Knecht v. Weber, 21846.

• Citation: 2002 SD 21,640 N.W.2d 491
• Decision Date: 13 February 2002
• Docket Number: No. 21846.,21846.
• Parties: Gary KNECHT, Applicant and Appellant, v. Douglas L. WEBER, Warden, South Dakota State Penitentiary, Respondent and Appellee.
• Court: South Dakota Supreme Court

640 N.W.2d 491

2002 SD 21

Gary KNECHT, Applicant and Appellant, v. Douglas L. WEBER, Warden, South Dakota State Penitentiary, Respondent and Appellee.

No. 21846.

Supreme Court of South Dakota.

Argued October 2, 2001.

Decided February 13, 2002.

Michael J. Butler, Sioux Falls, SD, Attorney for applicant and appellant.

Mark Barnett, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, SD, Attorneys for respondent and appellee.

AMUNDSON, Justice.

[¶ 1.] Gary Knecht (Knecht) appeals an order dismissing his petition for Writ of Habeas Corpus, raising three separate claims of ineffective assistance of trial counsel. We affirm.

FACTS

[¶ 2.] Knecht was convicted of first degree manslaughter committed "without a design to effect death, and in a heat of passion, but in a cruel and unusual nature" under SDCL 22-16-15(2) as a result of a deadly altercation at the Legion Club in Martin, South Dakota. A more detailed version of the facts surrounding the shooting is set forth in Knecht's direct appeal to this Court, in which we affirmed the conviction. See State v. Knecht, 1997 SD 53, 563 N.W.2d 413.

[¶ 3.] Knecht filed an application for writ of habeas corpus on October 14, 1999, alleging that his conviction was unconstitutional based on ineffective assistance of counsel. The habeas court held an evidentiary hearing on June 29-30, 2000. At the hearing, Knecht called Dr. Donald M. Habbe, the pathologist who performed Marshall's autopsy, Dr. Thomas L. Bennett, another pathologist, and Gary Colbath, Jr., Knecht's defense lawyer at trial.¹ The habeas court dismissed Knecht's petition for habeas relief. Knecht now appeals the habeas court's decision, raising the following issues:

1) Whether counsels' failure to challenge the sufficiency of the evidence to support the jury's finding that the death was effected in a cruel and unusual manner on direct appeal deprived Knecht of effective assistance of counsel.

2) Whether counsels' failure to object when the prosecutor used the defense expert's report to impeach Knecht's trial testimony deprived Knecht of effective assistance of counsel.

3) Whether counsels' failure to obtain an expert forensic witness deprived Knecht of effective assistance of counsel.

STANDARD OF REVIEW

[¶ 4.] A review of a habeas case is not an ordinary appeal; thus we have previously recognized that the standard of review is quite limited. See Krebs v. Weber, 2000 SD 40, ¶ 5, 608 N.W.2d 322, 324, overruled on different grounds by Jackson v. Weber, 2001 SD 30, 637 N.W.2d 19. A habeas review is more restricted, as it is "a collateral attack on a final judgment." See id. (citations omitted). 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. Moreover, the habeas court's decision will not be overturned unless it is clearly erroneous. Id. Thus, if the court below was "right for any reason," we may affirm its ruling. Id. (citation omitted).

[¶ 5.] In order for Knecht to obtain habeas relief on the grounds of ineffective assistance of counsel, he must pass the two-part test for such a claim. See Davi v. Class, 2000 SD 30, ¶ 16, 609 N.W.2d 107, 112 (recognizing the test for ineffective assistance of counsel as presented in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Under this test, Knecht must first show that trial counsel erred so seriously that "counsel was not functioning as counsel guaranteed by the Constitution." Id. Second, he must prove that counsel's error prejudiced him so that he was deprived of a fair trial. Id. Prejudice, under the Strickland test, requires us to ask: "[B]ut for counsel's unprofessional errors" would the result at trial have been different? Weddell v. Weber, 2000 SD 3, ¶ 25, 604 N.W.2d 274, 281 (citation omitted). To find prejudice, the answer must be that there is a reasonable probability of a different outcome. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." See id. (quoting Loop v. Class, 1996 SD 107, ¶ 14, 554 N.W.2d 189, 192). Additionally, this Court has stated:

In reviewing a habeas court's determination of ineffective assistance of counsel we have stated: 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 inaction constituted ineffective assistance of counsel.

Id. at ¶ 27 (citations omitted). When analyzing the ineffective assistance of counsel claims, counsel is presumed competent, and this strong presumption must be overcome by Knecht. See Ramos v. Weber, 2000 SD 111, ¶ 12, 616 N.W.2d 88, 92.

DECISION

1. Whether counsels' failure to challenge the sufficiency of the evidence to support the jury's finding that the death was effected in a cruel and unusual manner on direct appeal deprived Knecht of effective assistance of counsel.

[¶ 6.] Knecht contends, "as a matter of law, the death of Marshall was not effected in a cruel and unusual manner, even when the evidence adduced at trial is viewed in a light most favorable to the [jury] verdict."² In cases reviewing convictions under this statute, we previously have stated that for the defendant to be convicted of manslaughter under subsection two, the evidence must show that the killing was "shocking or barbaric" and in a manner "sufficiently unique in ferocity, duration and manner of accomplishment." See Graham v. State, 328 N.W.2d 254, 255 (S.D.1982) (citing State v. Lange, 82 S.D. 666, 672, 152 N.W.2d 635, 638 (1967)); State v. Stumes, 90 S.D. 382, 385, 241 N.W.2d 587, 589 (1976).³ Knecht alleges that multiple gunshots fired rapidly after an altercation between two men who had been drinking is not so "out of the ordinary" as to establish the "cruel and unusual" element of this crime. See Lange, 82 S.D. at 672,152 N.W.2d at 638 (citations omitted).

[¶ 7.] The habeas court below acknowledged that this was not merely a case of "fisticuffs." It noted that Knecht used a rifle against an unarmed man who arguably had retreated from the altercation. Additionally, Knecht did not shoot just once, but the evidence presented at trial showed ten shots, with six hitting Marshall. Marshall sustained massive internal and external bleeding from the bullet wounds. In fact, when the deputy who first approached Marshall viewed him, the deputy testified that Marshall was so bloody that he was not recognizable. The deputy asked Marshall, who was still conscious for a period after the shooting, who had shot him, and Marshall responded "in a choking voice, `G-G-Gary'" as he pointed towards the Legion. Marshall could say no more because he began vomiting large amounts of blood.

[¶ 8.] A review of the evidence in this case, as done by the habeas court, would obviously allow a jury to find the crime charged was committed in a cruel and unusual manner beyond a reasonable doubt. See Graham v. State, 346 N.W.2d 433, 435 (S.D.1984) (Graham II) (finding that bludgeoning a man to death with the repeated blows of a crow bar was a sufficient factual basis to accept a guilty plea for a homicide committed in a cruel and unusual way). See also, State v. Jaques, 428 N.W.2d 260, 267 (S.D.1988) (finding that repeated kicks to the head and strikes during a fight was sufficient to support a conviction for manslaughter committed in a cruel and unusual manner). The Jaques court stated: "While death from a single shove in a drunken street brawl is not cruel and unusual, a prolonged beating of a woman by a drunken defendant outweighing her by 100 pounds is sufficient to reach the jury on the point." 428 N.W.2d at 267. Similarly, a single gunshot in self-defense would likely not rise to the level of cruel and unusual. Repeated shots in various parts of the body, unnecessary to effectuate self-defense, do rise to that level.⁴ [¶ 9.] The habeas court determined that trial counsels' failure to raise this issue at trial or on appeal did not constitute ineffective assistance and we agree.

2. Whether counsel's failure to object when the prosecutor used the defense expert's report to impeach Knecht's trial testimony deprived Knecht of effective assistance of counsel.

[¶ 10.] The defense attorneys hired Dr. Stephen Manlove to evaluate Knecht in preparation for trial. They did so in order to have the effect of Knecht's prior military service in Vietnam and his alcohol abuse analyzed as it related to his thought process at the time of this incident. At a pre-trial hearing, defense counsel informed the prosecution and the trial court that Knecht would not be presenting any mental illness defense. The Manlove report was turned over to the State pursuant to the discovery order entered in the case.

[¶ 11.] The State alleges Knecht never indicated that Manlove would not be used to testify on the issue of diminished capacity, which the defense had planned to raise at trial. Also, the defense listed Manlove as a potential witness. Manlove, however, was never called by the defense at trial, nor was Knecht questioned about his own mental condition during direct examination (other than with regard to his drinking on the night of the murder). On cross-examination, however, the prosecutors made use of Manlove's report to impeach Knecht's testimony and defense counsel never objected.

[¶ 12.] Now, Knecht alleges that defense counsel's failure to object to the cross-examination that utilized Manlove's...