State v. Wounded Head

• Decision Date: 06 May 1981
• Docket Number: No. 13140,13140
• Citation: 305 N.W.2d 677
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Garrett WOUNDED HEAD, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 677

305 N.W.2d 677

STATE of South Dakota, Plaintiff and Appellee, v. Garrett WOUNDED HEAD, Defendant and Appellant.

No. 13140.

Supreme Court of South Dakota.

Argued Jan. 8, 1981.

Decided May 6, 1981.

Lori S. Wilbur, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

John T. Elston, Pennington County, Rapid City, for defendant and appellant; Steven D. Rich, Pennington County, Rapid City, on brief.

FOSHEIM, Justice.

This is an appeal from the judgment of conviction entered upon a jury verdict finding appellant guilty of attempted rape. We affirm.

On the evening of February 1, 1980, the complaining witness and her boyfriend rented a room at a Rapid City motel to have a drinking party. Several persons were present. The party continued until a fight broke out and the police were summoned. At that point, the complaining witness and one Jeffrey Janis left the party and proceeded on foot until they were picked up and taken to a house in the Star Village area of Rapid City. Shortly thereafter, the complaining witness left, but appellant followed her and brought her back to the house, assuring her that someone would drive her back to the motel. The drinking resumed and appellant made advances toward her; she broke a table while attempting to avoid him. Appellant then took her by the arms and forced her into a bedroom. He was unable to disrobe her, and called for assistance. Three men responded. The victim was thereafter subjected to repeated sexual assaults over a period of two to three hours.

The complaining witness' friend, Janis, did not respond to her calls for help. He went into the bedroom, under pressure from the others, and faked intercourse with the prosecutrix. While doing so, he gave her his pocketknife with instructions to feign illness in order to get to the bathroom, where she could cut a window screen and escape. This she managed to do. Janis was waiting outside. Together they climbed a fence and ran until they came upon a city worker who radioed the police. He stated that the girl was then dressed only in a blouse or sweater and a towel wrapped around her waist. He and the police officers who arrived at the scene testified that the victim appeared shaken and frightened. Her other clothes were later found in the attic of the Star Village residence.

Appellant first contends that the trial court erred in its denial of his motion for a psychiatric examination of the complaining witness. Whether a psychiatric examination of the complaining witness in a sexual offense case should be ordered is within the sound discretion of the trial court and should be granted only upon a substantial showing of need and justification, which is not a light burden. State v. Reiman, 284 N.W.2d 860 (S.D.1979); State v. Schweitzer, 84 S.D. 384, 171 N.W.2d 737 (1969); State v. Klueber, 81 S.D. 223, 132 N.W.2d 847 (1965). The purpose of a psychiatric examination in cases involving sex offenses is to detect any mental or moral delusions or tendencies causing distortion of the imagination that would affect the probable credibility of the complaining witness. State v. Reiman, supra; State v. Klueber, supra. It is not necessary or advisable for courts, in all cases charging sex offenses, to order a psychiatric examination of the complaining witness. State v. Klueber, supra.

In this case, defense counsel requested and received several juvenile records of the complaining witness. Appellant's motion was based largely upon statements of juvenile counselors and court services workers contained in those records concerning the complainant's veracity and reliability. Defense counsel argued that a psychiatrist who examined such records had indicated they suggested a high probability that the prosecutrix tends to shift responsibility for her behavior to others. ¹

We are not persuaded that appellant made the required showing. The statements contained in the records were hearsay and conclusionary in nature and revolved around delinquency problems including a simple assault and a petition alleging the complaining witness to be a child in need of supervision. The affidavit submitted in support of appellant's motion consisted simply of defense counsel's conclusions. The trial judge properly characterized the records as "hearsay based on hearsay," and concluded that the statements contained in the records were speculative and did not provide the required substantial showing of need and justification.

Appellant, conceding that the records were hearsay and conclusionary, complains that the trial court's refusal to grant further discovery of the prosecuting witness' juvenile records was error because it denied access to facts essential to make the required showing. The trial court noted (and counsel conceded in oral argument) that such further discovery would have amounted to a "fishing expedition." We conclude that there was no abuse of discretion in the denial of appellant's motions for a psychiatric examination of the prosecutrix and for additional discovery of her juvenile records.

Appellant next contends that the trial court's refusal to allow cross-examination of prosecution witness Jeffrey Janis by use of the witness' juvenile records deprived him of his right of confrontation under the Sixth Amendment to the United States Constitution and Art. VI, § 7 of the South Dakota Constitution. Janis testified as to appellant's role in the events of February 1, 1980. He had been the subject of numerous juvenile adjudications, including two counts of grand theft auto and two counts of third-degree burglary, all of which would have been felonies had he been tried as an adult. At the time of trial, he was awaiting adjudication on an additional allegation of auto theft. A defense request to cross-examine the witness with regard to his four prior adjudications was denied. The trial court, however, granted leave to examine Janis for bias based upon the status of any current plea bargaining between the State and the witness.

SDCL 26-8-57 provides:

No adjudication, disposition, or evidence given in proceedings brought under this chapter shall be admissible against a child in any criminal or other action or proceeding, except in subsequent proceedings under this chapter concerning the same child and subsequent criminal proceedings for sentencing purposes on a felony charge.

The language of the statute reveals that the Legislature intended to provide broadly for the confidentiality of juvenile records. SDCL 19-14-15, however, states:

Evidence of juvenile adjudications is generally not admissible under § 19-14-12. ( ² ) The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

It therefore appears that use of juvenile records to impeach a minor witness for the State is neither absolutely permitted nor absolutely forbidden. We recognize that the opportunity to cross-examine any prosecution witness is central to the fundamental right of confrontation and to the conduct of an effective defense. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). However, the "extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court," Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624, 629 (1931), and the trial court may always limit cross-examination to prevent repetitive and unduly harassing interrogation. Davis v. Alaska, supra. That discretion, however, must be exercised "with the utmost caution and solicitude for the defendant's Sixth Amendment rights." United States v. Houghton, 554 F.2d 1219, 1225 (1st Cir. 1977), cert. denied, 434 U.S. 851, 98...