State v. Smith, 599 N.W.2d 344

State v. Smith

599 N.W.2d 344

S.D.

1999

Check Treatment

*1 Dakota, Plaintiff STATE Appellee, SMITH, Sr., Edgar

Bruce Defendant Appellant.

No. 20384.

Supreme Court of South Dakota. on Briefs March 1999.

Considered

Decided June

sons, B.S. born and S.S. born in In the summer of 1994 the family Custer, moved to South Dakota from Colo- September they rado. moved to Lead, Dakota, exception with the S.S. He had been sent live with his mother as Doris found out preg- N.F. was nant and believed S.S. to be the father. prior family’s pregnant N.F. became to the *4 child, departure from Colorado. N.F.’s C.S., 13,1995. February was born Doris filed a CHINS1 petition to have N.F. admitted to Our Home, Parkston, group facility in Dakota. continuing N.F. was to have a S.S., relationship sexual wishes of and Doris. she Smith While was Home, at Our she confided in a counselor repeatedly had molested her. Smith The counselor turned this information over to law enforcement. N.F. [¶ 5.] When the officers interviewed Barnett, General, Frank Attоrney Mark by she told them the sexual abuse Smith General, Attorney Assistant Geaghan, first, when 12. At began she was Smith

Pierre, plaintiff appellee. for “private parts.” her He began to touch places took her in van to outside next his Adams, Deadwood, E. for de- Thomas town and her remove her clothes. of made appellant. fendant and uncooperative. was He then threat- She stating ened her she would never see her GILBERTSON, Justice again if she did mother little sisters2 (Smith) Sr., Smith, Edgar Bruce [¶ cooperate. attempted He to have sex- twenty-five rape counts of was indicted on with her but was unsuc- ual intercourse (forcible 22-22-1(2) in violation of SDCL her she cessful due to small size. When rape in violation rape) or in the alternative family in Ash- living was 13 and the was 22-22-1(5) rape) (statutory SDCL land, Wisconsin, had in- successfully Smith contact with a minor violation sexual for time. For tercourse with N.F. the first 22-4-1. Fol- 22-22-7 and SDCL SDCL reported, N.F. years, the next few Smith trial, guilty of lowing jury he was found or oral sex with her had sexual intercourse rape. eighteen counts of forcible Smith daily N.F. claims Smith on almost basis. affirm. appeals. We anyone, threatening told her not to tell her threatening her unborn child. and later AND FACTS PROCEDURE told her N.F. told officers that she had becoming she was worried about was married to Doris Smith mother 2.] Smith (Doris) child, At that time her mother re- pregnant. Doris had one N.F. 1989. worry “you don’t have much to plied: in 1980. had two who was born Smith actually daughters, but the Supervision, Doris had three SDCL 26-8B- 2. 1. Child in Need with their father. other two lived 1—SDCL 26-8B-9. completely guilty Bruce is almost found Smith on about because eighteen rape counts of forcible violation sterile.” 22-22-1(2). A trial to the court SDCL Deputy November [¶ 6.] On subsequently held on the habitual of- (Russell) and Sheriff Duane Russell DCI charge adjudicated fender Smith was (Mueller) Mueller contacted Agent Dave a habitual offender. He was sentenced to Deadwood, room in Smith his hotel (20) twenty years 18 terms of each with They asked that he come South Dakota. five of those sentences to be consecutive questions to the Sheriffs Office answer and the remainder to be concurrent. stepdaughter. his Doris drove about appeals raising the follow- where he was Smith to the Sheriffs Office ing issues: interviewеd. per- the trial court erred in Whether given Miranda Smith was his mitting testimony “other bad acts” warning began. before the interview He DNA allowing showing rights indicated he understood his and was the father of child. Smith was N.F.’s rights and allowed

willing to waive his 2. Whether the indictment failed to ad- proceed. interview to Smith denied hav- *5 apprise the equately Smith of crimes relationship ing any type of sexual with charged right in violation of his to N.F. “full of N.F. He stated was shit” and process. due relationship if he did have a sexual N.F. he would “blow head off.” He [his] in 3. Whether the trial court erred de- however, did, police relate to the a dream nying suppress Smith’s motion to N.F. involving he had He had dreamed he statements he made to law enforce- “her I gone was drunk and had ment officers. officers he later bed.” He told asked Dor- prosecutor 4. Whether the committed sex, if N.F. had he and ever had prosecutorial in misconduct the clos- replied, “you

which she never had sex with ing arguments. her, you?” During did the interview he agree did to take a DNA test to the prove AND ANALYSIS DECISION paternity of C.S. 1. the Whether trial court erred [¶ 12.] February Deputy [¶ 8.] On allowing in “other bad acts” testi- Russell obtained a search warrant to ob- mony by allowing DNA evidence sample pur- tain a from blood Smith. The showing Smith was the father of sample pose compare of the was to the N.F.’s child. DNA of son DNA. N.F.’s C.S. Smith’s again given warning. He was his Miranda recently We stated our standard rights He invoked his and declined to an- evidentiary of review for a trial court’s any questions. swer Russell asked no fur- in rulings Kennedy: Veeder v. questions. walking ther When he was Evidentiary by rulings made the trial department, down the hall at the Sheriffs presumed court are correct and are re- Russell, spontaneously Smith stated to viewed under an abuse of discretion I I going am to do if am the father ‘What Oster, n standard. v. State of that child?” (S.D.1993). 305, 309 The test is not The results of the DNA test whether we would have made the same judicial ruling, showed S.S. could be the father but whether we believe a However, mind, there was a chance in view of law and circum- child. 99.9% stances, reasonably A Smith was the father of C.S. second test could have reached produced Rufener, was conducted. It the same re- conclusion. v. same State (S.D.1986). sults. N.W.2d ¶23, 41, Champagne, 589 intent. State v. 1999 SD N.W.2d Kennedy, Veeder (S.D.1988). Goodroad, 840, 843 When (citing considering 129). charge, sexual contact the State must 46, 9, 563 N.W.2d prove beyond reasonable doubt that the admitted “[N. The trial court perpetrator’s pro- intent was to “arouse or sexual (consisting relations sexual F.’s] gratification” duce in sexual himself or his intercourse) from the contact and sexual victim. Id. up including to and began time that it first preceding Sieler, the acts immediately acts State v. (S.D.1986), trial court claims the charged.” upheld Smith N.W.2d 89 we admis it admitted into prior perpetrated by abused its discretion when sion of sexual acts evidence, upon daughter. this “other bad acts” father We did so be results, DNA which particular pаrt prior cause in acts identified a criminal to be the father of N.F.’s “course of continuous action.” Id. showed Smith probative It impregnated defining N.F. was towards child. Because family relationship. the nature of the Colorado, claims the results Roden, Likewise State v. test are not admissible under SDCL DNA (S.D.1986), (FedREvid 404(b)). upheld prior we bad acts 19-12-5 evidence which allowed admission of evi properly reviewed The trial court defendant, dence that who was (1) 404(b) making a deter- request rape fourteen-year-old of a charged with prior the relevance of the mination as to household, who resided in defendant’s girl to a material issue acts evidence previous repeatedly had on occasions identifying specific criteria case raped stepdaughter under similar cir are the basis for its admission which cumstances. We allowed the admission of *6 the probative the value of (2)weighing grounds evidence on the it defined the this effect. prejudicial its relationship young of the defendant ¶ Moeller, 60, 13, 548 v. 1996 State household. Id. at 671. Admis girls his Ondricek, 465, 472; v. 535 N.W.2d State prior bad acts is not limited to sion of (S.D.1995). 872, N.W.2d 873 in the statute as it those instances listed any tendency having [¶ 16.] “[E]vidence prefatory phrase pur the “for other uses any of that of to make the existence fact Dale, 98, poses.” State v. 439 N.W.2d 109 the consequence to the determination of (S.D.1989). prior Admission of this bad than probable probable action more or less evidence for the reasons set forth acts it without the evidence” is rele would be “purpose” the trial court is a under this 19-12-1; see also State v. vant. SDCL Sieler, 93; Roden, 397 statute. N.W.2d (S.D. McDonald, 492, 421 N.W.2d 494 at 671. 380 N.W.2d 1988). prior The trial court admitted the making finding After its of [¶ 19.] specific pur acts evidence for the limited ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍identifying which criteria relevance and “disclosing relationship of: the be pose admission, the trial court en justify its in parties, opportunity tween the the and process gaged balancing in the of ascer commit the clination of the Defendant to “danger prej the of unfair taining whether indictment, complained acts the substantially probative the outweighs udice charges.” to corroborate the of the avаil value of the ‘evidence view proof and other prove ability each of other means State must (Rule 403).” 19-12-3 every rape of both and sexual factors under SDCL element (S.D. 237, White, contact, 243 identity of the State v. 538 N.W.2d which included 1995). State, infliction Prejudice does not mean perpetrator. Thibodeau v. 298 (S.D.1980). opponent’s ease that 818, damage to the 819 Evidence N.W.2d probative force legitimate results from the charge that is relevant to the of sexual evidence; rather, it refers to the alleged perpetrator’s from the contact is 350 persuade charges, party tact there was no third the evidence

capacity of witnesses, semen, means. State v. Iron jury by illegitimate medical evidence or oth (S.D.1983) 372, Shell, 375 336 N.W.2d physical er evidence to establish the Graham, Wright K. Fed- (quoting C. & heightens pro crimes occurred. This § and Procedure 5215 at eral Practice prior bative value of the bad acts. Id. (1978)). 19-12-3 the 274-75 Under SDCL Werner, 482 N.W.2d at 290. See also admitted unless the trial court evidence is 229, Ingraham, United States v. 832 F.2d probative value is substan- finds that (1st Cir.1987), denied, 236-7 cert. 486 U.S. unfair tially outweighed by danger 1009, 1738, 108 S.Ct. 100 L.Ed.2d 202 Class, 29, v. 1997 SD prejudice. Lykken (1988). ¶ 308. See also J. Larson, § 403.1 South Dakota Evidence gave The trial court also (1991). Per 19-12-3 order to SDCL appropriate cautionary instruction setting evidence, the of unfair danger exclude the purpose forth the for which limited prejudice only outweigh pro- must pre evidence was admitted. It must be value, outweigh it it bative and must sub- in sumed the followed the court’s Rhines, stantially. v. 1996 SD State Lowther, struction. State v. ¶ White, 440; N.W.2d (S.D.1989). 747, 753-54 at 243. N.W.2d conclude that [¶ 23.] We the trial court significant A factor in bal did not abuse its discretion in admission of probative prejudicial ancing versus is fac prior acts evidence. Moeller, 60, 27, similarity. tual at 475. have focused on N.W.2d We Whether indictment (1) victims, important similar two criteria: adequately apprise failed to (2) v. similar crimes. See State Chris charged of the crimes in violation (S.D. 298, 301-02 topherson, 482 N.W.2d right process. of his to due 1992); Werner, N.W.2d State Perkins, (S.D.1992); 289-90 “An indictment is suffi (S.D.1989). victim Here the cient if it ‘contains the elements of the prior acts is the same for the bad charged apprises offense such that it *7 charged offenses. There is no other victim defendant with certainty reasonable of the prior in the acts evidence. involved The him, against accusations and it must en identical, rape and con offenses are sexual plead acquittal able him to an of conviction only prior tact. The difference is the acts as a bar to future prosecutions for ” in occurred Colorado and Wisconsin while Darby, same offense.’ State v. 1996 SD charges alleged before us are to have ¶ 8, 127, 311, (citing 556 N.W.2d 315 State County, in Da occurred Lawrence South 242, (S.D.1992); Floody, 481 246 N.W.2d Geography political kota. boundaries (S.D. Basker, 413, State v. 468 N.W.2d 416 a in are a distinction without difference 1991); Wurtz, Accord State v. 436 N.W.2d Sieler, such 397 cases as this. See N.W.2d 839, (S.D.1989); Logue, 843 State v. 372 (prior in Michigan). 89 bad acts occurred 151, (S.D.1985); 155 N.W.2d State v. Swal low, (S.D.1984)). 606, 350 in N.W.2d 608 The Another consideration 404(b) indictment was framed as a of five potential admission of evidence is series White, each, availability except counts worded the same for of other evidence. month, Septem N.W.2d at 243. The record us which advanced from 538 before rape January on and sexual con- through reveals both ber 1994 1995.3 Dakota, Sr., example: Edgar 3. For Bruce Smith 6-29-51, act accomplish D.O.B. did an of Count I: RAPE penetration person, sexual with another September, That on or about the of month force, 1994, Lawrence, through County namely, the use of [N.F.] in of State of ...

351 they clearly less are claims the indictment was erroneous.... [¶ 26.] Smith Becausе the This function under specificity. clearly and lacked court’s vague list exact times or did erroneous standard is to determine indictment tied” figuratively hands were places “his whether the decision the lower court an alibi defense provide “he could not support lacks the substantial evi- complains develop his witness.” He dence, or evolves an erroneous view from forty to raped claimed he her since N.F. whether, applicable law or consid- month, she should be fifty or more times record, ering the entire we are left with certainly. with identify days some able a definite and firm conviction that trial, raped her At claimed he had so N.F. making mistake has been made. this n many began times that the inсidents determination, in we review the evidence in her mind. together blend light most favorable to the trial court’s decision. provides: 23A-6-9 27.] SDCL [¶ precise ¶ at which an offense

The time 122, 16, Meyer, State v. 1998 SD need not be stated an was committed (citing N.W.2d 722-3 State v. Benal information, may but it be indictment ¶ lie, N.W.2d any committed at alleged to have been ¶ 142, 8, (citing Dreps, thereof, except filing time before the 341) (citation omitted))). time a material element of when the is the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍offense. September a. 1996 statement time the occur It settled law that the 32.] Smith claims state [¶ rape as not a material element rence is ments at the made November of the offense are not “time the elements Therefore, he ar interview wеre coerced. 127, 10, dependent” Darby, 1996 SD gues granted the trial court should have Floody, also 556 N.W.2d at 316. See suppress. his motion to He claims he 247; Basker, at th participated the November 18 inter Wurtz, 842; Swallow, 416; 436 N.W.2d at threatening were view because the officers N.W.2d at 608. alleges his wife. He also indictment, provided which the two offi course of this same interview It year, and the was sufficient. the month coercion,” “speak “psychological cers used the elements of the crimes contained warmly confidentially to Smith” ing appraise charged adequately “implying that the act of intercourse charges him and would allow family product member is the of a plead acquittal him to an to bar future drive, something they see all normal sex prosecutions. We affirm. assuring time ... defendant that he is *8 person having normal and not a bad for the trial court erred 29.] Whether [¶ with [N.F.].” sex sup- denying Smith’s motion to press he made to law statements given was the Miranda 33.] Smith enforcement officers. prior to the interview. The one warning recently stated our standard [¶ 30.] We during made the in- statement that Smith ruling on a of review for a trial court’s sequence a dream terview involves suppress: to motion related the dream to the offi- which Smith . he woke cers. He told them he dreamed findings A trial of fact from a court’s up stepdaughter un- in bed next to his suppression hearing upheld must be counts the ex- great Each count or alternative had coerсion threats of immediate and or format, accompa- bodily exception the victim harm with the of the dates or act by apparent power nied of execution. Con- charged. the crime 22-22-1(2). trary to SDCL repeated and of prolonged ques- naked.4 Smith’s motion nature both of them were 6) suppress tioning; physical pun- this statement was denied and the use of presented during deprivation it trial. was ishment such as of food or sleep. prior experience A defendant’s 26, 1997 statement February b. with law enforcement officers and the at The second statement a factor courts is also this Court consid- February the one made on issue is question ers. The is not whether the gone this date Smith had to the 1997. On were the interrogators’ statements cause provide them with a Sheriffs Office of the confession but whether those sample testing. blood for DNA After he manipulative statements were so or co- his Miranda warning he told given they deprived ercive that [a defendant] anything that he did not have officers unrestrained, ability of an his to make say them. The officers did not else to autonomous decision to confess. any questions. While he was ask more walking hallway ¶ down the of the Sheriffs Smith, 6, 8, 1998 SD 573 N.W.2d at 517 Office, spontaneously blurted out (internal omitted). citations if I going “What am I to do am the father spontane- The interview and the of that child?” The trial court found that statement, subject ous which were this statement was unsolicited law en suppress the motion to appeal, and this completely voluntary. forcement and The place took County both the Lawrence statement was admitted. The record shows that at Sheriffs Office. involuntary An the time of the interview and the subse- suppressed will coerced admission be due quent sample, blood Smith was in his late State v. unreliability. to its inherent Although 40s. the record does not reflect Smith, 6, ¶7, 1998 SD level, previous expe- his educational he had 517. When we examine claims of involun rience with law dealing enforcement and appeal by tariness of an admission on judicial system. There nowas absence totality considering “the effect the any regards advice to Smith in to his upon circumstances hаd the will of the de rights. constitutional On both occasions fendant and whether the defendant’s will the Miranda given warning, signed he was ¶ Smith, 6, 8, was overborne.” 1998 SD indicating a card given he had been Thomp State v. (citing N.W.2d at 517 Miranda warning during the blood son, 15, 29, 1997 SD sample he chose to invoke Dur- rights. his 127, ¶28, 541-42 (citing Darby, ing September only interview he was 319; Dickey, State v. 556 N.W.2d at approximately detained for two hours (S.D.1990))). 445, 447 Factors speak saying chose to to the he officers that we will examine include: “nothing subsequent had to hide.” At the

1) 2) age; sample February, the defendant’s the defen- blood taking he was intelli- long enough dant’s lack of education or low detained to take the sam- 3) gence; any ple. the absence of advice to February spоnta- The statement was neously the defendant his constitutional blurted out. On neither occasion 4) 5) detention; rights; length deprived sleep. the was he of food or dream, say 4. Smith: I had a that I can’t is for Officer: Ah-hah. *9 real, okay, but I had a because [N.F.] dream way And Smith: it wasn't true. I had no to I, accusing was me of this is when her, this shit. cop way, handle even the wrote it that here, we we lived over before moved back night and but that I’d had a dream. Her motel, Doris, um, go, over to the so I asked I gone I and to bed. I was drunk and that sex, did we ever have and I? And she [N.F.] bugged grant- has me ever since. Because no, her, goes, you you? never had sex with did now, name, willing give my ed I her was to I, you I had a dream know because N.F. and know, you my daughter. she was here, picked up dropped had been over beating up. and she’d accused me of her

353 prosecutor called Smith a arguments, his wife threatened that officers allegations something any- “monster ... scarier than Furthermore, the Novem- are unfounded. The body up dressed on Halloween.” po- encounter was conversational ber a prosecutor repeatedly stated Smith was about with the officers chatted lite. Smith predator,” “tyrant a in his own “sexual He weather. his son’s Camero human,” home,” that Smith a “was make an ability “his to not denied a molester.” He also “pervert” and “child unrestrained, con- decision to autonomous Smith, away dig- “took N.F.’s claimed did not err The trial court fess.”5 trust,” betrayed her do- nity,” “[h]e “[h]e these statements. admitting N.F.,” minated did not treat N.F. “[he] a child or being, like a human let alone let prosecutor com- 4. [¶ 38.] Whether daughter.” “got a He stated Smith alone prosecutorial misconduct mitted forcing his kicks sex on child.” He said closing arguments. his “impregnated stepdaughter Smith had evi- We review court’s years gave was 13 old and her when she under the abuse of discre dentiary rulings prosecutor argued his disease.”6 14, Spiry, v. standard. State tion war,” had “prisoner N.F. was a Smith (citations ¶ 260, 11, 263 omit 543 N.W.2d captive,” and she had been “held her ted). evidentiary ruling will not be An into a robot.” Counsel for the “turned unless error is “demonstrated overturned objected repeatedly pros- defendant to the error.” prejudicial to be ... shown [and] (cid:127) The inflammatory statements. ecutor’s Inc., Honeywell, v. (Quoting Id. Shaffer objections trial court sustained the (S.D.1976)). 251, Error is 258 249 N.W.2d prose- disregard instructed when, ... probability [it] “in all prejudicial comments. now claims the cutor’s upon the final result produced some effect in- prosecutor’s effects of the cumulative party assigning of the rights and affected him flammatory closing argument denied Cattle, K & E Land and (quoting it.” Id. to a fair trial. right his (S.D. 529, 533 Mayer, Inc. v. 330 N.W.2d “It is well established [¶42.] 1983)). prosecutor ... that the and the defense “Prosecutorial miscon closing argu latitude have considerable attempt act or an implies duct a dishonest ments, make a required for neither is deception jury by use of persuade Smith, v. 541 argument.” State colorless Davi, v. reprehensible methods.” State (Minn.1996). 584, has 589 Counsel N.W.2d ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍(S.D.1993) 844, (citing 855 504 N.W.2d and infer to discuss the evidence right (S.D. Ashker, 412 N.W.2d 103 v. State from the generated and deductions ences 1987)). only if the viola We will reverse presented. Reynolds, State v. party or prejudiced has denied tion (Idaho P.2d 1006 120 Idaho 816 Hofman, v. 1997 party a fair trial. State However, have held App.1991). our cases 51, 13, (citing N.W.2d prosecutor has to the idea that “[t]he fast . ¶ 6, Buntrock, v. 1996 SD 84 Robbins which is shared overriding obligation, an 425). court, that the defendant with the to see Blaine, a fair trial.” State closing argu- receives Smith claims (S.D.1988) (citing deliberately inflamed N.W.2d prosecutor ments the (S.D.1984)). Brandenburg, closing jurors. During passions inculpatory. nothing State v. he said Smith did not has 5. In the November interview Corder, (S.D.1990). inculрatory He give any statement. denied relationship with N.F. having sexual ever throughout interview. He the entire in the record that is information There slept had a dream he had stated that he once sexually had a transmitted Smith and his wife questionable whether this N.F. It is as to disease. *10 involuntary when may be ruled "confession” 354 may any or she not seek a conviction at In order to determine whether [¶ 47.]

He Porter, price. State v. per- misconduct occurred we can look to (Minn.1995). question The then is 362-3 jurisdictions. other authority suasive from prosecutor’s argument when does the Porter, Supreme In the Minnesota Court and argument cross the line of colorful permeated that pros- found misconduct the become miscоnduct? closing argument. ecutor’s entire 526 closing arguments, N.W.2d at In the a. Prosecutorial misconduct prosecutor jury that if acquitted stated the Dakota, ap they we the defendant would be “suckers” and proach prosecutorial using they misconduct if believed the defendant’s wife’s tes- First, analysis. two-prong we must deter timony then he had “time share in Santa mine that the misconduct occurred. pole, Claus’s condo at the north Hof ¶ man, 51, 13, 1997 562 N.W.2d at 902 you at [would] sell some.” Id. 363. He Robbins, (citing 550 repeatedly also referred to the “James 425). occur, If did misconduct Porter School of Sex Education” several only we will reverse the conviction if the during times the closing arguments.8 Id. prejudiced party misconduct has the as to The labeled prosecutor’s Court state- him deny or her fair trial.7 Id. ments as that misconduct “struck at the juror heart of jury system, indepen-

[¶ 45.] i. Misconduct dence.” Id. at 365. may prosecutor What Closing arguments are closing arguments? do in He or she may argument not evidence. The should evidence, be no “discuss pointing discrep out more than an summary accurate of the testimony, ancies and conflicts state of Nachtigall, the evidence. State v. argue sup that the evidence in the record (S.D.1980) 531-2 ports justifies (citing .... [he conviction or (S.D. Winckler, remarks, v. may make 260 N.W.2d 356 she] not based on the 1977). record, also People Hopkins, which concern matters of See 52 general (1972)). knowledge experience.” Ill.2d 284 N.E.2d Reynolds, Juriеs 5.9). presumed § P.2d at (citing ABA Standard are the trial follow court’s A involving outrageous may crime conduct attorneys’ argu instruction final warrant stronger words ac ments do not constitute evidence. Howev er, cused in the closing arguments might than closing arguments unfair jury invite a justified. otherwise be Id. at 1008. The by by decision emotion rather than evi prosecutor may cross line when he or improper type argument dence. This injects prejudicial she “unfounded or innu juror independence. cuts to heart endo into the ... proceedings appeals] [or Blaine, prejudices prosecutor’s penchant jury.” of the (citation omitted). making

N.W.2d at 115 for statements meant to inflame We must now if complained passion go determine outside the evidence, conduct misconduct committed realm of admissible is an exam prosecutor. ple of the unprofessional, “win-at-all costs” U.S., (D.C.1986). (If majority jurisdictions 7. The re- would not 513 A.2d though prosecutorial found, verse a conviction even prosecutorial misconduct is this Court preju- misconduct occurred unless there was will reverse when the errors rise to the Porter, dice or error that was not harmless. prejudice”). level of “substantial (Where 526 N.W.2d at 365. misconduct has established, been the court will not reverse charged sexually 8. Porter had been mo- unless the defendant has been denied a fair However, lesting S.M.D. there existed a num- trial); ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍State, Williams v. Nev. allegations sexually ber of he molested chil- (1987). (If prosecutorial P.2d 700 conduct is priest. dren when he was a harmless, reversal); justify it does not Mathis *11 trial. Prosecutorial it must be a fair In less judicial system. the that scars attitude the level of a federal in misconduct reaches case, prosecutor’s statements the this argu- if the violation on the outra- constitutional border closing arguments trial with unfairness infectfs] these com- ment “so the necessitated Nothing geous. strong resulting the convictions a de- ments, considering as to make especially Donnelly v. De- Although process.” due against Smith. nial of 1868, with earnest- 94 S.Ct. “may prosecute Christoforo, U.S. prosecutor (1974). may he strike vigor [and] .... L.Ed.2d 431 ness and blows, liberty to strike he is not at hard an error has been While [¶ 53.] Blaine, 427 аt 116 N.W.2d foul ones.” to be it has not been shown demonstrated States, 318 U.S. (citing Viereck United prejudicial Spiry, error. 561, 566-67, L.Ed. 63 S.Ct. ¶ 11, In probability at 263. all (1943)). a “mon- Calling unlikely prosecutor’s inflam very it is blow, was a foul “pervert” or a ster” jury’s altered the ver matory statements . and misconduct. abhorrent con particularly is true when dict. This authority There is further [¶ 50.] that overwhelming evidence sidering the Professional Con- Rules of Dakota South the crimes of which he Smith committed prose- allow us to label that would duct faded to show charged. was As Smith has Under act as misconduct. cutor’s error, prejudicial we affirm. Professional Con- Dakota Rules of South duct, responsibility has “the prosecutor’s Justice, KONENKAMP, concurs that justice simply and not a minister of of writing. with a 3.8, cmt. Fur- Rule an advocate.” See of Justice, MILLER, concurs Chief thermore, if a professional misconduct it is in result on Issues 1-3 concurs prejudi- in conduct lawyer engages writing on without a Issue justice. See cial to the administration 8.4(d).9 prosecu- conduct of the Rule Justice, AMUNDSON, concurs derogation was in tor in this case part. part and dissents justice.10 administration SABERS, Justice, dissents. 57.] [¶ Prejudice ii KONENKAMP, (concurring). Justice Dakota, due In retrying this case thought If I [¶58.] a defendant process guarantee does not prosecutor trial, only to chasten the would serve neverthe- right to an error-free justifiable be self- may not be found to required or sets forth the oath 9. SDCL 16-16-18 practice Dakota. relevant facts are cоnsid- attorneys to law in South defense when all provides part: It and law enforcement ered. Prosecutors personality, required again put forth substan- all offensive I will abstain from will be prejudicial to the hon- and advance no fact prepare for as will time to retrial tial witness, party un- reputation of a or or public to underwrite is forced defense. The justice of the cause required less expense of a re-trial. charged[.] I am with which addition, in the fairness public confidence prose- outrageous comments of the Here the may judicial system be the finality of the required "justice of the were not for the cutor victim. ultimate charged.” In- [he] cause with which stead, snatching perilously it came close attorney for previously noted here the 10. As evidentiary victory. jaws defeat from timely objections. entered the defendant Class, In Black cases fail to counsel in other Should defense 544, 551-2, we set forth the overall N.W.2d diligent, given ethical considerations be so failing properly exe- prosecutor of a result involved, with- certainly is well court the trial representing the office when cute the duties of unjustified com- halt such function to in its State at trial: Blaine, 427 its own motion. ments on has been incar- The defendant The result? at 115. may a death which 1991 for cerated since *12 remarks, misbehavior, for uncivil I might flagrant his vote to cases of thought jury If I the probably by prosecutor reverse. either thе the or defense acquitted attorney, would have for a judge but those com- should intervene without ments, certainly waiting objection. I would vote to reverse. for an Opposing coun ought I sel not to disparagements Yet am satisfied these be saddled with the entire upholding made burden of the of our sys no difference the outcome and honor judicial ethics, tem. none of Under our judges offended the defendant’s substan- require “shall pro tial order and decorum in rights. police step- Smith told that his Conduct, liar, ceedings.” Code of Judicial daughter Can up that she made 3(b)(3). only they on Not pa must “be rapes her mind the she described. How- tient, themselves, dignified and ever, courteous” he fathered a by child her! He judges “rеquire must also similar also, conduct despite denied that two DNA tests ” 3(b)(4). lawyers.... Canon In decid end, proving paternity. his In the he ing what action to warning, spe take —a baby claimed he did not know how the sanction, cial jury, instruction to the aor could Understandably, be his. the judge mistrial —the trial should consider found no reasonable guilt. doubt of Let us (a) the faith argument; bad nature of the not overlook that this case was well and (b) whether the repeated; misconduct was tried, fairly except transgressions for the (c) argument’s effect jury; on the in closing argument. (d) “improper argument whether the bol Nonetheless, I regret the invec- sters an otherwise Rosemary weak case.” brought tive down on Smith. No one Nidiry, Restraining Adversarial Exсess in should be denounced in court with such 1299, Closing Argument, 96 Colum.L.Rev. dehumanizing preserve words. To human- Tanford, (1996)(quoting J. Alexander all, ity, why after we People have law. Procedure, Closing Argument are more than they the crimes commit. 47, 103 (1986)). Am.J.Trial Advoc. They may monstrously, they act but are appellate As an reviewing court Surely, not monsters. though, there are record, the dead we face fearful dilemma. ways better more immediate for deal- We must choose between competing prin ing with misconduct in the courtroom than ciples: prosecutorial deterring misconduct ordering appeal. a retrial after To send sustaining or as final a case of convincing trial, this case back for put another this Herе, guflt. I finality, choose I though through victim again, the entire ordeal acknowledge the choice is uncomfortable. verdict, we doubt because but way, Either integrity justice of our prosecutor, admonish the seems to me ins- system Yet, is at stake. each case must be upportable. considered on its individual merits. Re

[¶ 60.] This is not an instance where the (1) viewing typically courts examine: judge abridged trial process, either (2) prejudicial impact statements, misbehavior, ignoring worse, by over- any cautionary effectiveness of instruc ruling objection cases, (3) tion, to it. In those liti- the strength of the evidence gants Here, See, have no judge recourse. the defendant. e.g., United objections Saenz, sustained defensе and instruct- States v. 747 F.2d (5thCir.1984) the jury disregard prosecutor’s ed (quoting United States v. Perhaps McPhee, judge remarks. could have F.2d sanctions; gone imposed (5thCir.1984)), further and pre- cert. denied sub nom. Solis sumably, if problem again, States, occurs he v. United 473 U.S. 105 S.Ct. my will. From standpoint, judge’s (1985); a trial 87 L.Ed.2d 655 United States Cir.1972), (5th supervision Rhoden, on-the-scene is the most effec- v. 453 F.2d 599-600 denied, tive for controlling means adversarial ex- rt. 406 U.S. 92 S.Ct. ce (1972). cess. Despite 32 L.Ed.2d 334 who, victories, comments, to win eager are kind these prosecutor’s nature of the price of gladly pay affirmance. will the small a ritu- support factors practice spanking. alistic verbal judi- Learned Hand’s I hold with - recalling this the bitter tear court shed is best attained governance cial view - oysters by the as he ate the Walrus coercion, rather than al- persuasion, *13 cynical a deplorably breeds attitude to- necessary. the latter is though sometimes judiciary. wards the end with the the matter here Today let law also we who serve the reminder that my opinion, spank- 67.] In the verbal [¶ Civility is virtue if examples. no serve as on deaf ings past have fallen ears. means like code. It it must be enforced steps a prosecutor When outside the rules, to more mere adherence more than appropriate role bounds adversarial It etiquette. the niceties of minding than argument jury, in final there should to lately means, Anthony Kennedy as Justice price pay. be to remarked, for the “respect dignity being.” a fellow human worth of Ap Eighth The Circuit Court of Cannon, in v. peal’s decision United States AMUNDSON, in (concurring Justice (8thCir.1996), F.3d estab part). in part dissenting when it reversed price lished convic one, I concur on issues two [¶ improper closing argument. 64.] tion for The three. court held: four, agree I issue with [¶ 65.] On people” defendants as “bad Referring to that this record dis-

majority’s conclusion simply jus- the aims does not further misconduct in the clos- prosecutorial closes truth, tice or in search for aid However, I that ing disagree arguments. likely to influence bias in the and to in error. this does not result reversible on something result in a verdict based opinion, once evinces majority’s again, Therefore, re- other than evidence. in reviewed taken other cases position improper. highly marks were that if the is over- by this Court worry appellate case, about have even whelming, do not In this we more a time when rhetoric review. There comes merely outrageous than claim statements expresses dissatisfaction is ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍merely which person. ing defendant a bad There to be effectively get message inadequate fore, join I the “ritualistic verbal cannot across. To do spanking” majority. ig so upon prosecu duty nores the incumbent Frank, Judge dissenting Unit but to simply prosecute, tor “not obtain Co., ed Antonelli Fireworks States v. justice Wiegers, with a fair trial.” State (2ndCir.1946), expressed ex F.2d (S.D.1985); 1, 11 State v. asperation dealing imprоper prose- (S.D. 702, 705 Brandenburg, argument: cutorial 1984). Therefore, I would reverse on this vigor- has several times used This court issue. denouncing government language ous for such conduct as

counsel But, Attorney here. each United States SABERS, (dissenting). Justice that, nevertheless, time, it it has said spirit I with Justice Ko- agree Such an attitude of would not reverse. However, nenkamp’s this is the writing. is, think, I piety undesir- helpless are prosecutor’s this actions second time nothing If we continue to do able .... Stetter, appeal. an issue on See conduct, practical prevent such we (1994). also See id. disapprove cease to it.... Gov- should tactics, (Amundson, J., dissenting). counsel, employing 96-97 ernment such Therefore, join I Justice Amund- son’s dissent on issue four.

1999SD 113

DAKTRONICS, INC., Plaintiff *14 Appellee, McAFEE, Personally and,

Miles d/b/a

Speed Indicator, Pitch Golden Gate

Sports Baker, and David E. Defen- Appellants.

dants and

No. 20620.

Supreme Court of South Dakota.

Considered on Briefs Feb. 1999.

Decided Aug.