holding that evidence that a child was the victim of BCS is admissible “when there is evidence of injuries inflicted upon a child over a span of time, when the nature of the injuries is such as to preclude accidental injury, and when the story given does not explain the injury”
How later courts described this case
- holding that evidence that a child was the victim of BCS is admissible “when there is evidence of injuries inflicted upon a child over a span of time, when the nature of the injuries is such as to preclude accidental injury, and when the story given does not explain the injury”
Written by the judges who cited it.
The opinion
HENDERSON, Justice
(specially concurring in part, dissenting in part).
SPECIAL CONCURRENCE IN PART
There were thirty-one explicit Findings of Fact and seventeen Conclusions of Law formally entered herein upon which the trial court predicated its order of April 26, 1983, containing twelve specific paragraphs. This suppression motion was ably tried and decided.
I concur, in all matters, in this Court’s decision to affirm the trial court’s ruling on not reopening the suppression hearing, the Lyle interview in Oregon, the Imberi-Erick-son interview in Oregon, and the Captain Thompson conversation-demonstration in Aberdeen.
Having served five years on this Court, I note from appellate records and take judicial notice thereof, of the deep involvement by the Attorney General’s Office in investigating sensational criminal cases to such extent that certain Assistant Attorney Generals or Special Prosecutors place themselves in a position of being witnesses. Later, they argue and/or brief the cases on appeal. It becomes difficult to determine whether they act in the role of (1) witness, *310 or (2) detective, or (3) trial counsel, or (4) appellate counsel. This dual and sometimes triple function has triggered ethical considerations, at least one major reversal in a homicide case begetting disciplinary-action on file in this Court, and in this case finds counsel for the defense accusing the Assistant Attorney General of, out and out, talking to this client, full well knowing that the defendant was his client, and failing to honor the attorney-client relationship. For a case involving ethical considerations of a special prosecutor acting as an Assistant Attorney General, see State v. Brandenburg, 344 N.W.2d 702 (S.D.1984). Speaking in Michigan v. Mosley, 423 U.S. 96 , 96 S.Ct. 321 , 46 L.Ed.2d 313 (1975), the United States Supreme Court stated that the requests of defendant to have counsel present and to remain silent, once made, must be “scrupulously honored.” Accord: State v. Strickland, 209 Neb. 133 , 306 N.W.2d 600 (1981). Once an attorney is requested, the interrogation must cease (even if by and through the direction of an Assistant Attorney General) until an attorney is present and the individual has been given the right to confer with his requested attorney and to have the attorney present. State v. Cody, 293 N.W.2d 440 (S.D.1980). See also Code of Professional Responsibility, DR 7-104 COMMUNICATING WITH ONE OF ADVERSE INTEREST (A)(1), SDCL 16-18, Appx. Simply put, a practicing lawyer cannot contact another lawyer’s client unless there is a consent. There was no consent in this case.
DISSENT IN PART -Battered Child Syndrome-
Calling to mind that the accused is charged with second-degree murder and manslaughter, and ever so mindful that this is not a criminal case charging the accused with child abuse, the appellate mind must focus on the showing of the State’s two pathologists in this case. Dr. Henry and Dr. Sweeny stated that this was not a case of Battered Child Syndrome. Although I agree that the six “elements” of Best, 232 N.W.2d 447 , are collectively too restrictive in scope, and do not disagree with this Court adopting a new standard in this state for future cases, nonetheless, I still could not reverse the trial court on its findings, conclusions, and order in this case. With two state pathologists expressing such expert medical opinions, and there being no evidence to the contrary, Finding of Fact XIII, XIV, and XV were highly pertinent to the trial court’s decision to disallow the testimony of one Dr. Robert ten Bensel. Set forth below are said findings:
XIII.
That on the 23rd day of July, 1981, at Rapid City, South Dakota, at 8:45 p.m. to 11:00 p.m., Dr. Thomas Henry, a forensic pathologist with ten (10) years of forensic pathology experience, performed an autopsy on the body of the deceased. That Dr. Henry is a forensic pathologist with experience in working for law enforcement agencies and for the Federal Bureau of Investigation and has testified regarding his findings in previous criminal matters. That Dr. Henry is qualified in investigating traumatic, accidental, and natural deaths that are sudden and unexpected and is informed about the Battered Child Syndrome and the deaths occurring therefrom. Dr. Henry further has experience in anoxia type deaths.
XIV.
That bruises were present on the body of the deceased about the face, back and chest. That all of the bruises are superficial and when considered alone or together could not be the cause of death. That several bruises were old and not related to the events occurring the evening the child died.
XV.
That the deceased had no history or present evidence of ever having any broken bones, nor any skull fractures or damage to the skull at all.
*311 The majority opinion recognizes, and rightly so, that the cause of death was attributed to anoxia. A fair import of the findings was that the cause of death was not by trauma. Paced with expert medical opinion, the trial court apparently felt compelled under the state of th§ record to enter the Findings of Fact and Conclusions of Law that it did. Our review is pursuant to Best. Did the court, within its discretionary powers, err by suppressing the evidence of Dr. ten Bensel? Under the state of the record, I am not prepared to say so. If there was evidence establishing a traumatic death with the cause of death related to the Battered Child Syndrome, obviously I would reach an opposite conclusion. Generally, the evidence gathered to prove child abuse is circumstantial. When in the course of this murder-manslaughter prosecution, the State must prove cause of death, said causation must be established within a reasonable medical certainty. The burden of proof will be upon the State of South Dakota to come forward with scientific and medical proof to establish that the child died as a result of trauma. At such point in time of proof, the State will not be able to rest on circumstantial evidence of child abuse to establish cause of death. The trial court was faced with statements by forensic pathologists who would not attribute death to trauma. Dr. Henry pointed out that he found “no evidence in this case that force was used in effecting this death and finds no evidence that would lead one to believe that this death was intentionally effected.” An anoxia-caused death, inflicted by a lay person, would have left evidence readily seen by the trained eye and mind of the pathologists. Again, I point out that the criminal charge herein is not child abuse, it is murder-manslaughter. The trial judge, a servant on the Bench for decades, labored and surely anguished over this decision, as I likewise do by this writing. It is rudimentary, that as lawyers and judges, we must decide cases by the evidence.
-Photographs-
Upon suppression of testimony concerning “Battered Child Syndrome,” expert testimony was necessarily restricted to the immediate circumstances surrounding cause of death.
Five separate findings of fact were entered with respect to five enlarged color photographs. The trial court declared three admissible, per Finding of Fact XI, XII, and XIII, because they would “aid in the verbal description of the attending physicians.” Regarding the remaining two photographs, per Finding of Fact XIY and XV, the trial court did not find that these photographs would “aid in the verbal description of the attending physicians.” With reference to the latter, the trial court thus concluded that it would arouse the passion and prejudice of the jury. Implicit in the trial court’s ruling is that, inasmuch as they did not aid in a verbal description, basically they simply were not relevant. There must first be a threshold finding of relevancy and the trial court made no such finding. State v. Disbrow, 266 N.W.2d 246, 253 (S.D.1978). The two excluded photographs must be relevant to the cause of death giving rise to a murder-manslaughter charge. They were not. Their relevancy rested solely in their implications of child abuse. “Anoxia,” the pathologists’ findings as to death causation, is an “absence or lack of oxygen,” a “reduction of oxygen in body tissue below physiologic levels.” Dorland’s Illustrated Medical Dictionary 101 (25th ed. 1974). Marks on the body not related to the cause of death, bruises on the body which do not aid in the verbal description of the attending physicians (Drs. Brown and Primrose) cannot and should not be paraded before a jury, persuading by illegitimate means, to achieve a conviction-oriented result. These pictures were outside the restricted scope of testimony. With marginal relevancy, at best, the potential for unnecessary incitement and prejudice would far outweigh the tenuous connection to the issues.
I do not argue with the rule that photographs are not rendered inadmissible merely because they incidentally tend to arouse passion or prejudice. State v. Huth, 334 N.W.2d 485 (S.D.1983). However, “[i]t is *312 generally understood that the trial court, m determining whether pictures or photographs should be admitted, must weigh the probative value of the photographs in resolving a material issue as against the danger of prejudice to the appellant through needless arousal of the passions of the jurors.” State v. Kane, 266 N.W.2d 552, 558 (S.D.1978). Child abuse, or Battered Child Syndrome, was not in issue, because the trial court had ruled that this was not a Battered Child Syndrome case, based upon the State’s medical experts. The trial court viewed these 7" X 11" color photographs, took into consideration the medical expertise available, considered the impact upon the jury, and ruled accordingly. I note that the defendant moved to suppress all five of the enlargements but there was no appeal taken from the admission of three enlargements by the defendant. Under Kane, 266 N.W.2d 552 , I would affirm the trial court on this issue.
-Prior Acts-
Reference is made to my dissents in State v. Iron Shell, 336 N.W.2d 372, 375 (S.D.1983) and State v. Wedemann, 339 N.W.2d 112, 116 (S.D.1983). Following those dissents, and applying the facts as found by the trial court in this case, I cannot say that the trial court abused its discretion.
First, this Court adopted the federal requirement that the prior crimes, wrongs, or acts must have occurred close in time to the act at bar. State v. Pedde, 334 N.W.2d 41 (S.D.1983); State v. Johnson, 316 N.W.2d 652 (S.D.1982). The three Billings, Montana incidents transpired six and seven years prior to the facts giving rise to this prosecution. Therefore, it is not a “close in time” situation. Rather, it is factually remote.
Second, in section IV of the majority decision, the “facts” as depicted are overwhelmingly different than the Findings of Fact formally entered by the trial court. We must defer to the trial court as it found the facts. Reference is made to Findings of Fact XVI, XXVII, XXVIII, and XXIX. I can absolutely find no Findings of Fact remotely resembling grabbing a two-and-a-half-month-old baby by the throat or striking a one-week-old baby with his fists.
Third, our standard of review is whether the trial court abused its discretion in admitting the evidence (or rejecting it). State v. Houghton, 272 N.W.2d 788 (S.D.1978). In that review “we are bound by the rule that the question is ‘not whether the judges of this court would have made an original like ruling, but rather whether we believe a judicial mind, in view of the law and the circumstances, could reasonably have reached that conclusion.’ ” State v. Rose, 324 N.W.2d 894, 895-96 (S.D.1982).
There was a paled probative force to the offered Billings, Montana proof. Each factual scenario set in Billings, Montana, some six and seven years prior to the Aberdeen, South Dakota factual scenario was keenly addressed by the trial court. Each scenario would, purportedly, be testified to by one Jesse Holland. One scenario was not witnessed by Jesse Holland. Another scenario involved the defendant grabbing his two-month-old child by one arm. Another scenario involves the accused spanking his child twice on the bottom. All three of these factual instances will, purportedly, be presented to the jury to show an absence of mistake or absence of accident concerning the present murder-manslaughter charge. Collateral issues, arising from these three factual scenarios, will be presented to the jury and will amount to a trial not on the merits of this action. In my dissent in Wedemann, 339 N.W.2d at 118 , I posed this question: “Where will the boundless, amorphous majority rule end?” I am opposed to opening the door to virtually any act that might be remotely connected with any activity of which the accused might be charged. This Court has set on a course of broadening the scope of SDCL 19-12-5 far beyond the intent of the Advisory Committee of the Federal Rules of Evidence.