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#30327-r-MES
2024 S.D. 78
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellant,
v.
NATHAN ANTUNA, Defendant and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
BRULE COUNTY, SOUTH DAKOTA
****
THE HONORABLE CHRIS GILES
Judge
****
MARTY J. JACKLEY
Attorney General
NOLAN WELKER
CHELSEA WENZEL
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff and
appellant.
JOHN R. MURPHY
Rapid City, South Dakota Attorney for defendant and
appellee.
****
CONSIDERED ON BRIEFS
MARCH 20, 2024
REASSIGNED
OCTOBER 8, 2024
OPINION FILED 12/11/24
#30327
SALTER, Justice (on reassignment).
[¶1.] In February 2022, a Brule County grand jury returned an indictment
charging Nathan Antuna with third-degree rape, alleged to have occurred in August
2016. Antuna sought an order requiring the State to obtain information related to
any mental health treatment records of the victim, K.B. The State objected, stating
it had no such records in its possession, nor did it know if any existed. Following a
hearing, the circuit court entered an order directing the State to determine whether
such records existed and, if so, provide them to the court for an in-camera review.
The State, on behalf of K.B., notified the court that K.B. was asserting her rights
under Marsy’s Law. In turn, Antuna served a subpoena duces tecum on K.B.
seeking the same records, which the State moved to quash. The court did not rule
on the motion to quash but, instead, ordered the State to speak with K.B. to
investigate whether any mental health records existed, obtain any records by
subpoena, and provide them to the court for an in-camera inspection. The State
filed a petition for an intermediate appeal, which we granted. We now reverse the
circuit court’s order and direct the court to enter an order granting the motion to
quash.
Factual and Procedural Background 1
[¶2.] In August 2016, K.B. and a friend visited a local bar in Chamberlain
where they met a group of men, including Antuna, in town for work. K.B.’s friend
1. The facts in ¶¶ 2–4 are gleaned from the facts related by the parties’
submissions on appeal and in the circuit court. The facts, insofar as they go,
are not disputed, and, though they are necessary to set the context for our
analysis, we note that there has been no actual factfinding at this point.
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left around 11:30 p.m., but K.B. remained at the bar with the men. The following
morning, K.B. awoke in her bed, having no memory of how she had gotten home.
She recalled going out and meeting the group of men but nothing beyond that. K.B.
“did not think she had sexual intercourse but was not sure.” These circumstances
prompted K.B.’s sister to take K.B. to a local hospital where a sexual assault
examination was performed, and the materials collected were subsequently
submitted to the South Dakota State Forensic Laboratory (state crime lab) for
testing.
[¶3.] That same day, law enforcement interviewed the men from the group,
including Antuna. Antuna confirmed meeting K.B. and drinking with her at the
bar but denied having any sexual contact with her. Based on the denials of the men
during their interviews and K.B.’s own doubt that intercourse occurred, law
enforcement did not collect DNA samples from the men for comparison.
Nonetheless, K.B.’s vaginal swabs ultimately tested positive for the presence of
sperm, but by the time law enforcement received these results, the men had left the
area.
[¶4.] In September 2021, however, the state crime lab conducted a periodic
search of the Combined DNA Index System (CODIS) and matched DNA from sperm
cell samples taken from K.B.’s vaginal swabs to Antuna’s DNA. 2 Based on this
preliminary information, law enforcement procured a search warrant for a known
sample of Antuna’s DNA. Antuna’s known DNA sample was later obtained and
2. By this time, the state crime lab had received information regarding Antuna’s
DNA profile through a means unrelated to this case.
-2-
#30327
confirmed that his DNA matched to samples obtained from the sperm cells found on
K.B.’s vaginal swabs.
[¶5.] In February 2022, a Brule County grand jury returned an indictment
charging Antuna for third-degree rape under the theory that K.B. was “incapable of
giving consent because of any intoxicating, narcotic, or anesthetic agent or
hypnosis[.]” SDCL 22-22-1(4). Antuna subsequently moved for disclosure of K.B.’s
“treatment records.” But Antuna was uncertain as to whether there were any such
records, so he asked the circuit court to order the State to:
• “disclose all medical reports related K.B.’s physical and/or
mental condition between August 2, 2016, and the present
that relate to the allegations made in this criminal case;”
• “obtain from [K.B.] the names of all counselors,
therapists, or other mental health treatment providers
that she has conferred with regarding the allegations
made in this case . . . ; and,”
• “obtain all records from the providers identified [above]
and to release them to defense counsel subject to a
protective order . . . .”
[¶6.] Antuna claimed he has a constitutional right to disclosure of the
records by virtue of his right of confrontation and the due process right described in
Brady v. Maryland,
373 U.S. 83
,
83 S. Ct. 1194
,
10 L. Ed. 2d 215
(1963). 3
3. In Brady v. Maryland, the United States Supreme Court held that the
defendant’s due process rights were violated when favorable evidence was
withheld by the State.
373 U.S. at 87
,
83 S. Ct. at 1196-97
. Brady was later
extended to impeachment evidence, United States v. Bagley,
473 U.S. 667,
676
,
105 S. Ct. 3375, 3380
,
87 L. Ed. 2d 481
(1985), and the resulting rule
imposes an obligation upon prosecutors to unilaterally disclose what is now
commonly known as Brady material. A prosecutor violates Brady by
suppressing “evidence [that] is material either to guilt or to punishment,
(continued . . .)
-3-
#30327
Anticipating the assertion of a crime victim’s right to privacy set out in Article VI,
§ 29 of our Constitution (Marsy’s Law), Antuna articulated a hierarchical
framework under which “[a]ny rights given to K.B. under Marsy’s Law are
subservient to Antuna’s state and federal constitutional rights.”
[¶7.] The State objected, asserting that K.B.’s mental health records, if any,
were not within its possession, custody, or control. Additionally, the State
maintained that neither the constitutional rights nor discovery rights cited by
Antuna “requir[ed] the State to gather materials on behalf of [Antuna] for discovery
purposes.”
[¶8.] At a September 2022 hearing, Antuna expressed concern that the
State “only intend[ed] to provide matters that are in its possession.” He contended
that “Brady and its progeny don’t create a loophole for the State to avoid disclosure
. . . by not taking them into their possession.” Further, Antuna noted that, under
SDCL 23A-13-4, “the State is under an obligation to exercise due diligence and to
disclose things that it knows about or could know about through the exercise of due
diligence.”
[¶9.] The State acknowledged its obligation to comply with discovery
statutes and Brady, but it asserted it was unaware of the existence of any
counseling and mental health records for K.B. In the State’s view, neither SDCL
23A-13-4 nor Brady were discovery tools that could be used to compel the State to
collect evidence for the defense. The circuit court determined that the State must
________________________
(. . . continued)
irrespective of the good faith or bad faith[.]” Brady,
373 U.S. at 87
, 83 S. Ct.
at 1196–97.
-4-
#30327
exercise due diligence to inquire as to the existence of any counseling or mental
health records.
[¶10.] In a September 26, 2022 order, the circuit court directed the State to:
(1) make inquiries with K.B. as to whether she has received any
mental health, counseling, or treatment since August 2, 2016,
and ascertain where or from whom such services were provided;
(2) attempt to obtain these records from the providers with
K.B.’s assistance; (3) if such records are received by the State,
for the State to provide them to the [c]ourt for its in camera
review; and, (4) if K.B. refuses to cooperate with the State or
objects to the disclosure of the records to the [c]ourt, for the
State to notify the [c]ourt so that further proceedings may be
considered.
Antuna did not serve the State with a notice of entry regarding the court’s
September 26 order.
[¶11.] On November 29, 2022, the State notified the circuit court that K.B.
was asserting her constitutional rights under Marsy’s Law, including the right to
privacy and its constituent right to refuse a “discovery request[.]” S.D. Const. art.
VI, § 29 (6). The State asserted, on behalf of K.B. and with her express permission,
that the court “does not have the authority to compel K.B. to disclose her mental
health information, if any exists.” Additionally, the State also notified the court of
K.B.’s intention to assert her psychotherapist-patient privilege under SDCL 19-19-
503.
[¶12.] In light of K.B.’s assertion of rights, the circuit court scheduled a
second hearing to address how to proceed. In the interim, Antuna served a
subpoena duces tecum upon K.B. seeking the same treatment records. The State
moved to quash the subpoena restating its earlier arguments and also asserting
that the information was not subject to disclosure through a subpoena. The State
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#30327
cited our decision in Milstead v. Johnson,
2016 S.D. 56
,
883 N.W.2d 725
, which, in
turn, relied upon a three-factor test for disclosure established by the United States
Supreme Court in United States v. Nixon,
418 U.S. 683
,
94 S. Ct. 3090
,
41 L. Ed. 2d
1039
(1974).
[¶13.] At the second hearing, the circuit court declined to rule on the State’s
motion to quash or apply the Nixon factors. Instead, it stated that it must first
“ascertain whether or not there are even any relevant records” before determining
the details of disclosure and conducting an in-camera review. The court initially
proposed scheduling a hearing at which K.B. would appear pursuant to a subpoena
to answer under oath whether she had seen any counselors:
We’re going to have to schedule a hearing. K.B. is going to have
to be subpoenaed to appear at that hearing. And I think the
questions to K.B. would be: Have you seen any counselors in the
last five or six years since this alleged incident took place? If
she says no, we’re done, and that line of discovery is over with.
If she says yes, then I think she can be asked who and where
and the time frames because then those records are discoverable
for in camera inspection.
Now, I think the subpoenas can come from the defendant
directing the material be turned directly over to the Court to
protect K.B.’s rights and privacy.
[¶14.] After further discussions with the parties, the circuit court ultimately
altered its plan to eliminate the requirement for K.B. to appear to disclose whether
she had received counseling or mental health treatment. In its written March 9,
2023 order, the court directed the State to assist K.B. in producing an affidavit
stating whether she received counseling or mental health treatment. If K.B.
indicated that she had received this treatment, the court instructed the State to
subpoena any related records in order to provide them to the court for its review in-
-6-
#30327
camera. Fifty days later, on April 28, the State filed a petition for discretionary
appeal. In its petition, the State asked that we reverse the court’s “First and
Second Orders and related oral rulings[.]”
[¶15.] Antuna filed a motion to dismiss the petition for discretionary appeal,
arguing it was not timely. See SDCL 15-26A-13 (requiring a petition for
discretionary appeal to be filed “within ten days after notice of entry of such order”).
On June 5, 2023, we granted the petition to appeal but ordered the parties to “brief
upon the jurisdictional issue raised in Respondent’s motion to dismiss in addition to
the issue raised in the original petition.” After reviewing the submissions of the
parties, we conclude the State’s petition was timely. There is insufficient evidence
in the record to establish that Antuna served the State with notice of entry of either
order, but in our view, we are reviewing only the March 2023 order which effectively
superseded the September 2022 order.
Analysis and Decision
[¶16.] The circuit court’s March 2023 order cited “Mr. Antuna’s confrontation,
due process, and discovery rights [under SDCL 23A-13-4]” as the legal bases to
require the State to essentially compel K.B. to disclose whether she had sought
counseling as a result of the alleged rape. In our view, these authorities do not
authorize the court’s order, which reflects an incorrect view of pretrial discovery in
a criminal case. We address the bases upon which the court relied in turn. 4
4. Each of these bases implicate a legal question that is reviewed de novo. See
State v. O’Neal,
2024 S.D. 40, ¶ 35
,
9 N.W.3d 728
, 744 (quoting State v.
Krouse,
2022 S.D. 54, ¶ 47
,
980 N.W.2d 237, 251
) (“We review ‘[a]n alleged
violation of a defendant’s constitutional right to due process’ under a de novo
(continued . . .)
-7-
#30327
A prosecutor’s obligation under Brady v. Maryland
[¶17.] The rule originally stated in Brady, and calibrated in a succession of
later cases, imposes an obligation upon prosecutors to disclose information to the
defense that is either exculpatory or has impeachment value. See Strickler v.
Greene,
527 U.S. 263
, 280–81,
119 S. Ct. 1936, 1948
,
144 L. Ed. 2d 286
(1999)
(tracing the development of the Brady rule). A prosecutor’s duty under Brady is a
solemn one, rooted in due process and transcending subjective good faith. See State
v. Absolu,
2024 S.D. 66
, ¶¶ 37–39, ___ N.W.3d ___ (discussing Brady). For this
reason, prosecutors cannot view information in their possession parochially but
must meet their obligation to “learn of any favorable evidence known to the others
acting on the government’s behalf in [the] case, including the police.” Erickson v.
Weber,
2008 S.D. 30
, ¶ 18,
748 N.W.2d 739, 745
(quoting Strickler,
527 U.S. at 281
,
119 S. Ct. at 1948
).
[¶18.] There is nothing here that implicates Brady, at least not at this point.
Brady’s command is stern, to be sure, but it does not require prosecutors to
investigate defense theories. Indeed, we have held precisely that.
[¶19.] In State v. Erickson,
525 N.W.2d 703
(S.D. 1994), the defendant was
charged with sexual contact with a child and “filed a motion for discovery of names
and addresses of all physicians or counselors with whom the victim may have
________________________
(. . . continued)
standard.”); see also State v. Little Long,
2021 S.D. 38, ¶ 29
,
962 N.W.2d 237,
249
(“[W]e review whether [defendant’s] Sixth Amendment right to
confrontation was violated de novo.”); State v. Kurtz,
2024 S.D. 13, ¶ 12
,
4
N.W.3d 1
, 4 (“Whether the circuit court misinterpreted or misapplied [a
statute] involves a question of statutory interpretation, which we review de
novo[.]”).
-8-
#30327
spoken about the alleged sexual conduct.”
525 N.W.2d at 710
. Though he was
uncertain as to “whether such material or information existed,” the defendant
nevertheless argued that the prosecution was obligated “to make inquiry of the
victim or her mother regarding any counseling the victim may have received.”
Id.
For its part, “[t]he State claimed it had no knowledge of any such persons or
consultations.”
Id.
[¶20.] We affirmed the circuit court’s decision which limited the prosecutor’s
disclosure, under the circumstances, to “copies of any counselors’ reports the State
had obtained or may subsequently obtain . . . [and] . . . any releases of information
signed by the victim.”
Id.
(emphasis added). On general principles, the circuit court
recognized that “the victim had a right to consult with counselors and/or physicians
in private.”
Id.
We stated our reasoning in the following terms:
There is no evidence in the present case that the prosecution
ever had the information requested by [the defendant]. [The
defendant] himself did not know whether such information
existed. Consequently, the prosecution could not suppress this
evidence. Further, while the State cannot suppress evidence
favorable to a defendant, it is not the state’s duty to conduct a
discovery examination for a defendant. Brady does not impose
on the prosecution a general duty to help the defense find
witnesses who might be favorable to the defendant. Brady
clearly does not impose an affirmative duty upon the
government to take action to discover information which it does
not possess.
Id.
(cleaned up).
[¶21.] The same analysis applies here. The Brady rule is truly not a
discovery tool, and the circuit court erred by regarding it as one. Properly viewed,
the Brady rule is a due process standard imposed, in the first instance, upon
-9-
#30327
prosecutors—not the courts. 5 See United States v. Bagley,
473 U.S. 667
, 675 n.7,
105 S. Ct. 3375
, 3380 n.7,
87 L. Ed. 2d 481
(1985) (“An interpretation of Brady to
create a broad, constitutionally required right of discovery ‘would entirely alter the
character and balance of our present systems of criminal justice.’” (citation
omitted)); United States v. Miller,
698 F.3d 699, 704
(8th Cir. 2012) (“Brady is not a
discovery rule, but a rule of fairness and minimum prosecutorial obligation.”
(citation omitted)).
The right of confrontation
[¶22.] Nor is the Sixth Amendment right of confrontation a discovery rule. It
is, instead, a trial right guaranteed to a criminal defendant. The Supreme Court
recognized as much in Pennsylvania v. Ritchie,
480 U.S. 39
, 52–53,
107 S. Ct. 989,
999
,
94 L. Ed. 2d 40
(1987), and we have as well:
The Ritchie Court held that the Confrontation Clause does not
create “a constitutionally compelled rule of pretrial discovery.”
Id. at 52
,
107 S. Ct. at 999
. Instead, it affords criminal
defendants two specific protections: “the right physically to face
those who testify against him, and the right to conduct cross-
examination.”
Id. at 51
,
107 S. Ct. at 998
.
Milstead v. Smith,
2016 S.D. 55
, ¶ 12,
883 N.W.2d 711, 717
.
[¶23.] We cited this same rule in State v. Karlen,
1999 S.D. 12
,
589 N.W.2d
594
, where we found the existence of a confrontation clause violation after the
defendant had been convicted of rape and sexual contact. We held the defendant
5. In the event the circuit court would have conducted an in-camera review, it
stated it would order the disclosure of any records that it deemed
exculpatory. However, this formulation of Brady is incomplete. Brady’s
disclosure requirement applies equally to exculpatory and impeachment
material.
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#30327
was unable to effectively cross-examine one of the victims at trial because the
circuit court granted a motion to quash the defendant’s subpoena seeking the
victim’s counseling records and refused the defendant’s request to review the record
in-camera. Our decision turned largely on our determination that the victim had
waived the statutory privilege that would have otherwise protected the victim’s
communications with his counselor.
[¶24.] But Karlen cannot be read to authorize pretrial discovery to determine
whether a broad class of information exists at all. The records in Karlen were
known, and there was also evidence that the victim had related differing accounts of
the events in question to third parties outside of the counseling setting.
[¶25.] Neither can Karlen be used to universally authorize an in-camera
inspection of subpoenaed records under the auspices of the Sixth Amendment.
Instead, we simply determined in Karlen that the in-camera procedure was an
appropriate means of balancing the victim’s general privacy interests with the
defendant’s right of confrontation for unprivileged counseling records whose
existence was known—circumstances that are starkly at odds with those we
confront in this appeal.
SDCL 23A-13-4
[¶26.] Unlike Brady or the confrontation clause, SDCL 23A-13-4 is a
discovery rule, but its plain text does not support the circuit court’s order requiring
the State to compel K.B. to disclose any counseling treatment. In the court’s view,
this was part of the State’s “duty to exercise due diligence if they know or could
-11-
#30327
know of the evidence that pertains to the case.” This, however, is not the discovery
requirement of SDCL 23A-13-4, which provides:
Upon written request of a defendant, the prosecuting attorney
shall permit a defendant to inspect and copy or photograph any
results or reports of physical or mental examinations, and of
scientific tests or experiments, or copies thereof, which are
within the possession, custody, or control of the prosecuting
attorney, the existence of which is known, or by the exercise of
due diligence may become known, to the prosecuting attorney,
and which are material to the preparation of the defense or are
intended for use by a prosecuting attorney as evidence in chief
at the trial.
(Emphasis added.)
[¶27.] By its plain terms, SDCL 23A-13-4 requires prosecutors to exercise due
diligence to learn of discoverable information that already exists “within the
possession, custody, or control” of the prosecutor. (Emphasis added.) The statute
does not require prosecutors to create discoverable information or conduct an
investigation at the request of the defendant. A contrary reading of the statute
would dramatically alter the relative roles of the parties in a criminal action. It
would also affect the nature of the court’s role, as the facts here illustrate. No
matter how well intentioned, the circuit court here should have resisted the impulse
to design a pretrial discovery plan to elicit information from a victim that is not part
of the State’s investigation and is not even known to exist.
[¶28.] In sum, then, none of the bases identified by the circuit court were
sufficient, alone or in concert, to support the court’s decision to require the State to
ask K.B. about the existence of counseling records. The court should have simply
resolved the motion to quash before it under the Nixon analysis we have adopted
and applied in our previous decisions.
-12-
#30327
Nixon and the motion to quash
[¶29.] In our recent opinion in State v. Waldner,
2024 S.D. 67
, ___ N.W.3d
___, we held that a victim does not have an absolute right to privacy under Marsy’s
Law. That is to say, information relating to a victim may be subject to production
under a subpoena issued pursuant to SDCL 23A-14-5, which is our state law
counterpart to Rule 17(c) of the Federal Rules of Criminal Procedure.
[¶30.] The determination of whether information from a victim is subject to
production through a subpoena is guided by the three Nixon factors, or “hurdles,”
which must be established by the party seeking production: 1) relevancy, 2)
admissibility, and 3) specificity with regard to the information requested. See
Waldner,
2024 S.D. 67
, ¶¶ 53–60, ___ N.W.3d ___ (applying factors from Nixon,
418
U.S. at 699
,
94 S. Ct. at 3103
); see also Milstead,
2016 S.D. 56
, ¶ 20, 883 N.W.2d at
733–734 (adopting the Nixon test).
[¶31.] On the record before us, Antuna’s subpoena falls patently short of the
mark for any of these three areas of inquiry. The failure of proof under Nixon is
self-evident; Antuna does not know if K.B. has even received counseling treatment
as a result of the rape charged in the indictment. In the absence of this critical
information, no court could begin to assess relevancy, admissibility, or specificity
without asking instinctively, “of what?”
[¶32.] For this reason, we reverse the circuit court’s order directing the State
to compel K.B.’s response about the existence of counseling records with the
additional requirements to subpoena them and furnish them to the court for an in-
-13-
#30327
camera review. And because there is no showing that would permit production
under Nixon, we direct the court to grant the motion to quash Antuna’s subpoena.
[¶33.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN,
Justices, concur.
-14-Case Information
- Court
- S.D.
- Decision Date
- December 11, 2024
- Status
- Precedential