State v. Steele

• Decision Date: 02 September 1993
• Docket Number: No. 18077,18077
• Citation: 510 N.W.2d 661
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Phillip Don STEELE, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 661

510 N.W.2d 661

STATE of South Dakota, Plaintiff and Appellee, v. Phillip Don STEELE, Defendant and Appellant.

No. 18077.

Supreme Court of South Dakota.

Considered on Briefs Sept. 2, 1993.

Decided Jan. 5, 1994.

Mark Barnett, Atty. Gen., Patricia Cronin, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

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

WUEST, Justice.

Defendant, Phillip Steele (Steele) appeals his rape conviction, raising multiple issues. We reverse the circuit court's denial of a motion for new trial based on newly-discovered evidence that was suppressed by the Minnehaha County State's Attorney's Office, and address a number of other issues raised by Steele that are capable of repetition on retrial.

FACTS AND PROCEDURAL HISTORY

On January 3, 1992, A.S., the alleged victim, was a seventeen-year-old female living and working on her own in Sioux Falls. After spending the evening and early morning hours of the following day "cruising the loop" with friends, A.S. encountered Steele at a convenience store where he was looking for a ride home. A.S. left the store with Steele in her car at 3:16 a.m. on January 4. Later that morning, A.S. dropped Steele off at the bus depot located at 7th and Minnesota, then drove south to 41st and Minnesota where at 5:27 a.m., she signaled a police officer and reported a rape. Steele and A.S. had two very different versions of what happened that morning. A.S. testified to a continuous and brutal two and one-half to three hour rape, while Steele testified to two incidents of brief consensual sex. The issue for the jury was which version to believe, which witness was more credible.

Steele was arrested on January 4, 1992 and charged with Rape in the Second Degree in violation of SDCL 22-22-1(2). On January 9, 1992, the grand jury returned an indictment charging him with Rape in the Second Degree, and the State also filed a Part II Information alleging that he was a habitual offender under SDCL 22-7-7. At arraignment, Steele pled not guilty to both the indictment and the information. On February 13, 1992, hearing was held on the State's motion to introduce prior bad acts evidence at trial, which motion was granted by the court. A trial was held on April 22-23, 1992, and the jury returned a verdict of guilty to the rape charge. On May 4, 1992, Steele was re-arraigned on the Part II Information and he admitted the information at that time.

Prior to trial, the Defense sent a letter of discovery to the Minnehaha County State's Attorney's Office, and also relied on the circuit court's adopted rules of criminal discovery which require open files and disclosure of all information. Subsequent to the trial and conviction, A.S. volunteered to the Sioux Falls Argus Leader that she had contracted chlamydia, ¹ a sexually transmitted venereal disease, from Steele. The State's Attorney later admitted that prior to trial, he possessed knowledge that A.S. had chlamydia, and claimed she had contracted it from Steele. The State also admitted discussing this evidence at a staff meeting in the office of the State's Attorney, resulting in a decision not to disclose this information to the Defense because, in the view of the State's Attorney, it was irrelevant and would be inadmissible. After the information became known to Steele through the newspaper story, he had himself tested for chlamydia, and the results of the test were negative. His wife also tested negative for chlamydia.

Sentencing was set for July 22, but was delayed for one week to allow hearing on the motion for new trial prior to sentencing. The trial court allowed A.S. to make her victim impact statement on July 22, and she offered to retract her statements alleging that she had gotten chlamydia from Steele. On July 29, 1992, hearing was held on the motion for new trial. The court denied the motion, and proceeded immediately to sentence the defendant to 100 years in the penitentiary. Steele appeals from this judgment and sentence.

DISCUSSION

1. Motion for New Trial Based on Newly Discovered Evidence

The granting or refusing of a new trial upon the ground of newly discovered evidence is largely in the discretion of the trial court. Unless there has been an abuse of such discretion, this court will not interfere with the action of the trial court upon such motion. State v. Willis, 396 N.W.2d 152, 153 (S.D.1986) (Willis II) (citing State v. Lufkins, 309 N.W.2d 331 (S.D.1981); State v. Martinez, 88 S.D. 369, 220 N.W.2d 530 (1974)). See also State v. Feuillerat, 292 N.W.2d 326, 333 (S.D.1980) (citing State v. Gerdes, 258 N.W.2d 839 (S.D.1977); State v. Coleman, 17 S.D. 594, 98 N.W. 175 (1904); Wilson v. Seaman, 15 S.D. 103, 87 N.W. 577 (1901)).

We note at the outset that this is not the first time that this court has been called upon to examine the actions of the Minnehaha County State's Attorney's Office in suppression of evidence. In at least one other case, we reviewed a situation where the prosecution knew that the alleged victim in a pending rape case brought second rape charges against another individual. Willis II, 396 N.W.2d at 153-54. The Sioux Falls Police Department investigated and filed a report, but the State's Attorney decided not to bring charges. Id. at 153. It was undisputed that "[n]o mention of this alleged rape was ever made to Willis or his counsel inspite [sic] of direct and continuing requests for any exculpatory evidence." Id. In his defense, Willis alleged that he had the consent of the victim. See State v. Willis, 370 N.W.2d 193, 195-96 (S.D.1985) (Willis I). After analyzing the actions of the State's Attorney's office, this court stated that, "We certainly do not condone the activities of the Minnehaha County State's Attorney's Office in handling this newly discovered evidence. We do not believe, however, that there is a reasonable probability that this evidence would probably produce a different result at a new trial." ² Willis II, 396 N.W.2d at 154. It appears from the present case that although the Minnehaha County State's Attorney's Office has been reprimanded by this court for suppression of evidence, that office relies on the fact that in hindsight, this court will decide that the defendant would have been convicted anyway. Rather, the concern should be with the fundamental fairness of the prosecution at the outset.

Suppression of evidence by the prosecution goes directly to the fundamental fairness of the trial, the basic due process rights of the accused. We look to the words of the U.S. Supreme Court in what has become known as the Brady rule case: "We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). The Court later explained the Brady rule stating, "A fair analysis of the holding in Brady indicates that implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial." United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976) (emphasis added). After reviewing the entire line of cases stemming from Brady, we stated: "Thus, where [the defendant] was not aware of the evidence, if the evidence is both favorable and material, and he has made a request for the evidence, there has been a due process violation." Ashker v. Solem, 457 N.W.2d 473, 477 (S.D.1990). In other words, four questions are to be answered when there is suppression of evidence by the prosecution. If the answers to these four questions are in the affirmative, the defendant's due process rights have been violated and a new trial must be granted:

(1) Was the defense unaware of the evidence?

(2) Is the evidence favorable to the defense?

(3) Is the evidence material to the defense?

(4) Did the defense make a request for the evidence?

Evidence is favorable where it creates a reasonable doubt that did not otherwise exist. Ashker, 457 N.W.2d at 477 (citing United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2402, 49 L.Ed.2d 342 (1976)). The U.S. Supreme Court has stated that "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985) (emphasis added). See Ashker, 457 N.W.2d at 477.

As outlined previously, it was only through a post-conviction news story that the Defense discovered A.S.'s allegations that she contracted chlamydia from Steele. The Alabama Supreme Court was faced with a similar situation to that presented here. Ex parte Geeslin, 505 So.2d 1246 (Ala.1986). In Geeslin, two weeks after defendant's conviction of rape, the defense attorney discovered evidence that the standard rape examination performed on the victim included a vaginal smear showing the presence of gonorrhea. Geeslin, 505 So.2d at 1247. It was undisputed that the prosecutor never revealed to the defense that the victim's gonorrhea test was positive while the defendant's test was negative, in spite of a discovery request for all information held by the prosecution. Id. at 1246-47. Prior to trial, the prosecuting attorney even spent time preparing expert testimony to show that the defendant's negative test result could have been affected by antibiotics taken during the time period between the alleged rape and the defendant's gonorrhea test. Id. at 1247. However, no information regarding the gonorrhea testing was used at trial. When the defense discovered the facts about the gonorrhea tests, motion for new trial...