State v. Iron Necklace

66

Cаrtersville, Ga., (5th F.2d 55 Mahoney’s complaint, 597 n. 3 missal of no we see Cir.1979); Kyle Engineering justification Co. v. circuit for the court’s action (9th Cir.1979); Kleppe, 600 F.2d 232 dismissing putting and claims Bank Ferguson Eakle, (3d F.2d 28 n. 6 v. expense risk of refiling and them. Cir.1974); Chicago Switzer Bros. Inc. v. Moreover, significant it is to note that (7th Co., Cardboard 252 F.2d Cir. Bank could not have refiled its claim 1958); Pioche Mines Consolidated v. Fi against City Hub after its dismissal of Co., delity-Philadelphia Trust 206 F.2d party complaint” “third because that claim (9th Cir.1953); Burns v. Rockwood was time barred after dismissal. SDCL Co., (N.D. n. F.Supp. Dist. litigation 57A-9-503.1. further When on Ill.1979) (counterclaim independent barred, claim will be time a dismissal of the jurisdictional basis survives dismissal of claim, even if prejudice, it is without is a complaint). severe sanction should imposed and not be

Applying principles outlined in Rare absent some consideration of the interests Earth, against justice. Inc. to Bank’s counterclaim McGowan Faulkner Con- nothing in Mahoney, Co., (5th Cir.1981). we find the record Pipe crete F.2d indicate that the instance, circuit court lacked inde- In this justice interests of pendent jurisdiction subject served, over matter obstructed, dismissal of the claim. See SDCL 16-6-9. Nor is complaint” of Bank’s party against “third there indication that the circuit court City. Hub independent personal jurisdiction lacked upon foregoing, Based we conclude parties over the to the counterclaim. See that the dismissing circuit court errеd in Therefore, SDCL 15-7-2. counterclaim against Bank’s Mahoney counterclaim and proceed should have been allowed to its complaint” its party against “third Hub conclusion. City. We reverse remand for rein- specific

With reference to statement of claims. Bank’s Bank’s party against complaint” City, “third Hub reality

we find that it inwas not a third complaint A

party may at all. defendant party complaint against

raise a third per party

son who is not a to an action if that may

person be liable the defendant on 15-6-14(a). plaintiff's claim. SDCL instance, allegation Bank no made City might to it Mahoney’s Dakota, Hub liable STATE South Plaintiff Rather, complaint. the so called “third Appellee, complaint” merely party a mechanism join City which Bank used Hub as an Dorothy L. IRON NECKLACE and additional defendant its counterclaim Necklace, Iron Defendants against (SDCL 15-6-13(h)). Mahoney See Appellants. Earth, F.Supp. Rare Inc. 401 at 35. As against Mahoney, with the counterclaim Nos. 15787. nothing suggest find the record to Supreme Court South Dakota. independent subject the circuit court lacked personam jurisdiction or in matter over Argued Jan. 1988. against City. Bank’s claim Hub See SDCL Sept. Decided Thus, 15-7-2, 16-6-9. this claim as well proceed should have been allowed to to its

conclusion. court

Since circuit retained an

adequate independent jurisdictional basis both of even after

over Bank’s claims dis- convicting jury them of verdicts

grand burglary. We affirm. theft some sixteen issues Appellants raise defined in the course of the which will be opinion. 11, 1986, morning September

On Spink County Office received Sheriff’s Stacey at the report jewelry of a theft Redfield, As Drug Storе South Dakota. in- investigation result of the and some available, will be discussed formation one, hereafter, Deputy detail issue Albright (Albright), Spink of the Sheriff Office, County put out a Sheriff’s bulletin requesting orange Caprice with that an Washington plates stopped and license be occupants questioning be held for regard to the theft. approximately p.m. evening,

At 7:00 deputies ob- County Faulk sheriff’s two Mercury Caprice parked orange served the Appel- roadside west of Faulkton. on the lants, children and the automobile their County transported to the Faulk were Albright Sheriff’s Office Faulkton. immediately drove to Faulk- notified and arrival, requested Upon Albright’s he ton. permit- he permission appellants be car. Permission was ted to search their given, before a first but later withdrawn Albright started. then search could be warning and gave Clayton his Miranda he waived began questioning him when began, questioning Shortly after counsel. attorney for and the Clayton then asked an Albright sought then questioning ceased. Pierre, Atty. Gen., Geaghan, Frank Asst. for Dorothy, she asked question but Roger A. Tellin- plaintiff appellee; her Mi- receiving immediately counsel after Pierre, Gen., ghuisen, Atty. on brief. questioning randa warning, so no further was done. Aberdeen, Beck, Billings for de- Diane Iron appellant Dorothy L.

fendant and Redfield and Albright then returned to Necklace. regard- attorney with the state’s consulted Gillette, Metzgar search obtaining R. McClure warrant ing Matthew a search Redfield, for defendant and Metzgar, attorney decided that & the car. The state’s appellant Clayton Iron Necklace. the Aberdeen Albright should first check jewelry had shops see if of the pawn

MORGAN, Justice. meantime, appellants pawned. been they where transported to Aberdeen were Clayton Iron Dorothy Iron Necklace and put into were held and the children were (Dorothy, Clayton, and collective- Necklace care. appeal foster appellants), or ly Iron Necklaces appellants being Ohio, While detained in Terry See also v. State 392 U.S. Office, County

the Faulk Sheriffs (1968); 88 S.Ct. 20 L.Ed.2d 889 Wong tearing up paper was observed into States, some Sun v. United ‍‌‌‌​‌‌‌‌​‌​‌‌​‌​‌​‌‌‌​​​​‌‌‌​​‌​‌‌​​‌‌​​‌​​‌‌​​​‍371 U.S. pieces. appellants small After were moved (1963); S.Ct. 9 L.Ed.2d 441 Brinegar to Aberdeen the sheriff retrieved the small States, v. United 338 U.S. 69 S.Ct. wastebasket, pieces pieced from the them 1302, (1949); 93 L.Ed. 1879 Carroll v. together Albright and then advised that he States, United 267 U.S. receipts had recovered insured mail show- (1925). 69 L.Ed. 543 In State v. Moves Kent, Washington as the destination. Camp, (S.D.1979), said: morning, Albright The next and DCI [Pjroof beyond

Agent Jerry Lindberg (Lindberg) visited reasonable doubt is not pawn required. good shops part various in Aberdeen as Al- While faith on the bright arresting of the enough, been directed state’s officers is not attorney. Albright also had a officers need only pru- businеss reasonable dent, shops card from one that had been operate legal need not Dorothy’s purse pursuant (Citation recovered from omitted.) technicians. inventory during booking pro- search Brinegar, See also supra. into jail. cedures the Aberdeen The in- determining whether the trial court quiry recovery resulted in of a number of denying in appellants’ erred sup motion to gold rings allegedly pawned Black Hills by press evidence, this court must consider the appellants, together signed with the tickets in light evidence most sup favorable to by Dorothy. port the trial court’s decision. Moves Albright Lindberg next visited the Camp, supra; DuBois, State v. office, post Aberdeen from whence the in- (S.D.1979); Kiehn, N.W.2d 801 receipts originated. sured mail The result (1972). S.D. 199 N.W.2d 594 Once the investigation of the into the receipts mail trial court has finding, entered a that find by prosecution retrieval binding on this court unless such packages Kent, three from an in address finding DuBois, clearly erroneous. su Washington, containing each Black Hills pra; Lyons, (S.D. State v. N.W.2d 124 rings. Gold 1978). Appellants sought suppression of all of The Iron Necklaces and their children by pre- evidence heretofore mentioned by County Depu- were detained two Faulk by trial motion and the first issue raised ty previously Sheriffs depu- as noted. The appellants is the trial court’s failure to response teletype ties actеd in to a bulletin suppress urged the evidence to be “tainted agencies to law enforcement issued poisonous resulting fruit of the tree” from Deputy Albright (Albright) Sheriff illegal arrest. The crux of this issue is Spink County Sheriff’s Office. That bulle- stop whether and detention was a viola- substantially tin read as follows: appellants’ tion of Fourth Amendment IMMEDIATE GENERAL INFO TO ALL rights probable due to lack of cause. UNITS AND STATIONS This court has on numerous occasions GRAND THEFT FROM STACEY DRUG “probable defined cause.” In State v. STORE IN REDFIELD BETWEEN Oyen, (S.D.1979), 318-19 10:00 AND NOON DATE THIS we said: $1,700.00 TAKEN WAS WORTH OF Probable cause for arrest exists where BLACK HILLS GOLD JEWELRY. police facts and circumstances within a MOSTLY LANDSTROMS AND SOME knowledge officer’s of which he had rea- STAMPERS BRAND sonably trustworthy information ‘are in sufficient themselves to a be- warrant POSSIBLE SUSPECTS ARE: lief a man of reasonable caution that been_committed.’ (Cita- (1) a crime has INDIAN MALE 25-30 YOA BRO- omitted.) tion KEN AND NOSE RECENT INJURIES Albright Clayton Iron also advised BANDANA AROUND FOREHEAD TO pawned Mo- jewelry HEAD Necklace had bridge Albright area. then checked (2) 25-27 YOA FEMALE SLIM WHITE Iron in the na- Clayton LONG STRAIGHT name Necklace BUILD WITH HAIR- computer BLONDE he BROWNISH tional crime and found that HAIR STRAIGHT Washing- had an extensive arrest record in 4-6 State, nothing 1—MALE CHILD BETWEEN YOA ton time in South but Dakota. on the that he Based information 4-6 YOA 1 FEMALE CHILD above, collected, Albright noted (sic) AND OR- POSSIBLE DRIVING put then out the bulletin resulted (sic) LICENSE CAPRI WITH GANE appellants' detention. # WASHINGTON PASS IHX075 IMMEDIATE- PUT OUT PLEASE THIS findings entered fact The trial court BE LY. THEY CAN’T FARAAWAY supporting and conclusions of law denial of (sic). IF WASHINGTON VEHICLE LO- suppression pertinent motion. The CATED, RINGS. THEY CHECK FOR findings Necklace case Iron BULK, BE IN THEY LEFT SHOULD include: THE BOXES BEHIND. sent out at аpparently bulletin VIII. September p.m. 2:46 on message genesis of was the receipts That insured mail were found Spink report County to the Sheriffs Office 11,1986 September Wheery Sheriff Stacey’s Drug jewelry theft of County the Faulk Sheriff Office’s waste- Investigation by a Red- Store in Redfield. slips basket. These were discovered gave officer the de- police field authorities Doro- Wheery after he observed Sheriff individuals, of four described scriptions Clayton Iron thy Necklace and Iron above, couple and a more “locals” who had looking something in Doro- Necklace during period in the store the when been purse Clayton thy Iron Necklace’s and have occurred. the theft was believed to pockets. Iron After the Iron Necklace’s seeing teletype a re- Albright remembered office, left the Sheriff’s Sher- Necklaces morning Gettys- from the very that ceived Wheery iff looked around the area where Department warning burg Police authori- sitting had and the Iron Necklaces been orange for an on the “lookout” ties to be Wheery in the waste basket. Sheriff Dorothy Caprice Iron Mercury driven slips of up several pieced together tom Necklace, two occupants: other children pieced together were paper when male, age Indian and an receipts from the Ab- three insured mail nоse, his as Robert S. bruise on identified The erdeen, Dakota Post Office. South (Smith). Albright obviously noted Smith these re- finds that specifically court general striking similarity between person taken ceipts were not from Stacey Drug per- descriptions given by the Clayton Dorothy Iron Necklace or either teletype: Gettysburg sonnel and the two belongings. Iron Necklace or their adults, and one Indian one white female children, nose; a sore two one male with Albright one checked

male and female. for informa- computer crime the national XI. Dorothy and Smith. tion Iron Necklace on 11, 1986, Al- Deputy September That on Mobridge police to a officer also talked He explain bright to Defendant did read and Dorothy him who advised specifical- rights. The his Court Miranda staying in Mo- Necklace been Iron Faulk at the ly this occurred finds that and that bridge for the last two weeks prior to County Office and Sheriff’s accompanied by another individual mail finding insured Wheery Sheriff shop- being jail on then held who was receipts. Mobridge police The lifting charge. officer way

XII. 212 as far as Gettysburg, some 81 miles; 4,000 encompassing square over September 11, The finds that on Court lying miles and within the boundaries of six Spink County Sheriff received a contiguous counties. It is obvious that in message from tele-type Gettysburg policing such an extensive area the authori- police to be on the alert for white radio, rely ties teletype telephonic Dorothy woman named Iron Necklace It communications. is also obvious that male, traveling Indian with an and two attempt authorities make some keep white children. The specifically Court “possibilities,” each other alert as evi- tele-type finds that this was received by denced the “information bulletin” sent Spink County prior Sheriff to the Gettysburg out Department. Police arrest and detention the Defendant. The record does not reflect the reason findings Identical were entered with re- stopped vehicle was and the occupants Dorothy spect Iron Necklace’s case. questioned in Gettysburg, but that is imma- upon foregoing findings, Based the tri- only terial because the result was an infor- al court conclusions entered of law the mation bulletin which did not come into respective cases as follows: play until after the fact theft. IV. Court, The United Supreme States Terry said: obtaining Court concludes that receipts by insured mail Wheery Sheriff exclusionary properly cannot [The rule] was not search and as a result all be invoked products to exclude the resulting evidence from the insured mail legitimate police investigative techniques receipts is admissible. ground on the that much conduct which closely similar involves unwarranted upon prоtec- intrusions constitutional

Y. tions. prob- Court concludes that there was at U.S. at 20 L.Ed.2d able cause detain the Defendant on Further, discussing factor September 1986 and such detention test, in the probable reasonableness cause illegal. arrest was not the Terry court said: We first examine the trial court’s In order to assess the reasonableness of probable determination that there was general conduct prop- as a [the officer’s] cause for of appellants. the detention In osition, it necessary ‘first to focus regard, this appellants first note that governmental upon the interest al- which make no issue of the fact that the initial justifies legedly upon official intrusion detention the County deputies Faulk constitutionally protected the interests of pursuant done the to of directive citizen,’ private ready for there is ‘no appellants’ argu bulletin. The crux of determining test for oth- reasonableness ment, briefs, appears as stated in their to by balancing er than the need to search that prior be the detention occurred to against the invasion which the [or seize] probable being cause Appel established. (citation search entails.’ [or seizure] were physical lants then held while evi omitted) particular And in justifying the gathered, dence was of all which was found police intrusion the officer must be able result of unlawful detention. With point specific to to and articulable facts contention, agree. this we do not which, together taken with rational infer- It is noteworthy appellants' that activi- facts, reasonably ences from those war- encompassed quite ties area north rant that intrusion. Following central South Dakota: U.S. 20-21, 1879-80, 392 U.S. at 88 S.Ct. at 20 Highway 12 about 100 miles from Mo- at L.Ed.2d 905-06. bridge Aberdeen, to on thence south U.S. Redfield, Highway to Again discussing probable 281 of 42 distance cause test miles, in Brinegar, supra, High- and thence westward on U.S. said: Court

73 trial, to appellants seek Prior also moved long-prevailing standards These of suppress in-court identification four from rash and un- safeguard citizens Stacey Drug State’s witnesses: two Store privacy with reasonable interferences employees, Connie and Debbie Newman charges of crime. unfounded and from Doseh; pawn operator, Rory shop leeway They give fair for also seek Foresman; postal Der- employee, and the community’s enforcing the law in ground suppression rick Herther. The probable rule of protection.... The using alleged lineups one-photo be concep- practical, nontechnical cause is a booking impermissibly suggestive photo- compromise affording the best tion investigatory stage and at graphs accommodating has bеen found for these Appellants grand jury proceedings. Requiring opposing often interests. failing to court erred in now claim the ‍‌‌‌​‌‌‌‌​‌​‌‌​‌​‌​‌‌‌​​​​‌‌‌​​‌​‌‌​​‌‌​​‌​​‌‌​​​‍trial unduly hamper law enforce- more would grant suppression their motions. After To would be to leave ment. allow less hearing, the trial court entered suppression mercy law-abiding citizens at findings fact and conclusions of law caprice. whim or officers’ supporting denying an order the motions. 93 L.Ed. 338 U.S. at suppressing in-court iden- purpose at 1890-91. tifications,which photographic from a stem case, ran appears appellants it procedure impermissi- that is identification Albright police techniques. good afoul of bly suggestive, prevent is to a substantial party description started with irreparable misidentification. likelihood four, descriptions somewhat States, v. Simmons United 390 U.S. coupled description distinctive. He (1968); State 1247 88 19 L.Ed.2d S.Ct. with that found in the information bulletin. (S.D.1984); Esslinger, v. 357 N.W.2d 525 descriptions and a physical He then had the Sahlie, v. State 90 S.D. N.W.2d Albright checked the identified. then car Barcley, v. (1976); S.D. State acquired from the names he bulletin (1975). The 225 N.W.2d 875 burden up inquiries and came with and additional establishing impermissible suggestiveness long had a the information that suppress the party seeking Washington, criminal record in the state of Sahlie, supra; su- Esslinger, evidence. licensed. The issue then where the car was suggestiveness pra; Barcley, supra. рrobable put is, Albright have cause to did procedure must de- of an identification teletype directing apprehension and out totality of the circum- from the termined point appellants at that detention Biggers, stances. Neil U.S. did. As the Brine- hold time? We that he (1972); State 34 L.Ed.2d S.Ct. dealing probable gar court said: “In (S.D.1984); Phinney, N.W.2d cause, however, very implies, name as the Dace, v. 812 probabilities. These are not we deal with briefs, they to fail appellants’ In prac- technical; they are the factual and record where any pages us to in the cite on everyday life tical considerations of they made of identifications were men, not le- prudent and which reasonable complain. they any do make ref Nor now 175, gal technicians, at 69 act.” 338 U.S. hearing sup pretrial on their erence to the at 93 L.Ed. at 1890. S.Ct. findings pression motions and the resultant appellants In of our decision view entered the court. and conclusions cause, we probable argument generalities, were detained with in is couched Their perti or particularly examine the issue of whether need not of which are not most Granted, receipts one-photo line acquisition the mail the of nent to this case. not suggestive and ups dangerously amounted sheriff's wastebasket can be from the Dorothy’s irreparable misidentification. may The lead to to a search. search Simmons, supra. Though have cau garnered pawn shop purse, which the busi- one occa against on than card, tioned them more upheld as a valid likewise ness O’Connor, sion, 87 S.D. search. (1973); Shell, photos N.W.2d State v. Iron and that the use of the did not (1971), they S.D. N.W.2d 803 are process. affect the identification if they not unconstitutional meet certain being addition unchallenged by appel- to reliability. factors for determination of lants, findings supported by these are the Biggers, supra; Phinney, supra. sev- The suppression record of the hearing. We af- in Biggers eral factors set forth and Phin- firm the trial court’s decision on the motion (1) ney are: of the opportunity witness suppress. to view criminal at the time of the Dorothy’s vague brief also makes some crime, (2) attention, degree the witness’ display Dorothy reference to a herself to (3)the accuracy of prior the witness’ de- Again, the witnesses before trial. the brief (4) scription criminal, of the the level of makes no reference record where certainty demonstrated witness at showing such was made or where confrontation, (5) length and objection preserve was made to the record. time crime between the confronta- nothing. We can find It certainly was not tion. 409 U.S. at 93 S.Ct. at included in the for suppression motion 411; Phinney, L.Ed.2d at N.W.2d we therefore deem that issue wаived. weighed 468-69. These factors are by appellants third issue raised against the corrupting sug- effect of the troubling. attorney more Was the state’s gestive identification itself. Manson engaged prosecutorial misconduct and to Brathwaite, 432 U.S. deprive appellants, such extent as to (1977); or Phinney, supra. L.Ed.2d 140 them, process either of of due and a fair findings, The trialcourt’s summa allegations prosecutorial trial? The mis- brevity, rized for sake of are as fol (1) categories: conduct fall into three fail- lows: prior to comply discovery ure with the or- respect Foresman, pawn With by furnishing der of the trial court to the proprietor, shop Al- (Deputy officers eight previously defense the names of un- agent bright Lindberg) and DCI first ob- prospective only disclosed witnesses two description tained detailed of the sus- working days before trial was set to com- pects, opportunity an account of his to mence; (2) instructing one pro- of those (in them observe instance he had spective witnesses not to talk to defense prior done business with them on a occa- counsel; (3) arguing to jury final sion) booking and then showed him the argument based on presented evidence photos for confirmation of the identifica- jury. The to the first two are intertwined. tion.1 respect Stacey Drug With em- First, urged although it is Dosch, ployees, Newman and had attorney request state’s received for the given descriptions both detailed 8, 1986, names witnesses on December suspects original investigation. respond she did not awith list until 4:00 They ample opportunity to observe p.m., January 1987. Trial was set to them in the or course of two more con- begin January Appellants’ com morning in the store on the versations plaint stresses that list contained the question, photos and were not shown the eight previously names witnesses not appearances Jury until their at the Grand endorsed on the informations and who had proceedings they unequivo- when previously preliminary not testified at the cal, absolute, positive in affirmative and hearing. Although attorney the state’s their identifications. prepared subpoena had and served a on specifically (Jessen),

The trial court found that Christina Jessen one of the new witnesses, 19, 1986, all first appel- witnesses described the on December she stat lants, accurately, ed, January discovery hearing, them noted described a that adults, accompanying the children the had no she written statement from Jessen Herther, not, fact, respect procedure appear same With to the him because he did in at the followed, testify. to was however the issue moot as to trial file, any they opportunity of such had an to the her aware fore conduct wаs file, police nor she interview. had statement point. her at that

personally interviewed Appellants’ argument is founded on the as a Defense counsel characterized that Brady Maryland decision of the United refusal to furnish information. The state’s Court, 83, 87, Supreme States 373 U.S. pointed attorney further out that Jessen’s 1194, 1196-97, 10 L.Ed.2d S.Ct. prelimi- had mentioned the name been (1963), that said: wherein court Drug nary hearing Stacey as one the of suppression by nowWe hold that the employees duty day, and de- on that thus prosecution the of to evidence favorable her if fense counsel could have interviewed upon request an accused violates due they desired. process where the evidence is material guilt punishment, irrespec- to to either or Nowhere in their briefs do defense coun- good tive of the faith faith of the or bad point any place to in the record where sel prosecution. objected the the to endorsement of Trombetta, recently, in More At the start of the additional witnesses. California 479, 485, 467 U.S. S.Ct. however, trial, day coun- second of defense (1984), court L.Ed.2d the stated for a moved in the alternative mistrial sel further: although testimony, toor strike Jessen’s Under the Process Clause of the testified, Due upon all the yet she had not of Amendment, prose- Fourteenth criminal previously urged as to grounds failure comport prevailing cutions no- must with comply discovery motion with the have tions fundamental fairness. We they did the additional reason that when long this interpreted standard fairness Jessen, sought try to interview she first require that criminal defendants be attorney by from the state’s tele- advice meaningful opportunity to afforded a and then refused to talk to them phone, present complete To safe- defense. upon purported instructions of the guard right developed has that Court attorney. After hem- state’s considerable might loosely be called area ‘what ming hawing, attorney did state’s constitutionally guaranteed access to evi- that, telephone reached admit when (Citation omitted.) dence.’ nerv- very Jessen whom she described long recog- Brady has been doctrine ous, her was: “I told her that it was advice applied by this court. nized I choice and also told her I would her talk, stated, I prefer again she not 'It’s but imagine It is little difficult ” choice, The trial court your Christina.’ two or three prosecutor approaching within recognized expression pref- having inter days of a trial date without complete change in policy erence was a report or a written viewed received expressed by the state’s attor- previously testimony any key witness. expected trial ney. instance, While the court overruled thе record reflects that for mistrial and the motion to ex- in the attorney motion involved state’s point subsequent testimony, Jessen’s it directed that into office at some clude come charged. given offense opportu- another to the commission defense counsel be inexperienced again prosecutor If The fact the nity to Jessen. Jessen interview not, office, refused, or does neophyte, it have even a the trial court stated would course, appellants’ constitu her diminish the motion exclude to reconsider however, indi then, right merely fair It to a trial. testimony. The trial court tional problems were occa cates some of denied the defense motion continue pur than by inexperience, re- rather dire after the interview and sioned voir until However, we would proceed poseful misconduct. quired jury selec- defense opportuni if did not take this Apparently counsel able be remiss we tion. defense attorneys, as Jessen, prosecuting they ty now to remind all because also to interview of past, it the foundation re- have the is complain appeal on that the trial court we system see justice to that proceed the criminal quired them to with voir dire be- every gets defendant and defendant his STATE’S ATTORNEY: As Mr. Fores- testified, day in court a fair man perhaps Clay- and trial. This he thinks burden signеd ton one them of and what do weighs heavily prosecutors as on as it does they Maybe do next? before this judge, jury on the and defense counsel. pawn shop maybe after, they or went Kidd, State (S.D.1979). 286 N.W.2d 120 post to the Aberdeen and they office explanation might The lie in the determi- packages some Washington. sent to was, indeed, nation whether key Jessen Honor, object. MR. GERDES: Your I’ll prejudice appellants witness. Whatever along There’s no evidence those lines would suffer trial court’s refusal to I’ll prosecutor at all. ask that the be delay voir dire until after the defense coun- to limited the evidence that’s been clearly sel could interview Jessen presented. explained. Dorothy’s counsel termed Jes- deem preserved We this issue not testimony dynamic sen’s as “the most as appeal. Appellants for did not request the only person put she Dorothy who trial jury court to admonish the to dis anywhere jewelry near the case.” Counsel remark, regard they nor did move for a speculates then that had “her testimony Therefore, mistrial. the trial court did not produced early enough trial, been prior to opportunity have an to make a decision possible it would have Dorothy been for to from which there could be an abuse of compare properly more her statement with Dace, discretion. Stаte v. N.W.2d Stacey Drug those other workers in day to show inconsistencies and the appellants Even had fairly raised impossibility presented.” of her facts as appeal, the issue for we would have af pure speculation We consider this firmed. “Counsel is allowed considerable here, trial, inasmuch after trial argument right latitude in and has the transcripts her, Dorothy’s before counsel supported on comment matters the evi point not or could did not out inconsist- Shult, State dence.” N.W.2d impossibilities or encies of Jessen’s facts. Soldier, v. Standing (S.D.1986); testimony To placing characterize Jessen’s (S.D.1980). Judging 299 N.W.2d 568 Dorothy jewelry near the dynamic, case as briefs, although objection noted light of the hard evidence that she had clear, less above is than it went pawned some the jewelry and mailed postal employee appear failure to have the state, to her in Washington some mother testify identify appellants. The pure puffery. attorney’s response state’s on the record again The issue raised briefly in a dispositive appears argument: again motion for new trial denied. As they PROSECUTOR: How do we know Kidd, supra, said in also “we will not post went office? Because we ruling disturb trial court’s a motion packages postmarked have these Aber- newa trial based on misconduct of deen, Dakota, September South are counsel unless we convinced there has they Who are from? The Iron been a clear abuse discretion.” 286 family. Necklace Who are ad- court, having N.W.2d at 122. The trial Kent, dressed to? Bonnie inWells testimony Jessen, heard we cannot Washington. from a has clearly decide cold record that it arguments complained clearly of were abused its discretion. within the ambit of fair comment. Lastly, appellants argue that state’s at- The next issue we will consider is torney impermissible made comments dur- appellants the claim were denied fair closing argument, to the effect that po because comments made appellants post went to the Aberdeen office during juror tential voir dire. The incident packages Washington. and mailed the during arose voir dire Dor examination part closing pertinent argument othy’s questioning pan counsel. When generally out prior knowledge is set below. el as to from by Appellants’ word of mouth or next issue centers case received (Thelen), Mr. newspapers, a Thelen who of the around the method selection of addition coroner, county happened to be the jurors panel also the first al after was exhaust a and knew county indicated he was official day dire, ed. After the first of the voir the from the sheriff quite a bit about case jury panel initial was exhausted chal further and one of the victims. Under lenges necessary and it was for additional examination, he had come to admitted he jurors Appellants to be summoned. ar in the and that he some decision matter gued appro that SDCL 16-13-42 was the acquainted police officers in priate summoning statute to follow in addi attempt No to chal- the area. was made jurors tional under the circumstances. Instead, lenge for Thelen cause. counsel ju trial court directed that the additional general questioning continued the provisions rors be summoned under the queries: came to these SDCL 16-13-43. Under latter statute Now, instance, for lets take a vote. ... sheriff, deputy sheriff, a or the coro now, now, Right you right if had to vote ner, is ordered to a sufficient summon started, you trial even would before this persons qualified jurors; number of acquit Mrs. Iron or to vote to Necklace whereas, statute, prior under the the clerk many her? How vote to convict would people summons master of courts from the right acquit anybody her Is there now? jury support argument list. their right vote to her now that would convict method, against appellants use of the latter [Thelen], the trial Juror before starts? also cited the trial court to SDCL 16-13-24 you would? provides that is a when the sheriff I I think as I I think Juror: said before court, party pending a suit he too much I have a lot have information. disqualified shall deemed and a substi right I would of information now that appointed drawing tute for of addition go by. have to jurors. arguments unper We find these al Again, attempt The- no was made to strike party The sheriff was not a suasive. Rather, hearing len for cause. a was held jurors the additional were secured a appel- presence jury outside the deputy no who had connection with motions for a or in the alter- lants’ mistrial Appellants of this case. do not claim trial The trial jury panel. native for a new rather, prejudice, they claim any actual but motions, stating had court denied the there “In potential jury in the selection. abuse juror cause been sufficient to excuse the any showing appellants the absence response. the first The trial court after prejudiced by partic sheriff’s were pointed juror merely out that the answered statutory process, ipation selection counsel, questions put to him without merit.” argument is their facts, merely ex- not volunteered but Reiman, N.W.2d pressed opinion. his The trial court own the trial court’s use SDCL We affirm deny Clayton’s motion also determined 16-13-43. merely sat because his counsel had spin-off this issue and As a interrogation go on. We permitted by Thelen, made dealt with the statements argument ludicrous. appellants’ find to be issue, claims previous Dorothy in the also imagine interrogation more It is hard to in denying erred her motion the trial court any de- to invite error. When contrived First, challenges. peremptory for extra guilt or willing put fense counsel authority support Dorothy cites us to no prospec- client to vote of innocence Second, inasmuch as we requests. her trial, especially with jurors tive before the trial decisions approved have court’s prospective one knowledge that of those issues, argument we do not find her both possession indicated of information jurors in the court’s discre persuasive. It is facts, invit- clearly regarding counsel shown, tion, grant addi good cause a result here and ing just such as we have challenges. SDCL 23A-20-21. find have to it. We tional counsel will live with jurors after was made twelve wholly merit. motion this issue to be without ready seated and the trial court During was lants’ next issue. the course of the in, long trial, swear them after the court’s rul- sought both counsel to withdraw from ings on the issues. We do not find that the representation respective of their clients trial court abused its discretion under the for the reason that saw themselves as circumstances. important witnesses for their clients based alleged pre- inconsistencies between the appellants next issue raised is the liminary hearing testimony of a witness properly trial court’s failure to admonish her testimony and at trial and a statеment juror an alternate after selection. After made to day counsel a or so earlier. The jurors the twelve were seated and sworn motion, trial court stating denied the in, they were excused and directed to re- inconsistency did not major seem to be port morning. the next The trial court justify allowing would not counsel to properly admonished them not to converse Whereupon Clayton withdraw. advised the among anyone themselves or with else trial court that he wished to dismiss his any subject about connected with this trial counsel. The trial Clayton court cautioned express opinion. or to form or The voir that if he did dismiss his counsel new coun- dire was then continued to select an alter- coming sel would be in any without back- juror. nate After the alternate was select- ground of the case or if intended to ed, given the oath was and the court was proceed pro se he would be held to the adjourned day. for the No admonition was same attorney. Clayton standards as an given juror. to the alternate se, proceed pro indicated he did not want to began day Trial the next and con but wanted the court appoint new coun- day. tinued on into the second One of the Dorothy sel for him. likewise asked to jurors excused family was because of a dismiss her counsel. The trial court ruled emergency part and thе alternate became a given that the reasons would not be suffi- panel. During a recess in the second appoint cient to authorize the court to sub- trial, day appellants moved a mistrial stitute counsel. After a brief conference ground on the that the alternate had not counsel, Clayton stated: two “[T]he properly been admonished after her selec given choices to me at deny this time each tion. The trial court denied the motion. my rights, me constitutional but of the two agree. suggests, We As State defense I choose my present attorney to have con- counsel timely objection failed to make represent Dorothy agreed tinue to me.” oversight call the to the trial court’s atten that statement. Furthermore, tion. as the trial court not ed, the present alternate was at voir dire The constitutional conflict arises in this jurors when the were admonished and provisions 19-1-3, also case due to the of SDCL present when, during provide pertinent trial at the part: “When an breaks, various jury again attorney admon is a witness for upon his client ished. The record reflects that the trial except merely as to formal mat- court carefully did follow the mandate of ters such custody as the attestation or SDCL every adjourn like, 23A-24-5 at other an instrument or the he shall not ment. find no participate We indicаtion that this mi further in such trial.” In this situation, nor omission affected the required verdict. State v. the trial court is to bal- (S.D.1984); Lang, 354 N.W.2d Host v. ance the rights. per- two constitutional We State, so, N.W.2d ceive effectively that the trial court did correctly. This is an issue which has South Dakota Constitution Article only up come of recent date and we have VI, 7, provides “In that: all criminal § not heretofore written on it in extenso. prosecutions the accused shall have the right person counsel; appellants argue, defend As we have said in compulsory process (S.D. ... to have Wiegers, served for N.W.2d 1985): obtaining conferring upon witnesses in his “In addition to behalf....” These seemingly right harmonious constitutional a defendant the to call witnesses on provisions behalf, are cast his appel- into conflict South Dakota Constitution Arti- appear justify allow- It it would VI, guarantees a defendant does also ele § upon key wit- counsel to withdraw based impeach the state’s right to part.” showing presently on their We the court. by bias what’s before nesses testimony State’s also said: witness’] “[The seeking testify as counsel were to Defense satisfy the State’s burden essential to by made to them Sharon to statements powerful I proof on Count and was of came Stacey regarding who it was who He respect to Count III. evidence relayed an pharmacy her in the back to on those clearly a crucial witness allegedly appel- one of the inquiry, Accordingly, defendant should counts. lants, availability “one-day” of about seeking in given great latitude have been processing. preliminary At the hear- photo testimony.” Wieg- In impeach his Id. to that it was ing, apparently had testified she ers, alleged intimidation the issue was Dosch, ap- she counsels’ interview Deb through prosecution threats thé State Jessen, but at parently named Christina issue perjury, cry a far from the before for they did at had testified that both trial she us. argument times. The defense different respect to the The issue with testimony was was that State’s witness’ is better character appointment of counsel and to appellants identification of critical to coun appointment of substitute ized as the proximity of the Clayton in the placing being represented Appellants were sel. inconsistencies They suggest the jewelry. do not diligent and artful counsel. We does not re- that either the witness show mo the untimeliness of the fault them for got- have all or that the witnesses member directly delay can be tions. Much made sure their stories together ten attor to the failure of the state’s attributed the trial straight. agree with We request to the timely response make ney to pro- reasoning. The nature of court’s recognize that list. We do for a witness minimal, impeachment was so bal- posed right on the courts have written other disruption of the trial against anced require appointment the defendant appoint- be occasioned that would right to coun under the counsel substitute counsel, say we cannot ment of substitute and state con provisions of the federal sel its discretion. trial court abused that the we impressed We are stitutions. testimo- impeachment for The wide latitude Michigan which hold: adopt authorities ‍‌‌‌​‌‌‌‌​‌​‌‌​‌​‌​‌‌‌​​​​‌‌‌​​‌​‌‌​​‌‌​​‌​​‌‌​​​‍is not limitless. Wiegers to in ny referred counsel Appointment of substitute prejudicial error Appellants claim showing good only upon a warranted of their motion court’s denial in the trial not substitution will cause and where sought suppress limine, whereby judicial process, unreasonably disrupt the testimony by witnesses any State's omitted) (citation A court’s decision trial to the effect made statements Clayton had or a contin request for substitution the result injury to his nose was that the appeal not reversed on uance will driver the other collision and an automobile discre showing of an abuse of absent $2,000 report the acci not to paid him had tion. Pedde, 334 relies on v. Clayton State dent. 125,133- Johnson, Mich.App. v. People (S.D.1983) v. John and State N.W.2d (1985). 373 N.W.2d (S.D.1982), son, for N.W.2d 652 decision of the examine the evidence is We then that other crimes proposition identity only that we light of the authorities рurpose court in the for admissible recognized the recognized. Appellants The court have operandi. have show modus introducing counsel into holdings new in those cases. problem our misunderstood fact, given regardless recognized Pedde, is a the trial. That said that we In court importantly, the trial crimes Johnson, Most of other of fault. “that evidence such purposes said: admissible frequently are incidents identity where the showing in this case does inconsistency operan- in modus similar in time and be, close of the witnesses view seem added). (emphasis at 43 334 N.W.2d inconsistency. di.” testimony, major current say That is not to that one can show identi- the prejudicial effect of a witness’ ty through only operandi. modus statements, only and it is when this discre- clearly tion is abused that this court will review, Our standard of as to ad overturn a decision.” Cady, supra; State evidence, mission of other acts is whether Farley, (S.D.1980). admitting court abused its discretion in short, trying seemed to be Dokken, the evidence. 385 N.W. impress upon himself those around him in 2d 493 In this instance there day. the store that There is no unfair appear does not to be bad acts evi prejudice arising from the admission of the dence. The testify witnesses did not testimony. Clayton actually any committed bad They act. only testified Clayton told appellants’ We next examine done, them what he had testimony argument that the trial court erred in ad clearly relevant to their testimony mitting First, certain evidence. the record identifying Clayton having been in the discloses that sufficient foundation was Stacey Drug question, Store at the time in laid for the admission of following appellants a fact hotly Appel contested. pawn (the items: shop tickets owner argue relevance, lants do not seem to but them), testified that he Dorothy sign saw rather stress the occasioned prejudice receipts (the the insured mail County Faulk by testimony. such Of course preju it is Sheriff saw attempting destroy dicial. everything Most puts that State them), packaging Kent, materials from into evidence is prejudicial. meant to be (these Washington were related to the re is, question unfairly prejudicial? is it ceipts through numbers), their identifying As past we have said in the “[bjalancing and the Black rings Hills Gold probative recovered against value of evidence risk of (the pawn shop prejudice pawn unfair is a broker iden delicate function of the tified them judge trial and we deem the exercise of them to discretion.” a 828, Cady, (S.D. State v. 422 substance that is readily susceptible N.W.2d 829 not 1988); Wedemann, alteration). State v. 339 N.W.2d We find the foundations laid (S.D.1983); 115 SDCL 19-12-3. “The for the various exhibits sufficient to com judge has wide discretion in ply determin- with SDCL Regarding 19-17-1.2 appel- provides: 2. SDCL 19-17-1 by telephone company time particular to a business, рerson or requirement if of authentication or identifi- (a) circumstances, person, in the case of precedent cation as a admissibility a condition self-identification, including by person is support satisfied evidence show the sufficient to called, answering finding to be the question that the one or matter in is what its (b) business, proponent By in the case way only, claims. call was illustration limitation, place by way made to a and examples of business following not and the conversa- are reasonably tion related to business transacted authentication or identification telephone. conforming over the (7) requirements with the of this sec- writing Evidence that a tion: authorized law (1) to be recorded Testimony or filed and in fact knowledge of a recorded or witness with office, public purported public filed in a that a matter or a is what it is claimed to be. record, statement, (2) report, compila- Nonexpert opinion genuineness or data as to the tion, form, any handwriting, public upon familiarity from the based office acquired purposes kept. where litigation. items of this nature are (8) (3) Comparison by compi- Evidence that a document or trier of fact or data lation, form, expert any specimens witnesses with which have (a) been authenticated. is in such condition as to create no (4) contеnts, substance, Appearance, suspicion concerning authenticity, its internal patterns, characteristics, (b) it, authentic, place or other distinctive was in a where if be, conjunction likely taken in with circumstances. would (5) voice, (c) Identification of a twenty years whether heard has been in existence or through firsthand or mechanical or electronic more at the time it is offered. recording, (9) by opinion transmission or describing process system based Evidence or upon hearing produce the voice showing time under used to a result and that the connecting alleged process system circumstances produces it with the or an accurate re- speaker. sult. (10) (6) conversations, Telephone Any evidence that method of authentication or identifi- assigned a call was provided by made to the number at the cation a statute or other rules

81 Zemina, case law. State v. 87 S.D. custody was the chain of lants’ claim that (1973); State John showing no how 206 N.W.2d there was flawed because (S.D.1978); United Kent, son packages got from Aberdeen N.W.2d Thomas, cert. de custody’ ‘chain of 469 F.2d States point out that we “[t]he nied rule, requires] prosecution to account 93 S.Ct. 35 L.Ed.2d U.S. physical evidence for the whereabouts 690 and U.S. its The case of State v. (1973). a crime from the time of

connected with L.Ed.2d v. Alexander, (S.D.1981), upon to its offer at seizure 313 N.W.2d 33 trial[.]” Serl, rely, wholely distin appellants Serl, it was not neces further said that guishable. absolutely perfect sary to establish Clayton’s argument that his con custody, rather one which chain of but II under the Part information was viction suggests whereabouts strongly the exact the manner of fatally flawed because of period of time. during that of the exhibits filing and that the of the informations respect to the admission With permitting in amendment trial court erred Stacey, one of testimony of Sharon of information, II after the convic to the Part Stacey Drug, as to the value

the owners of offense, underlying in is likewise tion State error. In jewelry, we find no adversely Clayton to on the ba determined Davis, (S.D.1987), we v. 401 N.W.2d 721 Dakota The dis sis of settled South law. of opinion testimony of the owner held that underlying refiling of the missal and expert, is goods, not otherwise stolen II information could be charge so the Part the value of the admissible to establish by approved properly filed has been she had goods. Sharon testified stolen State, v. court Halverson in 372 N.W.2d jewelry bought sold Black Hills Gold and (S.D.1985). also held This court has 463 period twenty-two years, during which may an information amend that State price always used the Landstrom’s she had prejudiced is not the defendant where during that such list. She also testified Loop, 422 420 thereby. State v. N.W.2d willing seller to a she was a transactions Graycek, State v. (S.D.1988); an ade willing buyer. We find that to be Layton, v. (S.D.1985); N.W. State 337 815 of the Land- quate foundation for the use Garritsen, v. (S.D.1983); 302 State 2d 809 testimo price list for her valuation strom’s (S.D.1981). addition of 409 N.W.2d Furthermore, prejudice no to ny. we find of information is a matter names to the two required prove to appellants. The State is discretion and does judicial beyond a reasonable doubt. the value does particular prejudice, nor point to Jacquith, v. 272 Davis State supra; N.W. by the trial court any prejudice point he to (S.D.1978). The relevant valuation 2d 90 of the information amendment permitting in the Grand floor set $200 involves of the convictions date of one to correct the 22-30A-17(l). Thus, statute, Theft SDCL judicial matter of day, likewise a one figure, the is close to that unless value discretion. property is not that value of the exact light our discussions of the various In instance, record dis In this important. above, dis- it redundant to we deem issues rings had a that testified closes Sharon various mo- raised on the cuss the issues $1,841.00 and a retail value cumulative acquittal and for directed verdict tions find the We $920.50. wholesale value affirm the trial for new trial. We motions it to evidence before jury had sufficient court on those. find the value exceeded $200.00. the trial Finally, determine that we appellants’ argument respect With denying in its discretion court did not abuse instructing in trial court erred that the the sentenc Dorothy’s tо continue they motion aiding abetting, since jury on and present evi hearing permit her to ing principals, find charged only as sentencing mitigation. The hear- long-stand- dence determined that issue to be authority. statutory Supreme pursuant prescribed Court nearly was held four after the procedural safeguards weeks mandated hearing, Dorothy trial. On the date of the the Framers’ Constitution admo- are not sought present only nitions be tolerated continuance in order to to the extent purposes serve functional en- family and letters affidavits from members “guilty” punished sure that the are requested she only of them freed; rather, every guar- the “innocent” day hearing. before the The determination Constitution, antee enshrined our grant whether to a continuance is in the guarantor charter and the basic our discretion of the sound trial court and there liberties, precious most it endowed no error unless a manifest abuse of independent value, Bittner, vitality with an State v. discretion is shown. and this Court is not free those to curtail making N.W.2d this de- guarantees punish constitutional even to termination, may the trial court consider obviously guilty. the most party seeking whether the continuance Powell, diligence exercised attempting Stone v. has 465, 524, U.S. Fleming, procure the 3037, 3066, evidence. (1976) 49 L.Ed.2d Bow- (1986); 223 Neb. (Brennan Marshall, N.W.2d 497 JJ., dissenting). State, ie 85 Wis.2d 271 N.W.2d 110 quotation The substance of the аbove has (1978). adopted by since been the United States Supreme rights Court: “The constitutional judgments We affirm the of conviction in granted of criminal defendants are to the appeals. each alike.” Kimmel guilty innocent and the Morrison, man v. U.S. WUEST, C.J., and and SABERS 2574, 2586, 305, (1986). 91 S.Ct. L.Ed.2d 322 MILLER, JJ., concur. APPELLANTS SEIZED PRO- WITHOUT HENDERSON, J., dissents. CESS; THEIR CHILDREN NABBED case, Appellants In this were seized HENDERSON, (dissenting). Justice from car their and Iron Necklace in placed handcuffs. They trans- were CONSTITUTIONAL PRINCIPLES Faulkton, ported to thence to Aberdeen.1 APPLY TO “GUILTY” AND they were overnight There held without “INNOCENT” charges their and children likewise A careful review of and the briefs record placed seized from them and in care. foster supports this case in this conclusion: That Foster care means that the hold- State was Appellants these did a fair not receive children these so that and mother guaranteed (free- as to them by the Fourth custody.2 father did have their care and dom unreasonable search and sei- (as police “formally” did not decide to zure), (fair Sixth trial and effective coun- it) Albright put Deputy arrest the defend- sel), (due process) and Fourteenth Amend- the following day, ants until after further ments the United States Constitution investigation. The initial detention was equivalent provisions our state cause, probable without and the State’s Therefore, respectfully constitution. I dis- evidence, physical consisting jewelry in sent. tickets, Washington, pawn shop post us, stubs, worthy It is for deliberations suppressed our office should have been case, thoughtfully poisonous to reflect as under “fruits tree” States, Wong v. United Sun put practice: 471, words and into these them 371 U.S. Redfield, Faulkton, party Germany 1. and Aberdeen are cities the Nazi actions of part thrust, in the ultimately, located northeastern South Dako- the world War II. into World ta; Gettysburg centrally city is a more located Peterson, 221, See v. n. 1 225 this state. (Henderson, J., (S.D.1987) dissenting), I where “holding” peo- public decried use of officials parents These children were taken from the ple observing without benefit of their constitu- process any petition without without rights. tional juvenile judge. This is rather reminiscent of the

83 1, 416, 441, 1868, 484, 407, 9 L.Ed.2d 453 392 U.S. 88 20 L.Ed.2d S.Ct. 889 83 S.Ct. (1968). (1963), Supreme the United States wherein prohibi- exclusionary that Court held “[t]he assumption if we proceed Even on the to the as well indirect as

tion extends upon that relied all received and of such Amend- products direct [Fourth possessed Deputy Albright information timing of the “for- invasions.” ment] Aberdeen, finding probable cause arrest, probable after cause was es- mal” Albright’s fail still must informa- because case, tablished, not save the State’s does tion was to link the insufficient defendants seizure, made investigatory without theft rings to the in Redfield. While cause, equiv- probable that is the functional police may officers act on the basis of arrest, can taint evidence alent of an subse- police radio bulletins or information from police. Dunaway quently obtained officers, other once the defendant chal- 200, 2248, York, 442 99 v. New U.S. S.Ct. action, lenges police the State must (1979). building Dunaway, 60 L.Ed.2d 824 sending demonstrate the sender or 721, Mississippi, 394 U.S. 89 on Davis v. agency possessed requisite knowledge (1969) (Fourth 1394, 22 L.Ed.2d 676 S.Ct. justify police People action. See v. protection extends to investi- Amendment 374-75, 369, Landy, 59 N.Y.2d N.Y.S. Illinois, seizures), gatory and Brown 857, 860, (1983). 2d 452 N.E.2d 95 S.Ct. L.Ed.2d 416 U.S. Warden, Whiteley See also U.S. (1975)(“arrests” investigatory purposes for 1031, 1037, 28 L.Ed.2d probable on less cause violate Fourth than (1971). Albright, are told Amendment) provided “detention “striking similarity majority, noticed be- interrogation ‍‌‌‌​‌‌‌‌​‌​‌‌​‌​‌​‌‌‌​​​​‌‌‌​​‌​‌‌​​‌‌​​‌​​‌‌​​​‍regardless of its custodial general suspects descriptions” tween — severely on so interests label—intrudes Gettysburg in the and the Redfield theft protected Fourth bulletin, Amendment as yet testimony suppres- at the his trigger the safe- necessarily hearing physical traditional sion indicates that little guards against illegal Dunaway, Gettys- arrest.” provided by information “striking” 60 L.Ed.2d can burg U.S. at S.Ct. authorities. How police “general” description at 838. the scale of the intru- Given be? Appellants’ sion on the freedom in this vaguely Albright that a described knew case, probable requirement the cause male, accompa- Indian white woman and an seizure, Appellants’ must from be satisfied children, may by young have been nied two

not moment оf formal arrest. Exami- the rings in a Hills Gold involved theft of Black dispels nation the of the facts notion that Redfield, Dorothy Iron Neck- in that 11, September probable cause existed on orange Capri Gettys- in near lace was 1986. burg vaguely day on that with a described young Clay- male children. Indian and two NOT DO ESTABLISH FACTS Necklace, ton Iron mentioned who CAUSE PROBABLE being Gettysburg police as even in by the Indian as Capri (they the the a Turning police the had the identified facts Smith), the provided essential the time their seizure Robert available at by having bridge Albright's in decision Appellants, record in this case does not jew- unspecified deputies reported pawning information the had been indicate what Mobridge.3 Appel- elry unspecified seized at an time they stopped when (Neither presence in pawning jewelry nor might enough be to re- lants. This alone the information finding Mobridge illegal.) is With probable that ject the trial court’s Redfield, police in existed, Albright of a cause for reasonableness with an Indian seizure, virtually white woman under Fourth search and have been involved Amendment, against male and children could judged majority opinion itself in the theft. The at facts to the officer the moment available involved this Ohio, to the land area Terry refers vast of the seizure or search. v. city South Dakota. Mobridge a located north-central 84 based, Albright’s

case. decision essen- identifications to be violation of Fourth probable tially, suspicion, rights. cause can- Amendment but suspicion, not be based on mere as the B. Supreme Court noted in United States States, 160, Brinegar 338 U.S. v. United Assuming, arguendo, there was 1302, (1949). cause, Appellants’ 69 S.Ct. 93 L.Ed. 1879 The probable rights these therefore, police was, illegal, detention their by were violated when identification therefrom the evidence attained was taint- sugges- State’s witnesses resulted from obviously ed. This taint affects the mail creating “booking” photographs, tive thus stubs, wastebasket, found in the the identi- a substantial likelihood misidentification. worker, postal rings fication and the Any in-court identifications were tainted Washington, located in as no attenuation of impermissibly suggestive method and link illegality this evidence’s causal to the “booking” photos.4 manner of the dual “independent or claim of source” is credible sug- When is unnecessarily identification Wong on these facts. v. See Sun United gestive, and there is a when substantial States, 471, 407, 83 S.Ct. 9 U.S. L.Ed. misidentification, likelihood of an identifica- (1963); States, 2d 441 v. Nardone United process. tion denies due a defendant Neil U.S. 60 S.Ct. L.Ed. 307 Biggers, 409 U.S. 93 S.Ct. (1939). eyewitness The other identifica- (1972); Denno, L.Ed.2d 401 Stovall v. “booking” pho- tions were facilitated U.S. S.Ct. L.Ed.2d 1199 writing, tos considered later in this which (1967); Reiman, State v. 284 N.W.2d 860 photos illegal fruits themselves were Brathwaite, Manson evidence, remaining detention. The U.S. 53 L.Ed.2d 140 pawnshop rings and the identification (1977), Supreme the United States Court pawned there, tainted is also the book- practice showing single condemned the admitted, ing photos might and if not have photograph purposes of identification. produced a Reversal conviction. was war- in permitting The trial court erred this evi- grounds ranted on Fourth Amendment (identification) go dence into evidence alone. light Supreme of the United States Court’s procedure. condemnation of such DUE PROCESS RIGHTS VIOLATED Here, the concedes law en- BY IMPERMISSIBLE SUGGESTIVE only displayed photos forcement officers IN PROCEDURES IDENTIFICA- depicting four Appellants witnesses TION OF BOTH DEFENDANTS process being while in the “booked” A. Sheriff’s County Brown Office. This Any photograph depicted the witnesses revelation of identifications at a dual post office, Stacey Drug, either Mr. or the and Mrs. Iron Necklace under arrest. pawn shop illegal photographs from an No other were resulted arrest— shown to these Indian; due probable to absence of cause—and witnesses. Mr. Iron Necklace is an thus a Fourth Mrs. Iron is a violation of Amendment Necklace white woman with rights quite long obviously place. Gage, took hair. This was an State N.W. (S.D.1981). Gage, illegal procedure. 2d 793 this Court held identification Once this established, pretrial proof that photographic certain and line- conclusion is shifts up prove by idеntifications the State to were inadmissible evi- then clear and con- products vincing dence they because were of an evidence the in-court identifica- that probable independent origin. without tion an If arrest cause. Inasmuch had the in- determining independent as the trial court erred in court had an ori- identification cause, probable gin, providing there was the trial it is the clear and court admissible compounded holding convincing platform proof in not its error these is established. numbers, intentionally booking photos procedure 4. These included like side side. This prison photos, Appellant. under The Appellants. each indi- honed in on these two photos Appellants vidual were mounted established, (8) Startling is proof so far fact: Witness Newman rule of This concerned, Spink married to the sheriff of Coun- as is Sah this Court (1976). ty Mrs. Necklace’s lie, 245 N.W.2d and discussed Iron 90 S.D. case him and this out no trial determination of with is borne There was court 615; transcript page record at convincing proof requirement. clear and Therefore, stare decisis demands reversal. (9) only could Witness Jessen remember sandy with hair white woman blond single pur- for Displaying photograph, glasses; and she that she did testified identification, poses has been consistent- speak not with Mrs. Iron Necklace suggestive. ly being unnecessarily held as really and all shе re- this was could Brathwaite, 432 U.S. Manson v. woman; call about white (1977); Reiman, 53 L.Ed.2d 140 S.Ct. (10) police booking photo showed a “lineup proce- 860. A so-called of an Indian male and a white wom- place; a display never took it was dure” together, permitting the witness- “booking photographs.” The State’s at- leap es to make an inductive procedure into a tempt to rationalize this (as depicted photograph) two in the test “totality of the circumstances” under (after together and in were the store Denno, U.S. Stovall v. S.Ct. all, pic- they have numbers on (1967), prepos- 18 L.Ed.2d 1199 regu- reflecting that tures are terous. prisoners). or lar convicts facts, supported by Let us consider these identifications are total- Conclusion: These the trial record: inadequate not ly comply and do actually (1) testified Witness Foresman reliability of identifi- factors set forth Mrs. Iron Necklace was con- Biggers, cation. Neil v. U.S. minding the cerned with children 375, 382, 34 L.Ed.2d pawn shop she was in his when (1972). I fact overwhelmed with the am actually been that it could have some witnesses, that these the constitution- after signed the pawn female other who place single ally lineup (only took infirm tickets; shown), booking oppor- photographs had an owner, (2) Stacey, unqual- witness prelimi- tunity to see the Iron Necklaces at ifiedly testified that she could not motions, suppression nary hearings, Necklace; identify Mrs. Iron hearings prior to In other other held trial. words, prosecution out with started (3) witness, Stacey Drug, Not one ac- tainted, then, each wrongful procedure; jewel- tually any person saw take the held, hearing up the wit- could shore ry; My point nesses their identification. (4) only collectively The witnesses could pho- simple: impermissibly suggestive This person that a and an recall white lineup deprived the Iron Necklaces person shop; in the Indian rights and the tainted process their due absolutely no (5) Dosch con- Witness eyewitness identifications did in-court or conversation versation discourse transgressions. eliminate the constitutional Mrs. Iron Necklace ob- with two; or only her for a minute served PROSECUTORIAL MISCONDUCT Mrs. (6) talked to Iron Witness Newman (S.D. Havens, In 264 N.W.2d 918 State v. asked for ani- briefly Necklace when 1978), this Court observed: aspirin supplies mal and when prosecutors We however remind must over; brought of the criminal that it is the foundation justice to see that the defendant (7) system if Newman was asked she Witness gets day in court his every defendant opportunity other to observe weighs This trial. burden fair Mrs. Iron Necklace and she testified does on heavily prosecutors as it on yes, did, she her when she saw jury and defense counsel. court; judge, hearing at another Havens, (footnote 264 N.W.2d at 923 omit possible (within advance as is practical ted). prosecutor’s “The overriding obli constraints) time permit to the accused gation is to see that the defendant receives opportunity investigate the evi- Ashker, a fair trial.” State v. 412 N.W.2d damning dence which is innocence, to his 97, (S.D.1987) (citing Sahlie, State v. or to discover helpful evidence that is n 682, 688, 476, 90 S.D. 245 N.W.2d his cause. The trial courts of this state (1976),and Gage, State v. 302 N.W.2d must breathe a vibrant life into the crimi- (S.D.1981)). A prosecutor’s duty is not nal discovery statutes lest disclosures be simply prosecute, but to justice obtain tardy so that defense counsel is availed with a fair trial. State v. Brandenburg, little prepare time to his case. 344 N.W.2d Attempts McKee, State v. (S.D. 314 N.W.2d by prosecutors disingenuous to use trial 1982) (Henderson, J., concurring specially). tactics which have the effect endanger disclosure, The late and subsequent eva obviating or right a defendant’s to a prosecutor case, sions in this de fair trial are decried this Court. See prived the Iron Necklaces of fair trial. Kidd, (S.D. State v. Simply put, prosecutor everything did 1979). power her prevent within adversary her case, prosecutor this playing being from fairly prepared.6 jus Is this win, strictly to sidestepping the defendant’s In Taylor Illinois, tice? U.S. -, right constitutional to a fair trial. The (1988), 98 L.Ed.2d 798 prosecutor, despite request defendants’ Supreme United States approved Court discovery September 26, 1986, on provided precluding sanction of a defense witness eight witnesses, list of additional testifying when the defendant violat listed on the indictments or information ed discovery rules. The same should (Clayton), have Friday, 23, 1987, January been done here. three Defense counsel days business made a before trial was to begin. motion to strike January testimony: On Jessen’s prosecu- De provide tor refused to nied. Defense defendants counsel moved for mistrial: substance of Kristina testimony Jessen’s Denied. Defense motion, counsel ‍‌‌‌​‌‌‌‌​‌​‌‌​‌​‌​‌‌‌​​​​‌‌‌​​‌​‌‌​​‌‌​​‌​​‌‌​​​‍made a (Jessen was one of the prior witnesses on the motions, to these that Jessen not be newly list).5 revealed witness Tuesday, On permitted testify: Denied. After January 1987, Jessen refused to talk to began, permitted the court counsel to counsel, telling defense them that My opinion: talk to Jessen. Too late! Un Attorney State’s told her not to talk to fortunately, juncture, at this it was a faint (the prosecutor this, them telling denied piccolo, and not a trumpet for timely jus trial court that she had told Jessen that it tice. choice, although she, was Jessen’s pros- ecutor, did not want Jessen to talk to de- counsel).

fense This record of evasion was reversal,

sufficient to merit as Jessen’s tes-

timony placed Dorothy Iron Necklace in proximity

close rings. to the stolen Given

the wealth of unconstitutionally admitted case,

evidence admitted in tainted probable (see

lack of above) cause this mis-

conduct was not harmless. discovery statutes are there to elimi-

nate trial ambush. Discovery, to be

meaningful, ordinarily must be as far in What, tell, request 5. Another written pray witnesses sub- 6. does a new list of the State’s Attorney mitted lawyer go to the State's witnesses mean to a defense about to December into the courtroom —when he has no idea what going say? are

Case Details

Case Name: State v. Iron Necklace

Court Name: South Dakota Supreme Court

Date Published: Sep 21, 1988

Citation: 430 N.W.2d 66

Docket Number: 15759, 15787

Court Abbreviation: S.D.