author: KONENKAMP, Justice SABERS, Justice

text:
    2000 SD 128
    Cirilo RODRIGUEZ, Applicant and Appellant, v. Doug WEBER, as the duly appointed Warden of the South Dakota State Penitentiary, and Robert Dooley, Warden of the Springfield State Prison, Appellee.
    No. 21264.
    Supreme Court of South Dakota.
    Considered on Briefs May 30, 2000.
    Decided Sept. 13, 2000.

      Gordon D. Swanson of Hansen, Hubbard & Swanson, Sturgis, Attorneys for applicant and appellant.
    Mark Barnett, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, Attorneys for appellees.
   KONENKAMP, Justice

[¶ 1.] Cirilo Martin Rodriguez was convicted of felony possession of marijuana and sentenced to ten years in the penitentiary after a traffic stop and search of the vehicle he was driving uncovered over ninety-four pounds of marijuana in a hidden compartment. In his application for a writ of habeas corpus he contended, among other things, that his trial attorney was ineffective. A urine sample taken after his arrest proved there was no trace of marijuana in his body, but the State failed to disclose this result, and his lawyer, who knew of the test but not the result, failed to pursue it. Other than Rodriguez, trial counsel called no witnesses in support of Rodriguez’s claim that he was an innocent dupe in a scheme to transport illegal substances. Habeas relief was denied and he now appeals on multiple grounds, including the failure to disclose the results of the urinalysis, and the denial of effective assistance of counsel. We affirm, as we conclude that there is no reasonable probability that the outcome of the trial would have been different had the errors not occurred.

Background

[¶ 2.] On February 19, 1996, Rodriguez was eastbound on 1-90 about five miles east of the Wyoming-South Dakota border. He was driving alone in a 1982 Chevrolet Blazer bearing Washington State license plates. Highway Patrol Trooper Michael Shafer stopped him for speeding. Rodriguez produced an Illinois driver’s license issued on December 5, 1995, with the name Cirilo Martin Rodriguez. The vehicle registration showed the owner as Andres Sanchez Lopez of Pasco, Washington. Shafer asked Rodriguez to come back with him and take a seat in his patrol car.

[¶ 3.] Trooper Shafer noticed a bulge in Rodriguez’s pocket. When asked what it was, Rodriguez said it was a pager. It was a leased satellite-linked sky pager. He claimed he carried the pager all the time so that his family could contact him. It was later learned that it had been rented only two days earlier, not in the name of Cirilo Rodriquez, but in the name Maria Cuevas, who Rodriquez later said was the wife of a friend. Expert testimony at trial disclosed that those involved in the drug trade often use these pagers to communicate without being traced.

[¶ 4.] Trooper Shafer asked about the person named on the vehicle registration. Rodriguez said Lopez was his brother-in-law and that he was buying the Blazer from him. Rodriguez explained that he was returning to his home in Chicago, Illinois, from a weeklong visit with his brother-in-law in Pasco. He was unable to tell Shafer in what part of Washington Pasco was located, indicating that his brother-in-law had picked him up at the airport and had taken him there. Shafer asked Rodriguez what airport he had flown into, and Rodriguez said, ‘Washington, D.C.” When told that Washington, D.C. is on the eastern seaboard, Rodriguez thought it must have been the airport in Seattle instead. Again Shafer asked about the owner of the Blazer. Rodriguez then declared that he did not know Lopez and that his brother-in-law, Fernando Lara, had “all the papers” on the vehicle. Rodriguez said, “I buy it for him!”referring to Lara.

[¶5.] Some of Rodriguez’s communication difficulties can be ascribed to his inability to converse well in English. But even repeated questions for clarification only revealed more incongruities. Shafer became suspicious that Rodriguez was a drug cornier. After telling Rodriguez that he would be free to go once a warning ticket was written, and then issuing the ticket, Shafer asked if Rodriguez minded if he asked a few more questions. Rodriguez said “Sure.” Shafer asked him if he was transporting any guns or narcotics in the vehicle. Rodriguez said “No.” Trooper Shafer told Rodriguez, “I’m gonna be honest with you, I’m suspicious.” Rodriguez responded, “Do you want to check the vehicle, go ahead.” Shafer asked several more questions to be certain Rodriguez understood he was giving permission to search the vehicle, and Rodriguez said, “Go ahead.”

[¶ 6.] During the search of the Blazer, Shafer found indications that it was being-used to transport drugs, including a roll of duct tape, a container of carpet freshener (often used to mask the pungent odor of marijuana), and signs of a hidden compartment. This compartment appeared to be accessible from underneath the floorboard carpeting. Shafer walked over to Rodriguez and advised him that “there had been some alterations in his vehicle, and asked if there was a compartment in his vehicle.” Rodriguez’s demeanor changed: he became more nervous, jittery; his voice cracked.

[¶ 7.] Shafer*, along with another trooper who had just arrived, ripped out the carpet to find a cutout in the floorboard. They discovered that the fuel tank had been modified so that part of the area ordinarily occupied by the tank had been refitted, creating a container within a container. Thus the gas tank appeared normal to an untrained eye when looking from underneath the vehicle. Trooper Shafer, however, had noticed amateur welds in the gas tank area. The officers retrieved from the hidden compartment thirty-six individually -wrapped packages, cumulatively holding just over ninety-four pounds of marijuana. The marijuana had evidently been machine-compressed into extremely hard brick-like forms. The bricks were wrapped in duct tape, and coated with oil. In this condition, the illegal substance was calculated to have a value of $100,000. And once reprocessed and packaged for individual sales, its estimated value increased to $300,000.

[¶ 8.] Rodriguez was indicted on the charge of possession of more than ten pounds of marijuana, in violation of SDCL 22-42-6. At trial, his defense was that he did not know the marijuana was in the vehicle. He was “duped,” his lawyer said, “by Fernando Lara, who left him then high and dry.” Through a translator, Rodriguez told the jury that he met Fernando Auturo Lara in a park in Ontario, California. Lara was moving to Chicago and needed someone to drive one of his two vehicles. Temporarily out of work, Rodriguez volunteered to help. He was not promised any specific pay. Lara said he would fly Rodriguez back to California and give him “something.” Lara, .his wife, and Rodriguez alternated driving the Blazer and the other vehicle. The day before they arrived in South Dakota they had spent the night in Santa Fe, New Mexico. Rodriguez testified that when Trooper Shafer stopped him, Lara and his wife passed them and just drove on. Rodriguez explained to the jury that he lied to Officer Shafer because Lara told him to, but he did not know why Lara told him to he. He assumed it was because the vehicle title had not yet been formally transferred. Despite efforts by the South Dakota DCI, Highway Patrol, and Attorney General, the true ownership of the Blazer could not be traced.

[¶ 9.] Other details in Rodriguez’s background proved irregular. He had used different dates of birth and different social security numbers. At the time he was stopped, three active driver’s licenses were shown as issued to him. One was a license from Illinois, issued December 5, 1995, showing a date of birth of April 15, 1960. Two were California licenses. One showed a date of birth of April 15, 1965. The other was under an assumed name, Miguel Alvizo Rodriguez, date of birth September 29, 1960, issued on June 29, 1992. In the past, license plates had been issued on a vehicle in New Mexico under this false name.

[¶ 10.] Rodriguez, age thirty-one at the time of trial, said that he obtained different identifications in part to evade immigration authorities because he came to this country illegally at age fourteen. Yet he was issued a “green card” (conferring resident alien status) in 1987 making his presence here legal from that time on. When asked why he got a driver’s license in 1992 under a false name, he answered, he “just had it ... never used it.... Just to have it.”

[¶ 11.] After a jury trial, he was found guilty of the charge and was sentenced to ten years in the state penitentiary. On direct appeal, his conviction was summarily affirmed. See State v. Rodriguez, 570 N.W.2d 246 (S.D.1997). Rodriguez then filed an application for a writ of habeas corpus, listing ten separate grounds for relief. The circuit court denied the application. Rodriguez now appeals that denial, asserting the following issues: (1) Did the State’s failure to disclose a negative urinalysis result violate Rodriguez’s right to due process of law? (2) Did the State’s use of a peremptory challenge to remove a juror of Mexican descent violate Rodriguez’s right to a trial by a fair and impartial jury? (3) Was Rodriguez denied his constitutional right to effective assistance of counsel?

Analysis and Decision

[¶ 12.] Habeas corpus is a collateral attack on a final judgment, and therefore our scope of review is limited. Lodermeier v. Class, 1996 SD 134, ¶ 12, 555 N.W.2d 618, 621. A habeas applicant bears the initial burden to establish a col-orable claim for relief. Jenner v. Dooley, 1999 SD 20, ¶ 11, 590 N.W.2d 463, 468. Accordingly, the State has only the burden of meeting the petitioner’s evidence. Davi v. Class, 2000 SD 30, ¶ 26, 609 N.W.2d 107, 114. The habeas court’s factual findings are reviewed under the clearly erroneous standard, while legal conclusions are reviewed de novo. Meinders v. Weber, 2000 SD 2, ¶ 5, 604 N.W.2d 248, 252 (citations omitted).

1. Failure to Disclose Negative Urinalysis

[¶ 13.] Sometime after his arrest, Rodriguez provided a urine specimen for analysis. Although trial counsel had filed a motion for discovery of any scientific test results, the urinalysis (UA) result was not provided. Rodriguez argues that his rights under both the United States and the South Dakota constitutions were violated by the State’s failure to disclose his negative UA. As the result was exculpatory evidence, he contends, the State’s suppression of it violated due process. To Rodriguez the result proved that he was not using drugs. The habeas court concluded that the test result was neither exculpatory nor material because proof that Rodriguez did not use drugs had no tendency to disprove knowing possession of such a large amount of marijuana.

[¶ 14.] Due process under the Fourteenth Amendment of the United States Constitution, and Article VI, § 2 of the South Dakota Constitution, requires the State to reveal exculpatory evidence to the defense. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963); State v. Hanson, 278 N.W.2d 198, 200 (S.D.1979). We use a four-part test to decide whether a due process violation occurred when the State fails to disclose evidence. Black v. Class, 1997 SD 22, ¶ 16, 560 N.W.2d 544, 548 (citations omitted). If all four of the following elements are established, then the court must grant a new trial:

1. Was the defense unaware of the evidence?
2. Is the evidence favorable to the defense?
3. Is the evidence material to the defense?
4. Did the defense make a request for the evidence?

Id. (citations omitted).

[¶ 15.] Under, the first question, Rodriguez asserts that defense counsel was unaware of the negative result of the UA during the criminal proceedings. However, Rodriguez knew that he had given a urine sample and made his counsel aware of that fact. Testimony in the habe-as hearing verified that counsel was aware at the time of trial that a UA had been performed. “If a defendant knows or should know of the allegedly exculpatory evidence, it cannot be said that the evidence has been suppressed by the prosecution.” State v. Wilde, 306 N.W.2d 645, 647 (S.D.1981)(citing United States v. Brown, 628 F.2d 471, 473 (5thCir.l980)). The Brady rule requiring disclosure does not abrogate the responsibility of the defense to discover and develop evidence. Id. Rodriguez had notice of the essential facts that would have permitted him to take advantage of the allegedly exculpatory evidence. See id. The first element has not been met, and as all four inquiries must be answered affirmatively, this disposes of the issue. Nonetheless, we examine the remaining questions.

[¶ 16.] Addressing the second and third questions, Rodriguez argues that the results from the test were both favorable and material to his defense. In his view, people involved in drug trafficking are more likely to use illegal drugs, and the negative result would have been useful to distance himself from the marijuana found in the Blazer, especially as his defense was lack of knowledge. He points to our decision in State v. Buchholz, 1999 SD 110, 598 N.W.2d 899, where we discussed the seizure of the defendant’s urine for the purpose of having it tested for the presence of drugs after methamphetamine and drug paraphernalia were found in the defendant’s vehicle. There, although the question before us was the constitutionality of the seizure, we explained that Buchholz’s positive UA tended to show a knowing possession of drugs. Id. ¶ 24, 598 N.W.2d at 904.

[¶ 17.] Buchholz can be distinguished. In that case, the drugs and paraphernalia were found in a fanny pack in the defendant’s vehicle. Id. ¶ 4, 598 N.W.2d at 901. The nature of the items found suggested that they belonged to a user, as opposed to simply a transporter. In that situation, the presence of drugs in the defendant’s body would tend to show that the items were knowingly in her possession. We discussed the use of a positive UA as well in State v. Hanson, 1999 SD 9, 588 N.W.2d 885. There, evidence of a positive UA for drug consumption was crucial to establishing the defendant’s knowing possession of marijuana as distinct from the two other occupants of the vehicle where the drugs were found. 1999 SD 9, ¶ 40, 588 N.W.2d at 894.

[¶ 18.] Here, in contrast, Rodriguez was transporting ninety-four pounds of marijuana. Trooper Shafer did not report that he detected the odor of burnt marijuana in the Blazer. No marijuana and no drug paraphernalia were found in the passenger area of the vehicle, nor were there any indications that Rodriguez was under the influence of any substance. More important, the amount and condition of the marijuana found in the hidden compartment suggested that it was not. ready for immediate personal use. It was compressed into hard bricks and securely wrapped, so it obviously was intended for further processing before it could be used.

[¶ 19.] “[E]videnee is .favorable where it creates a reasonable doubt that did not otherwise exist ... [and] ‘material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Black, 1997 SD 22, ¶ 18, 560 N.W.2d at 548 (quoting State v. Fowler, 1996 SD 79, ¶ 22, 552 N.W.2d 391, 395)(other citations omitted) (alterations in original). We conclude that the negative test result would not have created a reasonable doubt on knowledge of the presence of marijuana in the Blazer. One need not be a drug user to be a drug courier.

[¶ 20.] We think it highly unlikely that the result of the trial would have been different had the UA result been disclosed to the jury. The defense of lack of knowledge relied in great part on whether the jury found credible Rodriguez’s explanation for how he came to be driving a vehicle with almost one hundred pounds of marijuana. His credibility came under considerable attack with evidence, for example, that he lied repeatedly when stopped for speeding, and in his words, lied only because someone told him to; that he had two driver’s licenses issued in his name and one in an assumed name; that he obtained a license in an assumed name even when by his own rationale it was no longer necessary to do so; and that the pager he said he always carried had been rented only two days earlier. After so much evidence of dishonesty, proof that he had no illicit substances in his body at the time of his arrest creates no reasonable probability of a different result. Accordingly, the second and third prongs of the Brady test are not met. While the defense did make a request for the evidence by its motion for discovery, meeting the fourth element, because the other three questions cannot be answered affirmatively, there was no Brady violation. We affirm the habeas court’s decision on this issue.

2. Improper Use of Peremptory Challenge

[¶ 21.] Rodriguez next asserts that his right to a fair and impartial jury was violated when the State used one of its peremptory challenges to strike the only prospective juror of Mexican descent. Rodriguez is also Mexican. The State counters that Rodriguez did not meet the required initial burden of proving the existence of purposeful discrimination. We examine the matter under the standard set in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and followed by this Court in State v. Rhines, 1996 SD 55, 548 N.W.2d 415. To prevail on a claim under Batson, a prima facie case of purposeful discrimination in the jury selection process must be proved.

[¶ 22.] In Honomichl v. Leapley, 498 N.W.2d 636 (S.D.1993) we explained that to establish a prima facie case, it must be shown that (1) the defendant is a member of a cognizable racial group; (2) the prosecution removed members of that racial group; and (3) circumstances raise the inference that the challenge was motivated by race. 498 N.W.2d at 638-39. The second element was modified by the United States Supreme Court in Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). There, the Court held that the excluded juror and the defendant need not be of the same race for the defendant to object to race-based exclusion. Id. at 409, 111 S.Ct. at 1369, 113 L.Ed.2d at 424. “The race of the defendant and the race of jurors peremptorily challenged are now circumstances for the trial court to consider in determining whether defendant raised an inference that State used its peremptory challenges for race-based reasons.” Honomichl, 498 N.W.2d at 639 (citations omitted). Once a defendant establishes a prima facie case of purposeful discrimination, the burden shifts to the State to present a race-neutral explanation for the peremptory challenge.

[¶ 23.] Here, Rodriguez did not object at .the time the juror’s name was stricken. The question whether the peremptory strike was purposefully discriminatory was also not raised in the direct appeal. Batson, however, requires a timely objection. See Ford v. Georgia, 498 U.S. 411, 422, 111 S.Ct. 850, 857, 112 L.Ed.2d 935, 948 (1991); Ruff v. Armontrout, 77 F.3d 265, 267 (8th Cir.1996); Clark v. Newport News Shipbuilding and Dry Dock Co., 937 F.2d 934, 939 (4th Cir. 1991). “Unless the facts supporting the Batson claim are articulated at trial, ‘they are lost to the record and appellate review becomes impossible.’ ” Williams v. Calderon, 48 F.Supp.2d 979, 997 (C.D. Cal. 1998) (citations omitted).

[¶ 24.] This matter may nonetheless be reviewed for plain error. SDCL 23A-44-15 (Rule 52(b)); see United States v. Contreras-Contreras, 83 F.3d 1103 (9th Cir.1996). Under an examination for plain error, “the defendant bears the burden of showing the error was prejudicial.” State v. Nelson, 1998 SD 124, ¶ 8, 587 N.W.2d 439, 443 (citation omitted). We explained in Nelson what must be shown:

Plain error requires (1) error, (2) that is plain, (3) affecting substantial rights; and only then may we exercise our discretion to notice the error if (4) it “seriously affectfe] the fairness, integrity, or public reputation of judicial proceedings.” We invoke our discretion under the plain error rule cautiously and only in “exceptional circumstances.” Such circumstances may include cases in which “ ‘a miscarriage of justice would otherwise result,’ ” i.e., a defendant is actually innocent.

Id. ¶ 8, 587 N.W.2d at 443 (alteration in original)(internal citations omitted).

[¶ 25.] Because this is a habeas proceeding, Rodriguez must make a greater showing to establish plain error than if the matter had been raised on direct appeal. Williams, 48 F.Supp.2d at 997 (citing Engle v. Isaac, 456 U.S. 107, 134-35, 102 S.Ct. 1558, 71 L.Ed.2d 783, 805 (1982))(other citations omitted). Rodriguez contends -that the.prosecutor’s comments at trial suggest that he had a discriminatory state of mind. Rodriguez points to several occasions when the prosecutor asked potential jurors whether they spoke Spanish and whether those who reside in this country should be fluent in the English language. Rodriguez insists these questions show the prosecutor’s discriminative intent.

[¶ 26.] A closer look at the voir dire shows that the questions were asked chiefly because Rodriguez used Spanish as his primary language, which required the use of an interpreter .during the trial. We conclude that Rodriguez has not established that the “fairness, integrity or public reputation” of the proceedings was seriously affected, and that unless this mistake is corrected, “a miscarriage of justice” would occur. See Nelson, 1998 SD 124, ¶ 7, 587 N.W.2d at 443. Moreover, Rodriguez has not shown that had the excused individual remained on the jury the outcome would have been different. Because Rodriguez has failed to meet his burden of showing prejudicial error, we affirm on this issue.

3. Ineffective Assistance of Counsel

[¶ 27.] Finally, Rodriguez argues that his constitutional right to the effective assistance of counsel was violated in multiple ways by both his trial and appellate attorneys. He was represented by a court appointed attorney in both the trial and the direct appeal. Thomas E. Adams was his trial counsel. After the sentencing, Rodriguez requested a change of attorney, and Thomas T. Zollinger was appointed to handle the appeal.

[¶ 28.] Rodriguez contends his trial attorney fell below the required standard of competence in several respects.

Whether a defendant has received ineffective assistance of counsel is essentially a mixed question of law and fact. In the absence of a clearly erroneous determination by the circuit court, we must defer to its findings on such primary facts regarding what defense counsel did or did not do in preparation for trial and in his presentation of the defense at trial. This court, however, may substitute its own judgment for that of the circuit court as to whether defense counsel’s actions or inactions constituted ineffective assistance of counsel.

Meinders, 2000 SD 2, ¶ 42, 604 N.W.2d at 264 (quoting Sund v. Weber, 1998 SD 123, ¶ 14, 588 N.W.2d 223, 225)(other citations omitted). The petitioner has the burden of overcoming the strong presumption that counsel’s performance was competent. Sprik v. Class, 1997 SD 134, ¶ 23, 572 N.W.2d 824, 829 (citations omitted). We will not second-guess the tactical decisions of trial counsel, but we “should not hesitate to reverse a conviction if the record reveals that a defendant was not afforded effective assistance of counsel.” New v. Weber, 1999 SD 125, ¶ 7, 600 N.W.2d 568, 572 (quoting Jones v. State, 353 N.W.2d 781, 784 (S.D.1984))(eiting Grooms v. State, 320 N.W.2d 149 (S.D.1982)).

[¶ 29.] We have adopted the test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) for evaluating claims of ineffective assistance of counsel:

First, [the applicant] must prove that his trial counsel’s performance was deficient. He must show that trial counsel made errors “so serious that counsel was not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment.” Secondly, he must show that the deficient performance “prejudiced the defense” by showing that “counsel’s errors were so serious as to deprive the defendant of a fair trial[.]” The reasonableness of trial counsel’s action is evaluated from his perspective at the time the alleged error occurred.

Meinders, 2000 SD 2, ¶ 42, 604 N.W.2d at 264 (quoting Sund, 1998 SD 123, ¶ 13, 588 N.W.2d at 225)(alterations in original). Under the first prong of this test, where we employ an objective standard of reasonableness, counsel’s errors must be “so serious that [he or she] was not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment.” Garritsen v. Leapley, 541 N.W.2d 89, 93 (S.D.1995)(quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693). In the second prong of the test, we examine whether the result of the proceeding was fundamentally unfair or unreliable, not simply whether the outcome would have been different. Rhines v. Weber, 2000 SD 19, ¶ 15, 608 N.W.2d 303, 307 (citing Siers v. Class, 1998 SD 77, ¶ 12, 581 N.W.2d 491, 495)(other citations omitted). However, we are not required to determine the sufficiency of counsel’s performance before we review whether there was prejudice from the “alleged deficiencies.” Strickland, 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.” Id.; New, 1999 SD 125, ¶ 7, 600 N.W.2d at 572. “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Strickland, 466 U.S. at 700, 104 S.Ct. at 2071, 80 L.Ed.2d at 702. The habeas court ruled that Rodriguez failed to establish that Adams’ performance was deficient and that any deficiencies in counsel’s representation did not prejudice him.

a.Failure to object to the removal of a juror

[¶30.] Rodriguez argues that the failure of attorney Adams to object to the State’s exclusion of the only juror of Mexican descent on the panel supports his claim of ineffective assistance of counsel. Under the Batson standard, he must point to facts and circumstances that show that the potential juror was excluded because of race. “While it is true that striking a [minority] venireperson for racial reasons is always violative of the Constitution, it is not true that • all peremptory strikes of [minority] venirepersons aré for racial reasons.” Honomichl, 498 N.W.2d at 639 (quoting United States v. Lewis, 892 F.2d 735, 736 (8th Cir.1989)). Rodriguez must do more than merely point out that the prosecution excluded a venireperson of Mexican descent with a peremptory challenge. United States v. Cooper, 19 F.3d 1154, 1159 (7th Cir.1994). He “must point to facts and circumstances raising an inference that the potential juror ... [was] excluded because of race. Otherwise, every peremptory challenge used to exclude any cognizable minority from a petit jury would require a Batson-type hearing.” Id. (alterations in original). As stated earlier, Rodriguez does not point to facts or circumstances during voir dire that show that the use of the -peremptory challenge was race based. As such, counsel’s failure to object' was not an instance of professional deficiency. Furthermore, Rodriguez has not shown that the failure to object to the removal of this juror prejudiced him, that the outcome of the trial would have been different, or that it was fundamentally unfair or unreliable. His claim of ineffective assistance of counsel on this basis fails.

b. Failure to obtain results of the urinalysis

[¶ 31.] Rodriguez next argues that Adams’ failure to obtain the exculpatory UA result was deficient. Attorney Adams testified at the habeas hearing that if he had had the result he “might have used it,” but that he felt that it was not “real relevant.” As we explained in Part 1, Rodriguez has not shown that the UA result was particularly material, or that it would have served to create a reasonable probability of a different result. Even if Adams was deficient in this regard, therefore, Rodriguez has not shown that he was prejudiced by counsel’s performance. Rodriguez’s credibility was so, thoroughly impugned that showing he had a clean UA would not likely have made a difference in the outcome.

c. Failure to remove jurors

[¶ 32.] Rodriguez asserts that Adams should have removed three jurors with peremptory challenges, and that he failed to offer any reason during the habe-as hearing for leaving them on the jury panel. He points to jurors Wayne Reynolds, Jennifer Bradley, and David Jewitt.

[¶ 33.] Juror Reynolds said during voir dire that he was bothered that Rodriguez lived in the United States yet used Spanish as his primary language. Reynolds was “firmly convinced” that a person who becomes a citizen should learn English. Juror Bradley was left on' -the jury even though her husband had just been hired as a reserve police officer in Spearfish. Juror Jewitt was an administrator of the Spearfish School District, and stated during voir dire that the prosecutor had worked with the Spearfish school on drug issues.

[¶ 34.] All three of these jurors, however, assured Adams that they could put these feelings and experiences aside and decide the case on the evidence presented. Reynolds answered “absolutely” when asked if he could “see past” his feelings on the use of the English language “and still judge this case on the facts.” Bradley responded “no” when Adams asked whether her decision would be influenced by her husband’s occupation, and answered affirmatively when asked if she could weigh the facts independent of her husband’s job. Jewitt told Adams that his contact with the prosecutor was limited to asking him for his input on school policies. As did the other jurors in question, he indicated that he could decide this case based on the evidence presented, and that his contacts with the prosecutor would not interfere with his ability to hear the case.

[¶ 35.] Decisions on how to exercise peremptory challenges involve tactical choices, and claims of ineffective assistance of counsel are not established “by merely complaining about counsel’s failure to challenge certain jurors or his failure to make proper objections.” Tsipouras v. State, 567 N.W.2d 271, 276 (Minn.Ct.App.1997), cert. denied, 522 U.S. 1114, 118 S.Ct. 1049, 140 L.Ed.2d 113 (1998). Rodriguez has failed to sustain his burden of showing that Adams’ performance was deficient, and therefore we need not decide whether he was prejudiced by the alleged failure. See Stead v. United States; 67 F.Supp.2d 1064, 1080 (D.S.D.1999)(citing Strickland, 466 U.S. at 697, 700, 104 S.Ct. at 2069, 2071, 80 L.Ed.2d at 699-700, 702; Stokes v. Armontrout, 851 F.2d 1085, 1092 (8thCir.l988)).

d. Failure to investigate or call potential witnesses

[¶ 36.] Rodriguez next contends that Adams’ performance fell below the Strickland standard when he failed to investigate or consider calling potential witnesses that could have confirmed the existence of Fernando Lara. Rodriguez was the only defense witness called at his criminal trial. He did not provide his counsel with information to help locate Lara, other than a business card from a restaurant in Chicago where he said he was supposed to meet Lara if they became separated during their cross-country trip. Yet, Rodriguez admitted that the only thing he knew about Lara was his name and that Lara was moving from California. The card had nothing noted on it about Lara; it was simply a printed restaurant business card. Furthermore, when the Lawrence County Sheriffs office contacted California law enforcement to get information on Lara, the California authorities could not find the name in their computer records.

[¶ 37.] Rodriguez said that when Adams asked him if he had any witnesses, he thought it was a “ridiculous question” because he felt his attorney was the one who was supposed to find witnesses. At the habeas hearing Adams testified, “We didn’t ever make an attempt to try and find another witness, you know, to get one here, no.” According to Rodriguez, his wife, his sister, and the owner of the Blazer could have been called as witnesses on his behalf. Rodriguez believed his sister could have testified that she had seen Lara pick him up at his parents’ home. He was vague about what he felt the owner of the Blazer could have testified to, stating that “[w]ell, at least he could provide more information than I - than I do to try to locate the guy that I believe is this Fernando Arturo Lara, you know, because I believe he know more than I do about him, you know.” None of these witnesses were called to testify at the habeas hearing, so we have only Rodriquez’s speculation about what they would have said.

[¶ 38.] “Failure to call a witness will not automatically produce ineffective assistance of counsel.” Lodermeier, 1996 SD 134, ¶ 20, 555 N.W.2d at 625 (citing Garritsen, 541 N.W.2d at 94). There must be a showing of prejudice that deprived the accused of a fair trial. Sund, 1998 SD 123, ¶ 21, 588 N.W.2d at 226 (citations omitted). Rodriguez must show how these witnesses would have changed the outcome of his trial. Fast Horse v. Weber, 1999 SD 97, ¶ 16, 598 N.W.2d 539, 544. Unlike the showing of prejudice in Sund, where potential witnesses testified at the petitioner’s habeas hearing and thereby produced evidence of reasonable doubt on whether Sund had the requisite criminal intent, here only Rodriguez and attorney Adams testified at the habeas hearing. We find that Rodriguez has not met his burden of showing that counsel’s errors were sufficiently serious and prejudicial to deprive him of a fair trial.

[¶ 39.] Affirmed.

[¶ 40.] MILLER, Chief Justice, and AMUNDSON and GILBERTSON, Justices, concur.

[¶ 41.] SABERS, Justice, concurs in result.

SABERS, Justice

(concurring in result).

[¶ 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.

[¶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.

[¶ 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.

[¶ 45.] Therefore, I concur in result only.

       In addition to the grounds discussed in Part 3, Rodriguez also contends that (1) counsel was ineffective in not bringing to the attention of the court that law enforcement officers questioned him about the ownership of the Blazer without notifying his attorney. He does not direct us to anything inculpatory gained during the questioning, however. Nor does he assert that anything obtained at this questioning was introduced at trial. Rodriguez has not established any prejudicial error. We also find the following arguments unmeritorious because either insufficient evidence was offered at the habeas hearing to support them or there was no prejudice shown: (2) Trial counsel was ineffective in failing to object to leaving the ninety-four pounds of marijuana in the courtroom during the trial. All of the marijuana had been admitted into evidence, however, and Rodriguez does not argue that it was erroneously admitted. (3) Trial counsel failed to object to Rodriguez not being released on a surety bond because of false information about an INS hold. A formal INS detainer was not put into place until approximately seven months after his arraignment. (4) Trial counsel was ineffective in failing to explore and preserve the issue of proportionality of sentence. (5) Appellate counsel was ineffective in failing to communicate with his client about possible issues that could be raised on appeal. (7) The cumulative effect of all counsel errors denied him effective assistance.


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    2000 SD 127
    STATE of South Dakota, Plaintiff and Appellee, v. Norval M. SORENSON, Defendant and Appellant.
    No. 21186.
    Supreme Court of South Dakota.
    Considered on Briefs May 30, 2000.
    Decided Sept. 13, 2000.

      Mark Barnett, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, for plaintiff and appellee.
    Ted W. Hinesley, Edgemont, for defendant and appellant.
   PER CURIAM

[¶ 1.] Sorenson appeals from a judgment of conviction of simple assault, third offense, claiming that the trial court abused its discretion when it denied his motion to suppress based on violation of a discovery order and that it erred as a matter of law when it refused him credit on his sentence for time he spent at the Human Services Center undergoing psychiatric evaluation. We affirm.

FACTS AND PROCEDURE

[IT 2.] Sorenson assaulted Steve Gibson in Sorenson’s apartment after the two men had been drinking together. Sorenson was charged with simple assault, third offense. Prior to trial, his attorney filed a motion for discovery of the identity of witnesses to the crime and of all relevant facts, including the identity of witnesses who provided exculpatory information to the State. The motion was granted.

[¶3.] During noon recess of the trial, Sorensen’s attorney observed Robb Charles, a taxi cab driver, outside the courtroom. Charles was later called as a rebuttal witness by the State and testified to giving Sorensen a ride in his taxi on the day of the assault. Sorensen objected on the grounds that Charles’ identity as a witness had not been made known prior to trial during discovery. The prosecutor informed the court that his identity and testimony only became known to the State around 11:00 a.m. the morning of trial, approximately three hours before he was called to testify on rebuttal. The objection was overruled and Sorenson was subsequently found guilty.

[¶ 4.] At the sentencing hearing, it was established that Sorenson had been incarcerated 203 days, with 25 of those days spent undergoing psychiatric evaluation at the Human Services Center (HSC). The trial court sentenced him to two years in the state penitentiary and gave him credit for 178 days served, denying his request for credit for the days spent at HSC. Sorenson appeals.

ANALYSIS AND DECISION

[¶ 5.] 1. Whether the trial court abused its discretion in denying Sorenson’s motion to suppress Charles’ testimony based on State’s violation of the discovery order.

[¶ 6.] SDCL 23A-13-17 sets forth the remedies for breach of a discovery obligation. It provides in pertinent part:

If, at any time during the course of a proceeding, it is brought to the attention of a court that a party has failed to comply -with an applicable discovery provision, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances.

“Although a trial court’s order for the production of evidence must be expeditiously carried out and obeyed, not every failure to produce evidence as ordered is prejudicial error.” State v. Oster, 495 N.W.2d 305, 309 (S.D.1993), overruled on other grounds by State v. DeNoyer, 541 N.W.2d 725 (S.D.1995); State v. McKee, 314 N.W.2d 866 (S.D.1982). The trial court’s choice of remedy or failure to grant a particular remedy is reviewed under an abuse of discretion standard. State v. Hagan, 1999 SD 119, ¶ 19, 600 N.W.2d 561, 566. Evidentiary rulings are presumed correct and will not be reversed unless there is a clear abuse of discretion. Oster, 495 N.W.2d at 309.

[¶ 7.] Sorenson is presumed to have been aware of this evidence and potential witness prior to trial. After assaulting Gibson, and fearing for Gibson’s life, Sor-enson walked from his apartment to a local convenience store where he called an ambulance for Gibson and a taxi for himself. Sorenson asked Charles to drive through the alley near his apartment with the taxi’s lights off, wait while Sorenson crawled in his apartment window to retrieve a few items, and then drive him and another person to a local bar. En route, Charles overheard Sorenson tell his companion that he “had knocked the shit out of’ another person in his apartment.

[¶ 8.] While authorities later looked for Sorenson in the bar, Sorenson called Charles to come back and give him and his friend a ride from the bar. Charles arrived but Sorenson and his friend did not come out. While Charles was inside the bar looking for him, Sorenson slid into the backseat of Charles’ taxi. Police found him lying on the backseat and he admitted he was hiding from them. He asked police if the victim in his apartment was dead. When told he was badly beaten, Sorenson replied, “Darn right. I am a fourth generation special forces” and referred to himself as a “killing machine.” At trial he explained he said these things in a joking manner to keep the “mood light” and did not expect to be arrested for assault.

[¶ 9.] Discovery statutes exist to eliminate trial by ambush. Oster, 495 N.W.2d at 309. However, Sorenson cannot seriously claim, with this type of extended cab service, that he was unaware of Charles as potentially having information relevant to the crime. Sorenson testified in his own defense regarding the fight and to calling a taxi and being found by the police hiding in the taxi’s backseat. He was provided the opportunity to cross-examine Charles.

[¶ 10.] We will not reverse a ruling reviewed under an abuse of discretion standard absent a showing of prejudice. State v. Daniel, 2000 SD 18, ¶ 13, 606 N.W.2d 532, 535. Sorenson must show affirmatively that the State’s failure to produce Charles’ name as a witness prejudiced the possibility of a fair trial. He has not. The trial court did not abuse its discretion in denying Sorenson’s motion to suppress this evidence.

[¶ 11.] 2. Whether the trial court’s refusal to credit Sorenson’s sentence with 25 days spent at the Human Services Center was a mistake of law.

[¶ 12.] Sorenson originally pled not guilty. Less than a month later, he filed a successful motion for a psychiatric evaluation. The trial court ordered that he be evaluated, at public expense, at the Human Services Center to determine his mental competency at the time of the alleged assault and his ability to assist in his defense at trial. Transportation to and from the facility was provided by the sheriffs office at public expense. Sorenson spent 25 days at HSC undergoing this evaluation. He was successful in changing his plea from not guilty to not guilty by reason of insanity. His motion for bifurcating the guilt/innocence phase and the sanity phase of his trial was granted.

[¶ 13.] Sorenson was found guilty by a jury of simple assault, third offense. His sanity trial was held before Judge Kern who determined that the evidence failed to support either a verdict of not guilty or not guilty by reason of insanity. The maximum sentence that could have been imposed was two years and a $2,000 fine. SDCL 22-18-1, 22-6-1(8). The trial court sentenced Sorenson to two years imprisonment and ordered him to pay court costs, attorney’s fees, and restitution. Sorenson was credited for time spent in county jail, but the court refused to award credit for the 25 days he was undergoing psychiatric evaluation at HSC. Sorenson claims the trial court erred in not crediting him for this time.

[¶ 14.] Unless there is some constitutional or statutory limitation, sentencing power is discretionary with the trial judge. State v. Anderson, 1996 SD 46, ¶ 30, 546 N.W.2d 395, 402. There is no statutory right in this state to credit for time served while awaiting trial or sentencing and, in the absence of a statute to the contrary, the traditional rule is to deny such credit. See Annotation, Right to Credit for Time Spent in Custody Prior to Trial or Sentence, 77 A.L.R.3d 182, 190 (1997 & Supp. 1999). The rationale is that “the confinement simply does not relate in any way to the subsequent punishment imposed.” Id. at 188.

[¶ 15.] However, where incarceration results from a defendant’s financial inability and failure to post bond, the traditional rule denying credit for presen-tence confinement does not apply. “‘The Fourteenth Amendment equal protection clause requires that credit be given for all presentence custody which results from indigency.’” State v. Green, 524 N.W.2d 613, 614 (S.D.1994) (quoting Patino v. State, 331 N.W.2d 837, 838 (S.D.1983)); State v. Rederth, 376 N.W.2d 579 (S.D.1985); State v. Graycek, 335 N.W.2d 572 (S.D.1983); State v. Cody, 323 N.W.2d 863 (S.D.1982). “The appointment of counsel is sufficient to establish a defendant as indigent prior to sentencing, and such indi-gency dates from the time the court approves an application for court-appointed counsel. In addition, the inability of defendant to post bail while awaiting trial is also an indication of presentence indigen-cy.” Green, 524 N.W.2d at 614 (internal citations omitted).

[¶ 16.] Several jurisdictions have addressed the issue of credit for presentence custody in locations other than jail. By statute, Iowa grants credit for time spent undergoing psychiatric evaluation during presentence custody where the defendant fails to furnish bail or is charged with a nonbailable offense. State v. Capper, 539 N.W.2d 361 (Iowa 1995) (remanding to trial court to modify sentence to include time spent by defendant undergoing mental competency examination). Also by statute, Wisconsin allows credit for presen-tence custody where the defendant is in “constructive custody” subject to court order while “temporarily outside the institution whether1 for the purpose of ... medical care.” State v. Sevelin, 204 Wis.2d 127, 554 N.W.2d 521 (1996) (recognizing alcoholism as a disease and remanding to trial court to credit defendant for 82 days spent at inpatient substance abuse treatment centers prior to his conviction). Sevelin noted that a defendant would not receive credit if released on bond before leaving for the treatment facility. Id. at 524, n.6.

[¶ 17.] As previously noted, South Dakota has no statute regarding credit for time spent prior to sentencing, whether that time is spent in jail or another location. However, it follows from application of the rule set forth in Green, based on equal protection rights under the Fourteenth Amendment, that a defendant must be credited for time spent in a hospital for psychiatric evaluation while awaiting trial or sentencing if he remained in state custody during that time and his confinement was attributable to his indigency status. But for the hospitalization, such a defendant would still be incarcerated due to his financial inability to post bail. SDCL 23A-46-1, relating to the mental examination of criminal defendants, provides in pertinent part that “the court may commit the person to be examined for a reasonable period to the custody of a suitable facility.” (emphasis added). Form 13 in the Appendix of Forms following SDCL ch. 23A-46 indicates the defendant remains under state custody at all times pertinent to the evaluation, including transport time to and from the facility.

[¶ 18.] A defendant who is not indigent does not fall under the rule set forth in Green and need not be credited for time spent undergoing psychiatric evaluation, whether incarcerated or released on bail during that time. This is in keeping with the traditional rule that, absent a contrary statutory rule, a defendant does not have a right to credit for time spent in custody prior to trial or sentencing. In South Dakota, there is no contrary statutory rule and the sentencing court enjoys broad discretion in fashioning an appropriate sentence.

[¶ 19.] A defendant’s indigency status at the time of transfer for a court-ordered mental evaluation is a question of fact to be determined by the trial court. This record shows that on January 15, 1999, Sorenson’s application for appointment of counsel due to indigency was approved and counsel duly appointed. Bond was set at $20,000. On February 4, 1999, Sorenson was able to post $2,000 for his release on bail prior to trial. In Green, this Court noted the inability to post bail was an indication of indigency. 524 N.W.2d at 614. While free on bail, Soren-son failed to timely appear at a February 12 motion hearing. His bond was forfeited on that date and he was returned to jail.

[¶ 20.] On February 19, Sorenson filed a motion for a psychiatric evaluation at HSC. One week later, the court granted his motion. The evaluation occurred after Sorenson had been returned to jail and his bond revoked for failure to timely appear at the motion hearing. On June 17, Soren-son filed a motion for reduction of his bond amount to $250. There is no record the court took any action on this motion.

[¶ 21.] Notwithstanding the question of Sorenson’s indigency status and the issue of equal protection, there is another factor affecting his claim that the court erred in failing to award credit for his time spent at HSC — whether Sorenson was eligible for release following revocation of his bond. SDCL 23A-43-21 provides:

Upon a showing that there has been a material breach of a condition of release without good cause, the court shall declare a forfeiture of the bond, if any,, and shall enter an order revoking the conditions of release. If the defendant is not in custody, the court shall direct the clerk to issue a warrant for the defendant’s arrest. The defendant shall remain in custody until discharged by due course of law.

(emphasis added).

[¶ 22.] In Smith v. State, 988 P.2d 39, 40 (Wyo.1999), the Wyoming Supreme Court acknowledged the rule expressed in Green and the equal protection provided an indigent defendant in awarding credit for pre-sentence custody. However, the court held that “[a] defendant is not ... entitled to credit for the time that he spent in custody when his confinement would have continued despite his ability to post bond.” Id. (citations omitted). Smith was not awarded credit on his sentence for time spent in presentence custody after his bond had been revoked and he was returned to jail. He was only credited for the 20 days he spent in jail from his initial arrest until he was released on bond. He was free on bond for six weeks until he violated one of the conditions of his release and was arrested. The time Smith spent in jail following this arrest and prior to his sentencing was not credited. Id.

[¶ 23.] Similar facts exist here. Soren-son was released on bail but returned to jail one week later when he failed to appear on time at a motion hearing. His bond was revoked at that time. Pursuant to SDCL 23A-43-21, he was not eligible for release after February 12, whether or not he had the financial ability to post bail. This moots the question of credit for time spent at HSC after this date as his confinement was not attributable to his financial ability to post bond. The sentencing court, in its discretion, awarded Sorenson credit for all of the time he was in presen-tence custody, excluding only the 25 days of evaluation at HSC.

[¶ 24.] As sentencing courts in this state enjoy broad discretion within statutory and constitutional limitations in fashioning appropriate sentences, Anderson, supra, Sorenson’s equal protection rights were not impinged when he was confined following revocation of his bond. We find no mistake of law and affirm.

[¶ 25.] MILLER, Chief Justice, and SABERS, AMUNDSON, KONENKAMP and GILBERTSON, Justices, participating.

      . Although Charles testified he was interviewed by police the day of the assault, no written report of his statement was found to exist.

      . The rule applies in all cases involving sentences less than life. Green, supra ; State v. Hill, 255 Neb. 173, 583 N.W.2d 20 (1998).

      . The record shows Sorenson called the clerk’s office fifteen minutes prior to commencement of the hearing to indicate he would be late. He arrived at the courthouse thirty-five minutes after his hearing began. His bond was immediately forfeited and he submitted himself to the custody of the sheriff. He was later successful in obtaining an order to set aside enforcement of the forfeiture and have the bond revoked instead.

      . Other jurisdictions follow this same rule. See State v. Williams, 59 Wash.App. 379, 796 P.2d 1301 (1990) (no equal protection concerns arise where presentence confinement was not solely on robbery charge but also because parole was suspended as a result of defendant's arrest); People v. Davis, 187 Cal.App.3d 1250, 232 Cal.Rptr. 428 (1986) (no equal protection violation for denial of pre-sentence credit where defendant was awaiting sentence on possession of methamphetamine charge and had an outstanding no-bail bench warrant for failure to appear for sentencing in a prior case); State v. San Miguel, 132 Ariz. 57, 643 P.2d 1027 (1982) (defendant entitled to credit for time spent in presentence confinement where he was unable to make bond, but not entitled to credit for time spent not related to his indigency where he was being held without bond).


author: SEVERSON, Circuit Judge

text:
    2000 SD 130
    Delores M. GORDON, a/k/a Dot Gordon, Employee, Claimant and Appellant, v. ST. MARY’S HEALTHCARE CENTER and Heritage Mutual Insurance Company, Employer, Insurer and Appellees.
    Nos. 21311, 21331.
    Supreme Court of South Dakota.
    Considered on Briefs May 30, 2000.
    Decided Sept. 20, 2000.

      Mark A. Moreno and Brett M. Koenecke of Schmidt, Schroyer & Moreno, Pierre, South Dakota, Attorneys for employee, claimant and appellant.
    J.G. Shultz of Woods, Fuller, Shultz & Smith Sioux Falls, South Dakota, Attorneys for employer, insurer and appellees.
   SEVERSON, Circuit Judge

[¶ 1.] Delores M. Gordon (Gordon) appeals the Department of Labor’s (DOL) denial of her petition for worker’s compensation benefits for injuries she sustained in July 1994. DOL found that Gordon’s testimony on the notice issue lacked credibility, and determined that she did not provide sufficient notice of her July 1994 injuries. On appeal, the circuit court affirmed the decision of DOL. We affirm.

FACTS

[¶ 2.] Since 1979, Gordon has been employed as a licensed practical nurse at Maryhouse, a nursing home facility operated by St. Mary’s Healthcare Center in Pierre. Gordon was frequently required to lift and move nursing home patients, equipment, and other heavy items. She experienced numerous work-related injuries during her tenure at Maryhouse, including a right shoulder strain in February 1985, a hip and neck injury in 1990, a neck, shoulder, and arm injury in 1991, a back injury in November 1991, an ankle sprain in 1992, and a back injury in 1993.

[¶ 3.] On July 2, 1994, Peggy Taft (Taft), a nurse’s aid at Maryhouse, asked Gordon to assist her in moving a stroke resident off of a bathroom stool. As Taft and Gordon were lifting the patient, one of the patient’s legs gave out, causing the patient to collapse against Gordon. Immediately after the incident, Gordon informed Taft that she injured her back, and laid down on the patient’s bed. After resting on the bed, Gordon took some Tylenol, put ice on her back, and went back to work, completing her scheduled shift.

[¶ 4.] Other than telling co-worker Taft that she injured her back, Gordon did not report the incident either that day or the next, and did not seek medical treatment for her back in the following week. After the July 2 episode, and up until July 23, 1994, Gordon did not miss any of her scheduled workdays at Maryhouse.

[¶ 5.] Gordon took a trip to the Badlands on July 23 and 24. Following the trip, she was scheduled to be on vacation from July 25 through July 28. On July 25, Gordon began babysitting her eighteen-month-old grandson. During the daytime hours of July 25 and 26, she was the sole caregiver for the infant child. While she was at home on July 27, Gordon suffered an acute episode of back pain.

[¶ 6.] Gordon was immediately taken to see Dr. Curt Kuehl, her chiropractor. Kuehl could not help Gordon, and referred her to see Dr. S.Y. Stout, an orthopedist. Dr. Stout was not immediately available to see Gordon, so she was taken to see Dr. Kenneth Bartholomew, her family physician. Dr. Bartholomew administered pain medication to Gordon and sent her home.

[¶ 7.] The pain continued into the next day, and after midnight on July 29, 1994, Gordon was taken by ambulance and admitted to St. Mary’s. Upon her admission to the hospital, Dr. Stout examined Gordon and diagnosed her with having a herniated disc at L4-5. Based on his diagnosis, Dr. Stout referred Gordon to see Dr. Michel Malek, a neurosurgeon from Aberdeen. On July 30, 1994, Gordon was transferred to St. Luke’s Hospital in Aberdeen to have surgery performed on her back. Prior to her transfer to Aberdeen, Gordon’s husband Jim (Jim), informed the staff at Mar-yhouse through several telephone calls that she required back surgery and that she would be unable to work.

' [¶ 8.] The circumstances surrounding the July 27 episode are unclear. Although Gordon contends that she was walking empty handed across her living room when the back pain “hit,” notes contemporaneously prepared by her treating physicians fail to support this claim. Dr. Kuehl’s notes indicate that “she did nothing more than bend forward at home and she began to get acute severe pain.” Gordon denies making this statement. Dr. Stout’s notes indicate that “she got out of bed and apparently lifted the grandchildren.” This statement apparently came from Jim. Finally, physical therapy notes taken on August 1, 1994, indicate that her symptoms began “following working in a stooped over position for a couple of hours.” Gordon does not know, where this information came from.

[¶ 9.] On August 2, 1994, Dr. Malek performed surgery on Gordon to correct her herniated disc and related back problems. Shortly after the surgery, Dr. Malek informed Gordon’s family members that her employment duties at Maryhouse contributed to her back condition, and the resulting need for corrective surgery. Gordon’s daughter relayed this information to Gordon on August 3, 1994, the day after the surgery. Gordon was discharged from St. Luke’s and allowed to return home on August 4,1994.

[¶ 10.] A few days later, on August 7, 1994, Gordon’s son informed her of Dr. Malek’s opinion regarding the work-related nature of the injury. According to Gordon, she was not aware her condition was work-related until she was told of Dr. Malek’s opinions in August 1994. Gordon testified during the DOL hearing that she called Paul Marso (Marso), St. Mary’s Vice President for Human Resources, on August 8, 1994, and informed him that she would like to file a worker’s compensation claim. Marso disputed this version of events, and testified before DOL that he received the phone call from Gordon not on August 8, but between August 25 and September 1.

[¶ 11.] Gordon testified that following her discussion with Marso, she submitted a completed incident report form before September 1, 1994 that detailed the work-related nature of her injuries and her desire to seek worker’s compensation benefits. However, the incident report form Gordon claims to have submitted has never been found. Gordon further testified that on September 1, 1994, she received a phone call from Carol Laumbach, a secretary at Maryhouse, informing her that the incident report form she allegedly submitted prior to September 1 was defective because it pertained to her 1991 back injury. Gordon claims that Laumbach informed her that she would have to make out a new incident report form. While acknowledging that these events “may have happened,” Laumbach testified that she cannot confirm or deny speaking with Gordon about the first incident report form Gordon claims to have filled out.

[¶ 12.] From the date of the incident on July 27, 1994, through September 25,1994, Gordon did not work at Maryhouse. On September 26, 1994, Gordon returned to work at Maryhouse on a part-time basis. Eventually, on November 11, 1994, she returned to full-time status. While Gordon was working at Maryhouse on December 1, 1994, she slipped and fell in some water, injuring her back, head, neck, hip and legs. Gordon reported this incident that same day to Linda Thorson, the Nursing Director at Maryhouse.

[¶ 13.] Heritage Mutual Insurance Company (Heritage) provided worker’s compensation coverage for St. Mary’s between August 1, 1993 through August 1, 1994. Thereafter, Reliance National Company (Reliance) provided St. Mary’s with coverage, and was on the risk for providing benefits when Gordon’s December 1, 1994 incident occurred. In August 1995, Gordon commenced this action by filing a petition for hearing with DOL alleging entitlement to worker’s compensation benefits from Heritage for her July 1994 injuries, and Reliance for her December 1994 injury.

[¶ 14.] After conducting a hearing, DOL issued a decision denying both claims for worker’s compensation benefits. DOL ruled that Gordon was not entitled to benefits for the injuries she sustained in July 1994 because she failed to sustain her burden of proving any of the following: that she provided timely notice of the alleged injuries, that St. Mary’s had timely actual or constructive knowledge of the alleged injuries, that the alleged injuries were work-related, or that she had good cause for failing to provide timely notice of the alleged injuries. DOL’s ruling on the two incidents in July 1994 turned on the hearing examiner’s factual finding that Gordon’s testimony on the issue of notice lacked credibility. DOL also denied Gordon benefits for the December 1, 1994 incident, ruling that the incident was not a contributing factor to Gordon’s back injury.

[¶ 15.] Gordon appealed DOL’s decision regarding the July 1994 incidents to the circuit court, but elected not to appeal DOL’s ruling on the December 1, 1994 incident. On appeal, the circuit court affirmed DOL’s decision. Gordon appeals to this Court, presenting the following two issues for our review:

Whether DOL committed prejudicial error by imposing an increased burden of proof on Gordon with respect to St. Mary’s knowledge of her July 1994 injuries.
Whether St. Mary’s, by and through one or more of its representatives, had notice/knowledge of 'Gordon’s July 1994 injuries for purposes of SDCL 62-7-10.

STANDARD OF REVIEW

[¶ 16.] Our standard of review in worker’s compensation cases is well settled. In worker’s compensation cases, this Court gives great weight to the findings and inferences made by DOL on factual questions. Wagaman v. Sioux Falls Const., 1998 SD 27, ¶ 12, 576 N.W.2d 237, 240 (citing Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225). “Under SDCL 1-26-37, when the issue is a question of fact then the clearly erroneous standard is applied to the agency’s findings; however, when the issue is a question of law, the actions of the agency are fully reviewable.” Id. (citing Loewen v. Hyman Freightways, Inc., 1997 SD 2, ¶ 6, 557 N.W.2d 764, 766). When reviewing agency findings, we “will reverse, only if, after careful review of the entire record, we are definitely and firmly convinced a mistake has been made.” Id. (citation omitted).

ANALYSIS AND DECISION

[¶ 17.] Whether DOL committed prejudicial error by imposing an increased burden of proof on Gordon with respect to St. Mary’s knowledge of her July 1994 injuries.

[¶ 18.] Quoting from a portion of our decision in Streyle v. Steiner Corp., 345 N.W.2d 865, 866 (S.D.1984), DOL opined in its written decision that where a claimant has a pre-existing weakness, “the burden increases on the claimant to show that the employer’s knowledge of the particular manifestation of injury should be taken as knowledge that it is work-connected.” Gordon, who experienced numerous work-related injuries during her tenure at Maryhouse, argues that it was error for DOL to rely on Streyle and impose a heightened burden for demonstrating that St. Mary’s knew that the injuries she suffered in July 1994" were work-related. Since Gordon’s argument speaks to the proper application of the notice requirement in worker’s compensation cases, our focus shifts to our precedent in this area.

[¶ 19.] In worker’s compensation cases, the notice requirement is governed by SDCL 62-7-10. We have instructed that “[t]he law in effect when the injury occurred governs the rights of the parties.” Loewen, 1997 SD 2, ¶ 9, 557 N.W.2d at 766 (citation omitted). At the time Gordon’s injuries occurred, SDCL 62-7-10 provided as follows:

An employee who claims compensation for an injury shall immediately, or as soon thereafter as practical, notify the employer of the occurrence of the injury. Written notice of the injury shall be provided to the employer no later than three business days after its occurrence. The notice need not be in any particular form but must advise the employer of when, where, and how the injury occurred. Failure to give notice as required by this section prohibits a claim for compensation under this title unless the employee or the employee’s representative can show:
(1) The employer or the employer’s representative had actual knowledge of the injury; or
(2) The employer was given written notice after the date of the injury and the employee had good cause for failing to give written notice within the three business-day period, which determination shall be liberally construed in favor of the employee.

[¶ 20.] In South Dakota, a person seeking worker’s compensation benefits has the burden of proving that she provided timely notice of the injury or that her employer had actual knowledge of the injury. Miller v. Lake Area Hosp., 1996 SD 89, ¶ 11, 551 N.W.2d 817, 819 (citing SDCL 62-7-10; Schuck v. John Morrell & Co., 529 N.W.2d 894, 897 (S.D.1995); King v. Johnson Bros. Constr. Co., 83 S.D. 69, 73, 155 N.W.2d 183, 185 (1967); Schindler v. Manchester Biscuit Co., 71 S.D. 336, 338, 24 N.W.2d 76, 77 (1946)). In addition, “not only must Claimant prove [that her employer] had notice of injury, but also must prove that [her employer] was on notice of the work-related nature of the injury.” Id. (citation omitted).

[¶21.] We recently articulated the following regarding the notice an employee must provide an employer in order to gain worker’s compensation benefits:

The purpose of the notice requirement is to provide the employer an opportunity to investigate the cause and nature of an employee’s injury while the facts are readily accessible. Schuck, 529 N.W.2d at 897 (citation omitted). Therefore, ‘[n]otice to the employer of an injury is a condition precedent to compensation.’ Loewen, 1997 SD 2, ¶ 8, 557 N.W.2d at 766 (citations omitted). However, the failure to provide written notification to the employer may be excused if the employer had actual knowledge of the injury. SDCL 62-7-10. Additionally, if written notification is delayed, strict compliance with the statute is excused if the employee has good cause justifying the delay.

Vaughn v. John Morrell & Co., 2000 SD 31, ¶ 16, 606 N.W.2d 919, 923.

[¶ 22.] In Streyle, the case cited by DOL in its decision denying Gordon benefits, the claimant suffered from “a history of back problems” that were unrelated to her employment. 345 N.W.2d at 866. After an incident at work in which the claimant injured her back, the employer refused to provide worker’s compensation benefits, arguing that the claimant failed to abide by the notice requirement codified at SDCL 62-7-10. The circuit court affirmed DOL’s decision to dismiss the claimant’s petition for failure to provide the employer with written or actual notice of the work-related injury. On appeal, we reversed, holding that the employer “had notice sufficient to meet the requirements of SDCL 62-7-10.” Id. at 867.

[¶ 23.] In Streyle, we stated that “[w]here, as in this case, the claimant has a preexisting nonoccupational weakness, the burden increases on the claimant ‘to show that the employer’s knowledge of the particular manifestation of injury should be taken as knowledge that it was work-connected.’ ” Id. at 866-67 (quoting 3 Larson, The Law of Workmen’s Compensation, § 78.31(a) (1982) (emphasis added)). Gordon argues that the burden we discussed in Streyle for claimants with a “preexisting nonoccupational weakness” was erroneously applied to her by DOL because, unlike the claimant in Streyle, Gordon’s prior injuries are all occupational in nature, as they stem from her employment at Mary-house.

[¶ 24.] In order to establish a worker’s compensation claim, the “claimant has the burden of proving all facts essential to compensation.” Foltz v. Warner Transportation, 516 N.W.2d 338, 341 (S.D.1994) (citation omitted). The term “burden of proof’ encompasses two distinct, though related concepts. As the Supreme Court has explained:

For many years the term ‘burden of proof was ambiguous because the term was used to describe two distinct concepts. Burden of proof was frequently used to refer to what we now call the burden of persuasion — the notion that if the evidence is evenly balanced, the party that bears the burden of persuasion must lose. But' it was also used to refer to what we now call the burden of production — a party’s obligation to come forward with evidence to support its claim.

Director, Office of Workers’ Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 272, 114 S.Ct. 2251, 2255, 129 L.Ed.2d 221, 228 (1994). “ ‘It is generally said that the burden of production may pass from party to party as the case progresses while the burden of persuasion rests throughout on the party asserting the affirmative of an issue.’ ” Hayes v. Luckey, 33 F.Supp.2d 987, 990 (N.D.Ala.1997) (citation omitted). Furthermore, our cases recognize “the generally accepted rule that the moving party has the burden of going forward as well as the burden of persuasion in administrative hearings.” Gourley v. Board of Trustees of South Dakota Retirement System, 289 N.W.2d 251, 253 (S.D.1980) (citing Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 1973) (emphasis added)).

[¶ 25.] In worker’s compensation cases, “[t]he employee’s burden of persuasion is by a preponderance of the evidence.” Foltz, 516 N.W.2d at 341 (quoting Caldwell v. John Morrell & Co., 489 N.W.2d 353, 358 (S.D.1992)). In determining whether a claimant has satisfied this burden, we have instructed that “[bjefore any award may be sustained, the findings of fact of the commissioner must be supported ‘by substantial, credible, and reasonable evidence.’ ” Id. at 342 (quoting Kraft v. Kolberg Mfg. Co., 88 S.D. 140, 215 N.W.2d 844, 846 (1974)).

[¶ 26.] Contrary to Gordon’s argument, Streyle does not alter a claimant’s “burden of proof.” In Streyle, this Court quoted from a portion of a sentence found in Larson’s treatise on worker’s compensation. The full quote from Larson’s treatise provides, “[a]s a matter of common sense, the fact that the claimant is known to have a preexisting nonoccupational weakness increases the burden on the claimant to show-that the employer’s knowledge of the particular manifestation of injury should be taken as knowledge that it was work-connected.” Larson, supra. The language in Streyle, when read in conjunction with the full text from Larson’s treatise, clearly refers to the persuasive weight of the evidence submitted, not an altered legal standard. Thus, a claimant suffering from a preexisting nonoccupational weakness and a claimant suffering from a preexisting occupational weakness are both required to demonstrate adequate notice of their injuries by a preponderance of the evidence. However, as a matter of common sense, when an employee suffers from a preexisting nonoccupational weakness the hearing examiner must take into account the employer’s knowledge of the particular weakness when determining whether the employee has satisfied the burden of persuasion. Obviously, the employee suffering from a preexisting nonoccupational weakness will have more difficulty establishing that the employer’s knowledge of the particular manifestation of the injury also constitutes knowledge that the injury is work-related. The actual quantum of proof necessary for the employee to sustain a claim for benefits does not change, and remains at a preponderance.

[¶ 27.] We conclude that this is the context in which DOL applied the language of Streyle to Gordon’s claim for benefits. We also conclude that Gordon was not subjected to a heightened burden of persuasion by DOL. Gordon was merely required to prove the giving of adequate notice to St. Mary’s by a preponderance of the evidence. Based on these conclusions, we rule that DOL did not commit reversible error, as it utilized the appropriate standard in determining whether Gordon supplied St. Mary’s with sufficient notice of her injuries. Affirmed.

[¶ 28.] Whether St. Mary’s, by and through one or more of its representatives, had notice/knowledge of Gordon’s July 1994 injuries for the purposes of SDCL 62-7-10.

[¶ 29.] DOL ruled that Gordon did not provide timely notice of either her July 2 or her July 27, 1994 injuries. Since the circumstances surrounding these injuries are separate and distinct, we will review each injury independently.

July 2, 1994 injury

[¶ 30.] It is undisputed that Gordon did not provide St. Mary’s with written notice of her July 2, 1994 injury within three business days after the incident occurred. Therefore, in accordance with SDCL 62-7-10, Gordon must demonstrate that St. Mary’s had actual knowledge of the injury, or that good cause prevented her from complying with the three-day period.

[¶ 31.] Gordon argues that St. Mary’s obtained actual knowledge of the July 2 injury as the result of a conversation that occurred between Taft and Gordon’s direct supervisor, Norma Newberger (Newber-ger). Newberger testified at the hearing with DOL that, after talking with Taft, she became aware that Gordon suffered a back injury lifting a patient within “a couple of days” after the incident. In addition, Gordon testified before DOL that within a week following the July 2 injury, she told Newberger “that I did do something to my back lifting [the patient].” Despite this testimony, the hearing examiner determined as a finding of fact that “Taft told Newberger about the July 2 incident on or about July 28, 1994.” On appeal, the circuit court also stated in its decision that Taft told Newberger about the July 2 incident on July 28,1994.

[¶ 32.] “The standard used for determining whether an employer has actual knowledge is: whether the employer is ‘alerted to the possibility of a claim so that a prompt investigation can be performed.’ ” Vaughn, 2000 SD 31, ¶ 28, 606 N.W.2d at 924 (quoting Loewen, 1997 SD 2, ¶ 18, 557 N.W.2d at 768). Gordon argues that DOL and the circuit court erred in finding that Taft informed Newberger of the incident on July 28, 1994. We agree. A review of the record demonstrates that no evidence supports DOL’s finding that Taft informed Newberger of the incident on July 28, 1994. In contrast to DOL’s finding, Taft could not have informed Newberger about the incident on July 28 because, as Taft testified during the hearing, she was out of town from July 26 through August 2 attending the funeral of her father. Therefore, we find that DOL’s finding was clearly erroneous and incorrectly determined that Taft informed Newberger of the incident on July 28, 1994.

[¶ 33.] This determination, however, does not require us to reverse DOL’s decision on the notice issue. Under our well-settled standard of review, we will reverse only if, after a careful review of the entire record, we are definitely and firmly convinced that a mistake has been made. Wagaman, 1998 SD 27, ¶ 12, 576 N.W.2d at 240 (citing Sopko, 1998 SD 8, ¶ 6, 575 N.W.2d at 228). When asked on cross-examination about when she learned of the patient incident, Newberger contradicted her earlier testimony, and indicated that she first became aware of the incident when Gordon was scheduled to have surgery performed on her back, which was nearly one month after the incident occurred. When questioned further, New-berger testified that whether she learned of the incident only after the prospect of surgery for Gordon arose was either “fifty percent right” or “fifty percent wrong.” Given the uncertainty that plagued New-berger’s testimony, DOL was not clearly erroneous in declining to find, that Taft informed Newberger of the patient incident within “a couple of days” after it occurred.

[¶ 34.] DOL also determined that Gordon’s testimony on this issue lacked credibility and contradicted her other sworn statements. First; Gordon testified before DOL that she did not become aware of the work related nature of her injury until she was informed of Dr. Malek’s opinion in August 1994. In contrast, however, Gordon also testified that she talked with Newberger about the July 2 incident within a week of its occurrence, indicating that she knew the injury was serious enough to report. Second, during a deposition taken before the hearing with DOL, Gordon denied ever having a conversation with New-berger about the July 2 incident after its occurrence. This contradicts Gordon’s testimony before DOL, in which she clearly recalled speaking with Newberger within one week after the incident. Third, Gordon reported seven work-related injuries prior to the July 2 incident, including one to her back that did not require medical treatment. Thus, she clearly understood the procedure for reporting injuries. The combination of these factors, along with the previously mentioned discrepancies in Gordon’s history of events, caused DOL to conclude that her testimony lacked credibility.

[¶ 35.] In Loewen, we stressed that this Court has “long held that the [DOL] is in the best position to assess the credibility of the witnesses and the weight to be accorded their testimony, and we give due regard to its opportunity to observe the witnesses and the evidence first hand.” 1997 SD 2, ¶ 11, 557 N.W.2d at 767 (citing Petersen v. Hinky Dinky, 515 N.W.2d 226, 235 (S.D.1994); Wendel v. Domestic Seed & Supply, 446 N.W.2d 265, 271 (S.D.1989)). “We will not substitute our judgment for the agency’s on an issue of credibility unless we are ‘left with a definite and firm conviction that a mistake has been made.’ ” Id. (citation omitted).

[¶ 36.] In this case, Newberger’s testimony failed to establish that St. Mary’s had actual notice of Gordon’s July 2, 1994 incident. Furthermore, Gordon provided multiple versions of crucial events surrounding the July 2, 1994 incident. Under our standard of review, we will not second-guess DOL’s credibility determinations unless we are definitely and firmly convinced that a mistake was made. We are not so convinced, and DOL’s finding that Gordon failed to provide actual notice of her July 2,1994 injury is affirmed.

July 27, 1994 injury

[¶ 37.] In accordance with SDCL 62-7-10, Gordon claims that St. Mary’s was provided with written notice of the July 27, 1994 incident within three business days of its occurrence, and that St. Mary’s had actual knowledge of her injuries. DOL disagreed, and, like its ruling on the July 2 incident, determined that Gordon failed to provide adequate notice because her testimony about the July 27 incident lacked credibility. We find that the factual findings underlying DOL’s ruling were not clearly erroneous.

[¶ 38.] Once again, DOL found that the testimony Gordon provided during the hearing contradicted her previous deposition testimony. During her deposition, Gordon testified that she did not inform anyone in Paul Marso’s office about her intent to seek worker’s compensation benefits until September 1994. During the hearing with DOL, however, Gordon contradicted her prior statement, and testified that she spoke with Marso on the telephone about her situation on August 8, 1994. Furthermore, during the hearing with DOL Gordon claimed to have submitted a first report of injury form prior to September 1, 1994. During her deposition, however, Gordon neglected to mention this critical fact, and as the circuit court noted “nor did the pre-September 1, 1994, first report of injury turn up when Marso specifically looked for it.” Finally, in support of its credibility finding, DOL also noted the “multiple versions” of what occurred on July 27 that were documented in the medical records of Gordon’s various treating physicians.

[¶ 39.] Gordon argues that DOL should not have based its credibility determination on the use of her deposition testimony. During the hearing, a transcript of Gordon’s deposition testimony was not admitted into evidence. Instead, counsel for St. Mary’s read passages of Gordon’s deposition testimony into the record, and asked Gordon to explain why her deposition testimony differed from the testimony she provided during the hearing. According to Gordon, this was error, because DOL was never able to examine the entire transcript and look at the context within which Gordon provided her answers. We disagree.

[¶ 40.] Using prior deposition testimony in this manner to impeach a witness is permissible, and the prior sworn testimony need not be offered into evidence. Counsel for St. Mary’s read portions of Gordon’s testimony into the record, and provided Gordon with a copy of the deposition transcript that she was free to review. Gordon was afforded a complete opportunity to explain why her deposition testimony differed from the testimony she provided before DOL. A review of the hearing testimony demonstrates that Gordon had difficulty explaining why her deposition testimony differed from the testimony she provided before DOL. We see no error in Gordon’s deposition transcript not being entered into the record.

[¶ 41.] Gordon argues that this case should not hinge on her perceived lack of credibility, because other independent evidence establishes that St. Mary’s received written and actual notice of her July 27 injury. First, Gordon argues that written notice was provided to St. Mary’s through the use of absence reports. Absence reports are documents prepared by the Maryhouse staff which record the date and reasons why an employee misses work. In the first three days following the July 27 incident, the phone calls Jim made to Maryhouse were documented in sepa-' rate absence reports by the nursing home’s staff. Second, Gordon claims that St. Mary’s obtained actual knowledge of her July 27 injury shortly after the incident through various means. In summary, Gordon argues that St. Mary’s obtained actual knowledge of the injury through the phone calls made to Maryhouse following her hospitalization, her history of back problems, the absence reports which documented the days she missed from work, and the testimony provided by various supervisory employees on their respective knowledge of her injury. We disagree with Gordon’s conclusions.

[¶ 42.] When taken as a whole, the “independent evidence” articulated by Gordon only proves that St. Mary’s knew of her absence from work, and that her absence was caused by a back injury that occurred while she was off work. An employer’s mere knowledge of an injury does not satisfy the notice requirement because, under our standard of review, a claimant must also demonstrate that the employer knew about the compensable nature of the injury. Miller, 1996 SD 89, ¶ 11, 551 N.W.2d at 819 (citation omitted). DOL determined that Gordon did not sustain her burden on this issue, and that her testimony was lacking in credibility. There is more than sufficient evidence in the record to support this determination, and Gordon has the burden of proof, both in the sense of burden of persuasion and burden of production, on giving timely notice of her injuries, or an exception — either actual knowledge by the employer or other good cause. She failed to prove that she provided written notice within three days of the injury and further failed to prove that she met either of the two statutory exceptions. We are not left with a definite and firm conviction that a mistake was made, and the decision of the circuit court is affirmed.

[¶ 43.] Because our decision is to affirm, we do not reach the employer’s and insurer’s notice of review issues.

[¶ 44.] AMUNDSON, KONENKAMP and GILBERTSON, Justices, concur.

[¶ 45.] SEVERSON, Circuit Judge, for MILLER, Chief Justice, disqualified.

[¶ 46.] SABERS, Justice, disqualified.

      . SDCL 62-7-10 was amended a few months prior to the injuries Gordon sustained in July of 1994, changing the time period for providing notice of an injury from 30 days to 3 business days after the occurrence of the incident. The new law took effect the day before Gordon’s July 2 incident with the patient. Thus, Gordon’s injuries came under the umbrella of the amended notice statute, which requires written notice of the injury within "three business days after its occurrence.”

      . During the hearing with DOL, Newberger testified during cross examination as follows:
      Q. When did you first know then that Dot had suffered this injury with [the patient]; you said within a couple days of it, wasn't that your testimony?
      A. I believe I answered that when she said this, knowing that she was going to have back surgery, how soon did I know that it might have been related to [the patient]? I said it was within a couple of days.

        er Perhaps I misunderstood. When did you first know that ■ she had the '... injury?
      A. I can't give you an exact date on that.
      Q. You don't know? _
      A. I guess I don't completely understand your question because I don't know, and I didn’t mean to make you laugh with it, Jeff. I need to have you explain it to me further.
      Q. I'll be happy to do that. Please let me try.- My question is when did you first know - when did you first know that Dot Gordon was injured in a lift with Peggy Taft on July 2, 1994 with [the patient]?
      A. Okay, I was aware of it just by talking to Peggy when I knew that Dot was going to Aberdeen to the hospital, and I also talked to Peggy about it again when she came back to work after being on annual leave, which I believe was about the 2nd or 3rd of August. Like I was saying, Peg and I talked about it, [ whether it was related to'this ... injury! if it had anything to do with it.

      . Gordon quarrels with DOL’s finding that she “denied” ever speaking with Newberger about the July 2 incident during her deposition. Instead, Gordon argues that during her deposition, she merely could not recall telling Newberger that she experienced a work-related back injury in July 1994. Gordon attempted to reconcile her deposition testimony with her hearing testimony by claiming that New- . berger first approached her about the incident, and inquired about the status of her back. According to Gordon, "I did not tell her. She came and asked me how my back was.” As a result, Gordon claims she was being truthful when she could not recall ever telling Newberger about her injury. This explanation is untenable, and demonstrates the shifting nature of Gordon's testimony. Obviously, even if Newberger first approached Gordon about the incident, Gordon would still be required to tell Newberger about her injury. Therefore, Gordon’s deposition testimony was clearly at odds with the testimony she provided at the hearing with DOL.

      . The absence reports documenting Gordon’s injuries were not produced during the hearing with DOL. While the absence reports were not available for review at the hearing, St. Mary's does not dispute their use and existence.