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Reay v. Young

Supreme Court of South Dakota

November 20, 2019

BRAD REAY, Petitioner and Appellant,
v.
DARIN YOUNG, Warden, S.D. State Penitentiary, Respondent and Appellee.

          ARGUED AUGUST 27, 2019

          APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES COUNTY, SOUTH DAKOTA. THE HONORABLE JOHN L. BROWN Retired Judge.

          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 court[1] 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 ...


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