¶1(concurring in part and dissenting in part).
¶2The majority writer is absolutely correct in stating that the evidence regarding chlamydia should have been disclosed to the defense under the Brady rule. The trial court at its post-trial hearing also agreed that it should have been. After it is discovered that Brady evidence has been suppressed, a trial court has to determine whether or not the undisclosed evidence was material to the conviction. United States v. Kelley, 790 F.2d 130 (D.C.Cir.1986).
¶3That is exactly what the trial court did in this case when it stated in its post-trial written opinion: “The question then becomes: What bearing does where the victim con-trapted chlamydia have upon any issues to be presented to the jury? And the answer is very simply none.” I fully agree with this conclusion reached by the trial court. In this case, there was no testimony during trial by the victim charging this defendant with infecting her with this sexually transmitted disease. If, in fact, the prosecution had played upon this type of testimony to gain favor with the jury, I would certainly look at this case from a different perspective.
¶4*676While discussing nondisclosed facts which could be used for impeachment purposes, the United States Supreme Court held:
This court has rejected any distinction between impeachment evidence and exculpatory evidence. In Giglio v. U.S., [405 U.S. 150, 92 S.Ct. 768, 31 L.Ed.2d 104 (1972) j, the Government failed to disclose impeachment evidence similar to the evidence at issue in the present case, that is, a promise made to the key Government witness that he would not be prosecuted if he testified for the Government. The Court said:
When the ‘reliability of a given witness may be determinative of guilt or innocence,’ non-disclosure of evidence affecting credibility falls within th[e] general rule [of Brady]. We do not, however, automatically require a new trial whenever “a combing of the prosecutors’ files after the trial has disclosed evidence possibly useful to the defense but not likely to change the verdict....” A finding of materiality of the evidence is required under Brady.... A new trial is required if “the false testimony could ... in any reasonable likelihood have affected the judgment of the jury....”
¶5United States v. Bagley, 473 U.S. 667, 676-77, 105 S.Ct. 3375, 3380-81, 87 L.Ed.2d 481, 490 (1985) (citing Giglio v. United States, 405 U.S. at 154, 92 S.Ct. at 766, 31 L.Ed.2d at 108) (citations omitted).
¶6By the holding on this issue, this court is automatically reversing based on the prosecution’s failure to comply with the court’s prior decision. This reaction totally disregards the fact that the issue of materiality is fact bound and the trial court found that where the victim encountered this sexually transmitted disease was factually immaterial to the rape prosecution. When a defendant testifies that he had sex with the victim, but it was with her consent, the only issue to be decided is “was there consent or was there not consent.” A statement made to the press after the trial, which was obviously not under oath, should never amount to reversible error. Therefore, I dissent on this issue.
¶7I totally concur with the majority position on the bad acts evidence. This court in State v. Chapin, 460 N.W.2d 420 (S.D.1990), sent a message to the practicing bar that this type of evidence should not be admitted based upon a “shotgun” or “smorgasbord” approach. After Chapin, this court veered off course in State v. Werner, 482 N.W.2d 286 (S.D.1992) (Justices Sabers and Amundson dissenting) and State v. Christopherson, 482 N.W.2d 298 (S.D.1992) (Justices Sabers and Amundson dissenting). With this holding, the court is back on course in requiring guilt or innocence to be determined by evidence relevant to only this particular charge and not by simply showing that the defendant had engaged in other bad acts, thus painting him as a bad person.
¶8Further, I concur with that portion of Chief Justice Miller’s dissent in part dealing with the admission of the photographs and the balance of the majority opinion.