(dissenting).
The majority opinion recognizes that the failure to object to the testimony regarding Phyle being a suspect in criminal activity in North Dakota was inadequate legal assistance. This compounded with the failure to object to the testimony elicited from the same state witness, Sheriff Long, regarding Phyle’s refusal to be interviewed by the sheriff when arrested in Oklahoma leads to only one conclusion; namely, Phyle was denied his right to effective assistance of counsel. The sheriff’s testimony was as follows:
Q: Now, Sheriff Long, did you interview Ty Phyle when you picked him up down in Bartlesville, Oklahoma?
A: No I didn’t.
Q: And why didn’t you interview him?
A: We served the Brown County warrant on him when we picked him up. And a short time later we advised him of his rights. And he basically told us that he was gonna get ahold of an attorney and he was gonna get off this bum rap up here in Sisseton.
Q: And so did you interview him at that time?
A: No, I can’t interview somebody after they indicated they want an attorney. At least I don’t consider it proper.
It is inconceivable that this testimony has any relevance to proving that Phyle was guilty of armed robbery. If he says it was a bum rap, that is certainly consistent with the entry of a “not guilty” plea. This court held in State v. McBride, 296 N.W.2d 551 (S.D.1980), that a defendant was denied effective assistance of counsel where counsel failed to object to testimony of a deputy sheriff regarding defendant’s refusal to give a statement on the charged offense. We specifically stated:
The testimonial evidence was the result of questions by the prosecutor directed to the deputy sheriff who investigated the burglary. The refusal of a suspect to make a statement is not admissible evidence. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). By his inaction, appellant’s counsel allowed evidence to reach the jury which would tend to equate appellant’s silence with' guilt. Again, we cannot perceive any basis for appellant’s counsel’s refusal to act in accordance with this inadmissible testimony.
Id. at 555.
If a law enforcement officer interviews a suspect or a person charged with a crime, does not that colloquy amount to a statement being given by the individual interrogated which, if after proper advisement of rights, can be used by the prosecution in its case-in-chief or for impeachment purposes. Further, what relevance does what happened when Phyle was arrested have to do with the charged crime. The only logical purpose of this testimony was to show that Phyle, when caught, exercised his right to remain silent and to have an attorney. This is part of our criminal procedure and has never been deemed to be an unreasonable request. This testimony obviously allowed the jury to equate silence (not consenting to be interviewed) with guilt.
When looking at the totality of the claims of inadequate assistance in this case, it is mystifying that this record does not contain the testimony of trial defense counsel describing his rationale for the trial tactics employed in the defense of the case. I cannot assume what they were unless I can review them from the “horse’s mouth.” Based on this record, I would adhere to the precedent established in McBride, where we concluded as follows:
All men charged with crimes are entitled to complete equality at law and appellant *438was not afforded that equality. Counsel’s inaction regarding potential objections, jury instructions, and motions support this conclusion. Although each separate inaction in and of itself may not constitute inadequate representation, taken together, they created adversarial mediocrity which infested appellant’s entire defense. Such legal quality cannot be said to be more than a superficial effort on the part of appellant's counsel. By being provided with no more than perfunctory and causal representation, appellant’s right to adequate legal counsel and a fair trial has been violated.
Id. at 555-56 (emphasis added).
In this case, each claimed error might not have equated to ineffective assistance of counsel. The totality of the claimed errors can lead to only one conclusion: this was a mediocre defense which was not adequate and effective as required by our constitution and prior decisions.
I would reverse the habeas court.