State v. Jolley

2003 SD 5, 656 N.W.2d 305, 2003 S.D. LEXIS 5

• Court: South Dakota Supreme Court
• Decided: January 8, 2003
• Docket: None
• Status: Published

Opinions

AMUNDSON, Justice (Retired).

[¶ 1.] On May 30, 2001, Jon Jolley was convicted of second-degree felony murder and child abuse. Jolley was sentenced to life in prison without parole on the second-degree felony murder conviction and ten years in prison on the child abuse conviction. Jolley appeals. We affirm.

FACTS

[¶ 2.] On the morning of July 31, 2000, six-year-old Barrett Jolley (Barrett) collapsed in the living room of the home of Jon Jolley (Jolley), his father. An ambulance was summoned to the scene. Barrett’s body was lifeless when the paramedics arrived. The paramedics removed Barrett’s clothes and found his body covered with bruises. The child was immediately taken to the hospital. Despite resuscitation efforts, Barrett was pronounced dead at the hospital. Barrett’s death was attributed to blunt force trauma.¹

[¶ 3.] Thereafter, Jon Jolley and Karry Luthy (Luthy) were arrested and charged with second-degree murder, second-degree felony murder, and child abuse. Subsequently, Luthy entered into a plea agreement whereby she pled to two counts of child abuse, and received two concurrent ten-year prison sentences. Pursuant to this agreement the charges of second-degree murder and second-degree felony murder were dismissed.

[¶ 4.] After a jury trial, Jolley was found guilty of second-degree felony murder and child abuse. On these convictions Jolley was sentenced to life imprisonment for second-degree felony murder and ten years for child abuse. Jolley appeals the following issues:

1.) Whether the trial court erred in denying the admission of other acts evidence regarding state witness Karry Luthy.

2.) Whether the trial court erred in denying the introduction of the sentence faced by state witness Karry Luthy before she accepted a plea offer.

3.) Whether the trial court erred in allowing the admission of other acts evidence regarding Jolley.

STANDARD OF REVIEW

[¶ 5.] In reviewing a trial court’s decision to admit other acts evidence this Court will not overrule the trial court’s decision unless there is an abuse of discretion. State v. Anderson, 2000 SD 45, ¶ 93, 608 N.W.2d 644, 670; State v. Larson, 512 N.W.2d 732, 736 (S.D.1994); State v. McDonald, 500 N.W.2d 243, 245 (S.D.1993); State v. Werner, 482 N.W.2d 286, 288 (S.D.1992).

“Upon review ... we must be careful not to substitute our reasoning for that of the trial court.” Larson, 512 N.W.2d at 736. Thus, the question is not whether, had we been the trial judge, would we have admitted the prior bad acts evidence but whether the trial court sitting in this case abused its discretion by doing so. Id.; State v. Rufener, 392 N.W.2d 424, 426 (S.D.1986).

Anderson, 2000 SD 45 at ¶ 93, 608 N.W.2d at 670.

This Court will only disturb decisions of the trial court regarding the admission of evidence if there is a clear abuse of discretion. State v. Devall, 489 N.W.2d 371, 374 (S.D.1992); State v. Olesen, 443 N.W.2d 8, 9 (S.D.1989); State v. Bawdon, 386 N.W.2d 484, 486 (S.D.1986); State v. Percy, 80 S.D. 1, 117 N.W.2d 99, 100 (1962). “ ‘An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.’ ” Devall, 489 N.W.2d at 374 (quoting State v. Pfaff, 456 N.W.2d 558, 561 (S.D.1990)). Under the abuse of discretion standard, we do not determine whether we would have made a like decision, only whether a judicial mind, considering the law and the facts, could have reached a similar decision.

State v. Orelup, 520 N.W.2d 898, 900-901 (S.D.1994).

DECISION

[¶ 6.] 1.) Whether the trial court erred in denying the admission of other acts evidence regarding state witness Karry Luthy.

[¶ 7.] Jolley claims the trial court should have granted his Motion to Use Other Acts Evidence. Jolley contends testimony regarding Luthy’s past volatile relationships with men should have been allowed to show identity or in the alternative modus operandi.

[¶ 8.] SDCL 19-12-5 governs the admission of other acts evidence. The statute reads as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

To determine the admissibility of other acts evidence the court must first determine: (1) whether the intended purpose is relevant to some material issue in the case, and (2) whether the probative value of the evidence is substantially outweighed by its prejudicial effect. Anderson, 2000 SD 45 at ¶ 92, 608 N.W.2d at 669; State v. Moeller, 1996 SD 60, ¶ 13, 548 N.W.2d 465, 472 (citation omitted).

[¶ 9.] This Court has said,

[U]nder § 404(b) other acts evidence may not be admitted if its sole purpose is to establish an inference from bad character to criminal conduct. It is admissible when similar in nature and relevant to a material issue, and not substantially outweighed by its prejudicial impact. The degree of similarity required for other act evidence will depend on the purpose for which it is offered.

State v. Wright, 1999 SD 50, ¶ 16, 593 N.W.2d 792, 799-800.

[¶ 10.] Jolley maintains that the testimony is relevant to show identity or modus operandi. This Court has held that “mo-dus operandi evidence used to establish identity requires a high degree of similarity.” Wright, 1999 SD 50 at ¶ 18, 593 N.W.2d at 800.

[¶ 11.] At the motion hearing Rhonda Jolley testified that she had seen Luthy on several occasions hit her boyfriend, her first husband, and her second husband. She further testified that Luthy had a bad temper and that she thought Luthy could be abusive.

[¶ 12.] The trial court determined that the evidence of other acts was not similar enough in nature to show identity in the case before it.² In addition, the trial court also noted that such evidence would be more prejudicial than probative. The trial court reasoned that the other acts testimony proposed by Jolley involved adults, not children, stating past failed romantic relationships and marriages between adults is not similar enough in nature to a charge of child abuse. The testimony was “more toward character than anything else.” The trial court applied the proper balancing test and found the proposed testimony was not relevant. The trial court did not abuse its discretion in finding that there was no integral link between Luthy’s turbulent romantic relationships and a small child being beaten to death.³

[¶ 13.] 2.) Whether the trial court erred in denying the introduction of the sentence faced by state witness Karry Luthy before she accepted a plea offer.

[¶ 14.] Jolley argues that the trial court unduly limited his right to cross-examine Luthy and thus violated his Sixth Amendment right to confront a witness. “The Confrontation Clause does not guarantee effective cross-examination, but merely guarantees the opportunity to confront the witness.” State v. Perovich, 2001 SD 96, ¶ 15, 632 N.W.2d 12, 16. Therefore, the inquiry we must make is whether Jolley had an opportunity for effective cross-examination of Luthy.

[¶ 15.] The scope and extent of cross-examination is “largely within the sound discretion of the trial court.” State v. Grooms, 504 N.W.2d 111, 112 (S.D.1993) (citations omitted). Jolley’s hands were not completely tied on cross-examination. Although Jolley was prevented from questioning Luthy regarding the life sentence she faced before the plea bargain, Jolley, nonetheless, was able to cross-examine Lu-thy regarding her plea bargain.

[¶ 16.] On direct examination Luthy testified that she had been facing a charge of murder and child abuse and subsequently entered into a plea agreement. Luthy also indicated that she pled guilty to two counts of child abuse and was facing a maximum twenty-year sentence. Luthy also admitted on direct that she agreed to testify in return for the plea bargain she received. Although Jolley was not permitted to cross-exam Luthy about the life sentence she was initially facing, Jolley was able to question Luthy about her knowledge of the severity of the sentence she was facing on the murder charge. The record indicates Luthy agreed that the murder charge she faced before the plea bargain was substantially more serious than the charges of child abuse.

[¶ 17.] Despite not being able to question Luthy about the life sentence she was facing, the defense had plenty of ammunition to attack Luthy’s credibility. The defense was able to cross-examine Luthy about her plea agreement, that she had made inconsistent statements and flat out lied continuously throughout the investigation, that the murder charges against her had been dropped, and that she received a lesser sentence through her cooperation. During closing arguments the defense spent the majority of the time attacking Luthy’s credibility.

[¶ 18.] We cannot say that the trial court abused its discretion in limiting cross-examination. We affirm.

[¶ 19.] 3.) Whether the trial court erred in allowing the admission of other acts evidence regarding Jol-ley.

[¶ 20.] Jolley asserts that the trial court erred when it allowed the state to offer other bad acts, pertaining to an incident in which Jolley allegedly kicked his daughter. Jolley contends that the trial court did not use the same relevancy test used to keep out the other bad acts of Luthy. To the contrary the trial court allowed both Jolley and the state to present testimony regarding their respective motions.

[¶ 21.] The record indicates the trial court performed the same balancing test to both motions. The trial court made a determination that the testimony concerning the other bad acts of Jolley were relevant to a material issue in the case. The trial court further found that the testimony was more probative than prejudicial. The court reasoned that the act had sufficient similarities to the offense now charged and was probative on the issue of identity. Unlike the other bad acts Jolley proposed to use against Luthy, the acts here involve a child and were similar in nature to the charge of child abuse.

[¶ 22.] The trial court also found the act to be admissible for the purpose to show absence of mistake or accident. This Court has said that “the use of other crimes and wrongs to show ‘absence of mistake or accident is well established, particularly in child abuse cases.’ ” Wright, 1999 SD 50 at ¶ 23, 593 N.W.2d at 802. Initially, during the investigation both Jolley and Luthy said that the bruises on Barrett were from accidents. Both Jolley and Luthy claimed that Barrett had been throwing himself against things and that he had fallen out of the bathtub.

[¶ 23.] Although Jolley contends the court has made inconsistent rulings the record shows the trial judge applied the same balancing test and did not abuse his discretion in allowing the other bad acts evidence. We affirm.

[¶ 24.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, concur. [¶ 25.] ZINTER, Justice, concurs specially. [¶ 26.] SABERS, Justice, dissents. [¶ 27.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

1 . The uncontested evidence depicts a nightmarish experience during the deceased minor's last four to five days at the family residence. Evidence shows he was physically and mentally abused. The minor was disciplined severely for simply wanting to live with his grandmother. An obvious request from a child being beaten daily. A review of the record certainly reveals that pet owners treat animals better than the young boy was treated by his father and step-mother. It goes without saying that pet owners give their pets more love and attention than this young boy received over those last days.

2 . There is authority supporting the argument that a lower standard should be utilized when evaluating the admissibility of other acts evidence when offered by the defendant. See United States v. Stevens, 935 F.2d 1380, 1404-1405 (3rdCir.1990)(a lower standard of similarity should govern "reverse 404(b)” evidence because prejudice to a defendant is not a factor); United States v. Cohen, 888 F.2d 770, 776 (11thCir.1989)(the standard for admission is relaxed when the evidence is offered by the defendant); United States v. Aboumoussallem, 726 F.2d 906, 911-912 (2dCir.1984)(risks of prejudice are normally absent when the evidence is offered by the defendant); People v. Bueno, 626 P.2d 1167, 1169 (Colo.Ct.App.1981)(when a defendant offers such evidence for defensive purposes, the concerns which gave rise to the rule are no longer applicable); State v. Garfole, 76 N.J. 445, 388 A.2d 587, 591 (N.J.1978)(other acts evidence used defensively requires a lower standard of degree of similarity).

We declined to adopt this more liberal standard in favor of the defendant. In State v. White, this Court addressed this issue and ultimately declined to adopted a more liberal standard. 1996 SD 67, 549 N.W.2d 676. We adhere to the holding in White. Even if we were to adopt a more liberal standard, a showing of similarity must still be made by the defendant. In each of the cases supporting a lower standard for other acts evidence offered by the defendant, a degree of similarity must still be shown.

The New Jersey Court in Garfole, was one of the first to adopt a more liberal standard in favor of the defendant. The court in Garfole, relaxed the standard of admissibility for other acts when offered by the defendant. The court held that a “a lower standard of degree of similarity of offenses may justly be required of the defendant using other-crimes evidence defensively than is exacted from the State when such evidence is used incriminatorily.” 388 A.2d at 591.

The court in Stevens, examined Garfole, and ultimately held that although the crime need not be a "signature crime” it nevertheless must be sufficiently similar to the crime at hand. 935 F.2d at 1384. It is clear from the case law that a similarity between the crimes must be present. Each of the cases supporting a more liberal standard for other acts evidence when offered by the defendant found similarities between the crime being charged and the other act offered.

In Stevens, the court compared the charged crime with the other act offered. The court ultimately found enough similarities to admit the other act. The court found both crimes involved a gun, a wallet being stolen, the assailant searching the victims for money, both happen in the same area, around the same time frame, and in both crimes military IDs were taken and used to cash stolen checks in the same area. Although the court was applying a more liberal standard it is clear that similarities between the two must still be shown. Id. at 1401.

The trial court found that the defendant failed to show similarity between the other acts offered and the charge at hand. The defendant has failed to show any similarity that would, under either standard, require a reversal.

3 . A review of State v. Fulston, supports the trial Court’s evidentiary ruling in this case. 325 N.J.Super. 184, 738 A.2d 380 (A.D.1991). In Fulston, the defendant testified to his version of what transpired between himself and the victim’s mother. Id. at 382. In this case the defendant did not testify so there is no conflicting version. In Fulston, the other acts admitted involved past physical abuse of the victim by the state’s witness. Id. at 384. In this case there is no evidence of past physical abuse by Luthy of the victim. Further, the defendant was able to cross-examine the witness regarding her plea to child abuse. Additionally, the court in Fulston held as follows:

it is not enough to prove some hostile event and leave its connection with the case to mere conjecture. "Somewhere in the total circumstances there must be some thread capable of inducing reasonable [persons] to regard the event as bearing upon the State’s case.” Ibid.

... The fact that witnesses observed Da-maris abusing the child near the time of the homicide had a legitimate tendency to support the inference that she, and not defendant, killed the victim. This evidence was particularly poignant in light of Damaris’s confession to one of the proffered witnesses that she wished Michai has never been born....

738 A.2d 380, 384 (A.D.1999). There was no thread of similarity shown regarding the other acts evidence offered in this case or actual observations of Luthy physically abusing the victim as was the case in Fulston. Therefore, the trial court properly exercised its discretion in denying the admission of the offered other acts evidence.