Woods v. Solem, 15366-

• Decision Date: 20 November 1986
• Docket Number: No. 15366-,15366-
• Citation: 405 N.W.2d 59
• Parties: Wayne WOODS, Petitioner and Appellant, v. Herman SOLEM, Warden, South Dakota Penitentiary, Respondent and Appellee. a-FEH. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 59

405 N.W.2d 59

Wayne WOODS, Petitioner and Appellant, v. Herman SOLEM, Warden, South Dakota Penitentiary, Respondent

and Appellee.

No. 15366-a-FEH.

Supreme Court of South Dakota.

Considered on Briefs Nov. 20, 1986.

Decided April 22, 1987.

Rehearing Denied May 15, 1987.

Richard Braithwaite of Braithwaite Law Offices, Sioux Falls, for petitioner and appellant.

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

HENDERSON, Justice.

HABEAS CORPUS/APPEAL

This is an appeal from an order denying petitioner-appellant Wayne Woods (Woods) habeas corpus relief. Woods contends that his trial counsel was ineffective in that

(1) Woods was not advised to testify; and

(2) accomplice instructions were not requested regarding Ruben Garcia.

Woods is now serving a life imprisonment sentence on a conviction of murder. This conviction is for premeditated murder and not for murder committed in furtherance of a felony. ¹ We affirm.

FACTS

The background facts of this case appear fully in our prior opinion, State v. Woods, 374 N.W.2d 92, 94-95 (S.D.1985) (Woods I ). Reference is made to all of those facts, plus the pertinent facts set forth in this decision.

On January 22, 1986, Woods requested habeas corpus relief. On February 4, 1986, the trial court issued an Order Appointing Attorney for purposes of the Writ of Habeas Corpus. The court issued a Writ of Habeas Corpus on February 28, 1986. A hearing was held on April 4, 1986. Woods alleged that his trial counsel, Kenn Pugh (who also acted as Woods' counsel on appeal), was ineffective. The trial court, by Order filed May 8, 1986, denied Woods habeas corpus relief. On May 13, 1986, the same court issued a Certificate of Probable Cause. Woods appeals from the May 8 Order. Both Woods and State couch two issues to be considered, word for word, in their respective briefs, which we treat seriatim.

DECISION

I. WAS TRIAL COUNSEL'S ADVICE TO DEFENDANT THAT HE NOT TAKE THE STAND A FAILURE TO EXERCISE GOOD FAITH JUDGMENT?

Those accused are guaranteed the right to counsel. U.S. Const. amend. VI; S.D. Const. art. VI, Sec. 7; Jones v. State, 353 N.W.2d 781, 783 (S.D.1984). "[T]he controlling case on ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." State v. Anderson, 387 N.W.2d 544, 546 (S.D.1986) (Henderson, J., specially concurring). See also Jones, 353 N.W.2d at 784-85. We have stated that the standard enunciated in Strickland is in accord with, though less restrictive than, our prior method for reviewing ineffective assistance of counsel claims. Preston v. State, 356 N.W.2d 907, 908 n. 2 (S.D.1984) (per curiam); Jones, 353 N.W.2d at 784-85; Stacey v. State, 349 N.W.2d 439, 443 n. 2 (S.D.1984). See, e.g., Williams v. State, 349 N.W.2d 58 (S.D.1984); State v. Tchida, 347 N.W.2d 338 (S.D.1984); High Elk v. State, 344 N.W.2d 497 (S.D.1984); State v. McBride, 296 N.W.2d 551 (S.D.1980).

In Strickland, the United States Supreme Court noted that to succeed on an ineffective assistance of counsel claim, the defendant must show two requirements.

First, ... that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, ... that the deficient performance prejudiced the defense. This requires showing that 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, 80 L.Ed.2d at 693 (quoted in Anderson, 387 N.W.2d at 547 (Henderson, J., specially concurring)). Accord State v. Dornbusch, 384 N.W.2d 682, 687 (S.D.1986) (Henderson, J., concurring); State v. Hammond, 357 N.W.2d 278, 280 (S.D.1984) (Wuest, Acting J., specially concurring); Jones, 353 N.W.2d at 784. We also note that even an unprofessional error by counsel will not result in a judgment being set aside if the error had no effect on that judgment. See Hammond, 357 N.W.2d at 280 (Wuest, Acting J., specially concurring); Jones, 353 N.W.2d at 784. Moreover, under Strickland, ineffective assistance of counsel will be found only if counsel's errors were prejudicial. If prejudice is found, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Anderson, 387 N.W.2d at 547 (Henderson, J., specially concurring) (citing Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698). See Hammond, 357 N.W.2d at 280 (Wuest, Acting J., specially concurring); Stacey, 349 N.W.2d at 443 n. 2. See also Dornbusch, 384 N.W.2d at 687 (Henderson, J., concurring) (which also highlights this language); Jones, 353 N.W.2d at 784. With this prologue in mind, we turn to the issues at hand.

Woods alleges that his trial counsel advised him not to testify. Woods claims this advice was erroneous and his trial counsel adhered to a strategy which offered little or no chance of success. Woods observes that a failure to testify is a "high risk" defense.

Woods' counsel admits he encouraged Woods not to testify. Attorney Pugh notes that Woods told two different stories of the shooting. Version one (told to Deputy Juso soon after Woods' arrest on November 18, 1983) stated that Woods went back to the victim's (James Everett) home to apologize to Everett for burglarizing his home. In version two (told by Woods at the habeas corpus hearing and to Deputy Bentliff, the polygraph operator who tested Woods a few hours after his arrest on November 18, 1983), Woods claimed Everett had molested ("raped" or "queered") Woods' younger brother and Everett had threatened the brother not to tell or "he could get hurt." Woods stated he burglarized Everett's home to remove the latter's guns so Everett could not make good on his threat to hurt Woods' brother.

At the remand hearing, Attorney Pugh explained Woods' version one had already been introduced into evidence via Deputy Juso. Attorney Pugh was concerned Woods' testimony would prompt exposure of version two. We observe that an intercepted note written by Woods to his father made reference to the molestation story and was available for impeachment purposes. In addition, Attorney Pugh was afraid revealment of the "rape" could provide motive/premeditation for Woods' killing of Everett.

The record reveals that Attorney Pugh and Woods reasoned and thoroughly discussed whether Woods should or should not testify. Woods voluntarily agreed that he did not desire to testify. Pugh took the precaution of reducing Woods' agreement not to testify in writing which was introduced as Exhibit 1 below. Additionally, during the trial process, the trial court advised Woods of his right to testify or to not testify and Woods elected to not testify.

This Court has stated "our function is not to second-guess the tactical decisions of trial counsel, nor will we substitute our own theoretical judgment for that of the trial attorney." Dornbusch, 384 N.W.2d at 686-87; Jones, 353 N.W.2d at 784. See State v. McBride, 296 N.W.2d 551. Pugh, as he was defending Woods, was confronted with two theories of defending this murder case. Pugh could defend Woods on a version of facts which Woods had related to the officers, then in evidence as part of the State's case; or, secondly, Pugh could defend upon a version of facts that Woods later, and now, relates: namely, that he, Woods, went to the house to get guns to prevent Everett from hurting someone. Defense counsel Pugh believed Woods stood a chance of being found guilty of manslaughter, rather than murder. Pugh was most concerned with not supplying a premeditation element out of the mouth of his client. Apparently, up until the time the trial court refused an instruction on lesser-included offenses, Pugh exercised a good-faith judgment in defending Woods and counselled with his client on trial technique--who agreed. Also, as pointed out above, the trial court gave Woods an opportunity to tell the second version of the facts by taking the stand, but this Woods refused to do. We would be holding contrary to oft-expressed South Dakota law if we now held that Attorney Pugh's advice in this matter rose to the level of ineffective assistance of counsel. Argument of Woods on this point is therefore rejected.

II. WAS TRIAL COUNSEL'S REPRESENTATION INEFFECTIVE BECAUSE HE FAILED TO REQUEST AN ACCOMPLICE INSTRUCTION?

Under the facts and circumstances of this case, we hold that trial counsel did not ineffectively represent Woods by failing to require an accomplice instruction.

We must reach into the factual background to determine Garcia's role in this criminal scenario. On November 7, 1983, at noon, Woods, all by himself, committed burglary at the home of James Everett and stole three rifles, one pistol, a duffel bag, a camera, and a pair of binoculars. Thereupon, Woods returned to Rapid City, South Dakota, and called one Ruben Garcia, a 14-year-old boy, to inform him that he had something to show him. Garcia's father despised Woods, so Woods, telephonically, set up a meeting with the boy to show him the pistol which he had stolen from Everett, and which pistol would be later on used to kill James Everett in cold blood.

Woods persuaded Garcia to go with him back to the Everett residence to steal a few more things and the two of them arrived at about five o'clock that evening. Woods wanted Garcia to go into the house with him and burglarize the house. Garcia refused, stating, at that time, he did not have gloves and his fingerprints were on record (from juvenile probation). So Woods entered the house alone.

Enter Everett on the scene. Woods was now in the house and Garcia, seeing the headlights, ran into the trees to hide....