State v. Dace

Decision Date27 April 1983
Docket NumberNo. 13854,13854
Citation333 N.W.2d 812
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Troy DACE, Defendant and Appellant.
CourtSouth Dakota Supreme Court

The crimes occurred on May 13, 1981, and involved J.K., a sixteen-year-old boy. Because of family troubles, J.K. had left home. He attended a rock concert that night in Rapid City where he met appellant. He accompanied Mr. Dace to his home in Spearfish, South Dakota, where the offenses occurred.

At his arraignment, the trial court painstakingly, in understandable language, advised the defendant of his Fifth Amendment rights including his right of waiver. The court canvassed with him to make certain he understood.

Before trial, appellant gave notice of an alibi defense. He voluntarily took the stand in his own behalf and testified that he had never seen J.K. before in his life and that he lived in a trailer court at Spearfish. He denied that he was in Rapid City on the evening of May 13, 1981. The transcript reveals that after a few questions on cross-examination, this colloquy occurred between court and counsel.

MR. WOODRUFF: Excuse me, Your Honor, beyond the scope of direct.

THE COURT: Gentlemen, do you want to approach the bench please.

(Off the record discussion held at the bench between counsel and the Court.)

MR. TELLINGHUISEN: Your Honor, at this time, the State would call Mr. Dace as our own witness.

THE COURT: You may proceed.



called as a witness by the State, having been previously sworn, was examined and testified as follows[.]

Appellant's testimony was repeatedly interrupted with off-the-record discussions at the bench. The judge finally recessed court and the problem was further discussed in chambers. The prosecutor said he proposed to ask the defendant questions about other similar homosexual incidents contending they were relevant to show intent and to establish identity, plan or scheme.

Defense counsel countered that Mr. Dace's sexual preferences were irrelevant to any specific criminal intent, motive, scheme, plan or identity since homosexuality is not a crime and that the prejudicial effect of such questioning would outweigh its probative value. Defense counsel was also concerned about the similarity and remoteness of each claimed incident. The court refused to allow questioning concerning one incident, but allowed the others. When court convened, the record shows:

THE COURT: Mr. Dace, do you want to resume the witness stand?

(Defendant resumes witness stand).

THE COURT: Yes, you may proceed.

Following the defendant's testimony, the court instructed defendant to call his next witness. The jury was instructed that the evidence about to be introduced of other acts was admissible solely to show specific intent, motive, plan, scheme, intent to commit the alleged rape, or to show the identity of the defendant as the person who committed the offenses charged. Instruction No. 32 was similar.

The transcript reveals that while defendant objected to some of the questions asked, he indicated no reluctance to testify for self-incrimination reasons. Appellant concedes he partially waived his right not to incriminate himself but claims his testimony on his own behalf related only to preliminary matters, under SDCL 19-9-10, 3 and to credibility, under SDCL 19-14-11. 4 Appellant's testimony on his own behalf clearly attempted to establish his defense of mistaken identification and alibi. It therefore went directly to the issue of his guilt or innocence and was not confined to preliminary matters or credibility.

Appellant contends the testimony of other homosexual acts was prejudicial. The trial court ruled that testimony of previous similar incidents was admissible pursuant to SDCL 19-12-5. 5 Under that statute, evidence of other crimes, wrongs or acts is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Such other incidents are material if they show a plan or system of criminal action and acts constituting continuous offenses. State v. Johnson, 316 N.W.2d 652 (S.D.1982). In Johnson, Chief Justice Wollman, writing for this court quoted with approval:

Since identity, like intent, is usually an ultimate issue in the case, there is no need to look beyond the inference to identity in determining the relevance of other crimes, wrongs, or acts offered under this exception. Often, however, the inference from the other act to identity may involve an intermediate inference to motive, plan, knowledge, or opportunity and many of the cases dealing with evidence of other crimes offered for this purpose may be found under other exceptions. Indeed, McCormick says that identity is usually proved by one of these intermediate inferences....

The exception in Rule 404(b) [SDCL 19-12-5] for use of other crimes evidence to prove identity will probably be used most often to encompass another exception in McCormick's list that does not appear elsewhere in the Rule: "[t]o prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused." This exception, often referred to as the "handiwork or signature exception" or the exception for "modus operandi" is, however, only one method by which other crimes can prove identity....

316 N.W.2d at 654, quoting from 22 C. Wright & K. Graham, Federal Practice and Procedure § 5246, pp. 511-12 (1978) (footnotes omitted) (quoting, inter alia, McCormick, Evidence, § 190, p. 449 (Cleary ed. 1972)). Having determined that evidence of similar incidents had probative value, the trial court, in the exercise of sound discretion, was obliged to balance its probative value against the risk of unfair prejudice. State v. Brown, 285 N.W.2d 843 (S.D.1979). Our review is whether there has been an abuse of that discretion. State v. Houghton, 272 N.W.2d 788 (S.D.1978). We cannot conclude from the record that the trial court abused its discretion.

Appellant particularly complains of the testimony concerning a homosexual act with a consenting adult since it was not evidence of any crime. SDCL 19-12-5 does not require that the other acts be criminal or even wrongful. In Johnson, supra, at 654, we said "[a]ny fact that tends to connect an accused with the commission of a crime is relevant and has probative value." The defendant was not charged with a sex offense applicable only to minors. Nevertheless, nonconsent is an essential element of attempted rape. (SDCL 22-22-1(1)). Furthermore, the challenged evidence did not show an identifying propensity toward underage males. Accordingly, we agree that evidence of an incident with an adult, lacking nonconsent, was so dissimilar as to render it inadmissible. Was the admittance of this evidence prejudicial error? As appellant argued, the inadmissible act only indicated his sexual preference. The admissible similar incidents all clearly included and established that preference. Evidence of the challenged act was therefore cumulative as to the defendant's homosexuality. Prejudicial error is that which in all probability must have produced some effect upon the final result. State v. Rosales, 302 N.W.2d 804 (S.D.1981). Any error which does not affect substantial rights is harmless. SDCL 23A-44-14. 6

Appellant next argues that when he took the witness stand the court should have again sua sponte advised him of his Fifth Amendment rights pursuant to SDCL 19-2-8. 7 This statute expressly makes an exception where the defendant voluntarily testifies in his own behalf. Unlike subpoenaed witnesses, the accused can only be a witness if he knowingly and willingly elects to testify. Also, unlike other witnesses he has already been carefully advised of his Fifth Amendment rights by the court. Additionally, he likely has the benefit of counsel throughout the trial. Notwithstanding the statutory exception, however, if the accused were acting pro se, or appeared not to fully grasp the importance of what he was about to do, the court would have been well advised to remind him of his right against self-incrimination.

We turn next to the most complex issue. Appellant argues that his Fifth Amendment rights were violated because 1) the questions of the State exceeded Fifth Amendment scope and 2) trial court allowed the State to call him as its witness which appellant claims was plain error (SDCL 19-9-6 and 23A-44-15 )8 even though his counsel did not object.

We have recognized the plain error rule, but only in exceptional cases and then it must be applied cautiously. It does not encompass every error that occurs at trial. State v. Brammer, 304 N.W.2d 111 (S.D.1981); Kramer v. United States, 408 F.2d 837 (8th Cir.1969); United States v. Krasn, 614 F.2d 1229 (9th Cir.1980); United States v. Castenada, 555 F.2d 605 (7th Cir.1977). It is only those errors which are both obvious and substantial which rise to the level of plain error. United States v. Jackson, 542 F.2d 403 (7th Cir.1976); United States v. Cowden, 545 F.2d 257 (1st Cir.1976). We will refer to this later.

The record indicates the court and counsel treated all of the defendant's testimony as a continuing appearance. It further appears the procedure followed was an attempt to operate within SDCL 19-14-19:

Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

The source of SDCL 19-14-19 is rule 611(b) of the Federal Rules of Evidence. To better apply this rule, we review its background. In 1840 Justice Story, speaking for the United States Supreme Court, announced what came to be known as the restrictive rule.

[T]he broader principle, now well established, although sometimes lost sight of in our loose practice at trials, that a party has no right to...

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