(dissenting).
We are not confronted with reconstructing a day’s testimony such as in Dupris, cited in the majority opinion.
We are reviewing the reconstruction of closing argument.1 And more specifically, a highly damaging and improper statement of the prosecutor in closing argument.
The statement is as follows: “Even defendant’s attorney doesn’t believe the defendant.” An affidavit, to reconstruct the record, to establish that this statement was made was prepared by defendant’s trial counsel. Under Dupris, this was an alternative. Said affidavit was not refuted. Under Sioux Falls v. Johnson, cited in the majority opinion, this statement must therefore be accepted as a verity. Buttressing the reconstruction of the record is a Motion Hearing transcript dated December 14, 1987, in which the trial court verifies that this statement in closing- argument was made. At page 3 thereof, we read:
THE COURT: In reference to the State’s Attorney’s statement to the jury in substance that defense attorney didn’t believe the defendant, in addition to sustaining the objection of defense attorney to that comment, the Court instructed the jury that not only was the opinion of counsel improper and not relevant but that to make such an argument was improper. And that the State’s Attorney’s argument was improper and should be disregarded.
Defense counsel (not same counsel on appeal)2 did object to this “foul blow” statement. Objection was sustained. Jury was cautioned. No motion for mistrial was then made by defense counsel. This was a mistake under our previous rulings. Post-trial motions for (a) mistrial- and (b) new trial were thereafter filed. Both motions were subsequently denied.
*299State v. Garton, 390 N.W.2d 61, 63 (S.D. 1986), instructs us that “[t]he closing arguments herein, however, were not transcribed and an incomplete record exists. The rule concerning incomplete records is that we presume the trial court acted properly.” Id. (citing State v. Hall, 272 N.W. 2d 308, 311 (S.D.1978)). Not desiring to cast aside well-settled law in this state, I hazard to express that in the case under consideration we have a distinguishable situation. A record of the pertinent issue (the prosecutor’s statement) stands unre-futed. Thus, Garton and progeny are not squarely on point. State v. Olson, 408 N.W.2d 748 (S.D.1987), would not be eroded by my viewpoint. Again, in Olson, we held: “Also, since no record was made of the prosecutor’s statement, we have nothing to review.” Id. at 752 (citing State v. Koenig, 333 N.W.2d 800 (S.D.1983), cert. denied, 464 U.S. 940, 104 S.Ct. 354, 78 L.Ed.2d 318 (1983); State v. O’Connor, 265 N.W.2d 709, 711 (S.D.1978)). * We do have something to review in this case. We absolutely know that the prosecutor made this outlandish statement.
Conceding defense counsel acted untimely in making a motion for mistrial, still it becomes obvious that he valiantly fought for his client. However, to prevent further comments such as this by prosecutors in South Dakota, I would reverse on the basis of SDCL 23A-44-15. “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of a court.” This case is a classic example of why the State Legislature enacted SDCL 23A-44-15. There is an error here. It is substantial. It does affect a substantial right. State v. Brammer, 304 N.W.2d 111 (S.D.1981). It is understood that this Court must apply the plain error rule in only exceptional cases. Further, we must apply it cautiously. State v. Dornbusch, 384 N.W.2d 682, 686 (S.D.1986). We can apply this rule cautiously here, limiting our holding to not exonerate a prosecutor making such an outrageous attack on his fellow attorney and the attorney-client relationship. Nor, as I have expressed above, need we erode or overrule previous decisions. We have before us a remark which goes to the heart of a person’s right to assistance of counsel. If that right, guaranteed by the United States Constitution, within the Sixth and Fourteenth Amendments, falls — then our entire system of a fair trial by an impartial jury falls — and with it — the system by which all criminal defendants are tried. We cannot let this happen. We cannot tolerate prosecutors making deliberate comments like this simply “to win.”
In my opinion, no cautionary instruction could have obliterated the prejudicial impact. Jurors could arrive at but one conclusion (in a case primarily involving credibility): Even his own lawyer does not believe him! As we stated in State v. Webb, 251 N.W.2d 687, 689 (S.D.1977): “[I]t is pure fiction to suppose that the damage done is eradicable by objection and/or cautionary instructions.”
In the end, we ask ourselves: Is it “reasonably clear that the substantial rights of the defendant have been so violated that he did not receive a fair trial?” Id. at 689 (quoting State v. Reddington, 80 S.D. 390, 397, 125 N.W.2d 58, 62 (1963).
Appellant was not afforded a fair trial. This iniquitous statement of the prosecutor, attacking the sincerity of his legal adversary, was inflammatory; the prosecutor used improper methods. See State v. Blaine, 427 N.W.2d 113, 116 (S.D.1988).
I simply cannot support a decision which would permit a prosecutor to use a defendant’s own attorney as a weapon against him. When will any defendant or defense counsel be safe from such a vicious, outlandish attack as this — in the future?
Critically, I call to the attention of the Bench and the Bar these ethical considerations: Canon 7 of the Code of Professional Responsibility states: “A Lawyer Should Represent a Client Zealously Within the Bounds of the Law.” Ethical Consideration 7-13 under Canon 7 states:
“The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict.” SDCL ch. 16-18, Appx.
*300Disciplinary Rules, DR 7-106 Trial Conduct, Subsection C, states:
In appearing in his professional capacity before a tribunal, a lawyer shall not:
(1) State or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence ...
* * * * * *
(7) Intentionally or habitually violate any established rule of procedure or of evidence.
SDCL ch. 16-18, Appx.3
We have, before us, a prosecutor’s cold, deliberate, calculated statement to persuade by illegitimate means. Was his statement a comment on the evidence? No. Was it a slip of the tongue in the heat of argument? No. Was there a reasonable basis to believe that it was relevant to finding the facts? No. Was it supported, by any reasonable reference, to evidence admitted during the trial? No.
We recently celebrated the 200th anniversary of our country. Aloft in memory was our National Constitution. Streamers. Tears. Pride. Joy. Love.
Now, in 1989, we celebrate the 100th anniversary of South Dakota’s statehood. We extol our state constitutional rights. Again, we note how precious our constitutional rights are. More streamers. Parades. Picnics. Pride. Joy. Historical observances. Flags fluttering in the breeze.
This rape conviction resulted from a factual scenario wherein the victim and appellant — total strangers — met and danced at a night club until 2 a.m.; and, after dancing the last dance together, victim acceded to give him a ride to a party and later agreed to give him a ride back to his house. These facts, indeed no facts, can justify perpetration of a first-degree rape but give rise to a great question of credibility between the victim, who claimed she was raped, and the appellant, who claimed the act of intercourse was consensual. In this evidentiary baek-drop, the prosecutor, knowing that he was not “on the record,” cried out “even defendant’s attorney doesn’t believe the defendant.”
But, meanwhile, back at the ranch, as my constituents would ask: What happened to our constitutional rights? Obviously, they mean nothing unless we put them into practice. It should be mentioned that this appellant was sentenced to fifteen years in the state penitentiary.
Justice. It is like the rainbow — evanescent and elusive. We admire its beauty. It is non-corporeal. We cannot touch it. We strive to grasp it. But, so often, as the rainbow, it recedes beyond our reach, as we walk on. This case should be reversed for a new trial — one in which the prosecutor cannot elevate zeal over fairness — thus ensuring the right of a constitutionally fair trial. Accordingly, walking on, pursuing the rainbow, I respectfully dissent.
. Both prosecutor and defense counsel agreed that closing argument need not be transcribed by the court report.
. The Minnehaha County Public Defender’s Office was appointed to perfect this appeal.
. Under the current South Dakota Rules of Professional Conduct, effective July 1, 1988, the special responsibility of prosecutors as ministers of justice is set out in the comment to Rule 3.8, SDCL ch. 16-18, Appx. Former Disciplinary Rule 7-106(C) is replicated in Rule 3.4(e).