State v. Rose

1

2024 S.D. 56

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

No. 30484-a-PJD

Supreme Court of South Dakota

September 11, 2024

CONSIDERED ON BRIEFS JUNE 4, 2024

APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE CRAIG A PFEIFLE Retired Judge

MATTHEW MIRABELLA of Pennington County Public Defender's Office Rapid City, South Dakota Attorneys for defendant and appellant.

MARTY J. JACKLEY Attorney General

STEPHEN G. GEMAR Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

OPINION

DEVANEY, JUSTICE

[¶1.] Joshua Jay Rose was charged with simple assault of his son C.R. and tried before a jury in magistrate court. After the jury advised the court it was deadlocked, the court granted Rose's motion for a mistrial. During a second jury trial, the State moved for a mistrial based on matters occurring during the cross-examination of C.R., namely, references to the previous trial in violation of a motion in limine, mention of a no-contact order between Rose and C.R., and questions about how the result of Rose's trial could affect where C.R. lived. The magistrate court granted the mistrial, explaining it was necessitated by the cumulative effect of all three matters. Prior to the commencement of a third trial, Rose moved to dismiss the charges against him based on double jeopardy. The magistrate court denied the motion. Rose was tried a third time, after which a jury found him guilty of simple assault. Rose appealed his conviction to the circuit court, claiming the magistrate court abused its discretion in denying his motion to dismiss after the second mistrial. The circuit court affirmed. Rose now appeals to this Court, arguing the magistrate court abused its discretion by granting the second mistrial and by concluding double jeopardy did not preclude the State from retrying him. We affirm.

Factual and Procedural Background

[¶2.] On January 14, 2019, Rose discovered that his son C.R., who was then eight years old, had not done his chores and had been watching television or playing video games despite being grounded from those activities. While having a conversation with C.R. about this and other behavioral issues C.R. was having at #30484 school, Rose struck C.R. on or near his ear. The next day, a classmate of C.R. noticed a bruise in and around C.R.'s ear and informed a teacher, who reported it to the principal. The school's counselor then spoke with C.R. and after observing marks on C.R.'s cheek and ear, the counselor contacted the school resource deputy, Jayson Herra. Herra also noted a large bruise on C.R.'s ear and a red mark on his cheek. Herra investigated, asking both C.R. and Rose what occurred, and Rose admitted that he had "bopped" C.R. on both ears with open palms. Rose was arrested and charged with simple assault.

[¶3.] At the time of the incident and for six years prior, C.R. had been living with Rose in Box Elder, South Dakota, pursuant to an agreement between C.R.'s parents. After Rose's arrest, C.R. went to live with his mother in Missouri.

[¶4.] Rose was charged with two alternative counts of simple assault, and on January 16, 2019, a no-contact order was entered as a condition of his bond, precluding Rose from having contact with C.R. The charges were tried before a jury during a one-day trial in magistrate court on October 3, 2019. In addition to Rose and C.R., several other witnesses testified regarding the events reported by C.R., including school counselor, Chandra Canaan; Rose's fiancé, Dani Stayton; social worker, Devann Pond; and school resource deputy, Jayson Herra.

[¶5.] C.R. testified about the events in question. He also testified that in the nine months he had not seen his father, he "kind of" missed him. While being cross-examined about the reasons he was in trouble with his father that night, C.R. admitted that he lied to his father about having done his chores and that he lies "all of the time," although he knows the difference between the truth and a lie.

[¶6.] Stayton, who was present during the conversation between Rose and C.R. that led to the alleged assault, also testified about her recollection of these events. The no-contact order (the mention of which later became an issue at the second trial) was mentioned during Stayton's testimony when Rose's counsel asked her if she was "aware there's a no contact order in this case." The State did not object to the question and Stayton answered, "yes."

[¶7.] Rose testified that on the night he struck C.R., he and C.R. were discussing something that transpired at school that day. Rose explained that during that conversation, C.R. was not making eye contact with him, so he "bopped him on his ears to get his attention." According to Rose, C.R. did not cry and Rose did not see any bruising on C.R.'s face or ears that night.

[¶8.] After the case was submitted to the jury, deliberations ensued for approximately 7 hours. At that time, the foreperson informed the magistrate court the jury was deadlocked and stated that additional time to deliberate would not assist them in reaching a unanimous verdict. Rose moved for a mistrial and the State did not oppose this request. The magistrate court granted the motion.

[¶9.] A second trial was scheduled for July 1 and 2, 2021. Prior to trial, the State filed a motion in limine to preclude any reference to the first jury trial, which the magistrate court granted. C.R. again testified at trial and on cross-examination, defense counsel asked C.R. if he remembered testifying previously. When doing so, counsel asked:

Q: Okay. It's a little different experience today, isn't it?

A: Yeah.

Q: The jury is in a different spot?

A: Yeah. And it's a lot bigger room.

The State objected and a bench conference occurred. The record does not contain a ruling on the objection. At another point during cross-examination, defense counsel asked C.R.: "And you do remember testifying previously. Is that [r]ight?" C.R. responded: "Yes. But it became -- it was a mis-jury thingy. I don't remember what it's called. . . . It was a hanged jury." The prosecutor then asked to approach the bench, but the court stated that was not necessary and then instructed the jury to "disregard the statement just made by the witness."

[¶10.] On the topic of where C.R. was currently residing and his continued lack of contact with his father, C.R. testified during cross-examination that he had been living with his mother for the last two and a half years. He stated he no longer missed his father and liked living with his mother in Missouri. C.R. further testified he had talked to his mother about what happened during the incident for which his father was charged. Also on this topic, the following exchange between defense counsel and C.R. occurred:

Q: And you haven't seen your dad really since all this occurred, have you?

A: Yeah.

Q: And do you know why you haven't seen your dad?

A: Because there is a no-contact order in place.

STATE: Objection, Your Honor.

THE COURT: I'm going to sustain that. You are to disregard that response.

Q: You know that it's not your dad's choice not to speak to you or see you?

STATE: Objection, Your Honor.

THE COURT: The objection is sustained. You should disregard both the question and the answer.

[¶11.] The questions precipitating the motion for a mistrial occurred later in C.R.'s cross-examination during the following exchange:

Q: And, [C.R.], you've talked to your mom quite a bit about coming and testifying here?

A: Uh-huh.

Q: And you know that what you say -- whether your dad is convicted can impact where you live?

STATE: Objection, Your Honor.

THE COURT: That is sustained. You will strike that and not consider the question.

Q: Do you know whether the results of this case -

STATE: Objection.

THE COURT: Sustained. Please move on.

[¶12.] Defense counsel then asked to approach the bench and an off-the-record discussion occurred between the court and counsel. Defense counsel thereafter proceeded as follows:

Q: [C.R.], have you been told that what happens in court here will affect where you live?

STATE: I'm going to object, Your Honor, relevance.

THE COURT: Overruled. You may answer.

A: Uh, ye -- no.

Q: Why did you pause?

A: Because I forgot for a moment, and I remembered.

Q: So your mom has never talked to you about that?

A: Uh-uh.

[¶13.] During a subsequent break and outside the presence of the jury, the court and parties discussed the objectionable questions and answers that had been presented to the jury:

THE COURT: There were several mentions regarding prior jury the first -- I got a little angry with [defense counsel], and she did apologize during the sidebar. I don't think it was intentional. But [defense counsel] did bring up a jury elsewhere, and she caught herself almost immediately. But during that line of questioning, also, it did elicit answers from the witness to include the jury and, I believe, a hung jury.

DEFENSE: May I just say? I did not solicit those answers.

THE COURT: I don't mean you -- I don't think you intended, but the questions, the way you phrased them when you were talking about the prior testimony, that's what he was responding to.

DEFENSE: Yes.

THE COURT: And, I'm sorry. I didn't mean to suggest that you wanted him to say that. I don't believe that was your intention. And that -- the comments about the jury was sitting elsewhere is a violation of that motion in limine. I don't think it was an intentional violation. What is the State's position?

STATE: Your Honor, at this time the State is going to make a motion for a mistrial, based on not only the comment by [defense counsel] that the Jury was sitting in another area. The State on that would

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