Ally v. Young

999 N.W.2d 237

2023 S.D. 65

Manegabe Chebea ALLY, Petitioner and Appellee,

v.Darin YOUNG, Warden of the South Dakota State Penitentiary, Respondent and Appellant,

#29790

Supreme Court of South Dakota.

ARGUED OCTOBER 4, 2022

OPINION FILED December 6, 2023

APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, MINNEHAHA COUNTY, SOUTH DAKOTA, THE HONORABLE DOUGLAS E. HOFFMAN, Judge

MARK KADI of Minnehaha County Office of the Public Advocate, Sioux Falls, South Dakota, Attorneys for petitioner and appellee.

MARTY J. JACKLEY, Attorney General, MATTHEW W. TEMPLAR, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent and appellant.

KERN, Justice

[¶1.] Manegabe Chebea Ally was convicted by a jury of first-degree manslaughter for the death of a sixteen-month-old child. He received a 45-year penitentiary sentence with 20 years suspended. Ally appealed his conviction, which this Court affirmed. Thereafter, he filed a petition for habeas corpus alleging that his trial counsel was ineffective by overselling the defense’s theory of the case during opening statements, failing to play all of the police interview videos for the jury, failing to question an expert witness on redirect or recall that expert for sur-rebuttal, and losing credibility with the jury by failing to properly disclose a video that served as foundation for one of his expert’s opinions. After a series of evidentiary hearings, the habeas court granted Ally relief, determining Ally’s counsel was ineffective in several respects and that the cumulative effect of these deficiencies prejudiced Ally’s defense, thereby depriving him of a fair trial. The habeas court granted the request of Respondent, penitentiary warden Darin Young, for a certificate of probable cause and he appeals.¹ We reverse.

Factual and Procedural History

[¶2.] The following factual summary is taken from the evidence and testimony produced at trial. Ally immigrated to America from a Tanzanian refugee camp in June 2010, initially arriving in Lancaster City, Pennsylvania, and moving to Baltimore, Maryland. Ally met Katoke, a Sioux Falls resident, through mutual friends, and the two began a long-distance relationship. In October 2012, Ally moved to Sioux Falls to live with Katoke and her two children, C.K., age five, and M.K., age sixteen months.

[¶3.] On the morning of December 24, 2012, Ally and the two children dropped Katoke off at her job at a local packing plant between 5:00-6:00 a.m. Ally planned to watch the children for the rest of the day, as he commonly did when he was not looking for work himself or dealing with immigration matters. After dropping Katoke off, Ally later testified that he took the children back home to get more sleep. Ally said he woke up for the second time around 9:00 a.m. and took the children with him to the Community Health Clinic where he received vaccinations from nurse Debra Goldstine, which were necessary for him to obtain a green card to legally reside in the country. At trial, Goldstine remembered nothing out of the ordinary about the appointment, recalling that Ally seemed to appropriately care for the children.

[¶4.] After visiting the clinic, Ally testified that he took the children home and prepared lunch for them. Once they had finished eating, Ally said he took M.K. into the bathroom and washed him up. Afterward, he placed M.K. on the couch next to his sister, C.K., to watch cartoons, while he cleaned the kitchen. Later, C.K. told Ally that M.K. had fallen asleep on the couch, so Ally took M.K. and put him down to rest in the main bed which he shared with Katoke.² Ally testified that after putting M.K. down for a nap, he went back to the couch to watch TV and listen to music. At some point, C.K. told Ally that she was going to her room to take a nap.

[¶5.] Because it was Christmas Eve, Katoke’s shift ended at 3:00 p.m., rather than 5:00 p.m. Sometime after 2:30 p.m., Ally said that he went to wake up the children so that they could go pick up Katoke. Ally remembered going to C.K.’s room first. According to Ally, while he was in C.K.’s doorway, he heard a cry from the room where M.K. was sleeping. He later testified that he found M.K. laying on the carpeted floor with his head against the footboard.³ Ally stated that when he picked M.K. up, he noticed that M.K. was breathing but that something was wrong, so he laid him back down on the floor and called 911.

[¶6.] At 2:00 p.m. that same day, Nicole Mackenzie, a neighbor in the apartment complex, was home from work taking a late lunch break. She testified that the apartment’s walls are thin, and she did not hear any yelling or crying. At around 2:40 p.m. she left her apartment and noticed Ally pacing back and forth in the hallway while speaking on the phone before returning to his apartment. Recognizing that Ally seemed panic stricken, she went to the apartment and nudged the partially opened door to ask Ally if he needed any help. Ally responded that he did because something was wrong with the baby.

[¶7.] It was at this point that Nicole realized Ally was on the phone speaking with 911 dispatchers.⁴ She took the phone and went into the master bedroom where she found M.K. laying "horizontally on the floor on his back," and "[m]aybe a couple of feet from the bed." The 911 operator directed Nicole to check the baby’s mouth for vomit and then administer CPR. Nicole tilted the baby’s head to the side to check for obstructions and, seeing none, proceeded to administer CPR.

[¶8.] Between 2:41 and 2:44 p.m., Metro Communications sent out a Code Four emergency medical dispatch for an unresponsive child that had fallen and was not breathing at 401 South Sycamore Avenue. A Code Four dispatch is sent to fire, police, and paramedics. Michael Gramlick, a fire captain with the Sioux Falls Fire Department (SFFD), and his crew were the first to arrive on scene.

[¶9.] Captain Gramlick testified that his job was to ensure the apartment was safe for those present and gather information that could help his team while they assessed the patient. While checking the premises, Captain Gramlick found M.K. lying on his back at the foot of the bed. In his final report, Captain Gramlick noted that upon arrival he observed no obvious wounds on M.K. or any signs of abuse. At trial, Captain Gramlick described Ally’s demeanor during the incident as "odd," observing that Ally lacked the typical "anxiety that follows having a child hurt."

[¶10.] Firefighter Michael Wilson, also a certified paramedic, testified that he found M.K. fully clothed, lying supine on the floor next to Nicole, who was attempting to administer aid. His initial assessment showed M.K. was not breathing and had no pulse, so he began administering CPR and regained M.K.’s pulse within a minute and a half. Still, M.K. was not breathing on his own, so Wilson mechanically ventilated the child using a mask and squeeze bag. Wilson testified that his assessment revealed no observable injuries to M.K.’s head, neck, abdomen, arms, or legs.

[¶11.] Officer McMahon arrived next and waited outside to help direct the paramedics to Ally’s apartment. Officer Statema arrived shortly thereafter. Upon entering the apartment, he located Ally and asked to speak with him. Officer Statema acknowledged that there was a language barrier between them but maintained that they were able to communicate. During their conversation, Ally told Officer Statema that M.K. was sleeping on the bed in the main bedroom, while he was cleaning up from their lunch by washing the dishes, when he heard the baby cry once from the bedroom. He said he found M.K. on the floor with blood at the corner of his mouth. Officer Statema noted that Ally seemed "very calm, emotionless" given the situation, and he recalled that the kitchen was very clean and orderly, and did not look like it was in the process of being cleaned.⁵

[¶12.] Paramedics arrived within seven to eight minutes of being dispatched and began rendering aid to M.K. on arrival. Katie Kruger, the senior medic on the ambulance crew, intubated M.K. because he was not breathing on his own. She testified that she felt a hard ridge on the back of M.K.’s head. After inserting an IV, Kruger moved the child to the ambulance. Once the ambulance left, Ally and C.K. drove to the meat-packing plant to pick up Katoke and take her to the hospital. Katoke testified at trial that Ally had called her during her break, which she usually took at 2:30, and informed her that M.K. "fell down and took a little injury to the lips and forehead." When Ally arrived at the plant to pick her up, he told her that M.K. was injured after falling off the bed while sleeping.

[¶13.] Sergeant McManus arrived on scene after the ambulance had left. Upon arrival, she spoke with Officer Statema to get a sense of what had happened and walked around the "scene … to see if there was anything that [she] would notice to be unusual or out of place or of evidentiary value." Although nothing stood out, the circumstances led her to believe that more than a fall had taken place, so she called the Sioux Falls Police Department’s (SDPD) Crimes Against Persons division, which prompted Detective Carda’s involvement in the investigation. SFPD Crime Lab manager Brad Johnson was directed to photograph and measure the scene including the height of the bedframe, mattress and dresser.

[¶14.] M.K. arrived at Avera McKenna Hospital’s Emergency Department (Avera) around 3:00 p.m. Dr. Hafzalah, a board certified pediatric critical care physician, was in the E.R. upon M.K.’s arrival. She testified that M.K. was brain dead from the first moment of her examination. His eyes were fixed, dilated, and without reaction, and his "typical brain stem reflexes" were not present. Two EEGs showed "zero brain activity."⁶ And a nuclear scan "showed no [blood] flow to the brain whatsoever." M.K.’s CT scan "revealed a large, depressed fracture on the left side" of his head, a "large hematoma" over the fracture,...