State v. Ball

2004 SD 9 Dakota, Plaintiff

STATE South Appellee, BALL, Appellant. Defendant and

John

No. 22343.

Supreme Court of South Dakota.

Considered on Briefs Jan. 2003.

Reassigned April

Decided Jan. Dakota,

al, Pierre, Attorneys for South appellee. plaintiff Andersen, of the Public Bryan T. Office Pennington County, Rapid for Defender Dakota, Attorney for defen- City, South appellant. dant and (on ZINTER, reassignment). Justice on two Ball was convicted John appeal, he degree rape. counts of first On (1) in: that the trial court erred asserts for a mistrial for denying request his (2) violation; denying him access discovery records; of Social Services Department (3) judgment for a denying his motion indictment; acquittal on one count of (4) a mistrial be- denying request his for on his commented cause the a cruel testify; imposing failure to con- Because we punishment. and unusual com- improperly clude that the right Ball’s constitutional mented on silent, remand on we reverse and remain discovery also review the Issue We Issue

Background light in a the facts relate [¶ 2.] We to the verdict. State most favorable (S.D.1995). On Hage, 532 N.W.2d Arendt, Tonya December M.B., Elder Po- contacted Box mother in- Misselt. She Chris lice Detective allega- had made him that M.B. formed Ball, M.B.’s by abuse John of sexual tions concerned because Arendt was father.1 “sniff- of Ball two incidents reported M.B. year. On during visitations ing” her M.B. Misselt interviewed January interview, inci- reported M.B. seven In the Ball, in- contact inappropriate dents pen- allegations of sexual cluding the two rape Ball’s subject General, that are the etration Attorney Long, E. Lawrence appeal. in this Attorney convictions Gormley, Gener- Assistant Grant father, Arendt, Ball-had visi- mother, time. separated for some been Tonya 1. M.B.’s rights. Ball, tation years, but had dated for six had John allegedly first incident oc- [¶ 3.] The Barnett that while she visiting Ball on Eve, kissed, day licked, curred on a the two were involved in a Christmas he Although private parts. vehicular accident. M.B. be- sucked her Barnett testi- fied to this lieved that it occurred some time Febru- conversation at trial. ary it was later determined that the Dr. Strong [¶ 6.] Lori conducted a January accident occurred 2000. On physical examination of M.B. on March day, Ball’s car struck two concrete Although any M.B. denied sexual poles ruptured gas and line. Ball and penetration of vagina her mouth or in this M.B. left the scene of the accident before statement, although any and M.B. denied police arrived proceeded and to the trial, penetration anal at reported she to Dakota stay- Rose Motel where were Strong Dr. that Ball penetrated had her motel, M.B., ing. returning After anally penis with his during the Christmas time, age eight began at the to take incident. M.B., According shower. to when she M.B.’s initial reports Detective towel, bring asked Ball to her a he came Misselt were turned over to Pennington bathroom, got into the disrobed and into County Deputy Gray. Gray Sheriff Misti the shower with her. She indicated that 21, 2001, first met with Ball on February got Ball down on his knees and took her but no specific questions were asked. La- hips to “lick began pri- and her ter, 2, 2001, on March Ball contacted vates,” sticking tongue fingers his and into Gray’s speak office and asked to with her. her. Although M.B. indicated that she repeatedly Ball daughter’s denied his alle- bathroom, escaped activity from the sexual gations, specifically denying any of the alleged continued. She that she later went rape allegations saying while that he did bed, but awoke to find herself naked not remember things. point, other At one and felt pulling legs apart her father her when asked if his child lying, had been he inserting and in tongue his her. Around replied, lying. “She is not I am lying. one or two that morning, while Ball was just I don’t remember.” Ball also con- asleep, picked up Arendt M.B. at the motel ceded that things” “[s]ome and took her home. M.B. appar- did not true. He sorry said he was he “hurt her.” ently report this incident time. expressed Ball jail. his wish to not go to [¶ M.B. testified that the in- 4.] second He was later arrested and made an initial Eve, cident occurred on Christmas Decem- appearance on March occasion, ber 2000. On this M.B. was trial, M.B., At State called visiting apartment Ball at in his Box Eld- Arendt, Barnett, Dr. Strong, Misselt, visit, er. during She indicated that Gray, Johns, Kay Officer Lindgren as “kissed, licked and private sucked her witnesses. The defense witnesses were parts” penis and “rubbed his on her butt.” Lynette Troy Barse and Fegueroa. Ball However, penetration actual sufficient to did not The guilty found Ball rape constitute became a dispute matter of on both counts of first degree rape of a in subsequent M.B.’s statements and testi- child than years less ten age. ap- He mony at trial. (1) peals, asserting following issues: subsequent first of M.B.’s “The trial court in denying erred Ball’s days statements was made four after M.B. motion for a mistrial for the violation of reported first the Christmas incident. discovery On the order and failure of the State occasion, spoke she to school counselor give proper notice under the medical John Barnett (2) about the matter. M.B. exception told hearsay rules.” “The er, testify. subpoena Both the and the denying in Ball access court erred trial Thus, Department police report of Social Ser- are the record. requested (3) R, “The court erred trial had M.B. knowledge vices records.” defense judgment her, motion for a denying Ball’s purportedly had told R re- II of the indictment.” acquittal Therefore, count ported to law enforcement. (4) finding erred in not “The court trial court was within its discretion re- closing during ar- fusing open rec- confidential DSS did the fact that Ball guments about ords.

testify denying Ball’s motion improper Request for Mistrial —Prosecutor’s “The trial court’s sen- for mistrial.” on Ball’s Comments Refusal the conscience consti- tence shocks Happened Tell “Us” What in punishment vio- cruel unusual tutes and Although Ball testi did not Eighth Amendment of the lation of the fy, the three in prosecutor made We address States Constitution.” United argument [not Ball (prosecuto- closing and that “knows (discovery) Issue 4 Issue comments). happened.” prosecutor knew] what The rial pointed also out that Ball admitted some Discovery Records DSS of things, then prosecutor and asked trial performed The court rhetorical true “what’s John?” confidential in camera review by conceding The concluded (DSS) Services rec Department of Social although physical no evi there was nothing and of relevance. Ball ords found trauma, hap dence “knows what to us to the sealed records asks review pened, but he’s not He’s not in that the trial court did not err its ensure telling happened.” prose us what a court’s decision review. We cutor commented: specifically under an release of confidential records folks, at again, going State v. So look what’s abuse of discretion standard. ¶ Cates, 99, 17, traffic 632 N.W.2d on. was there. [M.B.] SD fine for him. [M.B.] accident is a witness Our review of the one thousand [¶ and says Now when she he molested her most of the material pages reflects that her, raped lying making [M.B.] However, found irrelevant. we was in up get to him. Don’t lost get and out a following: “Ann child [the mother this, being put all all this that’s smoke helpful named stated that has been ‘R’] [R] happened up. Mr. Ball knows what girlfriend with a that confided [M.B.] by know that his statements. and that she about some sexual abuse [R] He hide from those. can’t Ann may testify have to court.' stated many of friends feel comfortable [R’s] of the Gray He told Misti some problems.” talking with her about their true, the allegations, are things some may “Tell-my daughter sorry I’m I hurt her.” passage have 11.] While relevant, go jail He nothing sug- in this note said he didn’t want been ward, contradictory psychiatric he a he needed gave that M.B. a rendi- needed gests Again, at counseling. parame- R. look importantly, tion of events to More R’s about, talking he alle- police report in the at- ters of which was name listed rape. that he gations saying a of a He’s complaint along tached to the with rendi- jail. That was go told R was also doesn’t want tion of what M.B. her. said, testify up he with when he subpoenaed to a June what followed not, of the are true.” “What’s evidentiary hearing. things did howev- “Some She true, happened. jail.” to go ?” “I don’t want John us what As far say, running handing For around naked as he’ll “Some things are true.” towel, daughter you’re going a your added.) (Emphasis only This was not the jail? improper prosecution (the Ball’s failure to tell “us” court and hap-

The defendant knows Earlier, jury) happened. ob- raped without pened. He her. wouldn’t He tell jection, told jury: stopped giving law enforcement. He Folks, allegations allegations, although details as far as the is what he knew was allegations true. at him: coming degree rape, some are first oral sex, a placing penis next It butt. signs Defense no point will out there’s running wasn’t around a room naked. Again, of trauma on that’s been [M.B.]. allegation? Is that an handing It wasn’t brought very out. Dr. it’s Strong stated daughter allega towel that was an [unjcommon you’ll sort of any have dam- Watching masturbate, tion. him that’s on a child for We age rape. talked allegation. not an He allega said the that in hap- about voir dire. It doesn’t tions, that some of allegations, some all pen the time. This wasn’t a forced things were true. Would he tell us something This that act. wasn’t left No, anymore? he wouldn’t.2 injuries or The exam- bruising. scars Significantly, present [¶ place thereafter, 13.] ination took tense sometime so, stood in comments stark the pen[ile] penetration, but even contrast the permissible other that comments anything. doctor said wouldn’t leave past on Ball’s Gray. statements to opening. It’s flexible Misti Oral contact in his sense, argument, Later genitals, folks, after the with common defense objection made, prosecutor clearly was the going that’s not anything to leave what- his ability demonstrated Finger penetration, again, permis- soever. make a past sible tense comment on going that’s not Ball’s lack of to do because there’s memory Gray. with Misti The prosecutor different levels of the area vaginal where argued: hymen the is. going It’s not leave The

scarring. defendant knows what gentlemen, Ladies and defense went talking. happened, but he’s not He’s through and said the defendant denied cline, cited This comment undercuts the dissent's Gray hap- or refuse "tell Misti what prosecutor's Instead, that assertion all of the state- pened.” merely Gray he told Misti part only were ments of a consistent theme "he things.” could not remember some involving permissible subject comment the Consequently, this record does not establish past Gray. statements made to Misti It is continuing one appropriate "theme” of suggested prosecutorial that all comments prosecutorial comment about the Misti part were a of this theme that existed from Rather, Gray interview. opening through argument. statement final knowledge comments about actual suggested It is therefore that the comments at tell, happened, refusing but were not permissible must issue have related ¶¶ events that occurred 44, 45, Gray. with Misti Fur- theme. See and 56. How- infra thermore, ever, prosecutorial argu- this earlier clearly unconstitutional comment unequivocal ment reflects other present cited here was made before the tense present Moreover, jury: Ball’s silence in now front of the comments under review. he highly objectionable any "Would tell us more. he statements were "but No Therefore, not he’s He’s wouldn't." now not us what statements happened,” just at were continuing and these comments have no re- issue not made as a Gray. lation to Ball’s prior interview with Misti On reference to Ball’s Misti statement to ¶ contrary, talking,” "stop Ball did Gray. de- infra contact, in this we’re dilemma time allegations, pen[ile] specific object and contact, whether draw attention to contact, yet, oral digital and it even pro- matter make more Gray Misti that some of told again, he preserve for the or so nounced are true. Those are allegations I asked issue. the Court we could he denied. said allegations exact defense preserve the at this time. issue go He wouldn’t deny didn’t them. He course, allegation impermissible Of it is into an com- detail about oral contact on the allegations were ment true. The Rose taking testifying. the Dakota Motel stand day on the significant contact after Christmas. What’s about statement pen[ile] happen, but then he made was that it was in the He said those didn’t said, he “Some of the tense. It was not in a refer- the same breath things ence to the statement made to Misti allegations are true. Some and, therefore, Gray inappropri- it was said are true.” [M.B.] motion, That’s the of our ate. basis added.) (Emphasis Your Honor. only objected after the first 14.] [¶ added.) (Emphasis ¶in 12. cited Defense series response, ar- and, the bench approached counsel had gued only that he commented on Ball’s discussion, an ob- preserved the record off i.e., Gray; statements to Misti that some Defense jection a mistrial motion.3 true, of what M.B. said was but defendant closing argu- presented then Ball’s counsel Gray specify would not to Misti what was completed arguments ment. When court, true.4 basing also its deci- deliberations, began counsel Gray, upon sion comments Misti objection and motion for made her record motion, agreed. The court denied the com- mistrial based the comment was “in direct stating prosecu- argued that ments. Counsel Gray’s testimony.” to Misti reference impermissible were an tor’s statements appeals, contending that the tense comment on the defendant’s present impermissible comments were an refer- (not “knows,” testify: failure defendant present tense ence to defendant’s “knew,”) but he’s not talk- happened, happened of what and his re- knowledge happened. he’s “us” what ing, therefore, testify, fusal violat- Harris, during clos- THE Ms. COURT: right against ed Fifth Amendment self- his you ing you pre- indicated wanted incrimination. your can point. record You serve do now. Ordinarily, denial 16.] [¶ “[t]he for will not be over Thank Your Honor. of motion mistrial you, MS. HARRIS: an abuse of discre Honor, during prose- turned unless there is closing [the Your for are I tion. mistrial within a statement. wrote Motions cutor] made talking” judge[.]” v. was in the discretion of State down. “He’s not ¶ Johnson, 9, 79, counsel, 80, 2001 SD 630 N.W.2d tense. As defense arguments exactly 4. A reflect is final It unclear from record type response this related to the was said in the off the record discussion. ¶ However, permissible 13 rather as a of cited we address this issue motion impermissible cited at than the for mistrial because briefs indicate it a motion mistrial. for ¶ 12.

198 Alidani, 52, v. 2000 (quoting question). 82 State SD ultimate Fifth Amendment The ¶ 155). 152, However, 9, Stanga this de novo standard of review Fifth 609 N.W.2d Amendment questions involve trial court fact constitutional is in case does not find- accord with our standard of review of oth is ing. issue here whether the The sole questions. er constitutional We have not Ball’s prosecutor’s comments on failure to ed that review of a motion to sup “[o]ur testify violated the Fifth Amendment press an alleged based on violation of a guarantee against self-incrimination. protected constitutionally right ques is a Therefore, the central this case tion of law examined de novo.” State v. factually undisputed is whether the com- ¶ Lamont, 92, 12, 603, 2001 631 N.W.2d SD ¶in 12 Ball’s ments cited violated constitu- 53, (citing 607 v. Hirning, State 1999 SD tional rights. ¶ 9, 600, 603; v. N.W.2d Ornelas Unit The United Supreme States States, 690, 699, ed 517 U.S. 116 S.Ct. specifically Court that “the Fifth has held 1657, 1663, 911, 920 134 L.Ed.2d ... Amendment forbids ... comment (standard of review questions for under prosecution on the accused’s silence.” Amendment); the Fourth United States v. 609, 615, California, v. 380 U.S. Griffin Khan, 1368, (9th Cir.1993)). 993 F.2d 106, L.Ed.2d Herrmann, v. also State SD (1965). Supreme Court noted that ¶ 9, 725, 728; Hodges, N.W.2d State testify on the “comment refusal is a ¶ 8, 206, 209; 2001 SD 631 N.W.2d ‘inquisitorial system remnant ¶ 110, 10, Brassfield, State v. 2000 SD justice’ criminal which Fifth Amend- N.W.2d applied 631. We have also ment outlaws.” Id. at 85 S.Ct. 1229 this review in Fifth other Amendment con Comm., (quoting Murphy v. Waterfront (“constitutional texts safeguard[] against 52, 55, 1594, 1596, confessions”). involuntary State Mora (1964)). Therefore, L.Ed.2d “[i]t ¶ to, 149, 11, 2000 SD 619 N.W.2d has long been the law in state that it is In considering Fifth viola Amendment for prosecution reversible error to call tions, “ specifically we have that it held attention the failure of ‘a legal question, requiring independent testify.” State v. Strick- (citations omitted) judicial review.'” Id. land, 522, 529, 575, 87 211 S.D. N.W.2d 580 added). (emphasis (1973) added) (emphasis (citing State v. [¶ a apply 19.] Other courts also de Brown, 195, 81 S.D. 132 N.W.2d 840 novo of standard of review constitutional (1965); 178, Wolfe, v. 64 S.D. State 266 example, Supreme violations. For (1936)). N.W. 116 Court of Iowa reviews claimed constitu- If the cited comments violated tional violations de v. novo. Iowa Gard- rights, Ball’s Fifth it Amendment is re- ner, (2003). 116, 661 117 Mary- N.W.2d Therefore, versible ques- error. sole land “[i]f holds that the facts as found tion in case involves a constitutional erroneous, the trier clearly of fact are not question, is a of which matter law. Such application our review of the law questions of law Fifth involving Amend- facts, those such as where impingement on questions ment constitutional are consid- may individual’s constitutional rights be ered a under different standard review. in question, de Mary- is novo.” Polk v. ¶ 129, Stanga, 8, See land, 1, State v. 2000 575, SD 617 378 Md. 835 579 A.2d 486, (further omitted). N.W.2d 488 a (applying deferential citations North Dakota underlying standard to the factual deter- holds that “our standard of review for a minations, independent review of right claimed violation a constitutional is

199 (1985), Messner, the issue al 1998 360 here involves v. North Dakota de novo.” ¶ 109, 151, 8, (citing leged rights of fifth amendment violation N.W.2d ND ¶ Wicks, 76, 17, question subject 1998 ND presenting Dakota v. a of law North 518). Wyoming holds: “we v. 576 N.W.2d de novo review. See United States (9th of review 1195, novo standard a de F.2d 1202-04 apply McConney, 728 Cir.) constitutional violations.” Sin (en banc), denied, claims cert. 469 U.S. ¶ 115, 19, 76 2003 WY Wyoming, (1984). v. cock 83 L.Ed.2d 46 105 S.Ct. 323, 332. P.3d Schuler, v. F.2d United States agree. The courts The federal (9th Cir.1987). also v. United States Appeals holds that Court of Eighth Circuit Cir.1991) Mares, (9th 940 F.2d a issue of whether constitu “the ultimate (stating pros review a claim that the “[w]e subject is violation has occurred tional closing argument ap ecutor’s violated Delo, Stallings v. novo ... de review.” novo”); pellant’s rights fifth amendment de Cir.1997) (8th (agreeing 117 F.3d Gray, 876 F.2d United States of whether that the issue petitioner with (9th Cir.1989) “in (reviewing such a claim Amend to his Fourteenth facts relevant dependently non-deferentially”), cert. a process gave claim rise to due ment denied, 2168, 109 process to due right of his violation (1990). L.Ed.2d 497 review). The subject to de novo dissent’s appli own Considering Tri our States v. United United reliance Cir.1999) (8th of review in is mis cation of the de novo standard plett, 195 F.3d 990 ¶¶ 47, Although placed. questions, similar Fifth Amendment see See infra ¶ 18, of discretion Stanga, quoted utilized the abuse we Triplett supra review say mis reviewing novo. not to standard statements de This is closing argument, recognized longer defer trial courts on conduct no pros- is also well established impressions findings “[i]t their firsthand ¶ occurs when ecutorial misconduct (relying upon at 52 fact. See dissent trial, directly or prosecutor comments at affirma involving civil a trial court’s case5 failure to indirectly, on defendant’s attempts tive to correct non-constitutional Triplett, (empha F.3d at 995 testify.” argument). the con closing error in On added) Delo, (citing sis Sidebottom of fact under trary, findings “[w]e (8th Cir.1995)). Thus, under F.3d clearly erroneous standard. Once the constitutionally impermissible if a Triplett, however, determined, facts have been failure to tes defendant’s legal standard those application of made, has prosecutorial misconduct tify is of law de novo. facts is a reviewed occurred, required. trial is We and new [And,] a constitu alleged violation of an Ninth Circuit has finally note the of right law tionally is protected in its novo some of de applied 93, 2001 SD Hodges, de novo.” reviewed cases: ¶ (internal 8, at 209 citations 631 N.W.2d usually review a trial

Although we omitted). controlling closing discretion in

court’s the sub next turn to discretion, We [¶ 22.] for arguments an abuse determine whether the Guess, 1286, test stantive v. 745 F.2d States United a defendant’s (9th denied, comments on Cir.1984), cert. 469 1288 Fifth See 1219, the Amendment. 1225, silence violate 105 84 L.Ed.2d U.S. Inc., (5th 1983). Airlines, 778 F.2d Cir. v. Eastern 705 5. Caldarera 200 Rose, 1163, F.2d in- prosecution’s v. 686 1170 n.6 Under

Butler manifest (6th Cir.1982) (discussing inquiry, accept tent could appli “universal one the state’s test). argument part prosecutor’s the two test is cation” of the whether “[T]he (Ball initial hap- “knows” what prosecutor] language [by used was pened) the Misti Gray related to interview manifestly of such charac intended or was and were not “manifestly therefore intend- naturally and jury ter that the would nec ed” to be a comment on the defendant’s essarily take it to be a comment on the found, failure to As court testify.” failure of the accused to Knowles “I heard the not singular, [a statement (10th States, 168, 224 F.2d 170 v. United plural and it was in reference] direct Cir.1955). also States v. Sand United refer- ence to Gray’s testimony, Misti Mr. (8th ers, 1037, Cir.1976); 547 1042 F.2d her, prosecu- discussed with and [the 505, 397 Lyon, States v. F.2d 509 United summarizing tor] was the events in the (7th Cir.1968) Knowles), (citing cert. de arguments he’s says talking ... nied, 846, 131, 89 S.Ct. 21 was not intended to be Although L.Ed.2d Knowles test taking tense and reference to Mr. Ball not yet Dakota, adopted has to be South added.) the stand.” (Emphasis rule.6 many Today, states embrace this adopt we this test. However, finding un- singular

intentional relating Accordingly, review Gray Misti does not end inquiry comment, ing prosecutor’s challenged we because the beyond went one prosecu first examine it was the whether (and comment on statements made tor’s “manifest intention” refer to the made) Gray. Moreover, to Misti we must defendant’s silence. A intent also examine all comments sec- under the equally is not “manifest” if there is an ond prong they of Knowles to determine plausible explanation for jury were “of such character Collins, remarks. v. United States 972 would naturally necessarily take (5th 1385, Cir.1992), F.2d 1406 cert. de [them] be comment on failure of nied, 1017, 1812, 507 U.S. Knowles, testify.” accused to 224 F.2d (1993). Furthermore, Or, L.Ed.2d chal at 170. as have previously stated lenged remarks must considered in be “[w]hen the comments are indirect allu- sions, in which made. context United the test is whether a reasonable 1171, 1179 v. Montoya-Ortiz, States F.3d intelligent jury would understand (5th Cir.1993). point out testify.” defendant’s failure to See, Arman, (1991) (same); e.g., People People Ebejer, v. 131 Ill.2d Mich.App. (1989); People 137 Ill.Dec. (1976) ("There N.E.2d 239 N.W.2d Hopkins, 52 Ill.2d 284 N.E.2d attempt part no deliberate prose- (1972) (The question "whether 'the refer testimony cutor to coerce the of the accused (was) ence intended or calculated to direct or to invite draw adverse infer- the attention of defendant's ences in the event the defendant declined to neglect legal right to avail himself of his Commonwealth, testify."); Tinsley v. ”) testify.’ (quoting People, Watt v. 126 Ill. ("The (Ky.1973) S.W.2d con- test as 340, (1888)); Cooper, 18 N.E. 350 State v. 52 cerns indirect comments is whether the com- (1977), Ohio St.2d 370 N.E.2d 733 reasonably ment jury's is certain to direct the grounds, vacated on other attention to the defendant’s failure to testi- (1978) (applying L.Ed.2d 1157 Commonwealth, fy.”); v. Anderson standard); People Morrison-Knowles v. Guen (same). (Ky.1961) S.W.2d ther, 188 Mich.App. 469 N.W.2d (S.D. pros- ruled that the Wilson, expressly “[h]ad court N.W.2d State comment, ‘[tjhere 1980) Winckler, a sits 260 N.W.2d made (citing ecutor direct State (S.D.1977)).7 defendant and he hasn’t said a word the this,’ would have been an entire about that in- Unfortunately, second 26.] [¶ granting tense and I’d present context be Ball by the fact that complicated is quiry added.) (Emphasis Be- your motion.” closing arguments, objected during made prosecutor many the such cause ruling obtain a trial court permitted to was comments, a coupled tense with present deliberating. Conse- jury after the was question jury and the rhetorical ruling on the trial court’s quently, while Ball comment that was not specific Gray Misti concerning comment made one (the jury) happened, what the mistrial “us” accurate, re- record have the may been granted. must motion be string of only part a of a that it was flects comments, in the one addition to improper justified giv- This is conclusion A review of by trial court. ruled on the the re- ing the comments actually four final reveals argument the A review in context. contextual quired objec- the the made at time of first reveals that the comment ¶ chronological supra tion. See paragraph quoted in the made first comments were: order four paragraph, prose- In that comments. (1) that present a tense comment discussing was not Ball’s statements cutor ” (not knew) what “knoivs defendant Instead, discussing Gray. he was to Misti happened; lying. the victim was Ball’s defense that (2) question a tense rhetorical present to defense prosecution responded that John?”; jury “what’s true

asking the jury by get to not lost encouraging (3) put up” that smoke that’s been because the fact “all this two references to more ” knew) (not happened .... what “Mr. knows “knows” happened; what out, pointed As the trial court [¶ (4) “but he’s concluding comment began argument then telling us He’s talking. not to Ball made that involved statements happened.” what (“and knows Gray know [Ball Misti added.) (Emphasis statements”). Al- by his happened] subsequent though there references the trial court reviewed 27.] Had (and Ball made various statements tense references string entire make) (1) Gray, re- didn’t knowledge, Ball’s which included jury rhetorically asking asking jury sponded “what’s question rhetorical Although a rhetorical true John ?” true, concluding com- “What’s John” and re- not constituted question generally tell- has He’s not ment “but he’s vaguely is error when the have versible happened,” us it would ing “and what has the reflects such as phrased The record granted mistrial. defense when the say?,” is not the case the trial had to so because it would done have point out [statements] Although suggests a different the dissent defendant’s Wilson, (that testify.” to be so at 482 the statement "had N.W.2d standard failure must construe jury added). [them] worded that a test consistent (emphasis That is reasonably wrongly, any jury could” not that with the Knowles mandate determine ¶ 56), clearly Wilson our that is not test. necessarily” "naturally take infra would simply "whether the test reflects them to be on the failure intelligent understand reasonable would ¶ trial,” question refers to the See defendant’s silence defendant infra Davis, comments, Federal Standards of Childress and when considered togeth- (2d 1989). 12.01, Here, § ed Review 12-9 er, were more than indirect reference. prosecutor the even further and im- went Moreover, a direct reference was not nec- properly true John.” asked “what’s More- essary: over, then prosecutor made another When alleged infringement consists present “the tense comment: defendant do not statements which He happened. raped knows what her.” directly on the defendant’s failure to completely then prosecutor [¶ 30.] The testify or that an suggests inference of left the discussion of statements made guilt fact, should from be drawn Gray to Misti and discussed absence of reviewing court must look at all the physical trauma and the State’s explana- surrounding circumstances in determin- (Dr. Strong

tion for that absence indicated ing whether or not there has been a why not would leave rape scarring). constitutional violation. prosecutor The to that responded absence Butler, 686 F.2d at 1170. physical unequivocal- trauma defense Here, ly when considered in commenting in tense that: “the con- text, happened, defendant that Ball knows what comments “knows” what talking. telling happened, he’s not He’s not question us the rhetorical to the happened.” what jury and Ball telling comment that was not jury what happened, together, of Thus, although agree that such a a jury character that would natural- the prosecutor properly could comment on ly and necessarily take them to abe com- prior Gray, to Misti statements made ment on the defendant’s failure to testify permis- went further than such Knowles, part violation of two of pres- sible comment. He also made three fact, F.2d at 170. In quite are similar ent tense comments that “knows what improper to the in Griffin, statements happened” with the comment followed “but (the U.S. at (the he’s not telling He’s us8 “knows” or “would know” but he’s court not seen jury) happened.” He also fit to deny take the stand and jury explain). asked the the rhetorical question We Although “What’s true conclude that sug- John?” com- gested never ments were argued improper “[t]he comment on Ball’s guilt that the should infer from right constitutional remain silent.9 (the judge buttocks”). 8. jury) "penis This reference to "us” of his The [her] dissent totally lengthy refutes the then dissent's assertion the com- omits the discussion of nothing physical ments "related other” the absence than that the trauma defense there- by taking happened defendant "knows” what and is final comment out of context. "telling” improper investigator. to the dissent's dissection his statement state- ¶ suggest ments from their ties contextual Infra long only there was one comment made in analysis 9. The pros- response Gray dissent’s contextual to the Misti interview. This actually ecutor's comments takes the com- elimination of the contextual references incor- ¶ rectly suggests ments out of concluding context. that the infra ("but attempting justify us”) telling com- he’s not related to Ball's ("but talking, However, ment he’s not he’s not us statement made much earlier. ¶ happened)”, analysis argument the dissent's quoted be- of the entire at 12 gins with a reference not reveals improper even that the last and most com- (remind- during made argument at issue actually response ments were made in ing response lying of Ball's Ball’s defense that the victim was to the parison v. Cali defense. Because there Chapman [¶ Under 33.] abuse, physical S.Ct. evidence of sexual fornia, U.S. no (1967), may, howev the State L.Ed.2d entirely on case relied the victim’s State’s harmless be er, that the error was prove statements, hearsay. both dir.ect doubt. Three elements yond a reasonable However, M.B.’s statements were inconsis- (1) of persuasiveness are considered: First, respects. important tent two (2) comments, strength of the relative inconsistently reported were (3) case, and the effectiveness the State’s (Officer Misselt, hearsay three witnesses response to the com judge’s of the Barnett). counselor, Strong, Dr. M.B.’s Id. 824. ments. at result, readily a con- prosecutor As elements, the Considering those 34.] [¶ story: of ceded the deficiencies M.B.’s establish has not met its burden of State testimony] good? I don’t [M.B.’s Was harmless error was ing the State’s definitely I that far. It go think would First, not a doubt. as beyond reasonable story great. exactly her like wasn’t Was above, the comments ed it told law she enforcement? No. Was They multiple not involved were isolated. exactly like told the she counselors? verb tense form of the present uses exactly like No. Was she told Dr. Moreover, involv the comments “knows.” Strong? No. knowledge of what ing Ball’s tense Second, conceded that coupled with rhetorical happened were events child’s version of the at trial was concluding and the In prior testimony. not the same as her knows what “[t]he count, fact, as it to the second M.B. related not happened, but he’s not He’s Thus, at trial and penetration denied sexual happened.” ms what single not a reference comments were her statement to counselor Barnett. Gray. to Misti Ball’s earlier statements deficiencies, light of benign also The comments were lack on M.B.’s of credibili- defense focused tongue.” of United States “slip alleged that child’s ty. The defense (11th Dorsey, F.2d Cir. custody of a dis- allegations arose because 1987). repetitive extensive and They were mother, and Ball and M.B.’s pute between more than a that were serious occurred, which would also spanking that a Anderson single, isolated statement. See also The defense explain incidents. Nelson, 523, 524, 88 S.Ct. 390 U.S. her lying that M.B. had been argued 1133-34, (per 20 L.Ed.2d to the extent that she family and counselor curiam); Chapman, 386 U.S. treatment. required They repeated present S.Ct. knowledge Finally, Ball’s the defense offered tense comments on [¶37.] com happened, coupled with a direct theory that some of the sexual explanatory to tell the ment on Ball’s refusal incidents, rape, occur. short of the did jurors type request happened. This explain this defense to Defendant offered most guilt to infer from silence is the Gray. To partial Misti Ball’s admissions Anderson, 523, 88 improper. See explain his the extent that he could 20 L.Ed.2d statements, argued that medi- other recall of facts prevented cation his some Second, strength the relative explained inability his to remem- overwhelming in com- and case was not State’s rape. to consti- tute that there was insufficient trauma discussing KONENKAMP, it (dissenting). ber all details when with the Justice Therefore, investigating officers. under Today, [¶ 42.] this Court overturns two and the strategy improper the defense first-degree rape As convictions. the sole comments, was re- decision, ground for its the Court finds credibility quired against to assess M.B.’s prosecutor improperly that the commented allegations. M.B.’s explain Ball’s failure to on the defendant’s decision not to circumstances, Under those one cannot prosecutor It would seem that the used the beyond any conclude reasonable doubt that wrong referring in to tense the defendant’s contribute to comments did not Ball’s voluntary to law statement enforcement. conviction. That conclusion is reinforced grammatical gaffe produces This a windfall by timing the fact that due for the defendant: a new trial. In reach- motion, was not in a position the trial court result, ing misinterprets the Court to give a curative instruction minimize remarks, upsets our estab- impact jury. comment’s review, lished standard and misapplies the new it purports rule to initiate in this Consequently, [¶ conclude that 38.] case. All the prosecutor’s comments that the State has not demonstrated harmless this Court finds offensive to the Fifth beyond error doubt. reasonable Amendment related to defendant’s vol- Comment on the failure the accused untary statement law enforcement from testify is different officer, not to taking his decision decline produce his failure to evidence in his the stand. defense, it within appears pow- when his While [¶ 43.] the defendant was under er to do so.... is a matter It which the investigation having for sexual contact approach must with caution with his eight-year-old daughter during oversteps

and if prosecutor] [the the line visitation, he walked into the sheriffs of- as to call attention of the that ac- fice talk deputy unannounced to with the cused has not taken stand or offered sheriff handling case. depu- When the witness, himself as a the court should ty asked him daughter’s about his accusa- grant a new trial. tions, repeatedly he denied them but also said that he did not remember because he Brown, S.D. N.W.2d at 842 Nonetheless, had been on medication. he Williams, (citing State v. S.D. said that while his giving daughter mas- (S.D.1898)). N.W. 815 As this Court stat- sages, “his slipped hand could have and ed years ago, only more than 100 “the private touched her area.” When asked practical remedy way to [this error] is to deputy daughter’s some of his Williams, grant a new trial.” S.D. at true, allegations replied, he were “some of reasons, 75 N.W. at 817. For those the things.” deputy, He told “tell conviction must be reversed remanded I am sorry,” [her] and he conceded that for a new trial. “some of things happened.” When remanded. Reversed and asked about he penis whether inserted his buttocks, responded, his child’s he “How you did find out that?” Realizing about SABERS, MEIERHENRY, [¶ 40.] admissions, implication said, of his he Justices, concur. “I jail.” don’t want “I go need to be GILBERTSON, put Chief Justice psychiatric ward.” When the Justice, KONENKAMP, deputy dissent. daughter asked if was lying, his he ” say, things Again, he’ll ‘Some are true.’ lying. lying. I am not is not replied, “She is clear from the remarks themselves and just remember.” I don’t the context which made argument, prose- closing referring to the defen- admissions quoted the defendant’s cutor quoted language dant’s statement. The denials challenged his deputy ends with a reference to the defendant’s “some of these concessions that mixed with true,” things admission that “some are and prosecutor The never things happened.” emphasized language again refers to guilt infer jury that should argued explanation say- lack of for the defendant’s at trial. On the defendant’s silence from things that are ing some true without de- statement, subject defendant’s of the tailing things which and the same time first commented on the de- prosecutor claiming that he does not remember. The inability to remember. claimed fendant’s prosecutor jury reminded the that when that the defendant said prosecutor he penis asked about whether inserted his what is his points, to certain but “agrees buttocks, in his child’s the defendant re- This don’t remember.” fall back?”—“I sponded, you “How did find out about began his was a theme the Hence, prosecutor’s argument: that?” statement. opening happened. “The knows what gives to reasons he There’s several He wouldn’t raped He her. tell law en- Gray why Misti about [Deputy Sheriff] stopped giving the details forcement. He true, not daughter’s accusation] [his allegations, although far some of as as the in the you’ll also hear later on but then true.... The defendant allegations are recall, says after he he doesn’t interview talking. he’s not happened, knows what but “Well, things happened.” says, he some happened. As far telling He’s not us what I I sorry “I’m that hurt her. says, He ” say, things as he’ll ‘Some are true.’ counseling.” He just get want us to “I to say, further to don’t want goes on to note that in important It is [¶ 46.] I things are true. go jail. Some remarks, opening closing both his in a ward.” put psychiatric need be referred to the de- prosecutor repeatedly says during what he interview That’s using past statement both fendant’s Gray investigating al- with Misti who is Thus, from the be- present tense terms. daughter. him legations raping his was accus- ginning of the case that, is, “I again, But intermixed with hearing the statement referred tomed I we remember. don’t recall. Can don’t Perhaps, as a matter of in both tenses. the use of the go off the record?” [Note style, the use grammatical present tense.] artless, closing argument tense Thus, prosecu- closing argument, in his careless, granting to warrant even hap- “Mr. Ball knows what tor continued: “naturally would have mistrial ” that his state- pened and we know prose- necessarily conclude from those.” The ments. He can’t hide de- referring to the defendant’s cutor was repeated throughout his prosecutor then authorities cited not to cision the defendant closing the comment any contrary, give below. On the happened.” “knows findings, trial court’s deference to the remarks, nothing other comments related to of his Toward the end hap- said, “knows” what knows than that the defendant “the defendant “telling” in his statement pened and is not He’s happened, but he’s judge The trial ob- investigator. happened. As as us ivhat far exactly unpublished opinions, served the entire case this is ed and pan various found. are not here to judge Circuit, what the We els of the Ninth acknowledging hyper-serutinize transcript to find new cases, contradictory have stated that “[t]he ways these remarks.10 interpret standard of review for com testify ment on a defendant’s failure overriding the trial court’s See, post-arrest e.g., silence is unclear.” findings, today on-the-seene the Court Hoac, United adopts a controversial new standard of States 990 F.2d (9th Cir.1993) cases) allowing (citing contradictory it to substitute its fact findings added); Holub, for the trial court’s on motions for (emphasis United States Citing (9th mistrial. five federal decisions from (table), 89 F.3d 847 1996 WL 344619 Circuit, adopts the Ninth the Court Cir.1996). Nonetheless, the Court claims might It circuit’s standard. make some that this new standard appropriate is be using Eighth sense consider Circuit adopted cause we have it in in instances standard, since we are that federal cir- volving searches and Stanga, confessions. may cuit and our cases well be reviewed on 486; 2000 SD Hirning, N.W.2d by Eighth that circuit. But habeas 1999 SD adopted N.W.2d 600. We Circuit uses the standard we have for used that standard in those cases based clear Triplett, decades: abuse of discretion. Supreme direction from the United States (standard review). Only F.3d at 995 of the Court, not direction from the Ninth Cir Ninth uses a de novo factual Circuit review cuit. despite

in this instance. And its claim that Equipped with its new standard adopted other courts have the de novo review, of the Court then closing argu- factual review standard for announces that ments, reversed, simply the cases the Court cites do this case “must” presumably be proposition.11 not stand for that because the trial court legally com- pelled grant a mistrial. As the United Consequently, the bench and Supreme States Court warned United bar in South Dakota must now submit to Hasting, States v. “when courts fashion jurisprudence, Ninth Circuit which can rules whose violations mandate automatic only bring own process our established reversals, they respon- ‘retreat from their Why into confusion. confusion? Because sibilities, becoming “impregnable instead agree the Ninth cannot with Circuit itself ’ ” technicality.” citadels of proper what the standard should be. 1974, 1980, In decisions handed down after the five 76 L.Ed.2d here, (1983) publish- cases the Court cites both R. (citing Traynor, The Riddle taking 10. everybody The Court accuses the dissent of The child has told who will prosecutor's comments out of context. happened. To listen what this, paragraph- assert the Court relies on the ing by reporter. again used the court This 11. The here is not whether we re- problem trying illustrates the of to discern the view constitutional de violations novo. The meaning of Here, oral from the cold rec- goes beyond Court that. the Court quoted placed ord. If the sentences were at findings makes its own de novo from the fact top very paragraph, given next or transcript. No court other than the Ninth paragraph, their own the context explicitly Circuit has done that. The Court court found can be substantiated. Eighth here claims that the Circuit case of Triplett Nothing uses that standard. in that happened, The defendant knows what case, case, any Eighth other he’s not He's not us what Circuit indi- happened. say, things findings As far as he’ll "some cates that such fact are made de are true.” novo. “May- questions, Kav- for Fourth Amendment (quoting Error 14 Harmless this, ing point of Administration of said we hasten out that a anagh, Improvement by reviewing Exercise of Judicial court should take care both to Justice Criminal (1925))). If Power, findings only of historical fact for 11 A.B.A.J. review pre due give weight misconduct clear error and to infer- issue trial, timely objection at we with a ences drawn from those facts resident served under the ruling judges the trial court’s and local law enforcement officers.” Ornelas, of discretion. State standard of abuse U.S. ¶42, 101, Owens, 643 N.W.2d 2002 SD reviewing Even when constitu- Here, objection was no record there error, therefore, ought indulge tional After the during closing argument. judge’s impressions and find- firsthand deliberate, counsel defense retired ings the trial court is in the best because today, Until we have moved for mistrial. position significance any to evaluate the under the always reviewed such motions alleged wrongdoing. explained We have “A trial of discretion standard. abuse many judges times that have wide discre- deny a motion for mis court’s decision controlling proceedings tion in before only reversed the decision trial will be that no one to a them and is entitled v. an abuse of discretion.” State Gar

was trial. This standard is not to be perfect (cita (S.D.1992) nett, 695, 698 488 N.W.2d appellate brushed aside. As one court ex- omitted). Bogen See also State v. tions judges trial are plained, (S.D.1991); State v. reif, 465 N.W.2d of im- impact best able measure the (S.D.1988); Blalack, State 434 N.W.2d con- proper argument, the effect of the (S.D.1984). McDowell, 349 N.W.2d jury, duct on the and the results of [the stan Eighth applies the same Circuit judge’s] control it. efforts to Our (abuse 195 F.3d at 995 Triplett, dard. See only hindsight, on a is not but is based mistrial applies standard of discretion ability written record with no to assess comment on defen motion on impact of the statement on the testify). failure to dant’s atmosphere or to sense the of the court- rule, If to our settled room. we adhere leave to the Ninth Circuit its unsettled Caldarera, at 705 F.2d 781-82. rule, acknowledge that trial then we must Taking its model from the Ninth [¶ 53.] not courts have considerable discretion however, Circuit, the Court here acts as mistrial, denying in a only granting or position it were in a better to assess the prejudicial in effect of determining also simply impact of the remarks Michalek, claimed misconduct. State having transcript. a Armed by virtue of (S.D.1987). “An actu- 407 N.W.2d reweighs the transcript, with the the Court justi- showing prejudice must exist to al evidence, at the dubious conclu- arriving fy granting of a mistrial.” State v. trial court would have so sion that (S.D.1980) Farley, 290 N.W.2d transcript. a The Court ruled had had omitted). (citation not cites several remarks identified in in motion or even its circum- defense its mistrial It is true that several in stances, then concludes that appellate constitu- briefs and questions we review novo, rely on its give the trial court was forced tional error de but we still recollection, infe- ostensibly must be findings trial which deference to the court’s transcript. This turns our Supreme having rior to underlying facts. As the judge’s A upside down. declaring in novo review review standard Court wrote de trary perceived to how the trial court impressions of trial sense contemporary major- in the rigorous exegesis them. The are entitled juror impact proceedings and ity comes not from defense coun- opinion To insinuate to deference. argument, but from this Court’s de sel’s they just what courts cannot remember findings novo factual deduced from the possession that our heard and to reckon transcript usurpation of the trial court’s our examination transcript thus elevates despite function. And this occurs the fact appel- our established appeal subverts brought that when defense counsel procedure. late attention, judge’s matter to the trial another controversial Invoking only the follow- complained remark was uses a “divide and technique, the Court ing: analysis pros- to deconstruct the conquer” Honor, during closing prose- [the Your As the authors closing argument. ecutor’s I made a statement. wrote it cutor] note, of Review of Federal Standards talking” down. was “He’s any that almost Early cases indicate present tense. silence, on a defendant’s either tri- hearing prosecutor, After from the before, trial or would constitute al court ruled: Doyle violation. Review nev- Griffin The motion is denied. I heard the state- poten- ertheless is meant to focus on the ment and it was in direct reference to than on the tial effect on the rather testimony, Mr. Ball Gray’s Misti comment, specific content her, prosecutor] [the discussed with have based on applications recent been summarizing the events and the Therefore, defining in- this focus. arguments says I he’s comment, courts effect prohibited is a it—-it was used more of a didn’t take a harmless error assess- perform must slang and not intended to be in the ment, the comment in places which the present in tense reference Mr. context as to the whole record. taking the stand. Davis, 2See and Federal Stan- Childress brought other No remarks were the (3d 12.01, § of Review 12-5-12-6 ed. dards judge’s trial attention. 1999) (citation omitted). exactly That is prosecutor’s today. reviewing of what this Court does opposite the concludes, comments, prose- challenged “Because the we examine whether Court (1) many present prosecutor’s cutor such tense com- it was the manifest inten made silence; question to tion to refer to the coupled ments with a rhetorical defendant’s the, jury specific comment that the remark was of such a character the and (the jury) jury naturally Ball was not ‘us’ that the would and neces sarily happened, the mistrial motion must be take it to be a comment on the granted.” focusing Triplett, Rather than the defendant’s silence. 195 F.3d at (8th totality potential the of the record and 995 Circuit abuse of discretion review prosecutor’s appeal). effect of comments on the standard on direct If it is assert jury, prosecution delves into an exhaustive ed that referred to the Court silence, critique prosecutor’s of the remarks di- defendant’s we must determine jury. jury thereby vorced on the whether the invited to impact from their We in parse weigh guilt are not here to events infer from the defendant’s decision a trial v. though judges. as we were not to United States Sblendo (7th rio, 1382, Cir.1987), prosecutor’s F.2d Yet the Court dissects denied, 1034, analyzes light in a cert. remarks and them con- (1988). test, question A in- prosecutor’s jury is whether 98 L.Ed.2d 998 ” “naturally an equally necessarily “manifest” there is would make tent is not Now, explanation prosecutor’s of the inference. with the plausible Court’s di- Collins, rules, 972 F.2d at 1406. vided concoction of old and new remarks. our Thus, contradictory remarks must be con- standard becomes challenged and con- in fusing. in the context which sidered (ci- Montoya-Ortiz, 7 F.3d at 1179

made. In reviewing omitted). tation remarks, important it is also for us concluding recognize After the first a critical distinction. Undoubt met, prong edly, of this test has not been comment on a defen misapplies prong: then the second dant’s exercise of the Fifth Court Amendment complained right whether the is remain silent can constitute error Yet, justifying “of character that the comments were such reversal. the rule does not naturally necessarily take apply would when a defendant did not remain by voluntarily giving to be a comment on the failure of silent a statement to [them] Knowles, testify.” police. Olguin, the accused to F.2d See State v. N.M. added). (emphasis at 170 See also Weddell 542 P.2d (N.M.Ct.App.1975). (8th Cir.1980), Meierhenry, 636 F.2d 211 When a defendant has chosen to not re denied, give cert. main silent and to U.S. a statement to law (1981). enforcement, prong, 68 L.Ed.2d 329 Under is entitled to statement, “had to that a point the remarks be so worded comment on that out lack wrongly, credibility, highlight must construe its and to [them] any jury reasonably important could.” See fact that the defendant omitted Davis, Johnson, in Childress and Federal Standards of details the statement. State 1999) (citation 12.01,12-8 (3d (N.M.Ct. § Review ed. 102 N.M. 692 P.2d omitted) added). (emphasis jury App.1984), overruled part With on other Sullivan, having refer to grounds heard Manlove v. 108 N.M. (N.M.1989). past defendant’s statement both the 775 P.2d 237 The fact beginning tense from the that a defendant omits details a state trial, position we are in no to conclude that ment is not the kind of silence that argument jury constitutionally protected the was so worded that the because the de necessarily respect would have construed it fendant did not remain silent with wrongly. subject to the matter of that statement. Charles, 404, Anderson v. 447 U.S. Nonetheless, yet [¶ 57.] another (1980). S.Ct. 65 L.Ed.2d aWhen conquer” twist “divide ap- on the gives a statement but refuses proach, majority only adopt seems to a specific questions, pro answer the answers today. required new rule When it is lending probative vide a context value to rule, apply the new it reverts to the old responses, the silent and comment on rule, Wilson, citing our earlier case of responses prohibited. those silent is (holding N.W.2d at 482 that “No reason- Goldman, United States v. 563 F.2d 501 jury infer it to a able could be reference to (1st Cir.1977), denied, cert. testify”). defendant’s failure to Under the (1978). 98 S.Ct. 55 L.Ed.2d 768 test, jury old was whether the Johnson, prosecu- dealing “would” or “could” infer that the In a case with issue, referring recognized a similar the court that tor was the defendant’s deci- testify. may question plausibility sion not to Id. the new state “[t]he Under statement,” in a case where beled harmless error such and thus exculpatory of an court, extensive, an inference jury, having is where “[t]he that concluded jury stressed to the argument guilt ad- of from silence is many minutes listened to statement, conviction, have un- and where there would as basis of dressed to supported acquit- remark in that that could have [challenged] evidence derstood 523-24, Likewise, In our tal.” Id. at 88 S.Ct. 1133. P.2d at context.” Anderson, commented: that should be conclusion here prosecutor’s present heard having gotten Mr. could have on the Anderson the defendant’s about tense comments “No, you, sign I didn’t stand and told enforcement from to law statement that,” or, up “I to the Calverts wasn’t under- trial would beginning of the have [trucking somebody else told firm] on that state- comments stood them to be it, Sonberg Sergeant me about as I told ment. arresting officer].” [the words, that, you In can consider other if the com- Even expected could person when be have violated the be held to ments could n something, and something know about self-incrimina- right against defendant’s obviously he you he doesn’t tell may be affirmed tion, still the convictions know, you can draw why, must then com- a belief that [the we- can “declare inferences from that. certain beyond a reasonable ments harmless were] California, U.S. Chapman doubt.” case, Id. at (1967). 18, 24, 17 L.Ed.2d 705 87 S.Ct. gave an instruction on the trial court also proof the burden The State bears jury could draw adverse inference the answer the Id. We must question. from the defendant’s failure to jury have convicted question: would the Here, was made. The suggestion no such comments? the defendant absent referring to the defen prosecutor was 510-11, at 103 S.Ct. Hasting, 461 U.S. investigator partial dant’s admission considering probability 1974. In true, things the child said were some turned the say things he would not which were verdict, three elements: we examine Passaro, true. See United States comments, the rela- persuasiveness Cir.1980) (9th (refusing to F.2d case, and the strength tive of the State’s had reverse conviction where judge’s response effectiveness of the link a attempt made “no conclusion Chapman, 386 U.S. silence[.]”). to the comments. See guilt with defendant’s course, ele- 824. Of (Ind. State, Bernard v. 540 N.E.2d formulaically: applied not to be 1989) (comments ments are prolix only court, after exam- inquiry our is whether marginally improper vague because totality of cir- elements ining these disjointed).

cumstances, improper can declare Here, strength of persuasive [¶ 62.] verdict. comments did not alter the prosecutor’s remarks were minimal. references, persuasiveness They alluding ele were indirect As to the

[¶ 61.] ment, statement. Grant- recognize prosecutor’s that a the defendant’s earlier we all ed, prosecutor’s question rhetorical request jurors guilt to infer from silence of true, jury John? —walked the Anderson v. Nel improper. is most See —What's line, son, 1133, clearly was in reference to the 20 390 U.S. 88 S.Ct. (1968). deputy comment to the A comment on a “de defendant’s L.Ed.2d 81 things are true.” See United States testify failure to cannot be la- “some fendant’s

211 (5th Johnston, daughter’s explicit 127 F.3d 396 Cir. v. accusation. With these 1997) (“The admissions, argument, certainly al strong. case was unartful, though does not demonstrate Lastly, we measure the effec comment on the manifest intent to defen any tiveness of corrective measures the silence, jury necessarily dants’ nor would Here, trial judge implemented. defense construe it as a comment on their failure objection counsel made no record at the testify.”). Instead, time of the comments. counsel approached the bench for an off-the-record [¶ 63.] The next element we consider is discussion after the closing In strength of the State’s case. sever argument. When all arguments instances, al we have resolved the deliberate, over and the retired to of harmless error on the fact that defense counsel then moved for a mistrial against evidence the defendant was “over on the record. The court was never re 129, ¶ 20, whelming.” Stanga, 2000 SD quested give and, an admonition Schuster, 491; 617 N.W.2d at v. State course, not at could the time the comments (S.D.1993). Obviously, N.W.2d alleged were made because the improprie the effect of a persuasive comment de ty brought was not to the court’s attention pends strength the relative of the case Nonetheless, until argument. after it is a Anderson, against the defendant. See questionable proposition that trial judges 1133; U.S. at 88 S.Ct. United States give, sponte, should sua curative admoni (7th Cir.1991); Ashford, v. 924 F.2d 1416 tions on a right testify, defendant’s not to (7th Pallais, States v. 921 F.2d 684 United as such instructions may themselves draw Cir.1990). “overwhelming” na While prejudicial unwarranted and attention to a may ture of the evidence be determinative right. defendant’s exercise of that See cases, inquiry in some is often not so State, Williams v. 426 N.E.2d See, State, elementary. e.g., v. Splunge (Ind.1981) (Under Indiana law: “[T]he (Ind.1994) (finding 641 N.E.2d given should be an admonition [re considering error harmless after intent of garding improper prosecutorial com reference, prosecutor, directness exten one, requests when the defendant ment] reference, overwhelming siveness of othenvise, and not and ... the test to be evidence). effect, nature of a court applied determining whether not to strength must measure the the case grant a mistrial is whether or such an considering without chal the evidence fully giv admonition would be effective if lenged impropriety. Hasting, State, en.”); v. Dooley 271 Ind. 511-12, 1974; U.S. at Fontaine (Ind.1979). 154, 156 N.E.2d 593, 595-96, California, 1229, 1230-31, event, In any judge 20 L.Ed.2d 154 the trial curiam); Lane, (per gave F.2d instruction on a defen- pattern Williams Cir.1987). (7th say right testify We cannot dant’s not to at the close of case, that the evidence was overwhelming. stating, “Every here Nonetheless, the record shows without criminal right case has the absolute not to regu any contradiction that the defendant had You must not draw inference victim, gave guilt lar she against access credible the defendant because he events, testify.” presume jurors rendition of and he admitted that did not We allegations limiting “some” of his child’s true: will follow the court’s were instructions. Maves, exclaimed, (S.D.1984); you He even “How did find out State v. 358 N.W.2d 805 (S.D. Heart, that?” with about when confronted his State v. No 353 N.W.2d 43 1984). jurors presume should We infants, incapable of distin- juridical

are improper le- proper

guishing between inferences, light of this

gal especially circum- all

instruction. Under

stances, remarks even beyond a can declare improper, the remarks were

reasonable doubt

harmless. summary, at the defen- not directed

comments were testify and it was not decision not to

dant’s grant to refuse to

an abuse of discretion admissions, The defendant’s own

mistrial. may and evasive as have

oblique

been, than damaging were far more improper re-

prosecutor’s purportedly I affirm the convictions.

marks. would GILBERTSON, Justice, Chief

joins this dissent. SD 10 MULDER, Appellant,

Ervin DAKOTA DEPARTMENT OF

SOUTH SERVICES, Appellee.

SOCIAL

No. 22731.

Supreme Court of South Dakota.

Considered on Briefs Oct. 2003.

Decided Jan.

Rehearing March Denied

Case Details

Case Name: State v. Ball

Court Name: South Dakota Supreme Court

Date Published: Jan 21, 2004

Citation: 675 N.W.2d 192

Docket Number: None

Court Abbreviation: S.D.