*1 1912(f).4 Bеcause U.S.C.A. we believe § the evidence supports the trial court’s find- Dakota, STATE Plaintiff ings above, detailed and especially its find- Appellee, ings that appellant unresponsive was to ef- forts to assist her and that the child would irreparably damaged by further contact McCOMSEY, Gary appellant parental relationship, Appellant. we believe the trial court had reasonable No. 13643. alternative other than termination. The Dispositional court’s clearly Order re- Supreme Court South Dakota. flects the compelling State’s interest in the and, well-being and welfare of the child April Considered on Briefs 1982. under the circumstances of this we do Sept. not Decided see how the child’s welfare could be insured less intrusive means. 7, 1982. Rehearing Denied Oct. While termination of appellant’s parental rights unfortunate, spirit of the
ICWA was nevertheless poli- fulfilled. The
cy ICWA, as stated in 25 U.S.C.A. 1902, is: protect the best interests of the Indi-
[T]o
an children promote and to stability
and security of Indian tribes and families
by the establishment of minimum Federal
standards for the removal of Indian chil-
dren from their place- families
ment of such children in foster adop-
tive homes which will unique reflect the
values of Indian culture[.]
The trial Dispositional court’s gave Order father, child’s also an Indian within the
meaning ICWA, sole custody, care
and control of the disposition child. That
was based on a finding, supported by the
evidence, that the father providing
child an appropriate environment with the
level of attention and love special the child’s
needs require.
Issues not discussed are without merit or
unnecessary to discuss in view of our deci-
sion and the record before us. The trial Dispositional
court’s Order affirmed.
All the Justices concur. recognize similarity beyond prove 4. While we the State need between a reasonable issues, require the two the ICWA does not doubt that termination is the least restrictive consideration of the least restrictive alternative alternative. parental rights. to termination of Therefore *2 approxi- at
under bailiff returned about 8:00 mately p. 7:15 m. and m.; jury reported p. at 9:25 m. the p. and court after which they were deadlocked Instruction No. them to re-read directed m., 12:35 a. November At prior without own motion and on its counsel, to the assem- stated discussion jury: bled well, minutes Very twenty it is about obviously, the morning to 1:00 in verdict on the yet not reached a Jury do, going I am to Ladies matter. What Gentlemen, going go to is we are all to bed. And I would like to at o’clock have all come back 10:00 your de- morning tomorrow and continue to at that time in an effort liberations matter. reach a verdict in the by the usual That statement was followed the case with admonition not to discuss was, however, supervi- anyоne. There jurors by an officer of sion of the individual returned they separated the court after Gen., Atty. Grant Asst. Gormley, E. was re- to their homes. After the Pierre, plaintiff appellee; Mark V. for leased, attorney promptly the defendant’s Gen., Pierre, on brief. Meierhenry, Atty. objections procedure. The stated his to appeared court to believe that 23A- SDCL Kolker, Drew of Maloney, C. Johnson discretion, it, 25-5 allowed in its to release Aberdeen, Fritz, Johnson, for de- Hogan & jurors overnight supervision. without appellant. fendant and clear, however, The statute is that if the FOSHEIM, Justice. jurors court allows the over- night, jurors supervi- must be under juryA convicted the defendant of elud- of an officer. sion ing vehicle, police in violation SDCL appeal judg- 32-33-18.1 from the reads as follows:2 SDCL 23A-25-5 ment. We affirm. retirе for delibera- Before tion,
The it was must be sworn prime question is whether one or more officers error for the trial to re- them in some supervi- place, lease with such suitable jurors overnight and convenient sion after the case had been submitted to food and drink as the court shall direct. discretion, permit went to inmay, them for deliberation. The case The court its adjourn- p. separate during No- approximately 4:45 23, 1981; supper overnight, supervi- vember left for under ment of hand, voice, emergency light Any The driver of a motor siren. 1. SDCL 32 -33-18 reads: uniform, intentionally giving signal fails or refuses officer such shall be in vehicle who office, bring stop, prominently displaying badge his vehicle to a or who otherwise his attempts pursuing police appropriately flees or to elude a his vehicle shall be marked show- vehicle, signal police given ing when visual or audible vehicle. it to be an official bring stop, the vehicle to a shall be of a provided The concerning misdemeanor as 32-33-19. retirement of 2. See 15-14-19 police signal given officer in a civil case. deliberation sion of the officer or officers. The offi- not be received to sustain it when as- (includ- permit any person cers shall not sailed. If the are accused of mis- ing themselves) conduct, show, to communicate with the they may always by their jurors or they oaths, ask whether have vindication, only in their own agreed upon a verdict order except by but, justice, in furtherance they The court. officers shall return the were not guilty of the misconduct ors agreed into court when have charged against thеm.... The rea- *3 upon a verdict. son for allowing jurors separate after a cause has been submitted is to substantially its present statute in prevent them from being improperly in- 1887, predates form statehood. CL 7406 §§ others; when, fluenced by as in this specific and 7410. The reference to over- affirmatively appears during night separation first appears as amend- temporary a sepаration in for an innocent Chapter ment 130 of the 1955 Session juror purpose When the has not conversed or Laws.3 have for delib- retired any any held communication with one on separated eration and then have without Church, 289, subject, supervision, v. 7 and could not have been influ- State S.D. 64 whatever, (1895), N.W. 152 in irreg- established the test used to enced manner the decide if a retrial necessary. ularity, any, regarded if should be as not affecting any right, substantial and a know provision of no
[W]e
new
granted.
trial should not be
Noth-
permit
authorizes a court to
ing herein conflicts with what is decided
to which a criminal
finally
cause has been
(S.D.)
in State v. Church
64 N.W.
separate,
submitted to
they
after
have
152. . . . An examination of the entire
retired for deliberation to the
seclusion
opinion will
room.
disclose that
it is
. . . Wе believe the true
[Church]
that,
authority
rule,
foregoing
safe rule to be
where the
separation
nothing more. The
is such that one or more
doctrine therein de-
jurors might have
clared is to this
improperly
been
influ-
effect: Where the
others,
by
enced
ration
nothing
and there is
is such that one or more of the
jurors might
reliable to show that such
have
improperly
influence has
influ-
others,
not beеn
prejudice
by
exercised to the
enced
the irregularity must be
accused,
vacated,
the verdict
regarded
should be
presumptively prejudicial,
and the case be retried.
and the
party
burden is cast
seeking to sustain the verdict
to show
Id. 64
proposition
N.W. at 153. The Church
that such influence has not been exer-
was
developed
further
Thomp-
Edward
prejudice
to the
party.
cised
of the other
Gunderson,
42,
son Co. v.
10 S.D.
71 N.W.
(1897),
764
with this language:
Accord,
Id.
3. The word in this sentence is it be order of the or to ask them Although expressly gave ic. they agreed upon verdict, no statute whether have authority to allow a they and to return them into court when have оvernight 1955, authority before was im- agreed, so or when ordered the court. plicitly given 1887, in our 1887 code. CL 7410 states: While the § kept together, during progress either hearing CL § 7406 states: After charge, court, the trial or after their retirement for delibera- jury may either decide in tion, they sheriff, provided by they must be retire for deliberation. If do not court, expense agree retiring, the order of the at the without one or more officers county, with suitable and sufficient food must be sworn to them place, lodging. some food or convenient drink, water, except It is clear that the bread and unless 1955 session law did not court, change anything, pre-1955 otherwise ordered and not to and therefore the permit any person speak supporting holding to or communi- case law our on this issue is them, themselves, good. cate with nor do so unless still Steensland, closing argument, defense counsel
In State
S.D.
(1930),
separate-
N.W. 395
three
stated:
brought to the
office and
ly
per-
sheriff’s
Finally,
agree
I asked
one
respective
mitted to inform their
families
my
right
voir dire is the
of the Defend-
by telephone
being
that on account of
ant,
has, not to
again any
jury they
would be unable to
home.
infer-
take the
There can be no
stand.
It was shown
affidavits of the
the fact that he does
ence drawn from
did not talk about the case. We
weight
not. That has no
whatsoever
that,
procedure
improp-
held
while this
your
completely
deliberations.
disre-
So
er,
any prejudice
showing disspelled
gard
discussing
that fact in
this case
the defendant.
room.
morning following
overnight
On the
partici-
with counsel
The state’s
then addressed
an examination under
pating, conducted
jury as follows:
juror.
jurors’
oath of each
Based on the
Now there has been much said about the
*4
the
testimony,
court concluded that the
taking
the stand. That is an
obeyed
ors had
its admonition not to discuss
inviolate rule that comments should not
anyone
prejudice
the case with
and that no
be made
the fact that the Defend-
resulted
party by
to either
virtue of the
ant has not taken the stand. But as
jurors’ separation
supervision.
recall,
subject
always
that
apparent
It is
that the
Defendant,
by the
the
raised
provided
make it
circumstances which
rea
hear me talk
State. You didn’t
about
sonably appear
jury might
the
have been
brought
that until
the Defendant has
improperly
influenced
others and the
True,
up.
that
no verdict of
should
irregularity
rеgarded
must therefore be
as
brought in because the Defendant
be
did
presumptively prejudicial. We further con
not take the stand. That’s true. But
clude, however,
showing
that the burden of
that,
having
driving
said
someone was
that no such influence has been exercised to
pickup
night
that
on the
prejudice
question.
the
of the defendant has been
sustained.
Honor,
Now—MR. JOHNSON: Your
I
object
would
here. I believе that is clear-
Appellant
the
attorney
also claims
state’s
inly
violation of the Court’s instruction
during closing
made
statements
argument.
dire,
making
about
comments and inferences
During the voir
defend-
agree
ant’s counsel
the
asked
to
about the fact that the Defendant did not
proposition
the
that
are not to infer
testify.
I
brought
up
realize I had
that
anything from
failure
defendant’s
to take
urge
sеveral different times
to
the
the witness stand.
acknowledge
to
the fact that —of
that
going
The
instruction.
believe this is
jury:
court instructed
further than that.
presumption
In this case the law raises no
defendant,
against
every pre-
but
prosecutor’s
While the
comments
sumption
of the law is
favor of his
improvident, they
came after counsel
innocence.
required
prove
He is not
clearly
for the dеfendant had
focused
innocent,
himself
put
evidence
jury’s attention on the fact of the defend
at all upon
subject.
The fact that
prosecutor’s
ant’s silence. Thus the
com
the defendant has not testified in this
nothing
ment on rebuttal added
to the im
him,
case raises no presumption again
pact created by defense counsel. State v.
and you
give
thought
must
to the fact
(S.D.1980).
Nachtigall,
The is affirmed. how, tell, And can pray these bailiffs supervise jurors go hither WOLLMAN, DUNN, J., J.,C. concur. thither about their individual activities? HENDERSON, how, JJ., Obviously, they pro- dis- cannot. And MORGAN jury system sent. integrity tect verdict, sanctity must the MORGAN, (dissenting). Justice when the bailiffs conduct themselves I respectfully dissent. tells the to all The decisions which the majority report morning? Obviously, the next predаte rely all amendment of helpless very bailiffs oath 1955,* amendment, my opinion, uphold through were sworn His clear subject interpretation. and not *5 decision, by blessing of Honor. This the act contrary The trial acted to the stat literally permits trial of judge, officers ute. The applied may bandaid afterwards the trial courts to their oath. violate authority comport of the older of One does not have to be a student however, they supersed have been opinions, nature that and human to know husbands legislative ed by the enactment. talk labors day wives about the and I would reverse and remand for new trial. thoughts the intimate of each other. reveal judge A trial can admonish a man or wom- HENDERSON, (dissenting). Justice case, to not even with discuss the his life judi- Bailiffs are an of integral part matе, but that admonishment little government. They keep cial branch of or- effect once husband and wife are practical der, officials, provide security for the court Again, home. privacy of their generally and attend the needs of the bailiffs, law, by are sworn to not state judge trial and the function jury. Their is mine), any person (emphasis includ- permit supervise judge every vital for trial can ing themselves, to communicate with the They a are the jury right facet of trial. decision again, and this causes the the judge. arm of oath. It is bailiffs violate their obvious Dakota, jury overnight, all bailiffs must be that a of sworn to do their duty contemplates, as embark statute is to dis- responsibilities their a supervising creetly permit ordinary privacies of Their is meaningful. serving oath solemn and it is jury women and men on a tо exist doubt, Without primary duty permit and also them rest. 23A- integrity bailiffs to insure the permit jury separation 25-5 does not a such thereby preserve sanctity and to contemplated by judge as the trial in this system verdict which our highest entire case or court of this state. Jurisprudence American is founded. Our The bailiffs are sworn “to them to- state law that one specifically requires or It gether.” is further evident that our lаw- (bailiffs) more officers must be sworn to separate, makers desired the not to * ch. 130. 1955 S.D.Sess.L. decision, literally legislates ment. This decision and contemplated by as is this for
such great doctrine question it was included in the statute in does violence to the powers. ration of As I review this decision supplied. that food and drink were to be judge, and motivation of the trial could I note that one of the male ex- unseen, rea- underlying, compelling and pressed open question court the his wife sup- purchasing son be to avoid the cost of indignantly posed separated when he from juries, particularly per lodging his fellow and went home: “Where so, lodging? If this the cost of in hell have been for this late?” Is this I remind the Bench and the Bar that type setting statute contem- economy, expe- is not business of the courts “convenient,” i.e., plates, “private,” justice. Hypo- diency efficiency —it “under of the officer or offi- thetically, the rule be different for should help as to ponder cers”? One cannot but eluding police (misdemeanor) a case vehicle juror’s whether this male “deliberation” than a (felony)? murder case I think not. peaceful and meditative. I further right A to a fair trial is аs fundamental in a note he was the foreman. felony Surely, misdemeanor case as a case. danger An illustration of the separa- murder, if a man were trial for the new tion supervision, such we see (blessed now) go instruction of “let’s all case, spawned by a violation of the to bed and do not talk about question, may statute in be seen in a tele- anyone” this case to would be used hesitat- phone call a wife of a defense witness. ingly. vigilant judge A would flinch Marilyn One telephoned juror Nelson a at an majority instruction the blesses for friend, Rogers. Enid These two ladies were improper juror. fear of communication to a involved in the same church circle. The just And blessing what is to restrict this juror a prepared handwritten memo of the morning? Fatigue a late hour in the could conversation gave to the bailiff. upon jury come at five o’clock. phone place call took at 7:50 a. Brothers, My dangerous precedent this is a approximately two hours before the judges, and will come back to haunt rejoined thereupon took one hour and cannot, juries, and this and will Court. thirty-seven minutes to reach a verdict. not, join permits creeping decision The memo follows: improper encroachment of influence oth- *6 ers
Marilyn upon jury. tampers I This decision Nelson: didn’t know how late you jury everything heart and soul of a up were so I wanted until to wait impartial body that it stands for: an to be up kids were and around influence, free improper of free of distur- Rogers: Late Enid bances free annoyances, calmly (decide Marilyn: you finish?)? Did or deliberate, collectively just and to render a Enid: No -so I can’t (talking continue — presented verdict under the evidence with- etc) out the hubbub of the home milieu or else- Marilyn: I understand because I was on. where. A man’s mind often reflects the When will —? color of his environment. Enid: I don’t know. Appellant’s stay motion execution of Marilyn: today? Later (6 sentencing imposed months Enid: I know— don’t fine), Spink County jail and a $300 Mаrilyn: goodbye— Ok court, denied the trial the same court My point jury is that unsupervised it discharge which did not after reachable readily and more accessible to was informed the was deadlocked. contamination. m.; p. The deadlock was at 9:25 at 12:35 a. decision, effect, verdict; This repeals m., thereup- there was still For, indeed, Morgan court, 23A-25-5. as Justice expression on without one оut, points the majority relies deci- either the state’s or defense coun- sel, sions antedating the 1955 amend- summarily announced its decision to
895 when are out sequestration rule. of whether as a mandatory violate the vigorously objected Defense counsel to this group individually, appears given. abe morning procedure. During early hours opin- Id. way majority And there is no then, dismissal, after their sоme of phrase ion can write around this “under the voted for a changed ors their minds and supervision of the officer or officers.” For, reconvening verdict. after at a trial is the stage The most critical morning, following 10:00 a. deliberation of the It is the American reported 11:37 a. m. the bailiff that the system justice at work. I would not had reached verdict. The record shows Therefore, denigrated. suffer to be totally unsupervised respectfully dissent and would reverse the for a of nine period hours. was not a a new judgment grant of conviction and trivial, Steensland, momentary separation. trial. majority, inapposite. cited in the “There is no definite rule which to
measure error and each case
must be decided on its own facts.” State 390, 396,
Reddington, 80 S.D. 125 N.W.2d
58, Under the facts of this procedure permitting
go unsupervised apparently for nine hours
tipped justice against ap- the scales of for,
pellant when the jury left the court- In the Matter of the ESTATE OF house, deadlocked; the jury was on the MODDE, Charles T. Deceased. following morning, ap- convicted pellant. 533, Pirkey, 24 S.D. No. 13596. 536, 713, (1910), 124 N.W. we said: “Prejudicial error is such error as in all Supreme Court of Dakota. probability produced must have some effect trial, May Considered on Briefs 1982. namely, the final result of the the verdict of the jury.” Sept. Decided many Separa-
There are cases cited under
tion in Criminal Case after Submis- Cases,
sion of Cause —Modern 72 A.L.R.3d (1976), pertaining general issue
discussed in the majority minority opin-
ions. reading A fair of this exhaustive brings
treatise one to the conclusion that holdings wording case turn on the *7 Considering statute in each state. specific absolutely
state’s statute which jury by
mandates
officers the jury’s separation, this dis- by respectable authority
sent is backed
the collection of cases therein contained.
But, specifically, appears my view-
point overwhelming majority follows the
rule where are under the direct
supervision or custody of the court officers
when the permitted
rate. 72 A.L.R.3d required kept to be in custo- an officer or times
dy of officers all