State Dakota v. Thomas, 25628.

• Decision Date: 13 April 2011
• Docket Number: No. 25628.,25628.
• Parties: STATE of South Dakota, Plaintiff and Appellee,v.Nathaniel J. THOMAS, Defendant and Appellant.
• Court: South Dakota Supreme Court

796 N.W.2d 706

2011 S.D. 15

STATE of South Dakota, Plaintiff and Appellee,

v.Nathaniel J. THOMAS, Defendant and Appellant.

No. 25628.

Supreme Court of South Dakota.

Considered on Briefs Feb. 16, 2011.Decided April 13, 2011.

Marty J. Jackley, Attorney General, Kirsten E. Jasper, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Steve Miller, Sioux Falls, South Dakota, Attorney for defendant and appellant.ZINTER, Justice.

[¶ 1.] Nathaniel Thomas was convicted of Reckless Burning, a Class 4 felony. He appeals, claiming that the circuit court plainly erred in failing to give appropriate instructions on accomplice testimony. He also contends that instructional and other errors deprived him of effective assistance of counsel.¹ Finding that Thomas received ineffective assistance of counsel, we reverse and remand for a new trial.

Facts and Procedural History

[¶ 2.] The Pressbox bar and restaurant in Vermillion caught fire and burned in the early morning hours of September 29, 2008. When firefighters arrived, the north side of the building was in flames. Investigators found a Coors Light bottle with a cloth sticking out of it on the northeast side of the building. A police officer described it as a “Molotov cocktail.” The police treated the case as arson, but no immediate headway was made in the investigation.

[¶ 3.] Nine months after the incident, Detective Crystal Brady received a tip that Ryan Kightlinger, Thomas's cousin, had information about the fire. Kightlinger's information led Detective Brady to Thomas and to Jimmy and Jeremy Broomfield. Following interviews with Kightlinger and the Broomfields, Detective Brady concluded that Thomas and the Broomfields set a fire behind the Pressbox that spread to the building.

[¶ 4.] Detective Brady subsequently interviewed Thomas. Thomas admitted reporting the fire to 911 at 3:34 a.m. Thomas also admitted that the Broomfields were at his house (across the street from the Pressbox) drinking on the night of the fire. Thomas, however, claimed that the Broomfields left his house two or three hours before he reported the fire. Thomas further claimed that he went to bed immediately after the Broomfields left and that he slept until he woke up to go to the bathroom. Thomas indicated that while in the bathroom, he saw the fire and immediately called 911. Although Thomas denied talking with anyone from the time he went to bed until he reported the fire, his cell phone records reflected that he had eight incoming and outgoing phone calls between 2:50 a.m. and the 911 call at 3:34 a.m. The calls were to and from Jimmy Broomfield, Kightlinger, and Thomas's mother.

[¶ 5.] Thomas was charged with Reckless Burning in violation of SDCL 22–33–9.3. Counsel was appointed but withdrew due to a conflict. Substitute counsel was appointed. Counsel prevailed on a motion to continue the jury trial but filed no other pretrial motions.

[¶ 6.] At trial, the Broomfields were the only witnesses directly implicating Thomas in starting the fire. Jimmy testified that he, Jeremy, and Thomas had been drinking together the night of September 28 into the morning hours of September 29. He indicated that the three of them took two empty Coors Light bottles and filled them with gasoline from Jimmy's car. They also took paper towels from Thomas's home to help light the fire. They poured some of the gasoline onto a gravel patch approximately ten or fifteen feet behind the building and ignited the gasoline. Both Broomfields testified that they saw Thomas light the fire. According to the Broomfields, the fire burned and then died down. They further claimed that they put out the remaining fire to the point it was just smoking and went home to bed. Jimmy testified that approximately ten minutes after walking to his home across the alley, he looked out the window and saw that the fire had started up again. Jimmy testified that he called Thomas, told him about the fire, and tried to get him to call 911.

[¶ 7.] Although Thomas admitted being with the Broomfields earlier that evening, he vehemently denied any involvement with the fire. He contended that animosity and the Broomfields' plea agreements motivated them to lie. He also contended that the Broomfields had a motive to lie because Thomas had assaulted Jimmy.

[¶ 8.] Although the Broomfields' trial testimony directly implicated Thomas, Jimmy conceded that he gave two prior statements of the events to Detective Brady. Both statements excluded Thomas's involvement. Both Jimmy and Jeremy also conceded that they entered into plea agreements with the State as a result of the fire. The plea agreements required the Broomfields to testify at Thomas's trial.

[¶ 9.] Other than the Broomfields, Ryan Kightlinger was the only other witness who linked Thomas to the fire. Kightlinger testified that Thomas called Kightlinger around three a.m. on September 29. Kightlinger testified that during the phone call Thomas indicated that he and the Broomfields had been drinking heavily and that “they” started the fire. However, when asked by the state's attorney what “they” meant, Kightlinger conceded that Thomas never indicated he was personally involved in starting the fire.²

[¶ 10.] Chad Grunewaldt, the owner of the Pressbox, was the only other witness who observed people around the building the morning of the fire. He testified that around two a.m., he saw three male college-aged students grilling, hanging out, and drinking in the vicinity of Thomas's front yard. But Thomas's front yard was shared by other tenants, and Grunewaldt did not identify the individuals.

[¶ 11.] The jury found Thomas guilty, and he raises two issues on appeal:

1. Whether the circuit court plainly erred in instructing the jury on accomplice testimony.

2. Whether Thomas was denied effective assistance of trial counsel.

Decision

[¶ 12.] Thomas's primary contention in both issues involves claimed inadequacies in the circuit court's accomplice instruction. The court gave an accomplice instruction (Instruction 16) sua sponte. Instruction 16 provided:

You cannot find a defendant guilty based upon the testimony by a co-defendant that incriminates the defendant unless that testimony is corroborated by other evidence which tends to connect the defendant with the commission of the offense.

[¶ 13.] Thomas argues that this instruction was incomplete in three respects. Thomas first contends that because the instruction referred to “co-defendants” rather than “accomplices,” the jury was not instructed that the Broomfields' testimony had to be corroborated. Second, Thomas contends that the court did not adequately instruct on the nature of the evidence necessary to corroborate accomplice testimony. Thomas points out that the instruction did not indicate that corroborative evidence is insufficient if it merely shows the commission of the crime or the circumstances thereof and that one accomplice cannot corroborate another. Thomas finally contends that the court failed to instruct that accomplice testimony must be viewed with caution.

[¶ 14.] Because trial counsel did not object to the court's instruction or propose any defense instructions on accomplice testimony, Thomas concedes that these issues are not preserved for regular appellate review. Consequently, Thomas seeks relief on theories of plain error and ineffective assistance of counsel. Both theories require a showing of error and prejudice. ³ We begin by discussing the alleged errors. We then consider the issue of prejudice.

[¶ 15.] Thomas contends the circuit court erred in failing to instruct the jury that the Broomfields' testimony had to be corroborated. SDCL 23A–22–8 provides:

A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence which tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.

Thomas claims that because Instruction 16 only required corroboration of a “co-defendant's” testimony and the Broomfields were not co-defendants in this trial, the instruction could not have logically or grammatically applied to accomplices Jimmy and Jeremy Broomfield. We disagree.

[¶ 16.] In reviewing the sufficiency of jury instructions, the question is what a reasonable juror could have understood from the instructions. State v. Robinson, 1999 S.D. 141, ¶ 16, 602 N.W.2d 730, 734. In this case, Instruction 16 informed the jury that corroboration was required of “a co-defendant.” Additionally, the jury was instructed that “the [S]tate's witnesses, James and Jeremy Broomfield, have pleaded guilty to crimes which arose out of the same events for which the defendant is on trial here.” Because a reasonable juror would have understood that the Broomfields were the only witnesses who could have been co-defendants, the jury would have understood that the Broomfields' testimony was required to be corroborated. ⁴ Under the unique facts and circumstances of this case, we see no error in the court's modification of the accomplice instruction to apply to co-defendants rather than accomplices.

[¶ 17.] Thomas next contends that the circuit court erred in failing to sufficiently describe the nature of the testimony necessary to corroborate accomplice testimony. Thomas first points out that the court's instruction omitted the second sentence of SDCL 23A–22–8, which provides: “corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.” Thomas also points out that the court's instruction did not inform jurors that one accomplice's testimony cannot be used to corroborate another accomplice's testimony. See State v. Wiegers, 373 N.W.2d 1, 16 (S.D.1985) (“The testimony of one accomplice cannot be regarded as corroborating the testimony of another accomplice within the meaning of SDCL 23A–22–8.”); State v....