(dissenting).
It is obvious that the issues of this case were not presented, nor under consideration, *621in Olesen’s first appeal found at 443 N.W.2d 8 (S.D.1989). We have before us, a totally different legal proceeding, by its very nature, with several issues that were never presented to this Court in 1989. It is not my intent to indulge in legal generosity so as to soften the criticism of Olesen or this author towards his trial counsel, Keith Tidball. Our quest should be from a standpoint of legal review and not to achieve a result in this habeas corpus proceeding which would buttress our holding in the first appeal, thus relieving Mr. Tidball of his inadequate representation of Olesen. Cicero once proclaimed that “... nothing is generous if it is not at the same time just.” We should seek justice in this case and not cover up the costly errors of attorney Tidball in the trial of this case.
When I wrote my special concurrence in the first appeal, I was simply not aware of the many failures by attorney Tidball to represent Olesen in a competent manner; nor were the other members of this Court aware. We can only adjudicate upon those issues which are briefed as issues. Graham v. State, 328 N.W.2d 254 (S.D.1982). This Court should not focus “on mere outcome determination,” as expressed in Lockhart v. Fretwell, 506 U.S. -, -, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993). Tidball’s errors, detailed below, were so serious that they deprived Olesen of a fair trial. For that conclusive reason, as set forth more particularly herein, I dissent to the majority opinion.
On July 21, 1993, this Court entered an extensive opinion on the professional conduct of attorney Tidball. Matter of Tidball, 503 N.W.2d 850 (S.D.1993). He was suspended from the practice of law for a period of three years. His serious ethical breaches included using his clients’ money, locking up his clients’ money in a safe to avoid his own creditors (he was fearful of depositing his client’s money in a bank), eo-mingling his funds with those of his clients, failing to have a trust account, and wrongfully appropriating money within a settlement, then converting it to his own use. When Olesen was tried in Haakon County, South Dakota, with Tidball as his defense counsel, it is apparent, by reviewing all documents and pleadings submitted as evidence in his disciplinary proceeding before this Court, that Tidball was an absolute alcoholic — practicing law — in the state of South Dakota for many years, including the time-frame when he defended Olesen.
Justice Amundson, who writes this decision, wrote in Tidball that Tidball was an attorney “... who was operating with an impotent, deadened, crippled, and disabled mind during the periods in question.” Tidball, 503 N.W.2d at 859 (Amundson, J. dissenting). This special writing was all tied into Tidball’s alcoholism over a period of many years. By reading the majority opinion in the disciplinary action, it becomes obvious that his alcoholism was existent in the latter 1980s and spilled over into the early 1990s.
Under our holding in State v. Cody, 322 N.W.2d 11 (S.D.1982), I take judicial notice of the extensive showing made by Tidball, submitted to this Court in April, 1993. Further reference is made to two South Dakota statutes, SDCL 19-10-3 and SDCL 19-10-6.* Numerous affidavits and documents were filed upon Tidball’s behalf reflecting his alcoholism, while he was practicing law. I do not have to vote or think in a vacuum. In Cody, 322 N.W.2d at 12, fn. 2, 31 C.J.S. Evidence § 50(2) (1964) is sourced for the proposition that a court may generally take notice of its own records or prior proceedings.
Tidball’s affidavit reflects that he began using alcohol beverages when he was a- small child. He expressed, “I regularly, during the entire time since my admission to the Bar, used whiskey and believed that it had no harmful effect on my or my ability to do my work. Despite such previous belief it is now clear to me that my increasing consumption of whiskey was compounding my problems rather than helping me resolve them.” (Emphasis supplied mine.) Later, he expressed, “I was entirely dependent on whiskey and irrationally believed that if I just ignored the problems, I would never have to deal with them.” (Emphasis supplied mine.) *622In his affidavit, he also admits to alcohol dependence and and threw himself on the mercy of this Court. He even agreed, before the suspension of three years, to close down his private practice and to sell his library. A March 7,1993, report filed in the disciplinary proceedings, from the Chief of the Psychology Service Department of Veteran’s Affairs, Ft. Meade, South Dakota, which Tidball attached to his sworn affidavit, reflected: “A lengthy history of alcohol abuse.” Tidball also had “an adjustment disorder with depressed mood secondary to a financial problem.” He suffered from “depression,” according to the report. The discharge summary from the Veteran’s Administration, which Tidball also attached to his sworn affidavit, expresses: “[Tidball] stated that he has a 5Jp year history of sporadic alcohol abuse and this is his first treatment.” (Emphasis supplied mine.) When going back and reading over the disciplinary proceedings, it becomes obvious to this writer as to why Tidball misfired in his defense of Olesen.
In my opinion, the result of this trial is unreliable for several reasons. An example of his inadequate preparation for trial was interviewing defense witnesses at the courthouse, for the first time, during the trial. We cannot say such action is reasonably related to a strategic decision. Phyle v. Leapley, 491 N.W.2d 429 (S.D.1992). Accord Roden v. Solem, 431 N.W.2d 665 (S.D.1988). It is preposterous to assume that any good practicing defense lawyer would wait until the trial to interview his witnesses for the first time! Such preparation falls below an objective standard of reasonableness. Note, this Court recently expressed such a standard in Iron Shell v. Leapley, 503 N.W.2d 868 (S.D.1993).
For this reason alone, Olesen is entitled to a new trial. A fair trial. A trial where his witnesses are interviewed in advance of the trial. One of the defense witnesses, Curtis Mills, testified in this habeas corpus hearing that he had an opinion regarding L.S.’ untruthfulness; he testified he was available at trial but was never asked that question as a witness. Mills testified he was staying at a motel room in Philip (situs of the trial) during the entire trial; Tidball, he testified, never met with him or talked to him. Had he been interviewed and his testimony discussed with Tidball, he testified he would have been prepared to testify and would have been a better witness.
One Tom Tassler testified in the habeas corpus proceeding as did his wife Sandy. She testified the criminal trial was in progress when Tidball talked to her and it was for only a few minutes. Tom testified he had an opinion of the lack of truthfulness of L.S., but Tidball never met with him and never called him as a witness! Two witnesses, Irene Oedekoven and Roy Olesen, testified that Tidball never told them (before they took the stand) what questions would be asked of them; furthermore, any preparation was very minimal. A competent defense lawyer would not neglect to thoroughly interview his ■witnesses before putting them on the witness stand!
No objection was made by defense counsel to the following question asked of a social worker (State’s expert) during trial:
Q. Now, based upon your education, your experience in the area of working with sexually abused people and all the time that you have spent with [L.S.], do you have an opinion as to whether or not [L.S.] would fabricate a story involving sexual abuse?
A. No, she would not.
Such a question was highly objectionable. United States v. Azure, 801 F.2d 336 (8th Cir.1986). Tidball should have immediately objected but he did not. Assistant Attorney General Campbell testified he probably would have objected to this question; Tidball could not recollect why he did not. The inference was clear: You, the jury, should believe L.S. because Tapscott, the social worker, believed her. State’s Attorney Barnett testified he had an alternative question to ask if objection was made to the question. Credibility of the alleged victim was the key to the case. The social worker’s testimony was elicited to bolster the key witnesses’ testimony. She usurped the function of the jury which is to determine the facts. Again, this is not trial strategy; rather, it is ineom-petency. This Court should not condone such trial practice.
*623Olesen was denied effective assistant of counsel, resulting in a fundamentally unfair proceeding. Lockhart, 506 U.S. at -, 113 S.Ct. at 842-43. Unfortunately, there was another costly error.
Because of the State’s emphasis on the testimony of L.S., her lack of credibility was important to Olesen’s defense. Grand Jury transcripts reveal that L.S. changed her sworn testimony concerning the alleged sexual contact. Olesen’s attorney was well aware of these prior inconsistent statements. Nevertheless, he completely failed to impeach her credibility at trial. In a case lacking physical evidence, the failure of defense counsel to impeach a purported victim’s detailed inconsistencies is devastating. A reasonable and prudent lawyer would not have avoided cross-examination on a winning point, namely, a prior inconsistent statement made under oath. Tidball knew about these inconsistent statements as he had the transcript and was aware of the conflicting stories. During the habeas corpus hearing, Tid-ball testified that his most important and potentially effective strategy was to impeach L.S. The statements she made, under oath, to the Grand Jury, were far different than the statements that she made to the jury which convicted Olesen. Yet, astoundingly, she was never cross-examined on the inconsistencies. Why — why—I ask? Cross-examination is like a sharp knife, for it cuts to the quick of the truth. It is the greatest weapon that a defense lawyer has to get to the truth of the facts and the veracity of the witness. Nothing was to be gained by Tidball failing to cross-examine on this critical aspect of the defense. By footnote 3, the majority writer asserts that the life-time alcoholism of Tid-ball is immaterial because it was not advocated below; ineffective representation was vigorously asserted below and this writer has furnished the background by Tidball’s own sworn statement as to why he was ineffective: His dependence was upon whiskey, not the law. By his own statements, he was an alcoholic consuming alcohol from the time he was a little boy!
This dissenter can envision no trial tactic justified by defense counsel’s neglect in highlighting weaknesses of damaging testimony herein. Due to the nature of the inconsistent details by the alleged victim, there is a reasonable probability that, but for ineffective representation, the verdict would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Luna v. Solem, 411 N.W.2d 656 (S.D.1987). In Finding of Fact No. 8 of the circuit court, the circuit court expressed that “... defense counsel properly prepared all such witnesses for trial based upon their knowledge of the pertinent facts in petitioner’s case.” This Finding of Fact was clearly erroneous, under this record. Tidball even acknowledged at the habeas hearing that his approach on this subject did not go as well as he had hoped for at the trial. If he had sat down, before trial, and professionally met with and prepared these witnesses, it is my opinion that the case for the defense would have gone better. Because of this erroneous Finding of Fact, the Conclusion of Law (that Tidball’s presentation was anything other than adequate) is simply unsupported in fact. It is interesting to note that at the habeas hearing, State’s Attorney Barnett testified that he had to reluctantly agree that these unsophisticated witnesses unquestionably needed more preparation. I earnestly suggest that based upon the disciplinary proceeding reflecting that Tidball was an alcoholic for a long period of time, plus the record in the habeas corpus proceeding, the habeas court should be reversed and this case should be remanded for a new trial — a fair trial. Thereby, we would serve the best interests of justice by promoting good quality in its administration.
Why this earnest dissent now? Remember: Under South Dakota law, habeas corpus proceedings, concerning claims of ineffective assistance, are preferably heard therein — not the appeal in chief. State v. Fender, 504 N.W.2d 858 (S.D.1993).
As it stands now, the result cannot be described as reliable. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Hopfinger v. Leapley, 511 N.W.2d 845, 847 (S.D.1994).
Here, a truth exists. We have a manifest usurpation of a constitutional right. Only judicial blinders can obscure it.
The former statute recites: “A court may take judicial notice, whether requested or not.” The latter statute provides: "Judicial notice may be taken at any stage of the proceeding."