Primeaux v. Leapley

• Decision Date: 23 June 1993
• Docket Number: No. 17889,17889
• Citation: Primeaux v. Leapley, 502 N.W.2d 265 (S.D. 1993)
• Parties: Roscoe PRIMEAUX, Petitioner and Appellant. v. Walter LEAPLEY, Warden, South Dakota State Penitentiary, Appellee.
• Court: South Dakota Supreme Court

Page 265

502 N.W.2d 265

Roscoe PRIMEAUX, Petitioner and Appellant. v.Walter LEAPLEY, Warden, South Dakota State Penitentiary, Appellee.

No. 17889.

Supreme Court of South Dakota.

Argued Nov. 18, 1992.

Decided June 23, 1993.

Lee A. Tappe, Platte, for petitioner and appellant.

Mark Barnett, Atty. Gen., Frank E. Geaghan, Asst. Atty. Gen., Pierre, for appellee.

WUEST, Justice.

Primeaux was convicted of second-degree murder and two counts of aggravated assault.His convictions were affirmed by this court in State v. Primeaux, 328 N.W.2d 256(S.D.1982).

Primeaux then filed this writ of habeas corpus in circuit court.He claims his trial counsel was ineffective by failing to insist the expert witness test Primeaux more thoroughly, by failing to obtain an opinion from a second or third expert, by attempting to prove insanity through the trial testimony of lay witnesses and by "essentially abandoning" the insanity defense in closing argument.He also claims he was denied due process when the habeas court refused to provide him with a psychiatric expert.

After a hearing, the circuit court denied habeas corpus relief.Primeaux appeals.We affirm.

I.

PRIMEAUX WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

The United States Supreme Court has set forth a two-step test to determine whether a defendant has been denied effective assistance of counsel.Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693(1984).This court adopted the Strickland test to judge whether a defendant received effective assistance of counsel as guaranteed by Article VI, Sec. 7 of the Constitution of South Dakota.Luna v. Solem, 411 N.W.2d 656(S.D.1987);Woods v. Solem, 405 N.W.2d 59, 61(S.D.1987).Primeaux therefore must prove both deficient representation and prejudice.

" 'The right to counsel is the right to effective assistance of counsel.' "Miller v. Leapley, 472 N.W.2d 517, 518(S.D.1991) habeas corpus granted in part on other grounds, Civil No. 91-1017, 1993 WL 172904(D.S.D.March 24, 1993);(quotingStrickland, 466 U.S. at 686, 104 S.Ct. at 2063, 80 L.Ed.2d at 692(citingMcMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763, 773 n. 14(1970))).

"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(citingMichel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83, 93(1955)).

Miller, 472 N.W.2d at 518.

Primeaux was arraigned November 9, 1981 and the court granted his request for an independent psychiatric examination.The defense selected and retained Dr. David W. Bean, Chairman of the Department of Psychiatry at the University of South Dakota School of Medicine.Primeaux was examined by Dr. Bean on November 18, 1981 for approximately two hours.Trial counsel's associate held a meeting with Dr. Bean that same day to discuss his findings.At that meeting, Dr. Bean told the attorney he found Primeaux was competent to stand trial and that he found no signs or symptoms of mental illness but did find indications Primeaux was suffering from "voluntary alcoholic intoxication" at the time the stabbings occurred.Additionally, Dr. Bean requested Primeaux be examined by a neurologist, Dr. George C. Flora, M.D. for a possible seizure disorder.Dr. Bean submitted a written report to trial counsel on December 4, 1981.The report from Dr. Flora was submitted December 7, 1981.Dr. Flora's clinical impressions indicated "no evidence of focal neurological deficit nor seizure pattern" and "chemical dependency, mixed type, severe."Trial counsel then contacted Dr. Darrell Stephenson to discuss Primeaux's mental and neurological reports.

At trial, the defense elected not to call Dr. Bean.Dr. Bean was called by the prosecution to rebut opinion testimony from lay witnesses regarding Primeaux's sanity.

In his habeas action, Primeaux claims the examination by Dr. Bean was inadequate and trial counsel should have insisted the expert test Primeaux more thoroughly.He presents a laundry list of tests he claims should have been done but presents no evidence they were not performed.Nor does he present any evidence the tests were necessary for a competent psychiatric examination.

Trial counsel and his associate found Primeaux "lucid, knowing and intelligent" during their many interviews with him.Both thought his mental faculties were "in good order."In short, there was nothing in Primeaux's background, in the information he gave counsel, in his behavior with counsel or in the medical and psychiatric reports to indicate that additional psychiatric testing should be pursued.When there are no grounds for doubting the accuracy of a psychiatric report, there is no obligation for counsel to seek further evaluation.Mikel v. State, 550 S.W.2d 863, 869(Mo.Ct.App.1977).Counsel is not required to obtain repeat examinations until an advantageous report is acquired.People v. Webster, 54 Cal.3d 411, 285 Cal.Rptr. 31, 814 P.2d 1273(1991)cert. denied, --- U.S. ----, 112 S.Ct. 1772, 118 L.Ed.2d 431(1992);Pruett v. Commonwealth, 232 Va. 266, 351 S.E.2d 1(1986);Weaver v. State, 432 N.E.2d 5(Ind.1982).

Dr. Bean found Primeaux "logical and coherent" and "of average intellectual ability."Primeaux expressed no "depressive symptomatology;" in fact, Primeaux denied depressive symptoms to Dr. Bean.He now asserts defense counsel should have conducted an investigation to provide the expert with family and historical background which Primeaux asserts left him in a "severe state of depression."Trial counsel could not give information he did not possess.The reasonableness of counsel's decision to investigate insanity depended on the information Primeaux supplied.United States v. Miller, 907 F.2d 994, 998(10th Cir.1990);United States v. Soto-Hernandez, 849 F.2d 1325, 1329(10th Cir.1988);State v. Pound, 793 S.W.2d 505, 509(Mo.1990)."[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable."Strickland, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 696.Where Primeaux did not give information to counsel, counsel could neither investigate it nor pass it on to the expert.

Primeaux next asserts his trial counsel should have sought second and third psychiatric opinions as to his sanity.However, trial counsel was legitimately concerned additional examinations would put more "ammunition in the hands of the prosecuting attorney."Counsel testified he wanted to avoid handing the prosecution an assembly of experts to parade before the jury, each and every one declaring Primeaux was sane.The decision was a strategic trial tactic.

Primeaux further claims that counsel was ineffective in trying to prove his insanity defense through the use of lay witnesses.By presenting witnesses who had observed Primeaux's behavior the day of the murder, counsel tried to show that despite the expert's opinion Primeaux knew right from wrong, the witnesses saw bizarre behavior the doctor did not observe.In cross-examination of Dr. Bean, counsel attempted to elicit testimony from the Doctor that a person could panic and temporarily "snap."Counsel's decision to use lay testimony to establish temporary insanity was a strategic trial decision; his only other choice was to abandon the insanity defense or obtain another expert opinion, thereby risking additional expert testimony that Primeaux was sane.We will not second-guess counsel's trial tactics.Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694;Aliberti v. Solem, 428 N.W.2d 638, 641(S.D.1988).

Primeaux also claims counsel"abandoned" the insanity defense in closing argument.A close reading of the trial court record shows counsel clearly argued insanity to the jury in his closing statement.The insanity defense was not abandoned.We find nothing in the performance of trial counsel that shows ineffective assistance of counsel in Primeaux's defense.Counsel's decisions were strategic judgments which we will not second-guess.It is the opinion of this court that under the difficult circumstances of this case, Primeaux's trial counsel did an adequate job in representing his client at trial.

II.

PRIMEAUX WAS NOT DENIED DUE PROCESS OF LAW BY THE CIRCUIT COURT'S REFUSAL TO APPOINT A PSYCHOLOGIST IN HIS HABEAS PROCEEDING.

The habeas court denied Primeaux's motion to appoint a psychologist for his hearing.He asserts the testimony of a forensic psychologist, a Dr. Rypma, would show the examination by Dr. Bean was inadequate.Primeaux now asserts the denial of a court-appointed psychologist to help him establish his habeas claim was a violation of his right to due process under the Fourteenth Amendment.

Primeaux bases his claim on Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53(1985).Primeaux stretches Ake too far.Ake holds that a state must provide an indigent defendant with psychiatric assistance at the guilt phase of a trial when the defendant has demonstrated his sanity may be a factor in determining guilt.Ake, 470 U.S. at 83, 105 S.Ct. at 1096, 84 L.Ed.2d at 66.

We therefore hold that when a defendant demonstrates to the trial...