Summary
The Supreme Court of South Dakota reviewed David McCrary’s challenges to his guilty-plea agreement and sentencing for two counts of felony child abuse. The court affirmed most issues, including claims concerning judicial bias, alleged plea-agreement violations, and sentencing evidence, but reversed and remanded for resentencing before a different judge because the sentencing judge initiated an improper ex parte communication with the victim’s therapist.
Topics
Practice areas
Questions Presented
- Whether the trial judge was required to recuse himself because of alleged personal bias against McCrary.
- Whether the State violated the plea agreement by its conduct at the sentencing hearing, including cross-examination of defense witnesses.
- Whether the trial court committed reversible error by considering allegedly unreliable or aggravating evidence at sentencing.
- Whether the trial court's self-initiated ex parte contact with the victim's therapist constituted reversible error.
Holdings
- McCrary failed to overcome the presumption of judicial impartiality or establish personal bias or prejudice as a matter of law.
- The trial court did not clearly err or abuse its discretion by permitting the State to cross-examine defense witnesses within the scope of the evidence presented by the defense, and McCrary failed to preserve a specific objection.
- The sentencing court could consider the broad range of information bearing on McCrary's character and history, including uncharged or acquitted conduct, and the sentence was affirmed on this issue.
- A judge may not independently investigate facts by initiating an ex parte communication with a witness or potential witness; when the judge initiates such communication, prejudice is implicit and need not be shown.
Key quotations
“A judge must not independently investigate the facts in a case.” (¶ 32)
“A judge simply cannot be both a judge and a prosecutor searching out facts favorable to the state without abandoning his or her judicial neutrality.” (¶ 33)
Factual background
McCrary was indicted for sexual offenses involving his young daughter and later pleaded guilty under an agreement to two counts of felony child abuse. The agreement provided that the State would remain silent at sentencing except for introducing a statement from the victim. During sentencing proceedings, the court considered evidence concerning alleged sexual abuse of the victim and another child, and the judge independently contacted the victim's therapist to ask whether he believed the child had not been molested by McCrary. The court imposed two consecutive ten-year sentences, suspending the second sentence subject to conditions.
Procedural history
A grand jury indicted McCrary for first-degree rape and three counts of sexual contact with a child under sixteen. Under a plea agreement, he pleaded guilty to two counts of felony child abuse. The circuit court imposed two consecutive ten-year sentences, suspending the second sentence subject to conditions. The South Dakota Supreme Court affirmed the first three issues but reversed and remanded for resentencing before a different judge because the sentencing judge independently contacted the victim's therapist.
Remand instructions
Remanded to the Seventh Judicial Circuit for resentencing by a different judge.