#29634-a-JMK
2022 S.D. 61
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
…
JOSHUA SPANIOL, Petitioner and Appellant,
v.
DARIN YOUNG, Warden,
South Dakota State Penitentiary, Respondent and Appellee.
…
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
CODINGTON COUNTY, SOUTH DAKOTA
…
THE HONORABLE KENT A. SHELTON
Judge
…
JOHN R. HINRICHS of
Heidepriem, Purtell, Siegel
& Hinrichs, LLP
Sioux Falls, South Dakota Attorneys for petitioner and
appellant.
MARK VARGO
Attorney General
CHELSEA WENZEL
Assistant Attorney General
Pierre, South Dakota Attorneys for respondent
and appellee.
…
CONSIDERED ON BRIEFS
JANUARY 10, 2022
OPINION FILED 10/19/22
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KERN, Justice
[¶1.] Joshua Spaniol was convicted of raping and having sexual contact with
his four-year-old autistic daughter. Spaniol appealed his conviction, which was
affirmed. Thereafter, he filed a petition for habeas corpus alleging that his trial
counsel was ineffective by failing to retain an expert witness, object to certain
exhibits during trial, and investigate alleged third-party perpetrator information.
After an evidentiary hearing, the circuit court denied the petition. Spaniol appeals.
We affirm.
Factual and Procedural Background
[¶2.] Spaniol was convicted of three counts of first-degree rape and one
count of sexual contact with a child under sixteen involving his daughter, A.S., who
was four years old at the time and had been diagnosed with Autism Spectrum
Disorder (ASD). The sexual abuse first came to light when Spaniol’s wife and A.S.’s
mother (Mother) noticed that A.S. had a brown vaginal discharge. Mother took A.S.
to a physician who took a sample and sent it to a lab for testing. Two days later,
Spaniol saw his doctor for a painful, inflamed, and discharging infection in his
penis. After falsely informing the doctor that he was in a monogamous sexual
relationship with Mother, the doctor ruled out and did not test for sexually
transmitted diseases (STDs) and instead tentatively diagnosed Spaniol’s ailment as
a urinary tract infection (UTI). The doctor sent a sample of Spaniol’s urine for
testing and prescribed Cipro, an antibiotic, to be taken twice per day for ten days
pending the test results.
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[¶3.] Over the course of a few days, A.S.’s condition worsened, and Mother
took her to an emergency room. Medical staff suspected that A.S. had an STD and
alerted Child Protection Services and the Watertown Police Department. A
detective contacted Spaniol who came to the police department for an interview.
When asked about A.S.’s symptoms, Spaniol reported that he and A.S. sometimes
bathed together and that he had a genital rash but not a discharge. Spaniol was
not arrested and returned home.
[¶4.] The following day, A.S.’s test results established that she had
gonorrhea. Spaniol and Mother were asked to come to the police station for further
interviews. After they arrived, they were placed in separate interview rooms.
Spaniol was initially questioned by Sergeant Stahl of the Watertown Police
Department. He was informed that he was not under arrest and was not in
custody. During a videotaped interview, Spaniol was asked if he knew why he was
called back to the station for interviews and he speculated that it was because he
admitted to bathing with A.S. He eventually admitted that contact between his
penis and A.S. had occurred while bathing but claimed that it was accidental.
Shortly after this admission, Sergeant Stahl left the room.
[¶5.] Division of Criminal Investigation Special Agent (SA) Corey next
entered the room. SA Corey confirmed with Spaniol that he knew that he was not
under arrest and that the interview room door was closed only for privacy purposes.
Spaniol repeated his story that while bathing naked with A.S., she slipped and fell
on his “semi-erect penis, causing penetration.” Spaniol’s story eventually evolved
into admitting that on two occasions he had “rubb[ed] his penis on the labia of A.S.’s
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vagina, and plac[ed] his penis in her vagina after ejaculating.” When asked,
Spaniol admitted this had happened more than three times. Sergeant Stahl
subsequently entered the room and asked Spaniol who should tell his wife about
what he had done, and Spaniol responded that he would. Officers brought Mother
to the interview room and Spaniol confessed to her, still on camera, that he had
“messed around” with A.S. and had rubbed his penis on her. Spaniol was later
advised of his Miranda rights. After waiving these rights, Spaniol ultimately
admitted that he had penetrated A.S. on four occasions. 1
[¶6.] Spaniol’s urine test taken at the time of his doctor’s appointment came
back negative for a UTI. Although law enforcement officers arranged for another
sample to be taken from Spaniol to test for gonorrhea after his confession, this
sample, obtained five days after Spaniol had been taking Cipro for his UTI, came
back negative. Expert testimony at trial revealed that just one dose of Cipro will
cure gonorrhea 85–90% of the time.
[¶7.] Mother took A.S. to Child’s Voice, an advocacy center in Sioux Falls
where children who may have been abused are forensically interviewed by trained
professionals. A.S. participated in a videotaped interview with Robyn Niewenhis
and reported that her dad had hurt her on several occasions. When asked where,
she pointed to her vaginal area. Further, A.S. indicated that her dad used his
finger to hurt her and that it went in her body, pointing again to her vaginal area.
1. Prior to trial, Spaniol’s counsel moved to suppress Spaniol’s statements to
law enforcement, which the circuit court denied after an evidentiary hearing.
We affirmed this determination on direct appeal. See State v. Spaniol, 2017
S.D. 20, ¶ 47,
895 N.W.2d 329, 345.
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[¶8.] Spaniol’s counsel filed a motion prior to trial, challenging A.S.’s
competency to testify because of her age and ASD, alleging she would be difficult to
understand. The circuit court held a competency hearing at which A.S. testified and
was subjected to cross-examination. The court found A.S. competent to testify,
concluding that “[a]lthough A.S. has several developmental delays and limitations
in her ability to communicate, A.S. has sufficient mental capacity to observe and
recollect, A.S. has an ability to communicate, and A.S. has some sense of moral
responsibility.” At trial, the State presented strong evidence against Spaniol
including the following: A.S.’s direct testimony and the Child’s Voice interview, in
which she stated that her father had “hurted [her] potty”; her gonorrhea diagnosis
and Spaniol’s simultaneous infection and potential gonorrhea; Spaniol’s videotaped
confessions to law enforcement officers and to Mother in which he admitted
penetrating A.S. with his penis; and Spaniol’s cell phone search history which
included searches for role-playing father/daughter pornography and a query into
whether STDs could be transferred through water.
[¶9.] In his defense, Spaniol advanced the theory that he could not have
given A.S. gonorrhea because he was not infected and speculated that either a
third-party perpetrator molested A.S. and gave her gonorrhea, or A.S. contracted
gonorrhea by playing with a sex toy in their home that had been used by someone
with gonorrhea. After deliberation, the jury found Spaniol guilty of three counts of
first-degree rape and one count of sexual contact with a child under sixteen. A more
detailed version of the facts surrounding the convictions is set forth in State v.
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Spaniol, 2017 S.D. 20,
895 N.W.2d 329, wherein we affirmed Spaniol’s convictions
on direct appeal.
[¶10.] Spaniol filed a pro se application for writ of habeas corpus on July 6,
2017, alleging that his conviction was unconstitutional due to ineffective assistance
of counsel. The habeas court appointed counsel for Spaniol on July 18, 2017.
Spaniol filed an amended petition for writ of habeas corpus on September 12, 2018.
In the amended petition, Spaniol alleged that trial counsel had been ineffective for
failing to retain an expert on the issue of A.S.’s competence, failing to object to
Exhibit 11 (the Child’s Voice summary of A.S.’s forensic interview) and Exhibit 12
(the recording of A.S.’s Child’s Voice interview), and failing to further investigate
potential third-party perpetrators. The habeas court held an evidentiary hearing on
the petition on May 8, 2019. At the hearing, Spaniol called Dr. Kenneth Hasseler, a
licensed psychologist, Mother, and Tim Nisich, Spaniol’s uncle. With the
permission of the circuit court, Spaniol later submitted an affidavit from Reed
Anderson, a man Mother dated shortly after Spaniol’s conviction, who was
unavailable to testify in person because he was incarcerated.
[¶11.] Dr. Hasseler was qualified as an expert witness in the field of
psychology, having worked with children with neurodevelopmental conditions and
disorders, including autism. Spaniol retained Dr. Hasseler to render an opinion
regarding A.S.’s competency to testify at the trial, specifically, whether A.S. had
“sufficient mental capacity to observe, recollect, and communicate [with] some sense
o[f] moral responsibility” in light of her young age and her ASD diagnosis. In order
to form his opinion, Dr. Hasseler reviewed the transcript of the competency hearing
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and the evidence the State introduced regarding A.S., including her forensic
interview at Child’s Voice; her medical progress notes; a psychological evaluation
summary; a report from Sanford Children’s Specialty Clinic; and a Watertown
School District multidisciplinary report. Based on this review, Dr. Hasseler
testified that, in his opinion, A.S. lacked “timeline intention[,]” meaning that “[s]he
can’t tell you time. She cannot recount events.” Further, Dr. Hasseler testified that
A.S. was “highly suggestible” and lacked “social communication processing” skills.
Dr. Hasseler concluded that A.S. “did not exhibit the capacity to understand or
answer simple questions accurately, consistently, or to observe or recall events
pertinent to the case other than in a very cursory manner.”
[¶12.] Dr. Hasseler’s expert report was also admitted at the hearing, in which
he concluded that he did “not believe that [A.S.] exhibits or exhibited the capacity to
give reliable testimony at trial.” Notably, he qualified his conclusion by stating that
he believed “that her spontaneous report when [A.S.] says her dad ‘hurted’ her [in
the Child’s Voice interview] . . . was probably an accurate general statement of
something [that] happened to her in the past with her father.” Spaniol offered Dr.
Hasseler’s testimony to support his claim that expert testimony of this nature
would have benefited the circuit court in making the competency determination and
that trial counsel erred in failing to retain such an expert.
[¶13.] Spaniol next called Mother to question her about her relationship with
Reed Anderson, who had lived with her for about three or four months after
Spaniol’s trial and conviction. Spaniol asked Mother whether she told Anderson
that she caught a man coming out of A.S.’s bedroom one evening when she and
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Spaniol had a couple over for extramarital intimacy. Mother adamantly denied
seeing a man coming from A.S.’s bedroom or having told Anderson about such a
thing occurring. Mother also denied telling Anderson that she “couldn’t believe that
[Spaniol] was going to prison for the rest of his life for something that he didn’t do”
and called Anderson a “compulsive liar.” In an attempt to develop this third-party
perpetrator theory, Spaniol also questioned Mother about two individuals—David
Hill and Melanie Johnson. Mother, however, testified that although she knew a
person named David Hill from high school, she had never accused him of molesting
A.S. She also testified that she did not recall knowing anyone with the name
Melanie Johnson.
[¶14.] Spaniol next made an offer of proof regarding what Anderson’s
anticipated testimony would be. Spaniol proffered that Anderson would testify that
Mother “would frequently drink to intoxication and get very emotional and make
statements. Like it wasn’t him that did it—him referring to Mr. Spaniol.” Spaniol
further proffered that Anderson would testify that Mother told him she and Spaniol
once “had a couple in their home for extramarital relations. . . . That while the
woman was with Mr. Spaniol, [Mother] caught the man coming out of A.S.’s
bedroom[,]” and that Mother “expressed that she suspected that David Hill or
Melanie Johnson were responsible for any abuse that A.S. would have suffered and
disclosed.” Finally, Spaniol stated that Anderson would testify that he was never
contacted by Spaniol’s trial attorney or interviewed by anyone in connection to
Spaniol’s case.
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[¶15.] Spaniol’s last witness was Tim Nisich, his uncle, who testified about
speaking with Anderson after Anderson contacted Nisich through Facebook. Nisich
testified that Anderson told him a story about Mother, David Hill, and Melanie
Johnson. Nisich explained that he informed Spaniol’s trial attorney both before and
after the trial about Anderson’s story. Nisich reported that in response, Spaniol’s
trial attorney told him that he “needs more. He needs to have proof or something to
go after that information.” Nisich clarified that to his knowledge, Spaniol’s trial
attorney had not investigated the story further.
[¶16.] The State called Terry Sutton, who represented Spaniol at trial and on
direct appeal. Sutton, an experienced attorney, testified that he had participated in
more than a hundred criminal jury trials during the course of his career and had
represented more than ten defendants charged with sex offenses. He relayed that
the primary obstacles he faced in defending Spaniol were his videotaped confessions
to law enforcement and to Mother, which he considered to be the most damaging
evidence and “very compelling.” Sutton explained that a secondary issue in
Spaniol’s trial was A.S.’s competency. To address that issue, Sutton’s strategy was
to file a competency motion with two goals: “Number one, determine the competency
issue itself. But number two, to begin to establish the child’s testimony wasn’t
credible. In other words, use the testimony from the competency open proceeding.
If it was allowed as evidence, use it at trial.”
[¶17.] When questioned why he did not hire an expert to evaluate A.S. and
testify at the competency hearing or assist him in preparing for the hearing, Sutton
explained:
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I didn’t expect, frankly, that—or anticipate from a trial strategy
standpoint, I contemplated that she was going to be allowed to
testify. And if she was going to be allowed to testify, as I said
before, my intent was to create credibility concerning her ability
to accurately recall and testify in those competency motions to
be used for impeachment purposes of a child at trial.
Sutton testified that his cross-examination of A.S. exposed her testimony as
unreliable and inconsistent and that her “stories were continuing to be different
from the previous ones.” Additionally, Sutton relayed that he did not need an
expert to assist him because he had no difficulty understanding the reports
introduced at the competency hearing, the same reports which were later reviewed
by Dr. Hasseler in forming his opinions. He also “believed [A.S.’s] testimony would
have little effect on the outcome of the trial” because he thought that “the
confessions bore much more weight.” Sutton testified that in his opinion “the most
likely reason for the conviction was the confessions.”
[¶18.] As to Nisich’s testimony and the proffer of Anderson’s testimony,
Sutton responded that Nisich never told him about Anderson’s story or about
anything that would have implicated David Hill or Melanie Johnson in the
molestation of A.S. Prior to trial, Sutton had hired a private investigator to look
into any possible third-party perpetrators, but the investigator was unable to
“establish any evidence beyond speculation that there might have been a third-
party perpetrator.” Sutton testified that “from after sentencing until jurisdiction
went to the Supreme Court[,]” nobody talked to him about any newly discovered
third-party perpetrator evidence. During re-cross-examination, Spaniol introduced
a letter written by Sutton to Spaniol while the appeal was pending, in which Sutton
stated that he received some information from Spaniol’s mother, but that he had
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“repeatedly informed” her that “I will need to have something more to go on and at
this point there is nothing more than someone told someone else etc.” Sutton
“agree[d] that the letter speaks for itself[,]” but stated that “I don’t know what
[Spaniol’s family] believed. I don’t recall that conversation as I am here today.”
[¶19.] On November 27, 2019, by agreement of the parties and with the
habeas court’s consent, Spaniol filed an affidavit from Reed Anderson which
confirmed the assertions Spaniol made in his offer of proof at the habeas
evidentiary hearing. The habeas court requested written briefs from the parties
and took the matter under advisement.
[¶20.] The habeas court issued a memorandum opinion, findings of fact and
conclusions of law, and an order denying Spaniol’s petition for habeas corpus relief.
The court determined that Sutton’s representation did not amount to ineffective
assistance and that Spaniol had failed to demonstrate prejudice resulting from
Sutton’s performance. Spaniol moved for and received a certificate of probable
cause from the habeas court permitting him to seek review of the following issues,
which we restate as follows:
1. Whether trial counsel provided ineffective assistance by:
i. Failing to retain an expert witness in support of his
motion regarding A.S.’s competency and to assist in
cross-examination of A.S.;
ii. Failing to object to the admission of Exhibits 11 and 12
at trial; and
iii. Failing to investigate or act on new evidence of a third-party perpetrator.
2. If trial counsel provided ineffective assistance, whether
Spaniol was prejudiced therefrom.
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Standard of Review
[¶21.] “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 (quoting Madetzke v.
Dooley,
2018 S.D. 38, ¶ 8,
912 N.W.2d 350, 353). “Claims of ineffective assistance of
counsel must be evaluated in light of the totality of the circumstances.” Dillon v.
Weber,
2007 S.D. 81, ¶ 11,
737 N.W.2d 420, 425 (citing Iron Shell v. Leapley,
503
N.W.2d 868, 872 (S.D. 1993)). The petitioner, in this case, Spaniol, bears the
burden of proving his entitlement to habeas relief by a preponderance of the
evidence. McDonough v. Weber,
2015 S.D. 1, ¶ 15,
859 N.W.2d 26, 34 (citing
Vanden Hoek v. Weber,
2006 S.D. 102, ¶ 8,
724 N.W.2d 858, 861).
Analysis and Decision
[¶22.] Spaniol’s claim of ineffective assistance of counsel is analyzed under
the two-prong Strickland v. Washington 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.
466 U.S. 668, 687,
104 S. Ct. 2052, 2064,
80 L. Ed. 2d 674 (1984).
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[¶23.] To show that his trial counsel was ineffective, first, Spaniol must
overcome the “strong presumption that counsel was competent.” Reay, 2019 S.D.
63, ¶ 14, 936 N.W.2d at 120–21 (internal quotation marks omitted) (citation
omitted). Spaniol must show that his trial counsel’s representation fell below an
“objective standard of reasonableness.” McDonough,
2015 S.D. 1, ¶ 22,
859 N.W.2d
at 38 (quoting Strickland,
466 U.S. at 688,
104 S. Ct. at 2064). In reviewing
counsel’s performance, we must make “every effort” 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.”
Strickland,
466 U.S. at 689,
104 S. Ct. at 2065. In other words, Spaniol must
“overcome the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” McDonough,
2015 S.D. 1, ¶ 22,
859
N.W.2d at 38 (citation omitted).
[¶24.] If we determine that Spaniol has shown that his counsel was
ineffective, we then must determine whether Spaniol’s defense was prejudiced by
the ineffective assistance. Prejudice from ineffective assistance of counsel exists
when there is a “reasonable probability of a different outcome.” Knecht v. Weber,
2002 S.D. 21, ¶ 5,
640 N.W.2d 491, 495. A reasonable probability is “a probability
sufficient to undermine confidence in the outcome.”
Id. (citation omitted.)
Trial Counsel’s Decision not to Retain an Expert Witness
[¶25.] Spaniol first contends that his trial counsel’s performance fell below
the objective standard of reasonableness because he failed to retain an expert
witness both in support of his motion to have A.S. declared incompetent to testify
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and to aid him in planning an effective cross-examination of A.S. at trial. Spaniol
argues that trial counsel’s efforts to suppress his confessions on Fifth Amendment
grounds would have been better spent by attempting to have A.S. “declared not
competent to testify, or at least in preparing to cross-examine A.S.” Further,
Spaniol argues that adequate efforts in regard to A.S.’s competency “would have
included obtaining the assistance of an expert witness”; therefore, “trial counsel’s
failure to obtain the assistance of an expert witness can be sufficient error to
overturn the conviction.” Based on our review of the record, we determine that
Spaniol has failed to demonstrate that trial counsel’s decision not to hire an expert
constitutes ineffective assistance of counsel.
[¶26.] Generally, “[f]ailure to hire an expert is not, per se, error.” Knecht,
2002 S.D. 21, ¶ 20,
640 N.W.2d at 500. Rather, the “decision to call (or not to call)
an expert is a matter of trial strategy[,]” and “this Court will not second guess
experienced counsel . . . regarding trial tactics or strategy.” Id. ¶ 21, 640 N.W.2d at
500–01 (citations omitted). As the United States Supreme Court has recently
stated:
[W]e have often explained that strategic decisions—including
whether to hire an expert—are entitled to a “strong
presumption” of reasonableness. Defense lawyers have “limited”
time and resources, and so must choose from among “countless”
strategic options. Such decisions are particularly difficult
because certain tactics carry the risk of “harm[ing] the defense”
by undermining credibility with the jury or distracting from
more important issues.
Dunn v. Reeves, 141 S. Ct. 2405, 2410,
210 L. Ed. 2d 812 (2021) (quoting Harrington
v. Richter,
562 U.S. 86, 104–08,
131 S. Ct. 770, 787–90,
178 L. Ed. 2d 624 (2011))
(internal citations omitted).
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[¶27.] Spaniol cites Dillon v. Weber for the proposition that the singular
failure to obtain the assistance of an expert witness can be sufficient error to
overturn a conviction. 2007 S.D. 81,
737 N.W.2d 420. In Dillon, we determined
that the failure to call an expert was error. Id. ¶ 16. Applying the criteria
discussed above, in Dillon, we considered how expert testimony “was critical to
Dillon’s defense” because “there was no physical evidence of sexual assault . . . and
the entire case turned on the credibility of the victims.” Id. ¶ 14,
737 N.W.2d at
426. We more recently considered whether failure to call an expert witness
constituted ineffective assistance of counsel in Reay v. Young,
2019 S.D. 63,
936
N.W.2d 117. In Reay, we concluded that trial counsel’s decision not to engage
several defense experts to assist him was not ineffective assistance of counsel but
rather a matter of sound trial strategy.
Id. ¶ 26–27. Reay’s trial counsel testified
that he decided not to retain certain experts because of the risk of alerting the State
to the defense’s planned trial arguments, the risk that the experts’ conclusions
would ultimately be unfavorable to the defense, and trial counsel’s ability to make
the planned arguments without the use of experts.
Id. ¶ 16–23.
[¶28.] In our view, trial counsel’s decision not to engage an expert to opine on
A.S.’s competency was made as part of a reasonable trial strategy. In particular,
counsel’s view that A.S. would likely be found competent was based upon his candid
and reasonable professional judgment, and his plan to develop inconsistencies in
A.S.’s testimony in an effort to undermine her credibility was equally sound. Trial
counsel also testified that he was able to comprehend the exhibits introduced at
A.S.’s competency hearing without expert assistance. Additionally, the opinion Dr.
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Hasseler provided at the habeas hearing pertained more to the reliability of A.S.’s
testimony than to her competency to testify, and some opinions relating to the
accuracy of A.S.’s statements may not have been admissible. Based on the
testimony from the habeas hearing, Spaniol provides no persuasive argument that,
had trial counsel hired an expert, A.S. would have been determined incompetent to
testify at trial.
[¶29.] Furthermore, Spaniol’s claim that the lack of expert testimony
“eliminated any opportunity to dispute the reliability of [A.S.’s] statements before
the jury” is not accurate. As we have indicated, trial counsel developed a strong
framework from which to impeach A.S.’s credibility and the reliability of her
statements. After A.S.’s testimony at trial,
the parties eventually stipulated that Spaniol could read several
of A.S.’s prior questions and answers [from the competency
hearing] to the jury at the close of Spaniol’s case-in-chief.
Further, the parties agreed the jury would be advised the
statements could be considered as prior inconsistent statements
made by A.S. under oath at a prior proceeding. Additionally, the
circuit court gave the jury an instruction regarding the proper
manner in which to evaluate prior inconsistent statements.
Spaniol, 2017 S.D. 20, ¶ 27,
895 N.W.2d at 340. Not only did trial counsel establish
inconsistencies derived from A.S.’s competency hearing, the circuit court specifically
instructed the jury they could consider them as such.
[¶30.] Further, unlike the situation in Dillon, expert testimony regarding
A.S.’s competency was not “critical to the defense” as the entire case did not “turn
on” A.S.’s credibility.
2007 S.D. 81, ¶ 14,
737 N.W.2d at 426. The State in the
underlying trial presented other highly inculpatory evidence, including Spaniol’s
taped confessions; corroborating evidence of Spaniol’s suspected gonorrhea,
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manifesting with an infection in his penis; and his incriminating internet search
history. This information obtained from his cell phone included searches for content
depicting role-playing father/daughter sexual encounters and a search for whether
an STD can “be transmitted through water.” These search inquiries occurred before
Spaniol was interviewed by police and before he received the results of his negative
test for a UTI.
[¶31.] Because trial counsel’s decision not to retain an expert for the
competency hearing could be considered a matter of sound trial strategy, we
conclude that trial counsel’s performance did not fall below the objective standard of
reasonableness, and we need not consider the prejudice prong of the Strickland
analysis. “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.” Strickland, 466 U.S. at 687,
104 S. Ct. at 2064.
Trial Counsel’s Decision to not Object to Admission of Exhibits 11 and 12
[¶32.] The State offered Exhibit 11, a video recording of A.S.’s Child’s Voice
interview, and Exhibit 12, the Child’s Voice interviewer’s summary report, at trial.
Spaniol contends that trial counsel should have objected on hearsay grounds to the
admission of these exhibits because the State failed to request a hearing on
admissibility pursuant to SDCL 19-19-806.1 2 to establish whether the “time,
2. SDCL 19-19-806.1 provides:
A statement made by a child under the age of thirteen, or by a
child thirteen years of age or older who is developmentally
disabled as defined in § 27B-1-18, describing any act of sexual
contact or rape performed with or on the child by another, or
(continued . . .)
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content, and circumstances” of A.S.’s out-of-court statements “provided sufficient
indicia of reliability” to warrant their admission. 3 The State responds that
“[g]enerally, the decision of whether to make an objection or motion is a decision
within the discretion of trial counsel” and that, because A.S. had already been found
________________________
(. . . continued)
describing any act of physical abuse or neglect of the child by
another, or any act of physical abuse or neglect of another child
observed by the child making the statement, not otherwise
admissible by statute or court rule, is admissible in evidence in
criminal proceedings against the defendant or in any proceeding
under chapters 26-7A, 26-8A, 26-8B, and 26-8C in the courts of
this state if:
(1) The court finds, in a hearing conducted outside the
presence of the jury, that the time, content, and
circumstances of the statement provide sufficient indicia
of reliability; and
(2) The child either:
(a) Testifies at the proceedings; or
(b) Is unavailable as a witness.
However, if the child is unavailable as a witness, such statement
may be admitted only if there is corroborative evidence of the
act.
No statement may be admitted under this section unless the
proponent of the statement makes known the proponent’s
intention to offer the statement and the particulars of it,
including the name and address of the declarant to the adverse
party sufficiently in advance of the trial or hearing to provide
the adverse party with a fair opportunity to prepare to meet the
statement.
3. Spaniol cites State v. Moriarty, 501 N.W.2d 352 (S.D. 1993) (reversing and
remanding for retrial based on trial court’s failure to make “the proper
determination as to the basis for admission under SDCL 19-16-2(2) [now
SDCL 19-19-801(d)]”), and State v. Thompson, 379 N.W.2d 295 (S.D. 1985)
(reversing and remanding for new trial based on the trial court’s failure to
make findings of reliability under SDCL 19-16-38 [now SDCL 19-19-806.1]),
to support his claim that the exhibits could have been kept out of trial on
hearsay grounds.
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competent to testify prior to Exhibits 11 and 12 being offered at trial, the admission
of the exhibits contributed to trial counsel’s strategy of showing A.S.’s multiple
inconsistent stories. Further, the State argues that trial counsel was able to use
details in A.S.’s Child’s Voice interview to advance a theory that A.S. contracted
gonorrhea through a sex toy that she touched that had nothing to do with any acts
by Spaniol. The State also asserts that trial counsel used Exhibits 11 and 12 on
cross-examination to argue that the methods used by the interviewer were
suggestive.
[¶33.] At the habeas hearing, trial counsel testified that he made the
strategic decision not to object to the admission of Exhibits 11 and 12 because he
used information in the exhibits to further Spaniol’s defense theories and impeach
A.S.’s credibility. Trial counsel’s objection to Exhibits 11 and 12 on the basis of
hearsay would have required a SDCL 19-19-806.1 hearing regarding the reliability
of the child’s statements in the exhibits before being admitted. However, we cannot
say on this record, that trial counsel’s decision not to object, for the reasons
described in his habeas testimony, was not part of a sound trial strategy. Further,
Spaniol has not established that trial counsel’s failure to object to these exhibits
resulted in prejudice.
[¶34.] Spaniol disagrees and argues that he was prejudiced because trial
counsel did not demand a hearing under SDCL 19-19-806.1, which in Spaniol’s view
may have resulted in the exclusion of Exhibits 11 and 12. Spaniol contends that the
“trial court never applied the information offered regarding A.S.’s competency to the
Child’s Voice statements in order to assess their reliability[,]” and, if the court had
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considered reliability, “the statements would not have been admitted.” In response,
the State asserts that Spaniol has failed to establish that the exhibits would have
been excluded had trial counsel objected to their admission because they would
have been admissible under SDCL 19-19-806.1. We note that the narrow question
of the exhibits’ admissibility is not the test for prejudice under the second prong of
the Strickland analysis, which instead contemplates a broader inquiry regarding
the reliability of the result at trial. Nevertheless, we agree with the State that
Exhibits 11 and 12 would likely have been admissible even if trial counsel had
objected to them.
[¶35.] SDCL 19-19-806.1 provides that in child sex abuse cases, a child’s
otherwise inadmissible prior statement regarding the abuse is admissible if the trial
court “finds, in a hearing conducted outside the presence of the jury, that the time,
content, and circumstances of the statement provide sufficient indicia of reliability”
and the child testifies or is unavailable. If the child is unavailable as a witness, the
statement may still be admitted if there are sufficient indicia of reliability and
“there is corroborative evidence of the act.” Id.
[¶36.] Here, if trial counsel had objected to Exhibits 11 and 12 as
inadmissible hearsay, the trial court would have held the requisite SDCL 19-19-
806.1 hearing. Had the hearing been held, Spaniol presents no argument, other
than A.S. should have been found incompetent to testify and that Exhibits 11 and
12 would not have met the sufficient indicia of reliability standard. Having
previously affirmed the circuit court’s determination that A.S. was competent to
testify, Spaniol’s only asserted claim of prejudice in trial counsel’s failure to object
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to Exhibits 11 and 12 fails. See Spaniol, 2017 S.D. 20, ¶ 19,
895 N.W.2d at 337
(“Based upon our review of the record, the circuit court did not abuse its discretion
when it found A.S. competent to testify.”).
[¶37.] Had trial counsel objected to their admission, Exhibits 11 and 12
would likely have been admissible under SDCL 19-19-806.1 after the appropriate
hearing and findings. And based upon A.S.’s trial testimony; the evidence
corroborating her testimony, including Spaniol’s suspected gonorrhea; his
incriminating internet search history; and Spaniol’s taped confessions in which he
admitted to penetrating A.S. on multiple occasions; we conclude that the strong
evidence suggesting Spaniol’s guilt did not make the jury’s guilty verdict unreliable
even if Exhibits 11 and 12 were improperly admitted. Thus, Spaniol has failed to
demonstrate prejudice.
Trial Counsel’s Alleged Failure to Investigate Evidence of a Third-Party
Perpetrator
[¶38.] Spaniol contends that trial counsel received information after trial
from Nisich relaying claims by Anderson that he received information from Mother
about a potential third-party perpetrator. Spaniol alleges that trial counsel did not
sufficiently investigate this information and that counsel should have sought a
remand from this Court when the case was pending on direct appeal so that trial
counsel could file a motion in circuit court for a new trial based on the new third-
party perpetrator information. At the habeas hearing, Spaniol introduced a letter
written by his trial counsel after his trial in which counsel mentioned information
received from Spaniol’s mother that may have indicated a potential third-party
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perpetrator. However, the letter stated that trial counsel thought the information
was too speculative to act on.
[¶39.] In response, the State notes trial counsel’s testimony that he did not
remember talking to Anderson, Nisich, or anyone else after Spaniol was sentenced.
The State contends that the letter introduced by Spaniol presented a reasonable
professional judgment to not investigate further because the information from
Spaniol’s mother mentioned in the letter was not verifiably “true, correct, or more
than just gossip.” Furthermore, the State points out that neither Nisich nor
Anderson, in the evidence presented at the habeas hearing, claimed to have
communicated this information to trial counsel via Spaniol’s mother. Thus, the
State argues that the information referenced in trial counsel’s letter may not have
been related to Anderson’s claims and also notes that, in her testimony at the
habeas hearing, Mother flatly denied Nisich and Anderson’s story. Because of the
“speculative and hearsay within hearsay status of the information, offered after the
case was on appeal,” the State argues that trial counsel’s decisions were reasonable.
[¶40.] “This Court has found ineffective assistance ‘when counsel failed to
inquire of known witnesses[.]’” Dillon, 2007 S.D. 81, ¶ 13,
737 N.W.2d at 426
(quoting New v. Weber,
1999 S.D. 125, ¶ 13,
600 N.W.2d 568, 574). Here, trial
counsel specifically denied knowing of Nisich and Anderson’s third-party
perpetrator story when Spaniol’s case was pending on direct appeal. Although
Spaniol introduced the letter from trial counsel into evidence regarding some kind
of unspecified new information while the case was on appeal, the letter does not
explain what information Spaniol’s mother shared, whether that information was
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the same information that Nisich and Anderson described, or whether it was
different from leads investigated before trial.
[¶41.] Even assuming that trial counsel knew of Nisich and Anderson’s story
while Spaniol’s case was on direct appeal, Nisich’s and Anderson’s information was
attenuated, speculative, and hearsay within hearsay. This information allegedly
was disclosed by Mother, who, at the habeas hearing, emphatically denied having
made the statements as alleged to Anderson. Thereafter, the information was
allegedly disclosed by Anderson to Nisich, then by Nisich to trial counsel after trial.
Such a chain of hearsay does not suggest that the alleged statements held much
veracity to warrant further investigation.
[¶42.] Additionally, to act on this information at the stage it was allegedly
received would have required trial counsel to seek a remand from this Court, and if
the case was remanded, Spaniol would have been required to meet the high
evidentiary burden to establish entitlement to a new trial. 4 Therefore, trial
counsel’s decision not to move to remand a potentially meritorious direct appeal for
a dubious chance at a new trial does not fall below the objective standard of
reasonableness. Because Spaniol has failed to show that trial counsel’s
4. A new trial will be granted only if the defendant demonstrates that “(1) the
evidence was undiscovered by the movant at the time of trial; (2) the evidence
is material, not merely cumulative or impeaching; (3) that it would probably
produce an acquittal; and (4) that no lack of diligence caused the movant to
fail to discover the evidence earlier.” State v. Muhm, 2009 S.D. 100, ¶ 43,
775
N.W.2d 508, 523 (citation omitted). Whether the trial court grants a new
trial “rests in the solemn discretion of the trial court, and depends largely on
the credibility of the new evidence.” State v. Gerdes, 258 N.W.2d 839, 843
(S.D. 1977).
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performance fell below the objective standard of reasonableness in this respect, we
need not reach the issue of prejudice.
Conclusion
[¶43.] Spaniol failed to establish that his trial counsel provided ineffective
assistance. Regarding trial counsel’s decision not to hire an expert to assist him in
addressing A.S.’s competency, Spaniol failed to show that trial counsel’s
performance fell below the objective standard of reasonableness. As to trial
counsel’s failure to object to admission of Exhibits 11 and 12, Spaniol has failed to
establish that trial counsel’s performance was deficient or prejudicial. Lastly, as to
trial counsel’s decision not to investigate the alleged evidence of a third-party
perpetrator, Spaniol has failed to show that trial counsel’s decision constituted
deficient performance. For these reasons, we affirm.
[¶44.] JENSEN, Chief Justice, and SALTER, DEVANEY, and MYREN,
Justices, concur.
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