State v. Red Star

• Decision Date: 02 May 2001
• Docket Number: No. 21309.,21309.
• Citation: 2001 SD 54,625 N.W.2d 573
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Thomas D. RED STAR, Defendant and Appellant.
• Court: South Dakota Supreme Court

625 N.W.2d 573

2001 SD 54

STATE of South Dakota, Plaintiff and Appellee, v. Thomas D. RED STAR, Defendant and Appellant.

No. 21309.

Supreme Court of South Dakota.

Argued November 28, 2000.

Decided May 2, 2001.

Mark Barnett, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, for plaintiff and appellee.

Lelia L. Hood, Pierre, for defendant and appellant.

AMUNDSON, Justice.

[¶ 1.] Thomas Red Star was convicted of first-degree burglary and attempted second-degree rape. We affirm in part, reverse in part and remand.

FACTS

[¶ 2.] On July 1, 1998, Thomas Red Star accompanied a friend to a house party in Pierre, South Dakota. The party took place inside an apartment within an apartment complex, where Shannon Spears resided. At the party, alcohol was consumed until the early morning hours. Because of the hour, Red Star and his friend were asked to leave the apartment, as they were the only remaining guests. Red Star and his friend amicably left Spears' apartment and proceeded to another apartment down the hall where his friend resided.

[¶ 3.] According to Spears' testimony, on July 2, 1998, between the time of 3 a.m. and 4 a.m., Red Star gained entrance to her apartment by way of a balcony. Once inside, Red Star allegedly attempted to rape Spears, as she lie asleep. Before Red Star could consummate his mission, Spears awoke and chased Red Star from her apartment. Spears' boyfriend, Antonio Garcia, also awoke as he was lying on the same bed as Spears, and chased and physically assaulted Red Star due to Red Star's contact with his girlfriend.

[¶ 4.] Red Star came to the attention of police around 6 a.m. when he was sighted near the Pierre Water Department facility. The first officer at the scene noticed that Red Star had a bloody nose and swollen lip. The officer asked Red Star what had happened. Red Star responded that he had been assaulted. After being transported to the apartment complex, Red Star identified his assailant walking outside. The officer inquired of Antonio Garcia regarding the assault. Garcia responded to the inquiry by advising the officer that Red Star had raped his girlfriend.

[¶ 5.] After further investigation, Red Star was charged with attempted second-degree rape in violation of SDCL 22-4-1 and 22-22-1(4), and first-degree burglary in violation of SDCL 22-32-1. In the first trial, on August 17, 1999, the trial court conducted a motions hearing where the court decided to admit certain statements Red Star made to inmates and jailhouse personnel while awaiting trial. The trial court, however, denied the admission of any mention of a prior act where, in 1994, Red Star allegedly sexually assaulted a disabled female in Meade County. The trial resulted in a hung jury.

[¶ 6.] The retrial commenced on October 15, 1999, and Red Star was convicted on both counts. In this retrial, the court allowed the State to present evidence relating to a Meade County incident involving an alleged rape. Red Star was sentenced to serve two concurrent eight-year sentences. Red Star filed an appeal, stating the following issues:

1. Whether the trial court erred in admitting evidence of a prior bad act of an alleged rape and whether the trial court erred in denying the defense to challenge the evidence of the alleged rape. 2. Whether the jury instructions for first-degree burglary comport with applicable state law.

3. Whether the trial court erred in allowing statements made by Red Star to two inmates at the local jail and to law enforcement personnel as voluntary.

4. Whether the trial court erred in holding Red Star competent to stand trial.

ISSUE 1

[¶ 7.] Whether the trial court erred in allowing evidence of a prior bad act of an alleged rape and whether the trial court erred in denying the defense to challenge the evidence of the alleged rape.

[¶ 8.] On March 10, 1999 the trial court heard arguments by counsel on the motion to introduce prior bad act evidence. In denying the State's motion, the court stated:

I just can't see how the fact that a person has done an act of rape previously is fair to present to the trier of fact in the present case because there is so much tendency to believe that if it happened once before it probably happened again, and that's exactly what the law says we can't allow it for.... I just don't see how any of those matters are addressed by the other act evidence that the State wants to provide and the motion to introduce that information is denied.

After making such ruling, the trial court issued an order denying the State's Motion for Introduction of Specific Other Act Evidence on August 9, 1999. In the trial court's order, it states:

[T]he Court having found that the facts of the prior bad act are dissimilar to the charges herein and that there is no relationship to the facts of the current allegations.... [T]he Court having found that the pro-offered evidence would be unfairly prejudicial in the sense that it would cause the jury to believe if it happened once before, it probably happened again; the Court finds that the sole reason for showing the Defendant's propensity to commit the crimes charge[d] and the pro-offered evidence is therefore irrelevant; the Court further having found that, the prior bad act evidence does not show motive, opportunity, intent, preparation, plan, identity, absence of mistake or accident ... it further being in the interest of justice... the State's Motion ... is hereby denied.

[¶ 9.] After the jury was unable to reach a verdict in the first trial, the State, in its retrial of Red Star, again made a motion to introduce the prior bad act evidence. On October 6, 1999, the trial court again heard pre-trial motions, including the State's motion to introduce prior bad act evidence. After this motion hearing, the court held that Red Star's intent was at issue, and it would allow this evidence to be introduced at the second trial. The court, without further explanation, also found that although the evidence was abundantly prejudicial, it was "far more probative than its prejudicial effect."

[¶ 10.] A trial court's ruling on a motion to suppress is reviewed under an abuse of discretion standard. State v. McGarrett, 535 N.W.2d 765, 767 (S.D. 1995); State v. Almond, 511 N.W.2d 572, 574 (S.D.1994); State v. Johnson, 509 N.W.2d 681, 683 (S.D.1993). An abuse of discretion occurs only if no judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached the same conclusion. Wuest v. McKennan Hosp., 2000 SD 151, 619 N.W.2d 682. Evidentiary rulings made by the trial court are presumed correct. State v. Larson, 1998 SD 80, ¶ 10, 582 N.W.2d 15, 17. Red Star must prove not only that the trial court abused its discretion by allowing prior bad act testimony, but that he was prejudiced by such error. SDCL 15-6-61.

[¶ 11.] Bad act evidence is controlled by SDCL 19-12-5, which provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

We have recently stated that SDCL 19-12-5, patterned after Federal Rules of Evidence 404(b), is a rule of inclusion, rather than a rule of exclusion. State v. Wright, 1999 SD 50, ¶ 13, 593 N.W.2d 792, 798; but see Wright, 1999 SD at ¶ 38, 593 N.W.2d at 805 (Sabers and Amundson, J.J., dissenting). Bad acts evidence under 404(b) "is admissible when similar in nature and relevant to a material issue[.]" Wright, supra, at 800. This rule is borne out of the need to prove an element of the crime, not to show he is a bad person. Id.; see also State v. Werner, 482 N.W.2d 286 (S.D. 1992) (Sabers and Amundson, J.J., dissenting)

. Without such showing of relevance, such evidence is inadmissible under 404(b). The bad acts evidence in this case is relevant to the issue of specific intent, an element of the crime of attempted rape. Therefore, the state has shown relevance for the other act evidence.

[¶ 12.] In Wright, however, we held that certain safeguards must be taken into account before the jury could consider prior bad acts. The relevant safeguard at issue here is that "[b]efore a jury may consider facts relating to other acts as proof of an issue relevant to the present offense, the jury must conclude the defendant committed the other acts by a preponderance of the evidence." Wright, 1999 SD ¶ 14, 593 N.W.2d at 799. It is clear the jury did not make this determination, as no jury instruction was given as to the necessity of them finding that the Meade County rape actually occurred. Even the trial court readily admitted at least three times at the October 6, 2000 motion hearing that it did not matter or it was irrelevant whether Red Star committed the prior bad act. This is clearly impermissible under Wright. The threshold safeguards delineated in Wright are jealously protected and interminably enforced. By failing to demand the jury to determine whether the 1994 incident actually occurred, the trial court abused its discretion.

[¶ 13.] Likewise, it was also error for the trial court to deny Red Star the opportunity to challenge the credibility of the underlying prior bad act of the alleged rape in Meade County. Beside the reverse field of the trial court in allowing the prior bad act evidence, Red Star was not permitted to challenge the credibility of that evidence.¹ Red Star wanted to challenge the evidence used by the State with expert testimony explaining incriminating statements he had made and allow the experts to inform the jury of Red Star's mental state at the time these statements were made. "When a defendant is denied the ability to respond to the State's case against him, he is deprived of `his fundamental constitutional right to a fair opportunity to present a defense.'" Crane v. Kentucky, ...