Engesser v. Dooley

• Decision Date: 02 August 2006
• Docket Number: No. 05-2905.,05-2905.
• Citation: 457 F.3d 731
• Parties: Oakley Bernard ENGESSER, Appellant, v. Bob DOOLEY, Warden, Mike Durfee State Prison; Larry Long, Attorney General of the State of South Dakota, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

457 F.3d 731

Oakley Bernard ENGESSER, Appellant, v. Bob DOOLEY, Warden, Mike Durfee State Prison; Larry Long, Attorney General of the State of South Dakota, Appellees.

No. 05-2905.

United States Court of Appeals, Eighth Circuit.

Submitted: March 24, 2006.

Filed: August 2, 2006.

Heather Lammers Bogard, argued, Rapid City, SD, for appellant.

Sherri Sundem Wald, argued, Assistant Attorney General, Pierre, SD, for appellee.

Before RILEY, BRIGHT, and SMITH, Circuit Judges.

RILEY, Circuit Judge.

This is a habeas corpus case. See Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254. After a jury convicted Oakley Bernard Engesser (Engesser) on August 30, 2001, of one count of vehicular homicide and two counts of vehicular battery, a South Dakota state court sentenced Engesser to fifteen years' imprisonment on the homicide charge, and ten years' imprisonment on the battery charges, with one ten-year sentence running consecutively, and the other running concurrently. The South Dakota Supreme Court affirmed the convictions and sentence, and affirmed the denial of Engesser's motion for post-conviction relief. State v. Engesser, 661 N.W.2d 739 (S.D. 2003); see Engesser v. Weber, Civ. 03-408 (S.D.Cir.Ct. Apr. 20, 2004), aff'd, (S.D. July 9, 2004). Engesser timely filed an application for a writ of habeas corpus under 28 U.S.C. § 2254. The district court¹ denied habeas relief, concluding (1) the prosecutor did not violate Engesser's due process rights by (a) eliciting opinion testimony from State Trooper Edward Fox (Trooper Fox) that Engesser lied during a videotaped denial, and (b) commenting on Trooper Fox's testimony during closing argument; (2) Engesser failed to show he received ineffective assistance of counsel; and (3) the warrantless seizure of Engesser's blood to conduct a blood alcohol content (BAC) test did not violate Engesser's Fourth Amendment rights. We affirm.

I. BACKGROUND

On the early evening of July 30, 2000, the Corvette in which Engesser and Dorothy Finley (Finley) were traveling collided with a van on Interstate 90 between Sturgis and Rapid City, South Dakota. The Corvette, traveling over 100 miles per hour when it struck the van, rolled several times and came to rest on its roof in the highway's median. The collision crushed the Corvette's passenger side.

With the Corvette lying on its roof, Finley was lodged underneath and in line with the passenger seat, and her feet were underneath the passenger side dash. Emergency responders used the Jaws of Life to extract Finley from the Corvette's driver's side because they could not open the passenger side door. Finley was pronounced dead at the scene. Engesser was thrown from the car. A responder to the scene found Engesser smelling of alcohol about six to ten feet from the Corvette's open driver's side door. An ambulance transported Engesser to the hospital.

Trooper Fox led the accident's investigation. After examining the scene and receiving an erroneous report from a paramedic that Finely was found in the driver's seat, Trooper Fox went to the hospital to interview Engesser. Engesser was largely incoherent, but he denied he had been driving the Corvette. Trooper Fox noticed a strong odor of alcohol emanating from Engesser. Without a warrant or Engesser's permission, Trooper Fox ordered blood extracted from Engesser for a BAC test just "as a precaution."² Trooper Fox ordered the BAC test because a death was involved, Engesser exhibited an odor of alcohol, the exigent circumstances required action to obtain a usable blood sample, and the driver's identification was not conclusive. However, later that evening, Trooper Fox completed two reports indicating Finley was the Corvette's driver. Trooper Fox testified he believed further investigation into the vehicle's driver was necessary, and he listed Finley as the driver because she was the Corvette's owner and usual driver.³

About six weeks after the accident, Trooper Fox conducted a videotaped interview of Engesser, during which Engesser again denied driving the Corvette. The next day, Trooper Fox completed his report, concluding Engesser was the driver. Seven months later, in February 2001, Engesser was charged with vehicular homicide, second-degree manslaughter, and two counts of vehicular battery.

Before trial, Engesser moved to suppress the BAC test result, but the trial court denied the motion. The central issue at trial was whether Engesser or Finley was driving the Corvette. At trial, the prosecution played Trooper Fox's videotaped interview of Engesser in its entirety. After the tape was played, the trial court allowed Trooper Fox to testify as to his opinion on Engesser's truthfulness during the interview. The following exchange took place:

Q: (by prosecutor) When you spoke to the defendant at that September 13th interview you said, "I don't necessarily think you're lying." Did you think he was lying to you?

DEFENSE COUNSEL: Objection as to relevancy, Your Honor. THE COURT: Overruled.

A: Yes.

Q: What did you base that on?

A: My experience in interviewing people.

Q: Okay. And what about his conversation with you did you-what about that conversation made you believe he was lying?

DEFENSE COUNSEL: Objection . . . that's argumentative, it calls for speculation, and it's more prejudicial than probative, it's the ultimate issue.

(Whereupon, there was an off the record discussion)

Q: I believe my question was, what about the interview made you believe he wasn't telling you the truth?

A: There were numerous things during the interview.

DEFENSE COUNSEL: Could I have a standing objection as to those matters, Your Honor?

THE COURT: Yes.

Q: Such as?

A: One thing right off the bat you noted on the interview that before I had even asked him a question he went into a rather lengthy explanation that seemed rehearsed to me . . . and that initially right off the bat struck me because it's not often that when you meet with somebody they volunteer a lot of stuff. In fact normally it's just the opposite, when I meet with someone in my job capacity most people —

. . . .

Q: What else was it about your interview with him that led you to believe that he wasn't telling you the truth?

A: Well, one fact that I knew to be a lie, he told me that he had had two drinks all day, and I knew that was a lie.

Q: How did you know that?

A: Because I knew his blood results.

. . . .

Q: With respect then to anything else that you believed that he was-or, anything else regarding your conversation with him that led you to believe that he wasn't telling you the truth?

A: Several times during the interview if you pay close attention you'll note that when I ask him a question he will start to answer it and then stop and edit what he was going to say.

During closing argument, the prosecutor also briefly alluded to Trooper Fox's opinion testimony: "Ladies and gentlemen, you heard that based on Trooper Fox's training and experience he didn't believe that the defendant was telling the truth." The context of the prosecutor's comment was whether Engesser's videotaped statement that Finley liked to drive fast was believable.

A jury convicted Engesser of vehicular homicide and two counts of vehicular battery. After South Dakota state courts denied his direct and post-conviction appeals, Engesser sought habeas relief in federal district court, which also denied relief. Engesser's appeal brings the case before this court.

II. DISCUSSION

"In an appeal of a habeas petition, [w]e review the district court's findings of fact for clear error and its conclusions of law de novo." Hall v. Luebbers, 341 F.3d 706, 712 (8th Cir.2003) (citation omitted). For habeas relief under 28 U.S.C. § 2254, an applicant must demonstrate the state court's adjudication "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A decision is "contrary to" federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law" or if it "confront[ed] facts that are materially indistinguishable from a relevant Supreme Court precedent" but arrived at an opposite result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court "unreasonably applies" federal law when it "identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or "unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407, 120 S.Ct. 1495.

A federal court may not issue the writ simply because it "concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411, 120 S.Ct. 1495. "In other words, the state court's application might be erroneous in our independent judgment without being `objectively unreasonable.'" Clemons v. Luebbers, 381 F.3d 744, 750 (8th Cir.2004) (quoting Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). The South Dakota trial court, supreme court, and habeas court, applying South Dakota and applicable federal law, found no reversable error. The federal district court denied habeas relief. Engesser faces a high hurdle to establish these several judicial decisions were contrary to or involved an unreasonable application of clearly established federal law or were unreasonable determinations of the facts in light of the evidence presented.

A. ...