STURGIS l A Belle Fourche man's quest to overturn his 12-year-old conviction gained a little ground Friday when a judge ruled that information on a new witness is timely.
Circuit Judge Warren G. Johnson denied a motion from the South Dakota Attorney General's office to dismiss Oakley Engesser's latest appeal of his 2001 convictions for vehicular homicide and vehicular battery.
Johnson's ruling came at the end of a long day of testimony that saw Engesser take the stand for the first time.
Engesser testified that he does not remember the crash, but believes he was sleeping in the passenger's seat.
His convictions stemmed from a high-speed crash on Interstate 90 near the Tilford weigh station on July 30, 2000. The crash killed Dorothy Finley and injured two occupants of a minivan that Finley's red Corvette hit before it rolled. The Corvette's speed was estimated at 112 mph.
Engesser, 52, was sentenced to a total of 25 years in prison after a jury trial in 2001.
Since his conviction, Engesser has been released from prison twice while his appeals were pending. He has twice sought relief from the U.S. Circuit Court of Appeals.
Johnson granted Engesser's most recent request for a new trial this spring because of a new witness who has testified that Finley was driving the car.
When Johnson granted Engesser's petition, his only new witness was Phillip Syverson, a Rapid City man who testified in federal court that he had seen Finley driving her Corvette just before the accident.
On Friday, Assistant Attorney General Paul Swedlund grilled Engesser, his wife, Val, and a cousin, Rusty Engesser, about the timing of Syverson's discovery as a witness.
Rusty Engesser gave his cousin the information that Syverson had seen the car just before the crash.
Each one testified that Syverson's name came up during a visit to the South Dakota Penitentiary's Rapid City Minimum Unit in the spring of 2011.
Swedlund suggested that Engesser knew about Syverson long before filing his petition in 2011. If Engesser knew about Syverson several years before, he cannot use him as new witness because the information must be discovered within two years of his filing.
Johnson said it makes no sense that a man who has been "vigorously pursuing" his freedom would "sit on this information for three or four years."
The judge said it is more probable that Engesser's cousin, Rusty, had "sat" on the information, which is what Rusty Engesser said Friday.
Within the last few months, a second witness, Ramona Desala, has said she saw a woman driving the Corvette before the crash. Engesser's attorney, Mike Butler, called Desala to the stand on Friday.
Like Rusty Engesser, Swedlund also queried Desala vigorously about what she had seen.
Desala testified that she saw a woman's silhouette behind the wheel and a man in the passenger seat.
Swedlund countered Desala's testimony with a South Dakota Highway Patrol trooper skilled in accident reconstruction.
Trooper Todd Albertson provided diagrams and videos to support his belief that Desala did not have enough time to see who was driving the Corvette.
Johnson said near the close of the hearing that there is no reason for Desala to voluntarily subject herself to the court proceedings, unless she is convinced she saw a woman driving the Corvette.
Swedlund and Butler each have a week to provide Johnson with written reasons as to why he should deny or approve Engesser's claim that new evidence could prove his innocence.
Attorney General Marty Jackley said in an email Friday that the state stands behind the original verdict.
"The state's position is that the overall evidence supports the jury's determination, and the jury's determination should therefore be respected," Jackley wrote.