*1 was that title to the truck was always Brothers;
in thе name of Weeks Weeks STATE of South Plaintiff Brothers knew he going repair Appellee, (although truck there evidence is no in the to support allegation); record that he FINNEY, expended the Mern N. money and time for labor Defendant Appellant. repairs; possession that he retained the truck. No. 13956. court ruled from the bench that South Dakota. Dowdy acquire could not a security interest prior granted that which he had to an- Considered May on Briefs 1983. that, Dowdy other. now asserts because July Decided perfect Bank failed to by filing, its interest he entitled to the mechanic’s lien. Dow- Sept. 7, 1983. Denied Rehearing propose findings dy any did of fact and judgment conclusions of law or a form in-
corporating his theory possessory me- However, lien. parties
chanic’s both having issue, and argued
briefed we proceed to of it.
dispose
Counsel does not cite to any us cases in of his
support unique theory. theOn basis -2,5 agree SDCL 44—11-1 court. Dowdy
the trial had been an
innocent third party his argument would be However,
valid. Dowdy equitable had an
ownership vehicle; was a he co-obli-
gor on the promissory co-signor note and a security agreement. As between Bank,
himself and Dowdy was bound
note the security agreement regardless Bank whether had recorded its security
interest. affirm portion judgment
We
granting possession of the truck and re- portion
verse that granting
equitable relief. the Justices
All concur. storage, maintenance, keeping, preserva- provides: 44-11-2 5. SDCL any personal property tion of shall have a lien personal property Such lien on be sub- shall thereon, dependent possession, or notice as liens, ject only mortgages, and conditional provided charge hereinafter for his reasonable properly sales contracts filed on or before the or all of the same furnished for said property posses- time comes into the personal property, or if the same be furnished sion of the lien claimant. pursuant agreed price to an with the owner for agreed price. amount said *2 clos- during to the jury
Hunter’s statement to arguments. Appellant’s objection ing jury sustained and the the statement was disregard admonished to the comment. was a for mis- not make motion Appellant did prosecutor’s the state- trial as a result of cura- request ment and did not additional tive instructions. retiring minutes after
An hour and ten deliberate, submitted a note jury the it that could informing trial court of both a With consent reach decision. counsel, jury the trial court informed deliberate, de- continue could hopelessly deadlocked clare themselves begin in evening again for the quit fifty stay chose to morning. jury The later, p.m., jury report- minutes at 10:15 polling, verdict. jury ed a unanimous On however, on was confused one of The trial court sent two of counts. Then, their work. jury back to continue motion appellant’s the trial court dismissed “prob- grounds on the for mistrial based At 10:45 deliberations.” jury lems hours two one-half p.m., approximately Hanson, Gen., Atty. Mikal Asst. Mark V. deliberations, jury re- beginning after Gen., Pierre, brief, Atty. on for Meierhenry, guilty verdict turned with a unanimous plaintiff appellee. time, the confirmed polling counts. This all Ortner, & Michael P. Ortner Ortner the verdict. appellant. Hot for defendant and Springs, trial, foreper- day after jur- alleging fellow signed son an affidavit DUNN, Justice. racial comments pressured ors her with judgment a appeal This mo- guilty for a vote theft, grand four counts of conviction on a based on this affidavit tion for new trial 22- violation 22-30A-1 and SDCL was alleging jury of SDCL misconduct denied 30A-17(2). affirm. We trial court. charged grounds Finney (appellant) Appellant’s primary
Mern
was
N.
submitted
with the
of four horses in
stems from the affidavit
theft
Shannon
the trial
Appellant alleges
County,
pleaded
Dakota.
foreman.
Appellant
grant
new trial
refusing
erred
a
July
trial was held on
court
guilty
and a
can-We
jury prejudice.
agree.
(Hunter),
During
dire, Elvina Hunter
voir
prospective
that some horses
tes
juror,
a
stated
allows
19-14-7
years
during
had been
ten
occurring
stolen from her some
tify matters
ques
before.
this incident would
“on the
She believed
course
infor-
cloud her
in the case. She also
extraneous
tion whether
stealing
improperly brought
“I
hors-
stated
don’t like them
matibn
sure
in
whether
outside
pride
jury’s
attention or
They’re
es at all.
Indians
to bear
brought
improperly
fluence was
not serve on
joy.” Although Hunter did
affi-
we
said
juror.”
have
repeat
upon any
prosecutor did
panel,
While
davits of
are
support
admissible to
Appellant next
prose
contends the
verdict,
Holt,
State v.
79 S.D.
107 cutor’s use of
statement,
Hunter’s voir dire
(1961);
N.W.2d 732
“I sure
McCoil,
don’t like them stealing
horsеs at
S.D.
all. They’re
the Indians
pride
joy”
N.W. 157
have consist
rises to the level of reversible error.
In
ently said that affidavits of jury members
McNamara,
State v.
(S.D.
N.W.2d 288
may not be
*3
impeach
used to
a jury verdict
1982), this court cited with approval
except to show the verdict was
decided
position
taken
Justice Henderson in his
lot or was affected by extraneous matters.
special
Kidd,
concurrence in State v.
Gallegos,
State v.
(S.D.
trial court’s amount to coer- the instant case. diffi- cion, McNamara, cult, see nor did since so supra, because abhorrent it judicial temptation a fair trial there is a deny appellant guaranteed process in speak the United States Dakota in terms magniloquent express- ing Constitutions. our condemnation of fashion- ing counteract it. remedies tо of conviction is affirmed. Read 19-14-7 literally, SDCL would bar FOSHEIM, C.J., J., MORGAN, con- the proffered consideration of cur. in full (quoted Stabnow dissent, infra). Henderson’s J.,
WOLLMAN,
concurs specially.
But
in terms
what should be done
of Rule
HENDERSON, J., dissents.
has stated that he
if a
does
convicts,
after evidence of a
trust
*4
WOLLMAN,
(concurring special-
impeach pursuant
used to
to
conviction is
ty)-
609,
Rule
on
adversely
or has commented
opinion points out,
majority
As the
SDCL
witness,
has
of a
referred
religion
1978,
19-14-7,
by this
adopted
as
court in
in an
manner
to the
uncomplimentary
606(b)
Rule
was taken from
of the Federal
hair,
length
proof
of the defendаnt’s
of Evidence. The
draft of
original
Rules
of these
if offered
a mo-
statements
606(b)
as prepared
Advisory
Rule
proof
tion for a new trial? Can
of these
Committee,
a very
contained
narrow exclu-
these
statements or some of
statements
Advisory
rule. As revised
sionary
of the
separated
proof
be
from
effect
Committee, however, and as
to
submitted
the minds
these
had on
of the
statements
Congress by
Supreme
the United States
jurors,
inextricably
the two so
in-
or are
Court,
significantly
Rule
contained a
testimony
entire
terwoven
juror
impeach-
prohibition
broader
under the Rule? Thе
rejected
ment of verdicts. Efforts were made in the
may
line
to draw.
very
difficult
Gen-
Representatives
of
to narrow the
House
it
erally,
to draw in favor
it seems better
exclusion,
Judiciary
but the Senate
Com-
of
juror
of
in .the heat
privacy;
the broader
pro-
mittee restored
exclusion
debate all kinds of statements
posed
Advisory
by the
Committee and
outcome,
effect on
made which have little
Court, and it was
Supreme
this broadened
though
context
seem
taken out of
finally
adopted by
version that
Con-
The amendments
damning and absurd.
Mueller,
gress.
“Jurors’ Impeachment
See
¶in
606[1],
1971 draft discussed
of
in Federal
Verdicts
Indictments
interpretation.
supra, support this
606(b),”
Rule
Court Under
57 Neb.L.Rev.
606[4],
¶
Berger, supra,
M.
3 J. Weinstein &
(1978);
928-30
3 J. Weinstein & M.
omitted).
(footnotes
606-33 —606-34
Evidence,
Berger,
606-2 —606-9
of Wisconsin has re-
finally
Rule
thus re-
adopted
exclusionary bar of
sponded to the broad
conscious,
flected a
deliberate choice on
606(b) by recognizing
competing
Rule
part
Committee,
Advisory
the Su-
juror privacy
interests
fairness
of
preme Court,
Congress
to limit
litigants.
scope
post-trial
of
attacks
verdicts.
against impeachment
While
of
the rule
prejudicial
What constitutes extraneous
necessary,
strong
verdict is
information or
outside influence
nor is it a door
is not
in stone
written
range
straightforward,
can
from the
rela
opened.
competes
incapable
being
tively simple
e.g., newspaper accounts
judicial
duty
the desire and
activities,
a defendant’s
United States
redress
system
injustice
avoid
(5th Cir.1970),
The concern for fairness to the parties proach problems such and to err upon judi- monitoring integrity the side of exclusion rather than receipt cial system us leads to conclude that a in close evidence cases. trial court may, appropriate circum- (footnotes at Neb.L.Rev. 942-43 omit- stances, allegations consider that extrane- ted). ous jur- remarks made to Pace dissenting opinion, it draws ors which a part were not of the judicial- more inferences from Stabnow’s affi- ly guarded evidence received. davit than document will properly
After Hour v. Laneil Welding Management yield. The force of is largely viti- Co., 734,737-39,324 108 Wis.2d N.W.2d ated by the fact Stabnow was (1982) omitted).** (footnote 689-90 to recant attempting her vote. Under the
Prejudice can
many
take
forms. After
19-14U7,
broadest possible reading of SDCL
Welding,
Hour
supra,
that she been accused her fellow the foundation of dissent of being racially prejudiced properly of in such a in a verified affidavit formed follows: foreperson jury. as to of manner not want convict defend- in ant. fact the other made this be- now Kalomera Comes Stabnоw statement, anything was it more than a sworn, ing and states duly deposes first give part jury of normal take of as follows: Indeed, was it anything deliberations? of I and foreman That was member more than an Stabnow to heard the case of decide the case on the basis the evidence Finney Dakota in State of vs. Mern South affinity not on of her racial the basis July Springs, Hot I would answer no to defendant? 1982.[1] Finney I believe Mr. That questions. both a new trial because of granted ex in the case. There was misconduct light legislative history In the through prejudice expressed treme racial light of strong Rule and in thе out deliberations. The other in favor maintain- policy considerations americans, con jurors, all native eleven deliberations, con- ing I privacy me of save a trying accused stantly clude that affidavit does Stabnow’s just I was a white person white because not warrant a relaxation exclusion- at the person. looking was not I provisions of ary considered basically facts in the case join affirming therefore as an Indian-white issue be matter conviction. Mern Dreaming Victor Bear and tween been able to Finney. Since had not HENDERSON, (dissenting). guilt agreement regarding reach be no injection I dissent. There should suggest of Mr. Finney, innocences [sic] foreper- into and the race deliberations sleep begin ed on the matter and that we had her will son this case overcome again morning our manifestations and accusations of racial July jurors kept saying The other *6 place can be no in our prejudice. There get had to home and that that night Jurisprudence of American for arri- had to make a decision that same system being of ra they kept accusing me ving guilt at a verdict of either innocence or I tired extremely was ap- оf a cially prejudiced. by through the intimidation strength just did have the This peal of racial room prejudice. guilty pressure vote for a bias, resist bigotry, a and terror. became room of by At no time was I convinced by This verdict infected racial consider- was Mr. I Finney’s guilt. of evidence society. be in a free ations. Such cannot wrong guilty to vote for a know it was jury process, impartial The heart of the I did not the man to when believe verdict deliberation, an abo- destroyed. was was just not have did guilty, that great mination of this everything from the pressure to resist strength country for. fundamen- stands my or their other accusations right impartial tal trial and an a fair racially prejudiced. being Fifth, rights guaranteed him jury, Sixth, Amendments, was Fourteenth also two other There were juror, thirteenth a verdict taken from him a racial agree who did on panel charged all of the prejudice. guilty counts 10,574 Census, County Although Springs, county Shannon has seat of 1. tried at Hot County, were from of which Fall River all drawn Indians and Caucasians American Dakota, County, judicial Appellant Shannon situs of this takes notice. author County alleged is attached to crime. Shannon minority a and the fore was a member of race County judicial purposes. Ac Fall River for minority jury. person a of one on the was Bureau, cording to States Census the United pressured by also Levitt, remain- In State v. 36 N.J. A.2d ing jurors to change their to guilty. (1961), Supreme votes Court of Jer- New sey held that a trial did judge his this abuse day
Dated 4th of August, 1982. (Emphasis supplied.) dence vital to our academic endeavors. properly brought verdict ute, upon an emotions An examination of Federal Rule of Evi- nection testify may his deliberations occurring during the course upon or or dissent from the verdict or indictment may testify on or whether outside influence was improp- erly brought traneous Except as concerning 606(b), Sierned/Kalomera Stabnow his or any other or therewith, except prejudicial as influencing indictment, codified as SDCL inquiry to bear otherwise or to his mental any to the jury’s attention matter question information into effect of anything provided by a evidence of any him to assent to processes juror’s any or statement validity whether ex- juror. the jury’s It states: may not mind or was in con- stat- of a Nor im- is gious prejudice of a juror. Essentially, it was discretion in made not extraneous as it is now new Jewish] makes little difference that the infection case this man’s ed, least tions There seems to be little doubt observations “There seems to be little doubt in this [T]he contended trial, taint of during [*] and it of this that that was contended person slight [*] the trial of passion, setting aside it was seems prejudicially trial judge information. jury; injected juror’s and legitimate so on that [*] contaminated with reli- religion [defendant prejudice long n * * comments arose out into the delibera- the State of South # stated: a as it is case, i.e., verdict on the In corroborated. New was affect- ordering is deductions so and it mistake.” present. Jersey, it was sk free at is a statement concerning Levitt, him a matter at 176 A.2d N.J. about which he prеcluded would be Quoting Jersey from from 1957 New testifying be purposes. Bernstein, received these Wright v. 23 N.J. (Emphasis supplied.) 284, 294-95,129 A.2d the New Levitt, upheld the Jersey Court What is extraneous information court: is an what outside influence improperly part of integral is an the court brought any juror? bear upon Surely, justice for the and on administration prejudice permitted racial is not inside the verdict principles its must elementary courtroom, so it come must out- side, charge obedient the court’s based sole- Obviously, prejudi- racial ly on evidence legal produced before cial to man’s or and it woman’s case *7 free from the taint of extra- entirely patently improper. protecting jur- I am for neous The considerations and influences. against ors annoying incidents and embar- parties action have to the are to entitled I rassment. realize that verdicts must have jurors each of hears the case the who jurors and that stability must have freedom unprejudiced free im- impartial, from deliberation, it indispens- likewise proper (Emphasis supplied.) influences. a keep able for to his or her solemn bar, oath decide impartially to the case under the at In case rank 19-14-7, the interjected by evidence.2 SDCL which is set eleven arguments racial above, a major exception forth embodies to crunch to Native American down the person rule will not able to white function their effectively improper if convict. It was an influence are post-trial proceedings. jury’s scrutinized in The racial it tainted the case, Jury provided: guided Instruction “The from evidence in the # judges given you are the sole of the facts and must deter- the rules of law as the Court evidence, mine what facts are these instructions.” rule was enunciat- (1971), of this as L.Ed.2d 825 this
apрeal
foreperson
jury,
affidavit,
appeal
reflected
her
was an
ed:
Malkin,
People
violence.3 In
v.
250 N.Y.
whether
short,
inquiry
is not
In
185, 201,
it was
164 N.E.
in the sense
jurors “became witnesses”
expressed:
not of
discussed
matters
they
endangered
as much
Society
specif-
they
whether
discussed
record but
its friends as of its ene-
the violence of
to the de-
relating
ic extra-record facts
mies,
as a
appeal
prejudice
and an
did,
fendant,
whether there
and if
is,
in the
guilt
factor in determination
possibility that
de-
significant
was a
final
to violence.
analysis,
(Em-
thereby.
was prejudiced
fendant
must remain unchal-
majesty of
law
phasis
original.)
each trial
lenged.
is threatened
ap-
Here,
relating
the extra-record facts
justified
is a
doubt of fair-
where there
were that this was an
pellant and this case
impartiality.
ness and
Dream-
“Indian-white issue between Victor
Haynes
In United
ex rel.
v. McKen
States
Finney”
Mem
and that
ing Bear and
drick,
(2nd Cir.1973),
prose
cutor’s
which included
namely, appellant.
a
person,”
“save white
hair
people,
references
to colored
their
con-
improper jury
race was an
styles,
and how
should be viewed as an
injection
there should be no
sideration and
separate
apart
from themselves
entity
of race into
deliberations.
(white
held to introduce racial
people) was
the trial and denied the de
prejudice
Smith,
into
cite Tobias v.
next
under
right
constitutional
fendant’s
1287, 1291 (W.D.N.Y.1979),
interpret
clause.
In said
at
process
due
606(b), codified
ed Federal Rule of Evidence
Ap
Circuit
United States Second
quote:
as
and I
prejudice
“Racial
can violent
peals stated:
quarrel
prop
There can be no
with the
juror’s impartiality
affect a
and must be
ly
is an
osition that the race of a defendant
proceeding
removed from the courtroom
jury, just
consideration for a
And that
possible.”
the fullest extent
are.
origin
religion
ethnic
Cf. United
negates
“It
expressed:
Court further
McKendrick,
Haynes
ex rel.
v.
States
the evi
right
defendant’s
to be tried on
Cir.1973). There should be
(2nd
F.2d 152
dence in the case and not on extraneous
injection
no
of race into
delibera
case
(Emphasis supplied.)
issues.”
This
prej
tions and
who manifest racial
general principle
also mentions
room.
place
udice have no
Four
convictions are to be ovеrturned on
such
Certainly,
probability
where a
where racial
grounds
teenth Amendment
demonstrated,
it would
prejudice can be
factor in the fibre of
major
ordering
constitute sufficient
federal decisions
trial and cites numerous
McKendrick, supra, at
a new trial. See
a fundamental
holding that a fair trial is
rel.
and United
ex
Owen
States
In the case
requisite
process
of due
of law.
McMann,
(2nd Cir.1970),
175
attention.
do I find in
After
language
Welding
Solace
Hour
v. Laneil Management,
Brewer,
734,
482,
739-40,
686,
v.
444
108
324
(S.D.
Smith
490
Wis.2d
N.W.2d
690
(1982). It
1978):
academically
Iowa
is
obvious that this
hearing to present
Here, appellant
rule of
ly
to ignore the evidence might very well
influence of
Rule
[T]he
there was a substantial
example, an offer
criminal defendant was
offend fundamental fairness.
es in which such testimony
inal
could not be excluded
alleged to have occurred in the
In McDonald v.
[783]
admonition particularly pertinent
admonished that
cases.
plainest
785
Court does
complete disregard
[59
238
should be
racial bias in the
principles
incompetency embodied
L.Ed.
U.S.
was never
Pless the
“there
an offer of
[264]
1300].
applied dogmatical-
proof
without
suggest
prejudiced
might
likеlihood that a
268-69,
justice’
permitted
showed that
of the
proof.
Where,
be instanc-
jury
jury
‘violating
in crim-
what
35 S.Ct.
by
room.
room,
”—an
tainted,
luences.4
could be made if the verdict in which
tell
brace whether a
case should be reversed and remanded with
evidence as to
participated
399
that the defendant is entitled to trial
instructions
front
ceived notions of
impartial jury.
(1970).
scope
appellant’s
ti,
an impartial jury.6
announced
262
determine
escape
the truth about
U.S.
witnesses,
of this state’s
N.Y.
and infused with
Art.
1,
the constitutional dimensions of
Sixth
Such evidence would also em
to the trial
90
was a
256,
VI,
if the
by
the jury’s
S.Ct.
“Not
assistance of
Amendment
186
prospective juror
§
guilt.5
nullity. People
7,
verdict was
majority
nonimpeachment
N.E.
only
1999,
prejudice
Coleman v.
S.D.
verdict in this case
court that
should the minds
A
693
26
Const,
determination
rights
decision,
counsel,
(1933).
L.Ed.2d 387
discolored,
Alabama,
provides
v. Leon
jury
did not
precon
it take
to con
rule,
can
inf
an
prejudice,
Whenever it
be without bias or
comes to a trial court’s
bias,
but
should be removed from the
attention that a jury
verdict
have
prejudice and excitement of others.”
State
been
result of
form of prejudice
324, 328,
588,
Belt,
v.
79
111
S.D.
N.W.2d
race, religion,
based on
gender or national
(1961), citing
Meservey,
590
v.
53
State
S.D.
origin, judges should be especially sensi
60, 65,
N.W.
State
tive
allegations
to such
an
conduct
65, 70,
v.
227 N.W.
Demerly, 56 S.D.
investigation to “ferret out the truth.”
also,
Volk,
(1929).
See
States,
Morgan
v. United
399 F.2d
(S.D.1983).
N.W.2d 67
(5th Cir.1968),
cert. denied 393 U.S.
S.Ct.
L.Ed.2d 568
For
cannot be sus-
principle
A sound
of law
even if only
jury
one member of a
har
survives as authori-
longevity
tained
but
bors a
prejudice,
material
to a
to reason and the
right
ty
because of its
impartial
jury
impaired.
Jurisprudence
conscience of man.
Booker,
United
reaching
States
to instructions instructions TITZE, forbid strictly Appellant, the consideration of Ruth Plaintiff need not prejudice. bias and recoil wrong committed in the from a known MILLER, Robert E. Defendant majority opinion name of the law. Appellee. and inviolablе because of authoritative No. 14037. jury may erstwhile rubric that a dating its verdict back to the com- impeach Dakota. Supreme Court of South England mon law of and two centuries of May on Briefs Considered States, then established law United 3, 1983. Aug. Decided upholding conviction assert birthed blatant in a room offends the reason and conscience man, rule. change and it is time to fortify inequity legal
Age will not an did, the If it law would still sanc-
wrong. imprisonment hanging
tion for debt and
the theft of a loaf of bread. exception falling
Racial 606(b), supra. within Rule And the
clearly Dakota to upon
hour is State of South estop
be a beacon to such encroachment trials.7 under our surely, fair For Constitution, of South
Federal State power duty
Dakota has the to adminis- But, justice.
ter own system its criminal
just each conform to surely, state must Process
the Due Clause of Fourteenth Appellant was not
Amendment. afforded society to a free process.
due Abhorrent menacing process
was the and unreflective determined, which the verdict was recorded,
announced, upheld by the tri- lantern impartiality
al court. The
extinguished. also, McComsey, stage of a is the deliberation 7. See 323 N.W.2d critical J., system justice (Henderson, dissenting), jury. (S.D.1982) It is the American denigrated.” expressing: I would not suffer it to wherein I closed “The most work.