State v. Craig

850 N.W.2d 828

2014 S.D. 43

STATE of South Dakota, Plaintiff and Appellee,

v.Jerry Lee CRAIG, Defendant and Appellant.

No. 26783.

Supreme Court of South Dakota.

Considered on Briefs May 27, 2014.

Decided July 2, 2014.

Marty J. Jackley, Attorney General, Ann F. Mines, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Scott R. Bratland, Watertown, South Dakota, Attorney for defendant and appellant.

SEVERSON, Justice.

[¶ 1.] C.T., then age nine, reported that her maternal grandfather—Jerry Craig—sexually abused her. A jury convicted Craig of three counts of first degree rape, three counts of sexual contact with a child under the age of sixteen, and one count of aggravated incest. Craig appeals, arguing the circuit court erred by restricting questioning, allowing him to proceed pro se at sentencing, and erred in its sentence. He also argues his trial counsel was ineffective. We affirm.

Background

[¶ 2.] In May 2012, C.T. and her younger siblings (brother (S.C.) and sister (A.T.)) lived with Craig and his wife in Presho, South Dakota. As a result of a disagreement between Craig and the children's mother (A.C.), A.C. drove to Presho on May 10, 2012, to bring the children back with her to Aberdeen, South Dakota. C.T. alleged to A.C. that Craig sexually abused her.

[¶ 3.] A.C. reported the alleged abuse to the Department of Social Services (DSS) on May 11, 2012. DSS contacted law enforcement in Aberdeen. Officer Vance McInerney responded and discussed the allegations with A.C. Officer McInerney then arranged an interview with Child's Voice (a medical evaluation center that evaluates children regarding the possibility of both child physical and sexual abuse).

[¶ 4.] Colleen Brazil of Child's Voice interviewed C.T. on May 16, 2012. C.T. alleged that inappropriate contact with Craig occurred, including kissing on the lips, touching and penetrating her private parts, making her touch his private part, and rubbing and sucking her chest. Brazil interviewed C.T.'s siblings on May 22, 2012.

[¶ 5.] On June 5, 2012, Officer Tanner Jondahl interviewed Craig. Craig denied he sexually abused C.T. and claimed A.C. was retaliating against him. Craig did admit one incident when he awoke and realized his hand was touching C.T., claiming he mistakenly thought he was holding his wife.

[¶ 6.] On August 24, 2012, the State charged Craig with one count of first degree rape, three counts of sexual contact with a child under the age of sixteen, and one count of aggravated incest. A second indictment on April 19, 2013, charged Craig with three counts of first degree rape, three counts of sexual contact with a child under the age of sixteen, and one count of aggravated incest. The State dismissed the previous indictment. On May 16, 2013, Craig appeared before the Fifth Judicial Circuit Court for arraignment. He pleaded not guilty. After several motions and hearings, a jury trial commenced on June 4, 2013.

[¶ 7.] At trial, Brazil testified for the State about C.T.'s statements. Craig wished to question Brazil about conclusions drawn from her interview with C.T.'s brother (S.C.) as to S.C.'s credibility. The circuit court denied Craig's request on several grounds: not complying with SDCL 19–16–38; not a sufficient indicia of reliability;no showing S.C. would testify or was unavailable; the testimony was not relevant; and if allowed, “any value would be substantially outweighed by the confusion it would cause the jury” as the testimony would result in a trial within a trial. On June 5, the jury found Craig guilty.

[¶ 8.] Before sentencing, Craig requested that he be allowed to proceed without counsel. The circuit court held hearings on June 24, 2013, and July 8, 2013, to address Craig's request and address his questions. The circuit court allowed Craig to proceed pro se but asked his appointed attorney to stay apprised. Craig did not cooperate with the presentence report or complete a psycho-sexual evaluation.

[¶ 9.] On July 17, 2013, the circuit court sentenced Craig to 50 years imprisonment on counts one, two, and three, respectively, to be served consecutively. The circuit court further sentenced Craig to 10 years imprisonment for each of the remaining counts, to be served concurrently with the 150 years imposed on the first three counts.

[¶ 10.] After sentencing, Craig requested court-appointed counsel, who filed an amended notice of appeal on August 15, 2013. Craig raises as issues: (1) Whether the circuit court abused its discretion by restricting questioning about the victim's brother's (S.C.'s) statements; (2) Whether the circuit court abused its discretion by allowing Craig to proceed pro se at sentencing; (3) Whether Craig's sentence constitutes cruel and unusual punishment; and (4) Whether Craig received ineffective assistance of counsel.

Analysis

[¶ 11.] (1) Whether the circuit court abused its discretion by restricting witness questioning about S.C.'s statements.

[¶ 12.] Craig argues the circuit court abused its discretion by not allowing him to question Brazil about statements made by the victim's brother—S.C. Craig attempted to present evidence that S.C. was interviewed, made statements about sexual abuse, and that the professionals at Child's Voice found him not to be credible. Craig sought to use the testimony to support his theory that the children's mother (A.C.) had coached the children as to what to say. Craig asserts SDCL 19–16–8 (Rule 803(4)) (hearsay exception for statements made for medical diagnosis or treatment) allowed the questioning. The State argues Craig did not raise SDCL 19–16–8 (Rule 803(4)) before the circuit court, thus Craig's argument is waived; or in the alternative, Craig's argument is without merit because the testimony is not relevant to this case.

[¶ 13.] The “ultimate decision to admit or not admit evidence is reviewable under the ‘abuse of discretion’ standard[.]” State v. Herrmann, 2004 S.D. 53, ¶ 8, 679 N.W.2d 503, 507 (quoting State v. Davi, 504 N.W.2d 844, 849 (S.D.1993)).

[¶ 14.] Craig did not mention or argue SDCL 19–16–8 (Rule 803(4)) to the circuit court, thus his argument that it should apply is waived. See State v. Eidahl, 495 N.W.2d 91, 94 (S.D.1993). But, a hearsay exception is not determinative. Craig sought S.C.'s statements through Brazil's testimony to provide evidence that A.C. coached the children, not to prove the truth of what they asserted (that sexual abuse occurred). In that regard, S.C.'s statements were not hearsay. SeeSDCL 19–16–1(3) (Rule 801(c)) (“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”); State v. Harris, 2010 S.D. 75, ¶¶ 13–15, 789 N.W.2d 303, 308–09. As a result, whether Craig raised a hearsay exception is irrelevant.

[¶ 15.] Regardless, the circuit court found S.C.'s statements not admissible on other grounds, one being relevancy. The circuit court found “it to be of very little relevance in that whether one child made an allegation that was substantiated or not, does not prove or disprove that another child was or was not abused.” SeeSDCL 19–12–1 (Rule 401). Indeed, “[e]vidence which is not relevant is not admissible.” SDCL 19–12–2 (Rule 402). Further, predicting a “trial within a trial,” the circuit court also found the testimony inadmissible because “any value would be substantially outweighed by the confusion that it would cause the jury.” SeeSDCL 19–12–3 (Rule 403) (stating evidence may be excluded if its probative value is substantially outweighed by issue confusion, among others).

[¶ 16.] In the end, questions involving evidence's relevancy and the process of balancing that evidence's probative value versus the danger of confusing the issues are left to the circuit court's sound discretion. State v. Guthmiller, 2003 S.D. 83, ¶¶ 28–29, 667 N.W.2d 295, 305–06. Because the circuit court found S.C.'s statements not relevant and any value from them substantially outweighed by the confusion they would cause, the circuit court did not abuse its discretion by prohibiting testimony as to S.C.'s statements.^*

[¶ 17.] (2) Whether the circuit court abused its discretion by allowing Craig to precede pro se at sentencing.

[¶ 18.] Craig argues that he did not knowingly, intelligently, and voluntarily waive his right to counsel because none of the circuit court's warnings applied to his situation. The State argues the circuit court appropriately warned Craig and that he knowingly, intelligently, and voluntarily waived his right to counsel.

[¶ 19.] “In a criminal action a defendant has both a constitutional right to be represented by counsel and a constitutional right to represent himself; it is the defendant's choice.” State v. Hirning, 2011 S.D. 59, ¶ 13, 804 N.W.2d 422, 426 (quoting State v. Bruch, 1997 S.D. 74, ¶ 14, 565 N.W.2d 789, 791). “Appeals asserting an infringement of a constitutional right are reviewed de novo.” Id. (citing State v. Asmussen, 2006 S.D. 37, ¶ 11, 713 N.W.2d 580, 586).

[¶ 20.] “[I]n order for a defendant to exercise the right to self-representation and waive the right to representation by counsel, a voluntary, knowing and intelligent waiver must be made by the defendant.” Id. ¶ 14 (quoting Asmussen, 2006 S.D. 37, ¶ 30, 713 N.W.2d at 590). “[A]t a minimum, a defendant ‘must be aware of the dangers and disadvantages of self-representation.’ ” Id. ¶ 15 (quoting Bruch, 1997 S.D. 74, ¶ 15, 565 N.W.2d at 792).

On appeal, waiver of the right to counsel will not be found knowingly and intelligently made unless the trial court (1) warns the defendant of the dangers of self-representation or, (2) unless the record indicates circumstances from which this [C]ourt can [determine that] the defendant was aware of the danger and made a knowing and intelligent waiver. While in some cases there may be a record showing a defendant is aware of the pitfalls of self-representation, an...