author: SABERS, Justice. ZINTER, Justice

text:
    2004 SD 82
    STATE of South Dakota, Plaintiff and Appellee, v. Kenneth L. MARTIN, Defendant and Appellant.
    No. 22631.
    Supreme Court of South Dakota.
    Argued March 23, 2004.
    Decided June 23, 2004.

      Larry Long, Attorney General, Jeffery J. Tronvold, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Michael Stonefield, Office of the Public Defender for Pennington County, Rapid City, South Dakota, Attorney for defendant and appellant.
   SABERS, Justice.

[¶ 1.] On August 4, 2001, Kenneth Martin decided he was going to kill someone that night. He smoked some marijuana and built a silencer for his gun. At approximately 10:30 p.m., Martin walked across the street to the home of Robert Ludeman, a Rapid City police officer, and his fiancée LeAnn Barta. When Ludeman came to the door, Martin shot him twice in the chest and once in the abdomen. Lude-man also suffered blunt force trauma to his head and right hand. He died on his living room floor. Martin fled the scene when he saw Barta coming toward the front door from the living room.

[¶ 2.] The next day, believing that Bar-ta had seen him, Martin called 911 and reported that he was the shooter. Martin was arrested and charged with alternative counts of first and second degree murder. He pleaded not guilty and not guilty by reason of insanity.

[¶ 3.] Psychiatrist Dr. Manlove testified at trial that Martin suffered from a delusional disorder at the time he shot Ludeman. According to Dr. Manlove, Martin believed that his faith in God gave him the power to raise people from the dead. He developed a theory that if he killed a person and let them experience hell and then raised them from the dead, the person would change their behavior and be “saved.” Martin told Dr. Franks, the expert for the State, that he picked Ludeman at random. After shooting Ludeman, Martin did not attempt to raise him from the dead. Dr. Manlove testified that although Martin knew killing Lude-man was illegal, in the context of his delusion, Martin believed the killing was not wrongful. Dr. Franks testified that Martin suffered from a significant personality disorder, but that he knew the murder was wrongful and he was not insane. The jury convicted Martin of first degree murder.

[¶ 4.] On appeal, Martin raises several challenges to his conviction, all of which are centered around jury selection and jury instructions.

[¶ 5.] During jury voir dire, the State exercised thirteen consecutive peremptory strikes against females. Martin objected to the State’s thirteenth and fourteenth strikes claiming that they violated his equal protection rights. The trial court accepted the State’s justification for the challenged strikes and denied Martin’s challenge.

[¶ 6.] Martin requested three jury instructions. The first two instructions distinguished the terms “wrongfulness” and “illegality” and would have informed the jury that it could find Martin legally insane if he proved in part that he “harbored a sincere belief that society would approve of his conduct if it shared his understanding of the circumstances underlying his actions.” The third instruction would have informed the jury that if Martin was found not guilty by reason of insanity, he would be committed to the human services center until he could prove to a court by clear and convincing evidence that his release “would not create a substantial risk of bodily injury to another person.” Martin refers to this instruction as the “legal consequences” instruction. The trial court denied the instructions.

[¶ 7.] During closing arguments, Martin renewed his request for the legal consequences instruction, asserting that it was necessitated by the prosecutor’s statements during jury voir dire and closing arguments. Martin argues that the State insinuated to the jury that by finding Martin not guilty by reason of insanity, the jury would be relieving him of any consequences for the killing. Among the prosecutor’s statements were the assertions that, “any other verdict but guilty in the first degree, [Martin] won’t be held accountable,” and “to think about not holding this man accountable, that’s reprehensible.” The court sustained Martin’s objections to these and other statements, but denied the instruction and Martin’s motion for a mistrial.

[¶ 8.] The jury found Martin guilty of first degree murder, and Martin appeals raising four issues:

1. Whether the State’s peremptory strikes violated Martin’s right of equal protection.
2. Whether the trial court erred in denying Martin’s proposed jury instruction on the legal consequences of a not guilty by reason of insanity verdict.
3. Whether the trial court erred in denying Martin’s request for an instruction on the legal consequences of a not guilty by reason of insanity verdict and his mistrial motion in light of the State’s assertions in closing argument.
4.Whether the trial court erred in denying Martin’s proposed jury instructions defining the term “wrongfulness.”

[¶ 9.] 1. Whether the State’s peremptory strikes violated Martin’s right of equal protection.

[¶ 10.] Martin objected to the State’s peremptory strikes of jurors 13 and 14. At the time of Martin’s objection, the State had exercised fourteen peremptory strikes, thirteen of which were against women. Martin argued that the State violated his right of equal protection by removing jurors from the panel based solely on gender.

[¶ 11.] In J.E.B. v. Alabama ex reí. T.B., 511 U.S. 127, 146, 114 S.Ct. 1419, 1430, 128 L.Ed.2d 89, 107 (1994), the United States Supreme Court held that gender discrimination in jury selection violates the Equal Protection Clause. When a defendant alleges gender discrimination in jury selection, he or she must make a prima-facie showing of intentional discrimination. Honomichl v. Leapley, 498 N.W.2d 636, 639 (S.D.1993) (citations omitted). If the defendant establishes a prima facie case, it creates a rebuttable presumption of purposeful discrimination. Id. The State can rebut the presumption by “articulating a clear and reasonably specific [gender] neutral explanation for using its peremptory challenge.” Id. The explanation “need not rise to the level of a ‘for cause’ challenge; rather it merely must be based on a juror characteristic other than gender, and the proffered explanation must not be pretex-tual.” State v. Webster, 2001 SD 141, ¶ 18, 637 N.W.2d 392, 397 (citing JEB, 511 U.S. at 145, 114 S.Ct. at 1430, 128 L.Ed.2d at 107 referring to Batson v. Kentucky, 476 U.S. 79, 97, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69, 88 (1986)).

[¶ 12.] The jury selection process began with a pre-trial juror questionnaire that addressed juror’s opinions about issues relevant to the case. Based on those questionnaires, the parties struck many jurors for cause before they began voir dire. During voir dire, each party was permitted 22 peremptory challenges, all of which had to be exercised.

[¶ 13.] Two juries were empanelled to try Martin. The first jury selected was in June, 2002, but due to a medical emergency, a mistrial was declared after the jury was sworn. In the first panel, the State exercised nineteen of its twenty-two peremptory challenges against women. Although there is nothing in the record to indicate a Batson challenge to the first jury selection, Defendant couples the first selection with the thirteen consecutive strikes against females in the second selection to make his prima facie case. The trial court found that under Batson and J.E.B. Martin made a prima facie showing of discrimination and the State does not appear to dispute this finding. Batson, 476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88 (1986); J.E.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89. We accept the finding because it is not clearly erroneous.

[¶ 14.] The trial court required the State to justify the strikes, and the State responded:

I think the claim is unfounded. We have a reason for each and every juror that we have stricken, and always do. We have 22 [peremptory strikes] and we are at 14, and sometimes it’s difficult to come up with 22, as defense well knows. []
For the ones we have done so far, we have valid reasons. I’d go into [Juror # 14] first. She’s 71 years old, divorced, and her response on the questionnaire to the insanity question was, some are insane at the time of the offense, which is neither here nor there, but I don’t like it as well as I like the others.

The State’s reasons for a peremptory strike need not be “persuasive, or even plausible. At this step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed [gender] neutral.” Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834, 839 (1995) (additional citation omitted). In his brief, Martin concedes that there is at least one facially non-discriminatory reason for the strike of Juror 14; her answer to the questionnaire regarding insanity. We agree that this is a facially non-discriminatory justification. The trial court also agreed that the State had presented non-discriihinatory justifications for the strike. That finding of fact is entitled to deference from this Court, and we will not overturn it absent a determination that the finding was clearly erroneous. Martin’s concession, coupled with the deference given to the trial court’s fact findings lead to the conclusion that the State proffered a nondiscriminatory justification for its strike. Therefore, the burden shifted back to Martin to prove that the justifications were a pretext for gender discrimination. In attempting to meet that burden, Martin’s counsel responded:

I don’t think [her] responses on the questionnaire are considerably different-than the responses of the 120 other people that were qualified to come in for jury service. The fact that she’s 71 years old doesn’t disqualify her. Many of the men are over 70. I don’t think that their response or hers is non-gender discriminatory.

The trial court denied the challenge, holding:

The court recognizes the subjective nature that’s necessary in the exercise of peremptory challenges and latitude that counsel are entitled to exercise in making their decisions for logical or illogical purposes. The only issue is whether or not they’re done in a discriminatory manner. The court does not feel that the circumstances and the record support that there is a significant basis to believe that the state is exercising their peremptory challenges based on discriminatory purposes. The record may certainly reflect the history, both of the previous selection process and the current selection process, but I would not identify those last two jurors as being without a logical perception on the part of the state for their exercise. I’ll deny the Batson challenge.

[¶ 15.] Martin argues that a comparison of the characteristics the State used to justify exclusion of Juror 14 with the characteristics of those remaining on the jury leads to the conclusion that the State’s justification for striking Juror 14 was pre-textual. First, she was 71 years old, and Martin points out that a 63 year old man and a 73 year old man sat on the jury. Second, she was divorced, and Martin points out that two male jurors listed their status as single and a third was divorced. Third, her answer to the juror questionnaire regarding the insanity defense was, “some are insane at the time of the offense.” Males who sat as jurors answered the question similarly, stating, for example:

1) “under some circumstances — if the individual is found to be insane by a competent unbiased psychologist.”
2) “yes, in some cases.”
3) “yes a person can go insane; it is an appropriate law if not abused.”
4) “I believe this is an appropriate law.”

Martin argues that in order to determine whether the State’s justifications are gender-neutral, it is necessary to compare the characteristics of those individuals placed on the jury with those rejected through peremptory strikes. See e.g., United States v. Wilson, 853 F.2d 606 (8th Cir. 1988). The State argues that while some male jurors had one of the characteristics listed by the State, none had all three. The State also points out that the cases upon which Martin relies for this argument had situations where “jurors shared one characteristic that was disparately treated due to race.”

[¶ 16.] The Eighth Circuit Court has held that the determination whether an explanation is neutral “is a question of comparability. It is well-established that peremptory challenges cannot be lawfully exercised against potential jurors of one race unless potential jurors of another race with comparable characteristics are also challenged.” Devose v. Norris, 53 F.3d 201, 204 (8th Cir.1995) (additional citations omitted). We agree that comparative juror analysis is an important factor in determining whether peremptory challenges are discriminatory, however, it is not determinative, especially at the appellate level. Our standard of review on appeal is heightened, as it should be, given that the trial court has the ability to measure the credibility of the attorney’s justification for a strike. “A finding of intentional discrimination is a finding of fact entitled to appropriate deference by a reviewing court.” State v. Farmer, 407 N.W.2d 821, 823 (S.D.1987) (additional citation omitted). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518, 528 (1985) (citation omitted). We agree with the court in People v. Dunn that such comparative analysis by an appellate court does a disservice to the trial lawyers and courts because it can:

undermine the trial court’s credibility determinations and [ ] discount the variety of [subjective] factors and considerations, including prospective juror’s body language or manner of answering questions, which legitimately inform a trial lawyer’s decision to exercise peremptory challenges. [ ][C]omparative analysis to evaluate the bona fides of a prosecutor’s stated reasons for peremptory challenges does not take into account the many considerations which go into an attorney’s decision to select certain jurors while challenging others who appear to be similar. Trial lawyers recognize that it is a combination of factors rather than any single one which often leads to the exercise of a peremptory challenge. In addition, the particular combination or mix of jurors which a lawyer seeks may, and often does, change as certain jurors are removed or seated in the jury box. It may be acceptable, for example, to have one juror with a particular point of view but unacceptable to have more than one with that view[.] [T]he same factors used in evaluating a juror may be given different weight depending on the number of peremptory challenges the lawyer has at the time [ ] and the number of challenges remaining with the other side. Near the end of the voir dire process a lawyer will naturally be more cautious about “spending” his [ ] challenges. [ ] It should be apparent, therefore, that the very dynamics of the jury selection process make it difficult, if not impossible, on a cold record to evaluate or compare the peremptory challenge of one juror with the retention of another juror which on paper appears to be substantially similar.

People v. Dunn, 40 Cal.App.4th 1039, 47 Cal.Rptr.2d 638, 645-46 (1995) (internal and additional citations and quotations omitted).

[¶ 17.] Although it is not determinative, it is interesting to note that the empan-elled jury consisted of six females and six males.

[¶ 18.] The burden of proving that the State purposefully discriminated rests at all times on the defendant. Honomichl, 498 N.W.2d at 639 (citation omitted). Simply arguing that some of the jurors who were selected share one of the traits for which the juror was stricken is insufficient to carry Defendant’s burden of proving that the trial court’s finding was clearly erroneous. The trial court is affirmed on this issue.

[¶ 19.] 2. Whether the trial court erred in denying Martin’s proposed jury instruction on the legal consequences of a not guilty verdict.

[¶ 20.] Martin proposed a jury instruction for the purpose of informing the jury of the consequences of a not guilty by reason of insanity verdict. The instruction would have provided:

You are instructed that if you return a verdict of not guilty by reason of insanity, the law requires that the defendant be committed to the state human services center until such time as he is eligible for release pursuant to state statutes. The defendant would not be eligible for release from the human services center in the future until he has proven to the court by clear and convincing evidence that his release would not create a substantial risk of bodily injury to another person.

The trial court refused to give the proposed instruction based on State v. Robinson, 399 N.W.2d 324 (S.D.1987).

[¶ 21.] Our standard of review for refusal to give a jury instruction is well-settled:

We review a trial court’s refusal of a proposed instruction under an abuse of discretion standard. The trial court has broad discretion in instructing the jury. Jury instructions are satisfactory when, considered as a whole, they properly state the applicable law and inform the jury. Error in declining to apply a proposed instruction is reversible only if it is prejudicial, and the defendant has the burden of proving any prejudice.

Webster, 2001 SD 141 at 7, 637 N.W.2d at 394 (internal citations omitted).

[¶ 22.] In Robinson, we were faced with the same question; whether a defendant pleading not guilty by reason of insanity was entitled to an instruction similar to the one proposed by Martin. We cited State v. Huber, a decision of the North Dakota Supreme Court, with approval:

The consequences of a verdict of not guilty by' reason of a lack of criminal responsibility have no bearing on any issue which the jury must decide. An instruction of the kind requested would invite the jury to speculate about a defendant’s ultimate disposition and invite it to render a verdict on the basis of something other than the evidence before it. Punishment, or whatever may transpire after the verdict, is not the concern of the jury. In short, it is simply no business of the jury what happens to the accused if he is acquitted on the ground of insanity. We therefore hold that the trial court did not err in refusing to instruct the jury on the disposition of the defendant in the event the jury were to find him not guilty by reason of a lack of criminal responsibility.

Robinson, 399 N.W.2d 324 at 326(citing State v. Huber, 361 N.W.2d 236 (N.D. 1985)).

[¶ 23.] Martin argues that the Court should overturn Robinson and permit defendants who plead not guilty by reason of insanity to have a jury instruction of the legal consequences of the plea. He asserts two justifications for overruling the case. First, he argues that jurors in an insanity defense case may be distracted from their fact finding function by the concern that the defendant will go free if found not guilty by reason of insanity. Second, he argues that the court has a compelling reason to allow such an instruction because commitment to the human services center is mandatory on a verdict of not guilty by reason of insanity.

[¶ 24.] The thrust of Martin’s argument is that if a jury is not properly informed of the consequences of a not guilty by reason of insanity verdict, they will be inclined to ignore evidence of insanity and find the defendant guilty out of fear that otherwise, they will be letting a “psychopath [ ] roam at large.” All but one of the cases cited by Martin for this argument pre-date our decision in Robinson. Given that the Court was aware of the status of the law at the time it released Robinson, these cases have no more persuasive force than they did at the time Robinson was written. Therefore, we will look primarily to the one case cited by Martin that post-dates our decision. In State v. Shickles, the Utah Supreme Court relied largely on a federal court decision, Lyles v. United States, 254 F.2d 725 (D.C.Cir.1957), to reason that a legal consequence instruction is necessary. State v. Shickles, 760 P.2d 291 (Utah 1988). We note first, that the federal court decision was in place, and presumptively rejected by this Court, at the time of our holding in Robinson. Furthermore, as the State points out, Lyles has since been rejected by the United States Supreme Court, which noted:

It is well established that when a jury has no sentencing function, it should be admonished to “reach its verdict without regard to what sentence might be imposed.” The principle that juries are not to consider the consequences of their verdicts is a reflection of the basic division of labor in our legal system between judge and jury. The jury’s function is to find the facts and to decide whether, on those facts, the defendant is guilty of the crime charged. The judge, by contrast, imposes sentence on the defendant after the jury has arrived at a guilty verdict. Information regarding the consequences of a verdict is therefore irrelevant to the jury’s task. Moreover, providing jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their factfinding responsibilities, and creates a strong possibility of confusion.

Shannon v. United States, 512 U.S. 573, 579, 114 S.Ct. 2419,129 L.Ed.2d 459 (1994) (additional and internal citations omitted). The Court went on to state:

We are not convinced that jurors are as unfamiliar with the consequences of a [not guilty by reason of insanity (NGI)] verdict as [Defendant] suggests. It may have been the case in 1957 that, in contrast to verdicts of guilty and not guilty, a verdict of not guilty by reason of insanity ha[d] no ... commonly understood meaning. There is no reason to assume that jurors believe that defendants found NGI are immediately set free. See Fisher, 10 F.3d at 122 (“[H]ighly publicized cases, such as that involving John Hinckley, have dramatized the possibility of civil commitment following an NGI verdict.”).

Id. (Additional citations omitted.) Martin has provided no authority which persuades us that Robinson should be overturned. The function of a criminal jury in South Dakota is to act as a fact finder to determine whether the defendant is guilty. We decline to interject considerations of sentencing into a jury’s duties. Since the proposed instruction did not “properly state the applicable law,” the trial court’s refusal to give this instruction is affirmed.

[¶25.] 3. Whether the trial court erred in denying Martin’s request for an instruction on legal consequences and his mistrial motion in light of the State’s assertions in closing argument.

[¶26.] Martin argues that the trial court should have either given an instruction on legal consequences or granted a mistrial based on remarks by the State’s Attorney during voir dire and closing argument. During jury voir dire, the State’s Attorney had the following exchange with a prospective juror:

State: I suspect at the conclusion of this case you’ll get a choice, and one being guilty and one being not guilty by reason of insanity, but there might be guilty but mentally ill. It’s not yours to distinguish between that and what could happen after that, do you understand?
Juror: Yes.
State: Do you understand that not guilty is not guilty? So not guilty by reason of insanity is a not guilty verdict, do you understand that?
Defense: I object to that. That’s legally inaccurate.
Court: Sustain the objection.
State: Could we approach? (An unrecorded side bar discussion was had.)

[¶ 27.] In the rebuttal portion of his closing argument, the State’s Attorney asserted:

I apologize if I offend anybody by doing so, but this makes me upset. I submit to you that what we have here is a coldblooded killer. Robbie Ludeman’s life was tragically taken for no reason. That should anger us. And the fact of the matter is — the fact of the matter is, this man needs to be held accountable. And any other verdict but guilty in the first degree, he won’t be held accountable.

At this point, the defense objected and the court sustained the objection and the statement was stricken from the record. The State continued:

Folks, the fact of the matter is you need to hold this man accountable. What he did was wrong. I heard Mr. Stonefield use a term in describing me as reprehensible. I heard him use a term in describing Mr. Sperlich as dishonest. That’s grabbing at straws, folks. He later turns around and says his comments are arguments. What we’re doing is arguing. Reprehensible? What happened in this case is reprehensible. And to think about not holding this man accountable, that’s reprehensible.

The defense objected again, and the parties joined the trial court in chambers. The defense renewed its request for a jury instruction and when the trial court denied the request, the defense requested a mistrial. The trial court denied the motion for mistrial. Martin argues that the trial court should have permitted the instruction or in the alternative, granted a mistrial.

[¶ 28.] Our standard of review for refusal to give a jury instruction is abuse of discretion. See Webster, supra. We review a trial court’s denial of a mistrial motion for abuse of discretion. State v. Anderson, 1996 SD 46, ¶21, 546 N.W.2d 395, 401.

To justify the granting of a mistrial, an actual showing of prejudice must exist. Prejudicial error for purposes of determining whether error constitutes grounds for mistrial is error “which in all probability must have produced some effect upon the jury’s verdict and is harmful to the substantial rights of the party assigning it.”

State v. Anderson, 2000 SD 45, ¶ 36, 608 N.W.2d 644, 655 (additional citations and quotations omitted).

[¶ 29.] Martin argues that other courts have determined that when a prosecutor misstates the law, a defendant may be entitled to a legal consequences instruction and that this Court should adopt a similar rule. Among the cases he cites in support of his argument is Caldwell v. State. In that case, the prosecutor argued in his rebuttal:

Don’t by your verdict and [sic] tell us that he’s not responsible, don’t tell us that he has a license to kill. Don’t let him loalk out of this courtroom with the rest of us when this case is over with, don’t let him get away with murder. Don’t let him get away with murder.

Caldwell v. State, 722 N.E.2d 814, 816 (Ind.2000) (emphasis supplied). The trial court overruled the defendant’s objection to the comment and declined to allow a consequences instruction or an admonishment. On appeal, the court held, “a defendant is entitled to an instruction on the post-trial procedures if ‘an erroneous view of the law on this subject has been planted in [the jurors’] minds.’ ” Id. (citing Dipert v. State, 259 Ind. 260, 286 N.E.2d 405, 407 (1972)). We note, however, that the court went on to say that a proper instruction would be “that the law provides for additional proceedings but that this was not a matter for the jury to consider.” Id. The same court reached the same conclusion in Dipert v. State when the prosecutor indicated to a jury member during voir dire that the defendant would go “scot-free” if found not guilty by reason of insanity. In Dipert, the trial court refused to give an instruction to the jury regarding the prosecutors comment despite objection by the defense. The court held “it is only because such a curative attempt was not made by the court that this conduct constitutes reversible error.” Dipert, 286 N.E.2d at 407. Had the trial court instructed the jury that there were additional procedures after the finding of not guilty by reason of insanity, and instructed the jury not to consider those procedures or penalties, there would have been no reversible error.

[¶ 30.] In the present case, the jury was instructed:

It is your duty as a jury to determine the facts and you must do this from the evidence that has been produced here in open court. This consists of the testimony of the witnesses, the exhibits which have been received, facts stipulated to by the attorneys, and facts judicially noticed by the court. This evidence is governed by various rules of law and under these rules it has been my duty as judge to rule on the admissibility of the evidence from time to time. You must not concern yourselves with the reasons for these rulings and you must not consider any evidence or any testimony which has been ordered stricken. Such things you must put out of your mind.

The jury was further instructed:

In arriving at a verdict in this case you shall not discuss or consider the subject of penalty or punishment, as that is the responsibility of the court.

[¶ 31.] The • trial court properly instructed the jury that it was not to consider the penalties in reaching its sentence, and it sustained the Defendants objection to the comments and struck them from the record. The jury was properly instructed not to consider those things stricken from the record. Based on the curative measures taken by the court, and taking the record as a whole, we do not find that the jury had an erroneous impression of the law. We agree that when a prosecutor gives the jury an erroneous statement of the law, curative measures may be necessary to prevent reversible error. However, in the instant case, there is no indication that the trial court’s measures were insufficient to cure any misunderstanding engendered by the prosecutor’s isolated statements.

[¶ 32.] The trial court did not abuse its discretion in denying the Defendant’s motion for mistrial. The trial judge was present when the comments were made and had the opportunity to observe their impact. State v. Kidd, 286 N.W.2d 120, 122 (S.D.1979) (citation omitted). His determination that they did not “reach the level [ ] that would warrant either a mistrial or a special instruction” is affirmed.

[¶ 33.] 4. Whether the trial court erred in denying Martin’s proposed jury instructions defining the term “wrongfulness.”

[¶ 34.] The statutory definition of “insanity” provides:

“Insanity,” the condition of a person temporarily or partially deprived of reason, upon proof that at the time of committing the act charged against him, he was incapable of knowing its wrongfulness, but not including an abnormality manifested only by repeated unlawful or antisocial behavior[.]

SDCL 22-1-2(20).

[¶ 35.] At trial, the Defendant presented testimony from Dr. Manlove indicating that Martin’s knowledge of the “illegality” of the killing was not necessarily knowledge of the “wrongfulness” of the act. Dr. Manlove testified that one way for a person to be considered insane was if “in the course of a delusional process they did something that was right within the context of their delusion system but [ ] what would otherwise be considered wrong.” He testified, “I came to the conclusion myself that [Martin] did not understand the wrongfulness of his acts because in the context of his delusional thinking, these acts were right acts.” On further questioning, the doctor testified:

[Martin] indicated to me that he understood that it was a criminal act. He understood — I think he understood that it was a criminal act even as he did the act, even before the act. [But] he [ ] believed that he would be able to raise the person from the dead and even greater things would happen and it would be good for himself and the world and for Mr. Ludeman, that — that shooting him was the correct thing to do, was the right thing to do even though he understood that it was a criminal act.

Based on Dr. Manlove’s testimony, the defense proposed two instructions which provided:

The term “wrongfulness” as used in these instructions, does not mean simply “illegality” or “criminality.” A person knows that an act is wrongful not simply by knowing that it is illegal, but by knowing that it is morally disapproved of'by society.
The defendant may establish that he was incapable of knowing the wrongfulness of the act charged if he can prove that, at the time of the act, he was temporarily or partially deprived of reason, and that he harbored a sincere belief that society would approve of his conduct if it shared his understanding of the circumstances underlying his actions.

[¶ 36.] The trial court refused to give the instructions, stating:

The court appreciates the concern of counsel and I would note that for the record, for whatever that’s worth, that I have similar anxiety relating to the definition and presence of wrongfulness and the manner in which that is presented to the jury. But I don’t believe it’s within my capacity or my perception that to so define it as presented by counsel would be less confusing than the statute that we — than the instructions that we currently have. It is of some anxiety. I say that because the term merits consideration. But I believe that any effort to tamper with the pattern instructions may potentially create greater misunderstanding than enhancing the responsibility of the jury.

[¶ 37.] We review a trial court’s refusal of a proposed instruction for abuse of discretion. State v. Rhines, 1996 SD 55, ¶ 111, 548 N.W.2d 415, 443.

In order to be entitled to reversal of a conviction due to error in instructing the jury, an appellant must not only show error, but prejudicial error in the instruction. [ ] This requires a showing that the alleged error, in all probability, produced some effect upon the jury’s verdict and was harmful to the substantial rights of the party assigning it.

State v. Fast Horse, 490 N.W.2d 496, 500 (S.D.1992) (internal and additional citations omitted).

[¶ 38.] The jury was given the option of finding the Defendant guilty, not guilty, not guilty by reason of insanity or guilty but mentally ill of second degree murder or first degree murder. They found him guilty of first degree murder. The court provided the jury with several instructions on insanity and mental illness, but gave no instruction regarding the term “wrongfulness.”

[¶39.] Jury instruction #30 provided in part:

If you find that the Defendant has not proven by clear and convincing evidence that the Defendant was insane at the time of committing the offense, you must next consider whether the Defendant was mentally ill when the offense was committed.

The first step for the jury was therefore to determine whether the Defendant proved that he was insane at the time he committed the homicide. The jury was instructed:

Insanity means the condition of a person temporarily or partially deprived of reason, upon proof that at the time of committing the act charged, the defendant was incapable of knowing its wrongfulness. Insanity does not include any abnormality manifested only by repeated unlawful or antisocial behavior.

(Emphasis supplied.) If the jury determined that the Defendant failed to prove insanity by clear and convincing evidence, its second step was to consider whether Martin was mentally ill at the time the offense was committed. The jury was instructed:

Mental illness means substantial psychiatric disorder of thought, mood or behavior which affects a person at the time of the commission of the offense and which impairs a person’s judgment, but not to the extent that the person is incapable of knowing the wrongfulness of the act. Mental illness does not include abnormalities manifested only by repeated criminal or otherwise antisocial conduct.

(Emphasis supplied.)

[¶40.] Martin argues that the court’s failure to instruct on the term “wrongfulness” prevented the jury from finding him not guilty by reason of insanity. In order to prevail, Martin must offer proof that “the alleged error, in all probability, produced some effect upon the jurys verdict and was harmful to the [defendant’s] substantial rights.” Fast Horse, 490 N.W.2d at 500. Martin fails to meet this burden. If the jury believed that he had a legally cognizable mental defect or illness, but that he knew his act was wrongful, they were bound to find him guilty but mentally ill. In other words, any prejudice caused by failure to instruct on “wrongfulness” would result in a guilty but mentally ill verdict because the primary difference between guilty but mentally ill and not guilty by reason of insanity is whether the defendant was incapable of knowing the wrongfulness of his act. By finding him guilty of first degree murder, the jury rejected his assertion that he was suffering under any legally cognizable mental defect at the time of the crime, regardless of his knowledge of the wrongfulness of the killing. The Defendant therefore fails to show prejudice in the court’s refusal to give the instruction.

[¶ 41.] It is plausible that the jury rejected the claim that under any definition, Martin knew his actions that evening were “wrongful.” There was testimony directly contrasting Martin’s claim that he believed killing Ludeman would be morally right. The State’s expert, Dr. Franks, testified as to his conversation with Martin:

Now, what Mr. Martin explained to me was that [ ] up until that day talked he himself out of that saying “this is ridiculous. I can’t do this. This isn’t true.” And even on the day of the event told himself or told me that he knew it was wrong. I asked him that specifically. He said “yes, it was wrong and I know others would feel it was wrong. But I had to do it. I struggled a lot with it. It was hard to do. The dude was handy.” Again these words are his. “He just happened to be the one I picked. I had to break every rule I knew. And I knew most people would view it as wrong. [ ] It was scary. I didn’t want to do it. It went against everything, all the rules.”

The doctor went on to state, “I truly felt after this discussion with him that — talking about his thoughts that he did understand what he was about to do was wrong.” He noted several corroborating factors he relied upon in coming to the conclusion; that Martin acted at night, he used a silencer, he ran when Ludeman’s fiancée came toward him, he hid the gun, hid his shirt, and prior to turning himself in, asked his sister to hide his marijuana bowl because he didn’t want to further incriminate himself. Dr. Franks concluded, “[n]ow, perhaps an example of someone who truly was delusional would have been someone who would have stayed there trying to raise Mr. Ludeman from the dead if he truly believed that. I mean, that was the pinnacle of what he was trying to accomplish. [ ] But he didn’t. He left and tried to hide his tracks.” In other words, the jury could properly determine Defendant knew the difference between right and wrong at the time of the killing.

[¶42.] In summary, the jury instructions accurately set forth the law with regard to an insanity defense. The pattern jury instructions provided the jury with a proper statement of the law regarding the insanity defense. Nothing contained therein prevented the jury from accepting Dr. Manlove’s expert opinion of insanity based upon Defendants alleged belief that the killing was not morally wrongful. The Defendant has failed to establish that the trial court abused its discretion in refusing to give the proposed instructions. Affirmed.

[¶ 43.] GILBERTSON, Chief Justice, and MEIERHENRY, Justice, concur.

[¶ 44.] KONENKAMP and ZINTER, Justices, concur in part and concur in result in part.

ZINTER, Justice

(concurring and concurring in result).

[¶ 45.] I concur on Issues l, 2, and 3.1 concur in result on Issue 4.

Issue 4 — Insanity Defense Instructions

[¶ 46.] I must concur in result on Issue 4 because I disagree with two points in the Court’s analysis. In ¶ 41, the Court justifies the failure to give Martin’s proposed definitional instruction on a “morally right” theory of insanity. This Court justifies the refusal because there was evidence from the State’s expert, Dr. Franks, “contrasting Martin’s claim that he believed killing Ludeman would be morally right.” Id. Relying upon this opposing evidence, the Court concludes that it was “plausible that the jury rejected [Martin’s] claim that under any definition, Martin knew his actions that evening were ‘wrongful.’ ” Further relying on the State’s evidence from Dr. Franks, this Court ultimately concludes that “the jury could properly determine defendant knew the difference between right and wrong at the time of the killing.” Id.

[¶ 47.] Although the Court is correct that in this case the State’s expert did offer evidence contrasting Martin’s legal theory of mental illness, courts may not decline to give defense instructions simply because the State has introduced “testimony directly contrasting [the defendant’s] claim[.]” See id. On the contrary, the well established rule for giving jury instructions does not look to the evidence opposing the evidence offered by the proponent of the instruction. Rather, the trial court should determine whether the proponent of the instruction has offered competent evidence to support the instruction. Our rule is clear that: “Criminal defendants are entitled to instructions on their theory of the case when evidence exists to support that theory.” State v. Bruder, 2004 SD 12, ¶8, 676 N.W.2d 112, 115 (citing State v. Charles, 2001 SD 67, ¶ 19, 628 N.W.2d 734, 738 (citing State v. Charger, 2000 SD 70, ¶40, 611 N.W.2d 221, 229)). “Denial of a defendant’s request for an instruction [ ] where such a request is properly submitted and supported by the evidence is reversible error because it infringes on a defendant’s constitutional right to due process.” Id. (citations omitted).

[¶ 48.] Therefore, I cannot join the Court’s extensive reliance upon the State’s expert’s testimony, see supra ¶41, as the basis to deny giving a defendant’s proposed instruction. Instead, the correct inquiry should be to determine whether Martin’s expert, Dr. Manlove, provided competent evidence to support Martin’s “morally approved by society” theory of insanity. If Dr. Manlove did, and if that theory was a correct statement of the law, the instruction should have been given.

[¶ 49.] However, I concur in result because contrary to the Court’s assertion, Martin did not present “expert opinion of insanity based upon Defendant’s alleged belief that the killing was not morally wrongful.” See supra ¶ 42. Instead, a review of Dr. Manlove’s testimony confirms that his opinion was only based upon the traditional “right versus wrong” theory of insanity. Indeed, when first asked to tell the jury his understanding of the insanity law that he would apply in this case, Dr. Manlove stated, “one needs to be unable to know the wrongfulness of their act”; or, if under a delusion, “something that was right ... but ... would otherwise be considered wrong.” (Emphasis added.) So also, when asked to express his ultimate opinion on insanity, Dr. Manlove incorporated no societal morality component. Instead, he specifically applied the traditional theory indicating that Martin “did not understand the wrongfulness of his acts because in the context of his delusional thinking, these acts were right acts.” (Emphasis added.) He further testified that Martin believed “what he was doing was right rather than wrong even though he recognized that it was against the law.” (Emphasis added.) Stated another way, Dr. Manlove indicated that Martin “understood the criminality of his act but didn’t understand that it was wrong.” (Emphasis added.) Finally, Manlove opined that Martin “lacked the capacity to know the wrongfulness of what he did.” (Emphasis added.) Thus, Martin’s psychiatric evidence was entirely phrased in terms of the traditional insanity theory incorporating the “wrongfulness” test. In fact, Martin never even asked Dr. Manlove if “wrongfulness” included some component of moral acceptance of his acts by others in society.

[¶ 50.] If anything, Martin’s own trial evidence actually refutes his theory of “moral acceptance by others in society.” Although Martin’s theory involved moral acceptance by others, Dr. Manlove first noted that Martin had not even discussed his theory of raising people from the dead with anyone. Thus, Martin introduced no evidence upon which a jury could have found that he had a basis to believe “others” in society would morally accept his act.

[¶ 51.] More importantly, Dr. Manlove specifically refuted the notion that Martin actually believed, his acts might be approved of by society. Instead, Dr. Man-love testified that “[Martin] recognized that people would think that this was an unusual theory and, you know — and that people wouldn’t accept it, accept his theory [.] ” (Emphasis added.) Dr. Manlove further conceded that Martin “recognized that if he were going to proceed with his— the idea that he could raise somebody from the dead and shoot — kill them and bring them back from the dead this would be shocking to people and he didn’t want to bring that to their attention.” (Emphasis added.) Finally, Dr. Manlove testified unequivocally that Martin himself knew that “others would think that what he was doing was wrong, but he hoped that if he could get away with it, his act would be helpful to the victim.” (Emphasis added.) Thus, Martin’s own psychiatric evidence clearly negated the theory that Martin acted believing that the shooting would be morally accepted by others in society.

[¶ 52.] Because Martin failed to introduce competent evidence to support his “morality” instruction, I would affirm the conviction on that basis, and I concur in result.

[53.] KONENKAMP, Justice, joins this special writing.

      . SDCL 23A-20-3 provides:
      When prospective jurors are called for examination, the court shall call to the jury box a number of prospective jurors equal to the number of jurors to be impaneled, the number of peremptory challenges allowed the parties, and number of alternates, if any.

      . On appeal, Martin argues only that the strike of Juror 14 violated his equal protection rights, therefore, we do not address the State’s justification for striking Juror 13.

      . We need only briefly address his second argument. Martin simply argues that many states with mandatory commitment statutes either require or allow the instruction to be given. In Robinson, the Court was considering this instruction under the same statutory scheme currently in place. Therefore, this rationale has already been specifically disregarded by the Court and is insufficient to overrule Robinson.

      . Although noted in his issue statement, Martin does not appear to specifically argue in his brief that failure to grant a mistrial was abuse of the trial courts discretion.

      . The burden of proving prejudice in cases where the trial court has refused to give a jury instruction has been differently stated in several cases. One line of cases indicates that failure to give a proposed instruction that properly states the law is prejudicial error. See e.g., Leisinger v. Jacobson, 2002 SD 108, ¶ 8, 651 N.W.2d 693, 696; Boomsma v. Dakota, Minnesota & Eastern R.R. Corp., 2002 SD 106, ¶ 30, 651 N.W.2d 238, 245; Parker v. Casa Del Rey-Rapid City, Inc., 2002 SD 29, ¶ 5, 641 N.W.2d 112, 115. Another line of cases indicates that even if the proposed instruction correctly states the law, the appellant bears the burden of proving that failure to give the instruction was prejudicial. See e.g. State v. Engesser, 2003 SD 47, ¶ 43, 661 N.W.2d 739, 753; Webster, 2001 SD 141 at 7, 637 N.W.2d at 394; State v. Knoche, 515 N.W.2d 834, 838 (S.D.1994). The latter instruction is the prevailing view in criminal cases.

      . On the Batson issue, the Court observes that although not dispositive, "it is interesting to note that the empanelled jury consisted of six females and six males.” See supra ¶ 17. I write only to add that during the trial court hearing on the challenge, Martin also conceded that although the State struck 13 consecutive women, there were obvious, legitimate reasons for striking many of them. Martin's counsel told the trial court: "Now, of these previous 13, clearly a number of them [ ] are obvious strikes. For example, two women [ ] are wives of defense attorneys in town; another woman [ ] is a patient of Dr. Manlove, and there are obvious reasons for striking some of these people[.]” These facts also support the trial court's decision.

      . See supra ¶ 35 for Martin's proposed instructions.

      . We need not reach this legal issue because Martin’s instructions were not supported by competent evidence. See infra ¶¶ 49, 50, and 51.


source: Caselaw Access Project

author: SRSTKA, Circuit Judge.

license: Public Domain

text:
    2004 SD 80
    In the Matter of the ESTATE OF Richard Martin SCHNELL.
    No. 22803.
    Supreme Court of South Dakota.
    Argued April 28, 2004.
    Decided June 23, 2004.
    Rehearing Denied Aug. 2, 2004

      Leroy Hill of Leroy Hill Law Office, Belle Fourche, South Dakota, Attorney for appellant Casey Schnell.
    Travis Jones of Beardsley, Jensen & Von Wald, Rapid City, South Dakota, Attorneys for appellee American Cancer Society.
    Michael P. Ortner, Hot Springs, South Dakota, Attorney for appellee Elaine Mann.
   SRSTKA, Circuit Judge.

[¶ 1.] Casey Schnell (Casey) contested his father’s will that disinherited him and his brothers. Casey also sought an injunction to prevent the disposition of payable on death and transfer on death provisions of certain property that his father made. Casey alleged that his father, Richard M. Schnell (Richard), lacked testamentary capacity to make payable on death and transfer on death dispositions of his investments and to execute his last will and testament because he was suffering from an insane delusion. Casey further claimed Richard was unduly influenced while making these dispositions.

[¶ 2.] The trial court held Richard had testamentary capacity and was not subject to undue influence at the time he arranged for his investment dispositions and executed his will. The court entered findings of fact, conclusions of law and three orders denying Casey’s request for a preliminary injunction, permitting the payable on death and transfer on death beneficiaries to gain access to their investments, and admitting the will to formal probate. Casey appeals. We affirm.

FACTS

[¶ 3.] Richard married Iola in August 1947. They farmed in Butte County, South Dakota. They had four sons, Jess, Casey, Dean and Todd, who died at age four.

[¶ 4.] Iola and her sons suffered years of physical and mental abuse from Richard. For example, when Jess was nine months old Richard threw him into a snow bank outside the house because he would not stop crying. Richard kept Jess home from school to drive a hay mower when he was a young boy. Richard worked the boys in the hayfields all day and then left them in his pickup without dinner while he went drinking in the bar. Richard also beat his family. He hit Jess in the face so hard he broke his eye socket and he broke Ida’s nose so severely that she required plastic surgery. The record is full of such abuse. Fearing for their lives, Iola eventually took the boys and left in Richard 1972.

[¶ 5.] The couple divorced in 1973. Richard refused to pay child support. He hid his farm equipment from the court. He had little contact with his family following the divorce.

[¶ 6.] Richard lived alone on the family farm for several years but eventually sold the farm and moved to Hot Springs, South Dakota. In April 2001 Richard learned he had colon cancer. On August 11, 2001, Richard retained Hot Springs attorney, Richard Hunter (Hunter), to prepare a will. Richard was planning a trip to Tulsa, Oklahoma, for cancer treatment and wanted to execute a will prior to his departure. According to Hunter, Richard had made various changes to his investment and bank accounts prior to their meeting and brought the associated paperwork with him. The two discussed how Richard wished to devise his property and the need for a personal representative. Hunter testified that Richard said he had very little contact with his sons over the last thirty years and that he wished to disinherit them. Overall, Hunter felt that Richard understood the nature and extent of his property, the natural objects of his bounty and how he wished to devise his property. Richard executed his will on August 14, 2001.

[¶7.] Richard’s will devised $1.00 to each of his three sons. The remainder of his $600,000 estate was devised to his sister, Elaine Mann (Mann), his named personal representative, Dale Stark (Stark), the daughter of one of Richard’s former employees, Michelle Kenstler (Kenstler), various other acquaintances and American Cancer Society (ACS). Richard died at the Fort Meade Veterans’ Hospital on May 8, 2002.

STANDARD OF REVIEW

[¶ 8.] We review a trial court’s findings of fact on the issues of testamentary capacity and undue influence under a clearly erroneous standard. In re Estate of Dokken, 2000 SD 9, ¶ 10, 604 N.W.2d 487, 490. We defined the clearly erroneous standard in Baun v. Estate of Kramlich, 2003 SD 89, V21, 667 N.W.2d 672, 677, as:

No findings will be set aside unless they are clearly erroneous. SDCL 15 — 6— 52(a); Matter of Estate of Elliott, 537 N.W.2d 660, 662 (S.D.1995). A finding is clearly erroneous if, after reviewing the entire record, we are left with the definite and firm conviction that a mistake has been made. Id. (citations omitted). All conflicts in the evidence must be resolved in favor of the trial court’s determinations. Matter of Estate of Till, 458 N.W.2d 521, 523 (S.D.1990). The credibility of the witnesses, the import to be accorded their testimony, and the weight of the evidence must be determined by the trial court, and we give due regard to the trial court’s opportunity to observe the witnesses and examine the evidence. Elliott, 537 N.W.2d at 662. That we may have found the facts differently had we heard the testimony is no warrant for us to substitute our judgment for the trial court’s findings. Matter of Estate of Long, 1998 SD 15, ¶ 9, 575 N.W.2d 254, 256. Lastly, the contestants have the ultimate burden of persuasion on the issue of competency. SDCL 29A-3-407.

DECISION

[¶ 9.] According to SDCL 29A-3-407, the contestant of a will has the burden of proof. This statute states in part:

Contestants of a will have the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation. Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof.

Therefore, it is Casey’s burden as the contestant of Richard’s will to prove his claims of (1) lack of testamentary capacity and (2) undue influence.

ISSUE ONE

[¶ 10.] Did Richard lack testamentary capacity?

[¶ 11.] “An individual eighteen or more years of age who is of sound mind may make a will.” SDCL 29A-2-501. Sound mind, for purposes of testamentary capacity, has been defined as:

One has a sound mind, for the purposes of making a will, if, without prompting, he is able “to comprehend the nature and extent of his property, the persons who are the natural objects of his bounty and the disposition that he desires to make of such property.” In re Estate of Podgursky, 271 N.W.2d 52, 55 (S.D.1978). Soundness of mind, for the purposes of executing a will, does not mean “that degree of intellectual vigor which one has in youth or that is usually enjoyed by one in perfect health.” Petterson v. Imbsen, 46 S.D. 540, 546, 194 N.W. 842, 844 (1923). Mere physical weakness is not determinative of the soundness of mind, In re Estate of Anders, 88 S.D. 631, 636, 226 N.W.2d 170, 173 (1975); and it is not necessary that a person desiring to make a will “should have sufficient capacity to make contracts and do business generally nor to engage in complex and intricate business matters.” Petterson, 46 S.D. at 546, 194 N.W. at 844.

Matter of Estate of Long, 1998 SD 15, ¶ 21, 575 N.W.2d 254, 257-58. “Testamentary capacity is not determined by any single moment in time, but must be considered as to the condition of the testator’s mind a reasonable length of time before and after the will is executed.” Long, 1998 SD 15, ¶ 23, 575 N.W.2d at 258.

[¶ 12.] The trial court reviewed all three requirements for establishing testamentary capacity. It determined that Richard comprehended the nature and extent of his property. Richard’s financial advisors, neighbors, family and the attorney who drafted his will testified that Richard knew the nature and extent of his property. Richard made an inventory of nearly all of his real and personal property. It was found in his home and submitted as part of the record. The trial court’s finding that Richard understood the nature and extent of his property was not clearly erroneous.

[¶ 13.] The trial court next considered whether Richard knew the natural objects of his bounty. This was the most controversial of the three requirements. Casey asserted that because of Richard’s insane delusion, he could not determine the natural objects of his bounty. Richard’s alleged insane delusion was that he wanted nothing to do with his sons because they wanted to hurt him. According to Casey, Richard had no sane reason to hate his sons or to fear them. Thus, he suffered from an insane delusion.

[¶ 14.] Two opposing experts testified on the subject of the insane delusion. Based on the evidence, the trial court found no credible basis to suggest that Richard was suffering from an insane delusion or that he did not comprehend the nature and objects of his bounty. The trial court concluded that although Richard was not a nice man and held a grudge, he still knew who his children were. According to the testimony of Hunter, the attorney who prepared Richard’s will, Richard informed him at their first meeting that he had three sons but that he had little contact with them and wished to disinherit them. The trial court’s finding that Richard presented handwritten notes to Hunter at their first meeting listing his sons also indicates Richard knew he had three sons. Furthermore, Richard listed his sons in order of birth within his will where he bequeathed them each $1.00. The trial court held that even if Richard had been under a delusion that his sons were after him or he may not have liked his sons, it did not impede his legal right to disinherit1 them.

[¶ 15.] This Court has not defined an insane delusion. Casey suggests we examine a jury instruction defining an insane delusion which the North Dakota Supreme Court found fairly and fully informed the jury of the applicable principles. It states:

An insane delusion is insanity upon a single subject. An insane delusion renders the person afflicted incapable of reasoning upon that particular subject. He assumes to believe that to be true which has no reasonable foundation in fact on which to base his belief. A person persistently believing supposed facts which have no real existence against all evidence and probability, and conducting himself upon the assumption of their existence, is so far as such facts are concerned, under an insane delusion. An insane delusion may exist even though there was some evidence from which the person afflicted might have formed his belief of judgment. It is a belief which is not based upon reasonable evidence, or at least without any evidence from which a sane man could draw the conclusion which form the delusion.

Matter of Estate of Flaherty, 446 N.W.2d 760, 763 (N.D.1989).

[¶ 16.] This definition is consistent with definitions established in other jurisdictions.' See Breeden v. Stone, 992 P.2d 1167, 1170 (Colo.2000) (defining insane delusion as “a persistent belief in that which has no existence in fact, and which is ad^ hered to against all evidence”); In re Estate of Diaz, 271 Ga. 742, 524 S.E.2d 219, 221 (1999) (insane delusion is “a delusion having no foundation in • fact and that springs from a diseased condition of mind”); Dixon v. Webster, 551 S.W.2d 888, 892 (Mo.Ct.App.1977) (insane delusion is “where a person imagines something extravagant to exist which really has no existence whatever, and ... is incapable of being reasoned out of his false behalf, he is in that respect insane”); Melody v. Hamblin, 21 Tenn.App. 687, 115 S.W.2d 237, 246 (1937) (a person is said to suffer from an insane delusion “when he conceives something extravagant or unreasonable to exist which has no existence except in his own abnormal imagination, but having once conceived the thing or conditioned to exist, it is impossible to reason him out of it”).

[¶ 17.] We find North Dakota’s definition to be acceptable and adopt it. The burden of proof is on the will contestant to show by a greater weight of the evidence that the testator suffered under an insane delusion. In re Estate of Flaherty, 446 N.W.2d 760, 763 (1989). The will of a testator found to suffer from an insane delusion will not be held invalid, however, unless it is shown that his delusion materially affected the terms and provisions of his will. In re Estate of Breeden, 992 P.2d 1167,1171 (2000).

[¶ 18.] Casey fails to meet his burden under this definition. The primary evidence presented to prove Richard’s insane delusion was a second-hand statement from Casey’s cousin who heard from her mother that Richard believed his children were “hiding in the hills with guns.” However, the cousin testified she did not think Richard was really afraid of his sons. Furthermore, even if Richard did fear his sons he had a reasonable basis for this fear because his eldest son, Jess, had physically threatened Richard. The evidence further showed that Richard and Casey met from time to time in Butte County where they both resided, Casey testified that he would visit with Richard from time to time from five minutes to forty-five minutes. On at least one occasion, Richard invited Casey and Dean into his house where they visited for fifteen minutes. A fact finder could reasonably conclude that Richard was not afraid of his sons. Therefore, even after applying the definition of an insane delusion, the trial court’s findings that Richard was not suffering from an insane delusion and that he knew the natural objects of his bounty were not clearly erroneous.

[¶ 19.] Lastly, the trial court found that Richard knew how he wanted his property distributed. The trial court found that Richard disposed of his property to people with whom he had personal relationships and who had helped him. He did not give it away haphazardly. The trial court found that Richard made various changes to his investments and bank accounts in order to make arrangements for the drafting of his will. Richard also brought papers to his meeting with Hunter that set forth the distributions he wanted to make. The trial court found that Hunter never questioned whether Richard was of sound mind. According to Hunter, Richard asked appropriate questions and never acted confused or uncertain about any of his property in any respect. The trial court’s findings were not clearly erroneous, and the trial judge correctly concluded that Richard had testamentary capacity.

ISSUE TWO

[¶ 20.] Was Richard subject to undue influence?

[¶ 21.] It is well settled that it is a will contestant’s burden to prove each of the four elements of undue influence by the greater weight of the evidence. These elements include:

(1)decedent’s susceptibility to undue influence;
(2) opportunity to exert such influence and effect the wrongful purpose;
(3) a disposition to do so for an improper purpose; and
(4) a result clearly showing the effects of undue influence.

In re Estate of Holan, 2001 SD 6, ¶ 16, 621 N.W.2d 588, 591-592. “For influence to be undue it must be of such a character as to destroy the free agency of the testat[or] and substitute the will of another for that of the testat[or].” Matter of Estate of Elliott, 537 N.W.2d 660, 662 (S.D.1995).

[¶ 22.] The trial court held that Richard was not susceptible to undue influence. In determining whether Richard was susceptible to undue influence “the physical and mental strength of a testator is material.” Matter of Estate of Unke, 1998 SD 94, ¶21, 583 N.W.2d 145, 149. Casey alleges that Richard was suffering from a paranoid insane delusion and was easily susceptible to undue influence. However, again the trial court found insufficient evidence of an insane delusion. Rather, the trial court found the evidence to show Richard was a man with his own mind who did what he wanted when he wanted. This was based upon the testimony of Richard’s long-time financial representative and close neighbors and friends who testified that Richard was not susceptible to influence, was competent, and was an informed investor who knew the value of his assets. This evidence is sufficient to support the trial court’s finding that Casey failed to prove Richard was susceptible to undue influence.

[¶ 23.] The trial court also found Casey failed to prove the second and third elements of undue influence. Because we find that the trial court did not err in finding Casey failed to satisfy his burden of establishing the first element, we need not address the remaining elements.

CONCLUSION

[¶ 24.] The trial court determined that Casey failed to meet his burden under SDCL 29A-3-407 of proving that Richard lacked testamentary capacity or that he was subject to undue influence. The evidence is sufficient to support the trial court’s findings on both of these issues and thus these findings are not clearly erroneous.

[¶ 25.] We realize that this decision does not right the many wrongs that Richard committed against his family. Unfortunately, the state of the law is such that the court system has no power to right such wrongs by giving surviving children a forced share of the estate of a disinheriting parent. Such remedial action lies within the province of the legislative branch. We cannot expand the law in this area no matter how great the equities of the case.

[¶ 26.] Affirmed.

[¶ 27.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

[¶ 28.] SRSTKA, Circuit Judge, for SABERS, Justice, disqualified.


author: CARTER, Justice.

text:
    Susan NILES f/k/a Susan Meeker, Appellant, v. IOWA DISTRICT COURT FOR POLK COUNTY, Appellee.
    No. 03-0763.
    Supreme Court of Iowa.
    June 16, 2004.
    Mark J. Seidl of Seidl & Chicchelly, P.L.C., Cedar Rapids, for appellant.

      Eric G. Borseth of Borseth, Siebrecht & Siebrecht Law Office, Altoona, for appel-lee.
   CARTER, Justice.

Susan Niles, who is the respondent to a petition for modification of a dissolution-of-marriage decree filed by her ex-husband, Randy Meeker, sought a change of venue from Polk County to Linn County. The district court denied her request. On review via certiorari, the court of appeals sustained the writ and ordered venue transferred to Linn County. After reviewing the record and considering the arguments presented, we vacate the decision of the court of appeals and annul the writ.

The marriage of Susan and Randy was dissolved by a decree of the Iowa District Court for Polk County in September 1992. The parties were awarded joint custody of their son, Kevin, and Susan was granted primary physical care.

In January 2003 Randy filed a petition in Polk County seeking modification of the provisions for physical care of Kevin that were ordered in the 1992 decree. At this time, Randy resided in Boone County, and Susan and Kevin resided in Linn County.

Susan filed a motion for change of venue, alleging that Randy had filed the proceeding in the wrong county. She sought to have the case transferred to Linn County. The district court denied her request.

On review of the district court’s order via certiorari, the court of appeals determined that the venue provision contained in Iowa Code section 598.2 (2001) required that the modification proceeding be brought in a county where one of the parties resided. Randy argues that recognizing the county where the decree was entered as a proper venue is consistent with our prior case law. See In re Adoption of Ellis, 260 Iowa 508, 513, 149 N.W.2d 804, 808 (1967) (county where decree filed has exclusive jurisdiction to modify decree).

Randy contends that Iowa Code section 598.25 enacted in 1970 only changed the prior law to the extent that it recognizes other venues as alternatives to filing the proceeding in the county where the decree was entered. Section 598.25 provides, in part:

Whenever a proceeding is initiated in a court for ... modification of a judgment of ... custody granted in an action for dissolution of marriage, the following requirements must be met if such proceedings are initiated in the court other than the court which granted the dissolution decree.

Iowa Code § 598.25. Prior to the enactment of section 598.25, our case law mandated that the court granting a dissolution of marriage and awarding child custody had continuing and exclusive jurisdiction to modify the decree. Ellis, 260 Iowa at 513, 149 N.W.2d at 808. At the time Ellis was decided, the statutes governing marriage-dissolution actions did not distinguish between jurisdiction and venue. In fact, venue was not mentioned as such and was subsumed in the concept of jurisdiction that the statutes then envisioned. See In re Marriage of Engler, 532 N.W.2d 747, 748 (Iowa 1995). Because modification of a custody decree was required to be heard in the county where the decree was issued, venue in that county was proper as a matter of necessity.

Section 598.25 and the county of residence venue provisions contained in section 598.2 were contained in the same chapter of a 1970 revision to the Iowa Code.1970 Iowa Acts ch. 1266, §§ 3, 26. It is axiomatic that courts are obliged to consider a challenged statute in its entirety and in pari materia with other pertinent statutes. State v. Hawk, 616 N.W.2d 527, 529 (Iowa 2000); State v. Byers, 456 N.W.2d 917, 919 (Iowa 1990). This rule applies with peculiar force to statutes passed at the same session of the legislature. Iowa Farm Serum Co. v. Bd. of Phaimacy Exam’rs, 240 Iowa 734, 740, 35 N.W.2d 848, 851 (1959); Iowa Motor Vehicle Ass’n v. Bd. of R.R. Comm’rs, 207 Iowa 461, 465, 221 N.W. 364, 366 (1928).

Randy argues that, because section 598.25 sets forth conditions that must be met if a modification is to be heard in a court “other than” that which granted the dissolution decree, it implicitly recognizes that filing the proceeding in the county where the decree was granted is still an available option. We agree. In interpreting a statute, we may consider the previous state of the law, circumstances surrounding the statute’s enactment, and the text both before and after the amendment. City of Waukee v. City Dev. Bd., 514 N.W.2d 83, 87 (Iowa 1994); City of Des Moines v. PERB, 275 N.W.2d 753, 760 (Iowa 1979). If the general venue provisions of section 598.2 were intended to prevent a modification by the same court that entered the decree, we are satisfied that such a substantial change in the law would have been expressly recognized in section 598.25, which is a special statute dealing with modification actions. The apparent meaning of the latter statute, which is specific in nature, should control over the general venue provision contained in section 598.2. See Burton v. Univ. of Iowa Hosps. & Clinics, 566 N.W.2d 182, 189 (Iowa 1997) (in statutory interpretation the specific governs the general); Christenson v. Iowa Dist. Ct, 557 N.W.2d 259, 262-63 (Iowa 1996) (same).

We are convinced that in simultaneously enacting section 598.2 and section 598.25 the legislature did not intend to foreclose the filing of a petition for modification in the county where the decree was entered, irrespective of the present residences of the parties. The continuing authority of the court in that county to modify its own decree carries with it a continuation of the venue previously recognized.

Because Susan’s motion for change of venue was based on the contention that the action had been brought in the wrong county, it was properly denied. A statute granting the right to order a change of venue when a case is brought in the wrong county furnishes no relief to a litigant seeking a change of venue from what is otherwise a proper venue. Engler, 532 N.W.2d at 749; Slattery v. Iowa Dist. Ct., 442 N.W.2d 82, 85 (Iowa 1989).

The decision of the court of appeals is vacated; the writ is annulled.

DECISION OF COURT OF APPEALS VACATED; WRIT ANNULLED.

      . Iowa Code section 598.2 provides:
      The district court has original jurisdiction of the subject matter of this chapter. Venue shall be in the county where either party resides.

      . The requirements that must be met include informing the court of the names and addresses of the parties to the dissolution decree, the identity of the court granting the decree, and the date of the decree. The court must then notify the parties to the original proceeding that modification of the decree has been sought.


author: STREIT, Justice.

text:
    STATE of Iowa, Appellant, v. Charles Leroy SMITH, Appellee.
    No. 03-1062.
    Supreme Court of Iowa.
    June 16, 2004.
    Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, and Peter C. Hart, County Attorney, for appellant.
    Thomas M. Magee, Emmetsburg, for ap-pellee.
   STREIT, Justice.

Charles Leroy Smith was a passenger in a car stopped for a minor traffic offense. After issuing a citation to the driver, the officer asked Smith for identification. Smith handed over his ID, and the officer quickly radioed to see if Smith had any outstanding warrants. Upon learning there was a valid warrant out for Smith’s arrest, the officer took him into custody. During a search, methamphetamine fell out of Smith’s pocket.

The district court suppressed the methamphetamine, ruling Smith’s Fourth Amendment right against unreasonable seizures was violated when the police officer asked him for identification and checked for an outstanding warrant. Because we find Smith was not unconstitutionally seized, we reverse the district court’s ruling to the contrary and remand for further proceedings.

I. Facts and Prior Proceedings

In March 2003, Deputy Sheriff Eric Ring saw a car waltz through a stop sign in Graettinger. The deputy stopped the car, in which he found a female driver and a male passenger. The deputy took the driver to his patrol car, where he issued her a citation for failure to stop at a stop sign. See Iowa Code § 321.322(1) (2001).

While she was still sitting in his patrol car, the deputy asked the driver if she would wait around while he identified the passenger. The driver agreed, and they returned to the car. The deputy went to the passenger side and asked Smith for identification. Smith gave the deputy a non-operator identification card issued by the Iowa Department of Transportation.

The deputy relayed Smith’s identification to his dispatcher in Emmetsburg. The dispatcher informed the deputy that there was an arrest warrant out for Smith in a nearby county. The dispatcher confirmed the validity of the warrant and relayed this information to the deputy. All told, it took less than one minute for the deputy to check Smith’s identification.

The deputy ordered Smith out of the car and arrested him on the outstanding warrant. While searching Smith incident to this arrest, a packet of methamphetamine fell out of Smith’s pants pocket. Smith was charged with possession of a controlled substance. See id. § 124.401(5).

Smith filed a motion to suppress, alleging a violation of the Fourth Amendment. See U.S. Const, amends. IV, XIV. Relying solely upon our decision in State v. Becker, 458 N.W.2d 604 (Iowa 1990), Smith argued the deputy was required to have a reasonable suspicion Smith was engaged in criminal activity before making an identification. Smith pointed out that the deputy, when he asked Smith for identification, had already finished issuing a citation to the driver. At the motion to suppress hearing, the deputy admitted the driver was free to leave and that he did not, at any time prior to learning of the arrest warrant, suspect Smith of wrongdoing.

The district court found Becker controlled and granted Smith’s motion to dismiss. The court interpreted Becker to hold “there is no right to approach ... or inquire of a passenger absent articulable suspicion [of criminal activity].” The court noted, however, that “an officer, faced with these facts, should be able to [identify] the passenger and it would almost appear that he would be derelict in his duty if he did not....”

We granted the State’s application for discretionary review. See Iowa Code § 814.5(2X6); Iowa R.App. P. 6.201(2002).

II. Standard of Review

Review of the constitutionality of a search or seizure is de novo. See State v. Maddox, 670 N.W.2d 168, 171 (Iowa 2003); State v. Heuser, 661 N.W.2d 157, 161 (Iowa 2003).

III. Merits

The sole issue in this appeal is whether the deputy violated the Fourth Amendment when he asked Smith for identification and checked for outstanding warrants. Smith does not challenge the constitutionality of stopping a vehicle caught running a stop sign, nor searching a defendant incident to arrest on an outstanding warrant. See State v. Mitchell, 498 N.W.2d 691, 693 (Iowa 1993) (officer’s observation of traffic offense, no matter how minor, justifies stop of vehicle); State v. Lewis, 675 N.W.2d 516, 522 (Iowa 2004) (recognizing search incident to arrest exception to Fourth Amendment warrant requirement). Relying upon Becker, the district court ruled the Fourth Amendment prohibited the deputy from approaching and questioning Smith absent a reasonable suspicion of wrongdoing on his part. We disagree.

In Becker, two brothers were caught speeding down a highway — with fifteen pounds of marijuana and four ounces of amphetamines hidden in a suitcase in the trunk of the car. 458 N.W.2d at 606-07. After stopping the car, the trooper immediately ordered the Becker brothers to alight and identify themselves. Id. at 606. We held the trooper violated the passenger’s Fourth Amendment rights when he ordered him out of the car absent a reasonable suspicion of wrongdoing on his part. Id. at 607-08. In reaching this decision, we recognized that the United States Supreme Court had held drivers could be ordered out of a car, but had not yet ruled on whether passengers fell within the scope of the rule. See id. at 607 (citing Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 333, 54 L.Ed.2d 331, 336-37 (1977)). In the absence of controlling authority, we distinguished the two sorts of cases. We reasoned:

The situation of the passenger ... is entirely different. The fact that the driver [committed a traffic offense] authorizes the officer to stop the vehicle in which the passenger is riding. The resulting intrusion on the passenger which flows from the initial stop is an unavoidable consequence of action justifiably taken against the driver. Further intrusion is not justified, however, unless some articulable suspicion exists concerning a violation of a law by that person, or unless further interference with the passenger is required to facilitate a lawful arrest of another person or lawful search of the vehicle.

Id. We therefore declined to extend Mimms to passengers in all routine traffic stops. Id. Absent an articulable suspicion of wrongdoing vis-a-vis the passenger (or a need to move the passenger to effectuate a lawful arrest or search), law enforcement officers were not permitted to immediately order passengers from vehicles stopped for routine traffic violations. Id.

Seven years after Becker was decided, the United States Supreme Court extended the Mimms doctrine to passengers. See Maryland v. Wilson, 519 U.S. 408, 413-15, 117 S.Ct. 882, 885-86, 137 L.Ed.2d 41, 47-48 (1997). The Court pointed out “the same weighty interest in public safety is present regardless of whether the occupant of the stopped car is a driver or passenger.” Id. at 413, 117 S.Ct. at 885, 137 L.Ed.2d at 47.

[A]s a practical matter, the passengers are already stopped by virtue of the stop of the vehicle. The only change in their circumstances ... is that they will be outside of, rather than inside of, the stopped car.

Id. at 413-14, 117 S.Ct. at 886, 137 L.Ed.2d at 47. The Court held “an officer making a stop may order passengers to get out of the car pending completion of the stop.” Id. at 415, 117 S.Ct. at 886, 137 L.Ed.2d at 48. Wilson, therefore, overruled Becker sub silentio as far as its reliance on the Fourth Amendment.

Even if Becker were still controlling, it is distinguishable from the case at bar. We were presented with — and rejected — an argument similar to Smith’s over ten years ago. See State v. Riley, 501 N.W.2d 487, 488-89 (Iowa 1993). In Becker, the officer ordered the passenger out of the car; in this case, the deputy merely asked Smith for identification and checked for outstanding warrants.

In Riley, a trooper stopped a car because its driver was not wearing a seatbelt. 501 N.W.2d at 487. After issuing a citation to the driver, the trooper asked the driver for the passenger’s name. Id. The driver told the trooper the passenger’s name, which the trooper recognized but could not place. Id. The trooper approached the passenger to talk with him. See id.

The passenger argued in a motion to suppress that under Becker, the trooper was not permitted to approach or talk to him. Id. at 488. We rejected this argument. In relevant part, we stated:

This is an incorrect interpretation of Becker .... Becker stands for the proposition that ... immediate removal from the car is clearly an unwarranted intrusion onto the passenger when the officer has no articulable suspicions or need to arrest the driver or make a search. Conversely, we believe that merely talking to a passenger or asking for identification is not the kind of “further intrusion” contemplated in [Becker], Indeed, other jurisdictions have held that merely conversing with passengers, asking them for identification, or directing questions to them is well within the officer’s right and is not illegal.

Id. at 489 (citations omitted). We held the trooper “properly began to approach [the passenger] to talk with him or to ask for identification.” Id. We see no compelling reason to depart from our holding in Riley. As our discussion of Wilson above reveals, the United States Supreme Court subsequently held law enforcement officers were permitted to order a passenger out of a car, arguably a more invasive “seizure” of a person than asking for and checking a passenger’s identification.

Smith stresses his case is different, however, because the stop ended once the deputy issued the driver a citation. After the traffic stop of the driver was completed, the deputy needed, it is argued, a reasonable suspicion vis-á-vis Smith to justify a new stop. See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968) (upon a reasonable and articulable suspicion of criminal activity, an officer may briefly stop person); State v. Kreps, 650 N.W.2d 636, 641-44 (Iowa 2002) (explaining Terry doctrine). Because the deputy admits he did not suspect Smith of any wrongdoing before the dispatcher told him of the warrant, Smith claims the deputy violated his Fourth Amendment rights when the deputy asked for and checked his identification. The State claims the deputy’s identification of Smith “followed so closely on the heels” of the issuance of the citation that it should be considered part of the initial stop.

We need not resolve this dispute. In this case we will assume the initial traffic stop ended once the citation was issued. See United States v. Beck, 140 F.3d 1129, 1134-35 (8th Cir.1998) (traffic stop complete once officer returned driver’s license and rental agreement, issued warning, and told defendant he was free to go); United States v. White, 81 F.3d 775, 778-79 (8th Cir.1996) (traffic stop ended when officer returned driver’s license and registration, and issued a warning); United States v. Werking, 915 F.2d 1404, 1408 (10th Cir. 1990) (traffic stop over once officer returned license and registration to driver); see also Wilson, 519 U.S. at 415, 117 S.Ct. at 886, 137 L.Ed.2d at 48 (“an officer making a stop may order passengers to get out of the car pending completion of the stop ”) (emphasis added). Assuming the stop was over once the citation was issued, seizure of Smith required the deputy have a reasonable and articulable suspicion vis-a-vis Smith that criminal activity was afoot. See Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906; Beck, 140 F.3d at 1134-35. The problem with Smith’s argument, however, is that there is no evidence he was seized after the issuance of the citation.

“The Supreme" Court has long recognized that not all police contacts with individuals are deemed seizures within the meaning of the Fourth Amendment.” Pliska v. City of Stevens Point, 823 F.2d 1168, 1175 (7th Cir.1987); see State v. Harlan, 301 N.W.2d 717, 719 (Iowa 1981).

[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen.... The person approached ... need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.... If there is no detention — no seizure within the meaning of the Fourth Amendment — then no constitutional rights have been infringed.

Florida v. Royer, 460 U.S. 491, 497-98,103 S.Ct. 1319, 1324, 75 L.Ed.2d 229, 236 (1983) (citations omitted). As a consequence,

Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage — provided they do not induce cooperation by coercive means.

United States v. Drayton, 536 U.S. 194, 201, 122 S.Ct. 2105, 2110, 153 L.Ed.2d 242, 251 (2002).

To determine whether a seizure has occurred, all circumstances of the encounter must be considered. Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 421, 136 L.Ed.2d 347, 354-55 (1996); see Drayton, 536 U.S. at 202, 122 S.Ct. at 2111, 153 L.Ed.2d at 252 (per se rules are generally “inappropriate in the Fourth Amendment context”). An encounter with a law enforcement officer remains consensual and does not trigger a reasonable suspicion requirement “[s]o long as a reasonable person would feel free ‘to disregard the police and go about his business.’ ” Drayton, 536 U.S. at 202, 122 S.Ct. at 2111, 153 L.Ed.2d at 252 (quoting California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690, 698 (1991); see id. at 201, 122 S.Ct. at 2110, 153 L.Ed.2d at 251 (“If a reasonable person would feel free to terminate the encounter, then he or she has not been seized.”). In the context of this case, the test “is whether a reasonable person would feel free to decline the officer[’s] requests or otherwise terminate the encounter.” Id. at 202, 122 S.Ct. at 2111, 153 L.Ed.2d at 252 (quoting Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389, 400 (1991)). For example, there is a seizure when an officer restrains one’s liberty by means of physical force or other show of authority. See State v. Pickett, 573 N.W.2d 245, 247 (Iowa 1997) (citing Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16, 20 L.Ed.2d at 905 n. 16) and State v. Johnson, 395 N.W.2d 661, 664 (Iowa Ct.App.1986)). Standing alone, however, “[m]ere police questioning does not constitute a seizure” under the Fourth Amendment. Bostick, 501 U.S. at 434, 111 S.Ct. at 2386, 115 L.Ed.2d at 398.

After reviewing the particular facts of the case at bar, it is clear Smith was not seized. The deputy expeditiously took reasonable measures to identify Smith. The deputy asked Smith for identification; Smith voluntarily complied with the deputy’s request and allowed the deputy to check for outstanding warrants. There is no evidence the deputy used a commanding or threatening tone, displayed a weapon, or touched Smith. See United States v. Hernandez, 93 F.3d 1493, 1499 (10th Cir.1996); see also Drayton, 536 U.S. at 204, 122 S.Ct. at 2112, 153 L.Ed.2d at 253 (“ample grounds” for district court finding of no seizure where “no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice”). The entire episode lasted but a minute; it was no more intrusive to check Smith’s identification than to ask him a few questions. Smith was not seized: under the circumstances, a reasonable person would have felt free to decline the deputy’s request for his ID. See INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247, 255 (1984) (noting that although “most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response”); see, e.g., Pickett, 573 N.W.2d at 247-48 (no seizure where officer approached man sitting on motorcycle in a ditch and asked him to undergo field sobriety tests); State v. Ledezma, 549 N.W.2d 307, 310 (Iowa Ct.App. 1996) (no seizure where officer asked for, but did not order, participation in eyewitness identification); Johnson, 395 N.W.2d at 664-65 (no seizure where police officers merely stopped individuals and asked them to identify themselves). See generally 4A B. John Burns, Iowa Practice: Criminal Procedure § 37.5, at 518 (2004) (“Not all encounters between police and subjects are seizures. Police officers are not precluded from approaching a person on the street' and asking the person if he or she is willing to answer questions....”). Because Smith was not seized, the district court should not have granted his motion to suppress.

In reaching this conclusion, we are cognizant of the fact Smith was a passenger, and was thus in some sense not free to leave the scene. Two recent United States Supreme Court cases are instructive. In Bostick and Drayton, the Court upheld the constitutionality of random drug and weapons interdiction efforts on buses. Bostick, 501 U.S. at 434, 111 S.Ct. at 2386, 115 L.Ed.2d at 398; Drayton, 536 U.S. at 203-04, 122 S.Ct. at 2112, 153 L.Ed.2d at 253-54. In both cases, police officers randomly boarded buses and asked passengers for identification and consent to search their luggage and persons. In Bostick, the defendant argued he was seized because, as a passenger on a bus, he was not free to leave the scene — after all, if the passenger would have left, he would have risked becoming stranded or, at the very least, losing his baggage as the bus left without him. The Supreme Court rejected this argument: as a passenger on a bus, the defendant

would not have felt free to leave ... even if the police had not been present. [The defendant’s] movements were “confined” in a sense, but this was the natural result of his decision to take the bus; it says nothing about whether the police conduct at issue was coercive.... [The defendant’s] freedom of movement was restricted by a factor independent of police conduct — i.e. by his being a passenger on a bus. Accordingly, the “free to leave” analysis ... is inapplicable. In such a situation, the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.

Bostick, 501 U.S. at 436, 111 S.Ct. at 2387, 115 L.Ed.2d at 399-400. For the same reasons, we do not apply a “free to leave” analysis to the facts of this case. A reasonable person in Smith’s position would feel free to decline the deputy’s requests or otherwise terminate the encounter. See Delgado, 466 U.S. at 216, 104 S.Ct. at 1762-63, 80 L.Ed.2d at 255; White, 81 F.3d at 778-79 (upon returning defendant’s license and registration, and issuing warning, “encounter became nothing more than a consensual encounter between a private citizen and a law enforcement officer”); accord State v. Williams, 255 Wis.2d 1, 646 N.W.2d 834, 842 (2002) (motorist not “seized” when officer, after traffic stop was complete, asked for consent to search). At no time did it transcend into an unjustified Terry stop.

IY. Conclusion

Smith’s Fourth Amendment right against unreasonable seizures was not violated when an officer asked him for identification and checked for an outstanding warrant. Suppression of the methamphetamine was improper. We reverse the district court’s ruling to the contrary and remand for further proceedings.

REVERSED AND REMANDED.

      . The district court found the deputy also asked the driver for the name of her passenger and she did not know it. At the motion to suppress hearing, the deputy stated:
      I had gone to ... a school in Johnston, Iowa, and they told us many suspicious types of behaviors and what not, and one of those was having weird circumstances as far as not being the person's car they’re driving, ... not knowing who the passengers are that they're riding with, ... not even knowing the person that owns the car very well. All those were suspicious, and that is actually the main reason I was suspicious.

        See United States v. Foley, 206 F.3d 802, 805 (8th Cir.2000) ("an officer may undertake ... questioning of [passengers] to verify information provided by the driver"); United States v. Johnson, 58 F.3d 356, 357 (8th Cir.1995) (same); see also State v. Aderholdt; 545 N.W.2d 559, 564 (Iowa 1996) (Where a driver's "responses ... raise suspicions unrelated to the traffic offense, the officer's inquiry may be broadened to satisfy those suspicions.”). But see United States v. Mendoza-Camllo, 107 F.Supp.2d 1098, 1102 (D.S.D.2000) (fact driver did not know passenger's last name even though he had worked with him for six months does not raise an additional suspicion to warrant questioning passenger). Because it does not affect our resolution of this case, we need not decide whether the deputy’s statement supports the district court's findings.

      . Smith claims the deputy told the driver she was free to leave. There is no evidence in the record to support this claim, and the district court did not make such a finding.

      . We note, however, that in Riley the officer had also issued the citation to the driver before approaching the passenger. 501 N.W.2d at 487. That said, we were not presented with this issue in Riley, and therefore our decision in that case should not be understood as a rejection of Smith’s claim. Cf. Sager v. Farm Bureau Mut. Ins. Co., 680 N.W.2d 8, 14 (Iowa 2004).

      . As the State points out, once the dispatcher told the deputy there was a warrant for Smith’s arrest in a nearby county, the deputy had, at the very least, a reasonable suspicion to detain Smith until the warrant could be verified. We do not, then, consider this lapse of time in determining whether Smith was unconstitutionally seized.

      . In holding the deputy did not seize Smith when he asked for identification and received Smith's consent, we note that we are not presented with the question of whether a defendant may be required to identify himself. Compare Brown v. Texas, 443 U.S. 47, 52-53, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357, 363 (1979) (state may not arrest or punish individual for refusing to identify himself absent reasonable suspicion he was engaged in criminal conduct), with Hiibel v. Sixth Judicial Dist. Court, 118 Nev. 868, 59 P.3d 1201 (2002), affd., —■ U.S. -, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004) (state may do so upon a showing of a reasonable suspicion. The Iowa Court of Appeals has vacated a judgment of conviction for interference with official acts for failure to identify absent reasonable suspicion. See State v. Hauan, 361 N.W.2d 336, 340-41 (Iowa Ct.App.1984) ("This is not a country where an individual must present his or her green card and proper papers at the whim of a law officer, or face jail.”).