State v. Shepley

• Decision Date: 26 April 1989
• Docket Number: No. 16112,16112
• Citation: 440 N.W.2d 294
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Sammy B. SHEPLEY, Jr., Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 294

440 N.W.2d 294

STATE of South Dakota, Plaintiff and Appellee, v. Sammy B. SHEPLEY, Jr., Defendant and Appellant.

No. 16112.

Supreme Court of South Dakota.

Argued Jan. 11, 1989.

Decided April 26, 1989.

Wade A. Hubbard, Asst. Atty. Gen., (Roger A. Tellinghuisen, Atty. Gen., on the brief), Pierre, for plaintiff and appellee.

Patrick M. Schroeder, Minnehaha County Public Defender, Sioux Falls, for defendant and appellant.

WUEST, Chief Justice.

Defendant, Sammy B. Shepley, Jr., was convicted of first degree rape. Following his conviction, defendant filed a motion for a mistrial and a motion for a new trial. These motions were based upon two comments allegedly made by the assistant state's attorney during closing argument. The trial court denied both motions. Defendant now appeals to this court, contending that the trial court erred in denying his motion for a mistrial and in refusing to grant him a new trial because the remarks made by the assistant state's attorney were improper and highly prejudicial, thereby denying defendant of his right to a fair trial. We disagree with defendant's contention and affirm his conviction.

Defendant's conviction of first degree rape stems from an incident which occurred in the early hours of August 30, 1987, in Sioux Falls, South Dakota. According to the rape victim's testimony, she met defendant at a Sioux Falls bar where they danced several times. Upon the bar's closing, defendant asked the victim to drive him to a party hosted by some of his friends. The victim acquiesced to defendant's request and drove him to the party, stopping en route at defendant's residence. When the two arrived at the party's location, the victim indicated to defendant that she did not want to go to the party. Defendant then asked her to drive him to his home after he briefly visited with his friends. The victim again complied with defendant's request. On the trip back to defendant's home, defendant began to fondle the victim. She resisted defendant's advances and demanded that he discontinue this behavior. When they reached defendant's residence, defendant took off his pants and also attempted to remove the victim's clothing. A struggle ensued in the car which resulted in the victim's sustaining an injury to her left eye. Eventually, defendant overpowered the victim and forced her to have sexual intercourse with him.

Defendant testified on his own behalf at the trial. He denied having raped the victim, claiming that she consented to the sexual encounter. Defendant also denied striking the victim in the eye.

In this appeal, our attention is directed toward two statements allegedly made by the assistant state's attorney during closing argument. It is difficult to ascertain with specificity what was said by the assistant state's attorney because he and defense counsel waived transcription of the closing arguments. The only documentation of these comments consists of defense counsel's recollection as set forth in an affidavit supporting defendant's motion for mistrial and his motion for a new trial. This affidavit was prepared five days after the conclusion of defendant's trial. No opposing affidavit was submitted by the state.

According to the affidavit, the assistant state's attorney's first objectionable remark concerned the injury to the victim's left eye. At trial, the assistant state's attorney elicited testimony from the victim's boyfriend, Wayne Boer (Wayne), that he had never struck the victim. In an attempt to impeach Wayne's testimony, defense counsel called to the stand Wayne's ex-wife, Ann Boer (Ann). Ann testified that Wayne had struck her several times during their marriage. During closing argument, the assistant state's attorney allegedly stated in regard to Ann's testimony, "Apparently, the trial judge in the divorce action didn't believe her."

The other statement of which defendant complains regarded his credibility. According to defense counsel's affidavit, the assistant state's attorney stated, "Even defendant's attorney doesn't believe the defendant."

At the hearing regarding defendant's motion for a mistrial and his motion for a new trial, the trial judge acknowledged that defense counsel appropriately objected to both comments when they were made. In addition, the trial judge recalled that he had sustained both objections and had instructed the jury to disregard both remarks unless they were supported by a fair inference drawn from the evidence. The trial judge further noted that defense counsel failed to move for a mistrial at any time during the course of the assistant state's attorney's closing argument. Had defense counsel made such a motion, the trial judge then would have had to determine whether the assistant state's attorney's remarks were so improper and prejudicial as to require a mistrial. Since no motion for a mistrial was made during the assistant state's attorney's closing argument and because the trial judge believed the evidence of defendant's guilt was overwhelming by the time the case was submitted to the jury, defendant's motions for a mistrial and a new trial were denied.

On appeal to this court, defendant contends that the statements allegedly made by the assistant state's attorney denied him a fair trial. He argues that this case, like other rape cases, rested on the credibility of the witnesses. As a result of the assistant state's attorney's comments, defendant claims that his credibility was irreparably damaged despite the trial court's admonishing the jury. The state argues that defendant failed to present a reviewable issue to this court because no adequate trial record exists. Defendant counters this argument by asserting that an attempt was made to reconstruct the record via defense counsel's affidavit. In the alternative, defendant claims that the trial court's refusing to grant a mistrial constitutes plain error.

This case presents to us two concerns, neither of which we are particularly fond. We are first concerned with the allegations of prosecutorial misconduct. On more than one occasion, we have decried attempts by prosecuting attorneys to use disingenuous trial tactics which have the effect of endangering or obviating a defendant's right to a fair trial. Our second concern regards the waiving of the transcription of voir dire, opening statements and closing arguments by counsel for both parties in the present case. We question the attorneys' wisdom and foresight and recommend that the trial courts refrain from approving this practice in felony cases. ¹

On three recent occasions, this court has been asked to assess a prosecuting attorney's allegedly improper remarks which were to be found nowhere in the record because transcription of opening statements or closing arguments had been waived. Each time, we held that we could not independently review the prosecutor's allegedly improper comments because of the incomplete record and that we had to presume that the trial court acted correctly. See State v. Olson, 408 N.W.2d 748 (S.D.1987); State v. Garton, 390 N.W.2d 61 (S.D.1986); State v. McNamara, 325 N.W.2d 288 (S.D.1982).

The present case is similar to the three cases cited above, but it adds a new dimension. Here, defense counsel attempted to reconstruct the record by setting forth in an affidavit his recollection of the assistant state's attorney's remarks. Defendant claims that this attempt to reconstruct the record provides a basis for his appeal to this court. In support of his contention, he cites State v. Dupris, 373 N.W.2d 446 (S.D.1985).

In Dupris, this court upheld the trial court's granting the defendant a new trial because one-half of the complete trial transcript was unavailable for appeal or counsel's review. We, however, stated:

This is not to suggest that in all future cases wherein the transcript, stenographic notes, or portions thereof are missing or lost, that the aggrieved party is carte blanche entitled to a new trial.... Other equivalent pictures of the trial proceedings may assure a defendant's right to appeal. "Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise." ... [P]arties may prepare a statement of the proceedings, a statement of the case, or a stipulation and prosecute an appeal therefrom. Such statements or stipulations could be constructed from a variety of sources including counsels' and the court's recollection, notes, depositions, reports, exhibits and other probative materials. Reconstruction will be the procedure followed in most cases, unless the appellant can show some specific error or prejudice resulting from the failure to record and/or preserve records of the trial proceedings.

Id. at 449 (citations omitted).

Although our holding in Dupris clearly permits the reconstruction of an incomplete trial record, we believe defendant's reliance on Dupris is misplaced. Defense counsel in the present case prepared the affidavit setting forth his recollection of the assistant state's attorney's comments five days after the close of the trial. We believe that if defense counsel found the statements of the assistant state's attorney prejudicial to defendant, he should have attempted to preserve such remarks by immediately requesting a recess and reconstructing the record in the trial judge's chambers. See Olson, 408 N.W.2d at 752. This procedure would have decreased the risk of error in the "reconstructed record" due to a faulty or incomplete recollection.

Our discussion, however, does not end here. As previously noted, the recollection of defense counsel has not been contradicted by the state. "In the absence of a counter showing this statement of counsel must be accepted as true." City of Sioux Falls v. Johnson, 78 S.D. 272, 275, 100 N.W.2d 750, 751 (1960) (citing State v. Wolfe, 64 S.D. 178, 184, 266 N.W. 116, 119 (1936)). We accept as...