Honomichl v. Leapley

transcript of the arbitration contains no

proceeding. found that “Golden circuit court totally failed therefore to meet has

Hills agree. no proof.” We There is

burden of presented evidence

transcript —no any claim outside considered

arbitrators any Nor is there evi- jurisdiction.

their al- panel any considered claims

dence the through the settlement

ready satisfied

agreement. repeatedly have stated the We is on the to show proof

burden of claimant Here, through record. we have

error arguments and allegations devoid

mere

any specific facts shown the record. firmly record must appellate

“The establish Armstrong, of error.” existence 269; Pap,

N.W.2d at Crook 303 N.W.2d (S.D.1981). Golden Hills has

failed to show error was committed

calculating the arbitration award. holding participation

We reverse objec- Hills was a waiver of its Golden jurisdiction panel

tion to of the arbitration

and all other affirm on issues.

MILLER, C.J., HENDERSON, AMUNDSON, JJ.,

SABERS concur. HONOMICHL,

Michael Petitioner Appellant, LEAPLEY,

Walter Warden of the South Penitentiary, Appellee.

Dakota State

No. 17762.

Supreme Court of South Dakota.

Argued Sept. 1992. April

Decided Schlimgen Gerry, A. of Stuart and

John Falls, petitioner appellant. Sioux Gen., Barnett, Atty. Meyer, Mark Ann C. Pierre, Atty. Gen., appellee. Asst. MILLER, Chief Justice.

Michael Honomichl was convicted of first-degree manslaughter arising out of Randy murder Caldwell Honom- ichl and court af- James Weddell. This ap- firmed Honomichl’s conviction on direct peal.1 sought Honomichl then habeas cor- pus hearing, relief. After an evidentiary Judge Tapken filed find- Circuit extensive ings of fact and conclusions of law petition. denied Honomichl’s Honomichl appeals. We affirm. “scope corpus

Our of review habeas limited, remedy is proceedings is since the upon in the collateral nature of a attack Solem, judgment.” Goodroad (S.D.1987). N.W.2d We use habe cases, corpus “in as to review certain incarcerated defendant has whether an deprived of basic constitutional been 144. rights.” Id. at I ISSUE EX- IMPROPERLY WHETHER STATE ERCISED ITS PEREMPTORY CHAL- HUAPAPI, ELLA LENGE TO REMOVE INDIAN, FROM HO- AN AMERICAN PANEL THEREBY NOMICHL’S JURY EQUAL THE PROTEC- HIM DENYING OF TION LAW. 5, 1986, his co- Honomichl and

On March Weston, defendants, and Enos Weddell second-degree murder indicted for were manslaughter. prose- first-degree Conklin, the Mix Gary was Charles cutor Attorney. Honomichl and County State’s represented his two co-defendants were Ho- A. Haar was separate counsel. James Lee counsel.2 court-appointed nomichl’s attorney for Tappe was the co-defendant Cotton, co- attorney for Weddell. Kenneth defendant, Weddell, eighty Honomichl, (S.D. was sentenced to 410 N.W.2d 544 1. State years. 1987). opinion, In that Honomichl’s sentence incorrectly eighty years in the noted as was Penitentiary. for this ha- Dakota Honomichl has different counsel South State sixty years. beas co- action. was sentenced Honomichl’s jury, of his race from the he had Weston, coun- members lead defense defendant dire, prove systematic exclusion of members although all defense during sel voir panel. his race from the venire Swain attorneys participated.3 Alabama, dire, Ella after day of voir the first On (1965). However, on Honom Indian, exam- American Huapapi, an dire, 30, day April of voir ichl’s second peremptory ined, one of its exercised State 1986, proof changed when the method of McBride, Joseph Huapapi. challenges on Supreme Court said that the United States Indian, examined was an American prima a defendant could now “establish cause, objection, when for without struck purposeful facie case of discrimination all of the defen- that he knew he indicated solely petit jury of the on evi selection to serve on find it difficult dants and would concerning exercise dence impartial. fair and jury and to be challenges peremptory at the defen of trial, day day of the second On Batson, 96, 476 U.S. at 106 dant’s trial.” 79, Kentucky, 476 U.S. v. which Batson 87; 1723, at 90 L.Ed.2d at v. S.Ct. State 1712, (1986), 106 S.Ct. 90 821, (S.D.1987). Farmer, 407 N.W.2d 823 Indian, decided, Hare, an American Bertha cause, and struck for with- was examined applies to all The rule “Batson that she objection, when she indicated out yet final when it was decided.” cases hearing problem and had known had a Delo, 243, Randolph 952 F.2d 245 n. they boys. defendants since were small — U.S. -, denied, prosecutor examined Ben Ca- After the 1967, (1992) (cit 112 S.Ct. 118 L.Ed.2d 568 dotte, Indian, attempted American 314, ing Kentucky, 479 U.S. Griffith for cause as Cadotte had a remove Cadotte 708, 709, 649, 316, 107 93 L.Ed.2d S.Ct. “disorderly” pending in Charles Mix Coun- (1987)). judgment A is final when “a ty prosecutor the time. When the at rendered, the of conviction has been avail unsuccessful, peremptory he exercised a exhausted, time ability appeal and the challenge to remove Cadotte. Honomichl petition [expired].” for a for certiorari peremptory challenge concedes that 321 n. at Griffith, 479 U.S. at S.Ct. discriminatory intent. was not done with a 712 n. 93 L.Ed.2d at 657 n. 6. “Batson peremptory also used chal- The retroactively applied should not on col be lenges jurors. on non-Indian It is the re- became lateral review of convictions that Huapapi jury panel by from the moval of was announced.” final before [Batson ] through peremptory State the use of its 255, 258, Hardy, 478 U.S. Allen v. challenge gives which rise to Honomichl’s 2878, 2879-80, 199, 204 challenge. Batson progress Honomichl’s trial was in long It has been established that decided, Batson was so a Batson when equal protection a defendant is denied inquiry required in this collateral review purpose of his race are law when members of Honomichl’s conviction. ly jury. from the excluded Strauder v. prima pur- facie case of To establish a Virginia, 100 U.S. 25 L.Ed. 664 West discrimination, poseful (1880). Further, Equal Protection juror is violated if even one Clause the defendant first must show that he is struck for a race based reason. United cognizable group of a racial a member (8th Battle, 836 F.2d States prosecutor has and that exercised Cir.1987). peremptory challenges to remove from dire, of the defendant's the venire members day first of Honomichl's voir On the Second, 29, 1986, race. the defendant is entitled April in order for Honomichl to fact, rely there can equal he had denied on the as which establish that been protection dispute, peremptory no chal- of law due to exclusion of be jury. granted 3. The trial court Weston's mitted to the motion judgment acquittal case was sub- Honomichl, practice by establishing lenges selection constitute case, permits prima ‘those to discriminate who facie established rebuttable Finally, purposeful are of a mind to discriminate.’ presumption discrimination. facts Burdine, 254, 101 must show that these the defendant S.Ct. at relevant circumstances other 67 L.Ed.2d at 216. State can rebut raise an inference by articulating presumption “clear practice used that to exclude the venire- specific” reasonably explana race neutral petit men from the on account using peremptory challenge. tion their race. Batson, 98 n. at Batson, 1724 n. L.Ed.2d at n. 20 (citations omitted). (citing 87-88 218); requirements Farmer, facie Supreme recently relaxed when the explanation were N.W.2d at 823. This not does object may held defendant Court a criminal justifying have to “rise to the level exercise jurors of effected to race-based exclusions challenge Batson, cause.” 476 of a for challenges or through peremptory whether 97, 1723, 106 90 U.S. at S.Ct. at juror and the excluded defendant 88; Farmer, 407 at 823. N.W.2d Ohio, 499 race. Powers v. share same in country It is settled law this 1364, U.S. -, 411 111 113 L.Ed.2d discriminatory intent is inherent “[u]nless (1991). The of the defendant and the race prosecutor’s explanation, in the reason jurors challenged are peremptorily race of be race neutral.” Her offered will deemed for the trial court now circumstances York, U.S. -, -, v. New 500 nandez determining defendant consider whether 1859, 1866, 114 L.Ed.2d 111 S.Ct. per raised inference that State used striking “While it is true that emptory challenges for race-based reasons. [minority] for racial reasons venireperson “The persuading Id. ultimate burden of Constitution, always of the it is is violative [prosecutor] the trier of that the inten fact all peremptory not true that strikes of [mi against tionally discriminated [Honomichl] venirepersons are for racial rea nority] remains all times with [Honomichl].” Lewis, 892 F.2d sons.” United States Dept. Community Texas Affairs (8th Cir.1989). 248, 253, 256, 101 S.Ct. 450 U.S. 1089, 1093, 1095, 207, 215, 217 67 L.Ed.2d the habeas court was Honomichl asserts (1981);4 Farmer, 407 at 823. N.W.2d clearly erroneous when it determined State purposeful presumption of dis are co-defendants rebutted finding “A dis Their Cauca- crimination. of intentional American Indians. victim was fact ju- finding is a entitled potential sian. Two American Indian crimination reviewing appropriate deference challenged rors were cause and Batson, at 98 n. prosecutor peremptorily challenged two court.” 21; n. n. at 1724 90 L.Ed.2d others. The habeas court found it relevant Farmer, finding “A is panel jurors at 823. that the final twelve N.W.2d although ‘clearly there and one contained no American erroneous’ when alternate it, Indians, removing support reviewing court although the reasons evidence left with defi panel the entire most of them from the were evidence has firm that a mistake nite and conviction apparent. The habeas court found City raised an of dis- committed.” Anderson Honomichl had inference been 564, 573, City, 105 S.Ct. had established his Bessemer crimination and (1985). “In assume, 1504, 1511, deciding, 84 L.Ed.2d facie case. without We race-neutrality of evaluating the an attor- habeas was correct. Antwine, (Mo.1987), Although de 743 S.W.2d Burdine discussed discrimination of nied, gender-based 100 L.Ed.2d minorities in vi discrimination Jones, VII, (1988); 938 F.2d be read in Jones v. olation Title must Wilson, Batson, (8th Cir.1991); conjunction particularly v. Jimmie in view of United States with Cir.1989). (8th the fact cites See State v. 884 F.2d that Batson Burdine. ‘prosecutor ... must articu- must determine ment that ney’s explanation, a court explanation neutral related to the whether, assuming proffered reasons late a ” true, at 87 particular case to be tried.’ Id. challenges are peremptory for the Batson, (citing 476 U.S. at Equal Protection challenges violate the 88). Hernandez, Such a situation as a matter of law.” Clause the case -, 114 does not describe 111 S.Ct. at court. L.Ed.2d at 405-06. decided before Harrison’s or this court to more than a Batson was

Honomichl cites case was final. Harrison’s discussing examples of reason- Honomichl’s dozen cases eight perempto- six of his reasons for State’s used ably clear race neutral Conklin, ries; peremptory challenges on mi- all were used Blacks. exercise of However, prosecutor, Indi- venirepersons. every Honomichl’s exercised on nority Harrison defendants had first ans as well as on non-Indians. one of those cases the trial, regardless objected AT TRIAL to the ex- raised the issue at peremptory challenges. Honom- trial conducted under the ercise of whether the evidentiary guidelines.5 Honomichl ichl did not. Harrison’s Batson or Batson Swain Only hearing years held several after trial objection raised no at his trial. one of authorities, prosecu- infra, discussed as was Honomichl’s. Harrison’s Honomichl’s hearing, asked at the as was Ho- involves collateral review of a conviction. tor was nomichl’s, explain peremp- All the others involve issues to the use of his appeal. every tory challenges. prosecutor In direct Harrison’s addressed on direct to, appeal prosecutors gave strong” reasons “which were not case the were asked did, strength his The offer reasons at trial for the exer- five of six of exercises. questioned peremptory using peremptory chal- reason for a cise of the of Conklin’s Conklin, beyond ques- lenges. prosecutor, Honomichl’s on the Indian Ben Cadotte is offer, prosecutor could not artic- was not asked to and did not offer at tion. Harrison’s trial, why per- reasons for the exercise of his ulate a reason he would have exer- though emptory challenges. particular cised in one instance he thought pro- due to the could have been only by The case cited Honomichl habeas spective juror’s age. (3rd Cir.), Ryan, is Harrison v. 909 F.2d 84 did articulate a reason for exer- denied sub nom. Castille Harri Conklin son, cising Huapapi. During pro- the S.Ct. on habeas ceeding, prior noted that in Conklin testified that to trial Harrison light background pro- of the facts that “defense counsel he researched the of each timely objected peremptory spective juror. to use of He met with the sheriff the result, challenges, peremptory deputies. the number of chal and his As a he entered lenges against question along- exercised Blacks was so research' notes and marks great, given the race neutral reasons several names on the list. Conk- side [and] striking jury venirepersons put question by other black lin testified that he mark weak, 87-88, prose Huapapi’s were so the Ella name he was not ...” id. because inability impartial to recall a race neutral a fair and cutor’s sure she would be striking juror juror; “gut feeling” reason for the sixth did not that he had a about require- sufficiently “satisfy the Batson her.6 cases, objection 5. In one of the cited it is unclear whether There the defendant raised an at trial trial, though prosecution’s peremptory objection light was made at in to the exercise of its challenges. prosecutor expressed explained The then of the fact that the there "gut feeling” particular challenge, he had a about a individ- his use of the it is reasonable to accepted explanation objections ual. The trial court assume that were raised which yet brought explanation. because Batson had not been decided. The forth the day next asked, Batson was decided and the trial court impaneling jury, prose-

6. Honomichl cites this court to United if the States Horsley, anything 864 F.2d 1543 which cutor had to add. The de- prosecutor’s "gut feeling." discusses This clined to offer additional reasons. The trial peculiar appeal. decision arose from a decided direct then that no facie case of -, 1868, 114 proceeding, it was S.Ct. 408- During the habeas of 09. Huapapi, relative revealed John prosecuted Huapapi, recently Ella had been Equal Protection Clause forbids “[T]he capacity as the Charles his Conklin challenge potential jurors prosecutor to Attorney. Conklin tes- County Mix State’s account of their on race....” SOLELY at the time he exercised tified that Batson, not Huapapi, on Ella did peremptory added). (emphasis at 83 We fact; rather, it was think he realized peremptory exercise of the find Conklin’s her name which mark beside question solely not of her Huapapi account him strike her. habeas caused to race. We reiterate that Conklin’s burden opinion

judge stated in his memorandum produce “only here admissible evi [to] which would allow trier fact dence may have though Mr. Conklin not even [challenge] rationally to conclude that the Huapapi significance realized discriminating motivated had animus_ been selection, there at the time of name require to intro [Conklin] [To] memory spark in his apparently a which, in the duce evidence absence encountering the upon that was struck persuade pretext, evidence of would sufficient to Huapapi name and this was action lawful trier fact that ... impartiality of question him to cause properly exceeds what can be demand ... Huapapi. Ms. satisfy production.” a burden of ed 257, 101 original). (emphasis that the The habeas court’s determination ‘Huapapi’ raised The fact that the name explanation neutral prosecutor proffered a Mr. enough of concern cause Conklin not leave us “with definite does (“?”) question place mark beside that a mistake has been firm conviction investigation has did some name after he City, 470 U.S. at Bessemer committed.” fact that Ms. no relation at all 1511, 573, at 105 S.Ct. The Huapapi is a Native American. to Mr. name that caused concern Conklin Cotton, Interestingly, we note that lead easily belonged to a just as have could dire, during defense voir counsel for the group any other ethnic as Caucasian proceeding that dur- testified the habeas American. The mere did to a Native dire examination ing the of his voir course belonged that the coincidence name talking spent racial lot of time was about a remaining only American Native and was white prejudice, since victim panel is insufficient to conclude jury Indians. were American the defendants on a dis- that the exclusion was based get going to a fair trial he was Cotton felt criminatory purpose. panel passed he jury when from may himself “If note that Cotton the trial court believes cause. We Huapapi ordinarily peremptory on as explanation, reviewing a court have exercised a as ‘great he had doubts to whether give credibility finding he testified should ” panel Huapapi on the because Ea leave States v. Roan would deference.’ United (8th Cir.), to several of the witnesses 441 de she was related gle, F.2d cert. pre- involved in the feud which nied, S.Ct. who were 490 U.S. course, (1989); Hernandez, death. Of cipitated the victim’s 500 U.S. defendant on by decision to allow the the defendant. That court’s discrimination had been made appeals for a determina- an effort to The court remanded offer further evidence in remand to case, a forbidding had even made tion of whether the defendant prima facie while establish his remand, however, prima case. facie Batson On opportunity equal to offer offer the nothing determined the could prima explanation to rebut facie further “gut feeling” unsupported more than established, case, little sense and does makes case, prima facie in the event one to rebut the justice. interests of In even less to further the established, though, deter- even the court event, pre- case we are instant feeling” standing "gut alone mined that "gut feeling” standing alone. sented with a facie Batson case. not sufficient to rebut did not have to resolve his doubts Whether he was denied effective Cotton assistance against Huapapi, first. as State exercised of counsel when Batson issue was not by appeal raised at trial or on direct and explana Once State offers a neutral strategy the defense used at trial and tion, inquiry proceeds to a new “the factual regarding his counsel’s trial decisions mo- Burdine, specificity.” level objections. tions 255, 101 67 L.Ed.2d at 216. carefully proffered We have considered Honom Honomichl must show the rea arguments assignments ichl’s of error unworthy sons are of credence the court they pretextual. in that are 450 and find them to be without merit. State (S.D. Esslinger, v. 357 N.W.2d 217; Wilson, 1984). United States Jimmie (8th Cir.1989); F.2d United Affirmed. Wilson, George 816 F.2d

States denied, AMUNDSON, JJ., WUEST concur. (1989). 107 L.Ed.2d 57 SABERS, JJ., HENDERSON and reporter’s The court notes from the dissent. day first and much of the second of voir inadvertently prior were dire lost to the HENDERSON, (dissenting). Justice result, hearing. only partial habeas As a upon Based the decision of United States transcript preparation could be made in Battle, (8th 836 F.2d Cir. evidentiary hearing. the habeas Honom- 1987), Further, additionally I dissent. I ichl complete asserts that without a tran upon Kentucky, dissent based Batson v. script proffered he is unable to counter the 79, 96-97, 1712, 1723, State, explanation by neutral denying thus rights. him his constitutional A Caucasian was the victim. concedes, although explain he tries to was all Caucasian. Honomichl was an away, during concession the habeas American Indian. Not one Indian was on proceeding full cross-examination of the tri jury. April, An Federal census lawyers al reconstructed the events of 1,992 reflects there were American Indians selection and the examination of the four County, in Charles Mix venue of the trial. potential jurors. American Indian The in judicial This author takes notice thereof.* advertent loss of the voir dire notes has not See, USD Business Research Bureau’s any resulted in harm rights. to Honomichl’s Transcription Data State Center’s of Sum We note that complete absent the tran mary Tape File 2. With one thousand nine script, Honomichl was able to a establish ninety-two hundred and Indians this prima facie Batson case to the satisfaction “ county, apparent it legal system is that the of the habeas court. ‘A technically mere could have found at least one Indian to sit incomplete record, involving no substantial jury. Having evidence, on the heard the omissions, significant will not be suffi the habeas court found that Honomichl es cient’ to order a new trial.” State v. Du “prima tablished a facie” case of discrimi pris, (S.D.1985). 373 N.W.2d proof nation. This shifted the the to State habeas court’s determination that Honom presumption. to says rebut State it ichl has no Batson claim is affirmed. did, says Honomichl it did not. following Honomichl also raises the is- State relies on: 1) sues: he right Whether was denied his 1) question-mark name; by juror’s a the to a fair trial the when trial court failed to (no value); probative give accomplice jury instruction to the 2) and when the trial “gut court considered certain feeling” prosecutor Gary a prior during 2) sentencing; (a convictions and Conklin had juror; about the “feel- * may any stage Judicial notice alleged be taken at of the the focus is racial discrimination. See proceeding. Obviously, also, SDCL 19-10-6. SDCL 19-10-2. appeal particularly would include and where (a challenge what?) feeling antipa- peremptory Haupa- of cise a on Ella

ing” of pi. Conklin thy?); answered: 3) jurors given by Sheriff’s Of- I list I discussion with had a of the Conklin’s (but panel the there is began

fice about Clerk of Courts trial and, record on what the discussion my practice no as was with all was); trials, and I went over the list with the sher- people iff’s office. Some of I 4) these had Huapapi that the name struck a chord mind, during (what my duty of dealt with the course of in Conklin’s kind chord?). as made attorney state’s and I notes on persons as that list to various the list not, by argu- did the above four State question and I recall as to her I had a ments, proof raise its level of to a “clear guess mark her I beside name. because specific” expla- reasonably race-neutral type of the nature of this I case decid- challenge, peremptory nation for its as re- I juror ed didn’t want a to have by These four reasons are quired Batson. panel question with a mark that I wasn’t weak, explanation, so to establish a neutral sure of. So I struck her name off. facie case is not rebutted. Jones, (8th Conklin further that he In Jones v. 938 F.2d revealed recalled Cir.1991), prosecuting Haupapi a for a was held that a John DWI. specific” He he give reasonably must a “clear and indicated that believes that John was However, “legitimate to Ella. explanation of his reasons” for somehow related he in- challenges.” “exercising Faced dicated that he did not with know that fact trial, overcoming presumption, the the time State failed and “didn’t make produce right (Emphasis away.” to evidence which clear and the connection mine). reasonably supplied specific. Honomichl,

Coupled haunting On cross-examination Mr. with the above is the complication majority testimony Conklin question and that a Conklin’s was clarified. prosecution if reporter’s feeling I I gut than a didn’t think Other when there are members of the involved jury panel.” her the wanted on minority jury. In the race seated the us, “gut feeling” expla- This is not a neutral Dakota case before the State of South is, in nation; question mark. It Indian from nor is a struck the last American the held, reality, at by Finding explanation Trial no all. Without jury panel. 10(A), meaningful, how prima explanation of does Number that a facie case which it this Court decide there was racial non- discrimination was established and can- questioning impar- object to racial motivation in the be denied that State did not tiality finding Haupapi? of nor did file Notice of Ella finding. Review to There is no evidence in this record support spark.” Instead testimony Let us examine Conklin’s “sub-conscious predi- dealing (upon which to hearing. Conklin with facts Prosecutor fact), court was con- why finding asked the State he saw fit to cate a trial exer- SABERS, (dissenting). of the Justice cerning the sub-conscious itself with prosecutor’s mind. prima 1. Honomichl has established a case, pre which raises a' rebuttable facie “gut If and conclusions that assertions sumption purposeful discrimination. in feelings” “spark” the sub-con- and a 254, 1094, 101 S.Ct. at U.S. “memory” can rebut Honomichl’s scious requisite 67 L.Ed.2d at 216. When “the case, protection prima equal “the facie made, showing has been the burden shifts illusory require- clause a vain and would be to articulate a race-neu 98, 106 at 1724. ment.” Batson at explanation striking jurors in tral controlling law when Batson was the Hernandez, at -, question.” 500 U.S. fact, In this case tried in 1986. Bat- 1866, (citing at 405 day on the second son was handed down Batson, 97-98, 476 U.S. at 106 S.Ct. at distinguishing aspects- the trial. One of 1723-24, 88-89.) 90 L.Ed.2d reporter’s case is the court of this that presump 2. The state must rebut this notes on voir dire examination were lost. Batson, by articulating tion under “ ” discrimination, sug as Overt evidence of reasonably specific’ ‘clear and race neu “ gested by by the the new law established explanation ‘legitimate tral reasons’ majority opinion in Hernandez v. New exercising challenges.” These rea York, -, particular sons must be “related to the (1991), is, thus, impossible. Batson, tried.” be 476 U.S. at and n. so, trapped, unfairly be Honomichl is and n. way comparing cause he has no 88-89, (citation omitted). and n. 20 which at the was testified Conklin prosecutor’s justification must iden “[T]he corpus hearing habeas relevant to the testi ‘legitimate tify reasons’ that are ‘related to mony at the voir dire. Another sad com particular case to be tried’ and suffi mentary on this case is that trial counsel ciently persuasive to ‘rebut a defendant’s ” Hernandez, corpus hearing prima at the facie testified habeas case.’ at -, case, S.Ct. at L.Ed.2d at had he been aware of the (Stevens, J., dissenting) Batson, (citing would have made a motion for the State to 476 U.S. at and n. 106 S.Ct. at explanation make a neutral after the two 20.) n. and n. A Native Americans were excluded. trial supposed to be fair. As we examine the circumstances, Under these facts and discriminatory cumulative affect of the im test, and the Batson the state loses. It pact, it overwhelms one with the idea failed to articulate either a clear or reason- inefficiency Honomichl was treated with ably specific explanation. race neutral and discrimination. Hernandez followed prosecutor may not “rebut the defen- merely by denying Batson test which states that dant’s case that he had after discriminatory affirming motive or showing, defendant makes a facie good making in faith individual selections.” the burden shifts to the to artic Batson, 106 S.Ct. at 1723- explanation ulate a race-neutral for strik (citation omitted). ing Hernandez, jurors question. L.Ed.2d.at at -, S.Ct. at 1866. In Hernan 3. Under the more recent United States' dez, prosecutor explained that his strik Supreme Court case of Hernandez New ing Hispanic jurors upon of the was based York, however, “the reason offered will be jurors being bilingual, those and he be “[ujnless deemed race neutral” a discrimi they ignore interpret lieved that would natory intent is inherent Thus, er. prosecutor the articulated a explanation.” at -, 500 111 U.S. S.Ct. at explanation. Instanter, race-neutral the 1866, 114L.Ed.2d at 406. But see Hernan explanation except offered no dez, at -, 500 U.S. 111 114 S.Ct. at “gut feeling.” The has (Stevens, J., failed to dissenting). L.Ed.2d at 417 meet the burden as established high (“[A] justification the that is frivolous or ille est in gitimate this land. should not to suffice rebut the

645 omitted)). retroactively (citations applied to cases on direct be Id. case.” prima facie review, generally change applied the test and but should not be to me to appears This in urged retroactively As Stevens to cases collateral review.” the burden. Justice 304-11, (citing Teague, dissent, Id. 1358 Hernandez his 489 U.S. 1072-75). S.Ct. at The same conclu en- focusing in the ... errs Court 109 [t]he through analysis sion would be reached subjective state of on the inquiry tire Leapley, v. Cowell required by 458 N.W.2d prosecutor. mind of the Solem, McCafferty See v. (S.D.1990). 514 (S.D.1989) a 449 N.W.2d 590 where 3-2 judicially held created eviden- majority that the fact that overlooks ... Court tiary expert rule which would not allow charac- “discriminatory purpose” which opinion give regarding credi witnesses Equal Protection terizes violations did bility of sexual abuse victim not child sometimes be established Clause can retrospectively. apply is consistent with objective evidence that his belief that honest a decisionmaker’s Honomichl’s conviction was affirmed 5. benign. entirely motive was 1987. State v. July 29, by this court on

Honomichl, (S.D.1987). N.W.2d 410 544 in Supreme Court rules effect at Under expla- prosecutor’s that By requiring time, days had to file sixty additional, direct evi- provide nation itself certiorari. See Sup.Ct.R. 20.1 petition a motive, discriminatory the Court Walton, dence of (1980); 916 F.2d at 1357-58. Ho the added imposed has the defendant petition, his did file a con nomichl not requirement generate that he evidence September final on 1987 viction became intent subjective actual filing petition for the time for cer when to discriminate. Neither nor our affirming judgement from tiorari holdings demand equal protection other Collins, Graham expired. conviction — heightened quantum proof. such a U.S. -, -, 113 S.Ct. omitted). (1993) (citation at -, Hernandez, at L.Ed.2d 111 S.Ct. Walton, F.2d at 1357-58. Her J., (Stevens, See L.Ed.2d at 417-18 May 28, 1991. There nandez was decided dissenting). fore, final Honomiehl’s conviction became “If change It the result. also seems Hernandez was decided. before no matter how insubstan- explanation, great disparate tial and no matter how new rule when announces a 6. “[A] impact, prima facie inference could rebut a imposes new ground or it breaks new provided only of discrimination the Federal on the States or obligation explanation facially itself not discrimi- Government,” “if the result was natory, Equal Protection Clause would existing at the time by precedent dictated requirement.” illusory but a vain be final.” conviction became the defendant’s (citation omitted). Id. Teague, omitted) (citations (em- Teague Supreme held 4.The Court original). phasis Lane, U.S. dispute that a (1989) that, can be no excep there with two While L.Ed.2d ex- rule tions, announces new rules criminal decision “new constitutional decision, “it is prior pressly overrules procedure applicable will not to those be whether ... to determine final more difficult cases have become which a decision new rule when Teague, announce a are announced.” we new rules prior our reasoning extends 109 S.Ct. at leading purpose of Caspari, also cases.” Because See Walton — denied, review is federal habeas “ensur[e] F.2d 1352 pro- criminal U.S. -, state courts conduct 113 L.Ed.2d 268 ceedings the Constitu- in accordance with exceptions, two ‘new rules’ “[W]ith interpreted at the time procedure criminal tion as th[ose] of constitutional should held that proceedings,” we have “[t]he principle rule’ validates reason- ‘new ... R.S.B., Alleged In the Matter of

able, good-faith interpretations of exist- Delinquent Child. ing precedents made state courts.” No. 17885. principle good- This adheres even those interpretations faith “are shown to be Supreme Court South Dakota. Thus, contrary to later decisions.” un- Considered Briefs Jan. 1993. jurists hearing petition- less reasonable er’s claim at the time his conviction be- April Decided 1993. compelled by came final have felt “would favor, existing precedent” to rule in his doing so

we are barred from now. —

Graham, at -, 897-98, (citations 122 L.Ed.2d at 269-70

omitted). agree I do not that the Hernandez actually

test is “settled law this coun

try” majority. as claimed See Her

nandez, at -, 111 S.Ct. at (Stevens, J.,

114 L.Ed.2d at 416 dissenting).

(“[T]he Court ... errs when it concludes challenge

that a defendant’s Batson fails

whenever the advances a non-

pretextual justification facially that is not Id.) Rather,

discriminatory.” it seems to

have announced a new rule and overruled saying by shifting

Batson without even so prove burden to the defendant to that a

discriminatory intent is inherent in the

prosecutor’s explanation.

Under the facts and circumstances of case, no discriminatory intent is inher-

ent in this explanation. If applied

Hernandez is retroactively, the rea- offered, reason,

son poor even if a “will be

deemed race neutral.” This was not the by Batson,

result dictated which was the

existing precedent at the time Honomichl’s Therefore,

conviction became final. Her- rule,

nandez is a new which should not be

applied to this case on collateral review. Having found inappli- that Hernandez is Titze, Falls, Drake A. appel- Sioux cable, applies and the state has lant. presumption failed to rebut the purpose- ful discrimination which Honomichl estab- Barnett, Gen., Atty. Mark Wade A. Hub- Therefore, lished. I dissent. I would re- bard, Gen., Atty. Pierre, Asst. appellee. verse and remand for a new trial.

HENDERSON, Justice.

R.S.B., juvenile, appeals an order find- ing him guilty degree burglary, third declaring him delinquent, entering dire notes lost. was asked John Hau- voir were his develop papi by Conklin entered into reason for was unable using challenge potential. peremptory its full on Mrs. He did not have ques- phase “No. But the transcript probe Haupapi. into the voir dire He stated: then asked trial. tion mark did.” Conklin was question mark reflected. directly what the In Hughes, United States v. 880 F.2d position he then reiterated his Conklin appel- the federal juror kind of she would was not sure what striking single late court held that the make, put question mark her so juror Equal for racial reasons violates the issue, pursued name. Honomichl Clause, applies if Protection and this there again asked him there definite striking were valid reasons other taking Haupapi reason Mrs. off (here, jurors McBride and Hare and Ca- reply Mr. was: “No. stand. Conklin’s dotte); applicable this rule even

Case Details

Case Name: Honomichl v. Leapley

Court Name: South Dakota Supreme Court

Date Published: Apr 7, 1993

Citation: 498 N.W.2d 636

Docket Number: 17762

Court Abbreviation: S.D.