APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES COUNTY, SOUTH DAKOTA HONORABLE KATHLEEN F. TRANDAHL Judge.
The opinion of the court was delivered by: Konenkamp, Justice
[¶1.] Defendant appeals his conviction for the murder of his wife. We affirm.
[¶2.] Defendant, Brad Reay, his wife, Tamara (Tami), and their daughter, Haylee, lived in Pierre, South Dakota. Defendant was an assistant manager at Wal-Mart. Tami worked in the shoe department at Kmart. She met Brian Clark, who also worked at Kmart. He was married with children. In December 2005, Tami and Brian began an affair.
[¶3.] In the first week of February 2006, Tami told defendant she wanted to date other people: she wanted a divorce. Defendant wanted to work things out. He even called Tami's mother, Bonnie Burns, asking that she help convince Tami to salvage the marriage. Tami would not relent. She suggested a divorce after Haylee's current school year ended.
[¶4.] On Tuesday, February 7, 2006, Tami and Brian met at the Fawn Motel. In the afternoon, Tami went to the Georgia Morse Middle School to watch her daughter play basketball. Following basketball and fast food, Tami and Haylee went shopping, and then headed home. Haylee was in bed by 9:00 p.m. Later, in describing that night, Haylee, age thirteen, would tell a jury that while she was awake in bed, defendant opened her bedroom door: "He had a bunch of clothes in his arm and I asked him what he was doing. . . . He just said 'nothing' [a]nd he put the clothes down and then came and laid with me." He told her he loved her. She fell quickly back to sleep. When defendant woke her the next morning, Haylee noticed that the laundry machines were running. She asked where her mother was, and defendant responded that she was in bed. Tami and defendant had separate bedrooms. Haylee went to her mother's bedroom, but all she found was an unmade bed. Her mother's cell phone was on the dresser. She looked in the garage and found her mother's car there. She discovered her mother's purse in the kitchen. When she told her father that her mother was not in the house, he replied that she had a boyfriend and she might be at his home. As he drove her to school that morning, defendant told Haylee, "Don't tell anybody [about Tami not being home] because it's personal." Haylee recalled that on the Sunday previous to her mother's disappearance, when she first learned from her parents that they were getting a divorce, her father was "acting weird. . . . He wouldn't eat and he'd just sit in his bed and not talk or anything."
[¶5.] Tami commonly telephoned her mother, Bonnie, every day. When Bonnie did not receive a call from Tami on Wednesday, February 8, 2006, she called Haylee at her school. Haylee said that the last time she saw her mother was the previous evening. Bonnie then called Brian at Kmart to ask if he had seen Tami. She was scheduled to work at 10:00 a.m., but failed to show up. Brian called the Pierre Police Department and reported Tami missing. He disclosed to Lieutenant Dave Panzer his affair with Tami and expressed his fear that defendant may have done something to her.
[¶6.] Lieutenant Panzer contacted Detective David DeJabet to assist in the missing person investigation. Detective DeJabet sent Detective Troy Swenson to the Georgia Morse Middle School to talk to Haylee. In the meantime, Lieutenant Panzer and Detective DeJabet went to defendant and Tami's home. Lieutenant Panzer knocked on the front door, but nobody answered. Detective DeJabet went to the back door and looked through a window into the garage. He saw a parked black Dodge Durango. He also noticed "a reddish brown stain on the door."
[¶7.] With mounting apprehension, Lieutenant Panzer called Patrol Officer Leasa McFarling to watch the house while Detective DeJabet and Lieutenant Panzer met with defendant in the security office at Wal-Mart. The officers explained to defendant that they had concerns that Tami was missing. Defendant told the officers that when he got home the night before, Tami was not there. Defendant said that at 1:00 a.m. he heard a vehicle pull into the driveway. He looked and saw the Durango parked there, without Tami, and another vehicle driving away. Defendant said he pursued the vehicle in the Durango, but without success.
[¶8.] Lieutenant Panzer and Detective DeJabet then asked if defendant would meet them at defendant's home to see if Tami had returned. Defendant agreed and accepted a ride with the officers. Officer McFarling was still at the home when Lieutenant Panzer, Detective DeJabet, and defendant arrived. Detective Troy Swenson showed up shortly thereafter. Lieutenant Panzer asked defendant for written consent to search his home and vehicles. He consented, and Detectives Swenson and DeJabet and Lieutenant Panzer entered the residence together. Defendant waited outside. During the search, the officers saw what appeared to be a blood droplet on the garage floor. They also smelled a strong odor of cleaning solution coming from the Dodge Durango. Detective DeJabet suspected homicide. He directed the officers to stop the search while a search warrant was obtained.
[¶9.] Defendant was taken to the police station, where he was interviewed by Detective Swenson, Lieutenant DeJabet, and Division of Criminal Investigation Agent Guy DiBenedetto. The interview lasted five hours. Defendant repeatedly denied doing anything to Tami and denied knowing anything concerning her whereabouts.
[¶10.] As defendant was being interviewed, Special Agent Michael Braley, a crime scene investigator, along with other law enforcement officers, executed a search warrant on defendant's home and vehicles. The search revealed that the Dodge Durango had been freshly cleaned and that there was fresh laundry on defendant's bed and in the washer and dryer. Swabbed samples were taken from the blood spot on the garage floor, the washer, certain walls, a light switch, trim, abed, and Tami's dresser. After defendant's interview, he was arrested for first degree murder and taken to the Hughes County Jail.
[¶11.] Two days later, a pilot flying a National Guard helicopter spotted a body by the emergency spillway at Oahe Dam. It was Tami. Her body, nude, throat slashed, had been stabbed over thirty times. A knife-riddled t-shirt and bloody gloves were nearby. She was taken to Rapid City for an autopsy, where a pathologist, Dr. Donald Habbe, obtained her fingernail scrapings, DNA samples, rectal and vaginal swabs, and blood samples.
[¶12.] While defendant was in custody awaiting trial, he carried on various conversations and correspondence with his twin brother, Bret. These were monitored by the Hughes County Jail. Bill Dodge, the administrator at the jail, released the recorded conversations and photocopied correspondence to Agent DiBenedetto and Hughes County Sheriff, Mike Leidholt. In one such correspondence was a map drawn by defendant, purporting to tell Bret where the good fishing spots were around Oahe Dam. Using this map and other information gathered during defendant's conversations with Bret, Agent Braley and the Watertown Search and Rescue Team, aided by a bloodhound and cadaver dog, uncovered three City of Pierre garbage bags containing bloody linens, rubber gloves, bloody blankets, panties, a bloody tarp, and a box of condoms with one missing. The garbage bags were hidden in a row of juniper hedges, vegetation similar to what law enforcement officers collected from the bottom of defendant's shoes. Also, the garbage bags were the same type as those found in defendant's garage.
[¶13.] During another monitored exchange between defendant and his brother, defendant had Bret hand copy a letter defendant had written. After copying the letter to a notebook, Bret left the jail. Later that day he was apprehended in Spearfish, South Dakota, and a warrant was issued to search his car. His notebook was confiscated. Bret told the officers that he had copied a letter from defendant and sent it to four people as directed by defendant.*fn1 The following day, the Attorney General's office received four anonymous letters, supposedly written by a cousin of Tami's killer, disclosing an unknown detail: Tami was "raped, lost rubber in ass." After seeing these letters, Agent DiBenedetto asked the pathologist, Dr. Habbe, to re-examine Tami's body, which was still in the morgue in Rapid City. The examination revealed that a condom was in fact in her rectum.
[¶14.] Defendant was indicted for first degree murder or in the alternative first degree manslaughter. The jury trial lasted two and a half weeks. During the trial, defendant objected to the admission of numerous pieces of evidence, ranging from knives, clothing, tarps, letters, documents, allegedly bloody bed sheets, and swabs of spots purportedly containingblood. Defendant argued that the State failed to establish a sufficient chain of custody because it did not offer testimony from the custodian at the State Crime Lab responsible for the care and custody of the evidence. According to defendant, the State's chain of custody evidence did not prove that the evidence remained in an unaltered state. The court, however, concluded that a sufficient chain of custody was established and admitted the evidence.
[¶15.] Defendant also objected when the State attempted to argue that, although it never compared Haylee's DNA to the DNA collected, it could exclude the presence of Haylee's DNA because the State knew the DNA profiles of her parents. According to defendant, the opinion that the presence of a child's DNA could be excluded based on the parents' DNA profiles was an opinion not disclosed before trial. This testimony, defendant argued, justified a mistrial because it violated the court's discovery order that required the State to disclose the opinions of its testifying experts before trial. The court allowed the testimony and denied defendant's mistrial motion.
[¶16.] Tami's mother, Bonnie, testified at trial. When she was cross-examined by the defense, she was asked about her statement to a social worker that Haylee was normally an emotional child, but on the day of Tami's murder she was particularly calm. In response, the State asked Bonnie on re-direct examination whether Bonnie had a similar situation take place in her family that allowed her to see people's reactions to a tragedy. Defendant objected on the ground that the testimony was irrelevant and prejudicial. The court overruled his objection and allowed the testimony. Also overruled was defendant's hearsay objection when the State offered a box of Vivarin into evidence and had defendant read aloud the warning label on the box.
[¶17.] In his defense, defendant maintained that his daughter Haylee killed her mother. He concealed the homicide for Haylee, he said, because he "didn't want her to get in trouble." He testified that on the night Tami was killed, he found Haylee standing by Tami's dead body holding a knife. Haylee said nothing when defendant asked her, "Haylee, what have you done." According to defendant, Haylee had blood on her face and hands, and was bleeding from the nostrils. He described Haylee as "Catatonic or in shock. I can't really say." He told the jury that to conceal what Haylee had done, he washed the blood from her, cleaned the scene, planted a condom in Tami's rectum, hid evidence, dumped Tami's body by the Missouri River, lied to law enforcement officers during their investigation, and tried to direct suspicion toward Brian Clark.
[¶18.] In support of his defense that Haylee killed her mother, defendant proposed the following jury instruction: "Any person who committed the act charged without being conscious thereof is incapable of committing such crime." He requested this instruction based on his theory that when Haylee stabbed her mother she was not conscious, and thus, could not be held legally responsible. Defendant asserted that the proposed instruction would diminish the impact of his accusation against his daughter and allow him to argue that he was guilty of some lesser crime than murder. The court rejected the proposed instruction on the grounds that it was not relevant to defendant's guilt or innocence, would generate speculation and conjecture, and was inappropriate because Haylee was not on trial.
[¶19.] The jury found defendant guilty of first degree murder and the court imposed the mandatory sentence of life in prison without the possibility of parole. On appeal, defendant asserts that the trial court erred when it (1) determined that a proper chain of custody had been established for various pieces of evidence; (2) allowed Bonnie to testify that she had previously gone through a similar experience in her family; (3) failed to give his theory of the defense instruction; (4) denied his mistrial motion for violation of the discovery order; and (5) admitted the box of Vivarin over his hearsay objection.
[¶20.] During the trial, the court admitted numerous pieces of evidence over defendant's objection that the State failed to establish a sufficient chain of custody to show that the evidence had not been altered, tampered with, or changed. It is undisputed that the State did not offer the testimony of the evidence custodian, the only person with personal knowledge about what happened with the evidence after it was placed in the State Crime Lab. The State did offer, however, the testimony of the person who collected or created the evidence, and, when necessary, the analyst at the State Crime Lab who tested it.
[¶21.] Defendant contends that a proper chain of custody was not established for the buccal swab of Brian Clark; the DNA swab of defendant; Tami's blood sample; hairs from defendant; the outside and inside of a right-hand glove; the inside and outside of a t-shirt; swabs of the exterior of the home garage door, garage floor, bedroom wall, downstairs bedroom dresser, the passenger side rear wheel well of the Dodge Durango, the front middle seat center cushion of the Durango, and the steering wheel column of the Durango; the plants and fibers from the back of a t-shirt; and the vaginal and rectal swabs and the hairs from Tami's body.
[¶22.] Trial courts have broad discretion in determining "the competency of chain of custody evidence." State v. Lownes, 499 NW2d 896, 901 (SD 1993) (citing State v. Wimberly, 467 NW2d 499 (SD 1991); State v. Miller, 429 NW2d 26 (SD 1988)). "In considering the admissibility of demonstrative evidence, the trial judge must be satisfied in reasonable probability that the object sought to be admitted is the one involved in the case, and that it has not changed in important respects." State v. Serl, 269 NW2d 785, 788 (SD 1978) (citing State v. Christmas, 83 SD 506, 162 NW2d 125 (1968)). We review a court's chain of custody decision under the abuse of discretion standard. Lownes, 499 NW2d at 901.
[¶23.] To be sure, the State makes no claim that a complete chain was presented for each piece of evidence.*fn2 It maintains, however, that a sufficient chain of custody was established to allow the court to conclude with reasonable probability that no tampering or substitution occurred. The State further argues that absent evidence from defendant of ...