author: SABERS, Justice.

text:
    2000 SD 69
    STATE of South Dakota, Plaintiff and Appellee, v. Jerome Anthony BLEM, Defendant and Appellant.
    No. 21064.
    Supreme Court of South Dakota.
    Argued April 25, 2000.
    Decided May 24, 2000.

      Mark Barnett, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, for plaintiff and appellee.
    Michael J. Butler, Butler Law Office, P.C., Sioux Falls, for defendant and appellant.
   SABERS, Justice.

[¶ 1.] Jerome Anthony Blem was convicted of first degree manslaughter for the death of David Drafahl at Blem’s house in Frederick, South Dakota. He appeals. We reverse and remand for a new trial.

FACTS

[¶ 2.] In March or April of 1998, Blem, age 40, hired Doug Krueger to clean a building. Blem testified that after two weeks, he paid Krueger $200, told him to leave and finished the job himself. Thereafter, Krueger admitted that he stopped by Blem’s home, uninvited, approximately ten times to beg or “borrow” from Blem. Krueger also admitted to drinking whenever he had money. In late June, Krueger asked Blem for cigarettes. When Blem told him no, Krueger allegedly responded “don’t make me have to go to Ellendale [North Dakota] to get some.” Blem testified that he felt uneasy, but still refused to supply cigarettes to Krueger. However, from March to July 3, 1998, Blem gave Krueger an old washing machine, beer, canned goods, water and cigarettes.

[¶ 3.] Prior to July 3, Drafahl, Krueger’s roommate, never accompanied Krueger on his visits to Blem’s home. However, Blem knew Drafahl from the local bar. Blem testified that Drafahl told him that he was a Vietnam War veteran specially trained in the use of knives and machetes. Blem also testified that Drafahl was known to carry a knife. He further testified that he knew of an earlier incident where police found three machetes, a lockblade knife, drugs and drug paraphernalia in Drafahl’s vehicle.

[¶ 4.] Blem also knew that Drafahl was nicknamed “Machete Dave.” Krueger testified that he started calling him that because “he always carried a machete when [they] were drunk” and he used it at work to “chop little twigs away from pieces of steel.” However, the bar manager testified that Drafahl told him, in the summer of 1998, that he received his nickname because “he could sneak up behind me, cut me up into a hundred different pieces and no one would know.”

[¶ 5.] On July 3, 1998, Krueger and Dra-fahl were drinking “quite a bit.” When they ran out of beer, Krueger claims that they decided to walk to Blem’s house to see whether he had beer. "When the two arrived at Blem’s house, at approximately 10:00 p.m., they noticed that Blem was on the phone. Krueger claims that he told Drafahl, “watch me scare him [Blem] ... just for a joke.” Krueger opened the door and stated loudly “Hey, what’s going on?” Blem, who was talking to his sister, Mary Brobjorg, over the telephone, was startled and jumped. He testified that he was even more frightened when he saw two people in and around his home. He told the men, “you are not invited,” “you cannot be in my house,” “get out of here,” and “you have to go away.’’ Krueger let the door shut and Mary heard the two men laughing “like hyenas.” According to Krueger, Blem then emerged from a room with a .22 rifle telling Krueger “you ever do that again, I’ll kill y[ou].” Blem then shot eight rounds over Krueger’s head to “scare” them. Drafahl was standing up against the side of the house. After the shots were fired, Blem' allegedly pointed the gun directly at Krueger who told Blem, “[y]ou better put that gun away before somebody gets hurt.” As Krueger and Drafahl left Blem’s property, they placed a string of firecrackers on a tree stump in Blem’s front yard and positioned a lit cigarette over them so they would go off. Mary heard the men laughing and Blem told her that he “was scared” and was “being terrorized.”

[¶ 6.] Mary tried to calm Blem down and stayed on the phone with him for approximately 90 minutes. Blem then went to the house of his friend, Bob Campbell, and told him about the incident and that the men “threatened him” and that he was afraid of them. Campbell testified that Blem was “frightened to death” and he checked on him the next day.

[¶ 7.] Blem also went to the bar that night to talk with Bryan Crawford about the incident. Crawford testified that Blem was upset and scared and he eventually got Blem calmed down. At one point in their conversation, Blem went outside to retrieve his pliers from his pickup. Crawford testified that when he returned, Blem told him that Krueger and Drafahl were hiding beside a building across the street and came “marching across the street toward him.” Shortly after Blem re-entered the bar, Krueger and Drafahl entered and a few words were exchanged between Krueger and Blem.

[¶ 8.] Blem attempted to speak with deputy sheriff, John Heine, the next day, but was unsuccessful. He attempted again the next two days, but to no avail. When he finally contacted Heine, Heine told Blem that he could not shoot his gun off at people and that he could end up in more trouble than Krueger and Drafahl. Heine advised him that he could go to jail for 120 days and that he should talk with an attorney.

[¶ 9.] Blem spoke with an attorney and asked him to draft a restraining order. That attorney, however, could not assist him and referred him to another attorney.

[¶ 10.] On July 7, Blem borrowed a shotgun from a friend, Pete Lahr, to “deter” both Krueger and Drafahl. Lahr testified that Blem was scared of Krueger and Dra-fahl.

[¶ 11.] Around July 19, Blem spoke with the mayor of Frederick, Scott Campbell, about the problem he was having with Krueger and Drafahl. The mayor told Blem that there was nothing the city could do to help him and that he should contact the sheriff’s office.

[¶ 12.] From July 3 to July 25, Blem saw both Krueger and Drafahl on numerous occasions, but never confronted either of them.

[¶ 13.] On July 25, 1998, Krueger and Drafahl were drinking heavily all day at Elm Lake and both were “pretty drunk.” When they returned to Krueger’s house between 8:30 and 9:00 p.m., Krueger went inside and Drafahl left on his bicycle.

[¶ 14.] Around 10:00 p.m., Blem heard a knock on his kitchen window, however, he could not see out. Blem heard a man call out, “it’s the crazy mother f ... er” and “I’m here to getcha.” The man walked around the house repeating those phrases and the phrase “lock and load, lock and load.”

[¶ 15.] Blem testified that he was shaking and was scared. He ran to his bedroom and grabbed a revolver, a rifle and the phone to call 911. He put the revolver in his back pocket. Then, the door flew open, Drafahl stepped inside and Blem, startled, dropped the phone. Blem told him to get out of his house and fired one shot past Drafahl’s shoulder to “scare him.” Drafahl did not move. Blem slowly walked toward him and told him that the police were on their way. He held his gun with both hands and put it against Dra-fahl’s chest “to try and back him out.” Blem testified that Drafahl was pushing toward him and he was pushing back. Blem got him out the door and was attempting to push him toward the street. As Blem was pushing him, Drafahl repeatedly reached into a side pocket in the Army fatigues he was wearing. Then Dra-fahl allegedly announced, “that’s it, we go no further, you die now” and “I’m gonna kill you.” Drafahl reached into his pocket again and Blem held up his pistol and shot into the air. Blem told Drafahl to “get the f.. k out of here.” Drafahl allegedly lunged at Blem with his hands towards Blem’s throat and Blem shot Drafahl with the pistol. Drafahl continued to come toward him. Blem backed up and began to fire his rifle. He shot Drafahl until he “felt safe.” Blem later phoned the police and reported the shooting.

[¶ 16.] As it turned out, Drafahl was not armed. He was shot five times: in the back, the right hand, back of the right side of the neck, and two times on the left side of the head. Blem was indicted for second-degree murder and first-degree manslaughter. The case was tried April 15 through 26,1999 and Blem claimed that he acted in self-defense. A jury found Blem guilty of first-degree manslaughter and he was sentenced to serve fifty-five years in the state penitentiary.

[¶ 17.] Blem appeals raising four issues.

[¶ 18.] 1. WHETHER THE TRIAL COURT ERRED IN REMOVING TWO PROSPECTIVE JURORS FOR CAUSE PRIOR TO COMMENCEMENT OF THE STATUTORY JURY SELECTION PROCESS.

[¶ 19.] Before voir dire commenced, the State sent a letter, dated December 22, 1998, to the trial court requesting that it remove two potential jurors, Scott Weller and Miles Bretsch, for cause. A copy of this letter was sent to Blem’s attorney. Blem’s attorney responded by letter, dated December 29, 1998, to the trial court indicating that he strongly opposed the proposed removal of these two potential jurors. A copy of this letter was sent to the State. At a motions hearing on January 5, 1999, the parties argued the removal of these two potential jurors to the trial court. Weller had signed a petition that was circulated in Frederick to show support for Blem and to demonstrate that the community did not fear Blem’s residing in Frederick while he was on bond. Bretsch did not sign the petition, but attended Blem’s arraignment on September 1, 1998. ■The State argued that Bretsch received detailed information about the trial and that Blem’s attorney told the court that he might call Bretsch as a witness. During this hearing, the State also asserted: “I’d like to' see any citation that a court cannot excuse jurors before reporting for duty, you show me one. And if that’s the law then we are violating it.” Blem contested the removals, but the trial court granted the State’s motion. ..

[¶ 20.] On appeal, Blem argues that the statutory jury selection process was violated and he was denied an opportunity to determine that these prospective jurors were not biased and should not be-removed for cause. He counters the State’s claim that his attorney told the trial court during arraignment that Bretsch might be called as a witness.

[¶ 21.] The rules of statutory interpretation áre well established:

The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the- language used. Words and phrases in. a statute must be given their plain- meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed. Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject.. But, in construing statutes together it is presumed that the legislature did not intenfd] an absurd or unreasonable result.

Edgemont School District 23-1 v. SD Dep’t of Revenue, 1999 SD 48, ¶ 8, 593 N.W.2d 36, 38-39 (quoting Dahn v. Trownsell, 1998 SD 36, ¶ 14, 576 N.W.2d 535, 539 (citations omitted)). Questions of law, including statutory construction, are reviewed under a de novo standard, giving no deference to the trial court. Engelhart v. Kramer, 1997 SD 124, ¶8, 570 N.W.2d 550, 552 (citing West Two Rivers Ranch v. Pennington County, 1996 SD 70, ¶ 6, 549 N.W.2d 683, 685).

[¶ 22.] SDCL 23A-20-6 provides:

The defense attorney ... and the prosecuting attorney shall conduct examination of prospective jurors. Prior to the examination, the court may conduct a general examination of the prospective jurors. The court may in its discretion allow examination of one or more jurors apart from the other jurors.

(emphasis added). The statutory language unequivocally provides that an examination of prospective jurors “shall” take place. The State asserts, however, that this statute conflicts- with the initial language of SDCL 23A-20-8:

At any time that cause for disqualifying a juror appears, the court shall excuse him and call another member of the panel to take his place in the jury box and on the clerk’s list of jurors. Challenges for cause may be made out of hearing of the jurors, but shall be made on the record.

(emphasis added).

[¶ 23.] A careful review of both statutes leads to the conclusion that they do not conflict. SDCL 23A-20-8 means that once the juror is excused for cause, the court shall then “call another member of the panel to take his place in the jury box[.]” It is clear that the intention is that the trial court can .remove a juror for cause at any time during the examination. The State misreads the language in SDCL 23A-20-8. Therefore, an examination must be conducted in order to remove a juror for cause under SDCL 23A-20-6.

[¶ 24.] The removal of these two jurors for cause was error. The statute in effect at the time of trial (SDCL 23A-20-12) provided that a juror may be excused for cause only on actual or implied bias. Actual bias is defined as “the existence of a state of mind on the part of a juror, in reference to the case or to either party, which satisfies the court ... that he cannot try the issue impartially....” SDCL 23A-20-12. In order to remove a juror for implied bias, “one or more of the causes stated in § 23A-20-13 must be alleged.” Id.

[¶ 25.] Here, an examination of the jurors never took place. The excused jurors did not have an opportunity to express their state of minds; therefore, actual bias could not be determined. Additionally, none of the causes set forth in SDCL 23A-20-13 to establish implied bias have been satisfied. See First Bank of SD v. VonEye, 425 N.W.2d 630, 633 (S.D. 1988) (quoting State v. Hansen, 407 N.W.2d 217, 220 (S.D.1987) (stating a “mere expression of a predetermined opinion ... does not disqualify a juror per se.”)); State v. Flack, 77 S.D. 176, 89 N.W.2d 30, 32 (1958) (stating that “qualifications of a juror must be determined from the whole voir dire examination.”) (emphasis added). Thus, the removal of these two jurors, prior to the voir dire process, was error. Because there was no examination, there was no substantial compliance with these statutes.

[¶ 26.] The State argues that if there is error, it was harmless error because Blem failed to prove that the jury was unfair or impartial. Blem counters by arguing that the harmless error analysis is not applicable because the trial court committed reversible error in failing to follow statutory procedures. Blem claims that a failure to substantially comply with statutory proee-dures governing jury selection is a structural error not subject to harmless error review.

[¶ 27.] In State v. LaMere, 2000 Mont. 45, 2 P.3d 204, the Montana Supreme Court recently addressed the issue of whether the failure to abide by the statutory provisions of jury selection violated the defendant’s constitutional right to a fair and impartial jury. In LaMere, the clerk of court used a computerized random selection to draw 200 names from the list of eligible jurors within the county. She then telephoned 101 potential jurors and ordered them to appear for jury duty the next day. The defendant objected and argued that the use of the telephone did not substantially comply with Montana statutes requiring that potential jurors be served either by mail or by the sheriff.

[¶ 28.] The LaMere court overruled a prior decision, State v. Robbins, 292 Mont. 23, 971 P.2d 359 (1998), which had held that harmless error analysis was applicable to statutory violations, of. the jury selection statutes. The LaMere court determined that jury selection statutes existed “to secure rights deemed fundamental to our system of justice by minimizing and, indeed, preempting the violation of such fundamental rights from the outset of a trial.” LaMere, 2 P.3d at 211. Because the right to an impartial jury is fundamental, the court returned to an automatic rule of reversal for “a material failure to substantially comply with Montana statutes governing the procurement of a trial jury” for four reasons:

(1) such an error precedes the presentation of any evidence to the jury, and cannot be analyzed as mere trial error without resorting to speculation;
(2) such an error, because it precedes the trial process, cannot be quantitatively assessed for its prejudicial impact relative to the evidence introduced at trial;
(3) such an error, being other than an error in the trial process, affects the very framework within which the trial proceeds; and
(4) the impartiality of .the jury goes to the very integrity of our justice system, and the right to an impartial jury is so essential to our conception of a fair trial that its violation cannot be considered harmless error.

Id. at 217.

[¶ 29.] We are ■ persuaded by the LaMere rationale and determine that the South' Dakota statutory procedures “establish objective methods for the random selection of trial jurors” in South Dakota. “These objective procedures, by seeking to eliminate as far as possible the vagaries of human subjectivity and arbitrariness from the jury selection process, secure a defendant’s fundamental right to an impartial jury....” Id. at 214. Therefore, a substantial failure to comply with jury selection statutes is a structural error because it “affect[s] the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Id. at 216 (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302, 331 (1991)). See also People v. Gratz, 35 Mich.App. 42, 192 N.W.2d 304, 305 (1971) (holding that “a failure to comply with the statutory provisions concerning the selection of juries may not be rectified under [the harmless error] statutory provision”); People v. Miller, 411 Mich. 321, 307 N.W.2d 335, 337 (1981) (holding that a defendant need not establish that he was prejudiced by the jury selection when the statutory provisions are not complied with).

[¶ 30.] Here, there was a substantial failure to comply with jury selection statutes because no examination of the prospective jurors was conducted prior to their removal. Blem was denied an opportunity to demonstrate that neither of these jurors were biased nor prejudiced. It is true that a party is entitled to an impartial jury, but not to a particular juror. This concept is generally applied to the defendant but is also true for the State. Neither side, including the State, is entitled to the exclusion of particular jurors prior to the commencement of the voir dire process.

[¶ 31.] We reverse and remand for trial.

[¶ 32.] 2. WHETHER THE TRIAL COURT ERRED IN PERMITTING THE STATE TO PRESENT EXPERT WITNESS TESTIMONY ON BLOOD SPATTER ANALYSIS WITHOUT PRIOR NOTICE TO BLEM.

[If 33.] Bob Schuehardt is á special agent with the Department of Criminal Investigation (DCI). He participated in this criminal investigation and the State disclosed to Blem that it planned to call him as a witness:

He will testify as to any photographs taken by him for foundational purposes. He will testify as to any samples of any evidence taken by him. Agent Sehu-chardt also participated in the interview of the Defendant and will testify as to the statements made by the Defendant.

[If 34.] During the trial, Schuehardt testified that he was involved with law enforcement since he graduated from high school. In 1992, he attended a one-week course in Pierre on blood spatter analysis. The State asked Schuehardt whether he made any conclusions about the blood spatters in this case. Blem objected, but the trial court allowed Schuehardt to testify. Schu-chardt testified to the position of the bicycle when Drafahl’s blood dropped on it. He also testified that the blood droplets on the ground came from a source that was “moving very slowly.”

[¶ 35.] The next morning, Blem made a motion for a mistrial because, despite his discovery requests, he received no prior notice in any form, oral or written, that Schuchardt would testify as an expert on blood spatter analysis. During an in-chambers hearing on the motion for a mistrial, the State claimed that Schuchardt’s conclusions were reported to them only the day before he testified. The State also claimed that it did not think it should have to “interview Mr. Schuchardt and find out answers for the defense in advance.”

[¶ 36.] Blem’s attorney called Schu-chardt as a witness in support of his motion for a mistrial. Schuchardt testified that he had sent photographs and “an outline of what [his] opinions were and what [he] may be testifying to” to a laboratory in Wyoming for confirmation of his opinion on March 30. He further stated that he discussed his blood spatter opinions with the prosecuting attorney prior to March 30. Despite that, the trial court denied Blem’s motion for a mistrial.

[¶ 37.] Blem argues that the trial court erred in failing to sustain his objection to Schuchardt’s testimony and failing to grant his motion for mistrial because he had no prior notice of Schuchardt’s expert opinion. Additionally, he argues that Schuchardt’s qualifications as an expert are “doubtful at best” when reviewed under the Daubert standard.

[¶ 38.] First, the State argues that Blem failed to preserve the issue for appeal because he (1) did not make immediate objections to Schuehardt’s testimony, (2) did not ask for a continuing objection or for an immediate mistrial, and (3) did not ask for a Daubert hearing. We disagree. The record indicates that Blem’s attorney objected and preserved the issue for appeal.

[¶ 39.] Second, the State argues that it was aware of Schuchardt’s testimony only a couple of days prior to his being called as a witness; therefore, it claims it did not violate the discovery order nor did it fail to provide a copy of Schuchardt’s report to Blem, because a report did not exist. We disagree.

[¶ 40.] Once an expert opinion is known to the State and the State determines that it will solicit that opinion in court, it must disclose the opinion to the defense regardless of the number of days or hours before the witness is scheduled to testify. SDCL 23A-13-15 provides:

If, prior to or during trial, a party discovers additional evidence or material previously requested or ordered, which is subject to discovery or inspection under §§ 23A-13-1 to 23A-13-14, inclusive, he shall promptly notify the other party or his attorney or the court of the existence of the additional evidence or material.

(emphasis added). See also State v. Ha-gan, 1999 SD 119, ¶¶ 20-22, 600 N.W.2d 561, 566 (determining that a discovery order was not violated when the State, upon its receipt, disclosed a witness statement to the defendant five days before trial). Parties are not granted immunity from discovery orders merely because the trial has commenced. Furthermore, the State’s position that it knew of Schuchardt’s opinion only days before his testimony is contradicted by Schuchardt’s testimony. Schuchardt testified that he rendered his opinions before March 30 and had discussed them with the State’s attorney. The trial did not commence until April 15.

[¶ 41.] It clearly was error for the State to withhold the substance of Schuchardt’s testimony from Blem. In view of our determination of reversible error on Issues 1 and 4, it is not necessary to reach or determine the extent of the prejudice sustained by Blem as a result thereof.

[¶ 42.] 3. WHETHER THE TRIAL COURT ERRED IN RULING THAT CERTAIN PORTIONS OF WITNESS TESTIMONY WAS EXCLUDED.

A. Bryan Crawford

[¶ 43.] The State’s strategy throughout the trial was to portray Dra-fahl as a nonviolent man with a peaceful reputation. During its case-in-chief, the State called Bryan Crawford as a witness. Prior to trial, Crawford made a statement reflecting that he felt that Drafahl did not have a reputation for violence. At trial, he vacillated and testified that prior to July 3, Drafahl did have a reputation for violence. The State used a portion of his statement to refresh Crawford’s recollection. After reading his statement, Crawford simply explained that when he gave his prior statement, he had forgotten an incident which had occurred prior to July 3.

[¶44.] In chambers, Blem requested permission to admit the.complete page of the statement used to refresh Crawford’s memory during cross-examination. He argued that the complete page would explain the inconsistency in Crawford’s testimony. The critical portion of the testimony provided: “David was - would talk about killing people. That he ... killed in fifty different ways.... ” The trial court refused to allow Blem to offer the page into evidence, or to question Crawford about it. It further instructed that Blem could only ask Crawford whether .Drafahl had a reputation for violence.

[¶ 45.] Blem argues that the trial court committed reversible error in restricting his cross-examination of Crawford. He argues that under SDCL 19-12-6, on cross-examination, inquiry is allowed into relevant specific instances of conduct when proof of character or reputation is offered by a party. He also contends that the State “opened the door” and placed Dra-fahl’s good character into issue; therefore, any inquiry into the victim’s bad character is relevant and admissible.

[¶ 46.] Under SDCL 19-12-4(2), evidence of the victim’s character or a trait of his character is admissible to show he acted in conformity therewith “to rebut evidence that the victim was the first aggressor.” Generally, this “pertinent trait of character” is proven by testimony of the victim’s reputation. Id. See State v. Latham, 519 N.W.2d 68, 71 (S.D.1994) (citations omitted).

[¶ 47.] The State’s strategy was to portray Drafahl as a nonviolent man, apparently in an effort to prove that he was not the aggressor. Thus, under SDCL 19-12-4(2), the State could present testimony concerning Drafahl’s reputation as a peaceful man. It could also ask Crawford whether David Drafahl had a reputation for violence prior to July 3. Unexpectedly, Crawford replied, “Yes, he did.” The State attempted to impeach him with a portion of his prior statement. Blem wanted Crawford to explain to the jury why his testimony was not inconsistent; that is, that Drafahl would talk about killing people and that he had “killed in fifty different ways.”

[¶ 48.] SDCL 19-12-6 provides:

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct

(emphasis added). This .statute plainly allows cross-examination into specific instances of conduct when “a trait of character” is admissible. Therefore, the trial court clearly erred. Under the circumstances, this testimony is admissible, if necessary, for impeachment purposes on re-trial.

B. Bobbin Hruska

[¶ 49.] During the summer of 1998, Hruska was helping his sister operate the bar in Frederick. He told the jury that prior to July 3, 1998, Drafahl told him his nickname was “Machete Dave” because “he could sneak up behind [Hruska], cut [him] up into a hundred different pieces and no one would know.”

[¶ 50.] The trial court allowed this testimony but ruled that Hruska could not testify to the conversation concerning Dra-fahl’s scheme as follows: Drafahl asked Hruska to sign a piece of paper which provided that the bar was a public place. If Hruska would sign it, Drafahl explained that he could shoot Hruska and sue the city. Then the two could split the money. At that point, Hruska told Drafahl to leave the bar and Drafahl started pounding the bar with his first,

[¶ 51.] Blem argues this evidence was admissible under SDCL 19-12-7 because the State made the victim’s reputation an issue. He claims that proof of Drafahl’s violent nature, particularly when drinking, was relevant to Blem’s claim of • self-defense to rebut the State’s portrayal of Dra-fahl’s peaceful reputation.

[¶ 52.] As indicated above, Blem was entitled to present relevant specific instances of conduct to impeach the State’s evidence that Drafahl was a peaceful person.' ‘The trial court erred. On re-trial, this evidence is admissible, if necessary, for impeachment purposes.

C. Mary Brobjorg, Blem’s sister

[¶ 53.] Blem was having a telephone conversation with his sister, Mary, on July 3, 1998, the night Krueger burst into his home. She remained on the phone and heard what transpired between the two parties. She testified that she asked Blem why he was scared. At that point, the State objected to Mary’s anticipated response on the grounds of hearsay.

[¶ 54.] During Blem’s offer of proof, Mary told the trial court that Blem told her that the men were “threatening him,” and “terrorizing him.” When she asked him “are you being intimidated,” he replied “no, I am being terrorized.” She described Blem as “panicky,” “scared” and “breathing heavy.” The . trial court allowed her to testify that Blem told her that two “bad dudes came in his house,” but determined that the rest of her testimony was inadmissible because it was “unrelated to the event.”

[¶ 55.] Blem argues that his response of “being terrorized” showed his fear of Krueger and Drafahl and was an excited utterance or a contemporaneous statement. Therefore, he claims that the statement was admissible under' both SDCL 19-16-5 and 19-16-6. He also claims that the statement does not amount to hearsay under SDCL 19-16-2 because the declar-ant, Blem, testified, in court under oath, before Mary testified.

[¶ 56.] To be admissible evidence under the ’excited utterance rule, the statement must (1) relate to a “startling event or condition;” and (2) be made by the declarant while “under the stress of excitement caused by the event or condition.” SDCL 19-16-6. Similarly, a statement is considered to be contemporaneously made and admissible if it describes or explains “an event or condition” and is “made while the declarant was perceiving the event or condition, or immediately thereafter.” SDCL 19-16-5:

[¶ 57.] Here, Mary possessed firsthand knowledge of what occurred > that night. After Krueger and Drafahl left, Blem got back on the phone and was “panicky,” “scared” and “breathing heavy.” He told Mary that he was scared and that he was “being terrorized.” This' statement is an excited utterance because it relates to the startling event of a man bursting into his home. This statement describes the condition of being “terrorized” and was made while Blem was perceiving the event,. or immediately thereafter, therefore it was contemporaneously made. Thus, it was error to exclude this testimony.

[¶ 58.] The State argues that the response is not a contemporaneous statement or an excited utterance because it is not a statement of fact and merely describes the history between the two parties. The application of the excited utterance or contemporaneous statement rules is not limited to ones of fact. See Lee v. Solem, 405 N.W.2d 56, 58 (S.D.1987) (stating that the testimony that $1,500 had to be taken to petitioner’s home “or else someone would be floating in the river” may be admitted as an excited utterance); State v. Wolford, 318 N.W.2d 7, 10-11 (S.D.1982) (determining that the following statement was properly admitted as a contemporaneous statement: “That_ stole a car. I am going to stay the hell away_” (expletives omitted)). Therefore, we conclude that the trial court erred in excluding portions of Mary’s testimony.

[¶ 59.] The State further claims that error, if any, was harmless because Mary testified that Blem was “scared” and any reference to Blem’s “being terrorized” is merely cumulative. When the basis for claiming harmless error is that the evidence is cumulative, a court’s inquiry must go beyond whether duplicative evidence exists:

A court’s inquiry as to harmlessness does not end with its determination that the erroneously admitted evidence duplicates the untainted evidence. Regardless of the duplicative nature of the erroneously admitted evidence, the record in the particular case might reveal that the admission of the evidence was or was not prejudicial. In some eases the jury may not have been persuaded of the defendant’s guilt had it not been presented with the erroneously admitted duplicative evidence. Conversely, in other cases although the erroneously admitted evidence is not duplicative, it could be clear to the court that the evidence had no impact on the conviction.

State v. Younger, 453 N.W.2d 834, 842 (S.D.1990) (Sabers, J., concurring specially) (quoting State v. Billings, 110 Wis.2d 661, 329 N.W.2d 192,196 (1983)). In other words, the focus should be on the extent of the prejudice caused by the error, even if duplicative. However, because of our determination of reversible error on Issues 1 and 4, we need not reach this question. Once again, on retrial, this evidence should be admitted.

[¶ 60.] 4. WHETHER THE TRIAL COURT ERRED IN PERMITTING THE STATE TO CROSS-EXAMINE BLEM ON HIS MENTAL ILLNESS AFTER GRANTING THE STATE’S MOTION IN LIMINE PROHIBITING THAT EVIDENCE.

[¶ 61.] Blem suffers from bipolar disorder. On November 24, 1998, the State made a motion in limine to prohibit the defense from “presenting any testimony or argument that [Blem] by virtue of his peculiar characteristics or sensibilities acted reasonably in killing [Drafahl].” The trial court granted the State’s motion stating that “the standard from which the Defendant’s conduct is to be judged is a reasonable person ... standardf.]”

[¶ 62.] At trial, the defense complied with the ruling and offered no testimony or evidence of Blem’s mental illness. However, the State questioned Blem about his mental illness during cross-examination. Despite the motion in limine and Blem’s objections, the State elicited information about the type of illness he suffered, the type of medications he was taking, the affect his medications had on his ability to perceive events and whether the disorder or the medications caused “violent mood swings.” Blem’s attorney was granted a continuing objection to this line of questioning.

[¶ 63.] During an in-chambers hearing, the State argued that his inquiries were permissible because Blem repeatedly testified that he was “afraid, afraid, afraid, afraid.” The State declared that it was “entitled, for impeachment purposes, ... [to inquire] whether or not his fears [were] exaggerated because of his mental illness.” The trial court allowed the State to proceed.

[¶ 64.] During closing arguments, the State further argued to the jury that Blem was not a credible witness “because of [his] psychological makeup, [he] exaggerates and embellishes and, as I said, has different moods, violent moods, meaning violent in the sense I’m using extreme.” Blem objected because he testified that he did not experience violent mood swings. The trial court noted his objection and the State continued arguing that Blem had a “sick and exaggerated mind [and][h]is beliefs are unreasonable about any risk.” He further stated:

[I]f we allow the Jerry Blem’s of this world, the people who are easily frightened, the high strung, the prone to exaggeration to have a license to kill because they believe that they were in danger, then many people, then the mentally ill, the cowards ■ of the world are given ... a license to kill[J
We have to impose upon these people rationality or we’re all going to be at risk for the - for the violent conduct of irrational, unreasonable people if the defense is, well, they thought it was ok so its ok....
[Blem] recounted events in his mind that did not happen and exaggerated them, embellished them and worked himself up. A fear probably created by his psychological makeup. His personality.

[¶ 65.] Blem argues that it was reversible error to allow the State to question Blem about his mental illness in direct violation of the State’s motion in limine. He claims that it was also reversible error to allow the State, in its closing argument, to argue that his bipolar disorder affected his judgment. He claims that this evidence should have been excluded under Rule 404(b) because it was highly prejudicial and with little probative value and requests that this court reverse on the basis of plain error.

[1166.] The State claims that self-defense is judged by an objective reasonable person standard.' Because Blem testified that he was afraid, which is a personal and subjective emotion, the State argues that it had to use Blem’s mental illness to show that the subjective evidence of Blem being “afraid” was not objeetively reasonable.

[¶ 67.] “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of a court.” SDCL 23A-44-15. In State v. Nelson, 1998 SD 124, ¶ 8, 587 N.W.2d 439, 443, we explained:

Plain error requires (1) error, (2) that is plain, (3) affecting substantial rights; and only, then may we exercise our discretion to. notice the error if (4) it ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings. We invoke our discretion under the plain error rule cautiously and only in “exceptional circumstances.”

(alteration in original) (internal citations omitted). Under plain error analysis, Blem bears the burden of proving that the error was prejudicial and must be corrected because “a miscarriage of justice would otherwise result.” Id. (citations omitted).

[¶ 68.] Here, the State, in its brief in support of its motion in limine, argued that if Blem were allowed., to present evidence concerning his “peculiar characteristics or sensibilities:” ■

One would expect that various witnesses including a psychologist or counselor would be expected to testify that at least as to this Defendant and because of his peculiar sensibilities and mental illness he perceives danger differently; and, would respond differently th[a]n the average reasonable person. If that is to be the law, then the South Dakota Supreme Court should overrule their prior decisions and make the same clear. The present authority does not allow for this Court to allow for a ‘peculiar’ standard based upon peculiar sensibilities of every individual. The reasonable objective person is still the standard in the State of South Dakota.

[¶ 69.] Clearly, the State, during the pretrial motions, argued that Blem was to abide by the objectively reasonable person standard and was prohibited from presenting evidence on his mental illness. During the trial, Blem testified that he was “afraid,” an emotion that the jury was ultimately instructed to evaluate under the objectively reasonable person standard. See Instructions 19, 28. However, the State determined it necessary to explain that Blem was “unnecessarily afraid” because of his mental illness, thereby requesting the jury to use a subjective standard. The State can not have it both ways. Blem was denied an opportunity to present expert testimony and evidence concerning the nature of his mental illness, the extent of Blem’s mental illness at the time of the shooting; that is, whether he suffered from a manic episode and how his perceptions are affected, if at all. Essentially, Blem was ambushed by the State and denied his right to a fair trial. We conclude that the State’s violation of its motion in limine and its conduct during closing argument constitutes prejudicial error resulting in an unfair trial.

[¶ 70.] In summary, we conclude that the trial court erred on all four issues. The errors in Issues 1 and 4 were clearly prejudicial. Whether the errors in Issues 2 and 8 were sufficiently prejudicial by themselves to warrant reversal we need not decide as the entire case must be retried in any event. We reverse all issues.

[¶ 71.] MILLER, Chief Justice, and AMUNDSON, KONENKAMP and GILBERTSON, Justices, concur.

      . The State's claim that Blem's attorney told the trial court that Bretsch may be called as a witness at Blem's trial appears to be a misstatement of the record.

      . SDCL 23A-20-12 was repealed July 1, 1999 and was replaced with SDCL 23A-20-13.1 which enumerates twenty-one circumstances in which a challenge for cause may be sustained. However, even under this new statute, an examination of these two jurors was required.

      . The rule differs where the testimony is offered for substantive purposes njther than for impeachment. For example, relevant specific instances of conduct are limited to those incidents known to a person claiming self-defense at the time of the killing. State v. Knecht, 1997 SD 53, ¶ 15, 563 N.W.2d 413, 419; Latham, 519 N.W.2d at 71; State v. Dokken, 385 N.W.2d 493, 501 (S.D.1986).
      There is no showing that Blem knew that Drafahl talked about killing people or that he had killed in fifty different ways. Therefore, the trial court did not err in this respect in excluding the evidence, but the specific instances were clearly admissible to impeach any, testimony that Drafahl was a peaceful person.

      . Bipolar disorder is a form of manic depression. Lawyers’ Medical Cyclopedia, § 17.16 (4th ed. 1996). A patient with bipolar disorder experiences different phases of depression throughout the illness. Id.


source: Caselaw Access Project

author: KONENKAMP, Justice AMUNDSON, Justice

license: Public Domain

text:
    2000 SD 71
    Larry and Susan HOLLAND, Plaintiffs and Appellants, v. CITY OF GEDDES, Defendant and Appellee.
    No. 20863.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 29, 1999.
    Decided May 31, 2000.

      Patrick W. Kiner, Mitchell, for plaintiffs and appellants.
    Douglas M. Deibert of Cadwell, Sanford, Deibert & Garry, Sioux Falls, for defendant and appellee.
   KONENKAMP, Justice

[¶ 1.] The plaintiffs sued the City of Geddes after water seepage damaged their home. In granting summary judgment for the City, the circuit court ruled that the plaintiffs failed to give timely notice of injury as required by law, and that the limitations period was not tolled by a continuing tort. We reverse because the City’s failure to repair its broken valve was a continuing tort suspending the limitations period until the valve was fixed. Thereafter, the notice was timely.

Background

[¶ 2.] Susan and Larry Holland moved to Geddes, South Dakota, in 1990. Two years later, they rented out their home and left to pursue a business venture in Wisconsin. In 1993 they returned. The water service to the house had been turned off after their tenants moved out. When the Hollands were about to move back into their home, they asked the City to turn the water on. While turning the main valve , at the street, a City employee broke it, so that “it kept going in a circle.” After that, the water service could not be turned off. In February 1994, Larry noticed a leak coming from the shutoff valve under the house. To repair it, the main valve at the street had to be-turned off. By March, the leak had become a “steady drip;” and was “getting worse and worse.” From March 1994 to July 1996, the Hollands “complained often” to various City officials about the City’s unrepaired valve, but to no avail. For two years, water accumulated under the corner of the house, leached into the ground, and undermined the foundation, causing the house to settle. The City finally repaired its valve in July 1996.

[¶ 3.] On September 10, 1996, the Hollands gave written notice of injury to the City, pursuant to SDCL 3-21-2. The City denied their claim, and on January 28, 1998, the Hollands commenced suit. On the City’s motion, the circuit court granted summary judgment against the Hollands, deeming their notice untimely. In this appeal, they .'assert the following ■ issues: (1) Did the court err in granting summary judgment to the City based on the failure to provide timely notice? (2) Did the court err in deciding that the failure of the City to repair the damaged valve was a single injury and not a continuing tort tolling the statute of limitations? (3) Did the court err in failing to estop the City from asserting the notice defense, based on actual notice and the nature of the injury? For ease of analysis, we examine issues one and two together, and our ruling on those issues makes a decision on issue three unnecessary. Our settled standard of review for summary judgments has been recited in numerous cases and need not be repeated here. See Kobbeman v. Oleson, 1998 SD 20, ¶ 4, 574 N.W.2d 633, 635.

Continuing Tort as Tolling the Statute of Limitations

[¶ 4.] Parties intending to sue a public entity must first give timely written notice of injury. In granting summary judgment, the circuit court ruled that the Hollands did not comply with the 180-day notice requirement in SDCL 3-21-2. This statute provides:

No action for the recovery of damages for personal injury, property damage, error or omission or death caused by a public entity or its employees may be maintained against the public entity or its employees unless written notice of the time, place and cause of the injury is given to the public entity as provided by this chapter within one hundred eighty days after the injury.

The court found that the injury occurred when the water valve was broken in 1994; afterward, the resultant water leakage damaging the Hollands’ home was only the “ill effect” of the broken valve. As the Hollands gave no written notice to the City until September 10, 1996, more than two and one half years after the valve was broken, their claim was held untimely.

[¶ 5.] A continuing tort suspends the running of the statute of limitations. Alberts v. Giebink, 299 N.W.2d 454, 456 (S.D.1980). The primary rationale for this rule is that when no discrete occurrence in continually wrongful conduct can be singled out as the principal cause of damage, the law regards the cumulative effect as actionable, and allows the limitations period to begin when the wrongful conduct ends. Curtis v. Firth, 123 Idaho 598, 850 P.2d 749, 754 (1993). A continuing tort occurs when a wrongful act persists over time. 54 C.J.S. Limitations of Actions § 177 (1987) (footnote omitted). On the other hand, a continual consequence from a solitary unlawful act is not a continuing tort. Brishky v. South Dakota, 479 N.W.2d 489, 492 (1991) (citing Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir.1981)). In Brishky, the suspension of the plaintiffs driver’s license was not a continuing wrong, but an injury from which he suffered a continuing aftereffect. Id.

[¶ 6.] A classic instance of a continuing tort occurs with prolonged or repeated flooding of land. In Holdner v. Columbia County, 51 Or.App. 605, 627 P.2d 4 (1981), a landowner sued for damage caused by water running intermittently from a public road onto the landowner’s property. The landowner saw the damage occurring in 1974 or 1975 and complained to the authorities, but they failed to resolve the problem. When the landowner eventually sued in 1977, the defendant argued that the suit was time-barred by the two-year statute of limitations. The court ruled that the “ongoing negligent conduct” was a continuing tort: “ Where the tort is continuing, the right of action is continuing.... The rule that the statute runs from the last date of the continuous negligent [act] is just and equitable.’” Id. at 8 (omissions in original) (quoting Reynolds Metals Co. v. Yturbide, 258 F.2d 321, 333 (9th Cir.1958)); but cf. Rygg v. United States, 334 F.Supp. 219, 220-21 (D.N.D.1971) (damage to farmland from flooding caused by the government was not continuing tort).

[¶ 7.] A leaking water line was the basis for suit in Handley v. Town of Shinnston, 169 W.Va. 617, 289 S.E.2d 201 (1982). After the Town installed a pipe on the plaintiffs’ property, it began leaking and the plaintiffs complained. The Town negligently failed to repair the leak, and it continued, causing property damage. The Handley court reasoned that when wrongful conduct is continual or repeated, “the cause of action accrues at, and the limitations [period] begin[s] to run from, the date of the last injury, or when the tor-tious overt acts cease.” Id. at 202 (quoting 54 C.J.S. Limitations of Actions § 169 (1948)). Similarly, in Eppling v. Seuntjens, 254 Iowa 396, 117 N.W.2d 820 (1962) a landowner sought damages and injunctive relief for repeated flood damage to his property occurring after an adjacent landowner erected a dike. Id. at 821-22. The Iowa Supreme Court characterized the wrong as a continuing violation. Id. at 825.

[¶ 8.] A continuing tort occurs when all elements of the tort continue, not simply the damage element. In Defnet v. City of Detroit, 327 Mich. 254, 41 N.W.2d 539 (1950), the Defnets sued the City to recover damages to their property resulting from the City’s failure to block off or repair a sewer drain. The sewer was constructed in 1901, and the Defnets purchased their home in 1924, a year after it was erected. The abstract did not mention the sewer, and the Defnets did not become aware of its existence until 1928. The next year, the house began to settle and cracks appeared. In 1941, the back yard caved in, but further damage continued until 1944. After they repeatedly asked the City to repair the sewer line, the Defnets finally hired a private contractor to work on the problem, a job the City later completed. Both the Defnets and the City sought reimbursement from the other for the work done. With little discussion, the court held in favor of the Defnets, stating: “Where there are continuing wrongful acts within the period limited by the statute, recovery is not barred.” Id. at 541 (citations omitted).

[¶ 9.] In contrast to these cases, the decision in Hall’s Park Motel, Inc. v. Rover Constr., Inc., 194 W.Va. 309, 460 S.E.2d 444 (1995), illustrates the distinction between a continuing tort and a continuing aftereffect. A motel owner sued a construction company for damage first observed ten years earlier, resulting from excavation on adjacent land. The owner sustained both immediate and latent injuries caused by a conspicuous occurrence. In finding no continuing tort, the court ruled that “where a plaintiff sustains a noticeable injury to property from a traumatic event, the statute of limitations begins to run and is not tolled because there may also be latent damages arising from the same traumatic event.” Id at 449. There was no continuous wrongful conduct, only a single act with damage the plaintiff did not become fully aware of until later. To constitute a continuing tort, the court observed, all elements of the tort must be continuing, including breach of duty and damages. Id. n. 3. The breach of duty, improper excavation, ceased, but the damage continued.

[¶ 10.] Here we have both continuing breach of duty and continuing damage. The water dripped steadily, gradually eroding the soil and damaging the Hollands’ house. At the same time, the City’s breach of duty in failing to repair the broken valve was ongoing. This is distinguishable from cases where the wrong flows from a single tortious event. Accordingly, the circuit court erroneously granted summary judgment. The 180-day notice period did not commence until the wrong terminated, which was when the main valve was repaired in July of 1996. Therefore, the Hollands’ notice of injury was timely.

[¶ 11.] Reversed.

[¶ 12.] MILLER, Chief Justice and SABERS and GILBERTSON, Justices, concur.

[¶ 13.] AMUNDSON, Justice, dissents.

AMUNDSON, Justice

(dissenting).

[¶ 14.] I respectfully dissent.

[¶ 15.] Larry and Susan Holland both testified under oath that the damage in this case was caused by a single event, to wit, the breaking of the water shut-off valve when their water was turned back on by the city. There is no dispute on the plaintiffs part that this single act caused the damage. It is well settled that a party can not claim a better version of the facts than is given by their own testimony. See Vaughn v. John Morrell & Co., 2000 SD 31, ¶ 36, 606 N.W.2d 919, 926; Lakes’ Byron Store, Inc. v. Auto-Owners Ins. Co., 1999 SD 25, ¶ 6 fn*, 589 N.W.2d 608, 609 (quoting Miller v. Lake Area Hosp., 1996 SD 89, ¶ 14, 551 N.W.2d 817, 820-21 (citations omitted)).

[¶ 16.] We previously held in Brishky v. State, 479 N.W.2d 489, 492 (S.D.1991),

[generally, when a tort involves continuing injury, the cause of action accrues and the statute of limitations commences when the wrong terminates, [citation omitted.] Although this Court has never, in depth, explained the nature of a continuing wrong, other jurisdictions have. A continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original action. [citation omitted.]

See also McCune v. City of Grand Rapids, 842 F.2d 903, 905 (6th Cir.1988) (quotation omitted) (noting that “ ‘[a] continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation’ ”); Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir.1981) (citing Collins v. United Air Lines, Inc., 514 F.2d 594, 596 (9th Cir.1975)) (stating that “[a] continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation”); Hyon Waste Management Servs. v. City of Chicago, 214 Ill.App.3d 757, 158 Ill.Dec. 335, 574 N.E.2d 129, 132 (1991) (citation omitted) (stating that “[a] continuing violation, however, is occasioned by continuing unlawful acts and conduct, not by continual ill effects from an initial violation”).

[¶ 17.] This case, no matter which way you cut it, deals with the continual ill effects of the single act which the plaintiffs acknowledged under oath. No question but that the plaintiffs were aware and failed to give timely notice. I would affirm the trial court.


author: LARSON, Justice.

text:
    STATE of Iowa, Appellee, v. Michelle Sandra McCool PHILLIPS, Appellant.
    No. 98-2136.
    Supreme Court of Iowa.
    March 22, 2000.
    Rehearing Denied May 15, 2000.

      Jon M. Kinnamon of Kinnamon, Kinna-mon, Russo & Meyer, Cedar Rapids, for appellant.
    Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Denver D. Dillard, County Attorney, and Harold L. Denton and Todd D. Tripp, Assistant County Attorneys, for appellee.
   LARSON, Justice.

Michelle Phillips pled guilty to three counts of second-degree robbery in violation of Iowa Code sections 711.1 and 711.3 (1995). She was sentenced to three terms of imprisonment, not to exceed ten years each, with the terms to run concurrently. She now challenges the statute under which she was sentenced on various constitutional grounds. We reject these challenges and affirm the district court.

I.Facts and Prior Proceedings.

Following Phillips’ plea of guilty, she was sentenced under Iowa Code section 902.12 (Supp.1996). Under that section, a defendant convicted of second-degree robbery is required to serve 100% of the term (subject to possible reduction for good time, up to fifteen percent). Phillips did not file a motion in arrest of judgment or a notice of appeal. Later, however, she filed an application for postconviction relief and an application for correction of her sentence. Both actions asked the court to declare section 902.12 unconstitutional.

The district court dismissed Phillips’ application for postconviction relief and denied her application for correction of sentence. These consolidated appeals followed.

II. The Statute.

The statute in question, Iowa Code section 902.12, provides:

Except as otherwise provided in section 903A.2, a person serving a sentence for conviction of the following forcible felonies shall serve one hundred percent of the maximum term of the person’s sentence and shall not be released on parole or work release:
4. Robbery in the first or second degree in violation of section 711.2 or 711.3.

Section 903A.2 (referred to in section 902.12) provides for “good time” reduction of up to fifteen percent. Applying sections 902.12 and 903A.2 together, a person who has committed one of the specified felonies will be required to serve at least eighty-five percent of the maximum term of the sentence before being eligible for parole or work release.

III. The Issues.

Phillips challenges section 902.12 on four grounds: (1) it violates constitutional principles of separation of powers, (2) it is an unconstitutional bill of attainder, (3) it constitutes cruel and unusual punishment, and (4) it violates her equal protection rights.

IV. The Separation-of-Powers Argument.

The separation-of-powers clause of the Iowa Constitution provides:

The powers of the government of Iowa shall be divided into three separate departments — the legislative, the executive, and the judicial: and no person 'charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining, to either of the others, except in cases hereinafter expressly directed or permitted.

Iowa Const, art. Ill, § 1. This principle is violated if one branch of government purports to use powers that are clearly forbidden, or attempts to use powers granted by the constitution to another branch. In re C.S., 516 N.W.2d 851, 858 (Iowa 1994).

Phillips’ separation-of-powers argument begins, with her observation that the legislature has provided indeterminate sentences for class “B,” “C,” and “D” felonies, whether forcible or nonforcible. Iowa Code § 902.9 (1995). Parole or work-release decisions are then made by..the board of parole. According to the defendant, the “100%” requirement of section 902.12 “completely usurps the executive powers by legislative fiat ... [and] disallows the exercise of discretion by the executive branch to determine ... whether and when a person serving an indeterminate sentence should be paroled.”

We have upheld the • authority of the legislature to prescribe punishment for crimes and restraints on eligibility for reduced terms of incarceration because these are policy matters peculiarly within the constitutional authority of the legislature. We have said:

Our legislature has demonstrated it knows how. to restrict the discretion of the board of parole when it wishes to do so. It may do so by prescribing a minimum sentence for a particular offense. It may also do so by- precluding parole, as with a .life sentence. It may limit eligibility for parole, as it has done for persons imprisoned for felonies like see-ond-degree murder under .the criminal code which will take effect January 1, 1978.

State v. Remmers, 259 N.W.2d 779, 784 (Iowa 1977) (citations omitted).

We reject Phillips’ argument that section 902.12 “disrupts” the balance between the legislature’s power to ■ provide indeterminate sentences and the parole board’s authority to determine parole eligibility and work release. The 100% provision in section 902.12 is clearly a part of the legislature’s constitutional authority. The parole system is solely a creature of the legislature. To argue, as Phillips’ does, that the legislature may not restrict eligibility for parole and work release, reads too much into the separation-of-powers doctrine. This doctrine “requires that a branch [of government] not impair another in the performance of its constitutional duties.” Loving v. United States, 517 U.S. 748, 757, 116 S.Ct. 1737, 1743, 135 L.Ed.2d 36, 49 (1996) (citation omitted) (emphasis added).

The Iowa Constitution, on which the defendant relies, provides a very limited role for the executive branch in criminal cases. Under article IV, section 16,

[t]he governor shall have power to grant reprieves, commutations and pardons, after conviction, for all offenses except treason and cases of impeachment ....

Even that authority is limited by this section of -the constitution, which continues, “subject to such■ regulations as may be provided by law.” (Emphasis added.) While the governor also “shall have power to remit fines and forfeitures,” under this section, such power is “under such regulations as may be prescribed by law; and [the governor] shall report to the general assembly ■... each case of reprieve, commutation or pardon granted ....” Id. The constitution, therefore, envisions some limitations and legislative oversight, even with respect to the executive branch’s constitutional authority to ameliorate criminal sanctions.

Because matters of parole and work-release eligibility are part of the legislature’s constitutional authority, the parole and work-release restrictions of section 902.12do not impinge on any constitutional authority of the executive branch. See Loving, 517 U.S. at 757, 116 S.Ct. at 1743, 135 L.Ed.2d at 49. We reject Phillips’ separation-of-powers argument.

V. The Bill-of-Attainder Argument.

Phillips argues Iowa Code section 902.12is an unconstitutional bill of attainder because in it “the legislature has assumed both judicial and executive magistracy, pronouncing and mandating a disability, and a conclusive finding of disqualification of a person without any protections to the individual as to hearing or to proof.” The Iowa Constitution prohibits bills of attainder. Iowa Const, art. I, § 21; see also U.S. Const, art. I, § 9, cl. 3. We have said

[a] bill of attainder is a legislative determination that metes out punishment to a particular individual or a designated group of persons without a judicial trial. The danger of such a law is that it deprives the accused of the protection afforded by a judicial process.

State v. Swartz, 601 N.W.2d 348, 351 (Iowa 1999) (citations omitted), cert. denied, — U.S. -, 120 S.Ct. 1189, 145 L.Ed.2d 1094 (2000).

A bill of attainder requires three elements: specificity as to the target of the legislation, imposition of punishment, and the lack of a judicial trial. Langford v. Day, 134 F.3d 1381, 1382-83 (9th Cir. 1998). In Swartz we held that, because the defendant’s punishment was not imposed without judicial process, his bill-of-attainder argument could not prevail. 601 N.W.2d at 351. An example of a statute that was held to be invalid on this ground is found in United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965). In that case a statute making it a crime for a member of the Communist Party to serve as an officer or employee of a labor union constituted an unconstitutional bill of attainder. Brown, 381 U.S. at 449-50, 85 S.Ct. at 1715-16, 14 L.Ed.2d at 492.

In a Colorado case analogous to the present case, the court held that an habitual-criminal statute did not constitute a bill of attainder because the habitual-criminal statute

only comes into play after a defendant is convicted of a specific, new offense ... following a judicial trial. Once [the defendant] was found guilty of the ... offenses, his sentence was enhanced following a determination that he had previously been convicted of three other felonies. Since [the defendant’s] sentence in this case was imposed only after a judicial trial, ... the [habitual-criminal statute] is not a bill of attainder.

Velarde v. Zavaras, 960 P.2d 1162, 1164 (Colo.1998) (citations omitted).

Iowa Code section 902.12, which does not impose punishment based on a defendant’s status or without trial, is not a bill of attainder. See Langford, 134 F.3d at 1382-83.

VI. The Eighth Amendment Issue.

The United States Constitution prohibits “cruel and unusual” punishment, and this prohibition is applicable to the states through the Fourteenth Amendment. See U.S. Const, amend. VIII; State v. Lara, 580 N.W.2d 783, 784 (Iowa), cert. denied, 525 U.S. 1007, 119 S.Ct. 523, 142 L.Ed.2d 434 (1998). The Iowa Constitution contains a similar provision. Iowa Const. art. I, § 17.

Phillips argues that section 902.12violates both constitutions. Punishment may be cruel and unusual either because it inflicts a form of torture or is otherwise barbaric or because it is “so excessively severe that it is disproportionate to the offense charged.” Lara, 580 N.W.2d at 785 (citation omitted). Phillips contends section 902.12 violates the disproportionate punishment prong of the test.

State v. Hoskins, 586 N.W.2d 707 (Iowa 1998), controls on this issue. In Hoskins we held section 902.12 did not impose eru-el-and-unusual punishment because

we do not believe the ten-year sentence imposed upon a conviction of second-degree robbery, of which [the appellant] is required to serve 100%, leads to an ' inference of gross disproportionality. This is not the rare case in which a proportionality analysis is necessary. We therefore conclude section 902.12⅛ requirement that a person convicted of second-degree robbery serve 100% of the maximum sentence does not constitute cruel and unusual punishment.

Id. at 709 (citation omitted). We reject the defendant’s cruel-and-unusual-punishment argument.

VII. The Equal-Protection Argument.

Phillips also contends her sentence is a violation of her equal-protection rights under the United States and Iowa Constitutions. Our first inquiry is what type of analysis is to be applied: strict scrutiny or a rational-basis test. We held in State v. Ceaser, 585 N.W.2d 192 (Iowa 1998), that an equal-protection attack on section 902.12 in a second-degree robbery case does not create a suspect classification, so we applied only a rational-basis test. Id. at 196. Phillips, in an interesting attempt to mix her separation of powers, bill of attainder and Eighth Amendment arguments with her equal-protection argument, attempts to elevate our equal-protection analysis to a stride-scrutiny level. We decline to do so and apply the holding of Ceaser: because there is a rational distinction between second-degree robbery and other forcible felonies not included in the 100% provision of section 902.12, the statute' passes á rational-basis test. Ceaser, 585 N.W.2d at 197-99. We reject the defendant’s equal-protection argument.

■ Because we have rejected all of Phillips’ arguments on their merits, we need not address the claim of ineffective assistance of counsel she has raised to excuse her trial counsel’s failure to preserve error in the district court.

AFFIRMED.

All justices concur except CARTER, J., who takes no part.


author: LAVORATO, Justice.

text:
    Elizabeth BIRKHOFER, By and Through Her Guardian and Conservator, Michael V. JOHANNSEN, Director of Muscatine Community Services, Appellee, v. James Birkhofer, Joni Birkhofer, and First National Bank of Muscatine, Defendants, and Marilyn BRAMMEIER, Appellant.
    No. 97-2053.
    Supreme Court of Iowa.
    April 26, 2000.
    Rehearing Denied May 31, 2000.

      Dennis A. Bjorklund, Coralville, for appellant.
    John E. Wunder, Muscatine, for appel-lee.

       NEUMAN, J., taking no part.

   LAVORATO, Justice.

Elizabeth Birkhofer conveyed a farm to her son, James Birkhofer. Elizabeth’s guardian and conservator brought an action to void the* conveyance. The suit named James, his wife, Joni, and a bank that held ■ a mortgage against the farm. Elizabeth’s daughter, Marilyn Brammeier, objected to a settlement agreement the parties had reached. The district court ruled Marilyn had no standing to object to the agreement. We agree and affirm.

On May 5, 1993, Elizabeth executed a will, leaving her entire estate to her son, James. She left nothing to her other two children, Judy Nesbit and Marilyn. On November 30, 1993, Elizabeth conveyed to James a 250-acre farm without consideration.

In July 1996 the University of Iowa Hospitals and Climes diagnosed Elizabeth with Alzheimer’s disease. On July 23 Marilyn filed a petition for involuntary appointment of a guardian and conservator for Elizabeth' and asked that she be appointed as Elizabeth’s guardian and conservator. James also filed a petition to be appointed guardian and conservator.

On October 18 the guardian ad litem appointed for Elizabeth filed a report in which the guardian ad litem rejected both Marilyn .and James as guardian and conservator. The guardian ad litem rejected both children because they had been found responsible for the adult abuse of their mother for failing to provide adequate care for her. Additionally, the guardian ad li-tem had concerns about the management of Elizabeth’s financial affairs by family members. The guardian ad litem recommended Michael V. Johannsen of Musca-tine County Community Services be appointed as guardian and conservator. The court appointed Johannsen as guardian and conservator on October 22.

On February 27, 1997; Johannsen filed, a lawsuit against James and Joni.to void the conveyance of the 250-acre farm to James. Johannsen filed the lawsuit as an ordinary action apart from the probate proceeding. The suit also named the First National Bank of Muscatine because it held a mortgage against the farm as security for a loan the bank had made to James.

On September 3 Johannsen filed an application for the approval of a proposed settlement between Elizabeth and the defendants. The proposed settlement provided that Elizabeth would dismiss her lawsuit with prejudice in exchange for James and his wife, Joni, agreeing “to accept financial responsibility for Elizabeth’s nursing home care, if necessary, until such time as she qualifies for Medicare/Medicaid.” James and Joni also agreed to pay Elizabeth’s attorney’s fees. The bank agreed to loan money to James and Joni to pay for Elizabeth’s nursing care so long as such loans were secured by a mortgage against the farm. The proposed agreement explained why the agreement was in Elizabeth’s best interest.

On September 12 Marilyn filed a resistance to the application for approval of the settlement agreement. She did so even though she was not a party to the action and without filing a petition to intervene. See Iowa Rs. Civ. P. 2 (providing that, subject to certain exceptions not relevant here, every action must be prosecuted in the name of the real party in interest); 75 (providing that party who has interest in subject of litigation or success of either party to lawsuit may intervene at any time before trial begins); 76 (requiring interve-nor to file a petition against whom he asserts a right).

Later, the district court ordered Marilyn and the parties to the suit to file briefs regarding whether Marilyn had standing to contest the proposed settlement agreement.

Marilyn filed a brief in which she alleged she had standing to challenge the settlement agreement because she was affected by it in three ways. First, under Iowa Code chapter 633, she had a right to inherit through her mother. Second, under the “Iowa Family Responsibility Act,” she is responsible for any medical debts associated with her mother. She claimed that the settlement agreement fixing this responsibility in James and Joni did not preclude her from being responsible if they defaulted. Last, under Iowa Code chapter 252 and Title XIX, she may be responsible for nursing care expenses and other expenses relating to her mother and her mother’s guardianship and conservatorship.

In their brief, James and Joni contended that Marilyn had no standing to contest the proposed settlement agreement. In support of their contention, James and Joni argued that whatever statutory right Marilyn might have had was abrogated by Elizabeth’s will disinheriting her. Additionally, they argued that there was no Iowa Family Responsibility Act that imposed any liability upon Marilyn for Elizabeth’s medical expenses. Finally, they argued that Marilyn would not be statutorily responsible for Elizabeth’s medical expenses under any other statute, including Iowa Code chapter 252 and Title XIX. They concluded that Marilyn’s interest in this matter was too contingent to confer standing upon her.

Elizabeth filed a brief, also contending that Marilyn had no standing to contest the proposed settlement agreement. Elizabeth essentially adopted all of the reasons that James and Joni offered in refuting Marilyn’s claim that she had standing. The district court agreed with James and Joni and Elizabeth and found that Marilyn had no standing to contest the settlement agreement. Additionally, the court approved the agreement.

On appeal, Marilyn raises a number of issues, only one of which she has preserved for our review: whether she has standing to contest the settlement agreement.

I. Neither Elizabeth nor James and Joni opposed Marilyn’s right to contest the settlement on the grounds that she (1) was not a party to the lawsuit or (2) had failed to file a petition to intervene. We could probably uphold the district court’s ruling on either ground. However, because there was no objection to the manner in which the district court proceeded, we consider the standing issue.

II. “Standing to sue” has been defined to mean that a party must have “sufficient stake in an otherwise justiciable controversy to obtain, judicial resolution of that controversy.” Black’s- Law Dictionary 1405 (6th ed.1990). Our test for standing is that the complaining party must (1) have a specific, personal, and legal interest in the litigation and (2) be injuriously affected. In re Marriage of Mitchell, 531 N.W.2d 132, 134 (Iowa 1995); City of Dubuque v. Iowa Trust, 519 N.W.2d 786, 789 (Iowa 1994). Our review is for correction of errors at law. See City of Dubuque, 519 N.W.2d at 789.

We agree with the district court that Marilyn has no legal interest in the litigation that will be injuriously affected. Contrary to Marilyn’s contention, there is no law that makes her legally liable for her mother’s medical expenses. See In re J.R., 315 N.W.2d 750, 752 (Iowa 1982) (“ ‘One interested in an action is one who is interested in the outcome or result thereof because he has a legal right which will be directly affected thereby or a legal liability which will be directly enlarged or diminished by the judgment or decree therein.’ ”) (quoting 59 Am.Jur.2d Parties § 138, at 567 (1971)).

Additionally, Marilyn has only a statutory intestate interest in her mother’s estate that can be eliminated by will or transfer. As the district court concluded, the mere intestate claim of a daughter in the potential estate of her living mother is too contingent to constitute a legal interest sufficient to establish standing. See In re Willcockson, 368 N.W.2d 198, 201, 203 (Iowa App.1985) (holding that beneficiary of trust did not show sufficient interest to have standing to challenge termination of marital trust because beneficiary’s mother could exercise her general power of appointment either in favor of or against the beneficiary’s interest); see also In re Estate of DeVoss, 474 N.W.2d 539, 542 (Iowa 1991) (upholding decision denying disinherited heirs’ right to intervene in declaratory judgment action to determine validity of deeds signed by decedent because their interests were contingent); In re Will of Fallon, 107 Iowa 120, 122, 77 N.W. 575 575-76 (1898) (rejecting as too contingent claim of mother of, a living heir that mother had standing to contest will based on the fact that she would inherit from her child if the child died).

For all of these reasons,' we conclude Marilyn has failed to establish standing to contest the proposed settlement. The district court did not err in concluding otherwise.

AFFIRMED.


author: CARTER, Justice.

text:
    Byron P. CLEMENTS and Mark W. Clements, Appellants, v. GAMBLERS SUPPLY MANAGEMENT COMPANY and Sodak Gaming Iowa, Inc. a/k/a Sodak Gaming, Inc., Appellees.
    No. 98-1817.
    Supreme Court of Iowa.
    April 26, 2000.
    Rehearing Denied May 15, 2000.

      Timothy S. Jacobson of Parke O’Flaherty, Ltd., La Crosse, Wisconsin, and Deborah Hughes, Cedar Rapids, for appellants.
    E. David Wright and Christopher R. Paar of Norman, Gilloon, Wright & Hamel, P.C., Dubuque, for appellees.
   CARTER, Justice.

Byron P. Clements and Mark W. Clements, licensed ship captains employed by the management company for a riverboat casino in Marquette, Iowa, appeal from adverse judgment in an action seeking damages for wrongful discharge. The district court dismissed their claims, premised on state law, because it concluded that those state law claims were preempted by federal maritime law. After reviewing the record and considering the arguments presented, we disagree with the district court’s conclusion. That judgment is reversed.

Byron and Mark Clements were employed by defendant Gamblers Supply Management Company (Gamblers Supply) commencing in 1994. Byron was the director of marine operations, and Mark was the manager of marine operations. Both Byron and Mark were licensed captains. Gamblers Supply operated a casino on the Miss Marquette Riverboat. At the túne of the Clements’ employment, the riverboat was required to leave the dock a certain number of times per year.

When the summary judgment motion papers are viewed most favorably towards the plaintiffs, it appears that Byron and Mark discovered that their employer was violating various federal laws and regulations regarding inspection and repair of the riverboat. They confronted the management about these violations and indicated that they were concerned about the safety of the passengers and did not want to jeopardize their captains’ licenses. In September 1995 Byron informed the riverboat management that he would not cooperate in structural modifications that would affect the boat’s stability in the absence of express Coast Guard approval. The management expressed disapproval of his decision and terminated his employment on October 2, 1995. Mark’s employment was terminated on June 28, 1996.

Byron and Mark filed petitions against Gamblers Supply and its parent company, defendant Sodak Gaming, alleging state law claims for wrongful termination. They contended they were terminated because they refused to violate federal safety regulations. The district court granted defendants’ motion for summary judgment on the basis that the plaintiffs were “seamen” and that federal maritime law preempted their state law claims. On appeal the Clements contend that the district court incorrectly decided the preemption issue and that Congress did not intend to preempt all state law claims by maritime employees.

In granting summary judgment, the district court relied on three decisions of federal courts. These were Meaige v. Hartley Marine Corp., 925 F.2d 700 (4th Cir.1991); Garrie v. James L. Gray, Inc., 912 F.2d 808 (5th Cir.1990); and Feemster v. BJ-Titan Services Co., 873 F.2d 91 (5th Cir.1989). The Clements urge that two of the three cases relied on by the district court, Game and Feemster involve wrongful discharge claims under federal law. Those cases do not purport to foreclose related state law claims on a preemption theory. The Clements further argue that, although the Meaige decision does recognize the preemption of state law wrongful discharge claims based on a policy of uniformity in maritime litigation, this legal conclusion does not represent and is inconsistent with the current federal law of preemption.

We agree that the Game and Feemster cases pertain to issues involving a seaman’s right to recover under federal law and do not speak to the preemption issue. Meaige, on the other hand, does speak to the issue of preemption of state law claims. After upholding the dismissal of the plaintiffs wrongful discharge claim under federal maritime law, the court in Meaige addressed his companion state law claim as follows:

We also affirm the district court’s • judgment dismissing appellant’s action for failure to state a claim under West Virginia common law.... Appellant and the district court failed to recognize the exclusive nature of federal admiralty law....
... In this case, there is a body of federal maritime jurisprudence relating to wrongful discharge, and turning to West Virginia for the rule of decision would clearly undermine uniformity in federal admiralty law.

Meaige, 925 F.2d at 702-03.

The Clements urge that the Meaige court’s reliance on the need for a uniform maritime law as the primary basis for its conclusions extends the need for uniformity too far. They rely on the views on uniformity expressed in Ellenwood v. Exxon Shipping Co., 984 F.2d 1270 (1st Cir.1993). In that case, the court, while considering whether a discharged seaman could premise a claim under a state employment discrimination statute, rejected the employer’s argument that application of state law would defeat uniformity in federal maritime litigation. The court dealt with that issue as follows:

Once again, however, Exxon heralds the need for uniformity without an appreciation for the boundaries of its relevance. All state laws,' if given effect in admiralty cases, will interfere to a degree with the uniformity of admiralty law. But when Congress established a separate admiralty jurisdiction and empowered the judiciary to develop substantive maritime principles for use nationwide, it simultaneously assured that state law would continue to play some role in maritime affairs through the “saving to suitors” clause. This provision allows plaintiffs to pursue, in addition to maritime relief, ordinary civil remedies provided by state law, so long as they do not conflict with the national substantive maritime law.

Ellenwood, 984 F.2d at 1279 (citations and footnotes omitted).

The “saving to suitors” clause referred to in the Ellenwood opinion had its genesis in the Judicial Act of 1789 and is currently codified as follows in 28 U.S.C. § 1333(1):

The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.

In American Dredging Co. v. Miller, 510 U.S. 443, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994), the Supreme Court recognized that the consequence of exclusive federal jurisdiction in maritime matters is that states may not provide a remedy in rem for any cause of action within admiralty jurisdiction. American Dredging Co., 510 U.S. at 446-47, 114 S.Ct. at 985, 127 L.Ed.2d at 293. In exercising in personam jurisdiction, however, the Court recognized that, under the “saving to suitors” clause, a state court may adopt such remedies and attach to them such incidents as it sees fit so long as it does not attempt to make changes in , the substantive maritime law. Id. at 447, 114 S.Ct. at 985, 127 L.Ed.2d at 293. In speaking of the need for uniformity, the Court indicated that the requirement of uniformity is not absolute. The Court indicated that, while state law must yield to the needs of a uniform maritime law, this limitation still leaves the states a wide scope. Id. at 451-52, 114 S.Ct. at 987, 127 L.Ed.2d at 296. The American Dredging Co. decision expands the areas in which state laws may be imposed beyond the rigid dictum of this court in Pfeiffer v. Weiland, 226 N.W.2d 218, 220 (Iowa 1975).

The Meaige opinion on which the district court relied suggests that the “body of federal maritime jurisprudence relating to wrongful discharge” is an impenetrable body of law that fails to recognize a remedy for termination of employment as retaliation for an employee’s assertion of concern for the safety of a ship and its passengers. We do not read the federal cases in this light. Federal courts have recognized a maritime common-law cause of action for wrongful discharge. Smith v. Atlas Off-Shore Boat Serv., Inc., 653 F.2d 1057, 1063 (5th Cir.1981); Seymore v. Lake Tahoe Cruises, Inc., 888 F.Supp. 1029, 1035 (E.D.Cal.1995) (upholding state law claim for wrongful discharge based on refusal to place unseaworthy vessel in service). In addition, Congress has recognized that a ship owner may not discharge a master or other supervisory employee for reporting violations of Coast Guard regulations. 46 U.S.C. § 2114(a).

The rule barring state claims that directly conflict with basic maritime principles may at times present a fíne line in its application. See American Dredging Co., 510 U.S. at 452-53, 114 S.Ct. at 987-88, 127 L.Ed.2d at 296-97 (“It would be idle to pretend that the line separating permissible from impermissible state regulation is readily discernible.... ”). We conclude that no fundamental tenet of substantive maritime law is frustrated by the state law retaliatory discharge claims that the Clements are advancing in the present case.

The defendants have conceded for purposes of this appeal that Iowa law recognizes a cause of action for termination of an employee in a manner that offends against public policy. Brief for Appellees at 40. In Smuck v. National Management Corp., 540 N.W.2d 669, 672 (Iowa App.1995), the court of appeals held that termination based on a refusal to violate federal law would be contrary to public policy. Because the district court’s ruling was based on a theory that federal law governed the rights of the parties to the exclusion of state law, the merits of the Clements’ state law claims were not adjudicated in that court and are not now before this court. Because we conclude that the state law claim is not precluded by federal law, it must now be considered on its merits. The judgment of the district court is therefore reversed and the case remanded to that court for that purpose.

REVERSED AND REMANDED.

All justices concur except LAVORATO, J., who takes no part.