State v. McCrary

• Decision Date: 11 February 2004
• Docket Number: No. 22701,22701
• Citation: State v. McCrary, 676 N.W.2d 116, 2004 SD 18 (S.D. 2004)
• Parties: STATE OF SOUTH DAKOTA Plaintiff and Appellee, v. DAVID McCRARY, Defendant and Appellant.
• Court: South Dakota Supreme Court

2004 SD 18

676 NW 2d 116

STATE OF SOUTH DAKOTAPlaintiff and Appellee, v.DAVID McCRARY, Defendant and Appellant.

No. 22701

Supreme Court of South Dakota.

Considered on Briefs on November 17, 2003

Opinion Filed February 11, 2004

LAWRENCE E. LONG, Attorney General, BECKY A. JANSSEN, Assistant Attorney General, Pierre, South Dakota Attorneys for plaintiff And appellee.

RENA M. ATCHISON of Abourezk Law Firm, Rapid City, South Dakota, Attorney for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.]A grand jury indicted David McCrary(McCrary) on one count of Rape in the First Degree and three counts of Sexual Contact with a Child under Sixteen.Pursuant to a plea agreement, McCrary pleaded guilty to two counts of Child Abuse.The trial court sentenced McCrary to serve two consecutive ten-year sentences in the South Dakota State Penitentiary, with the second ten-year sentence suspended on several conditions.McCrary now appeals and challenges several aspects of his plea agreement and sentencing.We affirm in part, reverse in part, and remand for resentencing.

FACTS AND PROCEDURE

[¶ 2.]In February of 1999, T.M., the mother of D.M., contacted a sexual abuse hotline in Rapid City because she believed D.M. had been sexually abused by D.M.'s father, McCrary.The hotline proceeded to contact Social Services and law enforcement.Over the next year and a half, T.M. continued to make sexual abuse allegations against McCrary concerning D.M.

[¶ 3.]In December of 2000, the State filed an abuse and neglect proceeding against both McCrary and T.M.Pursuant to this proceeding, the circuit court recommended counseling for D.M. One month later, D.M began to attend weekly or bi-weekly therapy sessions with Dr. Tom Bosworth(Dr. Bosworth).At this time, D.M. was approximately three and a half years old.Over the course of several therapy sessions and during an interview conducted by Lora Hawkins of the Child Advocacy Center of the Black Hills, D.M. began to provide details concerning instances of sexual abuse perpetrated on her by McCrary.

[¶ 4.]On October 11, 2001, a grand jury indicted McCrary on one count of Rape in the first degree in violation of SDCL 22-22-1(1) and three counts of Sexual Contact with a Child Under Sixteen in violation of SDCL 22-22-7.McCrary pleaded Not Guilty to all charges.In the proceedings that followed, the trial court conducted numerous evidentiary hearings and heard several motions by both McCrary and the State.

[¶ 5.]Nearly a year later, on August 26, 2002, McCrary entered into a plea agreement with the State.By the terms of the agreement, McCrary pleaded guilty to two counts of felony Child Abuse contrary to SDCL 26-10-1.In exchange, the State agreed to remain silent at sentencing except for introducing a statement from the victim, D.M.On November 1, 2002, the trial court sentenced McCrary to two consecutive ten-year sentences in the South Dakota State Penitentiary.The court suspended the second ten-year sentence pending several conditions.McCrary now appeals his sentence and raises the following issues:

1.Whether the trial judge should have recused himself from sentencing.

2.Whether the State's conduct at the sentencing hearing violated the plea agreement.

3.Whether the nature of the evidence considered by the trial court at sentencing created reversible error.

4.Whether the trial court's self-initiated contact with Dr. Bosworth created reversible error.

Affirmed in part and reversed in part.

STANDARD OF REVIEW

[¶ 6.]In Lodemeier v. Class, we set out the standard we utilize in reviewing claims alleging bias by a trial judge:

Foremost, we have held that `only personal bias or prejudice [by a trial judge], as distinguished from judicial predilection, constitutes a disqualifying factor.'State v. Lohnes, 432 NW2d 77, 83(SD1988)(citingState v. Smith, 242 NW2d 320, 324(Iowa1976)).This actual bias must come from an extrajudicial source, which means the judge's rulings were based on something learned other than at trial.Lohnes,432 NW2d at 83.AccordState v. Farni, 325 NW2d 107, 110(Iowa1982).Such bias will be judged by a reasonable person standard, McKinley v. Iowa Dist. Court for Polk Cty., 542 NW2d 822, 827(Iowa1996), but a judge's decision to stay on a case will be affirmed unless there is bias or prejudice shown as a matter of law.Lohnes,432 NW2d at 83;State v. Shepard, 239 Neb 639, 477 NW2d 567, 571(1991)(holding there is a heavy burden to overcome a presumption of judicial impartiality).

1996 SD 134, ¶27, 555 NW2d 618, 626(footnote omitted).

[¶ 7.]We have consistently recognized the contractual nature of plea agreements, and we employ general contract principles in our review.State v. Stevenson, 2002 SD 120, ¶9, 652 NW2d 735, 738(citation omitted).Therefore, "[w]hether a contract has been breached is an issue of fact for the trier of fact to resolve."Id.(citingMoe v. John Deere Co., 516 NW2d 332, 335(SD1994)).We review the trial court's findings of fact under the clearly erroneous standard.City of Deadwood v. Summit, Inc., 2000 SD 29, ¶9, 607 NW2d 22, 25.

[¶ 8.]Trial courts enjoy wide latitude in determining the applicable sentence for a defendant.State v. Milk, 2000 SD 28, ¶10, 607 NW2d 14, 17(citation omitted).In order to determine the appropriate sentence, the "sentencing court should `acquire a thorough acquaintance with the character and history of the man before it.'"Id.,¶16(quotingState v. Hinger, 1999 SD 91, ¶21, 600 NW2d 542, 548(citation omitted)).Therefore, we have held that sentencing courts may consider an extremely broad range of evidence in order to familiarize itself with a particular defendant.State v. Arabie, 2003 SD 57, ¶21, 663 NW2d 250, 257.This consideration may include "inquiry into `uncharged conduct or even conduct that was acquitted.'"Id.(citingUS v. Schaefer, 291 F3d 932, 944(7thCir 2002)).

ANALYSIS AND DECISION

[¶ 9.]1.Whether the trial judge should have recused himself from sentencing.

[¶ 10.]For his first point of error, McCrary contends the trial court should have recused itself from the sentencing hearing.In support of his claim, McCrary argues that the court"clearly became biased towards [McCrary] throughout the proceedings," and because it heard evidence presented by the state in violation of the plea agreement.We address these claims separately.

[¶ 11.]a. Personal Bias Towards McCrary

[¶ 12.]McCrary believes the trial court became personally biased towards him during the proceedings, resulting in the deprivation of his due process rights at the sentencing hearing.McCrary alleges the court manifested its bias against him in several ways throughout the proceedings.After reviewing the record before us, we do not believe McCrary has overcome the presumption of judicial impartiality based upon the factual allegations contained in this issue.

[¶ 13.]To demonstrate bias, McCrary first alleges the trial court made several inappropriate "jokes" during the proceedings concerning its lack of ability to sentence McCrary to death or life imprisonment.McCrary also claims the court spoke with one Bishop Kelly regarding its belief in McCrary's guilt concerning the sexual of abuse of D.M. McCrary, however, fails to cite to the record for support of his claims.As we have consistently recognized, "[t]he settled record is the sole evidence of the circuit court's proceedings, and, when confronted with an incomplete record, our presumption is that the circuit court acted properly."State v. Jones, 416 NW2d 875, 878(SD1987)(citation omitted).As the party asserting error, McCrary had the burden "of ensuring an adequate record."State v. Cates, 2001 SD 99, ¶18, 632 NW2d 28, 36(citation omitted).At sentencing, the trial court specifically denied making such inappropriate statements, and, furthermore, Bishop Kelly never confirmed a conversation in which the court made inappropriate comments.

Because McCrary failed to support his allegations with citation to the record, we presume the trial court acted properly.

[¶ 14.]Next, McCrary believes the trial court demonstrated bias when it declined to grant a continuance due to the unavailability of two of McCrary's witnesses.McCrary fails to explain how the denial of his motion for continuance shows bias.Instead, he simply lists this as an example of the court's bias against him without laying out an argument to support this claim or citing to the settled record.We review the grant or denial of motion for continuance under the abuse of discretion standard.State v. Schladweiler, 436 NW2d 851, 853(SD1989).Here, without citation to the record or an argument of how the denial of McCrary's motion for continuance shows bias, we clearly cannot find the trial court abused its discretion.

[¶ 15.]According to McCrary, the trial court further showed his bias against him by questioning his witnesses and experts at sentencing "as though the trial court was advocate for the prosecution."Once again, McCrary fails to cite to the record in support of this claim.Furthermore, McCrary did not object to any of the court's questions."Ordinarily an issue not raised before the trial court will not be reviewed at the appellate level."State v. Hays, 1999 SD 89, ¶16, 598 NW2d 200, 203.Generally, parties must object to specific court action and state the reason underlying their objection so that the circuit court has an opportunity to correct any error.State v. Dufault, 2001 SD 66, ¶7, 628 NW2d 755, 757;State v. Henjum, 1996 SD 7, ¶13, 542 NW2d 760, 763.McCrary had ample opportunity to object to the trial court's questions at sentencing, and thus did not preserve this claim for our review.¹

[¶ 16.]For his next example of personal bias, McCrary alleges that the trial court solicited and invited ex parte communication with Dr. Janz, an expert witness.McCrary cites to Black's Law Dictionary for the proposition that "[a] judicial proceeding,...