Siers v. Class
581 N.W.2d 491
S.D.
1998
Check Treatment

*1 omitted)., Therefore, my program then track of based on through the and loses record, judicial the law anew. I them until violate this conclude that a mind could have that a transfer decided to adult juvenile in program Is there [¶ 51.] required court and such .decision man, psy- system young this who the where not amount to an does abuse discretion. being chologist to as a victim testified shock, subject peers who cultural communist, telling him

calling commie Russia, who a child go and is back parents’ of his

affected dissolution

marriage, salvaged. can be The State de- high-risk

picts offender this individual as hand, other properly

and so. On the that such individuals State’s witness stated 1998 SD 77 Training placed in the Plankinton School Anthony SIERS, Appellee, Petitioner and (prison) juvenile not been and this although an placed facility, this it was option. Joseph CLASS, Warden of South hearing, At the Y.C. was asked Penitentiary, Dakota State Re- say anything if he the court desired spondent Appellant. stated: I Sorry everybody THE No. 20302. JUVENILE: change. change. know I can I’ll Supreme Court South Dakota. man, young grades whose 96%, Camp English Math the Boot were: April on Briefs Considered 93%, 81%, 85%, and Social Studies Science July 8, 1998. Decided 93%, certainly appears to School to Work saving. public’s Is it interest to worth in the prison this individual in an adult away key?

throw I think not. While

majority emphasizes public interest

incarceration, obviously trial court public

thought significant there giving

interest in this individual a reasonable productive

chance to become a member

society. encouraging re Considering

ports progress of Y.C.’s his attend juvenile

ance at some state correction programs possibilities

al for further

rehabilitation, there substantial evidence court’s decision. State

support trial

Harris, (S.D.1993) (cita omitted).

tions would judges It is true that some question in resolved the transfer have

same manner as trial court this applying

case. the abuse case, do not

discretion standard to “we made a

determine whether we mind, decision, judicial

like whether a facts,

considering the law could have v. Wil decision.” similar

reached a

kins, (citations (S.D.1995) *2 Renseh,

Timothy Rapid City, J. peti- appellee. tioner and Barnett, General, Attorney Mark Sherri Wald, General, Attorney Sundem Assistant Pierre, respondent appellant. GILBERTSON, Justice. (State) State of South Dakota (Siers)

appeals grant Anthony Siers’ application Corpus for Writ of Habeas on the ground that he was denied effective assis- tance of counsel trial on one count degree rape. of second We reverse. pushed ground her to the and a claimed Siers PROCEDURE struggle violent fifteen-minute ensued which 4, 1991, Pennington October [¶ 2.] On pinned ground, ended when Siers jury guilty of the second County found Siers attempted choke, “beat threatened early morning degree rape quit shit” if *3 out of her she did was also found July 1991. Siers hours of raped screaming. S.B. testified her Siers was sentenced offender and to be a habitual vaginally orally, that feared and she for her in Dakota years fifteen the South to serve life, attempted during to calm Siers Penitentiary. His was sum- conviction State by rape submitting According to him. to appeal. direct marily affirmed on S.B., difficulty trying penetrate Siers had to Siers, In Octo- her, angered which Siers and caused S.B. ber, 1995, amendedpetition for filed an Siers pain. great physical appease S.B. tried to counsel corpus alleging his trial habeas relief pain by asking alleviate the Siers Siers pursuing two for not was ineffective assault, try- perform oral sex. After this to Evidentiary hearings were alibi witnesses. trust, ing to then asked maintain his she 19971 after February of 1996 .and held in her back to his house on Siers take Silver relief. granted was which Siers began walking two and while Street. The outside, was S.B. entered convenience Siers FACTS telephone, asked to use the intend- store and appeal giving rise to this The facts [¶3.] ing hospital. to call a friend take her to the 9:00 and began between duty clerk on The convenience store S.B., University a Purdue p.m. 10:00 when time, (Larvie), overheard Juanita Larvie job working a summer with sophomore telephone requesting a S.B.’s conversation Service, Black Hills Heri- went to the hospital. Forest ride to the S.B. then told Larvie (festival) friends. tage to meet some just raped. suggested Festival had been Larvie she thereafter, approached by a telephone police. was called Soon S.B. that S.B. S.B. Siers, man, police hysterical, blurting ask- out she identified as and became whom later Janis, names, Tony along and Tom light cigarette. his The man two Siers ing for a for security her number. “Tony” as and she told with social himself introduced S.B. she then him her first name. police led The arrived and S.B. them Siers continued became uncomfortable when rape. was S.B. then scene she to follow her around festival while hospital examination. to a for taken searching her friends. S.B. left was her and back were scratched and S.B.’s chest torn, she friend’s house because festival pelvic undergarments A exami- were home” and [her] “didn’t want follow [Siers] injuries performed during which nation was following on a her claimed Siers continued vagina and a one-inch lining to the S.B.’s bicycle persuade her to enter and tried to hymen The were detected. tear S.B.’s fur- the man areas. S.B. testified secluded physician the nature examining testified “Tony as ther himself Siers.” S.B. identified indicated S.B. had not been injuries S.B.’s name than the one gave then Siers a other rape. sexually to the active Realizing gave him. S.B. originally not obtained S.B. samples were Semen names, replied, two Siers given him different ejaculated. whether Siers had was unsure “Well, Tom my Tony either. It’s name isn’t Department de- Rapid City Police 6.] A persuade tried to .S.B. Janis.” Siers also Street visited address on Silver tective go his on “Silver Street.” S.B. home given to S.B. Siers. that had been declined. of Siers’ mother. Siers residence was living part- finally had been present. talked Siers S.B. testified Siers was part-time with taking through a field. with his mother her a short cut time into (Joanna). sister, field, Next de- Joanna Siers walking across this dark S.B. While replacement judge then recused activity by ceedings. delay due to a lack of 1. This judge assigned in Novem- scheduling Another as diffi- himself. habeas counsel well Siers' ber, again reas- judges. several Seventh Judicial Circuit case culties of March, pro- signed judge retired The initial habeas (2) sought teetive at house. Al- Joanna’s whether the sentence was authorized (3) law; cases, >perative co though Joanna was with the offi- in certain whether cer, significantly did not mention to an incarcerated defendant has de- been prived what become her rights. officer was to of basic constitutional For purposes corpus, the habeas was at hearing, of habeas constitutional home the time Siers was deprive violations a criminal case ultimately at the Silver Street jurisdiction. located resi- trial court of cooperative po- also dence. ¶ Black, 1997 SD 22 knowing seeing lice. He denied St. Cloud v. raping much less her. Siers told the detec- (internal (S.D.1994) omit- citations powwow being tive he at a had been held *4 ted)). near the festival. did not claim he Siers apartment at his sister Joanna’s her and petitioner [¶ 10.] The habeas has (Forest) boyfriend Forest Bordeaux at by the prove preponder initial burden to raped. the time S.B. was ance of the evidence that he is entitled to Zerbst, 458, 469, relief. Johnson v. 304 U.S. participated S.B. photographic [¶ 7.] two 1019, 1025, 1461, 58 S.Ct. 82 L.Ed. 1469 lineups. lineup The first did not contain a (1938); ¶14, Loop, Siers, 1996 107 picture SD at 554 picture of did but contain of 191; Eagle Janis, N.W.2d at v. allegedly Leapley, Tom Two 522 given the second name 765, by night N.W.2d 768 The habeas Siers to S.B. the the given court’s factual findings identified Siers are the second “considera as Larvie, photographic lineups.2 ble the con- deference” and we will not these reverse clerk, they clearly venience unless store identified Siers as erroneous. Cloud, 121; man store St. McCafferty outside when S.B. came in 521 N.W.2d at v. cert, Solem, telephone.3 590, (S.D.1989), use Additional facts will 449 N.W.2d 592 necessary denied, 911, be discussed as McCafferty Leapley, address the v. 503 U.S. presented: (1992); issue 112 117 S.Ct. 503 Sal Solem, (S.D.1988), ter v. N.W.2d cert. denied, 490 U.S. ISSUE PRESENTED (1989). L.Ed.2d 989 [¶ 8.] Whether Siers’ counsel was ineffec- failing investigate tive for two 11.] Whether a re defendant has alibi witnesses. pres ceived ineffective assistance of counsel STANDARD OF REVIEW question Lykk ents law mixed and fact. remedy pro a habeas Class, en v. 1997 SD 561 In N.W.2d 302. ceeding is in the nature of a attack collateral clearly absence erroneous determi therefore, judgment, scope a final our of nation, we defer the habeas find court’s Class, Black v. limited. 1997 SD ings regarding of fact what counsel or did corpus 560 N.W.2d 544. Habeas is not a do, judg but we substitute our own Loop substitute for review. direct ment “as to whether defense ac counsel’s ¶ 107, 11, 1996 SD 554 N.W.2d tions or inactions constituted ineffective as ¶ corpus only Habeas can used to review sistance of counsel.” Id. 1997 SD at (1) jurisdiction whether the court had N.W.2d 304-05 Aliberti v. person defendant; Solem, (S.D.1988)). the crime and the 428 N.W.2d 2. The noted occasionally difference the habeas court because come into the descriptions in S.B.’s numerous of her attacker is initially store. Larvie testified that she had a initially having "light, that she described him as problem up upon recollection that was cleared sandy colored hair.” Siers is a Native American seeing photographic lineup which contained with dark hair. pictures of both Siers Janis. Her identifica- unwavering seeing tion of Siers was initially investigators 3. Larvie told that Tom Jan- lineup positive of her identification is was man seen with S.B. that of Siers at trial. evening. Larvie did not know but familiar recognize with and able to both Siers and Janis gave to trial testified that Siers Wurm AND DECISION

ANALYSIS Joanna, Randy, Loydell, him the names assis ineffective To establish possible alibi who as witnesses and.Forest counsel, prove deficient must tance powwow. could him at be- deficiency was and that such representation slept may have told him that he lieved Siers Lykken, him. 1997 SD prejudicial to night. apartment that at Joanna’s ¶ 27, (citing Loop, 1996 at 308 561 N.W.2d hearing during admitted at habeas 191). ¶ 14, 107 at SD examination, preparation for direct he be- coun assistance of ineffective To establish position lieved Siers’ “was that he was—he (1) sel, coun prove must defendant spent residence.” Siers’ objective below an representation sel’s fell (2) that reasonableness and standard of However, Wurm’s recollection of the deficiency prejudiced him. Strick such For- substance of land, 668, 104 Washington, provide, est could related (1984); Hop S.Ct. 80 L.Ed.2d case, drastically investigation (S.D. finger what claimed different from 1994). Strickland, Relying on Woods proceeding. that Si- Wurm testified (S.D.1987), Solem, held merely him all four ers told witnesses a rea prejudice when there is exists *5 powwow him place at the Siers did that, counsel’s probability but for sonable Forest tell he was with Joanna and errors, proceeding the unprofessional during raped. tes- the time S.B. was Wurm is not been It would have different. the time of tified first he became aware the petitioner to that' enough for the show apart- he at Siers’ Claim that Joanna’s different, must he verdict would been nearly years ment the four so counsel’s errors were show ‘that the after Siers’ conviction. deprive of a the defendant serious as 15.]Reasonableness [¶ Performance of trial, result is reliable.’ fair a trial whose deficiency 687, prong the Strickland, 16.] Under [¶ at 466 at 104 S.Ct. U.S. Strickland, evaluate the reasonableness 2064; we 511 at Hopfinger, N.W.2d 847. “perspec- from his performance of Wurm’s Leapley, 521 N.W.2d (citing Id. Fast Horse v. alleged at time of error and tive the the (S.D.1994)). 102, 104 stan- light [This] all the circumstances. Further, strong presumption is a [t]here Phyle, highly of review is deferential.” dard the performance falls within that counsel’s (quoting 433 Kimmelman 491 N.W.2d at professional range of assistance wide Morrison, 477 U.S. S.Ct. perfor- reasonableness counsel’s [t]he Strickland, (1986); su- 91 L.Ed.2d mance evaluated from counsel’s is to be ). pra error perspective at the time of the light of all the circumstances and in deficiency prong of Under [¶ the 17.] highly is deferen- the standard note, duty to has a we “[c]ounsel Strickland the petitioner must overcome tial. The investigation based on make reasonable that, under circum- presumption defendant, particu provided by a information stances, might action challenged Hadley is larly when an alibi involved.” (internal strategy, sound trial considered (8th Cir.1996) Groose, 1131, 1135 omitted). quotations and citations Strickland, (citing at Class, 134, ¶23, 572 Sprik v. 1997 SD 674); also Ransom v. L.Ed.2d see Phyle N.W.2d (5th Cir.1997) Johnson, (S.D.1992)). 429, 433 N.W.2d (“The investigation deci reasonableness supplied depends part information hearing, sions on At 13.] defendant.”). Upon learning the he his prior to trial informed testified that witnesses, (Wurm), possible alibi four alibi names of the attorney, of two David Wurm them. Based on attempted to contact witnesses, boyfriend Forest Wurm Joanna and Siers, believed with Wurm verify their his conversation Siers was at who could that they had seen state raped. these witnesses would apartment during time S.B. was powwow. Receiving response Wurm no Siers at interviewed from either Forest, subpoenaed Joanna or Wurm them but Loydell Randy concluded their testi- 27,1991. September on Wurm testified that hurt, help, mony rather than would Siers’ practice usual was to attach a note re- they were unsure of what defense because questing person receiving subpoena time had seen Siers but prior to contact him but he could not Siers at location where S.B. indicated specifically recall whether was done initially came in contact with him. particular Furthermore, these instances. telephone Wurm wrote his number on the attempted Wurm lo testified he subpoenas. face Forest believed, cate Forest he Joanna and whom served because was on Rosebud Res- Siers, on his conversations based such, beyond juris- ervation. As he was verify only be able to Siers was diction of the South Dakota serve powwow during evening subpoena. Lufkins, and enforce a State v. “[Ijnquiry into counsel’s conversations with per- 381 N.W.2d 263 Joanna was proper defendant be critical sonally subpoena Septem- served with the investigation assessment of counsel’s deci undisputed ber it is Strickland, 691, 104 sions.” U.S. S.Ct. not contact Wurm to trial. See also Mitchell disputed4 [¶ 20.] What is Joan- whether (S.D.1994) (de complied subpoena by presenting na with the investigate, fense counsel’s failure to subpoe herself at Siers’ trial. Siers claims Joanna na, possible impeachment or call be witness up showed for trial but Wurm to call faded “anything cause did not believe there was n alleges her as a witness. Siers he asked going offer” held not ineffec “why my the trial wit- alibi assistance). years, tive After four yet” nesses hadn’t been called and Wurm *6 specifically could not recall whether he asked responded up “leave it to me.” Joanna testi- Forest, help locating Siers for in Joanna or hearing pres- fied that she was but he testified he believes he followed Wurm, ent at the trial and asked practice requested usual assistance “well, subpoenaed we’ve been to witness for ehent, from his who could tell the absent brother, my we get up do a chance to stand witness to contact Wurm. Siers admitted that tell, know, you no, we [Wurm] said jail prior Joanna had him in visited to trial your testimony.” won’t need but Siers did not ask her to contact Wurm. disagreed Wurm and testified he Wurm investigator was unsure whether the before, no during, had contact with Joanna or appointed who had been tried to contact' after the trial. Wurm not recall Siers Joanna and investigation Forest because the asking about his alibi witnesses trial may on “talking have focused to ... [the] though even there were several breaks and Ultimately, store clerk.” per Wurm made a gave pad paper Wurm so he could to trip sonal Joanna’s residence learn what communicate with Wurm the trial. say. had not Joanna was home and calling Wurm remembered out Joanna’s practice believed he followed his usual in hallway name hearing but no re- leaving his business in sponse.5 card the door. Although 4. specif- habeas court possibilities did not make “failed to inform counsel of the findings disputes ic on how resolved it the factual regard these witnesses to an alibi defense.” between Siers and Joanna on the one hand and See also State Miller 935 S.W.2d other, reading findings Wurm on the fair of the (Mo.Ct.App.1996)(noting defense counsel "is not shows resolution in favor of To Siers. do other- required clairvoyant”). to be accept wise would Wurm’s version of the facts point 5. Wurm admitted that if and end the entire matter known Joanna at that as he in providing the courtroom he represen- would have been would have wished to reasonable Furthermore, speak Eighth Schlup depending tation. The trout, with her. Circuit in Armon- offered, (8th Cir.1991), "pro- what Joanna could have conclud- unless she alibi,” performance pretty significant ed counsel’s some not ineffective in vided evidence investigating calling might then he alibi witnesses after not have called her to the even However, counsel had concluded the if stand. Joanna have verified potentially damaging especially when defendant Siers’ alibi at trial as she did at the habeas crime_ for-accomplishment [A] he told Siers testified [¶22.] he, it purported Joanna and alibi leaves was unable contact guilty person told Joanna no never accused to be the Siers admitted Forest. they testify important quotations that it was at all. and cita- [Internal

or Forest alibi rape even them the he was with omitted]. tions jail. in See had visited though ¶ 40, Sprik, 1997 SD 134 at 572 N.W.2d at (5th 407,410 Maggio, 696 F.2d Youngblood v. (emphasis original) and bold Cir.1983) (considering failure to defendants 440). Goodroad, 521 The relevant jail who visited him inform alibi witness timing fact trial in the findings of court attorney attorney made reason contact of the alibi defense are follows: effort to locate witness able unsuccessful but rape of the was established 38. time -ineffective). representation holding a.m. in the at between 12:30 and 1:15 anyone was at never that Siers Joanna told early . morning hours of 1991. rape during the commission her home believed, If the is to be she was victim police present while though she was even company rapist in the two to her shortly after the for Siers searched home rape occurred. three hours before rape. he never told himself testified places and the to- [S.B] and Forest he was with Joanna police gether at least 11:15 to 1:15 a.m. from committed. during the time obvious, lawyer investigate the must places While him with Joanna Siers alibi private lawyer is not to “be required from and Forrest Bordeaux every possi to discern investigator order p.m. 10:30to 11:45 help which hurt ble avenue Thus, latest and Forest were with Balkcom, client.” House v. p.m., at 45 minutes Siers was 11:45 least (11th Cir.1984). As to the commencement findings it court’s make such, The trial Sprik, purported [¶23.] alibi that “[a] under habeas relief the sole basis clear that possible for the accused be the leaves it in- adequately failure purported was the person (empha- alibi at all.” Id. guilty is no citation, omitted). Forest as alibi Therefore, and use Joanna and vestigate based sis and and record record, witnesses. upon this we hold that Siers analyzed support conclusion when do not representation within the adequate afforded *7 Sprik, 1997 against recent decision in SD our the Amendment. meaning of Sixth prior and substantial Prejudice authority.6 eon-' Sprik, In the defendant was alone, Standing the fact that 25.] rape. petition of In habeas victed flf investigate failed to a wit defense counsel argued was ineffective for failure his counsel satisfy prejudice the by itself Sprik as claimed a ness does an alibi defense raise Hadley, 97 provide testimony he F.3d Eyes” prong of Strickland. “White could prejudice from counsel’s Sprik location at the “To establish was with at another witness, potential a argu- rape. rejecting Sprik’s investigate In time of the failure witness would petitioner we held: must show the ment testimony their ‘would testified and that have the must show that accused Alibi evidence of the probably changed the outcome have committed the could have ” Nix, F.3d v. 31 Id. Stewart crime, trial.’ of its commis- because at the time added)). (8th Cir.1994) (emphasis 744 than other where sion he analysis, conducting we will consider: In An alibi to offense was committed. such witnesses, “(1) including credibility all the of cover the entire time be must successful de- likely impeachment of the uncalled the presence required [appellant’s] when Cochrun, (S.D.1992); N.W.2d strategic v. 434 State hearing think reason he could not of Nelson, (S.D.1989); testimony. State not to introduce her 372-73 N.W.2d, 433, (S.D. Goodroad, State 1994); Floody, (2) witnesses; interplay of un- fense the This information led to the arrest of Siers. actual wit- If agree point, called witnesses defense it S.B. one (3) called; strength prior of the evening nesses never met to the actually presented by prosecu- then, rape. evidence How else have come S.B. Delo, McCauley-Bey upon tion.” 97 F.3d this information? (8th Cir.1996). Further, 28.] the convenience store [¶ credibility [¶26.] We consider the of the clerk, witness without basis witnesses, Forest, uncalled Joanna and as bias, impeached placed on claim part determining prejudice. Id. While the together at the convenience im- store circuit court made no mention of the credibil mediately the rape. after She had seen Siers ity testimony either or Joanna before in the convenience store and knew Forest, testimony we are not convinced the hewho was. Forest, for Siers’ sister revealed 29.] We [¶ conclude has not met his nearly years first time four Siers’ con establishing testimony burden of of his

viction, changed probably would have sister, probably Forest Stewart, outcome of trial. 31 F.3d 741. changed result proceeding. subject impeach Joanna and Forest were [¶ 30.] We reverse. relationship ment bias because of their Tansy, See Siers. Romero v. C.J., MILLER, (10th denied, Cir.1995), cert. KONENKAMP, J., concur. (1995) (concluding testimony by “alibi a defendant’s AMUNDSON, JJ., [¶ 32.] SABERS and family members is of less significantly excul dissent. patory objec value than the of an witness”). Further, initially tive when con AMUNDSON, (dissenting). Justice tacted who looking detective I 33.] dissent. [¶ Siers, Joanna failed to inform officer 34.] This seems like a im- case first Siers could not have been the pression appeal where we re- —a residence the time of the viewing a decision the circuit court that rape or even that he was there to the found ineffective assistance of counsel. The obviously gave circuit court this ease serious Additionally, “there is no A consideration. review the show if, prejudice factoring in the uncalled wit following: nesses, government’s case remains over Prior Mr. Wurm discussed whelming.” McCauley-Bey, 97 F.3d at 1106 using with Siers consent as a de- (citing Fast Horse v. light Bradbury fense the fact that Cir.1996) (8th (other omitted)). citations *8 requested perform that her assailant oral question There is no that a forced oc upon sex her. Siers refused to allow Mr. curred. The at trial issue was the iden defense, pursue Wurm to this as he ada- tity of the attacker. Siers was identified mantly through- maintained his innocence both the victim and the convenience store the proceedings. out clerk. Prior the rape, to S.B. testified she had been with Siers for more than an hour [*] [*] [*] n [*] [*] [*] talking walking and with so had an Although Mr. Wurm utilized the ser- identity. extended time to establish his Fur private vices of a investigator, he not did thermore, S.B., visiting South Dakota for the investigator help direct to him find summer, given testified that Siers had or Joanna Siers Forrest Bordeaux. just prior his name and address to n n n n n n 50,000 In a approximately town of people how an else would out Obviously, of town summer work if put evi- Siers could forth er know the name showing and address of her dence he was somewhere other immediately after such a Bradbury traumatic event? than on the Strickland, circuit court 36.] Under that

rape this could establish representation to found amounted rapist. Wurm’s 43. Mr. Bordeaux, reason speaking to either Joanna [******] whatsoever to testify at trial. Wurm does not and cannot state why Siers or failed any tactical remember Forrest to call ineffective assistance of result was not reliable. court very the writ of habeas considered put Court serious matter it well when stated: -lightly takes note.that corpus it capriciously. counsel and I and not one to be agree. in this case is granting of The circuit that Howev- a performance defense Wurm’s er, Court, 48. Mr. painstaking consider- speak with failing to even counsel ation finds that the dictates of of the facts witnesses, alibi and failure Constitution, “main” the United States founda- investigate any line of defense related legal system is bed- upon tion which our said, even witnesses what those rocked, that a writ of habeas mandates appointed of a court though the services corpus issue that the Defendant obtained, approved, and investigator were County for new Pennington a returned authorized, Mr. that was so deficient trial. guar- functioning as counsel was not struggles to painstakingly Now this Court Amendment anteed the Sixth tough and correct find a to reverse reason Constitution, added). (emphasis U.S. However, this by the circuit court. decision “ findings are entitled to ‘considerable an These where Siers record reveals instance ” “ ; - set unless and ‘willnot be aside deference’ what the Constitution affords receive St. clearly erroneous.’” Cloud trial whose result him —“a fair (ci- ¶ (S.D.1994) Leapley, Loop 521 N.W.2d reliable.” SD omitted). (citing Hopfinger tations (S.D.1994) record A of this extensive Strickland, 466 U.S. certainly supports these 693)). 80 L.Ed.2d S.Ct. up to performance did not measure Wurm’s I am authorized state Justice by the constitu requirements mandated joins this dissent. SABERS performance counsel tion. “Reasonable facts, investigation of adequate an includes theories, develop of viable

consideration support

ment those theories. of evidence investi attorney

Ah must make reasonable preparing make reason

gation in case or particular in to conduct a able decision not SD 74 Lockhart, vestigation.” Foster v. COMPANY CLARKSON AND (8th Cir.1993) (citing Kenley v. Armon- Shirley William Clarkson (8th trout, Cir.), cert. Clarkson, Appellees, denied, (1991)). apparently was opinion alibi defense COUNTY, Appellant. HARDING of an He somewhat effort viable. made No. them. subpoenaed contact the witnesses *9 says extra he went the Although Dakota. Supreme Court of South ap private investigator got mile even 1, 1998. on Briefs June Considered case, asked never pointed in even client’s private investigator to contact his Decided Furthermore, at the time alibi witnesses. any shred was not one witness there presented his client’s evidence (cid:127) defense.