State v. Wilcox
| Decision Date | 10 May 1989 |
| Docket Number | No. 16162,16162 |
| Citation | 441 N.W.2d 209 |
| Parties | STATE of South Dakota, v. Daniel WILCOX. |
| Court | South Dakota Supreme Court |
Frank Geaghan, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on the brief.
Michael J. Butler of Minnehaha County Public Defender's Office, Sioux Falls, for defendant and appellant.
Defendant Daniel G. Wilcox (Wilcox) was charged with second-degree murder, first-degree manslaughter, two counts of first-degree rape, and child abuse in connection with the death of Sheena Johnson (Sheena), aged two and one-half. A motion by Wilcox to sever the rape counts was granted. A separate information was filed charging Wilcox with being an habitual offender. After a jury trial before the circuit court for Minnehaha County, Wilcox was found guilty of second-degree murder, first-degree manslaughter, and child abuse. The trial court sentenced Wilcox to concurrent terms of life imprisonment for the murder and manslaughter counts, and ten years imprisonment for the child abuse count. State subsequently dismissed both rape charges, as well as the habitual offender information. This appeal followed, with Wilcox alleging four errors by the circuit court:
1. Hearsay testimony of State witness Jolene Hallauer was improperly admitted under SDCL 19-16-35;
2. Evidence that Tina Johnson, mother of victim (Sheena Johnson), may have neglected Sheena before Wilcox became involved with the Johnsons was refused;
3. Evidence was insufficient to support his conviction of first-degree manslaughter; and
4. Evidence was insufficient to support his second-degree murder conviction.
We affirm, treating all four issues seriatim.
At 10 a.m. on Sunday, August 16, 1987, Sheena Johnson, a two and one-half year old girl, was carried, unconscious, into the emergency room at McKennan Hospital. Sheena was in profound shock, with very low blood pressure and nearly nonexistent respiration. Dr. Wayne Wentzbarger, who noticed bruises consistent with battered child syndrome, performed an intubation procedure to assist her breathing. An intravenous feed was established with great difficulty due to collapse of Sheena's circulatory system. Cardiopulmonary resuscitation was performed after Sheena went into ventricular fibrillation. Sheena's head and abdomen were examined by CAT scan, to determine the extent of her internal injuries. Surgery followed, and she was found to have a ruptured duodenum. This rupture had flooded her abdominal cavity with bacteria and blood-tinged fluid, causing septic shock. The doctors soon lost their battle to save Sheena, who was pronounced dead at 10:10 p.m., twelve hours after she had been brought in.
Tina Johnson (Tina), mother of Sheena, told the medical staff that Sheena had fallen down stairs. Wilcox, Tina's live-in boyfriend, also explained the injury as caused by a fall on stairs. In talking to relatives, Wilcox added an additional detail: The fall down the stairs had been caused by his striking the girl, while he was babysitting with her, alone, the night before. This explanation was wholly at odds with the nature of the fatal injury and some of her bruises. Both her bruises and abdominal damage indicated a pattern of abuse, as the bruises were of different ages, and scar tissue showed at least three separate injuries to her duodenum. This repeated duodenal damage was revealed in the autopsy performed by Dr. Brad Randall. According to Dr. Randall, Sheena had been injured over a period of two to three weeks. 1 Dr. Kalda, who operated on Sheena, characterized the "fall" story as "bull shit," and opined that the damage was consistent with a blow of a fist. Dr. Wentzbarger described the cause as a "blunt force trauma." Dr. Hosen, the treating pediatrician, testified that a concentrated force applied directly to the duodenum, as in automobile or motorcycle accidents, was required. Given the nature of Sheena's injuries, and the inadequacy of the explanation given for them, the hospital staff notified the police.
The case assembled by the State for trial included: 1) A statement made by Wilcox, to Paul Johnson (Paul), Sheena's grandfather, to the effect that "if she dies it's my fault" and "I would kill myself," although Paul did not recall his exact words; 2) testimony from Larry Pittenger (Pittenger), a convicted drug dealer with outstanding warrants against him, that he had been present when Wilcox struck a hard blow at Sheena's abdomen in a car during the week before her death; and statements, by Sheena to Jolene Hallauer (Hallauer), a friend of Tina Johnson's, on August 11, 1987, that "my tummy hurts" and "Daddy hit me" (Sheena referred to Wilcox as "Daddy" routinely). Hallauer also testified that Sheena's pain was accompanied by an oval bruise on her abdomen.
Wilcox first argues that the trial court erred in allowing Hallauer to testify regarding Sheena's statements that "my tummy hurts" and "Daddy hit me." He asserts that these hearsay utterances were inadmissible because 1) the defense had not received "formal notice" from State that it would offer the evidence, 2) they were not the most probative State evidence that Wilcox struck Sheena, and 3) the trial court did not adequately determine whether sufficient indicia of reliability existed regarding these statements. We disagree.
SDCL 19-16-35 provides:
A statement not specifically covered by any of Secs. 19-16-30 to 19-16-34, inclusive, but having equivalent circumstantial guarantees of trustworthiness, is not excluded by Sec. 19-16-4 if the declarant is unavailable as a witness and if the court determines that
(1) the statement is offered as evidence of a material fact;
(2) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
(3) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this section unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.
It is quite clear that Sheena's statements, offered to a friend in the bathroom while she helped Sheena, are evidence of a material fact. The stomach pain, corroborated by a bruise seen by Hallauer, and the identification of a blow by Wilcox (she referred to Wilcox as "Daddy") as the cause, is unquestionably relevant. This event occurred within the time frame established for infliction of the series of injuries evidenced by scar tissue found at the autopsy (two to three weeks). The first hurdle of SDCL 19-16-35(1) is passed.
The second statutory requirement, as State argues, is also met because the statements are more probative than other evidence State proffered. If Sheena's statements were a perfect match for Pittenger's testimony, which they were not, Wilcox's argument that SDCL 19-16-35(2) required exclusion might have merit. However, Pittenger's statements made no reference to any lasting effect or lingering pain. Sheena's statements, considered in these circumstances, indicates more than a blow. Sheena suffered a lasting injury. This ties Wilcox to her death even more securely than Pittenger's testimony. The force of the blow, and its effects, are demonstrated by Sheena's statements. Pittenger's testimony did prove that Sheena was abused by Wilcox. Hallauer's testimony established an injury which resulted from that abuse. Only Sheena could testify as to the lasting effect and pain of a blow. SDCL 19-16-35(2) is satisfied here.
The notice requirement of SDCL 19-16-35(3) is a problem only if we interpret the statute to require formal written notification--a requirement not in the statute. In this case, the prosecutor informed the trial court that he had orally informed defense counsel that this evidence would be used, an assertion not contradicted by defense counsel. The defense knew of the substance of Sheena's statement from transcripts of the grand jury proceedings. Hallauer was named on the witness list provided to the defense. This case is readily distinguishable from State v. Traversie, 387 N.W.2d 2 (S.D.1986), in which the State indicated that it was willing to proceed without the challenged evidence. The purpose of the notice requirement is to provide the adverse party with a fair opportunity to prepare to meet the testimony. Traversie, id. at 6. There is no prejudice to Wilcox's case, as he knew it was forthcoming.
A final challenge to this evidence, that the trial court did not adequately determine whether sufficient indicia of reliability existed regarding Sheena's statements, is unfounded. The trial judge, here, grounded his decision on the specific facts before him. He spread those facts upon the record, outside of the presence of the jury. State v. Luna, 378 N.W.2d 229, 238 (S.D.1985). It is obvious from the trial court's consideration that he was seeking to determine if the declarant was likely to have fabricated a response. The trial judge made reference to lack of prompting, lack of a request for a specific answer, 2 lack of pressure on the declarant, and the setting (a home decorating party) in which the statement was made (in the bathroom), and Sheena's youth. In short, the trial court determined that the declarant, Sheena, did not fabricate the response "Daddy hit me" and Sheena's statement was reliable. We therefore conclude that the trial court did not fail its duty in making adequate findings of reliability before admitting Hallauer's testimony. These findings were not clearly erroneous. Luna, 378 N.W.2d at...
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