Honomichl v. Leapley

498 N.W.2d 636, 1993 S.D. LEXIS 31, 1993 WL 103430

• Court: South Dakota Supreme Court
• Decided: April 7, 1993
• Docket: 17762
• Status: Published

Opinions

MILLER, Chief Justice.

Michael Honomichl was convicted of first-degree manslaughter arising out of the murder of Randy Caldwell by Honom-ichl and James Weddell. This court affirmed Honomichl’s conviction on direct appeal.¹ Honomichl then sought habeas corpus relief. After an evidentiary hearing, Circuit Judge Tapken filed extensive findings of fact and conclusions of law and denied Honomichl’s petition. Honomichl appeals. We affirm.

Our “scope of review in habeas corpus proceedings is limited, since the remedy is in the nature of a collateral attack upon a judgment.” Goodroad v. Solem, 406 N.W.2d 141, 142 (S.D.1987). We use habeas corpus to review “in certain cases, whether an incarcerated defendant has been deprived of basic constitutional rights.” Id. at 144.

ISSUE I

WHETHER STATE IMPROPERLY EXERCISED ITS PEREMPTORY CHALLENGE TO REMOVE ELLA HUAPAPI, AN AMERICAN INDIAN, FROM HO-NOMICHL’S JURY PANEL THEREBY DENYING HIM THE EQUAL PROTECTION OF LAW.

On March 5, 1986, Honomichl and his co-defendants, Weddell and Enos Weston, were indicted for second-degree murder and first-degree manslaughter. The prosecutor was Gary Conklin, the Charles Mix County State’s Attorney. Honomichl and his two co-defendants were represented by separate counsel. James A. Haar was Ho-nomichl’s court-appointed counsel.² Lee Tappe was the attorney for co-defendant Weddell. Kenneth Cotton, attorney for co-defendant Weston, was lead defense counsel during voir dire, although all defense attorneys participated.³

On the first day of voir dire, after Ella Huapapi, an American Indian, was examined, State exercised one of its peremptory challenges on Huapapi. Joseph McBride, an American Indian, was examined and struck for cause, without objection, when he indicated that he knew all of the defendants and would find it difficult to serve on the jury and to be fair and impartial.

On the second day of trial, the day on which Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), was decided, Bertha Hare, an American Indian, was examined and struck for cause, without objection, when she indicated that she had a hearing problem and had known the defendants since they were small boys. After the prosecutor examined Ben Ca-dotte, an American Indian, he attempted to remove Cadotte for cause as Cadotte had a “disorderly” pending in Charles Mix County at the time. When the prosecutor was unsuccessful, he exercised a peremptory challenge to remove Cadotte. Honomichl concedes that this peremptory challenge was not done with a discriminatory intent. The prosecutor also used peremptory challenges on non-Indian jurors. It is the removal of Huapapi from the jury panel by State through the use of its peremptory challenge which gives rise to Honomichl’s Batson challenge.

It has long been established that a defendant is denied equal protection of law when members of his race are purposely excluded from the jury. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). Further, the Equal Protection Clause is violated if even one juror is struck for a race based reason. United States v. Battle, 836 F.2d 1084, 1086 (8th Cir.1987).

On the first day of Honomichl's voir dire, April 29, 1986, in order for Honomichl to establish that he had been denied equal protection of law due to the exclusion of members of his race from the jury, he had to prove systematic exclusion of members of his race from the venire panel. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). However, on Honomichl’s second day of voir dire, April 30, 1986, the method of proof changed when the United States Supreme Court said that a defendant could now “establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.” Batson, 476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87; State v. Farmer, 407 N.W.2d 821, 823 (S.D.1987).

The rule in “Batson applies to all cases not yet final when it was decided.” Randolph v. Delo, 952 F.2d 243, 245 n. 2 (8th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1967, 118 L.Ed.2d 568 (1992) (citing Griffith v. Kentucky, 479 U.S. 314, 316, 107 S.Ct. 708, 709, 93 L.Ed.2d 649, 654 (1987)). A case is final when “a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari [expired].” Griffith, 479 U.S. at 321 n. 6, 107 S.Ct. at 712 n. 6, 93 L.Ed.2d at 657 n. 6. “Batson should not be applied retroactively on collateral review of convictions that became final before [Batson ] was announced.” Allen v. Hardy, 478 U.S. 255, 258, 106 S.Ct. 2878, 2879-80, 92 L.Ed.2d 199, 204 (1986). Honomichl’s trial was in progress when Batson was decided, so a Batson inquiry is required in this collateral review of Honomichl’s conviction.

To establish a prima facie case of purposeful discrimination,

the defendant first must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.

Batson, 476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88 (citations omitted). The prima facie requirements of Batson were recently relaxed when the Supreme Court held a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race. Powers v. Ohio, 499 U.S. -, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). The race of the defendant and the race of jurors peremptorily challenged are now circumstances for the trial court to consider in determining whether defendant raised an inference that State used its peremptory challenges for race-based reasons. Id. “The ultimate burden of persuading the trier of fact that the [prosecutor] intentionally discriminated against [Honomichl] remains at all times with [Honomichl].” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 256, 101 S.Ct. 1089, 1093, 1095, 67 L.Ed.2d 207, 215, 217 (1981);⁴ Farmer, 407 N.W.2d at 823.

Honomichl and his co-defendants are American Indians. Their victim was Caucasian. Two potential American Indian jurors were challenged for cause and the prosecutor peremptorily challenged two others. The habeas court found it relevant that the final jury panel of twelve jurors and one alternate contained no American Indians, although the reasons for removing most of them from the jury panel were apparent. The habeas court found that Honomichl had raised an inference of discrimination and had established his prima facie case. We assume, without deciding, that the habeas court was correct.

Honomichl, by establishing his prima facie case, established a rebuttable presumption of purposeful discrimination. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094, 67 L.Ed.2d at 216. State can rebut this presumption by articulating a “clear and reasonably specific” race neutral explanation for using its peremptory challenge. Batson, 476 U.S. at 97, 98 n. 20, 106 S.Ct. at 1723, 1724 n. 20, 90 L.Ed.2d at 88 n. 20 (citing Burdine, 450 U.S. at 258, 101 S.Ct. at 1096, 67 L.Ed.2d at 218); Farmer, 407 N.W.2d at 823. This explanation does not have to “rise to the level justifying exercise of a challenge for cause.” Batson, 476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88; Farmer, 407 N.W.2d at 823.

It is settled law in this country that “[u]nless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Hernandez v. New York, 500 U.S. -, -, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395, 406 (1991). “While it is true that striking a [minority] venireperson for racial reasons is always violative of the Constitution, it is not true that all peremptory strikes of [minority] venirepersons are for racial reasons.” United States v. Lewis, 892 F.2d 735, 736 (8th Cir.1989).

Honomichl asserts the habeas court was clearly erroneous when it determined State rebutted the presumption of purposeful discrimination. “A finding of intentional discrimination is a finding of fact entitled to appropriate deference by a reviewing court.” Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21, 90 L.Ed.2d at 89 n. 21; Farmer, 407 N.W.2d at 823. “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518, 528 (1985). “In evaluating the race-neutrality of an attorney’s explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law.” Hernandez, 500 U.S. at -, 111 S.Ct. at 1866, 114 L.Ed.2d at 405-06.

Honomichl cites this court to more than a dozen cases discussing examples of reasonably clear race neutral reasons for State’s exercise of peremptory challenges on minority venirepersons. However, in every one of those cases the defendants had first raised the issue at trial, regardless of whether the trial was conducted under the Swain or Batson guidelines.⁵ Honomichl raised no objection at his trial. Only one of Honomichl’s authorities, discussed infra, involves collateral review of a conviction. All of the others involve Batson issues addressed on direct appeal. In every direct appeal case the prosecutors were asked to, and did, offer reasons at trial for the exercise of the questioned peremptory challenges. Honomichl’s prosecutor, Conklin, was not asked to offer, and did not offer at trial, reasons for the exercise of his peremptory challenges.

The only habeas case cited by Honomichl is Harrison v. Ryan, 909 F.2d 84 (3rd Cir.), cert. denied sub nom. Castille v. Harrison, 498 U.S. 1003, 111 S.Ct. 568, 112 L.Ed.2d 574 (1990). Harrison noted that in light of the facts that “defense counsel timely objected to the use of peremptory challenges, the number of peremptory challenges exercised against Blacks was so great, [and] the race neutral reasons given for striking other black jury venirepersons were so weak, ...” id. at 87-88, the prosecutor’s inability to recall a race neutral reason for striking the sixth juror did not sufficiently “satisfy the Batson requirement that the ‘prosecutor ... must articulate a neutral explanation related to the particular case to be tried.’ ” Id. at 87 (citing Batson, 476 U.S. at 98, 106 S.Ct. at 1724, 90 L.Ed.2d at 88). Such a situation does not describe the case before this court.

Batson was decided before Harrison’s or Honomichl’s case was final. Harrison’s prosecutor used six of his eight perempto-ries; all were used on Blacks. Conklin, Honomichl’s prosecutor, exercised on Indians as well as on non-Indians. Harrison objected AT TRIAL to the prosecutor’s exercise of peremptory challenges. Honom-ichl did not. Harrison’s Batson evidentiary hearing was held several years after trial as was Honomichl’s. Harrison’s prosecutor was asked at the hearing, as was Ho-nomichl’s, to explain the use of his peremptory challenges. Harrison’s prosecutor gave reasons “which were not strong” for five of six of his exercises. The strength of Conklin’s reason for using a peremptory on the Indian Ben Cadotte is beyond question. Harrison’s prosecutor could not articulate a reason why he would have exercised in one particular instance though he thought it could have been due to the prospective juror’s age.

Conklin did articulate a reason for exercising on Huapapi. During the habeas proceeding, Conklin testified that prior to trial he researched the background of each prospective juror. He met with the sheriff and his deputies. As a result, he entered research' notes and question marks alongside several names on the jury list. Conk-lin testified that he put a question mark by Ella Huapapi’s name because he was not sure she would be a fair and impartial juror; that he had a “gut feeling” about her.⁶

During the habeas proceeding, it was revealed that John Huapapi, a relative of Ella Huapapi, had recently been prosecuted by Conklin in his capacity as the Charles Mix County State’s Attorney. Conklin testified that at the time he exercised his peremptory on Ella Huapapi, he did not think he realized this fact; rather, it was the question mark beside her name which caused him to strike her. The habeas judge stated in his memorandum opinion that

even though Mr. Conklin may not have realized the significance of the Huapapi name at the time of jury selection, there was apparently a spark in his memory that was struck upon encountering the Huapapi name and this was sufficient to cause him to question the impartiality of Ms. Huapapi.

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The fact that the name ‘Huapapi’ raised enough of a concern to cause Mr. Conklin to place a question mark (“?”) beside the name after he did some investigation has no relation at all to the fact that Ms. Huapapi is a Native American. The name that caused concern to Mr. Conklin could just as easily have belonged to a Caucasian or any other ethnic group as it did to a Native American. The mere coincidence that the name belonged to the only remaining Native American on the jury panel is insufficient to conclude that the exclusion was based on a discriminatory purpose.

“If the trial court believes the prosecutor’s explanation, a reviewing court ordinarily should give this credibility finding ‘great deference.’ ” United States v. Roan Eagle, 867 F.2d 436, 441 (8th Cir.), cert. denied, 490 U.S. 1028, 109 S.Ct. 1764, 104 L.Ed.2d 199 (1989); Hernandez, 500 U.S. at -, 111 S.Ct. at 1868, 114 L.Ed.2d at 408-09.

“[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors SOLELY on account of their race....” Batson, 476 U.S. at 89, 106 S.Ct. at 1719, 90 L.Ed.2d at 83 (emphasis added). We find Conklin’s exercise of the peremptory on Huapapi is not solely on account of her race. We reiterate that Conklin’s burden here is “only [to] produce admissible evidence which would allow the trier of fact rationally to conclude that the [challenge] had not been motivated by discriminating animus_ [To] require [Conklin] to introduce evidence which, in the absence of any evidence of pretext, would persuade the trier of fact that the ... action was lawful ... exceeds what properly can be demanded to satisfy a burden of production.” Burdine, 450 U.S. at 257, 101 S.Ct. at 1096, 67 L.Ed.2d at 218 (emphasis in original). The habeas court’s determination that the prosecutor proffered a neutral explanation does not leave us “with the definite and firm conviction that a mistake has been committed.” Bessemer City, 470 U.S. at 573, 105 S.Ct. at 1511, 84 L.Ed.2d at 528.

Interestingly, we note that Cotton, lead counsel for the defense during voir dire, testified at the habeas proceeding that during the course of his voir dire examination a lot of time was spent talking about racial prejudice, since the victim was white and the defendants were American Indians. Cotton felt he was going to get a fair trial from the jury when he passed the panel for cause. We note that Cotton himself may have exercised a peremptory on Huapapi as he testified he had doubts as to whether he would leave Huapapi on the panel because she was related to several of the witnesses who were involved in the feud which precipitated the victim’s death. Of course, Cotton did not have to resolve his doubts against Huapapi, as State exercised first.

Once State offers a neutral explanation, “the factual inquiry proceeds to a new level of specificity.” Burdine, 450 U.S. at 255, 101 S.Ct. at 1095, 67 L.Ed.2d at 216. Honomichl must show the proffered reasons are unworthy of credence by the court in that they are pretextual. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095, 67 L.Ed.2d at 217; United States v. Jimmie Wilson, 884 F.2d 1121, 1124 (8th Cir.1989); United States v. George Wilson, 816 F.2d 421, 423 (8th Cir.1987), cert. denied, 493 U.S. 827, 110 S.Ct. 92, 107 L.Ed.2d 57 (1989).

The court reporter’s notes from the first and much of the second day of voir dire were inadvertently lost prior to the habeas hearing. As a result, only a partial transcript could be made in preparation for the habeas evidentiary hearing. Honom-ichl asserts that without a complete transcript he is unable to counter the proffered neutral explanation by State, thus denying him his constitutional rights. Honomichl concedes, although he tries to explain the concession away, that during the habeas proceeding full cross-examination of the trial lawyers reconstructed the events of jury selection and the examination of the four potential American Indian jurors. The inadvertent loss of the voir dire notes has not resulted in any harm to Honomichl’s rights. We note that absent the complete transcript, Honomichl was able to establish a prima facie Batson case to the satisfaction of the habeas court. “ ‘A mere technically incomplete record, involving no substantial or significant omissions, will not be sufficient’ to order a new trial.” State v. Dupris, 373 N.W.2d 446, 449 (S.D.1985). The habeas court’s determination that Honomichl has no Batson claim is affirmed.

Honomichl also raises the following issues: 1) Whether he was denied his right to a fair trial when the trial court failed to give an accomplice instruction to the jury and when the trial court considered certain prior convictions during sentencing; and 2) Whether he was denied effective assistance of counsel when a Batson issue was not raised at trial or on direct appeal and by the defense strategy used at trial and by his counsel’s trial decisions regarding motions and objections.

We have carefully considered Honomichl’s arguments and assignments of error and find them to be without merit. State v. Esslinger, 357 N.W.2d 525, 533 (S.D.1984).

Affirmed.

WUEST and AMUNDSON, JJ., concur. HENDERSON and SABERS, JJ., dissent.

1 . State v. Honomichl, 410 N.W.2d 544 (S.D.1987). In that opinion, Honomichl’s sentence was incorrectly noted as eighty years in the South Dakota State Penitentiary. Honomichl was sentenced to sixty years. Honomichl’s co-defendant, Weddell, was sentenced to eighty years.

2 . Honomichl has different counsel for this ha-beas action.

3 . The trial court granted Weston's motion for judgment of acquittal before the case was submitted to the jury.

4 . Although Burdine discussed discrimination of minorities or gender-based discrimination in violation of Title VII, this case must be read in conjunction with Batson, particularly in view of the fact that Batson cites Burdine. See State v. Antwine, 743 S.W.2d 51, 63 (Mo.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988); Jones v. Jones, 938 F.2d 838, 844 (8th Cir.1991); United States v. Jimmie Wilson, 884 F.2d 1121, 1124 (8th Cir.1989).

5 . In one of the cited cases, it is unclear whether an objection was made at trial, though in light of the fact that the prosecutor there explained his use of the challenge, it is reasonable to assume that objections were raised which brought forth the explanation.

6 . Honomichl cites this court to United States v. Horsley, 864 F.2d 1543 (11th Cir.1989), which discusses the prosecutor’s "gut feeling." This peculiar decision arose from a direct appeal. There the defendant raised an objection at trial to the prosecution’s exercise of its peremptory challenges. The prosecutor then expressed that he had a "gut feeling” about a particular individual. The trial court accepted this explanation because Batson had not yet been decided. The next day Batson was decided and the trial court asked, before impaneling the jury, if the prosecutor had anything to add. The prosecutor declined to offer additional reasons. The trial court then decided that no prima facie case of discrimination had been made by the defendant. The appeals court remanded for a determination of whether the defendant had even made a prima facie Batson case. On remand, however, the court determined the prosecutor could offer nothing more than his unsupported “gut feeling” to rebut the prima facie case, in the event one was established, even though, the court determined that a "gut feeling” standing alone was not sufficient to rebut a prima facie Batson case. That court’s decision to allow the defendant on remand to offer further evidence in an effort to establish his prima facie case, while forbidding the prosecutor an equal opportunity to offer further explanation to rebut the prima facie case, if established, makes little sense and does even less to further the interests of justice. In any event, in the instant case we are not presented with a "gut feeling” standing alone.