on Briefs January 11, 2016.
FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT FALL
RIVER/SHANNON COUNTY, SOUTH DAKOTA. THE HONORABLE ROBERT A.
J. JACKLEY, Attorney General, KIRSTEN E. JASPER, Assistant
Attorney General, Pierre, South Dakota, Attorneys for
plaintiff and appellee.
MURPHY, Rapid City, South Dakota, Attorney for defendant and
Justice. GILBERTSON, Chief Justice, and ZINTER and WILBUR,
Justices, concur. KERN, Justice, concurs in part and dissents
[¶1] A jury convicted Cleve Robert Janis,
Jr. of third-degree rape (victim incapable of giving consent
due to intoxication) on January 14, 2015. Janis appeals his
conviction, arguing that the circuit court erred when it
admitted undisclosed expert testimony. Janis also argues that
the prosecutor committed misconduct through various
statements during trial and that there was improper contact
between a juror and a spectator. We affirm.
[¶2] The jury in this case heard evidence
that Janis married Jamie Moreno on August 23, 2013, in Hot
Springs, South Dakota. J.E., the victim in this case, was
Moreno's maid of honor. After the ceremony, J.E. consumed
a large number of alcoholic drinks at the reception. At
approximately 1:00 a.m., J.E. received a ride to the home of
Janis and Moreno, where she was staying the night. At the
time, her speech was quite slurred and she appeared very
intoxicated. She did not remember how she made her way to the
spare bedroom or how she made it into bed.
[¶3] About an hour after J.E. left the
reception, Janis and Moreno returned to their home. Janis was
intoxicated. Wedding guests stated that Janis had consumed a
large number of alcohol drinks at the reception. When Janis
and Moreno arrived, J.E. was already asleep in the spare
bedroom. Janis continued to drink champagne. At some point,
he wanted a cigarette and left his bedroom.
[¶4] J.E. was awakened by someone lying in
bed behind her, placing his penis into her anus. She did not
know who the person was, asked " who is this?" and
followed the question by repeating the words "
stop" and " no." J.E. remembered being
somewhat awake, but testified that she was "
frozen" during the assault. She recalled passing out
again sometime later.
[¶5] In the morning, J.E. awoke to find
Janis in her room, clothed only in his boxers. When he
attempted to have sex with her, J.E. rejected his advance and
asked him if he knew who had sex with her the night before.
He told her that he thought there had been a tall stranger in
the house, and that it may have been him. However, Janis did
admit to the authorities early in the investigation that he
had sex with J.E., but alleged that it was consensual.
[¶6] Shortly after Janis left her room, J.E.
met Moreno in the bathroom and told Moreno what she could
remember from the previous night, including the fact that she
did not know who had sex with her. Moreno suggested that J.E.
report a rape to the authorities and go to the hospital. J.E.
testified that she was scared and just wanted to leave town
to make it to her new job on time, so she left Hot Springs
that morning without going to the police or hospital.
However, J.E.'s mother stopped at J.E.'s work later
that day and convinced her to report a rape, and J.E. agreed
to go to the hospital after work, where a sexual assault
examination was performed. J.E. reported the incident to the
police five days later.
[¶7] On December 10, 2013, Janis was charged
with third-degree rape. A jury trial was held on January 13
and 14, 2015. The prosecutor at trial was the State's
Attorney for Fall River County. Janis's appellate counsel
is a different attorney than his trial counsel. Janis's
theory at trial was that the sex was consensual. However, the
prosecution's theme--beginning with voir dire and
culminating in the State's closing argument--focused on
broken marriage vows and character. In voir dire, the
prosecutor questioned the potential jurors about wedding vows
and how keeping those vows relate to a person's
character. This theme of honoring wedding vows recurred
throughout the entire trial. He told the jurors, " And
when you think of this case, think about those vows and what
those vows mean. And those vows are only as good as the
character of the person taking those vows."
[¶8] The prosecutor repeatedly referred to
the importance of vows during his cross-examination of Janis
and in closing arguments. He began closing argument by
stating, " [M]aybe this is what the case is all about,
maybe the case is all about those vows are only as strong as
the person's character that took those vows. Maybe
that's what this case is about." Later in closing he
continued, " And this goes to character. This goes to
the character of the person that took the vows, and that is
essentially what I'm asking you to judge is, I'm
asking you to judge Cleve Janis and his character when he
took those vows." Finally, he ended in rebuttal argument
with, " And what we're talking about is Cleve Janis
- and I'm going to finish up with it because we started
with it. Those vows are only as good and only as strong as
the person and their character taking those vows." The
defense did not object to any of these statements made by the
prosecutor during trial.
[¶9] The prosecution's first witness on
the second day of trial was J.E. During cross-examination,
the defense asked her why she waited to report the crime and
whether or not she was truly " frozen" during the
incident. After J.E.'s testimony, the prosecutor called
Karen Murphy, the Certified Nurse Practitioner that
supervised J.E.'s sexual assault examination. The
prosecutor sought her opinion regarding J.E.'s claim that
she was " frozen" during the assault. The
prosecutor first asked, " Now, in your training in
dealing with rape victims, we've had testimony about
freezing, frozen, can't move. Is that a normal response
when being raped?" The defense objected to this question
for lack of foundation, and the trial court sustained the
objection. The prosecutor then asked Murphy about her
education and training regarding the treatment of rape
victims. Murphy stated that she had received generalized
training for emergency medicine and mental health that
encompassed the treatment of rape victims. The prosecutor
Then I'll ask you, based upon your experience, your
continuing education, the degree that you've got, the
hundreds of--or approximately a hundred rape victims that
you've dealt with, based upon all that, have you ever
had--based upon all that, is it common or at least does it
occur that when a woman is being raped, that she will freeze?
defense again objected, arguing that there had been no notice
of expert testimony for this topic. Through discovery prior
to trial, the defense had requested the disclosure of expert
witnesses and their opinions, and the prosecution did not
identify Murphy's opinion to be that rape victims freeze.
The trial court sustained the objection. The prosecutor then
followed up with, " Have you ever heard of a woman
freezing while she's being raped?" The defense again
Defense: Objection. I don't know if
she's going to make the statement in some sort of expert
capacity, but I expect that she will, and there's been no
notice of that.
The Court: Well, we're not talking in
expert opinions, so that's overruled at this point.
We'll see where it goes.
Murphy: Um, yes, um--can you ask me again?
Prosecutor: You've experienced it
Murphy: I have, yes. People have
different--I mean, they obviously react differently, and
it's not uncommon for ...