Lead Opinion
[¶ 1.] Theodore New appeals the denial of his application for a writ of habeas corpus based on ineffective assistance of counsel. New asserts that various tactics employed by his trial attorney resulted in deficient representation. The circuit court found otherwise and we affirm.
[¶2.] In the early morning of April 8, 1993, John Mousseaux was brutally beaten to death with a tire iron and a hammer on a rural Meade County road. Larry Black Bear, Augustine White Horse and New were all present at the time. New later denied any involvement. Black Bear and White Horse were arrested after they returned to South Dakota following an attempt to evade authorities. Black Bear confessed to his part in Mousseaux’s death and pleaded guilty to first-degree manslaughter. While in the Meade County Jail, Black Bear and White Horse devised a plan to “get White Horse off’ and to “frame” New for the death of Mousseaux in retaliation for New’s cooperation with the authoritiеs in their investigation of Mousseaux’s death. Their scheme was not uncovered until after White Horse’s murder trial.
[¶ 3.] New was charged with first and second-degree murder, first-degree manslaughter, and kidnapping. After a jury trial, at which New was represented by attorney Russell Molstad, New was convicted of second-degree murder under SDCL 22-16-7. New appealed his conviction and we affirmed. See State v. New,
[¶ 4.] The circuit court denied New’s application for writ of habeas corpus. Also denied were his requests for reconsideration and certificate of probable cause. We granted a probable cause certificate and this appeal followed. He contends he was denied effective assistance of counsel because his trial attorney (1) “opened the door” for and did not properly object to evidence of White Horse’s acquittal; (2) failed to request an instruction explaining the significance of White Horse’s acquittal; (3) disregarded evidence that White Horse had recently beaten another person to death; (4) disregarded impeachment evidence against Black Bear; (5) failed to object to admission of the guilty pleas of the two codefendants; and (6) failed to request a cautionary instruction on the disposition of the codefendants’ cases. Lastly, New asserts that if these errors did not individually prejudice his case, their cumulative effect constituted ineffective assistance of counsel.
Standard of Review
[¶ 5.] Review of habeas corpus proceedings is limited because it is a collateral attack on a final judgment. Lien v. Class,
Habeas corpus can be used only to review (1) whether the court has jurisdiction of the crime and the person of the*572 defendant; (2) whether the sentence was authorized by law; and (3) in certain cases whether an incarcerated defendant has been deprived of basic constitutional rights.
Flute v. Class,
[¶ 6.] Also, when examining an ineffective assistance of counsel claim, we use the following standard of review:
Whether a defendant has received ineffective assistance of counsel presents a mixed question of law and fact. Lykken v. Class,1997 SD 29 ,561 N.W.2d 302 . In the absence of a clearly erroneous determination, we defer to the habeаs court’s findings of fact regarding what counsel did or did not do, but we may substitute our own judgment “as to whether defense counsel’s actions or inaction’s constituted ineffective assistance of counsel.” Lykken,1997 SD 29 at ¶ 6,561 N.W.2d at 304-05 (quoting Aliberti v. Solem,428 N.W.2d 638 , 640 (S.D.1988)).
Lien,
Analysis and Decision
[¶ 7.] South Dakota adheres to the test for ineffective assistance of counsel announced in Strickland. See Jones v. State,
A convicted defendant’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 pеrformance 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, the defendant must show 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. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.
1. Acquittal of Codefendant—Open-ing the Door
[f 8.] New argues that Molstad first failed to properly object to the admission of evidence of White Horse’s acquittal and then “opened the door” to allow it in. He asserts that Molstad correctly moved to exclude this evidence, but his reasons for seeking exclusion were flawed and un-researched. Molstad’s argument was that evidence of White Horse’s acquittal could bolster his credibility with the jury and unduly prejudice New. Molstad did not cite authority to the triаl court to support the motion. New argues that this was ineffective assistance of counsel because “any reasonably competent defense attorney would have searched for authority to buttress his position on this crucial issue.” Had Molstad completed even minimal research, claims New, he would have discovered precedent stating that an acquittal of a codefendant or an accessory is inadmissible hearsay pursuant to SDCL 19-16-4.
[¶ 9.] We must gauge whether, under the Strickland standard, Molstad’s representation on this point was deficient. Scrutinizing the situation facing Molstad at the time of trial, we cannot say his representation fell outside reasonable professional competence. Molstad moved to exclude evidence of the acquittal. The court granted the motion, but advised: “If it comes up on cross-examination, then, of course, it’s wide open.” On the State’s motion for reconsideration, the trial court abided by its original ruling, though it was unsure whether the evidence might somehоw later become admissible. While Mol-stad may not have advanced every possible objection to admitting the evidence, the reasons he gave the court, undue prejudice and improper bolstering of White Horse’s credibility, were legally correct. See SDCL 19-12-3 (Rule 403).
[¶ 10.] In any event, the evidence of White Horse’s acquittal was admitted, not due to failure to raise proper legal grounds for an objection, but because the trial court ruled Molstad broached the issue during his opening statement. See New,
[¶ 11.] In certain instances, this Court has found an attorney’s performance deficient. In Jones, trial counsel, outside the defendant’s presence, was warned by the trial judge that counsel’s “conduct was close to contempt of court, that his strategy was about to open the door to evidence which was irrelevant and prejudicial to his client, and that he wаs on Very dangerous grounds.’ ”
[¶ 12.] In Wayrynen v. Class,
[¶ 13.] Most recently, in Sund v. Weber,
[¶ 14.] The facts here are not comparable to these cases. Molstad made timely, proper objections. He called relevant witnesses and adequately prepared for trial. When he could not keep it out, he attempted to use the acquittal to impeach White Horse’s credibility, and did get White Horse to admit that he lied at his trial. Molstad also brought out the conspiracy between Black Bear and White Horse to “frame” New for Mousseaux’s murder. Molstad offered an adequate defense, probably the only one reasonably presented by the facts. In the end, Molstad convinced the jury to hand down a second-degree murder conviction, rather than a first-degree murder verdict. New was also acquitted of kidnapping. Faced with convoluted facts and difficult witnesses who were not averse to perjuring themselves, Molstad presented a coherent defense. His actions did not fall belоw the Strickland standard.
[¶ 15.] Even if Molstad’s representation was deficient in some manner, New also must show that he was prejudiced by Mol-stad’s ineffective assistance. New fails to meet this burden. First, New has not shown that, had hearsay been raised as the legal rationale for excluding the acquittal evidence, the trial court would have not allowed it in either on rebuttal or under some exception to the hearsay rule. Sec
2. Instruction Explaining Acquittal of Codefendant
[¶ 16.] New next claims that Mol-stad’s representation was deficient because he did not request an instruction informing the jury that White Horse’s verdict of not guilty was not necessarily a finding of innocence, but merely an indication that guilt was not proved beyond a reasonable doubt. The acquittal, contends New, gave the jury the impression that White Horse, was, in fact, innocent. If the jury believed White Horse was innocent, New asserts, then there would be no possible guilty individual other than New, since Black Bear had already been convicted and White Horse acquitted. New argues that this inference deprived him of a fair trial. The habeas court found that Molstad’s actions did not deprive New of the assistance of effective counsel.
[¶ 17.] Simply from reading the instructions in New’s case, jurors would understand that an acquittal could be based on reasonable doubt, not absolute innocence. We see no prejudice from the absence of the limiting instruction. In our view, Mol-stad’s cross-examination adequately attacked White Horse’s credibility. We conclude that New was not prejudiced by Molstad’s failure to request an instruction explaining the significance of White Horse’s acquittal.
3. Codefendant’s Other Homicide
[¶ 18.] New claims Molstad disregarded evidence that White Horse participated in another murder. White Horse allegedly made repeated admissions about beating to death a person named Dale Williams. This evidence, according to New, could have been used to impeach White Horse’s testimony about his role in Mousseaux’s death (“reverse 404(b) evidence”). New asserts that “any reasonably competent attorney would have questioned White Horse at trial about killing Dale Williams just weeks earlier. Failure to do so cannot be fairly explained.” Mol-stad, at the habeas hearing, testified he did not offer this evidence, as he was concerned about its admissibility. New argues that his does not “justify entirely disregarding the evidence.”
[¶ 19.] At the time of trial, no charges were pending against White Horse for Williams’ death. Molstad was uneasy about the admissibility of the evidence and did not want a “trial within a trial.” He also worried that the jury might disregard the whole matter as immaterial. Although “reverse 404(b)” evidence is admissible under the Federal Rules of Evidence,
4. Potential Impeachment of Black Bear
[¶ 20.] New asserts that before trial Molstad received psychological reports indicating that Black Bear may not be able “to tell the truth” and had a propensity to hurt others and seek revenge against those he felt wronged him. Molstad, however, did not use this information to impeach Black Bear’s credibility. This, claims New, deprived him of the effective assistance of counsel.
[¶ 21.] Molstad had a legitimate reason to avoid magnifying Black Bear’s penchant for perjury and revenge. It could have worked to discredit any testimony Black Bear gave, some of which was helpful to New’s defense. Specifically, Molstad wanted to emphasize White Horse’s participation in Mousseaux’s murder. If the jury doubted Black Bear’s testimony, it may have concluded Black Bear was lying about White Horse’s involvement in Mous-seaux’s death, thus debasing one of Mol-stad’s core defense strategies. Molstad sought to impeach Black Bear only to demonstrate that White Horse and Black Bear conspired to get a favorable verdict for White Horse during his trial. This would tend to implicate White Horse and Black Bear in Mousseaux’s death and could create reasonable doubt over New’s involvement. We think this was reasonable trial strategy. In hindsight, New now claims he was prejudiced by the exclusion of this evidence, but at the time, its presentation may have damaged his defense. Further, as the State argues, introduction of this evidence would have been cumulative, as Black Bear’s direct examination testimony revealed his propensity to lie. New suffered no prejudice from Molstad’s failure to impeach Black Bear using the psychological evidence.
5. Failure to Object to Codefendants’ Guilty Pleas
[¶ 22.] New contends that Mol-stad failed to object to the admission of the guilty pleas of Black Bear and White Horse. The habeas court, however, found that Molstad’s actions constituted reasonable trial strategy. In Boykin v. Leapley,
6. Failure to Request Cautionary Instruction
[¶ 23.] Next, New contends Mol-stad failed to request an instruction to limit the jury’s consideration of Black Bear’s guilty plea and White Horse’s acquittal and guilty plea as an accessory. New asserts this instruction was necessary “because the existing instructions did not explain the purpose for which the evidence could or could not be used.” He argues that without proper instruction, the jury could use White Horse’s acquittal and plea and Black Bear’s guilty plea as evidence of New’s guilt. New’s premise is that a competent attorney would have requested such an instruction and the failure to do so deprived him of a fair trial. The habeas court rejected this argument, and we conclude that even if failure to request the instruction was somehow deficient, New has failed to establish the requisite prejudice.
7. Cumulative Effect of Errors
[¶ 24.] Finally, New claims that when the trial is examined in its totality, “this case presents a picture of an attorney not particularly experienced in criminal lаw who was thrust by. court-appointment into a capital murder case without sufficient experience to deal effectively with the difficult judgments that such a case necessarily entails.” Molstad did have pri- or felony experience, but experience is not the standard. We measure counsel’s performance against the “reasonable attorney,” not by past credits, be they long or short.
[¶ 25.] New maintains that the cumulative effect of Molstad’s errors undermined the reliability of the jury verdiсt because New was not convicted based on the evidence, but rather on the outcomes of the White Horse and Black Bear cases. We decline to accept New’s characterization. Having found no one issue sufficient to declare Molstad’s representation deficient or prejudicial, we cannot now say that the sum of any errors requires a new trial.
[¶ 26.] Affirmed.
Notes
. At New's preliminary hearing, Black Bear admitted that he and White Horse perjured themselves at White Horse’s trial to save White Horse and to "get back” at New.
. SDCL 19-16-4 provides: "Hearsay is not admissible except as provided by law or by chapters 19-9 to 19-18 inclusive, or by other rules prescribed by the Supreme Court.” See also Freeman v. Class,
. SDCL 19-12-3 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
.Under the acquittal rule one cannot offer as evidence the acquittal of a codefendant to prove the other co-defendant is not guilty.
. Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 100, at 543-44 (2d ed 1994): "Under FRE 404(b), such proof is admissible against the defendant and ... defendants can offer 'reverse 404(b)’ evidence to implicate an outsider.” Id.
Concurrence Opinion
(concurring in result).
[¶ 29.] The majority opinion states: “[h]aving found no one issue sufficient to declare Molstad’s representation deficient or prejudicial, we cannot now say that the sum of any errors requires a new trial.” This statement is inherently inconsistent and in error. It is not necessary under the cumulative effect theory to “find one issue sufficient,” it is only necessary to find the representation deficient or prejudicial cumulatively from several issues to constitute ineffective assistance of counsel. See Roden v. Solem,