State v. Shibly
| Docket Number | 30025-a-JMK |
| Decision Date | 28 June 2023 |
| Citation | 2023 S.D. 30 |
| Parties | STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. ADNAN R. SHIBLY, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
CONSIDERED ON BRIEFS MAY 23, 2023
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT LINCOLN COUNTY, SOUTH DAKOTA THE HONORABLE RACHEL R. RASMUSSEN Judge
JASON R. ADAMS of Tschetter & Adams Law Office, P.C. Sioux Falls, South Dakota Attorneys for appellant.
MARTY J. JACKLEY Attorney General JOHN M. STROHMAN Assistant Attorney General Pierre, South Dakota Attorneys for appellee.
[¶1.] Adnan Shibly was charged with seven counts of violating a no contact order. While the alleged victim, Irina Manuylo, was testifying at Shibly's jury trial, she became emotional in front of the jury causing the circuit court to recess the jury during her testimony. The court ordered Manuylo not to communicate with anyone during the recess. In violation of this order, Manuylo spoke with her mother. Shibly moved for a mistrial, which was denied after the court questioned Manuylo about the content of the conversation and determined she had not spoken with her mother about the case. Manuylo returned to the stand but became emotional again, and the court recessed the trial for the day after Manuylo told the court she did not feel well. Shibly again moved for a mistrial which the court held in abeyance until trial reconvened the following morning. After a hearing, the court denied the motion but gave the jury a curative instruction. At the close of the evidence, Shibly moved for a judgment of acquittal alleging insufficiency of the evidence. The court denied the motion, and the jury convicted Shibly on all counts. Shibly appeals, asserting the circuit court erred by denying his motions for mistrial and judgment of acquittal. We affirm.
[¶2.] Shibly and Manuylo were in a long term "on and off" again romantic relationship but were not residing together at the time of the incident. During their ten-year relationship they had three children together. A no contact order was issued against Shibly on November 30, 2020, as a condition of bond in a separate criminal case. The order required Shibly to have no contact with Manuylo [¶3.] Manuylo called law enforcement on the evening of March 9, 2021, and reported a family dispute. She told law enforcement that Shibly made multiple phone calls and sent text messages to her from his phone number and from other numbers. He also came to her front door and appeared angry, knocking hard on the door for her to let him in. She refused to do so. As a result of this incident, the State filed a seven count information, charging Shibly with one felony violation of a no contact order by stalking (domestic), in violation of SDCL 25-10-13 and SDCL 22-19A-1, and six misdemeanor counts of violation of a no contact order (domestic), in violation of SDCL 25-10-13.
[¶4.] A two-day trial was held on October 26-27, 2021. On the first day of trial, the State called Manuylo to the witness stand. After answering a few introductory questions, Manuylo became evasive, stating that she did not recall calling law enforcement on the date in question and did not remember that Shibly was ordered not to have contact with her. Manuylo stated she had a bad memory. The following colloquy occurred:
At that point, the State asked for a short break and the court excused the jury after providing the standard recess admonishment.
[¶5.] The State requested that the court declare Manuylo to be an unavailable witness under the exception set forth in SDCL 19-19-804(b)(6), which permits hearsay when "[a] statement [is] offered against a party that wrongfully caused--or acquiesced in wrongfully causing--the declarant's unavailability as a witness, and did so intending that result." The State asserted that several members of Shibly's family, who were seated directly behind him in the courtroom, had been in frequent contact with Manuylo encouraging her not to show up at trial. The State indicated that Manuylo had been concerned about testifying in front of the family members, fearing that they would retaliate against her if she testified against him. Further, the State claimed that Shibly had attempted to call Manuylo multiple times from the jail in the preceding months.
[¶6.] Before ruling on the motion, the court took a short recess. The court advised that because Manuylo was still under oath, it was not "appropriate for anyone to talk to her at this point" and left an officer in the courtroom to make sure that no one tried to talk to Manuylo during the recess.
[¶7.] Upon returning from the recess, the court had a discussion with Manuylo, who ultimately agreed to follow the court's order to testify and answer questions to the best of her ability. The court, therefore, declined to deem Manuylo unavailable. However, before the jury was brought back to the courtroom, counsel for Shibly informed the court that Manuylo had talked to her mother during the recess, contrary to the court's instructions, and Shibly made a motion for a mistrial. The court questioned Manuylo, who acknowledged speaking with her mother during the recess, explaining that her mother had given her some valerian oil to help her calm down. She stated that she did not discuss her testimony with her mother, who had not been present for Manuylo's testimony. The court, noting that neither side expected to call Manuylo's mother as a witness, denied the motion for mistrial, concluding that there was not "enough prejudice to grant a mistrial in this case under that circumstance."
[¶8.] Manuylo then informed the court that she was not feeling well, but the court decided to proceed with the trial based on concerns about the court's ability to enforce the sequestration order. The jury was brought back into the courtroom, and the State continued its direct examination of Manuylo.
[¶9.] The State asked whether Shibly had come to her house on March 9, 2021, but she did not respond definitively. She did express that Shibly had called her repeatedly, both from phone numbers that she recognized and from numbers she did not recognize. She acknowledged that the court had ordered Shibly not to contact her, yet he called her more than ten times. She testified that she showed the responding officer her phone and he took pictures of the screens depicting the texts and calls she had received. She also told the officer that she had answered some of the calls and recognized the caller as Shibly. The State then asked:
Manuylo acknowledged that Shibly was upset with her because she was not answering her phone but stated that there had been times when she had called him over and over as well.
[¶10.] The State then began showing Manuylo photographic exhibits numbered 2-17 depicting screen shots from her phone, when the following discussion occurred:
Manuylo left the witness stand and sat in the front bench of the gallery. At this point, the court excused the jury without further instruction.
[¶11.] Manuylo told the court that she would not return to the witness stand and that she did not feel well. She told the court that if she felt better in the morning, she would be willing to testify then. The court decided to recess for the day. Shibly renewed his motion for a mistrial based on the conduct and statements that had occurred in front of the jury. The court took the motion under advisement until the following day and reminded the parties that the sequestration order was in effect and that any person who might attempt to improperly contact Manuylo could be charged with witness tampering. [1]
[¶12.] The next morning, the defense argued that Shibly was prejudiced by Manuylo's actions to such an extent that even a curative instruction could not correct it. After considering the arguments of the parties, the court denied the motion for a mistrial but indicated it would give the jury a special instruction. When the jury returned to the courtroom, the court stated the following:
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