State v. Delehoy
| Decision Date | 22 May 2019 |
| Docket Number | 28682 |
| Citation | 929 N.W.2d 103 |
| Court | South Dakota Supreme Court |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Devon Anthony DELEHOY, Defendant and Appellant. |
MARTY J. JACKLEY, Attorney General, ERIN E. HANDKE, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
TIMOTHY J. BARNAUD, Belle Fourche, South Dakota, Attorney for defendant and appellant.
[¶1.] Devon Delehoy was charged with kidnapping, assaulting, and raping his girlfriend Kari Vaughn. During his trial, the jury heard a recording of a phone call between Vaughn and Delehoy over Delehoy’s objection. Vaughn’s friend, Chalsey Shepherd, had recorded the call on her cellphone. During the call, Delehoy incriminated himself. Shepherd played the recording for the jury. Unbeknownst to the circuit court or parties, the entire recording was not played. Delehoy moved for a judgment of acquittal, a mistrial, or a curative instruction. The court denied a mistrial or a judgment of acquittal but directed the jury to disregard the entire recording and Shepherd’s testimony. The jury found Delehoy guilty of simple assault and kidnapping and not guilty of rape or aggravated assault. Delehoy appeals. We affirm.
[¶2.] Delehoy and Vaughn began dating in January 2017. Their relationship was tumultuous from the beginning. On June 27, 2017, at approximately 2:00 a.m., Vaughn met Delehoy at Common Cents in Belle Fourche to pay for Delehoy’s fuel. After the two left Common Cents together, Delehoy drove Vaughn toward Spearfish, then back toward Belle Fourche, and then through Belle Fourche. Vaughn testified that she asked Delehoy where they were going, and he replied that he was "going to take [her] out here and kill [her]."
[¶3.] Ultimately, Delehoy stopped the vehicle, approximately thirty or forty miles outside of Belle Fourche. Vaughn testified that Delehoy placed his face close to hers and began screaming in her face and ear. He struck her on the back of the head, which caused her to go in and out of consciousness and caused her lip to bleed. She claimed she faked a seizure to stop the attack. The attack stopped, and Delehoy began driving, traveling north. But he stopped driving north and turned the vehicle around, driving back toward Belle Fourche. Vaughn testified that Delehoy played "chicken" with semi-trucks and nearly hit one head-on.
[¶4.] Delehoy again stopped his vehicle off the side of the road. He let Vaughn exit the vehicle to urinate. (She testified she did not believe she could run fast enough to escape.) When she reentered the vehicle, she noticed Delehoy had exposed his erect penis. Vaughn testified that she did whatever she could to appease him and removed her clothes. She further testified that after the parties engaged in sexual acts for thirty or forty minutes, Delehoy began crying and apologizing.
[¶5.] Vaughn testified that she was able to convince Delehoy to let her drive them to Belle Fourche. Once they reached her apartment, she asked him to let her prepare a bag of food for him to take to their homeless friend. Delehoy agreed and left with the food.
[¶6.] A few hours later, Vaughn went to the Crow Peak Motel (Motel) where she and her friend Shepherd worked. Vaughn told Shepherd what had happened, and according to Vaughn, Shepherd suggested Vaughn call Delehoy so the two could record his statements. Vaughn placed the call on speakerphone, and Shepherd used her phone to record the conversation between Vaughn and Delehoy. During the call, Delehoy made certain admissions.
[¶7.] After the call between Vaughn and Delehoy ended, Delehoy called the Motel pretending to be law enforcement, and the manager of the Motel contacted the local police. After an officer arrived, Vaughn relayed what had happened between her and Delehoy. Ultimately, the South Dakota Division of Criminal Investigation assigned Agent Elbert Andress to investigate.
[¶8.] Agent Andress met with Vaughn at the Spearfish Police Department. During the interview, the agent observed that Vaughn had a small cut on her lip and a bump on the back of her head. Agent Andress took photographs. Vaughn told Agent Andress that she did not believe Delehoy had raped her. She also told Agent Andress that she had photographs on her phone of her injuries from a previous incident between her and Delehoy and claimed she would deliver her phone to him so he could download everything. (She did not deliver her phone to Agent Andress; it was taken from her in an unrelated drug arrest.) After interviewing Vaughn, the agent arranged for a sexual assault kit to be completed with Vaughn at the hospital.
[¶9.] Agent Andress also interviewed Delehoy. He advised Delehoy of his Miranda rights and began with basic biographical questions. Delehoy admitted that he was with Vaughn and that the two had gone to Common Cents. He also admitted that they drove around Belle Fourche. Delehoy denied ever driving north through Belle Fourche but then admitted that they did drive north. He claimed that they were tired and pulled over. He admitted the two had sex. Delehoy also admitted that the two had argued and that he hit Vaughn. He, however, claimed he only swatted at her hand when she attempted to grab the wheel. Agent Andress recorded his interview with Delehoy, and it was later played for the jury.
[¶10.] Agent Andress also interviewed Shepherd. She informed the agent that she had recorded a phone conversation between Vaughn and Delehoy. Agent Andress recorded the recording while Shepherd played it from her phone. Agent Andress did not seize and duplicate (dump) Shepherd’s phone memory to obtain the original recording because he did not want to inconvenience her.
[¶11.] Agent Andress arrested Delehoy, and Delehoy was later indicted for two counts of second-degree rape, one count of second-degree kidnapping, one count of aggravated assault, and two counts of simple assault. All counts were charged as domestic violence crimes. The State filed a part II information alleging Delehoy to be a habitual offender. Delehoy pleaded not guilty, and a jury trial was held March 5–8, 2018.
[¶12.] During the jury trial, Delehoy objected to the State’s attempt to admit Agent Andress’s recording of Shepherd’s recording, asserting the evidence lacked sufficient foundation because it was a recording of a recording. The court ruled the evidence inadmissible because there was not "a proper foundation for the recording." During Shepherd’s testimony, the State again attempted to establish a foundation for the admission of Agent Andress’s recording of Shepherd’s recording. Delehoy objected based on hearsay and lack of foundation. The court refused to admit Agent Andress’s recording of Shepherd’s recording based on a lack of adequate foundation.
[¶13.] However, during a recess, the State learned that Shepherd had the original recording stored in her email account. The State offered Shepherd’s original recording for admission. Delehoy raised the same objections he had raised against admission of Agent Andress’s recording of Shepherd’s recording. Delehoy further objected because, in his view, the State could have obtained and had a duty to obtain the recording from Shepherd prior to trial. The court overruled Delehoy’s objections and allowed Shepherd to play the recording for the jury.
[¶14.] When the State, via Agent Andress, reduced the emailed recording to a compact disk so to make it part of the record, he observed that the time stamp did not match the time stamp played for the jury. In particular, the time stamp played for the jury was thirty minutes and the recording was forty minutes. The un-played portion contained statements by Shepherd and Vaughn related to their methamphetamine use. Agent Andress informed the State, and the State informed Delehoy’s attorney and the court. Delehoy moved for a judgment of acquittal, for a mistrial, or a curative instruction. Delehoy highlighted that he had made multiple objections related to the admission of the recording based on foundation. He further emphasized that the State could have obtained the original recording prior to trial but did not. In Delehoy’s view, admitting the recording denied him due process.
[¶15.] Delehoy also argued Brady violations occurred. He asserted that he relied "on the State to get to [him] this exculpatory and impeachment evidence." He highlighted that Shepherd used a nonworking phone to record the call; yet, Agent Andress "let her keep it for convenience[.]" He further claimed that Vaughn committed perjury when she testified about whether they used condoms and how she turned her phone over to law enforcement. Delehoy argued he could "not receive a fair trial if this is what is going on."
[¶16.] The court expressed it was The court also observed that The court took under advisement Delehoy’s motion for a judgment of acquittal and request for a mistrial. It, however, struck Shepherd’s testimony and the recording. When the jury returned, the court instructed it to disregard Shepherd’s testimony and the recording.
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