Considered on Briefs on Aug. 27, 2013.
Rehearing Denied Jan. 22, 2014.
Margaret V. Gillespie of Gubbrud, Haugland & Gillespie, LLC, Alcester, South Dakota, Attorneys for petitioner and appellant.
Marty J. Jackley, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent and appellee.
[¶ 1.] Petitioner, Robert Lee Thompson, was convicted by a jury in 1995 of child rape, sexual contact, disseminating harmful material to minors, and indecent exposure. In the same trial, he was acquitted of raping two other children. Ten years later, in his second habeas corpus proceeding, the counseling records for the child he was convicted of raping were first disclosed. Thompson argued that he was prejudiced by the State's suppression of these records, because, had they been disclosed in 1995 when they were requested and ordered to be turned over, the jury would have acquitted him of all rape charges. Although the habeas court agreed that the evidence could have impeached the child's testimony and was suppressed by the State, it denied relief, ruling that Thompson had not established prejudice.
[¶ 2.] In March 1994, after learning about " good" touch and " bad" touch in church classes, C.B., then age seven, told her father that two years earlier " Uncle Bob" (Thompson) made her watch dirty movies. She shared this with her father after he came home with movies for his children to watch that evening. He relayed the information to C.B.'s mother, Penny, and his sister-in-law, Kim B. Penny told C.B.'s school counselor, who reported the abuse to Carol Madsen of Child Protection Services in Nebraska. Madsen arranged for C.B. to be interviewed by Kathy O'Brien, a licensed social worker experienced in interviewing sexually abused children.
[¶ 3.] C.B. told O'Brien that when Uncle Bob lived in South Dakota, he used to babysit her and her sister, A.B. C.B. disclosed that Uncle Bob made her watch a dirty movie she called the " cowboy" movie, which began with men and women wearing cowboy outfits. She said that Uncle Bob's pants were down and his hand was moving on his penis and " white" and " yellowish" " stuff would splatter out" of his penis. She said that Uncle Bob told her he would kick her in the face if she would not watch the movie. C.B. also claimed that Uncle Bob said he would kill her mom and dad if
she told. She made no claim that Uncle Bob touched her.
[¶ 4.] Uncle Bob (Thompson) was married to Mary, the sister of C.B.'s father. Mary and Thompson did not have children of their own, but cared regularly for the many children in the B. extended family, including the daughters of Kim B. When Thompson would babysit these children, Mary was not always at home. She worked varying hours as a nurse, and Thompson was unemployed. During these times, Thompson cared for C.B. regularly because C.B.'s mother was on bed rest with her pregnancy and C.B.'s father worked during the day.
[¶ 5.] After O'Brien interviewed C.B., Chief of Police Avery " Skip" Ensley of North Sioux City, South Dakota, began a formal investigation. On March 28, 1994, he completed a warrant application for Thompson's arrest. The application was based on allegations that Thompson disseminated harmful material to minors, engaged in sexual contact with a child under sixteen years old, and indecently exposed himself. Thompson lived in Nebraska at the time.
[¶ 6.] On April 4, 1994, Chief Ensley interviewed Thompson in Nebraska. Thompson came to the interview voluntarily and was informed by Chief Ensley that he was not under arrest. In a closed-door interview that lasted about an hour and a half, Thompson admitted that he exposed C.B. to a pornographic movie and masturbated in front of her. He also admitted that C.B. touched his penis. The interview was videotaped. Thompson then wrote a confession, but mentioned nothing about the touching. Thompson was indicted on charges of sexual contact with a child under sixteen, indecent exposure, and disseminating harmful material to minors.
[¶ 7.] Dr. John Shelso performed a medical examination of C.B. He documented his examination with colposcopic photographs, which were later transferred to slides. Based on his physical examination, he found signs that C.B. was vaginally penetrated. The slides confirmed his observations. The results of this examination were shared with Penny and Chief Ensley.
[¶ 8.] C.B. began counseling with Nancy Hines fro Associates for Mental Health in Sioux City. In her notes about a telephone call from Penny on April 26, 1994, Hines wrote that Penny told her that the medical exam indicated evidence that C.B. was vaginally penetrated. Penny told Hines that law enforcement investigators would like C.B. to talk about what happened so rape charges could be filed. But nothing in the April counseling records reveals any claim from C.B. that Thompson touched her. These counseling records were not given to Thompson's lawyers until 2011.
[¶ 9.] On April 28, 1994, C.B. testified at a preliminary hearing. She said Thompson did not touch her. On that same day, O'Brien conducted a forensic interview of Ch.B. (age twelve) and V.B. (age eleven). These girls are Kim B.'s daughters. (Kim B. was on the phone with Penny when C.B.'s father told Penny that Uncle Bob made C.B. watch dirty movies.) O'Brien later testified that she interviewed Ch.B. and V.B. for " exploratory" purposes, because C.B. had claimed that her cousins in the B. extended family were at Thompson's home when Thompson made her watch the pornographic movies. Over the course of the investigation, O'Brien interviewed at least 21 children in the B. extended family. During her " exploratory" interview of Ch.B. and V.B., additional allegations against Thompson arose. Ch.B. and V.B., like C.B., said that Thompson made them watch dirty movies
and, like C.B., said Thompson did not touch them.
[¶ 10.] Dr. Gary Carlton examined Ch.B. and V.B. in May 1994 and documented the examination with colposcopic photographs. Based on the photographic evidence, Dr. Carlton noted evidence suggesting that V.B. was vaginally and rectally penetrated and Ch.B. was rectally penetrated. The girls' mother, Kim B., later testified that she shared the results of this medical examination with Ch.B. and V.B.
[¶ 11.] On May 13, 1994, Thompson posted bond and was released. Upset by his release, the B. family convened what has later been called the " family meeting." During this meeting, which occurred mid-May 1994, Ch.B., V.B., C.B., and Kim B., gathered in a room and talked. Ch.B., V.B., and C.B. later testified at trial that they had talked together about what Thompson did to them. The family members had also met with Chief Ensley when he hosted a barbeque for them at his home.
[¶ 12.] On May 17, 1994, after the family meeting, Kim B. and her husband took their daughters, Ch.B. and V.B., to see Chief Ensley. The girls told him that they had been sexually penetrated by Thompson. Chief Ensley began to ask the girls about the details, but they were reluctant to talk. The girls said that they would feel more comfortable talking to O'Brien, which they did that same day. During O'Brien's separate interviews of Ch.B. and V.B., the girls each said that Thompson had raped them in 1992. They explained to O'Brien that they did not know they had been raped until their mother told them they had.
[¶ 13.] On May 25, 1994, C.B. reported to her counselor that Thompson had digitally penetrated her. In that same counseling session, C.B. talked about the fact that she had recently visited with her cousins who had also been abused by Thompson. Because the counseling records were not given to defense counsel until 2011, ...