Freeman v. ClassFreeman v. Class
- Reporters:
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- Before:
- Fagg, Lay, Heaney
LAY, Circuit Judge.
Benjamin Franklin Freeman was convicted of grand theft by a jury in state court. He brought a petition for a writ of habeas corpus in state court claiming ineffective assistance of counsel. The petition was denied, and on appeal, the South Dakota Supreme Court found that although counsel was deficient, Freeman was not deprived of a fair trial. Freeman v. Leapley, 519 N.W.2d 615, 619 (S.D. 1994) (three-to-two opinion). Freeman then filed a petition for a writ of habeas corpus under
On February 2, 1991, a 1982 Oldsmobile Firenze was unlawfully taken in Bonesteel, South Dakota. Later that morning, Freeman and
Discussion
In all criminal prosecutions an accused has a right to the effective assistance of competent counsel to ensure that he or she receives a fair trial. Strickland v. Washington, 466 U.S. 668, 689 (1984). A state prisoner‘s claim that counsel‘s assistance was so defective as to require reversal of a conviction has two components. First, the defendant must show that counsel‘s performance is, in light of all the circumstances, outside the range of professionally competent assistance. Second, the defendant must show actual prejudice, i.e., that there existed not only a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt, but that the proceeding was rendered unfair or unreliable. Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).
The state initially argues the district court misapplied the Strickland analysis in each of Freeman‘s claims of ineffective assistance of counsel. Specifically, because of a single citation to State v. Beene, 257 N.W.2d 589, 592 (S.D. 1977), the state urges that rather than applying the “reasonable probability” standard, the district court applied an erroneous “had some effect” standard and therefore must be reversed. A thorough review of the district court‘s opinion shows this argument is without merit. Furthermore, a review of the record as a whole compels the conclusion that Freeman‘s attorney‘s performance was constitutionally deficient, and that such deficiency constituted actual prejudice to Freeman.
Cautionary Instruction
The district court, in a thoughtful and well reasoned opinion, thoroughly analyzed each of Freeman‘s claims and found that five of the seven satisfied the Strickland test. We need only pass on the more egregious claims. In assessing Freeman‘s first claim that his attorney‘s failure to request a cautionary instruction regarding the accomplice testimony was deficient and highly prejudicial, the district court did state, citing Beene, that “[f]ailure to give a cautionary instruction in all probability produced some effect upon the jury verdict.” Freeman v. Class, 911 F. Supp. 402, 406-07 (D.S.D. 1995). Notwithstanding this passing reference, the district court went on to correctly analyze the claim under the proper standard set forth in Strickland and Hill, and found that Freeman‘s trial counsel was “remiss in not requesting a cautionary instruction[,]” that such “[f]ailure . . . was highly prejudicial to the petitioner to the extent that the fundamental fairness of the proceeding and the conviction was undermined[,]” and that had the jury been properly instructed, there was “a strong probability that the result of the trial would have been different.” Freeman, 911 F. Supp. at 407 (our emphasis).
The only direct evidence in the record linking Freeman to the theft of the automobile is the testimony of the accomplice, David Primeaux. There were no eyewitnesses. There were no fingerprints. On the contrary, a convenience store clerk testified that Primeaux came into the store early in the morning looking for a map, and “[h]e told me that he had stolen a car, literally told me that.” J.A. at 206a. She testified that she thought she saw Primeaux drive away, and did not see anyone else in the vehicle. A short while later, both Primeaux and Freeman were found walking down a South Dakota highway approximately one-quarter mile from where the stolen car was subsequently found. Primeaux was carrying a box of shotgun shells that had been taken from the automobile, and a set of the vehicle‘s keys were later found in Freeman‘s pocket.
The evidence at trial revealed that Primeaux was to have the charges against him dismissed if he testified against Freeman. Under South Dakota law, a defendant is entitled to a special cautionary instruction on the credibility of accomplice testimony. See S.D. Pattern Jury Instructions (SDPJI) 1-14-8. Furthermore, South Dakota law provides that a conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence which tends to connect the defendant with the commission of the offense.
The state‘s case hinged on Primeaux‘s testimony. The weight given to his testimony was crucial to the outcome of the case. As found by the South Dakota Supreme Court, there is no reasonable trial strategy for failing to request the cautionary accomplice testimony instruction and corroboration instruction. Freeman, 519 N.W.2d at 617; see Grooms v. State, 320 N.W.2d 149, 152 (S.D. 1982). The court observed: “We cannot envision an advantage which
Failure to make the requests was highly prejudicial to Freeman to the extent that the fundamental fairness of the proceeding and the conviction was undermined. Had the jury been properly instructed, it may well have discredited Primeaux‘s testimony, which was the only direct evidence that linked Freeman to the theft of the car. See Grooms, 320 N.W.2d at 152. Moreover, counsel‘s failure to make such requests deprived Freeman of a jury that would give appropriate analysis to the evidence presented.5 The trial court was correct in concluding that there existed not only a reasonable probability that, absent counsel‘s error, the jury would have had a reasonable doubt respecting Freeman‘s guilt, but that Freeman was denied a fair trial.
Hearsay Evidence
At trial, defense counsel introduced a police statement which contained a transcript of questions asked to David Primeaux. Primeaux was asked: “Who took the car last night?” Primeaux responded, “He did! Ricky Freeman said he steal car . . . .”
The state asserts that introduction of this exhibit was a reasonable trial strategy. It claims that given Primeaux‘s limited mental faculties, defense counsel attempted to attack the credibility of Primeaux‘s testimony at trial and statements given to the State Trooper by showing that Primeaux was incapable of understanding the written statement. Moreover, the state contends that even if counsel was deficient in introducing the exhibit, there was no prejudice.
We reject the state‘s argument, and agree with the district court that defense counsel‘s offering of the report that contained a hearsay statement that Freeman stole the car was not a reasonable trial strategy.7 cf. Freeman, 519 N.W.2d at 618 (“[O]ne must
Post-Miranda Silence
During the trial, on three occasions, the prosecutor elicited testimony from the State Trooper and Deputy Sheriff concerning Freeman‘s exercise of his constitutional right to remain silent after being given his Miranda warning. In addition, the prosecutor himself made reference to Freeman‘s right to remain silent, and alluding to Freeman‘s silence in closing arguments, stated that while individuals have the right to remain silent, Primeaux cooperated and did not exercise that right. Defense counsel did not object, nor move for a mistrial.
The state contends that defense counsel‘s actions were not deficient, and further, that Freeman cannot establish prejudice. Except for an “isolated” reference to Freeman‘s post Miranda silence, the state argues the references and comments in question
A defendant has a constitutional right to remain silent, and under Griffin v. California, 380 U.S. 609, 615 (1965), a prosecutor is prohibited from commenting on the accused‘s post arrest silence. Id.; see United States v. Harris, 956 F.2d 177, 181 (8th Cir.) (“Reference to the silence of an accused usually is impermissible, because it is fundamentally unfair for the government to induce silence through Miranda warnings and then later use this silence against the accused.“), cert. denied, 506 U.S. 827 (1992). While limited exceptions to this rule may exist, see, e.g., Amirault v. Fair, 968 F.2d 1404 (1st Cir.), cert. denied, 506 U.S. 1000 (1992), they are not relevant here.
In this case, defense counsel‘s inaction allowed the jury to equate Freeman‘s silence with guilt. See State v. McBride, 296 N.W.2d 551, 555 (S.D. 1980). There was no reasonable tactical bases not to object to these comments. On the contrary, a motion for a mistrial would have been appropriate and should have been made. A review of the record shows the state‘s argument that the comments and references to Freeman‘s silence were a “fair response” to defense counsel‘s strategy is misplaced. Two of three references elicited by the prosecution were made during the prosecution‘s case-in-chief on direct examination, thus, could not have been in response to any defense tactics. cf. United States v. Tenorio, 69 F.3d 1103, 1107 (11th Cir. 1995) (Edmondson, J,
Finally, the state‘s argument that the prosecutor‘s reference to Freeman‘s post-Miranda silence in his closing argument was meant to bolster Primeaux‘s testimony, not draw an adverse inference as to Freeman‘s guilt is specious. In the context of this case, it was impossible to do one without the other. The message sent by the prosecutor to the jury was clear: Primeaux cooperated with the police by talking with them after his Miranda warning, therefore he must be telling the truth. Freeman, on the other hand, exercised his right to remain silent, therefore he must have something to hide. When a prosecutor, on his own initiative, asks the jury to draw a negative inference from a defendant‘s silence, Griffin holds that the privilege against compulsory self-incrimination is violated. United States v. Robinson, 485 U.S. 25, 32 (1987). Defense counsel‘s actions clearly prejudiced Freeman. McBride, 296 N.W.2d at 555.
Upon appraisal of several of Freeman‘s claims, specifically, defense counsel‘s introduction into evidence of the police report containing hearsay statements, failure to request cautionary instructions to which Freeman was entitled under state law, and failure to object or move for mistrial based on the prosecution‘s improper comments regarding Freeman‘s post-Miranda silence, we find that Freeman was denied effective assistance of counsel and satisfied the tests established by Strickland and Lockhart. Under the circumstances, defense counsel‘s deficient performance was clearly prejudicial to the defendant and rendered the proceedings at trial fundamentally unfair.
The judgment of the district court is AFFIRMED.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
Notes
Freeman, 519 N.W.2d at 617.State‘s arguments merely highlight the problem with counsel‘s failure to object. Whether either statement was hearsay requires an analysis of the hearsay rule and the exceptions thereto. Defense counsel did not object to the statements and consequently the trial court was never called upon to rule on the admissibility of the statements. Even if the statements were admissible as exceptions to the hearsay rule, defense counsel should have asked that the jury be instructed that the statements were being offered for that limited purpose.
Tr. at 265.[MRS LAPRATH]: Why didn‘t you ask Mr. Primeaux if he was driving that car? He is [sic] talking to you.
MR. JACOBSEN: Your Honor, I would object. This witness has testified that he previously gave Mr. Freeman the opportunity to visit with him pursuant to question number six of the Mirranda [sic] Warning and that Mr. Freeman refused.
THE COURT: That‘s not what she‘s asking. She‘s asking why they didn‘t ask Mr. Primeaux, isn‘t that right?
MRS. LAPRATH: Yes.
MR. JACOBSEN: I apologize.
THE COURT: Overruled, answer the question.