#27606-r-LSW
2016 S.D. 67
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
KEITH WAYNEMCLAIN
HORNED EAGLE, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
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THE HONORABLE ROBIN J. HOUWMAN
Judge
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MARTY J. JACKLEY
Attorney General
JOHN M. STROHMAN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
BEAU J. BLOUIN
Minnehaha County
Public Defender
Sioux Falls, South Dakota Attorneys for defendant
and appellant.
****
CONSIDERED ON BRIEFS
ON AUGUST 29, 2016
OPINION FILED 09/28/16
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WILBUR, Justice
[¶1.] During defendant’s trial on an allegation of rape in the second degree,
defendant moved the circuit court to order the prosecutor to produce any summaries
written by the prosecutor or by others in the prosecutor’s office documenting the
victim witness’s oral declarations about the alleged rape. The court denied
defendant’s motion after concluding that SDCL 23A-13-10(4) did not mandate
production. The jury found defendant guilty. Defendant appeals. We reverse and
remand.
Background
[¶2.] On September 28, 2014, in Sioux Falls, South Dakota, Cheryl Walking
Crow called 911 to report that she had been raped earlier that morning. She
explained that she had walked to a cement enclosure next to the Salvation Army
building to sleep when a man approached her and raped her. Sioux Falls police
officers Bridget O’Toole and Craig Boetel responded. Officer O’Toole noted that she
did not observe any physical injuries on Walking Crow. Both officers took Walking
Crow to the area near the Salvation Army building. There, the officers observed a
man sleeping on the ground. The man, later identified as Keith Horned Eagle,
appeared intoxicated. A preliminary breath test reported his blood alcohol content
at 0.247 percent. According to Officer O’Toole, Horned Eagle claimed that he did
not remember that he had been sleeping in the enclosure or whether a female was
also sleeping there the night before. Horned Eagle agreed to speak with law
enforcement at the Law Enforcement Center. Horned Eagle also consented to give
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buccal, finger, and penile swabs for DNA purposes and to give the officers his
clothing and other items from the scene for testing.
[¶3.] The officers took Walking Crow to Avera Hospital to complete a sexual
assault examination. The vaginal, cervical, oral, and anal perineum swabs obtained
from Walking Crow were tested for evidence of semen. They also tested Walking
Crow’s underwear. As part of Walking Crow’s sexual assault examination, the
nurse collected from Walking Crow various swabs, fingernail scrapings, and pubic
hair samples. The nurse also examined Walking Crow’s body for evidence of
injuries, finding none.
[¶4.] On December 31, 2014, a grand jury indicted Horned Eagle with one
count of second-degree rape in violation of SDCL 22-22-1(2). Horned Eagle pleaded
not guilty. A jury trial began on May 6, 2015. The emergency room nurse, Jennifer
Canton, testified that she did not take any photographs of Walking Crow because
she observed no sign of injuries. Canton also testified that Walking Crow reported
that she knew her attacker as an acquaintance. Canton relayed that Walking Crow
reported that she knew her assailant as “Keith.”
[¶5.] A forensic scientist with the State of South Dakota, Amber Bell,
testified with regard to the DNA testing of the sexual assault kit obtained from
Walking Crow and the swabs and items collected from Horned Eagle. Horned
Eagle’s penile swab contained a DNA profile matching Walking Crow. One of
Horned Eagle’s finger swabs contained the DNA profiles of Horned Eagle and
Walking Crow. According to Bell, the DNA matching Walking Crow obtained from
Horned Eagle’s swab samples did not indicate from what part of Walking Crow’s
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body the DNA originated. The sample could be from Walking Crow’s skin cells, her
hands, her mouth, her vagina, etc. Bell also testified that no swab from Walking
Crow’s person indicated the presence of semen and her underwear tested negative
for the presence of semen. Because Bell detected no seminal fluid on the swabs
from Walking Crow, Bell conducted no other tests to determine the presence of
Horned Eagle’s DNA on Walking Crow.
[¶6.] Walking Crow testified about the events leading up to the rape. She
said she went to her friend Doug’s house to shower before leaving to eat at The
Banquet. After her meal, she walked to a gas station to purchase beer. She said
that she ran into Horned Eagle as she exited the gas station and said hello to him
while walking by. Walking Crow relayed that after obtaining the beer she went to a
park to meet a friend. Walking Crow claimed that at the park she again saw
Horned Eagle.
[¶7.] According to Walking Crow, later that night she went to a friend’s
house and continued drinking alcohol. She left her friend’s house after midnight
and went back to Doug’s. Nobody was at Doug’s house, and Walking Crow found
her pillows and blankets laying outside the house. She took them and walked
toward the Salvation Army to sleep. She reported that she believed someone was
walking behind her. On redirect, Walking Crow testified that Horned Eagle was
the person walking behind her.
[¶8.] Once Walking Crow reached the cement enclosure by the Salvation
Army building, she laid out her blankets on the ground and began drinking more
alcohol. Walking Crow said that Horned Eagle sat down and had a couple drinks
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with her while the two of them talked. She said that at some point Horned Eagle
stood up, took his pants off, and attempted to make Walking Crow give him oral
sex. She claimed she pushed him away. She said Horned Eagle pushed her down
and took her pants off. Walking Crow claimed she kicked and struck Horned Eagle
but succumbed to his strength. She said Horned Eagle struck her in the chest with
his knee, put his forearm against her throat, and pushed a pillow down on her face.
Walking Crow explained that she was scared and stopped fighting. She said that,
at that point, Horned Eagle vaginally penetrated her with his penis. She recalled
that Horned Eagle ejaculated inside her. Walking Crow testified that when Horned
Eagle finished, he laid beside her and held her. A few hours later, while Horned
Eagle slept, Walking Crow put on her clothes and walked to the gas station to call
911.
[¶9.] During a break in Walking Crow’s testimony, counsel for Horned Eagle
informed the circuit court that he would be requesting access to the notes taken by
the prosecutor or notes taken by anyone in the prosecutor’s office that summarized
Walking Crow’s prior oral statements. Counsel claimed that the notes were
discoverable under SDCL 23A-13-10(4). The State objected and argued that the
prosecutor’s notes are protected attorney work product. The court agreed and held
that the prosecutor’s notes (or notes by others in the prosecutor’s office) did not fall
under SDCL 23A-13-10.
[¶10.] The jury found Horned Eagle guilty of rape. The court sentenced
Horned Eagle to fifty years in prison with ten years suspended. Horned Eagle
appeals and asserts one issue for our review:
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Whether Horned Eagle was denied due process when the circuit
court denied his request to inspect written notes in the
possession of the prosecuting attorney containing prior
statements made by Walking Crow.
Standard of Review
[¶11.] We normally review a court’s discovery decision for an abuse of
discretion. Andrews v. Ridco, Inc., 2015 S.D. 24, ¶ 14, 863 N.W.2d 540, 546. When
the circuit court’s decision raises an issue of statutory interpretation, our review is
de novo. Id.
Analysis
[¶12.] Horned Eagle contends that the circuit court erred when it denied his
request that the court order the State to produce notes in the possession of the
prosecutor containing summaries of Walking Crow’s prior statements related to the
allegations against him. He avers that the circuit court should have reviewed the
prosecutor’s notes in camera to determine if the notes contained attorney work
product or relevant statements by Walking Crow on the subject matter of her
testimony at trial. According to Horned Eagle, the court’s failure to order the State
to produce Walking Crow’s prior statements violated his right to due process and
his right to confront a witness against him.
[¶13.] In response, the State seems to believe that Horned Eagle seeks only
the notes summarizing Walking Crow’s grand jury testimony. The State writes,
“Horned Eagle’s request is without merit since the entire verbatim statement of the
grand jury was provided.” According to the State, “[w]hatever small quotes, notes
or impressions that the state’s attorney’s office may have jotted down during
[Walking Crow’s] grand jury testimony are work product[.]” (Emphasis added.)
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[¶14.] This case does not involve whether the State is obligated to produce
notes taken by the prosecutor or others in the prosecutor’s office during a witness’s
grand jury testimony. In fact, Horned Eagle makes clear he does not seek the notes
taken during Walking Crow’s grand jury testimony. This case concerns whether
“[a] summary of an oral declaration made by someone other than the witness that
has been reduced to writing” under SDCL 23A-13-10(4) includes the summaries of
Walking Crow’s oral declarations made by the prosecutor or others in the
prosecutor’s office.
[¶15.] According to the State, subsection (4) should not be interpreted to
include a prosecutor’s notes taken while interviewing a witness because the “main
objective” of the overall statutory scheme is akin to the federal rule—to allow for
“discovery of verbatim or near verbatim statements by the testifying witness.” A
comparison of the federal rule against South Dakota law, however, reveals that the
federal rule does not contain the statutory language at issue here. Compare 18
U.S.C. § 3500(e) (Jencks Act) with SDCL 23A-13-10.
[¶16.] Under SDCL 23A-13-7, “[a]fter a witness called by the prosecuting
attorney has testified on direct examination, the court shall, on motion of the
defendant, order the prosecuting attorney to produce any statement, as defined by
SDCL 23A-13-10, of the witness in the possession of the prosecuting attorney which
relates to the subject matter as to which the witness has testified.” A “statement” is
defined to include, “in relation to any witness called by the prosecuting attorney”:
(1) A written statement made by such witness and signed or
otherwise adopted or approved by him;
(2) A stenographic, mechanical, electrical, or other recording, or
a transcription thereof, which is a substantially verbatim
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recital of an oral statement made by such witness and
recorded contemporaneously with the making of such oral
statement;
(3) A statement, however taken or recorded, or a transcription
thereof, if any, made by such witness to a grand jury;
(4) A summary of an oral declaration made by someone other
than the witness that has been reduced to writing.
SDCL 23A-13-10. In contrast, the Jencks Act does not have a provision similar to
subsection (4). It provides that “[t]he term ‘statement’, as used in subsections (b),
(c), and (d) of this section in relation to any witness called by the United States,
means”:
(1) a written statement made by said witness and signed or
otherwise adopted or approved by him;
(2) a stenographic, mechanical, electrical, or other recording, or
a transcription thereof, which is a substantially verbatim recital
of an oral statement made by said witness and recorded
contemporaneously with the making of such oral statement; or
(3) a statement, however taken or recorded, or a transcription
thereof, if any, made by said witness to a grand jury.
18 U.S.C. § 3500(e).
[¶17.] Nonetheless, the State also directs this Court to State v. Muetze, where
we held that the police officer’s original notes were not subject to production. 368
N.W.2d 575, 580 (S.D. 1985). But Muetze is distinguishable. In Muetze, the
defendant sought to discover the investigating officer’s original notes to “search” for
“information which could be used to impeach prosecution witnesses.” 368 N.W.2d at
580. The State had already given to defendant the “typed or handwritten reports
from each investigating officer[.]” Id. And the Court noted that “all ‘statements’
were turned over to Muetze’s counsel prior to trial.” Id. at 581. Here, on the other
hand, the State has not made any similar assertion that it has produced all
statements under SDCL 23A-13-10(4).
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[¶18.] Alternatively, the State submits that ordering the production of the
prosecutor’s notes from interviews with a witness “would subject prosecutors to be
called regularly as witnesses . . . to explain comments they made while talking with
witnesses.” The State claims that “a prosecutor might be fearful that mere visiting
with a witness might subject personal thoughts, comments, opinions, theories or
impressions to become part of the defendant’s discovery.” The State disagrees that
having a court review the notes in camera would remedy that concern. According to
the State, having a court review the notes in camera and ordering redaction “could
result in road blocks to the prosecutor’s responsibility to do justice and thoroughly
investigate a case.”
[¶19.] First, SDCL 23A-13-5 protects attorney work product. It provides that
chapter 23A-13 “does not authorize the discovery or inspection of reports,
memoranda, or other internal prosecution documents made by the prosecuting
attorney or other employees of law enforcement agencies in connection with the
investigation or prosecution of the case[.]” SDCL 23A-13-5. Second, SDCL 23A-13-
10(4) is unambiguous, and the State presents no alternative interpretation. Upon
Horned Eagle’s motion, the State was required to produce any summary of Walking
Crow’s oral declarations written by someone other than Walking Crow on the
subject matter of Walking Crow’s testimony.
[¶20.] By no means is SDCL 23A-13-10(4) intended to give defense attorneys
access to the prosecutor’s attorney work product. But Horned Eagle has a
constitutional right to due process and a right to confront his accusers. “In all
criminal prosecutions the accused shall have the right . . . to demand the nature
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and cause of the accusation against him; to have a copy thereof; to meet the
witnesses against him face to face[.]” S.D. Const. art. VI, § 7; see also S.D. Const.
art VI, § 2. Here, the credibility of Walking Crow’s testimony was crucial to the
State’s case. There were no eyewitnesses, and the evidence presented at trial
conflicted with Walking Crow’s previous statements. For example, Walking Crow
claimed that Horned Eagle ejaculated into her vagina, but seminal fluid testing
indicated that no semen was present in Walking Crow’s vagina, on her person, or in
her underwear. And the forensic expert testified that the presence of semen would
remain detectible anywhere from twenty-four hours to three days. Walking Crow’s
person and clothing were tested within five hours of the incident. Walking Crow
also claimed to have been pushed by Horned Eagle, that a struggle ensued on the
ground, and that he held her down with a knee on her chest. The police officers and
the nurse testified that they found no injuries on Walking Crow’s person.
[¶21.] Because SDCL 23A-13-10(4) unambiguously requires the State to
produce any “summary of an oral declaration made by someone other than the
witness that has been reduced to writing[,]” the circuit court erred when it denied
Horned Eagle’s motion. Horned Eagle is entitled to have notes in the possession of
the prosecutor containing summaries of Walking Crow’s prior statements related to
the allegations against him produced for an in camera review by the circuit court to
determine if those notes contain discoverable statements under SDCL 23A-13-10(4).
See, e.g., People v. Szabo, 447 N.E.2d 193, 201-02 (Ill. 1983); see also Dakota Minn.
& E. R.R. Corp. v. Acuity, 2009 S.D. 69, ¶ 49, 771 N.W.2d 623, 637 (“the preferred
procedure for handling privilege issues is to allow for an in camera review of the
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documents”). If, after an in camera review of the notes, the court concludes that the
notes contain discoverable statements under SDCL 23A-13-10, which could have
affected the outcome of the trial, the court is directed to vacate Horned Eagle’s
judgment of conviction and sentence and schedule a new trial. See State v.
Birdshead, 2015 S.D. 77, ¶ 49, 871 N.W.2d 62, 79 (the suppressed evidence must be
prejudicial in nature for defendant to receive a new trial). If, on the other hand, the
notes do not contain statements discoverable under SDCL chapter 23A-13, the
circuit court is directed to enter a new judgment of conviction and impose the same
sentence.
[¶22.] Reversed and remanded.
[¶23.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,
Justices, concur.
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