State v. Reay

#24477-a-JKK

2009 SD 10
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

BRAD REAY, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
HUGHES COUNTY, SOUTH DAKOTA

* * * *

HONORABLE KATHLEEN F. TRANDAHL
Judge

* * * *
LAWRENCE E. LONG
Attorney General

STEVEN R. BLAIR
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.

TIMOTHY J. RENSCH of
Rensch Law Office Attorneys for defendant
Rapid City, South Dakota and appellant.

* * * *
ARGUED OCTOBER 1, 2008

OPINION FILED 02/11/09
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KONENKAMP, Justice

[¶1.] Defendant appeals his conviction for the murder of his wife. We

affirm.

Background

[¶2.] Defendant, Brad Reay, his wife, Tamara (Tami), and their daughter,

Haylee, lived in Pierre, South Dakota. Defendant was an assistant manager at

Wal-Mart. Tami worked in the shoe department at Kmart. She met Brian Clark,

who also worked at Kmart. He was married with children. In December 2005,

Tami and Brian began an affair.

[¶3.] In the first week of February 2006, Tami told defendant she wanted to

date other people: she wanted a divorce. Defendant wanted to work things out. He

even called Tami’s mother, Bonnie Burns, asking that she help convince Tami to

salvage the marriage. Tami would not relent. She suggested a divorce after

Haylee’s current school year ended.

[¶4.] On Tuesday, February 7, 2006, Tami and Brian met at the Fawn

Motel. In the afternoon, Tami went to the Georgia Morse Middle School to watch

her daughter play basketball. Following basketball and fast food, Tami and Haylee

went shopping, and then headed home. Haylee was in bed by 9:00 p.m. Later, in

describing that night, Haylee, age thirteen, would tell a jury that while she was

awake in bed, defendant opened her bedroom door: “He had a bunch of clothes in

his arm and I asked him what he was doing. . . . He just said ‘nothing’ [a]nd he put

the clothes down and then came and laid with me.” He told her he loved her. She

fell quickly back to sleep. When defendant woke her the next morning, Haylee

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noticed that the laundry machines were running. She asked where her mother was,

and defendant responded that she was in bed. Tami and defendant had separate

bedrooms. Haylee went to her mother’s bedroom, but all she found was an unmade

bed. Her mother’s cell phone was on the dresser. She looked in the garage and

found her mother’s car there. She discovered her mother’s purse in the kitchen.

When she told her father that her mother was not in the house, he replied that she

had a boyfriend and she might be at his home. As he drove her to school that

morning, defendant told Haylee, “Don’t tell anybody [about Tami not being home]

because it’s personal.” Haylee recalled that on the Sunday previous to her mother’s

disappearance, when she first learned from her parents that they were getting a

divorce, her father was “acting weird. . . . He wouldn’t eat and he’d just sit in his

bed and not talk or anything.”

[¶5.] Tami commonly telephoned her mother, Bonnie, every day. When

Bonnie did not receive a call from Tami on Wednesday, February 8, 2006, she called

Haylee at her school. Haylee said that the last time she saw her mother was the

previous evening. Bonnie then called Brian at Kmart to ask if he had seen Tami.

She was scheduled to work at 10:00 a.m., but failed to show up. Brian called the

Pierre Police Department and reported Tami missing. He disclosed to Lieutenant

Dave Panzer his affair with Tami and expressed his fear that defendant may have

done something to her.

[¶6.] Lieutenant Panzer contacted Detective David DeJabet to assist in the

missing person investigation. Detective DeJabet sent Detective Troy Swenson to

the Georgia Morse Middle School to talk to Haylee. In the meantime, Lieutenant

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Panzer and Detective DeJabet went to defendant and Tami’s home. Lieutenant

Panzer knocked on the front door, but nobody answered. Detective DeJabet went to

the back door and looked through a window into the garage. He saw a parked black

Dodge Durango. He also noticed “a reddish brown stain on the door.”

[¶7.] With mounting apprehension, Lieutenant Panzer called Patrol Officer

Leasa McFarling to watch the house while Detective DeJabet and Lieutenant

Panzer met with defendant in the security office at Wal-Mart. The officers

explained to defendant that they had concerns that Tami was missing. Defendant

told the officers that when he got home the night before, Tami was not there.

Defendant said that at 1:00 a.m. he heard a vehicle pull into the driveway. He

looked and saw the Durango parked there, without Tami, and another vehicle

driving away. Defendant said he pursued the vehicle in the Durango, but without

success.

[¶8.] Lieutenant Panzer and Detective DeJabet then asked if defendant

would meet them at defendant’s home to see if Tami had returned. Defendant

agreed and accepted a ride with the officers. Officer McFarling was still at the

home when Lieutenant Panzer, Detective DeJabet, and defendant arrived.

Detective Troy Swenson showed up shortly thereafter. Lieutenant Panzer asked

defendant for written consent to search his home and vehicles. He consented, and

Detectives Swenson and DeJabet and Lieutenant Panzer entered the residence

together. Defendant waited outside. During the search, the officers saw what

appeared to be a blood droplet on the garage floor. They also smelled a strong odor

of cleaning solution coming from the Dodge Durango. Detective DeJabet suspected

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homicide. He directed the officers to stop the search while a search warrant was

obtained.

[¶9.] Defendant was taken to the police station, where he was interviewed

by Detective Swenson, Lieutenant DeJabet, and Division of Criminal Investigation

Agent Guy DiBenedetto. The interview lasted five hours. Defendant repeatedly

denied doing anything to Tami and denied knowing anything concerning her

whereabouts.

[¶10.] As defendant was being interviewed, Special Agent Michael Braley, a

crime scene investigator, along with other law enforcement officers, executed a

search warrant on defendant’s home and vehicles. The search revealed that the

Dodge Durango had been freshly cleaned and that there was fresh laundry on

defendant’s bed and in the washer and dryer. Swabbed samples were taken from

the blood spot on the garage floor, the washer, certain walls, a light switch, trim, a

bed, and Tami’s dresser. After defendant’s interview, he was arrested for first

degree murder and taken to the Hughes County Jail.

[¶11.] Two days later, a pilot flying a National Guard helicopter spotted a

body by the emergency spillway at Oahe Dam. It was Tami. Her body, nude, throat

slashed, had been stabbed over thirty times. A knife-riddled t-shirt and bloody

gloves were nearby. She was taken to Rapid City for an autopsy, where a

pathologist, Dr. Donald Habbe, obtained her fingernail scrapings, DNA samples,

rectal and vaginal swabs, and blood samples.

[¶12.] While defendant was in custody awaiting trial, he carried on various

conversations and correspondence with his twin brother, Bret. These were

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monitored by the Hughes County Jail. Bill Dodge, the administrator at the jail,

released the recorded conversations and photocopied correspondence to Agent

DiBenedetto and Hughes County Sheriff, Mike Leidholt. In one such

correspondence was a map drawn by defendant, purporting to tell Bret where the

good fishing spots were around Oahe Dam. Using this map and other information

gathered during defendant’s conversations with Bret, Agent Braley and the

Watertown Search and Rescue Team, aided by a bloodhound and cadaver dog,

uncovered three City of Pierre garbage bags containing bloody linens, rubber gloves,

bloody blankets, panties, a bloody tarp, and a box of condoms with one missing. The

garbage bags were hidden in a row of juniper hedges, vegetation similar to what law

enforcement officers collected from the bottom of defendant’s shoes. Also, the

garbage bags were the same type as those found in defendant’s garage.

[¶13.] During another monitored exchange between defendant and his

brother, defendant had Bret hand copy a letter defendant had written. After

copying the letter to a notebook, Bret left the jail. Later that day he was

apprehended in Spearfish, South Dakota, and a warrant was issued to search his

car. His notebook was confiscated. Bret told the officers that he had copied a letter

from defendant and sent it to four people as directed by defendant.1 The following

day, the Attorney General’s office received four anonymous letters, supposedly

written by a cousin of Tami’s killer, disclosing an unknown detail: Tami was

“raped, lost rubber in ass.” After seeing these letters, Agent DiBenedetto asked the

1. Bret was indicted on four counts of accessory to murder. He pleaded guilty to
two counts and was awaiting sentencing at the time of defendant’s trial.

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pathologist, Dr. Habbe, to re-examine Tami’s body, which was still in the morgue in

Rapid City. The examination revealed that a condom was in fact in her rectum.

[¶14.] Defendant was indicted for first degree murder or in the alternative

first degree manslaughter. The jury trial lasted two and a half weeks. During the

trial, defendant objected to the admission of numerous pieces of evidence, ranging

from knives, clothing, tarps, letters, documents, allegedly bloody bed sheets, and

swabs of spots purportedly containing blood. Defendant argued that the State

failed to establish a sufficient chain of custody because it did not offer testimony

from the custodian at the State Crime Lab responsible for the care and custody of

the evidence. According to defendant, the State’s chain of custody evidence did not

prove that the evidence remained in an unaltered state. The court, however,

concluded that a sufficient chain of custody was established and admitted the

evidence.

[¶15.] Defendant also objected when the State attempted to argue that,

although it never compared Haylee’s DNA to the DNA collected, it could exclude the

presence of Haylee’s DNA because the State knew the DNA profiles of her parents.

According to defendant, the opinion that the presence of a child’s DNA could be

excluded based on the parents’ DNA profiles was an opinion not disclosed before

trial. This testimony, defendant argued, justified a mistrial because it violated the

court’s discovery order that required the State to disclose the opinions of its

testifying experts before trial. The court allowed the testimony and denied

defendant’s mistrial motion.

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[¶16.] Tami’s mother, Bonnie, testified at trial. When she was cross-

examined by the defense, she was asked about her statement to a social worker that

Haylee was normally an emotional child, but on the day of Tami’s murder she was

particularly calm. In response, the State asked Bonnie on re-direct examination

whether Bonnie had a similar situation take place in her family that allowed her to

see people’s reactions to a tragedy. Defendant objected on the ground that the

testimony was irrelevant and prejudicial. The court overruled his objection and

allowed the testimony. Also overruled was defendant’s hearsay objection when the

State offered a box of Vivarin into evidence and had defendant read aloud the

warning label on the box.

[¶17.] In his defense, defendant maintained that his daughter Haylee killed

her mother. He concealed the homicide for Haylee, he said, because he “didn’t want

her to get in trouble.” He testified that on the night Tami was killed, he found

Haylee standing by Tami’s dead body holding a knife. Haylee said nothing when

defendant asked her, “Haylee, what have you done.” According to defendant,

Haylee had blood on her face and hands, and was bleeding from the nostrils. He

described Haylee as “Catatonic or in shock. I can’t really say.” He told the jury that

to conceal what Haylee had done, he washed the blood from her, cleaned the scene,

planted a condom in Tami’s rectum, hid evidence, dumped Tami’s body by the

Missouri River, lied to law enforcement officers during their investigation, and tried

to direct suspicion toward Brian Clark.

[¶18.] In support of his defense that Haylee killed her mother, defendant

proposed the following jury instruction: “Any person who committed the act

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charged without being conscious thereof is incapable of committing such crime.” He

requested this instruction based on his theory that when Haylee stabbed her

mother she was not conscious, and thus, could not be held legally responsible.

Defendant asserted that the proposed instruction would diminish the impact of his

accusation against his daughter and allow him to argue that he was guilty of some

lesser crime than murder. The court rejected the proposed instruction on the

grounds that it was not relevant to defendant’s guilt or innocence, would generate

speculation and conjecture, and was inappropriate because Haylee was not on trial.

[¶19.] The jury found defendant guilty of first degree murder and the court

imposed the mandatory sentence of life in prison without the possibility of parole.

On appeal, defendant asserts that the trial court erred when it (1) determined that

a proper chain of custody had been established for various pieces of evidence; (2)

allowed Bonnie to testify that she had previously gone through a similar experience

in her family; (3) failed to give his theory of the defense instruction; (4) denied his

mistrial motion for violation of the discovery order; and (5) admitted the box of

Vivarin over his hearsay objection.

Analysis and Decision

1. Chain of Custody

[¶20.] During the trial, the court admitted numerous pieces of evidence over

defendant’s objection that the State failed to establish a sufficient chain of custody

to show that the evidence had not been altered, tampered with, or changed. It is

undisputed that the State did not offer the testimony of the evidence custodian, the

only person with personal knowledge about what happened with the evidence after

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it was placed in the State Crime Lab. The State did offer, however, the testimony of

the person who collected or created the evidence, and, when necessary, the analyst

at the State Crime Lab who tested it.

[¶21.] Defendant contends that a proper chain of custody was not established

for the buccal swab of Brian Clark; the DNA swab of defendant; Tami’s blood

sample; hairs from defendant; the outside and inside of a right-hand glove; the

inside and outside of a t-shirt; swabs of the exterior of the home garage door, garage

floor, bedroom wall, downstairs bedroom dresser, the passenger side rear wheel well

of the Dodge Durango, the front middle seat center cushion of the Durango, and the

steering wheel column of the Durango; the plants and fibers from the back of a t-

shirt; and the vaginal and rectal swabs and the hairs from Tami’s body.

[¶22.] Trial courts have broad discretion in determining “the competency of

chain of custody evidence.” State v. Lownes, 499 NW2d 896, 901 (SD 1993) (citing

State v. Wimberly, 467 NW2d 499 (SD 1991); State v. Miller, 429 NW2d 26 (SD

1988)). “In considering the admissibility of demonstrative evidence, the trial judge

must be satisfied in reasonable probability that the object sought to be admitted is

the one involved in the case, and that it has not changed in important respects.”

State v. Serl, 269 NW2d 785, 788 (SD 1978) (citing State v. Christmas, 83 SD 506,

162 NW2d 125 (1968)). We review a court’s chain of custody decision under the

abuse of discretion standard. Lownes, 499 NW2d at 901.

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[¶23.] To be sure, the State makes no claim that a complete chain was

presented for each piece of evidence. 2 It maintains, however, that a sufficient chain

of custody was established to allow the court to conclude with reasonable

probability that no tampering or substitution occurred. The State further argues

that absent evidence from defendant of tampering or substitution, mere speculation

is insufficient to defeat admission of the evidence.

[¶24.] Defendant, in contrast, insists that the burden is on the State “from

the outset” to establish a proper chain of custody and that such “is more than a

mere formality.” According to defendant, when he made an appropriate objection,

the court should not have admitted this evidence, which is indistinguishable, not

readily identifiable, and easily susceptible to alteration, substitution, tampering, or

contamination, without authenticating testimony from the evidence custodian. The

custodian, the defendant avers, is the only person that could “tie the gap” in the

chain of custody.

[¶25.] “The ‘chain of custody’ rule, requiring the prosecution to account for

the whereabouts of physical evidence connected with a crime from the time of its

2. The State concedes that with respect to two pieces of evidence challenged by
defendant, the chain of custody is “not as complete.” Nonetheless, the State
insists that “the totality of the testimony from all witnesses, including the
markings present on the exhibits, created a sufficient chain of custody for
these items as well.” Criminalist Kandy Smith testified about the vaginal
and rectal swabs of Tami. She stated that she examined the swabs, but the
State did not ask her whether the swabs appeared to be in the same condition
as when she tested them. Then, with respect to the hair samples from
defendant, Agent DiBenedetto testified about the collection of the hairs and
said that they appeared to be in the same condition as when he submitted
them for testing. No lab personnel, however, testified regarding the testing
or examination of these hairs.

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seizure to its offer at trial is to [e]nsure that the real evidence offered is that object

which was involved in the transaction, and that the object is in a substantially

unchanged condition.” Serl, 269 NW2d at 789. It is not necessary for the State to

establish an “absolutely perfect chain of custody,” but the testimony “must at least

‘strongly suggest[ ] the exact whereabouts of the exhibit at all times[.]’” Id. (quoting

State v. Lunsford, 204 NW2d 613 (Iowa 1973); Butler v. State, 289 NE2d 772, 777

(IndCtApp 1972)).

[¶26.] There is nothing to suggest that the challenged evidence was tampered

with or altered. Defense counsel insists, nonetheless, that because the evidence

custodian did not testify defendant was deprived of his right to “inquire about the

chain of custody or the possibility of tampering.” “‘Mere suspicion or speculation is

insufficient to establish a break in the chain of custody.’” Kurtz v. Squires, 2008 SD

101, ¶11, 757 NW2d 407, 413 (quoting Lownes, 499 NW2d at 901). A court need

only conclude “in reasonable probability that the object sought to be admitted is the

one involved in the case, and that it has not changed in important respects.” Serl,

269 NW2d at 788 (citing Christmas, 83 SD at 510, 162 NW2d at 127).

[¶27.] We are puzzled by the State’s decision not to offer the testimony of the

evidence custodian for evidence that was fungible and not readily identifiable. This

evidence was heavily relied on by the State in establishing defendant’s guilt. When

asked during oral argument, the State could not explain why the custodian was not

called to testify. The trial was held in Pierre, the same city where the evidence was

kept. Nonetheless, it is well settled that an absolutely perfect chain of custody is

not required. Kurtz, 2008 SD 101, ¶11, 757 NW2d at 412. The fact that one of the

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people in control of the evidence did “‘not testify at trial does not, without more,

make the substance or testimony relating to it inadmissible.’” Stringer v. State, 647

SE2d 310, 314 (GaCtApp 2007) (quoting Hayes v. State, 623 SE2d 144, 146

(GaCtApp 2005) (quoting Palmer v. State, 297 SE2d 22 (Ga 1982))). The State

“need not call as authenticating witnesses each person who handled the object from

the time of its recovery to the time of trial, so long as enough testimony is presented

to permit a reasonable inference that the object offered is what the proponent

claims it to be.” Pool v. State, 17 P3d 1285, 1290 (Wyo 2001) (quoting Robinson v.

State, 716 P2d 364, 369 (Wyo 1986) (quoting 3 D. Louisell & C. Mueller, Federal

Evidence §515 at 88-89 (1979))).

[¶28.] Considering the entire record, we cannot conclude that the court

abused its discretion when it ruled that a sufficient chain of custody had been

established to admit the evidence. Yet, even if the court had abused its discretion,

defendant alleges no specific prejudice suffered as a result. He has not claimed that

the evidence was altered, changed, or substituted. Nor does he dispute the veracity

of the challenged evidence, as he testified that he cleaned the blood in the house and

Durango, wrapped Tami’s body in the tarp, disposed of her near the river, and

placed the condom in her rectum. In consequence, some of this evidence only

reinforces his testimony and the theory of his defense.

2. Testimony from Tami’s Mother

[¶29.] Tami’s mother, Bonnie, testified for the State on a number of things,

including the conversations she had with Haylee the day Tami went missing. On

cross examination, defendant asked Bonnie about a statement she made to the

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Department of Social Services that she was surprised by how calm Haylee was the

day Tami went missing because Haylee was normally a very emotional child. On

re-direct examination, the State asked Bonnie about her experience with a similar

situation in her family that allowed her to see people’s reactions. Defendant

objected, claiming that Bonnie’s testimony about a previous tragedy was irrelevant,

only worked to evoke sympathy from the jury, and was unfairly prejudicial.

[¶30.] The court allowed the following testimony:

State’s counsel, Mr. Love: Is this the first time in your life
that you have had the opportunity to see somebody go through
this experience?
Bonnie: No.
Defense counsel, Mr. Rensch: Objection. Relevance, Your
Honor.
The court: Overruled. You may answer.
Mr. Love: How have you seen this before?
Mr. Rensch: Objection. Relevance.
The court: Counsel approach. (A bench conference was held
but not reported.)
The court: You may continue, Mr. Love.
Mr. Rensch: For the record, my objection also included [Rule]
403.
The court: Thank you. I’ve done the balancing test and I do
not find it unfairly prejudicial. You may answer. Do you recall
the question?
Bonnie: Could you repeat that?
Mr. Love: You’ve described Haylee’s reactions and your sense
of Haylee’s reactions to this situation. Have you had the
opportunity to see this situation before?
Bonnie: Yes.
Mr. Love: And persons’ reactions to that situation?
Bonnie: You’re asking me how I –
Mr. Love: Have you had a chance to see other people’s
reactions to a similar situation in the past?
Bonnie: Yes.
Mr. Love: Was that an event that took place within your
family?
Bonnie: Yes.
Mr. Rensch: Same objection, Your Honor.
The court: So noted. Overruled. The answer will stand.

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Defendant argues that the trial court abused its discretion when it allowed Bonnie

to testify about a previous tragedy in her family, on the grounds that the testimony

was “explosive,” tainted juror perceptions, and was persuasion by illegitimate

means. Defendant claims that the great weight of this prejudicial testimony

necessitates a new trial.

[¶31.] A court “has wide discretion in determining the prejudicial effect of a

witness’ statements[.]” State v. Michalek, 407 NW2d 815, 818 (SD 1987) (citing

State v. Farley, 290 NW2d 491, 494 (SD 1980)). Thus, we review a court’s decision

to admit such testimony under the abuse of discretion standard. State v. Lassiter,

2005 SD 8, ¶13, 692 NW2d 171, 175 (citing State v. Red Star, 2001 SD 54, ¶10, 625

NW2d 573, 576-77). However, “[t]o obtain a new trial, a defendant must prove not

only that the trial court abused its discretion in admitting the evidence, but also

that the admission resulted in prejudice.” Id. (citing Red Star, 2001 SD 54, ¶10, 625

NW2d at 577 (citing SDCL 15-6-61)). “‘Prejudicial error’ is error which in all

probability must have produced some effect upon the jury’s verdict and is harmful

to the substantial rights of the party assigning it.” Michalek, 407 NW2d at 818-819

(citing State v. Dokken, 385 NW2d 493, 498 (SD 1986); State v. Reddington, 80 SD

390, 396, 125 NW2d 58, 62 (1964)).

[¶32.] The State contends that Bonnie’s testimony was properly allowed. It

argues that defendant opened the door to this line of questioning by “squarely”

placing “Haylee’s reaction to Tami’s death,” and Bonnie’s “ability to judge that

reaction before the jury.” While Bonnie’s ability to judge Haylee’s emotions and

temperament might be relevant, Bonnie’s ability to gauge other people’s reactions to

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a previous family tragedy is not. There is no link to Bonnie’s previous family

tragedy and Haylee. The court abused its discretion when it allowed this testimony.

However, the statements ultimately made by Bonnie cannot be said to have

“produced some effect on the jury’s verdict[.]” See id. (citations omitted). Bonnie

never testified to the specifics of the tragedy suffered by her family. And, the State

made no further effort to exploit the facts surrounding Bonnie’s previous

experience.

3. Theory of the Defense Instruction

[¶33.] Defendant next asserts that the court erred when it refused to instruct

the jury that “[a]ny person who committed the act charged without being conscious

thereof is incapable of committing such a crime.” Defendant makes no claim that he

acted unconsciously. Rather, he contends that his daughter killed Tami in what he

portrays as a catatonic state. As defense counsel told the court during the

settlement of jury instructions, “the jury may be thinking that [defendant] is simply

trying to get his daughter in trouble to save himself.” Defendant argues that if the

jury knew Haylee could not be found guilty, he could have lessened the negative

impact of his claim that his daughter murdered her mother.

[¶34.] Undoubtedly, “[a]n accused must ‘be afforded a meaningful

opportunity to present a complete defense.’” State v. Packed, 2007 SD 75, ¶27, 736

NW2d 851, 860 (quoting State v. Iron Necklace, 430 NW2d 66, 75 (SD 1988)).

“When a defendant’s theory ‘is supported by law and . . . has some foundation in the

evidence, however, tenuous[,]’ the defendant has a right to present it.” Id. ¶25

(quoting United States v. Grimes, 413 F2d 1376, 1378 (7thCir 1969) (citing Tatum

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v. United States, 190 F2d 612, 617 (DCCir 1951); United States v. Phillips, 217 F2d

435, 442-43 (7thCir 1955)) (additional citations omitted)). We review “the refusal of

proposed jury instructions under the abuse of discretion standard.” State v. Jensen,

2007 SD 76, ¶7, 737 NW2d 285, 288 (citation omitted).

[¶35.] In this case, defendant was not denied a right to present a complete

defense. His contention was that he did not kill Tami, but his daughter did. In

support of his position, he was in no way restricted in offering evidence and

argument of third-party culpability. See Packed, 2007 SD 75, ¶¶22, 23, 736 NW2d

at 858-59. The jury was properly instructed that the prosecution must prove

defendant’s guilt beyond a reasonable doubt. Moreover, the subject of defendant’s

motive was also properly instructed with the pattern instruction.

[¶36.] Defendant insists, however, that because his proposed instruction is a

correct statement of law and he testified, in effect, that Haylee acted involuntarily,

the instruction should have been allowed. In State v. Moss, the defendant argued

that the court should have given the jury an instruction on the offense of public

indecency. 2008 SD 64, ¶25, 754 NW2d 626, 634. That instruction, Moss claimed,

would have allowed him to argue that the State could have charged him under a

lesser criminal statute. In considering this argument, we recognized that

defendants are entitled to an instruction for every issue of fact raised material to

their defense. Nevertheless, because the lesser-crime instruction was not a lesser-

included offense of the crime charged against Moss, we held that there was no error

in excluding it. Id. ¶26. The uncharged crime was not material to his defense of the

charged crime. Id. ¶27.

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[¶37.] Here, the requested instruction was not germane to the question the

jury had to decide: whether defendant killed Tami. Indeed, such an instruction

would not have been exculpatory for defendant. His proposed instruction related

not to his defense, but to a defense his daughter might have had if she were

charged. But, as the trial court found, instructing the jury on whether Haylee

might have been mentally culpable had she been charged with murder would have

been speculative and confusing. Even if Haylee had been the killer, the jury did not

need to decide the legal effect of her consciousness to find defendant not guilty.

Defendant cites no authority where such an instruction was given in similar

circumstances. Because the proposed instruction was extraneous to his defense

that he did not kill Tami, the court did not abuse its discretion in refusing

defendant’s requested instruction.

4. Discovery Violation

[¶38.] Before trial, the State was ordered to identify any experts and provide

“a complete listing, designation, summary, and identification of each and every

expert opinion” intended to be offered during trial. According to defendant, the

State violated this discovery order when it offered certain expert testimony from

Kandy Smith, a criminalist at the State Crime Lab. Smith testified that the

presence of a child’s DNA can be determined based on the known DNA profiles of

that child’s parents. This testimony was offered even though a DNA sample taken

from Haylee was never tested by the State. Defendant claims that with the

previously undisclosed expert opinion the State was able to imply that the presence

of Haylee’s DNA was excluded based on the known profiles of defendant and Tami.

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Defendant objected to this testimony and moved for a mistrial. The court overruled

defendant’s objections and denied a mistrial. It ruled the discovery order was not

violated because Smith did not give a specific opinion on whether the presence of

Haylee’s DNA was excluded.

[¶39.] “[O]ur standard of review for the violation of a discovery order mirrors

the standard applied when reviewing both mistrial motions and evidentiary issues.”

State v. Krebs, 2006 SD 43, ¶19, 714 NW2d 91, 99.

We review evidentiary decisions deferentially, reversing only
when the court has abused its discretion. State v. Sieler, 397
NW2d 89, 91 (SD 1986) (string citation omitted); see also State v.
Peterson, 1996 SD 140, ¶8, 557 NW2d 389, 391. It does not
matter if we would have made a similar ruling; rather, we
inquire whether “a judicial mind, in view of the law and the
circumstances, could reasonably have reached that conclusion.”
Sieler, 397 NW2d at 91 (citations omitted).

State v. Dillon, 2001 SD 97, ¶24, 632 NW2d 37, 47. If “a discovery order is violated,

the inquiry is whether the defendant suffered any material prejudice as a result of

the late disclosure.” Krebs, 2006 SD 43, ¶19, 714 NW2d at 98 (citing State v.

Archambeau, 333 NW2d 807, 810-11 (SD 1983)). Material prejudice is established

“‘when in all probability . . . it produced some effect upon the final result and

affected rights of the party assigning it.’” Id. (quoting State v. Mattson, 2005 SD 71,

¶13, 698 NW2d 538, 544).

[¶40.] Smith’s testimony began with a general description of DNA testing.

She explained how such testing is used to exclude or include individuals as

contributors to the tested DNA sample by using known and unknown DNA samples.

After providing background information on DNA testing, Smith testified about her

involvement in this case. She identified the evidence she collected and explained

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the testing she performed. She also identified the DNA contributors to the

evidence.

[¶41.] During her testimony about a washcloth that defendant claimed to

have been used to wipe Haylee’s blood, Smith stated that there was a mixture of

DNA present. She explained that Tami’s DNA was identified as a contributor, and

that defendant’s DNA could not be excluded, but also could not be specifically

included. The State then asked Smith if she had tested Haylee’s DNA. She

answered that she had not. Next, the State asked whether Smith could exclude the

presence of Haylee’s DNA based on the known profiles of Tami and defendant.

Defense counsel objected, and after a bench conference, the court sustained the

objection.

[¶42.] Through the remainder of Smith’s testimony, her opinion regarding

the scientific practice of excluding or including the presence of a child’s DNA based

on the parents’ known profiles became the focus. During re-direct examination, the

following exchange took place:

Q: Now you testified or in response to one of Mr. Rensch’s
questions, you indicated that taking a buccal swab . . . from
Haylee Reay and developing a DNA profile is one way to make a
comparison to an unknown DNA sample, correct?
A: Yes, sir.
Q: Is there another way to do it?
A: By knowing her biological parents’ types you can have a
rough estimate of what the potential types are at each particular
location.
Q: And based upon that analysis, if you were to examine the
DNA profiles that you obtained from unknown samples, would
there be occasions when you’d be able to include or exclude
Haylee Reay as a contributor of those samples?
A: Yes, sir.

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Defense counsel, on re-cross examination, asked Smith, “Did you exclude Haylee

Reay from any item you examined?” Smith responded, “I did not put into any of my

reports statements about Haylee Reay.” On further re-direct examination, the

State asked Smith, “Can you exclude Haylee Reay as a contributor of DNA from any

of the items that you tested.” Smith replied, “Knowing her biological parents’

profiles, yes, I could.”

[¶43.] The State claims that Smith’s testimony was not an expert opinion

because she only testified to general principles of DNA testing. Yet, how DNA is

tested, what is involved, and how an individual is included or excluded as a

contributor is something not known by the general public. Smith’s testimony was

clearly offered as an expert opinion. In fact, during direct examination the State

asked Smith for her opinion on whether “the inclusion or elimination of a child as a

contributor of DNA based on comparison to known parents’ DNA [is an] accepted

scientific practice.”

[¶44.] All the same, the State maintains that the discovery order was not

violated because defendant opened the door to the evidence and Agent DiBenedetto

also testified that the presence of a child’s DNA can be determined based on the

parents’ DNA profiles. While Agent DiBenedetto’s testimony was not an expert

opinion, he did testify, “You can actually match or show no match of the [DNA]

evidence of a child of biological parents without the child’s profile.” He also testified

that based on his “crime investigation knowledge,” the presence of a child’s DNA

can be eliminated when the parents’ DNA profiles are known. Defendant did not

object.

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[¶45.] Even if we assume the court abused its discretion when it held that the

State did not violate the discovery order, defendant has not shown material

prejudice to his case. Smith never testified explicitly that she did in fact exclude

the presence of Haylee’s DNA from the evidence based on the DNA profiles of

Haylee’s parents. She only testified that she “could” exclude it, a somewhat

ambiguous response. Moreover, in closing argument the prosecution did not argue

that its expert had excluded Haylee’s DNA. It conceded that the washcloth DNA

was unidentified. Defendant does not claim that Smith’s undisclosed opinion was

the cause of his prejudice. Rather, he asserts he was prejudiced because of what the

State was able to imply by using Smith’s testimony. According to defendant, the

State was able to mitigate the fact that it chose not to test Haylee’s DNA by using

Smith’s testimony that Haylee’s DNA could be excluded because the State knew

Tami’s and defendant’s DNA profiles.

[¶46.] Prejudice, sufficient to require relief, must “in all probability” have

“produced some effect upon the final result and affected rights of the party

assigning it.” Krebs, 2006 SD 43, ¶19, 714 NW2d at 99 (quoting Mattson, 2005 SD

71, ¶13, 698 NW2d at 544). We cannot say that Smith’s opinion in all probability

affected the substantial rights of defendant or the final result of his trial.

Defendant does not dispute that it is an accepted scientific fact that elimination of a

child as a contributor of DNA can be accomplished from the known DNA profiles of

the parents. Finally, defendant never requested a continuance to hire his own

expert nor objected when Agent DiBenedetto testified to the same opinion.

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5. Admission of Vivarin box.

[¶47.] During the State’s cross examination of defendant, it offered into

evidence a box of Vivarin, an over-the-counter caffeine supplement. The State’s

request arose in response to defendant’s claim that at the time of Tami’s death he

had been up for several nights and was exhausted. The State asked him whether

he used Vivarin before. The State had a photograph of a wrapper from a Vivarin

box in defendant’s truck. Defendant testified that he had used Vivarin when

hunting, but not during the nights in question. The State, using a Vivarin box it

had recently purchased at the store, requested that defendant read aloud the

warning label on the back. Defendant objected asserting that the warning label was

inadmissible hearsay. The court overruled his objection, admitted the evidence, and

allowed the State to have defendant read aloud the warning label.

[¶48.] “‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” SDCL 19-16-1(3) (Rule 801). Clearly, the warning label on the Vivarin

box is hearsay. It is a statement made by the manufacturers of Vivarin, offered to

prove the truth of the producer’s warning statement. The State now concedes this.

Nevertheless, the State asks this Court to adopt the view that the product

packaging, although hearsay, fits within the market reports hearsay exception. See

SDCL 19-16-21 (Rule 803(17)). See also cases cited by the State. Brand v. State,

941 So2d 318, 320-21 (AlaCrimApp 2006); In re Micheal G., 19 CalApp4th 1674,

1677 (CalCtApp 1993); Reemer v. State, 835 NE2d 1005, 1007-08 (Ind 2005); State

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v. Heuser, 661 NW2d 157, 162-63 (Iowa 2003); Burchfield v. State, 892 So2d 191,

198 (Miss 2004); Shaffer v. State, 184 SW3d 353, 362 (TexCtApp 2006).

[¶49.] While other courts have applied the market reports exception to

certain product packaging, the hearsay statements in those cases came from

evidence found specifically in the defendant’s possession. See Brand, 941 So2d at

320-21 (introduction of boxes of cold and allergy medicine purchased by defendant);

Micheal G., 19 CalApp4th at 1677 (spray can in defendant’s possession); Reemer,

835 NE2d at 1008 (labeling found from tablets in defendant’s possession); Heuser,

661 NW2d at 162 (labels and boxes found in defendant’s van); Burchfield, 892 So2d

at 198 (ingredients on label in defendant’s possession); Shaffer, 184 SW3d at 362

(labels on cold medication in defendant’s possession). Here, the Vivarin box

admitted at trial was not the one photographed in defendant’s truck. It was

purchased by the State. Thus, regardless of the trustworthiness of the product’s

packaging, there was no showing that the product listing or warning label on the

package purchased by the State was the same as the label on defendant’s box.

[¶50.] The Vivarin warning label introduced by the State does not fit any

hearsay exception, and the court erred in ruling otherwise. However, the error is

harmless as we conclude beyond a reasonable doubt that the jury would have

returned a guilty verdict despite the error. See SDCL 23A-44-14 (Rule 52(a)); see

also Michalek, 407 NW2d at 819 (“The harmless error rule” does not require “the

automatic reversal of a conviction, provided the court is able to declare a belief

beyond a reasonable doubt that the error was harmless and did not contribute to

the verdict obtained.”) (citing State v. Heumiller, 317 NW2d 126, 130 (SD 1982)

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(citing Chapman v. California, 386 US 18, 87 SCt 824, 17 LEd2d 705 (1967);

Harrington v. California, 395 US 250, 89 SCt 1726, 23 LEd2d 284 (1969))).

[¶51.] Even if we were to assess the asserted errors in this case for

cumulative effect, these errors created no cumulative prejudice. See State v. Davi,

504 NW2d 844, 857 (SD 1993) (citing McDowell v. Solem, 447 NW2d 646, 651 (SD

1989)).

[¶52.] Affirmed.

[¶53.] GILBERTSON, Chief Justice, MEIERHENRY, Justice, SABERS,

Retired Justice and TIMM, Circuit Judge, concur.

[¶54.] TIMM, Circuit Judge, sitting for ZINTER, Justice, disqualified.

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