State v. Midgett
| Decision Date | 28 April 2004 |
| Docket Number | No. 22857,22857 |
| Citation | 2004 SD 57,680 NW 2d 288 |
| Court | South Dakota Supreme Court |
| Parties | STATE OF SOUTH DAKTOA, Plaintiff and Appellee, v. TIMOTHY WAYNE MIDGETT, Defendant and Appellant. |
LAWRENCE E. LONG, Attorney General, FRANK GEAGHAN, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
REED RASMUSSEN of Siegel, Barnett and Schutz, Aberdeen, South Dakota, Attorneys for defendant and appellant.
[¶ 1.] Timothy Midgett was convicted of second degree rape. He appeals1 his conviction and the denial of a motion for new trial. We reverse and remand.
[¶ 2.] The incident in dispute occurred on March 14, 2002, when K.R.B. was at the apartment of a friend named S.A. K.R.B. planned to stay overnight watching movies, TV, and listening to music. S.A. lived with her mother and brothers on the top floor of the apartment building. Midgett lived on the bottom floor of that same apartment building. Both S.A. and K.R.B. had met Midgett before. Midgett often visited S.A.'s apartment to use their phone or borrow movies.
[¶ 3.] From this point, Midgett's and K.R.B.'s versions of the events differ markedly. K.R.B. testified that she first saw Midgett around 7 p.m. that evening when he came to S.A.'s apartment to borrow movies. K.R.B. saw Midgett a second time when he returned to S.A.'s apartment for other movies. K.R.B. testified that the final encounter occurred around 11 p.m., when S.A. and K.R.B. were getting ready for bed. S.A. allegedly asked K.R.B. to go down to Midgett's apartment to retrieve the movies.
[¶ 4.] K.R.B. went to Midgett's apartment. According to K.R.B., when Midgett opened the door, she asked him for the movies, and Midgett insisted that K.R.B. come in. K.R.B. testified that she said no, but Midgett gave her "a shove on the shoulder, a light shove" into the apartment and shut the door.
K.R.B. asked Midgett for the movies again, and he told her that he had some in his bedroom. K.R.B. asked Midgett for the movies so she could leave. Midgett, however, told her to "just come and get `em" and gave her another light shove. K.R.B. testified that she followed Midgett into his bedroom and was forcibly raped.
[¶ 5.] S.A.'s mother immediately called the police when K.R.B. returned from Midgett's apartment. Law enforcement arrived and commenced an investigation. K.R.B. was taken to the hospital and examined in the emergency room. A doctor determined that there was physical evidence consistent with sexual activity within a fairly recent period of time. Testing specimens from a "rape kit" revealed no evidence of semen or saliva. Midgett's boxer shorts and his sheets also revealed no blood, hairs, or fluids.
[¶ 6.] Midgett was interviewed by the police as a part of this investigation. Midgett's version of the events was quite different from K.R.B.'s. He denied having any sexual relations with K.R.B. He did, however, allege that when K.R.B. came to his apartment, she moved to the bed and told him that she came down to give him sex. Midgett then told Detective Duven that K.R.B. had instructed Midgett to get a condom, but when he got up to look for one, K.R.B. "disappeared." Duven testified that Midgett wondered "how the heck she got out of [the] apartment without him knowing it."
[¶ 7.] At trial, in an attempt to discredit K.R.B., Midgett claimed to have been involved in a prior sexual relationship with her. Midgett claimed that their relationship resulted in a pregnancy and abortion. He contended that the alleged abortion gave K.R.B. "a motive to have revenge, to fabricate a story."
[¶ 8.] The jury found Midgett guilty of second degree rape. He appeals, raising the following issues for review:
1. Whether the trial court erred in allowing the jury, during its deliberations, to view a videotaped interview of Midgett that was neither played during trial nor admitted into evidence.
2. Whether the trial court erred in admitting K.R.B.'s statements made to law enforcement officers in their investigation.
3. Whether the trial court erred in admitting a bloodstained tissue when the source of the blood was not determined in a timely manner.
4. Whether the trial court erred by admitting photographs of children's clothing taken in Midgett's residence.
[¶ 9.] 1. Whether the trial court erred in allowing the jury, during its deliberations, to view a videotaped interview of Midgett that was neither played during trial nor admitted into evidence.
[¶ 10.] After Midgett's apartment was searched, he was taken to the police department and interviewed. The interview was videotaped, and both parties' positions on the admissibility of the videotape changed during trial.
[¶ 11.] Before any evidence was presented, Midgett took the position that the videotape, with a small redaction, should be shown to the jury rather than allowing Detective Duven to testify about Midgett's statements. The State, however, told the court that it did not intend to introduce the tape as evidence. The trial court subsequently prohibited admission of the videotape. However, the court ruled that "if the defendant makes a decision to testify and is subject to cross-examination about what he said on the tape then I don't think there's any issue as to the tape being admitted into evidence or played for the jury."2
[¶ 12.] During Detective Duven's testimony in the State's case-in-chief, and over Midgett's objection, Duven was permitted to testify to Midgett's statements on the videotape. Duven also testified that the videotape would corroborate his testimony and that the tape was the best evidence of the statements. The State, however, continued to object to the introduction of the tape unless Midgett testified.
[¶ 13.] After Duven testified, the parties had another exchange concerning the videotape. Midgett offered it into evidence, and the State again objected. As it did before, the court ruled that the videotape could not be shown to the jury unless Midgett testified.
[¶ 14.] After Midgett did testify, he unexpectedly changed his position on the admissibility of the videotape. Although the State indicated that it would no longer object to its admission if Midgett wanted to offer the tape as evidence, Midgett asked for time to re-consider this offer. When the proceedings resumed the following day, Midgett changed his position and informed the court that he no longer wished to have the tape played.
[¶ 15.] However, during Midgett's cross-examination, he testified inconsistently with statements on the videotape: specifically, Midgett denied telling Duven that he had never had sex with K.R.B. prior to the day of the alleged offense. Consequently, Duven was recalled to rebut this denial. As a part of that rebuttal, the State asked to play two portions of the videotape reflecting Midgett's denial of previous sexual relations with K.R.B. As a part of this offer, the entire videotape was marked as "Exhibit 4," but "Exhibit 4" was not admitted into evidence. Instead, the parties engaged in the following discussion only agreeing to display "portions" of the tape to the jury:
Following this discussion, no formal ruling was made admitting "Exhibit 4." However, there is no dispute that only the two rebuttal portions then at issue were actually displayed to the jury.3
[¶ 16.] After both sides had rested, and after four and one-half hours of deliberation, the jury asked to see the "whole videotape." Midgett objected, stating that he "would object to the showing of the tape to the jury other than the parts that were actually published to the jury at the time that the trial was going on." The trial court, however, incorrectly ruled: "it does appear to the [c]ourt that the tape and I believe it was Exhibit 4 was admitted into evidence in its entirety." Therefore, the court permitted the jury to view the entire tape, without comment from any party, witness or attorney.
[¶ 17.] In permitting the jury to view the videotape, the trial court relied on State v. Smith, 1998 SD 6, 573 NW2d 515. However, Smith is inapposite. In Smith, a videotaped statement of a defendant was admitted into evidence during trial and was taken to the jury room as an exhibit. Because there was no tape player in the jury room, the jury asked for equipment to view the videotaped statement during its deliberations. We held that a properly admitted videotape of a defendant's statement could be replayed during jury deliberations.
[¶ 18.] Midgett's case is readily distinguishable. Although Smith "permits a jury to replay videotaped confessions during deliberations[,]" it must be properly admitted videotape evidence. Id. ¶19. In Midgett's case, only two small portions of the videotape were admitted into evidence. Therefore, under Smith, only the two "properly admitted" portions of Midgett's videotape could have been replayed for the jury in its deliberations. It was an error of law to permit the jury to review other videotape evidence that had never been admitted. See id. ¶18 ().
[¶ 19.] The State, however, argues that there was no error in showing the entire tape under the "doctrine of completeness." State v. Benyon, ...
To continue reading
Request your trial