Reay v. Young

• Decision Date: 20 November 2019
• Docket Number: #28760
• Citation: 936 N.W.2d 117
• Parties: Brad REAY, Petitioner and Appellant, v. Darin YOUNG, Warden, S.D. State Penitentiary, Respondent and Appellee.
• Court: South Dakota Supreme Court

936 N.W.2d 117

Brad REAY, Petitioner and Appellant,

v.Darin YOUNG, Warden, S.D. State Penitentiary, Respondent and Appellee.

#28760

Supreme Court of South Dakota.

ARGUED AUGUST 27, 2019

OPINION FILED November 20, 2019

ROBERT T. KONRAD of Olinger, Lovald, McCahren, Van Camp & Konrad, P.C., Pierre, South Dakota, Attorneys for petitioner and appellant.

JASON R. RAVNSBORG, Attorney General, PAUL S. SWEDLUND, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent and appellee.

SALTER, Justice

[¶1.]A jury convicted Brad Reay of first-degree murder in the death of his wife, Tami.He received a mandatory sentence of life in prison without the possibility of parole.After we affirmed Reay’s conviction on direct review, he sought a writ of habeas corpus, alleging his trial counsel rendered ineffective assistance.The habeas court denied relief but issued a certificate of probable cause.Reay appeals the habeas court’s determination.We affirm.

Background

[¶2.]The underlying criminal case dates back to late 2005.At the time, Reay lived in Pierre with Tami and their daughter, Haylee, who was 13 years old at the time of trial.Tami began an affair with a coworker in December of 2005, and the Reays’ marriage rapidly deteriorated.Though the Reays lived in the same home, they had separate bedrooms.Tami continued her affair and suggested they divorce at the end of Haylee’s school year.

[¶3.]Tami was stabbed to death in an attack or series of attacks that most likely began in her bed sometime during the overnight hours of February 7-8, 2006.When she was reported missing the next day, investigators concluded that Reay was involved in her disappearance and arrested him for first-degree murder.Two days later, a South Dakota National Guard pilot flying over the Pierre area spotted a body, later identified as Tami, by the emergency spillway at the Oahe Dam.

[¶4.]The circuit court¹ appointed Rapid City attorney Tim Rensch to represent Reay, whose defense initially appeared to be that Tami was killed by an unknown assailant.After several months, though, Rensch testified that Reay mentioned "[t]here is another possibility[.]"Reay then, for the first time, explained to Rensch that Haylee had murdered Tami after allegedly expressing anger about her mother’s extramarital affair.Reay claimed that he had encountered Haylee in a "catatonic" state immediately after the murder, still holding the hunting knife she had used as the murder weapon.

[¶5.]This theory became Reay’s defense to the murder charge at his trial.He claimed that he was guilty only of covering up evidence of the crime by cleaning the house, disposing of the knife, and moving Tami’s body.Three areas of physical evidence at trial figure prominently in this habeas appeal.

[¶6.]The first concerns a mark on Tami’s left breast noted by forensic pathologist Dr. Donald Habbe during the autopsy.The mark was a broken straight-line abrasion on the skin.Dr. Habbe was uncertain of its origin, but testified that it could possibly be a bite mark or perhaps a mark from the hilt of the knife used to inflict a nearby stab wound.Regardless, Dr. Habbe was unable to definitively determine what caused the abrasion.At his trial, Reay argued that the mark was a bite mark resembling Haylee’s gapped front teeth.

[¶7.]The second item of evidence was a towel that appeared to have a drop of blood on it.The towel, believed to have been from the Reay home, was found inside the vehicle Reay used to transport Tami’s body.Subsequent testing revealed DNA belonging to Tami and a combination of DNA that could not be identified, but forensic analysis determined that Reay could not be excluded as a contributor.Reay argued at trial that the DNA testing results created the possibility of a third unidentified source of DNA, suggesting it could be Haylee.

[¶8.]Finally, investigators recovered a tarp near the Oahe Dam spillway that was stained with a large amount of blood and had a series of slits.The parties disagreed about whether these slits corresponded with all of the stab wounds on Tami’s body.Reay admitted at trial that he had used the tarp to remove and transport Tami’s body, claiming he had done so to protect Haylee and help her avoid responsibility for murdering her mother.

[¶9.]A jury convicted Reay of first-degree murder, and the circuit court imposed a mandatory sentence of life in prison without the possibility of parole.Reay appealed, and we affirmed his conviction in State v. Reay , 2009 S.D. 10, 762 N.W.2d 356.

[¶10.]In his amended habeas petition, Reay alleges that Rensch rendered ineffective assistance because he did not engage any expert witnesses to evaluate the possible bite mark, the towel, and the tarp.In Reay’s view, experts in these areas would have been helpful to definitively tie the evidence to Haylee and strengthen his defense.Reay’s habeas counsel also moved for the appointment of expert witnesses in the areas of "bite marks, DNA testing, and tool marks."The circuit court² denied the motion, and Reay has not challenged that ruling on appeal.³

[¶11.]Rensch was the only witness at the habeas hearing.He testified that he did not engage experts in the areas Reay identifies because he could make arguments consistent with the defense theory without the experts.Engaging experts, in Rensch’s view, would have accomplished little or nothing for the case and likely would have provided the State with some degree of notice, enabling prosecutors to counter the defense experts with tactical arguments and experts of their own.

[¶12.]The circuit court denied Reay’s habeas petition, concluding he had not demonstrated that Rensch was ineffective.Reay presents one issue on appeal, which we restate as follows: Whether the circuit court erred when it concluded Reay was not deprived of effective assistance of counsel and denied his petition for habeas relief.

Analysis

[¶13.]We review a circuit court’s determination of a Sixth Amendment ineffective assistance of counsel claim as a mixed question, reviewing the court’s decision on the constitutional issue de novo and its findings of fact for clear error.Madetzke v. Dooley , 2018 S.D. 38, ¶ 8, 912 N.W.2d 350, 353.A petitioner’s ineffective assistance claim is analyzed under the familiar two-pronged standard set out in Strickland v. Washington :

First, the defendant must show that counsel’s performance was deficient.This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.Second, the defendant must show that the deficient performance prejudiced the defense.This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674(1984).

[¶14.]Both prongs of Strickland present demanding challenges for petitioners.

Initially, "[a] habeas applicant must rebut the ‘strong presumption’ that counsel was competent."Jenner v. Dooley,1999 S.D. 20, ¶ 16, 590 N.W.2d 463, 470(quotingKimmelman v. Morrison , 477 U.S. 365, 381, 106 S. Ct. 2574, 2586, 91 L. Ed. 2d 305(1986) ).Our function is not to "second guess the decisions of experienced trial attorneys regarding matters of trial tactics unless the record shows that counsel failed to investigate and consider possible defenses ...."Randall v. Weber , 2002 S.D. 149, ¶ 7, 655 N.W.2d 92, 96(quotingSprik v. Class , 1997 S.D. 134, ¶ 24, 572 N.W.2d 824, 829 )."A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time."Strickland , 466 U.S. at 689, 104 S. Ct. at 2065.

[¶15.]Under Strickland’s second prong, we have held that prejudice from deficient representation exists when "there is a reasonable probability of a different outcome."Knecht v. Weber , 2002 S.D. 21, ¶ 5, 640 N.W.2d 491, 495."A reasonable probability is a probability sufficient to undermine confidence in the outcome."Id.(quotingWeddell v. Weber , 2000 S.D. 3, ¶ 25, 604 N.W.2d 274, 281 ).

[¶16.]For each of the three areas of evidence Reay identifies here, Rensch’s decision to not engage an expert witness was part of a sound trial strategy.As Rensch explained during his testimony, Reay’s defense was not premised upon actually solving Tami’s murder.Instead, it was designed to create doubt that Reay had killed Tami, while at the same time offering a plausible alternate explanation that Haylee had killed her.As a complimentary theme, Rensch attempted to sow skepticism about the investigation by suggesting that law enforcement officers were focused parochially on Reay and did not objectively consider the possibility that Haylee could be responsible.

[¶17.]For instance, Rensch was not inclined to use an expert in bite mark evidence, also known as odontology, because Dr. Habbe had allowed for the possibility that the dashed-line mark on Tami’s breast could be a bite mark.With this testimony, Rensch could simultaneously suggest that the marks matched Haylee’s gap-tooth dentition and that the State had overlooked an important clue.He described the approach during his testimony at the habeas hearing:

Here you had two dashes that we were able to argue were the daughter’s bite and that was already a good piece of information for us.And what’s even more so about that is that went along with my theory as it related to other matters like the DNA and the various things in the entire theory of the defense, which was that the government or the State intentionally stayed away from anything that would support the contention that the

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