Lead Opinion
Richard St. Cloud (St. Cloud) appeals from the trial court’s order denying his application for writ of habeas corpus. We affirm in part, reverse in part and remand.
FACTS
St. Cloud is a Native American whose blood quantum is % Yankton Sioux and ⅝ Ponca Indian Tribe; thus, he is % Native American. As a child, St. Cloud was enrolled in the Ponca Tribe of Nebraska. In 1962, the U.S. Congress passed legislation terminating the Ponca tribe. ' Pub.L. No. 87-629 (1962) (entitled “Ponca Tribe of Nebraska: Termination of Federal Supervision” and codified at 26 U.S.C. §§ 971-980). The legislation provided in pertinent part:
When the distribution of tribal assets in accordance with the provisions of this sub-chapter has been completed, the Secretary of the Interior shall publish in the Federal Register a proclamation declaring that the Federal trust relationship to such tribe and its members has terminated. Thereafter, the tribe and its members shall not be entitled to any of the special services performed by the United States for Indians or Indian tribes because of their Indian status, all statutes of the United States that affect Indians or Indian tribes because of their Indian status shall be inapplicable to them[.]
25 U.S.C. § 980. Approximately twenty-four years after the effective date of termination (1966), Congress restored federal recognition to the Ponca Tribe of Nebraska in 1990. Ponca Restoration Act, Pub.L. 101-484 (1990) (codified as amended at 25 U.S.C. §§ 988-983h). See generally Elizabeth S. Grobsmith and Beth R. Ritter, The Ponca Tribe of Nebraska: The Process of Restoration of a Federally Terminated Tribe, 51 Hum.ORG. 1-16 (1992) (hereinafter “Ponca Restoration Process”).
In 1983, during the interim period when the Ponca tribe was terminated, St. Cloud applied for enrollment in the Yankton Sioux Tribe based on his ¾ Yankton Sioux blood quantum. Due to a provision in the Yankton Sioux tribal constitution, he was ineligible for enrollment because he had been enrolled in the terminated Ponca tribe. St. Cloud I,
In April 1986, St. Cloud was charged with the kidnapping and rape of a non-Indian woman within the exterior boundaries of the Lower Brule Reservation. For a statement of the facts surrounding this incident, see State v. St. Cloud,
St. Cloud subsequently pled not guilty in state court to charges of first-degree rape and kidnapping. His trial took place in Lyman County where the Lower Brule Reservation is located. In December 1989, a jury found him guilty on both counts and he was sentenced to the South Dakota State Penitentiary. St. Cloud’s conviction was affirmed on direct appeal to the South Dakota Supreme Court. St. Cloud II,
St. Cloud applied for a writ of habeas corpus, alleging that he is unlawfully imprisoned and detained by the warden of the penitentiary due to his conviction on the rape and kidnapping charges. The circuit court issued its memorandum opinion, findings of fact, conclusions of law, and order denying St. Cloud’s application. This appeal follows.
This court has stated on numerous occasions that “in habeas corpus proceedings, the scope of review is limited because the remedy sought is in the nature of a collateral attack upon a final judgment.” Aliberti v. Solem,
We have also described the range of issues proper for review in a habeas corpus action:
Although habeas corpus is not a substitute for direct appeal, appellant may assert jurisdictional errors which render the first judgment void. In the context of habeas corpus, jurisdictional error is given an expansive construction. Of course, this includes personal and subject matter jurisdiction, but due process violations and compliance with substantive statutory procedures are also subject to challenge in habeas corpus proceedings.
Security Savings Bank v. Mueller,
This court explicitly delineated the standard of review for findings of fact and conclusions of law arising out of habeas corpus proceedings in Aliberti
Although the lower court’s findings of fact are presumed to be correct, this presumption of correctness does not extend to the conclusions drawn from the application of legal principles to those factual findings. Applying legal principles to findings of fact creates mixed questions of law and fact. Federal courts will review mixed questions of law and fact de novo, giving deference to factual findings but reserving the right to give different legal weight to the facts. [Citations omitted.] We are persuaded that this same standard of review applied by the federal courts should also apply in this court’s review of a circuit court’s habe-as ruling, particularly when that ruling involves claims based on ineffective assistance of counsel. Whether a defendant has received ineffective assistance of counsel is essentially a mixed question of law and fact. In the absence of a clearly erro*122 neous determination by the circuit court, we must defer to its findings on such primary facts regarding what defense counsel did or did not do_ This court, however, may substitute its own judgment for that of the circuit court as to whether defense counsel’s actions or inactions constituted ineffective assistance of counsel.
Aliberti,
I. DOES THE STATE OF SOUTH DAKOTA HAVE JURISDICTION OYER THE CRIMINAL CHARGES AGAINST ST. CLOUD?
As previously stated, St. Cloud was originally charged and pled guilty in federal court. After sentencing, he urged that the judgment be vacated on the ground that the federal court had no jurisdiction over him under the Major Crimes Act. See St. Cloud I,
In habeas corpus actions an “appellant may assert jurisdictional errors which render the first judgment void. In the context of habeas corpus, jurisdictional error is given an expansive construction. Of course, this includes personal and subject matter jurisdiction[.]” Security Savings Bank,
We are here presented with a singularly unique ease where the U.S. District Court for the District of South Dakota has previously considered the question of whether St. Cloud is an “Indian” for purposes of federal criminal jurisdiction. This required the federal court to interpret and- apply federal statutes. St. Cloud I,
Federal decisional law interpreting a federal statute ... and delineating the rights and obligations thereunder is binding on this Court under the Supremacy Clause of Article VI of the United States Constitution: ‘This Constitution, and the laws of the United States which shall be made in pursuance thereof ..., shall be the supreme law of the land; and the judges in every state shall be bound thereby; anything in the Constitution or laws of any state to the contrary notwithstanding.’ (Emphasis added).
Id. (quoting U.S. Const, art. VI). This is not to be confused with other situations where we look to federal courts for guidance in interpretation of a state statute that is similar to a federal law — where we are not bound by lower federal court interpretations. See e.g., Sander v. Geib, Elston, Frost Prof. Ass’n,
Thus, in light of the determination made by the federal court, interpreting federal law in St. Cloud I, we accept that court’s holding that for purposes of federal criminal jurisdiction under the Major Crimes Act, St. Cloud is not an “Indian” as required by that federal law. The State of South Dakota properly has jurisdiction over the criminal charges against St. Cloud.
II. WAS ST. CLOUD’S CONSTITUTIONAL RIGHT TO A JURY COMPRISED OF A FAIR CROSS-SECTION OF THE COMMUNITY VIOLATED DUE TO THE COMPOSITION OF THE LYMAN COUNTY JURY PANELS?
One the issues raised by St. Cloud in this habeas corpus action is that he was deprived of a fair trial because the jury panel did not include a fair cross-representation of Native Americans. St. Cloud argues that Lyman County’s population is approximately 29% Native American; yet the 200-person master jury list was only 9.2% Native American. Throughout the lower court proceedings, the warden of the penitentiary (hereinafter Warden) urged that St. Cloud lacked standing to challenge the jury panel make-up because St. Cloud is “not an Indian”; the circuit court agreed. For the first time, in this appeal, the Warden argues that St. Cloud did not preserve the issue for appeal because he failed to challenge the jury makeup at the time of the rape and kidnapping trial. St. Cloud counters that since the Warden did not raise this affirmative defense in his pleadings at the habeas trial court level, the defense is waived. We disagree with the lower court’s finding that St. Cloud lacked standing to challenge the jury panel makeup; and further find that St. Cloud’s challenge is not proeedurally barred by waiver.
Several cases speak to the question of waiveR The first is Reese v. Nix,
The Seventh Circuit faced a similar issue in United States ex rel. Blackwell v. Franzen,
[T]he State did not raise the issue of the timeliness of defendant’s objection to the State’s use of peremptory challenges when defendant initially filed its pretrial motion*124 for a mistrial, but instead challenged the motion solely on its factual merits.... We therefore conclude that the State has waived its argument that defendant’s objection to the State’s exercise of peremptory challenges was untimely.
Id. (citing Lee v. State,
In Conclusion of Law IV, the lower court stated in part that, “since [St. Cloud] is not an Indian he has no standing to complain about underrepresentation of Indians on the master jury list, the jury panel or the jury selected.” This conclusion was based on the court’s Finding of Fact IV, which states that, “Both the Federal Court and the State Court have resolved the issue and have found that he is not an Indian.” This statement is inaccurate and misreads the federal court’s opinion. Rather, the federal district court made the following statements: “As a virtually full-blooded Native American, St. Cloud obviously is ethnically an Indian. He is socially recognized and lives as a Native American.”
More importantly, we must emphasize that St. Cloud’s racial classification as a Native American has no bearing on his standing to challenge the composition of the jury panel. The requirement that a jury be made up of a fair cross-section of the community is a right of all defendants, whether or not the defendant is a member of the excluded group. The U.S. Supreme Court has held, for example, that a male defendant may challenge the exclusion of women from the jury panel, and a white defendant may challenge the exclusion of blacks from the jury panel. Taylor v. Louisiana,
The State first insists that [the defendant], a male, has no standing to object to the exclusion of women from his jury. But [the defendant’s] claim is that he was constitutionally entitled to a jury drawn from a venire constituting a fair cross section of the community and that the jury that tried him was not such a jury[.] ... [The defendant] was not a member of the excluded class; but there is no rule that claims such as [the defendant] presents may be made only by those defendants who are members of the group excluded from jury service.
Taylor,
When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do,*125 that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.... Accordingly, we hold that, whatever his race, a criminal defendant has standing to challenge the system used to select his grand or petit jury, on the ground that it arbitrarily excludes from service the members of any race, and thereby denies him due process of law.
Peters,
This court has recognized these concepts. State v. Hall,
[T]he Sixth Amendment, as applied to the states by the Fourteenth Amendment, requires that all state petit juries must be selected at random from a fair cross-section of the community. The South Dakota legislature had adopted a statute which provides a similar requirement:
‘It is the policy of the state of South Dakota that all litigants in the courts of this state entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross-section of the community in the municipality, district or county where the court convenes_’ SDCL 16-13-10.1.
It is apparent that the burden is now upon the judiciary, not only to prevent purposeful discrimination against minorities but to insure that all identifiable groups in the community are fairly represented on jury panels_ It is not important whether the underrepresentation is purposeful or not, nor whether it arose from the selection of the jury panel or after through the granting of statutory exemptions or excuses.... ‘(However), if a substantial threat is posed to the representative nature of the jury pool because of constitutionally granted excuses, then supplemental names must be added to correct any gross imbalance.’
We hold that since St. Cloud’s challenge to the jury panel is not procedurally barred, and he does possess standing to make such a challenge, the merits of his claim must be reached. However, because the lower court failed to fully consider the merits of the claim, there are no findings of fact and conclusions of law for this court to review. “A failure to make a finding on a disputed material issue requires a reversal of a judgment.” Bell v. Midland Nat’l Life Ins. Co.,
III. DID ST. CLOUD RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL?
In evaluating ineffective assistance of counsel claims, this court has adopted and applies the test set forth in Strickland v. Washington,
No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant_ Judicial scrutiny of counsel’s performance must be highly deferential.... Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.
Strickland,
‘Prejudice exists when there is reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The burden of proving prejudice rests upon the defendant. The defendant must overcome the strong presumption that counsel was competent.’
Petrilli v. Leapley,
St. Cloud’s claim of ineffective assistance of counsel is based on a number of claimed errors, which we consider in turn.
1. Failure to examine the tribal court file.
St. Cloud alleges that his counsel failed to examine a tribal court file which would have revealed information vital to his defense. A review of certain facts is necessary to an understanding of this allegation. St. Cloud had a history of alcohol abuse, had been in treatment on a number of occasions, and had periods of sobriety. He had previously been in a treatment program at the tribal alcoholic treatment center in Lower Brule. On the date of the alleged rape (April 16,1986) St. Cloud came to the tribal alcoholic treatment center and spoke to a counselor he knew there — the victim (J.M.). St. Cloud had been scheduled to go to treatment in Omaha, but had failed to show up. St. Cloud talked to J.M. about getting him to the Omaha treatment center. St. Cloud told J.M. that there was a “warrant” out for St. Cloud’s arrest because he had not gone to treatment,
At trial, St. Cloud’s counsel called the tribal judge and questioned her about the “alternate sentence” (jail time or alcohol treatment). The tribal judge testified at trial that she could not “remember, you know, whether the jail sentence was still hanging” as of the date of the alleged rape. On cross-examination of the tribal judge by the prosecution, the following exchange took place:
Q: Mrs. Flute, as of April 16th then, you had given Richard some time on a sentence?
A: Yes.
Q: You didn’t have any warrants out for him or anything like that?
A: No.
Q: You weren’t planning on slamming him in jail the next day or anything!?]
A: No, usually when they talk to me, I don’t do it.
This testimony clearly undermined St. Cloud’s story that he understood there was a warrant out for his arrest, and that was why he was hiding.
St. Cloud’s defense counsel had not examined the tribal court file to see if there was, in fact, any warrant outstanding on April 16, 1986. Had the court file been examined a document with the following pertinent language would have been discovered:
COURT ORDER — JAILKEEPER
TO THE KEEPER OF THE JAIL AT THE LOWER BRULE POLICE DEPARTMENT: Your [sic] are hereby ordered to take the following action:
FINAL COMMITMENT The Defendant has been found guilty of violating Section 1-3-la of the Lower Brule Sioux Tribe Penal code and is hereby sentenced to 20 days in jail. The sentence is to commence on the 4th day of April, 1986, at 8:00 AM. and end on the 23rd day of April, 1986, at 8:00 P.M.
Richard was given time to allow him to seek treatment at an alcoholic Treatment center preferably in Omaha, Neb. If he doesn’t go as stated then he would have to serve the time in confinement.
St. Cloud argues that the result of the conflicting testimony at trial regarding whether a “warrant” existed was that “the case became not just St. Cloud’s word against the alleged victim’s, but also the word of a tribal judge. If anything, the tribal judge destroyed St. Cloud’s credibility at a decisive time. Moreover, this destruction came because of St. Cloud’s own counsel.” It does appear that the testimony of the tribal judge served to undermine St. Cloud’s credibility. At the habeas trial, defense counsel admitted that the documentary evidence found in the tribal court file would tend to support St. Cloud’s reason for why he hid.
We have held that, “the right of an accused to the services of an attorney envisages that his attorney will investigate and consider possible defenses.” Miller v. State,
However, this omission by counsel fails to satisfy the second Strickland prong — that the defense was prejudiced by counsel’s deficient performance. See Petrilli,
2. Failure to introduce victim’s medical records.
Following the time of the alleged rape in 1986, J.M. was taken to a hospital in Pierre where she was examined by a physician and standard “rape kit” evidence was gathered. St. Cloud pled guilty in federal court to reduced charges, so the evidence was not used. In 1989, when St. Cloud was tried in state court, his defense counsel was told that all physical evidence had been destroyed.
As to this allegation by St. Cloud, in regard to his ineffective assistance of counsel claim, the habeas court stated in finding of fact IX:
That the victim’s medical records were destroyed by the FBI after St. Cloud pled guilty of Federal Court and there were no*129 other useful records and the State did not introduce physical or medical evidence that there was force.
We have stated that “lack of consent by a victim in a rape case is not established solely by showing physical resistance by the victim. The element of compulsion can be satisfied by showing that the victim submitted out of fear of violence or injury.” State v. Gallipo,
We are convinced that the decision of St. Cloud’s trial counsel to not pursue physical evidence issues was a tactical decision. This was reasonable in light of the fact that St. Cloud’s defense was consent of the victim, and the State offered no evidence of physical resistance. “On review, it is not this court’s function to second-guess tactical decisions of defense counsel at trial; this court will not substitute its own theoretical judgment for that of counsel.” Miller,
3. Failure to’ challenge the underrepresen-tation of Native Americans on the jury panel.
As previously stated, we have remanded this matter to the circuit court for findings of fact and conclusions of law regarding the underlying merits of St. Cloud’s claim as to the make-up of the jury panel. Similarly, as to how the underlying claim bears on the allegations of ineffective assistance of counsel, the circuit court made no findings of fact and conclusions of law. On remand, after considering the merits of St. Cloud’s claim on this issue, the court should also make findings as to whether failure to challenge the underrepresentation of Native Americans on the jury panel constituted ineffective assistance of counsel.
IV. WAS THE JURY PROPERLY INSTRUCTED ON THE KIDNAPPING CHARGES?
As we view St. Cloud II, the issue of jury instructions on the kidnapping charges was raised and thoroughly considered in that decision on direct appeal. St. Cloud II,
In summary, we find that the state of South Dakota has jurisdiction over St. Cloud under the circumstances of this case. Because he has standing to challenge the jury panel makeup, we remand to the circuit court so that the merits of this claim can be reached. We affirm the circuit court’s findings on the ineffective assistance of counsel claims regarding counsel’s failure to investigate and introduce medical records; but remand on the question of failure to challenge the composition of the jury panel. Finally, we affirm the circuit court on the issue of jury instructions.
Notes
. This in-depth article is authored by two anthropologists who were intimately involved in the process of federal restoration of the tribe. An early draft of this paper was presented in October 1989 in Sioux Falls, South Dakota, at the 47th Annual Meeting of the Plains Anthropological Society. Ponca Restoration Process at 1.
. The Northern Ponca tribe, restored as the Pon-ca Tribe of Nebraska, is differentiated from the Southern Ponca of Oklahoma. The Ponca were all originally from Nebraska and the terms of an 1865 treaty granted them reservation lands encompassing 96,000 acres largely along the Niob-rara River. Ponca Restoration Process at 5. The Fort Laramie Treaty of 1868 brought a "rude awakening" to the Ponca, as the terms of that treaty ceded all Ponca reservation lands to the Sioux territory, without consulting the Ponca. Id. In 1877, the Ponca were directed to remove themselves to Indian territory in Oklahoma. The involuntary move, known as the "Ponca Trail of Tears,” resulted in the death of one-third of the tribal members. Id. at 5-6. Following an investigation of the injustices imposed on the Ponca, Congress later allowed those who desired to attempt to re-establish themselves on the homeland along the Niobrara River. Approximately 600 Ponca remained in Oklahoma and became known as the Southern Ponca; while a smaller group (approximately 225) became known as the Northern Ponca. Id. at 6. This was the group that was eventually terminated as a tribe in 1962 during the' period when "federal Indian policy was aimed at the assimilation of American Indians into mainstream society." Id. at 7.
. The statute provides in pertinent part: "Any Indian who commits against the person or property of another Indian or other person any of the following offenses [including kidnapping and rape] within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” 18 U.S.C. § 1153(a) (1994). (emphasis added). The term "Indian” is undefined.
. As previously noted, at the time of St. Cloud's 1989 trial, the Ponca Tribe of Nebraska was well on its way to achieving restoration of federal recognition; and the 1988 Nebraska legislature had already officially recognized the tribe and its members as Native Americans. Ponca Restoration Process at 8-11.
. The record shows that St. Cloud had been sentenced to 20 days in jail for assault of his wife. However, the tribal judge had said that if he would go to alcohol treatment in Omaha, that St. Cloud could avoid going to jail.
. See Miller,
. See Walker,
We are not unmindful of the observation of the Supreme Court of South Dakota 'that defense counsel had many years experience as a practicing attorney and was particularly successful as a criminal defense lawyer. State v. Walker,287 N.W.2d 705 , 706 (S.D.1980). Cf. United States v. DeCoster,487 F.2d 1197 , 1202 n. 21 (D.C.Cir.1973) ('It is important to stress that the issue in ineffectiveness cases is not a lawyer's culpability, but rather his client's constitutional rights, [citations omitted] Even the best attorney may render ineffective assistance, often for reasons totally extraneous to his or her ability.').
. This included a knife that had been recovered. J.M. had described a kitchen or paring-type knife wrapped with white tape as the knife with which she had been threatened by St. Cloud. No weapon matching that description was ever recovered. Police later found a folding-type knife on the rear floor of the car in which St. Cloud had been transported. In his habeas trial testimony, St. Cloud's defense counsel called the recovered knife "radically different" from the knife described by J.M.
Concurrence Opinion
(concurring in result).
I concur in result on Issues I and II. Since we are remanding this case to the trial court on Issue II, I see no reason to reach any of the other issues.