(specially concurring).
PRESERVATION OF EVIDENCE
Concerning the blood test issue in this case, we are confronted with the question whether the Fourteenth Amendment also demands that the state preserve potentially exculpatory evidence on behalf of appellant. See California v. Trombetta, — U.S. -, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984).
*564In Trombetta, an Omicron Intoxilyzer was involved, the breath samples were not preserved, and this was held to not be a due process transgression. The United States Supreme Court did not apply the standards developed in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Rather, the Fourteenth Amendment was viewed in a more expansive, broad manner. In this case, there are blood samples taken from appellant, unrefrigerated for several hours, allegedly kept in the glove compartment of an automobile on a hot day, and then tested. Therefore, constitutionally, can a negligent preservation of evidence rise to a greater height than a destruction of potentially exculpatory evidence?
What is the duty of the state to preserve potentially exculpatory evidence? The answer to this question is best given in a reading of Killian v. United States, 368 U.S. 231, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961), and Trombetta. Suffice it to say, criminal prosecutions must still comport with prevailing notions of fundamental fairness. This appellant, and any defendant in a criminal case, must be afforded a meaningful opportunity to present a complete defense. In Trombetta, the highest court of this land reannounces “what might loosely be called the area of constitutionally guaranteed access to evidence.” Trombetta, — U.S. at -, 104 S.Ct. at 2532, 81 L.Ed.2d at 419 (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3447, 73 L.Ed.2d 1193, 1203 (1982)).
Trombetta focused, as I see it, on the good faith of officers and exercising their duty within normal practices. A rigorous and systematic system of capturing and preserving blood alcohol samples as evidence appears to be eclipsed by Trombetta (breath samples). In the facts at hand, four different blood samples of appellant tested by two experts, had varying blood alcohol content. Appellant’s expert testified the blood alcohol level of one sample was .116 and another was .109; the State’s expert testified that the one sample tested out at .193 and another at .178. These are widely varying tests which reflect a high alcoholic content in appellant’s blood. The negligence in preserving the blood samples is there; such a practice of hauling around blood samples in a car on a hot day is poor law enforcement procedure. Ipso facto, it does not amount to an exercise of bad faith; it is, nevertheless, not in keeping with normal practices. Due to the high range of the alcohol content in all four samples, in the words of Trombetta, “the chances are extremely low that preserved samples would have been exculpatory” had the negligence by the law enforcement officers not here occurred. Trombetta, — U.S. at -, 104 S.Ct. at 2534, 81 L.Ed.2d at 422. There was no conscious effort by the state troopers to suppress exculpatory evidence. I conclude there is no Fourteenth Amendment violation.
PROSECUTORIAL MISCONDUCT
Improper prosecutorial conduct demands immediate action by defense counsel: (1) Make objection to improper questions or misstatements forthwith; (2) move for mistrial in chambers; and (3) if the motion is denied, specifically request an instruction. State v. Kidd, 286 N.W.2d 120, 123 (S.D.1979) (Henderson, J., concurring specially) (citing State v. Christiansen, 46 S.D. 61, 67, 190 N.W. 777, 779 (1922)); Schlagel v. Sokota Hybrid Producers, 279 N.W.2d 431, 434 (S.D.1979) (Henderson, J., concurring specially). Counsel in South Dakota must learn to move with dispatch, act with alacrity, and be prompt in responding to prosecutorial misconduct, lest they be found wanting at the appellate level.
PUNISHMENT
The Eighth Amendment to the United States Constitution provides, in simple language: “Excessive bail shall not be required, nor excessive fines imposed nor cruel and unusual punishments inflicted.” * *565ant was sentenced to six years’ imprisonment. He claims this was “a cruel and inhuman” sentence; further, that the sentence shocks the conscience. At the time of sentencing, he was twenty-two years old with a record of no felonies but two D.W.I. convictions. An innocent man was killed on the highway and the evidence is overwhelming of appellant’s guilt.
Appellant’s argument, simply put, is that the sentence is constitutionally offensive. That the sentence is beyond statutory limits is not advanced. There is no claim of a violation of statutory sentencing. Therefore, I restrict my views to the constitutional argument.
In my dissent in State v. Helm, 287 N.W.2d 497, 499 (S.D.1980), I expressed a profusion of thought on sentencing laced with and honed by federal decisions and past United States Supreme Court decisions on the Eighth Amendment. The constitutional complexion of that dissent was honored and quoted in part by the United States Supreme Court in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). State v. Helm, 287 N.W.2d 497, cited in the majority opinion, was reversed. Therefore, I do not wish to expressly or impliedly affix my imprimatur on the latter case. On sentencing, I wrote in Helm, 287 N.W.2d at 500:
While this court has been traditionally reluctant to disturb a sentence on appeal, we nonetheless have long recognized the vagaries that inhere in the sentencing process. We stated in State v. Bad Heart Bull, 257 N.W.2d 715, 720 (S.D.1977): “Although punishment by imprisonment is not per se cruel and unusual it may be constitutionally offensive when the duration of the sentence prescribed is so excessive or disproportionate to the crime as to shock ‘the conscience and reason of men generally,’ ” citing State v. Becker, 3 S.D. 29, 40, 51 N.W. 1018, 1022 (1892). I do not choose to be shackled by the precedent of this court, namely, that a sentence within the statutory limits will not be disturbed on appeal. I find the language of the majority opinion especially alarming in light of the reenactment of the death penalty in this state. There are instances, though rare, where departure from this precedent is mandated. Thus, the discretion of the trial court is not boundless, nor is the function of this court merely perfunctory with regard to the review of a criminal sentence.
Those views, I believe, are still sound.
A six-year sentence passes constitutional muster: (1) The duration of the sentence prescribed is not so excessive or disproportionate to the crime as to shock the conscience and reason of men generally nor (2) the conscience of this Court. Therefore, I would likewise affirm this conviction of vehicular homicide.
S.D. Const. art. VI, § 23, provides: "Excessive bail shall not be required, excessive fines imposed, nor cruel punishments inflicted." Note *565that the word "unusual" is deleted from this state’s constitution.