Cowell v. Leapley

• Citation: 458 N.W.2d 514
• Decision Date: 22 March 1990
• Docket Number: No. 16730,16730
• Parties: James COWELL, Petitioner and Appellant, v. Walter LEAPLEY, Warden of the South Dakota State Penitentiary, Respondent and Appellee. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 514

458 N.W.2d 514

James COWELL, Petitioner and Appellant, v. Walter LEAPLEY, Warden of the South Dakota State

Penitentiary, Respondent and Appellee.

No. 16730.

Supreme Court of South Dakota.

Considered on Briefs March 22, 1990.

Decided July 3, 1990.

Todd C. Miller, Beresford, for petitioner and appellant.

Roger A. Tellinghuisen, Atty. Gen., Pierre, for respondent and appellee; Craig M. Eichstadt, Asst. Atty. Gen., Pierre, on the brief.

MORGAN, Justice.

This appeal arises from the denial of the habeas corpus petition of James Cowell (Cowell) challenging the constitutionality of his 1978 conviction for first-degree murder. This court affirmed that conviction on direct appeal. State v. Cowell, 288 N.W.2d 322 (S.D.1980) (Cowell I ). From the determination of the court below (habeas court) that Edwards v. Arizona ¹ and Arizona v. Roberson, ² should not apply retroactively, Cowell appeals. We affirm.

Cowell I was decided on February 13, 1980. According to the procedure in effect at that time, Cowell had ninety days to petition for certiorari to the United States Supreme Court, which he did not do. Sup.Ct.R. 20. Thus, for direct appeal purposes, Cowell's conviction was final on May 14, 1980. Roberson and Edwards, the two decisions which Cowell argues should be applied retroactively to his case, were decided after his direct appeal was final.

Subsequent to the denial of his direct appeal, Cowell began a series of collateral attacks on his conviction. First, he filed a habeas corpus petition in state court, Cowell II, which was denied. Next, he filed a habeas corpus petition in federal court, Cowell III, which was also denied. Cowell appealed that denial to the Eighth Circuit Court of Appeals, where the order was affirmed. Now, he is before us on Cowell IV, a habeas corpus petition against Walter Leapley, Warden of the South Dakota State Penitentiary.

Cowell's conviction arose out of the killing of James Clark (Clark) in Union County, South Dakota. Prior to his arrest for the murder of Clark, Cowell was incarcerated in the Woodbury County Jail in Sioux City, Iowa, on an unrelated bomb charge. Mr. Jack O'Brien (O'Brien) of Sioux City was appointed counsel for Cowell at his arraignment on the bomb charge on September 15, 1977. On that same day, Agent Donald Gromer (Gromer) of the South Dakota Division of Criminal Investigation (DCI) was notified of a possible murder in Union County, South Dakota. Upon learning that a possible suspect for the crime (Cowell) was being held in Sioux City, Iowa, Gromer and Agent Jerry Baum (Baum) traveled to the Woodbury County Jail to interview Cowell.

At the time of this interview, Cowell was not charged with the Clark murder, nor was he being held on it. Agents Gromer and Baum were unaware that counsel had been appointed to represent Cowell on the bomb charge, nor were they so advised by the head jailer with whom Gromer talked upon his arrival at the Sioux City Jail. Prior to his interview with Cowell, Gromer informed him of his Miranda rights and Cowell indicated that he understood them.

Agent Gromer then asked Cowell if he was being represented by a lawyer. Cowell replied that he was represented by "God, the Father in Heaven." After receiving this response, Gromer asked Cowell if he was represented by anyone other than God, and Cowell replied that he did not need further representation, that he had nothing to hide, and that he was willing to talk to Gromer and Baum.

A second interview took place on October 3, 1977. At some time before that date, Cowell had been transferred to a mental health facility in Iowa for evaluation. Agent Gromer had learned that Cowell was being represented by O'Brien on the bomb charge. Gromer contacted O'Brien and informed him of his intention to interview Cowell regarding the death of Clark. O'Brien told Gromer that he was not to discuss the bomb charge but could not advise Gromer one way or the other with regard to the South Dakota murder charge, since he was not representing Cowell in that matter. Gromer then interviewed Cowell at the Iowa medical facility. Agent Gromer again advised Cowell of his rights under Miranda, which Cowell stated he understood. Cowell did not appear to be under the influence of drugs or alcohol at the time of the interview. At no time during the interview did Cowell ever indicate that he did not want to talk about the murder, that he desired to talk with counsel, or that he wanted the interview to cease.

During the course of both interviews, Cowell made incriminating statements to Gromer and Baum which he sought to suppress before trial. The trial court, after the suppression hearing, made detailed findings of fact regarding the circumstances surrounding the interviews and determined that Cowell voluntarily waived his privilege against self-incrimination. On appeal in Cowell I, Cowell argued that the statements were involuntary because Gromer indulged in scriptural subterfuge and psychological pressures to elicit the statements. We rejected Cowell's arguments and affirmed the trial court's suppression decision in Cowell I and we need not reconsider that aspect here.

Subsequent to our decision in Cowell I, the United States Supreme Court decided two cases that Cowell seeks to have us apply in this case. In Edwards v. Arizona, supra, the Court held:

[T]hat an accused, * * *, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

451 U.S. at 484-85, 101 S.Ct. at 1885, 68 L.Ed.2d at 386. Then, in Arizona v. Roberson, supra, the Court reiterated the Edwards rule and extended it to interrogations concerning unrelated offenses. The Court said that:

As a matter of law, the presumption raised by a suspect's request for counsel--that he considers himself unable to deal with the pressures of custodial interrogation without legal assistance--does not disappear simply because the police have approached the suspect, still in custody, still without counsel, about a separate investigation.

486 U.S. at 683, 108 S.Ct. at 2099, 100 L.Ed.2d at 715.

In the current application for habeas corpus, Cowell sought to have the rules in Edwards and Roberson applied to the circumstances under which he was interrogated. The habeas court declined to apply the rules on the grounds that they were new constitutional rules that should not be applied retroactively under the standard announced in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

Cowell raises four issues that may be synthesized as two:

(1) Whether the trial court erred in holding that the decisions in Edwards v. Arizona and Arizona v. Roberson announced new constitutional rules that should not be applied retroactively to his conviction.

(2) Whether Cowell intelligently waived his Fifth Amendment right to counsel when he had been appointed counsel in an unrelated felony and made a comment at his interrogation that he was represented by "God the Father in Heaven," thus implicating his mental capacity to waive his rights.

Our standard of review for habeas corpus proceedings was recently set out in McCafferty v. Solem, 449 N.W.2d 590, 591-92 (S.D.1989) (McCafferty III ).

The remedy of post-conviction habeas corpus is restricted by the provisions of SDCL 21-27-16 and the prior decisions of this court. The statutory provisions were fairly well summarized in our decision, State v. Erickson, 80 S.D. 639, 129 N.W.2d 712 (1964), wherein we pointed out that, since the remedy is in the nature of a collateral attack upon a final judgment, the scope of review in habeas corpus proceedings is limited. As we said: '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.' Id., 80 S.D. at 645, 129 N.W.2d at 715. See also Goodroad v. Solem, 406 N.W.2d 141 (S.D.1987). Habeas corpus is not a proper remedy to correct irregular procedures, rather, habeas corpus reaches only jurisdictional error. Id. 406 N.W.2d at 143; SDCL 21-27-16. For purposes of habeas corpus, constitutional violations in a criminal case deprive the trial court of jurisdiction. Goodroad, 406 N.W.2d at 143; Podoll v. Solem, 408 N.W.2d 759 (S.D.1987).... Further, we may not upset the habeas court's findings unless they are clearly erroneous. SDCL 15-6-52(a); Satter v. Solem, 422 N.W.2d 425 (S.D.1988).

We first determine whether the habeas court was correct in refusing to apply Edwards and Roberson retroactively. The habeas court relied on Teague, supra. ³ That was incorrect. The trial court and parties apparently assumed that the law on retroactive application is a federal constitutional question. While the substance of what is to be applied is a federal constitutional matter, the decision on what criteria to use to determine prospective or retroactive application is a nonconstitutional state decision.

As early as 1932, the United States Supreme Court made this distinction clear. In Great Northern Railway v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360, 366 (1932), Justice Cardozo, writing on the question, said:

We think the federal constitution has no voice upon the subject. A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions.

Addressing this same question in the criminal venue, the United States Supreme Court held in Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 1737, 14...