Evans v. Sullivan

#30507-a-MES
2024 S.D. 36

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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HARRY DAVID EVANS, Petitioner and Appellant,

v.

DANIEL SULLIVAN, Warden of the
South Dakota State Penitentiary, Respondent and Appellee.

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APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
CUSTER COUNTY, SOUTH DAKOTA

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THE HONORABLE JOSHUA HENDRICKSON
Judge

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JOHN R. MURPHY
Rapid City, South Dakota Attorney for petitioner and
appellant.

MARTY J. JACKLEY
Attorney General

MATTHEW W. TEMPLAR
Assistant Attorney General
Pierre, South Dakota Attorneys for respondent and
appellee.

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CONSIDERED ON BRIEFS
APRIL 23, 2024
OPINION FILED 06/26/24
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SALTER, Justice

[¶1.] Harry David Evans is serving a life sentence in prison after a jury

convicted him of six criminal offenses, including kidnapping, rape, burglary,

assault, stalking, and violating a protection order. He filed a writ of habeas corpus

setting forth nine claims, most of which alleged ineffective assistance of counsel in

connection with his underlying criminal trial. He also alleged violations of his

rights to due process and to be free of unreasonable searches and seizures. The

habeas court granted the State’s motion to dismiss three of Evans’ claims on the

basis of res judicata because they were effectively resolved in Evans’ direct appeal.

After an evidentiary hearing, the court denied the remaining claims and dismissed

Evans’ request for habeas relief. The court issued a certificate of probable cause,

and Evans appeals. We affirm. 1

Factual and Procedural Background

The crime

[¶2.] After the breakup of her marriage, S.B. was living alone on an 11-acre

property in Pennington County where she kept horses and other animals. She met

Evans on an online dating site in 2016, and the two connected over their love for

animals. They soon began an arrangement under which Evans helped S.B. care for

her horses in exchange for a place to stay. But this employment-type arrangement

1. Evans previously appealed after the habeas court issued an earlier certificate
of probable cause following its res judicata ruling that resolved some but not
all of Evans’ claims. We dismissed the appeal because it was not a final
order. See SDCL 21-27-18.1 (limiting review in habeas cases to “final
order[s]” for which a certificate of probable has been issued).
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quickly developed into a romantic relationship that, in time, became tumultuous

and was characterized by its on-again-off-again nature.

[¶3.] In December 2016, Evans trapped S.B. in her basement after she

confronted him about having his mail delivered to her home. Evans threatened to

kill both S.B. and himself, but S.B. was able to escape and called the police. Shortly

after, another incident occurred during which Evans again threatened S.B., this

time giving her three choices: “You are either going to make love to me or I will rape

you or I will murder you.”

[¶4.] After a similar incident, Evans was arrested and charged with simple

assault and false imprisonment. S.B. later called Evans’ attorney, Elizabeth

Frederick, in an effort to assist Evans. S.B. told Frederick that Evans was only

trying to prevent S.B. from driving while intoxicated. S.B expressed that she

wanted to have the charges against Evans dropped. Frederick told S.B. to call the

state’s attorney, and, though the details surrounding the disposition of the case are

not completely clear in the record, it does appear that the charges were ultimately

dismissed.

[¶5.] S.B. began limiting her contact with Evans, although she did not want

to abruptly end contact with him out of fear that doing so might anger him. When

S.B. moved from her Rapid City home, she temporarily stayed in a camper while a

new modular home was moved to an acreage she had purchased near Hermosa.

Though she initially testified that the relationship with Evans was over at this

point, she acknowledged on cross-examination that they had been intimate “a few

times” while she was staying in the camper.

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[¶6.] S.B. also agreed that she had accepted Evans’ help in connection with

her move to her new Hermosa home. However, she testified that Evans became

angry with her after learning that she had not placed him on the deed to the

recently purchased Hermosa real estate. According to S.B., any expectation that

she would add Evans to the deed was unjustified, and she was alarmed by his

reaction. She decided to end the relationship and advised Evans not to return to

the Hermosa property. However, Evans did not accept her decision and, according

to S.B., he began to harass her with calls and text messages. Before she had moved

into the Hermosa house but after the modular home was located on the property,

she discovered that Evans had been staying there after finding his clothing and a

sleeping bag during a visit to the property. S.B. explained that she then obtained a

protection order, acting on the advice of a local law enforcement officer.

[¶7.] But despite the protection order, Evans continued to contact S.B.,

mainly in the form of harassing calls and texts. S.B. contacted the police who

placed game cameras around S.B.’s property.

[¶8.] On September 5, 2017, S.B. contacted police after receiving an

unsettling message from Evans. Hermosa Town Marshal Jim Daggett went out to

S.B.’s home and searched the surrounding acreage in an unsuccessful effort to find

Evans. Daggett told S.B. he would return in the morning. S.B. then poured herself

a glass of wine, opened her bathroom window slightly, and took a bath. Forgetting

to close the window, she took a sleeping pill and went to bed around 1:15 a.m.

[¶9.] Around the same time, Evans had parked his partially spray-painted

pickup down the road from S.B.’s home and made his way to S.B.’s house along a

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cattle path. He eventually positioned himself beneath the open bathroom window

while S.B. was taking a bath. After she went to sleep, he cut the screen from the

window and gained entry into her house.

[¶10.] S.B. was awakened by Evans beside her. He began wrapping her in

duct tape and gave S.B. three familiar options: “she could make love to him, he

could rape her, or he would kill her and himself.” Evans then forced multiple

sleeping pills into S.B.’s mouth before placing duct tape across her mouth. S.B.

drifted in and out of consciousness as Evans wrapped her in a blanket, dragged her

out of her house, loaded her into her SUV, and drove her off her property before

returning to her home and dragging her back inside.

[¶11.] At some point, S.B. became aware that she was back in her bed while

Evans cut the duct tape from her body with a hunting knife and raped her. S.B. lost

consciousness again, and when she awoke, Evans ordered her to take him to his

truck. He threatened to kill her friends and her animals if she told anyone about

what had happened.

[¶12.] When Marshal Daggett returned to S.B.’s home that morning, S.B. did

not at first tell him about the rape. But, sensing something was amiss, Daggett

continued to ask S.B. if something had happened, and S.B. told him about the

incident. Other officers responded and began looking for Evans.

[¶13.] Law enforcement officers eventually located Evans’ truck at a hotel

and casino on the Pine Ridge Indian Reservation. State officers sought assistance

from their tribal counterparts who met them at the hotel where they learned that

Evans had checked into a room. After unsuccessful efforts to contact Evans, tribal

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officers entered his room where they found him in bed, incoherent, with an empty

bottle of S.B.’s prescription medication beside him. Officers arrested Evans and

seized his truck, from which they collected evidence.

[¶14.] Evans was indicted and pled not guilty to six counts: second-degree

rape, first-degree kidnapping, aggravated assault, stalking, violation of a protection

order, and first-degree burglary. After a five-day trial, a jury found Evans guilty on

all six counts.

The direct appeal

[¶15.] Evans appealed his convictions, which we affirmed in a 2021 decision.

See State v. Evans (Evans I), 2021 S.D. 12, 956 N.W.2d 68. As it relates to the

habeas case before us, we considered the following three issues in Evans I: (1)

whether the circuit court erred by denying Evans’ motion to suppress evidence

based upon the assertion state law enforcement officers did not have jurisdiction to

seize Evans’ property on the Pine Ridge Indian Reservation, (2) whether the circuit

court’s deviation from jury selection statutes constituted structural error; and (3)

whether the circuit court abused its discretion under SDCL 19-19-404(b) (Rule

404(b)) when it admitted other acts evidence relating to events involving his ex-wife

that occurred during their marriage. 2 Id. ¶ 1, 956 N.W.2d at 74.

[¶16.] We rejected Evans’ challenge to the circuit court’s denial of his

suppression motion, noting that the United States Supreme Court has held that

“the state’s execution of a state warrant on a reservation for the violation of state

2. We also considered whether the circuit court abused its discretion when it
admitted a law enforcement officer’s testimony about the nature of S.B.’s
injuries. Evans I, 2021 S.D. 12, ¶¶ 54–59, 956 N.W.2d at 88–89.
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laws occurring off the reservation does not impair the tribe’s right to self-govern.”

Id. ¶ 51, 956 N.W.2d at 87 (citing Nevada v. Hicks, 533 U.S. 353, 364, 121 S. Ct.

2304, 2312, 150 L. Ed. 2d 398 (2001)). Evans is not an Indian under federal law,

the crimes occurred outside of Indian country, and the seized property belonged to

Evans. Id. ¶ 52, 956 N.W.2d at 88. Moreover, the state officers investigating the

case acted with the permission and assistance of tribal officers in a cooperative law

enforcement effort. Therefore, we held that there was no “possible conclusion that

the exercise of jurisdiction by state officers would infringe on tribal self-

government.” Id. 3

[¶17.] We also rejected Evans’ arguments relating to jury selection and the

circuit court’s decision to allow other acts evidence. As to the former, Evans argued

that the circuit court deviated from the jury selection process described in SDCL

chapter 23A-20 when, instead of allowing challenges for cause, the court, acting on

its own, summarily excused prospective jurors. Id. ¶ 38, 956 N.W.2d at 83. Evans

did not object to the court’s procedure at trial, but he argued on appeal that the

court’s procedure constituted structural error. Id. We disagreed, noting that the

court was not statutorily prohibited from asking case-specific questions and that

3. In his submissions, Evans references the Fourth Amendment prohibition
against unreasonable searches and seizures. However, the authority of a
state law enforcement officer to act within Indian country implicates
questions of jurisdiction and tribal sovereignty, not the Fourth Amendment.
See State v. Cummings, 2021 S.D. 4, ¶ 24, 954 N.W.2d 731, 739 (holding that
our prior decisions “incorrectly conflated jurisdictional principles associated
with tribal sovereignty and individual rights afforded by the Fourth
Amendment”).
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Evans failed to establish the jury selection process resulted in an unfair trial. Id.

¶¶ 40, 42, 956 N.W.2d at 84.

[¶18.] And as to Evans’ argument relating to the other acts evidence, we held

that the circuit court did not abuse its discretion by allowing testimony from Evans’

ex-wife despite the passage of time since the incidents occurred. Id. ¶¶ 34–35, 956

N.W.2d at 82. The other acts testimony from Evans’ ex-wife recounted events that

were “strikingly similar” to the offenses described by S.B. and fit within the

permissible purposes of Rule 404(b) that authorize evidence of common scheme or

plan, motive, and intent. Id. ¶¶ 32–35, 956 N.W.2d at 81–82.

The habeas action

[¶19.] In his habeas corpus petition, Evans alleged nine claims:

(1) Evans’ right to effective assistance of counsel was violated
when his trial counsel, Ellery Grey, failed to call Lisa
Anderson as a witness.

(2) Evans’ right to effective assistance of counsel was violated
when Grey failed to call Evans to testify in his own
defense.

(3) Evans’ right to effective assistance of counsel was violated
when Grey failed to object to the alleged errors during
jury selection.

(4) Evans’ right to effective assistance of counsel was violated
when Grey failed to ensure Evans was present during an
in-chambers meeting regarding jury selection.

(5) Evans’ right to effective assistance of counsel was violated
when Grey did not use certain evidence, specifically,
phone records, at trial.

(6) Evans’ right to effective assistance of counsel was violated
when Grey failed to investigate and call S.B.’s ex-husband
to impeach S.B.

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(7) Evans’ right to effective assistance of counsel was violated
when Grey failed to investigate S.B.’s claimed injuries
and their cause. 4

(8) Evans’ due process rights were violated when the circuit
court admitted other acts evidence prior to issuing a
limiting instruction.

(9) Evans’ right to be free from unreasonable searches and
seizures was violated when state law enforcement officers
seized his vehicle and searched his hotel room without a
tribal warrant.

[¶20.] In June 2022, the State moved to dismiss claims 3, 8, and 9, pursuant

to SDCL 15-6-12(b)(5), alleging the claims were barred by the doctrine of res

judicata since they had been resolved in Evans’ direct appeal. The habeas court

agreed and granted the State’s motion.

[¶21.] The habeas court conducted an evidentiary hearing on the remaining

ineffective assistance claims in August 2023. At the hearing, Grey, Evans, and

Grey’s law partner, Paul Eisenbraun, testified. Grey testified that his trial strategy

was to place S.B.’s credibility at issue and argue that the sexual encounter with

Evans on September 6 was a consensual act between two people who remained

involved in a turbulent, sometimes intimate, relationship. While he acknowledged

that he “could have” made certain decisions, such as calling a particular witness or

utilizing other evidence, Grey explained that the decisions he made were strategic

ones that he believed furthered his defense.

[¶22.] In a memorandum decision, the habeas court denied Evans’ ineffective

assistance claims and dismissed his petition. The court issued a certificate of

4. Evans indicated he would not pursue claim 7 during the evidentiary hearing.
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probable cause, noting both its res judicata ruling and its decision to deny relief on

the merits of Evans’ ineffective assistance claims. 5

Analysis and Decision

Res judicata and Evans’ claim relating to jury selection (claim 3)

[¶23.] “[H]abeas corpus actions are exceptional in the sense that they

represent post-conviction, collateral attacks on otherwise final judgments of

conviction.” Ceplecha v. Sullivan, 2023 S.D. 63, ¶ 25, 998 N.W.2d 351, 357–58

(citing Piper v. Young, 2019 S.D. 65, ¶ 21, 936 N.W.2d 793, 803–04 (Piper IV)).

Consequently, “not all alleged errors are cognizable in a habeas action.” Id. ¶ 26,

998 N.W.2d at 358. Claims, or “necessary constituent parts of them,” that were

“either litigated on direct appeal or could have been . . . are subject to preclusion in

a subsequent habeas action under the doctrine of res judicata.” Id.

[¶24.] We have often described the distinct issue preclusion and claim

preclusion aspects of res judicata:

Issue preclusion refers to the effect of a judgment in foreclosing
relitigation of a matter that has been litigated and decided . . . .
Claim preclusion refers to the effect of a judgment in foreclosing
litigation of a matter that never has been litigated, because of a

5. Although the caption to the certificate of probable cause contains a reference
to claim 6, the text of the actual certificate does not. This is fatal to our
appellate jurisdiction. We do not have authority to review a circuit court’s
decision to deny or dismiss a habeas petition in all cases. SDCL 21-27-18.1.
We obtain appellate jurisdiction only through the issuance of a certificate for
probable cause that provides “specific showing” for appellate review. Lange
v. Weber, 1999 S.D. 138, ¶ 12, 602 N.W.2d 273, 276. The fact that both
parties have briefed the merits of claim 6 (relating to Grey’s decision not to
call S.B.’s ex-husband) does not change this uncomplicated jurisdictional
analysis. See Long v. Knight Const. Co., 262 N.W.2d 207, 209 (S.D. 1978)
(holding parties cannot create appellate jurisdiction by stipulation or
agreement).
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determination that it should have been advanced in an earlier
suit[.]

Id. (alterations in original); see also Ramos v. Weber, 2000 S.D. 111, ¶ 8, 616 N.W.2d

88, 91 (applying claim preclusion to bar a petitioner’s claim that could have been

litigated on direct appeal but was not).

[¶25.] On direct appeal, we considered the following arguments regarding

jury selection:

(1) the circuit court failed to follow SDCL 23A-20-6 when it
summarily excused jurors on its own, rather than after
counsel conducted voir dire and challenged the jurors for
cause

(2) the court failed to follow the dictates of chapter 23A-20 by
not inquiring into whether any of the excused jurors’
work-related issues could be accommodated or whether
they could set aside any preconceptions and follow the
court’s instructions regarding the State’s burden, the
presumption of innocence, or the jury’s role in deciding a
case based on the evidence admitted at trial.

Evans I, 2021 S.D. 12, ¶ 38, 956 N.W.2d at 83.

[¶26.] We rejected both arguments for a number of reasons, but Evans argues

we did so only because his attorney failed to object to what he claimed were

instances in which the circuit court’s method of jury selection strayed from

statutory standards. In this regard, Evans contends that he is not challenging our

previous holdings but, rather, his trial counsel’s failure to object to what he believes

to be irregularities in the jury selection process.

[¶27.] On general principles, this distinction between judicial error and

defense counsel performance does exist, as our cases recognize. See State v. Wilson,

2020 S.D. 41, ¶ 28, 947 N.W.2d 131, 139; Neels v. Dooley, 2022 S.D. 4, ¶ 14, 969

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N.W.2d 729, 734. But, here, the distinction is not meaningful because Evans

overlooks a critical aspect of our analysis in Evans I.

[¶28.] Notwithstanding the fact that Grey chose not to object to aspects of the

circuit court’s jury selection process that did not entirely comport with certain

statutory standards, Evans did not prevail on direct appeal for a more fundamental

reason:

Notably, although Evans identifies instances where, in his view,
the court’s jury selection process deviated from chapter 23A-20,
he does not identify in what manner the court’s process resulted
in a substantial failure to comply with the statutes, namely how
the jury selection process necessarily rendered the trial
fundamentally unfair. The process by which the court examined
the potential jurors did not deprive the State or Evans’s counsel
of the opportunity to determine whether prospective jurors
possessed beliefs that would cause them to be biased in such a
manner as to prevent Evans or the State from obtaining a fair
and impartial trial. The court examined each juror in the
presence of counsel, and on two occasions while in chambers, the
court, when requested, allowed counsel to ask further questions
to demonstrate or negate juror bias.

Evans I, 2021 S.D. 12, ¶ 42, 956 N.W.2d at 84–85 (cleaned up) (emphasis added).

[¶29.] In other words, Evans failed to demonstrate a constitutional violation

associated with the circuit court’s process for jury selection. We cannot understand

how Evans could prevail on his claim that Grey was ineffective for not objecting

during jury selection without relitigating our determination that he failed to show

“how the jury selection process necessarily rendered the trial fundamentally

unfair.” 6 Id.; see also Neels, 2022 S.D. 4, ¶ 13, 969 N.W.2d at 734 (stating that

6. “We have adopted the test for ineffective assistance of counsel set forth in
Strickland v. Washington: first, the defendant must show that counsel’s
performance was so deficient that he was not functioning as ‘counsel’
(continued . . .)
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“[u]nder Strickland, ‘the ultimate focus of inquiry must be on the fundamental

fairness of the proceeding whose result is being challenged’” (citing Strickland, 466

U.S. at 696, 104 S. Ct. at 2069)).

[¶30.] Therefore, even if Grey’s decision not to object to the jury selection

procedures fell below an objective standard of reasonableness, which we do not hold,

Evans cannot establish prejudice because we determined on direct appeal that the

method of jury selection did not transgress his constitutional fair trial right. 7 We

affirm the habeas court’s decision to dismiss Evans’ third claim under the doctrine

of res judicata. 8

Ineffective assistance of counsel claims

[¶31.] Among its other enumerated protections, the Sixth Amendment of the

United States Constitution guarantees an accused the right “to have the Assistance

of Counsel for his defence.” U.S. Const. amend. VI; see also S.D. Const. art. VI, § 7

guaranteed by the Sixth Amendment; and second, he must show that
counsel’s deficient performance prejudiced the defendant.” Steiner v. Weber,
2011 S.D. 40, ¶ 6, 815 N.W.2d 549, 551–52 (citing Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)).

7. Evans suggests that we intimated deficient performance of his trial counsel
when we noted in Evans I that counsel had not objected at certain points
during the circuit court’s voir dire and had passed the jury panel for cause.
However, these references should not be read in this way. They were simply
observations about the state of the record and nothing more.

8. As set out above, supra ¶ 19, Evans also alleged habeas claims challenging
the circuit court’s admission at trial of other acts evidence related through his
ex-wife (claim 8) and the court’s pretrial decision to deny Evans’ motion to
suppress evidence (claim 9). Both of these arguments were litigated on direct
appeal and resolved adversely to Evans. In this habeas appeal, he
acknowledges this but does not seriously argue that we can re-review these
claims here. The State argues Evans has conceded that claim 8 and claim 9
are precluded, and Evans does not dispute that contention in his reply brief.
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(“In all criminal prosecutions the accused shall have the right to defend in person

and by counsel[.]”). “We review a circuit court’s determination of a Sixth

Amendment ineffective assistance of counsel claim as a mixed question, reviewing

the court’s decision on the constitutional issue de novo and its findings of fact for

clear error.” Reay v. Young, 2019 S.D. 63, ¶ 13, 936 N.W.2d 117, 120 (citation

omitted).

[¶32.] As indicated above, supra note 6, we analyze ineffective assistance

claims under the Strickland v. Washington two-pronged standard:

First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second,
the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable. Unless a defendant makes both
showings, it cannot be said that the conviction . . . resulted from
a breakdown in the adversary process that renders the result
unreliable.

Reay, 2019 S.D. 63, ¶ 13, 936 N.W.2d at 120 (alteration in original) (quoting

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064).

[¶33.] Strickland’s first prong represents an assessment of counsel’s

performance using “an objective standard of reasonableness.” Ally v. Young, 2023

S.D. 65, ¶ 34, 999 N.W.2d 237, 250, reh’g denied (Jan. 19, 2024) (quoting Strickland,

466 U.S. at 688, 104 S. Ct. at 2064). As part of this inquiry, “[t]he petitioner must

overcome a ‘strong presumption’ that counsel was competent.” Id. (quoting Piper IV,

2019 S.D. 65, ¶ 50, 936 N.W.2d at 810).

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[¶34.] “A fair assessment of attorney performance requires that every effort

be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Reay, 2019 S.D. 63, ¶ 14, 936 N.W.2d at 121

(quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). Matters of trial strategy,

including counsel’s decision to not call a witness that was otherwise known and

identified, are ill-suited to judicial review under Strickland’s first prong. See

Lodermeier v. Class, 1996 S.D. 134, ¶ 20, 555 N.W.2d 618, 625 (determining

counsel’s decision to not call a witness was part of counsel’s trial strategy and did

not amount to ineffective assistance). For this reason, we must act with restraint

and not “second guess the decisions of experienced trial attorneys [on] matters of

trial tactics unless the record shows that counsel failed to investigate and consider

possible defenses[.]” Ally, 2023 S.D. 65, ¶ 34, 999 N.W.2d at 250 (quoting Randall

v. Weber, 2002 S.D. 149, ¶ 7, 655 N.W.2d 92, 96).

[¶35.] The second prong of the Strickland standard assesses the impact of

counsel’s error and is established when the petitioner shows that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Id. ¶ 36 (citing Strickland, 466 U.S. at 694,

104 S. Ct. at 2068); see also Reay, 2019 S.D. 63, ¶ 15, 936 N.W.2d at 121. “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Reay, 2019 S.D. 63, ¶ 15, 936 N.W.2d at 121. Establishing only that

counsel’s deficient performance “had some conceivable effect on the outcome of the

proceeding” is insufficient to satisfy prong two of the Strickland test. Harrington v.

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Richter, 562 U.S. 86, 104, 131 S. Ct. 770, 787, 178 L. Ed. 2d 624 (2011) (quoting

Strickland, 466 U.S. at 693, 104 S. Ct. at 2052). A petitioner must, instead,

demonstrate that his attorney’s errors were “so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.

Ct. at 2064.

[¶36.] Evans argues Grey was ineffective for failing to utilize evidence at his

disposal, including Evans’ own testimony as well as the testimony of his sister, Lisa

Anderson. Evans also contends Grey should have sought to introduce telephone

records to establish a history of telephone contact between Evans and S.B. In

Evans’ view, this evidence “should have been used to attack S.B.’s credibility,

establish her motive to fabricate, and demonstrate Evans’ innocence.” We address

each item of evidence relative to Grey’s performance.

A. Lisa Anderson and the telephone records

[¶37.] Evans suggests that Lisa Anderson had information about his

relationship with S.B. that would have countered what he perceived to be S.B.’s

claim that he was simply “an employee who became obsessed with [S.B.] and

attacked her[.]” According to Evans, the evidence would have demonstrated,

instead, that the two were involved in a romantic relationship from the outset.

Anderson could have explained that Evans and S.B. were a couple who had

interacted with Evans’ family. In Evans’ view, the telephone records would have

provided information about the frequency of communication, or efforts to

communicate, between Evans and S.B.

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[¶38.] Grey testified that he understood what Anderson knew, which included

the fact that Anderson could have testified about S.B.’s efforts to have the earlier

simple assault and false imprisonment charges against Evans dismissed. Still, in

Grey’s assessment, Anderson’s testimony was unnecessary:

So the rationale that I would have for you is this. Towards the
end of the trial we had done the cross-examination of [S.B.]. My
hope was is [sic] that the jury was having doubts about her
testimony. I believed we had also had - - Attorney Elizabeth
Fredrickson (sic) had also testified by that point, and so the
nature of the romantic relationship had been established, the
fact that it was tumultuous had been established.

****

[B]ut in my estimation they would have been redundant to
things I thought had already been fairly well established. So my
concern was, under cross-examination would there be other facts
that might be harmful to the case to the defense that might
come out.

(Third alteration in original.)

[¶39.] We conclude that Grey’s decisions not to call Anderson or seek to admit

the telephone records were reasonable. His cross-examination of S.B. established

the key facts that Grey viewed as important to his defense theory. S.B. admitted

that she and Evans had a romantic relationship that began after they met through

an online dating platform. S.B. also acknowledged that she and Evans had

interacted with Evans’ family as a couple and that the two had been together

romantically after she moved from her Rapid City home. And though she denied

trying to conceal her relationship with Evans from her ex-husband, S.B. admitted

on cross-examination that she would forgo monthly alimony payments of $2,500 if

her ex-husband established she was cohabitating with Evans. This was consistent

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with Grey’s trial strategy that S.B. often feigned efforts to distance herself from

Evans in order to preserve the appearance she was not cohabitating with him.

[¶40.] Evans is critical of Grey’s reliance upon attorney Frederick’s

testimony, citing the fact that Grey acknowledged that calling her had “backfired”

to some extent. Though Frederick testified that S.B. contacted her and stated she

did not want to pursue simple assault and false imprisonment charges against

Evans, Grey explained that Frederick’s cross-examination took an unexpected turn

when “she was permitted to be turned into kind of almost into an expert witness to

talk about generally how people will or women that are battered might withdraw

their claims and that type of thing.” However, Grey still viewed Frederick as a

helpful witness to the defense “on balance[ ].” Viewing Grey’s performance from a

real-time perspective and not with the benefit of hindsight, his decision was

reasonable.

B. Grey’s failure to call Evans to testify9

[¶41.] A defendant’s right to not be compelled to testify is an essential right

afforded to all criminal defendants. U.S. Const. amend. V; S.D. Const. art. 6, § 9. A

defendant has a complementary right to testify, which is derived from the Sixth and

Fourteenth Amendments. Wilcox v. Leapley, 488 N.W.2d 654, 658 (S.D. 1992)

(citation omitted). The accused, not his attorney, has the ultimate authority to

9. During his testimony at the evidentiary hearing before the habeas court,
Evans testified Grey actually prevented him from testifying. However, as it is
formulated in his petition and on appeal, Evans’ ineffective assistance of
counsel claim is that Grey merely failed to call him as a witness after
advising him not to testify. We accept this latter version of the argument as
the one raised in the submissions and referenced in the certificate of probable
cause.
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decide whether to waive the right against self-incrimination and testify at his trial.

Id. (citation omitted). However, a decision to testify can bring with it great risk,

and defense counsel may properly advise a client against testifying. See id. at

659. 10

[¶42.] Grey acknowledged that the decision to testify was one for Evans

alone, but Grey also explained that defendants rely on the advice of counsel when

deciding whether to testify. Here, Grey advised Evans against testifying. In Grey’s

view, Evans’ effort to refute testimony from S.B. and his ex-wife would have created

significant problems for Evans on cross-examination, in part, because Evans had

been convicted of violating a protection order in connection with some of the

incidents described by his ex-wife:

I don’t know that it would be his denial, his testifying and
saying that’s not what happened. I guess my concern was,
ultimately, he did plead guilty to something, and that would be
my concern about how the cross-examination would have gone,
at least that’s how I would have done it if I would have been the
prosecution.

[¶43.] More directly related to the charges involving S.B., Grey was

concerned about the manner in which Evans described his trip to the Hermosa

property:

As I recall, what [Evans] explained to me is that he did drive out
to [S.B.’s] home that night, had parked the truck some distance
from the house and then had walked through a field, came to the
house and then came to be underneath her bedroom window, as
I recall. Then I believe he told me that he overheard [S.B.] and

10. It does not appear from our review of the record that the circuit court or Grey
discussed the fact that Evans would not testify. We have held that a court is
not obligated to establish on the record that a defendant has knowingly and
voluntarily waived his right to testify. See Wilcox, 488 N.W.2d at 659 (citing
cases).
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Marshal Daggett engaging in sex. I don’t know that he said he
saw that, but I think he said that he heard that. Then after he
left he then went into the home, so [Evans] then goes into the
home.

****

Well, so the defense would be that [S.B.] wants him to come out,
and because there’s this protection order he can’t be caught
coming out. That would be one interpretation of the evidence.
On the other hand it could cut against us because, as I recall,
the vehicle was half spray painted and he’s - - the argument that
the state could have made is that he was trying to hide the
vehicle and sneak out to the residence. So if he were to take the
stand, those would be questions that I as a prosecutor would
have asked him, and that - - even if there’s an innocent
explanation for that conduct the cross-examination could make
someone look guilty for that reason, and that was my concern is
is [sic] that a jury might be scrutinizing that type of testimony
and would go back into deliberations and might focus on that
type of testimony as opposed to [S.B.][.]

****

So it puts him at the scene of the alleged crime, and it puts him
in close proximity to the window. You know, our defense was
that he didn’t enter through there, that he didn’t cut the screen.
So my concern was is [sic] that through cross-examination that
that could potentially undermine the position we were taking.

[¶44.] In our view, Grey’s decision was reasonable. Evans’ testimony would

have come at considerable risk. And by engaging in a detailed rebuttal of the claim

of S.B. and his ex-wife, Evans would have likely broadened the scope of the issues

before the jury. This was inconsistent with Grey’s trial strategy which was to

narrow the jury’s credibility focus to S.B. whose testimony he had successfully

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impeached, as opposed to expanding the defense into a comparison of relative

credibility between S.B. and Evans. 11

Prejudice

[¶45.] Evans could not satisfy Strickland’s prejudice requirement to show a

reasonable probability of a different outcome, even without regard to Grey’s

performance. There is no offer of proof regarding Anderson’s proposed testimony,

and the information that does exist in the record would essentially replicate

evidence of a somewhat tempestuous, on-again-off-again romantic relationship

between S.B. and Evans. And the phone records would have established only

contacts, or attempted contacts, between them without evidence of content or

further context.

[¶46.] Nor can Evans demonstrate prejudice concerning Grey’s advice against

Evans testifying. Evans’ parochial belief that his testimony would have corrected

all of the inaccuracies he believed were related by S.B. and his ex-wife while

narrating the definitive account of what happened at S.B.’s home in Hermosa likely

overstates the impact of any such testimony balanced against the entire record. It

also overlooks the real risks he faced on cross-examination, as indicated above.

Evans’ own account placed him under the window with the cut screen after having

parked his partially spray-painted truck a significant distance away before

surreptitiously making his way to S.B.’s home.

11. Evans’ certificate of probable cause also asserts that Grey failed to ensure
Evans’ presence during an in-chambers voir dire discussion (claim 4).
However, as the State notes, Evans’ brief does not contain any argument that
the habeas court erred when it denied this claim. Therefore, Evans has
seemingly abandoned this claim on appeal.
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Conclusion

[¶47.] Evans’ claims 3, 8, and 9 were resolved in his direct appeal and are

barred by the doctrine of res judicata. Further, Evans has failed to establish that

Grey was ineffective for not calling Lisa Anderson, not seeking to introduce cell

phone records, and for not calling him to testify in his own defense. We affirm.

[¶48.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN,

Justices, concur.

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