*1 constitut- shareholder of another mand contract. a breach of
ed argues Longwell 30.] two shareholders only were there
since who dead directors were corporate
and
locked, author acting without Koehler for account
ity when he demanded au Longwell assets. cites
corporate cite
thority position. Failure for Hart v. argument.3
authority waives this
Miller, 53, 45, SD N.W.2d
149. all Having for Koehler on found
[¶ 31.]
issues, necessary address it is judg- Koehler. The raised
sixth issue court is affirmed.
ment of the trial Justice, MILLER, and Chief KONENKAMP,
SABERS, Justices,
GILBERTSON, concur. ERICKSON, for Judge, Circuit Justice,
AMUNDSON, disqualified. SD 61 Dakota, Plaintiff of South
STATE Appellee, GUTHRIE, Boyd Defendant
William Appellant.
No. 21388. Dakota. Court of South
Supreme
Argued 2000. Oct. May 2001.
Decided June 2001.
Rehearing Denied Court, Arguably, responding presented should to the 3. While not directors, corporate both request that as the CEO of be noted reasonable fiduciary Longwell duties have corporate Koehler assets corporation to account good required to each and are exercise other purview within data falls and financial Hayes v. corporate transactions. faith in all fulfilling fiduciary duties. one's ¶ Hosp., 1999 SD Northern Hills Gen. *5 Randall, performed pathologist, forensic an autopsy following day. Gastric and blood toxicology serum confirmed the presence subtherapeutic amounts of two agents, antianxiety Diazepam Lora- sedative, zepam, Oxazepam. and a From partially digested condition the tab- lets, they it appeared could have been taken four within hours before her drown- ing. Also present was a toxic and debili- Barnett, General, Attorney Mark Grant tating Temazepam, level of but not a fatal General, Gormley, Attorney Assistant overdose. The level of Temazepam Pierre, for plaintiff appellee. Sharon’s system enough render her Arneson, Philip R. Parent of Issenhuth unconscious. Randall estimated that she Madison, Gienapp, for defendant and & ingested Temazepam 20” capsules, “about appellant. which taken could have been acciden-
tally. she She drowned “because was inca- KONENKAMP, Justice pacitated Temazepam from the dose.” In judgment, Randall’s her death was not nat- appeal, In this we affirm the de- accidental, ural and not but the au- murdering fendant’s conviction for topsy alone he could not resolve whether it wife. was suicide or homicide. *6 A. B. Drowning
The Investigation The 14, 1999, May [¶ 2.] At 7:00 a.m. on Dr. [¶ As the incepting 4.] cause of death Guthrie, Presbyterian William B. a minis- unattended, medically was County Beadle ter, for emergency called 911 assistance. Chief Sheriff Deputy Jim Sheridan exam- Sharon, years, of thirty-three lay his wife photographed ined and the Guthrie home naked and unconscious in the bathtub. after Sharon was taken the hospital. to The persons respond first found her He then took Guthrie’s statement. Guth- face down in empty the tub. Guthrie was rie said in keeping morning that with his “on sobbing his hands and knees and ask- routine, left the for he house about ten ing for Two help.” pulled EMTs her out prayer minutes of and devotion at his hallway and moved her to a nearby church next door. When he returned he efforts, perform In they CPR. their be- hallway wet; noticed that the floor was he came soaked with water. After the ambu- opened the bathroom door found his left, Dosch, lance Bonnie an R.N. who had wife. He tried to her from remove the Sharon, attempts assisted in to resuscitate tub, but was heavy. she too He drained offered to take the hospital. Guthrie to help. water and called for Witnesses helped put She him his shoes socks. at the scene recalled that he was not wet regained
[¶ 3.] Sharon heart ac- or that knee only some was wet. Further- room, more, tivity in emergency but never he had shoes or socks on when arrived, breathed own emergency personnel on her and never recovered peculiar any brain in expired May just function. She that he said he had arrived home age fifty-four. Dr. Brad at his devotions church. began pastor where that the he Sheridan learned Deputy 5.] [¶ There, large pre- Wolsey Presbyterian a amount of Church. autopsy revealed system. in He congregation Sharon’s heard scription drugs appreciative best “the Department Jerry Lindberg [they] had.” asked sermons that ever But Investigation for assistance. of Criminal affair continued. Temazepam confirmed They pretext coun- attending [¶ 8.] On had in It been the household. present meetings, paramour and his seling or he sleeping a aid. Guthrie as prescribed for in in met motels Kansas and Nebraska. that Guthrie
Additionally, they discovered performance He problems had no sexual with another woman. had been involved years, they with her. Over the talked first him confronted When officers being him at some so point single,” “about affair, it, but he he denied soon about they together. eventually could be She later true. Sheridan ob- conceded was hesitant, a He got though, divorce. a search warrant for Guthrie’s home tained because a divorce with revelations of an and church office. officers seized affair lies could and his about it affect July in his office on computer Finally, future ministry. in the she be- had three adult 6.] The Guthries around.” sneaking came “tired of In Jan- Suzanne, Jenalu, daughters: and Danielle. relationship told their uary she him unhappy father They knew their seeing It was over. was time start He had told Suzanne that marriage. said, she open other she but left people, planned longer he no loved Sharon Sharon, possibility if he ever left after Jenalu’s wedding divorce obtain they date and how it “could see went.” years repeatedly he For six or seven June. drowning, the months before the Danielle, daughter, youngest their told telephone talk her on the continued to divorce, but that he just that he wanted They two or times week. were three Sharon, fat and ugly, hated that she was one occasion late Feb- intimate on more disgusted she him he could not so funeral, tried ruary. week after the A himself to touch her. force her, she to reconnect with but declined. *7 affair Guthrie’s adulterous Rebuffed, told it had taken he her that to It spanned began from 1994 1999. betray her him. long to in serving pastor while he as a Or- mishaps [¶ Several curious occurred 9.] leans, Despite to keep efforts Nebraska. In in the death. months before Sharon’s secret, relationship of his illicit it rumors case, one a cord had stretched across been a woman who served an with married reporting steps to basement. ultimately in church prompted elder incident, family members Sharon told superior suggest to that would be that her to come down- Guthrie wanted position. to find best for him another cord, her foot touched the stairs. When to any impropriety denied both his Guthrie steps. She recalled she sat back He congregation. per- superior and keep grabbed that her shoulder to Guthrie in he saying that could not consum- sisted daugh- falling. she told her her from Yet act he was impo- mate sexual because ter, Suzanne, me.” Nonetheless, “Somebody tried to kill his family he relocated tent.1 dad. Dakota, July telephoned Angry her Wolsey, in Suzanne to South claimed, was] he impotence originated, [where and a woman truck driver from 1. His staying at a raped when he was motel incident sodomized and beaten.” and pushed "he a room into man incident, rapidly, nervous,” very Suzanne had learned Guth- and complained rie said he told Sharon not to tell had “a pain about lot of in various parts of his anybody it because to going about he was body.” discuss it with the sheriff. day, The next Robbins, computer 11.] Judd spe- however, he told Suzanne that Sharon in degrees Computer cialist several “had her stepped on shoelace.” Suzanne’s Science, examined contents of the days husband examined stairs a few computer’s church hard drive. He found later.. steps Two down he saw computer that the had been used to con- somebody shavings like had drilled duct numerous Internet searches on sub- hole shavings and there were fresh wood jects uncannily related these disquieting to carpet. On the other side drowning. incidents to the Some of base, wall it’s like a concrete there was a these searches were not connectable any round, hole, say I don’t want but date; pinpointed others could be specif- there was a where it place looked like in days ic the months before Sharon’s something glued had been then death. Sharon had access to this comput- off, pulled actually but there was some- er, she very but was not familiar with the thing that appeared round there. Her daughter Internet. had shown her occasion, [¶ 10.] On another a bathroom browser, how to use a twice web but other light working. brought was not in Guthrie email, sending receiving than she a lamp so Sharon could wash hair in her seemed to have little interest the Inter- lamp bathtub. The fell over. As net. In the two days before the falling it, Sharon later recounted she believed the episode, lamp computer Guthrie’s dog bumped lamp. And Guthrie was church office had been used for two hours Indeed,
there to catch thought it. Guthrie specific to conduct Internet using searches he received an electrical shock in the inci- an online search engine repeated —the dent and went the emergency room for queries were for “household accidents” and treatment. Dr. Richard Reed admitted “bathtub accidents.” observation, him overnight for but could physical April find no On manifestation of electrical Guthrie recalled, however, shock. brought The doctor Sharon to the clinic with the com- anxious, “extremely Guthrie breathing plaint she could not wake up.2 She 2. computer’s up On the church hard was a drive her for work wobbled and she into the message draft email to his bathroom and a few later min. she was Jenalu, daughter, April dated asleep running the tub with water all message repeated text of the *8 here with its up got the over floor. I woke her her out of spelling typographical and errors. my investigation. bed ant then started She during night point the ingested at some had your keep Hi well mother continues to me something Benadryl like 15 to 20 and God my night. on toes even in the middle of the what sleep knows else. She has been walk- Wednesday night Tuesday got evening she ing figure now I up for about months and lights all the turned on walked into the just realizing now I'm what she has kitchen there about been was 15 min. and re- bed, doing feeling stupid. talk about glass got Well I turned to with a of chocolate her to the Dr. and milk. I her he did some tests and asked what she did she said nothing sleep she has the this was about 2:00 feels same disorder her a.m. then about thing, put up 3:00 brother has. I all she did same then about Well the meds last again night got 4:30 she did this where she time after about can't find them and we up got sleep night. got ten min. up I to check her she some last on She twice in passed night me in the hall without acknowl- and then I knew what she is edging doing. there. I was At 7:00 I woke a.m. Well so for that much now I will symptoms include: Overdosage it.” he told properly. out of Twice “completely was somnolence; with to confusion reduced or ab- anything “I didn’t do personnel, clinic reflexes; depression; respiratory ap- Dr. sent examining physician, Jeff The her.” coordination; nea; Hanson, hypotension; impaired with nothing wrong could find seizures; speech; ultimately and A re- slurred toxicology urine screen Sharon. drug and coma death. The last Internet The screen would drugs. vealed Benadryl, April that month was on presence of search have revealed that told the doctor however. Guthrie later, days Two on April [¶ 14.] have tak- sleepwalking might Sharon while to the clinic complain- Guthrie went could Benadryl Codeine. Sharon en and Physician insomnia. Assis- ing of He saw the next nothing of incident remember They discussed Thompson. tant Jean it was fault: she she her day, but believed suggested Am- sleeping medications. She allergy on her medication had overdosed declined, saying He Am- bien. both She (Benadryl) pills. herbal diet and Xanax not been effective bien had daugh- weight to before her wanted lose (His going past.3 medical records and her weight excess wedding. Her ter’s past years nothing back ten mentioned con- disapproval also consequent husband’s any sleeping problems prescriptions or of remarked, “As soon her. once cerned She medications.) They sleeping agreed for me on going I lose Bill is to take weight, (Restoril), although Temazepam Thompson a cruise.” prescribing about it be- had reservations its side One side effect is cause of effects. April, During the month of day after the med- residual drowsiness the acci- to searches household addition pre- ication is taken. Guthrie received dents, also used computer the church capsules thirty-milli- for scription fifteen drugs. explore prescription to details about strength, three refills. He was gram engaged to engine An online search capsule take one at bedtime. as “Lorazepam,” for such medications look “Ativan,” “Ambien,” day, reported Later Sharon and “TCA.” Various husband said “he drug Thompson that her pages downloaded from web were if sites, prescription [she] lost asked and other all describ- had manufacturers in for calling their mind a second one purposes, their would ing drugs, these prescription Thompson phoned could not be him.” dangers. Although date went K-Mart isolated, Drug. brought up searches in at Statz one of the prescription one afternoon had promoting a book “Worst website entitled later, he went to Statz filled. Two hours Best Consumer’s Guide Pills Pills-A 4,May filled. and had other On Drug Illness.” Avoiding Drug-Induced Death or again used to Ominously, among computer “do not the church the 160 listed Internet, time specifically was a called search prescriptions use” medication May “Temazepam.” On Sharon Pharmaceutical (Temazepam). Restoril Drug. next up car- a refill at picked that this Statz literature warns medication drowned, day im- Sharon day, if before dangerous consequences ries taken *9 sleepwalking since keep you continuing saga that Sharon had been posted on the trial, family members mid-1970s. At How the churn... Guthrie’s sleep- that she corroborate his claim could I love Dad... 3'ou message was never sent. walked. This email any- Guthrie did not mention the doctor death, thing sleeping the tub. about Sharon in Guthrie would obtain 3. After Sharon's investigators, reported prescription Ambien June spoke he When he picked yet Guthrie another refill El- ened up around because Sharon midnight Now, capsules Mart. sixty sleepwalking. had been ob- Guthrie went over to the church tained in of two to work on his sermon. period weeks. He re- turned an hour later to find water “run- [¶ 16.] One of Sharon’s favorite drinks ning out of the bathroom and down the milk. every chocolate She drank it stairs.” up He ran to the bathroom and day and in the usually morning. Because found Sharon. told Guthrie Davis that he capsules, Restoril in comes their contents her, tried to Deputy resuscitate but he told can by simply twisting be removed them Sheridan that not know he did CPR. Davis open. powdery The substance inside is thought it strange right also after tasteless The sleep and odorless. other him, Sharon’s death Guthrie told “We were Physician remedies that the Assistant had getting along great.” previously He had Guthrie, discussed with Ambien and Xa- told Davis that he wanted divorce. nax, come in form tablet and thus cannot easily be as patholo- dissolved. When the C. gist examined contents of Sharon’s The Case State’s stomach, he thought unusual that there were capsule no Restoril remnants to be [¶ 18.] Guthrie was indicted for first found. pieces He did find other medi- 27,1999. degree murder on August Three in cations non-toxic amounts. Law en- later, days appeared for arraignment forcement officers theorized that the con- and was ordered without held bond. He approximately tents of twenty Restoril pleaded guilty. jury trial com- capsules had placed been Sharon’s choc- January menced on 2000. Whether olate milk drank before she it that morn- Sharon’s death was murder or suicide was ing. She would not have been able to the crucial issue. The State called various death, detect it. After witnesses, Sharon’s a friend including law enforcement offi- who came to wiped cers, clean home up doctors, specialist, a computer what thought she was flour on the kitchen Executive Presbyter, and the three daugh- allergic flour, counter. Sharon was but suicide, ters. question On the the State flour was stored in the home. There Berman, were offered Dr. Alan a clinical psy- still milk chocolate cartons in refriger- chologist, suicidologist, and the Executive ator. Director of the American Association of Suicidology. suicidologist, A Berman ex- death, [¶ 17.] After Sharon’s plained, an expert through profes- who gave conflicting accounts of the drowning. sional training experience, studies sui- The version he reported Deputy Sheri- cidal death “primarily terms of learning dan is not the Suzanne one recalled her about the character of individuals who are father giving. presence, In her he claimed suicidal and those that do suicide [commit] gotten to have Sharon out of the him- tub and the circumstances surround sui- self and 911. Larry Provance, then called objected, cidal death.” Guthrie arguing brother, Sharon’s recalled that when he that Berman’s were not theories scienti- home Guthrie’s after Sharon’s fically validated. death, explain he heard Guthrie the cir- surrounding cumstances Sharon’s death 19.] Berman detailed for several times each time the the psychological dynamics details found in those changed. Presbyter Executive who William take their own lives. Sharon Guthrie Davis said that him Guthrie told exhibited a minimum predisposing risk death, night before Sharon’s he had awak- factors. Although ingested she had multi- *10 day, judge with the next it had been to a circumstance consistent pie drugs, ill- suicide, history of mental to him “in confidence and given [he] she had no ill- ness, physical it depression, significant yester- authorized to release until not ness, or suicidal dependency, chemical it, At the time he received counsel day.” family personal no She had ideation. the document “could be as incul- believed Her hus- of suicidal behavior. background exculpatory, as it was absent some patory affair, but having been she band had particu- to its source. And authentication certainly of it for some had known almost my larly the elimination of client as stand admitted on the Guthrie later time.4 It did not occur source document.” had her he wanted a divorce that he told for counsel to have the note examined knowl- January. With her previous a ar- newspaper until he read fingerprints plans infidelity her edge of husband’s Daily in the in late ticle Madison Leader divorce, that Dr. Berman believed for lo- Cynthia about December 1999 Orton’s be likely could not circumstances those operated Over cally fingerprint business. Berman triggering suicide. credited objection, the note was admit- the State’s suicide contraindications for found several ted, subject experts having an to State her was excited about risk. Sharon hearing it opportunity to examine her wedding. daughter’s upcoming With following possible sanctions trial her personality and self-consciousness against defense counsel. have weight, her she would not about explained naked. He took the for 21.] wanted to found stand [¶ than of women kill themselves that less 2% how he found purpose explaining limited bathtub, who drowning and those by He he discovered it in his the note. said if in the as generally lie back water do after office weeks church on June three permitted go Berman be- sleep. It was “written Sharon drowned. yond reciting risk factors and suicide Sharon,” said, liturgy placed he in the suicidal profile whether Sharon met I prepar- that and used for book “Sharon he objection, Over testified persons. told one but his ing bulletins.” Guthrie not die opinion in his Guthrie did “Sharon in confi- attorneys and a fellow minister Likewise, report in his admit- by suicide.” it, finding gave Five he days after dence. evidence, stated, my “It is ted into Berman He never mentioned it to defense counsel. opinion high degree to a considered family or to law enforcement it to his not die certainty that Guthrie did Sharon fact, investigators. July by suicide.” hidden her father with a went to Suzanne recorder, her seeking about tape answers D. subject broached the mother’s death. She Note” “Suicide suicide, volunteered noth- but Guthrie appeared He nervous and would ing. rested, After the defense 20.] State days Two eye contact with her. make note.” Guthrie counsel unveiled “suicide later, however, workplace. to her he came mid-June, attorney given had to his had told then to her that “he He revealed Despite re- seven months earlier. some order, death my evening mom the before her did not discovery counsel ciprocal because, had told about the affair he her explained the note disclose exhibits, Orleans, living in According Nebraska. of Guthrie's own one they while were still knew of affair she *11 going sweating he was to divorce commonplace her.” Sharon for those con- attack,” responded suicide, “anxiety with an Guth- templating thought she someone said, rie that “suspicioned” and thus her intending suicide handled note. After morning death the next was suicide. Yet State, the note was revealed to the telephoning Suzanne recalled her mother expert prosecution for the an opportu- had p.m. that same after 10 night to ask about nity analyze expert it. The State’s used glue at pot she left church. Sharon “developer” different chemical to reveal in agreed bring bed the time. She prints by persons in the oils left touching the glue over the next Suzanne morning. hand, the note. Ninhydrin, On the other or upset detected no stress emotional in used, developer Orton educes the al- her mother’s voice. phamino by perspiration. acids left Orton physical developer testified used unsigned
[¶ 22.] The note was dated by the State examiner obliterated some of day It before Sharon’s death. by the coloration brought Ninhy- out daughter: addressed to her drin. 13,1999 May Suzanne,
Dear prove To the note was not writ- Guthrie, by ten the defense called a com- your I am I sorry wedding, ruined Your puter specialist who testified that your dad told me his my about concerns of examination of the contents of the Interfering church possibili- Jenalu’s drive, I ty might computer’s ruin I hard there hers. won’t be there were no any your so Put mind at traces such note ever having ease. You will been However, understand after the created. wedding prosecutors is done. were re- minded there was a second computer. I you love all Mom. It been in had home. Guthrie When (The note, replicated spacing here with its had officers earlier examined the home in errors, and typographical apparently warrant, July with a they search saw the created on a computer.) computer, but it not to appeared have been days trial, [¶23.] Five before defense They used. decided not to take it. Guth- Cynthia counsel hired Orton to examine rie had access to it until he was arrested Orton, the note fingerprints. with jailed on August 27. Sometime after years of training experience gained arrest, daughter he asked his and son- the military, obtained latent Sharon’s in-law, Hewitt, Suzanne and Les to store prints personal posses- from some of her some of his belongings, household includ- sions. prints Sharon had record on file. ing computer printer and the connect- Orton testified that out of prints several ed to it. Now on the revelation of a made visible on the “suicide note” note, suicide the State asked Les Hewitt to aid of Ninhydrin, the chemical she chose bring computer. in the agreed. He Guth- four “strong” prints. She ana- could not suppress rie moved to gained evidence lyze all prints due to “time con- computer, asserting from this that it was straints.” prints The four not could illegally. seized The court denied the mo- attorney. attributed to Yet tion. she could prove neither nor disprove that prints Sharon, belonged examining and thus From the home com- she say could if drive, Sharon ever touched puter’s hard expert the State’s Nonetheless, the note. she testified conspicuous found document with simi- prints because the four appeared to have gave larities the note Guthrie to his been left someone “very sweaty,” and attorney. This document had been creat- *12 through trauma of August 1999. Like the emotional Sharon’s on ed and modified death, jury the as portrayed try bring to “to to some into the document reason note,” May it was dated happened.” Sharon’s “suicide what had similar, and the appeared The font 13. case, the After rebuttal State’s words margin spacing between size sought Cynthia to recall Guthrie Orton. identical, lack even the of appeared complete her Although examination in the comma and space the date between analyzed after “suicide for she the note” were differences. But there also 1999. she prints early January, thought that missing; only body the note was of time, prints might with added the become you words “I love Mom” the date and the distinct, Ninhydrin more as can improve remained, word “all” in without the but readability prints the of over How- time. Nonetheless, ex- line. based on his that ever, the the Orton believed chemicals of the document’s electronic amination impaired any State used obliterated or and the similarities be- background data In improvement readability. eventual to his attor- gave tween the note Guthrie proof, repre- of defense counsel offer on the home ney and document found the sented the court that if called on surre- to expert the State’s concluded computer, (1) buttal, testify would that now Orton she the “pre- that the 7 document was August prints fairly had set of latent at- another purported the suicide note. decessor” of which could nei- tributable to Sharon lines According expert, the additional to prints ther matched nor excluded from the out, added, printed been could have (2) note, on the of the method because off, and no computer the then turned rec- State, origi- on by prints used of the ord on the hard disk would remain developing nal from stopped note were recalled to stand added lines. When (3) further, on the note prints August answer he to whether created pro- were distinct more before State document, testified, probably “I Guthrie offer, disallowing cessed it. did, it.” but I don’t—I don’t remember circuit ruled that this evidence would court so, did not Even he insisted that he create testimony, her nothing add to but would he on the “suicide note” found June disparage own process- tend to the State’s confirm that existed before To note note, ing right which it had to do. August attorney Gienapp David he defense counsel’s law firm testified that “quite July a while before”
saw note E. 26,1999. Appeal Verdict and threatening another note 26.] Still After weeks trial two of computer’s suicide was found the home deliberation, of and five hours as the again pur- hard drive with Sharon murder in the first guilty found grievances It listed ported author. various mandatory to degree. He was sentenced One line Sharon addressed Guthrie. appeals life in He his conviction prison. stated, upset you “I’m have had an (1) following expert on the whether issues: me, I affair have come clean testimony allowed on the properly my you have life and thought ending (2) suicide; motion question of whether the up face it. Believe I would have to me properly de judgment acquittal According it.” known how to do to the nied; (3) proper whether the circuit court this document was created expert State’s suppress motion to ly denied a defense August he wrote 11. Guthrie admitted (4) trial; one, during wheth- merely way working evidence obtained but his suicides, er he was entitled offer surrebuttal ties or factors and that had (5) testimony fingerprint expert; published numerous articles on the sub- whether certain communications Guth- After Daubert ject. hearing, the court superior “clergy rie fell under the ruled Berman’s was admis- *13 19-13-17 whether privilege” SDCL and did not counter sible.7 Guthrie with com- privilege was waived 19- under SDCL Instead, parable expert testimony. de- (6) 13-26; and whether the circuit court McGrath, counsel fense called Dr. Michael the state to properly play tape- allowed psychologist, a clinical to attack Berman’s conversation, recorded have the read methodology. offered no opinion McGrath transcript permit a of this recording, and on Sharon’s state mind her of before testimony live regarding the same conver- death. (4) We that sation. conclude Issue lacks expert [¶ 30.] Admission of tes full
sufficient merit for discussion.5 timony governed by is SDCL 19-15-2 (Rule 702): F. scientific, technical, If or spe- otherwise
Psychological Autopsy cialized knowledge will assist the of trier Dr. Berman’s testimony 29.] includ- fact to understand evidence or to an ed account of the common factors issue, determine a fact in a qual- witness suicide, persons comparison risk for a of by skill, expert ified as an knowledge, case, finally those to this factors education, or experience, training, may opinion Sharon Guthrie did not com- testify thereto in form of an opinion performed mit suicide. psy- Berman or otherwise. chological autopsy reviewing various documents, certificate, Trial courts retain including the broad discretion in rul- death records, ing admissibility expert on the of report, po- opinion. the coroner’s medical Edelman, 52, State interviews, 4, grand lice jury testimony.6 593 Bachman, 419, State v. 421 independently family (citing He also N.W.2d interviewed 271, (S.D.1989)); members. Berman indicated that he had Zens 446 N.W.2d 275 Harrison, (S.D.1995) 794, previously been qualified expert as an 538 N.W.2d cases, (citations omitted). equivocal death that he familiar Decisions to or admit with research on the deny opinion common characteris- evidence will not be reversed questions 5.Issue the trial proof court's order dis- Surrebuttal event. is limited to rebut Mitchell, allowing request finger- ting Guthrie’s recall his rebuttal evidence. See State v. 438, (S.D. print 1992). expert as a surrebuttal witness. The We find ruled, proof, court offer of after an Orton abuse discretion. of beyond had no new evidence contribute original testimony. judge her psychological found that 6. Dr. Berman described au- proposed testimony her probative topsy as investigation was not "a manner death of ... may physical jury. autopsy, clearly in fact mislead the akin to a Evidence but where may probative goal probable if is to excluded “its value is understand man- method, substantially outweighed by death danger perspective ner of from a of un- of site, issues, prejudice, fair of and character of the decedent.” confusion or mis- leading jury, presentation ... needless of findings cumulative evidence.” SDCL 19-12-3 trial 7. The court entered of fact and (Rule 403). law, also noting contends that Orton conclusions of that Dr. Berman expertise would prints have testified that the four suicidology, could had in the area placed posthumously. not be the note methodology acceptable his research relevant, irrelevant, prints This as the could not be and that his rested on positively any to the attributed deceased in reliable foundation. Zens, 425; see also showing of abuse discre- clear absent (citations omitted). N.W.2d at 795 To be Logue, 372 N.W.2d tion. State v. course, omitted). (citations (S.D.1985) helpful, expert opinion A must of- court’s jurors something fer more than can infer reliability receives the same def- ruling on knowledge for themselves. Berman’s on ultimate admissi- erence as its decision factors Co., helpfulness suicidal risk met the Tire Ltd. v. bility. See Kumho Car- by assisting jurors in 1167, standard evaluat- michael, 152, 119 S.Ct. U.S. ing the (1999). perplexing circumstances of Shar- 143 L.Ed.2d 252-53 on’s death. misapplies a trial court rule When evidence, opposed merely allowing or Opinions merely telling a *14 evidence, it refusing questionable abuses jury impermissi what result to are reach States, Koon v. discretion. See United its intrusive, notwithstanding ble as the re 81, 100, 116 S.Ct. 135 518 U.S. Zens, peal of the ultimate rule. 538 issue (1996). 392, 414 L.Ed.2d (citing N.W.2d at 795 McCormick on Evi that the circuit contends (4th 1992)).
[¶ 31.] Guthrie
§
dence
12
ed
See also State
to
allowing
give
erred in
Dr. Berman
¶38,
court
Barber,
96,
1996 SD
552 N.W.2d
omitted).
suicide and
particularly
817,
(citations
his theories on
Although
suicide,
by
did not die
opinion that Sharon
Berman was not
to address Guth
asked
to
ultimate
improperly
innocence,
as it
went
the
issue
guilt
opinion
ap
rie’s
or
province
jury.
the
of the
and thus invaded
proached
impermissible
the
when he told
ultimate
Dakota abolished the
issue
jury
South
the
that “Sharon Guthrie did not die
it
19-15-4:
Zens,
rule and
with SDCL
replaced
by suicide.” See
mony, a court
opinion
must ensure
whether psychological autopsies have been
Daubert,
abides on reliable foundation.
subject
course,
to validity studies. Of
U.S. at
S.Ct. at
law
require opinion
does not
at
L.Ed.2d
485. The standards set forth
be above all criticism before it is admissi
in Daubert
limited
are not
to what has
ble.
expert
Guthrie’s
testified that there
traditionally
perceived
been
as scientific
were no
validity studies
the area. We
evidence. These standards must be satis-
interpret
liberally
our
rules
evidence
scientific, technical,
fied whenever
or other
“general approach
with the
specialized
Kumho,
relaxing
knowledge
offered.
traditional
‘opinion’testimony.”
526 U.S. at
at
barriers
119 S.Ct.
Daubert,
588, 113
L.Ed.2d at 246.
at
Guthrie does not chal-
509 U.S.
*15
S.Ct.
(citations
lenge
omitted).
testimony;
the relevance
[¶ 38.]
error
reliabili
What
exist on
rates
give contradictory opinions on the
suicide?
studies
conclusion,
Ber-
falsifiability
opinions?
for
ty
validity
or
of a
the issue of
and
such
jury.
little data.9 We think there
reliability
question
provided
becomes a
for the
man
author,
co-
he did not
but neither
these
9.
testified that he authored or
studies
Dr. Berman
publications
eighty
of which
predictive validity
reliability
authored
"most
or
with the
dealt
peer
journals
articles in
review
are research
suspected
psychological autopsies in
homi-
essentially
peo-
of suicidal
which are
studies
truth,
autopsies
psychological
cide cases.
In
ple
people.” None-
relative to non-suicidal
unrefined,
new,
“relatively
and
un-re-
are
theless,
with
only two of those articles dealt
is
technique...."
clinical
diffi-
"[I]t
searched
autopsies:
published
psychological
one was
identify
of law where
cult to
another area
impact
and discussed the
of such
testimony
psychological
psychiatric
autopsies
who deter-
on medical examiners
support,
empirical
such little
foundation
death;
the other one was
mine the manner
field,
acceptance
little
with such
published
opera-
in 1989
dealt with
"Given the dearth
as evidence.”
admitted
criteria for the
of suicide.
tional
classification
validity
investigating
and relia-
research
hearing,
cited two other
In the Daubert
is substantial reason to doubt the reliabili- where the murder defense was suicide
if
ty
they
(Bartram
of suicidal
are to be used
profiles
State,
Md.App.
v.
subject’s
unequivocally
to declare
that
(1976)).”
Nonetheless,
A.2d 1119
at 5.
Id.
testimony
was self-inflicted. This
death
a year
Daubert was
after
decided
Burt-
syndrome
has the
as
evi-
pitfalls
same
zlaff, and our standards have since been
We
been
in authoriz-
dence.
have
cautious
only
modified. Not
are these
all
cases
ing
opinions
psychologi-
definitive
based on
e-DaubeH,
they
pr
provide
but also
as
syndromes.
cal
any
In
sistance
our case
event.
Jackson,
example,
question
In
not
present
state of behavior
research, a syndrome may
suicide,
al science
the victim
whether
committed
but
explain
to describe and
generally reliable
why she committed suicide. More helpful,
characteristics,
functions
it is not
e-Daubert,
but
still
v.
though
pr
is Beaver
dependable
prove
syndrome
(M.D.Tenn.1983),
Hamby,
419 (N.M.1993) (behav- 192, 861 P.2d 210 none of the indicators wife’s death bore abuse); who, v. commit suicide. iors consistent with sexual State with those associated (char- (Vt.2000) Kinney, concluded A.2d applied Daubert and St. Jean rape was reli acteristics conduct victims of psychologist’s testimony that the State, syndrome); the mili trauma Carnahan v. admissible under and thus able (battered (Ind.App.1997) equivalent to 681 N.E.2d tary rules of evidence However, syndrome for woman behaviors offered psychologist’s rules. federal purpose, proof “the of one limited profile limited to not that defen- victim). is, suicidal dant battered Berman’s under- psychiatrically speaking, who standing *1. In of risk factors for suicide was risk.” Id. at Horinek a suicidal relevant, admissible, State, (Tex.Ct.App.Fort helpful, in the but S.W.2d rth1998), of a officer police present psychological knowledge, a case state Wo wife, murdering profile his a foren alone cannot be used to charged with suicide certainty per- declare with scientific that a pathologist-psychiatrist performed sic did testified son did or not commit suicide. Ber- autopsy” then “psychological very opinion respect this man’s in that was inadmis- appeared unlikely “that Thus, under the Daubert standards. person be the sort of sible individual would did trial court abused its discretion al- But the Horinek court kill herself.” opinion that did reliability lowing Daubert stan Berman’s Sharon not discuss the Biffl, Psy not generally inquiry Elizabeth not commit suicide. Our does dards. See Belong Do here. They end chological Autopsies:
the Courtroom? Am.J.Crim.L. Because we find that [¶43.] (1996). beyond allowed to go Dr. Berman was opinion testimony Dr. under Dau- Unquestionably, permissible bert, opin if admitting the men we must decide expertise had special Berman suicide, but was not suicide was commit ion death tal states of those who Hart, knowledge primarily on ob harmless error. See State was based 17, 17, 544 210. See traditional experience, servation and SD Error 23A-44-14. is harmless See 19-15-2 also SDCL empirical studies. SDCL 702) (Rule would not have with when “the verdict (experts “specialized testimony] [challenged if the knowledge” testify the form of been different may Hart, allowing experts special were See opinion). excluded!.]” ¶ 17, 210. The bears testify,- applying 544 N.W.2d at State knowledge ized courts the error was not proving the burden generally permit experts Daubert these *18 Nelson, 124, 1998 SD prejudicial. the or of State v. symptoms describe behaviors ¶ (citations 7, 439, victims, or 443 omit report symptoms known the 587 N.W.2d ted). testimony was Although in the the victim Berman’s behaviors observed case, opinion profiles the limited to suicidal give properly that not present and characteristics, easily jury could have are “con the victim’s or behaviors symptoms profiles purely Ise with” those of known victims. reasoned sistent Province, 1055, testimony that Sharon’s ly Capuchin F.Supp. v. 877 characteristics (PTSD (E.D.Mich.1995) of a suicide based was not the result symptoms); 1067 death indica No. 845 on the absence of sufficient suicidal Educational Serv. Unit Gier v. (D.Neb.1994), of aff'd, totality 66 the of the F.Supp. tors and evidence 1353 (behaviors (8thCir.1995) Certainly, opinion of at trial. 940 fered F.3d Alberico, was not child); N.M. did not die suicide v. 116 Sharon abused State a for a tions in criminal See thorough offered as substitute cases. SDCL 23A-1- investigation. jury criminal The had the Patterned Federal Rule of Crimi aftpr 29(a), of cir- nal Procedure the motion independent judg benefit substantial and for replaced which ment of mo acquittal cumstantial evidence from to con- the former a 23A- clude that Sharon’s was homicide. tion for directed verdict. See SDCL death 29(a). such, 23-1; A say challenge we cannot that in the As absence FedRCrimPro the opinion jury sufficiency being Dr. Berman’s on suicide the the of the evidence motion, only ground for the verdict would have different. See basis for been ¶ 29(a) Hart, 17, 17, 544 N.W.2d 210. Rule motion “need not be with SD at stated Allowing opinion specificity.” therefore harm- 26 Moore’s Federal Practice was (3d § Supp error. at 629-10 629.03[1] less ed 2000) (citations omitted); see also United Gjurashaj, G. States F.2d (citations (2dCir.1983) omitted); United Judgment Acquittal Motion for (6thCir.1979) Cox, States v. F.2d contends that the (citations omitted). It is satisfactory granting court in not circuit erred his mo state, “the is insufficient evidence to sus for judgment acquittal. tion Defense tain a conviction.” Moore’s Federal first motion at counsel made this the end § Practice at 629-10. If de 629.03[1] chief, asserting State’s ease in fendant makes the motion without describ State prima had failed to establish a ing the grounds specificity, with both case. facie He renewed motion at the court and prosecutor request can fur of all close the evidence. The State resist explanation. ther See United States instances, argument. without In both ed (7thCir.1949). Jones, 174 F.2d the circuit court denied the motion. clearly defense motion allowed matter, circuit court to address [¶ 45.] Guthrie believes since the sufficiently thus we conclude the issue was solely relied circumstantial State evi- preserved appeal.12 for case, to prove dence its the evidence must “entirely consistent defendant’s In reviewing a circuit guilt wholly any inconsistent with ra- deny judg court’s decision to a motion for hypothesis tional of innocence and so con- inquire ment of we acquittal, whether vincing as to exclude a reasonable doubt presented State sufficient evidence that defendant of the guilty offense which reasonably could find the charged.” He that the contends State did defendant guilty charged. crime thus, burden; meet not this the evidence Edelman, sufficient to sustain a conviction 421(citations omitted). specifically, More degree. murder in the first The State we ask if there sufficient evidence argues that Guthrie’s motions were inade- believed, that, the record if would be ade quate preserve issue for appeal. quate beyond to sustain conviction sufficiency
[¶ 46.] The rules criminal reasonable doubt. Id. *19 just aim to procedure challenge, jury achieve determina- we will set aside a verdict 64, 874, (1949) (cita- holding There are 12. cases in South Dakota 73 S.D. 38 N.W.2d 877 cases, omitted). however, a for directed tions that defendant's motion verdict These were acquittal preserved inadequately adoption are decided of of when before South Dakota’s "particularize present a defendant fails to the claimed the SDCL 23A-23-1 and SDCL 23A- Jerke, 1978, 178, deficiency proof.” § v. 1-2. ch. or failure of State See SL 297.
421
that her
were found
reason
out
own medications
only
“the evidence
the
when
trial,
proof
in her stomach. At
he offered
fail
to be drawn therefrom
able inferences
presence
prescriptions
that
of these
theory
guilt.”
rational
of
sustain
(S.D.
only
explained
could
be
recent con-
406,
N.W.2d
410
Hage, 532
State v.
that
1995)
sumption.
argued
He
Sharon had
(citations omitted); State
Lewan
v.
(S.D.
a friend
sleeping.
told
that she had trouble
dowski,
N.W.2d
343-44
463
mind,
proof
further
of
As
of her state
he
1990).
in the
will not resolve conflicts
We
had cashed
offered evidence that she
out
wit
credibility
on the
testimony, pass
her retirement account at the clinic where
nesses,
Hage, 532
weigh the evidence.
or
daughter
worked
buy
youngest
she
her
omitted).
(citations
at 410-411
N.W.2d
challenges
a car. Guthrie
the State’s fail-
crime,
All elements of a
[¶ 48.]
to explain
ure
how he “administered [the
premeditation, may
be
including intent
drugs]
support
To
con-
surreptitiously.”
circumstantially.13
v.
State
See
established
evidence,
viction on circumstantial
¶75, 15,
Holzer,
611 N.W.2d
2000 SD
“to exclude
required
every
State is not
instances, convictions based
651. In some
hypothesis
Ashley,
of innocence.” State v.
can be more
on circumstantial evidence
(S.D.1990) (citations
only
direct
than those based
reliable
omitted). Rather, we view the evidence
(cita
Hage, 532 N.W.2d at
evidence.
cumulatively
totality
whether
its
see
omitted).
language
relies on
tions
Guthrie
enough
any
it is
out
rule
reasonable
Best,
S.D.
State
hypothesis
Hage,
innocence.
(1975).
cases,
In
later
N.W.2d
review,
making
In
N.W.2d
411.
we
however,
rephrased the rule on
this Court
accept
must
evidence with its most
solely on circumstantial
convictions based
at 410.
reasonable inferences.
Id.
Star,
Eagle
evidence.
State
often
Facts alone
have
¶
70, 73,
143, 16,
explained:
we
take
equivocal significance. Details
mean
case rests substantial
When the State’s
Here,
ing in context
other details.
evidence,
ly
entirely on circumstantial
import
many
depends
details
for
of so
jury
instruct
the trial court must
credibility. If
significance
on Guthrie’s
(1)
unless
defendant cannot
convicted
authentic, for example,
“suicide note” is
only
circumstances
proved
are
doubt. But
may
that
create reasonable
accused,
guilt
with the
consistent
what is the
of the evidence
magnitude
any
but
be reconciled with
other
cannot
himself,
typed
naming
he
two such notes
(2)
fact
rational conclusion
each
On another
his dead wife as the author?
complete
to a
which is essential
set
he
ob
point, Guthrie told
necessary to
circumstances
establish
Sharon, and he had
tained the
Restoril
proven beyond
has been
guilt
accused’s
asked that
she later
sec
knowledge
doubt.
reasonable
Yet,
in.
accord
prescription
ond
be called
(cita-
duty a judgment on motion for of acquittal Miller, tional command. State v. 429 26, (S.D.1988) (writ hy- examine the facts for a reasonable N.W.2d 34 habeas innocence, pothesis credibility corpus granted when grounds, on other then re- ). gives facts, (cit- meaning many and color to versed It is purely statutory. so Id. judges ing People 926, cannot complex Crispell, scramble the cir- 110 A.D.2d 487 (1985)). if they might cumstances see N.Y.S.2d 174 resituate Evidence obtained prove advantageous a more violation of a theory by criminal statute is not dispensing -with credibility automatically subject to suppression. factor. Mil- ler, (citations Leaving to the pervasive omitted); 429 issue of N.W.2d at 34 credibility and considering Grimshaw, see also the evidence as Commonwealth v. 413 whole, 73, think 302, (1992). we the trial court Mass. properly 595 N.E.2d 305 denied the acquittal. may motion for Such evidence suppressed, be howev-
er, where the violation is substantial.
H.
Grimshaw,
(citations
[¶ 51.]
court admitted evi-
day rule is “to
that probable
ensure
cause
dence obtained from the home computer,
still exists to believe that
sought
the items
not taken in July 1999 when
original
by the warrant are in
place
to be
executed,
search warrant was
but obtained
Miller,
(cit
searched.”
423 de generally The reviewable novo. See State v. Miller. distinguishable case is ¶ 7, 549, 6, computer place Gesinger, took 1997 SD 559 of home N.W.2d seizure warrant nearly six months after search 550. issued. household had been
for the Guthrie
if
deciding
In
common
57.]
standard,
a
such
a flexible
applying
Even
item,
particular
control exists over a
a
showing
in
a
of
requires
time
new
long gap
disposi-
alone is not
proprietary interest
If
can be exe-
cause.
warrants
probable
Matlock,
v.
415
tive. United States
U.S.
leisure,
them
judicial
at
over
cuted
control
n.7,
993,
164, 171,
988,
94
39
S.Ct.
L.Ed.2d
Swift,
at
556 N.W.2d
would deteriorate.
(1974).
242, 250
of
The existence
common
cannot be
January
The seizure
authority
...
mutual
“rests
use of
July
war-
upheld
use of
search
by persons
having joint
property
generally
rant.
”
purposes....
most
access
control for
preferred
is the
While a warrant
[¶ 55.]
personal
authority
prop
Id. Common
over
seizure,
a search or
conducting
method
may exist
allows
to
erty
when one
another
to the
re-
exceptions
there are
warrant
leaves it
property
use the
at that
Fountain,
N.W.2d
State v.
534
quirement.
170-71,
at
94
at
person’s home.
Id.
S.Ct.
(S.D.1995)
859,
(citing Schneckloth v.
863
993,
(discussing
taken to the search was 598 invalid. We N.W.2d held, Findings defendant is not of fact made automatically part ruling “[a] as of a on the expect privilege entitled to that the are contents of arti- reviewed under a clearly cles left behind at erroneous standard. premises another will See State v. 19, ¶6, and, Sleep, 235, private remain SD should he leave such N.W.2d behind, grants 237. SDCL 19-13-17 persons articles he assumes the risk that (1) privilege prevent disclosure of the other confi- person may consent to a search.” (2) communications, omitted). dential made to cler- Id. at 866 (string citation Guth- (3) ics, professional in their capacity Fountain, attempts distinguish rie spiritual advisors. Guthrie carries the claiming voluntarily he did not leave the prove burden to his entitlement to assert computer with the Hewitts as he was privilege. Bear, See State v. Catch forced to move out of his in home and was (S.D.1984) (citations N.W.2d custody. noteworthy, however, It is omitted). We construe statutory privi- some of possessions Guthrie’s other were leges strictly “to avoid suppressing other- unit, in placed a storage but he chose to wise competent evidence.” Id. at 646-47 have the computer stored at the Hewitt (citations omitted). every Not communica- home. Hewitt had unconditional access tion to a cleric is protected by the clergy it, such, and control over and as we con- privilege. Scott N. Stone and Robert K. clude that validly he could consent to its Taylor, 2 § Testimonial Privileges, 6.09 at Matlock, search and seizure. See 415 U.S. (2d 1995). 6-19 ed at n. at S.Ct. 39 L.Ed.2d at “A communication is ‘confiden-
tial’ if privately made and not intended for I. further except disclosure persons to other present in furtherance of the purpose of Clergy Privilege the communication.” SDCL 19-13-16. [¶ 60.] The State offered videotaped By statute, language our inquiry testimony Davis, from William the Execu- begins person’s with a intent in communi- tive Presbyter for Central Nebraska.15 cating with a clergy Hofer, member. See He testified about the conversations he 512 485. The circuit court had with Guthrie both before and after heard he in- Sharon’s death. Guthrie invoked the cler- tended his conversations with William gy privilege in SDCL 19-13-17. Finding Davis to be in “confidence” as communica- existed, that the privilege indeed the trial tions his minister. Davis himself cor- court nonetheless ruled that Guthrie roborated this in testimony: waived the privilege later communica- Q: Would it say be fair to that in your parties. tions with third mind coming you [Guthrie] was as his minister you to talk to about The clergy is privilege various matters? defined SDCL 19-13-16 and 17. Be application cause the of a partic- statute to A: I say would so. Presbyter”
15. An
Presbyteri-
"Executive
is the
area.
Presbyter
The Executive
sup-
acts as a
designate
an Church’s
port person
minister who oversees
for these churches and their min-
specified geographical
churches within a
isters.
likely
purpose
seeking
nication
for the
Q:
you
confidence?
Talking
religious
spiritual
Orfi,
advice. State v.
Yes.
A:
(Minn.Ct.App.1994).
court
mistaken
say
cannot
that the
We
that Guthrie intended
finding
in its
In deciding if a communication
[1Í65.]
in confidence.
to remain
conversations
*23
profession-
to a
in a
acting
was made
cleric
572,
Almond,
573-
v.
See State
advisor,
as
capacity
spiritual
al
a
other
(S.D.1994).
obviously
was
a cler-
74
Davis
may be
For example,
factors
considered.
minister,
person.
clergyman
“A
is a
gy
communication
fact that
initi-
“the
was
rabbi,
Christian Science
priest,
accredited
by the
rather
clergyman
ated
than the
functionary
similar
practitioner, or other
[may
viewed as
penitent
significant.”
be]
or
individual
religious organization,
a
an
§
Taylor,
6.12
supra
Stone
at 6-27
reasonably
person
so to be
believed
(citations omitted). Similarly,
specific
consulting him.” SDCL 19-13-16.
relationship
the communicants
between
in a
explained
Guthrie
63.]
State,
e.g.
may be relevant. See
Bonds v.
was his
hearing
motion
that William Davis
(1992)
Ark.
310
837 S.W.2d
884
pastor
when he
a
Presbyter
Executive
was
(minister acting
employer).
inqui-
as
Our
Presbyter
An Executive
Nebraska.
ry
particulars
must be
on the
founded
pastors.
functions as
Guthrie
pastor
State,
Magar
each case.
Ark.
with Davis
indicated that his conversations
(1992) (citing
826 S.W.2d
United
concerning
relationship with Sharon
Gordon,
F.Supp.
States
imparted
capacity
Davis in his
as a
were
(N.D.N.Y.1980)) (further citations omit-
this,
disputes
focusing
minister. The State
ted).
no longer
on the fact that Davis was
Guth
moved to
superior
rie’s
after Guthrie
Davis’s
[¶ 66.] The substance of
Simply
Dakota.
because Davis was
South
can
be summarized as follows:
longer
superior,
does not
Guthrie’s
it
(1)
Guthrie and
communications between
not “rea
logically follow that Guthrie did
regarding an incident where Guthrie
Davis
sonably
could still
believe” that Davis
(2)
assaulted,
allegedly sexually
com
was
as his minister.
serve
munications
Davis asked Guthrie
where
under
inquiry
most difficult
[¶ 64.] The
(3)
affair,
having
he was
whether
whether,
deciding
SDCL 19-13-17
Davis
the conversation with Guthrie when
conversations,
each of these
com-
Guthrie’s
him
after
to offer his condolences
called
munications
Davis
in Davis’s
were
light
foregoing
death.
In
Sharon’s
advis-
spiritual
character as
“professional
considerations,
re
only
conversation
See
19-13-17.
a re-
or.”
SDCL
Such
sexual
garding
alleged
assault
quirement
privi-
is common
state
among
as the circuit court
privileged,
Guthrie
Taylor,
lege statutes. See Stone and
Davis
that before this
explained
found.
§ 6.12
Privileges,
Testimonial
at 6-26.
conversation,
indicated
Guthrie
he wanted
require-
interpreting
statutory
a similar
ready
was not
something, but
to share
ment,
explained
court
that the
Minnesota
later,
it. A
months
discuss
few
form of
need not be in the
communication
sexually
assaulted
told Davis
takes
a confession.16 When
conversation
Nebraska,
Lincoln,
crisis,
and that
family
trip
in a
commu-
place
time of
Orfi,
required that the
State v.
16. The Minnesota statute
fori....”
(Minn.Ct.App.1994)
(citing Minn.Stat.
purpose
was for the
of seek-
communication
advice, aid,
595.02(l)(c)).
“religious
§
ing
spiritual
or com-
“affecting
aspects
all
of his life.” his regrets
any
family
other
friend
suggested
Davis
that he seek counseling.
facts,
might
light
do. In
of these
Guthrie’s
description of the circumstances surround-
hand,
On the other
ing Sharon’s death was not privileged.
conversations about Guthrie’s affair and
about
death
Sharon’s
were not made to
[¶ 69.] As Guthrie’s statements
a spiritual
agree
Davis as
advisor. We
to Davis
alleged
about the
sexual assault
with the Minnesota court that to be classi
privileged
19-13-17,
were
under SDCL
we
privileged
fied as
such statements need not must decide whether Guthrie waived the
factors, however,
be a confession. Other
privilege.
statutory
Our
grants
scheme
against interpreting
militate
these state
particular privileges
provides
for the
privileged.
ments as
Davis made clear voluntary
*24
privileges:
waiver of those
that he initiated the communications about
person
A
upon
chapter
whom this
con-
Bonds,
Guthrie’s affair. See
837 S.W.2d at
fers a privilege against disclosure waives
(conversation
nature).
883-84
accusatory in
if
privilege
predecessor
he or his
inquiry
His
was made in his
capacity as
while
privilege
holder of the
voluntarily
superior as indicated in
following
ex
discloses or
any
consents
disclosure of
change:
significant part of the privileged matter.
Q: After this conversation with him did
This section does not
if
apply
the disclo-
satisfy you
and keep
posi-
his
privileged.
sure itself is
at
tion
the church?
SDCL 19-13-26. The circuit court found
Yes,
A:
I fully believed
I
[Guthrie].
that Guthrie
clergy
had waived his
privi
had no reason to doubt
integrity,
lege by voluntarily disclosing
privi
previously
he had not shown
that I
leged
persons,
information to third
relying
should have reason to doubt his in-
primarily on our
decisions
State v. Kar
tegrity.
len and
State
Catch the Bear. 1999 SD
Consequently, we conclude Davis’s testi-
594;
589 N.W.2d
K.
case,
in
testimony
is not ultimate issue
Summary
(2)
were,
if it
under Daubert and
even
The circuit court abused its dis-
[¶ 78.]
our
of review it is admissible.
standard
allowing
suicidologist to tell
in
cretion
we
The standard under which
[¶ 84.]
did not commit
jury that
deceased
a
in its
plays
review this case
critical role
suicide,
prejudi-
was not
testimony
but the
A
grant-
final
trial court is
determination.
in
finding
err
cial. The court did not
ed
a decision to
broad discretion when
methodology was suffi-
suicidologist’s
testimony
appeal,
admit
reviewed
in
ciently reliable. There was
error
will
an abuse of
its decision
stand absent
acquittal,
motion for
as
denying Guthrie’s
Edelman, 1999
that discretion. State v.
to sustain a
was sufficient evidence
there
¶52, 4,
will
SD
593 N.W.2d
421. We
beyond
guilt
a reasonable doubt.
finding
rul-
evidentiary
not
a trial
reverse
court’s
erroneously deny
did
Guth-
The court
mind,
ing
judicial
if
in view
“we believe
suppress
evidence obtained
rie’s motion
circumstances,
of the
and the
could
law
warrant,
a valid search
without
have reached that conclusion.”
reasonably
lawful
par-
was obtained via
third
evidence
Cheese,
v. Taylor,
Dakota
Inc.
not abuse its
consent.
court did
ty
(S.D.1995).
Under the abuse
denying
opportu-
discretion
standard, “we
be careful
discretion
must
present
surrebuttal evidence
nity
our
for that of
reasoning
not to substitute
expert.
only
find that
We
fingerprint
Larson, 512
court.” State v.
trial
portion
of William Davis
(S.D.1994).
Only with
and statements within the
privileged
properly
these
in mind can we
principles
Finally, the
were
circuit
privilege
waived.
resolve this issue.
did not abuse its discretion
allow-
court
audiotape
to listen to the
ing
rele-
Expert
testimony, when
transcript
tape.
of that
read
vant,
if it
the trier
is admissible
“will assist
fact
evidence or
79.] Affirmed.
to understand the
if it “rests
determine a fact
issue” and
Justice,
AMUNDSON,
concurs
19-15-2;
foundation.”
on reliable
SDCL
*27
1, 2, 3, 4,
joins
5 and
on Issues
and
Justice
Inc.,
Pharm.,
Dow
Daubert v. Merrell
dissent
Issue 6.
Sabers’
2786, 2799,
113 S.Ct.
U.S.
(1993).
cor-
opinion
The lead
L.Ed.2d 469
Justice,
MILLER, Chief
[¶ 81.]
testi-
rectly concludes
Dr. Berman’s
GILBERTSON, Justice,
part
in
concur
mind
mony
to Sharon’s state of
in
part.
and concur
result in
relevant,
jury,
to the
and based
helpful
Justice,
SABERS,
in
[¶ 82.]
concurs
yet, the lead
a reliable foundation. And
part
in part.
and dissents
opinion
the trial court abused
concludes
by
it
upon
bestowed
broad discretion
GILBERTSON,
(concurring in
Justice
in
testify
Dr. Berman to
allowing
part
part).
in
in
concurring
result
did not commit
opinion, Sharon Guthrie
the lead opinion
I concur with
[¶ 83.]
respectfully disagree.
suicide. I
except
on all issues
its conclusion that the
opinion
in
states it does
allowing
The lead
trial court abused its discretion
ultimate
determination.
testify
Dr.
that in his
not reach the
issue
opinion,
Berman
Instead,
it concludes that Dr. Berman’s
did not commit suicide.
Sharon Guthrie
under Dau-
opinion
its
is unreliable
The trial court did not abuse
discretion
ultimate
Yet,
bert.17
Dr.
prior testimony,
Berman’s
death.19 The
required
State was still
explained
where he
common risk factors of prove Sharon did not die accidentally, as
compared
suicide victims and
those factors
identity
well as the
perpetrator.
of the
As
case,
present
to the
was reliable under
¶
Barber,
96, 38,
in State v.
Daubert. While the lead opinion couches
N.W.2d
here there is no basis to
“
its decision in
of reliability,
terms
it is
conclude that
expert
testimony
‘de-
”
quite clear that Dr. Berman’s ultimate
voured the issue
jury.’
before the
Rath-
opinion is
perceived
unreliable because it is
er,
Barber,
as in
disputed
here the
testi-
as an
opinion.18
ultimate
Because rem- mony stops well short of expressing the
nants of the ultimate issue rule form the
opinion “that
guilty
[Guthrie] was
opinion’s
foundation for the lead
conclu-
charged.”
offense
Id.
sion,
directly
and are
by
addressed
South Dakota repealed
dissent, it
necessary
to address it here.
the ultimate issue rule with
adoption
The ultimate
87.]
issue of fact for
19-15-4,20
SDCL
which provides: “testi-
jury
determine
this instance is
mony in the form of an opinion or infer-
whether William Guthrie murdered his
ence otherwise
objection-
admissible is not
wife, Sharon.
stipulated
to no
able
because
an
embraces
ultimate issue
charge. Therefore,
elements of the
in this
to be decided by the trier of fact.” Prior
case,
circumstantial evidence
the State
adoption
statute,
to the
of that
South Da-
shoulders the burden of proving each ele-
kota
only
was the
state in the nation which
charge
ment of the
beyond a reasonable
still
prohibition
adhered to the
against tes-
doubt.
prove
murder,
To
each element of
timony
by
expert on an ultimate issue
the State must disprove all other manners
of fact.
Burtzlaff,
State v.
death,
including suicide or accident.
(S.D.1992) (Wuest, J.,
concurring
While a
determination of suicide
part and
dissenting
part)
would result in an
acquittal,
(citing Greg-
a finding to
the contrary
ory
does not
P.
automatically
Joseph
Stephen
&
Salzburg,
result
A.
in a conviction. The testimony by Dr. Evidence in America: The Federal Rules
Berman helped exclude
States,
(1987)).
one
manner of
In The
ch
Since the
opinion
17. The lead
psychological
states that
Op.
Lead
40.
new,
autopsies
unrefined,
"relatively
are
question
technique,"
opinion's
unresearched clinical
I
the lead
conclusion
therefore are unreliable.
It
should be
that Dr.
"approached
noted
Berman's
opinion’s legal
that the lead
impermissible”
authorities for
and created an "inference” as
proposition
pub-
are law review articles
guilt.
to Guthrie's
Before the enactment of
eight years
lished six and
ago
19-15-4,
respectively.
experts
SDCL
were not
allowed
Moreover, the
apparently
author’s concern is
testify on
they
ultimate issues.
pro-
Are
now
*28
appellate
shared
single
courts as not a
hibited,
statute,
despite
adoption
the
of that
jurisdiction
being
subsequent
is cited as
in
testifying
from
as to "inferences?” In certain
accord.
enough
instances it is difficult
to determine
what constitutes an ultimate issue let alone an
opinion
18. The lead
declares:
"inference” of such. The use of this novel
only
standard will
serve to further confuse
A few courts have
psychological
allowed
this issue.
autopsy evidence in
ques-
cases where the
jury
tion
the
prosecu-
before
in a homicide
Thus,
upon
tion was
reliance
whether the deceased died
cases such
as State v.
20.
cases,
Hill,
however,
(S.D. 1990)
suicide.
In those
431 19-15-4, opinion neither the nor we have limited lead dissent is of adoption that, cite to case in single an cannot able to which general, expert in rule such credibility expert of witn reversed the admission of testify to the another Court as testimony under the restrictive theories of Raymond, v. 540 N.W.2d ess.21 State (S.D.1995). 407, admissibility they held now 410 We have also advocate. testify legal expert an cannot as to Zens, In no 90.] both Robbins and [¶ Buntrock, 1996 SD conclusions. Robbins found abuse of discretion was to exist as 422, ¶ 8, 425; 84, Zens v. 550 N.W.2d precluded sought directly evidence (S.D.1995). Harrison, 794, 538 796 N.W.2d which party inform the as to was addition, expert stated that an In we have negligent. testimony We found that im- issues, testify long as “as can to ultimate the realm ultimate permissibly entered asked is not whether witness ¶ 84, 8, legal conclusions. 1996 SD 550 Barber, guilty.” is defendant innocent 425; at N.W.2d at 538 N.W.2d 796. While ¶96, 38, N.W.2d at 823. 1996 SD conclusion, negligence is is legal suicide a factual is instead determination. Suicide Zens Robbins 89.] both statutorily defined as “the intentional tak- evidentiary ruling pre- trial court’s one’s ing of own life.” SDCL 22-16-36. Thus, posture clude the evidence. Clearly, legal is required conclusion us whether appeal the issue on before was suicide, nor find therefore neither Zens in pre- trial court abused its discretion finding Robbins mandate a of abuse Robbins, 1996 SD cluding evidence. testimony in discretion this instance. The Zens, 84, ¶8, 425; at at issue here is more similar to that ex- However, ques- at here the N.W.2d 796. Barber, in where the defendant pressed us is whether circuit court tion before conspiracy with distribute charged admitting, in rather abused its discretion case, In that an a controlled substance. “The test is excluding, than the evidence. expert concluded that defendant make rul- not whether we would a similar trafficking operations. engaged drug mind, judicial ing, but rather whether ¶ Barber, 38, 1996 SD 552 N.W.2d at circumstances, of the law and the view We held the trial court did not abuse 823. reasonably have the same could reached admitting testimony. discretion its ¶ Barber, conclusion.” Id. at “[Abuse discretion] N.W.2d Despite review the mandate of SDCL the most deferential standard of 19-15-4, the trial exception of no review and the deference owed available court, finds trial court Chamley, opinion the lead all.” State SD (Gilbertson, J., its considerable discretion when dis- abused Davis, my opin- Dr. state Martha S. Basic allowed Berman to senting) (citing “[i]n Review, not die by Guthrie did suicide.” to Standards Judicial ion Sharon Guide (1988) (alterations analysis, only the opinion’s the lead Law Rev. Under SD such, surprising it is of that statement was abuse original)). As admission clearly experts opinion lead states that are admission of such would 21. The testify generally permitted to that a victim’s Raymond, See an abuse of discretion. infra. *29 with" behavior is "consistent that of known However, opinion does not Dr. Berman's ¶Op. victims. 41. The cases cited for Lead any weigh credibility of in this on the witness proposition expert's all testimo- this limit Therefore, by expressed the concerns case. any would ny because "ultimate" conclusion valid, cases, to inapplicable are those while credibility victim or tend to buttress the this case. law, the another Under our case witness. 432 discretion,
of non-ultimate and experience, while all issue based “observation I testimony properly admitted. see empirical not traditional studies.” Lead ¶ 19-15-4 no basis under or Daubert Op. may qualified by SDCL 41. An expert be to accord skill, one standard the admissibili- “knowledge, experience, training, ” ty expert testimony, employ of but anoth- or education.... SDCL 19-15-2. Be- er, stringent more standard before ulti- disjunctive cause the or is used will testimony mate issue be admitted. In statute, an can be expert qualified under light statutory of explicit abrogation any categories five one of the listed. rule, the ultimate issue this result could ¶ Schild, 131, 10, 2000 Nickles v. SD 617 worst, confusion, at eventually lead to 659, Yet, under the lead judicial in a result annulment of SDCL 19- opinion’s analysis, Dr. experi- Berman’s testimony 15-4. If the non-ultimate issue ence enough and observation are not to relevant, helpful enough is reliable and to testify allow him opinion, to Daubert, be admissible under the ultimate Sharon not commit Guthrie did suicide. testimony issue should also be found rele- Have we two of experts, created classes vant, helpful enough reliable and to be facts, qualified testify one ultimate Alberico, admitted. See State v. 116 N.M. the other separate not? Must there be a (1993) 156, 192, 861 (noting P.2d 210 that if hearing qualifications Daubert on the disorder post-traumatic stress evidence is experts? opinion ultimate issue The lead purpose, reliable and admissible for one testimony relating also finds Dr. Berman’s purposes). is reliable and admissible for all common risk factors to Sharon’s situation To hold resurrect otherwise will the “irrec- “relevant, helpful to be and admissible” “embarrassing oncilable confusion” and in- rehable, yet thus his ultimate conclu- consistencies” that resulted under the ulti- sion is unreliable. Have we now also cre- Burtzlaff, mate issue rule. 493 N.W.2d at ated two reliability, classes of one for ulti- (Wuest, J., concurring in part and dis- mate issue and one for non- senting in lead part). opinion’s frame- testimony? ultimate issue Again, the bar require will again work once the bench and and bench will confronted with issues bar wrestle with what the ultimate issue that should have been laid to rest with the fact given is scenario. Id. at 11 adoption of SDCL 19-15-4. This is result (Wuest, J., in part and concurring dissent- clearly contrary procedure to the “uniform case, ing in part). In is the ultimate for addressing expert testimony” envi- Or, issue Sharon’s is it suicide? William’s Monson, Rogen sioned Daubert. v. guilt charged? innocence to the crime as 456, expert testify If an will as an ultimate J., (Konenkamp, concurring). fact, issue of hearing is another Daubert required relevance, to judge reliability, jurisdictions [¶ have 93.] Other allowed helpfulness ultimate issue testi- psychological autopsy evidence to be ad mony? resulting legal quagmire This is bar, cases, mitted in as the such case at precise situation 19-15-4 sought SDCL where the decedent’s state of mind is remedy. State, issue. Horinek v. 977 S.W.2d Jean, (Tex.App.1998); U.S. St. The lead opinion 92.] determines Dr. *2 (A.F.Ct.Crim.App.1995); Berman WL 106960 qualified expert as to his Hoover, re Estate testimony, yet non-ultimate un- Ill.2d issue he is (1993); Ill.Dec. qualified to discuss this issue of 615 N.E.2d 744-45 “ultimate (Fla. State, prefaced by fact”. This conclusion is Jackson v. So.2d not- ing that Dr. ultimate fact opinion Dist.Ct.App.1989); Harvey Raleigh Berman’s Po- *30 opinion The lead creates a two- 355 S.E.2d Dep’t, N.C.App. lice reliability analysis, which results tiered (1987); Young Motor Campbell v. requirement a bifurcation Daubert 1101, 1104 Co., P.2d 211 Mont. one testi- reliability. expert of On tier is Feldman’s, (1984). See also Kostelac Daubert mony, which is examined under (Iowa 1993) Inc., and Ter- On the tier is ultimate principles. second Ashworth, 794 S.W.2d Hosp. rell State expert testimony, issue or “inferences” (discussing psychologi- (Tex.App.1990) thereto, subject apparently which is ease, used in the without autopsies as cal higher scrutiny. might Such a result ap- admissibility as an issue discussing acceptable any legal if there authori- were addition, has noted this Court peal).22 However, it. support only the con- ty have been autopsies “[psychological authority is ultimate issue ceivable the of mind where victim’s state admitted rule, repealed in which was 1993. at 5. Burtzlaff, 493 N.W.2d was relevant.” agree opinion I lead psychi- recently, this Court allowed More did that the trial court not abuse its discre- testify decedent’s expert to as to a atric allowing testify Dr. re- tion Berman to Estate testamentary capacity. In re of risk garding common factors of suicide ¶44, Dokken, victims and relate those factors to Sharon stan- an abuse of discretion 499. Under concludes, As the lead opinion Guthrie. review, a distinc- how can we draw dard of testimony is under Daubert reliable opinion an that a decedent tion between However, Dr. I cannot conclude that Ber- of a will and legally capable executing opinion that Sharon Guthrie did not man’s unreliable, that a did not commit opinion an decedent suicide was somehow or commit The under 19-15-4.23 inadmissible SDCL suicide? credibility. is not an legal these cases is ness’s That concern 22. The issue involved in entirely reliabili- irrelevant under the Daubert case. in this issue psychological profiles are reli- ty Moreover, If standard. it should be noted that no also enough to be in a worker’s able admitted adopts opinion case cited lead contest, why compensation proceeding or will supports reliability even bifurcated enough they reliable to be admitted in are not analysis proposed. which now proceedings? criminal opinion lead that Horinek and claims creating two-tiered 23. In addition conclusion, support Jean its one St. analysis, opinion an unac- the lead constructs giving opinion case cited above an "allows this tes- ceptable rationale when it concludes gave Dr. here.” In St. like the one Berman timony was harmless because the error Jean, expert the trial court testi- limited already Ber- [Dr. had heard "the absence of is, mony profile psychi- to "the one who totality suicidal indicators and man’s] atrically speaking, a suicidal suicidal or the lead evidence offered trial.” Under Horinek, WL risk.” 1995 106960 *1. In analysis, opinion’s ultimate conclusion very expert appeared un- testified "that it testified as harmless because Dr. Berman likely that this would be the sort individual Therefore, to how he reached conclusion. person to kill 977 S.W.2d at herself.” expert basis of long as an as to the as testifies cases, In both decision of the trial stating before that ultimate his conclusion of dis- court was affirmed under an abuse reversible opinion, how can there ever exist can be cretion standard. Two lessons long expert’s As error? First, psycho- from those drawn cases. legal pitfalls of conclusions avoids the logical autopsy evidence was admissible. victim's credibili- comments on witness’ or Second, af- the trial decision was court’s ty, only exist if the entire- reversible error will proper firmed under the standard re- expert’s testimony my opinion, ty is "In view. happened.” X previously, cases exclude As noted other weigh on a wit- conclusions tend to *31 prohibition ultimate issue put rest As opinion recognizes, [¶ 101.] the lead in Dr. testimony Berman’s there is no need to exhume it now. “moved from im- parting typical characteristics and whether For the I [¶ 96.] above reasons would Sharon met a profile, declaring suicidal outright affirm the trial court on this issue. that based on her profile she did not com- majority As there is no opinion regarding added). mit suicide.” (Emphasis I agree issue, adjudication the rationale for of this with opinion’s the lead determination that conflicting resolution of the theories set such testimony expert was inadmissible forth in the writings various of this case testimony. psychological Such profile await a future decision of this Court. failed to meet the criteria under Daubert to declare with certainty person that a MILLER, Justice, joins [¶ 97.] Chief fact, committed suicide. even with the special this writing. basis, proper scientific opinion such testi- mony would necessarily have invaded the SABERS, Justice (concurring part province jury. dissenting part). testimony [¶ 102.] Such is improper opinion [¶ 98.] lead purports where an expert attempts opine on the justify to the reader that no error occurred squarely ultimate issue jury. before the below or that the errors were harmless or Harrison, See Zens 538 N.W.2d nonprejudicial. I specially write to ana- (expert cannot determine negligence as lyze these claims independently and con- exclusively role is for a jury); State clude that prejudicial substantial error Hill, (S.D.1990) (the 463 N.W.2d Therefore, tainted trial. Guthrie’s I dis- “proper subject expert matter” of testimo- sent. We should reverse and remand for a ny experts does not include testifying as fair trial. the credibility of as that role is witnesses exclusively jury). for a Though trials are IMPROPER EXPERT sometimes a experts, battle of experts OPINION TESTIMONY THAT them, juries should not decide should. GUTHRIE MURDERED HIS agree I 103.] with the lead opinion WIFE BECAUSE IT WAS NOT that the trial court abused its discretion by SUICIDE. allowing testimony. However, such part I Dr. Berman’s testimony as a company with the conclusion of the lead suicidologist was relevant and helpful to opinion that any error was harmless. The jury. testimony This was crucial evi- case, State’s method of prosecuting this dence concerning the ultimate issue of though method, all proper fairness a whether Sharon’s death by was caused clearly highlights the prejudicial effect of suicide, accident or necessity murder. The improper testimony. From the out- set, such by operated reinforced State theory under the theory State’s guilty of the case. Guthrie was The State con- murder because there was no tended from other by explanation the outset that for this eliminating tragic death. This expert’s testimony potential death, the other causes of necessary for the to dispense State prove would that Sharon was murdered Guthrie’s theory that Sharon died as a However, Guthrie. in so doing, the State suicide, result of thereby prejudicially was bound to use admissible expert testi- damning Guthrie. mony. Werner, See State v. (S.D.1992); United States v. St. opinion [¶ 104.] The lead incorrectly
Jean, 1995 concludes, WL 106960*2. “we say cannot that in the ab- *32 coupled transcript with the written opinion cording the of Dr. Berman’s ultimate sence I have different.” acceptable. doing, verdict would been was In so the lead jury an statement expert’s convinced that am opinion ignores important mistake did not commit suicide the that decedent law below based on admitted that occurred remaining option the only and therefore Though facts. counsel has not defense the verdict. contributed to was murder I argued point proper emphasis, this with that have been more There is little would the opin- dissent to the conclusion of lead prosecution. context of this harmful in the ion. influenced and testimony unduly this As Hewitt, Suzanne Guthrie’s old- trial, I from the lead infected the dissent met with her father and daughter, est this error was that opinion’s determination in which con- recorded a conversation she harmless. him about her mother’s death. On fronted the opinion the Both lead testimony, a motion to exclude this Su- right. I get it half special concurrence police zanne that she went to the testified opinion’s the lead conclusion agree with help sug- station to was not sure who cer- testimony this was relevant that device, gested tape recording the that the However, that threshold point. tain once by supplied device was the offi- recording expert and the was allowed was crossed cers, “at the state, [recorded] and that the end of pretense of scientific cer- tainty, the decedent did not commit he needed to talk to that conversation said suicide, improper. It clearly it became he could talk to me attorney his before province jury both invaded Additionally, during anymore.” examina- proper scientific foundation. was without Agent Lindberg following tion of DCI However, recognizes the concurrence even exchange occurred: opinion accepted, if is its that the lead Q: during you Do remember that con- as unwillingness recognize this harmful mentioning something versation Suzanne is The concurrence rhetori- error absurd. had attorney that [Guthrie] about an “[therefore, asks, long as an ex- cally talked about? to the basis of conclusion pert testifies how stating opinion, ultimate [the] before Well, in to talk A: when she first came exist reversible error?” can there ever dad said not to talk to us said her she exchange simple, this My addition to attorney unless his to law enforcement testimony embracing an issue to be expert I will talk to who- present and she stated proper without the resolved going to be to and wasn’t ever I want she reversible error.24 scientific foundation is by that. bound TAPE RECORDED CON- [¶ 106.]2. Q: try get you Did information BY GUTHRIE’S VERSATION attorney was? her on who DAUGHTER. know who the A: I recall she didn’t As determines opinion The lead [¶ 107.J just if one. was or there was She daughter’s attorney re- the admission termining when threshold has been opinion practicality, lead In all place difficulty our courts in tenuous wrong trial concurrence This is because crossed. opinion requires positions. lead the trial The Both justify doesn’t the harm. process expert before court to limit approach." “just I in a let it slide result recog- improper. concurrence becomes challenge do better. this Court to difficulty court's will have de- nizes that trial said attorney that he said not to talk to us unless consult with an before speaking can attorney present. there be no questioning.” Miranda v. Arizona, 384 U.S. 86 S.Ct. THE attorney COURT: Unless whose (1966). 1612, 16L.Ed.2d 694 present? requests [¶ 111.] “Once an accused Agent Lindberg: His. Mr. Guthrie’s. *33 of assistance counsel the current interro- Agent further examination of DCI gation suspect must cease and the cannot Lindberg, defense counsel elicited: approached be for further questioning un- Q: doubt, And so there is no ... Mr. til counsel is made available. Similarly, a Lindberg, you Hewitt Suzanne told on may subjected defendant not be to the 14 year June that her this father told equivalent’ interrogation, ‘functional you her not to talk to until —without Mr. namely part words or on the actions attorney present? Guthrie’s police likely ” are an to elicit ‘incrimina- A: That’s correct. Morato, response.’ ting State ¶ 23, 655, (Citations taping 149, The of the conversation between 662. omitted). daughter father and occurred over a protection The of the defen- July month later right against on Later that same dant’s self incrimination rec- day, the Investigation by Division of Criminal ognized Miranda and its progeny contacted Guthrie for an interview. The be “strictly prohibit should enforced to any agents attorney were told “he retained an questioning of an once accused counsel has and wasn’t to talk.” going requested.” been v. Arpan, State 277 597, (S.D.1979). 599 facts,
[¶ these 109.] Under the use of daughter agent Guthrie’s as an of the It is clear from the record that State to produce evidence the criminal was targeted Guthrie by Division of investigation constituted violation of Investigation suspect Criminal as Guthrie’s Fifth Amendment right against tragic death of It is appar- his wife. also self-incrimination. ent the State must allowed to question suspects in to investigate order Guthrie 110.] As had not been for However, crimes. pro- our constitution mally right indicted his Sixth Amendment all right against vides individuals with the present any ques have during counsel self-incrimination. protect right, To this tioning by agent yet a State had not at is an tool counsel invaluable and once the U.S., tached. See Massiah v. 377 U.S. police suspect are 201, aware that a has re- (1964); 12 S.Ct. 1199 L.Ed.2d 246 tained counsel Wisconsin, requests counsel 171, ques- McNeil v. 501 U.S. tioning must cease. This (1991). includes all S.Ct. L.Ed.2d How ever, agents Massiah, of the State. suspect as he See being ques tioned U.S. 84 S.Ct. at by daughter L.Ed.2d behalf State, (stating protections his Fifth if the Amendment privilege “have against any efficacy afforded apply self-incrimination did exist. To must protect right against to indirect and surreptitious interrogations Guthrie’s self-incrimi nation right jail- he “has a to the as well those conducted in presence of house”). attorney, either retained or appointed. advantage State cannot take may pro daughter’s [Guthrie] waive these of a rights, [ ] breach of trust to her vided voluntarily, the waiver is made father even if it idea was her and she If, however, knowingly intelligently. Here, Massiah, volunteers. as in any he indicated in manner at any seriously “was more imposed upon ... be- stage process that he wishes to cause he didn’t even know that he government interrogation under
agent.” Id. 14, law en- early as June As em- that Guthrie had was aware
forcement or would submit
ployed counsel pres- counsel interrogation without
further fact, July Despite
ent. daughter elicited wired Guthrie’s
State through him the use
statements ended relationship. Guthrie
this intimate daughter by stat- conversation with *34 attorney to talk
ing “needed anymore.” talk to [her] he could
before expectation clearly
This establishes daugh- confidentiality with his
privacy the State’s role we consider
ter. When fa- trust to her breach of daughter’s
this
ther, this testi- displaying it is obvious prejudicial
mony was so As right. in its own
requires a new trial by the was heard recording
this improper transcribed distributed
jury, then jury, I dissent. remand should reverse and We issues.
for new trial both AMUNDSON, Justice, joins special writing as to issue 6. Dakota, Plaintiff
STATE South Appellee,
Troy VERHOEF, Defendant Martin Appellant. 21482, 21483, 21484.
Nos. Court of South Dakota.
Supreme Briefs Jan.
Considered 16, 2001. May
Decided