State v. Wimberly

• Citation: 467 N.W.2d 499
• Decision Date: 20 March 1991
• Docket Number: No. 16987,16987
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Will D. WIMBERLY, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 499

467 N.W.2d 499

STATE of South Dakota, Plaintiff and Appellee, v. Will D. WIMBERLY, Defendant and Appellant.

No. 16987.

Supreme Court of South Dakota.

Argued Nov. 26, 1990.

Decided March 20, 1991.

Sherri Sundem Wald, Asst. Atty. Gen., Roger A. Tellinghuisen, Atty. Gen., on brief, Pierre, for plaintiff and appellee.

Michael J. Butler, Sioux Falls, for defendant and appellant.

WUEST, Justice.

Will Wimberly appeals his conviction of first degree rape. ¹ We reverse and remand for a new trial.

On February 18, 1989, around 8:00 or 8:30 p.m., Willie Calvin Jackson (Calvin), Arthur Lee Jackson (A.J.) and Will Wimberly (Wimberly) picked up M.S. at her grandmother's house and went driving around downtown Rapid City, South Dakota. Calvin and A.J. are brothers and both were acquaintances of M.S., a fourteen-year-old 8th grader. M.S. had met Wimberly on a previous occasion, but did not know his name at the time she joined the threesome in the car. While driving around, all four individuals drank beer and gin. M.S. became extremely intoxicated.

Eventually, the foursome went to Calvin's trailer house. M.S. either staggered or had to be carried up the stairs and into the trailer. M.S. testified that she had sexual intercourse with A.J. in one of the bedrooms of the trailer house. The two then returned to the living room and lay down on the couch. Although her recollection of the events which ensued is not precise, M.S. remembered that she was pushed back into one of the bedrooms in the trailer. She next remembered waking up naked, with Wimberly standing over her, telling her to "shut-up" and striking her in the face. Wimberly then raped her. M.S. remembered that someone was standing at the door of the bedroom while this was occurring, but she could not clearly see this person. After the assault, M.S. begged Wimberly to allow her to go to the bathroom. After being shoved into the bathroom, M.S. put on her clothes. Wimberly then pushed her out the back door of the trailer house. M.S. went to a trailer house which had a light on and requested that someone call the police. She then passed out on the porch of this trailer house. She next remembered being awakened by the police and taken to the hospital by ambulance.

Upon arrival at the hospital, M.S. was interviewed by hospital personnel. Her face was badly bruised, her left eye swollen shut. She had bite marks on her cheek and a large bite mark on her left arm. She explained that someone had sex with her and that she had been beaten. The doctor on duty did a routine rape examination, pursuant to which evidence was collected and placed in a sexual assault kit. M.S.'s clothing was also collected and placed in a bag. Her clothes and the rape kit, once completed, were given to the police.

From their investigation, the police were able to develop three possible suspects to the alleged rape: Wimberly, A.J. and Calvin. From a photographic lineup, M.S. identified Wimberly as the person who raped her. Pursuant to this identification, the police obtained an arrest and search warrant for Wimberly. Wimberly's blood, head and pubic hair, and dental impressions were taken as evidence. Both A.J. and Calvin voluntarily subjected themselves to body searches of their blood and hair. Deoxyribonucleic acid (DNA) testing revealed that Wimberly and A.J. contributed to the semen found in M.S.

On February 22, 1989, a complaint was filed charging Wimberly with rape in the first degree, rape in the second degree and sexual contact with a child under sixteen years of age. On March 1, 1989, a preliminary hearing was held and an order was entered holding Wimberly to answer for the criminal charges set forth in the complaint. Trial commenced on November 29, 1989, and a verdict of guilty was returned on the charge of rape in the first degree.

Wimberly appeals his conviction and raises four issues:

I. Whether the court erred in granting the State's request for good cause delay pursuant to SDCL 23A-44-5.1;

II. Whether the chain of custody was established to properly admit a vial purportedly containing Wimberly's blood;

III. Whether the trial court properly admitted certain testimony of A.J.; and,

IV. Whether the trial court erred in admitting the DNA test results.

We will set forth additional relevant facts as we discuss each issue. Although we reverse on issue III, we decide the others for purposes of retrial.

I.

SDCL 23A-44-5.1 provides:

The prosecution shall dispose of all criminal cases by plea of guilty or nolo contendere, trial or dismissal within one hundred eighty days from the date the defendant has first appeared before a judicial officer on the complaint or indictment. Any period of delay shall be excluded if the trial court finds good cause for the delay. In the event of the prosecution's failure to dispose of the action within the time limit required by this section, the action shall be dismissed.

SDCL 23A-44-5.1 clearly and unambiguously requires the disposition of criminal matters within 180-days unless good cause for delay is shown. State v. Cooper, 421 N.W.2d 67 (S.D.1988); State v. Hoffman, 409 N.W.2d 373 (S.D.1987). Proof by the defendant that the 180th day has passed establishes a prima facie case for dismissal, and absent a showing of good cause delay, the case must be dismissed. Cooper, 421 N.W.2d at 69. A motion for good cause delay must be filed by the State within the 180-day period. Hoffman, 409 N.W.2d at 375. What constitutes good cause for delay is a question of law and is fully reviewable by this court on appeal. Cooper, 421 N.W.2d at 69 (citing Hoffman, supra ). But see State v. Kerkhove, 423 N.W.2d 160 (S.D.1988) (clearly erroneous standard of review applied).

Initially, trial was delayed beyond the first trial date of May 8, 1989, for a psychiatric evaluation of Wimberly. On May 15, 1989, a hearing was held to set a new trial date. At the hearing, the State informed the court that Calvin and A.J. were out of the state and it would take approximately twenty to thirty days to serve interstate subpoenas. The State requested trial be set in August 1989, but agreed to proceed to trial in June 1989 if Wimberly would stipulate to the admission of statements previously given by the two missing witnesses. Wimberly refused to so stipulate. Consequently, the court ordered trial be set for June 27, 1989, but with the understanding that if the State had not located the missing witnesses and Wimberly was still unwilling to stipulate to their testimony, the trial would be held August 16, 1989.

On May 31, 1989, the State filed a motion for good cause delay based upon Wimberly's requested psychiatric evaluation, the State's difficulty in locating material witnesses and the trial judge's required attendance at computer training on the date set for trial. A motion hearing was held and the deputy sheriff for Meade County presented a report with respect to his inability to locate the two missing witnesses. He testified that he had enlisted the assistance of the Rapid City Police Department, the Pennington County Sheriff's Office and a Rapid City civil process server in locating the witnesses, but had been unsuccessful. The trial court found this evidence substantiated the fact that the witnesses could not be located. The parties agreed the 180th day of this case was August 23, 1989. The trial court ordered trial to commence on the 180th day and granted good cause delay for those days necessary to complete the trial.

On August 14, 1989, the State filed another motion for good cause delay. The State again cited its inability to locate material witnesses. A motion hearing was held August 21, 1989, and at the hearing the State requested its motion for good cause delay be amended to include as the basis for delay not yet available DNA test results. The State informed the court that the Division of Criminal Investigation (D.C.I.) crime lab in Pierre, South Dakota, had exhausted its testing capabilities and the tests were inconclusive. It was therefore necessary to forward the evidence to the Federal Bureau of Investigation (F.B.I.) in Washington, D.C. for DNA testing. The State argued the DNA testing was necessary because the tests conducted by the D.C.I. crime lab could not eliminate any of the three suspects as contributors of the semen found in M.S. Pursuant to the State's amended motion, the trial court entered an order granting good cause delay until receipt of the DNA test results from the F.B.I.

On September 18, 1989, Wimberly's counsel withdrew from the case with Wimberly's permission and with the understanding that such withdrawal would entail additional delay. By this time, the State had received the DNA test results. Trial was subsequently held on November 29, 1989.

The burden of showing good cause is on the prosecution. Cooper, 421 N.W.2d at 71; Hoffman, 409 N.W.2d at 375. Good cause may be found when exceptional circumstances exist. In Cooper, 421 N.W.2d at 70, we identified as exemplary of exceptional circumstances (1) unique, nonrecurring events; (2) nonchronic court congestion; and (3) unforeseen circumstances, such as the unexpected illness or unavailability of counsel or witnesses. At the first good cause delay hearing the evidence demonstrated that the State was exercising due diligence in attempting to locate Calvin and A.J. The unavailability of these material witnesses is an unforeseen circumstance justifying delay. Therefore, the trial court did not err in delaying the case beyond the 180th day on this basis.

The State also acted with due diligence with respect to the laboratory testing and analysis of the physical evidence. The State flew this evidence to the crime lab in Pierre. All relevant tests were timely conducted, yet proved inconclusive. Under the circumstances, it was prudent for law enforcement officials to forward the physical evidence to the F.B.I. for examination. We find this to be a unique, nonrecurring event which justifies...