ZINTER, Justice.
[¶ 1.] Nathaniel Thomas was convicted of Reckless Burning, a Class 4 felony. He appeals, claiming that the circuit court plainly erred in failing to give appropriate instructions on accomplice testimony. He also contends that instructional and other errors deprived him of effective assistance of counsel.
[¶ 2.] The Pressbox bar and restaurant in Vermillion caught fire and burned in the early morning hours of September 29, 2008. When firefighters arrived, the north side of the building was in flames. Investigators found a Coors Light bottle with a cloth sticking out of it on the northeast side of the building. A police officer described it as a "Molotov cocktail." The police treated the case as arson, but no immediate headway was made in the investigation.
[¶ 3.] Nine months after the incident, Detective Crystal Brady received a tip that Ryan Kightlinger, Thomas's cousin, had information about the fire. Kightlinger's information led Detective Brady to Thomas and to Jimmy and Jeremy Broomfield. Following interviews with Kightlinger and the Broomfields, Detective Brady concluded that Thomas and the Broomfields set a fire behind the Pressbox that spread to the building.
[¶ 4.] Detective Brady subsequently interviewed Thomas. Thomas admitted reporting the fire to 911 at 3:34 a.m. Thomas also admitted that the Broomfields were at his house (across the street from the Pressbox) drinking on the night of the fire. Thomas, however, claimed that the Broomfields left his house two or three hours before he reported the fire. Thomas further claimed that he went to bed immediately after the Broomfields left and that he slept until he woke up to go to the bathroom. Thomas indicated that while in the bathroom, he saw the fire and immediately called 911. Although Thomas denied talking with anyone from the time he went to bed until he reported the fire, his cell phone records reflected that he had eight incoming and outgoing phone calls between 2:50 a.m. and the 911 call at 3:34 a.m. The calls were to and from Jimmy Broomfield, Kightlinger, and Thomas's mother.
[¶ 5.] Thomas was charged with Reckless Burning in violation of SDCL 22-33-9.3. Counsel was appointed but withdrew due to a conflict. Substitute counsel was appointed. Counsel prevailed on a motion to continue the jury trial but filed no other pretrial motions.
[¶ 6.] At trial, the Broomfields were the only witnesses directly implicating Thomas in starting the fire. Jimmy testified that he, Jeremy, and Thomas had been drinking together the night of September 28 into the morning hours of September 29. He indicated that the three of them took two empty Coors Light bottles and filled them with gasoline from Jimmy's car. They also took paper towels from Thomas's home to help light the fire. They poured some of the gasoline onto a gravel patch approximately ten or fifteen feet behind the building and ignited the gasoline. Both Broomfields testified that they saw Thomas light the fire. According to the Broomfields, the fire burned and then died down. They further claimed that they put out the remaining fire to the point it was just smoking and went home
[¶ 7.] Although Thomas admitted being with the Broomfields earlier that evening, he vehemently denied any involvement with the fire. He contended that animosity and the Broomfields' plea agreements motivated them to lie. He also contended that the Broomfields had a motive to lie because Thomas had assaulted Jimmy.
[¶ 8.] Although the Broomfields' trial testimony directly implicated Thomas, Jimmy conceded that he gave two prior statements of the events to Detective Brady. Both statements excluded Thomas's involvement. Both Jimmy and Jeremy also conceded that they entered into plea agreements with the State as a result of the fire. The plea agreements required the Broomfields to testify at Thomas's trial.
[¶ 9.] Other than the Broomfields, Ryan Kightlinger was the only other witness who linked Thomas to the fire. Kightlinger testified that Thomas called Kightlinger around three a.m. on September 29. Kightlinger testified that during the phone call Thomas indicated that he and the Broomfields had been drinking heavily and that "they" started the fire. However, when asked by the state's attorney what "they" meant, Kightlinger conceded that Thomas never indicated he was personally involved in starting the fire.
[¶ 10.] Chad Grunewaldt, the owner of the Pressbox, was the only other witness who observed people around the building the morning of the fire. He testified that around two a.m., he saw three male college-aged students grilling, hanging out, and drinking in the vicinity of Thomas's front yard. But Thomas's front yard was shared by other tenants, and Grunewaldt did not identify the individuals.
[¶ 11.] The jury found Thomas guilty, and he raises two issues on appeal:
[¶ 12.] Thomas's primary contention in both issues involves claimed inadequacies in the circuit court's accomplice instruction. The court gave an accomplice instruction (Instruction 16) sua sponte. Instruction 16 provided:
[¶ 13.] Thomas argues that this instruction was incomplete in three respects. Thomas first contends that because the instruction referred to "co-defendants" rather than "accomplices," the jury was not instructed that the Broomfields' testimony had to be corroborated. Second, Thomas contends that the court did not adequately instruct on the nature of the evidence necessary to corroborate accomplice testimony. Thomas points out that the instruction did not indicate that corroborative evidence is insufficient if it merely shows the commission of the crime or the circumstances thereof and that one accomplice cannot corroborate another. Thomas finally contends that the court failed to instruct that accomplice testimony must be viewed with caution.
[¶ 14.] Because trial counsel did not object to the court's instruction or propose any defense instructions on accomplice testimony, Thomas concedes that these issues are not preserved for regular appellate review. Consequently, Thomas seeks relief on theories of plain error and ineffective assistance of counsel. Both theories require a showing of error and prejudice.
[¶ 15.] Thomas contends the circuit court erred in failing to instruct the jury that the Broomfields' testimony had to be corroborated. SDCL 23A-22-8 provides:
Thomas claims that because Instruction 16 only required corroboration of a "co-defendant's" testimony and the Broomfields were not co-defendants in this trial, the instruction could not have logically or grammatically applied to accomplices Jimmy and Jeremy Broomfield. We disagree.
[¶ 16.] In reviewing the sufficiency of jury instructions, the question is
[¶ 17.] Thomas next contends that the circuit court erred in failing to sufficiently describe the nature of the testimony necessary to corroborate accomplice testimony. Thomas first points out that the court's instruction omitted the second sentence of SDCL 23A-22-8, which provides: "corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof." Thomas also points out that the court's instruction did not inform jurors that one accomplice's testimony cannot be used to corroborate another accomplice's testimony. See State v. Wiegers, 373 N.W.2d 1, 16 (S.D.1985) ("The testimony of one accomplice cannot be regarded as corroborating the testimony of another accomplice within the meaning of SDCL 23A-22-8."); State v. Dominiack, 334 N.W.2d 51, 54 (S.D.1983) (stating that the jury should have been further instructed that an accomplice cannot corroborate the testimony of another accomplice).
[¶ 18.] "Instructions are sufficient when, viewed as a whole, they correctly state the law and inform the jury." State v. Corean, 2010 S.D. 85, ¶ 38, 791 N.W.2d 44, 58. Both the law and facts of this case warranted instructions on the inadequacy of corroboration that merely showed the circumstances or commission of the offense and the corroboration of one accomplice by another. Therefore, instructional error would have been present had these instructions been requested.
[¶ 19.] Thomas finally contends that the circuit court erred in failing to give a cautionary instruction regarding accomplice testimony. "[A]n accomplice,. . . in law, is regarded as a corrupt source of testimony." State v. Beene, 257 N.W.2d 589, 592 (S.D.1977). Therefore, an accomplice's testimony "ought to be received with suspicion, and with the very greatest care and caution, and ought not to be passed upon by the jury under the same rules governing other and apparently credible witnesses." Crawford v. United States, 212 U.S. 183, 204, 29 S.Ct. 260, 268, 53 L.Ed. 465 (1909). Further, it is not enough for the circuit court to only instruct that testimony of an accomplice must be corroborated. Beene, 257 N.W.2d at 591. "The jurors must be warned that, in effect, the accomplice may tailor the truth to his or her own self-serving mold, and that they are to weigh the testimony with that caveat in mind." Id. at 592. A circuit court errs in "fail[ing] upon request to give a cautionary instruction concerning
[¶ 20.] Because trial counsel did not request these instructions thereby preserving these instructional errors for regular appellate review, appellate counsel raises them as plain-error and ineffective-assistance-of-counsel claims. "Where an issue has not been preserved by objection at trial, our review is limited to whether the trial court committed plain error." State v. Bowker, 2008 S.D. 61, ¶ 45, 754 N.W.2d 56, 69. See SDCL 23A-44-15 ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of a court."). We also may consider unpreserved issues in certain cases involving claims of ineffective assistance of counsel. See, e.g., Lee v. Solem, 405 N.W.2d 56 (S.D.1987) (considering unpreserved issues of counsel's failures to object to jury instructions and testimony as an ineffective-assistance claim). Because we conclude that this is one of those rare cases where an ineffective-assistance-of-counsel claim is ripe for review on direct appeal, we confine the remainder of our analysis to that claim for relief.
[¶ 21.] To be entitled to relief on a claim of ineffective assistance of counsel, a defendant must show that his counsel provided ineffective assistance and that he was prejudiced as a result. Steichen, 2009 S.D. 4, ¶ 24, 760 N.W.2d at 392. To establish ineffective assistance, a defendant must show that counsel's representation fell below an objective standard of reasonableness. Dillon v. Weber (Dillon II), 2007 S.D. 81, ¶ 7, 737 N.W.2d 420, 424. The question is whether counsel's representation "amounted to incompetence under `prevailing professional norms,' not whether it deviated from best practices or most common custom." Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) (quoting Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984)). "There is a strong presumption that counsel's performance falls within the wide range of professional assistance and the reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all circumstances." Steichen, 2009 S.D. 4, ¶ 25, 760 N.W.2d at 392-93.
[¶ 22.] Thomas contends that trial counsel was deficient for a number of reasons,
[¶ 23.] Ineffective-assistance-of-counsel claims are generally not considered on direct appeal. State v. Arabie, 2003 S.D. 57, ¶ 20, 663 N.W.2d 250, 256. The reason is to allow "attorneys charged with ineffectiveness [to] explain or defend their actions and strategies, and thus a more complete picture of what occurred is available for review." Id. This Court will "depart from this principle only when trial counsel was `so ineffective and counsel's representation so casual as to represent a manifest usurpation of [the defendant's] constitutional rights.'" Id. (quoting State v. Dillon (Dillon I), 2001 S.D. 97, ¶ 28, 632 N.W.2d 37, 48 (quoting State v. Hays, 1999 S.D. 89, ¶ 14, 598 N.W.2d 200, 203)).
[¶ 24.] There is no question that, at the very least, trial counsel should have requested a cautionary accomplice instruction. The Supreme Court has concluded that the failure to demand a cautionary accomplice instruction, together with other errors, violates due process and the defendant's right to counsel. Cash v. Culver, 358 U.S. 633, 637-38, 79 S.Ct. 432, 436, 3 L.Ed.2d 557 (1959). In Beene, this Court mandated the instruction when requested by the defendant. 257 N.W.2d at 592-93. Therefore, trial counsel could not claim that asking for the instruction would have been futile.
[¶ 25.] Nor could counsel claim that he withheld a request for a cautionary instruction as part of a legitimate trial strategy. This Court has concluded that when accomplice testimony is presented, there is no conceivable strategic motive that would excuse failure to request a cautionary accomplice instruction.
State v. McBride, 296 N.W.2d 551, 556 (S.D.1980). This Court reiterated this conclusion in Grooms v. State, stating: "We cannot envision an advantage which could have been gained by withholding a request for this instruction." 320 N.W.2d 149, 152 (S.D.1982).
[¶ 26.] The jury's decision in this case was based almost entirely upon a credibility dispute between the Broomfields and Thomas. Further, the Broomfields' testimony was of no conceivable benefit to Thomas, and Jimmy Broomfield's trial testimony was impeached. In final argument, the State's attorney admitted that in Jimmy Broomfield's first two interviews (not implicating Thomas), Jimmy lied about what occurred but that he "came clean" in his testimony at trial. Additionally, there was admitted personal animosity between the Broomfields and Thomas. In addition to these evidentiary reasons for discrediting the Broomfields' testimony, a cautionary instruction from the court would have explicitly warned the jury to examine the Broomfields' testimony "with great care and caution." Beene, 257 N.W.2d at 589. The State has not identified and we cannot see any benefit gained or tactic served by not requesting a cautionary instruction.
[¶ 28.] A defendant alleging ineffective assistance of counsel also has the burden of proving prejudice. Dillon II, 2007 S.D. 81, ¶ 6, 737 N.W.2d at 424. Prejudice "exists only when `there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different.'" Id. ¶ 8 (quoting Owens v. Russell, 2007 S.D. 3, ¶ 9, 726 N.W.2d 610, 615 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068)). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Ultimately, "[w]hen a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland, 466 U.S. at 695, 104 S.Ct. at 2068-69. The question then is, if we take away the Broomfields' accomplice testimony (assuming the jury discredited it after having been properly instructed), is there a reasonable probability that the jury would have had a reasonable doubt respecting Thomas's guilt?
[¶ 29.] Thomas points out that we found such prejudice in the failure to give cautionary accomplice instructions in similar situations in Grooms, 320 N.W.2d 149; McBride, 296 N.W.2d 551; and Beene, 257 N.W.2d 589. In each of those cases, no witnesses other than the accomplices gave testimony directly tending to show the defendants' complicity. See Grooms, 320 N.W.2d at 151 (recognizing that the accomplice was the only individual to give testimony that directly linked defendant with the theft; "evidence presented at trial by the other six witnesses was circumstantial evidence"); McBride, 296 N.W.2d at 554 (noting that the accomplice was "the only individual to give testimony which linked appellant with the burglary," and "the [S]tate did not have a case without the testimony of an accomplice or a colleague in crime"); Beene, 257 N.W.2d at 589 ("No witness, other than [the accomplice], gave any testimony directly tending to show defendant's complicity."). We also found prejudice in Beene because "the jury had to credit [the accomplice's] testimony in order to convict [Beene]." 257 N.W.2d at 592. "Taken as true, the testimony of the [other witnesses] would not [have made] a case for the jury on the charges against [Beene.]" Id. at 591.
[¶ 30.] The State contends that no prejudice has been shown because even without the Broomfields testimony, Kightlinger made a case for the jury on Thomas's guilt. Although Kightlinger's testimony makes this a closer case, it is ultimately
[¶ 31.] GILBERTSON, Chief Justice, and KONENKAMP, MEIERHENRY, and SEVERSON, Justices, concur.
In addition to the equivocal nature of this testimony, Kightlinger was mistaken about who initiated the phone call. Although Kightlinger testified that Thomas initiated the call, Thomas's cell phone records reflected that Knighting initiated the call.