¶1(concurring in result).
¶2[¶ 42.] The majority finds that the actions, or more appropriately inactions, of trial counsel do not constitute deficient performance. I disagree. While there is a “strong presumption” in the law that trial counsel acted effectively, Rodriguez’s trial counsel inexcusably managed to overcome the presumption afforded him. See Sprite, 1997 SD 134, ¶24, 572 N.W.2d at 829. His errors were “so serious that [he] was not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. This conclusion is supported by the facts that:
1. The State’s Attorney failed to timely disclose the negative results of the urinalysis test.
2. Trial counsel failed to pursue the Brady request that would have led to
the discovery of the negative results of the urinalysis test.
3. Trial counsel failed to use the negative results of the urinalysis test to support Rodriguez’s credibility.
4. Trial counsel failed to use the negative results of the urinalysis test to support Rodriguez’s lack of knowledge on the possession charge.
5. Trial counsel failed to conduct an adequate investigation and search for potential witnesses.
¶3[¶43.] However, Rodriguez must also establish that trial counsel’s deficient performance “prejudiced the defense” and made the results of the proceeding fundamentally unfair or unreliable. Rhines, 2000 SD 19, ¶ 15, 608 N.W.2d at 307. Rodriguez has failed to meet this burden. In essence, Rodriguez gambled and consented to the search of the vehicle. His gamble failed and the drugs were found. Therefore, he can show no prejudice resulted from the deficient performance.
¶4[¶ 44.] I agree that no prima facie showing of intentional discrimination has been made on the Batson issue. In view of the unanimous decision that a prima facie showing of intentional discrimination is lacking to establish an ineffective assistance of counsel claim under Batson, it is clearly unnecessary to address the prejudice prong of the ineffective assistance claim in that respect. We should save any such analysis of prejudice under Batson for another day.
¶5[¶ 45.] Therefore, I concur in result only.