Lien v. Class

601 (9) аny awarding in only Take or consent to action Bank 17% of its preference or confers a on the fees. Bank benefits did address this issue in its financial institution. brief. have often stated that We “[f]ailure authority cite supporting appellate comply brief you If find the failed to with Bank 15-26A-60(6) violates SDCL and the operating procedure, then waives this standard issue before this Court.” In re Application and is a such failure constitutes bad faith Widdison, 671, (S.D.1995) good of the covenant faith 589 N.W.2d 675 breach dealing. (Emphasis original.) (citing Tufty Kostel Funeral Home v. fair Duke Co., (S.D.1986)).6 393 N.W.2d pro- rejected The trial court [¶ 18.] posed proposed by instruction as aswell one Affirmed. [¶ 21.] Bank in favor of its The own instruction. provided

jury instruction the trial court SABERS, AMUNDSON, states, part: in relevant GILBERTSON, JJ., KONENKAMP and However, information, recommendations or concur. requirements the contract between the by you bank SBA be considered allegation on

as to of defendants of whether

issue there was a breach plaintiff between

contract and defen- good

dants covenant of faith and fair

dealing any or negligent misrepresentation alleged by defendants. 1998 SD 7 clearly This instruction states that the con- Larry LIEN, Applicant Garrett tract between Bank and SBA to be Appellant, in determining considered faith” “bad issue. There was evidence at tri- introduced v. specifically al that laid out these standard CLASS, Joseph Warden of the South operating procedures of the SBA Driers Penitentiary, Dakota argue jury. were allowed to this to the Appellee. provided by instruction the trial court ade- quately jury proper instructed the as to the No. 19953. law to consider. We that Driers conclude jury have failed meet their burden. The Supreme Court of South Dakota. given opportunity Driers’ decide Argued Oct. 1997. given claim with instruction and failed to return a verdict in their favor.5 Decided Jan. 1998. III. court Whether trial Rehearing Denied Feb. 1998. awarding erred Bank 17% of requested attorney

its fees. 20.] Bank of review filed notice

on the issue of whether the trial court erred argues proposed appealed also Bank instruction 6. Driers also have issue of whether on of Driers this issue is with South inconsistent the trial court- was error for to award environ Bank, agree law. We Dakota as Driers' Bank, clean-up mental costs to when Driers had proposed instruction states that violation SBA property argued sold the "as is.” Driers never operating procedures per standard faith is “bad against оbjected awarding these costs to the se.” This is not the law and the instruction them at the court level. This Court trial will provided by accurately the trial stated court court, not raised to the address issues trial law this issue. We have “bad on held that faith" they Gesinger, Gesinger waived. are deemed jury. is to be determined v. United Kunkel (S.D.1995) (citing 531 N.W.2d Fullmer Co., 116, 122, Sec. Ins. S.D. 168 N.W.2d Co., (S.D. State Farm Ins. (1969). proposed Driers’ instruction would Enter., Inc., 1994); Triple Hepper v. incorrectly making U jury tie the hands of the (S.D.1986)). "bad faith" determination. n. 3 Archer, Hagen, &

Rita Allen Wilka Falls, applicant appellant. Sioux for and Barnett, General, Timothy Attorney Mark General, Bartlett, Pierre, Attorney Assistant appellee. for GILBERTSON, Justice. Applicant appellant,

[¶ Garrett Lar- 1.] (Lien), ry alleges guilty plea prior his involuntarily was as a result of his entered alleged counsel’s ineffective assis- defense failing properly investigate a tance in mo- failing tor and in to retain an vehicle accident expert. reconstruction Lien also accident prosecution failed dis- contends exculpatory denying close him evidence thus process appeals due of law. Lien from an ordеr Circuit entered Third Judicial denying petition his of habeas cor- writ pus. affirm. We FACTS AND PROCEDURE 11, 1995, “teen” August a dance [¶ On 2.] country near Lake being was held at club Watertown, Kampeska in South Dakota. Lien, present was the owner age of a drive Chevrolet Blazer 1972 four-wheel approximately its roof removed. At had p.m., country exiting after club in kind of criminal proceeding. Holger- 10:20 lot, the careened off of a parking Blazer son’s of the accident consisted ear, then over. parked rolled Adam reviewing photographs, accident scene wit- (Dailey), passenger Dailey age then statements, police reports, grand ness jury seat was the vehicle. the rear thrown clear testimony, videotaped and a interview with first observers on the found Lien scene Dailey. addition, he interviewed certain (West) pinned West beneath the and Joshua argued witnesses and filed numerous Bystanders driver’s side of the Blazer. were motions, including suppression motion. pull enough to lift the Blazer Lien out able did not interview all the However, from under the vehicle. West witnesses, prosecution did not show some of not be removed as a result could and died Lien, photos the actual accident and did injuries. It was later determined all videotaped not show interview to occupants three had consumed alcohol before However, Lien.2 the habeas court found Hol- bag At hospital the accident.1 of mari- gerson discussed the contents of these exhib juana fell out of Lien’s shorts. depth” its and materials “in with Lien as well claims, injuries, due to accident grand jury transcript. context of the he does remember whether he was driv- but against considered decided However, ing. Dailey, who interviewed hiring an accident reconstruction be police night of the accident he felt cause the best case pit scenario would following day, the stated that Lien was driv- expert against his the State’s and ing the Blazer at the of the time collision. Dailey, eyewitness. the accident Hol- testified, oath, also Dailey under before a gerson and Lien of discrepancies were aware some County Jury Codington Grand that Lien was Dailey’s 3 with account of the accident. driving at the time of the accident. However, Holgerson felt that Dailey was 30,1995 Lien August was on [¶ 4.] indicted strong credible and would be a witness who homicide, charge on a of 22- vehicular SDCL successfully impeached could during a 16-41, possession and of more than one trial.4 pound but less than ounce one-half of mari- Holgerson juana. [¶ 6.] testified he had three to independently SDCL 22-42-6. Lien meetings Lien professional discussing the four with retained services of an attor- the leading up ney, Holgerson repre- plea. Albert State’s evidence to the (Holgerson), against Lien’s charges. present percent sent him these The father was 50 to 70 record of that Holgerson experience reviewing indicates had the time.5 After certain evidence defending consent, obtaining vehicular eases and Lien his Holger- homicide had with and successfully defended most plea negotiations his recent client son entered into with the Laboratory 1. South The Dakota State Health dent itself but did remember that Lien was driv- ing. Dailey of Lien’s tests blood and urine indicated a blood was not aware that Lien had been presence drinking level Dailey alcohol and of .174% mari- before entered the Dai- Blazer. juana. Hospital ley Prairie Lakes also conducted also stated did not that he remember if the on, on Lien’s headlights leaving tests blood and urine and indicate that Blazer’s were but while his blood alcohol level clearly parking .40% and do not was lot told West had Lien to turn them presence marijuana. indicate the Dailey De- grand jury on. testified before a on Au- disparity spite they between blood tests gust 1995 and stated that he was aware that drinking that Lien do show was alcohol. drinking Dailey Lien had been "a lot" before entered the Blazer. Dailey positive marijuana also tested for alcohol level blood was .031%. West had a attempting impeach Dailey, In 4. to find a basis to blood alcohol level. .11% Holgerson subpoena went so far as to from the School, High Watertown “all school Holgerson prior records for 2. testified that at all times to the Dailey, including Adam but guilty, not limited to all taped interview actual records, guidance academic possession police counselor records Dailey remained in the it, allowed detention records.” who to view but did.nоt provide copy. him with that, day 5. Lien’s father on the testified after the accident, August videotaped Dailey 3. interview he had a conversation where driving. stated that he did not the acci- stated he did not if Lien remember remember was inef- proved suc- Lien claimed that negotiations 1996. Holgerson’s State. failing agreed properly to recommend a and the State fective cessful ve- imposition for the of sentence doubt on suspended which could have cast accident is un- charge. The record homicide Blazer. hicular Lien was whether the driver agree- to the exact date when ineffectiveness, clear as argued, resulted This Lien the State and was finalized between ment involuntary plea Lien further guilty. Lien. ex- that the failed to disclose claimed State denied culpatory evidence. The habeas court January on was sentenced petition for Lien’s relief. Holgerson presented mitigating 1996. Anony testimony through Alcoholics Lien’s appeal Lien’s issues are: on rehabili sponsor who stated Lien’s mous Holgerson’s 1. Whether that he felt were sincere and tation efforts constitutes assistance ineffective in would “make it.” The State that Lien counsel? suspended imposition the court that a formed charge for the homicide volun- guilty plea of sentence vehicular* 2. Whether Lien’s to be our tary? “continues recommendation.” agreement explained it State had made his bur- Whether has sustained consulting parents, who after Joshua West’s proof pros- den of his claim that having indicated some reluctance about exculpatory failed ecution to disclose brought a trial. The then out endure process? evidence violation due such as aggravating several factors Lien’s occupants age in relation the Blazer’s AND STANDARD OF REVIEW SCOPE drinking that he

the fact had been had possession. marijuana in his On other reme We must first note the hand, the the court that Lien State informed nature of dy proceeding in a habeas man, weighs young I think that ... is “a judgment, attack final there a collateral on a urged and that Lien not be to his benefit” fore, ‍‌​‌‌​​​‌​​‌​‌‌‌‌​​​‌‌​​‌‌‌‌‌‌‌‌​‌‌‌‌‌​​​‌‌​​‌​​​‍scope of Black v. our review is limited. prison. had informed sent to Mr. West the Class, 22, not 1997 SD 560 544. It is N.W.2d prison that Lien should not be sent Class, Loop for v. a substitute direct review. punished way but should be in some other ¶ 107, 11, 189, 191. 1996 SD 554 N.W.2d jail marijuana posses such as time for the corpus Habeas can to review be used sion. The trial a factual basis for court found (1) jurisdiction of whether court had guilty plea6 to follow the but refused defendant; the person the crime and of the suspended impo State’s recommendation for (2) whether the authorized sentence was Rather, sition of sentence. it sentenced Lien (3) law; eases, by in certain whether years to 10 in the Peni South Dakota State an incarcerated has been de- defendant tentiary, suspended.7 years with four Addi prived rights. basic For of constitutional tionally, upon Lien was ordered to release purposes corpus, of constitutional habeas days years on 180 probation serve five deprive in a criminal case violations Codington County Detention Center ' jurisdiction trial court of possession marijuana. ¶ Black, 4, 22 at petitioned 1997 SD at 560 N.W.2d 546 for a writ of habeas 2, corpus Leapley, a 521 N.W.2d hearing (quoting was held on October St. Cloud v. necessarily challenge 6. Lien did not the factual basis estab- isn't indicated, what thе Court will do?” by by accepted lished the State the court “yes." at that it The court stated trial Further, arraignment. the November the failure following the of coun- was not recommendations a trial court to establish a factual basis does privileges driving Lien’s had been re- sel as: jurisdictional pro- not reach the constitutional or accident; time of Lien took beer voked at the necessary portions bring question within question night on the without his father’s scope Leapley, corpus. v. habeas Petrilli minors; permission; two Lien’s Lien was with 79, (S.D.1992). N.W.2d 82 491 record, prior which an accident where included DUI; initially charged and Lien's he was Lien, you specifically 7. The court do asked "And pattern of alcohol abuse. understand ... what the State recommends

607 (S.D.1994) (St III) (internal 118, Lockhart, 52, 366, 121 Cloud 474 U.S. 106 S.Ct. 88 omitted)). (1985).” Lockhart, citations L.Ed.2d 203 Cox v. 970 (8th Cir.1992). standard, F.2d 448 Under this petitioner The habeas has 1) petitioner the burden is on the to show prove preponder initial a burden performance deficient, that counsel’s he is ance evidence that entitled to 2) petitioner prejudiced the defi Zerbst, 458, 469, Johnson v. 304 U.S. relief. performance. Addressing cient part the first 1019, 1461, 1025, S.Ct. 82 L.Ed. 1469 58 test, performance, of the Strickland deficient (1938); ¶ 14, Loop, 107 at 1996 SD 554 have we stated that: 191; Eagle Leapley, at v. N.W.2d Two 522 ‘When a complains convicted defendant (S.D.1994). 765, 768 N.W.2d habeas assistance, the ineffectiveness counsel’s given factual findings court’s are “considera the defendant show must that counsel’s ble deference” and we will reverse these representation objective fell below stan- findings they clearly unless are erroneous. Strickland, dard of reasonableness.’ 466 III, 121; at St. Cloud McCaffer 687-88, 2064, U.S. at 104 S.Ct. at 80 Solem, 590, (S.D.1989) v. ty 449 592 N.W.2d L.Ed.2d scrutiny at 693. ‘Judicial of coun- denied, McCafferty Leapley, cert. v. 503 U.S. performance sel’s highly must be deferen- 911, 1277, (1992); 112 117 L.Ed.2d 503 S.Ct. 689, tial.’' Id. at 104 at 80 Solem, (S.D.1988), 425 Satter N.W.2d L.Ed.2d at 694. ‘Because the difficul- denied, Satter, cert. Rist v. 490 U.S. making evaluation, ties inherent (1989). 2432, 104 109 S.Ct. L.Ed.2d court indulge strong presumption must a defendant [¶ 12.] Whether has re that counsel’s conduct falls within the wide pres ceived ineffective assistance of counsel range professional of reasonable assis- question Lykk ents mixed of law and fact. tance; is, the defendant must over- Class, en 1997 SD N.W.2d 302 that, come presumption under the cir- (1997). clearly In the absence of errоneous cumstances, challenged might action determination, we defer to habeas court’s considered strategy.’ sound trial Id. at findings what regarding of fact counsel did or 104 S.Ct. at L.Ed.2d at 694- do, did but we substitute our own Louisiana, (citing Michel v. judgment “as to whether defense counsel’s 91, 101, 100 L.Ed. - actions inaction’s constituted ineffective (1955)). Lykken assistance counsel.” 1997 SD 29 Eagle, (quoting Two at 768 Pri ¶ 6, 561 (quoting N.W.2d at 304-05 Aliber (S.D. 265, Leapley, meaux v. 502 267 N.W.2d Solem, 638, (S.D.1988)). v. 428 640 ti 1993)). prong the second Strickland of AND ANALYSIS DECISION prejudice petitioner. test concerns the Holgerson’s [¶ 13.] Whether investi- cases, In many guilty plea “preju- the gation constituted ineffective assis- inquiry closely dice” will resemble the in- tance of counsel? quiry engaged by reviewing in courts inef- adopted challenges This has [¶ 14.] Court the fective-assistance to convictions test to through example, Strickland determine whether a de obtained a trial. For fendant received effective assistance of coun where the alleged error counsel is a VI, guaranteed § by potential- sel as Article 7 failure to of the discover Solem, evidence, ly exculpatory South Dakota Constitution. Luna v. the determinatiоn 656, (S.D.1987); 411 N.W.2d whether “prejudiced” 658 Woods v. the error the defen- Solem, (S.D.1987). 59, plead by causing guilty 405 N.W.2d dant him to 61 “The rather applies evaluating go depend than standard claims of to trial will on the likeli- challenges discovery assistance counsel hood that ineffective evidence would guilty pleas change is the same standard set forth have led counsel to his recommen- assessment, Supreme v. plea. Court Strickland dation as to the This Wash 668, 687, turn, large part predic- 466 104 ington, depend U.S. will on a (1984). likely tion L.Ed.2d Hill v. whether the evidence would limited to a consideration wheth- of a trial. Simi- review is the outcome changed have for con- alleged Holgerson of counsel is er had a reasonable basis error larly, where po- of a sufficient cluding investigation the defendant that his a failure advise plead guilty. to the crime defense that Lien We tential affirmative to recommend “prejudice” leading up resolution of the charged, the “consider all the circumstances” depend largely on whether inquiry challenged will to determine to counsel’s conduct likely suc- would have Eagle, affirmative defense Twо they whether were reasonable. ceeded at trial. at 770. 522 N.W.2d Hill, at 106 S.Ct. at v. Lien’s reliance on Thomas [¶ 18.] omitted) (citation (emphasis at 210 L.Ed.2d (8th Cir.1984), Lockhart, 738 F.2d 304 added). proposition that defense counsel’s failure to Strickland, Subsequent to [¶ 16.] outside the files conduct an analysis scope was refined to focus per prosecuting to be se ineffec determination, “solely mere outcome with tive, on unpersuasive applied when to the is attention to whether the result out Thomas court did facts of this case. The unfair, fundamentally or un proceeding for, counsel find ineffective assistance of ” Fretwell, 506 U.S. .... Lockhart v. reliable reasons, among counsel’s fail other defense 838, 842-43, 364, 369-70, three witnesses whose ure to contact alibi 180, 189; Loop, see also 1996 SD L.Ed.2d supplied by the defendant.8 Id. names were ¶ 189; Hopfinger 107 at However, clearly court distin the Thomas (S.D.1994). Leapley, 511 N.W.2d guished holding from cases such as Lien’s its provide “in which the did not coun defendant Lien contends that Hol- easting on any sel with information doubt performance was and that gersoris deficient portrayed by prose events as the files of invоluntary entering this resulted Lien (citations omitted). cuting attorney.” Id. Decoster, guilty. See United States Lien testified that he could not remember (D.C.Cir.1976) (“Holding a anything concerning the As a re accident. claim of failure to interview witness sult, provide any he could not abstract, impressive in the but it can sound casting identity information doubt ineffective when the establish assistance of the driver of his Blazer which would re person’s fairly account otherwise known stringent quire him to conduct a more inves counsel.”). Specifically, con defense tigation. properly in failed to tends vestigate of the files of the accident outside agree We with the habeas court that prosecuting attorney Hol- and therefore Holgerson’s investigation of the accident and gerson functioning was not as “counsel” plead subsequent recommendation that Lien guaranteed Amendment to Sixth performance. guilty falls within reasonable by Article the United States Constitution and Holgerson’s investigation of inter- consisted VI, § 7 Dakota of the South Constitution. viewing two witnesses who were near the performance of counsel in Reasonable scene, statements, reviewing accident witness facts, adequate investigation cludes an of police reports, grand jury testimony and the theories, and consideration of viable devel case, Dailey every As in criminal video. opment support those theo of evidence to shaped by Holgerson’s investigation was ries. An must make a reasonable from the his evidence he received State-and investigation preparing in a case or make only eyewitness to the accident client. partic to reasonable decision not conduct Dailey, who identified Lien as the driver was investigation. ular scene, police officer police to a officer at the Lockhart, day hospital, police to a officer the Foster v. 726 at the omitted). (8th Cir.1993) (citation accident, Thus, grand jury. Hol- after the and to a our 8. be because of racial supporting Other that a trial would "futile” factors ineffective assistance giving counsel prejudice; included: the defendant counsel's reluctance to and defense family impression his that defendant would aspect. interracial handle the case because of its innocence; prove telling have to defendant his Dailey to lie Lien next [¶ 21.] felt that had no motive contends that gerson Holgerson’s in to retain an any inconsistencies his account failure accident re expert Holger- construction constitutes as easily explained. be ineffective could accident sistance of counsel. As we anything not with noted in Fast son testified he could find Horse, reasonableness impeach Dailey “The of a not at trial.9 decision which to judged

to is to be to according the circumstances each great case with specifics Concerning [¶ 20.] to given attorney’s deference decision.” Holgerson’s investigation, Lien claims that (citation omitted). at 106 N.W.2d This wit Holgerson’s failure to interview several recognized Court has often that it is not our in order to establish Lien’s habit of nesses “second-guess function to the tactical deci others drive after he drink ‍‌​‌‌​​​‌​​‌​‌‌‌‌​​​‌‌​​‌‌‌‌‌‌‌‌​‌‌‌‌‌​​​‌‌​​‌​​​‍letting had been sions” of defense counsel and we will performance. It ing constitutes deficient is “substitute own judgment [our] theoretical important to note that reasonableness “[t]he III, for that of counsel.” St. Cloud of counsel’s actions be determined or 129; State, N.W.2d at Miller v. substantially influenced the defendant’s (S.D.1983) McBride, (citing State v. Strickland, or own statements actions.” (S.D.1980)). 104 S.Ct. at 80 L.Ed.2d at U.S. Holgerson him 695. testified that Lien told Holgerson testified that he did exception that one ... he allow “with didn’t hire an accident reconstruction be- others to drive his vehicle ... the last [in cause, year 18 months accident].” before the I thought dangers try- there were real Further, Holger- that testified he told ing a technical ease front of a Codington quite evening son “I drank a bit” that County jury eye where we had an witness request West’s earlier to drive. had refused I think I successfully who didn’t could Holgerson young two testified he talked “to However, impeach. going before sitting who people had seen behind [Lien] stage, agreed [the next State] to recom- steering Country wheel Club [be imposition suspended mend a of sentence. Although the accident.” Bradber- fore] Shad added). (Emphasis ry right that testified before trial was sched Holgerson experienced was an crim- Holgerson he had told he drove uled lawyer inаl trial who was a resident of “quite when Lien’s vehicle a few times” County in the trial would He which be held. drinking, Holgerson had been concluded type jurors was with what familiar would practice actual Lien’s was not to allow others jury panel. in the If found his car. Particularly, drive as a result of proceeded his to trial client based on their own concerning driving Lien’s statements “expert” defense knew that practice, Holgerson’s Lien’s have substantial State would evidence habit and custom was not We deficient. overcome it: Holgerson’s investigation conclude Lien’s habit and custom under ear was sufficient 1. It was Lien’s that was involved accident; the circumstances.10 rationale, points arise from First it same Two this video. was 10. Under the Lien's claim that Holgerson’s to interview day giving failure witnesses who conducted the after the accident Dai- shortly after arrived the accident was deficient ley any story time and it little to fabricate prejudiced equally unpersuasive. him is At giving made at the same time the same testimony there the habeas trial that both investigating version facts to other officers Lien and came tо rest on the West driver’s side Second, driving. preserved as to who was upper approximate with extremities West's given in which the manner interview was alignment steering wheel. At the time only Holgerson Dailey not allow to conclude was accident, of the none the roll-over Blazer’s believable, but also the court who habeas trial occupants Predictably, were restrained. at the concluded, the video "he viewed and came conflicting expert was habeas trial there ny testimo- across candid and at ease. There no motiva- was driving as to was the Blazer. has who tape tion for him to lie.” A review of video the proof showing burden of that sustained his contrary lead us does not to conclusion. every plea interviewed had witness his changed. would have recommendation disprove jurors who Lien to Dailey endear testimony of Adam direct 2. The acts; illegal these other witness driving. No Lien was that testify to the con- Lien would including for Lien would expert (Lofgren) 6.An were minor inconsis- trary. there While subject that he was obviously be to attack ac- Dailey’s descriptions of the tencies testimony while the being paid for his investigating cident, consistently he told not and that the eye witnesses were State’s that time of the accident near the (cid:127) officers the’ accident scene. expert had not been at taped The video the driver. Lien was fact, Lofgren at his habeas testi- expert Dailey Holgerson stud- which interview of person- that he had mony failed to indicate Holgerson to conclude length led at ied Dailey any or of the wit- ally interviewed could not be bro- Dailey credible and was Given all the nesses to the accident.12 The habeas trial court on the stand. ken that, above, conclusion Lofgren’s “[t]here’s finding, tape agreed and viewed being nothing supports that Mr. Lien at as candid and “[Dailey] came across questionable at best. the driver” is for him not motivation There was ease. not to hire an Holgerson’s decision [¶24.] contrary was witness to lie.” The sole by Lien’s expert trial was influenced before Dailey claimed admit- Lien’s father who attempt get suspended to instructions not remember him could ted to Strickland, imposition. 466 U.S. at See driving. Being the father the who was (coun- at 80 L.Ed.2d at 698 obviously defendant, this evidence or substan- actions can be “determined sel’s State on the open to attack tially by defendant’s instructions influenced” bias; grounds of statements). trial proceeded If Lien testimony other indi- of two 3. The direct $15,- years a maximum of 15 and a he faced Holgerson they “had seen viduals who told fine, both, homicide or on the vehicular sitting steering wheel behind the [Lien] county jail charge year in the and a Country accident.” [before] Club posses- on the thousand dollar fine or both Dailey, persons with no Thus with three marijuana charge. sion of put Lien could bias motive to fabricate only pertinent references to the just own vehicle behind the wheel of his in a timing specifics plea of the is found accident;11 prior to the at colloquy between Holgerson with one 4. Lien admitted to Habeas: exception Lien had been drink- that when [Holgerson] [Lien] I discussed with ing, allow others to drive his “he didn’t pres- proposal. I think his father was Further, exception” oc- vehicle.” the “one percent perhaps 60 to 70 ent for prior year to 18 months curred between a my officе and meetings that had [Lien] accident; to the not, percent.... maybe maybe 50 proposal— that a But his father was aware presented to the 5. Evidence would be will, consensus, if you if that was a jury Lien had been there the intoxicated meaning stage the de- very got we consuming alcohol substantial —-we team and the defendant —where marijuana prior to the acci- fense amounts and a sus- prepared him to recommend dent were with State was and the minors who imp, would take that.... pended then we drinking also which would been had opin jurisdiction. challenged by by-expert The value of the testimony 11. never This proceeding expert either cross-exami- is no better than habeas ion of an witness nation or other witnesses. rise based. It cannot which facts (cid:127) proves nothing if its above its foundation Holgerson's view of the limited effect may prove little if not true. It factual basis is expert jury testimony on a is in would have credibility only partially of witnesses true. The evidentiary holdings on its accordance with our testimony evidentiary value of their and the value: jury. province solely within the falls long- begin We of this issuе from analysis Inc., (S.D. Bridge v. Karl’s premise accepted purpose omitted). 1995) (citations testimony jury trier fact is to as the assist supplant not a trial- and not to it. This state is exactly plea While it is not evident when through the Laboratory State Health which agreement State, was reached with the indicated a blood alcohol level of .174% and appears from the contents of the record that presence of THC.14 Lien has failed to Holgerson Lien had several discussions with show that the Prairie report Lakes is of plea. concerning the This falls well short of exculpatory sufficient value so as to under Lien’s burden to establish his claim that the mine the reliability confidence of his plea agreement day was not made until the Hill, plea. 474 U.S. at 106 S.Ct. at Cf. point, Holgerson set for trial and thus at that 370, 88 (prejudice L.Ed.2d at 210 may be already should have retained an through prediction found as to whether Johnson; expectation of Loop; trial. likely “the evidence would changed have Eagle, swpra. Two trial”). outcome of a require [¶26.] We do defense perfect [¶28.] With the benefit of hind- experts cоmplete counsel to retain a full sight, Holgerson may testified that he have investigation plea recommending before things done some represent- different while assumption his client. Such blanket would However, ing Lien. nothing there is in the run purpose plea bargain counter to the ing. indicating Holgerson record that Under the facts and would circumstances of have Holgerson’s this case decision not to plea hire an altered his recommendation. Further- expert was more, reasonable.13 Holgerson even if had conducted type that Lien' believes he Holger- [¶ Lien also claims that 27.] have, should the evidence would not have son’s failure to show Lien the Prairie Lakes likely changed the outcome of a trial. Had Hospital reports medical constitutes ineffec they proceeded to trial the outcome of the Factually, tive assistance of counsel. trial would have been a conviction with Lien claim by was dismissed the habeas trial court up facing years imprisonment to 16 and sub- Holgerson who found had discussed the con stantial fines.15 depth” “in tents documents with Lien. asidе, reports This the Prairie Lakes showed

that Lien’s blood alcohol level was .40%. This guilty plea 2. Lien’s [¶29.] was volun- unlikely per result indicates that the test tary, knowing, intelligent. by formed Prairie Lakes was flawed. Nei being With it ther nor determined the State relied Instead, Holgerson’s representation report. deficient, Prairie Lakes the more re was not appear liable results to have been obtained Lien’s guilty plea claim that his was entered 13. The dissent important states that it was "incredible” for tive for THC. It is to note that the Holgerson’s the habeas court to "excuse” failure allege marijuana any State did not had influ- expert by concluding part to hire an that the driving ence on Lien’s of the Blazer. The State provided results of the test have corrobora- sentencing did recommend that the court consid- Dailey’s tion for version of the facts. Rather marijuana possession, consumption, er at the "incredible," being than the habeas court was time of the accident. correct. Pursuant to SDCL 23A-13-13 the State was entitled to the results of this test no matter charges 15.The dissent was con- fact, what its conclusion. rathеr than this stitutionally ineffective as he made a "decision being “hindsight” justification as claimed theory not to that Lien was not dissent, already the State had filed such a analysis the driver....” As the above makes days motion on November five clear, Holgerson exactly contrary did before discovery after Lien had filed and served his obtaining plea agreement sought by result Providing motion on the State. potential expert the State with Lien. The trial testimony habeas court concluded that that it was Lien that driving, coupled complaint with all of the other evi- Lien’s real was: State, possessed by dence would have made reality is that Lien entered into a legal position Lien’s which was found agreement very promising where he received a very posi- habeas trial court to be "a tion,” tenuous Now, sentencing recommendation. that the already more tenuous than it was. severely court sentenced him more than he alleges expected, Hospi- regrets agreement. Lien also that the Prairie Lakes wished or he negative tal test show he was for THC. The State Laboratory Health posi- tеsts indicate Lien was 612 possible for vehicular assis- the maximum sentence a ineffective

involuntarily as result of years.17 informed homicide as fifteen Lien substantially weakened.16 tance is sentencing that the habeas courts both this Hopfinger, stated As we [¶31.] Holgerson explained of the alternatives “totality circum- at look the will Court proposal. At the accepting plea the State’s plea was determining guilty if a stances” plea guilty Lien entered he was time his knowing intelligent. 511 voluntary, him, against aware of the State’s evidence upon v. Lien relies at 847-48. N.W.2d Dailey’s ver- including the inconsistencies Wahle: pos- of the accident18 and the maximum sion ‘circum- the shows Where record carefully sible sentence.19 The court also they time of the existed at the stances as thoroughly the constitutional described standards, judged by objective guilty plea, Boykin waiving. rights Lien would See impres- reasonably justified his mistaken Alabama, sion,’ to have must be held a defendant (1969). Furthermore, Lien was L.Ed.2d plea knowledge full of his without entered not under the influence of. medication involuntarily. consequences and the plea. аt the time he his drugs entered (S.D.1994) (quoting United guilty plea voluntarily and with entered his (3rd Crusco, 21, 24-25 States v. knowledge consequences.” “full of the omitted) Cir.1976) (citations origi- (emphasis Wahle, 521 137.20 nal)).' mis- Lien’s reliance Wahle the placed because defendants Wahle his 3. Whether Lien has sustained they allowed to proof claimed should be Crusco of claim that the burden in a they guilty pleas exculpa- mis- prosecution withdraw their because failed to disclose possible they tory faced. pro- the sentences . understood evidence of due in violation did not understand Lien does contend he cess? possible sentence. a beginning [¶ 34.] “[B]efore fact, analysis or not Brady of De to whether the Statement determine specific to Rights [the Constitutional and Waiver evidence must be disclosed

fendant’s by prosecution, Rights by Guilty correctly specified of we must de- defendant] of Plea Lohnes, Dalman, 18. See States F.2d 537 16. We must note that in State v. United (S.D.1984), (defendant's (8th Cir.1993) during N.W.2d 686 this focused on performance Court expectations defendant’s plea bargain” from “reasonable plea hearing with his after-the-fact inconsistent detеrmining whether he inyoluntariness plea). guilty claim of of guilty should have been allowed to withdraw bargained plea. for and received "stringent applied to 19. A more standard” is imposi- suspended State’s recommendation guilty plea has withdraw after sentence been becoming fully tion of sentence after aware that imposed prevent testing "to from a defendant plea agree- was the trial court not bound potential punishment, weight with and then ment. drawing plea unex if he the sentence finds Lohnes, pectedly 687 signed a Con- severe.” 344 N.W.2d at 17. Lien Statement of Defendant’s Rights Rights stitutional and Waiver of Plea of -88. Guilty Paragraph on November states: the statement Court, argument 20. At oral Lien for before this my fully I am satisfied with efforts attempted argue first time that the State handling defense counsel ... and his advice in good plea bargain comply did not in faith with its case, to, including, limited this but not suspended urge grant the trial court to against potential charge me. defenses to each imposition. As this not raised to the habeas me, my explaining these alternatives After court, Court, waived. trial nor briefed this it is me told the final decision default, Beyond procedural ‍‌​‌‌​​​‌​​‌​‌‌‌‌​​​‌‌​​‌‌‌‌‌‌‌‌​‌‌‌‌‌​​​‌‌​​‌​​​‍reading of a fair mine, gave and he time in which me sufficient comply with its the record shows State did decision, My as I have to make the decision. type pun- agreement asking and was some stated, guilty. is to enter a within the SDCL 23A-27-13 ishment confines of added). (Emphasis plea proceedings the At the court to and 23A-27-18.‘l which allows the trial great pains Lien under- trial court took to ensure days county jail order 180 in the as a condition signed. stood Statement Waiver he had imposition. suspended of a agreed proceeding At the Lien also habeas explained his alternatives. was not was West. that the evidence disclosed.” Officer McMahon stated in his termine (S.D. Solem, report v. 478 accident that he “found the ... Ashker of .arm 1990).21 sticking West out from underneath the vehi- report cle.” Officer Seim’s does not elabo- August During the 1995 [¶ 35.] of rate on the West upon location arrival. grand juror jury proceedings a asked grand Lien contends that the failure of the officers “definitely the State whether it was deter specifically to state that arm West’s was mined that ... Lien was driver of the sticking out of the sidе of driver’s the vehicle accident, through at the time of the vehicle justifies was “inexcusable” and relief. Per- responded testimony?” “through The State haps procedure the better would have been that, [Daily’s] testimony, going by we are for the carefully officers to more document yeah.” improper that it was contends the exact location West their arriv- Dailey’s rely testimony the State to on al.22 upper It is true that West’s extremities further that should the State have dis were located on the driver’s side of the Blaz- any exculpatory at closed evidence this time. Perhaps er. the officers failed to detail the contrary, jury grand only To the need location of there West since were no other prosecution’s an investiga side of hear persons judge in the to in vehicle relation to presented exculpa and need not be with tion .However, body. West’s under the circum- tory possession prose evidence in stances, specificity the officers lack of Williams, does United 504 cutor. States v. U.S. withholding (1992). not to exculpatory rise evi- 112 L.Ed.2d 352 118 dence. Our to to review record fails right A hаs no have evidence defendant any suppressed any reveal evidence the State him presented grand favorable to or her to a just evidence or Lien in jury, right testify any respect. as he deceived has no himself Id.', body. before such a see also United [¶ 37.] Affirmed. Isgro, v. States 974 F.2d (9th Cir.1992) (“In expansive fairly language, MILLER, C.J., and clearly rejects the

Williams idea that there KONENKAMP, J., concur. ‘objective’ ‘fair’ right a to such exists deliberations”). Thus, jury grand under the AMUNDSON, JJ., [¶ 39.] SABERS and circumstances, grand not error for the was in part part. dissent and concur in jury solely rely upon Dailey’s testimo ny. SABERS, (dissenting part Justice alleges concurring part). Lien also the first scene, officers on the Officers Seim and McMahon, officially report failed to [¶ 1. DEFECTIVE 40.] PERFORMANCE was found on the side of

West driver’s I dissent.23 Defense counsel’s Brady Maryland, deci vehicle violation of theory sion not to U.S. L.Ed.2d 215 (1963). arrived, driver, was not under these When the circum officers Lien had stances, already been from the constitutes ineffective removed vehicle assistance bystanders sitting on a near counsel and we should reverse. See was Foster (8thCir.1993): Lockhart, person lawn. The under the vеhicle passengers it is found 22. 21.If that evidence not disclosed All of the Blazer’s had been questions following and if the four can be an- thrown to the side. driver's affirmatively, process due swered the defendant’s rights have been a new trial violated and must agree majority opinion 23. I that the granted: officially police report failure of the the loca- Was 1. the defense unaware the evidence? Brady body give tion a of West’s does rise to 2. Is the to the evidence favorable defense? violation; however, join specula- do not I Is to the 3. the evidence defense? material why possible tion of the reasons this information request 4. Did the defense make for the ¶ supra omitted. See evidence? Black, ¶ 1997 SD 22 at omitted). (citations theory is pursue in- not to reason- a decision performance counsel Reasonable facts, investigation investigated when has not even adequate able counsel cludes an theories, Foster, and devel- of viable 9 F.3d at 726: viability. consideration its Cf. support theo- opment those of evidence Although give great generally we defer- make attоrney must a reasonable ries. An attorney’s strategic ence to an informed make a preparing case or choices, closely attorney’s we scrutinize partic- not to reasonable decision conduct preparatory activities. investigation. ular added) (Emphasis (citing Chambers v. omitted). (Citation Here, counsel did not (8thCir.) 825, 831, Armontrout, 907 F.2d 835 investigation of facts” adequate “an conduct (en banc), denied, 950, 498 U.S. 111 cert. upon could base a deci- which he “reasonable (1990)). 369, 112 L.Ed.2d 331 trial to defend at or bar- sion” whether claims he Holgerson 43.] also was con- [¶ gain. trying dangers cerned with “real a techni- gave a number of excuses Counsel Codington County cal case in front of a theory. pursuing for the “other driver” jury[.]” noted, Holgerson As did not know First, producing his concern that he stated testify, expert might to what so fear an his merely an reconstruetionist would accident testimony would be too “technical” is nev- pit expert against another. one Counsel Furthermore, unfounded. a review of the er an accident even consulted reconstruction testimony provided both Lien’s and any expert, havе what the nor did he idea experts proceeding habeas State’s for the conclude, expert might so it would be State’s testimony relatively demonstrates that impossible an in- for his “decision” to be confusing highly clear and not technical. judgment.24 formed fact, expert, Myron Lofgren In the defense attorney can make Before an a reasonable testified: strategic against pursuing choice a certain my In opinion, [the] I all of cases that wish investigation, line must ob- determining a I worked where driver was tain the facts needed to make that deci- question, was this straightfor- attorney’s “strategic sion. An choices straightforward simply ward. And it’s be- complete investiga- after than made less cause it’s a forward collision with precisely tion are reasonable to the extent 90-degree half a rotation and rollover. professional judgments reasonable if agree testimony Even that the we were support investigation.” limitations on might jury, Holgerson confusing be to a did Armontrout, Kenley (quoting Id. 937 F.2d facts, facts, any adequate not have alone let 1298, (8thCir.), denied, cert. expert’s opinion to conclude that an would be (1991); 112 S.Ct. 116 L.Ed.2d 450 Codington County jury. too “technical” for a Washington, 466 690- Strickland v. U.S. 2052, 2066, nothing in the [¶44.] There is record to L.Ed.2d (1984)). explain majority why Holgerson nor never consulted an Neither fact, opinion authority expert. In any which accident offer states reconstruction fact, prior Holgerson It is that the habeas court excuses had one vehicular homi- incredible case; expert by stating: consult an' interestingly, counsel’s failure to cide in that case he consulted remember, time, expert prior One attorney Holgerson also that at the accident reconstruction to advis- must acci- ing accept plea bargain. Regard- did not know what an his client to very less, would dent reconstruction disclose. It provided [sic] well Dailey. have collaboration important It is stress that the issue inef- lawyer’s culpability, cases is not a fectiveness Lockhart, See Thomas v. 738 F.2d rights. but client’s constitutional rather his (8thCir.1984) ("[J]ust hindsight as cannot attorney may Even render the best ineffective performance, used to condemn counsel’s not it can assistance, totally reasons extraneous often for it.”). justify be used to ability. to his or her ¶ majority opinion The also claims at 4: Leapley, n. 7 St. Cloud v. Holgerson expe- The record indicates that had DeCoster, (S.D. 1994) (quoting United States defending vehicular cases rience in homicide (D.C.Cir.1973)). 1202 n. 21 successfully and had defended most recent proceeding. client on this kind of criminal Holgerson actually arraignment, request- in-depth case, investigation of including witnesses[.]”). day independent an extra trial for accident interviewing ed reconstruc- testimony. tion Since Lien did not instruct Holgerson also testified that Adam strategy, to abandon that and Dailey’s testimony that Lien driving ap consulted, Holger- since an was not peared “unimpeachable.” Counsel never attempts son’s at rationalization at the habe- Dailey. even interviewed Dailey’s taped hearing questionable. are grand statement and his jury testimony re veal inconsistencies in his account of the majority -opinion attempts [¶45.] Furthermore, accident. defense counsel tes place failing “pro- the blame on Lien for tified that reported Lien’s father a conversa any casting vide information tion which told him that Lien was identity doubt of the driver of his driving. A prior inconsistent statement require Blazer which would him to conduct a impeachment is a basic tool. ¶ See SDCL 19- fact, stringent investigation.” more 18.25 In (FedREvid 613(b)); 14-25 Brings State v. Holgerson concedes that Lien’s father in- Plenty, 390, (S.D.1990); 459 N.W.2d 402-03 formed admitted that Thomas, State v. 381 N.W.2d 238-39 he could driving. not remember who was (S.D.1986); Delo, see also Driscoll v. 71 F.3d Additionally, though [¶ 46.] even Lien does — (8thCir.1995), denied, cert. U.S. accident, not remember the there were nu- —, 196.(1996): 117 S.Ct. 273, 136 L.Ed.2d pieces merous of evidence which should have [W]e conclude that there is no objectively prompted Holgerson investigate to whether competent reasonablé basis on which de- driving: Lien was fense justify counsel could a decision not to 1) photograph There is a showing the de- prior [use inconsistent statements im- to] ceased with his arm extended from the peach eyewitness a state’s whose testimo- Blazer; driver’s seat of the ny, out, points as the district court took on 2) Lien was extricated from the rear driv- such clarity remarkable detail and over side; er’s time. 3) hospital personnel Lien told admissions majority As the opinion suggests, Dailey had that he an passеnger unrestrained However, apparent no motive to lie. he vehicle; not have been to able remember who was 4) above, as stated relayed information driving, marijuana and his use and alcohol by Lien’s father. night impeach could have been to used by easting him ability doubt on his to recall provide did need Lien to the áccident. information which cast doubt as to driver identity above, when all the information was avail [¶ 48.] Based on the Lien has met Strickland, able and accessible from i.e., other sources first requirement by witnesses never Holgerson. representation interviewed objec- “counsel’s fell below an States, See Benson v. United tive standard reasonableness.” 466 U.S. (8thCir.), denied, cert. 98 at 104 S.Ct. at 80 L.Ed.2d at 693. (1977) 54 L.Ed.2d 120 (“Ordinarily, majority The cases opinion relied reasonably competent attorney an conducts do not detract from this conclusion. For actually Holgerson right. It was product who withheld infor- His consent was a of loss of statement, Dailey’s videotaped mation from Lien. hope, created counsel. records, hospital photographs Lien’s and the Aliberti’s trial counsel failed to meеt his re- the crash scene were never shown to Lien or his sponsibility meaningful to consult in a manner Solem, family. Cf. Aliberti v. important with Aliberti on this decision. (S.D.1988) J., (Sabers, dissenting): Strickland, supra. reading A fair of this rec- knowing, How can it be said that intelligent, there was representation ord reveals that counsel’s ‍‌​‌‌​​​‌​​‌​‌‌‌‌​​​‌‌​​‌‌‌‌‌‌‌‌​‌‌‌‌‌​​​‌‌​​‌​​​‍with voluntary .[right waiver of respect question jury to the trial waiver was jury only provid- trial] when Aliberti’s counsel so ineffective that it and casual evidences a necessary ed him with half the information usurpation manifest of Aliberti's constitutional make such waiver? Aliberti was never ad- rights. attorney picture vised pros on the full —the (Emphasis original). waiving and the cons of this constitutional professional judgment, reasonable Leapley, 521 result of in Fast Horse example, (S.D.1994), petitioner satisfying prong com- the first of Strickland. thus calling for not was ineffective plained counsel 2. PREJUDICE out, it turned most of As several witnesses. actually helpful testimony was

their these deficiencies coun- Whether attorney Additionally, his ex- his defense. prejudiced depends representation sel’s logical strategy, which was plained his trial upon whether calling his not certain wit- and accounted for constitutionally perfor- ineffective counsel’s clearly This case is Id. at 104-05. nesses. the outcome of the mance affected Failure to consult distinguishable. even ... process. In other words the defen- expert under reconstruction an accident must show that there is reasonable dant cannot, by any stretch of these circumstances that, errors, probability but for counsel’s accurately referred imagination, pleaded guilty not have he would “strategy” or “tactics.” going have insisted on to trial.... would Leapley, As for St. Cloud [¶49.] alleged of counsel is a error [W]here failure to defense counsel’s court determined investigate potential- or discover failure to ineffective assistance: constituted evidence, ly exculpatory the determination the services of right of an accused to [T]he “prejudiced” the error the defen- whether attorney envisages that his will by causing plead guilty him to rather dant possible defenses. investigate and consider go depend to trial will on the likeli- than part Failure on the of counsel to conduct discovery hood that of the evidence would necessary investigation into the facts change to his recommen- have led counsel may prejudice justify to result such assessment, plea. dation as to This granting of relief. review of Our turn, depend large part predic- will on a agree record causes us to that St. Cloud’s likely tion whether the evidence would have made an in- defense counsel should changed have the outcome of a trial. vestigation into whether or not a warrant Lockhart, 52, 59, Hill v. 474 U.S. 106 S.Ct. document) (or pointed As similar existed. (1985). 366, 370, 203, 210 88 L.Ed.2d Cloud, out his defense counsel did St. Here, Lien to met burden show poten- travel to Lower Brule to interview if the informa he had been armed with witnesses; tial it would have taken little gather counsel to or share tion that failed additional effort to examine the tribal him, going Lien would have insisted on court file. The failure to make this investi- majority opinion The excuses to trial.27 gation was not the result of reasonable expert failure to consult an because counsel’s professional judgment, satisfying thus attempt get of “Lien’s instructions to to á prong first of Strickland. ¶ suspеnded imposition.” 24. But see (S.D.1994) (conclud- 118, 521 N.W.2d 127-28 (S.D.1978): Pieschke, 40, 46 262 N.W.2d preju- ing that St. Cloud failed to establish (citations, prong) right in- of an accused to the services of dice under the second The omitted). legal envisages that his quotations ternal & footnotes counsel Likewise, investigate possible de- it would have taken little additional will consider and, none, investigate procedures, to the “other fenses if other effort26 here driver” good judgment theory the failure to so was not the exercise his faith thereon. do Johnson; Eagle, pectation Loop; of trial. Two testified that cost was not factor preventing consulting expert. supra. him from petitioner do not that the These cases cited state 25, ¶ majority opinion 27. At states: plea agreement must “that the show appears [I]t of the record from the contents fact, day plea set for trial.” In made until Holger- that Lien had several discussions with bargains were not even at issue these cases. . concerning plea. son This falls well short 458, Zerbst, 304 U.S. See Johnson v. of Lien's burden to establish his claim that the Class, (1938); Loop v. 82 L.Ed. 1461 plea day agreement was not made until the set 189; Eagle Leapley, SD 554 N.W.2d Two for trial and point, thus at that (S.D.1994). 522 N.W.2d 765 already expert should have retained an in ex- contemplate that an Lofgren’s opinion It does not accused ster that Lien was not the charge take the case an attor- driver: after ney appointed, been or dictate its has expert’s opinion The value of an is no course .... better than the facts which it added) (citation omitted). testimony proves based. (Emphasis Fur Such if nothing thermore, its factual majority opinion’s may prove basis is not true assertion— only partially little if require “We do not defense counsel to true. retain experts complete investigation to a full be Co., Guetter, LDL Cattle Inc. v. 1996 SD recommending fore to his client” —is ¶ 22, (citations & inter- supporting authority. made without See El omitted). quotations nal Atkins, dridge v. majority opinion explain [¶ 54.] The fails to denied, (8thCir.1981), cert. away reality strong expert defense (1982): 72 L.Ed.2d 168 testimony, coupled with effective tools with It duty lawyer is the of the to conduct impeach which Daily and State’s prompt investigation of the circumstances creates a probability reasonable jury that the explore leading the case and all avenues would have had reasonable doubt as to guilt degree to facts relevant of whether night. Lien was the driver that guilt penalty. should enough That is to undermine confidence always include efforts to secure informa- Therefore, likely the trial’s outcome. possession prosecution tion in the prejudice has established under the second and law enforcement authorities. The Strickland, prong 466 U.S. at duty regardless exists (defen- 2068-69, S.Ct. at 80 L.Ed.2d at 698 accused’s admissions or statements to the prejudiced by unprofession- dant is counsel’s lawyer constituting guilt or his of facts prob- al conduct when “there is a reasonable plead guilty. stated desire to that, ability errors, absent the the factfinder added) (citations omitted). (Emphasis would have respect- had reasonable doubt required Driscoll, Lien is not ing guilt.”); show he see also 71 F.3d at 706: acquitted, would have been but must counsel, competent ready Absent and able likely undermine confidence in the trial’s out- subject prosecution’s ease to the Hill, come. 474 U.S. at at meaningful crucible of testing, adversarial 210; Foster, 88 L.Ed.2d at F.3d guarantee there can be no that the adver- Lofgren He met this burden. testified un- system properly sarial pro- will function equivocally, nothing supports “There’s just duce and reliable results. Mr. being Lien as the driver.” State’s ex- Fretwell, (Quoting Lockhart v. hand, pert, conceded, guess on the other “I I 847, 122 L.Ed.2d argue ways could both as to both drivers.... (1993) (other (Stevens, J., dissenting) citation physical evidence in this situation [T]he omitted)). quotation & internal you such that argument could make an both above, light of all the is clear ways taking what evidence would corre- that Lien has established ineffective assis- spond being to that driver behind the tance of counsel under Strickland and we wheel.... I enough don’t feel there’s should reverse and remand for a or a physical ‍‌​‌‌​​​‌​​‌​‌‌‌‌​​​‌‌​​‌‌‌‌‌‌‌‌​‌‌‌‌‌​​​‌‌​​‌​​​‍place evidence that can either one trial. any degree behind the wheel with certain- ty.” majority opinion’s This refutes the as- AMUNDSON, J., joins special expert testimony sertion that the corroborat- writing. Dailey’s Supra ed version of events. n. 13. Significantly, Lofgren opinion based on site, vehicle,

his view of the and the

photographs. State’s never examined

the vehicle and did not visit accident site which, day testimony

until the of his if —facts cross-examination, elicited on could bol-

Case Details

Case Name: Lien v. Class

Court Name: South Dakota Supreme Court

Date Published: Jan 14, 1998

Citation: 574 N.W.2d 601

Docket Number: None

Court Abbreviation: S.D.