Primeaux v. Leapley

PRIMEAUX, Roscoe Petitioner $350,000.00 deposit Was on Appellant, (John Hughes) garnishees’ T. trust account May absolutely and uncondi- Warden, LEAPLEY, South Walter defendant, tionally property Con- Penitentiary, Dakota State Corporation? Management solidated Appellee. 17889. No. (Insert “no”). “yes” or YES Supreme of South Dakota. Court day July, Dated this 22nd 1991. Argued Nov. 1992. 23, 1993.

Decided June Tappe, Platte,

Lee A. petitioner for appellant. Barnett, Atty. Gen.,

Mark Frank E. Geaghan, Gen., Atty. Pierre, Asst. ap- pellee.

WUEST, Justice.

Primeaux was convicted of second-de- gree murder and aggravated two counts of assault. His convictions were by affirmed Primeaux, this court in State v. (S.D.1982). N.W.2d 256 Primeaux then filed this writ of habeas corpus in circuit court. He claims his trial counsel failing ineffective to insist witness test Primeaux more thoroughly, by failing to opinion obtain an from a expert, by second or third attempt- prove insanity through the trial testi- assistance; is, mony by “essentially professional sonable abandoning” closing defense in pre- the defendant must overcome the argument. that, circumstances, He also claims he was denied sumption under the process due when the habeas court refused challenged ‘might action be consid- ” provide psychiatric expert. him awith strategy.’ 689, ered sound trial Id. at 2065, 104 at S.Ct. 80 L.Ed.2d at 694-95 hearing, After a the circuit court denied (citing Louisiana, 91, v. Michel 350 U.S. corpus appeals. relief. Primeaux habeas 101, 158, 164, 83, 76 S.Ct. 100 L.Ed. 93 We affirm. (1955)). I. Miller, 472 N.W.2d at 518.

PRIMEAUX DENIED EF- WAS NOT 9, arraigned Primeaux was November FECTIVE ASSISTANCE OF COUNSEL. granted 1981 and request the court for Supreme

The United Court States independent psychiatric examination. two-step has set forth a test to determine The defense selected and retained Dr. whether a defendant has been denied effec Bean, David Depart- W. Chairman of the tive assistance of counsel. Strickland v. Psychiatry University ment of at the 668, 687, Washington, 466 U.S. 104 S.Ct. South Dakota School of Medicine. Pri- 2052, 2064, 674, (1984). 80 L.Ed.2d 693 by meaux was examined Dr. Bean on No- adopted This court the Strickland test to 18, approximately vember 1981 two judge whether a defendant received effec hours. Trial counsel’s associate held a guaranteed by tive assistance of counsel as meeting day with Dr. Bean that same VI, Article 7 of the Constitution of South § findings. meeting, discuss his At that Dr. Solem, Dakota. Luna v. 411 N.W.2d 656 attorney Bean told the he found Primeaux (S.D.1987); Solem, Woods 405 N.W.2d competent to stand trial and that he 59, (S.D.1987). Primeaux therefore signs symptoms found no or of mental prove representation must both deficient illness did find but indications Primeaux prejudice. and suffering “voluntary from alcoholic in- “ stabbings toxication” at the time the oc- right ‘The to counsel is the ” Additionally, requested curred. Dr. Bean effective assistance of counsel.’ Miller v. by neurologist, Primeaux be examined 517, (S.D.1991) Leapley, 472 N.W.2d Flora, George possible Dr. M.D. for a C. corpus granted part habeas on other Dr. 91-1017, seizure disorder. Bean submitted a grounds, Civil No. 1993 WL (D.S.D. report written to trial counsel on December 24, 1993); (quoting March 4, Strickland, 686, report 1981. The from Dr. Flora was 466 U.S. at 104 S.Ct. at 7, 2063, submitted December 1981. Dr. Flora’s (citing 80 L.Ed.2d at 692 McMann v. Richardson, 759, 14, impressions clinical indicated “no evidence 771 n. pat- neurological S.Ct. 1449 n. 25 L.Ed.2d 773 of focal deficit nor seizure (1970))). dependency, n. tern” and “chemical mixed type, severe.” Trial counsel then contacted complains “When a convicted defendant Stephenson Dr. Darrell Pri- discuss of the ineffectiveness of counsel’s assis- neurological reports. meaux’s mental and tance, the defendant must show that representation counsel’s fell below an ob- trial, At the defense elected not to call jective standard of reasonableness.” by Dr. Bean. Dr. Bean called Strickland, 687-88, 104 S.Ct. prosecution opinion testimony to rebut at 80 L.Ed.2d at 693. “Judicial regarding from Primeaux’s scrutiny performance of counsel’s must sanity. highly deferential.” at Id. action, at S.Ct. 80 L.Ed.2d at 694. “Be- In his habeas cause the difficulties inherent in mak- claims the examination Dr. Bean was evaluation, indulge inadequate a court must and trial counsel should have strong presumption that counsel’s con- insisted the test Primeaux more duct falls within the range thoroughly. presents laundry wide of rea- list of 80 L.Ed.2d at done but U.S. at should have been he claims

tests give not infor- per- 696. Where Primeaux did they were presents no evidence counsel, counsel could neither mation to present any evidence does he formed. Nor pass expert. it to the investigate it nor competent necessary for a the tests were psychiatric examination. his trial Primeaux next asserts found Pri- sought and his associate

Trial counsel counsel should have second “lucid, knowing intelligent” opinions sanity. to his third meaux However, many legitimately interviews with him. during trial counsel was their “in mental faculties were additional examinations would thought his concerned Both short, nothing put there was more “ammunition the hands good order.” attorney.” testified background, prosecuting in the informa Counsel in Primeaux’s prosecution counsel, handing he wanted to avoid the in his behavior with gave tion he assembly experts parade of to before in the medical and counsel or jury, every declaring each one Pri- psychiat reports to indicate that additional The decision was a stra meaux was sane. there testing pursued. When ric should be tegic trial tactic. accuracy doubting the grounds are no is no obli psychiatric report, a there Primeaux further claims that coun gation to seek further evalua for counsel prove trying sel was ineffective in to his 863, State, 869 tion. Mikel v. 550 S.W.2d through insanity defense the use of required not (Mo.Ct.App.1977). Counsel is By presenting witnesses. witnesses who repeat examinations until an ad to obtain day had observed Primeaux’s behavior acquired. People vantageous report is v. murder, counsel tried to show that 411, 31, Cal.Rptr. Webster, 285 54 Cal.3d despite expert’s opinion Primeaux knew — (1991) denied, 814 P.2d 1273 cert. U.S. wrong, the saw bi from 1772, -, 112 118 L.Ed.2d 431 S.Ct. zarre behavior the doctor did not observe. Commonwealth, (1992); v. 232 Va. Pruett Bean, In cross-examination of Dr. counsel (1986); State, S.E.2d 1 Weaver v. 351 attempted testimony elicit from Doc (Ind.1982). 432 N.E.2d 5 panic tempo person tor that a could rarily “snap.” Counsel’s decision to use “logical Bean found Primeaux Dr. lay testimony temporary insan establish average “of intellectual and coherent” and decision; ity strategic only a trial was expressed “depres ability.” Primeaux insanity other choice was to abandon the fact, symptomatology;” in sive opinion, expert defense or another obtain symptoms depressive denied to Dr. Bean. thereby risking expert testimony additional defense counsel should now asserts that Primeaux sane. not sec We will investigation provide have conducted an ond-guess counsel’s trial tactics. Strick family and historical with back land, at S.Ct. ground him in Primeaux asserts left which 694; Solem, 428 L.Ed.2d at Aliberti v. depression.” a state of Trial coun “severe (S.D.1988). N.W.2d give sel information he not could not did possess. The reasonableness of counsel’s Primeaux also claims counsel “aban- investigate insanity depended insanity closing decision to doned” the ar- supplied. gument. reading on the information Primeaux A close of the trial court Miller, clearly argued United States v. 907 F.2d 998 record shows counsel insani- (10th Cir.1990); closing ty jury United States v. to the in his statement. The Soto-Her nandez, (10th F.2d not Cir. abandoned. We 1988); Pound, nothing performance v. 793 S.W.2d 509 find of trial (Mo.1990). given a defendant has counsel that shows ineffective assistance of “[W]hen pursuing counsel reason to believe that cer counsel Primeaux’s defense. Counsel’s investigations tain strategic judgments fruitless or decisions were which harmful, even pursue second-guess. opinion counsel’s failure to It is the we will those investigations may not later be chal of this court that under the difficult cir- lenged Strickland, case, as unreasonable.” 466 cumstances of this Primeaux’s trial fact, adequate job representing did an trial. In the State went counsel further than required by gave his client at trial. Ake and Primeaux funds psychiatrist choosing

for a of his own rath- court-appointed expert. er than a II. Appeals The Seventh Circuit Court of

PRIMEAUX WAS NOT DENIED DUE rejected upholding a similar claim in a dis- BY THE PROCESS OF LAW CIRCUIT trict court’s conclusion there nowas viola- A COURT’S REFUSAL TO APPOINT process tion of due when a court denied IN HIS HABEAS PSYCHOLOGIST appointment psychiatrist support PROCEEDING. prisoner’s “incompetent” diagnosis claim of The habeas court denied Primeaux’s mo- by psychiatrists during guilt phase appoint psychologist tion to for his hear- Peters, trial. Silagy 905 F.2d ing. testimony He asserts the of a forensic (7th Cir.1990). rejecting Silagy’s claim psychologist, Rypma, a Dr. would show the the court said: inadequate. Dr. Bean examination open up would be reluctant to [W]e Primeaux now asserts the denial of a court- type experts claim to a Ake battle of appointed psychologist help him estab- in “competence” a review ...— a never lish his habeas claim was a violation of his ending process.... A conclusion to the right process to due under the Fourteenth contrary require would this Court and Amendment. engage other federal courts to in a form Primeaux bases his claim on Ake v. “psychiatric malpractice” of medical re- Oklahoma, 68, 1087, 470 U.S. 84 part-and-parcel view as of its collateral (1985). L.Ed.2d 53 Primeaux stretches Ake judgments. review of state court pro too far. Ake holds that a state must never-ending ultimate result would be a indigent psychiatric vide defendant with psychiatrists appointed battle of as ex- guilt phase assistance at the of a trial when perts purpose discrediting for the sole of sanity the defendant has demonstrated his prior psychiatrist’s diagnosis. a We do may Ake, a in determining guilt. be factor not believe this was the intent of the 83, 105 1096, S.Ct. at 84 L.Ed.2d indigent Court in when it held that Ake at 66. raise a defendants who defense of insani- We therefore hold that defen- when a ty are entitled to assistance in judge dant demonstrates to the trial preparation of their defense. sanity his at the time of the offense is reasoning Silagy Id. at 1013. The of on trial, significant be a factor at the State adopted by this issue the Ninth Circuit must, minimum, at a assure the defen- Appeals Vasquez, Court of in Harris v. 949 competent psychiatrist dant access to a (9th 1497, Cir.1990) F.2d 1517 cert. de appropriate who will conduct an examina- —nied, -, 1275, 112 117 S.Ct. evaluation, preparation, tion and assist (1992). The L.Ed.2d 501 Harris Court said: presentation of the defense. is This “Allowing psychiatric opin such battles of course, say, indigent not to of that the during challenges ions collateral successive defendant has a constitutional place to a federal courts in [verdict] psychiatrist personal choose a of his lik- psycho-legal quagmire resulting ing or to receive funds to hire his own. process." Id. at total abuse the habeas of indigent Our concern is that the defen- added). (emphasis 1518 competent psychia- dant have access to a exactly quagmire This is what the habe- discussed, purpose trist for the we have referring deny- court to in its order as provision and as the case of the of appointment psycholo- funds for of a counsel we leave to the States the deci- gist hearing: “[Appoint- at Primeaux’s implement right. sion on how to this requested by ment as Id. Applicant purpose would serve no but psychi

Primeaux did have access to trial of this deteriorate the matter into guilt phase experts atric assistance at the of his trial of and not address the Consti- 270 225, (1886); ineffective assis- 7 30 L.Ed. 421 Frisbie v. question as to S.Ct.

tutional 509, Collins, 342 U.S. 72 96 L.Ed. of counsel.” S.Ct. tance (1952); Winckler, 541 260 N.W.2d at 363. right to a Primeaux had no constitutional request overturn We decline Primeaux’s corpus expert for his habeas court-funded to the extent it adheres to the Winckler therefore, rights hearing; process his due rule. It Ker-Frisbie is established law by the habeas court’s were not violated illegal that even an arrest does this state psycholo- denying appointment order subsequent not render a void. conviction gist. Horse, Spotted 462 N.W.2d State v. — (S.D.1990) U.S. -, denied, 468 cert. III. (1991); 125 S.Ct. L.Ed.2d HAD THE STATE OF DAKOTA SOUTH Muellar, (8th Davis v. 643 F.2d PRIMEAUX. JURISDICTION OVER Cir.1981) denied, cert. 454 U.S. housing Primeaux asserts the south (1981); Winckler, 70 L.Ed.2d S.Ct. Country Wagner is in Indian district 260 N.W.2d 363. jurisdiction had no therefore State argument Primeaux’s final is him arrest without the consent tribe person knife found his should not have First, he has and an extradition order. into it been admitted evidence because was housing showing no the south district made illegal the result of an search Thus, Country. has failed in is in Indian he jurisdiction housing in Wagner had proof. Nachtigall See burden argue area. He did not at his issue Erickson, N.W.2d 198 S.D. hearing may bring it habeas below and so Brech, (1970); State v. 84 S.D. only court plain before this under the error (1969). Secondly, 242 Primeaux N.W.2d rule. 23A-44-15. of Pri- SDCL The arrest by police who was arrested tribal then legal. police meaux was Tribal detained him turned over to State authorities. Primeaux and held him for authori- jurisdiction try punish an “Where person ties. The search of Primeaux’s tribe, offender rests outside the tribal offi therefore, arrest; to a made incident lawful may power cers exercise their detain the properly the knife was into evi- admitted transport proper offender and him the dence. Reina, 495 authorities.” Duro v. 2053, 2066, 109 L.Ed.2d MILLER, C.J., concurs. (1990) (holding 711 the criminal enforce power of tribes ment does extend to SABERS, J., specially. concurs Indians) supersession by tribal nonmember AMUNDSON, J., part dissents in nom., statute noted sub Mousseaux v. in part. concurs Affairs, United States Comm’n Indian F.Supp. (D.S.D.1992).1 HENDERSON, J., dissents. Even were we to find Primeaux’s SABERS, specially). (concurring Justice legal, not, was not arrest and we do his Although conviction would stand the under Ker- deficient meets the Illinois, test, rule.2 Ker v. performance part Frisbe 119 U.S. of the Strickland 1977) Congress passed (S.D. subsequently (citing 1. We note Wharton’s Criminal Proce- expands jurisdiction (1957)) § U.S.C. 1301 which the dure 1484 at 39 § states: jurisdiction Indian tribes to criminal over non- person accused is When of a crime found member Indians as defined 1153 of § in Title jurisdiction the within territorial wherein he applied A18. federal district court has charged process legally is so and is held under Mousseaux, retroactively. F.Supp. statute at jurisdiction, issued from a court of nei- power The 1443. statute does tribal not address jurisdiction right ther the court nor person to detain or turn over a who has com- put charged, him on trial for the offense is jurisdiction. mitted an offence in another impaired by the he manner in which brought jurisdiction, arrest, abduction, from another whether rule, expressed by The Ker-Frisbe by kidnapping, illegal as this 2. or Winckler, court in irregular State v. proceedings. 260 N.W.2d extradition defense, mind, during perfor- my surfaces the deficient he has not shown that testimony. State’s rebuttal to the extent prejudiced his defense mance deprived of a fair or reliable that he was Bean, prosecution called Dr. who Strickland, trial. team, employed by had been the defense as at 693. 80 L.Ed.2d S.Ct. opine its witness to that Primeaux was sane at the time of the murder. While Dr. view, my present counsel fails to even examined, being stip- Bean was the defense Primeaux’s violent acts were show that qualifications ulated on the record to his produced by caused mental illness. He has witness. This and of itself is reports effect. There is no medical to that assistance, go not ineffective but we must showing acts that these violent resulted Next, following on. the record reflects the anything “voluntary other than alco- from colloquy prosecutor between the and Dr. time, holic intoxication.” Even at Bean: support objective there is “no data Q you Did there come a time when had supposition presence of mental ill- Pri- an occasion to visit with Mr. alleged ness at the time of the criminal meaux? activity substantially either re- that would A Yes. duce this individual’s abilities to know Q When that? wrong prevent him from maintain- from or conformity his behavior in with the 18th, A That was on November 1981. requirements Dr. Bean’s of the law.” See Q November when? Bean, by conclusion. As further stated Dr. 18th, A November 1981. “highly any it was doubtful that form of Q And did occasion come about as pres- central nervous seizure disorder was by of an this court? a result order alleged ent at the time of the criminal A There was an order. That was not explain activity which would manner my understanding reason for culpability or void the of this individual’s the visit. alleged activity.” criminal Q Okay, your understanding? what was present In summary, even the record re- I attorney A had been contacted flects that Primeaux’s violent acts resulted to conduct a interview intoxication, voluntary from alcoholic which (Emphasis supplied.) and evaluation. is neither a mental illness nor a defense. A interjected objection to this dis- Counsel showing that the medical examination origi- Dr. Bean jury closure to the that was thorough could have been more is not expert, any mo- nally the defense nor was enough prong the second of establish prior the court presented tion in limine Strickland, 687, 104 S.Ct. at requesting to trial the trial court to direct Therefore, 80 L.Ed.2d at 693. there disclosing prosecution the to refrain from showing perfor- is no the deficient jury. fact to the such prejudiced mance the defense. previously ruled in This court has Earl, Highway Comm’n v. S.D. AMUNDSON, (dissenting part Justice in (1966), use of a 143 N.W.2d concurring part). and in expert by opposing party dur- party’s the trial, obviously taking ing and held as follows: Trial counsel was the position only that the in defense available Accordingly, appear to set- it would be defending insanity. I Primeaux was reach expert that an tled law South Dakota this conclusion based on the fact that after witness, appraiser, may such as an receiving Dr. Bean’s unfavorable routine compelled, upon payment or tender of report, evaluation counsel elected to at- expert expenses, witness fees and to ex- tempt prove through eyewit- the defense press opinion of value formed while lay persons. easily employ- ness This could be con- appraising property under the strategy against strued as a reasonable trial the party under ment for the whom troubling aspect testimony party calling the circumstances. The of is offered. witness, attorney makes him his opinion such an to render an on the therefore, prior employment subject at issue. the fact of payment by opposite party the or is HENDERSON, (dissenting). Justice (Emphasis sup- relevant or material. plied.) respectfully appears I dissent. As it really there are developed by no facts the Baron, In Rapid City v. 88 S.D. majority writing, it is incumbent that the (1975), N.W.2d this court while discuss appreciation reader have of the factual Earl, quote the from stated that above background in this case. probative it little or no value in saw prior employ twenty-year-old admission of such evidence of Primeaux was a Ameri- “ ment, if but value exists it is ‘out can Indian at the time of this defense. weighed by evidentiary recently discharged counterfactors had been from the ” prejudice.’ Army fighting Id. at 227 N.W.2d at United States with a witnesses, (quoting Department Pub. knife. One of the Works & Guerine, Bldgs. Ill.App.3d person, “get testified that Primeaux would (1974)). up N.E.2d 725-26 once awhile and salute.” He was a very young troubled man and evidence es- prejudicial jury If it is to disclose to a tablished, by lay testimony, that he talked prior expert by employment op- of an being lonely and sad and wanted to case, posing party in a condemnation belong part to some of society but men- only logical conclusion has to be that such everywhere tioned that he went he was not prejudice a disclosure amounts to in the wanted. Primeaux’s mother died while he prosecution Therefore, aof murder case. serving Army, United States prejudicial testimony since this from Dr. and it had a depressing upon effect him. objection Bean admitted without from homicide, On the date of the a witness counsel, only I can conclude that testified that walking he was down the representation this constituted which fell street with Primeaux and Primeaux was below the reasonableness standard of singing songs military from the service Allowing testimony Strickland. this go and, so, cadence, saying as he did jury before the had the providing effect of right, nowhere, left. Out of the witness knocking the final pins blow out testified that after he would do this ca- already from under weakened defense. dence, stop pause he would and make prong Strickland, As to the second commands and would then bellow “forward prejudicial testimony denied Primeaux a testimony march.” There was that his fa- fair trial which he was entitled to receive really ther did not him any longer know definitely was not a result which can after he returned from the service. On the diagnosed be as reliable. day homicide, very strange of the he acted McBride, This court held in State v. salute, and he kick would his heels and (S.D.1980), N.W.2d 551 that an individual expressing going flag he was to take his charged a complete with crime is entitled to hang Although and it on his friend’s wall. equality under our laws. This to there had preceding argument been no or equality jeopardized objectiona- was where fisticuffs, aggressive he acted to his friend. ble, irrelevant evidence was go allowed to consumption Alcoholic pe- exacerbated the case, jury. before the In this Primeaux culiar conduct. prejudiced by was the testimony of Dr. decedent, Primeaux the Rodney stabbed Bean that he originally was by retained Provost, fifteen times and also stabbed two Primeaux to evaluate him in regards to the people other Wagner, at a trailer home in insanity defense. South Dakota. majority point does not I concur majority’s out, with the holding on it but Primeaux was sentenced to life II, Part but my position would add that imprisonment plus years four and six for request be different if the for aggravated two counts of assault. These assistance had employment been for the judgments assault convictions and were to boots, when an officer arrived at the concurrently run with the life sentence. homicide, a series of night the On friend’s house. erupted Wagner, in fights at a residence prove attempted insanity Trial counsel to played major South Dakota. Alcohol by lay only. No notice of the evening’s Two wom-

part in the festivities. insanity by served was arguing in this residence in addi- en were upon Attorney counsel the State’s as re- assault, Pro- tion to an antecedent wherein quired by South Dakota law. State made a Kazena, Jr., pushed Fred out vost had one motion to strike the defense. Trial these events were of the home. While expressed, denying court in the At- State’s on, not in the going Primeaux was even torney’s motion to strike this defense: fact, all the home. when trouble court has to observe that without “[T]he home, Primeaux knocked going on [expert] testimony go- such the defense is ejected the on the door. was warned put perhaps hard convince this people Kazena that the inside were drunk jury[.]” and that Provost had threatened bite brief, According to the State’s Kazena. Eight days before the trial was sched- mouth, punched Primeaux in the Provost commence, uled to Dr. Bean submitted his entered, sending Primeaux Primeaux only report to defense counsel. Lead trial porch off the and onto a car backwards counsel did not discuss Dr. Bean’s evalua- to,” parked per outside. Primeaux “came report tion and his until after the trial brief, up steps and walked and State’s commenced, i.e., preparation no for trial. again. knocked on the door He was told he evaluation, According to Bean’s Habeas did, whereupon could come in and he he (1) Corpus page Transcript, 23: Primeaux was offered beer to drink. Primeaux sat trial, (2) competent to stand and there living in the room. down signs symptoms or of mental ill- were drinking throughout had Primeaux been alleged at the time of crime. Dr. ness evening. and A afternoon woman place in the Minne- Bean’s evaluation took began fight named Debbie and Provost Falls, County Da- haha Jail Sioux South Primeaux, engaged suddenly and in the kota, forty-five one hour and and lasted all, fight pulled knife from his boot Recognized minutes. tests in the field of approached Lydia, called who woman psychology forensic were not administered try stop attempting to intervene and by Dr. Bean. These include: Rorschach fight. Lydia Primeaux then stabbed blot; apperception, ink thematic Minnesota upper up, left back. When she stood Multiphasic Inventory, Personal Stanford- again, Primeaux her this time close stabbed Wechsler-Belview, Adult Binet: Wechsler to her left Provost was on the breast. Seale, Scale; Intelligence Memory Wechsler Debbie, floor, quit fighting and had with Wechsler-Bellevue; Neutopsycho- Reitan apparently startling as a result of the de- Drawing; logical Battery, Bender-Gestalt velopment stabbing Lydia. of Primeaux Memory Designs, or Graham-Kendall Primeaux then stood over Provost in- develop Dr. or obtain Szond. Bean did not flicted several stab wounds. These includ- history medical diseases ed wounds in the neck and five knife suffered, accidents, fevers, prolonged had and six wounds to chest wounds insomnia, venereal diseases. drowsiness or upper back. childhood, hostility, Primeaux’s or school- Kazena then reentered the home and was developed degree of ing was not nor his immediately by Primeaux. Pri- stabbed short, ability. special In this writer mental meaux, berserk, literally gone who had maintains, perfuncto- the examination was Later, again. stabbed Kazena testimony, ry. Couple page this with this sleep, went to a friend’s house and went Corpus Hearing Transcript: Habeas explaining slapped that Provost had his Tappe: you Mr. did not discuss ... slapped sister and then him and he decided Bean, insanity defense at to take out his knife. Primeaux with Dr. was cov- face, prior his ered with blood on trousers and least to trial? me, you talking Wipf: Phipps,

Mr. Are about Under v. 318 N.W.2d 128 (S.D.1982), personally? usurpation there was a of Pri- meaux’s constitutional You, effective as- Tappe: personally, yes. Mr. sistance of counsel. Under Strickland v. No, say I Wipf: Mr. that’s true. Washington, 466 U.S. true, Tappe: say Mr. You would that’s (1984), 80 L.Ed.2d 674 there was a reason- you per- did not discuss the case probability able profes- but for these sonally with Dr. Bean? errors, sional the result would have been No, Wipf: Mr. that Mr. Cotton did that. different. Strickland defined reasonable record, IAs read the Mr. Cotton had been probability probability “a as sufficient out of law school about five months. undermine in the outcome.” confidence opening In the defense counsel’s state- (Empha- 104 S.Ct. at 2068. ment, only insanity his mention of was: mine.) supplied sis Justice Amundson has panic, fright, “The will show and evidence expressed that Primeaux did not receive a temporary we believe an element of insani- because, fair essentially, trial of the man- ty. very you Thank much.” testimony ner which Dr. Bean’s essentially Trial counsel abandoned the placed jury before the and characterizes it closing argument. defense in Said being prejudicial testimony to such an barely defense was mentioned and it was extent that the result is not reliable. I impacted jury: with these words to the agree comment, upon with that based his going you “I’m not to tell that Roscoe was observation, plus the matter set forth in his added.) (Emphasis mentally ill.” Gone writing. (not guilty by was the defense entered rea- Calling lay three witnesses to the stand son of mental illness which instructed defense, to advance an insanity without court, by the trial instructions no. 15 and expert testimony, was destined for failure. 21). Furthermore, defense counsel ex- State, realizing (Primeaux’s Dr. Bean ex- pressed, going “... and I’m not to tell pert) easily negate lay could testimony, this you depraved (Emphasis he had a mind.” called Dr. Bean as a rebuttal witness. De- added.) Gone was reason for the trial prepared fense counsel had not Primeaux’s court to have instructed on what constitut- effectively case because Dr. Bean’s evalua- mind, depraved ed a instruction no. 24. I tion and extremely examination was limit- note, per instruction no. that Primeaux ed, as set forth Unfortunately, above. de- given a self-defense instruction for the fense counsel did not interview Primeaux’s

jury closing argument, to consider. In lead relatives, friends or his failed to check into expressed: defense counsel “I go- am not history, medical and obtained no histori- you to tell that he did self- effect, cal data on Primeaux. defense.” Habeas defense counsel intro- counsel left his client defenseless. This Respondent’s duced Exhibit H into evi- Waldron, has been condemned in v. Profitt dence, a fifteen-page transcribed interview (5th Cir.1987), 831 F.2d 1248-49 and between Attorney Wipf and Primeaux on People Saunders, 54 A.D.2d thereof, October page 1981. At Pri- (1976). N.Y.S.2d Wipf meaux told that he could not handle fists, the victim with his Remarkably, that victim “was lawyer recently graduat- enraged,” “physical school, that he was in dan- ed from appears law to have been ger,” “ready” that victim was “coming delegated by defense counsel to bear the me,” and “I felt fear of him.” The establishing brunt of the defense of insani- (this statements of prejudiced ty defense counsel lawyer, Cotton, Mr. handled the Primeaux. witnesses, Three Bean), cross-examination of Dr. and he can- Weddell, namely Ponca, Carol Anthony admitted, didly oath, under that he did not testified, Denise Freeman essentially, know if psychology forensic tests had depraved did have a performed mind. upon So been his client. Lead stripped away counsel impact counsel for Primeaux testified he was not witnesses. sure if he ever talked to Dr. Bean. There- at, move great liberty. new defense counsel could to se- writ of He has now been expert’s cure on opinion the mental con- years confined for over eleven in the State dition of Primeaux. habeas court re- Penitentiary. twenty years He was old appoint fused to assistance charged when he was approximately and is proceeding develop Primeaux’s thirty-one years old now. faces a life- claim that the initial evaluation at the trial time of appear incarceration. It does not inadequate, court level was and trial coun- he a had fair trial. Justice demands that upon singular sel relied evaluation which he receive depth one. A certain at- must perfunctory highly damaging every True, lawyers tend defense. have insanity. of Primeaux’s defense Trial de- great diversity begets and this a different explored fense counsel should have obtain- quality representation. of it Underlying opinion a second duty had all, there must a predominating range exist —he Balkcom, investigate. Beavers v. 636 F.2d legal competence to achieve the task (5th Cir.1981). lawyer. before that Simply put, a lawyer places who a defense of before It appears prompt there and thor- jury must have some substance within that ough investigation to determine what an closing argument, defense. undertaking might disclose. We have inef- expressed, counsel “The man have fective assistance counsel before us and crazy Oh, guess do that. I I that is spade call a spade. must Powell —a one our Alabama, defenses, 55, 60, mental illness.” (Emphasis added.) This (1932); McBride, statement L.Ed. 158 was but State v. reigned an echo which (S.D.1980). N.W.2d defense en- campment by which it was environed. join opinion. I cannot majority A jury new trial should be held herein with an

opportunity motions, pretrial discovery, Primeaux, preparation my for trial.

opinion, was denied the effective assistance guaranteed counsel to him the Sixth Amendment to the United States Constitu- He is us

tion. before Corpus, Habeas

Case Details

Case Name: Primeaux v. Leapley

Court Name: South Dakota Supreme Court

Date Published: Jun 23, 1993

Citation: 502 N.W.2d 265

Docket Number: 17889

Court Abbreviation: S.D.