

(THE COURT): The habitual offender overrides the other three counts and so actually he is being sentenced as a habitual offender and so there is no need to pronounce a sentence on the other separate felonies.

A further hearing was held before the court on April 6, 1987, at which the following occurred:

THE COURT: This is further proceedings in the matter of the State of South Dakota versus Daniel Charles Cady. Mr. Groff [the state's attorney] is present and Mr. Cady is present with Mr. Stonefield [defendant's attorney]. After the sentencing last week, Mr. Groff contacted me and requested that I make a clarification of the sentence in this matter since one of the counts for which Mr. Cady was found guilty of has a maximum penalty of 25 years. For the purpose of the record at this time I will clarify my sentence. I am sentencing Mr. Cady to 85 years as an habitual offender to the extent that the law [requires] that I pronounce a sentence on the other offenses I sentence Mr. Cady to 85 years on Count 1 and Count 1, that is the rape, and burglary counts, and sentenced him to 25 years on the aggravated assault count, which is Count 3 and order that those run concurrently. I think I previously ordered that at sentencing. Does that clarify it?

MR. GROFF: Yes. I was concerned I didn't know who the [appellate] counsel might be and certainly with the record from the sentencing carried to the judgment, which I believe the Court has signed, it would create difficulty for that attorney to understand, much less...