Fast Horse v. Leapley

• Decision Date: 25 May 1994
• Citation: 521 N.W.2d 102
• Parties: Lavern Charles FAST HORSE, Petitioner and Appellant, v. Walter LEAPLEY, Warden of the South Dakota State Penitentiary, Appellee. 18518. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 102

521 N.W.2d 102

Lavern Charles FAST HORSE, Petitioner and Appellant, v. Walter LEAPLEY, Warden of the South Dakota State

Penitentiary, Appellee.

18518.

Supreme Court of South Dakota.

Considered on Briefs May 25, 1994.

Decided Aug. 17, 1994.

Marya J. Vrooman Rogers of Finch, Bettmann and Maks, P.C., Rapid City, for petitioner and appellant.

Mark Barnett, Atty. Gen. and Scott Bogue, Asst. Atty. Gen., Pierre, for appellee.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUE

In State v. Fast Horse, 490 N.W.2d 496 (S.D.1992), this Court affirmed the conviction of Lavern Charles Fast Horse for embezzlement of property received in trust. On September 9, 1993, Writ of Habeas Corpus was denied. However, a Certificate for Probable Cause was thereafter granted. Fast Horse appeals the denial of the writ on this issue:

Was Fast Horse denied effective assistance of counsel by his trial attorney's failure to call certain witnesses in his defense or by failing to introduce evidence that would have impeached a State witness' credibility?

We affirm.

FACTS

Fast Horse received a six-year prison sentence for the embezzlement of a camcorder from Telescan Satellite and Pro Video (Telescan) of Rapid City in January of 1991. Although Fast Horse was not an employee of Telescan, business owner Jeff Dale permitted him to take a camcorder to Oglala Sioux Tribal officials on the Pine Ridge Reservation who were looking to buy a camcorder. Dale offered to pay a small commission should Fast Horse make a sale. Fast Horse's sales effort proved unsuccessful. Immediately thereafter, using tickets he charged to Telescan, Fast Horse and his girlfriend, Patricia Swallow--with the camcorder in tote--flew to California for alleged acting opportunities. In the meantime, Dale was making calls to the reservation trying to locate his property.

Although the camcorder was never recovered, Fast Horse testified that he believed it had been seized by California law enforcement from his hotel room. It had not. However, authorities did find a satellite tracking system in his room, another item which Dale had reported stolen.

Public Defender Michael Stonefield (Stonefield) was appointed to represent Fast Horse. In the course of defending his client, Stonefield interviewed potential witnesses, investigated leads and counselled Fast Horse. To protect his client, Stonefield obtained a motion in limine to prevent evidence of the tracking system from being introduced at trial. Fast Horse now claims that Dale mailed the system to him in California.

Against the advice of his attorney, and following a cautionary statement from the trial court, Fast Horse testified in his own defense. Apparently he did more harm than good as he repeatedly contradicted himself, prompting this Court to comment:

Nevertheless, it is doubtless Fast Horse's convoluted, twisted and inconsistent explanations as to why he took the camcorder to California did far more to assure his conviction than any erroneous instruction on flight.

Fast Horse, 490 N.W.2d at 502. His story was hardly credible. Fast Horse's defense then and now is that he had permission to take the camcorder. He contends that had Stonefield called certain witnesses to testify, his story would have been verified.

At the habeas hearing, Stonefield justified his representation and testified that his client had given him inconsistent versions of the events surrounding the camcorder. The record reveals that Fast Horse was not honest with his attorney. Of the eight potential witnesses Fast Horse desired, three did testify, three had no relevant testimony, and one attacked his credibility. Only one witness offered any real semblance of favorable testimony. The habeas court concluded that any favorable testimony or evidence Stonefield failed to obtain would not have been enough to offset the evidence against Fast Horse, let alone change the reliability of the jury's verdict.

DECISION

The essence of this appeal can be summed up by a letter Vicki Schantlos (Vicki) mailed to the Rapid City Police. Fast Horse began a relationship with her in California shortly after Patricia Swallow returned to South Dakota. Vicki's message stated that Fast Horse scammed her out of thousands of dollars, including $1,200.00 for the airline tickets for Fast Horse's flight to California and $800.00 for hotel bills he had neglected to pay. She made no reference to having paid for the camcorder. Fast Horse asserts that Stonefield's failure to call Vicki to testify as a favorable witness constitutes ineffective assistance of counsel.

In reviewing the denial of a writ of habeas corpus, our review begins with the presumption that an attorney is competent until a showing to the contrary is made; hence, the petitioner carries a heavy burden in establishing ineffective assistance of counsel. United States v. Valenzuela, 521 F.2d 414 (8th Cir.1975), cert. denied, 424 U.S. 916, 96 S.Ct. 1117, 47 L.Ed.2d 321 (1976); State v. Walker, 287 N.W.2d 705, 706 (S.D.1980). As such, effective counsel is not always equated with successful counsel. State v. McBride, 296 N.W.2d 551, 554 (S.D.1980). Further, we will not reverse the habeas court's findings unless they are clearly erroneous. McCafferty v. Solem, 449 N.W.2d 590, 592 (S.D.1989); Satter v. Solem, 422 N.W.2d 425 (S.D.1988).

To establish ineffective assistance of counsel, a defendant must prove (1) that counsel's representation fell below an objective standard of reasonableness and (2) that such deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hopfinger v. Leapley, 511 N.W.2d 845 (S.D.1994). Relying on Strickland, Woods v. Solem, 405 N.W.2d 59, 61 (S.D.1987), held that prejudice exists when there is a reasonable probability that, but for counsel's unprofessional errors, the proceeding would have been different. It is not enough for the petitioner to show that the verdict would have been different, he must show "that the counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Hopfinger, 511 N.W.2d at 847.

At the habeas hearing, Fast Horse contended that his counsel erred by not calling the following witnesses: Dale, Patricia, Vicki, Harold Salway, Raymond High Eagle, Blaine "Chip" Campbell, Kent Antenson, and Peggy Poppe Basham. Inconsistency continues to run rampant again for Fast Horse--Dale, Patricia, and Salway did testify at trial. As his accuser, Dale could hardly be expected to provide favorable testimony. Patricia thought the camcorder was a gift Fast Horse had purchased for his son. Salway's testimony was, in fact, detrimental to Fast Horse's credibility claims. Fast Horse admitted at the habeas trial, that Dale, Patricia, and Salway did provide what favorable testimony he expected from them. High Eagle, testifying at the habeas hearing, had no information at all relevant to the issues presented at trial. On appeal, Fast Horse has narrowed his list of erroneously missed witnesses to Basham, Antenson, Campbell and Vicki.

Peggy Poppe Basham

In January of 1991, Fast Horse called Professional Travel in Rapid City to purchase two "one-way" airline tickets to Los Angeles, California for himself and Patricia. He told Basham, manager of Professional Travel, that he worked for Telescan and wished to charge the tickets to the business. Basham called Telescan and asked for the manager to verify Fast Horse's employment and permission to charge the tickets. Someone identifying himself over the phone as "Jeff Dale" authorized the charge. When he later received a bill from Basham, Dale denied receiving the phone call. Fast Horse, who was never employed by Telescan, fails to explain why Dale, a man he barely knew, would agree to cover one-way airline transportation to California for him and his girlfriend.

We agree with the habeas court that Basham's testimony may have been relevant concerning Dale's credibility. However, we also agree that failure to call Basham does not result in deficient counsel. Originally, Fast Horse was also charged with theft of the tickets, but the prosecutor opted not to pursue the matter. Dale eventually paid for the tickets, apparently after Vicki Schantlos according to her letter, reimbursed him for Fast Horse's airline expenses. Although Basham's testimony could be offered to undermine Dale's credibility, it offers little to repair Fast Horse's lack of same. As the habeas court has found, based upon the overwhelming evidence presented against Fast Horse, there is not a reasonable probability that the result of the trial would have been different had Basham testified. Phyle v. Leapley, 491 N.W.2d 429 (S.D.1992). We are not persuaded to upset this factual finding. Ashker v. Solem, 457 N.W.2d 473, 476 (S.D.1990).

Kent Antenson & Blaine Campbell

Fast Horse asserts that when Basham called Dale, he and one of the Telescan employees (he could not recall which one) overheard the content of the conversation and could confirm that Dale had spoken to Basham. Because Stonefield did not follow this lead, Fast Horse asserts that he lost an opportunity to impeach Dale's credibility. However, Antenson and Campbell, Telescan's only employees at the time of the alleged phone conversation, did not recall any such phone call.

When the ticket theft charges were dropped, Stonefield felt he had no reason to pursue that line of inquiry. Recall, Stonefield testified that his client's story was wrought with inconsistencies. Stonefield also found it difficult to pursue every lead in Fast Horse's ever-changing tale. Although there was opportunity to impeach Dale, there was also a greater opportunity to make Fast Horse look guilty of obtaining the tickets by fraud. Fast Horse has provided no witnesses to corroborate his claim that Dale authorized the tickets. The habeas court noted, "Tracking down potential witnesses who may or may not have...