State v. Engesser

back peri- look subsequently amended See 32-23- in 2001. SDCL ten-years

od to alleges that use of convic-

4.1. Smith violates purposes

tion enhancement post applica- an ex facto process and is

due argument exact of the law. This

tion rejected by this Court

recently 451.

Arguello, 2002 SD Though here counsel did decision, Arguello

have the benefit expressly

this Court determined: operates prospectively, 32-23-4.1

SDCL to determine

applying past convictions punishment for a conviction that oc- times, At all

curs down road. existing is for the con-

punishment then prior

viction and not for convictions. ¶ modification and legislative

Id. 13. repeat of- subsequent application

its to a not violate the constitution.

fender does ¶

Id. 14. affirm. We GILBERTSON, Justice, Chief ZINTER, SABERS, KONENKAMP, MEIERHENRY, Justices,

participating.

2003 SD Dakota,

STATE of South Plaintiff Appellee,

Oakley ENGESSER, B. Defendant Appellant. 22149.

No.

Supreme Court of South Dakota.

Argued Oct. 2002.

Reassigned 2003. Jan. April

Decided General, Long, Attorney

Lawrence E. Wald, Sherri Attorney Sundem Assistant General, Pierre, Dakota, Attorneys South plaintiff appellee. for Rensch, Timothy Rapid City, J. South Dakota, Attorney appel- for defendant and lant. (on

KONENKAMP, reassign- Justice ment). jury Defendant was tried

and convicted of vehicular homicide and set at 70 to 75 battery. He was had the cruise control miles vehicular counts of two asserting appeals He prison. per only passenger hour. The a seat- sentenced (1) denying erred Alex, trial court belt was who in his car riding (2) result; his blood draw suppression they driving, seat. As were the McPher- testify whether officer allowing police sons noticed that two pulled vehicles ahead was untruthful dur- thought defendant he onto the shoulder of the interstate. Con- (3) interview; hearsay evi- refusing ing sequently, pulled Todd into the left lane. dence; failing to instruct the point, At this he described the traffic flow issues. affirm on all spoliation. We ordinary, explaining as that all the vehicles Background appeared traveling pace. at the same passed parked After he vehicles on the evening July early In the [¶2.] road, Todd moved shoulder back defendant, Oakley Engesser, B. right Checking Full into the lane. his rearview Dorothy Finley were mirror, Saloon, any Todd Sturgis, ap- near South did not see vehicles Throttle Dako- Finley with ta. Roanna Clifford visited proaching speed. at a fast rate of 30 to 45 minutes. She approximately vehicles, beyond parked Just bev- Finley drink alcoholic did not see impact Todd felt a tremendous when his Engesser that erage, but noticed was vehicle was hit from behind the red Through the course of the drinking beer. the minivan Corvette. As careened into conversation, that she and En- Finley said ditch, Todd was thrown from the driv- Although red gesser had her Corvette. van, landing er’s seat to the back of the Engesser Finley leave she did not see with head in the and his feet backseat Throttle, that Full Clifford estimates facing the driver’s seat. Jackie remained p.m. 6:00 they approximately left at seat, passenger right leg in the front her 7:45 p.m. 7:30 and 3.] Between [¶ wedged between the seat and the door. driving was evening, Beau Goodman same Cassie, sitting who had been on Jackie’s when he saw red east on Interstate 90 lap, was also thrown to the backseat of the entering the Interstate few Corvette glass all over her van. She had shattered his vehicle. Goodman hundred feet behind dress. Jackie reached over and head and traveling estimates that he was between also able ignition. turned off the She was per hour. When he looked into to 80 miles push open. her door Once out mirror, he could not see the his rearview car, open the side door she was unable Then, he to his side red Corvette. looked van, so she reached inside the bro- by him. De- zip and saw the Corvette children from blur,” pulled ken windows and her scribing the car as a “red Goodman Todd driving. Initially, pinned to see who was As the vehicle. was was unable road, raced down the Good- eventually the Corvette to free inside. He was able the back end of a man saw it slam into out of the van. Cassie and climb himself occurred at white minivan. The collision leg that her hurt and Jackie complained approximately p.m. large bump on Cassie’s also noticed a hospi- transported Todd was head. Todd the white minivan were City, diagnosed he was Rapid tal in where McPherson, along with their and Jackie ribs, an- whiplash, bruised with broken children, three-year-old Cassie and two kle, also body stiffness. Jackie was They traveling Alex. were one-year-old That whiplash. with severe diagnosed on 90 between Stur- eastbound Interstate were re- evening, Jackie and Cassie City. driving. Todd was He same gis Rapid hospital, facing ground. but Todd re- was Her feet were from leased days. Her point- for four underneath the dash. face was mained there Shortly the driver’s ing toward side. accident According to State’s thereafter, emergency workers used the traveling investigator, Corvette Finley of Life tool to extract from Jaws it per 112 miles hour when approximately wreckage. body Her was removed minivan, into the back slammed through pas- the driver’s door because the road, off the and rolled several times spun senger damaged side of the vehicle was so coming to rest on its roof before passenger side door could not be passenger median. The side the Cor- opened. impact with the mini- was crushed on vette car was thrown from the

van. designated The officer to lead the grass face down six and was found investigation Trooper Ed Fox of away open ten from the driver’s feet Highway Dakota Patrol. Prelimi- South people of the car. One of the first door nary given erroneously information to Fox Redfield, Mary off-duty the scene was Finley reported was found the driv- emergency Using room nurse. her medi- report er’s seat and his initial reflected training, Engesser’s cal Redfield cleared inspected pas- information.1 Fox airway, allowing the unconscious man to senger car compartment to deter- noted that Engesser breathe. nurse any mine whether there was blood or trace strong pulse. had a As she continued to It evidence. was dark he was unable she Engesser, aid noticed that he had a He to see blood. ordered the vehicle gash right side of his head. She evidence, to test impounded for trace also noticed he had the odor of an including blood. beverage. Engesser alcoholic taken by hospital. ambulance to the scene, After investigation [¶ 9.] the hospital Fox to the to En- went interview trapped inside, Finley was

[¶ 7.] gesser. Having injury, a head suffered passenger side of the Corvette. She was Engesser combative and incoherent. was pronounced dead at the scene. Mike only thing The to Engesser coherent said Walker, Sheriff, County Deputy Meade trooper the was that he had not been checking arrived on the scene. After on driving. Smelling the odor of an alcoholic McPhersons, he walked over to the beverage Engesser, on Fox ordered a Corvette where he had been informed that alcohol blood draw determine his blood fatality. there Crawling had been inside (BAC). Fox did read door, concentration not open driver’s Walker checked Finley’s, implied warning Engesser. consent pulse. lying With the car on its roof, The was had been Finley’s body he officer unsure who found underneath test, seat, Engesser in driver. At the time of the passenger body her line with not in upper part Finley’s body custody the seat. The was detained officer; fact, lying top was over of the seat. She he was not arrested until Although paramedic initially yet had actual had misin- driver been confirmed. Finley formed that Fox had been found in the investigation Fox believed that an additional seat, paramedic driver’s soon corrected who was the actual driver would be nec- into reported Finley that that information had trial, essary. initially At Fox testified that he passenger been found in the seat. Later that Finley listed as the driver because she was the evening, major Fox filled out a accident re- regular owner of the Corvette and was its driver, port Finley in which he listed as the driver. pertaining but noted that information to the Engesser Finley spent where time the later. The months seven approximately evening attorney of the accident. The Engesser’s BAC that later revealed test testify time would interview over to the Extrapolated back .081. Finley had phone Boyle been with revealed accident, would have the BAC of the at the time the two left driving been .125, the chemist who testified according to further, ever, Finley rarely, if bar and prosecution. for the allowed others to drive her Corvette. The Meanwhile, Corvette [¶ 10.] hearsay. trial court refused to admit this left lot where private to a taken moved to through sup- the time The defense also uncovered outdoors Engesser’s in- the result of The attempt press at an BAC. trial. The first Engesser trial court denied the motion. place took inspection of the vehicle depth jury dealing acci- instructions proposed weeks after the two three approximately duty expert preserve went with the State’s dent when the State’s the State requested had and the inferences that be drawn lot.2 Fox attempt Lab examine the vehicle from failure do so. Both instruc- Crime of individuals placement rejected. Engesser was con- to determine tions were or trace evidence. through the car blood vehicular and two victed of homicide did not testified that he expert The battery. State’s counts of vehicular He was sen- a trace only in the car and find blood years prison tenced to fifteen for the that be- on the roof. He decided amount years homicide conviction and ten each on rolled, the value cause the vehicle battery. convictions of vehicular two in the vehi- that could be found any blood ten-year sentences were to run con- Instead, expert diminished. cle was currently, fifteen-year with the sentence reconstruction. to seek an accident decided Thus, consecutively. he received running twenty-five years peniten- a total of 13, 2000, Fox September On tiary. him in Engesser and interviewed contacted was video-

Fox’s cruiser. The interview raising four Engesser appeals, following day, Fox finished his taped. The trial court Whether the abused issues: Finley’s concluding that based report, denying suppression discretion in its was the injuries, he believed the blood draw taken “without result of 2001, Engesser was February driver. consent, reading implied con- without with vehicular homicide under charged and without detention or [warning], sent 22-16-1, charge an alternative of SDCL (2) trial court custody.” Whether degree manslaughter, and two second allowing “in the State abused its discretion battery under SDCL counts of vehicular identi- Trooper answers from Fox to elicit 22-16-42. defendant he fying which statements of defendant were untruthful when trial, believed gave Before the defense

[¶ 12.] (3) the trial testify.” Whether did not exculpatory hearsay. notice of intent to use by “disallowing its discretion testimony court abused evidence was the proffered exculpatory hearsay.” the use of attorney pre- civil who was Engesser’s of trial court abused its discre- Whether the pared testify to that he had interviewed process the defendant due at the bar tion and denied Boyle, security guard Sean accident, purse place purse wrap Shortly Finley's family it around 2. after the Finley's purse was found feet. taken. down her visited the lot where the Corvette was trial, passenger side of dash of the testimony that was Fin- underneath the At revealed ley's strap purse and the car. habit to take the of her 746 duty give probable instructions there is cause to believe the evi- failing Hanson, 9, sought dence exists. 1999 spoliation. SD preserve ¶ 28, 588 N.W.2d 891.

Analysis and Decision Here, dispute there is no about standard of review Our [¶ 15.] the second and third factors. The ques- rulings discretion for on mo is abuse of tions are whether the Fourth Amendment Nguyen, v. suppress, tions State was violated when the draw was taken ¶ (citations 47, 9, 120, SD without an arrest and whether the officer omitted), admissibility for decisions on probable evi- cause seize blood Rhines, evidence, v. 1996 SD State begin by examining dence. We whether ¶ 133, 415, 446, requests 548 N.W.2d probable the officer had cause. instructions, v. give proposed State ¶50, 12, Wright, 1999 SD 593 N.W.2d The trial court [¶ 18.] concluded (citation omitted), and for offers of cause, probable relying the officer had Guthrie, opinion evidence. State v. following circumstances: ¶61, 30, If SD 627 N.W.2d 415. no room, emergency night, late on a week- mind, judicial in view of law and cir end, accident, ... post three hours one of the particular cumstances case could suspect almost incoherent who smells reasonably same have reached the conclu alcohol, strongly suspect one dead as sion, then there was an abuse discretion. vehicle, a result high speed two Inc., Gilkyson Express, v. Wheelchair fatality public on a highway accident ¶ (citations SD 579 N.W.2d resulting passing from an unsuccessful omitted). A finding probable cause is maneuver, alive, suspect one taken di- Lorenz, novo. reviewed de State v. rectly from the scene to the ER via ¶17, 4, SD ambulance, any suspect alcohol in one’s tick, tick, dissipating, blood tick[.] 1. Admission of Blood Test Result argues prob- The defendant The state require indi- able cause did not exist because the troop- bodily vidual to submit to a test of fluids as probable er himself did not believe he had long as it acts within constitutional limita- cause and the defendant not placed In determining taking tions. whether the under arrest at the time. He further con- sample blood violated the Fourth him driving tends no one had seen Amendment, we look first to the United and the information to Fox at the available Supreme States Court’s seminal decision (per Finley time his initial report) was California, Schmerber 384 U.S. owned the vehicle and that she had been (1966). 86 S.Ct. 16 L.Ed.2d 908 the driver. ¶ Hanson, 9, 28, 1999 SD 885, Schmerber, 891. In N.W.2d the Court is a ques [¶ 20.] Probable cause narrowly law; limited holding its to the facts of tion of the trial court it must measure 772, 1836, objective the ease. 384 U.S. at at against 86 S.Ct. an standard. State v. ¶ Lamont, 92, 21, 603, 16 L.Ed.2d at 920. Under the Schmerber 2001 SD 631 standard, (citations omitted). we have held that law subjective enforce- 610 Fox’s may ment seize a blood if sample only driving it is beliefs or ideas about who was (1) (2) arrest; by taken incident to a probable lawful whether he had cause are individ accepted a reliable and method for totality obtain- ual factors to be considered in the (3) reasonable, ing sample; in a justify medi- of circumstances. The conditions (4) manner; cally approved an ing where officer’s actions need not be the

747 lost, creating exigent be forever cir- the officer’s state would forming circumstances cumstances under which the blood draw taken. the action is Scott at the time mind 770-771, appropriate. was 384 at 86 128, 138, U.S. States, 98 486 U.S. v. United 1826, 1835-1836, 16 L.Ed.2d at 919- S.Ct. 168, 1723, 1717, L.Ed.2d S.Ct. reading is This Schmerber rein- circumstances, (1978). long as “[A]s subsequent forced the Court’s decision action,” objectively, justify [the] viewed Lee, Winston v. which noted Here, found. Id. may cause be probable blood test Schmerber “fell within the the driver’s found outside Engesser was exigent exception circumstances vehicle, door, inside the Finley was side 753, 759, requirement.” warrant 470 U.S. door could not passenger 1611, 1616, 662, 84 L.Ed.2d 105 S.Ct. addition, Engesser’s breath In opened. (1985). But we are not limited to Schmer- beverage. Enges- of an alcoholic smelled holding. Supreme ber’s Later Court deci- in the trial court’s no error ser has shown make it clear that formal arrest is sions objective circum- determination always required. not cause to be- probable stances amounted years 23.] Seven after Court de- [¶ commit- may have been lieve that a crime Schmerber, Cupp down cided handed test would uncover and that the blood ted 2000, Murphy, U.S. 93 S.Ct. crime. relevant evidence (1973). In a Cupp, L.Ed.2d 900 husband is whether question The next brought ques- the station house for or, arrest was “incident to” the blood draw strangled. Dur- tioning after his wife was arrest whether a formal point, more to the ing questioning, the officers noted dark As a in all circumstances. necessary is fingernails. on the husband’s Know- stain matter, we have never held threshold ing strangulation that evidence of can of- come to make an arrest must a decision perpetrator’s fin- ten be found under fact, sample is taken. before blood took from gernails, scrapings the officers no found that there is specifically we have fingernails protest, the husband’s over his 47 at requirement. Nguyen, 1997 SD such without arrest and without a warrant. Id. 125; ¶20, at see also Rawl at 903- at 93 S.Ct. at 36 L.Ed.2d 110-11, Kentucky, ings v. 448 U.S. no violation of the 04. The Court found 2556, 2564-65, L.Ed.2d 645- S.Ct. that a war- Fourth Amendment and held (1980). Nonetheless, a blood draw done body search be conducted rantless is not “inci seven months before arrest formally failure to arrest sus- despite dent to” that arrest. (1) when the character search pect, (2) unintrusive; the evidence highly undeniably 22.] Schmerber [¶ lost absent sought will be forever a search incident to couched terms of search; probable cause sufficient holding that its arrest. The Court stated arrest. Id. at support a formal exists solely specific pre- facts based at 906. at 36 L.Ed.2d S.Ct. case, was that in the one which sented controlling. to be Cupp findWe at the time the defendant was under arrest Schmerber, of the search. 384 U.S. Although the search at 920. How- 16 L.Ed.2d 86 S.Ct. than the arguably less intrusive Cupp was ever, holding in Schmerber did “tests are taking sample, blood of blood prior days periodic of a valid solely commonplace turn existence in these [ ] Rather, heavily experience [] the Court relied examination physical arrest. extract quantity that the of blood evanescent nature of blood alcohol teaches minimal, people that for most ed is danger important and the risk, (1) virtually Engesser no trau- procedure lying approxi- involves was found Schmerber, ma, 384 U.S. at pain.” or mately 10 feet from the driver’s side at 16 L.Ed.2d at 920. As 86 S.Ct. door of the Corvette.

Schmerber, is not “one the defendant here (2) Emergency crews used Jaws of fear, concern grounds of the few who on Finley Life to extricate from the health, scruple might pre- religious passenger side of the vehicle. testing[.]” fer some other means of Id. (3) Finley was deceased. Engesser already hospital being in the (4) Engesser The nurse who attended at injuries treated for serious and the record the scene noticed an odor alcoholic being that other blood tests were indicates beverage coming from him. done. This blood seizure here meets the prong Cupp. first (5) Fox a strong noted odor of alcohol beverage coming Engesser. from consistently We have acknowl- edged highly nature of evanescent traveling The car had been at an It blood alcohol. is undeniable that the extremely high of speed. rate simple passage of time obliterates facts, Considering these we conclude that Lacking valuable evidence. blood draw probable there was cause to Enges- arrest time, relatively within a short law enforce- question ser. The determinative in this ment officers cannot confirm the driver’s case is not whether there was an actual at the impairment level of time he or she arrest, but rather trooper whether the driving. already Three hours had probable cause to arrest the defendant. elapsed accident Enges- since the when did and He therefore this search rea- ser’s blood was drawn. The more time sonable.3 likely went less the evidence at all. could be obtained Evidence of En- case, In this to insist on a re- gesser’s intoxication would have been “for- quirement of a formal arrest makes little ever lost” without the blood draw. brief, Throughout sense. strenuously asserts that he was incoherent Finally, we again [¶26.] come at the time Fox ordered the blood draw. probable the issue of cause. As noted trooper gone Had the through with the above, subjective it is not the beliefs of the arrest, formalities of Engesser may not objective officer but rather circum have even known he was under arrest. stances from which we determine the exis addition, requiring perform Fox to the rit- probable tence of cause. At the time the drawn, ual of formal at a blood was arrest time when the following facts exist ed: suspect was still incoherent would have every 3. weighed against If blood draw in a vehicular homicide dure” is to be the "individu- investigation had to be taken to a incident privacy security.” al's interest in Win- arrest, ability formal of officers to enforce ston, 470 U.S. at S.Ct. prohibiting driving our laws under the influ- Society important L.Ed.2d at 669. has an resulting ence in death would be thwarted. determining guilt interest or innocence. permits The Fourth Amendment neither nor Id. at 105 S.Ct. at 84 L.Ed.2d at prohibits types absolutely. these of intrusions probably 670. The blood test is the most proper The Amendment's "... function is to determining accurate means intoxication constrain, such, against all intrusions as juries and "courts and should not be denied against justified but intrusions which are not probative procured evidence unless it was circumstances, in the or which are made in rights violation of the of the accused.” Unit- Schmerber, improper manner.” 384 U.S. (9th Chapel, ed States v. 55 F.3d 86 S.Ct. at L.Ed.2d at Cir.1995). Society's conducting proce- [ ] "interest

749 pro- taped played interview with Fox was Engesser’s increase nothing to done jury. tape Amendment. trial played, under the Fourth After was tection express opinion Fox allowed his circum- exigent are When there 28.] [¶ Engesser’s on truthfulness the inter- case, and as those stances such view, particularly on En- part where probable police officer has both where not gesser asserted he had been driv- will believe the test on which to cause examination, ing. On direct the State’s proba- an and offense produce evidence Attorney and Fox the following collo- subject, it does not to arrest ble cause quy: if the Constitution blood drawn violate subsequent prior a or immediate

without (State’s Q: Attorney) you spoke When arrest.4 at that September to the defendant for an summary, 29.] In invol said, [¶ you 13th interview “I don’t to be con blood draw untary, warrantless necessarily you’re lying.” think Did stitutional, search must be inci either the you you? think he lying was (1) have: the officer must to arrest or dent Objection RENSCH: MR. as to rele- arrest; (2) probable probable cause to ... vancy sought the evidence to believe that cause (8) obtained; circum exigent will be THE COURT: Overruled. justifying the intrusion. stances A: Yes. case, remaining requirements Q: you did that on? What base the test taken

Schmerber —that be acceptable in a method reliable My experience A: interviewing people. reasonable, approved manner— medically Q: Okay. And what conversa- about strictly observed. must be you you tion with did about —what you made conversation believe Trooper’s Testimony Defen- on

2. lying? he was Credibility dant’s Objection ... that’s MR. RENSCH: not Although did tes- trial, argumentative, speculation, thirty minute it calls in his his entire tify holding draw was Court arrested at time blood irrelevant This is not alone in cause); require that a probable Amendment does not v. Fourth where officer had Filmon invariably State, blood draw incident arrest. (Fla.1976) (reiterating So.2d 336 586 (9th Cir.1995) e.g. Chapel, 55 F.3d 1419 See previous holding that arrest was not case (arrest constitutionally required not under draw); prerequisite to blood constitutional Schmerber); Berry, 866 States v. F.2d United 733, Findlay, State 259 Iowa 145 N.W.2d v. 887, (6th Cir.1989) (reading 891 Schmerber as (1966) (allowing warrantless blood 655 application exigent circumstances ex exigent draw without arrest when there are allowing ception and blood draw uncon suspect is uncon circumstances arrest); suspect Mercer without v. scious State, scious); Oevering, v. 73 256 510 S.W.2d 541 Ark. (Minn. 1978) (finding Cupp and al controls (arrest (1974) necessary not officer had where lowing warrant blood test without arrest or probable to arrest the time of blood cause arrest); probable cause to when there Trotman, draw); People Cal.App.3d Lerette, (Mo.Ct. State v. S.W.2d (1989) (arrest Cal.Rptr. (finding App.1993) exigent circumstances ex prerequisite to a blood draw if constitutional arrest); ception justified taking blood without suspect probable cause to there is believe State, (Tex.Crim. 627 S.W.2d probable driving under the influence and Aliff v. (relying justify App.1982) Cupp to blood yield cause to believe it will Fidler, suspect who was not crime); test of semi-conscious People Colo. (whether arrest). suspect under P.2d grounds objection than for prejudicial proba- during more asserted and it’s tive, trial, testimony. the ultimate issue. the officer’s it’s counsel discussion) objected trooper’s for the reasons that the (off record irrelevant, testimony argumentative, was, Q: my question what I believe speculative, prejudicial, conclusory, you interview made be- about the calling opinion. appeal, for an ultimate On you telling he wasn’t lieve counsel contends that the error was in truth? allowing inadmissible character evidence things during numerous A: There were Engesser’s reputation attack on the interview. Perhaps truthfulness. the trial court Could I have a stand- MR. RENSCH: responsive would have been more to those matters, objection as to those ing objections they had been made at the time. Your Honor? We have often held an issue not THE Yes. COURT: raised trial cannot be raised for the first Q: as? Such appeal. Hays, time on State v. 1999 SD you thing right A: One off the bat not- ¶ Thus, ed on the interview that before I largely the issues before us have been him question had even asked he waived. lengthy explana- went into a rather Second, any [¶ 33.] to the extent that

tion that seemed rehearsed to me complaint ... for error on this line of initially right question- off the review, ing subject struck me because its not often remains to it bat must be somebody you when meet with questioning noted that this was for the they volunteer a lot of stuff. In fact purpose allowing explain the officer to just normally opposite it’s ... why Engesser during he told the inter- view, I necessarily you “do not think are why Fox then touched on other reasons he lying.” The purpose was to correct Engesser lying.5 believed been misimpression jurors might have taken trial 31.] The court’s decision to al- remark, from the officer’s not give trooper express opinion low the Engesser’s the officer’s assessment of credibility of the defendant’s statement Third, credibility. character or overall as- allowing is Perhaps troublesome. the offi- objections suming general were explain telling Enges- cer to his reason for preserve the question sufficient and as- ser that the officer did not think he was suming improper that it was for the trial lying during his statement have been testimony go court to allow this on as allowing the court’s initial rationale for this did, every error trial. not warrants new testimony, beyond but what followed went ¶ Owens, State v. 2002 SD Yet, question that. remains whether 735, 755. this was reversible error. Several A similar error occurred in circumstances mitigate the in allowing degree People court’s error second murder case of First, Allen, line of questioning. grounds A.D.2d 635 N.Y.S.2d 40 (1995). There, appeal appellate counsel now asserts on were court con- Engesser stop 5. Fox testified that he believed answer it and then and edit what he was level, (1) (2) lying during going say” because times with his BAC "[s]everal you pay you’ll interview if close attention about how much alcohol he note lied question night question. that when I ask him he will start to consumed on the (2) unavailable; for the trial lish: the declarant improper that it was eluded ques- ask the statement must have circumstantial prosecutor permit court to opinion guarantees equivalent on the trustworthiness a detective’s regarding tions statement, 804(b); exceptions four in Rule effec- the first truth of the defendant’s (3) the statement must be offered as evi- prosecutor to solicit tively allowing the (4) fact; dence of a material the statement defendant’s cred- opinion on the detective’s However, probative be more for point ruled that the must the court ibility. it than Noting which is offered other evidence per reversible se. error was not proponent reasonably pro- fact can and the strength of the evidence (5) cure; statement must serve the admonished the trial court had justice purposes arbiter of interests of it was the ultimate jury that (6) evidence; proponent the error rules of Allen court found credibility, the given to be offered must have harmless. notice to the other side. advance SDCL Here, jurors were instructed [¶ 35.] 804(b)(6)). (Rule 19-16-35 See United judges of the credi they were the sole (8th Love, F.2d States v. weight to be witnesses and bility of the Cir.1979). Because our rule is identical to In the face of testimony. given to their 804(b)(5), former FRE Rule now FRE instruction, the notion seems untena this courts examined many federal have jurors would ac day modern ble that rule, it to use federal cases helpful this is opinion in the of a sheep-like, quiesce, federal have analysis. our As the courts jurors Dakota South uniformed officer. “ recognized, ‘rarely, this rule is to be used their own as likely are not to surrender only exceptional circumstances.’” evidence, especially when sessment Woolbright, 831 F.2d United States v. duty their instructs them that is a court (8th Cir.1987) Love, (quoting Thus, even if for themselves. to decide 1026). 592 F.2d at pre properly here was the asserted error was harmless. appeal, for the error served admissibility The test for [¶ 38.] (Rule 52(a)); SDCL 23A-44-14 SDCL cf. general should not be con of evidence 15-6-61. admissibility rules for under fused with the true, It hearsay exception. Hearsay 3. Refusal of course, a live Boyle that if been Sean that the argues The defendant [¶36.] witness, credibility would have been by refus- its discretion circuit abused jury to determine. See 19- solely for the of an unavail- ing to admit the statement 601). (Rule hearsay 14-1 But he was sought to Engesser witness. able defense declarant, prelim not a trial witness. The Finch, attorney, call his civil Dennis trustworthiness, underly inary question Finch that he testify Boyle told Sean hearsay admissibility of “catchall” ing the leave the Full Finley saw court, statements, for the question is a Finley and that was driv- Throttle Saloon question weight than a rather En- the two left. ing the Corvette when (Rule 104(a)). The jury. SDCL 19-9-7 that Finch should have gesser contends and the obligation both the judge trial has the “catch- testify allowed to under been to determine discretion’” “‘considerable “ 19-16-35 hearsay exception all” SDCL contain ‘hearsay statements whether (Rule 804(b)(6)). guarantees circumstantial necessary ” under to be admissible trustworthiness’ hearsay For to be admissible Guinan, rule, States must estab- this rule. See United proponent under this (7th Cir.1988), absolute, F.2d cert. de ations are neither exhaustive nor nied, analyzed 487 U.S. 108 S.Ct. 101 and each case must be on its own Doerr, (quoting United facts. L.Ed.2d 907 States United States v. 886 F.2d (7th (7th Cir.1989) Vretta, Cir.1986), 944, (quoting Snyder, 790 F.2d 1355-56.) denied, 479 107 S.Ct. cert. U.S. 872 F.2d The trial court did (1986)). L.Ed.2d 115 in fact consider most of these circum- stances. Hearsay generally criteria, as qualify does not admissible evidence. [¶41.] Under these we (Rule 802). 804(b)(6) SDCL 19-16-4 Rule conclude that the circuit court did not narrowly exceptions is one of the tailored abuse in refusing its discretion to admit general excluding hearsay given to the rule evi the statement. The statement was proponent offering The a hearsay by felony suspect, dence. who was unavailable flight evidence has the affirmative burden of es because he inwas from the authori tablishing requirement Nothing the trustworthiness ties. gives any about this us com 804(b)(6). Sny in Rule United fort that he a States has character for truthful (7th Cir.1989). der, honesty. 872 F.2d 1354-55 ness and His statement was not hearsay oath, that a requires given subject rule statement under not to cross- by examination, exception subject not covered some other be and any penal not by “equivalent supported ty perjury. circumstantial for The statement was not guarantees of trustworthiness” it given Attorney before even Finch in person. can be admitted.6 given It was over the telephone. We have way no what knowing Boyle’s motivation The circumstances a trial giving was for the statement. There is no court should consider in assessing the corroboration of his claimed observations. hearsay trustworthiness of in testimony Lastly, the being circumstances of his un (1) clude: the character of the witness for strongly suggest available that he would and honesty truthfulness and the availabil not be type person garner credi (2) ity of question; evidence on that bility. properly The trial court considered testimony whether the given volun all these in deciding hearsay facts that this oath, tarily, subject under to cross-exami was inadmissible. (3) penalty nation a perjury; for relationship event, parties any Boyle’s witness motivation the witness had for only statement to Finch was marginally statement; (4) making found, Boyle extent to relevant. As the trial court which the witness’s statement per place reflects did not a time frame on what he saw. (5) knowledge; sonal regarded whether the witness The court this as crucial. In (6) statement; deed, ever recanted the himself the exis indicated that he (7) evidence; corroborating tence of left the bar with the deceased around 5:30 the reasons for the unavailability p.m. to 6:00 That would have been the time witness. Id. at Boyle 1355. These eonsider- would have seen them. The acci- Recently, 6. analy- admissibility under Confrontation Clause under the Confrontation sis, 804(b)(6) analysis, not under Rule we Clause is not the same as the test under Rule concluded that the circuit court erred in ad- 804(b)(6). Considerations as whether such State, mitting hearsay on behalf of the hearsay can be corroborated and whether statement of an unavailable witness. State v. only place it is the evidence available have no Frazier, 2001 SD 622 N.W.2d 246. Howev- analysis. in Confrontation Clause er, important emphasize it is that the test correct however, two instruction statement of dent, to two and occurred law, (2) by the instruction was warranted only ten But the bar was half hours later. evidence, giv- error the scene of the minutes from to fifteen ing prejudicial. the instruction was Thus, driving car who accident. ¶ Webster, 141, 7, SD had little rele- long the accident so before Prejudice is shown establish- driving it of who was question vance ing the jury would have returned a Enges- the accident. Even the time of verdict if the proposed different instruc- driving the that he had been admitted ser Knoche, given. tion had been State v. Lastly, it must be day. in the car earlier (S.D.1994). Because En- understood, South Dakota’s Professor as gesser’s proposed spolia- instructions that even when state- explains, Larson tion inaccurate under the law and were hearsay exception, as qualifies ment facts, unwarranted the trial under must that the statement not mean does properly exercised its discretion balancing of SDCL “The test admitted: refusing give them. (Rule 403) regardless, and applies 19-12-3 subject require- to the is the statement [¶ 44.] Intentional destruction John rules of evidence.” ment of the other evidence, justice, a form of obstruction Larson, Dakota Evidence South W. “spoliation.” is called on Evi McCormick (1991). 804.6, Thus, the trial § 703 p. (2d 1972); § dence 273 at 660-61 ed. within its discretion con- was well (6th Dictionary Black’s Law 1401 ed. “unrelia- cluding that this statement was 1990). established, it fact When is finder i.e., ble,” The probative had little value. destroyed that the infer evidence largely in “admissibility of evidence rests party responsible for its unfavorable practical judgment the discretion Id.; 22A destruction.8 CJS Criminal Law Table Steaks v. First the trial court.” (1961). § v. 596 at 377 See United States ¶38, Bank, 650 2002 SD Premier (2dCir.1951) 191 F.2d Remington, Here, the court careful- 838. evidence). (suppression Spoliation in refusing its ad- ly judgment exercised more than loss evidence. simply statement, and it did not mission of this analyzed prior cases have never when Our doing so. its discretion abuse spoliation is precisely an instruction on Kietzke, warranted. Court Spoliation Instruction no preju recited the rule and found simply trial, give At the defendant trial dice in the court’s refusal 502, 515, rejected by instructions proposed two instruction. S.D. (1971). However, it is vital to To establish reversible

the trial court.7 an inference give trial refusal to a understand that adverse error from a court’s instruction, evidence is party drawn from the destruction of requested asserting only bad conduct. United predicated show that the tendered error must 2) an infer- "Spoliation of evidence creates proposed were: 7. Those instructions have Dakota, presumption or that it would not ence 1) duly its “The State of South charges against the defen- supported the agents, including the Meade authorized office, Attorney’s County the Meade dant.” State’s office, County and the South Dako- Sheriff’s product of the spoliation inference is a Patrol, 8. The preserve Highway duty ta have praesumuntur legal contra maxim “omnia gathered posses- evidence and taken into presumed things spoliatorem” are investigation pros- sion in this criminal —all against destroyer. ecution.” (5th Wise, 221 F.3d general States v. is a rule that the intentional denied, Cir.2000), spoliation 532 U.S. cert. or destruction of evidence rel- (2001). or, S.Ct. 149 L.Ed.2d evant to a a presumption, case raises inference, seems to argument presuppose defendant’s more properly, destroyed any evidence the hands have been would unfavorable to by mistake, police, spoliator. whether inadver case of the pre- Such a tence, arises, however, misjudgment, sumption oversight, negligence, or inference ignorance, only warrants an where the spoliation adverse infer or destruction That ence instruction. is incorrect. A intentional and indicates fraud truth, suppress and a desire to proper application requires rule it does not where showing of act of arise an intentional destruc destruction was a routine tion. matter with no Only intentional destruction will sus fraudu- lent intent. tain the rule’s rationale that the destruc tion amounts to an admission conduct of Jackson, (quoting 791 So.2d Tolbert the weakness of one’s case. McCormick at State, (Miss.1987)) (em- 511 So.2d 1368 660-61; § 31A Evidence CJS 293 at 750- phasis in A original). few courts hold the (1964).9 spoliation view that of evidence need not See, be intentional to warrant sanctions. A substantial number of e.g., Wajda v. Kingsbury, 652 N.W.2d 856 spoliation courts that a have held instruc (Minn.Ct.App.2002). tion is appropriate when the destruc See, the [¶ 46.] As Nebraska tion is not Su e.g., intentional. Randolph preme State, Court even recognized, v. when it is (2001); 117 36 424 Nev. P.3d proper not trial (Miss. for the court to State, give an Jackson v. 791 So.2d 830 instruction, adverse 2001); State, inference a defendant Patterson v. 356 Md. 741 still, can (1999); when relevant evidence Vanover, A.2d was de 1119 State v. 721 stroyed (R.I.1998); presented, or not use the absence A.2d 430 State Steffes, v. 500 of argument that evidence in (N.D.1993); against the N.W.2d People 608 v. Cooper, Davlin, prosecution. State 53 263 Neb. Cal.3d 809 P.2d Cal.Rptr. 281 (2002). (in 648 In banc); 90 State v. Langlet, 283 case, (Iowa the 1979); opportunity State, N.W.2d use 330 Torres v. the preserve any failure to blood spatter 962 P.2d (Okla.Crim.App.1998). 3 The evidence in argument jury to the same rule in and as a applies criminal and civil See, cross-examining basis for the cases. State’s wit e.g., Spesco v. General Elec. Co., (7th Cir.1983). nesses. As the Davlin Court see, explained, 719 F.2d 233 But e.g., Fulminante, State v. 193 [m]any Ariz. may be drawn inferences from a (1999); State, 975 P.2d Lolly evidence; 75 missing however, 611 piece of em (Del.1992). A.2d 956 phasis inference, possible on one corn- Wigmore one; explains the rationale as follows: founded from that consciousness may be fact of always It inferred the itself the cause’s has been understood—the infer- ence, indeed, lack of truth simplest and merit. inference thus is one of the in hu- experience necessarily apply party’s any specific man does not falsehood or —that cause, preparation operates, other fraud fact but presen- indefinitely in the in the cause, against though strongly, tation of his sup- the whole fabrication or mass of pression alleged bribery constituting spolia- evidence or facts his cause. tion, and 2 Wigmore, all similar conduct is receivable John H. Evidence in Trials at against 278(2) (Chadbourn him as an § indication of Common his con- Law Rev 1979). sciousness that his case is a weak or un- fact, destroy sought to evidence. it is jury part as of the municated instructions, the creates from record that he binding jury apparent looked court’s may give that jury the danger any evidence that would demonstrate the for very At weight. the undue inference he who driver the vehicle was. If least, may jury instruction judge’s trial in preserving erred not car from the just overemphasizing effect of have the elements, an can only such act be deemed that a inferences many proper of the one negligent. Consequently, evidence showing Absent a may draw. not simply support does inference that State, such part faith on the bad intentionally destroyed agent ev- emphasis is unwarranted. thought idence be unfavorable omitted). (internal State, An citation in at and the circuit did err Id. be may inference that refusing Engesser’s requested instruc- instruction evidence spoliation drawn from tions. As Wisconsin Court wrote ex Co., only when substantial proper Jagmin v. Simonds Abrasive a conclusion that the evi support 60, 81, (1973), ists Wis.2d existence, that it was in the dence was spoliation doctrine is “reserved de- par under the control possession or liberate, intentional actions and not mere may the inference be ty against whom though even the result negligence drawn, have been that the evidence would regards person same de- as who trial, party re and that admissible authorities sires evidence.” Other did destroying the evidence sponsible for 3.90, §§ agree. See Jones Evidence Lan intentionally and bad faith. See so (6th 3.93, 1972); ed. Whar- N.W.2d 330. glet, 283 (13th § at 197 ton’s Criminal Evidence Here, 1972). record does not show scope ed. The inference and the missing evi- the destruction are application discussed at 31A CJS its or made bad faith. dence was intentional (1964). § Evidence 152 at 388 “Such contrary, Trooper Fox left before On however, arises, presumption inference yard night impound in the the auto intentional, the was and only where act accident, recognized possible the the he of to suppress indicates fraud and desire any of such evidence and looked value § 244 the truth.” Am.Jur.2d Evidence He bodily in ear. indications fluids OF DESTRUCTION OR SPOLIATION Nevertheless, his none. he notified saw (2002 supp.). EVIDENCE may there superiors possibility that that assuming some [¶ 48.] Even in vehicle and asked them be evidence of a instruction should have spoliation form examine it. When the to send someone to given, assumption been unwarranted Riis, Rex expert, looked State’s forensic here, prejudice has shown no Engesser car, only a trace amount of he found give failure one. No forensic the court’s roof. He concluded that be- blood spatter if the testified that blood expert rolled, significance car had cause the preserved, been would evidence had greatly fluids in the vehicle was any bodily who driver’s seat. have shown was He that no diminished. also concluded examining concept, the Iowa Su In in the evidentiary value existed form spoliation preme Court warned biological Even if one could de- evidence. “applied caution[.]” be with rule should Trooper Fox should have taken duce A “mere Langlet, 283 N.W.2d make the vehicle was not steps to sure elements, destroyed evidence nothing possibility” in the exposed to Id. intentionally helpful enough. not that he would suggests record Lastly, analysis there no due [¶ 49.] with this conclusion because En- denying pro gesser violation in these also raised process properly preserved and objections relevance, posed instructions. accord with Ari as to prejudice, and ultimate issue. Youngblood, highly zona v. 488 U.S. 109 S.Ct. Because it was (1988), prejudicial to allow the 102 L.Ed.2d 281 to establish a State to elicit the violation, Trooper’s opinion process ly- due there must be some ing, the trial court should have showing part of bad faith on the of law excluded enforcement, testimony. such as the destruction of evidence not as the result of some routine 19-12-1, [¶ 57.] SDCL and its counter- practice or plain negligence but with the part, Rule 401 of the Federal Rules directly denying Engesser aim of right (FRE 401), Evidence provide that relevant to present favorable evidence. Id. at evidence is having any tendency “evidence 109 S.Ct. 333. to make the existence of fact that is of consequence Affirmed. to the determination

[¶ 50.] action more probable probable or less than GILBERTSON, Justice, [¶ Chief 51.] it would be without the evidence.” Among ZINTER, Justice, concur. the Defendant’s by statements referred to Fox Engesser’s assertion that he was SABERS, Justice, [¶ 52.] driving not the car. This statement AMUNDSON, Justice, Retired concur in up summed a primary argument by the part part. dissent Thus, Defendant at trial. evidence that MEIERHENRY, Justice, not the statement was untrue is arguably pro- having been a member of the Court at the bative of the issue of guilt and we will time this action was submitted to the assume it purpose was relevant for the Court, did participate. However, argument. assuming even relevant, testimony was “evidence may be SABERS, (concurring Justice in part if probative excluded its value is substan- dissenting part). tially outweighed by danger of unfair I concur on Issue 1 but dissent 19-12-3; prejudice[.]” SDCL See also on Issues 3 and 4 because the cumula- FRE 403. tive error created the trial court’s rul- 19-12-3, Under SDCL the trial ings on those issues warrants remand to exclude if that evi- provide Engesser with a fair trial. dence, provide “would the jury with an tendency undue to decide the case on an 2 ISSUE Behrens, improper Shamburger basis.” v. THE TRIAL COURT ABUSED (S.D.1986) 380 N.W.2d 661 (citing ITS IN DISCRETION ALLOWING Dunton, (Me.1979)). State v. 396 A.2d 1001 THE STATE TO ELICIT STATE- “prejudice” The term in this statute “does MENTS FROM TROOPER FOX damage not mean opponent’s to the case THAT THE DEFENDANT WAS that legitimate results from the probative LYING. evidence; rather, force of the it refers to I agree [¶ 56.] with the majority opin- unfair advantage the that results from the ion that Engesser failed to raise his char- capacity by of the evidence to persuade acter reputation objections and Holland, trial illegitimate means.” v. State 346 (citations and (S.D.1984) therefore waived them appeal. N.W.2d 309 omit- However,’the ted). majority Therefore, ending errs in the the fact that simple (citations worthiness”) omitted). also, to See harmful the Defendant were statements Florida, v. unfair- Bowles 381 So.2d necessarily they mean are does not officers, (noting, Plenty, “[p]olice by virtue Brings v. ly prejudicial. State (S.D.1990). positions, rightfully bring of their language with N.W.2d testimony their air of authority an firmly must be kept the rule itself A legitimacy. jury give great is inclined to substantially mind, must the prejudice weight to their as opinions officers of evi- value of the outweigh probative law”). dence, opponent is on the the burden showing. make this South Dakota has abolished ultimate 'issue rule instead has that, consistently held We have 19-15-4, adopted SDCL which coincides resolve jury

“it is the function of with FRE 704. The statute provides, conflicts, credi- evidentiary determine the “[t]estimony in the form of an or opinion witnesses, evi- bility weigh inference otherwise admissible is not ob- Raymond, 540 N.W.2d dence.” State v. jectionable it an because embraces ulti- (S.D.1995) v. (quoting 409-10 State mate issue be decided the trier of (ad- (S.D.1992) Svihl, However, fact.” SDCL 19-15-4. in order omitted)). Generally, “one ditional citation testimony for such to be it must admissible testify as another wit- witness relevant and must help the trier of credibility telling capacity or truth ness’ fact understand the evidence or decide the testimony such would invade because ¶ Guthrie, 61, 32, State 2001 SD issues. province jury of the to determine exclusive Further, N.W.2d “[o]pinions credibility McCafferty of a witness.” telling merely jury what result to reach (S.D.1989). Solem, N.W.2d intrusive, impermissible are as notwith- dis- trial court abused its [¶ 60.] The standing the of the repeal ultimate issue testimony over the allowing cretion this Guthrie, ¶33, rule.” 2001 SD It objection prejudice. province is the omitted). (citation at 416 Although jury, trooper, not the to ascertain testify the State did not ask Fox to direct- credibility of the truth and Defendant’s innocence, Engesser’s or ly guilt as testi- in the interview. Fox’s statements lying. did ask whether question who mony took the ultimate case primary issue Given driving time out at the of the accident Engesser’s regarding truthfulness Further, jury’s hands. the tenor night, identity of driver the testi- spe- testimony Fox’s indicated that he had duty and the mony wrongfully invaded give him knowledge cialized would Enges- to determine province judge than greater ability to truthfulness things These tak- guilt ser’s innocence. ordinary Specifically, he based person. prejudiced the Defendant’s together en opinions veracity his as Defendant’s to a fair trial. right people.” upon “experience interviewing and the manner in which His statements 3UE ISS they presented gave him aura of were “an THE TRIAL COURT ABUSED [¶ 62.] the improperly implied to expertise” that BY DISCRETION HOLDING ITS that truth matter. jury spoke he the of the THE HEARSAY EXCULPATORY (stating, “ex- Raymond, INADMISSIBLE. the testimony particularly courts pert confusing of The court found the hear- [danger prejudice undue or of trial [¶ 63.] the misleading testimony inadmissible based on jury] say the issues or the because following special reliability of its aura and trust- factors: of 1) by factor, the civil the affidavit submitted his The fourth the statement. that the time at

attorney did not state opportunity State would have no cross- to to have statement, which the declarant claimed equally ques- examine the Finley from the away seen drive sa- weight. tion of The State could have loon; brought testify in witnesses to regarding 2) credibility, pre- the declarant’s could have proponent offering the was the testi- an sented evidence the witness was

mony through attorney an for the Defendant; attorney for the Defendant in- and it did Engesser’s troduce to the statements as 3) by the statement a felon in was made Finley time he and left the bar and his flight; that he previously admission had driven 4) the statement was unreliable the car. Finley it stated that let seldom others drive her car Defendant but the There [¶ 66.] were certain “circumstan- already admitted he had driven the First, guarantees tial of trustworthiness.” accident; the day car earlier on the testimony attorney’s the was based on the 5) the statement would come without contemporaneously notes taken the with opportunity

the for the State to conversation. This information deliv- was it; cross-examine Attorney’s ered to the State’s imme- office diately a request investigate with to the 6) through the statement a phone came The statement. information was forward- call between declarant witness ed to State’s Attorney’s office before rather than a meeting. face-to-face charges criminal were even fact filed. The The trial [¶ 64.] factors that the did not follow up with testimony relied on to exclude this went to interview declarant does make weight of the evidence rather than to trustworthy. the statement less The fact First, admissibility. its the fact that there attorney that the forwarded it to the State no was indication as statement good coming is an indication faith in time the declarant saw the Defendant forward with evidence trial. Finley leave simply put the bar timing matter of jury question as Second, [¶ 67.] the statement was of- fact. of time determination was 1) fered evidence of as two material facts: solely for jury necessary and a factor 2) driving that evening, who was jury to consider in deciding the Finley rarely habit of let drive others Second, or weight testimony. value 19-16-35(1). her car. SDCL attorney is an officer of the court who Third, Engesser argues, is oath-bound not perjury. to commit supports record that he was unable There is no indication in the record that he other, secure more probative evidence of lacked either ability willingness or the driving evening, satisfying who was to tell the truth. 19-16-35(2). SDCL 65.] The third factor the court relied Fourth, general purpose upon, that the statement made evidence jury the rules of is to allow the in flight, felon weight also an issue fully all in- hear relevant and to rather than admissibility. The State jury would have had form the as to the material issues ample opportunity pres- presented ent evidence that the for trial. The perfect- declarant was a felon flight and the ly capable taking information would have into all of the account jury allowed the weigh credibility expressed to arguments by the trial court

759 (8th (D.S.D.1977) aff'd, 573 F.2d those 455 1027 free to assert and the State Cir.1978)). sup there is to When evidence arguments. port theory a criminal defendant’s of the offer Fifth, of intent to notice case, he or she is entitled to an instruction given. the evidence was ¶70, 40, Charger, 2000 theory. SD Sixth, state- the character of the [f 71.] analy Applying 611 N.W.2d at this Quite clear- extremely important. ment is sis, should hold that it was abuse of we evi- exculpatory ly, potentially this was give the proposed discretion to refuse have had jury which the should dence instructions. pre- weigh the case against opportunity spoliation have held that [¶ 74.] We is no indica- by the State. There sented an or presump evidence creates inference of an motive illegitimate in the record tion sup tion that the evidence would not have declarant, an indication nor is there charges against ported defendant. relationship between declarant any prior Kietzke, 502, 515, State v. 85 S.D. 186 testimony color the witness 551, (citing N.W.2d 558 22A CJS testimony This should manner. prejudicial 377; 596, § page v. Criminal Law State abused its have been admitted. 396, Oster, 87; People 232 Or. 376 P.2d v. of the tes- denying admission discretion Foreman, 616, Cal.App.2d 112 246 P.2d prejudiced also timony. This denial 979; State, 466, 244 Ind. Bruck v. 193 to a fair trial. right Defendant’s 491; Remington,

N.E.2d United States v. (2nd Cir.1951), denied, 191 F.2d 246 cert. 4 ISSUE 580, 1325; 343 72 S.Ct. 96 L.Ed. U.S. 72,] TRIAL ABUSED THE COURT [¶ 291). Evidence, Edition, § Wigmore on 3rd IN FAILING TO ITS DISCRETION Johnson, v. 509 See also State N.W.2d ON DUTY INSTRUCTIONS GIVE (S.D.1993) (quoting stat 687 Kietzke and AND PRESERVE SPOLIA- TO “[ejvidence destroyed ing, which is before OF EVIDENCE. TION analyzed chemically it or is inventoried evidence) It well (spoliation “[a] established ‘creates an [sic] in is entitled an it presumption criminal defendant that would not inference when theory against on his the case supported charges struction have ”) theory.” support evidence exists defendant.’ ¶ Charles, 67, 19, v. 2001 SD theory of the defense was [¶ 75.] The Charger, (citing State v. N.W.2d car at driving was not ¶ 229). SD N.W.2d both the time of the accident. Because adequate Jury “they instructions are when injuries resulting of the car occupants full and correct statement of the give the bleeding, may there been blood or have applicable law case.” State in the car that could other trace evidence ¶ 18, McVay, SD Any evi- supported theory. such have omitted). (citation Although errors destroyed by the dence have been instructing jury invariably rise do not degrada- protect failure to it from State’s level, goes ato constitutional “if the error testified, expert tion. The State’s theory to the heart of defendant’s the initial im- my understanding that defendant’s its infringe upon defense can trace pact in automobile is where Mil rights process to due trial.” (S.D. interpret- significance can be State, ler 1983) Solem, ed, of that trace (citing F.Supp. deposition that is the Zemina v.

evidence, it can be correlated back to instruction for spoliation. That simply ig occupants where the were. nores duty the State’s affirmative to pre serve a bright evidence. Such line rule elapsed had since acci- Three weeks the essentially an prohibiting instruction on by expert dent the time the State’s arrived spoliation beyond goes even what the Unit Throughout to look at the vehicle. that Supreme ed States Court held Youngb time, exposed the car to the elements lood.10 destroyed viability which have the of

any blood or trace evidence within the car. matter, [¶ As a 78.] threshold the ma- expert The that proper preserva- testified jority’s determination that the failure to would tion the evidence have been to preserve the evidence was unintentional is it in place protected store from the ele- supported by not Trooper the record. Fox He further testified that deci- ments. his indicated that he was well aware the not sion to test blood evidence was potential evidentiary splat- value of blood part upon based at least in the failure to Despite awareness, ter the vehicle. preserve the evidence. Trooper Fox made conscious decision objection The primary State’s to to leave the vehicle out of doors and ex- Moreover, they posed these instructions was that to the elements. the fact directing would tantamount to that Fox Trooper by a verdict was not motivated words, By for the destroy Defendant. its own desire to evidence should not be acknowledges only Rather, give failure to determinative factor. probably instructions would have led the Court should consider the troop- least jury to a knowledge exposure different verdict. er’s Under these the ele- to circumstances, denial of the instructions ments would destroy evidence and the substantially prejudiced the minimal Defendant’s amount of effort it would have right to a fair trial. taken for the preserve State to the evi- Furthermore, dence. the State forensic Here, degradation there was expert’s testimony that evidentiary “no potentially exculpatory evidence because biological value existed form evi- to State failed take the steps smallest dence” is based on evaluation which preserve that evidence. Despite the occurred after the exposed car been fact that prejudiced by Defendant was the elements for three weeks and thus inaction, majority State’s only af position does not support majority’s firms the trial court’s deny decision to the Defendant has no preju- shown instruction, spoliation but would make it dice. nearly impossible for a criminal defendant to ever be entitled to an re majority’s instruction determination garding adverse majority inferences. The a criminal defendant prove must bad on relies v. Youngblood Arizona and sev faith destruction of evidence to be entitled eral state court decisions from stemming spoliation instruction on is not in Youngblood to hold that absent intentional accord due process. with This Court has and bad faith destruction of consistently held that duty the State has a State, a defendant is not to an preserve entitled and hand over to the defen Youngblood, Supreme held Court 488 U.S. at S.Ct. 102 L.Ed.2d that "unless a criminal defendant show can at 289. The Court did not address whether part bad police, faith on the failure the defendant was entitled to an instruction preserve potentially useful evidence does not spoliation other redress. process constitute a denial due law.”

761 bright of an line test is inconsis in the course This gathered dant evidence a process. Requiring materi tent with due show investigation when that evidence is in e.g. ing permitted of bad faith order to be punishment. See guilt al either to (S.D. 908, precludes 424 adverse inference instruction the v. 910 Lyerla, State (citations omitted). 1988) nearly every The instruction in case unless prosecu that to faith actually faith is irrelevant to admits bad destruc good tion’s or bad (re e.g. Lolly, funda tion. See 611 A.2d at 960 duty. principles It violates of Id. jecting bright the line faith test upon to the defen bad impose mental fairness that of an proving noting by of bad “short admission the dant this added burden that preserve po police, unlikely to is a defendant would faith when the State fails necessary This is ever be able make tentially evidence. to the show exculpatory required to ing case such as this establish elements for particularly true a faith”). Furthermore, bad preserve proving requir to where the State’s burden a bad slight. Simply throwing ing showing a of faith order to evidence is so entirely receive the is not top parking of the vehicle or instruction con tarp over the with Youngblood. have sistent There the preserved it in an area could Su enclosed that there was no viola preme The State Court held some or all of evidence. this, process failure tion of due when the state failed to failed do even that to However, case, in that possible preserve a defense. evidence. removed When a directly such the trial court had instructed the that negligence State’s affects evidence, destroyed if it found the state lost or crucial defendant piece evidence, it could infer that the true facts entitled to remedial sanc should be some against Young state’s interest. trial court. were tion blood, 60-61, 488 at 109 S.Ct. at U.S. state courts have declined [¶ Other 80.] words, 102 L.Ed.2d at 291. other Young- adopt the bad faith standard Youngblood trial court in allowed redress suit. blood and this Court should follow for the where the state had defendant Court of Alaska example, Supreme For duty preserve in its material failed evi Youngblood “The decision pointed out The did not Supreme dence. Court hold of en could have the unfortunate effect to jury that a defendant not entitled a couraging the destruction evidence showing a spoliation instruction on absent destroyed be extent adopting of bad faith. Rather than merely ‘potentially comes useful’ since its case, this bright every line rule for Court be Thorne v. unprovable.” contents would allow redress for the defendant should who P.2d Dept. Safety, Public to examine and opportunity is denied the (1989). also, State, P.2d Torres v. See potentially evidence. present exculpatory State, (1998); v. Lolly 611 A.2d Henderson, (Del.1992); majority imposing spe- 82.] The is [¶ Commonwealth (1991). faith. This requirement intent of bad Mass. N.E.2d cific Furthermore, totally Spoliation food pointed as Justice Stevens unwarranted. it. refrigerate Spolia- if fails to Young- occurs one concurring opinion out blood, pro- if fails to “in tion of evidence occurs one there be cases which exactly That is tect it from the elements. prove defendant is unable to that the State should no happened here. There be acted in bad faith but in which the loss or what prove requirement so defendant destruction of evidence is nonetheless spoiled specific evidence with intent critical as to make a crimi State defense it. deny nal unfair.” 488 the defense the use fundamentally trial U.S. the instruction. at 291. defense was entitled to 109 S.Ct. 102 L.Ed.2d process requires Due meaningful defendant accorded “a op- present complete

portunity to defense.” Trombetta, 467 U.S.

California 2528, 2532, 81 L.Ed.2d S.Ct.

(1984). The Defendant in this case was opportunity, nor afforded was he

allowed which instruction would

have corrected the State’s error in failing preserve potentially exculpatory evi-

dence. have held that 84.] We cumulative part

errors on the of a trial court

support holding by reviewing

that a did not defendant receive his or her

constitutionally guaranteed right to a fair Solem,

trial. v. McDowell 447 N.W.2d 646

(S.D.1989). Bennis, See also v. State (S.D.1990); Dokken,

N.W.2d 843 (S.D.1986). question whether, a review the on entire rec-

ord, Engesser had a fair trial. The trial

court’s on rulings Issues and 4 consti-

tute cumulative error this case and this

Court should remand for a fair trial. AMUNDSON, Justice, Retired

joins on this dissent Issues 2 and 4.

2003 SD 46

Kathryn SAVAGE, J. Plaintiff Appellee, SAVAGE, A.

James Defendant Appellant.

No. 22503.

Supreme Court of South Dakota.

Considered Briefs March 2003. April 23,

Decided

Case Details

Case Name: State v. Engesser

Court Name: South Dakota Supreme Court

Date Published: Apr 23, 2003

Citation: 661 N.W.2d 739

Docket Number: None

Court Abbreviation: S.D.