State v. Condon

#24336-a-DG

2007 SD 124

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

KARYL MICHELLE CONDON, Defendant and Appellant.

* * * *

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

* * * *

HONORABLE GLEN A. SEVERSON
Judge

* * * *
LAWRENCE E. LONG
Attorney General

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

MARK KADI
Office of the Public Advocate
Sioux Falls, South Dakota Attorney for defendant
and appellant.

* * * *
CONSIDERED ON BRIEFS
ON OCTOBER 1, 2007

OPINION FILED 12/05/07
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GILBERTSON, Chief Justice

[¶1.] On September 2, 2004, Karyl Michelle Condon (Condon) was indicted

by a Minnehaha County grand jury on one count of grand theft. A jury trial was

held in the South Dakota Second Judicial Circuit on January 24 and 25, 2005, after

which Condon was found guilty of the charge. 1 On July 12, 2006, Condon filed a

motion for a new trial pursuant to SDCL 15-6-59(a)(4). The trial court heard the

motion on July 24 and September 15, 2006. The trial court denied Condon’s motion

and she was thereafter sentenced to eight years in the penitentiary with one year

conditionally suspended. We affirm.

FACTS AND PROCEDURE

[¶2.] At around 3:00 p.m. on June 28, 2004, Miguel Comparan (Comparan)

was visiting with Adriana Lores (Lores) the cashier at a Mexican grocery store in

Sioux Falls, South Dakota, Nikki’s La Mexicana (La Mexicana), after completing his

shopping. While they were visiting, a young woman, later described by Comparan

and Lores as an “American Indian,” 5’ 2’’ to 5’ 3”, weighing about 200 lbs., came into

the store and asked Lores for some “fajita meat.” Lores, who was working alone,

left the cashier’s counter and walked to the meat department in the back of the

store with the woman. Comparan then proceeded to leave the store.

[¶3.] As Comparan was exiting through the front door, a second woman,

who he described as being an “American Indian,” “who looked like she was tall” and

1. After the jury verdict Condon pleaded guilty to a habitual criminal
information filed by the Minnehaha County State’s Attorney.

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“a little obese” was about to enter the store. 2 After leaving the store, Comparan got

into his car on the passenger side because a blue Ford Taurus had parked close

enough to the driver’s side of his car that he could not enter on that side.

Comparan had just sat down in his car and was about to check the contents of his

grocery bag against his shopping list when he noticed the second Indian woman

emerging from the store with a handful of jewelry. 3 At Condon’s trial, Comparan

testified that when he looked at the woman, she pulled the jewelry behind her back

and then got into the driver’s side of the blue Ford Taurus parked next to him.

Comparan stated that he then backed out of his parking space and moved his car in

front of the neighboring Subway restaurant.

[¶4.] Sensing that something wrong had occurred in the grocery store,

Comparan went back to La Mexicana to inquire as much with Lores. When he

entered the store, the first woman was paying for her fajita meat and was about to

leave. Comparan testified that after that woman left, she got into the blue Ford

Taurus on the passenger side and rode away with the woman who had emerged

from La Mexicana with the handful of jewelry.

[¶5.] Comparan asked Lores if anything was missing from the jewelry case

that sat near the front door of the store. The two observed that there was an area

in the case that had been cleared of jewelry. Comparan then left La Mexicana to

2. At Condon’s trial, Comparan testified that at that time he also observed a
third woman standing outside in the vicinity of La Mexicana.

3. At Condon’s trial, Comparan described the handful of jewelry as “a bunch” of
“bracelets and necklaces and stuff like that.”

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follow the blue Ford Taurus. Within several blocks he lost the vehicle, so he then

returned to La Mexicana. Since Lores did not speak much English, Comparan

called 911 to report the theft.

[¶6.] Sioux Falls Police were dispatched to La Mexicana and Officer Richard

Millette (Millette) interviewed Comparan and Lores, taking their descriptions of the

two women. 4 Later that day Comparan spoke to one of La Mexicana’s owners,

Michelle Reta (Reta). Comparan’s description of the thief was consistent with that

of Condon, who Reta had barred from the store for issuing bad checks. Reta then

advised Millette that she thought Condon might be the thief. 5

[¶7.] On June 29, 2004, Detective Larry Heitkamp (Heitkamp) was assigned

to follow up on Millette’s preliminary investigation. Based on Millette’s report,

Heitkamp put together a six-person photo lineup that included a picture of

Condon. 6 On July 2, 2004, Heitkamp interviewed Comparan and showed him the

4. Lores was unable to identify the woman who stole the jewelry because she
was with the first woman in the rear of the store and did not observe the
theft.

5. Reta reported that approximately seven 14-carat gold bracelets and one 14-
carat gold Geneva brand watch had been taken with a total value of $3,460.

6. At Condon’s trial, Heitkamp described a photo lineup as a law enforcement
tool in which a photo of a known suspect is included with filler photos of
other similar appearing persons. The lineup is then presented to witnesses
or victims for possible identification of the suspect. Heitkamp went on to
explain that his procedure in presenting a photo lineup is to “tell the
individuals to look at the photo lineup and that they are not obligated to pick
anyone out of the photo lineup and . . . ask them to be 100-percent certain
before they identify anyone out of a photo lineup.”

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photo lineup. Comparan identified the photo of Condon as matching the person

that he saw leaving La Mexicana with the handful of jewelry.

[¶8.] Condon was indicted on one count of grand theft in violation of SDCL

22-30A-1 and SDCL 22-30A-17. At Condon’s trial on January 24, 2005, the State

called Comparan, Lores, Reta and Heitkamp. On January 25, the jury returned a

guilty verdict against Condon. Thereafter, she absconded and was not apprehended

until June 6, 2006.

[¶9.] While in custody at the Minnehaha County Jail awaiting sentencing,

Condon allegedly was informed by fellow inmates that Latasha Rodriquez

(Rodriquez) was the person responsible for the jewelry theft at La Mexicana on

June 28, 2004. 7 On June 12, 2006, Condon informed defense counsel that fellow

inmate Gaylina Jandreau (Jandreau) told her that she had been outside La

Mexicana at the time of the June 28, 2004 jewelry theft and that she had observed

Rodriquez, a person that Jandreau claimed had an appearance similar to Condon’s,

leaving the store with jewelry in hand. Condon asked Jandreau to write out her

account of the theft and Jandreau allegedly complied.

[¶10.] A second inmate, Wendy Yanacheak (Yanacheak) allegedly had

mistaken Condon for Rodriquez at the county jail. Yanacheak conveyed to Condon

that she had a friend, Cameron, who had a daughter named Monica who was a

7. In June 2006, both Condon and Rodriquez were incarcerated at the county
jail. Their respective booking sheets revealed that both were American
Indians with black hair and brown eyes. Condon was described as being 5’ 7”
and weighing 180 lbs. Rodriquez was described as being 5’ 4” and weighing
225 lbs.

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friend and roommate of Rodriquez’s. Yanacheak claimed to have been present when

Monica offered Cameron a piece of jewelry and that Cameron had refused the

jewelry because she thought it may have been acquired illegally.

[¶11.] Based on this new information, Condon filed a motion for a new trial

on July 12, 2006. The trial court heard the motion on July 24, 2006. Yanacheak

was present and testified at the hearing. Condon attempted to produce Jandreau,

but she did not appear. Alternatively, Condon offered Jandreau’s handwritten

statement as evidence of her account. Supporting its decision with oral findings

and conclusions, the trial court refused to allow the statement, but granted Condon

a continuance until September 12, 2006, to produce Jandreau. Meanwhile,

Rodriquez appeared at the July 24 hearing and testified that while she did visit

Sioux Falls for a two-week period in July 2004, she otherwise had not been in Sioux

Falls until she moved there on December 18, 2005. She further testified that she

did not meet Monica until that time and that she had never given Monica any

jewelry.

[¶12.] The trial court granted a second continuance until September 15, 2006,

but Condon was still unable to produce Jandreau. When the court reconvened at

that time, Condon’s motion for a new trial was denied and an oral sentence was

pronounced. The trial court entered its judgment and sentence on November 1,

2006, and on November 27, entered findings of fact and conclusions of law in

connection with its denial of Condon’s motion for a new trial.

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[¶13.] Condon appeals raising the following issues:

1. Whether the trial court erred in noting for the record
testifying witnesses’ in-court identifications of Condon.

2. Whether the trial court erred when it allowed the
State to question Comparan as to Condon’s nationality
and his ability to differentiate between persons of
American Indian and Mexican descent.

3. Whether the trial court abused its discretion at the
motions hearing by refusing Condon’s proffer of
a handwritten statement as an exception to the
statutory hearsay rule.

4. Whether the trial court abused its discretion by
denying Condon’s motion for a new trial pursuant
to SDCL 15-6-59(a)(4).

STANDARD OF REVIEW

[¶14.] This Court applies the de novo standard when reviewing appeals that

assert an infringement of a constitutional right. State v. Asmussen, 2006 SD 37,

¶11, 713 NW2d 580, 586 (citing State v. Dillon, 2001 SD 97, ¶12, 632 NW2d 37, 43

(citing State v. Stanga, 2000 SD 129, ¶8, 617 NW2d 486, 488)). “The trial court’s

evidentiary rulings are presumed correct and will not be overturned absent an

abuse of discretion. ‘An abuse of discretion refers to a discretion exercised to an end

or purpose not justified by and clearly against reason and evidence.’” Id. ¶13

(citations and quotations omitted).

[¶15.] We apply the abuse of discretion standard to the trial court’s

determination of whether to admit hearsay evidence. Matter of R.S.S., 474 NW2d

743, 749 (SD 1991). While we review the trial court’s findings of fact under the

clearly erroneous standard, we give no deference to its conclusions of law and

thereby apply the de novo standard. State v. Runge, 2006 SD 111, ¶9, 725 NW2d

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589, 592 (citations omitted). Having not observed witness testimony, we defer to

the trial court’s assessment on the credibility of witnesses. State v. Piper, 2006 SD

1, ¶84, 709 NW2d 783, 815 (citing State v. Burtzlaff, 493 NW2d 1, 4-5 (SD 1992)).

Abuse of discretion is also the standard applied when reviewing whether the trial

court should have granted a motion for a new trial. State v. Crawford, 2007 SD 20,

¶14, 729 NW2d 346, 349 (citing State v. Perovich, 2001 SD 96, ¶11, 632 NW2d 12,

15).

ANALYSIS AND DECISION

[¶16.] 1. Whether the trial court erred in noting for the
record testifying witnesses’ in-court identifications
of Condon.

[¶17.] At Condon’s trial on January 24, 2005, the State asked Comparan if

the woman that he saw coming out of La Mexicana with the jewelry in hand was

present in the courtroom. Comparan answered “[y]es” and when asked where she

was seated and what she was wearing, he stated that she “[i]s in front of us

[wearing] red.” Thereafter, the State asked the trial court for “the record [to] reflect

that [the] witness . . . identified the Defendant.” Over Condon’s objection, the trial

court granted the State’s request by replying, “It’s noted.” Later, the State asked

Reta if she knew Condon and if Condon was present in court, where she was seated

and what she was wearing. After Reta pointed out Condon in the courtroom and

that she was wearing “a red sweater.” The trial court, again at the State’s request

and over Condon’s objection, “noted” for the record that Reta identified Condon.

[¶18.] Condon argues that the trial court erred by noting for the record

Comparan’s in-court identification of Condon as the person he saw leaving La

Mexicana with jewelry in hand and Reta’s in-court identification of Condon as the
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person she knew by that name. Condon asserts that her right to a fair trial,

guaranteed by the Sixth Amendment to the United States Constitution and Article

6, Sections 6 and 7 of the South Dakota Constitution, was violated by these

notations for the record. She further asserts that these notations constituted

judicial notice of a contested fact in violation of SDCL 19-10-2, 8 testimony by the

trial court in the role of a witness in violation of SDCL 19-14-5, 9 or non-impartial

bolstering of State’s witnesses. We disagree.

[¶19.] This Court has not specifically addressed these contentions raised by

Condon. To secure a conviction, the State must identify the defendant as the party

completing all requisite elements of the crime. It has perhaps been intuitive that

when that identification, at least in part, is attributable to an in-court identification

of the defendant, the State is also charged with the responsibility of preserving that

identification for the record.

[¶20.] We have recognized that a courtroom identification is not necessary

when the evidence is sufficient to establish the inference that the defendant is the

8. SDCL 19-10-2 provides:

A judicially noticed fact must be one not subject to reasonable dispute in that
it is either:

(1) Generally known within the territorial jurisdiction of the trial court; or

(2) Capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.

9. SDCL 19-14-5 provides:

The judge presiding at the trial may not testify in that trial as a witness. No
objection need be made in order to preserve the point.
(continued . . .)

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person who committed the crime. State v. Sonen, 492 NW2d 303, 307 (SD 1992)

(citing United States v. Morrow, 925 F2d 779, 781 (4thCir 1991) (citing United

States v. Capozzi, 883 F2d 608 (8thCir 1989))). However, the instant case does not

represent such an example. Reta’s testimony that Condon had been barred from La

Mexicana for passing bad checks was used to establish a motive for the theft and

her in-court identification of Condon was helpful in that regard. However,

Comparan’s testimony about his eye-witness account of the theft and his in-court

identification of Condon as the perpetrator, were pivotal in linking Condon to the

crime. For the State to preserve these in-court identifications for appellate review,

it was necessary that the trial court note them for the record.

[¶21.] While we have not previously addressed the issue, other courts have

concluded recognition of a witness’s in-court identification is not error, but if

anything, is necessary to establish the record of a critical aspect of trial for

appellate review. See State v. Jacob, 574 NW2d 117 (Neb 1998); State v. Privat, 556

NW2d 29 (Neb 1996); State v. Rybolt, 650 P2d 1258 (ArizCtApp 1982), overruled on

other grounds by State v. Diaz, 688 P2d 1011 (Ariz 1984); Echols v. State, 517 SW2d

18 (TennCtApp 1974); State v. McMurry, 513 P2d 953 (ArizCtApp 1973).

[¶22.] As in the instant case, the defendant in Privat claimed the trial court

erred by noting for the record the prosecution’s witnesses’ in-court identifications of

him. 556 NW2d at 35. In response to the state’s request that witnesses’ in-court

identifications be reflected in the record, the trial court responded, “The record will

so reflect.” Id. at 36 The defendant argued that the trial court’s statement

________________________
(. . . continued)

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bolstered the credibility of the prosecution’s witnesses and effectuated judicial

notice of a contested fact. Id. at 35. In Privat, the Nebraska Supreme Court

rejected the defendant’s assertion of error, deciding that the trial court’s statement

for the record did not constitute a comment on a fact in controversy or an opinion as

to the significance or credibility of witness testimony. Id. at 36. Moreover, in

Privat, the court specifically held that the subject statement in no way invaded the

province of the jury by establishing any element of the charged crime. 10 In

conclusion, the court in Privat opined that trial court’s notation for the record of the

in-court identifications was merely “an articulation of the obvious for purposes of

appellate review.” 11 556 NW2d at 244; see also Rybolt, 650 P2d at 1263-64 (holding

10. Underlying this holding was the Nebraska Supreme Court’s observation that
the defendant never claimed the in-court identifications were of someone else
or incorrect in any way. We note that this circumstance from Privat is
consistent with the instant case in that Condon did not allege another person
was responsible for the jewelry theft until almost 17 months after the trial.

11. In reviewing the Nebraska Supreme Court’s opinion in Privat, we consider its
recitation of the trial court’s discussion with the prosecuting attorney to be
illustrative of the purpose for creating a record of a witness’s in-court
identification. The following exchange took place during side-bar:

[TRIAL COURT:] Let me touch on something different. Mr. Kelly,
what good does it do to have a witness, when you ask them to see that
person in the courtroom for them to respond: Yes, I do. He’s wearing a
gray jacket and white shirt, sitting over there. What good does that
do? What relevance does that have to do with anything?

[PROSECUTING ATTORNEY]: Well, Judge, in my career I’ve had five or six
different court judges tell me five or six different ways that I’m to identify the
defendant. I’ve had several judges specifically tell me that I’m not to
comment on the record or to ask that the record will reflect the defendant as
being identified. And, so, for that-I do not ask that question. . . .

[TRIAL COURT]: Well, be that as it may. When she says he’s sitting over
(continued . . .)
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that the trial court’s recognition of witness’s in-court identification did not

constitute a statement of opinion on the evidence, but simply established for the

record a fact that had occurred at trial); Echols, 517 SW2d at 22-23 (holding that it

was necessary for the trial court to let the record show the witness’s in-court

identification of the defendant because the bill of exceptions could not otherwise

show that the defendant had been pointed out by a witness and that by creating

such a record the trial court did not effectuate a comment on the evidence);

________________________
(. . . continued)
there, how do I know that he isn’t sitting back in the spectator gallery as a
spectator? That doesn’t help the appellate court at all. You don’t even
have her-have him sitting at counsel table, your counsel table, theirs, or
anywhere else. It doesn’t mean anything.

That’s completely aside from whether you ask the Court to-to have the record
reflect that she’s identified the defendant. If you ask me to have the record
reflect that, I will do that.

But completely aside from that, her response is he’s sitting over there in a
gray jacket. Doesn’t mean anything.

[PROSECUTING ATTORNEY]: I understand. And I’ll ask the question.
But, I think it does have meaning on the trial level, because the triers of fact
are there to make the observations. Whether or not it gets to the appellate
level, I suppose I leave up to the defense attorneys.

[TRIAL COURT]: Well, but it may have some relevance here.

[PROSECUTING ATTORNEY]: Yes, sir.

[TRIAL COURT]: You have to keep in mind the record.

Id. at 32-33 (emphasis added).

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McMurry, 513 P2d at 957 (holding it was not error for the trial court to establish for

the record the witness’s in-court identification of the defendant because the trial

court’s statement, “The record may so reflect” could in no way be construed to

express an opinion on the evidence).

[¶23.] In Jacob, the defendant alleged error where the trial court noted for

the record the prosecution’s witness’s in-court identification of the defendant. The

defendant argued that the court’s statement, “The record will so reflect [the

witnesses’ identification of the defendant]” constituted testimony as a witness by

the trial court. 574 NW2d at 136. In affirming the conviction, the Nebraska

Supreme Court found no merit in the defendant’s assignment of error.

[¶24.] In the instant case, the State requested that the in-court

identifications of Condon, by Comparan and Reta, be reflected in the record. The

trial court’s statement “It’s noted” on those two occasions cannot be construed to be

testimony as to an opinion on the evidence, statements as to the credibility of

State’s witnesses or judicial establishment of an otherwise contested fact elemental

to the crime of grand theft. Rather, we conclude that the trial court merely

established for the record facts that occurred at trial – the in-court identifications of

Condon by Comparan and Reta – that could not otherwise be observed on review by

this Court. See Rybolt, 650 P2d at 1263-64. Therefore, we conclude that the trial

court committed no error in regard to this issue.

[¶25.] 2. Whether the trial court erred when it allowed
the State to question Comparan as to Condon’s
nationality and his ability to differentiate between
persons of American Indian and Mexican descent.

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[¶26.] During the State’s case-in-chief, Comparan was asked, over defense

counsel’s objection, if he had an opinion as to the nationality of Condon. He was

also asked whether he could differentiate American Indians from Mexicans.

Condon asserts that the questions were irrelevant and prejudicial injections of race

into the proceedings and were designed to elicit Comparan’s subjective perception of

the character of American Indians as a whole in violation of the Fourteenth

Amendment to the United States Constitution. In support of this assertion, Condon

cites Brown v. Board of Ed., 347 US 483, 495, 74 SCt 686, 692, 98 LEd 873 (1954)

(holding that racial segregation in public education is a violation of the equal

protection of the laws guaranteed by the Fourteenth Amendment). In the

alternative, Condon contends that as an evidentiary matter, the line of questioning

lacked adequate foundation.

Constitutional Challenge

[¶27.] We must determine whether the questioning evoked racially

prejudicial remarks that circumvented Condon’s right to due process. Condon’s

challenge arises out of the following exchange:

[STATE’S ATTORNEY]: Do you know what nationality the
Defendant, whom you identified
is?

[COMPARAN]: Yes.

[STATE’S ATTORNEY]: What nationality is this Defendant?

[DEFENSE COUNSEL]: Objection. Foundation, Your
Honor, and relevance.

[TRIAL COURT]: Overruled.

...

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[STATE’S ATTORNEY]: What nationality is this Defendant?

[COMPARAN]: American. She’s an American Indian.

[STATE’S ATTORNEY]: Are you able to tell a Mexican
person from an American Indian
person?

[COMPARAN]: Yes.

[STATE’S ATTORNEY]: What nationality was the lady
that bought the meat?

[DEFENSE COUNSEL]: Objection, Your Honor. Foundation
and relevance at this point.

[TRIAL COURT]: Overruled.

[STATE’S ATTORNEY]: What nationality was the third
lady?

[COMPARAN]: She was also an American Indian.

[¶28.] Neither the testimony in this excerpt nor Comparan’s testimony in toto

reveal any racially disparaging remarks or racial prejudice or bias that could in any

way have prejudiced the jury foreclosing Condon’s right to due process. Moreover,

by citing Brown, Condon fails in attempting to establish that this exchange violated

the Fourteenth Amendment. Brown struck down segregation in public schools and

has nothing to do with courtroom identification. 347 US 483, 495, 74 SCt 686, 692,

98 LEd 873. Consequently, we find Condon’s constitutional challenge to be without

merit.

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Evidentiary Challenge

[¶29.] In addressing Condon’s claim that a sufficient foundation was not

established prior to eliciting lay testimony from Comparan as to the ethnic-group

line of questioning, we consider our version of FRE 701, SDCL 19-15-1. This statute

provides:

If the witness is not testifying as an expert, his testimony in the
form of opinions or inferences is limited to those opinions or
inferences which are:

(1) Rationally based on the perception of the witness; and

(2) Helpful to a clear understanding of his testimony or the
determination of a fact in issue.

SDCL 19-15-1. The focus is based on the perception of the witness to an event, not

the education or experience the witness possesses prior to the event. We also note

that relevant evidence is generally admissible. SDCL 19-12-2 (FRE 402). Relevant

evidence is defined as that “[tending] to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would be without the evidence.” SDCL 19-12-1 (FRE 401). However, relevant

evidence may be excluded by the trial court if its “probative value is substantially

outweighed by the danger of unfair prejudice.” SDCL 19-12-3 (FRE 403).

[¶30.] The rules of evidence are liberally interpreted with the intent of

relaxing traditional barriers to opinion testimony. State v. Guthrie, 2001 SD 61,

¶36, 627 NW2d 401, 416 (citations omitted). A lay witness may give an opinion if

he has personal knowledge of the matter. State v. Andrews, 2001 SD 31, ¶17, 623

NW2d 78, 83. Lay testimony requires no foundation. Id. (citing Atkins v.

Stratmeyer, 1999 SD 131, ¶17, 600 NW2d 891, 897 (citations omitted)); Gerlach v.

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Ethan Coop Lumber Ass’n, 478 NW2d 828, 831-32 (SD 1991) (citing State v. No

Heart, 353 NW2d 43, 48 (SD 1984); United States Fire Ins. Co. v. Dace, 305 NW2d

50, 56 (SD 1981)).

[¶31.] We have reviewed trial courts’ discretionary admission of lay

testimony in a broad range of contexts. This Court has recognized that one’s

general health is a proper subject of lay testimony by anyone who is familiar with

the person to whom it relates. Koenig v. Weber, 84 SD 558, 174 NW2d 218, 224

(1970) (citation omitted); Moberg v. Scott, 42 SD 372, 175 NW 559, 561 (1919).

Nevertheless, we have stated that a lay witness will not be allowed to testify as to

the nature of a particular disease or ailment underlying the general physical

condition. Gartner v. Mohan, 41 SD 406, 170 NW 640, 641 (1919) (citation omitted).

Similarly to testimony regarding one’s general health, lay testimony as to an

individual’s general sanity as perceived is admissible. Shearn v. Anderson, 74 SD

41, 48 NW2d 821, 824 (1951) (citing Jones on Evidence, 4th Ed., Sec. 364).

However, lay opinion as to whether irrational persons in general can know right

from wrong is beyond the scope of perception and thus inadmissible. State v.

Leehman, 2 SD 171, 49 NW 3, 6 (1891).

[¶32.] In a case involving the malicious poisoning of a horse, this Court held

that a lay witness could testify to the poisoning where he administered some of the

deceased animal’s stomach contents to a hen and observed that it too died shortly

after ingestion. State v. Isaacson, 8 SD 69, 65 NW 430, 431 (1895). Conversely, we

held it improper for a lay witness to testify that the animals he sold were infected

with a disease where he was not so informed by his own perceptions, but rather

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came by the knowledge through inadmissible hearsay reports of blood tests taken

from the animals. Olson v. Aldren, 84 SD 292, 297, 170 NW2d 891, 894 (1969).

[¶33.] We have also held that a police officer without medical expertise could

give lay testimony that a victim’s injuries were caused by a knife rather than a fist

because the distinction between the two types of wounds is within the realm of the

average person’s experience. No Heart, 353 NW2d at 48. This Court has also

concluded that expert training is not required to testify as to whether a person is

under the influence of alcohol because such opinions and inferences are based on

witness perception. State v. Hall, 353 NW2d 37, 43 (SD 1984); see also State v.

Dale, 66 SD 418, 284 NW 770, 771 (1939) (citations omitted); Palmer v. Schurz, 22

SD 283, 117 NW 150, 153 (1908) (citations omitted) (recognizing no error in lay

witness testimony as to observations about the degree of intoxication). Similarly,

this Court has held that lay witnesses familiar with alcohol may testify to whether

a liquid is intoxicating based on their perception of taste and smell. State v.

Turner, 53 SD 523, 221 NW 251, 252 (1928) (citing State v. Work, 47 SD 649, 201

NW 553 (1924); Territory v. Pratt, 6 Dak 483, 43 NW 711 (1889)) (additional

citations omitted). Moreover, this Court has held that lay witnesses with

experience driving and observing vehicular speed are competent to testify to speed.

Vermillion v. Williams, 84 SD 589, 174 NW2d 331, 333 (1970) (citing Morton v.

Holscher, 60 SD 50, 243 NW 89 (1932); State v. Nuzum, 58 SD 6, 234 NW 665

(1931)). Nonetheless, we have held such testimony to be inadmissible where the lay

witness pulled out in front of an oncoming car and essentially did not see the other

car until impact. Pearson v. Adams, 279 NW2d 674, 677 (SD 1979); see also

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Williams, 84 SD at 593, 174 NW2d at 333 (stating that the lay witness must have

had an opportunity to observe the vehicle before testifying to its speed) (citations

omitted).

[¶34.] In the instant case, Comparan was 37 years old at the time of trial and

was born and raised in Mexico City. Thus, he has a lifetime of experience with

Mexicans and people of Hispanic descent. He testified that he came to the United

States in 1984, and had lived in Sioux Falls for about 10 years. Based upon that, he

claimed he was also familiar with American Indians. 12 His identifications of

Condon during the theft at La Mexicana and again in court were by way of his own

perception. That Comparan in court was able to testify to the appearance of an

American Indian and was able to distinguish American Indians from persons of

Mexican or Hispanic descent was relevant to the State’s obligation to establish the

identity of the perpetrator. On the day of the theft Comparan described the suspect

to Millette as an American Indian. The fact that Comparan also gave this

description to Reta led to the identification of a suspect that culminated in Condon’s

arrest and indictment. That Comparan was able to identify Condon in court as an

American Indian, consistent with the descriptions he gave out of court to Millette

and Reta, made more likely the fact that Condon was the person who emerged from

12. According to the United States Department of Agriculture, year 2003
demographic estimates for Sioux Falls, South Dakota indicate that 3,366
American Indians were living in the city.
http://www.ams.usda.gov/statesummaries/SD/MSA/MSA.pdf/SiouxFalls.pdf
(last visited September 6, 2007).

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La Mexicana with jewelry in hand. Consequently, we find no evidentiary ground for

error by the trial court in regard to this issue.

[¶35.] 3. Whether the trial court abused its discretion at
the motions hearing by refusing Condon’s proffer
of a handwritten statement as an exception to
the statutory hearsay rule.

[¶36.] On July 24, 2006, at hearing for the motion for new trial, Condon

offered Jandreau’s handwritten statement, as substantive evidence in lieu of

Jandreau’s testimony. The statement, which alleged that Rodriquez was

responsible for the jewelry theft, was not sworn. It was prepared by Jandreau while

she and Condon were incarcerated at the Minnehaha County Jail during the period

when Condon was awaiting sentencing. Condon testified and argument was

presented for the purpose of establishing a foundation for the admission of the

statement as an exception to the statutory hearsay rule. However, the trial court

refused to admit the statement making oral findings that it did not possess

“circumstantial guarantees of trustworthiness” equivalent to those exceptions to the

hearsay rule set out in statute.

[¶37.] Hearsay is generally inadmissible. SDCL 19-16-4. However,

numerous exceptions to the general rule are found under SDCL Chapter 19-16.

Beyond those specific exceptions, hearsay may still be admissible as provided under

the residual hearsay rule, SDCL 19-16-35 (FRE 804(b)(6)), 13 when the party who

13. SDCL 19-16-35 provides:

A statement not specifically covered by any of §§ 19-16-30 to 19-16-34,
inclusive, but having equivalent circumstantial guarantees of
(continued . . .)
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made the statement (the “declarant”) is not available to testify. We have construed

there to be five criteria that the proponent must meet, once it has been established

that the declarant is unavailable, before hearsay evidence can be admitted under

this rule:

(1) there must be circumstantial guarantees of
trustworthiness;

(2) the hearsay must provide evidence of a material fact;

(3) the hearsay must be more probative than any other
available evidence;

(4) the general purposes of the hearsay rules and the
interests of justice must be served by admission of
the hearsay; and,

(5) the adverse party must have notice.

R.S.S., 474 NW2d at 749. In addition, whether the hearsay is trustworthy is

determined by assessing five factors:

________________________
(. . . continued)
trustworthiness, is not excluded by § 19-16-4 if the declarant is unavailable
as a witness and if the court determines that:

(1) The statement is offered as evidence of a material fact;

(2) The statement is more probative on the point for which it is offered than
any other evidence which the proponent can procure through reasonable
efforts; and

(3) The general purposes of these rules and the interests of justice will best
be served by admission of the statement into evidence.

However, a statement may not be admitted under this section unless the
proponent of it makes known to the adverse party sufficiently in advance of
the trial or hearing to provide the adverse party with a fair opportunity to
prepare to meet it, his intention to offer the statement and the particulars of
it, including the name and address of the declarant.

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(1) The written or oral nature of the statement.

(2) The character of the statement.

(3) The declarant’s relationship to the witness offering the
statement.

(4) The declarant’s motivation in making the statement.

(5) The circumstances under which the declarant made
the statement.

State v. Luna, 378 NW2d 229, 238 (SD 1985).

[¶38.] In this case, Jandreau was unavailable to testify. Condon gave notice

to the State of her intent to use Jandreau’s statement. The State concedes that the

statement contained evidence of a material fact, since it addressed the identity of

the party who committed the crime. The State also concedes that in lieu of

Jandreau’s testimony, it was more probative than any other available evidence on

this point. However, the trustworthiness of the statement was challenged.

[¶39.] Condon argues that the veracity of Jandreau’s statement is born out by

corroborating testimony given by Yanacheak and her claim that the statement led

to the State’s discovery and use at the motions hearing of Rodriquez’s photo,

description 14 and testimony. This argument does not relate to any of the Luna

trustworthiness factors and is an unconvincing basis upon which to declare the

statement’s trustworthiness. We see no connection between the trustworthiness of

Jandreau’s statement and Yanacheak’s alleged mistaking of Condon for Rodriquez

14. Rodriquez’s photo and description were obtained from a June 29, 2006
Minnehaha County Sheriff’s Department booking sheet. Condon alleges that
her own photo and Rodriquez’s are nearly indistinguishable.

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or her claim that Rodriquez’s roommate’s mother, Cameron, was suspicious about a

piece of jewelry. Nor are we convinced of the statement’s trustworthiness by the

fact that the State, upon learning that Condon had filed a motion for a new trial

based on a claim of mistaken identity with Rodriquez, sought to discover who

Rodriquez was, what she looked like and what she had to say about the matter.

[¶40.] We are compelled by the fact that Condon could not base the

authenticity of Jandreau’s unsworn, written statement on anything other than her

assertion that the signature on the statement matched Jandreau’s signature on an

application for a court-appointed attorney. Providing the signature on the

statement is Jandreau’s, there is no evidence Jandreau wrote the text other than

Condon’s testimony to that effect. While Condon argues there is no evidence of a

relationship between Jandreau and her or of a motivation by Jandreau that would

cause her to concoct a false statement, no evidence is not necessarily evidence of

absence. Finally, the materialization of a written statement emanating from the

Minnehaha County Jail a year and half after Condon’s conviction on grand theft

charges is at best a suspicious circumstance on its face. Without more, we conclude

there is evidentiary support for the trial court’s oral finding that circumstantial

guarantees of trustworthiness were lacking and therefore find no abuse of

discretion in its refusal to admit Jandreau’s statement.

[¶41.] 4. Whether the trial court abused its discretion by
denying Condon’s motion for a new trial pursuant
to SDCL 15-6-59(a)(4).

[¶42.] SDCL 15-6-59(a)(4) is a provision whereby the trial court may grant a

motion for new trial where evidence, material to the movant, is newly discovered

and could not with reasonable diligence have been discovered and produced at trial.
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Condon’s motion for a new trial was based on her claim of new evidence of mistaken

identity with Rodriquez brought to her attention by fellow inmates at the

Minnehaha County Jail when she was awaiting sentencing. She submits that her

facial characteristics are nearly identical to Rodriquez’s and that the photo on her

booking sheet when juxtaposed with Rodriquez’s bears out her contention. Condon

also asserts that the description of the person Comparan observed leaving La

Mexicana with jewelry in hand, which he told to Millette, was of an American

Indian woman, 5’ 2” to 5’ 3” in height and weighing approximately 200 lbs. This,

Condon argues is further evidence that Rodriquez was the responsible party since

Rodriquez, according to her booking sheet and testimony, is 5’ 4” tall and weighs

about 225 lbs. 15 16 Condon then argues that this fact coupled with her height and

15. Rodriquez’s testimony at the motions hearing indicates that her weight,
recorded on the June 29, 2006 booking sheet, was consistent with her weight
in June 2004, when the jewelry theft occurred.

16. We note that Comparan testified at trial that the woman he observed
emerging from La Mexicana with jewelry in hand that he later identified as
Condon “looked like she was tall” and “a little obese.” Supra ¶3. Whether
being 5’ 7” and weighing 180 lbs., like Condon, is to be tall and a little obese,
is a relative question. Condon has asserted that she should be eliminated as
a suspect because Rodriquez, who is 5’ 4” and weighs 225 lbs., is closer to the
description of the jewel thief given by Millette at the motions hearing, 5’ 2” to
5’ 3” and 200 lbs., than Condon who is 5’ 7” weighing 180 lbs. However, from
our review of the record, it would appear that the height and weight
discrepancy may simply be attributable to a mistake or confusion by Millette.

Millette’s testimony as to the physical description came from the
supplementary investigation report that he completed following interviews
with Lores, Comparan and Reta and refers to the woman that first came in
looking for fajita meat. The report provides in pertinent part:

LORES, ANDRIANA, she was working the counter by herself in the
store.

(continued . . .)
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weight of 5’ 7” and 180 lbs., clearly points to Rodriquez as the person matching the

description of the thief. Condon also argues that beyond her description, the

identity of Rodriquez as the true thief was corroborated by the testimony and

statements of fellow inmates conveyed to her in the county jail. 17

[¶43.] A defendant seeking a new trial based on newly discovered evidence

pursuant to SDCL 15-6-59(a)(4) must show:

(1) that the evidence was undiscovered by the movant
at the time of trial;

________________________
(. . . continued)
. . . She advised at approximately 1535 hours she was working the
front counter when an Indian female walked into the store and
went back to the end of the store which is the cold meats
department. Lores followed the female back to the area and was
discussing items at this time.

The female she described to me had dark hair, dark eyes, short, 5’ 2” to
5’ 3”, 200 lbs, short dark hair.
....

(Emphasis added).

In Millette’s report, the account of Comparan’s interview offers no
description of the thief other than to say she was an Indian female.
The only other height and weight description in the report is the 5’ 10” 180
lbs. description of Condon that Millette obtained from law enforcement’s
master name list when he searched that database for her after receiving her
name as a possible suspect from Reta.

17. Although Jandreau did not testify and her handwritten statement alleging
Rodriquez to be the jewelry thief was not admitted into evidence, defense
counsel offered argument as to why it should be admitted under the residual
hearsay exception. Similarly, the trial court was aware of another hearsay
writing allegedly conveying an account of a third Minnehaha County Jail
inmate, Sophie Lovell. In this writing it was alleged that Rodriquez had
offered jewelry to Lovell. Lovell was subpoenaed to testify at the motions
hearing, but never appeared. On September 12, 2006, the trial court refused
to admit this writing.

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(2) that the evidence is material and not merely cumulative
or impeaching;

(3) that it would probably result in acquittal; and,

(4) that no lack of diligence caused the movant to discover
the evidence sooner.

State v. Gehm, 1999 SD 82, ¶13, 600 NW2d 535, 540. A motion for a new trial

based on new evidence requests “extraordinary relief.” Id. ¶15. Therefore, it

“should be granted only in exceptional circumstances and then only if the

requirements are strictly met.” Id. This is not such an occasion.

[¶44.] While the new evidence proffered by Condon is material in that it

relates to the identity of the La Mexicana jewel thief, was undiscovered at the time

of trial and arguably undiscoverable any earlier than when Condon brought it to

light, Condon must also show that it would probably result in acquittal. In denying

Condon’s motion, the trial court concluded that it would not.

[¶45.] In its November 27, 2006 findings of fact, the trial court found the

photographs of Condon and Rodriquez similar, but not identical. The trial court

also found that the photographs of the two women were far more similar than were

their actual appearances, observed by the court at the motions hearing. In addition

the trial court noted that none of Condon’s fellow inmates, who conveyed the new

evidence to her, ever came forward to law enforcement with the information. Most

determinative was the trial court’s finding that the circumstances surrounding the

discovery of the new evidence were “highly suspicious and lacking credibility.”

Moreover, it found Condon’s fellow inmates and the new evidence itself to be

likewise highly suspicious and lacking in credibility. In comparison the trial court

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reflected on the trial testimony of Comparan and Reta, finding it to be “very

impressive, strong and credible.”

[¶46.] Since there is evidentiary support for the trial court’s findings

underlying its decision to deny Condon’s motion for a new trial, we find no abuse of

discretion with regard to this issue.

[¶47.] Affirmed.

[¶48.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices,

concur.

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