text:
    2002 SD 73
    Joanne GAUER, Petitioner and Appellant, v. KADOKA SCHOOL DISTRICT NO. 35-1 and Kadoka Board of Education, Respondent and Appellee.
    No. 22009.
    Supreme Court of South Dakota.
    Argued March 25, 2002.
    Decided June 19, 2002.

      Ms. Anne Plooster, South Dakota Education Association, Pierre, for petitioner and appellant.

      Mr. Thomas H. Harmon of Tieszen Law Office, Pierre, for respondent and appellee.
   AMUNDSON, Justice.

[¶ 1.] Joanne Gauer’s (Gauer) employment contract was not renewed by the Board of the Kadoka School District (Board). Gauer appealed the Board’s decision, and the circuit court affirmed the Board’s decision for nonrenewal on appeal. We, too, affirm.

FACTS

[¶ 2.] The Board hired Gauer as a teacher and counselor for the 1986-87 school year. Gauer remained in that position for fourteen years, and she received positive evaluations for her work at the school. In the spring of 2000, Ken Poppe (Poppe), school superintendent, received word from the South Dakota Department of Education that renewing Gauer’s South Dakota Teaching Certificate was problematic due to a prior suspension of Gauer’s teaching license in North Dakota. As a result, Poppe asked District Attorney Rodney Freeman to look into the matter. After some investigation, Freeman reported that Gauer’s North Dakota license had been suspended in 1985 for sexual misconduct. Gauer had, on several occasions, engaged in sexual activity with a seventeen-year-old female who had just graduated from Ellendale High School where Gauer had been the guidance counselor. Gauer, who befriended her student through her position as counselor, was charged criminally for this conduct. She pleaded guilty to Corruption of a Minor and resigned from her position as guidance counselor and teacher in Ellendale. Gauer received a deferred imposition of sentence and her North Dakota teaching certificate was suspended.

[¶ 3.] ' In April of 2000, Poppe informed the Board of these facts at a closed, special meeting and the Board voted not to renew Gauer’s contract. Gauer was notified of its decision, and requested a hearing, which was held in June of 2000. Between April and June, Gauer was placed on leave with pay. During the hearing Gauer admitted that she never reported the incident in North Dakota to the Board and testified that she did not think she was obligated to do so.

[¶ 4.] At Gauer’s hearing, evidence of the sexual misconduct in North Dakota, as well as other insubordinate behavior was presented. The Board decided not to renew Gauer’s contract based on “incidences of insubordination and display of lack of professional judgment as well as gross immorality involving the suspension of [her] teaching certificate in the State of North Dakota and [her] failure to disclose that fact to the Board of Education.” Gauer appealed the Board’s decision to circuit court, which affirmed. Gauer appeals, raising the following issues:

1) Whether the appropriate procedural steps were taken to satisfy Gauer’s right to due process.
2) Whether the Board’s decision to nonrenew Gauer’s contract was arbitrary, capricious or an abuse of discretion.

STANDARD OF REVIEW

[¶ 5.] As stated in Collins v. Faith School District, 1998 SD 17, ¶ 13, 574 N.W.2d 889, 892, the standard of review for school board decisions, is as follows.

[T]he circuit court’s review is not a trial de novo in the ordinary sense of the phrase. School boards are creatures of the [L]egislature and the judiciary may not interfere with their decisions unless the decision is made contrary to law. Therefore, “[a]s long as the school board is legitimately and legally exercising its administrative powers, the courts may not interfere with nor supplant -the school board’s decision making process.” Only the legality of the decision, not the propriety of the decision, may be reviewed by the courts. The legality of a school board’s decision is determined by a two-prong review. First; the: procedural regularity of »the decision is. reviewed. This review includes whether the school board was vested with' the authority to act and whether all procedural requirements required by law were followed. Second, the school board’s decision is reviewed to determine whether the decision was arbitrary, capricious or an abuse of discretion. The circuit court may reverse or modify the school board’s decision only “if substantial rights of appellant have been prejudiced because the . board’s findings, inferences, conclusions, or decisions are clearly erroneous in light of the entire evidence in the record, or are arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”

(internal citations omitted). “[W]e review facts under the clearly erroneous standard” and “questions of law are reviewed de novo.” Wuest v. Winner Sch. Dist., 2000 SD 42, ¶ 12, 607 N.W.2d 912, 916.

DECISION

[¶ 6.] 1) Whether the appropriate procedural steps were taken to satisfy Gauer’s right to due process.

[¶ 7.] Gauer argues that inappropriate information was distributed at the special meeting of the School Board in April, which was held to apprise the Board of Poppe’s discoveries, thereby violating her due process rights. She alleges that the Board was inappropriately informed of the underlying reasons for Poppe’s recommendation of nonrenewal of her contract, which, in turn, “tainted” the nonrenewal process. She argues the Board was given “excess information,” which denied her the right to a fair and impartial hearing. Gauer believes that the Board should have been given only enough information to make a decision, and that the details of her past misconduct, such as the sex of the victim, served only to “flame the prejudice.”

[¶ 8.] We have previously acknowledged that “executive or closed meetings of public boards may be held to discuss the qualifications, competence, performance, character or fitness of any public officer or employee or prospective public officer or employee.” Id. at ¶ 23 (citing SDCL 1-25-2). Then, once the decision has been made to terminate a teacher, proper notice must be given to that- teacher. See SDCL 13-43-6.2; Wuest, 2000 SD 42 at ¶¶ 24-25, 607 N.W.2d at 917. SDCL 13-43-6.2 requires that teachers be given “written notice of termination” and “a written statement of the reasons for the termination[.]” Furthermore, the teacher must be given the right to a hearing before the school board. “Due process requires notice and an opportunity to be heard.” Wuest, 2000 SD 42 at ¶25, 607 N.W.2d at 917 (citing Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556, 569 (1972)). So long as the Board followed the appropriate prerequisites for termination as provided by state law, Gauer did not have a property interest in continued employment. Id.

[¶ 9.] With regard to the alleged excessive information, in Wuest, we acknowledged that the Board did not give specific underlying reasons for recommending a non-renewal during an executive session, “presumably” to avoid bias by board members. Id. at ¶ 24. We did not, however, place an outright ban on the use of underlying concerns for potential dismissal. In that case, we said “it was necessary to receive ... recommendations [not to renew a teacher’s contract] in order for [the Board] ... to have a logical basis for its initial resolution and the notice it would serve on [the affected teacher].” Id. Clearly, a “fair tribunal” free from bias is a basic tenet of due process. Strain v. Rapid City Sch. Bd. for Rapid City Area Sch. Dist., 447 N.W.2d 332, 336 (S.D.1989). We have said that to prove actual bias the record must establish “either actual bias on the part of the Board or the existence of circumstances that lead to the conclusion that an unacceptable risk of actual bias or prejudgment inhered in the Board’s procedure.” Riter v. Woonsocket Sch. Dist., 504 N.W.2d 572, 574 (S.D.1993).

[¶ 10.] Here, Gauer claims disclosing the gender of the victim at the executive session created bias, and that this bias is proven by board members’ comments after the executive meeting. Gauer further, argues that after the executive session, Jack Hanson, a Board, member, made the comment that nonrenewal of Gauer’s contract was “not a difficult decision.” We, however, acknowledge that the underlying reason for reviewing Gauer’s contract was necessarily reviewed by the Board at the executive session, and the underlying facts would have been analyzed whether the North Dakota incident involved a male or female victim. Although the impetus for concern is somewhat controversial, the Board had to review the facts in order to make the initial decision on whether to renew Gauer’s contract. The requisite hearing and procedures essential for effective due process later followed the executive session. Additionally, the record demonstrates that Hanson, who allegedly made biased comments, was not even present at Gauer’s hearing. Thus, nothing in the record establishes that comments made following the April meeting conclusively establish bias, or an “unacceptable risk of actual bias or prejudgment” by the Board. Id.

[¶ 11.] Moreover, we have acknowledged that the Board should be “afforded a strong presumption of good faith.” Id. “[G]reat deference is given to the good faith determinations of school boards on decisions of whether to renew a teacher’s contract.” Wuest, 2000 SD 42 at ¶ 12, 607 N.W.2d at 915-16. “The burden is on the person challenging a board’s decision to overcome the presumption that the board was acting in good faith.” Nordhagen v. Hot Springs Sch. Dist., 474 N.W.2d 510, 513 (S.D.1991). Gauer has not carried her burden on this necessary showing of bias by the Board, which would sustain a violation of her due process rights.

[¶ 12.] Further, we note that the Board did not attempt to deceive or withhold information from Gauer, which, if done, could have violated her due process rights. See Strain, 447 N.W.2d at 335-36 (holding board did not fail to disclose exculpatory information in violation of teacher’s due process rights). The Board disclosed the reasons for non-renewal of Gauer’s contract, and after a full and fair hearing, chose not to continue its contract with Gauer. The record evinces an adequate disclosure of information and the appropriate procedural steps to ensure Gauer’s due process rights-were safeguarded. Therefore, we affirm on issue one.

[¶ 13.] 2) Whether the Board’s decision to nonrenew Gauer’s teaching contract was arbitrary, capricious or an abuse of discretion.

[¶ 14.] Next, Gauer argues that the decision of the Board was arbitrary and capricious. We have previously stated the following with regard to defining arbitrary and capricious:

“In determining whether the school board’s decision was arbitrary, capricious or an abuse of discretion, the circuit court must ascertain whether there is substantial evidence to support the school board’s decision.” Substantial evidence means such relevant and competent evidence as a reasonable mind might accept as adequate to support a conclusion. We must determine whether Board was clearly erroneous by examining the evidence supporting its decision.

Maasjo v. McLaughlin Sch. Dist., 489 N.W.2d 618, 621 (S.D.1992) (quoting Moran v. Rapid City Area Sch. Dist., 281 N.W.2d 595, 599 (S.D.1979)). See also Oldham-Ramona Sch. Dist. v. Ust, 502 N.W.2d 574, 580 (S.D.1993) (defining arbitrary and capricious).

[¶ 15.] Although the record contains evidence of insubordination and immorality by Gauer, we first acknowledge the evidence that indicates Gauer was in many respects a good teacher, not the sexual predator that the Board attempted to paint her as in its argument. There were numerous positive teacher evaluations in the record demonstrating Gauer performed well in the classroom. Furthermore, there is some evidence that Gauer did not hide the incident from the previous superintendent when she applied for her job in Kadoka. A letter to the previous superintendent of the Kadoka Schools from Gauer’s treating certified sex counselor states the following:

Miss Gauer has asked me to write to you concerning her counseling.... Miss Gauer is on probation, which included court-ordered counseling for a charge of sexual contact with a female high school student in North Dakota.
⅛ • ⅜
Miss Gauer exhibits remorse for her actions and is highly motivated to make the necessary changes to see that this does not happen again. Her prognosis for the completion of successful treatment is excellent at this time.

Gauer entered this evidence, but the Board and trial court were not convinced that the previous board was made aware- of the North Dakota incident.

[¶ 16.] If the only evidence against Gauer was the North Dakota incident, the evidence may not have equated to “substantial evidence” or “relevant and competent” evidence for the Board not to renew Gauer’s contract. Maasjo, 489 N.W.2d at 620. In this case, however, there was additional evidence to support the norire-newal. Poppe’s notes written after meetings with Gauer indicated that Gauer was critical of other staff members; had emotional outbursts and cried during meetings with Poppe; Gauer was difficult to work with; and Gauer .yelled at Poppe, as well as other school staff members. Thus, signs of insubordination were presented.

[¶ 17.] Although we acknowledge the positive aspects of Gauer’s teaching career in Kadoka, we are not to act as triers of fact in this case. Rather, we must adhere to our more limited standard of review. Collins, 1998 SD 17 at ¶ 13, 574 N.W.2d at 892. Under SDCL 13-43-6.1, “[a] teacher may be terminated, by the school board, at any time for just cause, including breach of contract, poor performance, incompetency, gross immorality, Unprofessional conduct, insubordination, neglect of duty, or the violation of any policy or regulation of the school district.” We find that the evidence of insubordination, in conjunction with the prior sexual conduct evidence, provides “just cause” for nonrenewal under this statute; there was adequate evidence to hold that the Board’s decision was not arbitrary and capricious. Maasjo, 489 N.W.2d at 620.

[¶ 18.] We find any other issues raised to be without merit.

[¶ 19.] Therefore, we affirm.

[¶ 20.] GILBERTSON, Chief Justice, and SABERS, and KONENKAMP, Justices, and CALDWELL, Circuit Judge, concur.

[¶ 21.] GORS, Acting Justice, deeming himself disqualified, did not participate.

[¶ 22.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

      . At the hearing before the Board, Gauer admitted to the relationship with the former student. Gauer testified that the former student had been released from a psychiatric hospital prior to attending Ellendale High School, and Gauer was supposed to assist her in her transition back to school.

      . Although the current Board and superintendent did not know about this sexual misconduct, it appears that Gauer may have informed the previous superintendent, ’ Joe Blando, about the North Dakota incident. This is evidenced by a letter from her counsel- or to Blando explaining her progress and expected success in completing her treatment after this incident with the student in North Dakota. The Board, however, concluded that no "credible and competent evidence” indicated that the. previous Board members were informed of the incident.

      .These findings were based on the occurrence in North Dakota, in conjunction with acts of criticizing: other staff members, arguments with Poppe, failure to cooperate with other staff members and emotional outbursts.

      . In Strain we dealt with whether bias existed within a school board, and stated the following:
      Not only is a biased decision maker constitutionally unacceptable, but “our system of law has always endeavored to prevent even the probability of unfairness.” The standard to be applied is whether the record establishes either actual bias on the part of the Board or the existence of circumstances that lead to the conclusion that an unacceptable risk of actual bias or prejudgment inhered in the Board's procedure. The United States Supreme Court has observed, however, that a school board is not disqualified as the decision maker solely because of the prior involvement in a dismissal case [citing Hortonville Dist. v. Hortonville Ed. Assoc., 426 U.S. 482, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976) ]. Pre-decision involvement "is not enough to overcome the presumption of honesty and integrity in policy makers with decision making power.” Strain, 447 N.W.2d at 336 (other internal citations omitted).

      . Gauer further contends under her violation of due process claim that she offered to resign if the Board would rescind its motion to non-renew her contract. ■ This record does not conclusively establish that a formal settlement offer was made and rejected.

      . Gauer also argues in part under this issue that the Board was erroneously permitted to utilize SDCL 13-10-12 before it went into effect in July of 2000. The record indicates that the Board presented the statute at the hearing, and that.Poppe testified that under this new law he would be unable to recommend her for employment. The record does not indicate that Gauer had to "submit to a criminal background investigation, by means of fingerprint checks by the Division of Criminal Investigation and the federal Bureau of Investigation” before obtaining employment at the Kadoka school, which is what SDCL 13-10-12 provides. Rather, the law was used only to point out what Poppe would do in the future. In this case, the law was not utilized to nonrenew the contract. The superintendent simply looked into a criminal record that was brought to his attention by the South Dakota Department of Education. Therefore, the argument that the introduction of this law resulted in an arbitrary and capricious decision is without merit.


source: Caselaw Access Project

author: SABERS, Justice. KONENKAMP, Justice

license: Public Domain

text:
    2002 SD 72
    Ivana KLENZ, Individually and as Mother and Special Administratrix of the Estate of Jan Wunderlich, a Deceased Minor, Plaintiff and Appellant, v. AVI INTERNATIONAL, Defendant and Appellee.
    No. 22033.
    Supreme Court of South Dakota.
    Argued March 28, 2002.
    Decided June 19, 2002.

      Robert L. Morris of Day, Morris and Schreiber, Belle Fourche, for plaintiff and appellant.
    • Gregory G. Strommen of Costello, Porter, Hill, Heisterkamp, ■ Bushnell and Carpenter, Rapid City, for defendant and ap-pellee.
   SABERS, Justice.

[¶ 1.] Ivana Klenz commenced a lawsuit against AVI International (AVI) after it refused a demand for payment of legal expenses incurred in a wrongful death suit initiated by Klenz. AVI moved for summary judgment and the trial court granted the motion on the basis that 2) there was no personal jurisdiction over AVI.. Klenz appeals. We reverse Issue 2), but affirm Issue 3) on the basis that there is no sufficient showing that the'forum selection clause is invalid.

FACTS

[¶ 2.] In August 1996, Jan Wunderlich, a seventeen-year-old foreign exchange student from Germany, was placed by AYU-SA International in a host home in Newell, South Dakota. As a foreign exchange student in the AYUSA International program, Wunderlich was insured through AVI under the “Security Pass’Port” program, specifically Policy No. 290-682 ' AVI/AYU. Wunderlich received an AVI insurance identification card, identifying him as an insured participant. AVI obtained this insurance policy through Chubb Insurance of Europe, which was referred to as the insurer. AVI was denominated a broker, AYUSA International was denominated the policy holder and Jan Wunderlich was denominated the beneficiary.

[¶ 3.] The insurance policy was effective for the 1996-97 academic year and provided worldwide coverage for medical/accident, dental, travel expense, death benefits, disability, third party liability and legal expenses. Specifically, with respect to legal expense coverage, the policy covered necessary and reasonable attorney and litigation expenses incurred by the insured as a plaintiff or defendant in a legal action. Coverage began when Wun-derlich departed from Germany and would have ended when he returned to Germany.

[¶ 4.] On October 12, 1996, Wunderlich was killed in a car accident on Highway 79, near rural Newell, Butte County, South Dakota, while a passenger in a friend’s vehicle. On March 25, 1999, Klenz, Wun-derlich’s mother, was appointed as special administratrix of his estate in Butte County. Klenz brought a wrongful death suit against the host family, the driver of the vehicle and AYUSA International. At the conclusion of. the suit, Klenz demanded payment of legal expenses from AVI. AVI refused, causing Klenz to bring this action against AVI for legal expenses in Butte County.

[¶ 5.] AVI is a French corporation with its principal place of business in France. It- maintains a claims office at 26 Third Street, San Francisco, California, 94103. Klenz served AVI through its claims office in San Francisco with a summons and complaint on August 2, 2000. On January 16,. 2001, AVI filed a motion to dismiss asserting lack of personal jurisdiction over AVL Following a hearing on March 12, the trial court denied AVI’s motion to dismiss on March 16. AVI then filed a motion to reconsider and a hearing was held on April 12. At that meeting the parties agreed to convert the motion to dismiss into a motion for -summary judgment, with the understanding that any order- of summary judgment would be appealed to this Court. The trial court granted summary judgment in favor of AVI on May 8, 2001.

STANDARD OF REVIEW

[¶ 6.] Our standard of review for summary judgment is well established and is “whether a genuine issue of material fact exists and whether the law was correctly applied.” Manuel v. Wilka, 2000 SD 61, ¶ 17, 610 N.W.2d 458, 462 (citing Parmely v. Hildebrand, 1999 SD 157, ¶7, 603 N.W.2d 713, 715-16 (citations omitted)).

[¶ 7.] 1. WHETHER KLENZ’S APPEAL IS BARRED BECAUSE OF THE AGREEMENT TO CONVERT A MOTION TO DISMISS INTO A MOTION FOR SUMMARY JUDGMENT.

[¶ 8.] AVI argues that this appeal is barred by the parties’ agreement for summary judgment. During the April 12, 2001 hearing on the motion to dismiss, the trial court made the following statements.

[Wje’ve got a very unique set of geographic circumstances, I am still dumfounded that no place in the entire world has made the determination that each of you is asking me to make, and I think that that’s something that should be decided before you guys spend thousands of dollars on trial preparation and then we try the case and maybe end up with a verdict that gets tossed. So I’m inclined at this point to treat it as a summary judgment, grant it as a summary judgment, dismiss the case and rule on everything that’s been presented so that you get it decided once on jurisdiction issues, the forum selection clause, and the policy, and anything else that’s being raised, so if you proceed- with trial, you know that at least you don’t have that issue gnawing at you.

Both parties agreed with the trial court’s comments and the trial court converted the motion to dismiss to a motion for summary judgment and granted summary judgment.

[¶ 9.] AVI asserts that when Klenz agreed to the conversion of the motion to dismiss, she was not entitled to appeal the trial court’s decision. This argument is without merit. The parties’ agreement to convert AVI’s motion to dismiss to a motion for summary judgment is not a stipulation for summary judgment. The agreement to convert the motion was done with the intent of appealing the case to this Court. It was not an agreement that summary judgment was appropriate on the merits.

[¶10.] 2. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE BASIS THAT IT LACKED PERSONAL JURISDICTION OVER AVI.

[¶ 11.] ■ AVI asserts that it lacked sufficient minimum contacts with South Dakota to subject it to personal jurisdiction. AVI argues that, because it is an insurance broker, and not an insurer, the trial court had no way of obtaining jurisdiction over it. Specifically, AVI contends that it could not have anticipated being haled into court in the state because it did not issue the insurance policy and merely found a company to underwrite the policy.

[¶ 12.] This Court has set out the principles for- determining when circumstances provide sufficient contacts between -a nonresident defendant and this state to support personal jurisdiction. These principles are well established.

First, the defendant must purposefully avail himself of the privilege of acting in the forum state, thus invoking the benefits and protections of its law. Second, the cause of the action must arise from defendant’s activities directed at the forum state. Finally, the acts of defendant must have substantial connection with the forum state to make the exercise of jurisdiction over defendant a reasonable one. An important factor bearing upon reasonableness of asserting jurisdiction is to determine if defendant’s conduct and connection with the forum state are such that he would have reasonably anticipated being brought into court there.

Miller v. Weber, 1996 SD 47, ¶8, 546 N.W.2d 865, 867 (quoting Opp v. Nieuwsma, 458 N.W.2d 352, 355-56 (S.D.1990)).

[¶ 13.] While AVI may not be the primary insurer, it did issue the Security Pass’Port, which is an insurance policy. The Security Pass’Port information provided to the student as beneficiary includes: (1) an AVI insurance policy number; (2) an AVI International insurance I.D. card; (3) the address for the AVI Insurance Claim Service; (4) the events that trigger insurance coverage; and, (5) the limits of the AVI insurance policy coverage. And, as the issuer of this Security Pass’Port policy, AVI is a broker and a guarantor or insurer of the policy.

[¶ 14.] Personal jurisdiction may be obtained over a foreign defendant if the plaintiffs claim arises out of or relates to the defendant’s contacts with the forum. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2181-82, 2185, 85 L.Ed.2d 528, 540-41 (1985). Furthermore, a single contact with the-forum ⅛ sufficient if the plaintiffs claim arises out of that contact. See McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223, 226 (1957).

[¶ 15.] Wunderlich was a foreign exchange student in South' Dakota. During this time he was covered by the provisions of the Security Pass’Port. The accident in which he was killed occurred in South Dakota and the subsequent wrongful death suit was brought in South Dakota. The purpose of the insurance policy or Security Pass’Port policy issued by AVI is to provide worldwide coverage for the foreign exchange student while he/she is away from home. As the broker, guarantor, and insurer of the policy, AVI should have anticipated that it could be brought into court wherever the insured foreign exchange student resided or traveled.

[¶ 16.] AVI, as a broker, guarantor and insurer, did have a substantial connection with South Dakota and exercising personal jurisdiction over it is not improper. Under these circumstances, AVI cannot persuasively argue that it could not have reasonably anticipated being brought into court in this state.

[¶ 17.] 3. WHETHER THE FORUM SELECTION CLAUSE IN THE AVI INTERNATIONAL SECURITY PASS’PORT IS SHOWN TO BE UNFAIR OR UNREASONABLE IN THIS ACTION FOR ATTORNEY’S FEES, MAKING IT INVALID.

[¶ 18.] AVI argues that Klenz is bound by the forum selection clause included- in the Security Pass’Port. The AVI International Security Pass’Port provides in part:

This contract has been signed in France by the policy holder [AYUSA International] as the insurance companies underwriting the contract are located in Paris, France.
According to the French insurance regulation and the French consumer act, all disputes between the policyholder or the insured and the insurance companies must be brought to court in France.

Accordingly, AVI argues that Klenz is required to bring her action in France.

[¶ 19.] As indicated, a hearing was held on April 12, 2001, to consider AVI’s motion to dismiss and determine whether that motion should be converted into a motion for summary judgment. During the hearing, the trial court stated:

If I grant the motion to dismiss for lack of jurisdiction over the person, and further find that there is insufficient evidence of an adhesion contract, therefore, the forum selection clause in the policy is valid, then you have a final judgment from which you can appeal and the Supreme Court has to hear it, and then they have to tell us whether or not there is jurisdiction over the person before we try this case.
Because I could see the Supreme Court saying there is no activity by the Defendant, whether it’s the insurance company or just a broker, that subjects this Defendant to jurisdiction in this state or creates the sufficient minimum contacts. Or they may say even if there was, there is a valid forum selection clause, so you people wasted a year and a half of your time getting this case to a verdict.
Then I can see them on the other hand maybe coming back and thinking like I was thinking, and that is when you write a policy of insurance good all over the world that provides coverage for up to $600,000 in legal expenses that are going to be incurred outside of the country in which this policy is written and can only occur outside that country, therefore, under these unique circumstances, there is sufficient minimum contact with any country or state in which this foreign exchange student travels to create minimum contacts with that forum and subjects the company to liability.
I could see the Court saying that as a matter of public policy, that this is totally useless, worthless insurance coverage to the extent of $600,000 because nobody can 'afford to go to France to litigate the policy. That’s where Fm at with this thing:

(emphasis added)'.

[¶ 20.] The trial court granted summary judgment because of lack of jurisdiction. It heard no .evidence regarding the unfairness or unreasonableness of the forum selection clause and made no specific determination or, findings on the issue. Despite the statements of the trial court set forth above in ¶ 19, it did not make a ruling as to the invalidity of the forum selection clause.

[¶ 21.] This Court has stated that “when the parties to a contract agree that actions arising from that contract will be brought in a particular jurisdiction, that agreement should be given effect unless it is shown that to do so would be unfair or unreasonable.” Green v. Clinic Masters, Inc., 272 N.W.2d 813, 815 (S.D.1978). In Green, this Court cited the following authority:

The modern cases say that contracts limiting judicial jurisdiction will be respected if there is nothing unfair or unreasonable about them, but will be disregarded if they are unfair or unreasonable. They are more likely to be sustained if they related to disputes already arisen or contemplated, but that is not a rigid limitation. They are less likely to be sustained if they appear in adhesion1 contracts' prepared-in advance by one of the parties, and will generally be disregarded if genuine inconvenience or inadequacy of remedy would ensue from them.

272 N.W.2d at 815 (citing R. Leflar, American Conflicts Law, 3d ed., § 52, p. 100-101) (footnotes omitted). The “party seeking to obviate the agreement has the burden of proving its unreasonableness.” Green, 272 N.W.2d at 816 (citing Cent. Contracting Co. v. C.E. Youngdahl & Co., 418 Pa. 122, 209 A.2d 810, 816 (1965)). See, e.g., Rozeboom v. Northwestern Bell Tel. Co., 358 N.W.2d 241, 243 (S.D.1984) (holding that a limitation of liability clause in a standardized contract was unreasonable and unconscionable in light of the facts of the case).

[¶ 22.] As a member of the AYUSA International program, it appears Wunder-lich had little choice but to accept the terms and conditions of the program. He never negotiated the provisions of the Security Pass’Port, nor did he have the opportunity to negotiate them. Neither Wunderlich nor Klenz signed this contract. AVI argues that this forum selection clause is reasonable because it reduces the cost of the insurance to the insured. However, the provision requiring that any litigation must be pursued in France tends to defeat the purpose of sending the Security Pass’Port along with the student. The purpose of the Security Pass’Port is to provide the student with worldwide insurance coverage. Limiting the insured student’s forum for dispute resolution to France is somewhat contrary to providing worldwide coverage and to the purpose thereof.

[¶ 23.] However, AVI may be inconvenienced if it is required to litigate claims for attorney’s fees in any forum, worldwide. In Barnett v. Network Solutions, Inc., 38 S.W.3d 200 (Tex.Ct.App.2001), the Texas Court of Appeals addressed a similar situation. It stated:

We also disagree with [plaintiffs] claim that the forum selection clause was placed in the registration agreement only to discourage legitimate legal claims. Even though NSI does not have the burden on this issu^, the record reveals that there were legitimate rea^ sons for including the forum selection clause in the contract. .NSI has received more that 6,000,000 registration applications from throughout the world. Without a forum selection provision, NSI could be sued in forums, throughout the world. Furthermore, because NSI charged only $35 per registration, the forum selection clause was a reasonable way to keep the price of the service low and to eliminate uncertainties.

Id. at 204 (internal citations omitted) (emphasis added). Although not provided in the record, the number of students insured under the AVI Pass’Port would be substantial.

[¶ 24.] A forum selection clause may be unreasonable in light of this Court’s factors for determining reasonableness:

1. The law which governs the formation and construction of the contract;
2. The residency of the parties;
3. The place of execution and/or performance of the contract; and,
4.- The location of the parties and witnesses involved in the litigation.

Baldwin v. Heinold Commodities, Inc., 363 N.W.2d 191, 194 (S.D.1985).

[¶25.] Undfer these factors, the forum selection clause may be reasonable. First, the law governing the formation and construction of the contract is the law of France, not the law of South Dakota. Second, both parties are residents of Europe. Third, the place of execution and performance of the contract was Europe, if not France. Finally, the location of the parties and witnesses favors litigation in France. Klenz, AVI and Chubb are located in Europe and only Klenz’s attorney is located in South Dakota.

[¶ 26.] However, it remains difficult to determine whether the forum selection clause is unfair or unreasonable under South Dakota law because of the undeveloped record and incomplete reasoning'on the part of the trial court. The record does not specify the litigation expenses being sought by Klenz as administratrix or the amount thereof. Nor does the record disclose whether the expenses'incurred in the underlying wrongful death suit have been paid to trial counsel or whether Klenz is seeking reimbursement for litigation expenses already paid.

[¶ 27.] The policy provides in part on page 17:

IMPORTANT: Only the insurance company may appoint a legal counsel. No coverage will be provided if this right is in any way violated. If the company made any payments to you under this policy, it is entitled to pursue a legal settlement with the party responsible for the damage.

If only the insurance company may appoint legal counsel, and, presuming this provision has been waived or executed in the area where the beneficiary was injured, it may impose upon the beneficiary or his heirs the increased expense of hiring second appointed counsel. However, it may be equally inconvenient for AVI to hire counsel in a foreign forum.

[¶ 28.] These and other matters are important factors to consider in determining the reasonableness and validity of the forum selection clause in this case. As stated, from this record, it is difficult to determine whether the forum selection clause presents a “genuine inconvenience or inadequacy of remedy” to this plaintiff as required under Green.

[¶ 29.] We acknowledge that plaintiffs counsel may have felt compelled to agree to changing the dismissal motion to a motion for summary judgment without having all evidence admitted. However, the burden is upon the challenger to show that the forum selection clause is unreasonable or unfair and thereby invalid under the circumstances. This burden has not been met and we must affirm this issue.

[¶ 30.] Therefore, we reverse Issue 2 and affirm Issue 3.

[¶ 31.] GILBERTSON, Chief Justice, and GORS, Acting Justice, concurs.

[¶ 32.] AMUNDSON and KONENKAMP, Justices, concur in part and concur in result in part.

[¶ 33.] ZINTER, Justice, not having been a member of the Court at- the time this action was submitted to the Court, did not participate.

KONENKAMP, Justice

(concurring and concurring in result).

[¶ 34.] I concur with the majority on Issues One and Two. As to Issue Three, I concur in the result only: there should be no doubt that the forum-selection clause is enforceable, reasonable, and fair under the circumstances of this case. Unfortunately, the reasoning in the majority opinion clouds the issue, works an injustice to Klenz, and may work an injustice to future plaintiffs who find themselves in a similar position.

[¶ 35.] In the course of its discussion, the majority adopts the four-factor test, notes that, “[u]nder these factors, the forum selection clause may be reasonable,” and then proceeds to show that all four factors are (or at least seem to be) satisfied. There is no fifth factor in the precedents, yet the majority writing claims that “it remains difficult to determine whether the forum-selection clause is unfair or unreasonable under South Dakota law because of the undeveloped record and incomplete reasoning on the part of the trial court.” These pronouncements are entirely unwarranted. The record is no more developed than it is because the parties agreed that it need not be further developed; they themselves did not see the need to state the amount of litigation expenses involved or the identity of the party who is to receive payment from AVI or Chubb. After all, these facts have nothing to do with whether the forum selection clause is enforceable.

[¶ 36.] The law in this area is clear and ought not to be muddied with unnecessary dicta. In Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), the United States Supreme Court held that forum-selection clauses are “prima facie valid and should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable’ under the circumstances.” Id. at 10, 92 S.Ct. at 1913, 32 L.Ed.2d at 520. A forum-selection clause is “unreasonable” where a party can make a “strong showing” either that the forum thus selected is “so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court,” or that the clause was procured through “fraud or overreaching.” Id. at 15-18, 92 S.Ct. at 1916-17, 32 L.Ed.2d at 523-25. No showing- — much less a “strong showing” — of these elements exists here. That there may not have been actual negotiations over the clause does not affect its validity. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593, 111 S.Ct. 1522, 1527, 113 L.Ed.2d 622, 632 (1991).

[¶ 37.] The majority’s reasoning on Issue Three is tantamount to punishing Klenz and her attorney for allowing the case to go to summary judgment: as if doing so ensured that the record would be undeveloped and the trial court’s reasoning incomplete. Indeed, the specific lesson taken from the majority’s opinion will be that no one in Klenz’s position should agree to proceed, to summary judgment without first putting in the record every insubstantial detail possible, hoping that we might snatch some unessential fact to claim it empowers us to disregard settled law.

[¶ 38.] As the majority notes, Klenz brought this action in Butte County, South Dakota, against AVI, for “legal expenses.”In. support of its assertion that “the undeveloped record and incomplete reasoning on the part of the trial court” cause it to be “difficult to determine whether the forum-selection clause is unfair or unreasonable under South Dakota law[,]” the majority provides -two details. First," “[t]he record does not specify the litigation expenses being sought by Klenz as administratrix or the amount thereof’; second, the record-does not “disclose whether the expenses incurred in the underlying wrongful death suit have been paid to trial ■ counsel or whether Klenz is seeking reimbursement for litigation expenses already paid.” (As to the identity of the “other matters” that are supposedly “important factors to consider in determining the reasonableness and validity of the forum selection clause in this case[,]” the majority provides no hint.) Neither of these items can stand up to scrutiny.

[¶ 39.] On the first point, what possible difference could it make whether the amount Klenz seeks is $1 or $1,000,000? The absence of that fact, itself a target presumably moving upward as time passes, in the set of stipulated facts indicates that even the parties thought it irrelevant to the reasonableness of the ehoice-of-forum clause. Would we hold that if it were a substantial sum, then South Dakota is the right forum, but if not, let France decide?

[¶ 40.] As to the second point, again the proper question in this case is: as regards this action for attorney’s fees, is the forum selection clause unreasonable under South Dakota law? The majority invites us to consider two alternatives. First, suppose that there has been as yet no payment for attorney’s fees. In the first alternative, we must ask, who wishes to recover them? Klenz or her attorney? In either case, Klenz, the estate representative, is the ultimate beneficiary. Who will have to travel? If the case is litigated in France, perhaps her attorney and Klenz. The attorney will have expenses which, presumably, would be added to those he already claims and which, along with them, he would recover, if he prevails. If it is litigated in South Dakota, either an AVI or Chubb attorney will handle the-case. This is a wash. One side is no more inconvenienced than the other. And since other things are equal, the forum selection clause should determine. Next suppose that Klenz has paid her attorney’s fees and is seeking reimbursement from AVI or Chubb. We still have the same essential dispute: a case between two European parties seeking interpretation of a French contract under French law. The notion that such a case could be more properly adjudicated in South Dakota than in France beggars the imagination.

[¶ 41.] The conclusion is inescapable that no material facts remain on which we need to make a' decision. As 'the majority notes, the burden was on Klenz to show that the forum-selection clause is unreasonable. Regarding the four required elements, first, the law governing the formation and construction of the contract is the law of France, not the law of South Dakota. Second, both parties are residents of Europe, not South Dakota, and even if we factor in that Klenz’s counsel is a South Dakota resident, there is equal inconvenience to whichever party has to travel or, alternatively, to arrange for an attorney to argue in a distant forum. Third, the place of execution and. performance of the contract was Europe, if not France; it was certainly not South Dakota. It is, of course, true that the attorney’s fees, for which Klenz (or her lawyer) seek reimbursement were accumulated in South Dakota. But the fee agreement reached between Klenz and her attorney is not before us and, in any case, is entirely distinct from the contract between AVI-Chubb and Klenz-Wunderlich. Finally, the location of the parties and witnesses favors litigation in France. Both nominal parties are in Europe, and given the nature of the action, no more witnesses would be necessary than Klenz, her attorney, and representatives of Chubb. Travel inconvenience, if any, would be equal, though, perhaps, a Chubb representative’s desire to see South Dakota may be greater than the desire of Klenz’s attorney to see Paris. Alternatively, the inconvenience of finding an attorney to represent claims in a foreign forum would also be equal.

[¶ 42.] In summary, the issue is squarely before us and it is unfair to suggest that Klenz and her attorney somehow failed to provide undiscovered, unknown, and unimportant information. If the majority were correct in its assertion that there are material facts the discovery of which might have made the forum-selection clause unreasonable, then, as a matter of simple justice, Klenz should be given the opportunity to bring those facts to light. Thus, although I concur in the result, I cannot agree with the majority’s reason for coming to that result.

[¶ 43.] AMUNDSON, Justice, joins this special writing.

       Although South Dakota does have a significant interest in providing citizens with a forum in which to resolve disputes, that factor is not solely determinative. See Network Solutions, Inc., 38 S.W.3d at 203. Furthermore, Klenz is not a citizen of South Dakota and no evidence has been provided to support a contention that France does not provide an adequate forum in which to adjudicate this case. And I think it highly unlikely that any such evidence could be adduced.


author: GILBERTSON, Chief Justice.

text:
    2002 SD 71
    STATE of South Dakota, Plaintiff and Appellee, v. David George AESOPH, Defendant and Appellant.
    Nos. 21872, 21887.
    Supreme Court of South Dakota.
    Argued March 28, 2002.
    Decided June 19, 2002.

      Mark Barnett, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, for plaintiff and appellee.

      Reed Rasmussen, Jeffrey Sveen of Sie-gel, Barnett and Schütz, Aberdeen, for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] David Aesoph (Aesoph) was charged with first degree murder and alternate counts of second degree murder and first degree manslaughter for the November 18, 1999 death of his wife. On October 5, 2000, the jury found, him guilty of first degree murder. Aesoph was sentenced to life imprisonment on November 8, 2000. Aesoph now appeals, raising issues regarding: (1) the nature of the interviews with investigators; (2) the admission of expert testimony; (3) the admission of prior statements of the victim; (4) the selection of jurors; (5) the use of a jury instruction on concealment; (6) the denial of his motion for new trial; and (7) the revocation of his bond. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Aesoph and his wife, Tania, were married in October 1975. By 1994, amidst allegations of physical, verbal and mental abuse, Tania sought the help of attorney Lee Burd (Burd) to begin divorce proceedings. But Tania indicated to several people that she feared Aesoph would kill her and make her death look like.an accident if she were to get a divorce. Aesoph told a number of people that he wanted to kill Tania. Tania dropped the 1994 plans to divorce Aesoph and moved back to their farm outside Highmore, South Dakota.

[¶ 3.] By the fall of 1999, however, the marriage had deteriorated to the point where Tania was again planning to divorce Aesoph. The 50-year-old mother of five children bought her own car in October 1999 and began secretly moving her personal belongings to a friend’s house. On November 7, 1999, Tania and her youngest child, 16-year-old J.A.',' left the farm while Aesoph was sleeping and moved to an apartment in Faulkton, South Dakota. On November 16, 1999, she agáin contacted Burd to reinstate divorce proceedings.

[¶ 4.] Unknown to Tania at the time, Aesoph had two life insurance policies on his wife totaling $1.7 million which were payable to him in the event of her death by accident. He obtained the second policy by telling the agent that he wished to cancel the first policy on Tania in favor of a cheaper one. Aesoph, however, never cancelled the first policy and continued to make payments on both. He also added an accidental death rider to the first policy. On November 12, 1999, Aesoph called the insurance agent who sold him the policy and informed him about Tania’s plans for divorce. Aesoph told the agent “I’m going to kill the bitch.” He also told the agent to “remember that she was the one that wanted the life insurance.”

[¶ 5.] On November 18, 1999, the day of Tania’s death, Tania and Aesoph met with a Court Services Officer in Highmore, to discuss their son’s juvenile case. Next, Tania made a deposit at the bank and went with Aesoph to meet an attorney in High-more to discuss divorce proceedings. Hyde County Sheriff, Michael Volek, observed Aesoph and Tania in a pickup headed back to the family farm at about 11:10 a.m. Once they reached the house, the two telephoned their eldest daughter, who was a foreign exchange student in Italy.This call lasted from 11:43 to 11:55 a.m. Aesoph called Greenline Implement in Miller at about 1:08 p.m. and picked up a radiator cap one hour later. At 3:01- p.m., Aesoph contacted the former Hyde County Sheriff to tell him that Tania had fallen down the stairs and was dead. He also called Volek at 3:16 p.m. and informed him that Tania was dead.

[¶ 6.] Volek was the first to arrive at the farmhouse at about 3:55 p.m. and found Aesoph coming out of the bathroom. Aesoph told Volek that he had moved Tania’s body so that the kids would not see her and he was washing her blood off his hands. Volek discovered a washing machine with Aesoph’s work coat inside and a dryer containing a pair of jeans, mismatched work gloves, underwear, shirts, socks and a towel. When Volek turned off the washing machine and asked Aesoph who had started it, Aesoph turned the machine back on, claiming it must have been started by someone else. Volek did not immediately pursue the issue.

[¶ 7.] Other law enforcement personnel and family members began arriving early that evening. Department of Criminal Investigation (DCI) Agents Jerry Lindberg (Lindberg), Brian Zeeb (Zeeb) and Mike Braley (Braley) arrived shortly after 5 p.m. State Crime Lab personnel, including Coroner Mike Luze, Lab Director Rex Riis and Criminalist Christine Reitsma, arrived at about 7 p.m. Two of Aesoph’s adult children also arrived and visited with Aesoph about who would do the farm chores the next morning.

[¶ 8.] The three investigators interviewed Aesoph in the dining room of his farmhouse. Three interviews took place between 5:25 p.m. and 11:16 p.m., the first lasting about 13 minutes, the second lasting about 45 minutes and the third lasting about 60 minutes. Aesoph was unaccompanied by an attorney and was not given a Miranda warning. Aesoph was arrested at approximately midnight, upon direction of the State’s Attorney. After a hearing on November 19, Aesoph was released on $100,000 bond.

[¶ 9.] The State’s pathologists determined that the cause of Tania’s death had been manual strangulation and blunt force trauma, injuries they believed’ could not have come from a fall down a flight of carpeted stairs. Crime scene investigators discovered scuffmarks on the garage floor, blood matching Tania’s on the lower inside panel of the garage door, a clump of hair matching Tania’s under a car parked in the garage, and a tiny amount of tissue (possibly skin) beneath Tania’s fingernail that did not mátch Aesoph’s.

[¶ 10.] Aesoph was indicted on March 1, 2000, and charged with first degree murder and alternate counts of second degree murder and first degree manslaughter. Trial commenced on September 18, 2000. Aesoph was convicted on October 5 and sentenced to life imprisonment on November 8, 2000. After sentencing, Aesoph moved for a new trial, which was denied on March 5, 2001. Aesoph now appeals the following issues:

1. Whether the un-Mirandized statements to investigators were custodial and involuntary, were made after a request for counsel, and should, therefore, have been suppressed.
2. Whether the trial court abused its discretion in admitting -the expert testimony of Dr. Saami Shaibani.
B. Whether the victim’s prior statements should have been excluded as hearsay in violation of the confrontation clause.
4. Whether the method of selection of additional jurors amounted to a violation of procedural due process.
5. Whether the trial court erred in including a jury instruction on concealment.
6. Whether the trial court abused its discretion in denying the post-conviction motion for a new trial.
7. Whether the trial court abused its discretion in revoking the pre-trial bond.

ANALYSIS AND DECISION

[¶ 11.] 1. . Whether the un-Miran-dized statements to investigators were custodial and involuntary, were made after a request for counsel, and should, therefore, have been suppressed.

[¶ 12.] Aesoph challenges the trial court’s refusal to suppress statements he made to investigators at his home on the day of Tania’s death. While he never did confess to the crime, Aesoph claims admission of the statements at trial was prejudicial because he repeatedly changed elements’ of his story during the three interviews. This issue involves a mixed question of fact and law. ‘We review a trial court’s decision on a motion to suppress under a de novo standard.” State v. Frazier, 2001 SD 19, ¶ 13, 622 N.W.2d 246, 253 (citing State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488). The underlying circumstances of an interrogation, such as whether the subject is in custody, involve factual determinations reviewed under the clearly-erroneous standard. State v. Meyer, 1998 SD 122, ¶ 16, 587 N.W.2d 719, 722-23. But whether the statements made during that interrogation are voluntary “is a legal question, requiring independent judicial review.” Id. (quoting Stanga, 2000 SD 129 at ¶ 8, 617 N.W.2d at 488) (additional citation omitted).

[¶ 13.] a. Whether Aesoph’s interrogation was custodial.

[¶ 14.] We must first determine whether Aesoph was in custody at the time of questioning, before this Court will engage in a factored analysis of whether Miranda warnings should have been given, whether Aesoph’s statements were voluntary, or whether Aesoph’s Fifth Amendment right to counsel was violated. See State v. Red Star, 2001 SD 54, ¶ 23, 625 N.W.2d 573, 580. The custody determination is pivotal, as it governs the analysis for all remaining issues regarding Aesoph’s statements to law enforcement. We make such a determination based upon “how a reasonable man in the suspect’s position would have understood his situation.” State v. Anderson, 2000 SD 45, ¶ 79, 608 N.W.2d 644, 666 (quoting State v. Herting, 2000 SD 12, ¶ 13, 604 N.W.2d 863, 866) (additional citations omitted).

[¶ 15.] The objective circumstances surrounding Aesoph’s interrogation were not such that a reasonable person would believe that he was deprived'of his right to freedom. The questioning took place in Aesoph’s own dining room, a familiar setting of Aesoph’s own choosing. The officers took no verbal or physical action to restrain Aesoph’s movement. He was allowed to ■ go, unaccompanied, throughout the house as long as he did not interfere with the crime scene. He was allowed to take bathroom breaks, smoking breaks and coffee breaks at will. • Aesoph’s family members came and went. Even at the completion of the three interviews; the officers told Aesoph he was not under arrest and would not be placed under arrest until the state’s attorney made the decision to do so. Reviewing the evidence, as we must, in a light most'favorable to the trial court’s decision, we conclude that Ae-soph was not in custody when he made the incriminating statements.

[¶ 16.] b. Whether the absence of a Miranda warning renders Aesoph’s statements inadmissible.

[¶ 17.] There is no dispute that Aesoph was not read a Miranda warning before his interviews with investigators. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda warnings, however, are not required in the absence of custodial interrogation. Anderson, 2000 SD 45 at ¶ 75, 608 N.W.2d at 665 (citing Herting, 2000 SD 12 at ¶ 8, 604 N.W.2d at 864 (additional citation omitted)).

[P]olice officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warning to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’

State v. Thompson, 1997 SD 15, ¶ 23, 560 N.W.2d 535, 540 (citation omitted). Because we find the questioning was noncustodial, there is no Miranda violation.

[¶ 18.] c. Whether Aesoph’s equivocal references to his attorney are sufficient to invoke his Fifth Amendment rights.

[¶ 19.] Aesoph' argues that his statements should have been suppressed be-» cause they were given after his request for an attorney. Aesoph urges this Court to reject the United States Supreme Court opinion in Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), which holds that an ambiguous or equivocal reference to an attorney, when it may reasonably be understood that the suspect only “might” be invoking a right to counsel, is not sufficient to stop questioning. Instead, Aesoph asks this Court to adopt a “stop and clarify” rule. See, e.g., Steckel v. State, 711 A.2d 5 (Del.1998); State v. Chew, 150 N.J. 30, 695 A.2d 1301 (1997); State v. Hoey, 77 Hawai’i 17, 881 P.2d 504 (1994). This issue is not, however, determinative of the outcome of this case.

[¶ 20.] First, the Fifth Amendment right to counsel is grounded in the protection from self-incrimination and the need to be assisted in the custodial interrogation process. Anderson, 2000 SD 45 at ¶ 74, 608 N.W.2d at 665 (citations omitted). The Supreme Court explained in Davis:

[W]e held in Miranda v. Arizona, 384 U.S. 436, 469-473, 86 S.Ct. 1602, 1625-1627, 16 L.Ed.2d 694 (1966), that a suspect subject to custodial interrogation has the right to consult with an attorney and to have counsel present during questioning, and that the police must explain this right to him before questioning begins. The right to counsel established in Miranda was one of a “series of recommended ‘procedural safeguards’ ... [that] were not themselves rights protected by the Constitution but were instead measures to insure that the [Fifth Amendment] right against compulsory self-incrimination was protected.”

512 U.S. at 457, 114 S.Ct. at 2354, 129 L.Ed.2d at 370. Thus, there is no constitutional right to an attorney when the interrogation is non-eustodial.

[¶ 21.] Second, even if we were to consider this a valid claim, Aesoph has admitted that he was not denied counsel. At the end of the final interview, investigators asked him, “Do you want an attorney?” Aesoph replied, “I can answer on my own,” meaning without an attorney. Then investigators asked him, “Have you ever been denied an attorney through this whole process?” Aesoph replied, “No.” Aesoph was no stranger to the process of contacting an attorney. As noted before, he had been in contact with his attorney no less that thirteen times in the seven days preceding his wife’s death. On the very day of her death, Aesoph and Tania had consulted another attorney regarding their divorce. Aesoph cannot now objectively establish that his equivocal hints at contacting an attorney somehow invoked his Fifth Amendment right to counsel. See Davis, 512 U.S. at 459, 114 S.Ct. at 2355, 129 L.Ed.2d at 371.

[¶ 22.] Finally, Aesoph correctly recognizes that in order to consider his claim, this Court must reject Davis in favor of a “stop and clarify” rule. But Aesoph also argues that this Court has already done so in the case of State v. Cody, 293 N.W.2d 440 (S.D.1980). Aesoph’s brief states, “In Cody, the Court held that an interviewer should, when faced with an equivocal request for an attorney, ‘make further inquiry to clarify the suspect’s wishes.’ ” Cody, however, says only that it is permissible for an investigator to stop and clarify, not that such is required. Id. at 446 (citation omitted). We also note that this decision predates the Supreme Court’s decision in Davis. We are not prepared to reject the clear safeguards of Davis in favor of a “stop and clarify” rule under the facts of this case.

[¶ 23.] Furthermore, the audio tapes and transcripts of the interviews, notwithstanding later testimony by investigators regarding their general interrogation techniques, do not support Aesoph’s allegations that he was “talked out of’ his desire to contact an attorney. The first time Aesoph mentioned an attorney was well into the third interview when he said, “If you’re accusing me here, maybe I should call my lawyer.” Braley responded, “You can make that determination if you want to.” ' Then Aesoph asked, “Don’t you think that I should talk to an attorney?” Braley responded, “I can’t advise you of that.” Later in the third interview, Aesoph said, “I am afraid to admit anything. Maybe I should have an attorney. I am scared to death.” Braley responded, “That’s your call.” The final reference came when investigators were pointing out the inconsistencies in Ae-soph’s story. He stated, “I should really call Jeff [Sveen], my attorney. I don’t know. I really can’t. I maybe can add a little bit to it, but I just. I can’t.” Braley responded, “David, you add something to it. Please, for our sake.” Aesoph was near a phone and free to make that call at any point. He was very familiar with the name and the number of the attorney already representing him, as he had called him frequently the week before. In the end, he freely admitted that the investigators “worked very diligently to find out whether [he] wanted an attorney.” At trial, Aesoph admitted that he “should have been more adamant” in requesting an attorney. We do not view these exchanges as improper attempts to dissuade Aesoph from getting an attorney. Aesoph was not denied his right to counsel and this suppression claim fails.

[¶ 24.] d. Whether Aesoph’s statements were voluntary.

[¶ 25.] Aesoph asserts that his statements should have been suppressed because they were involuntary. Incriminating statements are • involuntary “if, in light of the totality of the circumstances, the will of the defendant has been overborne by law enforcement.” Frazier, 2001 SD 19 at ¶20, 622 N.W.2d at 255. When this Court reviews whether a defendant’s statements were made involuntarily:

[W]e consider the effect the totality of the circumstances had upon the will of the defendant and whether the defendant’s will was overborne. The factors we consider in making such a determination include: (1) the defendant’s youth; (2) the defendant’s lack of education or low intelligence; (3) the absence of any advice to the defendant of his constitutional rights; (4) the length of detention; (5) the repeated and prolonged nature of questioning; and (6) the-use of physical punishment such as the deprivation of food or sleep. In reviewing the trial court’s finding on voluntariness, we consider the evidence in the light most favorable to the finding.

Anderson, 2000 SD 45 at ¶ 80, 608 N.W.2d at 667 (internal citations omitted). “The question is not whether the interrogators’ statements were the cause of the confession, but whether those statements were so manipulative or coercive that they deprived [a defendant] of his ability to make an unrestrained, autonomous decision to confess.” State v. Smith, 1999 SD 83, ¶ 36, 599 N.W.2d 344, 352 (citation omitted) (alteration in original).

[¶ 26.] Aesoph relies on the following evidence for support of his assertion that his statements were involuntary: (1) Ae-soph was subjected to questioning over a period of six hours; (2) he was placed under pressure because the scene was continuously dominated by police; (3) the interviewers deceived and intimidated Ae-soph by telling him that he was lying because his story did not match what the crime scene investigators had discerned; (4) Aesoph was threatened by investigators when they told him his children would not be able to hear his side of the story; and (5) he was tricked by investigators when they told him they could not make the decision to contact an attorney for him. However, the trial court found that Aesoph was not under arrest, was not in custody, and “was not deprived of his freedom of action in any significant way.”

[¶27.] Instead, the facts of this case establish that Aesoph willingly participated and fully cooperated in all three interviews. Aesoph is a confident strong-•willed 55-year-old successful farmer. He has had prior experience with law enforcement when he was arrested for DWI in 1998 and convicted of disorderly conduct and resisting arrest earlier that same year. Aesoph remained calm and controlled throughout all three interviews.

[¶28.] While it took three interviews spanning a period of six hours to get a consistent story from Aesoph, the actual questioning totaled only two hours. “It is a . fact of life for law enforcement that suspected criminals do not often readily volunteer incriminating evidence. It takes time to elicit the facts, explore inconsistencies and arrive at the truth.” Frazier, 2001 SD 19 at ¶ 23, 622 N.W.2d at 256. At no time did Aesoph request that the questioning stop. As in Frazier, there were several breaks during the questioning when Aesoph was allowed to move about his home freely, drink, go to the bathroom, smoke cigarettes and speak with family members. Although several law enforcement personnel were present, most were devoted to cataloguing the crime scene. While he mentioned that he was tired, “there is no evidence that [Aesoph] was so overcome by fatigue or stress as to prevent a voluntary” statement. Id. at ¶ 23 (quoting State v. Ferola, 518 A.2d 1339, 1346 (R.I.1986)).

[¶ 29.] We consider Aesoph’s claim of deception as a factor in the analysis, but we also acknowledge that “police may use some psychological tactics in interrogating a suspect.” State v. Darby, 1996 SD 127, ¶ 31, 556 N.W.2d 311, 320 (citations omitted). We have held that this type of “on-the-seene questioning” is “absolutely essential for law enforcement officers to perform their jobs well and to investigate possible crimes.” Herting, 2000 SD 12 at ¶ 10, 604 N.W.2d at 865 (citation omitted). In the end, Aesoph only admitted to having a minor physical altercation with his wife in the garage, but never to killing het. He simply gave multiple versions of how she may have accidentally died. We cannot say that the statements by the investigators in this case were overtly coercive or manipulative.

[f 30.] 2. Whether the trial court abused its discretion in admitting the expert testimony of Dr. Saami Shaibani.

[¶ 31.] Aesoph challenges the admission of Dr. Saami Shaibani’s (Shaiba-ni) testimony regarding accident and injury reconstruction. A trial court’s admission of expert testimony is controlled by SDCL 19-15-2, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise,

Given the trial court’s “broad discretion concerning the admission of expert testimony,” its “decision on such matters will not be reversed absent a clear showing of an abuse of discretion.” Nickles v. Schild, 2000 SD 131, ¶ 7, 617 N.W.2d 659, 661 (citations omitted).

“An'abuse of discretion refers to a discretion exercised to án end or purpose not justified by, and clearly against reason and evidence.” In applying the abuse of discretion standard, “we do not determine whether we would have made a like decision, only whether a judicial mind, considering the law and the facts, could have reached a similar decision.”

State v. Fowler, 1996 SD 78, ¶ 12, 552 N.W.2d 92, 94-5 (quoting State v. Wilkins, 536 N.W.2d 97, 99 (S.D.1995) (citations omitted)). Thus, for a reversal on this issue, and any others applying this standard, Aesoph must demonstrate that no “judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion.” State v. Barber, 1996 SD 96, ¶ 14, 552 N.W.2d 817, 820.

[¶ 32.] Essentially, Aesoph contends that Shaibani’s testimony was without reliable foundation because it was based solely upon a diagram drawn by Braley. This drawing was made from Aesoph’s description of how he allegedly found the victim after her fall. But Aesoph maintains that he repeatedly told the investigators that he could not explain how his wife was positioned when he found her. In addition, Aesoph claims that Shaibani’s testimony was highly prejudicial because it was based on the subjective beliefs of Braley and Shaibani. We disagree.

[¶ 33.] Shaibani’s opinion was based on more than one simple diagram. He testified at trial that he based his opinion upon his experience, forensic findings, physical evidence, autopsy reports and his own observations of the scene. The trial court conducted a Daubert hearing and concluded that: (1) Shaibani is qualified in the science of accident and injury reconstruction; (2) the science of accident and injury reconstruction is reliable, standardized, subject to peer review and widely accepted; (3) the scientific opinion of Shaibani is relevant to show how the victim died and whether that death was the result of an accident. See State v. Hofer, 512 N.W.2d 482, 484 (S.D.1994) (adopting the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). Shaibani’s .testimony did not lack foundation. Moreover, Aesoph’s testimony eliminated any prejudice that could have come from Shaibani’s testimony. Ae-soph has failed to show that the trial court abused its discretion. Therefore, we affirm the admission of Shaibani’s testimony.

[¶ 34.] 3. Whether the victim’s prior statements should have been excluded as hearsay in violation of the ■ confrontation clause.

[¶ 35.] Prior to her death, the victim made statements to her children, sister-in-law, priest, close friends and coworkers: (1) that she was afraid Aesoph would Mil her; (2) that if he Mlled her he would make her death look like an accident; (3) that she felt threatened by Ae-soph; and (4) that Aesoph verbally abused her and shoved her around. The victim also made a statement to the assistant manager at Haar Motors that Aesoph was going to Mil her for spending money on a new car. Aesoph contends that these statements should not have been admitted because they were not subject to cross-examination and were, therefore, admitted in violation of the confrontation clause. See U.S. Const. amend. VI; SD Const. art. VI § 7. “Evidentiary rulings by the trial court are presumed correct and reviewed under an abuse of discretion standard.” State v. Alidani, 2000 SD 52, ¶ 21, 609 N.W.2d 152, 158.

[¶ 36.] The Sixth Amendment’s confrontation clause was designed “to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Lilly v. Virginia, 527 U.S. 116, 123-24, 119 S.Ct. 1887, 1894, 144 L.Ed.2d 117, 126 (1999) (citations omitted}. When the declarant is unavailable, the proponent of such hearsay must show certain “indicia of reliability” before the statement may be admitted as evidence.

[¶ 37.] There are two methods of satisfying this reliability threshold. First, “ ‘indicia of reliability’ [are] inferred when ‘the evidence falls within a firmly rooted hearsay exception.’ ” Frazier, 2001 SD 19 at ¶27, 622 N.W.2d at 257 (quoting Idaho v. Wright, 497 U.S. 805, 815, 110 S.Ct. 3139, 3146, 111 L.Ed.2d 638, 652 (1990)). Second, the evidence may be admissible with a “showing of particularized guarantees of trustworthiness.” Id. (quoting Wright, 497 U.S. at 819, 110 S.Ct. at 3148, 111 L.Ed.2d at 655). Such guarantees of trustworthiness are gleaned from the totality of circumstances “that surround the making of the statement and that render the declarant particularly worthy of belief.” Id. Corroborating evidence, however, may not be used to demonstrate trustworthiness: “the statement must be trustworthy on its own.” Id. (emphasis in original).

[¶ 38.] The trial court concluded that the victim’s statements in this case were both relevant and probative. See State v. Davi, 504 N.W.2d 844, 854 (S.D.1993). Accordingly, it admitted the statements under SDCL 19-16-6, the excited utterance exception, SDCL 19-16-7, the state of mind exception, and SDCL 19-16-35, the residual exception.

[¶ 39.] Only one statement was admitted under SDCL 19-16-6, which provides:

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition, is not excluded by § 19-16-4, even though the declarant is available as a witness.

The statement admitted as an excited utterance was made by Tania to Janine Rat-hert, the assistant sales manager at Haar Motors in Aberdeen, South Dakota, where Tania bought her car in October 1999. Tania had called, “frantic ... bawling, screaming, and hollering,” to see if the dealership had cashed her check yet. “She said her husband was going to kill her because she had spent some money.” The court concluded that this statement was “admissible as an excited utterance because it was made in response to a startling event.”

[¶ 40.] The remaining statements were admitted under SDCL 19-16-7, which provides:

A statement of the declarant’s then existing state of. mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, is not excluded by § 19-16-4, even though the declarant is available as a witness, but a statement of memory or belief to prove the fact remembered or believed is excluded unless it relates to the execution, revocation, identification, or terms of declar-ant’s will.

The court explained that the evidence, “which describes the emotional, physical, and verbal abusive acts by the Defendant towards the victim and his controlling nature is relevant to show ... the state of mind of both the victim and the Defendant....” Both the excited utterance exception and the state of mind exception are firmly rooted hearsay exceptions. See White v. Illinois, 502 U.S. 346, 355 n8, 112 S.Ct. 736, 742,116 L.Ed.2d 848, 858 (1992); Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597, 608 (1980). Therefore, reliability is presumed and we need not address whether there are particularized guarantees of trustworthiness.

[¶ 41.] First, the victim’s statements were properly admitted under firmly rooted exceptions to the hearsay rule. Second, it is well understood that a murder victim’s statements, regarding fear of the accused, are admissible to rebut a defendant’s claim of accidental death. Davi, 504 N.W.2d at 854 (citing United States v. Brown, 490 F.2d 758, 766 (D.C.Cir.1973)) (holding statements admissible to rebut defendant’s claims of self-defense, suicide, or accidental death). See also Clay v. Com., 262 Va. 253, 546 S.E.2d 728, 730 (2001) (holding victim’s statements were admissible under state of niind exception to show gun was not accidentally fired); State v. Murillo, 349 N.C. 573, 509 S.E.2d 752, 759-63 (N.C.1998) (holding evidence spanning entire marriage admissible to show death was not accidental); State v. Richards, 552 N.W.2d 197, 209 (Minn.1996) (holding victim’s statements admissible under state of mind exception to rebut defendant’s claim of accident and/or suicide); State v. Jones, 137 N.C.App. 221, 527 S.E.2d 700, 704-05 (2000) (holding victim’s statements to co-workers admissible to rebut defendant’s claim that they had a good marriage). Third, the court appropriately instructed the jury to consider the statements only for the purpose of ascertaining “whether [the victim’s] death was an accident” and not “in determining whether ... Aesoph is guilty.” Therefore, we affirm the trial court’s admission of the victim’s statements.

[¶ 42.] 4. Whether the method of selection of additional jurors amounted to a violation of procedural due process.

[¶ 43.] “The trial court has the primary responsibility to make certain that a fair and impartial jury has been selected for a defendant’s trial.” State v. Verhoef 2001 SD 58, ¶ 12, 627 N.W.2d 437, 440’ (citation omitted). In order to show that the trial court has failed in this responsibility, Aesoph must demonstrate that:

(1) the group excluded is a “distinct” group in the community; (2) the representation of this group in jury pools is not fair and reasonable in relation to the number of such persons in the community; and (3) this under[-]representation is due to the systematic exclusion of the group from the jury selection process.

State v. Helmer, 1996 SD 31, ¶ 22, 545 N.W.2d 471, 475 (citations omitted). Aesoph, however, claims there has been a violation of SDCL 16-13-10.2, which automatically amounts to a constitutional due process claim. Aesoph alleges that the method used to contact the additional jurors in this case systematically excluded Native Americans in violation of the jury selection statutes and his right to due process. See State v. Blem, 2000 SD 69, ¶ 29, 610 N.W.2d 803, 810 (citations omitted). We review constitutional questions de novo. State v. Dillon, 2001 SD 97, ¶ 12, 632 N.W.2d 37, 43 (citing Stanga, 2000 SD 129 at ¶8, 617 N.W.2d at 488).

[¶ 44.] When the pool of jurors was depleted, the court ordered the Lyman County Sheriff to contact additional prospective jurors pursuant to SDCL 16-13-43, which provides:

Whenever the panel of petit jurors shall be exhausted by the challenges of either party in any action, the judge of the court shall order the sheriff, deputy sheriff, or coroner to summon, without delay, a sufficient number of persons possessing the qualifications of jurors to. complete the number requisite for a jury in that particular case.

The first group of additional prospective jurors came from contacts in each town in the county except Lower Brule. The sheriff testified that he initially did not contact any Lower Brule residents because 15 Lower Brule residents from the original pool did not report for jury selection. In addition, he testified the rate of absenteeism for this jurisdictional area tends to be very high. The trial court, in response to Aesoph’s objection, ordered another group of additional prospective jurors be contacted, including residents from Lower Brule. Three of the individuals in this second group of additional jurors actually served on the panel.

[¶ 45.] Aesoph has failed to demonstrate that Native Americans were under-represented in the jury pool. Aesoph has not offered any statistics as to what number of Native Americans would be “fair and reasonable” as representative of the community. His claim is not supported by a showing that no Native Americans actually served on the jury. Aesoph did not move to dismiss or strike the first group of additional jurors in favor of the second. Nor did he move to quash the jury as a whole. Therefore, Aesoph has not met his burden and we find no evidence of racial exclusion in this case.

[¶ 46.] 5. Whether the trial court erred in including a jury instruction . on concealment.

[¶ 47.] Aesoph maintains that the jury instruction on concealment was inappropriate and should not have been given. The standard for reviewing a trial court’s instruction to the jury is well settled:'

An appellant has the burden to show not only that the instruction given was in error, but also that it was prejudicial error to the effect that under the evidence, the jury might and probably would have returned a different verdict if the [defendant’s instruction on legal excuse] had [not] been given.

Knudson v. Hess, 1996 SD 137, ¶ 6, 556 N.W.2d 73, 75 (citations omitted). See also Veeder v. Kennedy, 1999 SD 23, ¶ 32, 589 N.W.2d 610, 618 (stating appellant must show that the challenged instruction was “misleading, conflicting, or confusing” and that the error was prejudicial). Fur-thermorej the question of prejudice “is considered ‘from the standpoint of what the trial judge knew from the evidence at the time he gave this instruction.’ ” Artz v. Meyers, 1999 SD 156, ¶ 8, 603 N.W.2d 532, 534 (quoting Del Vecchio v. Lund, 293 N.W.2d 474, 476 (S.D.1980)). If the trial court finds an issue is competently supported by the record, then the court is justified in giving the instruction. Id. (citations omitted).

[¶48.] “Trial courts possess broad discretion in instructing the jury.” State v. Pellegrino, 1998 SD 39, ¶ 9, 577 N.W.2d 590, 594 (citations omitted). Thus, we will not second-guess that decision absent a showing of clear and prejudicial error. We construe all of the jury instructions as a whole to determine whether a particular instruction was in error and whether that error was prejudicial. Ae-soph must demonstrate that, had the jury not been given the instruction on concealment, it would likely have reached a different result. Frazier, 2001 SD 19 at ¶ 35, 622 N.W.2d at 259 (citations omitted).

[¶ 49.] Aesoph challenges the following instruction:

Concealment by the defendant,, after the events charged in the Indictment, does not create a presumption of guilt. You may consider evidence of concealment, however, as tending to prove the defendant’s consciousness of guilt. You are not required to do so. You may consider and weigh evidence of concealment by the defendant in connection with all the other evidence.

This instruction is set forth in the South Dakota Pattern Jury Instructions (criminal) at 1-14-9.

[¶ 50.] Such instructions “appear to comment on the evidence” and therefore, must be “used sparingly and only when the special circumstances and evidence require.” State v. Menard, 424 N.W.2d 382, 384 (S.D.1988). An instruction on concealment is allowed only when the evidence supports the inferences that: (1) the defendant’s, conduct constituted concealment; (2) the defendant’s concealment resulted from consciousness of guilt; (3) the defendant’s guilt related to the crime charged; and (4) the defendant felt guilty about the crime charged because he, in fact, committed the crime. Frazier, 2001 SD 19 at ¶37, 622 N.W.2d at 259 (citing United States v. Martinez, 190 F.3d 673, 678 (5thCir.1999) (outlining same factors for instruction on flight)). Accordingly, Aesoph argues the instruction is in error because “[t]here is simply no evidence [Aesoph] tried to conceal his wife’s body.” This argument is misplaced.

[¶ 51.] While there may have been no evidence that Aesoph concealed the body, there was sufficient evidence that he attempted to conceal the crime. As noted by the trial court, there was ample evidence indicating Aesoph had killed his wife in the garage and moved her body downstairs, where he covered her with a blanket. A clump of hair matching the victim’s was found under the car in the garage, blood splatters matching the victim’s were found on the bottom inside panel of the garage door, and scuffmarks were found on the garage floor. Yet, the garage floor appeared as if it had been recently cleaned. Though Aesoph claimed his wife had sustained her mortal injuries in a fall down carpeted stairs, there was no blood found anywhere on the stairs, the railing, or the walls running down the stairwell. Aesoph admitted at trial that he had lied about who had started the washing machine and dryer containing Aesoph’s work clothes, which were running when police arrived. He also admitted at trial that he and his wife had fought in the garage before she allegedly fell down the stairs. All of this evidence tends to demonstrate that Aesoph was guilty, and because of that guilt, he attempted to conceal the crime. These circumstances justified the giving of a concealment instruction.

[¶ 52.] Furthermore, we have reviewed the jury instructions as a whole and find that “they provide a correct statement of the law.” Frazier, 2001 SD 19 at ¶ 41, 622 N.W.2d at 260. Not only did the court inform" the jury that “every presumption favors the defendant’s innocence,” but that it could ignore evidence of concealment if it so chose. Id. Therefore, the trial court’s' decision to give the instruction was neither clear nor prejudicial error.

[¶ 53.] 6. Whether the trial court abused its discretion in denying the post-conviction motion for a new trial.

[¶ 54.] Aesoph moved for a new trial on the basis that the State failed to provide a sample of the tissue found under the victim’s fingernail to the defense for testing to determine whether it was, in fact, skin. We review a trial court’s denial of a motion for new trial under an abuse of discretion standard. Morrison v. Mineral Palace Ltd. P’ship, 1999 SD 145, ¶ 5, 603 N.W.2d 193, 195 (noting whether new trial should be granted is “left to the sound discretion of trial court”).

[¶ 55.] Aesoph contends that the failure to confirm that the tissue was skin, the withholding of this information from the defense, and the failure to instruct the jury accordingly, was enough to constitute an “irregularity” within the meaning of SDCL 15-6-59(a)(l). This section provides:

A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes:
(1) Irregularity in the proceedings of the court, jury, or adverse party or any order of the court or abuse of discretion by which either party was prevented from having a fair trial;

Aesoph asserts that this provision entitles him to a new trial. We disagree.

[¶ 56.] Aesoph is only entitled to a fair trial, not a perfect one. Davi v. Class, 2000 SD 30,,¶51, 609 N.W.2d 107, 118 (citations omitted). While the State should have notified the defense prior to trial that the tissue had not been confirmed to be skin, this does not constitute grounds for a new trial. The failure to identify the tissue as skin was not prejudicial to the defense. As noted by the trial court:

The decision by the State Forensic Laboratory to send the particle in its entirety for DNA testing, rather than to another lab for histology testing, was reasonable given their obligation to exercise discretion in prioritizing the importance of .the various objectives that could be obtained from different types of testing.

Moreover, the trial court correctly concluded that “[t]he DNA evidence obtained from particle No. 68 was ultimately of much more importance to the defense,” because Aesoph was eliminated as a possible source of the tissue. The trial court did not abuse its discretion and thus there is no showing of an irregularity that warrants relief.

[¶ 57.] 7. Whether the trial court abused its discretion in revoking the pre-trial bond.

[¶ 58.] Because we agree with the trial court’s decision as to all matters set forth above, we find this issue moot.

[¶ 59.] Therefore, we affirm.

[¶ 60.] SABERS, AMUNDSON, and KONENKAMP, Justices, and RUSCH, Circuit Judge, concur.

[¶ 61.] RUSCH, Circuit Judge, sitting for GORS, Acting Justice, disqualified.

[¶ 62.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court, did ’ not participate.

      . Aesoph was the owner and beneficiary of a $500,000 policy, dated April 6, 1994, with a $500,000 accidental death benefit added on December 6, 1996. Aesoph was also the owner and beneficiary of a $500,000 policy with a $200,000 accidental death benefit dated June 21, 1996.

      . Aesoph had also been in contact with attorney Jeffrey Sveen, who represents Aesoph in this action. Aesoph called Sveen no less than thirteen times in the week preceding Tania’s death.

      . Tania's body also showed evidence of a multitude of other injuries including a black eye, broken ribs, skull fractures, and other cuts and bruises.

      . Aesoph claims only that he was denied his right to an attorney and does not specify whether he is referring to his rights under the Fifth or Sixth Amendment. We assume Ae-soph is not claiming a violation of his Sixth Amendment right to an attorney because such a claim requires that the defendant be charged with a crime when denied assistance of counsel. See State v. Cashman, 491 N.W.2d 462, 464 (S.D.1992) (citing Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988)). Aesoph does not dispute that he was not under criminal charges at the time he gave the incriminating statements to police. Therefore, we address only the Fifth Amendment issue.

      . Even if we were to hold that Aesoph’s interrogation was custodial, we need not decide this issue. The absence of a Miranda warning in that instance would mandate suppression of these statements, regardless of any request or denial of an attorney.

      . Braley admitted at trial that he may have attempted to dissuade Aesoph from getting an attorney by telling him that, in contacting an attorney, “You shut off your opportunity to tell us the truth.” In a non-custodial interview this is constitutionally permissible. However, if the request for an attorney is in a custodial setting and unequivocal, such "interview techniques” are in violation of Davis, 512 U.S. at 459, 114 S.Ct. at 2355, 129 L.Ed.2d at 371 (citations omitted). An unequivocal request is not subject to a subsequent negotiating session with the interrogating officer.

      . Aesoph was 53 at the time of questioning.

      . In this case we are not left with pondering the background circumstances of an interview from the cold pages of a transcript. The interviews with Aesoph were tape-recorded. A l’eview of those audio tapes shows he was fully in control of his participation in the interviews.

      . While Aesoph claims he was unable to describe the victim’s position before he moved her, there are several examples to the contrary. Aesoph stated that "She was all piled up. Her neck was twisted under her.... Her head was twisted down under her. Her dress was over the top of her.” He also stated, “Her neck was twisted under her and maybe kinda leaning back a little bit against the, the side wall ... her legs kind of flopped up over her, ya know, to the front.”

      . We note, however, that the trial court addressed the particularized guarantees of trustworthiness at length and found that there was ample evidence of reliability to support admission of these statements. We agree with this finding.

      . SDCL 16-13-10.2 provides: "No citizen shall be excluded from service as a grand or petit juror in the courts of this state on account of race, color, religion, sex, national origin or economic status.”

      . The venue for Aesoph's trial was changed from Hyde County to Lyman County. Therefore, the sheriff that investigated the crime, Volek, was not the same sheriff that contacted the additional jurors. Thus, there is no potential for a claim of conflict of interest. See O'Neal v. Delo, 44 F.3d 655, 662-63 (8thCir.1995) (holding when sheriff or staff were not participants in murder investigation, contacting additional jurors is appropriate).

      . It is worth noting that tribal members residing in Indian country, such as those living on the Lower Brule Indian Reservation, are generally not subject to state statutory requirements and cannot be compelled to appear. See Bruguier v. Class, 1999 SD 122, ¶ 1, 599 N.W.2d 364, 365; Bradley v. Deloria, 1998 SD 129, ¶ 5, 587 N.W.2d 591, 593; Risse v. Meeks, 1998 SD 112, ¶ 11, 585 N.W.2d 875, 877; State v. Lufkins, 381 N.W.2d 263, 266-67 (S.D.1986).

      .At least one juror who served in the trial had a Native American surname, as did one alternate juror.