State v. Thompson

• Decision Date: 11 December 1985
• Docket Number: No. 14747,14747
• Citation: 379 N.W.2d 295
• Parties: STATE of South Dakota, v. Harold THOMPSON, Sr.,
• Court: South Dakota Supreme Court

Page 295

379 N.W.2d 295

STATE of South Dakota, v. Harold THOMPSON, Sr.,

No. 14747.

Supreme Court of South Dakota.

Argued Sept. 10, 1985.

Decided Dec. 11, 1985.

Robert Mayer, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

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

MORGAN, Justice.

Harold Thompson, Sr. (Thompson) was convicted of rape in the first degree, SDCL 22-22-1, and sexual contact with a child under fifteen, SDCL 22-22-7. Thompson appeals on two issues: (1) impermissible hearsay testimony was admitted at trial, and (2) there was insufficient evidence as a matter of law to support the verdict on the sexual contact charge. We reverse and remand.

Testimony in the record presented by State alleges that on February 10, 1984, Thompson decided to visit his children, who lived with his ex-wife. During this visit, Thompson's ex-wife, Karen Thompson (Karen), left the home for approximately twenty minutes. Upon her return, the alleged victim (H.T.) had tears in his eyes. Karen asked H.T. if Thompson had hit him, but H.T. would not respond. Later that night, H.T. awoke screaming, but upon questioning from his mother, stated he could not tell what happened or "Dad would kill them." After repeated probing and questioning by Karen over a five-day period, H.T. finally said that Dad put "his thing" (Thompson's penis) into his mouth.

Detective Conrad Smith of the Sioux Falls Police Department was called to interview H.T. on March 19, 1984. Prior to the interview, Karen informed Smith of what H.T. had told her. At this interview, H.T. repeated essentially the same story that he had told his mother. H.T. also related that his father had on several occasions touched his penis.

Thompson was subsequently arraigned and indicted upon the two charges. In August, 1984, a jury trial was held before Judge William Heuermann. Prior to trial Thompson filed a motion to exclude hearsay statements from H.T. to any witness. This motion was filed on the morning of trial. Judge Heuermann held a hearing on the motion that same morning. The State noted it intended to offer the statements under SDCL 19-16-38, ¹ the tender years exception. At this hearing, Thompson asked the court to find the necessary "indicia of reliability" to allow the statements into evidence. The State made an offer of proof based upon what Karen and Smith were going to testify to; the statements that H.T. allegedly made to them. Thompson's attorney indicated that "we haven't heard anything about the circumstances of the statement and how they were given and who was present and the demeanor of the person giving the statement, and I guess I would like a chance to cross-examine the people that took the statements and find out exactly what circumstances were involved when this little boy allegedly made these statements." Cross-examination of Officer Smith was granted. On cross-examination, Thompson elicited the time span between when the alleged incident occurred and Smith's interview with H.T. and the fact that Smith already had an idea of what H.T. was going to say, as he had previously contacted Karen. Cross-examination of Karen was not allowed. Judge Heuermann then denied Thompson's motion. The trial proceeded, and Thompson was convicted on both counts and sentenced to twenty years in the state penitentiary.

Initially, State claims that no error was committed, since the statements made to Smith and Karen were not hearsay. State claims that since H.T. was a witness at trial his statements to Karen and Smith were not hearsay under SDCL 19-16-2(2). ² This statute allows the admission of out-of-court statements as nonhearsay, if the statements are consistent with the declarant's in-court statements and are offered to rebut an express or implied charge of recent fabrication or improper motive.

Traditionally, the use of prior consistent statements has been barred by the rule against hearsay. See United States v. Quinto, 582 F.2d 224 (2nd Cir.1978); Advisory Committee notes to Fed.R.Evid. 801. However, Fed.R.Evid. 801(d)(1)(B) (SDCL 19-16-2(2)) allows the admission of prior consistent statements as nonhearsay as long as its requirements are met.

Before a prior consistent statement will qualify as nonhearsay under the rule, the proponent must demonstrate three things. First, he must show the prior consistent statement is consistent with the witness' in-court testimony. Second, he must establish that the statment is being used to rebut an express or implied charge against the witness of recent fabrication or improper motive or influence. Finally, the proponent must demonstrate that the prior consistent statement was made prior to the time the supposed motive to falsify arose. Quinto, supra.

State has not met the requirements of the Quinto standard. The testimony of Smith and Karen was not used to rebut charges of fabrication or improper influence, rather it was introduced as substantive evidence in State's case-in-chief. Both Karen and Smith testified before H.T. took the stand. When a witness has not yet testified, statements are not admissible as prior consistent statements under the rule. United States v. Strand, 574 F.2d 993 (9th Cir.1978); 4 Weinstein's Evidence p 801(d)(1)(B) at 801-100 (1975). "The witness is not helped by [the prior consistent statement] even if it is an improbable or untrustworthy story, it is not made more probable or more trustworthy by any number of repetitions of it." Quinto, 582 F.2d at 232 (citations omitted). The rationale behind excluding prior consistent statements is that such statements are irrelevant, unless the witness' credibility is brought into issue. Quinto, supra. When credibility is attacked, the rebuttal provisions of SDCL 19-16-2(2) come into play. The alleged victim's credibility was not in question prior to his testimony; therefore, the statements of Karen and Smith could not have been nonhearsay under SDCL 19-16-2(2).

Since the statements were hearsay, we next examine Thompson's contention that the trial court erred in not determining the sufficiency of the indicia of reliability of the statements. SDCL 19-16-38 provides for admission of hearsay statements of a youth victim of a sex crime only in the event the trial court finds that the time, content, and circumstances of the statement provide sufficient indicia of reliability. In this regard, he also claims error in not being allowed to examine Karen concerning the statements prior to trial.

The term "indicia of reliability" arose out of cases concerning the Sixth Amendment's guarantee of confrontation. See Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); see also State v. McCafferty, 356 N.W.2d 159 (S.D.1984). The Roberts Court stated:

Reflecting [the Confrontation Clause's] underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that "there is no material departure from the reason of the general rule."

448 U.S. at 65, 100 S.Ct. at 2539, 65 L.Ed.2d at 607. It should be noted that when the declarant of the out-of-court statement is available for cross-examination, the strictures of the confrontation clause are met superficially. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); see also McCafferty, supra. However, even if the declarant is available, the confrontation clause does require adequate assurances of the reliability of the statement. Roberts, supra; State v. Ryan, 103 Wash.2d 165, 691 P.2d 197 (1984). In fact, "a higher level of reliability [must] be established where a declarant is available than were he unavailable." State v. O'Brien, 318 N.W.2d 108, 112 (S.D.1982).

In McCafferty, supra, we noted that the indicia of reliability referred to by the Roberts Court and the circumstantial guarantees of trustworthiness language in the hearsay exceptions are synonymous. In Roberts, supra, the Court held that "[r]eliability can be inferred without more in a case where evidence falls within a firmly rooted hearsay exception. In ...