Freeman v. Leapley, 18256

• Decision Date: 02 December 1993
• Docket Number: No. 18256,18256
• Citation: 519 N.W.2d 615
• Parties: Benjamin Franklin FREEMAN, Appellant, v. Walter LEAPLEY, Warden of the South Dakota State Penitentiary, Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 615

519 N.W.2d 615

Benjamin Franklin FREEMAN, Appellant, v. Walter LEAPLEY, Warden of the South Dakota State Penitentiary, Appellee.

No. 18256.

Supreme Court of South Dakota.

Considered on Briefs Dec. 2, 1993.

Decided July 27, 1994.

Jack Gunvordahl of Gunvordahl & Gunvordahl, Burke, for appellant.

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

AMUNDSON, Justice.

Benjamin Franklin Freeman appeals an order quashing a writ of habeas corpus. We affirm.

FACTS/PROCEDURAL HISTORY

Freeman was charged with grand theft of an automobile. Gwendolyn Laprath was appointed to represent him. Before trial, Laprath filed a motion for change of venue and a motion to suppress testimony from David Primeaux, Freeman's accomplice in the grand theft. The trial judge denied both motions. The case proceeded to a jury trial and Freeman was found guilty. We will outline and discuss the pertinent facts later in this opinion. We affirmed Freeman's conviction on direct appeal. State v. Freeman, 487 N.W.2d 629 (1992).

On August 18, 1992, represented by Jack Gunvordahl, Freeman filed a petition for writ of habeas corpus. After a hearing on the matter, at which no witnesses testified, the circuit court entered an order quashing the writ of habeas corpus. The circuit court issued a certificate of probable cause and Freeman initiated this appeal.

DECISION

Before a petitioner may succeed on an ineffective assistance of counsel claim he must fulfill the two-prong test stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and prove that trial counsel's performance was deficient and that the deficient performance prejudiced petitioner's defense. Strickland v. Washington, supra; Boykin v. Leapley, 471 N.W.2d 165, 167 (S.D.1991); Gross v. Solem, supra; Roden v. Solem, 431 N.W.2d 665 (S.D.1988); Luna v. Solem, 411 N.W.2d 656 (S.D.1987); Jones v. State, 353 N.W.2d 781 (S.D.1984).

Wabasha v. Leapley, 492 N.W.2d 610, 611-12 (S.D.1992).

The United States Supreme Court recently clarified the "prejudice" analysis to be applied in ineffective assistance of counsel cases. It is not enough for the criminal to show that the outcome would have been different. The Supreme Court explained:

[A]n analysis focussing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him.

Lockhart v. Fretwell, 506 U.S. ----, ----, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180, 189 (1993) (footnote omitted). The Supreme Court specified that the proper prejudice analysis is whether "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id.

Freeman contends his defense counsel was deficient in eight separate respects. We agree that defense counsel's representation was deficient in certain respects. However, after carefully reviewing the entire record and considering the evidence and arguments placed before the jury, we do not conclude that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id.

Freeman contends his defense counsel was deficient in the following respects.

1. Defense counsel should have requested a jury instruction on accomplice testimony.

David Primeaux, Freeman's accomplice, testified at trial that Freeman stole the automobile. Although defense counsel tried unsuccessfully to prevent Primeaux's testimony, she did not request an instruction concerning accomplice testimony. The criminal pattern jury instructions contain a representative instruction for such situations. See Criminal Pattern Jury Instruction 1-14-8. It would have done no harm to Freeman's defense to request such an instruction. Therefore, it cannot be said that defense counsel made a reasonable tactical decision not to request an instruction on accomplice testimony. See Grooms v. State, 320 N.W.2d 149, 152 (S.D.1982) ("We cannot envision an advantage which could have been gained by withholding a request for this instruction").

2. Defense counsel should have requested a jury instruction on corroboration of accomplice testimony.

Primeaux was an accomplice and was allowed to testify. A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence. SDCL 23A-22-8. State v. Sondreal, 459 N.W.2d 435 (S.D.1990). In this case there was evidence corroborating Primeaux's testimony. Still, defense counsel should have requested a jury instruction regarding corroboration of accomplice testimony. The criminal pattern jury instructions contain a representative instruction for such cases. See Criminal Pattern Jury Instruction 1-14-7. A jury instruction regarding corroboration of accomplice testimony may have strengthened Freeman's defense. Such an instruction certainly would not have harmed his defense and thus we do not believe it was a reasonable tactical decision not to request the instruction. See Grooms, 320 N.W.2d at 152.

3. Defense counsel should have objected to hearsay statements which identified Freeman as the thief.

State trooper Evanson testified at trial that "when I was cuffing David Primeaux, he had mentioned that Ben Freeman was the driver of the vehicle." Freeman's defense counsel did not object. Another example of unchallenged testimony which may have constituted hearsay was when Primeaux was allowed to testify that Freeman stated, "I am going to try to steal a car somewhere." State contends these statements were admissible as exceptions to the hearsay rule. State also argues the statements were offered to explain why police officers searched Freeman, not to prove that Freeman stole the car. State's arguments merely highlight the problem with counsel's failure to object. Whether either statement was hearsay requires an analysis of the hearsay rule and the exceptions thereto. Defense counsel did not object to the statements and consequently the trial court was never called upon to rule on the admissibility of the statements. Even if the statements were admissible as exceptions to the hearsay rule, defense counsel should have asked that the jury be instructed that the statements were being offered for that limited purpose.

On the other hand, one may argue that Freeman's defense counsel realized the statements were admissible as exceptions to the hearsay rule. Defense counsel may have concluded that objecting to the statements, only to be overruled by the trial court, would accomplish nothing except to draw undue attention to the damaging statements. If defense counsel was guided by such motives, her failure to object could be seen as a reasonable tactical decision. Laprath did not testify at the habeas corpus hearing. As a result, this Court has not had the opportunity to consider defense counsel's explanation of her actual motives.

4. Defense counsel should not have offered the police report which contained damaging hearsay evidence.

Defense counsel offered into evidence a police statement which contained a transcript of questions asked to David Primeaux. Primeaux was asked: "Who took the car last night?" He responded, "He did! Ricky Freeman said he steal car to go to Norfolk!" At this point in the trial, State Trooper Evanson had already been allowed to testify that Primeaux said Freeman stole the car. Defense counsel introduced the written statement and asked numerous questions about it. From the trial transcript, it appears defense counsel was trying to show that the police officers did not undertake a thorough investigation, but rather took Primeaux's word about who stole the car. Thus, defense counsel apparently made a tactical decision to introduce the statement in an effort to attack the thoroughness of the police officers' investigation. However, one must question the reasonableness of defense counsel's tactical decision. Defense counsel could have attacked the thoroughness of the investigation without admitting the police report. By offering the written statement into evidence, she presented the jury with documentary evidence containing a statement that Freeman stole the car.

5. Defense counsel should have moved for a judgment of acquittal at the close of the prosecution's case.

At the completion of the prosecution's case, defense counsel did not move for an acquittal. It is possible, although extremely unlikely, that a trial judge would have granted a motion for acquittal. Such a motion was certainly not absolutely futile. Moreover, moving for acquittal would not have harmed Freeman's case in any respect. Although her failure to do so did not make a difference, there is no justification for her failure to move for judgment of acquittal.

6. Defense counsel did not object to the prosecutor's questions concerning Freeman's decision to exercise his right to remain silent.

The prosecutor asked State Trooper Heidma if he had read Freeman a card outlining his Miranda rights. Officer Evanson stated that he had. The prosecutor then asked: "And his response to the last question was what? Officer Evanson replied: "No, I want an attorney." Upon further questioning, Officer Evanson testified that Primeaux was read his rights and decided to talk with the police before consulting with his attorney. Defense counsel did not object to the prosecutor's questions concerning Freeman's exercise of his right to remain silent.

Defense counsel may have made a reasonable tactical decision that such testimony was not harmful to the defense. It is important to note that the trial court, in its final instructions, told the jury, "Every defendant in a criminal case has the absolute right not to testify. You must not draw any inference of guilt against the defendant because he did not testify."

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