Freeman v. Class, CIV 95-3013.

• Decision Date: 28 November 1995
• Docket Number: No. CIV 95-3013.,CIV 95-3013.
• Citation: 911 F. Supp. 402
• Parties: Benjamin Franklin FREEMAN, Petitioner, v. Joseph CLASS, Warden, South Dakota State Penitentiary, and Mark A. Barnett, Attorney General, State of South Dakota, Respondent.
• Court: U.S. District Court — District of South Dakota

911 F. Supp. 402

Benjamin Franklin FREEMAN, Petitioner, v. Joseph CLASS, Warden, South Dakota State Penitentiary, and Mark A. Barnett, Attorney General, State of South Dakota, Respondent.

No. CIV 95-3013.

United States District Court, D. South Dakota, Central Division.

November 28, 1995.

Jack Gunvordahl, Burke, South Dakota, for petitioner.

Mark Barnett, Attorney General and Scott Bogue, Asst. Atty. Gen., Pierre, South Dakota, for respondent.

MEMORANDUM OPINION AND ORDER

KORNMANN, District Judge.

This comes before the Court on a petition for writ of habeas corpus under 28 U.S.C. § 2254. The claim is ineffective assistance of counsel. Petitioner has exhausted the remedies available in the state courts and this Court, therefore, has jurisdiction. 28 U.S.C. § 2254(b).

The South Dakota Supreme Court found that trial counsel's representation was deficient but did not believe the defendant (petitioner herein) was deprived of a fair trial. Freeman v. Leapley, 519 N.W.2d 615 (S.D. 1994). After review of the entire record, this Court is of the opinion that the writ should be granted and the petitioner given a new trial.

PROCEDURAL HISTORY

Petitioner, Benjamin Franklin Freeman, was found guilty in state court by a Gregory County, South Dakota, jury of the crime of grand theft on April 22, 1991. The conviction was affirmed on direct appeal to the South Dakota Supreme Court. State v. Freeman, 487 N.W.2d 629 (S.D.1992). Thereafter, on August 28, 1992, petitioner filed a petition for writ of habeas corpus, alleging ineffective assistance of counsel, in the state circuit court. A state circuit judge, on November 17, 1992, denied the request for the writ. The South Dakota Supreme Court affirmed the denial. Freeman v. Leapley, 519 N.W.2d 615 (S.D.1994).

FACTS

On February 2, 1991, in Bonesteel, South Dakota, a 1982 Oldsmobile Firenza was stolen. Petitioner was charged and convicted for this theft. The state's witnesses and a brief summary of the testimony of each is as follows:

• Mark Getman, owner of the car in question. He testified as to the identification and value. On the night in question he saw David Primeaux, the alleged accomplice (who was promised immunity), but did not see petitioner at a bar.

• Virginia Donahue, mother of Mark Getman, and co-owner of the vehicle in question. She awoke on the night in question and noticed the car was not at her residence. She therefore thought her son was not home. On checking, she found that he in fact was home. Therefore, she reported the car stolen.

• Marvin Jons, manager of the Bonesteel municipal liquor store. He saw petitioner and Primeaux on the night in question. Petitioner used the telephone but the witness could not hear any portion of the conversation.

• Julie Miller. She worked at a convenience store in Yankton, South Dakota. On the morning of February 2, 1991, she saw David Primeaux in her store. She did not see petitioner. Primeaux wanted a road map and stated that he had stolen a car. She thought she saw Primeaux enter the driver's side of the car in question, and drive away. She did not remember seeing anyone else with Primeaux.

• John Evanson, state trooper. He came upon petitioner and Primeaux during the early morning hours of February 2, 1991. They were on foot and wanted a ride. They told the trooper that they had been sleeping in a car and that the owner had caught a ride to Yankton. The trooper found the car about a quarter mile down the road. He opened the hood and felt the exhaust manifold. It was very hot. He saw no tire tracks on the early morning frost other than from the patrol car and the car in question. He then returned to petitioner and Primeaux and found keys on the petitioner. The trooper, moments later, gave these keys to a tow truck operator.

• Gary Townsend, tow truck operator. He picked up the stolen car and testified that the keys given to him by Trooper Evanson fit the ignition.

• Michael Hiedema, Yankton County deputy sheriff. He took Primeaux's statement. Petitioner did not want to talk and said nothing.

• David Primeaux. He testified that petitioner stole the car.

This is the complete list of the witnesses called by the prosecution at trial. The defense did not call any witnesses. Petitioner alleges ineffective assistance of counsel in the following particulars:

1. Trial counsel did not ask for a cautionary instruction that the jury must consider with caution the testimony of an accomplice or one granted immunity.

2. Trial counsel neglected to request any jury instruction on corroboration when the only evidence linking petitioner to the theft was the testimony of an accomplice.

3. Trial counsel did not object to hearsay statements that were prejudicial.

4. Trial counsel introduced a written statement of the accomplice that was hearsay and damaging to petitioner. The statement would not have been admissible had the prosecution tried to introduce it.

5. Trial counsel failed to move for a directed verdict at the end of the state's case.

6. Trial counsel failed to object or move for a mistrial when the state's attorney elicited from a state witness on direct examination the fact that petitioner declined to make a statement following his arrest.

7. Trial counsel did not submit any supporting affidavit for the change of venue motion, nor did counsel submit any authority to substantiate her motion.

Respondent argues that certain issues are procedurally barred from review in this proceeding, i.e. the admission of the accomplice's testimony at trial, the denial by the trial judge of the motion for change of venue, and the ruling that would have allowed the use of prior convictions for impeachment purposes. Petitioner, however, asserts only one core claim. That claim is denial of effective assistance of counsel as enumerated above.

STANDARD OF REVIEW

The Sixth Amendment to the United States Constitution provides that the accused, in all criminal prosecutions, shall have the assistance of counsel. It follows that due process under the Fourteenth Amendment makes the Sixth Amendment right to counsel applicable in state criminal proceedings. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The right to counsel is the right to "the effective assistance of competent counsel." McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 1448, 25 L.Ed.2d 763 (1970), citing, inter alia, Reece v. Georgia, 350 U.S. 85, 90, 76 S.Ct. 167, 170, 100 L.Ed. 77 (1955). "The purpose of the effective assistance guarantee is ... to ensure that criminal defendants receive a fair trial." Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984).

The United States Supreme Court set forth an analysis to be followed in federal habeas corpus cases in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Only constitutional errors which are not harmless require reversal of a conviction. Chapman v. California, 386 U.S. at 22, 87 S.Ct. at 827. The Chapman harmless error analysis told us that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. at 24, 87 S.Ct. at 828.

The Supreme Court altered the Chapman analysis in Brecht v. Abrahamson, 507 U.S. 619, ___, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993). The Supreme Court held that the correct harmless error standard in most habeas corpus cases is "whether the error `had substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, supra, quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946). See Orndorff v. Lockhart, 998 F.2d 1426, 1430 (8th Cir.1993).

The Eighth Circuit reconciled Brecht and Chapman by holding that "the rule announced in Brecht does not apply and that the Chapman harmless error standard is the appropriate test" when "the state courts did not have the opportunity to review the error at all and the federal habeas court was the first court to review the constitutional error under the Chapman harmless error standard." Orndorff v. Lockhart, 998 F.2d at 1430. "The court's mere citation of Chapman in lieu of a plain statement summarizing its analysis does not suffice." Rust v. Hopkins, 984 F.2d 1486, 1495 (8th Cir.1993). "Considering an issue and finding no error does not carry with it an implicit Chapman analysis." Starr v. Lockhart, 23 F.3d 1280, 1292 (8th Cir.1994).

The Eighth Circuit recently visited the Chapman-Brecht standards in Hill v. Lockhart, 28 F.3d 832 (8th Cir.1994). There the Circuit Court held that the prejudice inquiry necessary in reviewing ineffective assistance of counsel claims set forth in Strickland is analogous to the harmless error analysis of Chapman and Brecht. Hill v. Lockhart, 28 F.3d at 838. Therefore, "it is unnecessary to add a separate layer of harmless-error analysis to an evaluation of whether a petitioner in a habeas case has presented a constitutionally significant claim for ineffective assistance of counsel." Hill v. Lockhart, 28 F.3d at 839.

The Eighth Circuit set forth the standards for judging an ineffective assistance of counsel claim as follows:

A petitioner's claim "that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the petitioner must show that counsel's performance was deficient.... Second, the petitioner must show that the deficient performance prejudiced the defense. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim."

Hill v. Lockhart, 28 F.3d at 837, quoting Strickland v. Washington, 466 U.S. at 687, 700, 104 S.Ct. at 2064, 2071. "A reviewing court's task with respect to attorney performance is to `determine whether, in light of all the circumstances, the lawyer's performance was outside the range of professionally...