APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT CODINGTON COUNTY, SOUTH DAKOTA THE HONORABLE RONALD K. ROEHR Judge
The opinion of the court was delivered by: Zinter, Justice
CONSIDERED ON BRIEFS ON AUGUST 27, 2012
[¶1.] Dawn Hannemann was convicted of arson in connection with a fire in her apartment. She appeals arguing that the circuit court abused its discretion: (1) in denying her motions for judgment of acquittal and new trial based on a claim of ineffective assistance of trial counsel; and (2), by excluding an out-of-court statement made by her estranged sister. We affirm.
Facts and Procedural History
[¶2.] On the night of October 31, 2010, Hannemann was alone in her Watertown apartment that she shared with her teenage son. She had taken her son to visit her daughter in Fargo, North Dakota. In the early morning hours of November 1, 2010, a fire started on the first floor of the apartment. Hannemann testified that she attempted to exit through the front door on the first floor. But because of heavy smoke, she opened a second-story-bedroom window, screamed for help, and jumped, injuring herself. Emergency responders arrived, Hannemann was transported to a hospital, and firefighters extinguished the fire.
[¶3.] The Watertown Fire Department, Allstate Insurance Company (Hannemann's insurer), and Midwest Family Mutual Insurance Company (the apartment owner's insurer) conducted simultaneous investigations. The Allstate and Midwest investigators believed that the fire had been intentionally set. One Allstate investigator collected carpet samples and sent them to a chemist to be tested for ignitable liquid residue. Another Allstate investigator sent Hannemann's computer to an electrical engineer to determine whether it played a role in the fire.
The Midwest investigator sent the smoke alarms and an electrical outlet from the apartment to a second electrical engineer for analysis.
[¶4.] Hannemann's court-appointed attorney requested a court-appointed computer expert and made a lengthy discovery motion. Counsel did not request a court-appointed fire investigator, electrical engineer, or chemist. Additionally, counsel did not obtain independent testing of the carpet samples or electrical devices, and counsel did not make a Daubert motion to challenge the reliability of the State's experts' opinions. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
[¶5.] During the course of a three-day jury trial, the three fire investigators employed by Allstate and Midwest testified that the fire had been intentionally set. The two electrical engineers testified that the electrical devices in the apartment had not caused the fire. The chemist testified that the carpet sample from the fire's place of origin contained residue from an ignitable accelerant, while samples from other places in the room did not.
[¶6.] Additional evidence also suggested arson. The smoke detectors in the apartment were hard-wired to a circuit breaker with back-up battery power in case of electrical failure. Analysis of these systems revealed that the electrical circuit for the smoke detectors had been turned off and the back-up batteries for three of the four smoke alarms had been removed. Fire investigators also noted that a substantial amount of Hannemann's clothing, shoes, and decorative wall hangings had been removed prior to the fire. After the fire, Hannemann filed a $53,000 insurance claim for damage caused by the fire.
[¶7.] Hannemann's testimony at trial was also inculpatory. Shortly after the fire, Hannemann told law enforcement that she had not touched the smoke detectors in the apartment. At trial, however, Hannemann admitted that she may have removed a battery. Hannemann also admitted that she had browsed the Internet on the night of the fire. Evidence from Hannemann's computer revealed Internet searches on smoke alarms, renter's insurance, house fires, and Allstate's insurance coverage in South Dakota.
[¶8.] Hannemann testified that she did not know how the fire started, but that if it was intentionally set, she suspected Ashley Tofteland, her estranged sister. To support this theory, Hannemann wanted her mother, Mary Briggs, to testify. Hannemann's trial counsel gave Hannemann a subpoena to deliver to Briggs. Trial counsel did not utilize the services of a sheriff or process server to secure the appearance of Briggs. Briggs did not appear to testify. Briggs later explained that she did not appear because she was not properly served with a subpoena.
[¶9.] Hannemann also sought to support her theory that Tofteland set the fire through the testimony of Leallen Endres, a furniture dealer. Hannemann attempted to elicit testimony from Endres that Tofteland came to Endres' business stating that Hannemann was going to blame the fire on a couch that Endres sold Hannemann. The circuit court excluded Endres' proposed testimony as inadmissible hearsay.
[¶10.] The jury found Hannemann guilty of arson by starting a fire with intent to destroy or damage property in order to collect insurance. After trial, Hannemann obtained a new court-appointed attorney who moved for a judgment of acquittal and new trial, claiming ineffective ...