(dissenting).
[¶ 25.] Kneeht claimed he shot Marshall in self-defense and there was physical evidence to support it but his counsel failed to properly present it through an expert witness. This was error constituting ineffective assistance of counsel under Strickland because it resulted in prejudice to his defense.
[¶ 26.] Kneeht argues that he shot Marshall while Marshall was attacking him and trying to pull him to the ground. There was evidence, based on the bullet entry and exit wounds that supported Knecht’s argument. This evidence, had it been fully understood by Knecht’s counsel and presented to the jury through an expert, would have challenged the State’s theory of events. This evidence, however, was neither fully developed nor explained during trial.
[¶ 27.] The majority opinion states that failure to obtain an expert is not deficient per se. Even the most experienced trial counsel, however, may lack expertise in some areas and need the help of an expert. See Driscoll v. Delo, 71 F.3d 701 (8th Cir.1995); Foster v. Lockhart, 9 F.3d 722, 726 (8th Cir.1993); Starr v. Lockhart, 23 F.3d 1280, 1284 (8th Cir.1994). “When the appellant shows that defense counsel ‘failed to exercise the customary skills and diligence that a reasonably competent attorney would exhibit under similar circumstances,’ that presumption must fail.” Driscoll, 71 F.3d at 709 (quoting Starr, 23 F.3d at 1284).
[¶ 28.] Whether the gunshot wounds were consistent with Knecht’s or the State’s theory was an issue of great significance. Even Knecht’s counsel admitted that the gunshot wound evidence was significant and would have aided in the defense theory. Accordingly, because of the complexity of the evidence and the conflicting theories as to the manner of the shooting, the need for an expert was readily apparent. Under these circumstances, a reasonable defense lawyer should have taken the time and effort to thoroughly understand all of the evidence. It was *502deficient performance for Knecht’s counsel not to retain a forensic expert.
[¶ 29.] Knecht was prejudiced because he was unable to put on a complete defense. At the habeas hearing, pathologist Dr. Habbe testified that the bullet wound on Marshall’s right calf and the bullet discovered in his pant leg were consistent with Knecht’s testimony that Marshall had been on the ground when he shot him. Had his counsel obtained a forensic expert to study the pathology of the bullet wounds, they would have better been able to corroborate Knecht’s testimony and theory of self-defense.
[¶ 30.] Furthermore, Knecht’s counsel wholly failed to raise the argument that the killing was not effected in a cruel and unusual manner, either during trial or on direct appeal. The failure to do so constituted deficient perfonnance and resulted in prejudice to Knecht.
[¶ 31.] To sustain a conviction for first degree manslaughter committed without a design to effect death but inflicted in a cruel and unusual nature under SDCL 22-16-15(2), the evidence must show that the killing was “shocking or barbaric” and done in a manner “sufficiently unique in ferocity, duration and manner of accomplishment.” State v. Lange, 82 S.D. 666, 671, 152 N.W.2d 635, 638 (1967). In Lange, this Court examined the phrase “in a cruel and unusual manner.” Id. One of the cases cited in Lange explained that in order to sustain a conviction for a killing done in a cruel and unusual manner:
there must be some refinement or excess of cruelty sufficiently marked to approach barbarity, and to make it especially shocking; and the unusual character of the manner displayed must stand out as sufficiently peculiar and unique to create surprise and astonishment and to be capable of discrimination as rare and strange.
Lange, 82 S.D. at 671, 152 N.W.2d at 638 (citing State v. Knoll, 72 Kan. 237, 83 P. 622 (1905)). This Court recognized that:
[t]hough the savageness of the assault, the deceased’s pain and injuries coupled with the disparity between defendant’s physical appearance and decedent’s presented a spectacle of brutality, still [the Kansas Supreme Court] said the manner of death was very ordinary in a fight of this type and lacked the unusual quality contemplated by the legislature.
Lange, 82 S.D. at 671-72, 152 N.W.2d at 638. This Court also cited to People v. Vollmer, which explained that “[t]o be ‘cruel and unusual’ the manner of commission of a homicide must have in it some aggravating element, something out of the ordinary, something shocking or barbaric.” 299 N.Y. 347, 87 N.E.2d 291, 293 (1949).
[¶ 32.] The killing of Marshall does not rise to the level of cruel and unusual. It simply does not approach the barbarity contemplated by this Court and others in their analyses of the definition of cruel and unusual. Both Knecht and Marshall were intoxicated. They were involved in an altercation while in the bar. After Knecht left the bar, he was attacked from behind by Marshall, and he claims he shot rapidly and sporadically to repel him. There was little “refinement or excess of cruelty sufficiently marked to approach barbarity.” Had Knecht shot Marshall so as to immobilize him and then continued to shoot him with the intent to inflict pain or torture, such facts could show a barbaric killing and one that is “sufficiently unique in fe-. rocity, duration and manner of accomplishment.” But such facts are not present here as he simply shot until Marshall fell.
[¶ 33.] Knecht’s counsel never argued to the jury that this death was not cruel and unusual; nor objected that the evidence was insufficient to sustain a finding *503that death was effected in a cruel and unusual manner. His counsel admitted at the habeas hearing that he never considered researching this issue and acknowledged that an argument may have existed on those grounds. Clearly, the failure to argue to the jury or object to the sufficiency of the evidence, cannot be classified as trial strategy. He had nothing to lose and everything to gain. Counsels’ performance was deficient.
[¶34.] Knecht was clearly prejudiced by his counsels’ failure. If Knecht had been able to substantiate his claim of -self-defense with expert testimony, there was nothing cruel or unusual about his conduct. A shooting done or started in self-defense is inconsistent with the definition of cruel and unusual.
[¶ 35.] While each count of ineffective assistance of counsel meets the Strickland standard, cumulatively, they present an even more compelling case. Had Knecht’s counsel obtained a forensic expert, they would have been able to bolster the theory of self-defense. Accordingly, they would have better been able to argue that this was a bar fight and not a cruel and unusual killing. Absent the errors by Knecht’s trial counsel, there is a reasonable probability that the jury would not have found him guilty under SDCL 22-16-15(2) because it was not cruel and unusual. It was simply the death of one of two intoxicated individuals from another bar fight.