Loop v. Class

• Decision Date: 17 October 1995
• Docket Number: No. 19079,19079
• Citation: 1996 SD 107,554 N.W.2d 189
• Parties: Gary Lynn LOOP, Petitioner and Appellant, v. Joe CLASS, Warden of the South Dakota State Penitentiary, Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 189

554 N.W.2d 189

1996 SD 107

Gary Lynn LOOP, Petitioner and Appellant, v. Joe CLASS, Warden of the South Dakota State Penitentiary, Appellee.

No. 19079.

Supreme Court of South Dakota.

Considered on Briefs Oct. 17, 1995.

On Reassignment July 11, 1996.

Decided Aug. 28, 1996.

Douglas E. Hoffman of Gibbs, Feyder, Myers, Peters and Hoffman, Sioux Falls, for petitioner and appellant.

Mark Barnett, Attorney General and Frank Geaghan, Assistant Attorney General, Pierre, for appellee.

GILBERTSON, Justice (on reassignment).

¶1 Gary Lynn Loop appeals the habeas court's quashing his application for writ of habeas corpus. Loop alleges he received ineffective assistance of counsel due to the manner in which his attorney directed his examination at trial. Loop further alleges the trial court erred in instructing the jury. We affirm on the issue of ineffective assistance of counsel, and find that the issue of jury instructions is not appropriate for habeas review.

FACTS AND PROCEDURE

¶2 The facts underlying this appeal are outlined in State v. Loop, 477 N.W.2d 40 (S.D.1991). Loop, having recently met the victim's mother, accompanied the family trick-or-treating on Halloween night, October 31, 1989. Upon returning home, the victim's mother instructed the victim, ten-year-old A.B., and her brother to get ready for bed. Following this, A.B. retrieved a piece of candy from the kitchen and took it into the living room where Loop was seated on the couch. She offered Loop some of the candy and sat on his knee. While holding A.B. on his knee, Loop reached under A.B.'s nightshirt and fondled her breast twice. A.B. went into the kitchen but did not tell her mother about this touching because her mother was talking on the telephone. After Loop left that evening, A.B. told her mother what had occurred. The matter was referred to law enforcement who arrested Loop on the charge of sexual contact with a child. Loop was later indicted and arraigned on this charge and on a Part II Habitual Offender Information. The matter was set for trial.

¶3 Prior to trial, Loop offered several motions in limine. One of these motions was to preclude evidence concerning Loop's two prior felony convictions, one for second degree sexual assault and the other for sexual contact with a child under age fifteen. State argued it would use such evidence for impeachment purposes only if Loop chose to testify. The trial court granted Loop's motion in part, concluding the evidence of the nature of the crimes would be more prejudicial than probative, and therefore, not admissible. The court did however, hold that the existence of the felony convictions could be admitted for impeachment purposes under SDCL 19-14-12, should Loop elect to testify on his own behalf. The court further reserved the right to re-examine the issue of the admissibility of the nature of the offenses depending on the evidence produced at trial.

¶4 At trial after being fully advised of his right to remain silent by the trial court, Loop elected to waive his right and testify on his own behalf. Loop testified on direct examination to the following:

Q: Did you sexually molest A.B. on Halloween?

A: No.

Q: Did you have any intent to touch a ten-year old girl to sexually gratify yourself?

A: A ten-year old wouldn't sexually gratify me. I was going out with her mother. There was no point.

¶5 Following this testimony, the State argued that the defendant had put the issue of his intent before the jury and asked that the State be permitted to question Loop regarding the nature of his prior convictions. The trial court ruled that the defense attorney had, by this questioning of Loop, opened the door on the intent issue, and permitted limited cross-examination by the State concerning the nature of Loop's prior felony convictions.

¶6 Pursuant to this ruling, State elicited the following testimony from Loop on cross-examination:

Q: In fact, you were convicted of attempted second degree sexual assault there in Colorado on July 22, 1980; isn't that true?

A: I pled guilty to that.

DEFENSE COUNSEL: I am going to object to that line of questioning, Your Honor. I think it goes beyond the scope of your prior ruling as well.

THE COURT: Overruled. That's as far as he goes. You have a standing objection to it, counsel.

Q: Did you ever live in Deadwood, South Dakota?

A: Yes.

Q: When did you live there?

A: About mid-1976 to 1979. December 1979, I think, or later, sometime in 1979.

Q: And, in fact, you were found guilty of sexual contact with a minor in Deadwood, South Dakota, on November 13, 1981; isn't that a fact?

A: That's correct.

¶7 At the conclusion of trial, Loop moved to instruct the jury on the use of the prior felony convictions for impeachment purposes only. The trial court rejected Loop's proposed instruction on this issue and instructed the jury that Loop's prior felony convictions could be used as direct evidence of Loop's intent. The jury returned a guilty verdict and Loop was convicted of sexual contact with a child, in violation of SDCL 22-22-7 and of being an habitual offender. We affirmed the conviction on direct appeal. Loop, 477 N.W.2d at 43.

¶8 At a habeas corpus proceeding, Loop argued that the above questioning by his attorney constituted ineffective assistance of counsel such that he was not afforded a fair trial guaranteed him by the state and federal constitutions. He also alleged trial court error in instructing the jury that his prior convictions could be used as direct evidence against him in this trial. The habeas court denied Loop's petition. Loop appeals to this Court, raising two issues:

¶9 1. Whether Loop was denied effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Article VI, § 7 of the South Dakota Constitution?

¶10 2. Whether the trial court erred in instructing the jury that evidence of Loop's prior felony convictions for sexual offenses could be used as direct evidence such that Loop was denied due process of law under the United States Constitution and Article VI, § 2 of the South Dakota Constitution?

STANDARD OF REVIEW

¶11 Our scope and standard of review of habeas corpus actions is well-established. We recently noted in Two Eagle v. Leapley, 522 N.W.2d 765, 767 (S.D.1994), that:

Habeas corpus is not a substitute for direct review. Because habeas corpus is a collateral attack upon a final judgment, our scope of review is limited. On habeas review, the petitioner has the initial burden of proof. We review the habeas court's factual findings under the clearly erroneous standard.

Habeas corpus 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 available only where the defendant is imprisoned or restrained of his liberty.

Id. (citations omitted).

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.

Aliberti v. Solem, 428 N.W.2d 638, 640 (S.D.1988).

ANALYSIS AND DECISION

¶12 1. Ineffective assistance of counsel claim

¶13 Loop claims his trial counsel committed errors so serious that he was not functioning as "counsel" as guaranteed Loop by the Sixth Amendment to the United States Constitution and by Article VI, § 7 of the South Dakota Constitution.

¶14 This Court has adopted the two-pronged test from Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984), in determining whether a defendant received effective assistance of counsel. Under this test, the burden is on the petitioner to show 1) that counsel's performance was deficient, and 2) that petitioner was prejudiced by the deficient performance. Discussing the first part of the Strickland test, we have stated that 'When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness.' Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. 'Judicial scrutiny of counsel's performance must be highly deferential.' Id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. 'Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.' Id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95 (citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83, 93 (1955)).

Two Eagle, 522 N.W.2d at 768 (quoting Primeaux v. Leapley, 502 N.W.2d 265, 267 (S.D.1993)). The second prong of the Strickland test concerns prejudice to the petitioner. "Prejudice may be found when there exists a reasonable probability that, but for the unprofessional errors of counsel, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Phyle v. Leapley, 491 N.W.2d 429, 432 (S.D.1992) (citing Ashker v. Solem, 457 N.W.2d 473, 476 (S.D.1990)).

¶15 In 1993, the United States Supreme Court reexamined its analysis in Strickland and held that, in reviewing ineffective assistance of counsel claims,

an analysis...