State v. Wright

• Decision Date: 02 December 1998
• Docket Number: No. 20364,20364
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Melvin E. WRIGHT, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 792

593 N.W.2d 792

1999 SD 50

STATE of South Dakota, Plaintiff and Appellee, v. Melvin E. WRIGHT, Defendant and Appellant.

No. 20364.

Supreme Court of South Dakota.

Considered on Briefs Dec. 2, 1998.

Reassigned Jan. 27, 1999.

Decided April 14, 1999.

Mark Barnett, Attorney General, Michele K. Bennett, Assistant Attorney General, Pierre, South Dakota, for plaintiff and appellee.

Timothy J. Rensch, Rapid City, South Dakota, for defendant and appellant.

KONENKAMP, J.

¶1 Believing his son was responsible for a fire in their home, defendant punched the child in the stomach, banged his head against a wall, then whipped and kicked him. In his trial for child abuse, defendant asserted that these actions were justified as appropriate parental discipline in response to the child's dangerous misbehavior. The prosecution was allowed to offer proof of two similar punishments defendant earlier administered to his children for relatively minor infractions. When the defense was justification, was it error for the trial court to admit the prior acts of abuse to show criminal culpability and to negate an inference of accident or a claim of justification? Because this evidence was highly relevant to the defendant's state of mind, and its probative value was not substantially outweighed by its prejudicial impact, we uphold its admission. We affirm on all issues.

Facts

¶2 Defendant Melvin Wright lived in Rapid City, South Dakota, with his son, E.W., age fourteen, and daughter, L.W., age eleven. On Saturday night, January 11, 1997, disobedient to his father's earlier instructions, E.W. lit candles in his basement bedroom. At 3:30 a.m. he awoke to find his room filled with smoke and his record player in flames. He put out the fire with his shirt. The exact cause of the fire was never conclusively determined, but E.W. could not recall with certainty if he had snuffed out the candles before falling asleep. No one claimed he intentionally started the fire, though.

¶3 After the fire was out, E.W. went upstairs to his sister's room. She awoke, and Dena Edwards, a friend of the family who was sleeping in L.W.'s bedroom, also awoke. Smoke had risen into the upstairs portion of the house. Edwards yelled to Wright, who was sleeping on the couch in the living room, that the house was on fire. E.W. had been afraid to tell his father. Wright quickly found the source of the now extinguished fire in E.W.'s bedroom. Confronting his son, Wright began yelling, "Why didn't you tell me?" He pushed E.W. onto a couch and punched him in the stomach with a closed fist. Then, grabbing him by the ears, Wright banged the back of his head against the wall approximately five times, still yelling "Why didn't you tell me?" Next, told to clean up the mess, E.W. bent down to pick up the melted remains of the record player. Wright grabbed a lamp and whipped E.W.'s back with its cord four or five times, drawing blood. While whipping him, Wright kicked him in the right eye with his bare foot.

¶4 On Monday, after E.W finished his shower following physical education class, two teachers noticed his injuries. When asked about them, the boy blamed the neighbor's dog. Skeptical, the teachers notified the principal, who in turn contacted Deputy Maryann Ebach, the school liaison officer. E.W. told her about the fire and the beating. She notified the Department of Social Services and Cory Brubakken, a child protection worker, came to interview E.W. Ebach and Brubakken then questioned L.W. at her school.

¶5 After speaking with both children, Ebach and Brubakken went to Wright's home. He told them about the fire, but after learning that they were investigating his son's injuries, he declined to talk with them further without an attorney. Ebach arrested him and the children were taken into protective custody. Wright was charged with felony child abuse in violation of SDCL 26-10-1: "Any person who abuses, exposes, tortures, torments, or cruelly punishes a minor in a manner which does not constitute aggravated assault, is guilty of a Class 4 felony." He was also charged as a habitual offender under SDCL 22-7-7.

¶6 The State sought to introduce six earlier instances of alleged abuse under SDCL 19-12-5 (Rule 404(b)). Following a hearing, the trial court decided to admit two of the six acts. The first incident, involving L.W., occurred nine years earlier when she was two years old. Wright struck her ten to twenty times on the back and buttocks for spilling baby powder. As a result, she was severely bruised across her back and down the back of her legs. She also had a bruise on her forehead. But most notably, she had "dark purple" bruising inside both ears, as well as bruises on and behind her ears. For this beating, Wright pleaded guilty to child abuse.

¶7 The second episode involved E.W. and occurred in February 1995. Wright arrived at the Boys Club to pick him up. When E.W. showed up late, Wright backhanded him across the face. Crying with a bloody nose, E.W. went into the Girls Club to get L.W. Workers asked about his injuries. When he told them what happened, they called the police. The trial court found these two occurrences relevant to the present charge and concluded that their probative value was not substantially outweighed by the danger of unfair prejudice. Nonetheless, the court refused to allow the State to introduce Wright's child abuse conviction or pictures of L.W.'s injuries.

¶8 At trial, defense counsel asserted a single defense: justification. ¹ While emphasizing E.W.'s culpability for the fire, the defense minimized his injuries and pain, and claimed he lied about being kicked and punched. Nonetheless, counsel neither denied that punishment was deliberately imposed nor contended that E.W.'s injuries were inflicted accidentally. In her opening statement, she referred to an ongoing public debate about appropriate child discipline in extreme cases and quoted the biblically based injunction, "spare the rod and spoil the child." The trial court instructed the jury that the other act evidence may be used to show "motive, intent, absence of mistake or accident, common scheme, or identity of the person charged."

¶9 During the trial, both Ebach and Brubakken testified that Wright declined to talk further with them after they broached the subject of E.W.'s injuries. Wright objected, claiming the testimony violated a motion in limine precluding comment on his invocation of his right to have an attorney. He demanded a mistrial. The court denied the motion finding that the testimony did not violate the motion in limine and was not prejudicial because the witnesses never mentioned Wright's remark about an attorney. The jury found Wright guilty of felony child abuse and he later pleaded guilty to the habitual offender charge. He was sentenced to fifteen years in the penitentiary.

¶10 After the trial, the defense interviewed jurors and learned that a note had been sent to the judge before the final recess on the first day of deliberations. The note asked for a dictionary and aspirin. It was given to the bailiff, but never delivered to the judge. On the following morning the jury continued deliberations and reached a verdict by noon. As it happened, only one juror wanted the dictionary. She sought to learn the definition of "maltreat" used in the instruction defining "abuse." ² During the overnight break, the juror looked up the word in her dictionary; the definition was consistent with the one given her by other jurors. She remembered telling one juror that he was right about the definition. Wright moved for a new trial alleging juror misconduct. At a hearing, eleven of the twelve jurors testified. The trial court found that juror misconduct had occurred, but declined to grant a new trial because it found that the misconduct had not influenced the verdict.

¶11 On appeal, Wright asserts the following issues: (1) "Whether the admission of prior bad acts during the case-in-chief was prejudicial error when there was no relevant issue of identity, intent, knowledge, or modus operandi." (2) "Whether the reference to Melvin Wright's refusal to talk to the authorities which was objected to and resulted in a motion for mistrial is reversible error." (3) "Whether or not the court's refusal to give defendant's proposed jury instruction constitutes reversible error." (4) "Whether the juror's use of a dictionary definition of 'maltreat' should have resulted in a new trial." Issue three lacks sufficient merit for discussion. We will discuss issues one, two and four.

Standard of Review

¶12 We review a trial court's decision to admit other acts evidence under the abuse of discretion standard. State v. Loftus, 1997 SD 94, p 21, 566 N.W.2d 825, 830 (citing State v. Ondricek, 535 N.W.2d 872, 873 (S.D.1995)). The same standard applies in reviewing a refusal of proposed jury instructions. State v. Eagle Star, 1996 SD 143, p 13, 558 N.W.2d 70, 73 (citation omitted). "A trial court's ruling on a motion for mistrial, based on misconduct of counsel, will not be disturbed absent a clear abuse of discretion." Robbins v. Buntrock, 1996 SD 84, p 6, 550 N.W.2d 422, 425 (citations omitted). Lastly, the clearly erroneous standard applies "when reviewing a trial court's factual determination regarding juror misconduct." Jones v. Class, 1998 SD 55, p 12, 578 N.W.2d 154, 159 (citations omitted).

Analysis and Decision

A. Admission of Other Incidents

¶13 We take this opportunity to reexamine the principles applicable to other act evidence under § 19-12-5 (Rule 404(b)). In the past, we stressed that "[g]enerally, evidence of crimes or acts other than the ones with which the defendant is charged are inadmissible, unless an exception applies." Loftus, 1997 SD 94, p 17, 566 N.W.2d at 828 (citing State v. Moeller, 1996 SD 60, p 12, 548 N.W.2d 465, 471 (citations omitted)); see also SDCL 19-12-5; State v. Thomas, 381 N.W.2d 232, 235 (S.D.1986). This view, that the rule is exclusionary, seems...