Appeal from the United States District Court for the District of South Dakota.
The opinion of the court was delivered by: Murphy, Circuit Judge.
Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.
Before the court is Oakley Bernard Engesser's second federal habeas petition. Engesser was convicted of vehicular homicide and vehicular battery by a South Dakota jury and was sentenced to 25 years imprisonment. He claims that his trial counsel was ineffective for not calling two exculpatory witnesses and that previously undiscoverable evidence shows that he was not the driver of the car involved in the accident. The district court granted the petition after an evidentiary hearing, and respondent appeals. We reverse.
Engesser left the Full Throttle Saloon in Sturgis, South Dakota with Dorothy Finley around 6:00 p.m. on July 30, 2000. They drove off in Finley's red corvette, and around 8:10 p.m. their car collided with a minivan on an interstate highway. They had been traveling 112 miles per hour at the time, and their car rolled over several times before coming to rest upside down in the median. Finley was killed in the accident, and two of the minivan's occupants were injured. Engesser was found on the ground unconscious, and Finley's body was inside the car on the passenger side. According to one witness, Finley was lying face down against the roof of the car, in line with the passenger seat, with her feet underneath the dash board. At the time of the crash Finley's blood alcohol concentration was .102, and Engesser's was approximately .125. Engesser was later charged with one count of vehicular homicide and two counts of vehicular battery.
The main issue at trial was whether Engesser or Finley had been driving the corvette when it hit the minivan. The jury heard testimony from some witnesses who had stopped at the scene of the accident and observed that the driver side door was open. There was evidence that the passenger door was damaged and could not be opened and that the door window on that side had shattered and was completely gone, but the roof and front windshield were intact. Neither Finley nor Engesser had been wearing a seatbelt. The emergency room physician who treated Engesser testified that the person in the passenger seat would have suffered serious injuries because that side of the corvette was the point of impact with the minivan. Finley died of injuries to the right side of her head and body while Engesser was injured on both sides of his body. Finley's purse was found underneath the dashboard on the passenger side of the car, and her daughter testified that her mother normally kept her purse at her feet when she was a passenger.
Highway patrol officer Ed Fox was responsible for investigating the accident, but he arrived after Finley and Engesser had been moved. The first responding officers from the sheriff's department and the state highway patrol had not taken photographs of the positions in which the bodies were found. Fox testified at trial that he took statements from witnesses the night of the accident but that no one had been able to identify whether the driver was a man or woman. He opined that because the inside of the vehicle was compact, it was unlikely that the crash had flung the passengers around inside the car or that Engesser had been ejected through the passenger side window. Engesser was five inches taller than Finley, and Fox explained that the driver's seat was positioned so that someone of Engesser's height would have been comfortable in it. Fox also testified that Engesser had told him after the accident that Finley had been the driver, but he thought Engesser was lying.
Engesser did not testify at trial or present any witnesses, but the video recording of his interview with Fox was played for the jury. Engesser suffered brain damage in the accident, and he explained to Fox that he had no memory of the night after leaving the bar. While he stated that Finley had been driving when they left the bar, he agreed that it was possible they had switched before the accident. The trial court excluded hearsay testimony from Engesser's civil attorney that Sean Boyle, a security guard at the Full Throttle Saloon, had told him that he saw Engesser and Finley leave the bar the night of the accident and that Finley was driving. The jury found Engesser guilty, and the trial judge sentenced him to a total of 25 years on the three convictions.
Engesser appealed his convictions, challenging the exclusion of Sean Boyle's hearsay observations, the admission of Fox's opinion that Engesser had been lying when he said that Finley was driving, the admission of blood alcohol evidence, and the denial of his request for a particular jury instruction. The South Dakota Supreme Court affirmed his conviction. State v. Engesser, 661 N.W.2d 739 (S.D. 2003). Engesser subsequently filed a total of three state and two federal habeas petitions. His second federal petition is the one now before this court. In it Engesser claims that his trial attorney was ineffective for not investigating witnesses Eric Eckholm and Charlotte Fowler or presenting them at trial. Their cars had been parked on the shoulder of the interstate at the time of the accident, and Engesser asserts that a jury would not have found him guilty if it had heard their exculpatory testimony. This claim is different from the ineffectiveness claim brought in his first federal habeas petition.
Engesser's first state habeas petition was filed in 2003. New counsel was appointed for him, and Engesser's petition included a claim that his trial counsel had been ineffective for not calling "all potential defense witnesses who witnessed the vehicle in question driven by the alleged victim, Dorothy Finley, rather than [Engesser]." Neither Eric Eckholm and Charlotte Fowler were mentioned as potential witnesses in this petition. Timothy Rensch, Engesser's trial counsel, indicated at an evidentiary hearing that his discovery information had included the name of Eric Eckholm. The record shows that a witness list provided by Officer Fox had also included Charlotte Fowler,*fn1 noting that her car had been parked on the side of the highway at the time of the accident. The state questioned Rensch about Eric Eckholm at the habeas hearing. Rensch responded that he had been aware of Eckholm as a potential witness before Engesser's trial but had not interviewed him because his statement the night of the accident had not identified the driver of the corvette. Rensch had apparently not believed that Eckholm had relevant information for Engesser's defense. He further testified that Eckholm had subsequently contacted him "after the appellant's argument was publicized" and told him then that he had "exculpatory information." Rensch did not agree with this assessment. The court denied the petition, and the South Dakota Supreme Court declined to review its decision.
Engesser filed his first federal habeas petition pro se in 2004. He included a claim for ineffective assistance of trial counsel based on Rensch's failure to object to Fox's opinion testimony that Engesser had been lying when he had said that Finley was driving the car and Rensch's failure to request and present forensic evidence. The district court denied the petition. Engesser appealed and was appointed counsel who was contacted by Eric Eckholm after the appeal had been argued, but before this court issued its decision.
The federal appellate attorney took Eckholm's deposition. Eckholm testified that on the night of the accident he had seen the corvette before it hit the minivan, that the driver had been a woman, that her hair was "shoulder length" and "flying around," and that "she wasn't blonde." Eckholm also said that he saw a man in the passenger seat who was thrown through the roof of the car after it collided with the minivan. Eckholm described the corvette as rolling five or six times before coming to rest and said that the man landed 100 feet away. He also stated that the rear of the corvette struck the minivan, which was inconsistent with the physical evidence. The record indicates that the intact roof of the car was still in place after the crash.
Eckholm stated that he had heard about Engesser's case through news reports and had contacted Rensch. Rensch initially expressed interest in Eckholm's information but later told him that his client "was kind of a bad guy anyway . . . and that the cops wanted to put him away anyway because he was always in trouble." Eckholm explained to Engesser's first federal habeas attorney that he himself had "got[ten] a raw deal" in an encounter with the "Meade County police" and was concerned that Engesser was "being wronged by the highway patrolman." Counsel did not bring Eckholm's testimony to this court's ...