State v. Lufkins

• Decision Date: 23 October 1985
• Docket Number: No. 14781,14781
• Citation: 381 N.W.2d 263
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Dennis LUFKINS, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 263

381 N.W.2d 263

STATE of South Dakota, Plaintiff and Appellee, v. Dennis LUFKINS, Defendant and Appellant.

No. 14781.

Supreme Court of South Dakota.

Considered on Briefs Oct. 23, 1985.

Decided Jan. 29, 1986.

Robert B. Vrooman, Asst. Atty. Gen., Pierre, on the brief: Mark V. Meierhenry, Atty. Gen., Pierre, for plaintiff and appellee.

David Alan Palmer, of Strange & Palmer, Sioux Falls, for defendant and appellant.

HENDERSON, Justice.

ACTION

This is a criminal appeal from a Judgment of Conviction which found Dennis R. Lufkins (appellant) guilty of first-degree manslaughter and guilty of being an habitual offender. Appellant was sentenced to life imprisonment. We affirm.

FACTS

The facts and procedural history of this case are well documented. See State v. Lufkins, 309 N.W.2d 331 (S.D.1981); Lufkins v. Solem, 554 F.Supp. 988 (D.S.D.1983); and Lufkins v. Solem, 716 F.2d 532 (8th Cir.1983).

On December 4, 1979, appellant, Ernest Hayes (Hayes), Eugene Hedine (Hedine), Sylvester Johnson (Johnson), Matthew Blue Dog (Blue Dog), and Ruth Titus were drinking at Hayes' residence in Sisseton, South Dakota. A fight broke out between Johnson and appellant and the latter struck Johnson in the head with an ax handle. After being struck, Johnson fell, was helped up, fell again, and was helped up again. Hayes took Johnson to the hospital but en route thereto, Hayes observed that Johnson had died. Hayes then decided to deposit Johnson's body on a church lawn.

While in jail on an unrelated charge, and in the presence of law enforcement officers, appellant made and signed an inculpatory statement regarding Johnson's death. On June 2, 1980, after the commencement of a jury trial, appellant pleaded guilty to first-degree manslaughter and thereby aborted the trial. Appellant, however, was later permitted to withdraw his guilty plea. A second trial resulted in appellant's conviction for first-degree manslaughter. Thereafter, appellant pleaded guilty to an habitual offender charge.

On appeal to this Court, appellant contended, inter alia, he was (1) denied due process by the admission of his inculpatory statement without a prior determination of its voluntariness outside the jury's presence and (2) denied effective assistance of counsel. We rejected appellant's contentions and affirmed his conviction. State v. Lufkins, 309 N.W.2d 331 (S.D.1981) (Lufkins I).

Appellant then filed a writ of habeas corpus in federal district court asserting the same ineffective assistance of counsel and voluntariness claims previously rejected by this Court. The federal district court granted appellant's habeas corpus writ holding that the trial court did not make a distinct determination concerning the voluntariness of the statement and that appellant had been denied effective assistance of counsel because counsel failed to mount any challenge to the voluntariness of appellant's inculpatory statement. Lufkins v. Solem, 554 F.Supp. 988, 996 (D.S.D.1983) (Lufkins II). Therein, the federal district court also opined:

The evidence produced by the State against petitioner consisted primarily of testimony by three companions who supposedly witnessed the lethal events of December 4, 1979. None of these witnesses were particularly reliable. All had been drinking heavily from at least the early hours of December 4, and all had leaden memories of the evening. ¹²

Id. Footnote 12 reads:

Petitioner's counsel did not move to have the witnesses sequestered as is permitted by SDCL Sec. 19-14-29. Counsel knew that the recollection of the witnesses against his client was unsure.... Failure to move that these witnesses not have the chance to listen to one another's testimony, is another instance of counsel's failure to exercise his professional judgment in his client's behalf....

Lufkins II was affirmed in Lufkins v. Solem, 716 F.2d 532 (8th Cir.1983) (Lufkins III), cert. denied, --- U.S. ----, 104 S.Ct. 2667, 81 L.Ed.2d 372 (1984). In so affirming, the Court of Appeals stated:

Other than the incriminating statement, the only evidence of guilt was the testimony of three companions who purportedly witnessed Lufkins hit the decedent with an axe handle on the evening of December 4, 1979. However, as emphasized by the district court, these witnesses were not particularly reliable because they had been drinking heavily from the early hours of December 4, and they had difficulty recalling the events of that evening. Furthermore, apart from the prejudice caused by counsel's failure to challenge the admission of the incriminating statement, counsel undercut Lufkins' trial defense by failing to sequester these three eyewitnesses so that they could not listen to one another's testimony. We believe this was further evidence of counsel's prejudicial failure to exercise his professional judgment in his client's behalf.

Id. at 541.

By an Order dated July 6, 1984, the South Dakota trial court decreed that appellant be retried. Thereafter, various motions were filed with the trial court. As relevant herein, these motions included a motion by appellant to suppress his inculpatory statement and a motion by the prosecution to use the transcript testimony of Hayes, Blue Dog, and Hedine, taken at the previous trial, because these witnesses were unavailable to testify.

A motion hearing was held on October 4, 1984. Four witnesses testified thereat and numerous exhibits were received in evidence for the purposes of the hearing. Thereafter, the trial court denied appellant's motion to suppress and granted the prosecution's motion to use the transcript testimony of the unavailable witnesses.

Jury trial was commenced on October 31, 1984. On November 5, 1984, the jury returned a verdict which found appellant guilty of first-degree manslaughter. On this later date, appellant dismissed his counsel, demanded immediate arraignment on an habitual offender charge, pleaded guilty thereto and requested immediate sentencing. A sentence of life imprisonment was then imposed. On November 7, 1984, appellant moved for a new trial; appellant filed his notice of appeal on November 16, 1984, addressing the entire Judgment of Conviction and sentence imposed.

DECISION

I.

DID THE TRIAL COURT PROPERLY ADMIT THE 1980 TRIAL TRANSCRIPT TESTIMONY OF HAYES, BLUE DOG, AND HEDINE? WE HOLD THAT IT DID.

The Sixth Amendment to the United States Constitution guarantees the accused in criminal prosecutions the right to confront the witnesses against him and this guarantee is obligatory on the states via the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). South Dakota Constitution Article VI, Sec. 7, also guarantees the accused the right "to meet the witnesses against him face to face...." These protections, however, are not absolute. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); State v. Davis, 293 N.W.2d 885 (S.D.1980). A traditional exception to the confrontation requirement is when "a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant." Barber v. Page, 390 U.S. 719, 722, 88 S.Ct. 1318, 1320, 20 L.Ed.2d 255, 258 (1968). See also, State v. Brim, 298 N.W.2d 73, 80 (S.D.1980). This traditional exception to the confrontation requirement is codified in SDCL 19-16-30 and this statute provides:

Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, is not excluded by Sec. 19-16-4 if the declarant is unavailable as a witness and if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

Thus, if a witness testified at a previous hearing or trial in which the defendant had an opportunity and similar motive to develop that testimony by cross-examination, and the witness is unavailable for a subsequent retrial, and the prosecution has made a good-faith effort to procure his presence, the witness' previous testimony is admissible at the subsequent trial and it does not offend constitutional guarantees. See Barber, 390 U.S. 719, 88 S.Ct. 1318; Davis, 293 N.W.2d 885; and SDCL 19-16-30.

Appellant contends, however, that the State has failed to prove that Hayes, Blue Dog, and Hedine were unavailable for his 1984 trial. With this contention, we disagree.

At the time of trial, Matthew Blue Dog was a patient at the Tekakwitha Nursing Home in Sisseton. Blue Dog's medical diagnosis was that he suffered Systemic Lupus Erythematosis, Chronic Alcoholism, and an organic brain syndrome known as Dementia. In July 1984, Blue Dog was examined by Russell C. Sunderland, M.S.W. Sunderland testified at the motion hearing and also submitted a Mental Status Assessment of Blue Dog. The substance of the testimony and the assessment was that Blue Dog did not remember the day of Johnson's death or that Johnson was dead; that Blue Dog had difficulty maintaining his attention; that Blue Dog's memory was not vivid and he was unable to recall dates and places; that Blue Dog's memory was not in chronological order and he seemed to experience some memory blocking and inability to recall in detail; that Blue Dog experienced visual hallucinations and exhibited bizarre behavior in the past; and that Blue Dog had a slowing of thought, sparsity of speech and a loss of intellectual functioning. Based on the above, the trial court found Blue Dog incompetent to testify and unavailable for trial.

Generally, every person is competent to be a witness, SDCL 19-14-1, if they have personal knowledge of the matter, SDCL 19-14-2, and they have "sufficient understanding to receive, remember, and narrate impressions, and [are] sensible to the obligation of an oath." 81 Am.Jur.2d...