State v. Hallman

• Decision Date: 09 July 1986
• Docket Number: No. 14927,14927
• Citation: 391 N.W.2d 191
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Donald HALLMAN, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 191

391 N.W.2d 191

STATE of South Dakota, Plaintiff and Appellee, v.Donald HALLMAN, Defendant and Appellant.

No. 14927.

Supreme Court of South Dakota.

Argued Jan. 14, 1986.

Decided July 9, 1986.

Sherri L. Sundem, Asst. Atty. Gen., Pierre; Mark V. Meierhenry, Atty. Gen., Pierre, on brief, for plaintiff and appellee.

James D. Taylor of Tinan, Padrnos, Smith & Taylor, Mitchell, for defendant and appellant.

TICE, Circuit Judge.

Donald Hallman(Hallman) was charged by indictment with one count of rape and one count of incest.A jury convicted Hallman on each count.He was sentenced to serve concurrent eight-year terms.Hallman appeals.We affirm.

On July 27, 1984, Hallman's thirteen-year-old sister gave birth to a stillborn child.Law enforcement immediately proceeded to investigate the Hallman family.During the investigation, the victim and her sisters stated that Hallman had sexual intercourse with the victim on many occasions.Because of this information, Hallman, a twenty-five-year-old engaged in farming, was arrested at his home at 10:45 in the evening.He was transported to the Brule County Jail in Chamberlain, South Dakota, and interviewed by DCI Special Agent Dave Muller after being advised of his rights.During the course of the interrogation by Muller, Hallman denied having intercourse with the victim.

At approximately 2:00 a.m., Muller turned Hallman over to Deputy Sheriff Doug Kirkus who had spoken with the victim and her sisters earlier.Kirkus advised Hallman of his constitutional rights.After a thirty-five minute discussion at 2:50 a.m., Kirkus turned on a tape recorder.The initial discussion on the tape recorder reveals a further admonition to Hallman of his constitutional rights.During the course of the interview Hallman acknowledged that he had sexual intercourse with the victim.

At the suppression hearing Kirkus and Muller stated that Hallman appeared alert and did not complain about lack of sleep or food.Kirkus did acknowledge that when he first saw Hallman, he appeared to have recently awakened from a sleep.At no time during the course of the interviews did Hallman affirmatively indicate a desire not to speak.At no time during questioning does it appear that Hallman requested an attorney.He did testify at trial, however, that when he did request an attorney the interview was terminated.

Hallman, at the suppression hearing, did not testify that any request was ever made for an attorney.Hallman alleged that before the tape was turned on Kirkus told him that he would not see his sisters again, that they would go to jail, or he would spend fifteen years in the pen.Kirkus denied making any threats or conversation of this nature.Kirkus and Muller only promised that it would go easier on Hallman if he would cooperate with them.Kirkus and Muller did offer to find Hallman some help if he would cooperate with them.

By motion filed on October 17, 1984, Hallman requested the assistance of psychiatric or psychological experts.The motion was not accompanied by an affidavit nor did it allege any underlying factual basis for such an appointment.The motion simply stated that Hallman intended to raise issues concerning the possible psychological transference of sexual activity with one member of the family to another, the effects of radical change in living arrangements on the alleged testimony, and the veracity of the alleged victim's testimony.Hallman stated in his motion that an expert's assistance was necessary for preparation of an adequate defense, particularly in light of the many psychological and social issues likely to be raised.

Prior to the motion being made, a dependent/neglect action was brought on behalf of the female children of the family, including the victim.The children's lawyer in the dependent/neglect action asked for the appointment of a psychologist to evaluate and treat the children.Pursuant to that request, the court appointed Dr. McGraff.In addition to Dr. McGraff, Dr. Bloom was also working with the children.The record is silent as to when Dr. Bloom commenced work with the children.It is evident, however, that he spent time with them prior to the trial in this matter.

At the suppression hearing on October 17, 1984, the court deferred a decision on Hallman's request for a court appointed expert and advised counsel that all reports must be made equally available to the state and Hallman.There is no indication in the record that the doctors were any less available to Hallman than to the state.The record does not indicate that the doctors were employed by or sought by the prosecution in any fashion.

The trial began on February 11, 1985.On that date, the judge signed an order denying the expert requested by Hallman.The record is silent as to any other proceedings concerning the expert appointment.

The state called the victim to testify at trial.The victim denied any sexual intercourse with Hallman.The state then sought to call Dr. McGraff and Dr. Bloom.The ostensible purpose of the testimony was to impeach the victim's denial of sexual intercourse.While there was much discussion concerning the introduction of the doctors' testimony to establish prior inconsistent statements, in fact, the testimony of the doctors contains no reference to prior inconsistent statements of the victim.

Pursuant to a request by Hallman, the judge instructed the jury to consider the doctors' testimony for the purposes of impeachment, not as substantive evidence.Hallman's primary objection was that it was unfair for the state to present evidence of an expert nature concerning the dynamics of a child incest victim without providing Hallman the opportunity to have his own expert retained to counteract this type of testimony.

Although Hallman, throughout the course of the trial expressed objections based upon the lack of access to an expert, the original motion for an expert filed October 17, 1984, was never renewed nor was there any additional factual basis submitted by Hallman for the use of such an expert.

ISSUE I

WHETHER HALLMAN WAS DENIED A FAIR TRIAL BECAUSE OF THE COURT'S FAILURE TO APPOINT AN EXPERT IN THE DYNAMICS OF AN INCEST SITUATION.

Hallman is clearly indigent and has received the benefit of court appointed counsel.Under such circumstances this court has established the guidelines for the appointment of experts to be paid for by the county.In State v. Sahlie, 90 S.D. 682, 690, 245 N.W.2d 476, 480(1976), we said,

Initially, the request must be made in good faith.The request must be reasonable in all respects.The request must be timely and must set forth specific reasons which seem to make such services needed or necessary to the defendant.The request must specify that the defendant is financially unable to obtain the required service himself and that such services would otherwise be justifiably obtained were the defendant financially able.

However, that appointment should not be made if the Court finds that the request is "frivolous, unreasonable, unnecessary for an adequate defense, or without underlying factual support[.] ..."Sahlie, 90 S.D. at 691, 245 N.W.2d at 480.

We readily recognize that in a case involving an offense such as incest there may be serious psychological implications; the trier of fact should be made aware of the psychological status of the victim.Indeed, where the victim recants previous testimony, it may become highly probative.This area of consideration is within the trial judge's sound discretion.The trial judge is in a better position than we to judge the nature and necessity of the appointment of an expert in a given factual environment.State v. Logue, 372 N.W.2d 151(S.D.1985).

In this case, the motion was made prior to any knowledge that the victim would recant her prior testimony.Further, Hallman did not articulate any facts which would support his request for a court appointed expert.Merely making a generalized request without a factual basis therefor is insufficient to establish the right of a defendant to a court appointed expert.Sahlie, supra.

More particularly, at the time the motion was made, the state had not hired experts to assist it in this area.There was no reason to believe that the state anticipated utilizing any expert testimony in this area, and there were already two doctors with expertise who were equally available to the state and Hallman.The mere fact that the state chose to call those witnesses at trial does not make them any more the state's witnesses prior to the trial than Hallman's.Those witnesses were clearly dedicated to the needs of the children and not "hired guns" of the state or solicited by the state to assist the state in its prosecution of this case.

In cases of this nature, the court should consider the appointment of an expert to insure that all necessary information is available.However, in this casewe find no fault with the trial court denying Hallman's request for an expert.There was no significant reason to believe that the expert would be necessary for an adequate defense in this case, and no reason to believe that the state would call experts to testify about the victim's psychological status and the trauma and psychology surrounding a victim of incest.Until the victim recanted her prior statements, this testimony could not reasonably be anticipated.

We recognize that this created a "Catch-22" for Hallman.He did not know that an expert would be needed until after the victim recanted her statements.He, nonetheless, was obligated to articulate a basis supporting the court's appointment.Without that basis the trial court could not proceed to appoint such an expert.In any event, this is an area of sound discretion for the trial judge, and this court will not tamper with that judgment, save in its abuse.Logue, supra;State v. McCafferty, 356 N.W.2d 159(S.D.1984).

We noted in McCafferty that the defendant has the obligation of showing substantial...