State v. Reed

387 N.W.2d 10, 1986 S.D. LEXIS 266

• Court: South Dakota Supreme Court
• Decided: April 23, 1986
• Docket: 15023
• Status: Published

Opinions

WUEST, Justice.

Appellant, Stanley Owen Reed (appellant), was found guilty of attempted second-degree rape by a jury verdict and sentenced to the state penitentiary. He appeals and we affirm.

In September 1984, appellant was invited to the trailer house of Debra Baker Brown (Brown) to lay some carpet. Later that day, he was left alone with Brown’s daughter, and the victim, a friend of the daughter. Both girls were fourteen years old and seventh graders.

There is a dispute in the testimony of appellant and the victim. Victim testified she was sitting on a bean bag chair when appellant began to tickle her. He said “I’m horny,” and she replied, “Let’s go.” Appellant grabbed her, pulling her up, and she sat back down on the chair. He then got her back up and they walked toward the bedroom. As they went, she told him, “Don’t.” Upon entering the bedroom, appellant placed her on the bed and began to remove her shirt by lifting it up from the bottom. She again said to appellant, “Don’t,” and he replied, “I won’t take no for an answer.” She claimed he unhooked and removed her bra, as she tried to hold it on; that he then unzipped and unbuttoned her jeans pulling them down, although she tried to hold them up by hanging onto the belt loops. Appellant sat on her arms to keep her in position while he removed his clothing. While he was in a state of undress, the other girl entered the bedroom on her way to the bathroom, and discovered appellant with his pants and underwear down. The victim testified she softly called to the other girl but was afraid to speak loudly. She claimed appellant told the other girl to leave the room, which she did. Appellant then had sexual intercourse with the victim. She told him to refrain but he responded by placing his hand over her mouth. While they were engaged in intercourse, a car came to the trailer house and appellant told the victim to get her clothes on as he ran into the bathroom to dress. Three people entered the trailer as appellant and the victim came out of the bedroom fully dressed.

According to appellant’s version, he and the two girls were sitting in the living room visiting when the victim stated to him, “Come on.” She took him by the hand and led him into the bedroom in the trailer house while the other girl was talking on the telephone. When they entered the bedroom, the victim took off her clothing and got under the bedcovers. He began taking off his clothes and got his underwear and pants down to his knees. He had an erection, at which time the othér girl entered the bedroom and said, “God, you guys.” He and the victim immediately dressed and went into the living room, at which time three friends arrived. Appellant further testified that when he went into the bedroom with the victim and commenced taking off his pants he intended to have sexual intercourse with the victim; however, when the other girl came into the room he lost his erection, changed his mind, and immediately dressed, with nothing occurring between himself and the victim. The three friends came into the trailer and nothing was said about the incident for several weeks.

Several weeks after the incident, appellant and others were visiting at the Brown trailer house. According to people present at that occasion, appellant began boasting he had sexual intercourse with the victim and would do it again. Sometime after this conversation, Brown contacted the victim’s mother and told her the girl had been raped. Victim’s mother refused to believe Brown until she had asked her daughter if it was true. At first the victim repeatedly denied the fact, but finally admitted appellant had raped her. The incident was reported to the police department, which resulted in this prosecution for second-degree rape.

Prior to trial, appellant made a motion to prevent the state or any of its witnesses from testifying either directly or indirectly concerning his past criminal record for the reason that all of the offenses other than a third-degree burglary charge were misdemeanors. The motion further alleged the third-degree burglary conviction would be more prejudicial than probative and could lead the jury to believe that charge was another rape. On the day of trial, the court entered its order reserving its ruling “until immediately prior to the time the defendant is called as a witness, on his own behalf, should he decide to take the stand.”

The first witness for the state was the victim. After the usual preliminary questions as to name, age, and address, the victim was asked if she knew Mr. Reed. After answering in the affirmative, the following occurred:

Q Do you know how old Mr. Reed is?

A Yes, He’s in his twenties.

Q When did you first meet him?

A When he got out of jail.

Appellant immediately objected and made a motion to strike. The court promptly granted the objection and motion to strike. The court further admonished the jury to disregard the statement. Appellant then made a motion in chambers for a mistrial, claiming the state had violated the court’s order, which was highly prejudicial to appellant. In response to the motion for a mistrial, the deputy state’s attorney told the court the witnesses were instructed not to comment on defendant’s record. Upon specific inquiry from the court whether he had admonished the witness, the deputy replied: “That's right, Your Honor. I will do it again.” The court then observed the witness was a fourteen-year-old girl who was apparently nervous. The court did not believe the statement was prejudicial and denied the motion for mistrial. Afterward, on a motion for a new trial, the court said the answer was not a result of “bad faith or governmental overreaching or even negligence on the prosecutor’s part.” The court concluded:

I am finding that from my recollection of the events as they occurred, and although this was error, I am going to find that this error, defect or irregularity or variance does not affect substantially the rights of the Defendant. That the immediate admonishment and the curative instruction were sufficient.

Appellant claims the court’s order was violated by the unsolicited response of the victim. The comments of counsel and the court indicate an assumption on their part that an order was violated. However, a careful examination of the record and transcripts reveals no such order was entered. Rather, a transcript of the pretrial hearing and another prior to trial clearly show the court refused to enter such an order, but reserved its ruling.

We recognize there are situations when a witness gives an unsolicited answer which is so prejudicial nothing but a new trial can assure the defendant due process. See State v. Schlittenhardt, 147 N.W.2d 118 (N.D.1966). Certain evidence or conduct may be such that it cannot be corrected by admonition. State v. Webb, 251 N.W.2d 687 (S.D.1977); State v. Norman, 72 S.D. 168, 31 N.W.2d 258 (1948); State v. Egbert, 63 S.D. 324, 258 N.W. 283 (1935).

In State v. Farley, 290 N.W.2d 491 (S.D.1980), wherein a witness gave an unresponsive answer that the van the defendant was arrested in on a robbery charge was stolen, we said: “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.” 290 N.W.2d at 494 citing State v. Winckler, 260 N.W.2d 356 (S.D.1977). In State v. Closs, 366 N.W.2d 138, 143 (S.D.1985), we said: “ ‘An actual showing of prejudice must exist to justify the granting of a mistrial.’ State v. Clabaugh, 346 N.W.2d 448, 451 (S.D.1984). Trial courts have considerable discretion in ruling upon a mistrial.”

The trial court’s decisions denying appellant’s motion for a mistrial and later a new trial were not abuses of discretion. It observed firsthand the effect of the remark upon the jury, and determined the jurors were capable of considering the remaining evidence in an unbiased manner despite the remark. We find no abuse of discretion there.

Appellant contends instructions numbered 5 and 13 were impermissibly modified by the trial court after the instructions had been settled. After both sides had rested, appellant and state appeared before the trial judge to settle the instructions, which were to be read orally to the jury and then presented to it in written form for its deliberations. Appellant made no objection to instruction number 5 at this time. The pertinent part of this instruction, as settled, stated:

The burden of proof rests upon the state to prove all material allegations of the Information and each and every doubt, and such burden of proof never shifts to the Defendant, but rests upon the State throughout the trial of the case to prove the Defendant guilty of the offense charged by proof beyond a reasonable doubt[.] (Emphasis added.)

As the trial judge read the instruction to the jury, he realized the word “doubt” in the first line of the instruction was an error and should have been “element,” so he read the first sentence of the instruction to the jury with the word “element” in it rather than “doubt.” The judge also drew a line through the word “doubt” and wrote above it the word “element.”

Appellant’s counsel did not object to this one-word change in the instruction nor did she approach the bench and ask for permission to make a record outside of the hearing of the jury. Indeed, counsel did not object to this alteration until the mitigation and sentencing hearing, when she moved for a new trial because of the change. The trial court replied to her objection at this time, saying: “So if you refer back to the pattern you see when you’re reading the instructions aloud and you notice that there’s been a typo and that’s when I corrected that in my own handwriting, but you were following along, I assume, when I was reading the instructions, weren’t you?” Counsel for the defense replied, “No, I was working on my closing, the final touches on it.”

The court shall in no case qualify, modify, or in any manner explain to the jury any written instruction given, unless such qualification, modification, or explanation shall first have been reduced to writing and made a part of such instructions and settled. SDCL 15-6-51(a). This rule is applicable to both civil and criminal cases. SDCL 23A-25-4. See also State v. Roberts, 60 S.D. 362, 244 N.W. 389 (1932). When these rules are patently disregarded, the case will be reversed without inquiring into any questions of prejudice. Roberts, supra. We do not regard the modification of instruction number 5 as patently disregarding the rule. We consider it harmless error. “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” SDCL 23A-44-14. See State v. Remacle, 386 N.W.2d 38 (S.D.1986).

Appellant also challenges instruction number 13, claiming it was impermissibly modified by the addition of fifteen words inserted into the instruction in the judge’s own handwriting. During the settling of the instructions, appellant objected to instruction number 13 on the grounds that there was not sufficient evidence to justify the inclusion of a lesser included offense. The court overruled the objection and the instruction was presented to the jury.

During its deliberations, the jury sent the court a question which was transcribed as follows: “Instruction No. 13 and No. 15 seem to be conflicting with each other. Is there any source that could help us solve this dilemma? Signed Steven Walling.” The trial court called appellant and his counsel and counsel for the state together to consider the jury’s question, his proposed solution, and to resettle the instructions. After discussion, it was agreed by all of the parties that the court would advise the jury “the instructions are not conflicting, but definitional. Number 15 defines and explains a term used in the first element of Instruction No. 12. Number 13 defines and explains a phrase used in the second element of Instruction No. 12.”

The trial court then advised the parties that fifteen words were inadvertently omitted from instruction number 13 which was drafted in accordance with the South Dakota Pattern Instruction. The court proposed that these words be added to the instruction simply to make it read better. Appellant objected to the addition of the deleted words, arguing it would be improper to give the jury a new instruction at that time. The court overruled the objection, called in the jury and read it the above proposed answer to its question.

The trial court then advised the jury about the addition of the deleted words, stating: “In addition to your note and your request, in Instruction Number 13, fifteen words were erroneously omitted. I have taken your Instruction Number 13 and in my own handwriting inserted those words. They do not go to the question that you put to the Court, however.” On appeal, appellant contends, first, that it was error for the court to modify the instruction even if it was a correct statement of law, and, second, that the addition of the fifteen words was unduly emphasized by the fact that they were submitted in the judge’s own handwriting.

The court may, after the giving of instructions and at any time before verdict, recall the jury for further instructions, which, if given shall be given in full compliance with the provisions of SDCL 15-6-51(a) and (b). This rule also applies to criminal cases as well as civil. SDCL 23A-25-4.

Although the omitted words were discovered when the jury requested further information, the court complied with SDCL 15-6-51(a) and (b), giving appellant an opportunity to object to the addition, which he did. However, no objection was made on the grounds the addition to the instruction was in the judge’s handwriting instead of being typed. If this objection had been made at that time, it could have been easily retyped. The issue of judge’s handwriting was not raised until later at the motion for a new trial. A defendant should not be permitted to quietly acquiesce, thereby preserving an error for later use in the event of an adverse verdict. Our rules provide that an objection must be made when the instructions are settled, otherwise error is not preserved. SDCL 15-6~51(b); State v. White Mountain, 332 N.W.2d 726 (S.D.1983). Nor, does this incident constitute “plain error” within the purview of SDCL 23A-44-15. “Plain error” is applied cautiously and only in exceptional circumstances. White Mountain, supra.

Finally, appellant contends the trial court erred by instructing the jury over his objection on the lesser included offense of attempted second-degree rape, pursuant to SDCL 22-4-1.

Two tests must be met, the first legal and the second factual, before the trial court can submit an instruction of a lesser included offense to the jury. State v. Heumiller, 317 N.W.2d 126 (S.D.1982). Appellant does not contend the “legal test” was not met. He does contend, however, that the factual test was not met. The factual test adopted by this court is found in People v. Karasek, 63 Mich.App. 706, 712-14, 234 N.W.2d 761, 765 (1975), and provides, in part: “There must be sufficient evidence, however, when read in the light most favorable to the defendant, which would justify a jury in concluding that the greater offense was not committed and that a lesser offense was, in fact, committed.” See Heumiller, supra.

Appellant claims the evidence in this case, when read in the light most favorable to him, merely shows preparation as distinguished from an attempt. SDCL 22-4-1, which describes “attempts,” states: “Any person who attempts to commit a crime and in the attempt does any act toward the commission of the crime, but fails or is prevented or intercepted in the perpetration thereof, is punishable[.]” This statute was interpreted in State v. Judge, 81 S.D. 128, 131 N.W.2d 578 (1964), and State v. Martinez, 88 S.D. 369, 220 N.W.2d 530 (1974). In Martinez, we said:

The defendant maintains that the commission of the last further act necessary to the actual accomplishment of the crime is requisite to an attempt. We believe, however, that the statute requires only “any act toward the commission of such crime * * * ” (emphasis supplied), and that State v. Judge, [81 S.D. 128, 131 N.W.2d 573 (1964)], interprets the statute as meaning any unequivocal act to insure that the intended result was a crime and not any other innocent act. The line between preparation and attempt is drawn at that point where the accused’s acts no longer strike the jury as being equivocal but unequivocally demonstrate that a crime is about to be committed. See People v. Miller, 2 Cal.2d 527, 42 P.2d 308, 98 A.L.R. 913.

88 S.D. at 372, 220 N.W.2d at 531 (emphasis in original). We then held that when defendant partially undressed an underage girl and laid on top of her, all within the space of one or two minutes, the jury would be justified in finding that the defendant’s acts had gone “so far that they would [have] resulted] in the accomplishment of the crime unless frustrated by extraneous circumstances.” Judge, 81 S.D. at 133, 131 N.W.2d at 575.

We conclude in this case that with the victim undressed in bed and appellant with his pants and underwear down to his knees with an erection, the jury was justified in finding that if the other girl had not interrupted the parties the appellant would have had intercourse with the victim as he himself admits he intended to do.

We affirm.

POSHEIM, C.J., MORGAN, J., and HERTZ, Circuit Judge, acting as a Supreme Court Justice, concur. HENDERSON, J., dissents. SABERS, J., not having been a member of the Court at the time this action was submitted to the Court, did not participate.