State v. Grey Owl, 12927
| Decision Date | 03 September 1980 |
| Docket Number | No. 12927,12927 |
| Citation | 295 N.W.2d 748 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Melvin GREY OWL, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Leann Larson Finke, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
Max A. Gors of Maher & Gors, Pierre, for defendant and appellant.
Melvin Grey Owl (appellant) was convicted by a Hughes County jury on September 24, 1979, of attempted rape and attempted incest. Grey Owl appeals from the judgment of conviction. We reverse.
Victoria Walking Bull, the victim, age 25, is the niece of appellant. Evidence at trial established that since her father's death, she had become close to appellant. She visited with appellant, wrote to him, and occasionally resided at his home and appellant occasionally resided at her home. The victim is married, has four children between the ages of seven years and four months, and lives in Pierre, South Dakota.
On August 17, 1979, appellant spent the night at the victim's trailer home in Pierre en route from Ft. Thompson, South Dakota, to Bismarck, North Dakota. He left early on Saturday, August 18, 1979, for Bismarck and returned to the victim's home between 6:30 and 7:00 p. m. that evening with his children, ages four and two. The victim gave appellant a grocery list, which he went out and filled, returning to the trailer at or about 9:30 or 10:00 p. m.
According to the victim, she prepared food and everyone watched television until midnight. The victim further testified that at that time, she and her four children retired to the front bedroom and living room and the appellant and his two children slept in the back bedroom. The victim testified According to the victim, she awoke to the smell of "Old Spice" hair oil which she knew to be appellant's favorite brand. The victim testified that she was lying on her back on the bed in the front bedroom and appellant was standing over her trying to part her legs and imploring her to accept his advances. Appellant and the victim were then both naked, according to the victim. The victim testified that she struggled with appellant, escaped, and fled. The victim further testified that she picked up her clothes as she ran down the hall, went out of the trailer, and quickly dressed.
that she and her children went to bed without removing or changing their clothes that they had worn that day. The victim testified that she was wearing summer shorts and shirt.
Ms. Walking Bull testified that she then ran to the home of her cousin, Arlette All Around, who lived a short distance from her. The victim informed Ms. All Around and her boyfriend, Ronnie McBride, of the events which had just transpired and requested their assistance in expelling appellant from her trailer. The three of them arrived at the victim's trailer within eight minutes. There was no sign of appellant, his children, his belongings, or his car. The trailer was locked and the victim's daughter opened the door from the inside to permit the victim and her two companions to enter. After surveying the premises, the victim, her daughter, Ms. All Around, and McBride went to the Pierre police department. They arrived at approximately 1:00 a. m. on Sunday, August 19, 1979.
The police dispatcher called Patrolman Sichard Bittner who, in turn, requested the assistance of Detective Charles G. Swanson. All three of these officers testified that the victim was distraught and upset. Detective Swanson obtained Ms. Walking Bull's statement and took immediate steps to create a state case in an attempt to locate appellant. Upon returning to her trailer home, the victim was apprehensive to enter due to her fear that appellant might have returned. Being afraid to enter the trailer, the victim urged McBride to call the police to check the premises. At approximately 3:00 a. m., Officer Mike Sines of the Pierre police department arrived and inspected the interior of the trailer to make sure appellant was not there. Officer Sines testified that the bed in the back bedroom appeared to have been slept in and that the general condition of the house was neat and clean.
Appellant pleaded an alibi defense. He maintained that at the time of the purported attempted rape, he was en-route to Stephan, South Dakota, where he and his children spent the night with his sister, Thelma Grey Owl. Appellant testified that he arrived at the victim's trailer about 7:00 p. m., Friday, August 17, 1979, on his way to Bismarck to visit his children. Appellant testified that, at the victim's urging, he spent the night at her trailer. He left at approximately 6:00 a. m., the following morning, Saturday, August 18, 1979. Further, appellant testified that he returned to the victim's trailer with his two children that same evening at approximately 6:00 p. m. According to appellant, the victim wanted him to loan her money to enable her to purchase an automobile. Appellant refused to lend the victim any money. Appellant stated that he left the trailer and purchased some groceries about 7:00 p. m. He then visited two other nieces in Ft. Pierre. Appellant stated he returned with the groceries to the victim's trailer at approximately 9:00 p. m. Appellant stated that the victim continued to annoy him about borrowing money until appellant and his children finally left the trailer about 10:00 p. m.
Appellant testified that after stopping for gas in Pierre, he drove to Stephan, South Dakota, where he and his children spent the night with his sister. Stephan is approximately 46 miles from Pierre. Ms. Grey Owl testified that appellant arrived at her home at 11:00 p. m. the night of August 18, 1979, and spent the entire night there. According to appellant and his sister, both of them, together with their children, went to Pierre the following morning, Sunday, to attend a rummage sale and a picnic.
A few days later, Alexis Tiona, appellant's niece, called the victim on the telephone and asked if it was true that appellant was wanted for rape and incest. The victim replied that it was not true and that appellant had not tried to rape her. The victim testified at trial that she did, in fact, deny to Ms. Tiona that the incident between her and appellant had taken place. The victim's reason for the denial was that she did not want anyone else to know of the incident.
Appellant requested the trial court to instruct the jury on the effect of impeachment of a witness by a prior inconsistent statement. The requested instruction was refused. The jury found appellant guilty of the offenses charged and this appeal stems from that verdict.
Did the trial court err in refusing appellant's requested instruction on impeachment of a witness by a prior inconsistent statement?
Appellant argues that the trial court committed reversible error by not granting his request for a jury instruction regarding the impeachment of the victim's testimony by a prior inconsistent statement. We agree. The evidence supporting appellant's conviction is based upon the testimony of the victim and others who observed the victim subsequent to the alleged attempted rape and incest. Aside from the victim's testimony and demeanor, evidence of the...
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