Zemina v. Solem

Decision Date22 September 1977
Docket NumberCiv. No. 76-4090.
Citation438 F. Supp. 455
PartiesFred R. ZEMINA, Petitioner, v. Herman SOLEM, as the Duly Appointed, Qualified and Acting Warden of the South Dakota State Penitentiary, Respondent.
CourtU.S. District Court — District of South Dakota


Stuart Tiede, Woods, Fuller, Shultz & Smith, Sioux Falls, S. D., for petitioner.

Peter H. Lieberman, Asst. Atty. Gen., Pierre, S. D., for respondent.


NICHOL, Chief Judge.

Petitioner, Fred R. Zemina, seeks a Writ of Habeas Corpus, alleging that his confinement under the custody of Herman Solem, Warden of the South Dakota Penitentiary, is based on a conviction in state court for first degree manslaughter that was the result of proceedings that deprived him of various fourth, sixth, and fourteenth amendment rights. Specifically, the petitioner alleges that the state proceedings were constitutionally and jurisdictionally invalid for the following reasons:

I. The trial court deprived him of a jury trial and denied him of his liberty without due process of law when it refused his requested instructions as to excusable homicide, justifiable homicide, self-defense and defense of third persons.

II. The trial court deprived him of a jury trial and denied him due process of law when it overruled his objections to the prosecution's instructions on aiding and abetting.

III. Improper comments by the prosecution in closing argument deprived petitioner of his rights to due process of law and a fair trial.

IV. The suppression by the State of a letter regarding the competency of a potentially crucial defense witness deprived the petitioner of his rights to due process of law and a fair trial.

V. The suppression by the State of exculpatory evidence in the form of the summary of an interview that reflected on the credibility of a government witness deprived the petitioner of his rights to due process of law and a fair trial.

VI. The admission of a rifle into evidence at the trial violated petitioner's constitutional right to freedom from unreasonable search and seizure, and testimony made in support of the admission of the rifle was false and misleading.

VII. Petitioner was denied effective assistance of counsel.

VIII. Unreasonable delay in preparation of the trial transcript denied petitioner of a meaningful appeal and constituted a denial of due process of law.

IX. Petitioner was denied trial in the county wherein the alleged offense occurred.

X. The county wherein the alleged offense occurred was Indian Country and the State was without jurisdiction.

XI. The cumulative effect of all of these errors deprived petitioner of fundamental constitutional rights.1


Petitioner was a resident of Todd County, South Dakota, which is the present area of the Rosebud Indian Reservation. Todd County is an unorganized county attached to Tripp County. Petitioner is a white person who married an Indian and was living with her on a ranch located in the same general vicinity as the house where Ed and Bruce Zemina, brothers of the petitioner, were living. Also living in the immediate vicinity was Kenneth Fernen, Sr., the deceased, a white rancher who lived on his ranch with his family. The parties had been neighbors for many years.

In 1966 Fernen failed to apply for the right to lease Indian lands which the Fernen family had previously leased for many years. Clara Zemina, the wife of petitioner, applied for the leasing rights to certain lands immediately adjacent to Fernen's house. Following this, the relationship between the Zeminas and Fernen began to rapidly deteriorate. The driveway to Fernen's house, which was located on the leased land, was closed by the Zeminas when they took possession of the land and Fernen was forced to put in a new driveway. The Zeminas also fenced the newly leased acreage primarily because Fernen continued to graze livestock on the property even though he no longer retained any lease rights. During the period from 1966 to 1969, the Bureau of Indian Affairs Police and Todd/Tripp County Sheriff's officers were called to the area on numerous occasions to settle minor disputes. On one occasion while petitioner was erecting his fence, Fernen assaulted him and struck him several times. Petitioner commenced a civil action against Fernen and obtained a judgment in the amount of approximately $2,500.00. The friction between Fernen and the Zeminas culminated in a violent incident on November 8, 1969.

Fred and Bruce Zemina spent the afternoon of November 8, 1969, working in a hay field. Fernen spent the afternoon in several small communities in Nebraska buying some parts. It is undisputed that Fernen consumed alcoholic beverages in at least two bars and also that he acquired a case of wine and a 12 pack of beer. Fernen returned to South Dakota in the late afternoon and stopped to visit a neighbor about 5:15 p. m. While visiting with the neighbor Fernen consumed a can of beer. The Zeminas could be seen working in the hay field some distance away and Fernen and his neighbor joked about them. The neighbor noticed at this time that Fernen had a .22 rifle.

The Zeminas quit work sometime after 5:30 p. m. as darkness was approaching and headed home. Fred Zemina was driving the lead tractor and pulling a hay baler. Bruce Zemina was driving the second tractor pulling a hay sled with a stack of hay. The brothers were dressed almost identically. Both tractors were heading east. Fernen left the neighbor's ranch sometime after the Zeminas started home. Fernen came up behind the Zeminas as they were headed east and followed them. At about 5:50 p. m. Fernen's daughter, Connie Fernen Grablander, was headed west on the same road. She approached and passed the first tractor driven by Fred Zemina. She testified that as she approached the second tractor, driven by Bruce Zemina, Bruce forced her off the road. The tractor then stopped. After re-starting her automobile she met her father in his pickup a short distance behind the hay sled. She stopped and talked to her father for a little while. Fernen was upset with the Zeminas, at least initially, and called them a "dumb outfit". Fernen opened another can of beer while Connie was talking to him. Connie then drove away. She testified that as she was driving away she looked into her rear view mirror and saw the petitioner walking toward her father's pickup. The time would have been approximately 6:00 p. m.

The only evidence submitted at the trial concerning what transpired after Connie drove away was the testimony of the petitioner. He testified that Bruce was the first person to approach Fernen's pickup and that he, the petitioner, only approached the pickup after he heard the horn blowing and thought it was stuck. He further testified that a violent struggle was in progress when he first approached the truck and that he heard a gun go off as he came up. Fernen and Bruce were fighting over the .22 rifle and Fernen was choking Bruce. The petitioner testified that he said, "hey, what the heck is going on here? Let go of him", and gave Fernen a punch. Fernen replied, "I shot Bruce and I am going to get you." The struggle continued and after Bruce said "he shot me really bad" and "I think I am dying", Fred tried to grab the gun. He testified that as he did so Fernen kicked him in the nose and knocked him down. Fred heard the gun go off again. When he got up he saw Bruce and Fernen both still with their hands on the gun and Fernen was trying to pull the clip out. Fred heard the gun go off again and then Bruce fell back with the gun and then hit Fernen with it saying "stay there now you son of a bitch. I got the gun." Bruce and the petitioner then left, Bruce saying that he wanted to take the gun because it was the one that shot him.

Fernen's son found him shortly thereafter, lying on the ground on the passenger side of the pickup. Later investigation showed that the ground on the passenger's side was scuffed up. A scoop shovel was found in the pickup and Fernen's keys were found 20 to 25 feet away, two details that were never attempted to be explained at trial. Fernen was taken from the scene to the hospital in Rosebud. He had fractured jaws, a gunshot wound in the neck and one through the forehead that caused brain damage that resulted in his death at approximately 8:15 p. m. Because of the amount of blood on his face, the gunshot wounds were not immediately apparent. A blood sample was taken from the decedent about 8:30, approximately 2½ hours after the wounds were received. Analysis showed that the sample contained 0.06% alcohol by weight. The State chemist testified that alcohol oxydizes in the blood at a rate of about .012 to .020 per hour.

After picking up petitioner's wife and another brother, Ed, Bruce was taken to a Winner hospital where he was treated for an abdominal gunshot wound. Both Bruce's and Fernen's wounds were made by the same .22 rifle. Petitioner was later treated for facial abrasions, a broken nose and two broken ribs.

On the way to the hospital with Bruce, Fred Zemina stopped and called a member of the tribal police force and told him to go investigate the scene. Petitioner said there had been a set-to with Fernen, that Bruce had taken a rifle from Fernen, that Bruce had been shot and that Fernen had gone for another gun in his belt. No other gun was ever found. Petitioner also tried to call his attorney at this time, but was unsuccessful.

Later that night, pursuant to a search warrant, the Sheriff of Todd/Tripp counties searched petitioner's car in the Winner hospital parking lot. The .22 rifle was found on the rear floorboard under some clothes.

Both petitioner and Bruce Zemina were charged with murder, but Bruce has never been brought to trial. He was not rational at the time he was treated for the gunshot wound and continued to act irrationally for several months. Bruce was eventually committed to the Yankton State...

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    ...guilty people contact their attorneys." ’ Commonwealth v. Person, 400 Mass. 136, 508 N.E.2d 88, 91 (1987) (quoting Zemina v. Solem, 438 F. Supp. 455, 466 (D. S.D. 1977), aff'd, 573 F.2d 1027 (8th Cir. 1978) ). " ‘[I]n no situation in a criminal trial ... do we feel the mere act of hiring an......
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