Denoyer v. Weber, 23223

• Citation: 2005 SD 43,694 NW 2d 848
• Decision Date: 23 March 2005
• Docket Number: No. 23223,23223
• Parties: CHARLES DENOYER, Petitioner and Appellant, v. DOUGLAS WEBER, Warden of South Dakota Penitentiary, Defendant and Appellee.
• Court: Supreme Court of South Dakota

2005 SD 43

694 NW 2d 848

CHARLES DENOYER, Petitioner and Appellant, v. DOUGLAS WEBER, Warden of South Dakota Penitentiary, Defendant and Appellee.

No. 23223

Supreme Court of South Dakota.

February 15, 2005

Opinion Filed March 23, 2005.

MATTHEW T. STEPHENS, Rapid City, South Dakota, Attorney for petitioner and appellant.

LAWRENCE E. LONG, Attorney General,

GARY CAMPBELL, Assistant Attorney General

Pierre, South Dakota, Attorneys for defendant and appellee.

GILBERTSON, Chief Justice

[¶ 1.] Petitioner, who was charged with first degree burglary and second degree rape, declined a plea bargain that would have allowed him to avoid a mandatory life sentence without parole and capped his potential sentence at a maximum of fifteen years. Petitioner was convicted after a jury trial, and lost his subsequent appeal. Petitioner filed a writ of habeas corpus contending that the cumulative errors of his trial counsel amounted to ineffective assistance of counsel. Petitioner alleged his trial counsel errors included refusing to let him testify at trial, failing to advise him of the legal consequences of rejecting the State's plea offer, failing to adequately advise him during consideration of the plea offer that testimony of key defense witnesses could or would be excluded at trial, failing to call the victim's husband as a witness and failing to request a continuance to locate another witness. The habeas court rejected Petitioner's claims and denied relief, but granted Petitioner's motion for a certificate of probable cause. On appeal to this Court, Petitioner claimed his counsel was ineffective when they advised Petitioner that he had a good chance of prevailing at trial, that three factual witnesses and one expert witness would be testifying on his behalf but ultimately did not, and that the habitual information filed against him was unconstitutional and that the prior convictions alleged were subject to challenge. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On June 26, 1993, K.P. drove with her three-year-old son from her home in Rapid City to visit a friend in Black Hawk, South Dakota. After arriving at her friend's house at around 5:30 p.m., K.P. started drinking. At approximately midnight, K.P. left her son with her friend and drove to a bar where she continued drinking. Sometime around 1 a.m., K.P. asked a friend, Steve Brandsted, for a ride home. Brandsted drove K.P. to her friend's house where she picked up her three-year-old and then Brandsted drove her home.

[¶ 3.] After arriving at her home, K.P. wanted Brandsted to give her another ride in order to retrieve her car, as she was concerned her husband would be angry with her when he returned home and found the car was gone.¹ However, K.P. put her son to bed, laid down beside him, and fell asleep within ten minutes according to Brandsted. When Brandsted left, K.P. was wearing jeans and a t-shirt, sound asleep with her son, and audibly snoring.

[¶ 4.] In the early morning hours, K.P was awakened by a man on top of her having sexual intercourse. K.P. began pushing and hitting the man. K.P.'s son was rousted by the noise, and said "Momma, it's Charlie." K.P. continued striking the man and told him to get out. The man left the bedroom and K.P. dressed herself, gathered her son, and ran to a neighbor's house to call the police. An officer arrived on the scene between 5 a.m. and 6 a.m., and found K.P. upset, confused and in a state of shock. K.P. told the police she had been raped by Petitioner.

[¶ 5.] The police began searching for Petitioner, and found him walking approximately three miles from K.P's house. Petitioner had blood spatters on his shirt and scratch marks on his face. Petitioner was arrested and taken to county jail for an interview. At the interview, Petitioner was advised of some Miranda rights, but he was not informed of his continuing right to remain silent. Petitioner gave a statement to the interviewing detective that corroborated several key details of K.P.'s account of the incident, particularly that K.P. woke up with Petitioner on top of her.

[¶ 6.] Petitioner was charged with first degree burglary and second degree rape. Petitioner entered pleas of not-guilty at his arraignment. The State filed an Information, Part II, alleging Petitioner had four prior felony convictions and that the State intended to seek an enhanced penalty upon conviction. Petitioner was represented by two attorneys from the Pennington County Public Defender's officer, Robin Zephier (Zephier) and Becky Janssen (Janssen).

[¶ 7.] Zephier and Janssen filed a motion to suppress Petitioner's custodial statement that corroborated K.P.'s account of the incident. The trial court originally suppressed the statement based on the ineffective waiver of Petitioner's Miranda rights. However, the trial court later ruled Petitioner's statement could be admissible for impeachment if Petitioner testified at trial. The trial court elected to delay ruling until trial, noting that the ruling would be predicated on the form of direct examination questions and the content of the testimony elicited.

[¶ 8.] Additional trial strategies employed by attorneys Zephier and Janssen included a challenge to the constitutionality of the habitual offender sentencing enhancement scheme in SDCL 22-7-8.1.² Petitioner's attorneys also advised him that there were holes in the State's case, and that trial strategy should focus on the issue of consent. Attorneys Zephier and Janssen planned on calling witnesses that would testify to the appearance of a boyfriend-girlfriend relationship between Petitioner and K.P. Petitioner's attorneys also planned to challenge the Part II habitual offender information, contending some previous convictions were obtained in violation of Petitioner's constitutional rights. Throughout trial strategy discussions with Petitioner, he firmly maintained his innocence and contended that K.P. had consented to the sexual intercourse.

[¶ 9.] On November 22, 1993, one week before the scheduled start of the trial, Deputy State's Attorney Mark Vargo telephoned attorney Zephier with a plea bargain offer. The offer required Petitioner to plead guilty to second degree burglary in exchange for the State dismissing the remaining counts and the habitual offender information. The effect of the plea bargain was to reduce a potential mandatory life sentence without parole, to a maximum of fifteen years imprisonment. The State was motivated to make the offer out of concerns about the strength of their case and the wishes of the victim, who did not want to relive the rape at trial. The next day on November 23, 1993, Attorney Zephier met with Petitioner and advised him of the plea agreement. Petitioner refused the plea bargain, maintained his innocence, and elected to go to trial.

[¶ 10.] At Petitioner's trial held on November 29-30, 1993, attorneys Zephier and Janssen put on two witnesses for the defense that helped to establish that Petitioner and K.P. had been good friends, and that Petitioner had been at K.P.'s house several times before the rape incident. Defense counsel was able to demonstrate during K.P.'s cross-examination the many times Petitioner had been at K.P.'s home, the closeness of her friendship with Petitioner, and her husband's habit of returning home in the early morning hours while on work release. Defense counsel also brought out K.P.'s minimization of her drinking on the night of the accident to the responding officer.³ Counsel also established that A.P. hurt K.P. when he was angry over not knowing where she was at night. Finally the defense utilized a witness to establish the visible injuries sustained by K.P. during the incident to support the theory that K.P. was motivated by fear of her husband to report the incident as a rape.

[¶ 11.] Petitioner never testified on his own behalf during the trial. The trial judge asked Petitioner if it was his decision not to testify. Petitioner indicated it was his decision, and that defense counsel had explained both his right to testify and the risks of testifying on his own behalf. The jury found Petitioner guilty of first degree burglary and second degree rape. Petitioner was sentenced under the habitual offender enhancement scheme to a mandatory life term without possibility of parole.

[¶ 12.] Petitioner appealed the conviction in State v. Denoyer, 541 NW2d 725 (SD 1995). In that appeal, Petitioner contended (1) his prior convictions were not valid for enhancement purposes, (2) that his sentence had been improperly enhanced under SDCL 22-7-8.1, (3) the trial court erred when it excluded testimony of prior conduct of the victim under the rape shield law, (4) that his custodial statement was not voluntary and not admissible for impeachment purposes, and that the trial court also erred when it (5) denied the proposed jury instructions on the offenses of unlawful entry and refusal to leave and (6) when it denied Petitioner's motion for new trial. We affirmed the trial court on all six issues. Id. at 733.

[¶ 13.] On May 27, 2003, almost ten years after judgment of conviction was entered, Petitioner filed a writ of habeas corpus. Petitioner asserted a claim of ineffective assistance of counsel, alleging he was entitled to relief as (a) trial counsel refused to let him testify, (b) trial counsel failed to advise him of the legal consequences of rejecting the State's plea offer, (c) trial counsel failed to adequately advise him during consideration of the plea offer that testimony of key defense witnesses could or would be excluded at trial, (d) trial counsel failed to call the victim's husband, A.P., as a witness and failed to request a continuance to locate another witness, Eric Stensland, and (e) that the cumulative effect of these errors by counsel denied Petitioner effective assistance of counsel and a fair trial.

[¶ 14.] On November 5, 2003, the habeas court conducted an evidentiary hearing. Petitioner, trial counsel Robin Zephier...