Boykin v. Leapley, 17214

• Decision Date: 29 May 1991
• Docket Number: No. 17214,17214
• Citation: 471 N.W.2d 165
• Parties: Jimmy Lee BOYKIN, Appellant, v. Walter LEAPLEY, Warden of the South Dakota State Penitentiary, Appellee.
• Court: South Dakota Supreme Court

Page 165

471 N.W.2d 165

Jimmy Lee BOYKIN, Appellant, v. Walter LEAPLEY, Warden of the South Dakota State

Penitentiary, Appellee.

No. 17214.

Supreme Court of South Dakota.

Argued Feb. 11, 1991.

Decided May 29, 1991.

Michael S. McKnight of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for appellant.

Roger A. Tellinghuisen, Atty. Gen., Jeffrey P. Hallem, Asst. Atty. Gen., Pierre, for appellee.

ZINTER, Circuit Judge.

Jimmy Lee Boykin (Boykin) appeals from the dismissal of his petition for habeas corpus. We affirm.

On July 21, 1986, a Minnehaha County grand jury returned an indictment against Boykin and Howard Joseph Adams (Adams) as a result of the homicide of DeWayne Jensen. The indictment charged Boykin and Adams with: Count I, murder in the first degree (SDCL 22-16-4); Count II, murder in the first degree committed in the course of another felony (SDCL 22-16-4); Count III, robbery in the first degree (SDCL 22-30-1 and SDCL 22-30-6); and Count IV, kidnapping (SDCL 22-19-1). Adams was tried first. On December 17, 1986, a Minnehaha County jury found Adams guilty of Counts I, III and IV. See, State v. Adams, 418 N.W.2d 618 (S.D.1988).

Boykin was represented by two court-appointed attorneys throughout his pretrial, trial and direct appeal proceedings. ¹ Boykin's trial attorneys moved for a change of venue because of extensive media coverage of the homicide and Adams' trial. An opinion survey and two jury questionnaires were prepared. One questionnaire elicited extensive information concerning each prospective juror's knowledge of the pretrial publicity and their opinions and biases regarding Boykin. The opinion survey sought the same information from 601 Minnehaha County residents. The trial judge considered the opinion survey and questionnaires and denied the motion for change of venue. The trial judge noted, however, that if voir dire revealed a fair jury would not be obtained, a change of venue could be granted. A Minnehaha County jury was empaneled. On January 30, 1987, Boykin was found guilty of Counts I, III and IV and not guilty on Count II of the indictment. Boykin's convictions were affirmed by this court on direct appeal. See, State v. Boykin, 432 N.W.2d 60 (S.D.1988).

Boykin subsequently commenced this habeas corpus proceeding to have his conviction vacated. The habeas court entered findings of fact, conclusions of law and a judgment which dismissed Boykin's petition. Boykin raises three issues on appeal.

I

Boykin first contends that he was denied his constitutional right to effective assistance of counsel in his direct appeal because his attorneys failed to include the transcript of the jury voir dire, the opinion survey and the jury questionnaires in the appellate record. In his direct appeal we upheld the trial court's denial of the motion for change of venue stating:

'Pretrial publicity alone is not enough to deny [a defendant] a fair trial or, in other words, to warrant a change of venue.' [citations omitted] Qualified jurors may have some knowledge of the facts and issues involved without burdening a defendant's Sixth Amendment rights. [citations omitted] Boykin has not shown unfair press coverage, and failed to transcribe the voir dire of potential jurors. A public opinion survey authorized by the trial court was also not preserved in this record by Boykin. As voir dire is the better forum for ascertaining the existence of hostility towards the accused [citation omitted] and no record exists for us to review, we cannot conclude that Boykin has suffered any prejudice. Appellant, as the party claiming error, had the responsibility to insure that a record was made. [citation omitted] The settled record is the sole evidence of the circuit court's proceedings and, when confronted with an incomplete record, our presumption is that the circuit court acted properly.

Boykin, 432 N.W.2d at 68.

At the hearing on Boykin's petition, the habeas court took judicial notice of the files in Boykin's prior criminal proceeding. The court also supplemented the record with the results of the opinion survey and the transcript of the jury voir dire. ² The habeas court reviewed the supplemented trial record and concluded that, assuming Boykin's attorneys' appellate performance was deficient, Boykin was not prejudiced because there was no reasonable probability that the venue issue would have been decided differently had this court been able to review the omitted evidence in Boykin's direct appeal. We agree.

In analyzing ineffective assistance of counsel claims we have adopted the two part standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Gross v. Solem, 446 N.W.2d 49 (S.D.1989); Roden v. Solem, 431 N.W.2d 665 (S.D.1988); Luna v. Solem, 411 N.W.2d 656 (S.D.1987); Jones v. State, 353 N.W.2d 781 (S.D.1984).

To reverse a conviction on ineffective assistance grounds, a defendant must show: 1) that counsel's performance was deficient; and 2) that the deficient performance prejudiced the defense. The test for prejudice is whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

Gross v. Solem, supra at 51. This two part standard applies whether the deficient acts occurred at trial or on appeal. Anderson v. State, 373 N.W.2d 438 (S.D.1985). Since a defendant must satisfy both standards, we need not determine whether counsels' performance was deficient before examining the prejudice suffered by the defendant. Strickland, supra.

We first proceed to determine whether Boykin suffered any prejudice as a result of his appellate attorneys' performance. In Boykin's direct appeal, we affirmed the trial court's denial of the motion for change of venue because the opinion survey and the transcript of voir dire were not in the record. Those materials have now been included in the record. Our review of the omitted materials leads us to again conclude that the trial court acted properly in denying the motion.

It is well established that a decision on a motion for change of venue is within the sound discretion of the trial court, and this court will not disturb that decision unless there is a clear abuse of discretion. State v. Weatherford, 416 N.W.2d 47 (S.D.1987). In State v. Martin, 449 N.W.2d 29, 34 (S.D.1989) we stated that The test for change of venue is prejudice in the minds of the county residents sufficient to raise a reasonable apprehension that the accused will not receive a fair and impartial trial. State v. Lohnes, 432 N.W.2d 77 (S.D.1988); State v. Brandenburg, 344 N.W.2d 702 (S.D.1984). We presume the defendant can receive a fair trial in the county where the offense was committed. Lohnes, supra; Weatherford, supra. Pretrial publicity alone is not enough to deny a fair trial or, to warrant a change of venue. Weatherford, supra; State v. Luna, 378 N.W.2d 229 (S.D.1985). Courts have acknowledged that prospective jurors will have some knowledge of pending criminal cases by the pervasive influence of the communications media. Weatherford, supra.

There must be additional evidence tending to show that such publicity was so prejudicial as to prevent the defendant from receiving a fair and impartial trial in the county. Id; Brandenburg, supra; United States v. Buttorff, 572 F.2d 619 (8th Cir.1978) cert. denied 437 U.S. 906, 98 S.Ct. 3095, 57 L.Ed.2d 1136 (1978).

We have also stated that voir dire examination is the better forum for ascertaining the existence of hostility towards the accused. State v. Reiman, 284 N.W.2d 860 (S.D.1979); Boykin, supra.

Here, the voir dire examination does not reveal that pretrial publicity prevented Boykin from receiving a fair trial in Minnehaha County. The court and counsel used the detailed juror questionnaires to individually examine each potential juror concerning pretrial publicity and prejudice. Of sixty-five potential jurors, ten were challenged for cause because of preconceived opinions or impressions of Boykin's guilt. Eight of those challenged were excused and the remaining two jurors said they could set aside any preconceived impressions and fairly decide the case. Boykin's attorneys also exercised twenty peremptory challenges, and they did not indicate to the trial court that there were other particular jurors remaining that counsel desired to remove by the exercise of peremptory challenges. Of the jurors actually selected, several had heard very little about the matter and no one indicated they had formed any opinion of Boykin's guilt. All the jurors selected indicated they could set aside any matters they had heard in the media and decide the case solely upon the evidence presented in the trial.

Despite the voir dire record, Boykin argues that the opinion survey established that he was unable to get a fair trial in Minnehaha County. The opinion survey, however, only concluded that it would be "difficult" to get a fair trial in Minnehaha County. The survey indicated that Boykin would need the ability to challenge twenty-five percent of the prospective jurors to get a fair trial. Here, eight of sixty-five prospective jurors were removed for cause because of preconceived...