(concurring in part, dissenting in part).
I would hold that the trial court did not commit reversible error in refusing to admit the tape recording of the conversation between the Brandenburgs and the special prosecutor.
It is important to note that appellant’s principal argument for the admissibility of the tape recording is that “the tape would have allowed the jury an opportunity to hear for themselves the fact that Mr. Brandenburg explicitly told the special prosecutor not to expect him to say he knew anything unless he had seen it with his own eyes.” (emphasis in original) The court quite properly holds that this self-serving post-preliminary hearing statement was of no relevance to the perjury charge arising out of appellant’s testimony at the preliminary hearing. Once this argument is disposed of, all that remains is appellant’s contention that the tape would have impeached the special prosecutor’s testimony that he did not recall telling appellant and his wife that the Wellners would lie. The relevant portions of the special prosecutor’s testimony on this point are as follows:
DEFENSE COUNSEL: Did you ever say anything that would indicate to my client that the Wellners were likely to lie to bring them into it?
SPECIAL PROSECUTOR: I don’t recall saying they would lie to bring them into it. My recollection is that I said that they were presently lying, and if I was successful in convicting them, I felt there was someone else involved and they were going to be brought in. And there is no doubt by implication, I said I thought it probably could be Larry.
DEFENSE COUNSEL: But my question, just pure and simple, is: as a final analysis, you don’t recall ever making — Do you deny making any statement that you knew the Wellners would lie to bring Larry into this?
SPECIAL PROSECUTOR: I don’t deny it, because I can’t remember exactly what I said, but I don’t recall saying it.
DEFENSE COUNSEL: That is a pretty serious accusation. It seems that you would recall if you had said something like that, wouldn’t you?
SPECIAL PROSECUTOR: I was mad as hell, and I don’t remember very good when I am mad. I do a lot of other foolish things sometimes when I am mad too, and I wasn’t the only one made in the office.
After appellant's wife had testified regarding the circumstances under which the *709tape had been made, the court held an inchambers conference during which the tape was played. The following colloquy then occurred:
BY THE COURT: Now, the offer has been made for the admission of that tape into evidence, and does the State object?
SPECIAL PROSECUTOR: Let me argue. I apologize to the Court. It’s done me some good. I know how damn bad I sound when I am mad. I don’t think my bad temper should be allowed to prejudice the State’s case. I never realized I used so many bad words, and that I can’t do anything about it. It’s done. In the same respect, I can’t see where it is relevant.
SPECIAL PROSECUTOR: Your Honor, if it wasn’t for the cussing, I am not particularly ashamed of what I said on the tape. I am ashamed of the cussing, but that jury may have two or three very deeply religious people that are very opposed to using blasphemy, and it is certainly going to decrease my effectiveness in this trial. Now, as you say, they can testify to it.
The trial judge then stated that he did not believe that the tape recording was prejudicial to the State or to the special prosecutor but that he would not admit the tape over the State’s objection because he was of the opinion that the tape would “rouse some strong feelings and everybody is just going to be detracted from the problem at hand, the real question. I really do.” Following the special prosecutor’s renewal of his objection to the tape, the trial judge stated that he did not believe the statement on the recording could be used to prove the truthfulness of the Wellners and repeated his concern that the effect of the tape would only be to arouse feelings among the jurors and present the likelihood of making the whole trial a mockery.
There are at least two bases upon which to support the trial court’s decision not to allow the tape recording into evidence. First, it is quite clear that the purpose for which appellant was attempting to introduce the tape was to establish that the special prosecutor had made the statement during the office interview that the Well-ners would lie to try to drag other people into the case following their conviction. We should remember that it was appellant who was on trial for perjury, not the Well-ners. The special prosecutor’s statement during the office interview was thus related to a collateral issue. Cf. State v. Gage, 302 N.W.2d 793 (S.D.1981). Moreover, the special prosecutor did not deny making the statement; he merely testified that he did not recall making it. It is interesting to note that after the tape had been played in the presence of the trial court and the special prosecutor, defense counsel did not recall the special prosecutor for the purpose of giving him the opportunity to testify on the basis of his refreshed recollection. Had appellant really been concerned about establishing that the special prosecutor had made the statement, it does not appear from the record why he could not have asked the special prosecutor this question following the in-chambers playing of the tape recording.
Even if the tape recording had been related to a relevant issue at trial, the trial court was still within its discretion in refusing to admit it as an exhibit. It should be noted that the trial court ruled that the witnesses could use the tape to refresh their memories and that they could testify as to anything that was on the tape so long as it was relevant.
Even if the trial court erred in refusing to admit the tape, the error was at most harmless. State v. Waller, 338 N.W.2d 288 (S.D.1983). The jury had before it as an exhibit a copy of the order that released the Wellners from the state penitentiary within a month of their incarceration. This order stated in part:
2. This modification of the Defendants’ Sentences is based upon the consideration that the Defendants have agreed to provide testimony at the Grand Jury to be convened in Hand County and at any trial against any other defendants, *710said testimony to be substantially consistent with the written statement of the Defendants given to the Hand County State’s Attorney previously; and the Defendants to give, if necessary, further statements to the Hand County State’s Attorney to elaborate upon their previously given written statement; and the Court reserves the right to revoke this modification of sentence at any time if the Defendants fail to cooperate in good faith as agreed.
In the light of this stark evidence of the motivation for the Wellners to testify against appellant, anything that the special prosecutor may have said twenty-six months earlier concerning the Wellners pales into insignificance. If the Wellners’ testimony had been the only evidence pending to prove the untruthfulness of the statements that gave rise to the perjury prosecution against appellant, the issue of the admissibility of the tape recordings might have presented a closer question. As it was, however, the State introduced testimony from two disinterested witnesses to the effect that appellant had acknowledged to them that he was aware that marijuana was growing on his father’s land and that he had “stumbled across it.”
I agree with the majority opinion’s treatment of the other issues presented.
I would affirm the conviction.