State v. Pursley, 27445.
| Decision Date | 11 May 2016 |
| Docket Number | No. 27445.,27445. |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Steven PURSLEY, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Marty J. Jackley, Attorney General, Kelly Marnette, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
Eric D. Whitcher of Pennington County Public Defender's Office, Rapid City, South Dakota, Attorneys for defendant and appellant.
[¶ 1.] Steven Pursley appeals his jury conviction for simple assault. According to Pursley, prosecutor misconduct occurred during the State's closing argument and its cross-examination of Pursley, depriving him of his rights to an attorney and due process. We affirm.
[¶ 2.] On Friday, November 2, 2012, Jeffrey Patterson and Caleb Fousek visited the Belle Star Gentleman's Club in Box Elder, South Dakota, where they were later joined by their friend James Thompson. Shortly after Thompson arrived, he and Patterson decided to step outside to smoke cigarettes. Crystal Sandoval, who is Defendant's sister, was outside. Patterson began flirting with Sandoval but ceased after an exchange of words with some third person.
[¶ 3.] After Patterson stopped talking to Sandoval, Pursley exited the Belle Star. Pursley did not speak to Patterson; instead, Pursley used his fist to strike Patterson on the left side of his head. Patterson fell to the ground unconscious, and Pursley walked back into the bar. Patterson suffered a bruise on the left side of his brain and was not released from the hospital until the following Monday. Following the attack, Patterson has suffered from headaches and short-term memory loss.
[¶ 4.] Fousek exited the bar in search of his friends and broke up a fight between Sandoval and another woman. Pursley again exited the bar, and Thompson identified Pursley to Fousek as the individual who knocked out Patterson. Fousek attacked Pursley, who responded by striking Fousek with his fist, knocking him to the ground. Pursley struck Fousek a second time before being restrained by bystanders. Pursley eventually went back into the Belle Star.
[¶ 5.] The Box Elder Police Department was notified of the assault around 2:00 a.m. on November 3, 2012. Although an officer spoke with Fousek and several other people at the Belle Star, nobody positively identified Pursley as the attacker. No arrest was made at that time, but the officer requested surveillance footage from outside the bar.
[¶ 6.] Patterson and Thompson returned to the Belle Star on November 30, 2012. As they were parking, Thompson saw Pursley and recognized him as the individual who had attacked Patterson earlier in the month. Thompson called the police. Box Elder Police Officer Joshua Campbell and another officer responded to the Belle Star. After an officer spoke with Patterson and Thompson, Officer Campbell accompanied Thompson inside the bar. Thompson identified Pursley, and Officer Campbell asked Pursley to exit the bar. After they exited the bar, Officer Campbell asked Pursley about the incident that occurred at the Belle Star in the morning hours of November 3. Pursley denied any involvement. Even so, Officer Campbell arrested Pursley for the November 3 incident.
[¶ 7.] On December 12, 2012, Pursley was charged with assaulting both Patterson and Fousek, and a jury trial commenced on October 22, 2013. At trial, Pursley claimed his use of force against Fousek was justified as self-defense. Pursley also claimed his use of force against Patterson was justified as defense of others because according to Pursley, Patterson was sexually harassing his sister. During cross-examination, the prosecutor and Pursley had the following discussion:
During her closing argument, while recounting the above sequence of events, the prosecutor said:
[¶ 8.] The jury convicted Pursley of assaulting Patterson but acquitted him of assaulting Fousek. The circuit court sentenced Pursley to 360 days in the Pennington County Jail but suspended execution of the sentence. Pursley appeals, raising one issue: Whether the prosecutor's reference to Pursley's attorney in cross-examination and closing argument violated Pursley's Sixth Amendment right to counsel and deprived him of a fair trial.
[¶ 9.] Pursley contends he is entitled to a new trial for two reasons. First, Pursley argues the prosecutor's comments violated his Sixth Amendment right to counsel. Second, Pursley argues the comments improperly attacked—without a good-faith basis for doing so—the credibility of his trial attorney by implying Pursley's attorney manufactured Pursley's affirmative defenses. Because Pursley argues that these comments prejudiced him, he concludes that he was denied a fair trial. The State argues that no misconduct occurred and that even if it did, Pursley was not prejudiced. Because harmless error analysis disposes of both arguments, we address it first.
[¶ 10.] When misconduct occurs, “we will reverse the conviction only if the misconduct has prejudiced the party as to deny him or her a fair trial.” State v. Smith, 1999 S.D. 83, ¶ 44, 599 N.W.2d 344, 354. We must disregard “[a]ny error, defect, irregularity, or variance which does not affect substantial rights....” SDCL 23A–44–14 (Rule 52(a)). “Even an error involving the denial of a constitutional right can be harmless....” State v. Heumiller, 317 N.W.2d 126, 130 (S.D.1982) ; accord Chapman v. California, 386 U.S. 18, 23–24, 87 S.Ct. 824, 827–28, 17 L.Ed.2d 705 (1967).* “The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Chapman, 386 U.S. at 23, 87 S.Ct. at 827 (quoting Fahy v. Connecticut, 375 U.S. 85, 86–87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963) ). Thus, “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Id. at 24, 87 S.Ct. at 828.
[¶ 11.] Pursley asserts that However, it is not reasonably possible that the prosecutor's objected-to comments influenced the jury. First and foremost, Pursley's trial testimony undermined his own credibility by establishing that he either lied to police officers when he claimed he was not involved in the November 3 incident or he lied on the witness stand when he claimed he acted in self-defense. The State also introduced evidence that Pursley has a history of speaking falsely. During cross-examination, Pursley acknowledged that on November 19, 2009, he pleaded guilty to the crime of false reporting. Furthermore, the fact that the jury acquitted Pursley on the charge of assaulting Fousek further supports the conclusion that the jury was not influenced by the prosecutor's references to defense counsel. “In all probability it is very unlikely the prosecutor's ... statements altered the jury's verdict.” Smith, 1999 S.D. 83, ¶ 53, 599 N.W.2d at 355. We believe the misconduct was harmless beyond a reasonable doubt; therefore, Pursley is not entitled to a new trial.
[¶ 12.] In light of the foregoing, we need not and do not determine whether the prosecutor's comments violated Pursley's Sixth Amendment right to counsel. Even so, we in no way condone the prosecutor's unfounded insinuation that defense counsel was complicit in manufacturing Pursley's false testimony. State v. Blaine, 427 N.W.2d 113, 115 (S.D.1988) (citations omitted). As the United States Supreme Court has explained:
The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case,...
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State v. Patterson
...conviction only if the misconduct has prejudiced the party as to deny him or her a fair trial.'" State v. Pursley, 2016 S.D. 41, ¶ 10, 879 N.W.2d 757, 760 (quoting State v. Smith, 1999 S.D. 83, ¶ 44, 599 N.W.2d 344, 354).[¶19.] Here, the State did cite facts in evidence which could allow in......