(dissenting).
I respectfully dissent. See also my dissent in State v. Luna, 378 N.W.2d 229, 239 (S.D.1985). Luna was denied the right to proffer a defense that a man, who later confessed to the killings, was seen approximately one block away, with blood on him, at or about the time of the killings. This evidence was kept from the jury.1
Here, I dissent upon the basis that Luna's constitutional rights under the Fourth and Sixth Amendments to the United States Constitution were grossly violated.
Approximately a dozen police officers and detectives were present, with guns drawn, upon arrival at Luna’s home. Per the sheriff's recollection, some officers escorted Luna out of his apartment. One police officer, armed with a riot gun and a German shepherd attack dog, stood by. Several police officers held sawed-off shotguns pointing them at Luna. Luna was not Mirandized at the scene. He was shoved against a wall, handcuffed, and then frisked. It is undisputed that Luna was not armed and made no attempt to strike out or make any threatening moves during this factual scenario at his apartment home. Luna was required to sit at the kitchen table, with his wrists in handcuffs, as the officers began to search the bedroom and the living room, all without any permission to so search. Luna heard a deputy sheriff and a police officer discuss the possibility of whether they should be m possession of a search warrant to be doing all of this searching. An officer was sent to go out and do something about getting a search warrant. Deputy Sheriff Gardner filed through Luna’s diary and began looking at all of his clothes and shoes for blood. Luna finally wanted to know what it was all about and Deputy Gardner advised him that his wife and mother-in-law had been found beaten to death early that morning. Luna supposedly made the remark "Oh, no, my God.” He then began to cry and, according to the officers, appeared on the verge of vomiting. A twelve-year police veteran described Luna as being “shocked.” Then, Luna continued in an emotional state by crying and saying over and over, “no, no, no.” Additionally, Luna was not permitted to go to the bathroom to splash cold water on his face. He complained of the handcuffs hurting him and Deputy Gardner told another officer to remove them. Luna complained that the handcuffs were so tight that they made “bad burn marks” on his wrists and that his wrists were “blue and purple.”
At or about this time, Luna was ordered to sit once again at the kitchen table. Thereupon, he was given a written consent form, namely to consent to search his apartment home. It appears, however, that the search was all but over. Luna signed this document in this coercive atmosphere and without ever having been Mir-andized. Approximately one hour after the initial appearance of officers, detectives, vehicles, riot gun, and German shepherd attack dog, Luna was taken to the sheriff’s office “for questioning.” A blood sample was taken from his body and he was required to remove all of his clothing and turn it over to law enforcement personnel. Thereupon, he was required to submit hair and fingernail samples. Then, for the first time, he was Mirandized and two officers proceeded to conduct a tape-recorded inter*664view. This was not a consensual search and the totality of the circumstances rendered the consent involuntary. State v. Cody, 293 N.W.2d 440 (S.D.1980).
Luna’s trial counsel filed a Motion to Suppress on or about April 2, 1984, all concerning the seizure, ostensibly illegal, which seizure was on May 1, 1983, as I have depicted above. Within 72 hours after this motion was made, the Motion to Suppress was abandoned. A basic reason, given by Luna’s trial counsel for abandoning this motion, was the fact that the defendant signed a consent to search. In my opinion, such a reason for abandoning the Motion to Suppress was ill conceived and negligent. Glass particle evidence was critical to the State’s case and had this Motion to Suppress been granted, and in all legal likelihood it would have been, the glass particle evidence would not have been submitted to the jury. Luna’s trial counsel did not render effective assistance of counsel. Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). In Kimmelman, 477 U.S. at -, 106 S.Ct. at 2583, 91 L.Ed.2d at 319, the United States Supreme Court wrote:
In order to prevail, the defendant must show both that counsel’s representation fell below an objective standard of reasonableness, [Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674, 693 (1984)], and that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id., [466 U.S. at 694,104 S.Ct. at 2068, 80 L.Ed.2d at 698].
See also Jones v. State, 353 N.W.2d 781, 784 (S.D.1984).
In my opinion, Luna’s trial counsel made an error which was so serious that he was not functioning as counsel guaranteed under the Sixth Amendment. This performance was deficient and it surely prejudiced Luna’s defense. Essentially, this author believes that effective assistance of counsel was not rendered because trial counsel abandoned the Motion to Suppress. Kellogg v. Scurr, 741 F.2d 1099, 1100 (8th Cir.1984). A specific error of trial counsel has been demonstrated under the dictates of United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
This author is further distressed by the fact that this record reveals that Luna’s trial counsel failed to review certain Grand Jury Transcripts; Luna’s trial counsel therefore did not know of glass particle evidence until “shortly before trial.” This continues to reflect a violation of Sixth Amendment rights.
Finally, Luna’s trial counsel, sitting on his chair in the courtroom, as closing arguments took place, failed to make a critical objection and request the court to make an admonition to the jury. In his zeal to convict Luna, the prosecutor, Rodney Lefholz, made a statement in the presence of the jury, which is embodied in the majority opinion. He told the jury that the sheriff had testified that “[t]he Defendant is guilty.” Obviously, the sheriff cannot make such a statement because it invades the province of the jury. But the terrible wrong here is this: Lefholz’ statement of Sheriff Holloway’s testimony was an egregious misstatement of the record and was calculated to superimpose the opinion of guilt of the sheriff over that of the jury.2 It was a false statement of Sheriff Holloway’s testimony. Surely, to obtain “a trial whose result is reliable,” an effective lawyer would have objected forthwith so as to prevent the deprivation of a fair trial for the defendant. This was a serious error. It was a deficient performance. It prejudiced Luna. Therefore, when one considers that Luna was first denied a defense altogether and then deprived of Fourth and Sixth Amendment guarantees, it is analytically sound to express that fundamental fairness has not been accorded to Luna in the premises. Each and every defendant *665is guaranteed a fair trial. U.S. Const, amend. XIV, § 1; S.D. Const, art. VI, § 2. While that trial need not be perfect, it must be fair. See Brown v. United States, 411 U.S. 223, 231, 93 S.Ct. 1565, 1570, 36 L.Ed.2d 208, 215 (1973).
. Luna’s brief, page five, under "STATEMENT OF CASE” states: "Also, during the trial, Applicant’s ‘Additional Evidence [of] Third Party Perpetrator’ was filed, considered, and the Court denied Applicant the opportunity to offer certain evidence on that issue.” It is mentioned, therefore, in this case, and by this author, for historical/procedural background and bears on the fairness of a trial wherein a defendant was ultimately sentenced to serve two life terms on two murder convictions.
. In Luna’s brief, issues three and four under "STATEMENT OF ISSUES," Luna zeroes in on trial counsel’s failure to object to prosecutor’s misstatements during closing arguments. Luna’s brief, page thirty-eight, inter alia, de-dares: "Additionally, Applicant submits that this statement to the jury constituted prosecuto-rial misconduct and violated Applicant’s constitutional rights to a fair trial and due process.”