State v. Younger, 16671

• Decision Date: 10 January 1990
• Docket Number: No. 16671,16671
• Citation: 453 N.W.2d 834
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Karl Anthony YOUNGER, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 834

453 N.W.2d 834

STATE of South Dakota, Plaintiff and Appellee, v. Karl Anthony YOUNGER, Defendant and Appellant.

No. 16671.

Supreme Court of South Dakota.

Considered on Briefs Jan. 10, 1990.

Decided April 4, 1990.

Wade A. Hubbard, Asst. Atty. Gen., Roger A. Tellinghuisen, Atty. Gen. (on brief), Pierre, for plaintiff and appellee.

Jeff Larson, Sioux Falls, for defendant and appellant.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

An indictment was filed November 17, 1988, charging Karl Anthony Younger (Younger) and Franklin Edward Harris, Jr. (Harris) with first degree rape, in violation of SDCL 22-22-1(1).

On March 14, 1989, Harris entered into a plea agreement wherein his charge was reduced to first degree attempted rape in exchange for his testimony against Younger. Younger's trial jury was impaneled on March 14, 1989. The jury found him "guilty" and Younger was sentenced to serve fifteen years in the state penitentiary. We note that the attorney who represented Younger on appeal was not Younger's trial counsel. On appeal Younger argues:

(1) That the trial court erred in denying his motion for mistrial in response to a witness' confused testimony regarding another witness' statement;

(2) That the trial court erred in admitting into evidence the complaining witness' statement to her daughter;

(3) That the trial court erred in denying his motion for mistrial, in reaction to questioning of a witness regarding his response to an investigation request;

(4) That the trial court erred in ruling regarding language of the indictment in that the indictment cited plural offenses within a single count or in that jury instructions deviated from the indictment;

(5) That the trial court erred in denying his motion for a new trial based upon a spectator's actions.

-Holding-

We affirm Younger's conviction.

FACTS

On the evening of October 12, 1988, Kathleen Kenley (Kenley) and her boyfriend Jeff Burnett (Burnett) went to the Rainbow Bar in Sioux Falls. Later in the evening, Kenley and Burnett went to the Frontier Bar which is just across the parking lot from the Rainbow.

At the Frontier, the couple observed Younger and Harris. Kenley and Burnett decided to depart the Frontier at approximately 1 p.m. Kenley recalls little of her trip home because she was intoxicated and tired. According to the most consistent testimony, Kenley, Harris, and a woman known as "Fran" got into Kenley's car, a red Honda CRX, to go home.

During the trip home, a white, two-door foreign car followed them. In spite of Kenley's efforts to elude the white car, it stayed with them consistently. As Kenley pulled up in front of her house, the white car "cut" in front of the Honda. Apparently, Younger "jumped out" of the white car and pulled Kenley from her automobile. A neighbor with a view of Kenley's residence witnessed the commotion and promptly called the police.

After Younger pulled Kenley from the car, he removed her keys from the car's ignition, opened the door to Kenley's home, and took her inside. Harris and "Fran" got out of the car and followed them inside.

By Kenley's testimony, she got a drink of water and then lay down to sleep on her couch, when she next realized a male seizing her. As she tried to get away, her assailant slammed her into the wall. Younger called Harris to help him with her. At that point, Kenley knew that Harris was one of the attackers. A third man fled.

The two assailants, Younger and Harris, took Kenley into her living room. At that point, she recognized Younger and Harris by the dining room's light.

According to Kenley's testimony, Younger pulled off her shoes, jeans, and underwear and then raped her. Younger threatened to cut Kenley's eyes out so she could not identify him. He said he would cut her breasts off, mail them to her and then threatened to kill her.

During the attack, Harris had left the house by the back door to get a pack of cigarettes. When he returned, he saw Younger and his victim. Kenley was "on the floor balled up" and looked "like a wild person." Seeing Harris, Younger demanded the keys to Kenley's automobile and subsequently drove off in the Honda.

In Younger's absence, Harris attempted to have sex with Kenley. She hit and kicked him. After Harris' aborted attack was over, Kenley attempted to use the telephone calling 911. As Harris stood in the front doorway of the house, he saw Kenley's red Honda return, observed that it did not stop, and then witnessed the arrival of the police. Harris pointed at the car and said, "that's the car." The officers, Officer Blades and Boschee, drove off and pulled over the red car. In that car, were Karl Younger and his sister, Barbara Younger. Barbara testified that Younger came to her house in the middle of the night saying someone was being raped and they had to help.

Blades stopped his patrol car behind the Honda after Younger and his sister drove around the corner by Kenley's home. Barbara Younger exited the automobile and began talking to Blades, saying that Harris was raping someone. After Younger exited the passenger side of the car, the officers noted that he appeared to be "nervous, apprehensive and somewhat disoriented." Younger confessed to Blades that he had been "speeding." Boschee called for another patrol car to go to Kenley's residence. Then the officers released Younger and his sister.

Officer Allan Phillips responded to Boschee's call to investigate the scene. Phillips went to the front door, knocked and observed a woman sitting inside the house. When she did not respond, Phillips entered and identified himself. The woman appeared "hysterical and frightened" and she was clad only in a white blouse. After Phillips gave her a blanket, he noticed the phone receiver was off the hook. He picked it up and found the police department dispatcher at the other end of the line. After Officers Blades and Boschee arrived at the house, Blades saw a pair of blue jeans turned inside out and entwined in a pair of panties lying in front of a couch in the living room. While Phillips and Boschee examined the house, they found "Fran" sleeping on the floor behind the furnace in the basement.

After their release, Younger and Barbara Younger went to April Reimers' residence, Kenley's daughter. The two knocked on the window and said that Reimers' mother was in trouble. Reimers called her mother and Officer Blades answered. Blades asked to talk to Younger, but Barbara Younger took the call instead.

Reimers drove herself to her mother's residence while Paul Dysart, Reimers' boyfriend, drove Kenley's Honda, taking Younger home. Reimers entered the house and saw her mother crying in a "hysterical manner." After Reimers noticed that the house was in disarray, Kenley told her daughter that she did not remember what happened and refused to divulge her rapists' names.

Officer Boschee took Kenley to the hospital. Her account of the rape was that she had been assaulted by five males. She also told Dr. Anthony Javurek of the McKennan Hospital Emergency Department that she had been held down and sexually assaulted by five individuals. During his examination, Dr. Javurek found that she had many tender spots, including her vagina. He observed injuries to her face that were "consistent with being struck with a hand" and bruises that apparently were caused by fingers gripping her arms forcefully. It was the doctor's opinion that Kenley had experienced recent sexual penetration and had been assaulted, an assault that was consistent with the attack she described to him.

April Reimers met with her mother the following morning. During a conversation, Kenley told Reimers that she knew who raped her, but that out of fear she had not divulged her assailants' names. She reported that Younger, Harris, and a third person had been present but that the third individual didn't participate. Asking her daughter not to tell anyone, Kenley related how Younger had threatened her and how frightened she was of him. Kenley confessed that she was not sure that Harris had committed rape.

Officer Thompson spoke to Kenley that day also. She confessed to him that Younger, Harris and possibly a third individual had raped her. Three days later, she again admitted that she had driven herself home and again stated that she had been raped by Younger and Harris.

DECISION

I. The trial court did not err in denying Younger's Motion for Mistrial in response to a witness' confused testimony regarding another witness' statement.

Younger argues that Officer Blades' testimony concerning Barbara Younger's statement denied him a fair trial. Officer Blades had two conversations with Younger's sister, Barbara. During the first conversation, she told Blades that Harris had raped Kenley. She made a comment during the second conversation that Karl admitted to her some involvement in the rape. Officer Blades referred to the second conversation while being questioned about the first:

CASEY: What did she say about the incident?

BLADES: Said that, I think Frank Harris had raped a girl.

CASEY: Okay. Did she in fact tell you that somebody had raped a girl at that house?

BLADES: Yes.

CASEY: Did she say anything about Karl?

BLADES: Yes.

CASEY: What did she say?

BLADES: Her exact words?

CASEY: Well, as well as you can remember.

BLADES: She said, Karl ended up rapin' her.

CASEY: Your Honor, I'm going to object.

Defense counsel timely moved for a mistrial, which was denied. During the discussion of the motion, the prosecutor admitted that he was surprised by the answer and Officer Blades admitted to the misstatement. The Judge subsequently admonished the jury.

The decision to grant or deny a mistrial must be based on the prejudicial affect of the witness' statement. State v. Farley, 290 N.W.2d 491 (S.D.1980). The trial court has wide discretion in determining the prejudicial effect of a witness' statements, and it is only when this discretion is clearly abused that this court will overturn a...