State v. Clifford (2026 S.D. 16): Confrontation-Clause Review Requires a Developed Record and a Preserved “Testimonial” Objection to BOLO/Caller Statements

1. Introduction

In State v. Clifford, the Supreme Court of South Dakota affirmed Christian Elliott Clifford’s jury convictions for aggravated eluding, reckless driving, driving under suspension, and failing to stop at a stop sign. The charges arose after Sioux Falls officers, responding to a same-day telephonic report of a family dispute, issued a “be on the lookout” (BOLO) alert stating that Clifford was involved and was driving a red Toyota Camry. Officers then observed a red Camry near the reported address, attempted a stop, and the driver fled at high speed.

The appeal centered on whether the circuit court improperly admitted the caller’s out-of-court statement (as repeated by officers) that Clifford was driving a red Toyota Camry—allegedly “testimonial hearsay” admitted in violation of the Sixth Amendment Confrontation Clause.

2. Summary of the Opinion

The Court affirmed on two independent, practical grounds:

1. Nonpreservation of the Confrontation Clause issue: Clifford did not adequately present and develop, in the circuit court, the facts and argument necessary for a “testimonial” determination; a bare request for a “continuing objection under Crawford” after an evidentiary ruling was insufficient to preserve the constitutional claim. As a result, the Court declined to reach the Sixth Amendment merits.
2. No prejudicial hearsay error warranting reversal: Even if the caller’s statement was used for its truth (including during rebuttal closing), any error was nonprejudicial because the strongest identity evidence was two officers’ in-court identifications—corroborated by dash camera footage—making the caller’s statement “merely cumulative.”

3. Analysis

3.1. Precedents Cited

Crawford v. Washington

Crawford v. Washington is the foundational Confrontation Clause decision relied on by Clifford and referenced in the opinion. It provides that “testimonial statements” by absent witnesses are inadmissible unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine. The South Dakota Supreme Court treated Crawford not as a self-executing label but as a doctrine that must be properly invoked and factually supported in the trial court to enable a ruling.

State v. Dickerson

Cited for the baseline proposition that the Sixth Amendment guarantees a defendant’s right to be “confronted with the witnesses against him.” The case frames the constitutional interest at stake but does not supply preservation; in Clifford, preservation was the dispositive gate.

State v. Richmond

State v. Richmond is used to restate the South Dakota formulation of Crawford: testimonial out-of-court statements require exclusion absent unavailability and a prior opportunity to cross-examine. The court used Richmond to emphasize that the inquiry turns on whether the challenged material is both (1) hearsay and (2) testimonial.

Davis v. Washington and Smith v. Arizona

Davis v. Washington supplies the “primary purpose” framework: statements are assessed in context to decide whether they are testimonial. Smith v. Arizona is cited for the proposition that the Confrontation Clause “applies only to testimonial hearsay.” Together, these cases underscore why the Supreme Court of South Dakota found the record too thin: without the circumstances of the call, a court cannot reliably determine “primary purpose” and thus cannot resolve the testimonial question.

State v. Little Long

Cited for a working definition of testimonial statements as a “solemn declaration or affirmation” aimed at establishing or proving facts, and as a reminder that police interrogations and certain prior testimony are paradigmatic testimonial hearsay. The citation reinforces the need for a fact-specific inquiry—again highlighting the consequences of an undeveloped record.

Veith v. O'Brien, State v. Janklow, and State v. Corey

These authorities support the Court’s procedural holding: issues must be raised such that the trial court has an opportunity to rule. Veith v. O'Brien supplies the general waiver principle; State v. Janklow and State v. Corey reinforce that failure to object at the time of the challenged matter (including argument) forfeits appellate review because it deprives the trial court of a chance to correct error (e.g., admonition, curative instruction, limiting instruction, striking).

Marquez v. United States

Used as persuasive authority for the preservation point: where counsel objected on “purely evidentiary grounds” (hearsay), the Confrontation Clause claim was not adequately preserved. Clifford follows that logic—treating evidentiary objections and constitutional confrontation objections as analytically distinct, requiring distinct development.

State v. Carter and State v. Podzimek

These cases govern prejudice and harmlessness in the evidentiary context. State v. Carter supplies the prejudice test (a reasonable probability of a different result absent error), and State v. Podzimek supports the conclusion that error is nonprejudicial when the challenged proof is “merely cumulative or corroborative of other evidence” properly admitted. The Court used them to affirm even while acknowledging the State’s rebuttal arguably treated the BOLO association as substantive proof.

3.2. Legal Reasoning

(A) The “testimonial” question was not preserved or developed

The Court’s central doctrinal move is procedural: it refused to decide whether the caller’s statement was testimonial because Clifford did not give the circuit court a meaningful chance to decide it. Although Clifford orally raised hearsay on the morning of trial, his written motion in limine relied on SDCL 19-19-404 (character/other-acts) and did not litigate confrontation. After the court ruled, defense counsel requested a “continuing objection under Crawford” but did not:

• ask the circuit court to determine whether the caller’s statements were “testimonial” under the Davis primary-purpose test,
• present facts about the call (who called, the questions asked, whether it was an emergency, the level of formality), or
• create a record allowing appellate review of the call’s circumstances.

Because “testimonial” status is a circumstance-dependent legal conclusion, the Court held the absence of a developed factual record and a targeted ruling was fatal to the Sixth Amendment claim on appeal.

(B) The hearsay/use-for-truth problem did not warrant reversal

The Court acknowledged tension in the trial handling of the BOLO content. The circuit court’s pretrial ruling suggested officers could explain investigative reliance on out-of-court information without “presenting hearsay evidence,” yet at trial the State elicited the caller’s specific content (that Clifford was in a red Toyota Camry). Further, the State’s rebuttal closing explicitly characterized the BOLO association as circumstantial evidence of identity.

But Clifford did not object to the rebuttal statement, request a curative/limiting instruction, or move to strike—invoking the same preservation logic. Separately, the Court held that even if the testimony was improperly used for its truth, it was nonprejudicial because:

• two officers testified in court that, based on prior familiarity and clear viewing conditions, they positively identified Clifford as the driver;
• Officer Puente’s dash camera footage supported the claim that visibility was good and the viewing opportunity was real; and
• the BOLO content was comparatively weak identity evidence and, at most, cumulative.

3.3. Impact

Preservation rule with practical bite: State v. Clifford is a cautionary precedent for South Dakota criminal practice: a generic reference to Crawford does not preserve a Confrontation Clause claim. Counsel must timely and specifically litigate whether a statement is testimonial, and must develop the circumstances (the “primary purpose” record) that the constitutional test requires.

BOLO/dispatch evidence remains a litigation hot spot: The opinion signals that when BOLO/dispatch content crosses from “why officers acted” into “proof that the defendant did it,” defendants must object contemporaneously and seek limiting instructions. Prosecutors, conversely, are on notice that arguing BOLO content as substantive proof may create hearsay/confrontation risk if properly preserved in a future case.

Harmlessness through cumulative identification evidence: Where the State has strong, properly admitted identification evidence (especially multiple eyewitness officers plus video), appellate courts may deem BOLO/dispatch hearsay cumulative and nonprejudicial—even if the evidence was admitted or argued in an arguably improper way.

4. Complex Concepts Simplified

• Hearsay (SDCL 19-19-802): An out-of-court statement offered to prove the truth of what it asserts. If the State offers “the caller said Clifford was driving a red Camry” to prove Clifford drove a red Camry, that is hearsay unless an exception applies.
• Testimonial: A subset of statements that are sufficiently formal or prosecution-oriented that the Sixth Amendment requires cross-examination if offered against the accused. The test often asks: what was the statement’s “primary purpose” (Davis v. Washington)?
• Confrontation Clause: The constitutional right to cross-examine “witnesses against” the defendant. It bars admission of testimonial hearsay unless the witness is unavailable and there was a prior opportunity to cross-examine (Crawford v. Washington).
• “Effect on the listener” / background: A non-hearsay theory sometimes used to explain why police acted (e.g., why officers went to a location). The risk is that jurors may treat the statement as proof of guilt unless carefully limited.
• Preservation / waiver: To raise an issue on appeal, a party must timely object and give the trial court a chance to rule and correct. Failure to do so can forfeit appellate review (Veith v. O'Brien; State v. Corey).
• Cumulative evidence: Evidence that adds little because the same point is already established by stronger, properly admitted proof. Cumulative erroneous evidence is less likely to justify reversal (State v. Podzimek).

5. Conclusion

State v. Clifford stands chiefly for procedure with constitutional consequences: Confrontation Clause claims require more than a passing reference to Crawford. A defendant must specifically press the “testimonial” issue, develop the call’s circumstances under the Davis primary-purpose framework, and object at the moments the evidence (or argument) is used substantively. Absent that preservation, appellate courts may decline review. And even where hearsay concerns exist, strong in-court identifications and corroborating video can render BOLO/dispatch content nonprejudicial as cumulative.