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2019 S.D. 63 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

BRAD REAY, Petitioner and Appellant, 

 v. 

DARIN YOUNG, Warden, 

S.D. State Penitentiary, Respondent and Appellee. 

 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE SIXTH JUDICIAL CIRCUIT 

HUGHES COUNTY, SOUTH DAKOTA 

* * * * 

THE HONORABLE JOHN L. BROWN 

Retired Judge 

* * * * 

ROBERT T. KONRAD of 

Olinger, Lovald, McCahren, 

 Van Camp & Konrad, P.C. 

Pierre, South Dakota Attorneys for petitioner and 

appellant. 

JASON R. RAVNSBORG 

Attorney General 

PAUL S. SWEDLUND 

Assistant Attorney General 

Pierre, South Dakota Attorneys for respondent 

 and appellee. 

* * * * 

 ARGUED AUGUST 27, 2019 

 OPINION FILED 11/20/19
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SALTER, Justice 

[¶1.] A jury convicted Brad Reay of first-degree murder in the death of his 

wife, Tami. He received a mandatory sentence of life in prison without the 

possibility of parole. After we affirmed Reay’s conviction on direct review, he sought 

a writ of habeas corpus, alleging his trial counsel rendered ineffective assistance. 

The habeas court denied relief but issued a certificate of probable cause. Reay 

appeals the habeas court’s determination. We affirm. 

Background 

[¶2.] The underlying criminal case dates back to late 2005. At the time, 

Reay lived in Pierre with Tami and their daughter, Haylee, who was 13 years old at 

the time of trial. Tami began an affair with a coworker in December of 2005, and 

the Reays’ marriage rapidly deteriorated. Though the Reays lived in the same 

home, they had separate bedrooms. Tami continued her affair and suggested they 

divorce at the end of Haylee’s school year. 

[¶3.] Tami was stabbed to death in an attack or series of attacks that most 

likely began in her bed sometime during the overnight hours of February 7-8, 2006. 

When she was reported missing the next day, investigators concluded that Reay 

was involved in her disappearance and arrested him for first-degree murder. Two 

days later, a South Dakota National Guard pilot flying over the Pierre area spotted 

a body, later identified as Tami, by the emergency spillway at the Oahe Dam. 
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[¶4.] The circuit court1 appointed Rapid City attorney Tim Rensch to 

represent Reay, whose defense initially appeared to be that Tami was killed by an 

unknown assailant. After several months, though, Rensch testified that Reay 

mentioned “[t]here is another possibility[.]” Reay then, for the first time, explained 

to Rensch that Haylee had murdered Tami after allegedly expressing anger about 

her mother’s extramarital affair. Reay claimed that he had encountered Haylee in a 

“catatonic” state immediately after the murder, still holding the hunting knife she 

had used as the murder weapon. 

[¶5.] This theory became Reay’s defense to the murder charge at his trial. 

He claimed that he was guilty only of covering up evidence of the crime by cleaning 

the house, disposing of the knife, and moving Tami’s body. Three areas of physical 

evidence at trial figure prominently in this habeas appeal. 

[¶6.] The first concerns a mark on Tami’s left breast noted by forensic 

pathologist Dr. Donald Habbe during the autopsy. The mark was a broken straightline abrasion on the skin. Dr. Habbe was uncertain of its origin, but testified that it 

could possibly be a bite mark or perhaps a mark from the hilt of the knife used to 

inflict a nearby stab wound. Regardless, Dr. Habbe was unable to definitively 

determine what caused the abrasion. At his trial, Reay argued that the mark was a 

bite mark resembling Haylee’s gapped front teeth. 

[¶7.] The second item of evidence was a towel that appeared to have a drop 

of blood on it. The towel, believed to have been from the Reay home, was found 

inside the vehicle Reay used to transport Tami’s body. Subsequent testing revealed 

 

1. The Honorable Kathleen F. Trandahl, Circuit Court Judge, now retired. 
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DNA belonging to Tami and a combination of DNA that could not be identified, but 

forensic analysis determined that Reay could not be excluded as a contributor. 

Reay argued at trial that the DNA testing results created the possibility of a third 

unidentified source of DNA, suggesting it could be Haylee. 

[¶8.] Finally, investigators recovered a tarp near the Oahe Dam spillway 

that was stained with a large amount of blood and had a series of slits. The parties 

disagreed about whether these slits corresponded with all of the stab wounds on 

Tami’s body. Reay admitted at trial that he had used the tarp to remove and 

transport Tami’s body, claiming he had done so to protect Haylee and help her avoid 

responsibility for murdering her mother. 

[¶9.] A jury convicted Reay of first-degree murder, and the circuit court 

imposed a mandatory sentence of life in prison without the possibility of parole. 

Reay appealed, and we affirmed his conviction in State v. Reay, 2009 S.D. 10, 762 

N.W.2d 356. 

[¶10.] In his amended habeas petition, Reay alleges that Rensch rendered 

ineffective assistance because he did not engage any expert witnesses to evaluate 

the possible bite mark, the towel, and the tarp. In Reay’s view, experts in these 

areas would have been helpful to definitively tie the evidence to Haylee and 

strengthen his defense. Reay’s habeas counsel also moved for the appointment of 

expert witnesses in the areas of “bite marks, DNA testing, and tool marks.” The 
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circuit court2 denied the motion, and Reay has not challenged that ruling on 

appeal.3 

[¶11.] Rensch was the only witness at the habeas hearing. He testified that 

he did not engage experts in the areas Reay identifies because he could make 

arguments consistent with the defense theory without the experts. Engaging 

experts, in Rensch’s view, would have accomplished little or nothing for the case 

and likely would have provided the State with some degree of notice, enabling 

prosecutors to counter the defense experts with tactical arguments and experts of 

their own. 

[¶12.] The circuit court denied Reay’s habeas petition, concluding he had not 

demonstrated that Rensch was ineffective. Reay presents one issue on appeal, 

which we restate as follows: Whether the circuit court erred when it concluded 

Reay was not deprived of effective assistance of counsel and denied his petition for 

habeas relief. 

Analysis 

[¶13.] 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. 

Madetzke v. Dooley, 2018 S.D. 38, ¶ 8, 912 N.W.2d 350, 353. A petitioner’s 

 

2. The Honorable John Brown, Circuit Court Judge, now retired. 

3. The certificate of probable cause authorizes review only for the ineffective 

assistance of counsel claims. 
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ineffective assistance claim is analyzed under the familiar two-pronged standard set 

out in Strickland v. Washington: 

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)). 

[¶14.] Both prongs of Strickland present demanding challenges for 

petitioners. Initially, “[a] habeas applicant must rebut the ‘strong presumption’ 

that counsel was competent.” Jenner v. Dooley, 1999 S.D. 20, ¶ 16, 590 N.W.2d 463, 

470 (quoting Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S. Ct. 2574, 2586, 91 

L. Ed. 2d 305 (1986)). Our function is not to “second guess the decisions of 

experienced trial attorneys regarding matters of trial tactics unless the record 

shows that counsel failed to investigate and consider possible defenses . . . .” 

Randall v. Weber, 2002 S.D. 149, ¶ 7, 655 N.W.2d 92, 96 (quoting Sprik v. Class, 

1997 S.D. 134, ¶ 24, 572 N.W.2d 824, 829). “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.” Strickland, 466 U.S. 

at 689, 104 S. Ct. at 2065. 
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[¶15.] Under Strickland’s second prong, we have held that prejudice from 

deficient representation 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.

(quoting Weddell v. Weber, 2000 S.D. 3, ¶ 25, 604 N.W.2d 274, 281). 

[¶16.] For each of the three areas of evidence Reay identifies here, Rensch’s 

decision to not engage an expert witness was part of a sound trial strategy. As 

Rensch explained during his testimony, Reay’s defense was not premised upon 

actually solving Tami’s murder. Instead, it was designed to create doubt that Reay 

had killed Tami, while at the same time offering a plausible alternate explanation 

that Haylee had killed her. As a complimentary theme, Rensch attempted to sow 

skepticism about the investigation by suggesting that law enforcement officers were 

focused parochially on Reay and did not objectively consider the possibility that 

Haylee could be responsible. 

[¶17.] For instance, Rensch was not inclined to use an expert in bite mark 

evidence, also known as odontology, because Dr. Habbe had allowed for the 

possibility that the dashed-line mark on Tami’s breast could be a bite mark. With 

this testimony, Rensch could simultaneously suggest that the marks matched 

Haylee’s gap-tooth dentition and that the State had overlooked an important clue. 

He described the approach during his testimony at the habeas hearing: 

Here you had two dashes that we were able to argue were the 

daughter’s bite and that was already a good piece of information 

for us. And what’s even more so about that is that went along 

with my theory as it related to other matters like the DNA and 

the various things in the entire theory of the defense, which was 

that the government or the State intentionally stayed away from 
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anything that would support the contention that the little girl 

did it. 

 

[¶18.] We believe that this strategy fits within the realm of reasonable 

tactical decisions. Rensch was able to suggest the possibility of a bite from gappedfront incisors, like Haylee’s, through the forensic pathologist called by the State, all 

without alerting prosecutors to his theory before trial.4 Calling a defense 

odontology expert would most certainly have prompted the State to engage its own 

odontology expert, with the ensuing disagreement potentially harming the defense. 

Alternatively, eliciting Dr. Habbe’s acknowledgement that the mark could be a gaptooth bite mark allowed Reay’s attorney to present the bite mark theory to the jury 

without the risks created by an odontology “battle of the experts.” Under the 

circumstances, we believe Reay fails to demonstrate deficient performance by his 

trial counsel and is unable to overcome the strong presumption of competence. Nor 

does Reay demonstrate the reasonable probability of a different result at trial. 

[¶19.] At the habeas hearing, Rensch testified that he utilized a similar 

strategy when he decided not to conduct expert DNA testing on the towel. This, he 

 

4. The State focuses much of its argument upon its belief that the use of 

odontology as a method of matching an assailant’s dentition to a victim’s 

alleged bite wound has been widely discredited. However, we need not 

determine the accuracy of that assertion as a general matter to decide this 

case under the constraints of Strickland. Questions concerning the relevance 

and reliability of proffered expert testimony are better left to trial courts to 

determine in individual cases—not categorically—under our well-settled 

rules governing the admissibility of expert testimony. See State v. Huber, 

2010 S.D. 63, ¶¶ 17-37, 789 N.W.2d 283, 288-95 (applying the expert 

testimony standard set out in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 

579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)). 
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explained, allowed him to advance Reay’s defense while controlling the risk that 

DNA testing would actually be harmful to the defense: 

Before the trial the State knew that it was [Reay’s] position that 

the daughter had done it and because of that, they collected 

Haylee’s DNA and they also interviewed her about whether or 

not she killed her mother. But even though they collected her 

DNA, they never tested it against anything else . . . . So when I 

went into trial I didn’t really care about getting a DNA test to 

try to prove that it was Haylee’s [DNA] because I didn’t want to 

take the risk that it was not Haylee’s. 

[¶20.] An additional part of Rensch’s strategy involved, to some extent, the 

element of surprise. He was concerned that testing the towel, even if it established 

the presence of Haylee’s DNA, would alert the State to his argument before trial 

and allow prosecutors the chance to neutralize it by offering alternate benign 

theories explaining the DNA evidence. 

[¶21.] Beyond this, conclusive DNA testing of the towel would not have 

exonerated Reay or definitively established Haylee as the person responsible for her 

mother’s murder. The habeas court reached the same conclusion and reasoned that 

finding Haylee’s DNA on the towel “would not have had any significant impact on 

the outcome of the trial given the fact that she had access to the towel within the 

household before the murder and she could have imparted her DNA onto the towel 

from ordinary use.” Furthermore, with advanced notice of defense testing,5 the 

 

5. At oral argument, Reay’s counsel contended that Rensch’s effort to consult 

with experts could have been shielded from disclosure as work product. We 

perceive no need to address that point of criminal procedure, but we do make 

two observations that render the argument academic in this appeal. First, 

Reay has not demonstrated how merely consulting with expert witnesses 

would have made a difference at trial. Instead, Reay’s principal argument is 

premised upon the idea that the experts would have actually testified 

 (continued . . .) 
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State could have suggested any number of unremarkable scenarios to explain the 

presence of Haylee’s DNA on a household towel. 

[¶22.] On the other hand, the DNA testing presented the risk that Haylee 

could be eliminated as a contributor to the unknown DNA on the towel. This, in 

turn, would have deprived Reay of the argument that the State’s failure to test for 

her DNA was substandard police work. 

[¶23.] With regard to the tarp, Rensch testified that he did not consider using 

an expert in puncture or tool marks. For Rensch, the static state of the evidence 

suited his defense theory well because the slits in the tarp did not correspond to 

Tami’s distinct stab wounds, but the slits in Tami’s bed sheet did. Rensch 

explained: 

And in those [bed] sheets you could see corresponding marks 

that could have been . . . [a] very distinctive set of stab wounds 

coming down her chest. So . . . that’s probably where those stab 

wounds occurred and there was little blood on those sheets. 

There’s a lot more blood on the tarp. 

So what I thought was . . . the fact that those sheets had the 

small amount of blood on it . . . was consistent with the daughter 

stabbing the mother in the bed, and that the tarp was consistent 

with Brad scooping up the mother and spiriting her away in the 

tarp where she would have bled in the tarp. And also there 

wasn’t . . . a knife to compare [the slit marks] to [because Reay] 

had admitted that he’d thrown the knife in the river. 

[¶24.] The habeas court determined that the strategy was reasonable, 

concluding that even if an expert could have opined that the slits in the tarp were 

________________________ 

(. . . continued) 

favorably to his defense. Second, it seems likely the State would have been 

aware of the pretrial testing that Reay contemplates. Certainly, analyzing 

the towel for DNA and examining the tarp would have required access to the 

State’s evidence facility under the supervision of law enforcement officers. 
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caused by something other than a knife, the testimony would have “called unwanted 

attention to the tarp and potentially inflamed the jury.” The court considered this a 

perilous gambit “in light of the inability of Reay’s defense theory to explain why the 

quantity of blood on the tarp exceeded the quantity of blood in the bed where Reay’s 

daughter allegedly killed her mother.” 

[¶25.] In this regard, engaging a tool expert would not have created a 

reasonable probability of a different result. Given the large amount of blood on the 

tarp compared to the bed sheet, a battle of tool mark experts may well have 

presented the jury with expert testimony that the marks on the tarp were 

consistent with puncture marks from the hunting knife. This evidence could have 

assisted the State’s theory that Tami was stabbed initially several times while in 

bed, with most of the stab wounds coming later after Reay wrapped her in the tarp 

while she was still alive and actively fighting against her attacker. 

[¶26.] Given the plausible explanations for not employing experts, we are not 

inclined to revisit Rensch’s tactical decisions, which were reasonable to advance 

Reay’s defense theory. We also agree with the habeas court that Reay cannot 

satisfy Strickland’s prejudice requirement by showing a reasonable probability that 

the outcome would have been different if Rensch had employed experts. For his 

part, Reay acknowledges that he cannot demonstrate the probability of a different 

result because he does not know whether any of the experts he has proposed would 

have provided helpful opinions.6 Employing the three experts in the manner Reay 

 

6. Reay argues that Rensch’s decision to forego consulting with prospective 

expert witnesses breaches the standard of reasonableness so profoundly that 

 (continued . . .) 
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suggests was fraught with risk that the defense theory implicating Haylee would 

have grown weaker and the case against Reay stronger.7 

Conclusion 

 [¶27.] The habeas court did not err when it denied Reay’s habeas petition. 

Reay has not met his burden to prove his trial counsel was ineffective when it made 

the strategic decision not to employ or consult experts. We affirm. 

[¶28.] GILBERTSON, Chief Justice, and KERN and JENSEN, Justices, and 

HANSON, Circuit Court Judge, concur. 

[¶29.] HANSON, Circuit Court Judge, sitting for DEVANEY, Justice, 

disqualified. 

________________________ 

(. . . continued) 

it effectively constitutes per se ineffective assistance of counsel without a 

showing of prejudice. We disagree and choose to apply our precedent that 

requires a habeas petitioner to establish both prongs of the well-settled 

Strickland analysis. See Knecht, 2002 S.D. 21, ¶ 20, 640 N.W.2d at 500 

(“Failure to hire an expert is not, per se, error.”). 

7. Reay claims that, “[t]aken together, the failure of Rensch to hire appraise 

[sic] experts and investigate the case” constitutes ineffective assistance of 

counsel. We are unwilling to accept this cumulative error argument because 

to do so would recognize a degree of error that is greater than the sum of its 

parts. See New v. Weber, 1999 S.D. 125, ¶ 25, 600 N.W.2d 568, 577 (“Having 

found no one issue sufficient to declare [counsel’s] representation deficient or 

prejudicial, we cannot now say that the sum of any errors requires a new 

trial.”).