#28789-a-PJD 2019 S.D. 61
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
JONATHAN JEROME PACKARD, Defendant and Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA
THE HONORABLE JON SOGN Judge
BEAU J. BLOUIN CHRISTOPHER MILES of Minnehaha County Public Defender’s Office Sioux Falls, South Dakota Attorneys for defendant and appellant.
JASON R. RAVNSBORG Attorney General
GRANT FLYNN Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
CONSIDERED ON BRIEFS ON AUGUST 26, 2019 OPINION FILED 11/13/19 #28789
DEVANEY, Justice
[¶1.] Jonathan Packard appeals his convictions for second-degree rape and
simple assault. He alleges that the circuit court should have granted a mistrial
after one of the prospective jurors—a law enforcement officer—arrived in full
uniform, and in response to a question, indicated that he knew Packard. He further
alleges that the circuit court erred when it admitted a narrative report prepared by
an emergency room nurse summarizing the victim’s oral statements made during a
sexual assault examination. We affirm.
Factual and Procedural Background
[¶2.] On the evening of September 30, 2015, S.S., her mother, and her
neighbor (Charles) were sitting around a fire pit in her mother’s driveway
consuming alcoholic beverages. Around midnight, after S.S.’s mother had gone
inside her home for the night, two men were walking by the driveway. Charles and
S.S. were still sitting by the fire, and the two men stopped to talk to them. Neither
S.S. nor Charles knew either man. S.S. described one man as shorter and more
talkative, while the other was tall and did not speak. The shorter man asked
Charles for a cigarette and struck up a conversation. Charles eventually asked the
two men to leave, and they complied.
[¶3.] Charles and S.S. continued to sit around the fire until between 2:00
and 3:00 a.m. when Charles went inside his home. After Charles left, S.S. poured
water on the fire, disposed of the wood, and took the fire pit inside her mother’s
garage. While S.S. was still inside the garage, but at some unknown point, she
awoke finding herself face down on her stomach on the garage floor. She could not
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recall how she ended up there. However, she believed she had gotten hit on the
head because the last thing she remembered was looking at the lock on the garage,
and she had not yet closed the garage door. When she woke up, the garage door was
closed, and she could feel that she was lying in kitty litter remnants and oil residue.
She could also feel that her pants and underwear were being pulled down, and a
man was lying on top of her. S.S. explained that she felt the full weight of his body
and smelled a strong odor of alcohol coming from him.
[¶4.] S.S. did not fight against the man as he laid on top of her because she
was worried that the situation would become worse. After he penetrated S.S.’s
vagina with his penis, he flipped her onto her back and continued to penetrate her.
S.S. believed he had ejaculated. After he stood up, S.S. also stood up, pulled up her
pants, and opened the garage door. With the garage door open, S.S. recognized that
her attacker was one of the men—the taller, quieter one—that had stopped by the
fire when she and Charles were still in the driveway. She told him to leave, but
according to S.S., he seemed confused about her request. When she reiterated that
he must leave, the man left the garage.
[¶5.] S.S. then closed and locked the garage door and ran into her mother’s
home where she cleaned the kitty litter and grease off her face and hair. S.S. did
not shower; rather, she fell asleep on the living room floor. Later the next day, S.S.
told her parents about the rape. She did not want to call law enforcement because
she was embarrassed and ashamed. She was worried that people would judge her
because she is Native American and would try to “make it [her] fault.”
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[¶6.] S.S. noted that she had a big knot on the left side of her head and was
really sore. She went to the emergency room around 4:00 or 5:00 p.m. and was
initially examined by an emergency room nurse. The nurse, Erin Stansbury,
obtained S.S.’s general health history and determined whether any injuries
currently needed treatment. Thereafter, Stansbury completed a Sexual Assault
Nurse Evaluation (SANE) note, which is the form used by the hospital for a sexual
assault interview. Stansbury explained that her interview for the SANE note
generally includes “specific questions about different types of possible injuries, were
they hit, kicked anywhere, whether or not there was vaginal penetration, [or] anal
penetration[.]” Stansbury testified that she also asks victims to describe “exactly
what happened in their words.” Both the nurse and the treating doctor use the
information in the SANE note to determine what evidentiary samples to collect
from the victim.
[¶7.] During her interview of S.S., Stansbury recorded, among other things,
a description of S.S.’s assailant and S.S.’s account of the assault. After completing
the interview, Stansbury and Dr. Beth Ellen Lapka obtained buccal, vaginal, and
cervical swabs from S.S. The swabs were later tested by the South Dakota State
Health Laboratory. This testing confirmed the presence of semen on the vaginal
and cervical swabs. DNA testing confirmed that the semen originated from
Jonathan Packard.
[¶8.] Law enforcement interviewed Packard. He denied knowing S.S. and
denied having sex with her. He persisted in his denial despite being informed of the
DNA evidence. Packard was arrested and charged by indictment with one count of
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second-degree rape and four counts of simple assault. The State also filed a part II
information, alleging Packard to be a habitual offender. Packard pled not guilty,
and a jury trial was held on September 25–27, 2017.
[¶9.] During voir dire, the circuit court asked prospective jurors whether
anyone knew Packard. Prospective juror Schulz—a police officer appearing in full
uniform—replied, “I do.” The court asked Officer Schulz to state his occupation, and
he explained that he was a police officer with the City of Sioux Falls. The court also
asked Officer Schulz how long he had been an officer, and he replied that he had
been an officer for fifteen years. Finally, the court asked Officer Schulz whether,
based on his “past experience as a police officer,” he believed “this probably isn’t the
right case, kind of case for [him] to be sitting on[.]” Officer Schulz responded, “I
think I would agree with that.” The court dismissed Officer Schulz without
objection from either party. Thereafter, Packard requested a mistrial, arguing that
Officer Schulz’s statements tainted the jury pool. The court denied the motion.
[¶10.] During the trial testimony from Stansbury, the emergency room nurse,
the State sought to admit the SANE note she had prepared during her interview of
S.S. Packard objected, and a discussion was held off the record. Thereafter,
Packard objected on the record, asserting that the exhibit lacked foundation. The
court overruled the objection and admitted the SANE note. During her testimony,
Stansbury explained the process she used to complete the SANE note and the
SANE kit. She also testified regarding the consent form signed by S.S. prior to the
examination. On this consent form, S.S. indicated that she understood she was not
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participating in a routine medical checkup, but rather, a sexual assault evidentiary
examination.
[¶11.] During a trial recess, Packard asked the court to revisit his previous
objection to the admission of the SANE note raised earlier during the sidebar
discussion between counsel and the court. Defense counsel related that during the
sidebar, his objection was “to portions of that document that contained - -
specifically, the portions that contained the description of Mr. Packard.” Counsel
renewed this objection and argued that such information was hearsay and did not
meet any exception. The court overruled this objection but requested a copy of the
report, explaining that the court would review it “[s]o if there’s anything we need to
redact, we can still do it.” The SANE note was ultimately admitted in its entirety,
with the exception of one redaction not at issue in this appeal.
[¶12.] At the conclusion of the trial, the jury found Packard guilty of second-
degree rape and simple assault. Packard appeals, asserting the circuit court erred
in denying his motion for a mistrial and in admitting the sexual assault
examination note.
Standard of Review
[¶13.] We review a denial of a motion for a mistrial for an abuse of discretion.
State v. Buchhold, 2007 S.D. 15, ¶ 17, 727 N.W.2d 816, 821. We likewise review the
decision to admit evidence pursuant to the hearsay exception in SDCL 19-19-803(4)
for an abuse of discretion. State v. Roach, 2012 S.D. 91, ¶ 26, 825 N.W.2d 258, 266.
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Analysis and Decision
Voir Dire—Officer Schulz’s comment
[¶14.] Packard argues that the circuit court erred in denying his request for a
mistrial after Officer Schulz’s comment purportedly tainted the jury pool. Packard
points out that Officer Schulz arrived for jury duty in his full uniform. He then
faults the circuit court for not addressing the officer’s familiarity with Packard
outside the presence of the other prospective jurors. Packard deems insignificant
the fact that Officer Schulz did not specify how he knew Packard. Rather, to
Packard, “the implication was clear,” and “[t]he default assumption by prospective
jurors must have been that Officer Schulz was familiar with Packard due to his
prior encounters with the criminal justice system.” Packard further claims that
Officer Schulz’s comment prejudiced him “because he is a Native American male
with tattoos on his face[.]”
[¶15.] The United States Constitution and the South Dakota Constitution
guarantee the right to an impartial jury. U.S. Const. amend. VI; S.D. Const. art.
VI, § 7. This means in part that “the minds of the jurors [should] be without bias or
prejudice[.]” State v. Dillon, 2010 S.D. 72, ¶ 32, 788 N.W.2d 360, 370 (quoting State
v. Belt, 79 S.D. 324, 328, 111 N.W.2d 588, 589 (1961)). However, when bias is
alleged to exist, “[t]here should be an actual showing of prejudice before a mistrial is
granted.” State v. Garnett, 488 N.W.2d 695, 698 (S.D. 1992). Prejudice arises when
an error “which, in all probability, [] produced some effect upon the jury’s verdict
and is harmful to the substantial rights of the party assigning it.” State v.
Williams, 2008 S.D. 29, ¶ 14, 748 N.W.2d 435, 440 (citation omitted).
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[¶16.] From our review of the record, Packard has failed to show that he was
prejudiced from Officer Schulz’s comment. Although Officer Schulz reported for
jury duty in full uniform and stated that he knew Packard, he did not explain how
he knew him, and the circuit court intentionally refrained from asking that
question. Moreover, the court instructed the jury prior to selection about the
presumption of innocence and the State’s burden of proof. Notably, the court
invited defense counsel to propose “any instructions they wish” related to “that
particular juror knowing Mr. Packard[,]” and counsel did not propose such an
instruction.
[¶17.] In upholding the court’s denial of a mistrial in a juror comment case,
we observed that the prospective juror’s comments “were, at best, vague.” Garnett,
488 N.W.2d at 698. The same can be said for Officer Schulz’s comment here. He
did not expand on his knowledge of Packard or relate anything that suggested his
knowledge arose from his work as a police officer or from the current charges
against Packard. “Perhaps most important, voir dire continued” and Packard’s
“counsel had the opportunity to question the prospective jurors to discover any
prejudice.” See id. Therefore, the court did not err in denying Packard’s motion for
a mistrial.
Admission of the SANE note
[¶18.] Packard next contends that the circuit court erred when it admitted
the sexual assault examination note because it contained hearsay statements
unrelated to medical diagnosis and treatment. The hearsay statements, Packard
claims, include S.S.’s description of her assailant and information related to the
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timing and location of events. According to Packard, he was prejudiced by the
admission of these statements because they “largely served to improperly bolster
[S.S.’s] trial testimony of the details of the alleged incident.”
[¶19.] The circuit court admitted the hearsay statements in the SANE note
under the exception provided by SDCL 19-19-803(4). Under that subsection, a
statement made for medical diagnosis and treatment is not excluded by the rule of
hearsay if the statement: “(A) Is made for--and is reasonably pertinent to--medical
diagnosis or treatment; and (B) Describes medical history; past or present
symptoms or sensations; their inception; or their general cause.” Id.
[¶20.] Notably, Packard’s appellate argument differs from that presented to
the circuit court. On appeal, he contends the circuit court erred in admitting the
entire report. But when making his record at trial of what had transpired during
the sidebar conference, Packard only objected to the admission of statements that
described the assailant. Although this Court may decline to review this broader
objection now raised on appeal, see Roach, 2012 S.D. 91, ¶ 27, 825 N.W.2d at 266
(treating a failure to object at trial as a waiver of the issue), Packard did object to at
least the portion of the SANE note relating to identity. Moreover, because
statements pertaining to identity are often relayed in the midst of explaining what
occurred during an assault, this case presents the opportunity to address the
parameters of SDCL 19-19-803(4) as applied to statements made in these types of
medical examinations.
[¶21.] We begin with the premise that a victim’s participation in a sexual
assault examination does not perforce mean that the victim’s statements are being
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made solely “to construct a criminal case against” the perpetrator. See Olesen v.
Class, 962 F. Supp. 1556, 1568 (D.S.D. 1997), aff’d in part, rev’d in part, 164 F.3d
1096 (8th Cir. 1999). Rather, statements made by the victim during a sexual
assault examination can serve a dual purpose. “[T]he critical inquiry is whether the
statement was reasonably pertinent to medical diagnosis or treatment.” State v.
Abdo, 2018 S.D. 34, ¶ 30, 911 N.W.2d 738, 746. To determine whether out-of-court
statements were reasonably pertinent to medical diagnosis or treatment, courts
utilize a two-part test. Id. (quoting United States v. Renville, 779 F.2d 430, 436 (8th
Cir. 1985)); accord Lovejoy v. United States, 92 F.3d 628, 632 (8th Cir. 1996).
“[F]irst, the declarant’s motive in making the statement must be consistent with the
purpose of promoting treatment; and second, the content of the statement must be
such as is reasonably relied on by a physician in treatment or diagnosis.” Abdo,
2018 S.D. 34, ¶ 30, 911 N.W.2d at 746 (quoting Renville, 779 F.2d at 436).
[¶22.] Applying the two-part test here, at least some of the information
contained in the SANE note was made for the purpose of promoting treatment and
is of the type reasonably relied upon by a physician in treatment or diagnosis. This
is true even though evidence presented at trial suggests that the SANE note itself
may not have been for the purpose of promoting treatment or diagnosis. For
example, prior to her sexual assault examination, S.S. completed a consent form. In
that form, S.S. initialed a checklist acknowledging that she was not participating in
“a routine medical checkup but a sexual assault evidentiary exam.” (Emphasis
added.) Similarly, Dr. Lapka testified at trial that a sexual assault forensic
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examination “is essentially separate from the medical examinations [she] would
perform every day on any given patient.”
[¶23.] Nonetheless, the emergency room doctor and nurse both explained that
their examinations include not only the collection of evidentiary samples, but also
an assessment to make sure the patient is medically safe and to address any
concerning injuries or medical issues for which the patient may need additional
examination or treatment. Stansbury further testified that information contained
in the SANE note is also contained within the doctor’s medical notes and
maintained as part of the patient’s chart. Therefore, the statements contained in
the SANE note that relate to information typically provided by a patient seeking
medical care and reasonably relied upon for treatment or diagnosis are admissible
under SDCL 19-19-803(4).
[¶24.] As for the specific statements in the SANE note admitted here, we note
that the statements relate S.S.’s narrative account in which she described the
assailant, how she was attacked and penetrated, and what occurred and what was
said after the attack. This narrative account contains, in relevant part, the
following hearsay statements:
Assailant was Native American, short hair, with flat billed hat, a tattoo on his neck, white bumps on his face, thin, approximately 5’10” and maybe 25 years old. . . . Patient is unsure where the assailant came from. The next thing the patient remembers is waking up on the cement garage floor on her stomach with the garage door closed and the assailant was on top of her back with her pants and underwear down. Patient was being vaginally penetrated with the assailant’s penis and thinks the assailant ejaculated vaginally. Patient thinks the assault lasted about 10 minutes. When the assailant was done patient started to stand up and assailant pushed patient back down. Patient continued to get up, opened the garage door and
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told him he needed to leave. Patient said assailant made a comment “You aren’t even going to give me a place to stay tonight?”. Patient replied, “No, you need to go now.” and assailant left.
[¶25.] From our review, S.S.’s statements describing the manner in which she
was assaulted are of the type reasonably pertinent to medical diagnosis or
treatment. We recognize that these statements could assist in a subsequent
prosecution. But they also reasonably relate to diagnosis and treatment of medical
or psychological issues for which a sexual assault victim would be motivated to seek
treatment. In particular, S.S.’s statements allowed her provider to ascertain what
type of follow-up treatment was needed, such as X-rays or CT scans or further
testing for a concussion, STD testing, or pregnancy testing at some later point in
time. The statements also informed her provider on whether counseling was needed
to address her psychological well-being. In fact, S.S. testified that she was given
medicine for STDs and that counselors came to talk to her.
[¶26.] However, the circuit court erred in admitting S.S.’s statements
describing her assailant under SDCL 19-19-803(4). Unlike cases involving a child
abuse victim, in which courts have held that statements identifying the abuser may
be reasonably pertinent to treatment, S.S.’s description of her assailant, given the
circumstances of the assault here, was not the type of information typically relied
upon in treatment and diagnosis.1 Thus, in this case, S.S.’s description of her
1. See, e.g., Renville, 779 F.2d at 438 (“statements of identity to a physician by a child sexually abused by a family member are of a type physicians reasonably rely on in composing a diagnosis and course of treatment”); State v. Orelup, 492 N.W.2d 101, 105–06 (S.D. 1992) (admitting child victim’s statements identifying the child’s father as the perpetrator of abuse).
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assailant was given and obtained for the purpose of a potential criminal
prosecution. We likewise conclude that S.S.’s statements describing what occurred
and what was said after the attack were not reasonably pertinent to treatment
given the facts in this case and were not admissible under SDCL 19-19-803(4).
Thus, the circuit court should have, prior to admission, required redaction of these
portions of the SANE note.
[¶27.] The circuit court’s error in admitting these statements, however, was
harmless.2 To establish reversible error, “a defendant must prove not only that the
trial court abused its discretion in admitting the evidence, but also that the
admission resulted in prejudice.” State v. Lassiter, 2005 S.D. 8, ¶ 13, 692 N.W.2d
171, 175. “Error is prejudicial when, ‘in all probability . . . [it] produced some effect
upon the final result and affected rights of the party assigning it.’” Novak v.
McEldowney, 2002 S.D. 162, ¶ 7, 655 N.W.2d 909, 912 (quoting State v. Smith, 1999
S.D. 83, ¶ 39, 599 N.W.2d 344, 353).
[¶28.] Packard does not identify any prejudice resulting from the admission
of the report in its entirety. He contends only that he suffered prejudice because the
admission of the portion of the SANE note detailing the incident bolstered S.S.’s
trial testimony. But the manner of her assault was not factually in dispute, and her
2. While the State did not argue that the statements at issue were not hearsay under SDCL 19-19-801(d)(1)(C), this statute may allow prior statements describing an assailant to be admitted if the declarant testifies and is subject to cross-examination about such prior statements identifying “a person as someone the declarant perceived earlier.” Likewise, such a statement may be admitted if it “[i]s consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying[.]” SDCL 19-19-801(d)(1)(B). -12- #28789
description of these details was admissible. As to the identity of S.S.’s assailant, the
DNA evidence confirmed that Packard was the source of the semen found inside the
victim, all of which was properly admitted. Therefore, Packard has not met his
burden of demonstrating that the circuit court’s error, in all probability, produced
some effect upon the final result of the trial. We affirm.
[¶29.] GILBERTSON, Chief Justice, and KERN, JENSEN, and SALTER,
Justices, concur.
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