#27606-r-LSW

2016 S.D. 67

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                    ****
STATE OF SOUTH DAKOTA,                       Plaintiff and Appellee,

      v.

KEITH WAYNEMCLAIN
HORNED EAGLE,                                Defendant and Appellant.

                                    ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                    ****

                   THE HONORABLE ROBIN J. HOUWMAN
                               Judge

                                    ****

MARTY J. JACKLEY
Attorney General

JOHN M. STROHMAN
Assistant Attorney General
Pierre, South Dakota                         Attorneys for plaintiff
                                             and appellee.


BEAU J. BLOUIN
Minnehaha County
 Public Defender
Sioux Falls, South Dakota                    Attorneys for defendant
                                             and appellant.

                                    ****
                                             CONSIDERED ON BRIEFS
                                             ON AUGUST 29, 2016

                                             OPINION FILED 09/28/16
#27606

WILBUR, Justice

[¶1.]        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.

                                   Background

[¶2.]        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




                                         -1-
#27606

buccal, finger, and penile swabs for DNA purposes and to give the officers his

clothing and other items from the scene for testing.

[¶3.]        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.

[¶4.]        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.”

[¶5.]        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


                                         -2-
#27606

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.

[¶6.]        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 Eagle.

[¶7.]        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.

[¶8.]        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


                                         -3-
#27606

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 Horned Eagle ejaculated inside her. Walking Crow testified that when Horned

Eagle finished, he laid beside her and held her. A few hours later, while Horned

Eagle slept, Walking Crow put on her clothes and walked to the gas station to call

911.

[¶9.]        During a break in Walking Crow’s testimony, counsel for Horned Eagle

informed the circuit court that he would be requesting access to the notes taken by

the prosecutor or notes taken by anyone in the prosecutor’s office that summarized

Walking Crow’s prior oral statements. Counsel claimed that the notes were

discoverable under SDCL 23A-13-10(4). The State objected and argued that the

prosecutor’s notes are protected attorney work product. The court agreed and held

that the prosecutor’s notes (or notes by others in the prosecutor’s office) did not fall

under SDCL 23A-13-10.

[¶10.]       The jury found Horned Eagle guilty of rape. The court sentenced

Horned Eagle to fifty years in prison with ten years suspended. Horned Eagle

appeals and asserts one issue for our review:


                                           -4-
#27606

               Whether Horned Eagle was denied due process when the circuit
               court denied his request to inspect written notes in the
               possession of the prosecuting attorney containing prior
               statements made by Walking Crow.

                                 Standard of Review

[¶11.]         We normally review a court’s discovery decision for an abuse of

discretion. Andrews v. Ridco, Inc., 2015 S.D. 24, ¶ 14, 863 N.W.2d 540, 546. When

the circuit court’s decision raises an issue of statutory interpretation, our review is

de novo. Id.

                                       Analysis

[¶12.]         Horned Eagle contends that the circuit court erred when it denied his

request that the court order the State to produce notes in the possession of the

prosecutor containing summaries of Walking Crow’s prior statements related to the

allegations against him. He avers that the circuit court should have reviewed the

prosecutor’s notes in camera to determine if the notes contained attorney work

product or relevant statements by Walking Crow on the subject matter of her

testimony at trial. According to Horned Eagle, the court’s failure to order the State

to produce Walking Crow’s prior statements violated his right to due process and

his right to confront a witness against him.

[¶13.]         In response, the State seems to believe that Horned Eagle seeks only

the notes summarizing Walking Crow’s grand jury testimony. The State writes,

“Horned Eagle’s request is without merit since the entire verbatim statement of the

grand jury was provided.” According to the State, “[w]hatever small quotes, notes

or impressions that the state’s attorney’s office may have jotted down during

[Walking Crow’s] grand jury testimony are work product[.]” (Emphasis added.)

                                           -5-
#27606

[¶14.]        This case does not involve whether the State is obligated to produce

notes taken by the prosecutor or others in the prosecutor’s office during a witness’s

grand jury testimony. In fact, Horned Eagle makes clear he does not seek the notes

taken during Walking Crow’s grand jury testimony. This case concerns whether

“[a] summary of an oral declaration made by someone other than the witness that

has been reduced to writing” under SDCL 23A-13-10(4) includes the summaries of

Walking Crow’s oral declarations made by the prosecutor or others in the

prosecutor’s office.

[¶15.]        According to the State, subsection (4) should not be interpreted to

include a prosecutor’s notes taken while interviewing a witness because the “main

objective” of the overall statutory scheme is akin to the federal rule—to allow for

“discovery of verbatim or near verbatim statements by the testifying witness.” A

comparison of the federal rule against South Dakota law, however, reveals that the

federal rule does not contain the statutory language at issue here. Compare 18

U.S.C. § 3500(e) (Jencks Act) with SDCL 23A-13-10.

[¶16.]        Under SDCL 23A-13-7, “[a]fter a witness called by the prosecuting

attorney has testified on direct examination, the court shall, on motion of the

defendant, order the prosecuting attorney to produce any statement, as defined by

SDCL 23A-13-10, of the witness in the possession of the prosecuting attorney which

relates to the subject matter as to which the witness has testified.” A “statement” is

defined to include, “in relation to any witness called by the prosecuting attorney”:

              (1) A written statement made by such witness and signed or
                  otherwise adopted or approved by him;
              (2) A stenographic, mechanical, electrical, or other recording, or
                  a transcription thereof, which is a substantially verbatim

                                          -6-
#27606

                 recital of an oral statement made by such witness and
                 recorded contemporaneously with the making of such oral
                 statement;
             (3) A statement, however taken or recorded, or a transcription
                 thereof, if any, made by such witness to a grand jury;
             (4) A summary of an oral declaration made by someone other
                 than the witness that has been reduced to writing.

SDCL 23A-13-10. In contrast, the Jencks Act does not have a provision similar to

subsection (4). It provides that “[t]he term ‘statement’, as used in subsections (b),

(c), and (d) of this section in relation to any witness called by the United States,

means”:

             (1) a written statement made by said witness and signed or
             otherwise adopted or approved by him;
             (2) a stenographic, mechanical, electrical, or other recording, or
             a transcription thereof, which is a substantially verbatim recital
             of an oral statement made by said witness and recorded
             contemporaneously with the making of such oral statement; or
             (3) a statement, however taken or recorded, or a transcription
             thereof, if any, made by said witness to a grand jury.

18 U.S.C. § 3500(e).

[¶17.]       Nonetheless, the State also directs this Court to State v. Muetze, where

we held that the police officer’s original notes were not subject to production. 368

N.W.2d 575, 580 (S.D. 1985). But Muetze is distinguishable. In Muetze, the

defendant sought to discover the investigating officer’s original notes to “search” for

“information which could be used to impeach prosecution witnesses.” 368 N.W.2d at

580. The State had already given to defendant the “typed or handwritten reports

from each investigating officer[.]” Id. And the Court noted that “all ‘statements’

were turned over to Muetze’s counsel prior to trial.” Id. at 581. Here, on the other

hand, the State has not made any similar assertion that it has produced all

statements under SDCL 23A-13-10(4).

                                           -7-
#27606

[¶18.]       Alternatively, the State submits that ordering the production of the

prosecutor’s notes from interviews with a witness “would subject prosecutors to be

called regularly as witnesses . . . to explain comments they made while talking with

witnesses.” The State claims that “a prosecutor might be fearful that mere visiting

with a witness might subject personal thoughts, comments, opinions, theories or

impressions to become part of the defendant’s discovery.” The State disagrees that

having a court review the notes in camera would remedy that concern. According to

the State, having a court review the notes in camera and ordering redaction “could

result in road blocks to the prosecutor’s responsibility to do justice and thoroughly

investigate a case.”

[¶19.]       First, SDCL 23A-13-5 protects attorney work product. It provides that

chapter 23A-13 “does not authorize the discovery or inspection of reports,

memoranda, or other internal prosecution documents made by the prosecuting

attorney or other employees of law enforcement agencies in connection with the

investigation or prosecution of the case[.]” SDCL 23A-13-5. Second, SDCL 23A-13-

10(4) is unambiguous, and the State presents no alternative interpretation. Upon

Horned Eagle’s motion, the State was required to produce any summary of Walking

Crow’s oral declarations written by someone other than Walking Crow on the

subject matter of Walking Crow’s testimony.

[¶20.]       By no means is SDCL 23A-13-10(4) intended to give defense attorneys

access to the prosecutor’s attorney work product. But Horned Eagle has a

constitutional right to due process and a right to confront his accusers. “In all

criminal prosecutions the accused shall have the right . . . to demand the nature


                                          -8-
#27606

and cause of the accusation against him; to have a copy thereof; to meet the

witnesses against him face to face[.]” S.D. Const. art. VI, § 7; see also S.D. Const.

art VI, § 2. Here, the credibility of Walking Crow’s testimony was crucial to the

State’s case. There were no eyewitnesses, and the evidence presented at trial

conflicted with Walking Crow’s previous statements. For example, Walking Crow

claimed that Horned Eagle ejaculated into her vagina, but seminal fluid testing

indicated that no semen was present in Walking Crow’s vagina, on her person, or in

her underwear. And the forensic expert testified that the presence of semen would

remain detectible anywhere from twenty-four hours to three days. Walking Crow’s

person and clothing were tested within five hours of the incident. Walking Crow

also claimed to have been pushed by Horned Eagle, that a struggle ensued on the

ground, and that he held her down with a knee on her chest. The police officers and

the nurse testified that they found no injuries on Walking Crow’s person.

[¶21.]       Because SDCL 23A-13-10(4) unambiguously requires the State to

produce any “summary of an oral declaration made by someone other than the

witness that has been reduced to writing[,]” the circuit court erred when it denied

Horned Eagle’s motion. Horned Eagle is entitled to have notes in the possession of

the prosecutor containing summaries of Walking Crow’s prior statements related to

the allegations against him produced for an in camera review by the circuit court to

determine if those notes contain discoverable statements under SDCL 23A-13-10(4).

See, e.g., People v. Szabo, 447 N.E.2d 193, 201-02 (Ill. 1983); see also Dakota Minn.

& E. R.R. Corp. v. Acuity, 2009 S.D. 69, ¶ 49, 771 N.W.2d 623, 637 (“the preferred

procedure for handling privilege issues is to allow for an in camera review of the


                                          -9-
#27606

documents”). If, after an in camera review of the notes, the court concludes that the

notes contain discoverable statements under SDCL 23A-13-10, which could have

affected the outcome of the trial, the court is directed to vacate Horned Eagle’s

judgment of conviction and sentence and schedule a new trial. See State v.

Birdshead, 2015 S.D. 77, ¶ 49, 871 N.W.2d 62, 79 (the suppressed evidence must be

prejudicial in nature for defendant to receive a new trial). If, on the other hand, the

notes do not contain statements discoverable under SDCL chapter 23A-13, the

circuit court is directed to enter a new judgment of conviction and impose the same

sentence.

[¶22.]       Reversed and remanded.

[¶23.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,

Justices, concur.




                                         -10-
