Jibben v. State
| Decision Date | 16 December 1982 |
| Docket Number | No. 13859,13859 |
| Citation | 343 N.W.2d 788 |
| Parties | Jimmy Dean JIBBEN, Petitioner and Appellant, v. STATE of South Dakota, Appellee. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Richard Braithwaite of Braithwaite Law Offices, Sioux Falls, for petitioner and appellant.
Mark Smith, Asst. Atty. Gen., Pierre, for appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
Petitioner, Jimmy Dean Jibben, was convicted of incest and sentenced to eight years in the penitentiary. Because of the nature of the issues that he raises, petitioner dismissed his direct appeal and instituted this post-conviction proceeding. 1 See State v. McBride, 296 N.W.2d 551 (S.D.1980). We affirm.
Petitioner argues that he was denied a trial by an impartial jury because one of the jurors lied during voir dire by testifying that she did not know him. Petitioner claimed that they had met briefly on three occasions. He did not produce the juror at the post-conviction hearing or offer any evidence other than his own testimony to support his contention that the juror lied.
The trial judge found that petitioner made no showing that he was prejudiced by the selection of this juror. We agree. Petitioner had an opportunity to remove the juror by peremptory challenge; instead, he waived his remaining peremptory challenges at the time the juror was seated. If petitioner was at all prejudiced, it was at his own hand.
Petitioner also argues that he was denied effective assistance of counsel. In a criminal prosecution, every defendant has a constitutional right to counsel. Miller v. State, 338 N.W.2d 673 (S.D.1983). An attorney is presumed competent; the party alleging incompetency has a heavy burden of establishing ineffective assistance of counsel. Grooms v. State, 320 N.W.2d 149 (S.D.1982). A petitioner attempting to show ineffective counsel must also demonstrate that he was prejudiced by the alleged ineffective assistance. State v. Pieschke, 262 N.W.2d 40 (S.D.1978). Here, petitioner's claim of ineffective counsel is based on the fact that his trial attorney did not cross-examine his daughter, the complaining witness, at the preliminary hearing.
It is not this court's function to second-guess the tactical decisions of the trial attorney. We will not substitute our own theoretical judgment for that of the defense counsel who had dealt with petitioner in an attorney-client relationship. Grooms v. State, supra. This is especially true of defense tactics concerning the testimony of a complaining witness to a sex offense. In Crowe v. State, 86 S.D. 264, 194 N.W.2d 234 (1972), for example, we resisted any attempt to equate defense counsel's waiver of preliminary hearing on his client's rape charge with ineffective assistance of counsel:
... There could be a number of valid reasons why experienced defense counsel might wish to waive a preliminary hearing. Experienced defense attorneys and prosecutors know that when the state's witnesses are clear and convincing in their testimony the state's hand can be strengthened by the dress rehearsal for trial that is afforded by a preliminary hearing. In rape cases a victim's resolve may well be strengthened once she has gone through the ordeal of cross-examination at the preliminary hearing. A properly conducted prelininary hearing can preserve testimony for trial....
Id. at 274, 194 N.W.2d at 239. The Illinois decision of People v. Meeks, 27 Ill.App.3d 144, 326 N.E.2d 413 (1975), held similarly that a defendant accused of rape, battery, and deviate sexual assault was not denied effective assistance of counsel when his attorney abstained from cross-examining the complaining witness at the preliminary hearing.
Because of her age and the nature of the offense, petitioner's daughter was likely to win sympathy as a complaining witness. A "dress rehearsal" cross-examination at the preliminary hearing may have unnecessarily seasoned her against impeachment at trial, especially since she had recently testified at petitioner's incest trial in Kansas. Petitioner's attorney obtained transcripts of this testimony prior to the preliminary hearing.
We perceive no breach of duty in the decision not to cross-examine this witness at the preliminary hearing. We consider it a matter of trial tactics. Even if there had been a breach, petitioner has not indicated how the defense was prejudiced. Defense...
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State v. Wurtz
...("It takes me longer to understand things") could stir up jurors' emotions on cross-examination on unessential details. In Jibben v. State, 343 N.W.2d 788 (S.D.1984), we observed that a minor victim of incest, because of her age and the nature of the offense, was "likely to win sympathy as ......
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Satter v. Solem
...is not this court's function to second-guess the tactical decisions of counsel nor to substitute its own theory of defense. Jibben v. State, 343 N.W.2d 788 (S.D.1984). Satter also argues that Hackett was deficient because he did not seek to excise a portion of his written confession which r......
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Chief Eagle v. Solem
...of counsel. We will simply not attempt to substitute our own theoretical judgment for that of Chief Eagle's counsel. Jibben v. State, 343 N.W.2d 788 (S.D.1984); Grooms v. State, 320 N.W.2d 149 Accordingly, we reverse the granting of the writ of habeas corpus. MORGAN and SABERS, JJ., concur.......
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Satter v. Solem
...that we will not second-guess a defense counsel's judgment if the acts complained of appear to be legitimate trial tactics. Jibben v. State, 343 N.W.2d 788 (S.D.1984); State v. Tchida, 347 N.W.2d 338 Most of the concern surrounding the question of ineffective assistance of counsel relates t......