State v. McCafferty

• Decision Date: 03 October 1984
• Docket Number: No. 14350,14350
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Bruce McCAFFERTY, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 159

356 N.W.2d 159

STATE of South Dakota, Plaintiff and Appellee, v. Bruce McCAFFERTY, Defendant and Appellant.

No. 14350.

Supreme Court of South Dakota.

Argued April 17, 1984.

Decided Oct. 3, 1984.

Grant E. Gormley, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Michael E. Ridgway of Brady, Kabeiseman, Reade, Abbott & Johnson, Yankton, for defendant and appellant.

MORGAN, Justice.

Defendant Bruce McCafferty (McCafferty) was indicted, tried and convicted on the charge that he knowingly engaged in sexual contact with another person under fifteen years of age, in violation of SDCL 22-22-7. Upon a separate information, McCafferty was also found to be an habitual offender under SDCL 22-7-8 and his sentence for the principal felony was enhanced to a sentence commensurate with a Class 3 felony, the next more severe class. The trial court sentenced McCafferty to fifteen years in the South Dakota State Penitentiary with three years suspended upon completion of court-imposed conditions. McCafferty appeals and we affirm in part and remand with instructions.

This case developed when a seven-year-old daughter of the woman McCafferty was living with arrived at school with a red mark on her neck. The mark resembled what is commonly referred to as a "hickey." When questioned by her teacher, Elizabeth Zeplin (Zeplin), the child (Shawna) responded "My daddy sucked on it." Zeplin mentioned the incident to another teacher, Pam Haugland (Haugland), who questioned Shawna further using two anatomically correct dolls. The matter was referred to the Department of Social Services (Department) as a suspected case of sexual abuse. The following day, Dr. Mary Carol Curran (Curran), a clinical psychologist, was summoned to the school by Department to investigate. Curran also observed Shawna play with anatomically correct dolls and exhibit knowledge which Curran considered beyond that of a normal seven-year-old. Based on the information provided by the two teachers and the psychologist, the Yankton County Grand Jury returned the indictment.

McCafferty filed several pretrial motions, including (1) a motion for a psychiatric evaluation of the complaining witness, (2) a request to depose the complaining witness, (3) a motion to exclude evidence of prior convictions, (4) a request for discovery, and (5) a motion to suppress an incriminating statement he made to the police on the grounds that it was given involuntarily. The trial judge denied all motions except the request for discovery and production. After conviction, McCafferty filed a motion for a new trial alleging error at trial by: (1) admission of allegedly hearsay testimony regarding statements Shawna made to the teachers and psychologist; (2) denial of his right of confrontation under the Sixth Amendment to the United States Constitution and Article VI, Section 7 of the South Dakota Constitution; (3) failure of the trial court to properly weigh the probative value of evidence of his former convictions against its prejudicial effect before admitting that evidence; and (4) failure of the trial court to grant his pretrial motion for psychiatric examination of Shawna.

We will first examine McCafferty's claim that admission of the hearsay testimony by the teachers and the psychologist, regarding Shawna's statements and demonstrations with the dolls, was prejudicial error. SDCL 19-16-4. The trial court apparently admitted the testimony under SDCL 19-16-5 or -6 (Rule 803(1) or (2) Federal Rules of Evidence), the res gestae or excited utterance exception to the hearsay rule. McCafferty urges that under our previous holdings in State v. Thorpe, 83 S.D. 499, 162 N.W.2d 216 (1968), and State v. Percy, 80 S.D. 1, 117 N.W.2d 99 (1962), the statements did not fall within the excited utterance or res gestae exception. We agree.

We recently noted, however, that Percy and Thorpe were decided prior to our adoption of SDCL ch. 19-16, Hearsay, in 1978. State v. Bult, 351 N.W.2d 731 (S.D.1984). The hearsay rules adopted by this court closely pattern the Federal Rules of Evidence 801 to 806 inclusive. SDCL 19-16-5 or -6 is nearly verbatim with Rule 803(1) or (2) of the federal rules respectively. Under the federal rules, many courts have relaxed the rigid time and spontaneity requirements when the declarant is a child of tender years. 7 J.JUV.L. 205 (1983). We note that, while it is not applicable in this case because of its effective date, our legislature has enacted a statutory "tender-years" rule effective July 1, 1984. SDCL 19-16-38.

While Shawna's response to Zeplin's question regarding the cause of the mark on her neck was both timely and somewhat spontaneous, we find no cases, nor are we cited to any, that would make the subsequent statements and demonstration with the dolls spontaneous. The lack of spontaneity does not, however, preclude admission of the subsequent statements. This case differs greatly from most of the case authorities cited by the parties, in that McCafferty was Shawna's father-figure ¹ and she was not physically injured. Most of the cases cited involve outsiders and/or violent acts such as rape or attempted rape. The statements to Haugland and Curran were properly admitted; we hold, however, that the trial court made the right decision for the wrong reason.

When we adopted the Hearsay rules in 1978, we included Federal Rule of Evidence 804(b)(6), sometimes referred to as the residual exception. SDCL 19-16-35 provides:

A statement not specifically covered by any of Secs. 19-16-30 to 19-16-34, inclusive, but having equivalent circumstantial guarantees of trustworthiness, is not excluded by Sec. 19-16-4 if the declarant is unavailable as a witness and if the court determines that

(1) the statement is offered as evidence of a material fact;

(2) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and

(3) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

However, a statement may not be admitted under this section unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

The first two elements of the rule, trustworthiness and unavailability, will be discussed in our analysis of the confrontation clause issue. The third element, materiality of the statement, is obviously satisfied. It is also obvious that the statement is more probative than any other evidence the State could produce through reasonable efforts. In this type of loco-parentis and child situation, it is difficult to envision any evidence more probative than the statements and actions of the victim; nor would it be likely that any further evidence could be adduced by reasonable efforts. Finally, the record shows that McCafferty sought in advance of trial to have the testimony suppressed, evidencing that he had sufficient notice and opportunity to meet the testimony to satisfy the statutory notice requirements.

We turn then to McCafferty's second issue, whether admission of the hearsay statements violated his right to confrontation under the Sixth Amendment to the United States Constitution. "In all criminal prosecutions, the accused shall enjoy the right to be confronted with witnesses against him ..." and a similar right of confrontation set out in the South Dakota Constitution at Article VI, section 7, "[i]n all criminal prosecutions the accused shall have the right ... to meet the witnesses against him face to face ...."

We look first at decisions made under the federal constitution. The framers of the constitution did not intend to exclude all hearsay. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). The policy behind the confrontation clause must give way to the public's interest in effective law enforcement, the probative necessities of particular cases and other policy considerations. 448 U.S. at 64, 100 S.Ct. at 2538, 65 L.Ed.2d at 606. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), controls when the declarant is available or testifies at trial. Prejudice to the defendant by admission of a child declarant's statements is reduced when the child is available for cross-examination. 8 J.JUV.L. 67 (1984).

[T]he Confrontation Clause does not require excluding from evidence the prior statements of a witness who concedes making the statements, and who may be asked to defend or otherwise explain the inconsistency between his prior and his present version of the events in question, thus opening himself to full cross-examination at trial as to both stories.

399 U.S. at 164, 90 S.Ct. at 1938, 26 L.Ed.2d at 501.

When the declarant is not available, however, the criteria established in Ohio v. Roberts, supra, controls admission of hearsay testimony. Thus, the first crucial determination in the trial court's admission of a declarant's statement under the residual hearsay exception involves the declarant's availability as a witness. In this case, Shawna was present in the courtroom and actually took the witness stand. However, even though she was sitting on her mother's lap, she was not able to testify meaningfully. A similar situation arose in United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980), where a nine-year-old declarant testified and was subjected to some cross-examination. The declarant in Iron Shell was unable to repeat the earlier statements that the prosecution sought to present through hearsay testimony. She did, however, testify to facts that tended to support the statements. Iron Shell's counsel cross-examined the child but did not ask about the statements. As the Iron...