APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA, HONORABLE JANINE M. KERN Judge.
The opinion of the court was delivered by: Gilbertson, Chief Justice
[¶1.] Defendant was retried on two counts of first degree rape and three counts of criminal pedophilia for sexual crimes against his daughter and her four friends after his 1999 conviction was overturned on habeas review. Defendant was found guilty by a jury and sentenced by the trial court to 125 years in the state penitentiary. Defendant argues the trial court erred when it denied his motion for acquittal for the first degree rape charges concerning his daughter, K.D., because she recanted during cross-examination. He argues the trial court also erred when it did not grant his motion for mistrial after the State's psychiatric expert vouched for the victims, and in the alternative because of a display of children's shoes that was briefly within the jury's view while walking from the courtroom to the jury room. Defendant also argues his right to Due Process was violated when the trial court refused to admit into evidence cards and letters he wrote to K.D. after the charges were filed. Finally, Defendant argues the trial court erred when it did not grant his motion for retrial after it was discovered that the jury obtained and discussed extrinsic information. We affirm on all issues.
[¶2.] An overview of the factual history of this case is set forth in State v. Dillon, 2001 SD 97, 632 NW2d 37 (hereinafter Dillon I ). A condensed version of those facts pertinent to the present appeal is presented below.
[¶3.] On December 9, 1998, Farrell Dillon (Defendant), age forty at that time, was charged with seven counts of first degree rape, two counts of third degree rape, and five counts of criminal pedophilia based on the allegations of five child victims for the events of July 10, 1998, and September 11, 1998. The victims included K.D., Defendant's then seven-year-old daughter, and four of K.D.'s girlfriends: seven-year-old L.R., eight-year-old N.R., eight-year-old S.R.B., and eight-year-old T.T. The two counts of third degree rape were removed from an amended information filed on August 17, 1999. In 1999, Defendant was tried on the remaining twelve counts and was convicted on seven counts of first degree rape and five counts of criminal pedophilia. He was acquitted on an additional charge involving sexual contact with T.T. and two other charges involving L.R. for the events of July 10, 1998.*fn1 Defendant was sentenced to 175 years in the State Penitentiary.
[¶4.] On appeal, this Court vacated three of the first degree rape convictions based on the double jeopardy prohibition because the same acts of penetration were used to support separate counts of first degree rape and counts of criminal pedophilia. Dillon I, 2001 SD 97, ¶22, 632 NW2d at 46. On remand, the trial court sentenced Defendant to 115 years on the remaining convictions. Defendant's subsequent state habeas corpus action alleging ineffective assistance of counsel was denied by the trial court, but reversed by this Court. Dillon v. Weber, 2007 SD 81, 737 NW2d 420.
[¶5.] The State gave timely notice of its intention to retry Defendant and filed an Information with the following counts:
Count 1 First Degree Rape K.D. July 10, 1998
Count 2 First Degree Rape K.D. September 11, 1998
Count 3 Criminal Pedophilia S.R.B. July 10, 1998
Count 4 Criminal Pedophilia L.R. September 11, 1998
Count 5 Criminal Pedophilia N.R. September 11, 1998*fn2
In a pretrial motion in limine, Defendant asked for preclusion of any reference to the previous trial, sentencing, direct appeal, and habeas proceedings under SDCL 19-12-3 (Rule 403) without specifying what portion of the rule pertained to his motion.*fn3 The State did not resist the motion, which was granted in its entirety by the trial court.
[¶6.] As previously noted, the facts from the first trial are detailed in Dillon I, 2001 SD 97, ¶¶2-10, 632 NW2d at 41-42.
In May 2008 at the second trial, the State called Dr. Leslie Fiferman, a clinical psychologist who had worked with between 2,000 and 3,000 sexual abuse victims over twenty years of practice in the military and as a private practitioner. Dr. Fiferman testified that he had no contact with any of the victims, nor had he read any of the police reports in this case. He was asked to testify generally about the characteristics of sexual abuse victims and their ability to recall and recount their abuse experiences. Dr. Fiferman testified that most sexual abuse victims suffer from post traumatic stress disorder as a consequence of their experiences. He also testified that victims can experience emotional regression as a consequence. Dr. Fiferman further testified that it is common for victims to dissociate themselves from the experience as a self-defense mechanism; dissociated victims' minds can fail to capture the details of the events that transpired, or may only store a portion of the events. He also gave background on the dynamics of "grooming" of sexual abuse victims by a perpetrator, including the shame and self-blame that a victim experiences as a consequence. As a final characteristic, the following exchange occurred on direct examination:
Q: I just have one final area to discuss with you, and that -- and it's kind of maybe combined in what you've testified to so it could be brief. But just in a short synopsis, you've seen certain behaviors of children that -- have you seen certain behaviors that would tell you that -- potentially lend credibility to the fact that kids have had this occur to them?
Q: Okay. Have you testified to those with this jury?
A: With this jury today, I believe I have. I missed out probably one of the most important ones, and that is that when somebody reports being sexually abused, in the majority of cases, that's the truth. That's the one.
(Emphasis added). Defendant moved for a mistrial contending that Dr. Fiferman's testimony invaded the province of the jury. A brief hearing was held on the motion outside the presence of the jury. Defendant's motion for mistrial was denied.
[¶7.] Defendant was able, however, to object in the jury's presence to the last statement in Dr. Fiferman's testimony as being without foundation and beyond the scope of Dr. Fiferman's expertise. The trial court sustained the objection and instructed the jury to disregard that portion of his testimony. The trial court further instructed that at the conclusion of the case the jury, as the exclusive trier of fact, would determine from all the evidence, excluding Dr. Fiferman's last statement, the veracity of each witness.
[¶8.] The State then called the victims, beginning with K.D., to testify to the events of July 10, 1998, and September 11, 1998. After K.D. testified, the recordings of her prior interviews with police were played for the jury. After each victim testified live, the relevant interviews for each witness were played for the jury. Based on the physical appearance of the victims and the ages each gave on the videotapes versus on the witness stand, it became obvious to the jury that the allegations happened approximately ten years prior to trial.
[¶9.] During K.D.'s direct testimony in 2008, she testified that on the night of her birthday party, Defendant tried to lick her "private parts," however K.D. closed her legs. K.D. testified that she could not remember what her father did next. When asked if her father tried to touch K.D. in any other sexual manner that night, K.D. replied "I don't remember." On cross-examination K.D. testified as follows:
Q: Ma'am, is it your position here today that your father did more than touch your vagina with his penis?
Q: Okay. What did your father do with his penis ...