Bear Stops v. U.S., CIV.97-3021.

• Decision Date: 27 February 2002
• Docket Number: No. CR 91-30042.,No. CIV.97-3021.,CIV.97-3021.,CR 91-30042.
• Parties: Kermit Oris BEAR STOPS, Petitioner v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of South Dakota

204 F.Supp.2d 1209

Kermit Oris BEAR STOPS, Petitioner v. UNITED STATES of America, Respondent.

No. CIV.97-3021.

No. CR 91-30042.

United States District Court, D. South Dakota, Central Division.

February 27, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Mikal G. Hanson, Assistant United States Attorney, Pierre, SD, for Plaintiff.

Bruce H. Ellison, Attorney at Law, Rapid City, SD, for Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE

KORNMANN, District Judge.

[¶ 1] Kermit Oris Bear Stops, defendant and petitioner, filed a motion (Doc. 291) pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. This Court referred the matter to U.S. Magistrate Judge Mark Moreno pursuant to 28 U.S.C. § 636(b)(1)(B). Judge Moreno caused to be filed on August 18, 2000, his report and recommendations for disposition (Doc. 314). Petitioner filed objections (Doc. 316) on September 7, 2000. The filing of objections would first appear to be too late. Because of irregularities in service and the application of Fed.R.Civ.P. §§ 6(a) and (c), the objections were timely filed. The Court has conducted a de novo review of the extensive record. References to the transcript will be TR followed by the page number.

[¶2] Petitioner's motion to vacate is based upon claims of ineffective assistance of trial and appellate counsel. To support a claim of ineffective assistance of counsel, thereby requiring a new trial, a two prong test must be met. First, it must be shown that counsel's performance was deficient, namely that counsel made errors so serious that counsel was not functioning as counsel guaranteed by the Sixth Amendment. Second, it must be shown that the deficient performance prejudiced the defense and that the errors were so serious as to deprive the defendant of a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 2071, 80 L.Ed.2d 674 (1984).

I. Severance.

[¶3] Petitioner asserts that his trial counsel was ineffective in failing to request a severance of the counts involving P.M. and B.B. and that the evidence involving P.M. "spilled over" to the counts involving B.B., depriving petitioner of a fair trial. Petitioner contends that, at a separate trial, the evidence admitted as to Count I involving P.M. (which conviction was ultimately reversed) would not have been admitted as to Counts II and III involving B.B.¹ Even if petitioner's counsel had requested a severance, there is no guarantee that he would have been granted one or that the evidence concerning the alleged sexual abuse of P.M. would not have been admitted in a separate trial on the counts involving B.B. Rather, it is a virtual certainty that a motion to sever would not have been granted.

The rule governing severance provides that once offenses have been properly joined, the district court may nonetheless order separate trials of the counts "[i]f it appears that a defendant or the government is prejudiced by a joinder of offenses." Fed.R.Crim.P. 14. "The decision to sever is within the sound discretion of the trial judge and the denial of a motion to sever is not subject to reversal absent a showing of real prejudice." United States v. Patterson, 20 F.3d 801, 805 (8th Cir.1994) (internal quotations omitted). Prejudice may result from a possibility that the jury might use evidence of one crime to infer guilt on the other or that the jury might cumulate the evidence to find guilt on all crimes when it would not have found guilt if the crimes were considered separately. Closs v. Leapley, 18 F.3d 574, 578 (8th Cir.1994). On the other hand, a defendant does not suffer any undue prejudice by a joint trial if the evidence is such that one crime would be probative and admissible at the defendant's separate trial of the other crime. Robaina, 39 F.3d at 861.

United States v. Davis, 103 F.3d 660, 676 (8th Cir.1996).

[¶4] "[A]lleged prejudicial spillover effect of evidence" is "not grounds for severance absent a showing that the jury will be unable to compartmentalize the evidence" as to each separate count. See United States v. Kime, 99 F.3d 870, 880 (8th Cir. 1996) (discussing alleged spillover effect on claim for severance of defendants in conspiracy case). The Eighth Circuit has already ruled in petitioner's direct appeal that "we will not presume that the jury did not properly consider each count independently." United States v. Bear Stops, 997 F.2d 451, 459 (8th Cir.1993).

[¶5] In evaluating a claim of ineffective assistance of counsel, the petitioner must "overcome a `strong presumption' that his counsel's actions constituted reasonable trial strategy under the circumstances." Sanders v. Trickey, 875 F.2d 205, 207 (8th Cir.1989), (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065). Petitioner's theory of the defense, as discerned from the trial transcript and from the appellate record, was that he did not commit acts upon either child and there was evidence that someone else committed acts on P.M., thus explaining the evidence of sexual abuse. He argued, successfully, to the Eighth Circuit that he should have been able to submit evidence to the jury of the specifics of a sexual assault upon P.M. by three boys. The Eighth Circuit agreed with petitioner that such evidence would lend credibility to petitioner's claim that someone else was the source of bloody underwear. The conviction concerning sexual abuse of P.M. was reversed. United States v. Bear Stops, 997 F.2d at 459.

[¶6] Counsel's trial strategy is clear from the record: try to convince the jury that petitioner was truthfully denying sexually abusing B.B. because the evidence strongly suggested that others may have been the source of the evidence of sexual abuse of P.M. Furthermore, petitioner elicited evidence that P.M. was sexually acting out upon B.B., thus explaining B.B's sexual knowledge and symptoms of sexual abuse. (TR 291) Assuming that petitioner was entitled to a separate trial and one was granted, how could petitioner in the case involving B.B. best attempt to defeat the claim of B.B. that petitioner had sexually abused him, taking into account the clear signs of sexual abuse being exhibited by B.B.? The answer was for petitioner to offer evidence in the case involving B.B. that P.M. had been sexually abused by others, causing P.M. to sexually act out on B.B. The trial judge may or may not have allowed these issues as to P.M. to be raised in B.B.'s case. In addition, if they were raised, the door might well have been opened to allow evidence as to P.M. that petitioner had also sexually abused P.M. A joint trial was the safest method for petitioner to explain B.B.'s case with reference to P.M. Petitioner now argues that trial counsel should have moved for a severance to prevent the evidence from the count involving P.M. to spill-over to the counts involving B.B. Petitioner cannot have it both ways. He earlier wanted a joint trial to allow evidence of his credibility on the count involving P.M. to spill-over to bolster his credibility as to the counts involving B.B. Now he argues that his counsel should have moved to sever those counts. Petitioner's assertion of ineffective assistance of counsel in failing to request a severance is contradicted by the record. The record reflects a very reasonable trial strategy in not requesting a severance. Petitioner has not shown that his trial counsel was deficient.

[¶7] Assuming for the sake of argument that failure to request a severance was unreasonable, it does not warrant setting aside the judgment if it had no effect upon it. The result of a proceeding can not be determined unreliable without a showing that there is a reasonable probability that the result would have been different but for the alleged error. Specifically, the question is whether there was an undermining of the confidence of the outcome. The ultimate focus of inquiry must be on the fundamental fairness of the proceeding. There are no mechanical standards to apply. For purposes of the standard of judicial review, it is noted that performance and prejudice components are mixed questions of law and fact. Strickland, supra. In order to prevail on his claim that failure to request a severance amounted to ineffective assistance of counsel, petitioner would have to show "clear prejudice." United States v. Long, 857 F.2d 436, 443 (8th Cir.1988). "Clear prejudice does not mean merely that a defendant's `chances for acquittal would have been better' with a separate trial. [H]e must demonstrate that a reasonable jury would have reached a different result in a separate trial, as opposed to a joint trial, because it could not be expected to consider separately the evidence [as to] each [count]." Id. (internal citations omitted). The evidence of defendant's guilt on Counts II and III involving B.B. was overwhelming. No exculpatory explanation was apparently available as to why B.B. was accusing petitioner of sexually abusing him and why B.B. was able to consistently describe that sexual abuse to a pediatrician and to a clinical social worker both orally, in drawings, and using anatomically correct dolls. Any "spilling," if it did occur, could not have been unfairly prejudicial because there was more than sufficient evidence to support conviction beyond a reasonable doubt as to the counts involving B.B. Petitioner has not demonstrated that a jury would have reached a different result in a separate trial. Petitioner has failed to meet his burden under the Strickland test as it relates to trial counsel's failure to request a severance.

[¶8] There is a final reason why counsel need not have moved for a severance. It would have been a futile act. See Fed. R.Crim.P. 8(a). Joinder of offenses is proper under Fed.R.Crim.P. 8(a) where the offenses charged "are of the same or similar character or are based upon the same act or transaction or on two or more acts or...