State v. Floody

HENDEESON, Justice

(concurring in part; concurring in result).

Sorely, am I troubled by this case.

This writing is penned by the author on Sunday, December 15, 1991, the 200th Anniversary of our country’s Bill of Eights. For 17 years I have tried to protect our citizens’ rights — to those Bill of Eights— first as a trial judge and later as a Supreme Court Justice. For 25 years prior thereto, as a lawyer in this state, absent my service as an infantryman in the 7th Cavalry Eegiment in Korea in 1952 and 1953,1 acted as a defense lawyer, principally in Western South Dakota. A man becomes ingrained, with 40 years of such thinking, into a mental mold which is difficult to set aside. Of course, impartiality on the Bench is mandated, encouraged, and a literal must. A good judge starts the ball game at 0 to 0. Objectivity is demanded, so that the defendant is afforded a fair trial and a little child is protected from sexual abuse. Victims of sexual crimes are entitled to protection of the law. Particularly, the law must be vigilant in providing its strength to the very young and the weak. Floody was sentenced to two concurrent terms of 70 years in the State Penitentiary.

Eeviewing the evidence in this record, I am totally convinced that Floody got his “just desserts.” Violating this defenseless, little girl’s body over an extended period of time, was nothing less than dastardly. It is not difficult to understand the jury’s verdict of guilty nor the severe sentence of the judge. No arrow of infliction is aimed at counsel for the defense, but as an appellate justice, it is understandable why neither the sentence nor the sufficiency of the evidence is attacked. Here, the evidence reflects that Floody committed, in a series of acts, sexual penetration upon this little girl. SDCL 19-12-5 [Fed.E.Evidence 404(b)] was not violated with respect to other uncharged acts of sexual penetration and contemporaneous acts of sexual contact.

In the majority’s treatment of all issues, I concur. But I simply cannot — will not— academically accede to the approval, by this Court, of the majority writer’s treatment of Issue II. Initially, the question is not one of approving or disapproving of “the child sexual abuse syndrome.” Correctly, the issue is framed as follows:

Did the trial court properly allow the state to present rebuttal testimony that either (a) directly or (b) indirectly implied that the victim was testifying in a truthful manner?

The answer is no. My position is as follows: Basically, a question of fact is for the jury. Bogh v. Beadles, 79 S.D. 23 , 107 N.W.2d 342 (1961). It is not our function to resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence. Such functions are within the province of the jury. State v. Minkel, 89 *258 S.D. 144 , 230 N.W.2d 233 (1975). Therefore, an expert “witness” should not invade the province of the jury. State v. Logue, 372 N.W.2d 151, 157 (S.D.1985).

“Syndrome” testimony is a sleeping giant. A prosecutor’s mind quickens when such evidence is elicited. Soon, the giant is stirred and awakened. Then it is ready for rampage, quick to devour. It needs a victim — a victim to eat so that it leaps from general testimony to bolstering the credibility of a witness. Once that happens, the Bill of Rights’ fair trial guarantee is jeopardized. Such evidentiary enlargement runs afoul of Article VI, § 7, Bill of Rights, South Dakota State Constitution. It eliminates the right to face an accuser. It prevents a jury from deciding an issue of fact.

In this factual scenario and in the majority opinion, it is noted: “Kathy Peil, a certified social worker, testified in rebuttal the interview techniques used in A.C.’s case were acceptable.” Says who? Why should she be able to characterize “interview techniques” as being “acceptable?” Should not the jury, within its province to find the facts, decide if the interview techniques were “acceptable?” Such a conclusory statement absolutely strips away a jury’s obligation to find the facts. Immense energies are required sometimes to learn or prevail. Minds quicken when energy is expended. * Expending energy, it is worth noting that the so-called “syndrome” testimony is fraught with the risk of proceeding from general testimony to bolstering the credibility of a witness, as I have alluded to above. Members of our Court have been troubled by this on several occasions. Read State v. Bachman, 446 N.W.2d 271, 277-80 (S.D.1989), separate dissents of Henderson, J. and Sabers, J.; McCafferty v. Solem, 449 N.W.2d 590, 596 , dissent of Henderson, J.; State v. Spaans, 455 N.W.2d 596, 599-600 (S.D.1990), dissent of Henderson, J.; United States v. Azure, 801 F.2d 336 (8th Cir.1986); State v. Lindsey, 149 Ariz. 472 , 720 P.2d 73 (1986). Ms. Peil should not have been permitted to testify to the quality of the interviewing techniques. If you will read again the statement of Ms. Peil, quoted in the majority opinion, her comments went further than an opinion on interview techniques. My reading of the quote causes me to opine that such testimony is a comment on the veracity of the little girl. This witness went too far, she became the fact finder. She said the statement of A.C. was “spontaneous.” Not once, but twice. She was characterizing, by adjective, the expression of the little girl to thus add a stamp of credibility to the little girl’s remarks. It seems to me this was forbidden by previous case law in this Court. Logue, 372 N.W.2d at 151, 157 ; McCafferty v. Solem, 449 N.W.2d at 593-594 . Another troubling feature of this testimony is the procedural background through which this testimony went before the jury.

Background thereof now follows: Prior to trial, the defendant filed a Motion in Limine seeking to preclude the State from offering testimony at trial concerning the so-called child sexual abuse syndrome. The state filed a resistance to the motion, and the matter was taken up at a pre-trial hearing. Defense counsel expressed concern that if the court were to overrule this motion and allow such testimony, that there was a danger that the testimony would go too far and imply that the alleged acts of sexual abuse did occur. The trial court, after hearing further argument of counsel, denied the motion but cautioned that no witness either for the state or the defendant, “opine that another witness is tell (sic) the truth or lying.”

At trial, as part of the state’s case in chief, as I have related, Peil, a certified social worker, did testify as to the child sexual abuse syndrome. However, during the rebuttal portion of the case, the state recalled her to ostensibly comment on the interview techniques of Deputy Humphrey, which she had heard as she was present in the courtroom when Humphrey testified. Outside the presence of the jury, defendant *259 objected to any further testimony by Ms. Peil, as there was danger that she was going to directly or indirectly comment on the veracity of the victim or some other witness for the state. The state argued that Ms. Peil’s testimony was in rebuttal to that of Bryce Flint, a deputy State’s Attorney, who had testified as to the procedures followed in Meade County in interviewing young subjects of possible sexual abuse.

The difficulty, however, with the state’s position was that Flint did not specifically comment on the interview techniques in this case. In fact, he did not have any knowledge of the actual interview techniques actually employed, or, for that matter, any other facts surrounding this proceeding. Nonetheless, trial court overruled defense counsel’s objection, then allowed a standing objection to Peil’s testimony, and further allowed the state to elicit an opinion from said witness as to the quality of the interviewing techniques. I fear trial by experts. Trials are supposed to be by a jury. Jury trials are the soul of the American system of justice.

Was Floody’s right to a fair trial hopelessly compromised? I doubt it. Surely this evidence damaged his defense. I will concede that this witness did not go so far as in Logue . But the trial court permitted Peil to go too far. It was an evidentiary error. Should the case be reversed on such error? Well, the burden is on appellant to show not only error but also prejudicial error, and it must be to the effect that under the evidence, the jury might and probably would have returned a different verdict. State v. Wimberly, 467 N.W.2d 499, 504 (S.D.1991); State v. Davis, 401 N.W.2d 721, 725 (S.D.1987).

A defendant is entitled to a fair trial, not a perfect one. Brown v. United States, 411 U.S. 223, 231 , 93 S.Ct. 1565, 1570 , 36 L.Ed.2d 208, 215 (1973); see State v. Bennis, 457 N.W.2d 843, 847 (S.D.1990) (quoting Brown v. United States, 411 U.S. 223, 231 , 93 S.Ct. 1565, 1570 , 36 L.Ed.2d 208, 215 (1973)). A jury saw and heard this little girl testify. Her testimony was vivid in detail. This testimony was before the jury reflecting horrid conduct upon A.C.’s body. A physician testified that he examined A.C. on March 21, 1990 and noted a bruise a square centimeter in an area on the right side of her genital lips. Sexual penetration certainly occurred. Direct and circumstantial evidence all pointed to one person as the perpetrator — Floody. State, under this record, met its proof of “beyond a reasonable doubt.” Reviewing this entire case, I am struck with the view that Floody would have been convicted of these two crimes of rape regardless of the evidentia-ry error. I join the majority opinion in its affirmance but concur in result due to the expansion, nay liberality, of the viewpoint that the social workers, certified or not, can come into a courtroom and usurp the function of the jury. I despise it. It is a far cry from the constitutional safeguard of “facing your accuser.” We have another example of prosecutorial overkill by prosecutors of this state. Knowing that the little girl was going to testify, why was Kathy Peil called as a witness to characterize her testimony? Now you’ve heard “the rest of the story.” Let us be vigilant, on the 200th birthday of the Bill of Rights, to instill a deep respect for the Bill of Rights lest our liberty dribble into legal infinity. Your servant, F. Henderson.

I am hereby authorized to state that Justice AMUNDSON joins this concurrence.

A desire to know the why and how of it, springing from the lust of an inquisitive mind, is the chief contributor to knowledge.