Engesser v. Young

856 N.W.2d 471

Oakley Bernard ENGESSER, Petitioner and Appellee

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

No. 27001.

Supreme Court of South Dakota.

Argued Oct. 6, 2014.

Decided Nov. 12, 2014.

Ronald A. Parsons, Jr., Delia M. Druley of Johnson, Heidepriem & Abdallah, LLP, Sioux Falls, South Dakota, and Michael J. Butler, Sioux Falls, South Dakota, Attorneys for petitioner and appellee.

Marty J. Jackley, Attorney General, Paul S. Swedlund, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent and appellant.

Opinion

KONENKAMP, Justice.

[¶ 1.] In this habeas proceeding, the circuit court ruled that the petitioner established clearly and convincingly that newly discovered evidence, if proven and viewed in light of all the other evidence, would establish that no reasonable juror would have convicted him. The court ordered a new trial, and the State appeals.

Background

[¶ 2.] In 2001, a jury convicted Oakley “Bernie” Engesser of vehicular homicide and two counts of vehicular battery. The sole issue at the trial was whether Engesser or the deceased, Dorothy Finley, was driving her Corvette when it crashed into a minivan on Interstate 90. Neither Engesser nor Finley was wearing a seatbelt and both had been drinking alcoholic beverages. The Corvette was going “approximately 112 miles per hour when it slammed into the back of the minivan, spun off the road, and rolled several times before coming to rest on its roof in the median.” See State v. Engesser (Engesser I ), 2003 S.D. 47, ¶ 6, 661 N.W.2d 739, 744. No witness at trial testified to seeing the driver of the Corvette. Engesser was thrown from the car, landing face down in the median. Multiple witnesses at trial placed him between five and ten feet from the driver's side of the Corvette. Engesser was unconscious and suffered a gash to the right side of his head. Finley was trapped in the car on the passenger side “underneath the passenger seat, her body in line with the seat. The upper part of Finley's body was lying over the top of the seat. She was facing the ground. Her feet were underneath the dash. Her face was pointing toward the driver's side.” Id. ¶ 7. The passenger side was crushed and the window shattered, but the roof and front windshield were intact. Finley was pronounced dead at the scene.

[¶ 3.] At trial, the State presented evidence from Trooper Ed Fox, the lead investigator. Trooper Fox arrived on the scene after Engesser and Finley had been taken away. He obtained statements from the witnesses at the scene. No witness, however, stated specifically whether the driver was a man or woman. Nonetheless, based on the positioning of and injuries to Finley's body, as later described to Trooper Fox, he concluded that Engesser was the driver.

[¶ 4.] The State also offered evidence from Finley's daughter, who testified that Finley normally kept her purse at her feet when she was the passenger. The purse was found underneath the dashboard on the passenger side. The emergency room physician who treated Engesser testified that the person in the passenger seat would have suffered the most serious injuries because it was the point of impact with the minivan. Engesser suffered injuries on both sides of his body. Finley died of injuries to the right side of her body and head.

[¶ 5.] Engesser did not testify at trial. But the jury viewed a video recording of his interview with Trooper Fox, in which Engesser explained that he did not remember anything after leaving the Full Throttle Saloon. Although Engesser believed Finley was driving, he agreed it was possible they had switched before the accident. Engesser sought to admit hearsay evidence from his civil attorney that a witness—Sean Boyle—had told the attorney he saw Engesser and Finley leave the Full Throttle Saloon on the night of the accident, and that Finley was driving the Corvette. The court excluded the testimony. Engesser was found guilty and sentenced. We affirmed his convictions in 2003. Engesser I, 2003 S.D. 47, ¶ 50, 661 N.W.2d at 756.

[¶ 6.] Over the next twelve years, Engesser petitioned successively for habeas corpus relief in state and federal courts. His first state habeas petition was denied, and neither the habeas court nor this Court granted his request for a certificate of probable cause to appeal. In his first petition for federal habeas corpus relief, Engesser, pro se, claimed his trial counsel was ineffective for multiple reasons. After his petition was denied, Engesser appealed and was appointed counsel. At some point after counsel was assigned, Eric Eckholm contacted Engesser's counsel and asserted that he saw a woman driving the Corvette just before the accident. In his deposition, Eckholm testified that he was in his vehicle on the shoulder of the Interstate when he saw the Corvette before it hit the minivan. Eckholm said he saw a woman in the driver's seat frantically driving and a man in the passenger seat “hanging on.” He described the driver as having blonde hair that was “kind of puffy.” He saw the back end of the Corvette strike the minivan and a man fly out of the passenger side. He said he walked over to the Corvette in the median and saw Finley's body underneath the overturned car. He testified that he contacted Engesser's trial attorney and first habeas counsel. Engesser's federal habeas counsel did not bring Eckholm's testimony to the attention of the district court before Engesser's first habeas petition was ultimately dismissed by a divided federal appellate panel. See Engesser v. Dooley (Engesser II ), 457 F.3d 731 (8th Cir.2006), cert. denied, 549 U.S. 1223, 127 S.Ct. 1284, 167 L.Ed.2d 104 (2007).

[¶ 7.] In 2006, Engesser filed a second petition for habeas relief in state court. He argued that his trial counsel and first habeas counsel were ineffective because they failed to identify and investigate two witnesses, Eckholm and Charlotte (Delaney) Fowler. Although Eckholm and Fowler were originally questioned at the scene of the accident and neither indicated that they could identify the driver, during the habeas hearing they claimed otherwise. Eckholm testified that he was standing on the shoulder of the Interstate behind his parked truck when he saw the Corvette. He was able to see that it was a woman driver because he saw bracelets and nail polish. She had blonde hair, he said, long “enough to fly in the air.” Fowler testified that while she was in the driver's seat of her van parked on the shoulder of the Interstate in front of Eckholm's vehicle, she saw the Corvette travel out of control and hit the minivan. She explained that, though she told Trooper Fox on the night of the accident that she was looking at her console and did not see the Corvette hit the minivan, she in fact saw the accident. She saw a man thrown from the Corvette. In addition to Eckholm and Fowler, multiple other witnesses testified at the habeas hearing, including Trooper Fox, Engesser's trial counsel and first habeas counsel, and Engesser.

[¶ 8.] The habeas court ruled that trial counsel and Engesser's first habeas counsel were ineffective for failing to identify and investigate Eckholm and Fowler, and that Engesser was prejudiced because their testimony would likely have altered the outcome of Engesser's trial. The court granted the petition and ordered a new trial. Following the court's ruling, in an apparent effort to bolster the rationale for a new trial, Engesser sought leave to reopen the proceeding to present testimony from two additional witnesses the State disclosed after the habeas hearing. One witness, Greg Smeenk, said that he came upon the accident right after the crash. He attempted to get to the woman inside the car, but could not open the passenger-side door. He testified that he went over to the driver's side and was able to open the door. He took the woman's pulse and realized she was dead. Because he had his two daughters in the car and did not want them to see the accident, he left the scene before ever talking to law enforcement officers. The habeas court denied the motion to reopen because, at the time of Engesser's trial and first habeas petition, neither counsel could have known that Smeenk was a potential witness.

[¶ 9.] On appeal, we reversed because Engesser failed to prove that his first habeas counsel was ineffective in the first habeas petition. Engesser v. Dooley (Engesser III ), 2008 S.D. 124, ¶ 15, 759 N.W.2d 309, 315. At that time, SDCL 21–27–16.1 (later repealed by 2012 S.D. Session Laws, chapter 118, section 6) required that a petitioner seeking successive habeas relief show “reasonable cause” for failing to bring a claim in the previous habeas petition. Reasonable cause could be established by proof that prior habeas counsel was ineffective. See Jackson v. Weber, 2001 S.D. 30, ¶ 11, 637 N.W.2d 19, 22.

[¶ 10.] Engesser's third habeas petition in state court was also denied, after which Engesser did not seek a certificate of probable cause to appeal. Engesser then requested permission to file a successive federal habeas petition with the Eighth Circuit Court of Appeals. The court authorized the “petition ‘to present a new claim that counsel was ineffective because of new evidence of Engesser's factual innocence that could not have been discovered earlier.’ ” See Engesser v. Dooley (Engesser IV ), 823 F.Supp.2d 910, 914 (D.S.D.2011). The district court held an evidentiary hearing, during which it heard testimony from Eckholm, Fowler, and Smeenk. The court also heard testimony from Boyle and a new witness, Philip Syverson.

[¶ 11.] Boyle testified that he was working as a security guard at the Full Throttle Saloon on the night of the accident. He knew Finley and said that he saw Finley and Engesser leave the bar around 6:30–7:00 p.m., with Finley in the driver's seat of the Corvette. Boyle was not available as a witness until this hearing because he had left the state in 2000 to avoid a potential 4th DUI charge.

[¶ 12.]...