State v. Malcolm
| Decision Date | 25 January 2023 |
| Docket Number | 29644-a-MES |
| Citation | 2023 S.D. 6 |
| Parties | STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. LEE TODD MALCOLM, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
ARGUED OCTOBER 5, 2022
APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT CODINGTON COUNTY, SOUTH DAKOTA THE HONORABLE CARMEN MEANS Judge
SCOTT R. BRATLAND Watertown, South Dakota Attorney for defendant and appellant.
MARTY J. JACKLEY Attorney General, CHELSEA WENZEL JENNY JORGENSON Assistant Attorneys General Pierre, South Dakota Attorneys for plaintiff and appellee.
[¶1.] Lee Malcolm was convicted of nine counts of third-degree rape involving J.C. in violation of SDCL 22-22-1(4). Malcolm's defense theory was that J.C. gave "advance consent" to the instances of sexual penetration before she passed out and became incapable of giving contemporaneous consent. The circuit court rejected the legal basis of the defense and, as a consequence, excluded evidence that J.C. gave advance consent, including Malcolm's testimony and evidence of the prior sexual history between Malcolm and J.C. After the jury's verdict, the court sentenced him to 50 years in prison with fifteen years suspended.
[¶2.] Malcolm now appeals, challenging the court's decision regarding the advance consent theory and the corresponding exclusion of evidence. Malcolm also argues the court's jury instructions were inadequate and asks that we consider the merits of his ineffective assistance of counsel claim in this direct appeal. We affirm the circuit court and leave Malcolm's ineffective assistance claims for further development should he pursue a habeas corpus action.
[¶3.] Following several intermittent periods of dating, Malcolm and J.C. started living together in the summer of 2019. The two lived with Malcolm's mother in her Watertown home.
[¶4.] At around 4:30 p.m. on October 27, 2019, Malcolm and J.C went to Walmart to fill J.C.'s prescription of Baclofen which is a muscle relaxer. Malcolm stated that they purchased a six pack of beer and two single shots of vodka before returning to their house. After consuming the alcohol, they drove to a Watertown bar where they drank more beer and liquor until approximately 1:00 a.m. the following morning. Prior to returning home J.C. drove them to a different Watertown bar where they each drank several double-shot mixed drinks and purchased four more double-shot mixed drinks to-go.
[¶5.] The pair finished their drinks in the backyard when they returned home and then went to their upstairs bedroom where they engaged in sex. Malcolm then ate a bowl of chili, smoked a cigarette, and fell asleep in their bed.
[¶6.] According to Malcolm, he was shortly thereafter awakened by a panicked J.C. who was expressing displeasure with him for not paying "enough attention to her." Malcolm claims he tried to "reassure" her that she was all he thought about, but J.C. started packing a bag and indicated that she was going to leave the house. J.C. went outside for about fifteen minutes before coming back into the house after she had "calmed down," by Malcolm's assessment. J.C. and Malcolm then went back to their bedroom to lay in bed and watch television, and Malcolm fell back to sleep.
[¶7.] Later, Malcolm claims he woke up after something struck him above his left eye. He noticed J.C. was not in bed and discovered her face down on the floor beside the bed bleeding from her head. Malcolm helped J.C. off the floor and she went to the bathroom to attend to her wound. After J.C. bandaged the cut, they both laid back down on the bed, and Malcolm resumed sleeping.
[¶8.] Allegedly still upset with Malcolm for not paying enough attention to her, J.C. woke Malcolm up again. Malcolm later claimed that he asked J.C. what she wanted him to do, and she replied, "I want you to make love to me." Malcolm then left the bedroom to take a shower, apparently to prepare for a second sexual encounter.
[¶9.] When he returned to the bedroom, Malcolm used a cell phone to take several video recordings of himself performing sexual acts on an unresponsive J.C. Throughout these videotaped sexual acts, J.C. frequently snored and did not open her eyes, speak any words, or change her positioning, aside from occasional groans and movements that a physician later described as involuntary responses to stimuli. The video recordings reveal that Malcolm inserted foreign objects into J.C.'s vagina and anus. Malcolm also sexually penetrated J.C.'s mouth, vagina, and anus with his fingers, his fist, and his penis.
[¶10.] Malcolm ended this series of sex acts with J.C. after approximately two hours and then went back to sleep. He eventually woke up later in the afternoon and noticed J.C. was cold to the touch and unresponsive. Malcolm called 911 for emergency assistance, prompting a quick response by police officers and emergency medical technicians who arrived and treated J.C. Unfortunately, efforts to revive J.C. were not successful, and she passed away later that day at a local hospital.
[¶11.] As part of their investigation of J.C.'s death, police officers obtained a search warrant, which they executed at Malcolm's home that same day. During the investigation, an empty pill bottle bearing a Baclofen label was recovered, which, Malcolm reported, had contained the Baclofen they had picked up at Walmart the previous day. Toxicology testing, ordered as part of an autopsy, ultimately revealed J.C. died of a fatal combination of Baclofen and Hydroxyzine toxicity, an apparent overdose for which police officers determined Malcolm was not responsible.
[¶12.] However, the investigation into J.C.'s death took on a new dimension after officers discovered and reviewed the self-recorded videos of Malcolm performing acts of sexual penetration upon a seemingly unconscious J.C. Malcolm was arrested on October 31, 2019, and charged with third-degree rape. The case was dismissed on November 15, 2019, and recharged on January 13, 2020.
[¶13.] On that date, a Codington County grand jury returned an indictment charging Malcolm with five counts of third-degree rape under alternative theories: 1) J.C. was either incapable of consenting to the sexual penetration by virtue of physical or mental incapacity; or 2) she was incapable of consenting "because of any intoxicating, narcotic, or anesthetic agent or hypnosis[.]" SDCL 22-22-1(3), (4). The State later obtained a superseding indictment alleging nine counts of third-degree rape under the same alternate theories. Malcolm pled not guilty and was represented by appointed counsel.
[¶14.] Shortly before trial, the State moved in limine to exclude evidence of prior sexual activity between Malcolm and J.C. The State argued that the disclosure deadline under the rape shield statute set out in SDCL 19-19-412 (Rule 412) had passed without an effort by Malcolm to seek admission of prior sexual conduct evidence involving J.C. The State also contended that any such evidence would be inadmissible, in any event, under both Rule 412 and the more general relevancy provisions of SDCL 19-19-403 (Rule 403).
[¶15.] During a hearing conducted five days before trial, the prosecutor stated she had filed the motion in limine based upon the belief that Malcolm intended to offer specific instances of his prior sexual conduct with J.C. in an attempt to present a consent defense. Notwithstanding Malcolm's noncompliance with the notice requirements of Rule 412,[1] the prosecutor explained that "[t]he State preemptively filed the motion to quash such evidence." See SDCL 19-19-412(c)(1)(A), (B) (requiring a party seeking to offer evidence of specific instances of a victim's sexual behavior to "[f]ile a motion that specifically describes the evidence . . . at least 14 days before trial unless the court, for good cause, sets a different time").
[¶16.] The circuit court acknowledged the State's argument and observed that the defense had not "give[n] me what I need to know to decide this issue." In response to the court's direct question asking "who are your [Rule 412] witnesses and what are they testifying to[,]" defense counsel expressed uncertainty but indicated "there are going to be witnesses." Defense counsel asked the court to "reserve ruling" on the State's motion in limine, arguing that "the seriousness of the allegations" justified invoking the good cause provision of Rule 412(c)(1)(B)'s notice requirement. But the court was unable to find a basis for good cause to excuse the 14-day notice provision of Rule 412 and stated:
The idea that [the defense] do[es]n't have to give notice to the State as required by statute in a serious case is not an argument the [c]ourt is going to entertain . . . . As you sit here today, 5 days before trial, you're not able to tell me who your witnesses are and what they are going to say. I can't conduct a meaningful hearing and I am not going to give you free reign to walk in Monday morning on jury selection and say oh, by the way, we found witness A, B and C that we want to now get in. You need to exercise your due diligence to track down these witnesses.
[¶17.] The circuit court granted the State's motion in limine, but the court did not categorically foreclose any further effort to offer evidence of specific instances of J.C.'s sexual behavior. Instead, the court indicated that defense counsel could "bring this up again and I imagine we're going to be having hearings on this, but quite frankly what you've told me today . . . is not persuasive as to why I should find good cause for you and your client not to comply with the statute."
[¶18.] During his opening statement at trial, Malcolm's counsel referenced the idea that J.C. had consented in advance of her incapacity, characterizing...
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