Larry Buffalo Chief v. State of South Dakota

• Decision Date: 03 June 1970
• Docket Number: No. 19786.,19786.
• Citation: 425 F.2d 271
• Parties: Application of LARRY BUFFALO CHIEF, for a Writ of Habeas Corpus, v. STATE OF SOUTH DAKOTA and Don R. Erickson, Warden, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

425 F.2d 271 (1970)

Application of LARRY BUFFALO CHIEF, for a Writ of Habeas Corpus, v. STATE OF SOUTH DAKOTA and Don R. Erickson, Warden, Appellants.

No. 19786.

United States Court of Appeals, Eighth Circuit.

April 30, 1970.

Rehearing Denied June 3, 1970.

R. James Zieser, Asst. Atty. Gen., State of South Dakota, Pierre, S. D., for appellants; Gordon Mydland, Atty. Gen., State of South Dakota, on the brief.

Clinton G. Richards, of Hayes & Richards, Deadwood, S. D., on brief, for appellee.

Before MATTHES, GIBSON and LAY, Circuit Judges.

GIBSON, Circuit Judge.

The State of South Dakota appeals from an order of the United States District Court for South Dakota, the Honorable Fred J. Nichol, granting Larry Buffalo Chief's petition for writ of habeas corpus.¹ Judge Nichol ordered Buffalo Chief released from the State Penitentiary at Sioux Falls, South Dakota within 90 days of the court's order or within 90 days of an affirmance of the order on appeal, unless a new trial is awarded to the petitioner in the South Dakota Circuit Court within the allotted time.

This case presents serious questions of state-federal relationships, of federal review of state convictions, and of the extent of the assistance of counsel guarantee under the Sixth Amendment to the United States Constitution.

The petitioner, Larry Buffalo Chief, hereafter referred to as "petitioner" or "Buffalo Chief", was originally tried with a co-defendant, Leon Gayton, to a jury in the South Dakota Circuit Court in Deadwood, South Dakota, on April 4-13, 1966, for the murder of C. F. Thorn. Petitioner was found guilty of manslaughter in the first degree and sentenced to 25 years in the South Dakota State Prison. On appeal to the South Dakota Supreme Court the conviction was affirmed, 155 N.W.2d 914 (1968).

The petitioner then, without utilizing South Dakota post-conviction procedure, filed his habeas corpus proceeding in the United States District Court. The District Court after hearing the formal testimony of the petitioner² and the testimony of petitioner's attorney for the state trial, Ramon Roubideaux, and after receiving the state record and related exhibits into evidence, found the petitioner was deprived of his right to the effective assistance of counsel granted by the Sixth Amendment because Roubideaux in representing two co-defendants failed to take advantage of some apparently favorable testimony by a state witness, Harry Osborne. The testimony in question was considered as exculpatory of Buffalo Chief but inculpatory of his co-defendant Gayton.

The District Court further held that the state post-conviction remedies were not applicable because the precise question petitioner relies on here had been presented to the Supreme Court of South Dakota, citing for its conclusion, Coleman v. Maxwell, 351 F.2d 285, 286 (6th Cir. 1965), which held in effect that the exhaustion of remedies doctrine did not require repeated attempts for a post-conviction remedy if the issue had been presented to the highest state court.

The District Court's substantive ruling was based on the conclusions that the possibility of harm from counsel's conflict of interest was sufficient to render the conviction invalid, citing Sawyer v. Brough, 358 F.2d 70, 73 (4th Cir. 1966), that the degree of prejudice incurred in a denial of effective assistance of counsel was not a factor in assessing that right, citing Glasser v. United States, 315 U.S. 60, 75-76, 62 S.Ct. 457, 86 L. Ed. 680 (1942), and that the fact both defendants personally retained the same counsel did not preclude them from a later claim of ineffective assistance of counsel arising from a conflict of interest, citing Campbell v. United States, 122 U.S.App.D.C. 143, 352 F.2d 359 (1965).

A fairly detailed recital of the factual situation resulting in the murder charge is necessary for a proper consideration of the constitutional issue involved.

On October 9, 1965 an altercation occurred between some of the occupants of two cars stopped in an alley back of the Harney Hotel in Rapid City, South Dakota. The petitioner and three other Indian men and an Indian woman were sitting in or standing near a Pontiac sedan temporarily parked in the alley. Another car carrying three men and two women, all of whom were white, pulled into the alley behind the Indians' car, and the driver, Charles Johnson, who was looking for a place to park, requested or demanded the Indians move their car. Receiving no response, Johnson got out of his car and walked over to the Indians' car. After a few words a fight broke out between Johnson and one of the Indians, Robert Wright. When this occurred, Mrs. Marjorie Johnson and her brother, C. F. Thorn, got out of Johnson's car. Thorn walked over to the affray with his hands in his pockets and was brutally assaulted by three Indian men. One of them knocked him down and while Thorn was trying to crawl away he was wantonly, viciously and brutally kicked to death.

According to the testimony of Mrs. Johnson, after Thorn was on his knees Indians Little, Gayton and Buffalo Chief kicked and stomped Thorn, with Buffalo Chief allegedly delivering the devastating blow which flipped Thorn over causing his head to strike the asphalt.

As is usual in these types of situations, there is considerable conflict in the testimony. One of the eye witnesses at the scene, Mrs. Johnson, testified that Buffalo Chief actively participated in the kicking and stomping of Thorn, and that she personally tried to pull Buffalo Chief away from Thorn, grabbing Buffalo Chief and imploring him not to kill her brother. Another witness, Irma Fast Horse, the Indian woman, placed the blame on Gayton and Buffalo Chief for the fatal assault on Thorn, but the veracity of this testimony is questionable since its effect was to exonerate Dennis Little, the other Indian, who was her lover and the father of her child. At a pretrial hearing Irma Fast Horse tried to protect all the Indians, testifying that none had anything to do with the assault. Irma Fast Horse testified at the trial that the petitioner was fighting with Thorn and that Dennis Little was helping Bobby Wright fight Johnson. She said that Gayton knocked Thorn down and then Gayton and the petitioner kicked Thorn "quite a few times." Her pre-trial testimony was certainly false and her overall credibility was for the jury's determination.

The co-defendant, Gayton, testified that he got pretty drunk in the afternoon and was asleep when the car drove in the alley, and that he woke up shortly after the car stopped. While in the car he looked back and saw Thorn getting out of the car, so he got out. Thorn came toward them with his fist doubled up like he was going to hit Gayton. Instead, Thorn turned around and jumped on Johnson and his adversaries Little and Wright. Gayton then said Wright and Thorn were fighting and Wright knocked Thorn down, kicking him, while Johnson was fighting Little. He admitted that Thorn was on the ground at that time and said Little was kicking Thorn in the face and on the head. He further testified that the petitioner wasn't in the fight but was standing over close to them. He attributed Irma Fast Horse's testimony against him to the fact he used to be her boy friend.

Buffalo Chief testified that Johnson was trying to grab Wright and possibly kicked Thorn back down while Little was hitting Johnson, and later Little started kicking Thorn while Wright was trying to get away from Johnson. He said Gayton must have been asleep in the car because he didn't see him until later. Buffalo Chief also testified he tried to break up the fight between Johnson and Wright. Gayton later appeared and attempted to separate Little and Thorn. Buffalo Chief denied striking or kicking anyone and said he saw Little and Wright kicking Thorn.

All of the witnesses except the defendants are in substantial agreement that Charles Johnson was fighting with Wright during the entire period that Thorn was being assaulted, and that Wright was fully engaged with Johnson and did not participate in the assault on Thorn. Although Mrs. Johnson testified there were five male Indians involved in the fight, the other witnesses saw only four, and a reading of the record shows that in all probability only four male Indians were involved. Gayton and Buffalo Chief admitted being at the scene but denied taking part in the fight, placing full blame on the other male Indians.

Three of the Indians, Little, Gayton, and Buffalo Chief, were separately charged with the murder of Thorn. Counsel was appointed for Buffalo Chief, and Gayton and Little employed Ramon Roubideaux, an experienced and able attorney with an extensive criminal practice.³ Buffalo Chief then dismissed his court appointed counsel and also employed Roubideaux. Pleas were then entered by these defendants of not guilty and not guilty by reason of insanity, the latter plea being withdrawn before trial. Gayton and Buffalo Chief through their counsel Roubideaux asked that their cases be consolidated for trial. The trial judge examined them in some detail on the motion to consolidate and asked each of the defendants personally if they desired to have the cases consolidated for trial which they assured the Court they did. The Court allowed the consolidation and also authorized a requested psychiatric examination for Buffalo Chief. After a change of venue requested by the defendants was granted, the case was sent to and tried at Deadwood, South Dakota.

The sole basis upon which this § 2254 habeas corpus proceeding is pressed in the federal court relates to the testimony of a government witness, Harry Osborne, who was a disinterested bystander.

Osborne testified that while walking from Collins Mobil Gas Station, he had occasion to pass the alley behind the Harney Hotel when he noticed a fight going on in the alley. He testified "at least three men" assaulted Thorn.

Osborne did not know any of the participants except Wright, who was...