McCafferty v. Solem

449 N.W.2d 590, 1989 S.D. LEXIS 187, 1989 WL 151016

• Court: South Dakota Supreme Court
• Decided: December 13, 1989
• Docket: 16121, 16137
• Status: Published

Opinions

MORGAN, Justice (on reassignment).

This appeal arises from a decision on the habeas corpus petition of Bruce McCafferty (McCafferty) challenging the constitutionality of his conviction for a sexual contact offense. This court affirmed that conviction on direct appeal. State v. McCafferty, 356 N.W.2d 159 (S.D.1984) (McCafferty I). From the determination of the court below (habeas court) that certain testimony should not have been admitted, State appeals. By notice of review McCaf-ferty appeals, claiming that the habeas court erred in its ruling on certain other procedural errors at trial. We reverse the decision of the habeas court on the admission of the testimony but affirm on the issues raised by McCafferty’s notice of review.

The facts of this case are stated in McCafferty I. He was convicted on the charge that he knowingly engaged in sexual contact with another person under fifteen years of age, in violation of SDCL 22-22-7.¹ He was also found to be a habitual offender under SDCL 22-7-8. The trial court sentenced McCafferty to fifteen years in the South Dakota Penitentiary. McCafferty appealed his conviction to this court, where the trial court’s decision was affirmed in part and remanded with instructions to the trial court to determine whether the victim’s out-of-court statements had sufficient “indicia of reliability.” McCafferty I, supra. On remand, the trial court found that the hearsay statements bore sufficient indicia of reliability to be admissible under SDCL 19-16-35. McCaf-ferty appealed for the second time, McCaf-ferty II, and this court summarily affirmed the trial court. State v. McCafferty, 384 N.W.2d 323 (1986). The United States Supreme Court denied McCafferty’s petition for writ of certiorari. McCafferty v. South Dakota, 476 U.S. 1172, 106 S.Ct. 2897, 90 L.Ed.2d 983 (1986).

McCafferty initiated this habeas corpus action against Herman Solem (State), Warden of the South Dakota State Penitentiary. The habeas court granted McCafferty’s petition for writ of habeas corpus on the grounds that his conviction was based on the erroneously admitted testimony of two expert witnesses who offered expert testimony on the believability or credibility of the victim. However, the habeas court denied McCafferty’s petition to the extent that his convictions were based on the allegedly erroneous admission at the trial of evidence of his prior felony convictions and the trial court’s refusal to appoint a psychiatrist or psychologist to examine the victim.

State appeals only that part of the judgment relating to the admissibility of the experts’ testimony on the believability of the victim, stating the issue: whether it is error for an expert witness to give an opinion regarding the believability of a child sexual abuse victim “unavailable” at trial. McCafferty notices for review that part of the judgment relating to the admission of his prior convictions and the trial court’s refusal to appoint a psychiatrist to examine the victim.² He grounds his issues as constitutional violations thusly: (1) whether the refusal of the trial court to appoint a psychiatrist to assist the defense violated McCafferty's right to a fair trial and his due process rights; and (2) whether the admission of McCafferty’s prior felony convictions deprived him of due process.

The remedy of post-conviction habe-as corpus is restricted by the provisions of SDCL 21-27-16 and the prior decisions of this court. The statutory provisions were fairly well summarized in our decision, State v. Erickson, 80 S.D. 639, 129 N.W.2d 712 (1964), wherein we pointed out that, since the remedy is in the nature of a collateral attack upon a final judgment, the scope of review in habeas corpus proceedings is limited. As we said: “habeas corpus can be used only to review (1) whether the court had jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) in certain cases, whether an incarcerated defendant has been deprived of basic constitutional rights.” Id, 80 S.D. at 645, 129 N.W.2d at 715. See also Goodroad v. Solem, 406 N.W.2d 141 (S.D.1987). Habe-as corpus is not a proper remedy to correct irregular procedures, rather, habeas corpus reaches only jurisdictional error. Id. 406 N.W.2d at 143; SDCL 21-27-16. For purposes of habeas corpus, constitutional violations' in a criminal case deprive the trial court of jurisdiction. Goodroad, 406 N.W.2d at 143; Podoll v. Solem, 408 N.W.2d 759 (S.D.1987). Therefore, if McCafferty can show in a habeas corpus action that his conviction has been obtained in violation of the constitution, he is entitled to relief. Further, we may not upset the habeas court’s findings unless they are clearly erroneous. SDCL 15-6-r52(a); Satter v. Solem, 422 N.W.2d 425 (S.D.1988).

We first address the issue raised by State on the admissibility of the experts’ testimony in the form of an opinion as to the believability of a victim of child sexual abuse. This specific issue has not been previously addressed by this court.

In this case, the testimony of the witnesses presently under attack was:

Pam Haugland, a preschool teacher, who testified as follows:

Q Would you say you had established some rapport with [S.F.]?

A Yes, very much.

Q Has she on other occasions opened up to you?

A Oh, yes.

Q Did you feel that you could rely on what she told you or believe what she told you?

A Definitely.

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Q Did you ask her anything else, Mrs. Haugland, or pursue this any further?

A Oh, we talked a lot and talked about different, that kind of thing, and the touching and feeling game. And I just at this point felt I better find out if there’d been any penetration, or anything of this nature. And I asked her if Daddy ever put anything in her. And she was very honest, “No. Just kleenex.” ³ And I truly don’t know what [S.F.] meant about that. Then she stopped talking pretty much about that. Very honest.

Dr. Curran, a clinical psychologist, testified as follows:

Q Have you ever had any trouble with [S.F.] in the past telling you things that were not true?

A No, I can’t say that I have.

Q You think you can tell when kids are trying to pull the wool over your eyes?

A Not always. I think kids are pretty good. One area, you know, based on the psychological research, is that in areas of child sexual abuse, it would be less than one percent of the population lie about that. And it would take a pretty sophisticated cognitive system to create that. And I don’t think [S.F.] has that kind of system functioning yet that she could create that.

Because of the special circumstances in child sexual abuse cases, several evidentia-ry rules have developed. Testimony relating to the child’s statements concerning sexual contact are admissible if the court finds sufficient indicia of reliability. Matter of C.L., 397 N.W.2d 81 (S.D.1986); McCafferty I, supra; SDCL 19-16-38. An expert may testify as to certain characteristics of sexually abused children and may even compare those characteristics to actions of a particular victim. United States v. Saint Pierre, 812 F.2d 417 (8th Cir.1987).

The general rule, however, is that one witness may not testify as to another witness’ credibility or truth-telling capacity because such testimony would invade the exclusive province of the jury to determine the credibility of a witness. Of recent years, the impact of allowing this type of testimony in child sexual abuse cases has been considered, coupled with the general rule. “[Ejxpert testimony particularly courts the danger of undue prejudice or of confusing the issues or misleading the jury because of its aura of special reliability and trustworthiness.” State v. Logue, 372 N.W.2d 151, 157 (1985) (citation omitted). Thus, some courts have held that permitting an expert to give her opinion that the victim is telling the truth, puts an impermissible stamp of believability to that testimony. United States v. Azure, 801 F.2d 336, 340 (8th Cir.1986); State v. Lindsey, 149 Ariz. 472, 720 P.2d 73 (1986); State v. Myers, 382 N.W.2d 91 (Iowa 1986); People v. Matlock, 153 Mich.App. 171, 395 N.W.2d 274 (1986); Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (Penn.1986).

These cases were not, however, bright-line tests. They emerged slowly and haltingly out of the problems surrounding the prosecution of child sexual abuse cases. Over the past decade, courts have struggled with how far to allow experts to go in explaining whether children generally lie about sexual abuse, while attempting to protect the rights of the defendant. See Hutton, Child Sexual Abuse Cases: Reestablishing the Balance Within the Adversary System, 20 Univ. of Mieh.J.L.Ref. 491, 498-501 (1987). At the time of McCafferty’s trial, courts were permitting experts to express their opinions as to the believability of children because these cases were recognized as being “different.” State v. Kim, 64 Haw. 598, 602, 645 P.2d 1330, 1334 (1982); State v. Myers, 359 N.W.2d 604 (Minn.1984).

In McCafferty I, we recognized that cases involving very young sexual abuse victims are special cases for confrontation clause purposes and that the legislature had adopted a “tender years” exception to the hearsay rule for just such cases. Indeed, we seem to have stated empirically that “a young child is unlikely to fabricate a graphic account of sexual activity because such activity is beyond the realm of his or her experience.” 356 N.W.2d at 164. The fact that in 1989 we hold that a trial court erred in admitting Haugland’s and Curran’s testimony as to truthfulness, does not mean we must require that prescience of a trial judge sitting in 1983.

Following the lead of the United States Supreme Court in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), this court has long recognized that emerging constitutional rights need not be applied retrospectively in criminal cases. State v. Iverson, 269 N.W.2d 390 (S.D.1978) (ruling on granting of suspended sentences not applied retrospectively); Crew v. Nelson, 88 S.D. 162, 216 N.W.2d 565 (1974) (Boykin rights applied only prospectively in misdemeanor hearings); Locke v. Erickson, 85 S.D. 262, 181 N.W.2d 100 (1970) (right to counsel at preliminary hearing not applied' retrospectively); State v. Thwing, 84 S.D. 391, 172 N.W.2d 277 (1969) (Miranda rights not applied retrospectively).

In State v. One 1966 Pontiac Auto, 270 N.W.2d 362 (S.D.1978), we established the following criteria to determine whether a particular decision should be given retrospective effect: “(1) The purpose of the decision, (2) reliance on the prior rule of law, and (3) the effect upon the administration of justice.” Id. at 365.

Applying those criteria to the facts at hand, we believe it is ill-advised to retrospectively apply 1985-plus cases on expert testimony to a trial that occurred in 1983.

First, as was noted earlier, the purpose of cases such as Azure, supra, was to clarify how far an expert could comment on a child witness’ truthfulness. These are not cases where courts are attempting to deter prosecutorial overreaching. Rather, they are attempts to refine due process rights, while at the same time deal with the difficulties involved with inarticulate and often terrified victims of child sexual abuse. We cannot say that any legitimate purpose would be served by imposing this refinement of an evidentiary rule retrospectively.

Second, the trial judge had precedent to rely on saying that Haugland’s and Curran’s testimony was admissible. Kim, supra; Myers, supra. Our guidance in McCafferty I seemed to say that children could not fabricate a graphic account of sexual abuse. To claim now that a trial judge sitting in 1983 should have seen this shift in the law is ridiculous. This trial judge, and many others, relied on valid precedent to admit this type of expert testimony. We believe it would be folly to retrospectively overturn those rulings.

Third, applying this evidentiary ruling retrospectively would have disastrous effects on the criminal justice system. It would invite every child molester, whose trial included expert testimony about the truthfulness of the victim, to demand that his conviction be likewise overturned. There comes a point where the justice system and society has a right to consider that a conviction fairly obtained is final. In this case, we are satisfied that victim’s statement, along with McCafferty’s admission to the police, established his guilt and that his conviction was fairly obtained under the evidentiary rules in place at the time of his trial.

We next examine McCafferty’s issues on notice of review: whether he was deprived of a fair trial and due process when the trial court denied his motion for the appointment of a psychiatrist to aid in his defense and when the trial court admitted evidence of a prior felony conviction. Both of these issues were raised on direct appeal, although without the constitutional trappings.

‘This court will not permit an accused to appeal his judgment of conviction and speculate upon his chances of securing a reversal and then, after the judgment of conviction is affirmed, come into court in a habeas corpus proceeding and raise the same issue on other grounds which might entitle the petitioner to a new trial or his release from custody.’

State v. Jameson, 80 S.D. 362, 370, 123 N.W.2d 654, 658 (1963) (citation omitted). Granted, McCafferty now attempts to raise these issues to a constitutional standing, but “[mjere assertions of denial of constitutional rights do not entitle a party to relief unless found to be true upon adequate proof submitted at the hearing.” State v. Roth, 84 S.D. 44, 46, 166 N.W.2d 564, 565 (1969).

With regard to the first issue, failure to appoint a psychiatrist, we considered that issue under our prior decision in State v. Wounded Head, 305 N.W.2d 677, 679 (S.D.1981), wherein we held that the psychiatric examinations of complaining witnesses in sexual offense cases may be ordered at the trial court’s discretion upon a substantial showing of need and justification. That has continued to be our rule. State v. Carlson, 392 N.W.2d 89 (S.D.1986); State v. Hallman, 391 N.W.2d 191 (S.D.1986). Nor are we persuaded to change it. The authority cited by McCafferty, Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), is clearly distinguishable, inasmuch as Ake dealt with the failure of a trial court to appoint a psychiatrist to assist the defense in interposing an insanity defense where the defendant had shown that his sanity was likely to be a significant factor at trial. McCafferty made no attempt to plead an insanity defense.

Likewise, we find Little v. Armontrout, 835 F.2d 1240 (8th Cir.1987), unpersuasive. We read Little to deal with hypnosis, a very special field of psychiatry, not present in this case. In Little a rape victim, while under hypnosis, had identified the defendant as her assailant. The Eighth Circuit en banc decision in Little did not suggest that the only criteria in deciding the necessity of appointment of a psychiatric expert was the balancing of the defendant’s interest in avoiding a prison term against the state’s interest in avoiding the relatively small expenditure that would be required, as McCafferty’s brief suggests. Rather the court said:

Ake and Caldwell⁴ taken together hold that a defendant must show more than a mere possibility of assistance from an expert. Rather the defendant must show a reasonable probability that an expert would aid in his defense and that denial of expert assistance would result in an unfair trial.

835 F.2d at 1244.

In McCafferty I, we determined that “McCafferty has not made a substantial showing of need and justification nor asserted that [victim] has mental or moral delusions or tendencies which distort her credibility.” 356 N.W.2d at 167. The record from McCafferty I shows that his trial counsel argued that S.F. should be examined by a defense psychiatrist because of her young age, seven, her alleged inconsistent accounts of whether McCafferty committed the crime, and the possibility that Dr. Curran’s treatment of the mother and S.F. might cloud her judgment. What McCafferty’s counsel failed to substantiate for the trial court is critical. There was no showing that Dr. Curran was biased or that her opinions were inaccurate. More importantly, though McCafferty’s counsel had contacted another psychiatrist, there was absolutely no showing that he would provide a different conclusion than Curran’s or that her conclusions were wrong. There was simply no showing of a reasonable probability that McCafferty’s expert would aid in the defense or that denial of the expert would result in an unfair trial. McCafferty’s counsel was never able to raise his request for an expert witness above his personal speculation that another expert was needed and could assist the defense.

We think that the rule established by our decisions adequately fulfills the due process requirements as set out in Little, supra, and we affirm the habeas court on the decision on that issue.

Finally, with regard to the second issue on notice of review, the admission of testimony regarding McCafferty’s prior felony record, we again note that we considered that issue in McCafferty I. In this appeal, McCafferty concedes that the due process guarantee of fundamental fairness is not violated by admission of evidence of a defendant’s prior convictions unless the potential for prejudice outweighs its probative value, citing us to Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). SDCL 19-14-12 (Rule 609(a)), sets out the same criteria plus the requirement that the prior crime was punishable by death or imprisonment in excess of one year, or involved dishonesty or false statement, regardless of the punishment. Our decisions have consistently followed this requirement. State v. Swallow, 405 N.W.2d 29 (S.D.1987); State v. Cross, 390 N.W.2d 564 (S.D.1986); State v. Cochrun, 328 N.W.2d 271 (S.D.1983).

In McCafferty I, we determined that, because defense counsel had failed to renew his suppression motions at the proper times, the trial court had failed to make a ruling on the record on the motion to suppress and we remanded that issue to the trial court for further proceedings. The trial court’s findings of fact and conclusions of law evidencing the weighing process in favor of admission of the evidence resulted in the second judgment that was summarily affirmed.

McCafferty’s sole argument on this appeal is that the admission of evidence reflecting unfavorably on McCafferty’s credibility was too unfairly prejudicial because of the admission of the expert testimony supporting the victim’s credibility. As in the discussion of the first issue, on the admissibility of the expert testimony, we must view the issue in the context of the law as it existed at the time of the trial. Our rule on admissibility is at least as stringent as the federal requirements for due process. From this prospective, we cannot say that the trial court was in error in admitting the prior felony evidence for the purpose of impeachment. We affirm the habeas court on that issue.

We affirm the habeas court on the notice of review issues and reverse on the issue of admissibility of testimony and remand with instructions to quash the writ of habeas corpus.

WUEST, C.J., and MILLER, J., concur. HENDERSON and SABERS, JJ.', dissent.

1 . Subsequent to McCafferty's conviction, SDCL 22-22-7 was amended by the 1984 Legislature to read: "Any person ... who knowingly engages in sexual contact with another person ... under the age of sixteen years is guilty of a Class 4 felony.” (Amendment underlined.)

2 . Both notice of review issues were raised and affirmed on direct appeal in McCafferty I, 356 N.W.2d 159 (S.D. 1984).

3 . In a statement to police, McCafferty had admitted that "he may have inserted [his] finger into her vagina[.]” McCafferty I, 356 N.W.2d at 165.

4 . Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (question of obligation to appoint a non-psychiatric expert for indigent defendant; bald assertion of need for aid with no showing of reasonableness of the request).