State v. Hanson

• Court: South Dakota Supreme Court
• Writing for the Court: SABERS; WUEST; HENDERSON; HENDERSON
• Citation: State v. Hanson, 456 N.W.2d 135 (S.D. 1990)
• Decision Date: 19 March 1990
• Docket Number: No. 16729,16729
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Craig Alan HANSON, Defendant and Appellant. . Considered on Briefs

Page 135

456 N.W.2d 135

STATE of South Dakota, Plaintiff and Appellee, v. Craig Alan HANSON, Defendant and Appellant.

No. 16729.

Supreme Court of South Dakota.

Considered on Briefs March 19, 1990.

Decided May 16, 1990.

George H. Danforth, Huron, for defendant and appellant.

Diane Best, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., on brief.

SABERS, Justice.

Craig Alan Hanson appeals his conviction for attempted rape in the first degree.

Facts

In late April of 1988, a man walked up to the Dairyland counter in the Huron Mall shortly before closing at 9:00 p.m. A sixteen-year-old girl, who was working alone, waited on the man. She asked him if he would like anything. He replied: "You," and began to talk about the girl's body, describing it as good-looking and "hot." Eventually, the girl walked to the back room and the man left.

On May 9 or 10, the man again encountered the girl working alone at Dairyland. As before, he approached the counter shortly before closing, and the girl asked if she could help him. He asked her if she was ready yet and said: "Can't you get the hint yet." She walked to the back and picked up the phone. When she turned around, the man was gone.

The girl worked alone again on the evening of May 12, 1988. After closing about 9:00 p.m., she took the garbage to a dumpster in a well-lighted, enclosed area outside of the mall. She was also carrying a money bag with money, a T-shirt, and some books. When she got to the dumpster, she put the money bag, T-shirt, and books on the ground, lifted the dumpster lid and tossed the garbage inside. Just as she released the garbage, she was grabbed from behind and thrown to the ground by the man. He wrapped his legs around hers and sat on top of her. She began to scream and fight, trying to get the man off her. He kept telling her to shut up, then began grabbing at her shirt and smock. When he started opening the smock, she proceeded to fight even harder. Some buttons were ripped off the smock in the process. After struggling for a minute or two, the man got up and ran out of the dumpster area.

After the man ran off, the girl picked up her things and went home. She told her step-father about the attack, and he called the police. She noticed that she was bruised and had fingernail scrapes down her face.

Approximately one week after the attack, the girl went to the police station to look at some police sketches. How many sketches she looked at is uncertain, but she identified one as her attacker. That sketch had been prepared for another case.

Over the course of the summer, the girl was asked on two or three occasions to come to the police station to look at an individual. On each occasion she determined the person she looked at was not her attacker. In September, she went to the police station to look at a photo lineup. The officer in charge of the investigation, Dave Rand, had prepared a book with eight photos in it. The girl was told to look at the book and was left alone in an interview room. She promptly identified Hanson's picture as that of her assailant. The officer then showed her a full-length picture of Hanson, and she confirmed that he was her assailant.

Hanson was charged with attempted rape in the first degree. At the trial, over defense counsel's objection, the girl identified Hanson as her attacker. The jury found Hanson guilty and he was sentenced to serve twelve and one-half years in the state penitentiary. Hanson raises three issues on appeal. He claims:

1. The trial court erred in failing to suppress the in-court identification,

2. The crime of attempted rape in the first degree was not, as a matter of law, committed, and

3. The evidence presented at trial was insufficient to support the conviction.

1. Suppression of the in-court identification.

Hanson claims the trial court should have refused to allow the girl's in-court identification of him as her assailant. He argues the identification procedure was conducted in such an improper manner that the identification is unreliable. The argument is based upon several claimed improprieties in the investigation process, including the showing of sketches and several one-person showups without a record of these activities. However, Hanson's main claim is that in June of 1988 the girl observed him at the police station and said he was not her attacker, making her later identification of him unreliable.

At the hearing to consider the motion to suppress the in-court identification, Hanson offered testimony that on the morning of June 13, 1988, two law enforcement officers went to his house and asked him to come down to the police station. Hanson says he went to the station and answered questions regarding this case. He claimed the officer conducting the investigation asked him if he would mind if someone came down to look at him. Hanson said he would not mind, so the officer had the girl come to the police station. When the girl arrived, Hanson says she looked at him and told the officer he was not her attacker.

In contrast, the State offered testimony that Hanson was never called to the police station for questioning. Rand testified that he never interviewed Hanson, and the reason he went to Hanson's house was to look for Hanson's brother, whose car had been identified in another case. The officer accompanying Rand likewise testified that the reason they went to Hanson's house was to check on a suspect vehicle in a rape case and Hanson's brother was the owner of that vehicle. Rand claims that Hanson's brother came to the police station later and was questioned by someone. In addition, the girl testified that she was called to the station to look at a man and a car, and she identified a picture of Hanson's brother as the person she saw when she was called to the police station for that purpose.

The evidentiary rulings of a circuit court will be disturbed only if the court abused its discretion. State v. Bartlett, 411 N.W.2d 411 (S.D.1987); accord State v. Wedemann, 339 N.W.2d 112 (S.D.1983). In-court identifications will be suppressed when they stem from a procedure "that is so impermissibly suggestive as to result in a very substantial likelihood of irreparable misidentification." State v. Iron Thunder, 272 N.W.2d 299, 301 (S.D.1978); accord State v. Jaeb, 442 N.W.2d 463 (S.D.1989); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The party seeking to suppress the in-court identification bears the burden of establishing the impermissible suggestiveness of the identification procedure. Id. The suggestiveness of the procedure is evaluated by examining the totality of the circumstances surrounding the identification procedure. Jaeb, supra. Under the totality of the circumstances, if there is not a very substantial likelihood of irreparable misidentification, then the reliability of an in-court identification is for the jury to weigh. As the United States Supreme Court explained in Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140, 155 (1977):

We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.

Hanson has not met his burden of establishing the impermissible suggestiveness of the identification procedure. Although there are questions about the identification procedure, they do not rise to the level of a very substantial likelihood of irreparable misidentification. If the testimony of the State's witnesses is believed, then it is unlikely any particular identification was suggested. Furthermore, the girl got a good look at her attacker on three separate occasions, making it unlikely that she would be confused about the identity of the attacker. Consequently, the court did not abuse its discretion in allowing the jury to determine the reliability of the identification.

2. Whether the crime of attempted rape was committed.

Hanson claims the crime of attempted rape in the first degree could not be committed under the facts of this case as a matter of law. SDCL 22-4-1 provides in part that Any person who attempts to commit a crime and in the attempt does any act toward the commission of the crime, but fails or is prevented or intercepted in the perpetration thereof, is punishable[.]

In other...