Scott v. Class

• Decision Date: 21 March 1995
• Docket Number: No. 18852,18852
• Citation: 532 N.W.2d 399
• Parties: James L. SCOTT, a/k/a James Larry Smith, Petitioner and Appellant, v. Joseph CLASS, Warden South Dakota State Penitentiary, Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 399

532 N.W.2d 399

James L. SCOTT, a/k/a James Larry Smith, Petitioner and Appellant, v. Joseph CLASS, Warden South Dakota State Penitentiary, Appellee.

No. 18852.

Supreme Court of South Dakota.

Considered on Briefs March 21, 1995.

Decided May 24, 1995.

Timothy J. Langley, Sioux Falls, for petitioner and appellant.

Mark Barnett, Atty. Gen., Patricia J. Froning, Asst. Atty. Gen., Pierre, for appellee.

SABERS, Justice.

James L. Scott, a.k.a. James L. Smith, (Scott), was convicted of First Degree Robbery for stealing a woman's purse. Scott filed a writ of habeas corpus for ineffective assistance of counsel and for other errors he claimed denied him due process. The habeas court found that trial counsel was competent and that Scott failed to show any due process errors. We affirm.

FACTS

On March 7, 1991 at approximately 8:20 p.m., Connie Strozdas (Strozdas) parked her car in the parking lot at the Empire Mall in Sioux Falls, S.D. She was checking her cash and checkbook balance when she noticed a car suddenly park near her. Apparently, Scott, Erick D. Jones, and a woman were in the car. She turned off the dome light in her car and began walking toward the department store when she heard a male voice whisper: "Hey there baby." She became frightened and began walking "very fast" toward the store.

Strozdas stated that Jones "grabbed my arm and whipped me around and started tearing at my purse." She pulled the purse toward herself. She saw other people in the parking lot and began screaming for help. Robert and Betty Natz observed the struggle from approximately seventy five feet away. Mr. Natz observed one female and two males. He described both males as non-white. Mrs. Natz described the two males as possibly black. Strozdas' purse handles then broke. Jones struck her with his fist, breaking her nose and sending her to the ground. While Strozdas was on the ground, she saw Jones enter a car and she memorized the license plate number.

In the early morning of March 9, 1991, a Washington State patrolman observed a car speeding 75 to 85 miles per hour. He pulled up alongside the vehicle. As he did so, the car decelerated and swerved over the lane divider. The officer reported the license plate number and the car was reported stolen from Kansas City. The patrolman turned on his squad car lights and attempted to stop the car. He pursued the vehicle at speeds of 95 to 120 miles per hour. The high speed chase lasted 70 miles. He requested additional backup and a spike strip to be laid on the road. The car hit the strip and its front tire deflated.

Three passengers were in the car. Jones, Scott and a woman named Marin Bird Song. The three were arrested for felony eluding and possession of stolen property--the car. Inside Bird Song's purse were Strozdas' driver's license, checkbook, social security card, and other identification. A photographic lineup of eight dark-skinned men was prepared for Strozdas. It included photos of Jones and Scott. Strozdas identified Jones' photo as "very familiar." An extradition warrant was issued and Jones and Scott were returned to South Dakota.

The two were tried together and were found guilty of First Degree Robbery. Scott was sentenced to 25 years in the State Penitentiary. We affirmed on direct appeal. State v. Smith, 494 N.W.2d 390 (S.D.1992).

At the habeas hearing, State called the prosecutor who tried the case. Scott testified at the hearing that he had worn a prison uniform throughout the trial, had never been charged with a crime in the state of Washington and that closing argument by trial counsel was improper. The habeas court found Scott was not denied due process nor given ineffective assistance.

Ineffective Assistance of Counsel

Scott claims ineffective assistance due to several errors. He claims that the sum of these errors amounts to ineffective assistance. We have adopted the two-prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for ineffective assistance of counsel claims. Mitchell v. Class, 524 N.W.2d 860, 862 (S.D.1994) (citing Luna v. Solem, 411 N.W.2d 656, 658 (S.D.1987)). First, Scott must prove that his trial counsel's performance was deficient. Id. He must show that trial counsel made errors "so serious that counsel was not functioning as the 'counsel' guaranteed ... by the Sixth Amendment." Id. Secondly, he must show that the deficient performance "prejudiced the defense" by showing that "counsel's errors were so serious as to deprive the defendant of a fair trial." Id. The reasonableness of trial counsel's action is evaluated from trial counsel's perspective at the time the alleged error occurred. Id.

Prejudice exists where "there is a reasonable probability that, but for trial counsel's unprofessional errors, the result of the proceeding would have been different." Id. A reasonable probability means a "probability sufficient to undermine confidence in the outcome." Id.; see Lockhart v. Fretwell, 506 U.S. 364, ---- - ----, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180 (1993) (defendant must show not only that outcome would have been different but that counsel's errors were so serious as to deprive him of a fair trial).

1. Motion to Sever trials

Scott claims trial counsel did not effectively move to sever his trial and Jones. On July 25, 1991, Scott's trial counsel filed a motion for severance of the defendants under SDCL 23A-11-2. Trial counsel also filed an affidavit in support of the motion. Jones' counsel renewed the motion to sever the trial after opening argument indicated the two defenses were hostile toward one another. Scott claimed to be an innocent bystander. Jones' counsel argued Scott was "pointing the finger at [Jones] ... [and Jones] is being prosecuted not only by the prosecuting attorney but also by [Scott's trial counsel.]" Jones' counsel asked for a mistrial because of the jury selection and for severance. Scott's trial counsel did not add anything further. The prosecutor argued that defendants must make an affirmative showing on a motion for severance before trial and that they failed to do so. The trial court denied the motions. Trial counsel raised this issue on direct appeal and we affirmed the trial court. Smith, 494 N.W.2d at 390.

We have held that "[w]here substantially the same issue was raised on direct appeal as in habeas review, 'the principle of res judicata is applicable to proceedings upon habeas corpus.' " Stumes v. Delano, 508 N.W.2d 366, 370 (S.D.1993) (quoting Miller v. Leapley, 472 N.W.2d 517, 519 (S.D.1991)). Scott claims the severance issue must be addressed on habeas as to the ineffective assistance claim. We agree. However, the severance of trials is a matter within the trial court's discretion. State v. Shape, 517 N.W.2d 650, 655 (S.D.1994). "[T]he law favors joint trial for reasons of judicial economy." Id. at 655 (citation omitted). Scott must show a "substantial prejudice which amounts to a denial of a fair trial." Id.

To cause the type of prejudice that prevents co-defendants from obtaining a fair trial, the defenses must be more than merely antagonistic. They must conflict to the point of being irreconcilable and mutually exclusive so that acceptance of one defendant's defense will preclude the acquittal of the other defendant.

Id. (citation omitted).

Scott's trial strategy was that there was not any identification of him as the other "dark-skinned" male at the crime scene. Scott's defense is not mutually exclusive from Jones's defense of mistaken identification.

In State v. Andrews, 393 N.W.2d 76, 79 (S.D.1986), we faced a similar challenge to the trial court's refusal to sever the trial.

It is not enough to allege that evidence presented against his codefendants would tend to cumulate prejudicially against him, nor is it enough for him to demand severance because he did not participate in the alleged crime as actively as did his codefendants.

Id. (citation omitted).

We must determine if the jury is able to follow proper instructions to keep separate and appraise evidence relevant to each defendant in a single trial of codefendants. Id. (citation omitted). "Admission of evidence against only one of several defendants does not on its own create sufficient prejudice to justify reversal when proper limiting instructions are given to the jury." Id. (citations omitted). Scott has not shown that the proper instructions were not given nor that the jury did not follow them. The habeas court found that Scott failed to show trial counsel's performance was deficient or prejudicial. Scott has not shown this finding to be error.

2. Failure to raise issue of Probable Cause

Scott claims trial counsel did not object to lack of probable cause for his arrest in the state of Washington. Scott's trial counsel did join in Jones' motion to suppress evidence seized due to the stop of the car in Washington. The trial court held an evidentiary hearing on the motion. The officer testified that he observed the car speeding and travelling across the lane divider. A check on the license plate revealed the car was stolen. After the officer turned on his lights, he pursued the car at speeds of 95 to 120 miles per hour. The trial court denied the motion, finding that the officer had reasonable suspicion to stop the car and to search it incident to arrest. ¹ Issues involving probable cause for searches and seizures may not be litigated collaterally in habeas proceedings. Stone v. Powell, 428 U.S. 465, 482, 96 S.Ct. 3037, 3046, 49 L.Ed.2d 1067 (1976). Because this issue was raised in the trial court, it may not be reviewed on the merits during habeas review. ² Willett v Lockhart, 37 F.3d 1265, 1273 (8th Cir.1994). Additionally, the habeas court did not find trial counsel's performance deficient or prejudicial. Scott has not shown this to be error.

3. Failure to raise issue of Prison Garb

Scott claims his trial counsel should have objected to the prison uniform which he wore during...