O'CONNOR v. Leapley

488 N.W.2d 421, 1992 S.D. LEXIS 97, 1992 WL 175130

• Court: South Dakota Supreme Court
• Decided: July 22, 1992
• Docket: 17455
• Status: Published

Opinions

GORS, Circuit Judge.

John S. “Jack” O’Connor (O’Connor) appeals from a trial court order denying his application for a writ of habeas corpus. We affirm.

FACTS

O’Connor, who is no stranger to this court,¹ was convicted of grand theft and conspiracy to commit burglary and grand theft arising out of a quarter million dollar theft on January 3, 1982, from the Minne-haha County Food Stamp Office. The conviction, State v. O’Connor, 378 N.W.2d 248 (S.D.1985), and resentencing, State v. O’Connor, 408 N.W.2d 754 (S.D.1987), were affirmed on direct review.

O’Connor applied for a writ of habeas corpus alleging an improper ex parte submission of a pretrial brief, incompetence of defense counsel, inaccurate descriptions of plea agreements with state witnesses and insufficiency of the evidence. Following an evidentiary hearing, the habeas corpus court entered findings of fact, conclusions of law and an order denying the application.

STANDARD OF REVIEW

Habeas corpus collaterally attacks a final judgment and is not a substitute for direct review. Habeas corpus only reviews jurisdiction, lawfulness of a sentence and whether an incarcerated defendant has been deprived of basic constitutional rights. Goodroad v. Solem, 406 N.W.2d 141, 143-44 (S.D.1987). The habe-as corpus court’s findings of fact and conclusions of law may not be overturned unless they are clearly erroneous. SDCL 15-6-52(a); Satter v. Solem, 422 N.W.2d 425, 427 (S.D.1988); Cowell v. Leapley, 458 N.W.2d 514, 516-17 (S.D.1990).

DECISION

DID THE STATE’S SUBMISSION OF AN EX PARTE PRETRIAL BRIEF DEPRIVE O’CONNOR OF BASIC CONSTITUTIONAL RIGHTS?

Prior to O’Connor’s trial, a deputy state’s attorney submitted an ex parte pretrial brief.² The ex parte submission of the state’s pretrial brief was improper³ because submission of the ex parte pretrial brief violated the Code of Professional Responsibility for lawyers in effect at the time of trial. SDCL 16-18, Appx. (1979 Revision), DR 7-110 contained the following:

DR 7-110 Contact with Officials.

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(B) In an adversary proceeding, a lawyer shall not communicate ... as to the merits of the cause with a judge ... before whom the proceeding is pending, except:

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(2) In writing if he promptly delivers a copy of the writing to opposing counsel or to the adverse party if he is not represented by a lawyer.

The trial judge did not commit any ethical⁴ or legal⁵ violation because a trial court has no duty to ascertain whether briefs have been properly served and there is no indication that the trial judge in this case knew that the state’s pretrial brief had not been served on opposing counsel.

O’Connor argues that the submission of the ex parte pretrial brief was error as a matter of law and requires reversal of his conviction without showing prejudice. If an ex parte communication is invited or initiated by the judge, no prejudice needs to be shown.⁶ State v. Barker, 227 Neb. 842, 420 N.W.2d 695, 699 (1988). However, where an ex parte communication is not invited or initiated by the judge, reversible error occurs only if the adverse party is prejudiced by an inability to rebut the facts communicated and if improper influence appears with reasonable certainty. State ex rel. Irby v. Israel, 100 Wis.2d 411, 302 N.W.2d 517, 524-25 (App.1981).⁷

Since the trial court did not invite or initiate submission of the state’s ex parte pretrial brief, O’Connor must show prejudice. The brief dealt with pretrial eviden-tiary issues and no facts were communicated to a jury. O’Connor raises an innuendo that the trial court must have been influenced because the trial court ruled adverse to O’Connor. At the habeas corpus trial, the trial judge testified he was not influenced by the state’s ex parte pretrial brief. Faced with the contrast between the trial judge’s testimony and O’Connor’s innuendo, the habeas corpus court found that the trial court was not improperly influenced by the state’s ex parte pretrial brief. This finding is not clearly erroneous.

O’Connor’s contentions concerning defense counsel’s failure to object to instructions and to propose alternatives to instructions, alleging inaccurate descriptions of plea agreements by state witnesses Se-veras and Cole and regarding insufficiency of the evidence are without merit.

Affirmed.

MILLER, C.J., and JOHNS, Circuit Judge, concur. ' HENDERSON and SABERS, JJ., concur specially. GORS, Circuit Judge for WUEST, Justice, disqualified. JOHNS, Circuit Judge for AMUNDSON, Justice, disqualified.

1 . O’Connor appears here for the ninth time. State v. O’Connor, 84 S.D. 415, 172 N.W.2d 724 (1969); State v. O’Connor, 84 S.D. 449, 173 N.W.2d 48 (1969); State v. O’Connor, 84 S.D. 638, 175 N.W.2d 604 (1970); State v. O'Connor, 86 S.D. 294, 194 N.W.2d 246 (1972); State v. O’Connor, 87 S.D. 77, 203 N.W.2d 183 (1973); State v. O'Connor, 265 N.W.2d 709 (S.D.1978); State v. O'Connor, 378 N.W.2d 248 (S.D.1985); State v. O’Connor, 408 N.W.2d 754 (S.D.1987). The last two citations refer to direct appeals in this case. The prior appeals are totally unrelated to this case.

2 .The state’s ex parte pretrial brief argued that hearsay statements of an accomplice, Jim Se-verns, to Carol Monson, a co-conspirator, which were subsequently related to Margaret McCut-cheon could be used to corroborate Severn’s testimony.

3 . The habeas corpus court found that although submission of the ex parte pretrial brief was improper, O'Connor was not prejudiced and therefore his right to effective assistance of counsel was not violated.

4 . The Canons of Judicial Ethics in effect at the time of the trial appeared in SDCL 16-2, Appx. (1979 Revision), Canon 3, contained the following:

A Judge Should Perform the Duties of His Office Impartially and Diligently

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A. Adjudicative Responsibilities.

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(4) A judge should ..except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.

5 .SDCL 22-11-17 makes receipt of an ex parte communication a class 1 misdemeanor. Knowledge that the communication is ex parte and intent to violate the law are required. Neither appear in the record.

6 . Prejudice is implicit in the judge’s invitation or initiation of an improper ex parte communication.

7 . In Moore v. Moore, 809 P.2d 261, 264 (Wyo.1991), the court required a showing of manifest injustice.