State v. Waldner

1

2024 S.D. 67

STATE OF SOUTH DAKOTA, Plaintiff and Appellant, v. MARK WALDNER, and MICHAEL M. WALDNER, JR., Defendants and Appellees.

No. 30343-r-PJD

Supreme Court of South Dakota

November 13, 2024

ARGUED MARCH 20, 2024

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

JEREMY LUND of Siegel, Barnett and Schutz, LLP Aberdeen, South Dakota Attorneys for appellant E.H.

MARTY J. JACKLEY Attorney General

CHELSEA WENZEL Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellant State of South Dakota.

KENT E. LEHR Scotland, South Dakota Attorney for defendant and appellee Mark Waldner.

TIMOTHY R. WHALEN Lake Andes, South Dakota Attorney for defendant and appellee Michael M. Waldner, Jr.

DEVANEY, JUSTICE

[¶1.] Michael Waldner, Jr., and Mark Waldner (Waldners) were indicted in Brule County, South Dakota, on varying degrees of rape and sexual contact involving E.H., a minor less than sixteen years of age. During the investigation, law enforcement obtained a journal written by E.H. detailing the alleged misconduct. After receiving the journal through discovery, the Waldners sought other journals and diaries written by E.H. through a subpoena duces tecum. E.H. moved to quash the subpoena. The circuit court denied the motion to quash and ordered E.H. to produce her other journals and/or diaries for an in-camera inspection by the court. E.H. filed a petition for an intermediate appeal to this Court. We granted the petition and instructed the parties to address jurisdiction in addition to the claims relating to the circuit court's order. We reverse and remand.

Factual and Procedural Background

[¶2.] The Waldners were charged by indictment on July 30, 2021 with various crimes against E.H. occurring between January 2019 and December 2020. Specifically, Mark was charged with one count of rape in the second degree (SDCL 22-22-1(2)), two counts of rape in the fourth degree (SDCL 22-22-1(5)), and one count of sexual contact with a child under sixteen years of age (SDCL 22-22-7). Michael, Jr., was charged with one count of rape in the second degree (SDCL 22-22-1(2)), one count of aggravated assault (SDCL 22-18-1.1(5)), two counts of rape in the fourth degree (SDCL 22-22-1(5)), one count of sexual contact with a child under sixteen years of age (SDCL 22-22-7), and one count of simple assault (SDCL 22-18-1(5)).^[1]

[¶3.] The Waldners and E.H. are members of a Hutterite colony in rural Brule County, South Dakota. After E.H. reported the incidents, she was moved to a sister colony. At her new colony, E.H. was under the care of Adam and Levi Wipf educators and leaders at the colony. Eventually, E.H. began to confide in Adam and Levi, who accompanied her to speak to law enforcement about the alleged misconduct. While talking to law enforcement, E.H. disclosed that after the incidents with the Waldners, she had written journal entries detailing the events and her experiences. Thereafter, she provided one of her journals to Adam and asked him to provide it to law enforcement. Levi then provided it to DCI Agent Brian Larson.

[¶4.] Shortly after the charges were filed, the State provided discovery to the Waldners, including police reports, E.H.'s interview with Child's Voice, E.H.'s medical and mental health records, photographs of E.H., and a copy of the pages from E.H.'s journal that had been provided to law enforcement. Following this initial discovery, the State requested a protective order concerning the information contained in these materials. The circuit court granted the protective order on December 8, 2021. However, before the court entered its order, Michael Waldner, Sr., sent an email to leaders and members of other colonies disparaging E.H. and disclosing personal and sensitive information contained within the discovery materials.

[¶5.] On April 8, 2022, the Waldners filed a motion for further discovery with requests that included any and all disciplinary records from the colony relating to E.H. and "[a]ll of E.H.'s diaries and/or journals." The Waldners argued that "E.H. has made extensive diaries and/or journals which disclose her thoughts, feelings, events, fantasies, and other information which is relevant to the allegations made against the [Waldners], are relevant to E.H.'s credibility, and may be used to impeach her testimony at trial."^[2] The Waldners also issued subpoenas duces tecum to Adam and Levi Wipf seeking "diaries, journals, or other documents of any nature" that E.H. had written from "the time period of January 1, 2010, through the present."

[¶6.] Pursuant to the subpoena, Levi appeared at a June 7, 2022 motion hearing with documents and pictures requested in the subpoenas. However, during testimony provided at this hearing, Levi stated that neither he nor Adam had possession of E.H.'s other journals and indicated that they were in E.H.'s possession. Additionally, he described how difficult the investigation had been on E.H. and how the email sent from Michael, Sr. circulated on social media and caused E.H. a tremendous amount of distress.

[¶7.] At the same hearing, the State clarified that it did not have any other journals and argued that the proper procedure for obtaining them was through a subpoena duces tecum directed to E.H. that satisfied the requirements established in this Court's decision in Milstead v. Johnson (Milstead II), 2016 S.D. 56, 883 N.W.2d 725. The State also asserted that issuing the subpoena to E.H. would allow her the opportunity to secure counsel. Over the State's objection, the court granted the discovery motion and ordered the State to acquire the journals and provide them to the court for an in-camera inspection. The court also ordered the State to submit an index containing any assertions of privilege, as well as a brief setting forth the State's position why disclosure to the defense should not be permitted. It further directed the State to advise E.H. of her right to seek counsel to help her assert her Marsy's Law rights. After the court's oral ruling, the Waldners issued a subpoena duces tecum directed to E.H. to gain access to her "diaries, journals, or other documents of any nature" that she had written from 2010 to the present. A few days later, the court entered its written order memorializing its oral ruling granting the Waldners' motion for discovery of all of E.H.'s diaries and/or journals.

[¶8.] E.H. thereafter retained an attorney and, with her attorney's assistance, filed a motion to quash the Waldners' subpoena duces tecum which included a supporting brief asserting her right to privacy and her right to refuse a discovery request under South Dakota Constitution, article VI, § 29 (Marsy's Law). She further argued that the Waldners' subpoena duces tecum did not satisfy the three-part test set out in United States v. Nixon, 418 U.S. 683, 700, 94 S.Ct. 3090, 3103, 41 L.Ed.2d 1039 (1974), that must be satisfied to obtain production of documents pursuant to a Rule 17(c) subpoena.^[3] However, before the court heard or ruled on the motion to quash, the Waldners withdrew the subpoena they had issued to E.H., noting that they had since been granted access to the journals through the court's discovery order entered after the June 7 hearing.

[¶9.] E.H. then filed a motion to vacate this discovery order. In her supporting brief, E.H. argued that the order for further discovery was improper because it violated her due process rights set forth in Marsy's Law. Specifically, E.H. noted her right to notice of the hearing on the matter and her right to appear and be heard before the court issued an order affecting her rights. As to the merits of the order, she argued that it was not supported by either the discovery statutes in SDCL chapter 23A-13 or the Brady doctrine because the State did not possess the documents at issue. She also reasserted her right to privacy under Marsy's Law, including the right to refuse discovery requests.

[¶10.] At a hearing on the motion to vacate, E.H. reiterated her arguments set forth in her brief and also asserted that the only mechanism for seeking to obtain the journals was through a subpoena duces tecum. She further noted that there are separate arguments that would apply to whether such a subpoena should be quashed, but those were not yet at issue because the Waldners had withdrawn their previously issued subpoena.

[¶11.] In response, the Waldners argued E.H. waived her right to privacy by providing one of her journals to law enforcement and cited this Court's decision in State v. Karlen, 1999 S.D. 12, 589 N.W.2d 594, as support. The court took the matter under advisement and at a later hearing, announced its decision regarding the motion to vacate. The court stated that its prior discovery order was improper and explained to the parties, "I can't order [the State] or the DCI to go and fetch these diaries or journals. You have to subpoena them from a third party." The court therefore vacated its prior discovery order "without prejudice to the defendants' right to subpoena the records under the proper process."

[¶12.] The Waldners then reissued their subpoena duces tecum to E.H. seeking "[a]ny and all statements, notes, video tapes, recordings, photographs, emails, text messages, computer maintained records, electronic records, social media records or recordings, diaries, journals, or other documents of any nature" in E.H.'s possession or control for "the time period of January 1, 2010, through the present." E.H. once again filed a motion to quash the subpoena, citing the same arguments made in her previous motion and brief.

[¶13.] At a hearing on E.H.'s motion, E.H. primarily argued to the court that the subpoena was ...