State v. Hannemann , 2012 S.D. LEXIS 151 ( 2012 )

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2012 S.D. 79IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
DAWN HANNEMANN, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
CODINGTON COUNTY, SOUTH DAKOTA
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THE HONORABLE RONALD K. ROEHR
Judge
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MARTY J. JACKLEY
Attorney General
CRAIG M. EICHSTADT
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
KATE M. BENSON of
Austin, Hinderaker, Hopper,
Strait & Benson, LLP
Watertown, South Dakota Attorneys for defendant
and appellant.
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CONSIDERED ON BRIEFS
ON AUGUST 27, 2012
OPINION FILED 11/20/12
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ZINTER, Justice
[¶1.] Dawn Hannemann was convicted of arson in connection with a fire in
her apartment. She appeals arguing that the circuit court abused its discretion: (1)
in denying her motions for judgment of acquittal and new trial based on a claim of
ineffective assistance of trial counsel; and (2), by excluding an out-of-court
statement made by her estranged sister. We affirm.
Facts and Procedural History
[¶2.] On the night of October 31, 2010, Hannemann was alone in her
Watertown apartment that she shared with her teenage son. She had taken her son
to visit her daughter in Fargo, North Dakota. In the early morning hours of
November 1, 2010, a fire started on the first floor of the apartment. Hannemann
testified that she attempted to exit through the front door on the first floor. But
because of heavy smoke, she opened a second-story-bedroom window, screamed for
help, and jumped, injuring herself. Emergency responders arrived, Hannemann
was transported to a hospital, and firefighters extinguished the fire.
[¶3.] The Watertown Fire Department, Allstate Insurance Company
(Hannemann’s insurer), and Midwest Family Mutual Insurance Company (the
apartment owner's insurer) conducted simultaneous investigations. The Allstate
and Midwest investigators believed that the fire had been intentionally set. One
Allstate investigator collected carpet samples and sent them to a chemist to be
tested for ignitable liquid residue. Another Allstate investigator sent Hannemann’s
computer to an electrical engineer to determine whether it played a role in the fire.
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The Midwest investigator sent the smoke alarms and an electrical outlet from the
apartment to a second electrical engineer for analysis.
[¶4.] Hannemann’s court-appointed attorney requested a court-appointed
computer expert and made a lengthy discovery motion. Counsel did not request a
court-appointed fire investigator, electrical engineer, or chemist. Additionally,
counsel did not obtain independent testing of the carpet samples or electrical
devices, and counsel did not make a Daubert motion to challenge the reliability of
the State’s experts’ opinions. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
[¶5.] During the course of a three-day jury trial, the three fire investigators
employed by Allstate and Midwest testified that the fire had been intentionally set.
The two electrical engineers testified that the electrical devices in the apartment
had not caused the fire. The chemist testified that the carpet sample from the fire’s
place of origin contained residue from an ignitable accelerant, while samples from
other places in the room did not.
[¶6.] Additional evidence also suggested arson. The smoke detectors in the
apartment were hard-wired to a circuit breaker with back-up battery power in case
of electrical failure. Analysis of these systems revealed that the electrical circuit for
the smoke detectors had been turned off and the back-up batteries for three of the
four smoke alarms had been removed. Fire investigators also noted that a
substantial amount of Hannemann’s clothing, shoes, and decorative wall hangings
had been removed prior to the fire. After the fire, Hannemann filed a $53,000
insurance claim for damage caused by the fire.
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[¶7.] Hannemann’s testimony at trial was also inculpatory. Shortly after
the fire, Hannemann told law enforcement that she had not touched the smoke
detectors in the apartment. At trial, however, Hannemann admitted that she may
have removed a battery. Hannemann also admitted that she had browsed the
Internet on the night of the fire. Evidence from Hannemann’s computer revealed
Internet searches on smoke alarms, renter’s insurance, house fires, and Allstate’s
insurance coverage in South Dakota.
[¶8.] Hannemann testified that she did not know how the fire started, but
that if it was intentionally set, she suspected Ashley Tofteland, her estranged sister.
To support this theory, Hannemann wanted her mother, Mary Briggs, to testify.
Hannemann’s trial counsel gave Hannemann a subpoena to deliver to Briggs. Trial
counsel did not utilize the services of a sheriff or process server to secure the
appearance of Briggs. Briggs did not appear to testify. Briggs later explained that
she did not appear because she was not properly served with a subpoena.
[¶9.] Hannemann also sought to support her theory that Tofteland set the
fire through the testimony of Leallen Endres, a furniture dealer. Hannemann
attempted to elicit testimony from Endres that Tofteland came to Endres’ business
stating that Hannemann was going to blame the fire on a couch that Endres sold
Hannemann. The circuit court excluded Endres’ proposed testimony as
inadmissible hearsay.
[¶10.] The jury found Hannemann guilty of arson by starting a fire with
intent to destroy or damage property in order to collect insurance. After trial,
Hannemann obtained a new court-appointed attorney who moved for a judgment of
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acquittal and new trial, claiming ineffective assistance of trial counsel. After a
hearing, both motions were denied.*
Decision
[¶11.] To prevail “on a claim of ineffective assistance of counsel, a defendant
must show that his counsel provided ineffective assistance and that he was
prejudiced as a result.” State v. Thomas, 2011 S.D. 15, ¶ 21, 796 N.W.2d 706, 713.
“To establish ineffective assistance, a defendant must show that counsel’s
representation fell below an objective standard of reasonableness.” Id. “The
question is whether counsel’s representation ‘amounted to incompetence under
prevailing professional norms, not whether it deviated from best practices or most
common custom.’” Id. (quoting Harrington v. Richter, ___ U.S. ___, ___, 131 S. Ct.
770, 788, 178 L. Ed. 2d 624 (2011)). To establish prejudice, there must be “a
reasonable probability that, but for counsel[’]s unprofessional errors, the result of
the proceeding would have been different.” Id. ¶ 28. “Ultimately, . . . ‘the question
is whether there is a reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt.’” Id. (quoting Strickland v.
Washington, 466 U.S. 668, 695, 104 S. Ct. 2052, 2068-69, 80 L. Ed. 2d 674 (1984)).
* “We review a trial court’s denial of a motion for a new trial under the abuse of
discretion standard.” State v. Zephier, 2012 S.D. 16, ¶ 15, 810 N.W.2d 770,
773. “We review the denial of a motion for judgment of acquittal as a
question of law under the de novo standard.” State v. Danielson, 2012 S.D.
36, ¶ 8, 814 N.W.2d 401, 405. “On appeal, the question before this Court is
whether the evidence was sufficient to sustain the conviction[].” Id. “In
measuring the sufficiency of the evidence, we ask whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
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[¶12.] Hannemann argues that she is entitled to have her ineffective
assistance claim resolved on direct appeal because she may be released from
custody before a habeas corpus action could be completed. However, “it is only
through habeas corpus that a sufficient record can be made to allow the appropriate
review” of a claim of ineffective assistance of counsel. State v. Petersen, 515 N.W.2d
687, 688 (S.D. 1994). Ineffective assistance claims reviewed after the filing of a
habeas petition “allow ‘attorneys charged with ineffectiveness [to] explain or defend
their actions and strategies[.]’” Thomas, 2011 S.D. 15, ¶ 23, 796 N.W.2d at 714
(alteration in original). The development of a habeas record also provides this
Court with “a more complete picture of what occurred[.]” Id. Only in “rare cases”
will “an ineffective-assistance-of-counsel claim [be] ripe for review on direct
appeal[.]” Id. ¶ 20. We “depart from this principle only when trial counsel was ‘so
ineffective and counsel’s representation so casual as to represent a manifest
usurpation of [the defendant’s] constitutional rights.’” Id. ¶ 23 (alteration in
original).
[¶13.] Hannemann argues that trial counsel was sufficiently deficient on a
number of matters to permit review on direct appeal. Hannemann first contends
that counsel was deficient in failing to secure an arson expert. Hannemann argues
that without an arson expert, trial counsel was unable to properly challenge the
admissibility of the State’s scientific evidence through pre-trial motions and cross-
examination. Hannemann relies on three cases holding that failing to properly
rebut the State’s evidence relating to arson, failing to consult with an arson expert,
or failing to challenge expert opinions related to arson constitutes ineffective
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assistance of counsel. See Richey v. Bradshaw, 498 F.3d 344 (6th Cir. 2007); Dugas
v. Coplan, 428 F.3d 317 (1st Cir. 2005); United States v. Hebshie, 754 F. Supp. 2d 89(D. Mass. 2010).
[¶14.] These cases are distinguishable because each involved a factual record
developed through some kind of habeas proceeding. In this case, the record is
limited to the trial record. Significantly, although Hannemann’s fire investigator’s
affidavit, submitted in support of the motion for new trial, attacked the State’s
evidence of an intentional fire, the State has identified trial evidence that
contradicts that affidavit. This conflicting evidence presents us with the following
factual disputes: (1) whether the scene was properly preserved; (2) what inferences
should have been drawn from the presence or absence of accelerant containers; (3)
whether there was adequate testing of the identified accelerant; and (4), whether
appropriate fire investigation protocols were followed. Further, Hannemann
testified that she believed the perpetrator was her estranged sister, Ashley
Tofteland. Accordingly, trial strategy may have been the motivation for trial
counsel’s failure to utilize an arson expert witness to challenge the State’s scientific
evidence indicating that the fire was intentionally set. All of these factual questions
are more appropriately resolved in a habeas hearing where Hannemann’s
arguments, and particularly the untested fire investigator’s affidavit, can be tested
through cross-examination.
[¶15.] Hannemann also contends that trial counsel was ineffective in failing
to properly subpoena Briggs. Hannemann points out that there is little if any
argument available to justify the failure to properly subpoena a witness. Briggs
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testified at the hearing on the motion for new trial that her daughters, Tofteland
and Hannemann, did not get along. Briggs also testified that there was a key to
Hannemann’s apartment in Briggs’s apartment. But Briggs did not know why the
key was in Briggs’s apartment. Additionally, Hannemann testified to the strained
relationship with Tofteland. Therefore, even if trial counsel’s failure to properly
serve Briggs was ineffective assistance under prevailing norms, the direct appeal
record does not demonstrate prejudice; i.e. that Briggs’s testimony would have
changed the result of the trial.
[¶16.] Hannemann further contends that trial counsel was ineffective in
failing to demonstrate a potential bias of the fire investigators hired by the
insurance companies. Hannemann contends that the investigators employed by the
insurers had a financial interest in finding that the fire was intentionally set.
Although trial counsel did not cross-examine those experts regarding the entities
that employed them, the fire investigators disclosed that information in their direct
examination. Therefore, Hannemann has not demonstrated that failing to ask
about the same information on cross-examination was ineffective assistance or that
it was prejudicial.
[¶17.] Hannemann finally contends that it is appropriate to review her
ineffective assistance of counsel claim because this case is like State v. Thomas,
2011 S.D. 15, 796 N.W.2d 706 (reviewing an ineffective assistance of counsel claim
on direct appeal). We disagree. In Thomas, there was “no conceivable strategic
motive” for defense counsel’s conduct and the evidence involving trial error was the
only evidence directly implicating the defendant. See id. ¶¶ 25, 30. In
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Hannemann’s case, there is inculpatory evidence not involving alleged trial errors.
Further, most of trial counsel’s decisions could have involved trial strategy. Finally,
as previously noted, Hannemann’s post-trial evidence raises disputes of fact
relating to the ineffective assistance and prejudice claims that can only be resolved
through a habeas hearing.
[¶18.] Because the existing circuit court record does not establish a “manifest
usurpation of [the defendant’s] constitutional rights,” Hannemann’s ineffective
assistance of counsel claim is not ripe for review. See id. ¶ 23 (alteration in
original). The circuit court did not abuse its discretion in denying Hannemann’s
motions.
[¶19.] Hannemann also argues that the circuit court erred in excluding the
out-of-court statement that Tofteland made to Endres. Hannemann claims that the
statement was not hearsay because it was not offered to prove the truth of the
matter asserted and because it was a verbal act. “A trial court’s evidentiary rulings
are presumed to be correct and are reviewed under the abuse of discretion
standard.” State v. Harris, 2010 S.D. 75, ¶ 8, 789 N.W.2d 303, 307.
[¶20.] “‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” SDCL 19-16-1(3) (Rule 801(c)). In this case, Tofteland (Hannemann’s
estranged sister) told Endres (the furniture dealer) that Hannemann would blame
the fire on a couch that Endres sold to Hannemann. Hannemann’s trial counsel
called Endres to repeat that out-of-court statement at trial. Hannemann argued
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that the testimony was not hearsay because it was not being offered to prove the
truth of the matter asserted. The circuit court disagreed.
[¶21.] Endres’ proposed testimony was inadmissible hearsay. Hannemann
proposed to have Endres testify to an out-of-court statement made to him by
Tofteland. This proposed testimony was proffered to support Hannemann’s theory
that Tofteland set the fire. The testimony would have been used to prove the truth
of the matter asserted; i.e. that Tofteland was making unusual claims about the
fire. Hannemann failed to identify any other relevant purpose for the proposed
testimony. Therefore, the proposed testimony was an out-of-court statement offered
to prove the truth of the matter asserted.
[¶22.] The statement was also inadmissible as a “verbal act.” Tofteland’s
statement was not “made contemporaneously with or immediately preparatory to
an act which [was] material to the litigation that tend[ed] to explain, illustrate, or
show the object or motive of an otherwise equivocal act and which [was] offered
irrespective of the truth of any assertion” in the statement. See Harris, 2010 S.D.
75, ¶ 13, 789 N.W.2d at 309. The circuit court did not abuse its discretion in
excluding Endres’ proposed testimony repeating Tofteland’s out-of-court statement.
[¶23.] Affirmed.
[¶24.] GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and
WILBUR, Justices, concur.
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