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State v. Janis

Supreme Court of South Dakota

May 18, 2016

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
CLEVE ROBERT JANIS, JR., Defendant and Appellant

         Considered on Briefs January 11, 2016.


         MARTY J. JACKLEY, Attorney General, KIRSTEN E. JASPER, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

         JOHN R. MURPHY, Rapid City, South Dakota, Attorney for defendant and appellant.

         SEVERSON, Justice. GILBERTSON, Chief Justice, and ZINTER and WILBUR, Justices, concur. KERN, Justice, concurs in part and dissents in part.


         SEVERSON, Justice.

          [¶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 asked:

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?

         The 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 objected:

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 before. Yes?
Murphy: I have, yes. People have different--I mean, they obviously react differently, and it's not uncommon for ...

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