Phyle v. Leapley, 17662

• Decision Date: 28 May 1992
• Docket Number: No. 17662,17662
• Citation: 491 N.W.2d 429
• Parties: Tyrane PHYLE, Petitioner and Appellant, v. Walter LEAPLEY, Warden of the South Dakota State Penitentiary, Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 429

491 N.W.2d 429

Tyrane PHYLE, Petitioner and Appellant, v. Walter LEAPLEY, Warden of the South Dakota State

Penitentiary, Appellee.

No. 17662.

Supreme Court of South Dakota.

Considered on Briefs May 28, 1992.

Decided Sept. 9, 1992.

James A. Eirinberg, Sioux Falls, for petitioner and appellant.

Mark Barnett, Atty. Gen., Charles D. McGuigan, Asst. Atty. Gen., Pierre, for appellee.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

Tyrane E. Phyle (Phyle) was convicted of first degree robbery, as defined by SDCL 22-30-6. He later pleaded guilty to being a habitual offender, in violation of SDCL 22-7-8. Phyle appealed his conviction on the charge of first degree robbery. This Court in State v. Phyle, 444 N.W.2d 380 (S.D.1989) affirmed Phyle's conviction.

On December 27, 1989, Phyle submitted an application for writ of habeas corpus to the Fifth Judicial Circuit Court. An amended petition was subsequently submitted. On March 8, 1991, the Honorable Eugene Dobberpuhl issued an initial writ of habeas corpus. An evidentiary hearing was held on May 31, 1991. On June 6, 1991, the court issued its memorandum decision concluding Phyle was not entitled to habeas corpus relief. On August 2, 1991, the circuit court entered findings of fact and conclusions of law, holding that Phyle's petition for habeas corpus relief was denied and the writ of habeas corpus quashed. Thereafter, Phyle filed his notice of appeal from said decision.

On appeal, Phyle raises the following issues:

I. Was Phyle denied effective assistance of counsel in the underlying first degree robbery trial, in violation of his constitutional rights?

II. Did the trial court properly accept Phyle's guilty plea to the habitual offender charge?

FACTS PERTAINING TO THE HABEAS ACTION ^*

Phyle asserts he was denied his constitutional right to effective assistance of counsel at trial on the first degree robbery charge.

Trial judge appointed two attorneys to represent Phyle. Trial judge considered one of these attorneys to be one of the best defense attorneys in that part of the state.

Phyle asserts errors by his counsel, during the course of the trial, rose to the level of ineffective assistance of counsel. Phyle argues that his counsel failed to object to various bad acts evidence and failed to request limiting instructions, which would have presumably shielded the jury from hearing or considering testimony regarding his other crimes or bad acts. Specifically, Phyle contends counsel erred in failing to file a motion in limine regarding the admissibility of prior crimes or bad acts. Second, he claims counsel erred in failing to file a pretrial motion requesting State to disclose and describe the prior crimes and bad acts. Third, he asserts counsel erred in failing to object to supposed prejudicial testimony regarding these prior crimes and bad acts.

Further, Phyle asserts counsel elicited, then failed to object to, a State witness' testimony that Phyle invoked his constitutional right to remain silent following arrest. He also claims that counsel erred in failing to object to State witness testimony regarding Larry Phyle's testimony. Lastly, Phyle argues counsel erred in failing to request a jury instruction on prior inconsistent statements.

Additional facts will be set out where pertinent.

DECISION

I. Phyle was not denied effective assistance of counsel in the underlying first degree robbery trial, in violation of his constitutional rights.

This Court applies the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in evaluating ineffective assistance of counsel claims. Luna v. Solem, 411 N.W.2d 656 (S.D.1987). The burden rests with the petitioner to show two requirements to prevail on this claim. First, the petitioner must show that his counsel's performance was deficient. To establish this, petitioner must show that his counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the defendant by the Sixth Amendment. Second, petitioner must show that the deficient performance by counsel prejudiced the defense. This is established by a showing that counsel's errors were so serious as to deprive the defendant of a fair trial--a trial which has a reliable result. Ashker v. Solem, 457 N.W.2d 473, 475-76 (S.D.1990) (citing Luna v. Solem, 411 N.W.2d 656 (S.D.1987)). The burden is on the petitioner to prove prejudice. Strickland, supra; Ashker, 457 N.W.2d at 476. 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. Ashker, 457 N.W.2d at 476. However, petitioner must overcome the strong presumption that his counsel was competent. Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 2583, 91 L.Ed.2d 305 323 (1986). Further, "[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, 477 U.S. at 381, 106 S.Ct. at 2586 (quoting Strickland ). The petitioner must overcome the presumption that, under the circumstances, the challenged action " 'might be considered sound trial strategy.' " Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 100, 101, 76 S.Ct. 158, 164, 164, 100 L.Ed. 83 (1955)). Upon review of a habeas court decision, this Court will not upset factual findings unless they are clearly erroneous. Ashker, 457 N.W.2d at 476. Historically, this Court limits, in habeas corpus proceedings, the scope of review because habeas corpus is in the nature of a collateral attack upon the final judgment. We do not consider this writ as a remedy to correct irregular procedures; "rather, in the context of post conviction attacks on the conviction itself, habeas corpus reaches only jurisdictional error." Goodroad v. Solem, 406 N.W.2d 141, 142, 143 (S.D.1987).

With our guidelines in place, we now turn to Phyle's allegations of ineffective assistance of counsel. Phyle asserts that a prime example of this ineffective assistance was counsel's failure to object to the solicitation and admission of various bad acts evidence, including prior crimes, wrongs, etc., which Phyle allegedly committed. Specifically, examples of this testimony included a statement by Sheriff Long, a state witness, that Phyle was a suspect in "some other activity." Also, testimony was elicited from Phyle's brother Larry, (his accomplice in underlying action) of a prior crime which both were involved in and prosecuted. Another statement by Larry pertained to Phyle's reputation and alleged criminal activity in the state penitentiary. Larry further testified that Phyle talked to him about Phyle's having "criminal activity in his blood" and immediate desire to smoke marijuana. Larry further testified to his eyewitness account of Phyle's beating his girlfriend. Phyle asserts that counsel's failure to object to the testimony or failure to "vigorously object" was highly prejudicial to Phyle's defense and were prime examples of counsel's deficient performance. Phyle believes that this testimony allowed the State to portray Phyle as extremely dangerous, a repeat offender, and whose act of robbery was in conformity with his character, in violation of SDCL 19-12-3 and 19-12-5.

Generally, the making or failure to make motions and objections are trial decisions within the discretion of trial counsel. Roden v. Solem, 431 N.W.2d 665 (S.D.1988). However, this general principle will not apply where trial counsel's actions cannot reasonably relate to any strategic decision and are clearly contrary to the actions of competent counsel in similar circumstances. Roden, 431 N.W.2d at 667.

We now address these points. In regard to Larry Phyle's testimony, Phyle's counsel attempted to discredit Larry's testimony in a number of ways relevant to the disputed testimony. This, of course, is a legitimate and permissive trial tactic for defense attorney to utilize. In fact, one would question a criminal defense attorney who did not utilize this tactic against an adverse witness. However, utilization of this tactic allows the prosecution to elicit testimony, regarding the issue, by prior bad acts evidence. See, State v. Klein, 444 N.W.2d 16, 19 (S.D.1989). Counsel's cross-examination of Larry, a state witness regarding alleged favorable treatment, residence with Phyle, and participation in a previous robbery was for impeachment purposes. In regard to lack of objection to this testimony, we must assume that counsel, having invited this testimony by questioning Larry's credibility on these points, (a legitimate trial tactic) made a trial lawyer's decision. We cannot say that failure to object to this prior bad acts testimony of Larry was ineffective assistance of counsel. This Court will not "second guess the decisions of experienced trial attorneys regarding matters of trial tactics." State v. Walker, 287 N.W.2d 705, 707 (S.D.1980).

Testimony was elicited from a state witness, Sheriff Long that Phyle "was a suspect in some activity up in Wahpeton." The introduction of this testimony was improper under SDCL 19-12-5, and we believe there should have been an objection. Having said that, nevertheless, we cannot say that counsel's failure to object was sufficiently prejudicial or deficient under the Strickland test. A different outcome would not have occurred if the statement had not been made. Roden, 431 N.W.2d at 670. We make the same assessment regarding Larry's testimony of Phyle desiring a marijuana cigarette.

Phyle argues that counsel should have blocked introduction of prior bad acts evidence by...