State v. Horse
| Docket Number | 29967-a-JMK |
| Decision Date | 17 January 2024 |
| Citation | 2024 S.D. 4 |
| Parties | STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. ROBERT A. HORSE, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
1
2024 S.D. 4
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
ROBERT A. HORSE, Defendant and Appellant.
No. 29967-a-JMK
Supreme Court of South Dakota
January 17, 2024
CONSIDERED ON BRIEFS AUGUST 29, 2023
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE MATTHEW M. BROWN Judge
JOHN R. MURPHY Rapid City, South Dakota Attorney for defendant and appellant.
STEPHEN G. GEMAR Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
KERN, JUSTICE
[¶1.] Robert Horse was convicted of third-degree rape after a four-day trial in Pennington County. He appeals his conviction, raising issues involving the validity of a search warrant for location data from his phone, comments made during trial by the State about the victim's motivation to testify, and opinion testimony given by the detective who investigated the case. We affirm.
Factual and Procedural History
[¶2.] Fourteen-year-old D.M. was walking alone in Rapid City on Tuesday, June 4, 2019, when a man pulled up next to her in his car. D.M. recalled the man asking her where he could get some marijuana. She said that she knew a place and got in the car with him. The man gave her money to purchase marijuana for him, and they stopped at a house where D.M. knew she could buy some. After she purchased the marijuana, they stopped at a gas station where the man purchased some rolling papers. They next drove to Skyline drive in Rapid City where they smoked some of the marijuana. The man identified himself as "Robert." They left the Skyline drive area and drove around Rapid City. At some point, Robert stopped at a gas station where he purchased a case of beer and cigarettes. According to D.M., as they were driving around, she drank approximately nine beers as well as some Jack Daniels and smoked some of the marijuana. D.M. recalled stopping at a gas station in Deadwood but blacked out after that, and her memory became spotty thereafter.
[¶3.] D.M.'s next memory was Horse's face directly in front of hers. She explained that he was on top of her with his face about a foot or two away while she
was lying on her back. She next remembered standing in the shower of a "very nice" bathroom, which she thought might have been in a hotel. Her next recollection was being at a Dairy Queen and then trying to get into a car, but she did not know how she had arrived there. The next thing she remembered was waking up in her own bed in her room. She did not recall having sex with Horse. However, when she got out of bed, she noticed "white stuff" in her panties. These events all occurred on Tuesday.
[¶4.] D.M. did not disclose these events to anyone until Wednesday when she told her mother. Her mother indicated that she would take her to the hospital Thursday after work. However, D.M. instead went to a friend's house on Thursday, got drunk, and went to a weekly summer gathering in downtown Rapid City, where D.M.'s mother and stepfather eventually found her and attempted to bring her home. An altercation ensued and D.M. was taken into custody for assaulting her stepfather. She was taken to the ARISE[1] facility where during the intake process and screening she told the staff that she might have been sexually assaulted. The ARISE staff took her to the hospital where a rape kit was performed. D.M. was interviewed by law enforcement and detailed the information that she could remember from her time with Horse.
[¶5.] In an attempt to identify the man D.M. referred to as Robert, Detective Trista Dupres of the Pennington County Sheriff's Office obtained a surveillance
video from the gas station where, according to D.M., they had bought beer and alcohol. Detective Dupres took a still photo from the video which depicted a man getting out of the car D.M. was travelling in. She sent this photo to local law enforcement asking for assistance in identifying the suspect. Horse was first identified by Rapid City Police Chief Karl Jegeris, who recognized Horse from the photo. Horse's parole officer confirmed Horse's identity and D.M. identified Horse from a photo lineup.
[¶6.] Horse was arrested on June 26, 2019, and taken to the Pennington County Jail and charged by complaint with alternative counts of rape. Sometime thereafter, law enforcement received the test results from the rape kit which revealed that the DNA identified in the sperm cell fraction obtained from D.M.'s vaginal area matched a known sample taken from Horse. As part of her investigation, Detective Dupres applied for and received a search warrant on June 27 (2019 warrant) for Horse's Samsung Galaxy S7 cell phone. The phone was taken with Horse's property at the jail incident to his arrest.[2] On July 10, 2019, Horse was indicted on one count of third-degree rape in violation of SDCL 22-22-1(4) and in the alternative, one count of fourth-degree rape in violation of SDCL 22-22-1(5). [
¶7.] To prove that the crime occurred in Pennington County and to verify D.M.'s recollection of events, the State sought to introduce location data obtained from Google to show where Horse's cell phone had been on the day of the alleged
crime. Although not contained in the record, two warrants were apparently issued to Google in January and February of 2020 to obtain the location data.[3] The warrants were discussed at a pretrial Daubert hearing where Horse moved via an oral motion to suppress the historical cell site location data relied upon by the State's expert witness, Agent Richard Fennern of the Federal Bureau of Investigation. In ruling on the suppression motion, the circuit court described the warrants as listing the physical location of Google, Inc. and the account of Robert Horse along with a specific email account attributed to him. The court further stated that the warrant authorized a search for "all location data, whether derived from local positioning system, GPS data, cell sites or tower triangulation or trilateration, precision measurement information such as timing, advanced or per call measurement data, and Wi-Fi location. Such data shall include the GPS coordinates and date and time of all location readings for June 4th of 2019." The court denied the motion to suppress the location data and permitted Agent Fennern to testify at trial.
[¶8.] At trial, the State called twenty witnesses. D.M. testified about her memory of the events surrounding the incident. The State showed her several photos of the bathroom taken at the house where Horse had been staying at a home on East Enchanted Pines Drive. D.M. testified about various aspects of the bathroom that she recognized from the photos.
[¶9.] At the end of D.M.'s direct examination, the following exchange occurred:
State: [D.M.], why are you here today?
Defense Counsel: I'm going to object to relevance. Rule 403.
Court: I will sustain the objection.
State: [D.M.], is it easy for you to be here today?
D.M.: No.
State: Okay. What made you decide to come and testify today?
Defense Counsel: I'm going to object to that as - the same objection, Rule 401, Rule 403.
Court: It's a little bit more specific of a question. I will overrule the objection, and you can answer that question.
D.M.: Maybe I will save someone else.
State: Okay. Thank you. I have no further questions.
Defense Counsel: What was the answer. I didn't even hear that answer. D.M.: Maybe I will save somebody else.
Defense Counsel: I'm going to object to that. I'm going to ask that it be stricken, Your Honor. That's speculation and conjecture, and there is -there is no basis for that.
State: I object to the speaking objection. And maybe it's the truth.
Defense Counsel: I'm going to object, Your Honor, and ask that that be stricken and the jury be instructed to disregard it.
At that point, the court took a recess. Outside the presence of the jury, Horse made a motion for a mistrial based on the State's comment "And maybe it's the truth." After hearing arguments from the parties, the court overruled the objection to D.M.'s response to the question regarding why she chose to testify. The court explained that D.M.'s motivation for testifying was likely to be called into question on cross-examination and throughout the trial. Observing that although the State's
question was likely more appropriate on redirect examination, the circuit court allowed the question and answer to stand.
[¶10.] As for the State's superfluous statement, the court determined that it was argumentative, and therefore inappropriate at that stage of the trial. The court admonished the State and indicated that it would give a curative instruction to remedy the situation. The court denied the motion for mistrial concluding there was not sufficient prejudice to the defendant to warrant a mistrial.
[¶11.] After the recess, the court reread a preliminary instruction given to the jury emphasizing that statements and arguments by the attorneys during the trial were not evidence, and also that the jury should not be influenced by the objections made by the lawyers. The court struck the particular statement made by the prosecutor from the record and told the jury to disregard it.[4]
[¶12.] Detective Dupres also testified at trial about her investigative efforts in the case. She indicated that she had obtained a search warrant for Horse's phone and gave the phone to a forensic examiner in order to download the contents of the phone. She explained that she had also obtained additional warrants for Horse's Google account in an attempt to gather location data to determine where Horse and D.M. travelled on the day in question. Her objective for obtaining this information was to determine in which county the crime occurred. She stated that she received an Excel spreadsheet from Google containing a series of latitudinal and...
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