Argued October 6, 2014
APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT MEADE COUNTY, SOUTH DAKOTA. THE HONORABLE WARREN G. JOHNSON, Judge.
RONALD A. PARSONS, JR., DELIA M. DRULEY of Johnson, Heidepriem & Abdallah, LLP, Sioux Falls, South Dakota and MICHAEL J. BUTLER, Sioux Falls, South Dakota, Attorneys for petitioner and appellee.
MARTY J. JACKLEY, Attorney General, PAUL S. SWEDLUND, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent and appellant.
KONENKAMP, Justice. GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and WILBUR, Justices, concur.
[¶1] In this habeas proceeding, the circuit court ruled that the petitioner established clearly and convincingly that newly discovered evidence, if proven and viewed in light of all the other evidence, would establish that no reasonable juror would have convicted him. The court ordered a new trial, and the State appeals.
[¶2] In 2001, a jury convicted Oakley " Bernie" Engesser of vehicular homicide and two counts of vehicular battery. The sole issue at the trial was whether Engesser or the deceased, Dorothy Finley, was driving her Corvette when it crashed into a minivan on Interstate 90. Neither Engesser nor Finley was wearing a seatbelt and both had been drinking alcoholic beverages. The Corvette was going " approximately 112 miles per hour when it slammed into the back of the minivan, spun off the road, and rolled several times before coming to rest on its roof in the median." See State v. Engesser ( Engesser I ), 2003 S.D. 47, P 6, 661 N.W.2d 739, 744. No witness at trial testified to seeing the driver of the Corvette. Engesser was thrown from the car, landing face down in the median. Multiple witnesses at trial placed him between five and ten feet from the driver's side of the Corvette. Engesser was unconscious and suffered a gash to the right side of his head. Finley was trapped in the car on the passenger side " underneath the passenger seat, her body in line with the seat. The upper part of Finley's body was lying over the top of the seat. She was facing the ground. Her feet were underneath the dash. Her face was pointing toward the driver's side." Id. P 7. The passenger side was crushed and the window shattered, but the roof and front windshield were intact. Finley was pronounced dead at the scene.
[¶3] At trial, the State presented evidence from Trooper Ed Fox, the lead investigator. Trooper Fox arrived on the scene after Engesser and Finley had been taken away. He obtained statements from the witnesses at the scene. No witness, however, stated specifically whether the driver was a man or woman. Nonetheless, based on the positioning of and injuries to Finley's body, as later described to Trooper Fox, he concluded that Engesser was the driver.
[¶4] The State also offered evidence from Finley's daughter, who testified that Finley normally kept her purse at her feet when she was the passenger. The purse was found underneath the dashboard on the passenger side. The emergency room physician who treated Engesser testified that the person in the passenger seat would have suffered the most serious injuries because it was the point of impact with the minivan. Engesser suffered injuries on both sides of his body. Finley died of injuries to the right side of her body and head.
[¶5] Engesser did not testify at trial. But the jury viewed a video recording of his interview with Trooper Fox, in which Engesser explained that he did not remember anything after leaving the Full Throttle Saloon. Although Engesser believed Finley was driving, he agreed it was possible they ...