State v. McBride, 12779

• Decision Date: 17 September 1980
• Docket Number: No. 12779,12779
• Citation: 296 N.W.2d 551
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Steven LeRoy McBRIDE, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 551

296 N.W.2d 551

STATE of South Dakota, Plaintiff and Appellee, v. Steven LeRoy McBRIDE, Defendant and Appellant.

No. 12779.

Supreme Court of South Dakota.

Argued Jan. 28, 1980.

Decided Sept. 17, 1980.

Clair B. Ledbetter, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Stanley E. Whiting of Day, Grossenburg & Whiting, Winner, for defendant and appellant.

HENDERSON, Justice.

ACTION

Steven LeRoy McBride (appellant) was convicted by a Tripp County jury of third-degree burglary on March 8, 1979. McBride appeals alleging he was denied effective assistance of trial counsel. We agree, reverse and remand for a new trial.

FACTS

On January 22, 1979, appellant was arrested in Winner, South Dakota, and charged with third-degree burglary. Appellant was determined to be indigent and the trial court appointed counsel. A preliminary examination was held on January 31, 1979, and appellant was bound over to circuit court for trial. Appellant pled not guilty on February 14, 1979, the date of arraignment. Trial was set for March 7, 1979. On March 8, 1979, a jury returned a verdict finding appellant guilty of third-degree burglary. On March 28, 1979, after a presentence evaluation was made, appellant was sentenced to eight years in the state penitentiary. Appellant was appointed present counsel on March 30, 1979, to represent him on appeal.

There are some inconsistencies in the evidence received at trial. However, the following review of pre-arrest occurrences substantially reflects the pertinent facts.

Mr. and Mrs. Lawrence Brown, victims of the crime, returned home on January 19, 1979, at approximately 6:00 p. m. Their residence is located on the west edge of Winner. The Browns had been gone since January 17, 1979, and their home had been left unoccupied. Upon arrival, they discovered that their home had been broken into and the premises were in a state of disarray. Several items had been removed from the house. The Browns immediately called the sheriff's office and Deputy Sheriff Larry Wilcox responded. Upon arrival at the Brown's home that same evening, Deputy Sheriff Wilcox observed tracks in the snow indicating a vehicle had been stuck in the driveway. Two sets of footprints located outside the house were also observed by Deputy Sheriff Wilcox, although he could not determine if they were made by one or two individuals.

Deputy Sheriff Wilcox called the Winner Police Department dispatcher to find out if a stranded vehicle had been observed near the Brown's home. The dispatcher informed him that a stuck vehicle had been seen at that location and that it belonged to Rose Melda Milk, who reported it stolen the morning of January 19, 1979. Pursuant to this information, Deputy Sheriff Wilcox went to Milk's home. There it was discovered that a blanket belonging to the Browns was in the Milk car. Milk stated to Deputy Sheriff Wilcox she did not know where the blanket came from. After obtaining Milk's consent, a search was made of the car whereupon a pair of binoculars was found in the trunk. The Browns later identified the binoculars as their property.

The record reveals that during the night of January 18, 1979, Tim Roubideaux took Milk's car without permission. At approximately 7:00 a. m. on January 19, 1979, Roubideaux picked up Michael Williams, Larry Roast and appellant who were walking together in Winner. A quantity of wine was purchased and the four men proceeded to the "old processing plant" which is located near the Brown residence. Roubideaux was driving, and all four were drinking, when the car became stuck in the snow and failed to start. Williams testified that appellant and Roubideaux walked away from the car toward the Brown residence. Williams also stated that appellant and Roubideaux returned from the vicinity of the Brown residence carrying guns and a sack with unknown contents. The Browns did not mention any guns missing from their home, and no guns were ever recovered. Williams testified further that he did not leave the car while appellant and Roubideaux were outside, nor did he see either of them enter the Brown home. Appellant testified that he never entered the Brown home or had possession of the items taken from there.

After these events, appellant and his three companions walked back into town. During the afternoon of January 19, 1979, Roubideaux returned the keys to Milk's vehicle whereupon she retrieved it. Roubideaux, Williams, and appellant were all arrested. Williams was charged with receiving stolen property, but was granted immunity from prosecution on the condition that he testify for the state against appellant.

At trial, the state's witnesses consisted of Mrs. Brown, Williams, Milk, and Deputy Sheriff Wilcox. Appellant's witnesses were Gladys Roast (mother of Larry Roast), Larry Roast, who declined to testify under rights guaranteed him under the Fifth Amendment and SDCL 19-2-8, and appellant himself. Appellant's trial counsel, at conclusion of the state's case, made no motion for a directed verdict and submitted no requested jury instructions at the conclusion of the case.

ISSUE

Was appellant denied his constitutional rights and due process of law because of ineffective assistance of counsel at trial?

DECISION

The right of an accused in a criminal action to the assistance of counsel is guaranteed under Article VI, Section 7 of the South Dakota Constitution. ¹ This means adequate and effective assistance of counsel. State v. Pieschke, 262 N.W.2d 40 (S.D.1978); State v. Goode, 84 S.D. 369, 171 N.W.2d 733 (1969). The right follows the Sixth Amendment standards under the United States Constitution. ² McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).

In reviewing appellant's contention that he was denied a fair trial due to ineffective counsel, we begin with two premises: (1) an attorney is presumed competent, and (2) the party alleging incompetence has a heavy burden in establishing ineffective assistance of counsel. State v. Pieschke, supra; State v. Roth, 84 S.D. 44, 166 N.W.2d 564 (1969); State v. Erickson, 80 S.D. 639, 129 N.W.2d 712 (1964).

In considering the trial tactics of an attorney, we will not substitute our own theoretical judgment for that of the defense counsel who has dealt with appellant in an attorney-client relationship. Crowe v. State, 86 S.D. 264, 194 N.W.2d 234 (1972). This Court's function is not to second guess the tactical decisions of the trial attorney due to unproductive results in the courtroom. State v. Walker, 287 N.W.2d 705 (S.D.1980); State v. Brown, 285 N.W.2d 848 (S.D.1977). Effective counsel is not always equated with successful counsel. State v. Watkins, 85 S.D. 573, 187 N.W.2d 205 (1971). We have recently stated:

Attorneys, as officers of the court, are presumed to do their duty as the law requires. Mere assertions or denials to the contrary by the accused do not entitle him to relief unless found to be true upon adequate proof, and the burden of establishing a basis for relief in a post-conviction proceeding rests on the petitioner.

Brim v. State, 290 N.W.2d 680, 681 (S.D.1980).

However, the duty imposed upon defense counsel to represent effectively carries with it the duty to exercise good faith judgment. Crowe v. State, supra. Every criminal defendant's constitutional rights must be protected, and "(t)here should be no hesitation in reversing a conviction if the record reveals that a defendant was not afforded the effective assistance of counsel." Crowe v. State, 84 S.D. at 280, 194 N.W.2d at 242. The quality of representation for an indigent defendant is not to be any less than that provided for a client who duly compensates his counsel. State v. Means, 268 N.W.2d 802 (S.D.1978); State v. Jameson, 75 S.D. 196, 61 N.W.2d 832 (1953). A criminal defendant is undoubtedly entitled to adequate and effective counsel, and "a mere perfunctory and casual representation does not satisfy the constitutional guaranty to the effective assistance of counsel." State v. Pieschke, 262 N.W.2d at 45. See also Crowe v. State, supra; State v. Erickson, supra.

Appellant has pointed out several factors which he maintains indicate the ineffectiveness of his trial counsel. Many of these allegations revolve around inaction by appellant's counsel in regard to the status of state's witness Michael Williams. Williams was the prosecutor's main witness and the only individual to give testimony which linked appellant with the burglary. Appellant argues that his counsel did not once try to use Williams' status (as a possible accomplice to the crime of which appellant was charged) to mitigate the effectiveness of his testimony.

Appellant alleges that his counsel should have made a motion for a directed verdict at the close of the state's case. This motion is predicated on the fact that if Williams was, in fact, deemed to be an accomplice, the state must show other corroborative evidence indicating appellant's guilt to establish a conviction. See SDCL 23A-22-8.

Williams was charged with receiving stolen goods and subsequently granted immunity for testifying against appellant. Appellant also states that it was error for his counsel not to request an instruction that the jury must consider with caution the testimony of an accomplice, or one granted immunity, i. e., Williams. Similarly, it is argued by appellant that his counsel should have requested that the jury be instructed to consider Williams' possession of stolen property in determining if Williams was an accomplice. It would appear the state did not have a case without the testimony of an accomplice or a colleague in crime. It behooved appellant's counsel to bear down on the most critical aspect of his defense by a ...