APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA HONORABLE JOHN J. DELANEY Judge
The opinion of the court was delivered by: Konenkamp, Justice
[¶1.] Petitioner was convicted of criminal pedophilia and sentenced to life in prison. After this Court affirmed his conviction on direct appeal, he petitioned the circuit court for a writ of habeas corpus. Petitioner alleged, among other things, that the trial judge made improper comments during the trial, violating his constitutional right to a fair trial. In its first decision, the habeas court agreed that the comments were inappropriate, but concluded that petitioner failed to establish the requisite prejudice. On reconsideration, the habeas court granted petitioner's writ. It concluded that the trial judge's comments created a structural error negating petitioner's requirement to establish prejudice, and it also retracted its earlier ruling that trial counsel's failure to object was not prejudicial. On appeal, we reverse because the trial judge's comments did not constitute a structural error, and despite defense counsel's failure to object to the judge's improper remarks, petitioner has not met his burden of showing that the jury's verdict would reasonably likely have been different absent trial counsel's errors.
[¶2.] Dale Guthmiller was charged with criminal pedophilia in violation of SDCL 22-22-30.1 (now repealed).*fn1 The State alleged that he committed an act of sexual penetration with R.B., a four-year-old girl. In a part two information, he was charged as a habitual offender. A jury trial was held in January 2002. During voir dire, defense counsel posed the following question to the jury: "Does anybody feel that as I said before, where there's smoke there's fire? If someone has been charged with a crime that necessarily means that, you know, he's done something?" At that point, the trial judge interjected:
Well, Mr. Mamula, that's not right. The police in South Dakota don't just go out on the street and round people up and bring them in here, so something had to be done. The question is will you make the State prove beyond a reasonable doubt that the Defendant is guilty or not.
Defense counsel did not object or ask for a mistrial. [¶3.] After the jury was empaneled, the State presented evidence that Guthmiller owned a motorcycle shop called "Wrench's Repair." R.B.'s mother, M.B., and Guthmiller were friends. M.B. had recently started working for Guthmiller. On July 9, 2001, she brought R.B. to work with her. R.B. liked Guthmiller. In particular, she enjoyed playing with Guthmiller's cats while her mother worked. [¶4.] That afternoon, a customer came to the shop looking for Guthmiller.
M.B. told the customer he was working back in the shop. When the customer returned a few minutes later, he said he was unable to find Guthmiller. M.B. realized R.B. was missing and began looking for her. Guthmiller later appeared with R.B. He told M.B. that he took R.B. to the bathroom. R.B. ran to her mother and asked to go home. But still having work to finish, M.B. had R.B. watch a movie. [¶5.] M.B. testified that later that evening she noticed that R.B. was acting differently. She was "very agitated" and "did not want anyone else around." The following day, R.B. was at her grandparents' home while M.B. was working. Her grandmother overheard R.B. say to her friend, "He won't let me play with the kittens." After the grandmother heard the statement again, she asked R.B. who she was speaking about. R.B. said she could not tell: it was a secret. R.B. said that if she told she would not be able to play with the kittens. After her grandmother urged R.B. to tell her the secret, R.B. finally disclosed that "Wrench" licked her butt. R.B. repeated that it was a secret, and if she told anyone, she would not be allowed to play with the kittens.
[¶6.] When her grandmother took R.B. home that evening, she told M.B. that R.B. had a secret, and that if she did not tell, the grandmother would. After the grandmother left, M.B. asked R.B. about the secret. R.B. said that Wrench licked her butt. R.B. also complained of pain in her "bottom," and that it "hurt to go potty." M.B. noticed that R.B.'s "vaginal area was very red." M.B. called law enforcement authorities to report R.B.'s claims.
[¶7.] Several days later, M.B. confronted Guthmiller, who broke down and cried. He said he was sorry. Guthmiller kept apologizing and asked if he could apologize to R.B. He also told M.B. that he needed help and was going to see a psychologist. He told M.B. that he did not remember the events of that day, that he could not remember what had happened, but, according to M.B., he said that if he "found out that he really did that then he deserved to go to prison the rest of his life."
[¶8.] After the trial judge found her competent, R.B. testified at trial. R.B. said that when she was with Guthmiller, he took her to the bathroom. She testified that he licked her "pee pee." Guthmiller's defense was that he did not touch R.B. He denied apologizing to M.B. and seeking to apologize to R.B. In response to the question of why he cried when M.B. confronted him, he testified, "I started crying because any kind of felony that I get would have got me major time." Defense counsel asked Guthmiller how often he took R.B. to the bathroom that day. Guthmiller replied, "9:30, 10 o'clock in the morning; about noon, 1 o'clock and about 3:30, 4 o'clock." In all, Guthmiller had taken the child to the bathroom three times.
[¶9.] Defense counsel then asked if anything happened during those three occasions. Guthmiller replied, "She went to the bathroom." After this statement the judge interrupted and said, "Wait a minute. Something happened but let's be a little more specific." Defense counsel did not object, seek a curative instruction, or move for a mistrial. Defense counsel then asked Guthmiller, "Did you touch or lick her in any way on any of those occasions?" Guthmiller replied, "No." Guthmiller then explained that he took R.B. to the bathroom because R.B. was standing by him with her legs crossed, "holding herself." He asked her if she had to use the restroom, and she said she did. Guthmiller testified that the first two times he took her, he opened the ladies' room door for her to go inside, and he stood outside and waited. The third time, however, the ladies' room was occupied. Guthmiller testified that he directed R.B. to use the men's room, while he stood outside the door and waited for R.B. to finish. Guthmiller explained that after R.B. finished he needed to use the men's room. According to Guthmiller, R.B. refused to wait outside the bathroom and went inside with him.
[¶10.] The jury found Guthmiller guilty of criminal pedophilia. Thereafter, the circuit court found him to be a habitual offender as alleged in the part two information and sentenced him to life in prison. Guthmiller appealed the jury verdict and his sentence to this Court. See State v. Guthmiller , 2003 S.D. 83, 667 N.W.2d 295. In his appeal, Guthmiller presented seven issues, one being that the circuit ...