State v. Scott
| Decision Date | 03 April 2013 |
| Docket Number | No. 26321.,26321. |
| Citation | 2013 S.D. 31,829 N.W.2d 458 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Derrick P. SCOTT, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from the Circuit Court of the Seventh Judicial Circuit, Pennington County; Mary Thorstenson, Judge.
Marty J. Jackley, Attorney General, Craig M. Eichstadt, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
Paul Pietz of Rensch Law Office, Rapid City, South Dakota, Attorneys for defendant and appellant.
[¶ 1.] Defendant was convicted of aggravated assault. On appeal, he alleges multiple errors in his trial. We affirm all issues but one. On that issue, we remand for further proceedings on a potential Batson violation.
[¶ 2.] At 2:30 a.m. on July 16, 2011, Officer Evan Harris responded to a 911 call near North Maple Street in Rapid City. On arriving, he saw a shirtless man, Derrick P. Scott, pulling a woman, Theda Mesteth, across the parking lot. Mesteth began waving her hands at the officer and pulled away from Scott. On approaching Scott, the officer noticed blood smears across his chest and arms. Scott was handcuffed and seated in the patrol car.
[¶ 3.] Mesteth was lying nearby. Her face was swollen and covered in blood. Concerned that her cheekbones were broken, the officer did not attempt to move her. He tried to keep her calm while awaiting medical assistance. In the meantime, Officer Michael Shyne arrived and photographed Mesteth's injuries. An ambulance took her to the hospital.
[¶ 4.] Earlier that evening, according to trial testimony, Wenona De'Sersa came home from work to find Scott and his brother drinking in the living room. She lived in her cousin's home with Mesteth and Mesteth's five-month-old son. Scott is the baby's father. At some point later, everyone was drinking.
[¶ 5.] Around 2:00 a.m., Mesteth and Scott got into an argument: Scott had used Mesteth's phone to call another woman. Mesteth grabbed the phone from Scott's hands and picked up her son. As she walked out of the living room and into the kitchen, Scott followed. De'Sersa testified that Scott wrapped his arms around Mesteth's neck in a chokehold, causing her baby to slide down her body and onto the floor. De'Sersa tried to stop Scott, but he punched her on the side of her head. Scott continued his chokehold until Mesteth went limp. De'Sersa's nephew grabbed the baby, retreated to a bedroom, and locked the door. Scott dropped Mesteth, who fell unconscious to the kitchen floor, and ran after his son.
[¶ 6.] Scott yelled for his son and kicked the door, but ultimately came back to the kitchen. He grabbed Mesteth by the hair and punched her twenty times, by De'Sersa's count. He then dragged Mesteth outside through the entryway and continued to punch her. De'Sersa followed begging Scott to stop. He punched De'Sersa in the chest. Scott continued to punch and kick Mesteth until the police arrived.
[¶ 7.] At the hospital, an emergency room nurse, Robin Johnson, attended to Mesteth. Johnson noted that Mesteth's face was “really swollen, black and blue on the right side,” and that she was complaining of pain in her jaw and face, saying it hurt at the level of 10 on a scale of 1 to 10, with 10 being the most painful. Johnson also noted that Mesteth had slurred speech, but specifically observed that it was not similar to that of an intoxicated person. Mesteth told Johnson that she was punched and choked until she became unconscious.
[¶ 8.] Mesteth had been placed in a cervical collar. After a CT scan revealed no head injuries, Johnson removed the collar. With the collar gone, Johnson noticed a pool of blood beneath Mesteth's upper shoulder area, caused by an apparent stab wound. Mesteth also had a laceration behind her ear. Both wounds received stitches. Mesteth suffered neither broken bones nor brain injuries. She remained in the hospital for three days.
[¶ 9.] Mesteth did not testify at trial, but Scott was nonetheless convicted by a jury of aggravated assault. He then admitted to being a habitual offender, and the circuit court sentenced him to eleven years in the penitentiary. Scott appeals asserting that the court (1) abused its discretion when it allowed improper questioning during the State's voir dire, (2) allowed a Batson violation when the State exercised a preemptory challenge of a Native American juror, (3) abused its discretion when it admitted certain photographic evidence, (4) abused its discretion when it permitted a domestic violence expert to testify, (5) violated his right of confrontation by restricting his cross examination of the emergency room nurse, and (6) erred when it denied a judgment of acquittal for insufficient evidence to sustain the verdict.1
[¶ 10.] Scott argues that the State's questions during jury selection implanted notions in the prospective jurors' minds that would not later be supported by the evidence. According to Scott, the State went beyond asking potential jurors whether they would be able to convict Scott if Mesteth did not testify or whether they would be biased because Mesteth might not testify. In Scott's view, the State sought to “educate” potential jurors on reasons why victims of domestic violence might not testify, and thereby persuade them to the State's viewpoint and test its trial strategy of not calling Mesteth as a witness.
[¶ 11.] When this issue arose during voir dire, Scott timely objected, and the court took a short recess to address it. Scott contended in chambers that the State's questions were an attempt to speculate with potential jurors why Mesteth would not testify. In response, the State asserted that “this is a point to educate the jury.” The court replied, The court directed the State to keep its questions general,
[¶ 12.] Back in court, the State asked the following questions:
State: [W]hat do you think of when you hear the terms domestic violence or domestic abuse?
Potential Juror: Usually it's while people that are living together, it's right in the home, there's violence going on or abuse. It could be one or both parties, whoever.
State: There's usually two parties involved?
Potential Juror: I think so. I guess there could be more.
State: And when you think about domestic, when you put that domestic word on there, what do you think, like what type or what people are you thinking about?
Potential Juror: Probably specifically people that are married or live together.
State: Or living together. Would it surprise you to know that domestic violence can apply to family members, too?
Potential Juror: Yes, like children.
State: Okay. Or brothers and sisters and stuff like that?
Potential Juror: No, that doesn't surprise me.
State: That makes sense to you.
Potential Juror: Yes.
State: Does anybody here—how many of you feel that prosecuting domestic violence crimes is a waste of taxpayer money? Does anybody think that what happens in the home stays in the home? Now, why does the State or why does law enforcement need to get involved? Does anybody feel like that?
Potential Juror: Yes.
State: Do you feel like that? Do you question the State why we would get involved in domestic violence situations?
Potential Juror: No, because a lot of those, I think if you're involved, at that point somebody needs to stand up for the victim.
State: Okay. When you say “somebody needs to stand up for the victim,” what do you mean by that?
Potential Juror: Well, to me, most of the times if it's maybe a domestic thing, one spouse will not go against the other spouse for whatever reason it is, maybe there's kids involved, planning a family, family relationships being affected, but if there's been an actual harm, somebody still needs to stand up for that victim.
State: Okay.
Potential Juror: So I guess that's where I see the State stepping in and doing so. They probably don't, you know, have means to, quote, sue them. It's not a civil matter.
State: Okay. So would you agree that it's—if I told you that it is the State that brings the charges against the domestic abuser and not the victim?
Potential Juror: Yes.
State: Okay. Thank you. [ ] Would it surprise you if a victim, as we were just kind of talking about, would not come in and testify against her abuser in court?
Potential Juror: No, that doesn't surprise me at all.
Scott: Objection.
Court: Overruled. Go ahead.
State: It wouldn't surprise you?
Potential Juror: That she wouldn't come in and testify or the victim wouldn't come in and testify?
State: Yes.
...
State: What are some of the things or why would that not surprise you?
Potential Juror: Scared; maybe scared to testify against her abuser.
State: Thank you. Does anybody else have any reasons why they think a victim of domestic violence would not come in and testify against her abuser?
Potential Juror: A possible restraining order that is in place and one or the other has to be in the courtroom but both can't be unless otherwise forced by law enforcement.
State: And generally protection orders, I think it's fair to say this, kind of become null when both parties need to be inside the courtroom. That's—yes, protection orders, there might be a protection order. Anybody have anything else?
Scott: I would ask to renew my objection.
Court: Overruled. [State], move forward.
State: Thank you. What are some other reasons?
Potential Juror: Children.
Potential Juror: Ashamed.
State: What do you mean by that?
Potential Juror: They feel—they just feel ashamed personally. They don't want it made public or whatever.
State: Ashamed about the...
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