Boyles v. Weber

• Citation: 2004 SD 31,677 N.W.2d 531
• Decision Date: 03 March 2004
• Docket Number: No. 22743.,22743.
• Parties: Jason BOYLES, Petitioner and Appellant, v. Douglas WEBER, Warden South Dakota State Penitentiary, Respondent and Appellee.
• Court: Supreme Court of South Dakota

677 N.W.2d 531

2004 SD 31

Jason BOYLES, Petitioner and Appellant, v. Douglas WEBER, Warden South Dakota State Penitentiary, Respondent and Appellee.

No. 22743.

Supreme Court of South Dakota.

Argued January 13, 2004.

Decided March 3, 2004.

Bruce Ellison, Rapid City, for petitioner and appellant.

Lawrence E. Long, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, for respondent and appellee.

SABERS, Justice.

[¶ 1.] Petitioner Jason Boyles appeals from findings of fact, conclusions of law and order issued by the habeas court denying his application for writ of habeas corpus. Boyles argues 1) the habeas court erred in denying his motion for a new trial based on newly discovered evidence; and 2) his trial and appellate counsel were ineffective.

FACTS

[¶ 2.] After two trials, the first of which ended with a hung jury, Boyles was convicted of Second Degree Murder. The facts of that case and conviction are detailed in our decision affirming the conviction in State v. Boyles, 1997 SD 99, 567 N.W.2d 856.

[¶ 3.] Early on the morning of August 10, 1995, after an evening of drinking, Boyles and Harvi Lynn Sharp Butte were traveling south of White River when they came upon Ronald Stranger Horse. Stranger Horse was walking alongside the road. According to Sharp Butte, they discussed whether they should offer him a ride, but Boyles decided not to. Instead, he turned the car around, sped up, said, "watch this," and ran Stranger Horse over from behind.¹ Stranger Horse flew through the air, struck the passenger side windshield, bounced off the top of the car, struck the rear windshield and flew into the ditch. It was estimated that at the time of impact, the car was traveling between 60 and 65 miles per hour. There were no marks to indicate that the vehicle attempted to stop or take any evasive action before striking Stranger Horse.

[¶ 4.] Boyles suffered from alcohol and trauma induced amnesia and could remember nothing from the incident. He underwent forensic hypnosis performed by Dr. Mathias E. Stricherz. Although the videotape of his hypnosis was permitted at his first trial, the trial court limited admission at the second trial. The videotape was not shown to the second jury, but Dr. Stricherz was permitted to testify to what Boyles said under hypnosis.² According to Boyles' hypnotically induced memory, Sharp Butte was driving the car at the time it struck Stranger Horse. At both trials, the only testifying eye witness to the crime was Sharp Butte and her veracity was extensively attacked by the defense. Boyles was convicted, he appealed to this Court and we affirmed his conviction.

[¶ 5.] On February 26, 2002, Boyles filed an Application for Writ of Habeas Corpus. The habeas court held an evidentiary hearing on October 3, 2002. Boyles argued that he was entitled to a new trial based on newly discovered evidence. He called a number of witnesses and introduced several affidavits. The witnesses testified either that they heard Sharp Butte admit to being the driver or they saw her driving Boyles' car on the morning Stranger Horse was killed. The habeas court found that the witnesses were not credible because several were either friends or relatives of Boyles and "many" had been prosecuted by, and held a personal dislike for the State's Attorney. The court also noted that several witnesses knew about the case at the time of trial but chose not to get involved. Boyles also argued ineffective assistance of trial and appellate counsel. The court found that counsel was not ineffective. Boyles appeals raising two issues:

1. Whether the habeas court erred by denying Boyles' motion for a new trial based on newly discovered evidence.

2. Whether the habeas court erred in finding that trial and appellate counsel were effective.

STANDARD OF REVIEW

[¶ 6.] A habeas corpus claim is a collateral attack on a final judgment and therefore our review is limited. Hays v. Weber, 2002 SD 59, ¶ 11, 645 N.W.2d 591, 595 (additional citations omitted). Habeas corpus reaches only jurisdictional error and is not a remedy to correct irregular procedures. Id. In a criminal case, constitutional violations will deprive the trial court of jurisdiction. Id. The petitioner bears the initial burden to prove by a preponderance of the evidence that he is entitled to relief. Siers v. Class, 1998 SD 77, ¶ 10, 581 N.W.2d 491, 494 (additional citations omitted). The habeas court's findings will not be overturned unless they are clearly erroneous. Id.

[¶ 7.] Our standard for reviewing claims of ineffective assistance of counsel is also well-settled:

Whether a defendant has received ineffective assistance of counsel is essentially a mixed question of law and fact. In the absence of a clearly erroneous determination by the circuit court, we must defer to its findings on such primary facts regarding what defense counsel did or did not do in preparation for trial and in his presentation of the defense at trial. This [C]ourt, however, may substitute its own judgment for that of the circuit court as to whether defense counsel's actions or inactions constituted ineffective assistance of counsel.

Hays, 2002 SD 59 at ¶ 12, 645 N.W.2d at 596 (quoting Rodriguez v. Weber, 2000 SD 128, ¶ 28, 617 N.W.2d 132, 142).

[¶ 8.] 1. WHETHER THE TRIAL COURT ERRED BY DENYING BOYLES' MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE.

[¶ 9.] At the habeas hearing, Petitioner alleged that newly discovered evidence entitled him to a new trial. To that end, the habeas court permitted him to introduce testimony from eight witnesses. The witnesses testified either 1) they heard Sharp Butte admit to driving the ear; or 2) they saw Sharp Butte, or a female, driving the car before or after the homicide. The habeas court denied the motion for a new trial, finding that the witnesses lacked credibility. Specifically, the habeas court found [M]any of the Petitioner's witnesses or their close friends/relatives had been prosecuted by the prosecutor that prosecuted the Petitioner and certainly held a personal dislike for the prosecutor and this affected their credibility regarding this matter. Also some of these witnesses testified that they knew about the case at the time (five or six years before)[,] "but just didn't want to get involved."

The court found that the testimony "would not have changed the outcome of the trial" and did not "undermine the court's confidence in the verdict, nor does the evidence require a new trial."

[¶ 10.] As we have previously noted, review of a habeas corpus proceeding is strictly limited because it is a collateral attack on a final judgment of conviction. We have repeatedly reiterated that habeas review is limited to:

1. Whether the court has jurisdiction of the crime and the person of the defendant;

2. whether the sentence was authorized by law; and

3. whether an incarcerated defendant has been deprived of basic constitutional rights.³

Hays, 2002 SD 59 at ¶ 11, 645 N.W.2d at 595 (quoting Bradley v. Weber, 1999 SD 68, ¶ 12, 595 N.W.2d 615, 619) (additional citations and quotations omitted). Petitioner provides no basis upon which to grant habeas relief other than his assertion that the new evidence undermines confidence in the verdict. Petitioner does not identify, and we cannot perceive, a constitutional violation under this issue.⁴

[¶ 11.] Newly discovered evidence is generally an insufficient ground for habeas relief when the evidence pertains to guilt rather than a deprivation of constitutional rights or lack of jurisdiction. See e.g. Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 860, 122 L.Ed.2d 203, 216 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the course of the underlying state criminal proceedings[.]") (additional citation omitted); Everitt v. Solem, 412 N.W.2d 119, 123 (S.D.1987) ("A change of testimony, additional testimony or additional evidence might be grounds for a new trial or some other relief, but they are not appropriate for granting habeas corpus relief."). Petitioner's claim that he should be entitled to a new trial based on this newly discovered evidence is therefore not within the jurisdiction of this Court or the circuit court in a habeas action unless it directly establishes a deprivation of constitutional rights, such as ineffective assistance of counsel. [¶ 12.] Therefore, the habeas court's denial of the motion for a new trial should be affirmed unless Petitioner establishes that the court's findings as to the new witnesses' credibility were clearly erroneous and the evidence establishes a deprivation of constitutional rights.

[¶ 13.] Petitioner presented eight witnesses at the habeas hearing; Rodell Murphy, Kevin Youngman, Mia Youngman, Margaret Hopkins, Roy Moran, Sr., Peggy Moran, Nola Brill, Mark Good Shield and Christine Bear Heels.

[¶ 14.] Murphy testified that he was at a party in July 1996 when he heard Sharp Butte say that she had "killed a man before" by running him over. Murphy testified he did not know Sharp Butte at the time he heard her make this statement. However, he testified he learned her identity "about two months later" when his girlfriend, who later became his wife, informed him of Sharp Butte's identity. He learned her identity when the couple saw Sharp Butte at the Frontier Bar and Murphy told his girlfriend about Sharp Butte's earlier admission. On cross-examination, Murphy made the questionable claim that he did not know, and that his girlfriend/wife never informed him, that she is related to Boyles.

[¶ 15.] Kevin Youngman testified that on the morning of the homicide, when it was "just getting light out" he saw "Jason and Harvi Lynn and the Two Hawk girls. They came down there, the Two Hawk girls; and I seen Harvi Lynn jumping in the driver's seat and they went for a ride. They came up town;...