State v. Michalek ( 1987 )

HENDERSON, Justice

(concurring specially).

In concurring with this opinion, to protect the integrity of my position on the harmless error rule in South Dakota, I make reference to my special writings in State v. Dokken, 385 N.W.2d 493, 505 (S.D.1986) (Henderson, J., specially concurring); State v. Remacle, 386 N.W.2d 38, 41 (S.D. 1986) (Henderson, J., specially concurring); and State v. Davis, 401 N.W.2d 721, 726 (S.D.1987) (Henderson, J., concurring in result).

Not once, but twice in the majority opinion, reference is made to the improper advocacy of the prosecutor in securing this conviction. This Court has previously admonished the prosecutors of this state to be fair in their roles as guardian of the public interest. See, e.g., State v. Brandenburg, 344 N.W.2d 702, 705-06 (S.D.1984); State v. Sahlie, 90 S.D. 682, 688, 245 N.W.2d 476, 479 (1976). However guilty Michalek would appear to be, he is entitled to a fair trial, for, indeed, a fair trial is an elementary rule of criminal law and justice and it should not be forsaken. In State v. Reddington, 80 S.D. 390, 396, 125 N.W.2d 58, 62 (1963), cited in the majority opinion, this Court stated: “There is no definite rule by which to measure prejudicial error and each case must be decided on its own facts.” Although I strenuously disapprove of the prosecutor’s advocacy in this case, it is state procedure and state law which, in my opinion, we are reviewing. Most specifically, we are concerned, insofar as the harmless error rule is involved, with the alleged error of the trial court in failing to grant a motion for mistrial. The majority opinion has isolated each claimed eviden-tiary transgression and determined that, within the denial of the motion for mistrial, the trial court did not abuse its discretion. State v. Farley, 290 N.W.2d 491 (S.D.1980), is controlling, and I also have concluded that there was no clear abuse of discretion.