New v. Weber, 20530.

• Decision Date: 15 September 1999
• Docket Number: No. 20530.,20530.
• Citation: 1999 SD 125,600 N.W.2d 568
• Parties: Theodore Dean NEW, Applicant and Appellant, v. Douglas WEBER, Warden of the South Dakota State Penitentiary, Appellee.
• Court: South Dakota Supreme Court

600 N.W.2d 568

1999 SD 125

Theodore Dean NEW, Applicant and Appellant, v. Douglas WEBER, Warden of the South Dakota State Penitentiary, Appellee.

No. 20530.

Supreme Court of South Dakota.

Considered on Briefs January 14, 1999.

Decided September 15, 1999.

Dwight A. Gubbrud, Belle Fourche, for applicant and appellant.

Mark Barnett, Attorney General, Jeffrey P. Hallem, Assistant Attorney General, Pierre, for appellee.

KONENKAMP, Justice.

[¶ 1.] Theodore New appeals the denial of his application for a writ of habeas corpus based on ineffective assistance of counsel. New asserts that various tactics employed by his trial attorney resulted in deficient representation. The circuit court found otherwise and we affirm.

Facts

[¶ 2.] In the early morning of April 8, 1993, John Mousseaux was brutally beaten to death with a tire iron and a hammer on a rural Meade County road. Larry Black Bear, Augustine White Horse and New were all present at the time. New later denied any involvement. Black Bear and White Horse were arrested after they returned to South Dakota following an attempt to evade authorities. Black Bear confessed to his part in Mousseaux's death and pleaded guilty to first-degree manslaughter. While in the Meade County Jail, Black Bear and White Horse devised a plan to "get White Horse off" and to "frame" New for the death of Mousseaux in retaliation for New's cooperation with the authorities in their investigation of Mousseaux's death. Their scheme was not uncovered until after White Horse's murder trial.¹ White Horse was acquitted of causing Mousseaux's death, but later pleaded guilty to being an accessory to first-degree murder for his involvement in the crime.

[¶ 3.] New was charged with first and second-degree murder, first-degree manslaughter, and kidnapping. After a jury trial, at which New was represented by attorney Russell Molstad, New was convicted of second-degree murder under SDCL 22-16-7. New appealed his conviction and we affirmed. See State v. New, 536 N.W.2d 714 (S.D.1995). New filed a pro se habeas petition in Meade County circuit court, asserting ineffective assistance of counsel and insufficiency of evidence to support the conviction. After appointment of counsel, and the filing of an amended petition, an evidentiary hearing was held in June 1997. At the completion of this hearing, a second amended application for writ of habeas corpus was filed to "fully accommodate the issues that arose during the evidentiary hearing." The State argued that New had not been deprived of effective assistance of counsel per the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). The State also contended that various exhibits, witness testimony and physical evidence supported New's conviction, and that New did not present any newly discovered evidence.

[¶ 4.] The circuit court denied New's application for writ of habeas corpus. Also denied were his requests for reconsideration and certificate of probable cause. We granted a probable cause certificate and this appeal followed. He contends he was denied effective assistance of counsel because his trial attorney (1) "opened the door" for and did not properly object to evidence of White Horse's acquittal; (2) failed to request an instruction explaining the significance of White Horse's acquittal; (3) disregarded evidence that White Horse had recently beaten another person to death; (4) disregarded impeachment evidence against Black Bear; (5) failed to object to admission of the guilty pleas of the two codefendants; and (6) failed to request a cautionary instruction on the disposition of the codefendants' cases. Lastly, New asserts that if these errors did not individually prejudice his case, their cumulative effect constituted ineffective assistance of counsel.

Standard of Review

[¶ 5.] Review of habeas corpus proceedings is limited because it is a collateral attack on a final judgment. Lien v. Class, 1998 SD 7, ¶ 10, 574 N.W.2d 601, 606 (citing Black v. Class, 1997 SD 22, 560 N.W.2d 544). It is not, therefore, a substitute for direct review. Loop v. Class, 1996 SD 107, ¶ 11, 554 N.W.2d 189, 191 (citing Two Eagle v. Leapley, 522 N.W.2d 765, 767 (S.D.1994)). We have noted:

Habeas corpus can be used only to review (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.

Flute v. Class, 1997 SD 10, ¶ 8, 559 N.W.2d 554, 556 (citing Weiker v. Solem, 515 N.W.2d 827, 830 (S.D.1994)). Fact determinations will only be disturbed upon a showing that they were clearly erroneous. Loop, 1996 SD 107, ¶ 11, 554 N.W.2d at 191. The habeas applicant has the initial burden, by a preponderance of the evidence, to prove entitlement to relief. Lien, 1998 SD 7, ¶ 11, 574 N.W.2d at 607 (citations omitted). We may affirm the ruling of the habeas court if it is "right for any reason." Satter v. Solem, 458 N.W.2d 762, 768 (S.D.1990) (citing State v. McCafferty, 356 N.W.2d 159 (S.D.1984)).

[¶ 6.] Also, when examining an ineffective assistance of counsel claim, we use the following standard of review:

Whether a defendant has received ineffective assistance of counsel presents a mixed question of law and fact. Lykken v. Class, 1997 SD 29, 561 N.W.2d 302. In the absence of a clearly erroneous determination, we defer to the habeas court's findings of fact regarding what counsel did or did not do, but we may substitute our own judgment "as to whether defense counsel's actions or inaction's constituted ineffective assistance of counsel." Lykken, 1997 SD 29 at ¶ 6, 561 N.W.2d at 304-05 (quoting Aliberti v. Solem, 428 N.W.2d 638, 640 (S.D. 1988)).

Lien, 1998 SD 7, ¶ 12, 574 N.W.2d at 607.

Analysis and Decision

[¶ 7.] South Dakota adheres to the test for ineffective assistance of counsel announced in Strickland. See Jones v. State, 353 N.W.2d 781 (S.D.1984). In Strickland, the United States Supreme Court stated:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show 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, the defendant must show 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. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. at 687,104 S.Ct. at 2064; see also Phyle v. Leapley, 491 N.W.2d 429 (S.D. 1992),clarified in Hopfinger v. Leapley, 511 N.W.2d 845 (S.D. 1994) (petitioner must show counsel error was serious enough to deprive petitioner of a fair trial with a reliable result). The burden is on the petitioner to present evidence to prove prejudice. Hofer v. Class, 1998 SD 58, ¶ 9, 578 N.W.2d 583, 585; Phyle, 491 N.W.2d at 432; Ashker v. Solem, 457 N.W.2d 473, 476 (S.D.1990). The petitioner must overcome a strong presumption that counsel was competent. Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 2586, 91 L.Ed.2d 305 (1986). It is not the function of this Court to "second-guess the tactical decisions of the trial attorney, nor will we substitute our own theoretical judgment for that of defense counsel; but this [C]ourt should not hesitate to reverse a conviction if the record reveals that a defendant was not afforded effective assistance of counsel." Jones, 353 N.W.2d at 784 (citing Grooms v. State, 320 N.W.2d 149 (S.D.1982)). Nevertheless, we need not determine the sufficiency of counsel's performance before examining whether the defendant was prejudiced by "alleged deficiencies." Strickland, 466 U.S. at 697,104 S.Ct. at 2069. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed." Id.

1. Acquittal of Codefendant—Opening the Door

[¶ 8.] New argues that Molstad first failed to properly object to the admission of evidence of White Horse's acquittal and then "opened the door" to allow it in. He asserts that Molstad correctly moved to exclude this evidence, but his reasons for seeking exclusion were flawed and unresearched. Molstad's argument was that evidence of White Horse's acquittal could bolster his credibility with the jury and unduly prejudice New. Molstad did not cite authority to the trial court to support the motion. New argues that this was ineffective assistance of counsel because "any reasonably competent defense attorney would have searched for authority to buttress his position on this crucial issue." Had Molstad completed even minimal research, claims New, he would have discovered precedent stating that an acquittal of a codefendant or an accessory is inadmissible hearsay pursuant to SDCL 19-16-4.² Further, New notes that on five separate occasions, Molstad failed to object to the evidence of White Horse's acquittal as inadmissible hearsay. According to New, these deficiencies combined to prevent him from getting a fair trial based on the evidence against him, rather than on a "process of elimination." The habeas court found that Molstad's decisions were "reasonably related to sound trial strategy and did not fall below the standard of reasonableness."

[¶ 9.] We must gauge whether, under the Strickland standard, Molstad's representation on this point was deficient. Scrutinizing the situation facing Molstad at the time of trial, we cannot say his representation fell outside reasonable professional competence. Molstad moved to exclude...