State v. Reed, 15023

• Decision Date: 26 May 1986
• Docket Number: No. 15023,15023
• Citation: 387 N.W.2d 10
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Stanley Owen REED, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 10

387 N.W.2d 10

STATE of South Dakota, Plaintiff and Appellee, v. Stanley Owen REED, Defendant and Appellant.

No. 15023.

Supreme Court of South Dakota.

Argued Feb. 11, 1986.

Decided April 23, 1986.

Rehearing Denied May 26, 1986.

Grant Gormley, Chief Deputy Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Debra D. Watson and Benjamin J. Eicher of Wallahan Law Offices, Rapid City, for defendant and appellant.

WUEST, Justice.

Appellant, Stanley Owen Reed (appellant), was found guilty of attempted second-degree rape by a jury verdict and sentenced to the state penitentiary. He appeals and we affirm.

In September 1984, appellant was invited to the trailer house of Debra Baker Brown (Brown) to lay some carpet. Later that day, he was left alone with Brown's daughter, and the victim, a friend of the daughter. Both girls were fourteen years old and seventh graders.

There is a dispute in the testimony of appellant and the victim. Victim testified she was sitting on a bean bag chair when appellant began to tickle her. He said "I'm horny," and she replied, "Let's go." Appellant grabbed her, pulling her up, and she sat back down on the chair. He then got her back up and they walked toward the bedroom. As they went, she told him, "Don't." Upon entering the bedroom, appellant placed her on the bed and began to remove her shirt by lifting it up from the bottom. She again said to appellant, "Don't," and he replied, "I won't take no for an answer." She claimed he unhooked and removed her bra, as she tried to hold it on; that he then unzipped and unbuttoned her jeans pulling them down, although she tried to hold them up by hanging onto the belt loops. Appellant sat on her arms to keep her in position while he removed his clothing. While he was in a state of undress, the other girl entered the bedroom on her way to the bathroom, and discovered appellant with his pants and underwear down. The victim testified she softly called to the other girl but was afraid to speak loudly. She claimed appellant told the other girl to leave the room, which she did. Appellant then had sexual intercourse with the victim. She told him to refrain but he responded by placing his hand over her mouth. While they were engaged in intercourse, a car came to the trailer house and appellant told the victim to get her clothes on as he ran into the bathroom to dress. Three people entered the trailer as appellant and the victim came out of the bedroom fully dressed.

According to appellant's version, he and the two girls were sitting in the living room visiting when the victim stated to him, "Come on." She took him by the hand and led him into the bedroom in the trailer house while the other girl was talking on the telephone. When they entered the bedroom, the victim took off her clothing and got under the bedcovers. He began taking off his clothes and got his underwear and pants down to his knees. He had an erection, at which time the other girl entered the bedroom and said, "God, you guys." He and the victim immediately dressed and went into the living room, at which time three friends arrived. Appellant further testified that when he went into the bedroom with the victim and commenced taking off his pants he intended to have sexual intercourse with the victim; however, when the other girl came into the room he lost his erection, changed his mind, and immediately dressed, with nothing occurring between himself and the victim. The three friends came into the trailer and nothing was said about the incident for several weeks.

Several weeks after the incident, appellant and others were visiting at the Brown trailer house. According to people present at that occasion, appellant began boasting he had sexual intercourse with the victim and would do it again. Sometime after this conversation, Brown contacted the victim's mother and told her the girl had been raped. Victim's mother refused to believe Brown until she had asked her daughter if it was true. At first the victim repeatedly denied the fact, but finally admitted appellant had raped her. The incident was reported to the police department, which resulted in this prosecution for second-degree rape.

Prior to trial, appellant made a motion to prevent the state or any of its witnesses from testifying either directly or indirectly concerning his past criminal record for the reason that all of the offenses other than a third-degree burglary charge were misdemeanors. The motion further alleged the third-degree burglary conviction would be more prejudicial than probative and could lead the jury to believe that charge was another rape. On the day of trial, the court entered its order reserving its ruling "until immediately prior to the time the defendant is called as a witness, on his own behalf, should he decide to take the stand."

The first witness for the state was the victim. After the usual preliminary questions as to name, age, and address, the victim was asked if she knew Mr. Reed. After answering in the affirmative, the following occurred:

Q Do you know how old Mr. Reed is?

A Yes, He's in his twenties.

Q When did you first meet him?

A When he got out of jail.

Appellant immediately objected and made a motion to strike. The court promptly granted the objection and motion to strike. The court further admonished the jury to disregard the statement. Appellant then made a motion in chambers for a mistrial, claiming the state had violated the court's order, which was highly prejudicial to appellant. In response to the motion for a mistrial, the deputy state's attorney told the court the witnesses were instructed not to comment on defendant's record. Upon specific inquiry from the court whether he had admonished the witness, the deputy replied: "That's right, Your Honor. I will do it again." The court then observed the witness was a fourteen-year-old girl who was apparently nervous. The court did not believe the statement was prejudicial and denied the motion for mistrial. Afterward, on a motion for a new trial, the court said the answer was not a result of "bad faith or governmental overreaching or even negligence on the prosecutor's part." The court concluded:

I am finding that from my recollection of the events as they occurred, and although this was error, I am going to find that this error, defect or irregularity or variance does not affect substantially the rights of the Defendant. That the immediate admonishment and the curative instruction were sufficient.

Appellant claims the court's order was violated by the unsolicited response of the victim. The comments of counsel and the court indicate an assumption on their part that an order was violated. However, a careful examination of the record and transcripts reveals no such order was entered. Rather, a transcript of the pretrial hearing and another prior to trial clearly show the court refused to enter such an order, but reserved its ruling.

We recognize there are situations when a witness gives an unsolicited answer which is so prejudicial nothing but a new trial can assure the defendant due process. See State v. Schlittenhardt, 147 N.W.2d 118 (N.D.1966). Certain evidence or conduct may be such that it cannot be corrected by admonition. State v. Webb, 251 N.W.2d 687 (S.D.1977); State v. Norman, 72 S.D. 168, 31 N.W.2d 258 (1948); State v. Egbert, 63 S.D. 324, 258 N.W. 283 (1935).

In State v. Farley, 290 N.W.2d 491 (S.D.1980), wherein a witness gave an unresponsive answer that the van the defendant was arrested in on a robbery charge was stolen, we said: "The trial judge has wide discretion in determining the prejudicial effect of a witness' statements, and it is only when this discretion is clearly abused that this court will overturn a decision." 290 N.W.2d at 494 citing State v. Winckler, 260 N.W.2d 356 (S.D.1977). In State v Closs, 366 N.W.2d 138, 143 (S.D.1985), we said: " 'An actual showing of prejudice must exist to justify the granting of a mistrial.' State v. Clabaugh, 346 N.W.2d 448, 451 (S.D.1984). Trial courts have considerable discretion in ruling upon a mistrial."

The trial court's decisions denying appellant's motion for a mistrial and later a new trial were not abuses of discretion. It observed firsthand the effect of the remark upon the jury, and determined the jurors were capable of considering the remaining evidence in an unbiased manner despite the remark. We find no abuse of discretion there.

Appellant contends instructions numbered 5 and 13 were impermissibly modified by the trial court after the instructions had been settled. After both sides had rested, appellant and state appeared before the trial judge to settle the instructions, which were to be read orally to the jury and then presented to it in written form for its deliberations. Appellant made no objection to instruction number 5 at this time. The pertinent part of this instruction, as settled, stated:

The burden of proof rests upon the state to prove all material allegations of the Information and each and every doubt, and such burden of proof never shifts to the Defendant, but rests upon the State throughout the trial of the case to prove the Defendant guilty of the offense charged by proof beyond a reasonable doubt[.] (Emphasis added.)

As the trial judge read the instruction to the jury, he realized the word "doubt" in the first line of the instruction was an error and should have been "element," so he read the first sentence of the instruction to the jury with the word "element" in it rather than "doubt." The judge also drew a line through the word "doubt" and wrote above it the word "element."

Appellant's counsel did not object to this one-word change in the instruction nor did she approach the bench and ask for permission to make a record outside of the hearing of the jury. Indeed, counsel did not object to this alteration until the mitigation and sentencing hearing, when she moved for a new...