State v. Moriarty
501 N.W.2d 352
S.D.
1993
Check Treatment

*1 performed tenant in common with the Dakota, consent the other ten Plaintiff STATE of South Likewise, joint Appellee, one of

ants. two “[i]f partic lease without the tenants executes a other, it ipation of the will be deemed to be Booth, both.”

for the benefit of MORIARTY, John Francis Defendant Bruce, (quoting Reiger N.E.2d at 621 Appellant. (1944)). Ill.App. 689, 54 N.E.2d 770 17900. No. remaining “Acceptance by the co-tenants of benefits or under a lease executed rents Supreme of South Dakota. Court one co-tenant constitutes ratification of the Tea, F.Supp. lease.” Jewel 925. 13, Briefs Jan. Considered on 2, Decided June Whether Joan knew of the lease to Wagner Likewise, question is a fact. question

is a of fact whether she received Wag rent or from the lease to benefit Markets, Fairway Sharp,

ner. Inc. v. See 814, (Fla.Dist.Ct.App.1971)

252 So.2d

(questions genuine material fact as to joint had authority

whether tenant to act joint

on behalf of other tenants in execut

ing agreement joint lease whether ten subsequently agreement).

ants ratified questions fact

These should be resolved inappropriate and are sum Id.;

mary judgment. Wilson v. Great N. Co.,

Ry. 83 S.D. (1968). We therefore conclude that Joan improperly granted

was either summary

judgment party or dismissal as a accordingly

lawsuit and reverse and re

mand for a trial the merits.

MILLER, C.J., and WUEST and

SABERS, JJ., concur. J.,

HENDERSON, deeming himself

disqualified, participate.

When S.M. was interviewed Amanda Loving (Loving), social worker for Child Services, Protection Loving she told she had been sodomized on at least two Barnett, Atty. Gen., Mark Charles D. by Moriarty occasions engage forced to *3 Atty. Gen., Pierre, McGuigan, Asst. copulation. in oral Dr. Brent Willman plaintiff appellee. (Willman), pediatrician at Central Plains Allen, Wilka, Haverly Hagen, Rita Clinic, physical examined S.M. for evidence Archer, Falls, Schreier & Sioux for defen- vaginal penetration, sodomy copula- appellant. dant and physical tion. No rape evidence of found. SABERS, Justice. 6, 1991, Moriarty On June was indicted Defendant, (Mor- Moriarty John Francis by Jury Rape a Grand on one count of

iarty) appeals rape his conviction of in the Degree. Following day Second a three degree. second trial, guilty he was found rape degree the second and sentenced to serve FACTS seventy-five years, twenty-five sus- evening early May, On an S.M.’s pended on the condition that he never re- leaving S.M., mother girl left for work side years with children under fifteen age eight, siblings and her two under the age. care stepfather, Moriarty. of S.M.’s Moriarty mother had left with instructions Moriarty appeal. raises six issues on evening. to wash hair S.M.’s that Accord- 1. Whether his confrontation clause ing S.M., Moriarty took a bath that rights by were violated hearsay night, he get asked S.M. to into the bathtub testimony babysitter, Leah De- required with him. S.M. was to wash Mor- Wald. iarty’s chest, stomach, penis. and erect 2. Whether his confrontation clause Moriarty vaginal rubbed S.M.’s area. The rights were hearsay violated following day, S.M. told her mother that testimony of Cummings. Candice she had Moriarty. taken a bath with It later, approximately days five howev- 3. Whether of Candice er, when S.M. told her mother that she had Cummings province invaded the been required Moriarty to wash and that jury. penis “hard, gross.” ... Because prosecutor 4. Whether the engaged in the mother anything hap- did not think had prosecutorial ques- misconduct when pened, pursue she did not it further. tioning Dr. Willman in violation of month, Later that babysit- S.M. told her Moriarty’s confrontation clause ter, (DeWald), Leah DeWald that she had rights. anally raped stepfather, her Mor- prosecutor 5. Whether the engaged in iarty. In explaining allegations to De- by securing misconduct Wald, pictures S.M. drew a number the absences of family S.M.’s mem- kept. DeWald pictures Two of the during bers her testimony and then subsequently entered into evidence. making reference to this absence in DeWald pictures friend, showed the to a closing argument. Nicole Cummings, mother, who told her Cummings Candice 6. Whether (Cummings), a the trial court social abused its Family Services, worker with discretion in prohibiting Moriarty’s about pictures. expert DeWald presenting showed from following morning, May concerning the behavioral character- 14, 1991, Cummings reported what she had istics of sexually abused child and Services, learned to Protective Department in prohibiting expert pre- from of Social Services. senting specific case trial, provisions provided the of SDCL 19- Hearsay of DeWald. Buller, are met.” 16-382 argues his confronta (citations tion clause were violated omitted). requires SDCL 19-16-38 notice babysitter, Leah proponent of the of intent statement even claims DeWald. particulars to offer the statement and the testimony constituted though DeWald’s it, hearing, presence of and a outside the in the State’s hearsay, she was named jury, find suffi- court must Hearsay of Intent to Offer State Notice reliability. indicia of cient Ten, Under nor was ments of Child hearing reliability requisite determine The State that while DeWald was conducted, and this his confronta not named State’s Notice Intent rights. clause tion *4 Statements, Hearsay Moriarty had Offer only Moriarty notice. The sufficient notice evidentiary rulings on the ba- review We hearsay was that statements from to dis- received of abuse of discretion. “For us sis if evidentiary circuit DeWald would be offered into evidence rulings of the turb the declarant, S.M., court, of Since must determine that an abuse was unavailable. again, an at the has occurred. S.M. testified trial she was available. discretion Once Therefore, of discretion to a discretion this “notice” could character- abuse refers be justified purpose to an end or not exercised ized as “conditional” at best. clearly against and evi- by, and reason Additionally, the trial court failed to con- DeVall, dence.” 489 N.W.2d State hearing presence outside duct a (citations omitted). (S.D.1992) jury or “make a determination on the rec- Initially, argues the State trial that of prior ord to sufficient indicia object to the of DeWald

failed pre- reliability existed within the evidence pre- the issue at trial1 and has not been required by 19-16-38. sented” as SDCL This is incorrect. The trial court served. Buller, N.W.2d at objection did not address his at the time requires a confrontation clause [T]he trial, how- DeWald testified. Later reliability finding of sufficient indicia of ever, acknowledged Moriarty’s the court hearsay even if the for the statements at the object desire to time of DeWald’s is available for cross-examina- declarant objection and allowed the to be tion. if made at that time as it had been made at requested. originally the time Because already court had allowed DeWald to testi- reliability requirement indicia of [T]he

fy, ruling objection clearly a (1) ways: met in two where can be denial. firmly fall within rooted a sup- exception (2) or it is Next, hearsay the State that the testimo- showing particularized a ported by under SDCL ny of DeWald admissible guarantees of trustworthiness. 19-16-38. “Out-of-court statements a rooted firmly is not minor sexual abuse victim are admissible 19-16-38 (2) Appellate The child either: counsel not trial counsel. (a) proceedings; at the or Testifies (b) a witness. provides: Is unavailable as 2. SDCL 19-16-38 However, wit- child as a if the is unavailable age A statement made a child under the ness, only may if statement be admitted such describing any rape act of or ten performed sexual contact of the act. is corroborative evidence there another, by. with or on not the child may be admitted under No statement admissible is otherwise statute or court proponent of the statement section unless proceedings evidence admissible in in criminal to offer the state- known his intention makes against any proceeding the defendant or un- it, including particulars ment and chapter in the der courts of this state if: ad- finds, declarant (1) name and address hearing The court in a conducted sufficiently time, party of the trial presence jury, verse in advance outside the hearing provide party with a fair the adverse content and statement circumstances of the prepare provide reliability; opportunity the statement. sufficient to meet indicia of prior statement was made to the time the satisfy the con- exception. falsify the state- arose. requirement, supposed motive frontation clause showing supported ments must be 295, 296 Thompson, guarantees of trustwor- particularized (citation omitted); DeVall, totality of the circum- from the thiness (citations omitted). making of the surrounding the stances not claim that the testimo- does statements. S.M.’s ny of DeWald was inconsistent with omitted.) (Citations testimony on direct examination as findings argues that sufficient The State Ager. (“Consistency prior consistent grand in the rec- reliability existed require not rec- statements does verbatim during grand jury proceeding, A ords. the witness’ What itation of presence is not al- which the defendant's require prior is that the con- the test does lowed, statutorily for the not a substitute with, compatible statement be sistent pro- hearing, nor does it alone mandated to, contradictory testimo- witness’ reliability. requisite indicia of vide the ny.” 872- Ager, State v. firmly hear- is not a rooted SDCL 19-16-38 (S.D.1987)). deny Nor does he that he way in say exception. only attempted impeach during cross- reliability requirement could be indicia of grand jury testimony, examination with her *5 showing reliability. This met a was (“SDCL key issue in DeVall. Therefore, must re- was never done. 19-16-2(2) requires impeachment of the unless this verse on this issue precondition admissibility.” to witness as a prior consistent state- was admissible as a (citations DeVall, 489 N.W.2d at 376 omit- ment. ted).) the first and second con- Rather, Moriarty argues ditions are met. appeal that De- The State that the failed the third condition of prior testimony was admissible as a Wald’s falsify motive to the test because S.M.’s under SDCL 19-16-2 consistent statement 1987, early Moriarty mar- arose as as when (2).3 rejection of a “The admission or He the consis- ried S.M.’s mother. claims prior is within the consistent statement made after the mo- tent statements were sound of the trial court and will discretion arose, falsify makes them tive to which except there has not be disturbed hearsay. as inadmissible See State of discretion.” abuse Younger, 453 N.W.2d Feather, F.2d v. Red United States falsify, was fear (alleged motive to (8th Cir.1989) (citations omitted). harm, rapists’ threats of further arose consistent statement prior Before a rape, making contemporaneously with the nonhearsay qualify as under the will subsequent inadmissible all proponent must demonstrate the excluded). hearsay and First, must show the things. three he According Moriarty, to S.M. was resent- prior is consistent consistent statement disciplining him in role as the ful of with the witness’ in-court Second, support, Moriarty claims stepfather. he must state establish express or her mother that she hated it being ment is an S.M. advised used rebut Moriarty spanked glad her and implied charge against the of when witness State, the he out of the home. The improper recent fabrication or motive or prior consistent state- proponent proponent must of the Finally, influence. the ment, demonstrating consistent the burden of prior demonstrate that the bears 19-16-2(2) against improper provides: him of recent fabrication or 3. SDCL motive[.] influence or declarant A statement is not if the hearing subject to testifies at the trial or and is statement, concerning cross-examination and the statement is the (2) with his and is of- consistent charge express implied fered to rebut an or Moriarty argues drawn that Cum- prior statement was

“that consistent mings’ testimony violated his confrontation supposed motive prior to time made she clause because was not named in falsify Thompson, arose.” Hearsay of Intent to Offer Notice (citation omitted). The trial court of Child Under Ten and the Statements if attempt determine “made no finding court did make a as to whether to fabricate and to might have motive reli- the statements had sufficient indicia of whether the statements evaluate ability. improper or after such motive made before Carlson, arose.” State Moriarty’s objection Following on hear- (S.D.1986)(citation omitted). “This de- grounds, in- say gave the trial court an at the is better made time termination limiting purpose struction for which offered, or at motion to the evidence According received. evidence could be suppress proper questions can court, trial the evidence re- could be responses of the witness- be asked purpose ceived “for the limited that —as a judge before admit- es observed trial her, daughter result said to what evidence.” ting suppressing did, Carl- what, if she for that anything, (citation omitted). son, 392 N.W.2d at 91-92 purpose only.” (“Bolstering-type neighbor of a Although easily the State could have alleged in sexual abuse case victim a by limiting the an- problem avoided this erroneously given prior admitted when taken, we fail find an swer the action complainant, purpose abuse discretion. Because the trial court without determination for which could the testi- receive allegedly consistent state- of whether limited, “in mony was it was not received were made or after the com- ments before matter prove the truth of the evidence to had a fabricate.” plainant motive to John asserted,” 19-16-1(3), namely that *6 Larson, Evidence South Dakota 801.- W. § raped by stepfather. had her (1991) (citing Carlson, 2[1], at 552-53 392 Therefore, hearsay. it was not inadmissible 91-92).) N.W.2d Payne, 944 F.2d States v. United (9th Cir.1991). admitting court in The trial erred making the of DeWald without Cummings’ testimony con- A of review proper determination as to the basis cerning pictures by S.M. the two drawn 19-16-2(2). under admission SDCL Carl- also fails to indicate an abuse of discretion. son, we 392 at 92.4 Cummings’ testimony merely identified Issue l.5 The fol- reverse and remand on brought by De- drawings to her that were lowing give guid- are issues discussed depicted Be- thereon. Wald what to the bench on retrial. ance and bar go be- Cummings cause these yond identifying what was drawn on Cummings. Hearsay testimony 2. pictures displayed then two that were jury, find no abuse of discretion. we Cummings, a social Candice worker specializes working in with who victims of province Cummings’ and the assault, testify, sexual was allowed over of the jury. objection, about conversation with her im Moriarty alleges daughter she learned S.M.’s alle the State Cummings pur- for the sole properly and the of the called gations content Miller, (9th Cir.1989) four-year-old male sexual made victim of 4. See U.S. v. F.2d 1255 Court, (Circuit concluding any motive to ad abuse to worker could be a social services prior mitted, 19-16-2(2) at the of the (801(d)(1)(B)), fabricate time consistent per speculative, noted that District statement express prior statements rebut an consistent prior Court had allowed the consistent state- fabrication, implied provid charge of recent spontaneous determining ment after that it was justify developed ed the admission." are facts arose.) made before motive to fabricate Larson, § John W. Dakota Evidence 801.- South 2(1], added) (1991) (citing (emphasis Logue, In State v. South Su Dakota “[t]he 1985)). (S.D. Logue, State v. retrial, preme on Court ruled that pose bolstering credibility, you any S.M.’s there- “Did describe to instances by invading province jury. any type This of of sexual abuse with her court that: stated Butter [stepjfather?” Moriarty argues that this subsequent question, which did trial court has broad discretion con- [t]he to, object strike,

cerning qualification experts nor move to expert the Court’s motion in preju- admission of limine and was plain trial court’s decision as to such dicial within the error matters rule. appeal not be will reversed absent a We will not review a ap matter on showing clear of abuse of that discretion. peal proper objections unless were made (citation omitted). 484 N.W.2d at 888 Watt, before trial court. State v. portion Cummings’ testimony (S.D.1992)(citations omit claims resulted an inva- ted). defects, however, Errors or affecting province sion of the of the was when rights, may substantial although be noticed Cummings was asked what action she they brought were not to the attention of necessary upon found it to take based her 23A-44-15, Wall, court. SDCL daughter discussion with and her “However, N.W.2d at 265. employ this pictures. friends re- only exceptional eases, rule then, sponded report- that she felt it needed to be employed cautiously; the rule does not support ed to Social Services. of his encompass every error which occurs at tri claim, Moriarty cites to v. Logue, 372 al, only but those errors which are both N.W.2d 151 Logue found the (Citation obvious and substantial.” Id. opinion admission of a social worker’s as to omitted.) the source of a victim’s sexual No hard and fast rules exist which state objectionable because it embraced the ulti- certainty prosecutorial mis- mate issue of fact and it lent an undue conduct reaches a prejudicial level of er- stamp legitimacy ror which demands reversal of the con- victim. Id. at 156-58. trial; viction and a new each case must Cummings’ testimony was offered mere- be decided on its own facts. ly to observing show what she did after (citations omitted). drawings, the chain of events that led to Although miscon reporting allegations these to Social duct does not rise to the level of *7 Services. did not testify that plain error, or it comes close. The sub the source of S.M.’s sexual was stance of Dr. Willman’s was that rape the by stepfather her in Logue. as physical no rape evidence of was found. In We find no abuse of discretion in allowing view of the pretrial caution, trial court’s the testimony of Cummings. prosecutor the should not have asked questions pertaining identity, much less 4. Questioning and testimony of Dr. Will- the follow-up question concerning “instanc man. es of sexual [stepjfather.” abuse with her The trial court determined at the motions This clearly attempt was an pro to solicit hearing that the doctor should be cautioned hearsay. hibited prejudicial answer, No not to identity person reveal the of the who however, forthcoming identity as 5.M. claimed Despite abused her. that cau- never in issue in the case. Payne, See tion, prosecutor the asked Dr Willman at F.2d at 1473 (hearsay testimony regarding “Now, this, trial: you let me ask without identity the of the defendant held harmless who, identifying able to identi- identity defendant’s and victim’s ty person sexually that had abused identification of defendant as her molester her?” Dr. responded Willman “Yes. She issue). were not seriously in said her stepfather.” Despite this re- sponse by Willman, Dr. Moriarty did not Moriarty further that object or move to strike response. testimony of Dr. Willman violated his con Shortly thereafter, prosecutor asked: frontation rights. clause Dr. Willman’s prejudicial to rise to the level of firmly ciently generally within a falls plain (improper state- hearsay exception. error. Id. See rooted attorney made assistant ments state’s purposes medi- made for Statements during closing arguments deprive describing and diagnosis or treatment cal trial.) right to fair De- of his a defendant present symp- history, past or or medical misconduct, defense counsel must re- spite sensation, toms, inception pain, or or attentive to his task. He should ob- main or ex- general or character of cause unsuccessful, ject If and move to strike. not excluded ternal source thereof are may move for a mistrial as he need to reasonably perti- far 19-16-4 so as § treatment, Shepley. Id. at 298. Addition- diagnosis required nent or even already granted though ally, is we have new trial the declarant available grant there no reason to second witness. one. 19-16-8; Orelup, State v. 101, 105 these since some of testimony by Moriarty’s Prohibition of reasonably pertinent diagnosis expert. treatment, they were admissible. See Or Moriarty argues Finally, that at 106. “Statements elup, its trial court discretion when abused primarily this kind are admissible expert, testimony from his Dr. prohibited happened rather than what concerned with Underwager, consulting psychol a licensed (citations omitted). did who it.” ogist and director the “Institute during clos- Prosecutorial misconduct Northfield, Therapies” in Psychological ing argument. Minnesota. prosecu contends Underwager Dr. was allowed While closing argument during tor’s statement learned testify as the difference between single person that “there hasn’t been one prohibited cognitive memory, he was her family that stood behind [or] [S.M.’s] concerning the presenting testimony from here to shoulder with her walked shoulder sexually of a characteristics behavioral miscon court” constituted case-specific giving child testi- abused prosecutor’s it was the own duct because ruling court made this mony. trial kept subpoenas that the mother and potential Underwager’s hearing Dr. after grandparents out of the courtroom. While presence jury. of the out object that he did not admits prohibited trial court closing he argument, State’s contends reach the it would concern because and comment constituted conduct issue, had been whether S.M. ultimate error, affecting his substantial thereby invading stepfather, raped should, therefore, be noticed jury. province of rule. plain under error this court *8 regarding the “A trial court’s decision 23A-44-15. experts and admission qualification of recognized plain error “We have only will be reversed testimony their of cases, only exceptional then it in and but showing of an abuse of discretion.” upon a does applied cautiously. rule must be 596, Spaans, 455 N.W.2d v. State at every error that occurs encompass not (citation omitted). admitting (S.D.1990) trial, only those which are both but errors determining testimony, the factor is expert Shep and substantial.” State v. obvious in jury under- it assist the “whether would (cita 294, 440 298 ley, normally not standing that would matters omitted). by pros This statement tions of breadth knowl- layman’s lie within Particularly light in improper. ecutor was Bachman, 446 N.W.2d edge.” subpoenas kept the the fact that his own of 271, though do family sequestered. Even we conduct, Spaans that the trial do held encourage type this of we Court not in allow- suffi- court did not its discretion prosecutor’s not find the misconduct abuse testify HENDERSON, to ing expert (concurring when the Justice re- State’s in sult). briefly testimony “only gen- discussed the sexually eral of abused chil- characteristics 1, outright With issue I concur. There Spaans, dren.” 455 N.W.2d at 599. The being a reversal this conviction of on issue testimony general in remained Spaans and 1, 2, my concern for treatment of issues go directly the ultimate issue of 3, 4, 5, mooted, be not and 6 would were it credibility. jury was left “The to draw its for the fact those that issues are all treat- whether own conclusions about the behav- ed, full, apparently give guidance characteristics, ior these of the children fit upon the Bench and Bar retrial. and, so, if it was caused ... .whether 2, disagree hearsay On issue I that the Bachman, sexual abuse.” Id. See also testimony Cummings of not Candice did 275, sharply 446 N.W.2d at divided violate Moriarty’s confrontation clause upheld court the decision the trial court rights. Essentially, I disagree because allowing testify, experts majority Cummings concerning Candice testified

noting experts simply shared their her, what her told child had about some knowledge jury expert and neither with the thing said, regarding two other children issue, testified as to the ultimate that the what doing S.M. had said children had molested the defen- S.M. much hearsay This is too me to they telling dant or that the truth. lawyers judges, swallow! As and can While it an abuse discretion not tolerate this kind of evidence. Particu prohibit case-specific for the trial court to larly disturbing Cummings Candice testimony if such would have never, time, interviewed S.M. This issue, questiona- reached the it is ultimate Moriarty’s rights set ble whether of the behavioral forth in Wright, Idaho U.S. sexually characteristics of abused children (1990). S.Ct. 111 L.Ed.2d 638 Such “layman’s lies within a breadth of knowl- type hearsay upon evidence also edge.” Therefore, may have been an holdings Buller, violates our in State v. prohibit testimony by abuse discretion to (S.D.1992); 484 N.W.2d 883 expert in this area. Because we re- (S.D.1992); Floody, 481 One, verse and Issue remand on we caution R.S.S., (S.D. Matter 474 N.W.2d 743 judge the trial to review cases careful- 1991). ly, Solem, especially McCafferty v. On issue of Candice (S.D.1989), rulings. N.W.2d 590 and related Cummings province invaded remand, On court the trial is instructed to Moriarty’s also under the con- conducting his portion use discretion in this Cummings frontation permit- clause. discussion, light pro- trial in this testify explain ted to that which she viding Moriarty opportuni- the same perceived was contained certain presentation expert ties During phase drawn this that we have afforded State under simi- testimony, Candice testified lar circumstances. upon perception based of these pictures, report she had to scenario MILLER, C.J., AMUNDSON, J., testimony might Protective Services. This concur. possibly have had prosecu- survived not the tor opening made an statement which as- WUEST, J., specially. concurs sumed placed facts which should not be *9 HENDERSON, J., evidence. These remarks concurs in included: “And result. Cummings] she primarily works [Candice WUEST, (concurring specially). Justice her field as a social worker with victims join I majority opinion crimes, the on Issue 1 and sexual sexual abuse victims both therefore I express vote to reverse. no adult and children. And she knew what opinion on added). the other issues discussed in the the (Emphasis meant.” majority opinion. purpose opening argument The advo-

361 grandparents out testimony, kept the mother picture cacy, joined was ploy all a credibility of This was S.M.’s of the calculated to bolster courtroom. Remember, methods, tiny girls. three calculated to engage improper statements to Cummings nev- germane fact: Candice conviction. We can- produce an unlawful Permitting this hear- er interviewed type conduct. v. not tolerate such State upon hearsay an abuse of say evidence was Blaine, (S.D.1988). 113 I 427 N.W.2d Bawdon, v. discretion. State plain rule. error SDCL would invoke (S.D.1986). 484, 486 23A-44-15; Brammer, State v. (S.D.1981). suggest N.W.2d 111 I would of issue disagree I also treatment sharpen state counsel in this defense testimony Dr. Willman. concerning reading up practice by their v. legal State ruling judge, the trial In all fairness to Kidd, 120, 123 testimony could specific in that be J., (Henderson, concurring specially) as the child had sexual elicited as to whether Handy, but Dr. Willman as 450 N.W.2d 434 abuse characteristics well words, say by not whom the characteristics In trial counsel could other Notwithstanding, Dr. perpetrated. hope record not that the proper make “Yes, step said her testified: she Hope Willman plain rule will be invoked. error Therefore, the witness father.” appellate might succeed level but that, order. It is true judge’s trial will, good providing the error is record initially, attempted to abide prosecutor “obvious” and “substantial.” However, order. judge’s the trial asking onward several prosecutor plunged get

questions try to the witness iden

tify Moriarty perpetrator. Finally, as prosecutor Willman: “Did asked Dr. you any instance of describe to

[S.M.] [stepjfa-

type sexual abuse with Thereupon, Dr. identified

ther?” Willman Moriarty. prosecutor The knew better. WOUDE, Donna Donna VANDER n/k/a he He wanted to win the case. And elevat Appellee, Jones, Plaintiff and winning playing by fair rules. This ed over position has oft-over that a Court taken judge’s concerning the trial orders conduct WOUDE, Defendant Robert VANDER obeyed. Gage, a trial must be Appellant. (S.D.1981). Direct 302 N.W.2d 793 viola “contemptible of a court’s order is tion trial No. 17927. Id. This inexcusable.” Dakota. Supreme Court of South extent conduct was misconduct to such requiring re there error exists Argued Jan. A of the conviction and a new trial. versal Decided June error which must be both “ob plain is one to come within its vious” “substantive” R.R., People

ambit. Interest of (S.D.1989)(citing State v. (S.D.1986)).

Dornbusch, N.W.2d 682 plain 23A-44-15 error applied.

should be argument prosecutor’s closing

ethically so rank. It was bad deliberation, note, after follows:

sent present have

“Could mother majority was on the stand?” As detailed, prosecutor has who