CONSIDERED ON BRIEFS ON AUGUST 29, 2016
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE ROBIN J. HOUWMAN
J. JACKLEY Attorney General JOHN M. STROHMAN Assistant
Attorney General Pierre, South Dakota Attorneys for plaintiff
J. BLOUIN Minnehaha County Public Defender Sioux Falls, South
Dakota Attorneys for defendant and appellant.
During defendant's trial on an allegation of rape in the
second degree, defendant moved the circuit court to order the
prosecutor to produce any summaries written by the prosecutor
or by others in the prosecutor's office documenting the
victim witness's oral declarations about the alleged
rape. The court denied defendant's motion after
concluding that SDCL 23A-13-10(4) did not mandate production.
The jury found defendant guilty. Defendant appeals. We
reverse and remand.
On September 28, 2014, in Sioux Falls, South Dakota, Cheryl
Walking Crow called 911 to report that she had been raped
earlier that morning. She explained that she had walked to a
cement enclosure next to the Salvation Army building to sleep
when a man approached her and raped her. Sioux Falls police
officers Bridget O'Toole and Craig Boetel responded.
Officer O'Toole noted that she did not observe any
physical injuries on Walking Crow. Both officers took Walking
Crow to the area near the Salvation Army building. There, the
officers observed a man sleeping on the ground. The man,
later identified as Keith Horned Eagle, appeared intoxicated.
A preliminary breath test reported his blood alcohol content
at 0.247 percent. According to Officer O'Toole, Horned
Eagle claimed that he did not remember that he had been
sleeping in the enclosure or whether a female was also
sleeping there the night before. Horned Eagle agreed to speak
with law enforcement at the Law Enforcement Center. Horned
Eagle also consented to give buccal, finger, and penile swabs
for DNA purposes and to give the officers his clothing and
other items from the scene for testing.
The officers took Walking Crow to Avera Hospital to complete
a sexual assault examination. The vaginal, cervical, oral,
and anal perineum swabs obtained from Walking Crow were
tested for evidence of semen. They also tested Walking
Crow's underwear. As part of Walking Crow's sexual
assault examination, the nurse collected from Walking Crow
various swabs, fingernail scrapings, and pubic hair samples.
The nurse also examined Walking Crow's body for evidence
of injuries, finding none.
On December 31, 2014, a grand jury indicted Horned Eagle with
one count of second-degree rape in violation of SDCL
22-22-1(2). Horned Eagle pleaded not guilty. A jury trial
began on May 6, 2015. The emergency room nurse, Jennifer
Canton, testified that she did not take any photographs of
Walking Crow because she observed no sign of injuries. Canton
also testified that Walking Crow reported that she knew her
attacker as an acquaintance. Canton relayed that Walking Crow
reported that she knew her assailant as "Keith."
A forensic scientist with the State of South Dakota, Amber
Bell, testified with regard to the DNA testing of the sexual
assault kit obtained from Walking Crow and the swabs and
items collected from Horned Eagle. Horned Eagle's penile
swab contained a DNA profile matching Walking Crow. One of
Horned Eagle's finger swabs contained the DNA profiles of
Horned Eagle and Walking Crow. According to Bell, the DNA
matching Walking Crow obtained from Horned Eagle's swab
samples did not indicate from what part of Walking Crow's
body the DNA originated. The sample could be from Walking
Crow's skin cells, her hands, her mouth, her vagina, etc.
Bell also testified that no swab from Walking Crow's
person indicated the presence of semen and her underwear
tested negative for the presence of semen. Because Bell
detected no seminal fluid on the swabs from Walking Crow,
Bell conducted no other tests to determine the presence of
Horned Eagle's DNA on Walking Crow.
Walking Crow testified about the events leading up to the
rape. She said she went to her friend Doug's house to
shower before leaving to eat at The Banquet. After her meal,
she walked to a gas station to purchase beer. She said that
she ran into Horned Eagle as she exited the gas station and
said hello to him while walking by. Walking Crow relayed that
after obtaining the beer she went to a park to meet a friend.
Walking Crow claimed that at the park she again saw Horned
According to Walking Crow, later that night she went to a
friend's house and continued drinking alcohol. She left
her friend's house after midnight and went back to
Doug's. Nobody was at Doug's house, and Walking Crow
found her pillows and blankets laying outside the house. She
took them and walked toward the Salvation Army to sleep. She
reported that she believed someone was walking behind her. On
redirect, Walking Crow testified that Horned Eagle was the
person walking behind her.
Once Walking Crow reached the cement enclosure by the
Salvation Army building, she laid out her blankets on the
ground and began drinking more alcohol. Walking Crow said
that Horned Eagle sat down and had a couple drinks with her
while the two of them talked. She said that at some point
Horned Eagle stood up, took his pants off, and attempted to
make Walking Crow give him oral sex. She claimed she pushed
him away. She said Horned Eagle pushed her down and took her
pants off. Walking Crow claimed she kicked and struck Horned
Eagle but succumbed to his strength. She said Horned Eagle
struck her in the chest with his knee, put his forearm
against her throat, and pushed a pillow down on her face.
Walking Crow explained that she was scared and stopped
fighting. She said that, at that point, Horned Eagle
vaginally penetrated her with his penis. She recalled that