State v. Letcher, 19368

• Decision Date: 22 May 1996
• Docket Number: No. 19368,19368
• Citation: 1996 SD 88,552 N.W.2d 402
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Donald Anthony LETCHER, a/k/a Tony Letcher, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 402

552 N.W.2d 402

1996 SD 88

STATE of South Dakota, Plaintiff and Appellee, v. Donald Anthony LETCHER, a/k/a Tony Letcher, Defendant and Appellant.

No. 19368.

Supreme Court of South Dakota.

Considered on Briefs May 22, 1996.

Decided July 17, 1996.

Mark Barnett, Attorney General, Jennifer K. Trucano, Assistant Attorney General, Pierre, for plaintiff and appellee.

Mike C. Fink and Timothy W. Bjorkman of Bjorkman Law Offices, Bridgewater, for defendant and appellant.

MILLER, Chief Justice.

¶1 Donald Anthony Letcher, a/k/a Tony Letcher, appeals his conviction of two counts of sexual contact with a child under sixteen. He claims the trial court improperly admitted rebuttal testimony regarding sexual dysfunction problems Letcher allegedly had. He also claims the trial court abused its discretion by refusing to grant him a continuance to present a witness who would respond to this testimony. We reverse and remand for a new trial.

FACTS

¶2 From August 1992 until July 1993, Letcher lived with Y.F., her minor daughter J.E., and two minor sons. They first lived in Bridgewater, South Dakota, and then briefly in Howard, South Dakota. On occasion, Letcher stayed home with the children while Y.F. worked.

¶3 In February 1995, J.E. told her stepmother that Letcher had touched her breasts and made her touch his penis when he had lived in her home. These statements were then reported to the police.

¶4 On March 24, 1995, the State charged Letcher with two counts of sexual contact with a child, in violation of SDCL 22-22-7. On June 12, 1995, he filed a motion for discovery. The trial court ordered the State to fully comply with this motion and specifically required it to disclose ... [A]ll evidence in possession and control of the State, or others, when the evidence may be favorable to the Defendant and material to the issue of guilt or punishment, or could reasonably weaken or affect any evidence proposed to be introduced against the Defendant, or is relevant to the subject matter of the Complaint and information, or in any manner may aid the Defendant in the ascertainment of the truth; the disclosure and production to be made without regard to whether the evidence to be disclosed and produced is deemed admissible at the trial herein; said disclosure and production to include, but not limited to, the following evidence:

* * * * * *

2. The memoranda or summaries of any oral statement made to any agent of the State of South Dakota or any of its municipalities by any person in connection with the subject matter of this case, whether or not:

(a) the statement, if in writing, has been signed, or approved by the witness; and

(b) the statement relates to the proposed subject matter of the direct testimony of the witness at trial.

¶5 On June 12, 1995, the State filed a motion to allow the hearsay testimony of Y.F., the mother of J.E. The State attached a portion of Y.F.'s statements to the grand jury as an indication of the testimony to be offered. This testimony involved J.E.'s reports of nightmares and J.E.'s father and stepmother informing Y.F. about J.E.'s allegations of abuse.

¶6 The morning of the trial, the court held a hearing concerning State's motion to allow this hearsay testimony. During Y.F.'s testimony at this hearing, she testified, for the first time, that Letcher had difficulty maintaining an erection and often played with himself to keep his penis erect.

¶7 Letcher's trial counsel ¹ moved to prevent the State from introducing this evidence about Letcher's alleged sexual dysfunction on the grounds that the State had not disclosed that evidence in advance of trial as required by the court's discovery order. State countered that Letcher was aware of the witnesses to be called by the State and his counsel could have interviewed those witnesses to determine their testimony. The trial court granted Letcher's motion.

¶8 At trial, J.E. testified that Letcher rubbed her chest and made her rub his penis in a circular motion. She indicated his penis was erect some times and not erect at other times. Statements J.E. made to an abuse investigator indicated that Letcher never ejaculated during the alleged incidents of molestation. J.E. stated the sexual contact happened almost every night while Letcher lived in her home and her mother was at work. J.E. was eight and nine years old at the time of the alleged abuse.

¶9 Y.F. also testified in the State's case-in-chief. She testified that, when Letcher lived with her, he often took care of her children when she was at work. She further testified that J.E. had frequent nightmares while Letcher lived with them.

¶10 Letcher contended J.E. had made up the allegations or had been coached to tell a story of abuse. He presented the testimony of Dr. Michael J. McGrath, an expert clinical psychologist in sexual abuse cases. McGrath identified various aspects of J.E.'s testimony that caused him to question the credibility of her allegations. These "red flags" included: (1) a child custody fight between J.E.'s mother and father; (2) the use of sexual terms, including "penis," that are not generally appropriate for a child J.E.'s age; (3) J.E.'s claim that she rubbed Letcher's penis in a circular motion, rather than an up and down motion; (4) the absence of any progression of sexual contact over time; and (5) J.E.'s assertion that Letcher did not reach a climax when he had her rub his penis.

¶11 Letcher testified, denying the claimed sexual abuse. No mention was made of any sexual dysfunction. However, on cross-examination, in response to questions from the prosecutor, he denied having any problems with sexual functioning.

¶12 When the defense rested, State recalled Y.F. as a rebuttal witness. Outside of the presence of the jury, Letcher moved to exclude any testimony by Y.F. about her sexual relationship with Letcher, arguing that he had not raised the issue of his sexual performance during his direct testimony, and the State could not make that an issue through cross-examination. Letcher also contended the State had failed to disclose Y.F's statements regarding her sexual relationship with Letcher sufficiently in advance of trial to allow Letcher to prepare. He advised the court that he wanted to offer the testimony of a former girl friend (T.F.) who would state that she had normal sexual relationships with Letcher and that there were never any problems with him maintaining an erection or completing sex. He claimed that because of the surprise and timing of the evidence he had been unable to subpoena T.F.

¶13 Considering the credibility issues, and in light of Dr. McGrath's opinion testimony, the trial court denied the motion to exclude Y.F.'s rebuttal testimony concerning her sexual relationship with Letcher.

¶14 During State's rebuttal, Y.F. testified that when she lived with Letcher, it "wasn't an active sex life" and that he had difficulty maintaining an erection, "played with himself a lot" and "had trouble getting ejaculated."

¶15 Following Y.F.'s testimony, Letcher moved for a continuance, claiming surprise. In denying the motion for continuance, the trial court stated:

Well, in this particular matter, the Court did initially grant the motion in limine with respect to this subject matter, the sexual relationship between [Y.F.] and Mr. Letcher; it became quite obvious to the Court when Dr. McGrath was called that the type of testimony that was being produced through Dr. McGrath would lead to this type of testimony being relevant on rebuttal and I think that's a matter that certainly was something that you obviously were aware of, particularly as of last night prior to Dr. McGrath's testimony, when you were trying to locate the witness. It's now 2 in the afternoon and all the other witnesses have testified. We're at the close of this case, it's ready to go to the jury, the Court has scheduled tomorrow numerous cases in Chamberlain, and I guess we have waited--if she was to be here at 1, it's now 2:08--we have given some leeway for her to arrive as prompt as possible. Under the circumstances, it's the obligation of the counsel to make sure they get their witnesses subpoenaed and take every action to get her here. Of course, that is if in fact she would even testify as you feel she would. I understand the basis for your expectation, but nevertheless, I think this--it indicates you had an opportunity over the last couple days to be prepared on these issues and to have the witnesses here and you don't have any other witnesses present at this time; I'm going to deny your request for a continuance. The record can reflect you made the motion.

¶16 The State rested its rebuttal case and Letcher returned to the stand. He testified that he had no problems in his sexual relationship with Y.F., or with his previous girl friend, T.F.. He testified that T.F. had been asked to come to court to testify on his behalf, but she was not present. The defense rested.

¶17 The case was submitted to the jury, and the jury returned a verdict of guilty on both counts of sexual contact with a minor. The trial court sentenced Letcher to two concurrent prison terms of twelve years, seven years suspended.

¶18 Letcher appeals. He contends the trial court abused its discretion in admitting Y.F.'s rebuttal testimony concerning her sexual relationship with him and his alleged sexual problems. Alternatively, Letcher asserts the trial court abused its discretion in refusing his request for a continuance.

ISSUES

¶19 1. Did the trial court abuse its discretion when it permitted Y.F. to testify about Letcher's alleged sexual problems?

¶20 The record indicates that Letcher was unaware of Y.F.'s proposed testimony concerning his purported sexual dysfunction until the morning of the trial, when the testimony was revealed during a pretrial motion hearing. The State does not dispute that it failed to advise Letcher of this evidence until that time. The record indicates the trial court sustained...