Davi v. Class

• Decision Date: 01 March 2000
• Docket Number: No. 19844.,19844.
• Citation: 609 N.W.2d 107,2000 SD 30
• Parties: Scott DAVI, Petitioner and Appellant, v. Joseph CLASS, Warden, South Dakota State Penitentiary, Appellee.
• Court: South Dakota Supreme Court

609 N.W.2d 107

2000 SD 30

Scott DAVI, Petitioner and Appellant, v. Joseph CLASS, Warden, South Dakota State Penitentiary, Appellee.

No. 19844.

Supreme Court of South Dakota.

Considered on Briefs October 20, 1999.

Decided March 1, 2000.

Cynthia A. Howard, Public Advocate, Sioux Falls, for petitioner and appellant.

Mark Barnett, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, for appellee.

GORS, Circuit Judge.

[¶ 1.] Scott Davi is serving a life term for murder. He applied for a writ of habeas corpus alleging ineffective assistance of counsel. The habeas corpus court denied relief and Davi appealed. During the pendency of this appeal Davi requested additional DNA testing. We remanded to the habeas corpus court for further proceedings which are now complete. We affirm.

PROCEDURAL HISTORY

[¶ 2.] On November 2, 1990, Davi's ex-wife Diane Davi was brutally beaten, raped and murdered in her home in Sioux Falls. Davi was convicted by a Minnehaha County jury of two counts of first degree murder, three counts of first degree burglary and one count of first degree rape. He was sentenced to concurrent life terms and concurrent fifteen and twenty year sentences. He was also found to be a habitual offender. Davi appealed and this Court affirmed, State v. Davi, 504 N.W.2d 844 (S.D.1993), with the directive to vacate one of the sentences for first degree murder in light of Wilcox v. Leapley, 488 N.W.2d 654 (S.D.1992).

[¶ 3.] Davi filed an application for a writ of habeas corpus on August 9, 1995. The habeas corpus court held four hearings and ordered resentencing on two burglary counts for double jeopardy reasons. This relief was not opposed by the State and is not at issue here.

[¶ 4.] On December 30, 1997, while this appeal was pending, Davi requested new DNA testing. On April 15, 1998, we remanded this matter to the habeas corpus court for new DNA testing. When the testing was completed, the habeas corpus court admitted the new DNA evidence over Davi's objection.

FACTS

[¶ 5.] Diane Davi was discovered in her bedroom on November 2, 1990, naked, with blood stained underpants forced into her mouth as a gag, and a douche bottle wrapped in a washcloth in her vagina. She had been beaten, raped and strangled with heavy-gauge knitting yarn tied in a slip knot.

[¶ 6.] After a turbulent marital and post-divorce relationship, Diane completely severed her involvement with Davi in early October 1990 because she learned that his current girlfriend was pregnant. On October 22, 1990, eleven days before her death, Diane obtained a protection order which was served on Davi. A hearing was scheduled for November 5, 1990, to review the protection order. Davi retaliated against Diane by trying to obtain a protection order against her from another judge. When the other judge refused, Davi said "I'll just have to take care of this myself."

[¶ 7.] Despite the protection order, Davi continued to stalk Diane. On October 29, 1990, at approximately 4 a.m., he cornered her in a parking lot at work, gave her a music box and pleaded with her not to send him back to prison. The next day, Davi told a friend of Diane's that he wasn't going to give up and that he was going to have Diane. He also told a friend of his from prison that "I'll never give up" and that he did not want "to let Diane go." The crime scene investigation revealed a vibrator and a diamond ring that Davi gave Diane were missing from her home.

[¶ 8.] At trial, Davi's defense was an alibi and he proposed Dale Callies, Diane's previous ex-husband, as a third party perpetrator. A semen stain on Diane's leg was tested. Both Davi and Callies were included in the twenty percent of the male population that the State's serology expert said could have deposited the semen. Callies had no alibi.

HABEAS FACTS

[¶ 9.] Davi's family retained three attorneys to represent him during his trial: Michael Colich, Peter Cahill and Steven R. Binger. All three defense attorneys testified at the habeas trial.

[¶ 10.] At the time of trial, Michael Colich of Minneapolis, Minnesota, was licensed in Minnesota, a member of the federal bar and admitted to practice before the United States Supreme Court. His entire twenty-year practice had been in criminal law with over seven years as a prosecutor for the Hennepin County Attorney's Office and the rest as a defense attorney. Colich had been involved in twenty-five to thirty-five homicide cases. He had lectured at numerous continuing legal education functions and at the annual Minneapolis Criminal Justice Institute for twenty years. In 1991 or 1992, he was named one of the twenty top trial lawyers in Minnesota. In 1993, a poll of Minnesota judges rated him among the top fifteen lawyers in the categories of most courteous, most well-prepared, and "winningest" attorney.

[¶ 11.] Colich's partner, Peter A. Cahill, Wayzata, Minnesota, was licensed in Minnesota in 1984. He worked in the Hennepin County Attorney's office under the student practice rule and, at the time of trial, practiced solely criminal defense. He had worked on approximately ten homicide cases at the time of the Davi trial and had expertise in defending violent crimes and homicides.

[¶ 12.] Steve Binger was local counsel. Although he had only practiced criminal defense since 1989, he had served as a deputy Minnehaha County State's Attorney for ten years. He attended the trial and participated in preparation and strategy, but did not question or cross examine witnesses or make argument at the trial.

[¶ 13.] Davi complains that defense counsel were ineffective for several reasons.

REMAND FACTS

[¶ 14.] As noted earlier, during the investigation, a semen stain was found on Diane Davi's leg. Scientific testing revealed the stain could have been deposited by any of twenty percent of the male population. Davi was included in the twenty percent. Narrower Deoxyribonucleic Acid (DNA) testing could not be done because at the time of Davi's trial, Restriction Fragment Length Polymorphism (RFLP) DNA testing required more material than was available. Subsequent development of Polymerase Chain Reaction (PCR) DNA testing made accurate testing of small samples possible. Upon remand, the PCR testing excluded Dale Callies, Davi's proposed third party assailant, but not Davi. Statistical probability analysis further revealed that there was only a one in one million chance that a male Caucasian other than Davi left the sample. Although Davi objected, the habeas corpus court admitted the results which exonerated Callies and incriminated Davi. Davi now asserts that the habeas corpus court should not have admitted this new factual evidence.

STANDARD OF REVIEW

[¶ 15.] Habeas corpus collaterally attacks a final judgment and is not a substitute for direct review. O'Connor v. Leapley, 488 N.W.2d 421 (S.D.1992). Habeas corpus only reviews jurisdiction, lawfulness of a sentence and whether an incarcerated defendant has been deprived of basic constitutional rights. Goodroad v. Solem, 406 N.W.2d 141 (S.D.1987). Ordinarily, the habeas corpus court's findings of fact and conclusions of law may not be overturned unless they are clearly erroneous. SDCL 15-6-52(a); Satter v. Solem, 422 N.W.2d 425 (S.D.1988); Cowell v. Leapley, 458 N.W.2d 514 (S.D.1990). However, ineffective assistance of counsel is a mixed question of fact and law on which this Court can substitute its own judgment as to whether counsel's representation was ineffective. Sprik v. Class, 1997 SD 134, 572 N.W.2d 824; St. Cloud v. Leapley, 521 N.W.2d 118 (S.D.1994); Aliberti v. Solem, 428 N.W.2d 638 (S.D.1988); Lykken v. Class, 1997 SD 29, 561 N.W.2d 302.

INEFFECTIVE ASSISTANCE OF COUNSEL

[¶ 16.] The two-part test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is used to determine whether there has been ineffective assistance of counsel. First, did trial counsel make such serious errors that counsel was not functioning as counsel guaranteed by the Constitution? Second, did the errors prejudice the defendant so that the defendant did not receive a fair trial? Fast Horse v. Leapley, 521 N.W.2d 102 (S.D.1994).

[¶ 17.] Effective counsel is not always equated with a successful result. Jenner v. Leapley, 521 N.W.2d 422 (S.D. 1994). Attorneys are presumed to be competent until shown otherwise and a petitioner claiming ineffective assistance of counsel carries a heavy burden. Lykken, 1997 SD 29 at ¶ 20, 561 N.W.2d at 307. The reasonableness of counsel's performance is evaluated from counsel's perspective at the time in light of all of the circumstances. Phyle v. Leapley, 491 N.W.2d 429 (S.D.1992). This Court will not second-guess experienced counsel regarding trial tactics or strategy. Fast Horse, 521 N.W.2d at 106. Counsel must investigate and consider possible defenses and make reasonable decisions. Application of Deserly, 507 N.W.2d 905 (S.D. 1993). A difference in tactics and strategy is not ineffective assistance of counsel. Fast Horse, 521 N.W.2d at 106.

NEW EVIDENCE

[¶ 18.] In Black v. Class, 1997 SD 22, 560 N.W.2d 544, this Court held that a habeas corpus court's decision to admit evidence is reviewed under an abuse of discretion standard. "An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence." State v. Henry, 1996 SD 108 ¶ 10, 554 N.W.2d 472, 473. "Under this standard, `not only must error be demonstrated, but it must also be shown to be prejudicial error.'" State v. Spiry, 1996 SD 14 ¶ 11, 543 N.W.2d 260, 263 (quoting Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 258). The trial court's evidentiary rulings are presumed to be correct. State v. White, 1996 SD 67, 549 N.W.2d 676.

ISSUE ONE

NEW DNA EVIDENCE

[¶ 19.] As someone once observed, "You have to be careful what you wish for because you might get it." In this case, Davi wished for DNA testing to prove he was innocent. Instead, the testing not only...