Hofman v. Weber

Citation2002 SD 11,639 N.W.2d 523
Decision Date23 January 2002
Docket NumberNo. 21928.,21928.
PartiesMarlo D. HOFMAN, Petitioner and Appellant, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent and Appellee.
CourtSupreme Court of South Dakota

Michael B. Thompson, Sioux Falls, South Dakota, for petitioner and appellant.

Mark Barnett, Attorney General, Sherri Sundem Wald, Pierre, South Dakota, for respondent and appellee.

AMUNDSON, Justice.

Marlo Hofman (Hofman) petitioned for writ of habeas corpus. The habeas court denied his petition. We reverse and remand.

FACTS

¶ Hofman was convicted of first degree murder at a jury trial and received a life sentence. Hofman appealed his conviction directly to this Court, which affirmed. State v. Hofman, 1997 SD 51, 562 N.W.2d 898. Hofman then filed a petition for writ of habeas corpus.

¶ On June 19, 1995, Ronald "Doc" Hofman (Doc) was beaten and stabbed to death inside the bar he owned in Brandt, South Dakota. Hofman, Doc's brother, became a suspect in the death. Law enforcement asked Hofman to go to Sioux Falls to take a polygraph test, which he did, and the test indicated Hofman had not been truthful in his answers. Immediately following the polygraph test, Department of Criminal Investigation Agent Bryan Gortmaker elicited a videotaped admission by Hofman. Following the questioning, Hofman, who had a history of mental illness, asked to be admitted to McKennan Hospital in Sioux Falls. He was taken to McKennan, where again, at the urging of Gortmaker, Hofman confessed to his cousin, Brian Ruhd, that he had caused his brother's death.

¶ After McKennan Hospital refused to admit Hofman, Gortmaker took Hofman to Brookings while in the process of transferring him to Deuel County, where the murder had occurred. The Deuel County Deputy Sheriff, Dave Solem, met up with Hofman and Gortmaker in Brookings, at which time Hofman was advised of his constitutional rights. Hofman waived his rights and again, at the prompting of Gortmaker, confessed to Deputy Solem that he had murdered his brother. ¶ Hofman was taken from Brookings to Watertown for detention. Upon his arrival in Watertown, Marie Suman, the jailer on duty, inquired into Hofman's reasons for being jailed. Hofman again admitted to killing his brother. In addition to his statement to Suman, Hofman also allegedly admitted to Todd Bren, another inmate at the Watertown jail, that he had killed his brother. The record also reflects that Hofman denied his guilt to a second inmate in the jail, Ron Tvedt.

¶ After a hearing, the habeas court concluded Hofman's admissions to Ruhd, Solem and Suman were involuntary, but found no prejudice resulted from their admission into evidence. The habeas court denied relief. Hofman appeals the habeas court's decision on the following issues:

1) Whether Hofman was prejudiced by his trial counsel's failure to timely move for the suppression of admissions given shortly after an involuntary confession was made, thereby resulting in ineffective assistance of counsel.
2) Whether Hofman's trial counsel was ineffective by failing to call a witness who could have testified that Hofman denied killing his brother.
STANDARD OF REVIEW

¶ The review of habeas decisions is "a collateral attack on a final judgment," and thus more restricted than ordinary appeals. See Krebs v. Weber, 2000 SD 40, ¶ 5, 608 N.W.2d 322, 324

(citations omitted) overruled on other grounds by Jackson v. Weber, 2001 SD 136, 637 N.W.2d 19. The recognized standard of review is to determine: "(1) whether the court has jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) in certain cases whether an incarcerated defendant has been deprived of basic constitutional rights." Id. We will not reverse the habeas court's findings unless they are clearly erroneous. Id. Therefore, if the habeas court was "right for any reason," we may affirm its ruling. Id.

¶ In order for Hofman to succeed on his claim of ineffective assistance of counsel, he must pass what is known as the Strickland test. See Davi v. Class, 2000 SD 30, ¶¶ 15-17, 609 N.W.2d 107, 111-12

(recognizing the test for ineffective assistance of counsel as outlined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Under the Strickland test, Hofman must first demonstrate that his trial counsel was not "functioning as counsel guaranteed by the Constitution[.]" Id. at ¶ 16. He must also prove prejudicial error so great that he was deprived of a fair trial. Id. Under the prejudice prong of the Strickland test, a reasonable probability of a different outcome in which confidence in the jury's verdict was seriously undermined must be proven. Weddell v. Weber, 2000 SD 3, ¶ 25, 604 N.W.2d 274, 281 (citing Loop v. Class, 1996 SD 107, ¶ 14, 554 N.W.2d 189, 192). We have stated:

[W]hether a defendant has received ineffective assistance of counsel is essentially a mixed question of law and fact. In the absence of a clearly erroneous determination by the circuit court, we must defer to its findings on such primary facts regarding what defense counsel did or did not do in preparation for trial and in his presentation of the defense at trial. This [C]ourt, however, may substitute its own judgment for that of the circuit court as to whether defense counsel's actions or inaction constituted ineffective assistance of counsel.

Weddell, 2000 SD 3 at ¶ 27, 604 N.W.2d at 281-82 (citations omitted). Furthermore, there is a presumption that counsel is competent, and if the presumption is not overcome, the Strickland test has not been satisfied. Ramos v. Weber, 2000 SD 111, ¶ 12, 616 N.W.2d 88, 92.

DECISION

¶ 1) Whether Hofman was prejudiced by his trial counsel's failure to timely move for the suppression of admissions given shortly after an involuntary confession was made, thereby resulting in ineffective assistance of counsel.

¶ Prior to trial, the court suppressed the videotaped confession to Gortmaker given after the polygraph test, holding it was involuntary. On the day of trial, after the jury had been selected, Hofman's counsel moved to suppress Hofman's statements to Ruhd and Solem. The trial court denied the motion as untimely. That ruling of the court was affirmed on direct appeal. Hofman, 1997 SD 51 at ¶ 10, 562 N.W.2d at 901 (citing SDCL 23A-8-3; State v. Maves, 358 N.W.2d 805, 810 (SD 1984)).

¶ A decision of this Court prior to Hofman's trial held that subsequent statements made in close time-proximity to inadmissible statements may be suppressed. See State v. Helmer, 1996 SD 31, ¶ 32, 545 N.W.2d 471, 476

.1

When preceding confessions or statements are inadmissible, subsequent statements are not automatically inadmissible, but they are suspect. State of South Dakota v. Long, 465 F.2d 65, 70 (8thCir.1972). "If from the facts, it is found that the two statements are so closely related as to taint the second, and there are no intervening events sufficient to purge the taint, the second must also be inadmissible." Id. The connection between the improper interrogation and the final incriminating statement must be so attenuated as to dissipate the taint. Stumes v. Solem, 671 F.2d 1150, 1158 (8thCir.1982) (citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). The reason for suppressing statements which follow an earlier involuntary statement parallels the reason for the suppression of the original statement. People v. Badgett, 10 Cal.4th 330, 41 Cal.Rptr.2d 635, 895 P.2d 877, 886 (1995) (citing Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967)). The second statement should be suppressed as it is involuntary in itself unless the taint of the first has been attenuated by the passage of time or other reasons. Id.

Id. at ¶ 32.

¶ To determine if subsequent statements are sufficiently attenuated so as to remove the taint from the prior improper statement, we have said that an array of factors may be analyzed. Id. at ¶ 33. They include: "a removal in time and place from the original setting, an adequate advisement of the accused's constitutional rights, and the opportunity to exercise those rights." Id. (citing Satter v. Solem, 458 N.W.2d 762, 768 (S.D.1990); Westover v. United States, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)).

¶ The habeas court acknowledged that the statement by Hofman to his cousin, Ruhd, was involuntary. Although the statements were issued in different places, (one at the Sioux Falls Sheriff's Department where the polygraph test was administered and one at McKennan Hospital) there was little time between the involuntary confession just after the polygraph test and the statement made to Ruhd. Additionally, the confession to Ruhd was made after Gortmaker requested Hofman tell his cousin about his confession, not of Hofman's own volition. Furthermore, Hofman was not advised of his constitutional rights at anytime between these two confessions.

¶ Next, the habeas court also acknowledged that the statement Hofman made to Solem was involuntary because it, again, was made at the direction of Gortmaker. Even though Hofman was advised of his constitutional rights prior to this confession, it was made in close timeproximity and, again, at the urging of DCI Agent Gortmaker.

¶ Finally, the habeas court determined Hofman's confession to Suman was involuntary. Because of Hofman's mental condition, educational level, susceptibility to suggestion, the lack of re-advisement of Hofman's constitutional rights and the limited amount of time that had passed, the statements were tainted by the previous involuntary videotaped statements to Gortmaker.2

¶ Importantly, the State does not contest the trial court's holding that the subsequent statements were involuntary. In fact, it stated in brief, "[T]he habeas court concluded that statements Petitioner made to Ruhd, Gortmaker and Solem, as well as to Suman on June 24 were...

To continue reading

Request your trial
5 cases
  • Aldrich v. State
    • United States
    • Court of Appeals of Texas
    • August 25, 2009
    ...because trial counsel failed to investigate or obtain experts for economic reasons, not as trial strategy); accord Hofman v. Weber, 639 N.W.2d 523, 529 (S.D.2002) (remanding case for new trial after holding that trial counsel's failure to move to suppress confessions was not within the real......
  • Kleinsasser v. Weber
    • United States
    • Supreme Court of South Dakota
    • March 2, 2016
    ...for that of the circuit court as to whether defense counsel’s actions or inaction constituted ineffective assistance of counsel. Hofman v. Weber, 2002 S.D. 11, ¶ 8, 639 N.W.2d 523, 526 (quoting Weddell v. Weber, 2000 S.D. 3, ¶ 27, 604 N.W.2d 274, 281-82 ). [¶17.] We apply the well-establish......
  • Kleinsasser v. Weber
    • United States
    • Supreme Court of South Dakota
    • March 2, 2016
    ...for that of the circuit court as to whether defense counsel's actions or inaction constituted ineffective assistance of counsel.Hofman v. Weber, 2002 S.D. 11, ¶ 8, 639 N.W.2d 523, 526 (quoting Weddell v. Weber, 2000 S.D. 3, ¶ 27, 604 N.W.2d 274, 281–82 ). [¶ 17.] We apply the well-establish......
  • Aldrich v. State, No. 2-05-303-CR (Tex. App. 11/26/2008)
    • United States
    • Court of Appeals of Texas
    • November 26, 2008
    ...because trial counsel failed to investigate or obtain experts for economic reasons, not as trial strategy); accord Hofman v. Weber, 639 N.W.2d 523, 529 (S.D. 2002) (remanding case for new trial after holding that trial counsel's failure to move to suppress confessions was not within the rea......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT