(specially concurring).
In specially concurring, it behooves me to express that the prosecutorial misconduct herein was beneath the dignity and office of the prosecutor. Further, that he exceeded the bounds of legitimate advocacy as expressed in the majority opinion. As to why the Circuit Judge, who was to preside in the trial, was named as a witness, I cannot comprehend. It represents a zenith in poor judgment and I certainly agree with the majority that the Circuit Judge's name was properly stricken. Further, in my opinion, the prosecutor deliberately violated a court order limiting surrebuttal testimony. See, State v. Gage, 302 N.W.2d 793, 797 (S.D.1981). There, the State’s Attorney asked the age of a certain witness, in direct violation of the trial court’s pre-trial order. We held that the prosecutor’s direct violation of a court order was contemptible and inexcusable. We expressed:
It is axiomatic to a fair trial that the state obey the court’s orders concerning the conduct of the trial ... It is well to *448keep in mind that a prosecutor’s duty is not to simply convict but to do justice.
Said quotation was approved in State v. Kleinsasser, 436 N.W.2d 279, 282 (S.D.1989).
This is not a case where the state bolstered the credibility of the complaining witness by employing an expert testimony. Cf. State v. Svihl, 490 N.W.2d 269 (S.D.1992) (Henderson, Justice, dissenting), and the litany of cases cited in said dissent forbidding evidence which this Court now approves. Rather, this case pivotally hinged on the veracity of the victim’s testimony. A jury believed her. Her testimony was explicit, shocking, and overwhelmingly portrayed that Mitchell had committed atrocities upon her at divers times and places.
In viewing this type of prosecutorial misconduct, and overwhelmed by the horrid and perverse acts upon an innocent girl, how does one balance the weights of justice? In State v. Tapio, 432 N.W.2d 268, 271 (S.D.1988), we expounded on prosecuto-rial misconduct. Therein, we expressed that misconduct must be of such sufficient significance to result in the denial of a fair trial and that it had to produce an effect on the final result. I note, also, in the State’s brief, in respect to the surrebuttal issue, that the State mentions “... the question asked by the state may have exceeded the bounds of surrebuttal.” Clearly it did. But the question remains: With respect to the various acts (via statements) of the prosecutor, was there an effect on the final result? To that, I must answer, I seriously doubt it.
[N]o hard and fast rules exist which state with certainty when prosecutorial misconduct reaches a level of prejudicial error which demands reversal of the conviction and a new trial; each case must be decided on its own facts.
State v. Webb, 251 N.W.2d 687 (S.D.1977). Subsequently, this Court held that this Court had to be “able to declare a belief beyond a reasonable doubt that the error was harmless and did not contribute to the verdict obtained.” State v. Heumiller, 317 N.W.2d 126 (S.D.1982) (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966)). Absent the prosecutorial misconduct, and it exists in several places in this record, it is clear to this writer, because of representations of the victim (not some hearsay evidence by a social worker or expert), that the jury would have returned a verdict of guilty. However, that does not excuse the professional conduct of this prosecutor. Characterized by “winning” at all costs, his conduct became perilously close to a reversal on the professional ethics question. One of the comments made by Mr. Campbell was that Mitchell would, impliedly, take money from old people or the slow people or the greedy people. Supposedly, this is permissible because he first describes “con-men” and that Mitchell is a “con-man.” To leap from the first statement — to the second statement is an argument not based upon any fact in the evidence. It was improper argument. And with reference to the “con-men” conclusion, I strongly disagree with the majority opinion’s description that “it was fair argument.” Money, finances, schemes to defraud, cheating to obtain property were not subjects presented to this jury. This was a rape trial — not an intent to defraud trial.
II.
Mitchell chose not to testify during the trial. However, he called eight defense witnesses. State made the decision to recall the victim to the stand. Her testimony was riveted on one purpose: To rebut the defense of Mitchell. Mitchell then chose to call himself to the stand as a surrebuttal witness. The prosecutor asked for a ruling to restrict Mitchell’s testimony to the rebuttal testimony. When Mitchell, whose testimony was restricted and limited, was on the stand, the prosecutor asked Mitchell if he ever had “sclerosis of the liver?” This was absolutely beyond the scope of the examination of Mitchell and the prosecutor knew it. State had an abundance of evidence to convict Mitchell. This kind of question was calculated to influence the jury on a topic which was totally immaterial. Before us, during argument in the Supreme Court, the prosecutor admitted *449that it was. How did the trial court limit the surrebuttal testimony of the defendant? This is a bone of legal contention in Mitchell’s brief. The State recalled, as a rebuttal witness, the alleged rape victim. In response, the defense called the defendant, Dennis Mitchell, for surrebuttal. This was the first time the defendant testified during the trial. Upon request by the State, the trial court limited the scope of Mitchell’s testimony. Mitchell would be allowed to testify on Count I because Count I was specifically addressed during rebuttal. Mitchell would not be allowed to testify on specific instances of Counts II-YI. However, he was permitted to be “general” on those counts; i.e., he was permitted to simply deny Counts II-YI. I note in the record that when the trial judge stated that general testimony on the Counts II-VI would be permissible, defense counsel replied, “I have no interests in going into the specifics of any count.” (Emphasis supplied mine).
Let us review Mitchell’s testimony. His testimony denied pressuring victim to have sex in 1983 and 1984, denied pressuring her to do anything, totally denied sexual relations with victim, stated he was not guilty on each count, and stated that he felt angry and hurt. It appears to this Justice that the trial judge bent over backwards, legally speaking, to permit Mitchell to actually go beyond the rebuttal testimony of the victim. I perceive the trial court was trying to be fair and that’s the heart of justice, to be fair.
As I earlier stated, the State asked if Mitchell ever had sclerosis of the liver. Mitchell answered “no” and made a reference to the 1-29 Lounge. Defense then argued that the State had left the scope of rebuttal and opened the door to testimony on the other counts. After the State responded, the court struck the question and answer and instructed the jury to disregard.
Yet, Mitchell characterized the limitations established by Judge Gilbertson as follows:
When I took the stand I didn’t realize
that I was gonna be told what I could say. That I was gonna be limited to saying I didn’t do it. That’s it. There is no defense for any of it. They gave dates, we proved ’em wrong. They change their testimony. And the rules were set by the Court said this part will be eliminated. This part will be eliminated. And it wasn’t. They could step right outside, go on. Made no difference, I mean.
For posterity, I wish to express that it is a fundamental right afforded to an accused to testify. Rock v. Arkansas, 483 U.S. 44, 51-52, 107 S.Ct. 2704, 97 L.Ed.2d 37, 46 (1987). Our State Constitution, Article VI, Section 7, grants an accused a constitutional right to “defend in person.” Here, Mitchell is advocating that a procedural rule was vaulted over a constitutional right. At first blush, that contention seemed true. However, the cold record informed me otherwise.
Therefore, I specially join the majority opinion believing that Mitchell’s constitutional right to defend in person was not violated. Further, I chose to write a special concurrence because of the prosecutorial misconduct in this case. Perfection is rarely attained in dispensing justice by our courts. However, we strive for it. To seek perfection is the inherent nature of the process of judicial decision. Here, we did not have a perfect trial but we did have a fair trial. In McDowell, a celebrated murder trial in eastern South Dakota, cited in the majority opinion, I wrote: “It is not required that defendant receive a perfect trial, only that he receive a fair trial.” McDowell, 391 N.W.2d at 666.