noting that evidence of the defendant acting in conformity with prior unproven acts should be prohibited under SDCL 19-12-5
How later courts described this case
- noting that evidence of the defendant acting in conformity with prior unproven acts should be prohibited under SDCL 19-12-5
Written by the judges who cited it.
The opinion
MORGAN, Justice
(concurring specially).
I concur specially because I do not agree with the majority disposition of the issue on Dahl’s impeachment testimony. As I review the record, it appears that Nancy Pierson, Rufener’s girl friend, was called by the State for the sole purpose of opening the door for Dahl to testify as to certain prior “bad acts” under the guise of impeachment of Pierson. In State v. Gage, 302 N.W.2d 793 (S.D.1981), we described a similar situation:
[Tjhis case is one in which a witness (the girl friend) was called by the State only to serve as a ‘strawman’ for the introduction of inadmissible hearsay (by the informant). The State called the girl friend on the pretense of having her impeach appellant, but she did not do so, and there is nothing in the record to indicate that the State actually thought that she would do so.
Id. at 799 .
In this case, at an in camera session regarding Pierson’s testimony, the state’s attorney expressed no surprise that the witness answered as she did, denying the conversations.
In Gage, supra, we acknowledged the propriety of a party impeaching his own witness under SDCL 19-14-8. We likewise condemned the
obvious subterfuge by the State to get the informant’s testimony, consisting only of inadmissible hearsay, before the jury under the guise of impeachment. Such ‘back dooring’ of hearsay is not indicative of fair trial tactics, and the *429 trial court in this case should have sustained defense counsel’s objection to the testimony on the basis that it was hearsay.
302 N.W.2d at 799 .
In this case, the proposed testimony regarded prior “bad acts” and I do not agree with the majority holding that the questions asked of Pierson and Dahl were proper. SDCL 19-12-5 has been much abused by this court. The first sentence: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith” has been entirely swallowed up by the second sentence: “It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” I think that the trial court erred in admitting the evidence under SDCL 19-12-5 and under our holding in Gage, supra.
However, because I do not think that the testimony was particularly crucial to the guilty verdict, I would have to say that it was harmless error.