Horse v. Weber

• Decision Date: 16 October 2013
• Docket Number: No. 26577.,26577.
• Citation: 2013 S.D. 74,838 N.W.2d 831
• Parties: Vincent Chad FAST HORSE, Petitioner and Appellant, v. Douglas WEBER, Warden of the South Dakota State Penitentiary, Respondent and Appellee.
• Court: South Dakota Supreme Court

838 N.W.2d 831

2013 S.D. 74

Vincent Chad FAST HORSE, Petitioner and Appellant,

v.Douglas WEBER, Warden of the South Dakota State Penitentiary, Respondent and Appellee.

No. 26577.

Supreme Court of South Dakota.

Considered on Briefs Aug. 27, 2013.

Decided Oct. 16, 2013.

Cynthia A. Howard of Minnehaha County Office of The Public Advocate, Sioux Falls, South Dakota, Attorneys for petitioner and appellant.

Marty J. Jackley, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent and appellee.

WILBUR, Justice.

[¶ 1.] Vincent Fast Horse appeals the denial of his request for habeas corpus relief. We affirm.

FACTS AND PROCEDURAL BACKGROUND

[¶ 2.] Fast Horse was indicted by a grand jury in September 2007 for the crimes of first-degree kidnapping, second-degree rape, and aggravated assault. The State also filed a part two information, which alleged that Fast Horse had been previously convicted of two felonies. The factual and procedural history of this case is set forth in this Court's opinion in State v. Fasthorse (Fasthorse), 2009 S.D. 106, 776 N.W.2d 233.¹

[¶ 3.] Traci Smith (trial counsel) was appointed to represent Fast Horse. Fast Horse pleaded not guilty to the charges and the part two information at an arraignment hearing ² on October 24, 2007. The jury convicted Fast Horse of the three charges.

[¶ 4.] On July 28, 2008, the trial court conducted an arraignment hearing in relation to Fast Horse's part two information at which Fast Horse pleaded guilty. Ultimately, the trial court sentenced Fast Horse to 25 years in prison for aggravated assault, 60 years in prison for second-degree rape, and 60 years in prison for first-degree kidnapping. These penalties were to run concurrently with each other and consecutively to Fast Horse's 1996 rape conviction.³

[¶ 5.] Fast Horse appealed his convictions for aggravated assault, kidnapping, and rape to this Court in Fasthorse. See generally id. This Court affirmed Fast Horse's convictions. Id.

[¶ 6.] Fast Horse filed a pro se petition for writ of habeas corpus on October 8, 2010. Fast Horse was appointed new counsel. On February 17, 2012, Fast Horse filed an amended application for writ of habeas corpus. The habeas court filed a writ of habeas corpus on the same day. A habeas hearing was held on June 5, 2012. At the hearing, an investigator from the police department, trial counsel, Fast Horse, and one of the two prosecutors, Paul Bengford, testified.

[¶ 7.] On August 10, 2012, the habeas court filed a memorandum decision denying Fast Horse's writ of habeas corpus. The habeas court subsequently entered findings of fact and conclusions of law, and an order denying the permanent writ of habeas corpus and judgment on September 10, 2012.

[¶ 8.] Fast Horse appeals the denial of his writ of habeas corpus and presents the following issues on appeal:

1. Whether Fast Horse was denied effective assistance of counsel when his trial counsel did not thoroughly investigate his case; incorrectly advised him of the maximum possible penalty; did not obtain a plea bargain offer for him; and did not adequately attack the credibility of the victim.

2. Whether Fast Horse was denied a fair trial when the trial court limited his ability to cross-examine the victim.

3. Whether Fast Horse was denied due process of law when the arraigning court incorrectly advised Fast Horse of the maximum possible penalty.

STANDARD OF REVIEW

[¶ 9.] “A habeas corpus claim is a collateral attack on a final judgment and therefore our review is limited.” Boyles v. Weber, 2004 S.D. 31, ¶ 6, 677 N.W.2d 531, 536. “A habeas corpus applicant has the initial burden of proof to establish a colorable claim for relief.” Steiner v. Weber, 2011 S.D. 40, ¶ 4, 815 N.W.2d 549, 551 (quoting Jenner v. Dooley, 1999 S.D. 20, ¶ 11, 590 N.W.2d 463, 468). “Habeas corpus can only be used to review (1) whether the court had 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. (quoting Jenner, 1999 S.D. 20, ¶ 11, 590 N.W.2d at 468). A habeas court's findings of fact will be upheld unless such findings are clearly erroneous. Boyles, 2004 S.D. 31, ¶ 6, 677 N.W.2d at 536.

[¶ 10.] Additionally, we have previously delineated the standard of review for claims of ineffective assistance of counsel:

Whether 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 Court, however, may substitute its own judgment for that of the circuit court as to whether defense counsel's actions or inactions constituted ineffective assistance of counsel.

Id. ¶ 7, 677 N.W.2d at 536 (quoting Hays v. Weber, 2002 S.D. 59, ¶ 12, 645 N.W.2d 591, 596).

DECISION

[¶ 11.] In this appeal, Fast Horse alleges four instances of ineffective assistance of counsel that he claims affected the outcome of his trial. In addition, Fast Horse alleges two due process violations. First, Fast Horse alleges that he was denied a fair trial when the trial court limited his ability to cross-examine the victim. Second, he alleges that he was denied due process when the arraigning court incorrectly advised him of the maximum possible penalty.

[¶ 12.] 1. Whether Fast Horse was denied effective assistance of counsel when his trial counsel did not thoroughly investigate his case; incorrectly advised him of the maximum possible penalty; did not obtain a plea bargain offer for him; and did not adequately attack the credibility of the victim.

[¶ 13.] Fast Horse alleges four instances of ineffective assistance of counsel. Specifically, he contends that his trial counsel failed to thoroughly investigate his case; incorrectly advised him of the maximum possible penalty; did not obtain a plea bargain offer for him; and did not adequately attack the credibility of the victim.

[¶ 14.] “To prevail ‘on a claim of ineffective assistance of counsel, a defendant must show that his counsel provided ineffective assistance and that he was prejudiced as a result.’ ” State v. Hannemann, 2012 S.D. 79, ¶ 11, 823 N.W.2d 357, 360 (quoting State v. Thomas, 2011 S.D. 15, ¶ 21, 796 N.W.2d 706, 713). “[A] defendant must show that counsel's representation fell below an objective standard of reasonableness.” Id. “The question is whether counsel's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom.” Id. Moreover,

[t]here is a strong presumption that counsel's performance falls within the wide range of professional assistance and the reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances and the standard of review is highly deferential. The petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.

Boyles, 2004 S.D. 31, ¶ 27, 677 N.W.2d at 540 (quoting Siers v. Class, 1998 S.D. 77, ¶ 12, 581 N.W.2d 491, 495).

[¶ 15.] “To establish prejudice, there must be ‘a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ” Hannemann, 2012 S.D. 79, ¶ 11, 823 N.W.2d at 360 (quoting Thomas, 2011 S.D. 15, ¶ 28, 796 N.W.2d at 715). “Ultimately, ... the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id.

Case investigation

[¶ 16.] Fast Horse contends that trial counsel was ineffective because she failed to interview the victim's boyfriend. Fast Horse argues that the victim's boyfriend could have been a source of information to attack the victim's credibility because the victim completed a medical questionnaire in which she stated that she had not had sexual intercourse within 72 hours prior to the rape even though the victim's boyfriend's DNA was present in the victim and on her undergarments. Fast Horse contends that “[the victim's boyfriend] was an important source of information about [the victim's] sexual activity during the time frame of the alleged rape.” And Fast Horse alleges that “[i]n the end, [the victim's boyfriend] might not have been called as a witness for the defense, but he surely had information that was pertinent to the case.”

[¶ 17.] “We have held that ‘standing alone, the fact that defense counsel failed to investigate a witness does not by itself satisfy the prejudice prong of Strickland.’ ” Boyles, 2004 S.D. 31, ¶ 31, 677 N.W.2d at 542 (quoting Siers, 1998 S.D. 77, ¶ 25, 581 N.W.2d at 497–98). And, in order for Fast Horse to establish prejudice, “he must show ‘that the witness would have testified and that their testimony would have probably changed the outcome of the trial.’ ” Id. “[S]peculation about the existence of a witness and what the witness might say is [also] inadequate to undermine confidence in the outcome and to establish the prejudice prong of a claim of ineffective assistance of counsel.” Fast Horse v. Weber (Fast Horse I), 1999 S.D. 97, ¶ 18, 598 N.W.2d 539, 544 (emphasis added).

[¶ 18.] Trial counsel testified that she made a tactical decision not to solicit any testimony from the victim's boyfriend “[b]ecause all he would have really done is confirm that [victim and victim's boyfriend] had had sex.” Trial counsel stated that if the victim's boyfriend had confirmed that the two had sexual intercourse,

all it would have turned out to be is “So [the victim] was mistaken when she told the doctor when she[ ] [was] under the influence of alcohol and...