Siers v. Class

• Decision Date: 29 April 1998
• Docket Number: No. 20302,20302
• Citation: 1998 SD 77,581 N.W.2d 491
• Parties: Anthony SIERS, Petitioner and Appellee, v. Joseph CLASS, Warden of the South Dakota State Penitentiary, Respondent and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 491

581 N.W.2d 491

1998 SD 77

Anthony SIERS, Petitioner and Appellee, v. Joseph CLASS, Warden of the South Dakota State Penitentiary,

Respondent and Appellant.

No. 20302.

Supreme Court of South Dakota.

Considered on Briefs April 29, 1998.

Decided July 8, 1998.

Timothy J. Rensch, Rapid City, for petitioner and appellee.

Mark Barnett, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, for respondent and appellant.

GILBERTSON, Justice.

¶1 The State of South Dakota (State) appeals the grant of Anthony Siers' (Siers) application for Writ of Habeas Corpus on the ground that he was denied effective assistance of counsel during his trial on one count of second degree rape. We reverse.

PROCEDURE

¶2 On October 4, 1991, a Pennington County jury found Siers guilty of the second degree rape of S.B. during the early morning hours of July 5, 1991. Siers was also found to be a habitual offender and was sentenced to serve fifteen years in the South Dakota State Penitentiary. His conviction was summarily affirmed on direct appeal. State v. Siers, 494 N.W.2d 390 (S.D.1992). In October, 1995, Siers filed an amended petition for habeas corpus relief alleging his trial counsel was ineffective for not pursuing two possible alibi witnesses. Evidentiary hearings were held in February of 1996 and 1997 ¹ after which Siers was granted habeas relief.

FACTS

¶3 The facts giving rise to this appeal began on July 4, 1991, between 9:00 and 10:00 p.m. when S.B., a Purdue University sophomore working a summer job with the Forest Service, went to the Black Hills Heritage Festival (festival) to meet some friends. Soon thereafter, S.B. was approached by a man, whom she later identified as Siers, asking for a light for his cigarette. The man introduced himself as "Tony" and she told him her first name. S.B. alleged she then became uncomfortable when Siers continued to follow her around the festival while she was searching for her friends. S.B. left the festival for a friend's house because she "didn't want [Siers] to follow [her] home" and claimed Siers continued following her on a bicycle and tried to persuade her to enter secluded areas. S.B. testified the man further identified himself as "Tony Siers." S.B. then gave Siers a name other than the one she originally gave him. Realizing S.B. had given him two different names, Siers replied, "Well, my name isn't Tony either. It's Tom Janis." Siers also tried to persuade S.B. to go to his home on "Silver Street." S.B. declined.

¶4 S.B. testified that Siers finally talked her into taking a short cut through a field. While walking across this dark field, S.B. claimed Siers pushed her to the ground and a violent fifteen-minute struggle ensued which ended when Siers pinned her to the ground, attempted to choke, and threatened to "beat the shit" out of her if she did not quit screaming. S.B. testified Siers raped her vaginally and orally, that she feared for her life, and attempted to calm Siers during the rape by submitting to him. According to S.B., Siers had difficulty trying to penetrate her, which angered Siers and caused S.B. great physical pain. S.B. tried to appease Siers and alleviate the pain by asking Siers to perform oral sex. After this assault, trying to maintain his trust, she then asked Siers to take her back to his house on Silver Street. The two began walking and while Siers was outside, S.B. entered a convenience store and asked to use the telephone, intending to call a friend to take her to the hospital. The convenience store clerk on duty at the time, Juanita Larvie (Larvie), overheard S.B.'s telephone conversation requesting a ride to the hospital. S.B. then told Larvie she had just been raped. Larvie suggested that S.B. telephone the police. S.B. called the police and became hysterical, blurting out two names, Tony Siers and Tom Janis, along with her social security number.

¶5 The police arrived and S.B. led them to the scene of the rape. S.B. was then taken to a hospital for a rape examination. S.B.'s chest and back were scratched and her undergarments were torn. A pelvic examination was performed during which injuries to the lining of S.B.'s vagina and a one-inch tear in S.B.'s hymen were detected. The examining physician testified the nature of S.B.'s injuries indicated S.B. had not been sexually active prior to the night of the rape. Semen samples were not obtained and S.B. was unsure whether Siers had ejaculated.

¶6 A Rapid City Police Department detective visited the address on Silver Street that had been given to S.B. by Siers. This was the residence of Siers' mother. Siers was not present. Siers had been living part-time with his mother and part-time with his sister, Joanna Siers (Joanna). Next the detective sought Siers at Joanna's house. Although Joanna was cooperative with the officer, significantly she did not mention to this officer what was to become her testimony at the habeas hearing, that Siers was at her home during the time of the rape. Siers was ultimately located at the Silver Street residence. Siers was also cooperative with police. He denied knowing or seeing S.B. much less raping her. Siers told the detective he had been at a powwow being held near the festival. Siers did not claim he was at his sister Joanna's apartment with her and her boyfriend Forest Bordeaux (Forest) at the time S.B. was raped.

¶7 S.B. participated in two photographic lineups. The first lineup did not contain a picture of Siers, but did contain a picture of Tom Janis, the second name allegedly given by Siers to S.B. the night of the rape. S.B. identified Siers as the rapist in the second of the photographic lineups. ² Larvie, the convenience store clerk, identified Siers as the man outside of the store when S.B. came in to use the telephone. ³ Additional facts will be discussed as necessary to address the issue presented:

ISSUE PRESENTED

¶8 Whether Siers' counsel was ineffective for failing to investigate two possible alibi witnesses.

STANDARD OF REVIEW

¶9 The remedy in a habeas proceeding is in the nature of a collateral attack on a final judgment, therefore, our scope of review is limited. Black v. Class, 1997 SD 22, 560 N.W.2d 544. Habeas corpus is not a substitute for direct review. Loop v. Class, 1996 SD 107, p 11, 554 N.W.2d 189, 191.

Habeas corpus can be used only to review (1) whether the court had 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. For purposes of habeas corpus, constitutional violations in a criminal case deprive the trial court of jurisdiction.

Black, 1997 SD 22 at p 4, 560 N.W.2d at 546 (quoting St. Cloud v. Leapley, 521 N.W.2d 118, 121 (S.D.1994) (internal citations omitted)).

¶10 The habeas petitioner has the initial burden to prove by a preponderance of the evidence that he is entitled to relief. Johnson v. Zerbst, 304 U.S. 458, 469, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461, 1469 (1938); Loop, 1996 SD 107 at p 14, 554 N.W.2d at 191; Two Eagle v. Leapley, 522 N.W.2d 765, 768 (S.D.1994). The habeas court's factual findings are given "considerable deference" and we will not reverse these findings unless they are clearly erroneous. St. Cloud, 521 N.W.2d at 121; McCafferty v. Solem, 449 N.W.2d 590, 592 (S.D.1989), cert. denied, McCafferty v. Leapley, 503 U.S. 911, 112 S.Ct. 1277, 117 L.Ed.2d 503 (1992); Satter v. Solem, 422 N.W.2d 425 (S.D.1988), cert. denied, 490 U.S. 1091, 109 S.Ct. 2432, 104 L.Ed.2d 989 (1989).

¶11 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 inactions constituted ineffective assistance of counsel." Id. 1997 SD 29, at p 6, 561 N.W.2d at 304-05 (quoting Aliberti v. Solem, 428 N.W.2d 638, 640 (S.D.1988)).

ANALYSIS AND DECISION

¶12 To establish ineffective assistance of counsel, Siers must prove deficient representation and that such deficiency was prejudicial to him. Lykken, 1997 SD 29 at p 27, 561 N.W.2d at 308 (citing Loop, 1996 SD 107 at p 14, 554 N.W.2d at 191).

To establish ineffective assistance of counsel, a defendant must prove (1) that counsel's representation fell below an objective standard of reasonableness and (2) that such deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hopfinger v. Leapley, 511 N.W.2d 845 (S.D.1994). Relying on Strickland, Woods v. Solem, 405 N.W.2d 59, 61 (S.D.1987), held that prejudice exists when there is a reasonable probability that, but for counsel's unprofessional errors, the proceeding would have been different. It is not enough for the petitioner to show that the verdict would have been different, he must show 'that the counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Hopfinger, 511 N.W.2d at 847.

Id. (citing Fast Horse v. Leapley, 521 N.W.2d 102, 104 (S.D.1994)).

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. The petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. (internal quotations and citations omitted).

Sprik v. Class, 1997 SD 134, p 23, 572 N.W.2d 824 (quoting Phyle v. Leapley, 491 N.W.2d 429, 433 (S.D.1992)).

¶13 At the...