Case Information
*1 #27001-a-JKK
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
OAKLEY BERNARD ENGESSER, Petitioner and Appellee,
v.
DARIN YOUNG, Warden,
South Dakota State Penitentiary, Respondent and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT MEADE COUNTY, SOUTH DAKOTA * * * *
THE HONORABLE WARREN G. JOHNSON
Judge
* * * *
RONALD A. PARSONS, JR.
DELIA M. DRULEY of
Johnson, Heidepriem & Abdallah, LLP
Sioux Falls, South Dakota
and
MICHAEL J. BUTLER
Sioux Falls, South Dakota Attorneys for petitioner
and appellee.
MARTY J. JACKLEY
Attorney General
PAUL S. SWEDLUND
Assistant Attorney General
Pierre, South Dakota Attorneys for respondent
and appellant. * * * *
ARGUED OCTOBER 6, 2014 OPINION FILED 11/12/14 *2
KONENKAMP, Justice
[¶1.] In this habeas proceeding, the circuit court ruled that the petitioner established clearly and convincingly that newly discovered evidence, if proven and viewed in light of all the other evidence, would establish that no reasonable juror would have convicted him. The court ordered a new trial, and the State appeals.
Background
[¶2.]
In 2001, a jury convicted Oakley “Bernie” Engesser of vehicular
homicide and two counts of vehicular battery. The sole issue at the trial was
whether Engesser or the deceased, Dorothy Finley, was driving her Corvette when
it crashed into a minivan on Interstate 90. Neither Engesser nor Finley was
wearing a seatbelt and both had been drinking alcoholic beverages. The Corvette
was going “approximately 112 miles per hour when it slammed into the back of the
minivan, spun off the road, and rolled several times before coming to rest on its roof
in the median.”
See State v. Engesser
(
Engesser I
),
[¶3.] At trial, the State presented evidence from Trooper Ed Fox, the lead investigator. Trooper Fox arrived on the scene after Engesser and Finley had been taken away. He obtained statements from the witnesses at the scene. No witness, however, stated specifically whether the driver was a man or woman. Nonetheless, based on the positioning of and injuries to Finley’s body, as later described to Trooper Fox, he concluded that Engesser was the driver.
[¶4.] The State also offered evidence from Finley’s daughter, who testified that Finley normally kept her purse at her feet when she was the passenger. The purse was found underneath the dashboard on the passenger side. The emergency room physician who treated Engesser testified that the person in the passenger seat would have suffered the most serious injuries because it was the point of impact with the minivan. Engesser suffered injuries on both sides of his body. Finley died of injuries to the right side of her body and head.
[¶5.]
Engesser did not testify at trial. But the jury viewed a video recording
of his interview with Trooper Fox, in which Engesser explained that he did not
remember anything after leaving the Full Throttle Saloon. Although Engesser
believed Finley was driving, he agreed it was possible they had switched before the
accident. Engesser sought to admit hearsay evidence from his civil attorney that a
witness — Sean Boyle — had told the attorney he saw Engesser and Finley leave
the Full Throttle Saloon on the night of the accident, and that Finley was driving
the Corvette. The court excluded the testimony. Engesser was found guilty and
*4
sentenced. We affirmed his convictions in 2003.
Engesser I
,
[¶6.]
Over the next twelve years, Engesser petitioned successively for
habeas corpus relief in state and federal courts. His first state habeas petition was
denied, and neither the habeas court nor this Court granted his request for a
certificate of probable cause to appeal. In his first petition for federal habeas corpus
relief, Engesser, pro se, claimed his trial counsel was ineffective for multiple
reasons. After his petition was denied, Engesser appealed and was appointed
counsel. At some point after counsel was assigned, Eric Eckholm contacted
Engesser’s counsel and asserted that he saw a woman driving the Corvette just
before the accident. In his deposition, Eckholm testified that he was in his vehicle
on the shoulder of the Interstate when he saw the Corvette before it hit the
minivan. Eckholm said he saw a woman in the driver’s seat frantically driving and
a man in the passenger seat “hanging on.” He described the driver as having blonde
hair that was “kind of puffy.” He saw the back end of the Corvette strike the
minivan and a man fly out of the passenger side. He said he walked over to the
Corvette in the median and saw Finley’s body underneath the overturned car. He
testified that he contacted Engesser’s trial attorney and first habeas counsel.
Engesser’s federal habeas counsel did not bring Eckholm’s testimony to the
attention of the district court before Engesser’s first habeas petition was ultimately
dismissed by a divided federal appellate panel.
See Engesser v. Dooley
(
Engesser II
),
[¶7.] In 2006, Engesser filed a second petition for habeas relief in state court. He argued that his trial counsel and first habeas counsel were ineffective because they failed to identify and investigate two witnesses, Eckholm and Charlotte (Delaney) Fowler. Although Eckholm and Fowler were originally questioned at the scene of the accident and neither indicated that they could identify the driver, during the habeas hearing they claimed otherwise. Eckholm testified that he was standing on the shoulder of the Interstate behind his parked truck when he saw the Corvette. He was able to see that it was a woman driver because he saw bracelets and nail polish. She had blonde hair, he said, long “enough to fly in the air.” Fowler testified that while she was in the driver’s seat of her van parked on the shoulder of the Interstate in front of Eckholm’s vehicle, she saw the Corvette travel out of control and hit the minivan. She explained that, though she told Trooper Fox on the night of the accident that she was looking at her console and did not see the Corvette hit the minivan, she in fact saw the accident. She saw a man thrown from the Corvette. In addition to Eckholm and Fowler, multiple other witnesses testified at the habeas hearing, including Trooper Fox, Engesser’s trial counsel and first habeas counsel, and Engesser.
[¶8.] The habeas court ruled that trial counsel and Engesser’s first habeas counsel were ineffective for failing to identify and investigate Eckholm and Fowler, and that Engesser was prejudiced because their testimony would likely have altered the outcome of Engesser’s trial. The court granted the petition and ordered a new trial. Following the court’s ruling, in an apparent effort to bolster the rationale for a new trial, Engesser sought leave to reopen the proceeding to present testimony *6 from two additional witnesses the State disclosed after the habeas hearing. One witness, Greg Smeenk, said that he came upon the accident right after the crash. He attempted to get to the woman inside the car, but could not open the passenger- side door. He testified that he went over to the driver’s side and was able to open the door. He took the woman’s pulse and realized she was dead. Because he had his two daughters in the car and did not want them to see the accident, he left the scene before ever talking to law enforcement officers. The habeas court denied the motion to reopen because, at the time of Engesser’s trial and first habeas petition, neither counsel could have known that Smeenk was a potential witness.
[¶9.]
On appeal, we reversed because Engesser failed to prove that his first
habeas counsel was ineffective in the first habeas petition.
Engesser v. Dooley
(
Engesser III
),
which Engesser did not seek a certificate of probable cause to appeal. Engesser
then requested permission to file a successive federal habeas petition with the
Eighth Circuit Court of Appeals. The court authorized the “petition ‘to present a
new claim that counsel was ineffective because of new evidence of Engesser’s factual
innocence that could not have been discovered earlier.’”
See Engesser v. Dooley
*7
(
Engesser IV
)
,
[¶11.] Boyle testified that he was working as a security guard at the Full Throttle Saloon on the night of the accident. He knew Finley and said that he saw Finley and Engesser leave the bar around 6:30-7:00 p.m., with Finley in the driver’s seat of the Corvette. Boyle was not available as a witness until this hearing because he had left the state in 2000 to avoid a potential 4th DUI charge. [¶12.] Syverson testified that he saw the Corvette immediately before the accident as it entered the Interstate 90 on-ramp heading east. Syverson was on Interstate 90, driving east, with his wife and daughter in the car. When the Corvette attempted to merge onto the Interstate it was parallel to Syverson’s vehicle. The Corvette was travelling at approximately the same speed as his vehicle, except for the last one hundred meters, when it sped up and shot ahead of his car. Syverson testified that he noticed the Corvette when his car was traveling parallel to it. He looked over to the driver and observed feminine features and a feminine hair style. Shortly after the Corvette sped past Syverson’s vehicle, Syverson came upon the accident. He stopped his car. His wife went to help the people in the minivan, and Syverson stayed with his daughter until his wife returned. They left before law enforcement officers arrived. Syverson was discovered as a potential witness after the accident came
up in a conversation with his co-workers. They were discussing vehicle accidents,
*8
and Syverson had mentioned that he saw an accident with a red Corvette a year
earlier. His co-worker, Rusty Engesser, mentioned that his cousin was in that
accident. Syverson was eventually contacted as a potential witness. He was shown
a picture of Finley taken around the time of the accident and also a picture of
Engesser taken while he was in the hospital after the accident. Syverson testified
that the picture of Finley was consistent with the features he observed and, in
reference to the picture of Engesser, stated that “in no way was that the driver.”
After the evidentiary hearing, Engesser urged the district court to
consider the merits of his procedurally-defaulted ineffective assistance of counsel
claim based on
Schlup v. Delo
,
During Engesser’s trial, Trooper Fox was the only witness to testify that Engesser was the driver of the Corvette. This assertion was not refuted by Engesser’s attorney, who appeared to focus on the fact that the Corvette was stored outdoors, permitting any bodily fluids inside the Corvette to deteriorate. If Engesser’s attorney had interviewed Eckholm and Fowler, and called them as witnesses, their testimony would have directly contradicted Trooper Fox’s assertion that Engesser was the driver of the Corvette. The identity of the driver was the only issue at Engesser’s trial. If a factfinder were presented with Eckholm’s and Fowler’s eyewitness testimony, no reasonable factfinder would have found Engesser guilty of the underlying offense. The only state court (Judge Macy) to have considered Eckholm’s and Fowler’s testimony and to weigh the testimony against the evidence presented at Engesser’s trial found that their testimony would have changed the outcome of his trial. Moreover, Judge Macy reached this conclusion without the benefit of Syverson’s eyewitness testimony, which demonstrates even more clearly that “but for the constitutional error, no reasonable factfinder would have found [Engesser] guilty of the underlying offense.” 28 U.S.C. § 2244.
Engesser IV
,
permitted habeas “review of otherwise barred claims if [the petitioner] produces
reliable new evidence not available at trial establishing that it is more likely than
not that no reasonable juror would have convicted him in light of the new evidence.”
See Amrine v. Bowersox
,
[¶16.]
The federal district court then addressed the merits of Engesser’s
ineffective assistance of counsel claim. It deferred to the findings by the state court
on Engesser’s second petition for habeas relief and did not find unreasonable the
state court’s conclusion that Engesser’s counsel was prejudicially ineffective. The
district court granted Engesser’s petition for a writ of federal habeas corpus under §
2254. The State appealed and the Eighth Circuit Court of Appeals reversed. It
ruled that Engesser’s successive petition for habeas relief must be dismissed
because it was predicated on a claim (ineffective assistance of counsel for failing to
investigate Eckholm and Fowler as witnesses) that was discoverable through the
exercise of due diligence at the time of Engesser’s first federal petition for habeas
relief.
Engesser v. Dooley
(
Engesser V
),
and held an evidentiary hearing in July 2013. At the hearing, Ramona Dasalla, Russell Engesser (Engesser’s cousin), Rena Hymans (Engesser’s former counsel), Val Engesser (Engesser’s wife), Beau Goodman, Brett Garland, Todd Albertson, and Engesser testified. The habeas court also reviewed the evidence from Engesser’s trial and previous habeas proceedings. In its memorandum decision and findings of fact and conclusions of law, the habeas court ruled that Engesser was aware of Syverson as a potential witness as early as November 2007, and therefore, his claim to the extent it relied on Syverson’s testimony was barred by the statute of limitations under SDCL 21-27-3.3(4). But because the existence of Dasalla as a witness was unknown until April 2013, Engesser’s petition was not time barred. The court found that Engesser did not waive his right to seek relief on a claim of actual innocence because the Legislature repealed SDCL 21-27-16.1, which provided that any ground for relief not raised in the original petition “may not be the basis for a subsequent application, unless the court finds grounds for relief asserted which for reasonable cause were omitted or inadequately raised in the original, supplemental, or amended application.” The court also concluded that the Legislature’s 2012 amendment to the laws governing habeas corpus created “more stringent guidelines for prisoners bringing multiple habeas corpus petitions” but “specifically carved out an exception for newly discovered evidence, that when weighed with the evidence as a whole, showed by clear and convincing evidence that no reasonable juror would have returned a guilty verdict.” Finally, the court ruled that “principles of elemental fairness set forth in the due process protections of the *12 South Dakota constitution require recognition of a freestanding actual innocence claim.”
[¶19.] The habeas court highlighted the testimony from Goodman, Eckholm, Fowler, Boyle, Syverson, and Dasalla in reviewing whether Engesser “identifie[d] newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the applicant guilty of the underlying offense.” See SDCL 21-27-5.1. Goodman testified at the second federal habeas hearing and the current hearing. Eckholm and Fowler testified at the second habeas hearing in state court and the second federal habeas hearing. Boyle, Smeenk, and Syverson testified at the second federal habeas hearing. Dasalla testified in the current hearing. The court ruled that Dasalla’s testimony was newly discovered because
her evidence was not known until April 2013. After Dasalla had read an article in a newspaper about Engesser’s current petition for relief, she contacted the author of the article. The author put Dasalla in contact with Engesser’s counsel. Dasalla reported that on the day of the accident, she and her boyfriend were traveling on Interstate 90 in the right-hand lane, heading toward Rapid City. She saw a red Corvette pass in the left-hand lane. Having an affinity for Corvettes and Camaros, she “was attracted to it and looked at it.” She saw the driver of the Corvette. She was “absolutely sure” a woman was driving and a man was sitting in the passenger seat, turned “sitting three-quarters like this — toward the window.” The Corvette drove past her boyfriend’s vehicle and Dasalla did not see the accident happen. *13 When they came upon the scene, they stopped and parked for ten minutes. Dasalla saw the white minivan in the ditch and the Corvette in the median upside down. She also saw a body in the median. Dasalla remained in her boyfriend’s vehicle the entire time and did not talk to anyone at the scene. Dasalla’s boyfriend drove away when someone directing traffic told them to move on.
[¶21.] The habeas court found “Ramona Dasalla’s testimony to be credible, persuasive and compelling.” It further found that her “testimony that she saw a woman driving a red Corvette on Interstate 90 immediately prior to the accident in which Dorothy Finley died is accurate and true.” Based on Dasalla’s testimony, the testimony of the other witnesses, and the evidence presented at trial, the habeas court concluded that “Engesser’s evidence demonstrating his actual innocence is credible, persuasive, and compelling[.]” The court ruled that “Engesser has shown by clear and convincing evidence that the newly discovered evidence, in light of the evidence as a whole, would create reasonable doubt of his guilt in the mind of a reasonable juror.” The court granted Engesser’s request for a writ of habeas corpus based on SDCL 21-27-5.1 and based upon his freestanding claim of actual innocence under South Dakota’s constitution. The State appeals, asserting that a freestanding claim of actual
innocence does not exist in South Dakota and that the habeas court erred when it ruled that Engesser met the burden of proof under SDCL 21-27-5.1(1). 1 1 . Standard of review:
Habeas corpus is not a substitute for direct review. Because habeas corpus is a collateral attack upon a final judgment, our scope of review is limited. . . .
(continued . . .)
*14
1. Actual Innocence Claim under SDCL 21-27-5.1
In 2012, at the request of the Office of the South Dakota Attorney
General, the Legislature amended the code on habeas corpus.
See
S.D. Sess. Laws
ch. 118, § 6. It repealed SDCL 21-27-16.1, which governed when an applicant could
file a successive petition for a writ of habeas corpus.
Id
. Before SDCL 21-27-16.1
was repealed, this Court had interpreted it to require an applicant to show
reasonable cause why the successive claim could not be brought in the original
petition and “[a]ctual prejudice resulting from the alleged constitutional violation.”
See Jackson
,
(. . . continued)
Habeas corpus can be used only to review (1) whether the court had jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) in certain cases whether an incarcerated defendant has been deprived of basic constitutional rights.
Loop v. Class ,1996 S.D. 107 , ¶ 11,554 N.W.2d 189 , 191 (citation omitted). Statutory interpretation is a question of law reviewed de novo. Perdue, Inc. v. Rounds ,2010 S.D. 38 , ¶ 7 n.2,782 N.W.2d 375 , 377 n.2. The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. City of Rapid City v. Anderson ,2000 S.D. 77 , ¶ 7,612 N.W.2d 289 , 291-92 (citations omitted). The intent of a statute is determined from what the Legislature said, rather than what we think it should have said. Id. Words and phrases in a statute must be given their plain meaning and effect. Moss v. Guttormson , 1996 S.D. 76, ¶ 10,551 N.W.2d 14 , 17 (citations omitted). In interpreting statutes, we presume that the Legislature did not intend an absurd result. Id.
Esling v. Krambeck
,
A claim presented in a second or subsequent habeas corpus application under this chapter that was presented in a prior application under this chapter or otherwise to the courts of this state by the same applicant shall be dismissed.
Before a second or subsequent application for a writ of habeas corpus may be filed, the applicant shall move in the circuit court of appropriate jurisdiction for an order authorizing the applicant to file the application.
The assigned judge shall enter an order denying leave to file a second or successive application for a writ of habeas corpus unless:
(1) The applicant identifies newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the applicant guilty of the underlying offense; or
(2) The application raises a new rule of constitutional law, made retroactive to cases on collateral review by the United States Supreme Court and the South Dakota Supreme Court, that was previously unavailable. The grant or denial of an authorization by the circuit court to file a second or subsequent application shall not be appealable.
Id. This case implicates subsection (1), and before we address the merits of the habeas court’s decision, we review the court’s conclusion that SDCL 21-27-5.1(1) gave Engesser a right to obtain habeas relief. The State contends that the Legislature did not intend to create an
independent means of habeas relief when it enacted SDCL 21-27-5.1(1). Rather, the
State believes the Legislature created a “gateway” for an applicant to have an
otherwise-barred successive habeas corpus claim considered
if
the applicant could
also show that, but for a
constitutional error
at trial, no reasonable juror would have
*16
found him guilty based upon the newly discovered evidence. As support, the State
points to the companion federal rule, a rule the federal courts have consistently
interpreted to require
both
newly discovered evidence
and
a deprivation of a
constitutional right due to a trial error.
See
28 U.S.C.A. § 2244(b)(2);
McQuiggin v.
Perkins
, ___ U.S. ___,
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless--
. . .
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
2.
Although it must be noted the Court also wrote that “a truly persuasive
demonstration of ‘actual innocence’” in a capital case where there was “no
state avenue open to process such a claim,” would be unconstitutional.
Herrera
,
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C.A. § 2244(b) (emphasis added). No similar requirement exists within SDCL 21-27-5.1(1) or the remaining statutes governing successive petitions for habeas relief.
[¶26.]
Nonetheless, the State argues that the only reasonable interpretation
of the Legislature’s intent is that a petitioner must identify a constitutional error in
addition to newly discovered evidence. This interpretation, the State believes, is
necessary because habeas corpus is only available “to review (1) whether the court
has jurisdiction of the crime and the person of the defendant; (2) whether the
sentence was authorized by law; and (3) in certain cases whether an incarcerated
defendant has been deprived of basic constitutional rights.”
See Lawrence v. Weber
,
statutes passed by our Legislature.”
Haase v. Weber
,
Legislature gave a habeas court the authority to consider the merits of successive
petitions for a writ of habeas corpus if the petitioner brought forth newly discovered
evidence that, if proven and considered in light of the other evidence, clearly and
convincingly established that no reasonable fact finder would have found the
petitioner guilty of the underlying offense. It would be a usurpation of legislative
prerogative to hold that after a habeas court rules a petitioner met the statutory
requirements to file a successive petition, that the court must nonetheless dismiss
*19
the petition because the petitioner failed to also identify a constitutional error. The
Legislature did not impose this requirement, and we should not read it into the
plain and unambiguous language of SDCL 21-27-5.1(1). 3
See State v. Wilson
, 2004
S.D. 33, ¶ 9,
2. Engesser’s Petition for a Writ of Habeas Corpus
The State next contends that the habeas court erred when it concluded
that Engesser’s newly discovered evidence, if proven and viewed in light of the other
evidence, established by clear and convincing evidence that no reasonable juror
would have found Engesser guilty. Moreover, the State argues that this Court
should not employ its traditional clearly erroneous standard of review against the
habeas court’s factual findings, because the “weight of the interests at stake”
3.
Several states have allowed a freestanding claim of actual innocence by
statute. Ariz. R. Crim. P. 32.1(h); Ark. Code Ann. §§ 16-112-201, -208; Del.
Code Ann. tit 11, § 4504; D.C. Code § 22-4135; Me. Rev. Stat. Ann. tit. 15 §
2138(10); Md. Crim. Proc. § 8-301; Minn. Stat. § 590.01; Ohio Rev. Code Ann.
§ 2953.21; Tenn. Code Ann. § 40-30-117; Utah Code Ann. § 78B-9-301; Va.
Code Ann. § 19.2-327.10. Other states have recognized such a claim by case
law.
See In re Bell
,
warrants a heightened level of review. The State asks for an independent and scrupulous review of the evidence and an affirmance only if the decision is supported by substantial evidence.
[¶30.]
We find persuasive the Connecticut Supreme Court’s analysis in
Miller
v. Commissioner of Correction
, which examined the standard of review appropriate
for a habeas court’s factual findings on a claim of innocence based on newly
discovered evidence.
See
supported by substantial evidence, we will not reweigh the evidence and substitute
our judgment for that of the court.
See Olson v. City of Deadwood
,
[¶32.] From our review of the record, we conclude that there was adequate support for the habeas court’s finding that Dasalla was a credible witness. Although the State insists that Dasalla could not be found credible because, among other things, she falsely denied meeting with Engesser’s attorneys, she materially changed her testimony on what she saw, and she denied seeing a photograph of Finley with short hair, the habeas court listened to Dasalla testify and heard the discrepancies and inconsistences highlighted by the State’s cross examination. The court emphasized that despite the inconsistencies on certain details, Dasalla maintained that she saw a woman driver and a male passenger. Moreover, the court found relevant that Dasalla had no connection to Engesser or this case. She came forward after reading a news article about Engesser’s petition for habeas relief. The court viewed Dasalla’s testimony in light of the other evidence, and specifically found her to be “credible, persuasive and compelling[.]” Finally, the court found that “Dasalla’s testimony that she saw a woman driving the red Corvette on Interstate 90 immediately prior to the accident in which Dorothy Finley died is accurate and true.” The State next contends that the habeas court improperly considered
Syverson’s testimony, because his testimony was not newly discovered under SDCL
21-27-3.3(4). But our law permits consideration of this testimony. SDCL 21-27-
*22
5.1(1) specifically directs the habeas court to consider the newly discovered evidence
(Dasalla’s testimony) in light of the other evidence (all trial evidence and evidence
from all habeas proceedings). Even under federal law, as the Supreme Court noted,
“the habeas court must consider ‘all the evidence,’ old and new, incriminating and
exculpatory, without regard to whether it would necessarily be admitted under
‘rules of admissibility that would govern at trial.’”
House
,
[¶34.] Lastly, the State contends that even if this Court considers all the evidence, “Engesser has failed to produce unquestionable (clear and convincing) proof that he is actually innocent.” The State explains in great detail why the testimony of Eckholm, Fowler, Syverson, and Dasalla is inherently unreliable and could not overcome the persuasive physical evidence of Engesser’s guilt presented at trial. In the State’s view, Engesser’s petition is “based solely on the fuzzy, decade- old memories of (allegedly) newly-identified eyewitnesses who exhibit bias and whose testimony contradicts the physical evidence.” We must acknowledge the reality that Engesser was found guilty by a
jury of his peers in an error-free trial, and therefore, no longer enjoys the
presumption of innocence.
See Herra
,
Trooper Fox, who based his testimony on his examination of the Corvette, the
reported position of Finley’s body and her injuries, his belief that Engesser was
lying, and his three years’ experience with the South Dakota Highway Patrol. Yet
Trooper Fox did not arrive at the scene until after Finley had been removed from
the car and Engesser was transported to the hospital. In Engesser’s trial, the jury
4.
In
Beach
, the Montana Supreme Court, applying de novo review, reversed a
district court’s grant of a new trial because the judge considered only the new
evidence, which by itself was compelling, but when considered with all the old
evidence presented in the 1984 trial, including the petitioner’s confession, did
not provide reliable proof of actual innocence.
heard testimony from Mary Redfield that when she arrived on the scene, she found the driver’s-side door of the Corvette open. But the testimony from Smeenk suggested otherwise. Smeenk arrived at the scene immediately after the accident. He had to pry the driver’s-side door open to check Finley’s pulse. After confirming that she was not alive, he left the scene before talking to law enforcement officers because he had his daughters in his car.
[¶37.] At trial, Trooper Fox testified about his investigation of the accident scene and opined that the location of the driver’s seat would have comfortably fit Engesser not Finley. But Trooper Fox initially wrote in his report that Finley was the driver, which to the habeas court was consistent with Eckholm’s testimony that Eckholm used the words “she and her” when giving his statement to Trooper Fox on the night of the accident. Additionally, at trial, the state’s forensic expert could not give an opinion on whether Finley was the passenger or the driver. Another expert testified that it was possible for a driver to get thrown around in the vehicle and end up in the passenger seat. Further suggesting that Engesser was ejected out of the passenger window, Eckholm and Fowler testified to seeing Engesser ejected from the vehicle before it rolled in the median. Finally, Syverson and Dasalla testified that moments before the accident they observed a woman driving the Corvette and a man in the passenger seat. “Punishment of the innocent may be the worst of all injustices.”
Jenner v. Dooley
,
[¶39.]
Because we uphold the grant of Engesser’s writ of habeas corpus and
order for a new trial under SDCL 21-27-5.1(1), we need not consider whether a
freestanding claim of actual innocence exists under the South Dakota Constitution.
Moreover, although the State contends that the habeas court erred when it failed to
give the State unfettered access to attorney Hyman’s file, the State abandoned that
claim when it failed to set the motion for a hearing. The court did not address the
merits, and therefore, there is no decision for this Court to review.
See In re
Regennitter
,
WILBUR, Justices, concur.