State v. Devall, No. 17559

CourtSupreme Court of South Dakota
Writing for the CourtSABERS; AMUNDSON; HENDERSON; MILLER, C.J., and WUEST; HENDERSON; MILLER; WUEST
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Timothy J. DEVALL, Defendant and Appellant.
Docket NumberNo. 17559
Decision Date03 September 1992

Page 371

489 N.W.2d 371
STATE of South Dakota, Plaintiff and Appellee,
v.
Timothy J. DEVALL, Defendant and Appellant.
No. 17559.
Supreme Court of South Dakota.
Argued March 17, 1992.
Decided July 29, 1992.
Rehearing Denied Sept. 3, 1992.

Mark Barnett, Atty. Gen., Sherri Sundem Wald, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

John P. Blackburn and Laura R. Mitchell of Blackburn & Stevens, Yankton, for defendant and appellant.

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SABERS, Justice.

Devall claims his rape conviction was based on inadmissible hearsay testimony. We agree. Devall also claims character evidence was improperly admitted. We do not agree.

FACTS

During the 1990 homecoming celebration at the University of South Dakota (U.S.D.), Tim Devall (Devall), a former U.S.D. student, saw T.L., a college acquaintance of three years at a bar in Vermillion, South Dakota. She was celebrating Dakota Days with friends. It was after midnight when they met. Both had been drinking prior to the chance meeting.

Devall and T.L. talked for about twenty minutes at the bar. During this conversation, they discovered they both intended to attend a party at the Lambda Chi Alpha fraternity. They left the bar and went to another Vermillion bar, the Charcoal Lounge (Char Bar), so that she could give her car keys to her friend, Melissa Phillips (Phillips). Prior to leaving the first bar, Devall kissed T.L. and they held hands on the way to the Char Bar. Todd Ethier accompanied them to the Char Bar.

Devall and T.L. stayed at the Char Bar for a short time before leaving for the Lambda Chi house. Todd Ethier remained at the Char Bar. After walking for about ten minutes, Devall kissed T.L. She kissed him back. Devall unbuttoned her pants and attempted to unzip them. She said "no," that she didn't want to do that and refastened her pants. Devall kissed her again and unzipped her pants. Despite more protests, Devall yanked her pants down to her ankles before she was able to redo them. Devall pushed her to the ground and jumped on top of her. He pinned her arms back and she was unable to kick because her pants were around her ankles. However, she continued to struggle and tell Devall "no." Devall told her that if she did not have sex with him, he would tell her friends that she did. Devall then spread her knees and thighs apart and forcefully raped her for approximately one minute. T.L.'s testimony was that she believed Devall stopped due to a tampon in her vagina.

When Devall stopped, he got up and instructed her to pull up her pants. He grabbed her wrist and began to pull her towards the apartment of his friend, Jeff Johnson. As they reached the apartment building, T.L. tripped and fell over a mound of dirt. As a result of this fall, she cut her hand and bruised and scraped her ankle. Believing Devall would hurt her more, she did not cry out or scream for help during the rape or enroute to Johnson's apartment.

Johnson, Sue Chopskie (Chopskie) and another woman were present when T.L. and Devall entered the apartment. Despite her prior acquaintance with Johnson and Chopskie, T.L. did not tell them about the rape or acknowledge their presence while at the apartment. She later testified that she was distraught and did not feel that Devall's friends would help her. T.L. merely asked for some hydrogen peroxide to clean her hand. Johnson told her that he did not have any, so T.L. went to the bathroom to wash her hand. Upon leaving the bathroom, T.L. went to one of the bedrooms to lie down. Johnson went in and asked her to leave that room because she had dirt and leaves on her back. T.L. went to another bedroom and laid down. After half an hour, Devall told her to leave. He grabbed her arm, pulled her to the door and she left.

T.L. went to the Lambda Chi house where she met her friend Jill Groseclose (Groseclose). It was around 3:00 a.m. Crying and shaking, she told Groseclose what had happened. T.L. then asked if Melissa Phillips (Phillips) or Mike Koch (Koch) were there. Groseclose told her to lie down and she would look for them. T.L. laid down and fell asleep. Phillips woke her later that morning at 9:00 a.m. T.L. gave Phillips a ride to work. Phillips asked her why her clothes were dirty, but T.L. only said "something bad happened" the previous night and she would explain later. T.L. went home to bed and was later awakened by Katie Feuerstein (Feuerstein). She told Feuerstein that she had been "assaulted"

Page 374

by Devall. Feuerstein urged her to go to the police and to the hospital. T.L. refused because she did not believe they would treat her fairly.

Later that morning, she and Feuerstein went to the Kappa Alpha Theta sorority house to meet Shelly Aasen (Aasen). T.L. told Aasen that she had been raped by Devall. She and Feuerstein then went to the Char Bar to meet with Phillips and Koch. Phillips again asked T.L. what had happened and T.L. then told her that Devall had raped her.

That afternoon, T.L. told Koch that Devall had raped her. She also explained to Feuerstein that the "assault" by Devall had been a rape. Koch and Phillips encouraged her to report the rape to the police. That evening, she reported the incident to the Vermillion Police Department. Detectives Larry Gray (Gray) and Ray Hoffman (Hoffman) brought her to the hospital and investigated the report.

Gray met with Devall the next day, October 21, 1990. Devall waived his Miranda rights and told Gray that he and T.L. did not have sex at Johnson's apartment the morning of October 20. Gray told Devall that he was investigating the reported rape of T.L. which occurred prior to arriving at Johnson's apartment. Devall said that any contact which occurred was consensual and again denied having sex with T.L. at Johnson's apartment. Devall prepared a written statement to this effect. On October 25, 1990, Devall became upset when he found out the case had been turned over to the state's attorney's office. Devall then stated to Gray that he and T.L. did have sex at Johnson's apartment.

Devall was indicted on one count of first-degree rape. The jury found him guilty. Devall appeals, claiming the court erred in allowing six witnesses to testify to hearsay statements made by T.L. and in allowing three rebuttal witnesses to testify to Devall's reputation for truthfulness.

ADMISSIBILITY OF HEARSAY EVIDENCE.

Devall claims the court erred in allowing six witnesses to testify to hearsay statements by T.L. 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) (quoting State v. Bartlett, 411 N.W.2d 411, 414 (S.D.1987)); see also State v. Floody, 481 N.W.2d 242, 250 (S.D.1992). Devall claims that the testimony of Groseclose, Aasen, Phillips, Koch, Kristie Rausch 1 and Feuerstein was inadmissible hearsay. He claims he was unfairly prejudiced because the trial court's ruling turned a matter of credibility between himself and T.L. into one between himself and T.L. and six other witnesses who were merely repeating T.L.'s version of the facts. State claims the testimony of these witnesses was admissible as excited utterances, to prove the fact complaint was made, or as prior consistent statements.

1. Excited Utterance.

State argues that the testimony of these witnesses is admissible under the excited utterance exception, SDCL 19-16-6:

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition, is not excluded by Sec. 19-16-4, even though the declarant is available as a witness.

T.L. told Groseclose what happened to her within an hour after leaving Devall. T.L. did not talk to the others until after waking up later that morning or after a later nap. Clearly her comments to the others were more a product of reflective thought than an excited reaction to the incident. This is illustrated by T.L.'s first comments to Phillips

Page 375

that "something bad happened" and that T.L. would tell her the details later. Therefore, there is no showing that these later statements were made while T.L. was under the stress of excitement caused by the event or condition. Although the statements to Groseclose may be admissible as an excited utterance, the statement to Feuerstein, and those to the other four witnesses, were not. SDCL 19-16-4 and 6. See Floody, 481 N.W.2d at 250.

2. Fact of Complaint.

Generally, the testimony of a witness cannot be bolstered or supported by showing that a witness made similar statements out of court in harmony with her testimony on the stand. M. Graham, Handbook of Federal Evidence Sec. 801.12, at 760 (3rd ed. 1991). There is an exception to this rule in rape cases which permits testimony to prove complaint was made.

'Since it is natural for a woman or child to complain to someone responsible for her welfare of an outrage of this character, the failure to complain could be urged by the defense to contradict or discredit her testimony. Because of this[,] cases generally allow the prosecution to forestall such discrediting, or any inference derived from failure to complain, by admitting testimony of the fact of the complaint, but not the details.'

State v. Thorpe, 162 N.W.2d 216, 218 (S.D.1968) (quoting J. Wigmore, 4 Wigmore on Evidence, Secs. 1134-1140 at 297-314.)). See also State v. Twyford, 186 N.W.2d 545, 548 (S.D.1971); State v. Schultz, 41 S.D. 184, 169 N.W. 547, 549 (1918).

T]he testimony of third parties is admissible to prove the fact that complaint was made, but the rule allows no further proof than that fact and possibly proof of what was said as to the name of the guilty party. 'It does not permit testimony of the third party relating what the...

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17 practice notes
  • State v. Anderson, No. 20192.
    • United States
    • Supreme Court of South Dakota
    • March 29, 2000
    ...time and spontaneity requirements when statements are made by very young children." Orelup II, 520 N.W.2d at 902 (citing State v. Devall, 489 N.W.2d 371, 378 (S.D.1992) (Henderson, J. concurring); People ex rel. H.L., 386 N.W.2d 495 (S.D. 1986) (ruling hearsay statements admissible where ch......
  • State v. Asmussen, No. 23477.
    • United States
    • Supreme Court of South Dakota
    • April 12, 2006
    ...472, 473 (quoting In re A.R.P., 519 N.W.2d 56, 62 (S.D.1994) (quoting State v. Moriarty, 501 N.W.2d 352, 355 (S.D.1993); State v. Devall, 489 N.W.2d 371, 374 (SD.1992))). "In applying the abuse of discretion standard, `we do not determine whether we would have made a like decision, only whe......
  • State Of South Dakota v. Ralios, No. 25251.
    • United States
    • Supreme Court of South Dakota
    • June 9, 2010
    ...State v. Henry, 1996 SD 108, ¶ 10, 554 N.W.2d 472, 473 (quoting State v. Moriarty, 501 N.W.2d 352, 355 (S.D.1993); State v. Devall, 489 N.W.2d 371, 374 (S.D.1992))). See State v. Williams, 2008 SD 29, ¶ 13, 748 N.W.2d 435, 440. Any evidentiary errors by the trial court must be prejudicial i......
  • Pietrzak v. Schroeder, No. 24729.
    • United States
    • Supreme Court of South Dakota
    • January 7, 2009
    ...472, 473 (quoting In re A.R.P., 519 N.W.2d 56, 62 (S.D.1994) (quoting State v. Moriarty, 501 N.W.2d 352, 355 (S.D.1993); State v. Devall, 489 N.W.2d 371, 374 (S.D.1992))). An abuse of discretion occurs in a child custody proceeding when the trial court's review of the traditional factors be......
  • Request a trial to view additional results
17 cases
  • State v. Anderson, No. 20192.
    • United States
    • Supreme Court of South Dakota
    • March 29, 2000
    ...time and spontaneity requirements when statements are made by very young children." Orelup II, 520 N.W.2d at 902 (citing State v. Devall, 489 N.W.2d 371, 378 (S.D.1992) (Henderson, J. concurring); People ex rel. H.L., 386 N.W.2d 495 (S.D. 1986) (ruling hearsay statements admissible where ch......
  • State v. Asmussen, No. 23477.
    • United States
    • Supreme Court of South Dakota
    • April 12, 2006
    ...472, 473 (quoting In re A.R.P., 519 N.W.2d 56, 62 (S.D.1994) (quoting State v. Moriarty, 501 N.W.2d 352, 355 (S.D.1993); State v. Devall, 489 N.W.2d 371, 374 (SD.1992))). "In applying the abuse of discretion standard, `we do not determine whether we would have made a like decision, only whe......
  • State Of South Dakota v. Ralios, No. 25251.
    • United States
    • Supreme Court of South Dakota
    • June 9, 2010
    ...State v. Henry, 1996 SD 108, ¶ 10, 554 N.W.2d 472, 473 (quoting State v. Moriarty, 501 N.W.2d 352, 355 (S.D.1993); State v. Devall, 489 N.W.2d 371, 374 (S.D.1992))). See State v. Williams, 2008 SD 29, ¶ 13, 748 N.W.2d 435, 440. Any evidentiary errors by the trial court must be prejudicial i......
  • Pietrzak v. Schroeder, No. 24729.
    • United States
    • Supreme Court of South Dakota
    • January 7, 2009
    ...472, 473 (quoting In re A.R.P., 519 N.W.2d 56, 62 (S.D.1994) (quoting State v. Moriarty, 501 N.W.2d 352, 355 (S.D.1993); State v. Devall, 489 N.W.2d 371, 374 (S.D.1992))). An abuse of discretion occurs in a child custody proceeding when the trial court's review of the traditional factors be......
  • Request a trial to view additional results

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