State v. Percy

• Decision Date: 28 September 1962
• Docket Number: No. 9956,9956
• Citation: 117 N.W.2d 99,80 S.D. 1
• Parties: STATE fo South Dakota, Plaintiff and Respondent, v. Dale PERCY, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 99

117 N.W.2d 99

80 S.D. 1

STATE fo South Dakota, Plaintiff and Respondent, v. Dale PERCY, Defendant and Appellant.

No. 9956.

Supreme Court of South Dakota.

Sept. 28, 1962.

Horace R. Jackson, Rapid City, for defendant and appellant.

A. C. Miller, Atty. Gen., Joseph H. Bottum, III, Asst. Atty. Gen., Pierre, James H. Wilson, State's Attorney, Rapid City, for plaintiff and respondent.

RENTTO, Presiding Judge.

The defendant was convicted of indecently molesting a male child of the age of five years. As authorized by our habitual criminal statute his term of imprisonment was enhanced to twice the maximum--40 years. This appeal from such judgment is prosecuted by counsel appointed by the court but not the same counsel who represented him on the trial, also by court appointment.

Many of the errors assigned question the validity of our habitual criminal statute and the manner in which it was here invoked, as well as the procedures followed in its utilization. Concerning the trial itself his principal complaint is that a witness who identified human sperm in a smear taken from the victim's body shortly after the incident was not qualified to testify.

On the morning of October 10, 1960, the victim left his home at 10 or 15 minutes before 9 to attend kindergarten at his school one block away. His mother next saw him that morning on the porch of their home about 9:30. She said 'he was crying in a frightened sort of way'. As he came into the house he walked with some difficulty, rather stiff-legged, holding his hand on his rectum and said to her 'Mommy, a man took me in his truck and he hurt me.'

In examining the victim's body his mother observed bright red blood around the anus or rectum and dried blood and soil on his underwear and anus. He was then taken to the Medical Center where Dr. Bailey examined him and, with a sterile swab, took a smear of the anal opening. This he gave to the laboratory technician who prepared a slide from it which she examined microscopically. She testified that after viewing the slide for several minutes she found what she felt to be human sperm, or what she thought appeared to be human sperm.

This technician had taken an 18-months course at the College of Medical Technology in Minneapolis. Twelve months of this were devoted to studies of laboratory work and six months to X-ray. In her training she had been taught to recognize human spermatozoa under a microscope. She was not registered as a medical technologist by The American Society of Clinical Pathologists but had been employed by the Medical Center for about 6 1/2 years as a technician. This was her first occasion to examine a smear from the rectal area. However, she had previously examined vaginal smears.

On her cross-examination appears this question and the following answer:

'Q. Now, Phyllis, I notice that you very carefully qualified your answer by saying what appeared to be human sperm. Does that mean that you are not exactly sure what you saw was human sperm?

'A. I am not qualified to say whether it was sperm or not.'

Thereupon the defendant moved that her previous testimony as to the presence of human sperm on the slide be stricken because she admitted being unqualified to testify as to such matters. This was denied.

The qualification and competency of a witness to speak as an expert is primarily in the discretion of the trial court and his ruling will be disturbed only in case of a clear abuse of discretion. State ex rel. Helgerson v. Riiff, 73 S.D. 467, 44 N.W.2d 126; Wentzel v. Huebner, 78 S.D. 481, 104 N.W.2d 695. However, if a witness offered as an expert disclaims qualification to testify on the matter under inquiry manifestly his testimony is inadmissible. Wehner v. Lagerfelt, 27 Tex.Civ.App. 520, 66 S.W. 221; Maryland & P. R. Co. v. Tucker, 115 Md. 43, 80 A. 688; Mitchell v. Slye, 137 Md. 89, 111 A. 814; Cumberland & Westernport Transit Co. v. Metz, 158 Md. 424, 149 A. 4; Fisher v. Flanagan Coal Co., 86 W. Va. 460, 103 S.E. 359; Reimers v. Petersen, 237 Iowa 550, 22 N.W.2d 817. We have not overlooked those cases which hold that an expert witness is not incompetent to testify merely because he chooses not to refer to himself as an expert. That situation is not presented. Rather, we have here a witness who stated she was not qualified to answer the specific inquiry.

The logic of this view is well stated by the Supreme Court of New Jersey in Guzzi v. Jersey Central Power & Light Co., 12 N.J. 251, 96 A.2d 387. It is there written:

'The witness was not at all certain of the supposed knowledge offered as well founded in special and peculiar experience. Knowledge is an essential element of testimonial qualifications, and such testimony as was tendered here has no probative force unless the witness is fitted to answer on the point. The witness, himself, said he did not know. While absolute certainty is not the standard of testimonial worth, there must needs be a showing of observation or knowledge proceeding from experience sufficient to qualify the witness to express an opinion on the subject matter. Wigmore on Evidence (3rd ed.), sections 555 et seq. Compare Carbone v. Warburton, 11 N.J. 418, 94 A.2d 680 (1953). Here, the eventual concession made by the witness would seem to be a disavowal of the requisite testimonial expert qualifications, or, at the very least, an unsureness that militates against the trustworthiness of his opinion.'

This reasoning seems to us especially applicable here. Accordingly we feel compelled to hold that the court erred in not striking the questioned evidence.

While it is not material on this point we think it proper to observe that Dr. Wayne A. Geib, a physician trained and practicing as a pathologist, called as an expert witness by the court, testified there were no structures on the slide in question that he identified as sperm after a search of approximately two hours. He also stated there were many objects on the slide which 'superficially resemble sperm'.

To determine whether this error was prejudicial we must examine other circumstances in the case. SDC 1960 Supp. 13.1727, the statute under which defendant was prosecuted, provides:

'Any person who shall willfully and unlawfully commit any lewd or lascivious act upon or with the body, or any part or member thereof, of a child under the age of fifteen years, with the intent of arousing, appealing to, or gratifying the lust or passion or sexual desires of such person, or of such child, shall be guilty of the crime of indecent molestation of a child.'

In all cases arising under this section the purpose of the perpetrator in touching the child is the controlling factor. Proof that it was done with the intent of arousing, appealing to, or gratifying the lust or passion or sexual desires of the perpetrator, or of the child, is essential to a conviction. Of course, proof of this fact, like any other, may be made circumstantially.

No good purpose would be served by reviewing here the remaining evidence in the case. Suffice it to say there was no other evidence of any sperm in the smear taken from the victim's body except that given by the technician and that because of his infancy the victim was not permitted to testify. After carefully studying the record we are satisfied that a jury could find beyond a reasonable doubt that the defendant committed an act upon the body of the child resulting in the injury to him testified to by his mother and Dr. Bailey. The critical issues in this case are the nature of the act and the intent with which it was done.

Implicit in the verdict is the finding that the act was committed with the intent specified in the statute. We think it beyond question that the challenged evidence in all probability was an effective factor in producing this result. It was the only evidence other than the nature of the victim's injury bearing on the perpetrator's intent. While the evidence establishes the time and place where the injury was inflicted there is no evidence except the technician's, as to how. Errors that in another case are harmless may be of great importance if committed in a case like this. People v. Adams, 14 Cal.2d 154, 93 P.2d 146, 153. The California Supreme Court in People v. Evans, 39 Cal.2d 242, 246 P.2d 636, wrote concerning a prosecution under a similar statute:

'In a case such as this where the crime charged is of itself sufficient to inflame the minds of the average person, it is required that there be rigorous insistence upon observance of the rules of the admission of evidence and conduct of the trial.'

Consequently we must hold that the refusal to strike the questioned evidence was prejudicial to the substantial rights of the defendant.

He also complains that over objection the victim's mother was permitted to testify as to statements made to her by the victim at 8:30 a. m. on the day following the incident, as she was parking their car at a grocery store, identifying the defendant as the one who assaulted him. It is contended that these declarations by the victim are inadmissible because they are not sufficiently contemporaneous with the event.

Concerning this kind of evidence, in State v. McFall, 75 S.D. 630, 71 N.W.2d 299, we quoted with approval the following generalization by Professor Wigmore:

'Under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock.'

An extra judicial statement made in these circumstances is regarded as being trustworthy and consequently admissible. Such statements are admissible even if not strictly contemporaneous with the exciting cause. The critical inquiry is whether they were made while declarant was still under the influence of the experience. Wigmore on Evidence, 3d Ed.,...