Jenner v. Dooley

• Decision Date: 10 February 1999
• Docket Number: No. 20428,20428
• Citation: 1999 SD 20,590 N.W.2d 463
• Parties: Debra JENNER, Applicant and Appellant, v. Robert DOOLEY, Warden, Springfield State Prison, Appellee.
• Court: South Dakota Supreme Court

Page 463

590 N.W.2d 463

1999 SD 20

Debra JENNER, Applicant and Appellant, v. Robert DOOLEY, Warden, Springfield State Prison, Appellee.

No. 20428.

Supreme Court of South Dakota.

Argued Sept. 16, 1998.

Decided Feb. 10, 1999.

David M. Hosmer, Yankton, South Dakota, for appellant.

Mark Barnett, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, South Dakota, for appellee.

KONENKAMP, J.

¶1 Without an evidentiary hearing, the circuit court dismissed the habeas corpus applicant's claims for undue delay in filing and for failure to state a claim upon which relief can be granted. We conclude the court erred in dismissing the application as untimely, but we affirm the dismissal because the application nonetheless failed to state a legally sufficient claim for relief.

Facts

¶2 Three-year-old Abby Lynn Jenner was found stabbed to death in her home in Huron, South Dakota, on the morning of April 5, 1987. With no evidence of forced entry, law enforcement officers deduced that the killer had to have come from inside the home. All the doors and windows were locked and intact. The only persons in the house at the time of the murder were Abby's parents, Lynn and Debra Jenner, and their other child, five-year-old Stuart.

¶3 In the course of their investigation, officers separately interviewed both Lynn and Debra. Several times Debra implicated herself in her child's death. Although she claimed she could not remember doing it, she said she may have "psyched out" and killed Abby. In an altered voice, she narrated the murder as though Abby were relating it, giving a description of the weapons Abby saw--a Chicago Cutlery knife and a black model airplane. Investigators found a Chicago Cutlery knife and a black model airplane in the home. The slash wounds corresponded with the shape of the knife and the model airplane seemed to reflect a unique wound found on Abby's body. Strands of head hair were found in Abby's hand. In Debra's narration she told investigators the perpetrator's hair was long enough to hang into Abby's bed and Abby grabbed the hair. When asked if she had been the person standing over Abby, Debra replied, "I think so." After the interviews, when she was reunited with her husband, Debra cried out, "I did it, I did it. Did you help me?" Lynn answered that he had not.

¶4 Debra Jenner was charged with the murder. At her trial, the State presented the testimony of Dr. Brad Randall, the forensic pathologist who had performed the autopsy of Abby's body. Dr. Randall testified that Abby was wounded over seventy times in a "frenzy type" attack. He suggested that two weapons were used to kill Abby, and he concluded that one of the weapons could have been the black model airplane described by Debra and found in the Jenner home. He described some of the wounds as slashes, consistent with injuries inflicted by an object sharpened on one side and dull on the other. Other punctures and scrapes were indicative of an injury caused by a blunt edged instrument. The autopsy also revealed a puncture wound, characterized by Dr. Randall as "relatively unique," which reflected the physical shape of the model airplane. His testimony about the width of the knife used to inflict Abby's fatal injuries, however, was not altogether consistent. In his appearance before the grand jury, he estimated the width to be three-fourths of an inch. At trial, he changed his opinion to conclude that the knife was three-eighths of an inch to one-half inch wide. Debra's trial counsel called no expert to refute Dr. Randall's testimony.

¶5 Abby's wound pattern indicated that she may have attempted to ward off some of the blows during the attack. Hair found on her arms and in her left hand, and Abby's own hair and blood samples were preserved during the autopsy. Rex Riis, a criminologist with the South Dakota Forensic Laboratory, microscopically examined these samples, but they were not analyzed using DNA typing. In comparing known hair samples from Lynn, Debra, and Abby with the hair found on Abby, Riis concluded that the hair on Abby's arms and in her left hand could either be head hairs from Debra or Abby, but not Lynn.

¶6 Upon the jury's verdict of guilty of second degree murder and Debra's sentence of life imprisonment, the court signed and filed its judgment on March 25, 1988. We affirmed her conviction on February 14, 1990. See State v. Jenner, 451 N.W.2d 710 (S.D.1990). She then sought habeas relief in the United States District Court of South Dakota, which was denied on September 26, 1991. The Eighth Circuit Court of Appeals affirmed. Jenner v. Smith, 982 F.2d 329 (8th Cir.1993), cert. denied, 510 U.S. 822, 114 S.Ct. 81, 126 L.Ed.2d 49 (1993). On January 25, 1996, Debra filed an application for writ of habeas corpus, a motion for discovery, and an affidavit in support of motion for discovery in Beadle County Circuit Court. Her allegations included claimed violations of the United States Constitution and the South Dakota Constitution, based on the failure to perform DNA testing on the hair samples and ineffective assistance of counsel for failure to call an expert to contradict the testimony of Dr. Randall. This initial application came seven years, ten months after Debra's original conviction, and five years, eleven months after her conviction was affirmed by this Court.

¶7 Debra's attorney amended her petition on August 11, 1996, asserting seven grounds for relief. She maintained that her trial attorneys were ineffective because they (1) failed to interview Dr. Randall and Mr. Riis before trial to prepare for cross-examination, and (2) failed to obtain experts to counter the testimony of Dr. Randall and Mr. Riis. She also alleged that (3) the State committed prosecutorial misconduct by arguing the absence of a third party perpetrator when she was precluded from offering any evidence on that theory, (4) the trial court improperly allowed the jurors to visit the crime scene, (5) the State failed to disclose exculpatory evidence after her conviction, (6) the hair and blood samples taken by the investigating officers were never subjected to DNA analysis, and (7) the State violated her rights by incarcerating an innocent person. Both in her habeas application and by separate motion Debra asked for the release of the hair and blood exhibits for DNA testing. The court denied the request because there was no reasonable probability that the result of the testing would be exculpatory.

¶8 The State moved to dismiss the amended application in its entirety as (1) untimely pursuant to SDCL 21-27-3.2 and (2) for failure to state a claim upon which relief can be granted under SDCL 15-6-12(b)(5). Debra submitted two memorandums responding to the State's motions to dismiss. In these documents, she only claimed that her trial counsel's performance was ineffective for failing to call an expert to refute the testimony of Dr. Randall. She did not dispute the trial testimony of Rex Riis. Furthermore, during a telephonic hearing Debra's attorney agreed the allegation that trial counsel was ineffective for failing to suitably prepare for cross-examination of Dr. Randall and Mr. Riis could be dismissed.

¶9 On February 20, 1998, the circuit court dismissed the amended petition as untimely under § 21-27-3.2, but left for determination Debra's allegations that the State failed to disclose exculpatory evidence and failed to test the hair samples using DNA analysis. Without receiving any evidence, the court concluded as a matter of law that the State was prejudiced in its ability to respond to the application because the memories of witnesses had faded, and Debra had failed to overcome this presumption. See SDCL 21-27-3.2. As another ground for dismissal, the court held that the allegations in the petition failed to state a claim pursuant to § 12(b)(5), except Debra's assertion of impropriety in allowing the jury to visit the crime scene. The court reasoned that (1) Debra's ineffective assistance of counsel claims were insufficient as a matter of law because her trial counsel's performance was not deficient and, moreover, no claimed deficiency prejudiced the outcome. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). (2) Debra failed to identify any opinion of Rex Riis that could have been rebutted had trial counsel called a counterexpert. (3) As for Dr. Randall's trial testimony, the court concluded as a matter of law that failing to call an expert to refute his opinion concerning the unique puncture wound was not prejudicial because the outcome of Debra's trial would not have been different. (4) Debra's other claims were deemed waived because they had not been raised on direct appeal. Lastly, the court granted the State's request for a more definite statement on the allegation that the jury's view of the crime scene was improper.

¶10 Debra now appeals the dismissal of her amended application for habeas corpus, raising the following issues: (1) Did the habeas court err when it held that Debra's writ should be dismissed under § 21-27-3.2? (2) Did the habeas court err when it dismissed Debra's claim of ineffective assistance of counsel because trial counsel failed to counter the testimony of Dr. Randall? (3) Did the habeas court err when it dismissed Debra's request for post-conviction discovery because she failed to make a showing that exculpatory evidence would be discovered through DNA testing? (4) Did the habeas court err when it dismissed Debra's claim that the State committed prosecutorial misconduct? ¹ (5) Did the habeas court err when it found that § 21-27-3.2 was constitutional? ²

Standard of Review

¶11 A habeas corpus applicant has the initial burden of proof to establish a colorable claim for relief. Johnson v. Zerbst, 304 U.S. 458, 468-69, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461 (1938). " 'Habeas corpus can be used only to review (1) wheth...