Black v. Class

• Decision Date: 26 February 1997
• Docket Number: No. 19599,19599
• Citation: 560 N.W.2d 544,1997 SD 22
• Parties: Bradley Dean BLACK, Appellant, v. Joseph P. CLASS, Warden, South Dakota State Penitentiary, Appellee.
• Court: South Dakota Supreme Court

Page 544

560 N.W.2d 544

1997 SD 22

Bradley Dean BLACK, Appellant, v. Joseph P. CLASS, Warden, South Dakota State Penitentiary, Appellee.

No. 19599.

Supreme Court of South Dakota.

Argued Jan. 15, 1997.

Decided Feb. 26, 1997.

Rita Allen of Hagen, Wilka & Archer, P.C., Sioux Falls, for Appellant.

Mark Barnett, Attorney General, Frank E. Geaghan, Assistant Attorney General, Pierre, for Appellee.

GILBERTSON, Justice.

¶1 Bradley Dean Black (Black) appeals the denial of his application for a writ of habeas corpus. We reverse and remand for a new trial.

FACTS AND PROCEDURE

¶2 The facts are detailed in State v. Black, 494 N.W.2d 377 (S.D.1993) (Black I ). In that case we affirmed Black's conviction for the first-degree murder of Robert Earl Hymore (Hymore). Black was sentenced to life imprisonment without possibility of parole. Black's sole claim on direct appeal was that the trial court erred in refusing to instruct the jury on manslaughter as a lesser-included offense to the first-degree manslaughter charge. We held that the trial court did not err in refusing Black's lesser-included offense instruction. Black I, 494 N.W.2d at 381. However, the Court was divided on this issue and Black's petition for rehearing was granted. On rehearing, Black's conviction was once again affirmed. State v. Black, 506 N.W.2d 738 (S.D.1993) (Black II ). Therein, we held that although the trial court had erroneously determined that first-degree manslaughter did not pass the legal prong of the two-pronged lesser-included offense test, and that there was sufficient evidence to give such an instruction under the factual prong of the test, "a rational jury would have found the evidence supported only the offense of which he was convicted." Black II, 506 N.W.2d at 744.

¶3 We now review Black's appeal from the denial of his application for writ of habeas corpus. He raises four separate issues in this appeal:

1. Whether the prosecution's nondisclosure of Hymore's criminal record violated Black's due process rights entitling him to habeas corpus relief?

2. Whether the habeas court abused its discretion in excluding Hymore's rap sheet at the habeas corpus hearing?

3. Whether the failure to instruct the jury on first-degree manslaughter at Black's murder trial violated Black's due process rights and rights to a jury trial under the United States and South Dakota constitutions?

4. Whether defense counsel was ineffective in failing to interview and call as witnesses Gary Dodd and Steven Dodd, and by eliciting damaging testimony regarding Kelli Clark and Joe Ebert's relationship?

SCOPE AND STANDARD OF REVIEW

¶4 The remedy in a habeas proceeding is in the nature of a collateral attack on a final judgment, therefore, our scope of review is limited. Jenner v. Leapley, 521 N.W.2d 422, 425 (S.D.1994); Gregory v. Solem, 449 N.W.2d 827, 829 (S.D.1989). It is not a substitute for direct review. Loop v. Class, 1996 SD 107, p 11, 554 N.W.2d 189, 191.

Habeas corpus can be used only to review (1) whether the court had jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) in certain cases, whether an incarcerated defendant has been deprived of basic constitutional rights. For purposes of habeas corpus, constitutional violations in a criminal case deprive the trial court of jurisdiction.

St. Cloud v. Leapley, 521 N.W.2d 118, 121 (S.D.1994) (St. Cloud III ) (internal citations omitted).

¶5 On habeas review, the petitioner has the initial burden to prove by a preponderance of the evidence that he is entitled to relief. Johnson v. Zerbst, 304 U.S. 458, 469, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461, 1469 (1938); Loop, 1996 SD 107, p 14, 554 N.W.2d at 191; Two Eagle v. Leapley, 522 N.W.2d 765, 768 (S.D.1994). The habeas court's findings are given "considerable deference" and we will not reverse these findings unless they are clearly erroneous. St. Cloud III, 521 N.W.2d at 121; McCafferty v. Solem, 449 N.W.2d 590, 592 (S.D.1989); Satter v. Solem, 422 N.W.2d 425 (S.D.1988), cert. denied sub nom. Rist v. Satter, 490 U.S. 1091, 109 S.Ct. 2432, 104 L.Ed.2d 989 (1989).

ANALYSIS AND DECISION

¶6 1. Whether the prosecution's nondisclosure of Hymore's criminal record violated Black's due process rights entitling him to habeas corpus relief?

¶7 Black's defense at trial was one of self-defense to an assault. He claimed that on December 6, 1990, the victim, Hymore, made homosexual advances toward him which escalated into a struggle over a gun in Black's vehicle. According to Black, he gained control of the gun and, although he did not later recall it, pulled the trigger firing four shots into the back of Hymore's head. Both men had been drinking and gambling in a bar prior to the fatal shooting, and exited the bar together to go target shooting. Black I, 494 N.W.2d at 378.

¶8 Prior to trial, during a February 13, 1991 motions hearing, Black's defense counsel requested Hymore's criminal records as part of discovery materials in preparing Black's defense. Black hoped to show at trial Hymore's propensity for violent behavior when he was intoxicated, evidence he believed would support his version of the facts and his proffered defense. The State objected to the request on grounds of relevancy. The trial court expressed some agreement at first, but orally ordered the State to produce the records along with other discovery items requested by Black's attorney. The then-state's attorney assured the trial court it could obtain Hymore's criminal records with reasonable effort. ¹

¶9 When earlier addressing a request for similar type records of another witness in the case, the state's attorney had informed the trial court it needed a specific, written order directing it to provide the information. The state's attorney noted this written order was required due to a change in the system which the State referred to as a "Triple I." ² The state's attorney informed the trial court the Triple I required the State to make certifications to gain access to information in the State computer system. The trial court stated that written order would be done "on a separate sheet." At the conclusion of the hearing, the trial court orally ordered the state's attorney to deliver all discovery materials addressed during the February hearing to Black by March 1. At no time did the State attempt to appeal this order of the trial court.

¶10 Regardless of these statements on the record, no written order was prepared immediately following the February hearing and no discovery material regarding Hymore's criminal records was forthcoming from the State. Black moved for dismissal or continuance based on alleged lack of good faith by the State in supplying him with discovery material in a timely manner. At a March 7, 1991 hearing, the trial court denied Black's motion for dismissal, but granted his motion for continuance, ruling that trial in the matter would commence May 13, 1991. Four days before trial, on May 9, the trial court signed the findings, conclusions, and order submitted to it by the state's attorney regarding the parties' pre-trial motions. Paragraph 7 of that order provided: "That the Motion for Discovery by the Defendant be, and the same hereby is, denied, and the Court's prior Orders based upon the hearing on February 13, 1991, together with the original Discovery Order entered by this Court on its own motion remain in effect [.]" (emphasis added).

¶11 Nevertheless, Hymore's criminal records were not delivered to Black's defense counsel prior to the conclusion of his jury trial. In fact, Hymore's criminal records were not delivered at all by the State. Hymore's criminal record and rap sheet were obtained by Black's habeas counsel independently of the State in preparation for the habeas hearing, four and one-half years after Black's trial for first-degree murder.

¶12 Black's defense counsel testified at the habeas hearing that, throughout the trial, he believed Hymore's criminal records included nothing more than one or two driving under the influence (DUI) convictions and that Hymore had recently completed a jail sentence for DUI and been released. A private investigator assigned to assist in Black's defense was advised by a Lincoln County sheriff's deputy that Hymore was a "passive man that would avoid confrontations." In fact, Hymore's records demonstrated the following:

1. In 1981, in Florida, Hymore broke a front window to gain entry to his wife's home when entry was refused him. On that same day, while intoxicated, Hymore fired shots in his wife's neighborhood, a busy residential area. When officers attempted to talk to him, Hymore became abusive, used profanity and attempted to kick out the window of the police vehicle after being placed therein. During booking procedures for the above, Hymore assaulted a police officer with his belt.

2. In 1982, Hymore was found guilty in Nebraska of intentional or reckless damage to another's property and disturbing the peace. Abuse of alcohol was involved and Hymore was ordered by the court to undergo alcohol evaluation and treatment and attend AA meetings as a condition of his probation.

3. In 1986, Hymore was charged with burglary resulting from his entry into a home in Sioux Falls, South Dakota in 1986. Once inside, he attempted to remove the pants of the woman who resided there, whom Hymore had just given a ride home. Hymore left when she said she was going for help. He was found guilty of this charge.

4. He was also arrested in Sioux Falls in 1986 and 1987 for disturbing the peace; the police reports for both of these arrests indicate he was extremely intoxicated at the time. Hymore was found guilty in both cases.

5. Hymore's most recent arrest and conviction indicated in these records was in 1989 in Sioux Falls for disturbing the peace. The police record indicates he was disorderly and very abusive. This is just one year prior to the fatal shooting underlying this...