State v. Moriarty

501 N.W.2d 352, 1993 S.D. LEXIS 61, 1993 WL 186075
CourtSouth Dakota Supreme Court
DecidedJune 2, 1993
Docket17900
StatusPublished
Cited by30 cases

This text of 501 N.W.2d 352 (State v. Moriarty) 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. Moriarty, 501 N.W.2d 352, 1993 S.D. LEXIS 61, 1993 WL 186075 (S.D. 1993).

Opinions

SABERS, Justice.

Defendant, John Francis Moriarty (Moriarty) appeals his conviction of rape in the second degree.

FACTS

On an evening in early May, 1991, S.M.’s mother left for work leaving S.M., a girl age eight, and her two siblings under the care of S.M.’s stepfather, Moriarty. The mother had left Moriarty with instructions to wash S.M.’s hair that evening. According to S.M., when Moriarty took a bath that night, he asked S.M. to get into the bathtub with him. S.M. was required to wash Moriarty’s chest, stomach, and erect penis. Moriarty rubbed S.M.’s vaginal area. The following day, S.M. told her mother that she had taken a bath with Moriarty. It was approximately five days later, however, when S.M. told her mother that she had been required to wash Moriarty and that his penis was “hard, ... gross.” Because the mother did not think anything had happened, she did not pursue it further.

Later that month, S.M. told her babysitter, Leah DeWald (DeWald), that she had been anally raped by her stepfather, Moriarty. In explaining her allegations to De-Wald, S.M. drew a number of pictures which DeWald kept. Two of the pictures were subsequently entered into evidence.

DeWald showed the pictures to a friend, Nicole Cummings, who told her mother, Candice Cummings (Cummings), a social worker with Family Services, about the pictures. DeWald showed the pictures to Cummings and the following morning, May 14, 1991, Cummings reported what she had learned to Protective Services, Department of Social Services.

When S.M. was interviewed by Amanda Loving (Loving), a social worker for Child Protection Services, she told Loving that she had been sodomized on at least two occasions by Moriarty and forced to engage in oral copulation. Dr. Brent Willman (Willman), a pediatrician at Central Plains Clinic, examined S.M. for physical evidence of vaginal penetration, sodomy and copulation. No physical evidence of rape was found.

On June 6, 1991, Moriarty was indicted by a Grand Jury on one count of Rape in the Second Degree. Following a three day jury trial, he was found guilty of rape in the second degree and sentenced to serve seventy-five years, with twenty-five suspended on the condition that he never reside with children under fifteen years of age.

Moriarty raises six issues on appeal.
1. Whether his confrontation clause rights were violated by the hearsay testimony of the babysitter, Leah De-Wald.
2. Whether his confrontation clause rights were violated by the hearsay testimony of Candice Cummings.
3. Whether the testimony of Candice Cummings invaded the province of the jury.
4. Whether the prosecutor engaged in prosecutorial misconduct when questioning Dr. Willman in violation of Moriarty’s confrontation clause rights.
5. Whether the prosecutor engaged in prosecutorial misconduct by securing the absences of S.M.’s family members during her testimony and then making reference to this absence in closing argument.
6. Whether the trial court abused its discretion in prohibiting Moriarty’s expert from presenting testimony concerning the behavioral characteristics of a sexually abused child and in prohibiting the expert from presenting case specific testimony.

[355]*3551. Hearsay testimony of DeWald.

Moriarty argues that his confrontation clause rights were violated by the hearsay testimony of the babysitter, Leah DeWald. Moriarty claims that even though DeWald’s testimony constituted hearsay, she was not named in the State’s Notice of Intent to Offer Hearsay Statements of Child Under Ten, nor was the requisite hearing to determine reliability conducted, and this violated his confrontation clause rights.

We review evidentiary rulings on the basis of abuse of discretion. “For us to disturb the evidentiary rulings of the circuit court, we must determine that an abuse of discretion has occurred. Once again, an abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.” State v. DeVall, 489 N.W.2d 371, 374 (S.D.1992) (citations omitted).

Initially, the State argues that Moriarty failed to object to the testimony of DeWald at trial1 and the issue has not been preserved. This is incorrect. The trial court did not address his objection at the time DeWald testified. Later in the trial, however, the court acknowledged Moriarty’s desire to object at the time of DeWald’s testimony and allowed the objection to be made at that time as if it had been made at the time originally requested. Because the court had already allowed DeWald to testify, his ruling on the objection was clearly a denial.

Next, the State argues that the testimony of DeWald was admissible under SDCL 19-16-38. “Out-of-court statements by a minor sexual abuse victim are admissible at trial, provided the provisions of SDCL 19-16-382 are met.” State v. Buller, 484 N.W.2d 883, 885-86 (S.D.1992) (citations omitted). SDCL 19-16-38 requires notice by the proponent of the statement of intent to offer the statement and the particulars of it, and a hearing, outside the presence of the jury, where the court must find sufficient indicia of reliability.

The State argues that while DeWald was not named in State’s Notice of Intent to Offer Hearsay Statements, Moriarty had sufficient notice. The only notice Moriarty received was that hearsay statements from DeWald would be offered into evidence if the declarant, S.M., was unavailable. Since S.M. testified at the trial she was available. Therefore, this “notice” could be characterized as “conditional” at best.

Additionally, the trial court failed to conduct a hearing outside the presence of the jury or “make a determination on the record prior to trial that sufficient indicia of reliability existed within the evidence presented” as required by SDCL 19-16-38. Buller, 484 N.W.2d at 887.

[T]he confrontation clause requires a finding of sufficient indicia of reliability for the hearsay statements even if the declarant is available for cross-examination.
[T]he indicia of reliability requirement can be met in two ways: (1) where the statements fall within a firmly rooted hearsay exception or (2) where it is supported by a showing of particularized guarantees of trustworthiness. SDCL 19-16-38 is not a firmly rooted hearsay [356]*356exception. Therefore, to satisfy the confrontation clause requirement, the statements must be supported by a showing of particularized guarantees of trustworthiness from the totality of the circumstances surrounding the making of the statements.

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Cite This Page — Counsel Stack

Bluebook (online)
501 N.W.2d 352, 1993 S.D. LEXIS 61, 1993 WL 186075, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moriarty-sd-1993.