State v. Pursley, 879 N.W.2d 757

On Nov. 3, 2012, Steven Pursley struck Jeffrey Patterson outside a strip club, rendering Patterson unconscious and causing a brain bruise; Pursley also struck Caleb Fousek later that night.
Police were not able to immediately identify Pursley; he was later recognized and arrested after Thompson identified him on Nov. 30, 2012.
Pursley was charged with two counts of simple assault; at trial he asserted self-defense regarding Fousek and defense-of-others (his sister) regarding Patterson.
During cross-examination the prosecutor repeatedly questioned whether Pursley’s story changed after consulting with counsel, implying counsel helped manufacture the defense; in closing the prosecutor referred to a "defense of convenience" after consulting an attorney.
The jury convicted Pursley of assaulting Patterson but acquitted him of assaulting Fousek; Pursley appealed claiming the prosecutor’s references to his attorney violated his Sixth Amendment right to counsel and denied him a fair trial.
The South Dakota Supreme Court found the prosecutor’s comments improper but held any error harmless beyond a reasonable doubt and affirmed the conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether references to defense counsel during cross-examination and closing violated Pursley’s Sixth Amendment right to counsel and denied a fair trial	Prosecutor’s statements improperly suggested counsel helped concoct a false defense, violating the right to counsel and attacking counsel’s credibility	Prosecutor’s questioning and argument constituted permissible impeachment and did not prejudice the defendant; any error was harmless	Court: Comments were improper (went beyond legitimate impeachment) but any error was harmless beyond a reasonable doubt; conviction affirmed

State v. Smith, 599 N.W.2d 344 (S.D. 1999) (reversal only if prosecutorial misconduct prejudiced defendant)
Chapman v. California, 386 U.S. 18 (1967) (constitutional error may be harmless only if harmless beyond a reasonable doubt)
Fahy v. Connecticut, 375 U.S. 85 (1963) (standard for harmless-error inquiry)
State v. Heumiller, 317 N.W.2d 126 (S.D. 1982) (constitutional errors can be subject to harmless-error analysis)
Berger v. United States, 295 U.S. 78 (1935) (prosecutor’s duty to seek justice and avoid improper methods)
Portuondo v. Agard, 529 U.S. 61 (2000) (defendant who testifies may be impeached like any witness)
State v. Blaine, 427 N.W.2d 113 (S.D. 1988) (prosecutor must refrain from injecting unfounded or prejudicial innuendo)