Preston v. State, 14361

• Decision Date: 19 April 1984
• Docket Number: No. 14361,14361
• Citation: 356 N.W.2d 907
• Parties: Harry Andrew PRESTON, Petitioner and Appellant, v. STATE of South Dakota, Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 907

356 N.W.2d 907

Harry Andrew PRESTON, Petitioner and Appellant, v. STATE of South Dakota, Appellee.

No. 14361 Supreme Court of South Dakota.

Considered on Briefs April 19, 1984.

Decided Oct. 17, 1984.

Richard Braithwaite of Braithwaite Law Offices, Sioux Falls, for petitioner and appellant.

Douglas E. Kludt, Asst. Atty. Gen., Pierre, for appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

PER CURIAM.

After he appealed his rape and burglary convictions, appellant, represented by other counsel, brought this post-conviction relief proceeding, alleging that he was denied effective assistance of counsel because his trial counsel had failed to call one of his witnesses. ¹ The trial court denied appellant's petition for post-conviction relief, and he appeals. We affirm.

At appellant's trial the victim testified that in the early morning hours of July 23, 1981, her apartment was broken into and she was raped by appellant, whom she recognized from his build, voice, hair, and profile as her former neighbor. The victim testified that as appellant drove away from her apartment after the rape, she looked at a clock and observed that it was 5:20 a.m.

Both appellant and his wife testified to his alibi. Their story was that at the time of the alleged rape appellant was at home, where they were having an argument. Appellant's wife testified that appellant had left the house at 5:30 a.m. Appellant testified that after leaving home he drove to a truck stop restaurant and then to Swiden's Appliance, his place of employment. Appellant's wife also admitted, however, that later on the morning of July 23, when the police inquired as to appellant's whereabouts, she stated that appellant had left the house between 4:30-5:00 a.m. that morning. One police officer testified that she had actually told them that appellant had left between 4:00-4:30 a.m.

Appellant's employer, Alex Swiden, testified at the trial as a rebuttal witness for the state. He stated that he saw appellant at the store on the morning of July 23. After a dispute with appellant about some allegedly unpaid-for work, Swiden gave appellant five dollars and told him to leave. Swiden testified that appellant did not work that morning.

An acquaintance of appellant's wife, Donna Feucht, testified only at the post-conviction proceeding. She stated that she saw appellant's car at Swiden's about 10:00 a.m. on July 23. After Feucht picked up appellant's wife at home, they drove back to Swiden's. Although appellant was not there when the two arrived, he appeared sometime thereafter.

Appellant's sole contention is that he was denied the effective assistance of counsel because his trial counsel failed to call Feucht to attack Swiden's credibility. Appellant argues that Swiden's testimony that appellant had not worked on the morning of the rape was a "blockbuster" because it destroyed appellant's credibility by conflicting with his testimony that he had worked. Appellant claims it was essential that trial counsel call Feucht as a witness to rebut Swiden's testimony and rehabilitate appellant's credibility.

As we recently observed, a claim of ineffective assistance of counsel is reviewed in the light of a two-part standard: (1) an attorney is presumed competent, and (2) the party alleging incompetence has a heavy burden in establishing ineffective assistance. Moreover, our function is not to second-guess a trial attorney's tactical decisions nor to substitute our theoretical judgment for that of trial counsel. Jones v. State, 353 N.W.2d 781 (S.D.1984), and cases cited therein. See also, e.g., Stacey v. State, 349 N.W.2d 439 (S.D.1984); High Elk v. State, 344 N.W.2d 497 (S.D.1984); State v. McBride, 296 N.W.2d 551 (S.D.1980). ²

We conclude that when weighed against the above-cited standards, appellant's trial counsel's performance was not constitutionally...