¶1(dissenting).
¶2I believe the hearing should have been held as provided by SDCL 19-16-38. Defense counsel was put in an untenable position when the State was allowed to put in a part of the evidence — describing the circumstances without the oral statements — thereby putting a spin on the evidence prejudicial to the defendant. It would not have been that difficult to hold a hearing as the law provides. The charges in this case are repugnant to decent and normal people. However, we should not forget the fact mistakes are made and trial courts should follow the statutes to avoid them. I would reverse for the same reason as given in Moriarty I.