Luna v. Solem, 15475-

• Citation: 411 N.W.2d 656
• Decision Date: 19 August 1987
• Docket Number: No. 15475-,15475-
• Parties: George G. LUNA, Applicant and Appellant, v. Herman SOLEM, Warden of the South Dakota Penitentiary, Respondent and Appellee. a-RAM.
• Court: South Dakota Supreme Court

Page 656

411 N.W.2d 656

George G. LUNA, Applicant and Appellant, v. Herman SOLEM, Warden of the South Dakota Penitentiary Respondent and Appellee.

No. 15475-a-RAM.

Supreme Court of South Dakota.

Argued Feb. 17, 1987.

Decided Aug. 19, 1987.

Mitchell D. Johnson, Rapid City, for applicant and appellant.

John P. Guhin, Asst. Atty. Gen., Pierre, for respondent and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

MILLER, Justice.

George G. Luna (Luna) appeals the lower court's dismissal of his petition for habeas corpus relief. We affirm.

On June 1, 1984, a jury convicted Luna of two counts of first-degree murder for the slaying of his wife and mother-in-law. He was sentenced to life imprisonment. Luna was represented in his criminal trial by Ramon Roubideaux (Roubideaux), who at Luna's request assumed the case from court-appointed counsel. Roubideaux was Luna's primary counsel during the criminal trial, but was assisted on the case by another lawyer. We affirmed Luna's conviction upon direct appeal in State v. Luna, 378 N.W.2d 229 (S.D.1985) (Luna I ). Luna applied for habeas corpus relief roughly two years after his conviction. Additional facts will be set out where pertinent.

ISSUES ¹

Luna contends he was denied his Sixth Amendment right to effective assistance of counsel by Roubideaux's failure to (1) pursue a motion to suppress evidence on the ground the evidence was discovered as the result of an invalid consent to search; (2) move to suppress glass fragment evidence on the grounds the State lost some of the glass particles; and (3) object to allegedly improper closing remarks by the prosecutor. Luna's fourth argument is that the prosecutor's statement denied him his due process rights to a fair trial.

INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

We first examine Luna's ineffective assistance of counsel claims. As we recently explained in Lee v. Solem, 405 N.W.2d 56 (S.D.1987), when reviewing ineffective assistance challenges "this court has applied both the more stringent standard of South Dakota and the less stringent standard presented in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." 405 N.W.2d at 57. See also Woods v. Solem, 405 N.W.2d 59 (S.D.1987). The South Dakota standard was adopted prior to the United States Supreme Court's landmark Strickland decision, ² and our post-Strickland citations of the South Dakota rule reflect a carryover of that rule. Since a petitioner has a federal constitutional right to bring an ineffective assistance claim under the Strickland standards, we now make it clear that the higher South Dakota standards have been laid to rest, and the Strickland test is controlling.

Under Strickland,

to succeed on an ineffective assistance of counsel claim, the defendant must show two requirements.

'First, ... that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, ... that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'

Woods, 405 N.W.2d at 61 (quoting Strickland). Prejudice exists when " '... there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " Woods, 405 N.W.2d at 61 (quoting Strickland). See also Lee, supra; Halverson v. State, 372 N.W.2d 463 (S.D.1985). The burden of proving prejudice rests upon the defendant. Woods, supra (citing Strickland); Lee, supra; Halverson, supra. Additionally, "[t]here is a strong presumption that counsel's performance falls within the 'wide range of professional assistance' " and " '[t]he reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances and the standard of review is highly deferential.' " Kimmelman v. Morrison, 477 U.S. 365, ----, 106 S.Ct. 2574, 2586-87, 91 L.Ed.2d 305, 323 (1986) (quoting Strickland).

It is true that we held the habeas corpus petitioner in Loop v. Solem, 398 N.W.2d 140, 142 (S.D.1986), was not required to prove prejudice. Loop's case must be distinguished, however. Loop complained of his counsel's complete failure to pursue an appeal. In Strickland, the United States Supreme Court stated that in such instances prejudice was presumed. Luna does not allege he was denied assistance of counsel completely, only that his representation was constitutionally defective. This case therefore is not within the same exception as the Loop case fit, nor is it within any other exception under which prejudice is presumed. See Strickland, 466 U.S. at 692, 104 S.Ct. at 2067, 80 L.Ed.2d at 696. Luna therefore must prove both constitutionally deficient representation and prejudice.

Abandoning Motion To Suppress Based On Involuntary Consent

Luna signed a consent to search his home and automobile. As a result of this search, clothing embedded with microscopic glass fragments was discovered. An expert witness called on behalf of the State testified that the glass fragments matched the glass of a window smashed in at the scene of the crime. This was the only direct evidence linking Luna to the crime. Luna's original counsel made a pretrial motion to suppress the glass fragment evidence on the basis Luna was coerced into signing the consent form. Roubideaux made a similar motion to suppress (not being aware at that time of the signed consent), but formally withdrew it prior to trial.

Luna argues he was coerced into signing the consent form, and that Roubideaux was ineffective by withdrawing the motion to suppress. He claims his consent was coerced for generally the same circumstances we described in Luna I. Namely,

force or coercive surroundings, promises, threats, verbal abuse and other illegal police actions ... that his mental and emotional state of mind negated the voluntariness of the signed consent and furthermore that he was not properly advised or "Mirandized" prior to his signing the consent.

378 N.W.2d at 235.

The State argued at the habeas corpus hearing that we addressed this argument in Luna I and the issue is therefore res judicata. The trial court rejected this argument, and we agree with its reasoning. As we observed in Luna I, Strickland-styled claims ordinarily will not be reviewed on direct appeal. The review in such instances is limited to determining whether representation was " 'so casual that the trial record evidences a manifest usurpation of appellant's constitutional rights.' " State v. Tchida, 347 N.W.2d 338, 339 (S.D.1984) (quoting State v. Phipps, 318 N.W.2d 128, 131 (S.D.1982)). Since our review in Luna I was limited to a search for a "manifest usurpation," it is still open for debate whether trial counsel's performance failed the Strickland standards. We therefore will proceed to the merits of Luna's current argument.

In Luna I, we rejected the argument that Roubideaux' withdrawal of the motion constituted a "manifest usurpation," because this action was consistent with the trial strategy of attempting to show Luna's innocence by demonstrating his cooperation with the police. Luna essentially now argues our reasoning was incorrect because even had the motion to suppress been pursued, the jury would not have been aware of the effort to suppress. Thus, obtaining a ruling on the motion would not have detracted from the cooperativeness defense. We disagree with this argument because had the motion to suppress been pursued, the prosecution would then have had the right to introduce that fact before the jury to rebut Luna's evidence that he fully cooperated with law enforcement officers. State v. Vega, 163 Conn. 304, 306 A.2d 855 (1972); People v. Sturgis, 58 Ill.2d 211, 317 N.E.2d 545 (1974), cert. denied, 420 U.S. 936, 95 S.Ct. 1144, 43 L.Ed.2d 412; People v. Sturgis, 14 Ill.App.3d 181, 302 N.E.2d 114 (1973); State v. Campbell, 294 N.W.2d 803 (Iowa 1980); Nelson v. State, 607 S.W.2d 554 (Tex.Crim.App.1980). Also, in furtherance of his "cooperation" defense, Luna testified at trial that he willingly signed the consent form. In light of this strategy, Roubideaux could not be expected to have Luna testify at the suppression hearing that he was coerced into signing the form. Indeed, had he attempted to testify as to his cooperation at trial, he would have been subject to impeachment by his inconsistent suppression hearing statements. Id. Roubideaux's failure to pursue the motion is therefore a proper trial tactic which this court will not second guess. See State v. Dornbusch, 384 N.W.2d 682 (1986); Woods, supra.

Alternatively, even were we to assume Roubideaux's withdrawal of the motion amounted to deficient representation, we would not reverse the habeas corpus court because the deficiency would have been nonprejudicial. As the United States Supreme Court has specifically stated:

Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.

Kimmelman, 477 U.S. at ----, 106 S.Ct. at 2583, 91 L.Ed.2d at 319. See also High Elk v. Solem, 804 F.2d 496 (8th Cir.1986).

Roubideaux testified at the habeas corpus hearing that one reason he withdrew the motion to suppress was that he believed the motion would be denied. It is important to note that Luna did not inform Roubideaux that he signed the consent to search until after Roubideaux made a motion to suppress the evidence. Even after learning of Luna's consent,...