(dissenting in part and concurring in part).
Trial counsel obviously was taking the position that the only defense available in defending Primeaux was insanity. I reach this conclusion based on the fact that after receiving Dr. Bean’s unfavorable routine evaluation report, counsel elected to attempt to prove the defense through eyewitness lay persons. This could easily be construed as a reasonable trial strategy under the circumstances. The troubling aspect of the defense, in my mind, surfaces during State’s rebuttal testimony.
The prosecution called Dr. Bean, who had been employed by the defense team, as its witness to opine that Primeaux was sane at the time of the murder. While Dr. Bean was being examined, the defense stipulated on the record to his qualifications as an expert witness. This in and of itself is not ineffective assistance, but we must go on. Next, the record reflects the following colloquy between the prosecutor and Dr. Bean:
Q Did there come a time when you had an occasion to visit with Mr. Pri-meaux?
A Yes.
Q When was that?
A That was on November 18th, 1981.
Q November when?
A November 18th, 1981.
Q And did that occasion come about as a result of an order by this court?
A There was an order. That was not my understanding of the reason for the visit.
Q Okay, what was your understanding?
A I had been contacted by his attorney to conduct a psychiatric interview and evaluation. (Emphasis supplied.)
Counsel interjected no objection to this disclosure to the jury that Dr. Bean was originally the defense expert, nor was any motion in limine presented to the court prior to trial requesting the trial court to direct the prosecution to refrain from disclosing such fact to the jury.
This court has previously ruled in State Highway Comm’n v. Earl, 82 S.D. 139, 148, 143 N.W.2d 88, 92 (1966), on use of a party’s expert by the opposing party during trial, and held as follows:
Accordingly, it would appear to be settled law in South Dakota that an expert witness, such as an appraiser, may be compelled, upon payment or tender of expert witness fees and expenses, to express his opinion of value formed while appraising property under the employment for the party against whom the testimony is offered. The party calling *272such expert makes him his witness, therefore, the fact of prior employment or payment by the opposite party is not relevant or material. (Emphasis supplied.)
In Rapid City v. Baron, 88 S.D. 693, 227 N.W.2d 617 (1975), this court while discussing the above quote from Earl, stated that it saw little or no probative value in the admission of such evidence of prior employment, but if any value exists it is “ ‘outweighed by the evidentiary counterfactors of prejudice.’ ” Id. at 697, 227 N.W.2d at 619 (quoting Department of Pub. Works & Bldgs. v. Guerine, 19 Ill.App.3d 509, 311 N.E.2d 722, 725-26 (1974)).
If it is prejudicial to disclose to a jury the prior employment of an expert by the opposing party in a condemnation case, the only logical conclusion has to be that such a disclosure amounts to prejudice in the prosecution of a murder case. Therefore, since this prejudicial testimony from Dr. Bean was admitted without objection from defense counsel, I can only conclude that this constituted representation which fell below the reasonableness standard of Strickland. Allowing this testimony to go before the jury had the effect of providing the final blow in knocking the pins out from under an already weakened defense. As to the second prong of Strickland, this prejudicial testimony denied Primeaux a fair trial which he was entitled to receive and definitely was not a result which can be diagnosed as reliable.
This court held in State v. McBride, 296 N.W.2d 551 (S.D.1980), that an individual charged with a crime is entitled to complete equality under our laws. This right to equality was jeopardized where objectionable, irrelevant evidence was allowed to go before the jury. In this case, Primeaux was prejudiced by the testimony of Dr. Bean that he was originally retained by Primeaux to evaluate him in regards to the insanity defense.
I concur with the majority’s holding on Part II, but would add that my position would be different if the request for expert assistance had been for the employment of an attorney to render an opinion on the subject at issue.