Cordell v. Weber

• Decision Date: 10 December 2003
• Docket Number: No. 22742.,22742.
• Citation: 2003 SD 143,673 N.W.2d 49
• Parties: Stephen CORDELL, Petitioner and Appellant, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent and Appellee.
• Court: South Dakota Supreme Court

673 N.W.2d 49

2003 SD 143

Stephen CORDELL, Petitioner and Appellant, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent and Appellee.

No. 22742.

Supreme Court of South Dakota.

Considered on Briefs August 25, 2003.

Decided December 10, 2003.

Michael B. Thompson, Sioux Falls, SD, for petitioner and appellant.

Lawrence E. Long, Attorney General, Paul Cremer, Assistant Attorney General, Pierre, SD, for respondent and appellee.

ZINTER, Justice.

[¶ 1.] Stephen Cordell appeals the denial of a writ of habeas corpus. He alleges that his trial counsel was constitutionally ineffective. We affirm the trial court's denial of habeas corpus relief.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Cordell was married to Rachel "Shelly" Brandriet in 1980. The couple had three children during their marriage. They also built a house together near Watertown.

[¶ 3.] Shelly left Cordell on April 2, 1998 and filed for divorce. The divorce was highly contested. Cordell threatened to burn the house if it was awarded to Shelly. The children and marital home were, however, awarded to Shelly. Proposed findings of fact and conclusions of law were mailed to Cordell and received by him on October 25, 1999. That same day, October 25, 1999, the house and a shed were severely damaged by fire.

[¶ 4.] A witness saw a white car, similar to the one driven by Cordell, leaving the area of the house. Immediately thereafter, the witness saw a fire in the shed and house. The fire department responded and observed evidence of arson in the shed and house. There was an odor of petroleum, heavy smoke damage, areas of petroleum like liquid on the floors, heavy concentrations of fire in certain areas, but no evidence that the shed fire had spread to the house. [¶ 5.] Upon request of law enforcement, Cordell contacted the sheriff's office that same afternoon and voluntarily submitted to an interview. After waiving his Miranda rights, Cordell admitted: that he had received the divorce papers that morning; that he was alone in the house at the time; that he knew of no one else who would have wanted to burn the house; and, that he left the house that morning. The interviewing officer also noticed the smell of petroleum on Cordell. Cordell, however, denied any involvement in the fire.

[¶ 6.] During the course of the interview, the officer determined that Cordell was potentially suicidal and appeared depressed. As a result, Cordell was placed on a mental health hold that evening. Pursuant to jail policy, Cordell was required to change into a jail jumpsuit. Cordell's clothing was removed and placed into a locker by jail personnel. Cordell was subsequently interviewed by a medical doctor and held for an emergency mental health commitment.

[¶ 7.] The clothing Cordell wore was seized by law enforcement the next morning, October 26, 1999, while Cordell was waiting for transportation to the Human Services Center for the involuntary commitment. The clothing was sent to a state laboratory for testing. Trial counsel objected to the introduction of the test results, however, the objection was overruled because counsel had failed to raise the issue in a pre-trial motion to suppress.¹ The test results indicated the possible presence of an accelerant, but no identifiable ignitable liquids.

[¶ 8.] Cordell was ultimately convicted by a jury of second-degree arson and third-degree arson. He failed to file a direct appeal. He did, however, seek a writ of habeas corpus on the ground that his trial counsel was ineffective in: (1) failing to effectively challenge the clothing test results, and (2) failing to suppress Cordell's statements made during the sheriff's office interview. Following an evidentiary hearing, the habeas court denied relief.

STANDARD OF REVIEW/BURDEN OF PROOF

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 [the attorney's] presentation of the defense at trial. This court, 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.

Rodriguez v. Weber, 2000 SD 128, ¶ 28, 617 N.W.2d 132, 142 (citations omitted). Cordell's burden for establishing an ineffective assistance claim is also well established.

In order for [petitioner] to obtain habeas relief on the grounds of ineffective assistance of counsel, he must pass the two-part test for such a claim. See Davi v. Class, 2000 SD 30, ¶ 16, 609 N.W.2d 107, 112

(recognizing the test for ineffective assistance of counsel as presented in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Under this test, [petitioner] must first show that trial counsel erred so seriously that `counsel was not functioning as counsel guaranteed by the Constitution.' Id. Second, he must prove that counsel's error prejudiced him so that he was deprived of a fair trial. Id. Prejudice, under the Strickland test, requires us to ask: `But for counsel's unprofessional errors' would the result at trial have been different? Weddell v. Weber, 2000 SD 3, ¶ 25, 604 N.W.2d 274, 281 (citation omitted). To find prejudice, the answer must be that there is a reasonable probability of a different outcome. `A reasonable probability is a probability sufficient to undermine confidence in the outcome.' See id. (quoting Loop v. Class, 1996 SD 107, ¶ 14, 554 N.W.2d 189, 192 [(1996)]).

Knecht v. Weber, 2002 SD 21, ¶ 5, 640 N.W.2d 491, 495. With respect to ineffective counsel on Fourth Amendment claims:

Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.

Luna v. Solem, 411 N.W.2d 656, 659 (S.D. 1987).

ISSUE ONE

[¶ 9.] Whether trial counsel was ineffective in failing to contest the search and seizure of Cordell's clothing at a time when the search could be challenged.

[¶ 10.] Cordell contends that his trial counsel was ineffective because he failed to effectively challenge the search and seizure of the clothing. Although Cordell acknowledges that a search of clothing incident to a lawful arrest is generally valid, he contends that a search incident to an involuntary mental commitment violates the Fourth Amendment.

[¶ 11.] The habeas court specifically found that, although Cordell was in custody on an involuntary commitment, he was not under arrest. Nevertheless, the habeas court upheld the search under the rules applicable to a search incident to arrest. The habeas court also concluded that Cordell suffered no prejudice in light of the overwhelming evidence establishing his guilt.

[¶ 12.] The Fourth Amendment of the Constitution guarantees citizens protection from unreasonable searches and seizures by government actors. U.S. Const. amend. IV, S.D. Const., art. VI, § 11. Under these provisions "[n]ormally, police officers must obtain a warrant based on probable cause issued by a judge in order to seize someone's property." State v. Christensen, 2003 SD 64, ¶ 11, 663 N.W.2d 691, 694. In the event a warrantless search is conducted, it is the State's burden to show that the search was permissible. Id. ¶ 12. However, "[a]n individual must have a reasonable expectation of privacy in the place searched or the article seized before the Fourth Amendment will apply." Id. ¶ 11. "[T]his privacy interest is determined by a two-prong test: (1) whether the defendant has exhibited an actual subjective expectation of privacy and (2) whether society is willing to honor this expectation as being reasonable." State v. Lowther, 434 N.W.2d 747, 754 (S.D.1989). This case focuses on the second prong: whether Cordell's expectation of privacy in his clothing in a police locker is objectively reasonable.

[¶ 13.] The State argues that the seizure and subsequent chemical search of Cordell's clothing was reasonable because it was incident to protective custody. We begin the inquiry by first examining the basis for permitting warrantless searches incident to arrest. [¶ 14.] In United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), the Supreme Court determined that a prisoner's clothing may be searched and seized without a warrant if it is incident to lawful arrest. This holding was based on the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained. Id. at 809, 94 S.Ct. 1234. However, the Edwards holding is clearly predicated upon a lawful arrest. Id. at 808, 94 S.Ct. 1234.

... [U]nder the Fourth Amendment,... a defendant has no reasonable expectation of privacy in property jail personnel seize from a defendant upon arrival after a lawful arrest.

State v. Cheatam, 112 Wash.App. 778, 51 P.3d 138, 141 (2002) (emphasis added). So also, this Court has determined that items taken from a defendant's clothing at the time of a lawful arrest are admissible. State v. Spells, 88 S.D. 259, 218 N.W.2d 210, 211 (S.D.1974).

[¶ 15.] The State attempts to extend Edwards and Spells, arguing that custody for an involuntary commitment is sufficiently similar to an arrest to permit a search incident to custody. This argument requires a consideration of two issues: (1) whether a person subject to an involuntary commitment can be lawfully searched; and, if so, (2) to what extent items seized can be subsequently searched without a warrant.

[¶ 16.] In considering the first issue, the Utah Court of Appeals held that "a search incident to protective...