(concurring; specially concurring).
ISSUE ONE
I concur. In addition to the reasons and cases cited in the majority, clearly the prosecutor had prosecutorial license to not charge (a) shoplifting or (b) retail theft. SDCL 7-16-9. Clearly, the evidence did not beget such a charge. It is the prosecutor’s function and responsibility to lodge charges, not defense counsel. Trial court, also, could not have instructed under (a) or (b) above because it does not have to instruct on matters not supported by the evidence. State v. Woods, 374 N.W.2d 92, 96 (S.D.1985); State v. Fender, 358 N.W.2d 248, 252 (S.D.1984). There was no evidence to support shoplifting or retail theft. Furthermore, Instructions 8, 9 and 10 submitted to the jury set forth the essential elements of the offense and were not objected to by appellant.
ISSUE TWO
I specially concur.
• Appellant chose to furnish this Court with a truncated record, including a partial transcript of the voir dire proceedings. If any presumption is to be drawn from an incomplete record, it is to be presumed that the trial court acted correctly. State v. Garton, 390 N.W.2d 61, 63 (S.D.1986).
• South Dakota’s established scope of review on this juror-bias issue is found at State v. Pickering, 245 N.W.2d 634 (S.D.1976). Pickering held that this Court will not reverse the trial court’s decision, unless it clearly appears from the evidence that a contrary decision should have been made. Said case specifically pertains to bias of jurors, as does State v. Volk, 331 N.W.2d 67 (S.D.1983). These holdings are more circumscribed than the 1985 Louisiana Court of Appeals case, cited in the majority opinion. The Young case in Louisiana held, inter alia, there was no error in denying a mistrial based on statements made by two jurors during voir dire when they were of the belief that defendant was guilty (in front of the entire panel), based on information received via media reports. Young essentially holds that by excusing the prospective juror who makes a biased comment, that this may erase any prejudice in the entire panel. We must keep in mind that South Dakota Constitution Art. VI § 7 mandates a trial by an impartial jury. An accused’s right to an impartial jury requires that the minds of jurors be without bias or prejudice. State v. Belt, 79 S.D. 324, 111 N.W.2d 588 (1961). The comments made by Mrs. Burmeister were powerful statements to hurt Garnett’s right to a fair trial. They referred to a pawn shop and a “Jason.” This case involves a pawn shop and a “Jason.” In camera, Mrs. Burmeister believed it was the same “Jason” and testified that she recognized his face. I would adopt the holding in State v. Massey, 119 R.I. 666, 382 A.2d 801, 804 (1978) (Supreme Court of Rhode Island) that *700once a panel is tainted with such a remark as Mrs. Burmeister, that the burden is upon the state to establish that the remark did not deprive defendant from a fair trial. Moreover, that the state must establish the error committed was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Garnett is entitled to a trial by an “impartial jury.” United States Constitution, Amendment VI. Thus, the federal constitution and a United States Supreme Court decision are vital to our deliberations here. This Court should follow the “harmless beyond a reasonable doubt” rule. Due to the truncated record, Garnett has not elevated his proof to a favorable position to establish a stronger position. Here, the record does not disclose if the other jurors were questioned as to the impact of Burmeister’s remark. In my opinion, to determine the prejudicial impact, the other jurors should have been questioned to establish prejudice. Then, the true impact of Mrs. Burmeister’s remarks' would be known. At the supplemental transcript, pages 3 and 4, the trial court kindly and helpfully suggested to defense counsel that counsel make further inquiry, more in depth inquiry, if they were able to base their decision solely on the evidence, as they would hear it, and not the statement of Mrs. Burmeister about some charge she dropped. Unfortunately, the record does not disclose what impact there was because the record does not reflect any questioning of the other members of the jury panel. Under the state of this record, I must follow/vote pursuant to Garton, cited above, i.e., the trial court acted correctly.
ISSUE THREE
I concur.