State v. Cady

422 N.W.2d 828, 1988 S.D. LEXIS 54, 1988 WL 35201
CourtSouth Dakota Supreme Court
DecidedApril 20, 1988
Docket15769
StatusPublished
Cited by35 cases

This text of 422 N.W.2d 828 (State v. Cady) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cady, 422 N.W.2d 828, 1988 S.D. LEXIS 54, 1988 WL 35201 (S.D. 1988).

Opinions

MILLER, Justice.

This is a criminal appeal1 from a jury verdict of guilty and a subsequent judgment of conviction for first-degree rape (SDCL 22-22-1(1)), first-degree burglary (SDCL 22-32-1(2)), and aggravated assault (SDCL 22-18-1.1(5)). We affirm.

[829]*829FACTS

Daniel Charles Cady (defendant) entered a home without permission of the occupants on the pretext of using the telephone. However, defendant took the mother and her five-year-old child upstairs at knife point, put the child in her room and shut the door. Defendant then took the mother to her room and performed various sexual acts against her. The child, hearing her mother’s screams, took the screen off the window, jumped to the ground, and ran to her uncle’s neighboring apartment for help. The victim’s brother came to the house and upon entering the bedroom saw the naked defendant with a knife, which was gestured at brother. Brother attempted to call the police, then chased the defendant and helped the police locate him.

ISSUE I

WHETHER THE TRIAL COURT ERRED IN ALLOWING THE TESTIMONY OF THE MINOR CHILD TO BE PRESENTED TO THE JURY.

Defendant argues that the minor child witness (child) was not competent to testify and that her testimony was irrelevant. Specifically, defendant claims irrelevant the testimony that (1) the child jumped out of a window and ran for help and (2) that she was subsequently taken to a hospital.

A determination of whether a witness is competent to testify is within the trial court’s discretion, and thus will be reversed only upon a showing of abuse of such discretion. State v. Lufkins, 381 N.W.2d 263 (S.D.1986); State v. Phipps, 318 N.W.2d 128 (S.D.1982). In State v. Lutheran, 76 S.D. 561, 82 N.W.2d 507 (1957), a nine-year-old girl was found competent to testify. See also State v. Southmayd, 37 S.D. 375, 158 N.W. 404 (1916), wherein a six-year-old girl was allowed to testify. Also, in Lutheran, the court stated that “[t]he credibility of the witnesses, and the weight and value of their testimony, are matters within the exclusive province of the jury.” 76 S.D. at 564, 82 N.W.2d at 509.

Before child’s testimony was received, the trial court conducted an in-camera hearing to determine whether she was competent to testify. The court concluded that she understood the importance of speaking the truth, appreciated the seriousness of the oath, and understood that the oath required that she tell the truth.

Here, child demonstrated that she had the mental capability to observe, recollect, and communicate. Thus, the court did not abuse its discretion in deciding that she was competent to testify. The jury was appropriately allowed to assess her credibility.

Defendant cites State v. Goodnow, 41 S.D. 391, 170 N.W. 661 (1919); 22A C.J.S. Criminal Law § 600 (1961), and argues that child’s testimony was irrelevant because it did not relate to the offenses charged. Defendant claims child’s testimony merely served to create sympathy in the jury and prejudice against him and thus it should have been excluded.

“Balancing probative value of evidence against risk of unfair prejudice is a delicate function of the trial judge in the exercise of discretion.” State v. Wedemann, 339 N.W.2d 112, 115 (S.D.1983); SDCL 19-12-3. “The trial judge 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 decision.” State v. Farley, 290 N.W.2d 491, 494 (S.D.1980); see generally Shamburger v. Behrens, 380 N.W.2d 659 (S.D.1986).

Prior to trial, the court ruled that it would allow the testimony but would carefully watch to make sure the fact that child jumped out the window was not used excessively to distract the jury. Also, the court ruled that it would allow, to some extent, the testimony that she went to the hospital. In fact, at trial, this testimony was not used excessively. We cannot conclude that the prejudicial effect outweighed the probative value as child’s testimony demonstrated her ability to recall and recount. As a victim-witness, her testimony was relevant.

[830]*830ISSUE II

WHETHER THE TRIAL COURT ERRED IN ITS WRITTEN SENTENCE OF DEFENDANT.

Defendant claims that the court’s written judgment imposed an additional eighty-five-year sentence not handed down orally by the trial court. State argues that the oral sentences were ambiguous and that the written judgment merely clarifies the ambiguity.

It is settled law in this state that the oral sentence is the only sentence and the written sentence must conform to it. State v. Ford, 328 N.W.2d 263 (S.D.1982). See also United States v. Villano, 816 F.2d 1448 (10th Cir.1987); United States v. Pagan, 785 F.2d 378 (2d Cir.1986), cert. denied — U.S. -, 107 S.Ct. 667, 93 L.Ed.2d 719 (1986); United States v. Glass, 720 F.2d 21 (8th Cir.1983), cert. denied 474 U.S. 856, 106 S.Ct. 161, 88 L.Ed.2d 134 (1985); United States v. McDonald, 672 F.2d 864 (11th Cir.1982) (per curiam); Schurmann v. United States, 658 F.2d 389 (5th Cir.1981); United States v. Lewis, 626 F.2d 940 (D.C.Cir.1980); United States v. Munoz-Dela Rosa, 495 F.2d 253 (9th Cir.1974) (per curiam); Scott v. United States, 434 F.2d 11 (5th Cir.1970); United States v. Morse, 344 F.2d 27 (4th Cir.1965); Payne v. Madigan, 274 F.2d 702 (9th Cir.1960), affd by an equally divided court, 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853 (1961).

However, we have not previously had an opportunity to determine what occurs when the oral sentence is ambiguous and unclear. As we noted in Ford, supra, we must look to federal authority since our rules of criminal procedure (SDCL ch. 23A) were adopted from the federal rules of criminal procedure.

It seems to be uniformly held in the federal courts that when an orally pronounced sentence is ambiguous, the written judgment may be relied upon to clarify the ambiguity. United States v.

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Cite This Page — Counsel Stack

Bluebook (online)
422 N.W.2d 828, 1988 S.D. LEXIS 54, 1988 WL 35201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cady-sd-1988.