Jenner v. Leapley
| Decision Date | 31 August 1994 |
| Docket Number | No. 18348,18348 |
| Citation | 521 N.W.2d 422 |
| Parties | Michael JENNER, Applicant and Appellant, v. Walter LEAPLEY, Warden of the South Dakota State Penitentiary, Appellee. |
| Court | South Dakota Supreme Court |
Steven R. Binger, Breit and Binger, Sioux Falls, for appellant.
Mark Barnett, Atty. Gen. and Craig Eichstadt, Asst. Atty. Gen., Pierre, for appellee.
Michael Jenner was convicted on April 6, 1987, of first degree premeditated murder, conspiracy to commit murder, and accessory after the fact to murder. This Court affirmed his conviction and life sentence in State v. Jenner, 434 N.W.2d 76 (S.D.1988). On April 5, 1993, the habeas court denied Jenner's request for a writ of habeas corpus. Jenner appeals the following issues which we address seriatim:
I. Did the prosecutor improperly vouch for a witness' veracity and did defense counsel's failure to object constitute ineffective assistance of counsel?
II. Was Jenner denied effective assistance of counsel when his attorney failed to:
a. present testimony to explain Jenner's possession of a photo and object to the prosecutor's corresponding rebuttal argument?
b. establish that Jenner was a non-smoker?
c. properly cross-examine a State witness?
d. prevent the introduction by the co-defendant of testimony concerning the length of Jenner's prior incarcerations?
e. propose an accomplice instruction?
f. object to the prosecutor's improper summation attacking the integrity of defense counsel?
g. properly handle the filing of the Notice of Alibi?
h. object to the prosecutor's cross-examination of Jenner concerning the veracity of other witnesses' testimony?
III. Did the cumulative effect of counsel's errors deprive Jenner of his right to effective assistance of counsel?
Whereas Jenner received a fair trial with a reliable result, we conclude that his counsel's representation did not fall below the Strickland standard and affirm.
In 1984, after witnessing his cousin, Ricky Fenstermaker, fatally stab a hitchhiker on a California highway, Jackie Sjong reported the killing to the authorities. Following his arrest in 1986, Fenstermaker called a fellow member of the Vagos, an "outlaw" motorcycle club, to have Sjong "picked up."
Soon thereafter, Sjong was found dead under a bridge near Spearfish, the victim of four bullets fired at close range from two different weapons. Two months later, Vagos members Jenner and J. Richard Elliott were charged with the murder of Sjong.
Initially, the two defendants had compatible alibis during their joint trial. (The trial court denied a motion for severance.) In mid-trial, Elliott changed his defense strategy and implicated Jenner, adding that Jenner forced him to fire two more bullets into Sjong as part of a Vagos policy to involve another person in the commission of a crime to prevent that person from informing the authorities. Fenstermaker, with immunity from prosecution, provided key testimony against Jenner and Elliott. Both defendants were found guilty of first degree murder and conspiracy to commit that murder. See State v. Jenner, supra, for a complete discussion of these facts.
Throughout these proceedings and direct appeal, Jenner was represented by court-appointed attorney Christopher Baumann, a former public defender in Rapid City who was engaged in a private criminal law practice. Elliott was represented by separate counsel who was present throughout these proceedings. At the habeas hearing, Baumann testified that he provided competent counsel. The trial court agreed, denouncing most of Jenner's complaints as "trial tactics" which did not prevent Jenner from receiving a fair trial. We affirm.
In reviewing the denial of a writ of habeas corpus, we start with the presumption that an attorney is competent until a showing to the contrary is made; thus, 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). The scope of review is limited in a state habeas corpus proceeding because the remedy is in the nature of a collateral attack on a final judgment. Gregory v. Solem, 449 N.W.2d 827 (S.D.1989). We are not here to debate the guilt or innocence of the petitioner, but to examine his constitutional right to effective counsel. Such effective counsel, however, is not always equated with a successful result. 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), cert. denied, 490 U.S. 1091, 109 S.Ct. 2432, 104 L.Ed.2d 989 (1989).
In Roden v. Solem, 431 N.W.2d 665, 667 (S.D.1988), this Court noted:
When reviewing trial counsel's performance, "it is not our function to second guess the decisions of experienced trial attorneys regarding matters of tactics." State v. Walker, 287 N.W.2d 705, 707 (S.D.1980). However, the legal counsel guaranteed by the Sixth Amendment requires defense counsel to "investigate and consider possible defenses" and "other procedures" and to "exercise his good faith judgment thereon." Crowe v. State, 86 S.D. 264, 271, 194 N.W.2d 234, 238 (1972).
Generally, the making or failure to make motions and objections are trial decisions within the discretion of trial counsel. State v. Anderson, 387 N.W.2d 544 (S.D.1986); State v. Tchida, 347 N.W.2d 338 (S.D.1984). This general rule will not apply, however, where trial counsel's actions cannot reasonably relate to any strategic decision and are clearly contrary to the actions of competent counsel in similar circumstances.
To establish ineffective assistance of counsel, a defendant must prove both that counsel's representation fell below an objective standard of reasonableness and that such deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Luna v. Solem, 411 N.W.2d 656 (S.D.1987). The Strickland analysis was further clarified last year:
Thus, an 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 the 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 (1993). 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 v. Leapley, 511 N.W.2d 845, 847 (S.D.1994).
Prior to trial, State granted Fenstermaker immunity from prosecution for any involvement with the death of Sjong. Jenner asserts that the prosecutor improperly bolstered Fenstermaker's credibility by emphasizing the immunity agreement.
First, we review the purpose of habeas corpus. The remedy of post-conviction habeas corpus is restricted by the provisions of SDCL 21-27-16 and the prior decisions of this Court. As we noted in McCafferty, 449 N.W.2d at 591, this remedy "can be used only 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." Habeas corpus is not a proper remedy to correct irregular procedures, rather, it reaches only jurisdictional error. McCafferty, 449 N.W.2d at 591; Goodroad v. Solem, 406 N.W.2d 141, 143 (S.D.1987). In fact, the very issue of improper bolstering was raised by Jenner's pro se brief on direct appeal and was summarily rejected by this Court. Jenner, 434 N.W.2d at 80. Hence, it shall not be considered again.
Acknowledging this possibility, Jenner alleges Baumann's failure to object to the bolstering at trial equates to ineffective assistance of counsel. This "failure" is based upon State v. Goodroad, 455 N.W.2d 591 (S.D.1990), a decision handed down three years after Jenner's trial. Baumann's effectiveness cannot be weighed against a standard that was not in existence or recognized in this jurisdiction. "Counsel cannot be presumed to know the rulings of this court prior to their release." State v. Iron Shell, 336 N.W.2d 372, 375 (S.D.1983). Nor did the trial court have South Dakota precedent to rely on concerning the claim of bolstering.
Nevertheless, we feel that it is important to revisit State v. Goodroad where this Court first analyzed the subject of improper bolstering/improper vouching of a witness. 455 N.W.2d at 594-95. Vouching is not strictly taboo, rather it is the prejudicial effect which must be avoided.
In Goodroad, an agent for the Department of Criminal Investigation testified that another witness, who had yet to testify, received a plea bargain and promised to testify truthfully. According to the agent, if the witness lied, the witness would face prosecution for "all of the drug deals he's admitted." Thus, the jury was informed that the witness had confessed to committing a crime and would now testify truthfully to avoid punishment. During his closing argument, the prosecutor stated the witness was staking his freedom on the truth with the plea agreement. We held that this was beyond prosecutorial bounds and quoted the following from United States v. Roberts, 618 F.2d 530, 536 (9th Cir.1980), cert. denied, 452 U.S. 942, 101 S.Ct. 3088, 69 L.Ed.2d 957 (1981) The witness, who would otherwise seem untrustworthy, may appear to...
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