State v. Moriarty, 17900

• Decision Date: 13 January 1993
• Docket Number: No. 17900,17900
• Citation: 501 N.W.2d 352
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. John Francis MORIARTY, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 352

501 N.W.2d 352

STATE of South Dakota, Plaintiff and Appellee, v. John Francis MORIARTY, Defendant and Appellant.

No. 17900.

Supreme Court of South Dakota.

Considered on Briefs Jan. 13, 1993.

Decided June 2, 1993.

Mark Barnett, Atty. Gen., Charles D. McGuigan, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Rita Haverly Allen, Hagen, Wilka, Schreier & Archer, Sioux Falls, for defendant and appellant.

SABERS, Justice.

Defendant, John Francis Moriarty (Moriarty) appeals his conviction of rape in the second degree.

FACTS

On an evening in early May, 1991, S.M.'s mother left for work leaving S.M., a girl age eight, and her two siblings under the care of S.M.'s stepfather, Moriarty. The mother had left Moriarty with instructions to wash S.M.'s hair that evening. According to S.M., when Moriarty took a bath that night, he asked S.M. to get into the bathtub with him. S.M. was required to wash Moriarty's chest, stomach, and erect penis. Moriarty rubbed S.M.'s vaginal area. The following day, S.M. told her mother that she had taken a bath with Moriarty. It was approximately five days later, however, when S.M. told her mother that she had been required to wash Moriarty and that his penis was "hard, ... gross." Because the mother did not think anything had happened, she did not pursue it further.

Later that month, S.M. told her babysitter, Leah DeWald (DeWald), that she had been anally raped by her stepfather, Moriarty. In explaining her allegations to DeWald, S.M. drew a number of pictures which DeWald kept. Two of the pictures were subsequently entered into evidence.

DeWald showed the pictures to a friend, Nicole Cummings, who told her mother, Candice Cummings (Cummings), a social worker with Family Services, about the pictures. DeWald showed the pictures to Cummings and the following morning, May 14, 1991, Cummings reported what she had learned to Protective Services, Department of Social Services.

When S.M. was interviewed by Amanda Loving (Loving), a social worker for Child Protection Services, she told Loving that she had been sodomized on at least two occasions by Moriarty and forced to engage in oral copulation. Dr. Brent Willman (Willman), a pediatrician at Central Plains Clinic, examined S.M. for physical evidence of vaginal penetration, sodomy and copulation. No physical evidence of rape was found.

On June 6, 1991, Moriarty was indicted by a Grand Jury on one count of Rape in the Second Degree. Following a three day jury trial, he was found guilty of rape in the second degree and sentenced to serve seventy-five years, with twenty-five suspended on the condition that he never reside with children under fifteen years of age.

Moriarty raises six issues on appeal.

1. Whether his confrontation clause rights were violated by the hearsay testimony of the babysitter, Leah DeWald.

2. Whether his confrontation clause rights were violated by the hearsay testimony of Candice Cummings.

3. Whether the testimony of Candice Cummings invaded the province of the jury.

4. Whether the prosecutor engaged in prosecutorial misconduct when questioning Dr. Willman in violation of Moriarty's confrontation clause rights.

5. Whether the prosecutor engaged in prosecutorial misconduct by securing the absences of S.M.'s family members during her testimony and then making reference to this absence in closing argument.

6. Whether the trial court abused its discretion in prohibiting Moriarty's expert from presenting testimony concerning the behavioral characteristics of a sexually abused child and in prohibiting the expert from presenting case specific testimony.

1. Hearsay testimony of DeWald.

Moriarty argues that his confrontation clause rights were violated by the hearsay testimony of the babysitter, Leah DeWald. Moriarty claims that even though DeWald's testimony constituted hearsay, she was not named in the State's Notice of Intent to Offer Hearsay Statements of Child Under Ten, nor was the requisite hearing to determine reliability conducted, and this violated his confrontation clause rights.

We review evidentiary rulings on the basis of abuse of discretion. "For us to disturb the evidentiary rulings of the circuit court, we must determine that an abuse of discretion has occurred. Once again, an abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence." State v. DeVall, 489 N.W.2d 371, 374 (S.D.1992) (citations omitted).

Initially, the State argues that Moriarty failed to object to the testimony of DeWald at trial ¹ and the issue has not been preserved. This is incorrect. The trial court did not address his objection at the time DeWald testified. Later in the trial, however, the court acknowledged Moriarty's desire to object at the time of DeWald's testimony and allowed the objection to be made at that time as if it had been made at the time originally requested. Because the court had already allowed DeWald to testify, his ruling on the objection was clearly a denial.

Next, the State argues that the testimony of DeWald was admissible under SDCL 19-16-38. "Out-of-court statements by a minor sexual abuse victim are admissible at trial, provided the provisions of SDCL 19-16-38 ² are met." State v. Buller, 484 N.W.2d 883, 885-86 (S.D.1992) (citations omitted). SDCL 19-16-38 requires notice by the proponent of the statement of intent to offer the statement and the particulars of it, and a hearing, outside the presence of the jury, where the court must find sufficient indicia of reliability.

The State argues that while DeWald was not named in State's Notice of Intent to Offer Hearsay Statements, Moriarty had sufficient notice. The only notice Moriarty received was that hearsay statements from DeWald would be offered into evidence if the declarant, S.M., was unavailable. Since S.M. testified at the trial she was available. Therefore, this "notice" could be characterized as "conditional" at best.

Additionally, the trial court failed to conduct a hearing outside the presence of the jury or "make a determination on the record prior to trial that sufficient indicia of reliability existed within the evidence presented" as required by SDCL 19-16-38. Buller, 484 N.W.2d at 887.

[T]he confrontation clause requires a finding of sufficient indicia of reliability for the hearsay statements even if the declarant is available for cross-examination.

. . . . .

[T]he indicia of reliability requirement can be met in two ways: (1) where the statements fall within a firmly rooted hearsay exception or (2) where it is supported by a showing of particularized guarantees of trustworthiness. SDCL 19-16-38 is not a firmly rooted hearsay exception. Therefore, to satisfy the confrontation clause requirement, the statements must be supported by a showing of particularized guarantees of trustworthiness from the totality of the circumstances surrounding the making of the statements.

Id. (Citations omitted.)

The State argues that sufficient findings of reliability existed in the grand jury records. A grand jury proceeding, during which the defendant's presence is not allowed, is not a substitute for the statutorily mandated hearing, nor does it alone provide the requisite indicia of reliability. SDCL 19-16-38 is not a firmly rooted hearsay exception. The only way in which the indicia of reliability requirement could be met was by a showing of reliability. This was never done. Therefore, we must reverse on this issue unless this testimony was admissible as a prior consistent statement.

The State argues on appeal that DeWald's testimony was admissible as a prior consistent statement under SDCL 19-16-2(2). ³ "The admission or rejection of a prior consistent statement is within the sound discretion of the trial court and will not be disturbed except when there has been prejudicial abuse of discretion." United States v. Red Feather, 865 F.2d 169, 171 (8th Cir.1989) (citations omitted).

Before a prior consistent statement will qualify as nonhearsay under the rule, the proponent must demonstrate three things. First, he must show the prior consistent statement is consistent with the witness' in-court testimony. Second, he must establish that the statement is being used to rebut an express or implied charge against the witness of recent fabrication or improper motive or influence. Finally, the proponent must demonstrate that the prior consistent statement was made prior to the time the supposed motive to falsify arose.

State v. Thompson, 379 N.W.2d 295, 296 (S.D.1985) (citation omitted); DeVall, 489 N.W.2d at 376 (citations omitted).

Moriarty does not claim that the testimony of DeWald was inconsistent with S.M.'s testimony on direct examination as in State v. Ager. ("Consistency of prior consistent statements does not require a verbatim recitation of the witness' testimony. What the test does require is that the prior consistent statement be compatible with, and not contradictory to, the witness' testimony." State v. Ager, 416 N.W.2d 871, 872-73 (S.D.1987)). Nor does he deny that he attempted to impeach S.M. during cross-examination with her grand jury testimony, a key issue in State v. DeVall. ("SDCL 19-16-2(2) requires impeachment of the witness as a precondition to admissibility." DeVall, 489 N.W.2d at 376 (citations omitted).) Therefore, the first and second conditions are met. Rather, Moriarty argues that the State failed the third condition of the test because S.M.'s motive to falsify arose as early as 1987, when Moriarty married S.M.'s mother. He claims the consistent statements were made after the motive to falsify arose, which makes them inadmissible as hearsay. See State v. Younger, 453 N.W.2d 834, 839 (S.D.1990) (alleged motive to falsify, which was fear of rapists' threats of further harm, arose contemporaneously with the rape, making all subsequent statements inadmissible hearsay and excluded).

According to Moriarty, S.M. was resentful of him in...