State v. Hernandez

1

2023 S.D. 17

STATE OF SOUTH DAKOTA, Plaintiff and Appellant, v. AMANDA ROSE HERNANDEZ, Defendant and Appellee.

No. 29657-r-PJD

Supreme Court of South Dakota

April 12, 2023

ARGUED APRIL 27, 2022.

REASSIGNED MARCH 3, 2023.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT CHARLES MIX COUNTY, SOUTH DAKOTA, THE HONORABLE BRUCE V. ANDERSON Judge.

MARTY J. JACKLEY, Attorney General, SARAH L. THORNE Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellant.

TIMOTHY R. WHALEN Lake Andes, South Dakota Attorney for defendant and appellee.

DEVANEY, Justice (on reassignment).

[¶1.] Amanda Hernandez is charged with second-degree murder and several lesser offenses in connection with the death of her daughter, A.H. The circuit court made a preliminary ruling that Hernandez could provide testimony from an expert witness on the capacity of a ten-year-old alleged third-party perpetrator to have killed A.H. The expert's opinion was based in substantial part upon an analysis of the ten-year-old's prior behavior and other acts. The State requested an intermediate appeal from this ruling, which we granted. We reverse and remand.

Factual and Procedural Background

[¶2.] Shortly before 1:30 p.m. on August 14, 2019, Amanda Hernandez found her three-year-old daughter, A.H., lying unresponsive and cold to the touch in the bottom bunk of the bed in which she had been sleeping.^[1] Law enforcement officers responded and determined that A.H. was dead.^[2] Hernandez was arrested and charged by complaint on August 19, 2019, with the single count of second-degree murder in connection with A.H.'s death. On August 28, 2019, Hernandez was indicted by a grand jury on the following counts related to A.H.'s death: one count of second-degree murder; two counts of first-degree manslaughter; and one count of aggravated assault, or in the alternative, one count of abuse of or cruelty to a minor.

[¶3.] Hernandez and A.H. had been living in the home of Sidnae Webster for around two weeks prior to A.H.'s death. Webster's children, N.M. (age 10), J.M. (age eight), and N.M. (age six) also lived in the home. Hernandez has another child, S.P., but S.P. was not staying at Webster's house the night before A.H. died and was not there at the time of A.H.'s death.

[¶4.] The night before A.H. died, it appears that Hernandez went out with her friend, Andrew Shields, and Webster was at the home with her children and A.H. through the night. Webster left sometime in the morning between 8:00 and 9:00 a.m. to run an errand and at this time Hernandez had not yet returned home. Around 10:30 a.m., Webster returned to the home, as did Hernandez and Shields. Hernandez and Shields were both intoxicated and fell asleep on the couch in the living room and Webster went to sleep in her room. Webster's children were in her room with her, and A.H. was asleep in the bottom bunk of a bunk bed in the second bedroom. The second bedroom was accessible by separate doors from both Webster's room and the living room.

[¶5.] None of the adults or children in the home discovered that A.H. was unresponsive until Hernandez woke up and checked on her shortly before 1:30 p.m. The State and Hernandez offer different theories regarding when A.H. received the injuries that caused her death. The State contends that A.H.'s injuries occurred sometime between 11:00 a.m. and 1:00 p.m and that Hernandez inflicted the injuries. Hernandez argues that the injuries were inflicted by a third-party perpetrator sometime between 6:30 a.m. and 9:30 a.m., which was before Hernandez returned to the house. She alleges that N.M., Webster's ten-year-old son, inflicted the injuries upon A.H. that caused her death. Hernandez theorizes that N.M. injured A.H. while Webster was absent from the home and before Hernandez and Shields returned to the house.

[¶6.] The State and Hernandez have engaged in extensive pretrial litigation related to Hernandez's third-party perpetrator theory. Of foundational importance in this appeal are three motions filed by Hernandez on April 6, 2020. First, she filed a motion requesting access to N.M.'s Department of Social Services (DSS) records, school records, counseling records, and juvenile delinquency records and materials. Second, Hernandez filed a motion requesting a pretrial ruling on the admissibility of evidence regarding her third-party perpetrator theory that N.M. caused A.H.'s death. Third, Hernandez filed a motion requesting permission to retain a psychiatrist or psychologist as an expert witness regarding the effects of domestic violence on children.

[¶7.] In support of her motions, Hernandez advised the circuit court that N.M. had witnessed his father assaulting his mother on multiple occasions. Hernandez asserted that the requested records and reports would show that "N.M. has exhibited classic behaviors and aggression associated with" those who have been exposed to domestic violence. Hernandez explained that the testimony from an expert regarding the effects domestic violence may have on children would support her third-party perpetrator theory. She identified Dr. Trevor Stokes, Ph.D., a clinical psychologist specializing in child behavior, as her expert witness. Hernandez also identified statements N.M. made during a forensic interview showing that he was in close proximity and had the opportunity to harm A.H. Finally, Hernandez proffered several prior acts of N.M. and argued that this evidence would show that N.M. had a motive to fatally injure A.H. and a modus operandi of reacting to others with severe aggression, all of which she claimed would be relevant as to the identity of A.H.'s killer.

[¶8.] The State resisted Hernandez's three motions, arguing that the requested records pertaining to N.M. are confidential or privileged and that the information from the proposed expert was irrelevant, unnecessary, and more prejudicial than probative. The State asserted that the expert opinion was based on improper propensity and other acts evidence and, therefore, was not admissible to support Hernandez's third-party perpetrator defense. The State further argued that because the proffered expert testimony was inadmissible, a denial of Hernandez's request for an expert would not affect her right to present a defense. [¶9.] After hearing arguments from both parties at a hearing in May 2020, the circuit court granted Hernandez's motion requesting N.M.'s records, with the caveat that the records were to first be collected by the State and submitted to the court for an in-camera review. The court held that it would review the records to determine which are discoverable and then allow Hernandez's attorney the opportunity to inspect those records at the State's Attorney's Office and request a copy of the documents necessary for her defense.

[¶10.] The circuit court held in abeyance Hernandez's motion requesting a ruling on the admissibility of evidence related to her third-party perpetrator theory that N.M. caused A.H.'s death. Regarding the expert witness motion, the court characterized Hernandez's justification for the witness as follows:

But if I understand your motion, I think the primary concern is you're worried that a jury would say, how could somebody so young engage in such horrible conduct? And so you want an expert to educate the jury that, you know, sometimes these things happen with young people and it's not beyond the realm of possibilities. And, in fact, depending on the nature of the abuse they suffered, sometimes it's a little more common and maybe often sometimes frequent.

The court granted Hernandez's motion for an expert witness on a limited basis, allowing the expert to provide a preliminary outline of his anticipated testimony.

[¶11.] Following receipt of Dr. Stokes's preliminary report, the State filed an objection to his proposed testimony. The State argued that the proffered testimony contained inadmissible evidence under SDCL 19-19-404(a) and (b) and "stepp[ed] outside the bounds of traditional syndrome testimony" because Dr. Stokes "tailor[ed] his opinion to N.M. specifically[.]"^[3]

[¶12.] In August 2020, the circuit court signed its findings of fact and conclusions of law granting Hernandez's motion to offer third-party perpetrator evidence at trial. The court found that Hernandez's proffered third-party perpetrator evidence tended to show "who was the actual perpetrator of the criminal conduct which resulted in A.H.'s injuries and subsequent death" and would therefore potentially "provide [Hernandez] with a complete defense to the charges she faces in this matter." The court then determined that Hernandez's third-party perpetrator evidence was relevant, and its probative value was not substantially outweighed by the risk of unfair prejudice, thereby meeting the test for admissibility of third-party perpetrator evidence. The court clarified, however, that it would make further rulings after Hernandez provided a list of the specific evidence she sought to admit and that it did "not make any conclusion as to the admissibility of expert testimony at this point in time in light of its prior rulings."

[¶13.] The same day, the State filed its objection to the evidence listed in Hernandez's disclosure of the specific third-party perpetrator evidence she intended to introduce at trial. The State objected to all of the evidence listed with the exception of one incident, which it conceded was "proper third party perpetrator evidence" and which included "[e]vidence that N.M., Sidnae Webster, and Andrew Shields were in the house and had the opportunity to be alone with A.H. before and after [Hernandez] arrived home on the date A.H. died." The State argued that Hernandez's other evidence was improper propensity and other acts...