Olesen v. Lee

524 N.W.2d 616, 1994 S.D. LEXIS 176, 1994 WL 671191

• Court: South Dakota Supreme Court
• Decided: November 30, 1994
• Docket: 18520
• Status: Published

Opinions

AMUNDSON, Justice.

Jerry Olesen appeals the circuit court’s order denying him a writ of habeas corpus. We affirm.

FACTS

' In 1986, Jerry Olesen (Olesen) was convicted of the following criminal offenses: two counts of rape in the second degree; two counts of sexual contact with a child under sixteen years of age; and one count of incest. The convictions arise from Olesen’s sexual contact with L.Z., A.T., and L.S., his minor daughters. The underlying facts of this case were presented in Olesen’s direct appeal, State v. Olesen, 443 N.W.2d 8 (S.D.1989). Olesen was sentenced to five consecutive three-year sentences for a total of fifteen years.

In this habeas corpus action, Olesen contends he was denied effective assistance of counsel as guaranteed by the Sixth Amendment of the United States Constitution and Article VI, § 7, of the South Dakota Constitution, in the following respects: (1) Trial counsel failed to properly prepare witnesses to impeach the testimony of or to testify about L.S.’s reputation for truth and veracity; (2) during cross-examination, trial counsel failed to effectively exploit L.S.’s prior inconsistent statements; and (3) trial counsel failed to object to the prosecution’s improper question.

STANDARD OF REVIEW

In order for a convicted defendant to prevail in a habeas corpus proceeding, he must show that counsel’s representation fell below an objective standard of reasonableness and that such deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Hopfinger v. Leapley, 511 N.W.2d 845 (S.D.1994). A conviction will not be set aside simply because the outcome would have been different but for the counsel’s error. Lockhart v. Fretwell, 506 U.S. -, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); Hopfinger, 511 N.W.2d at 847.

‘First, the defendant must show that counsel’s performance 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.’

Iron Shell v. Leapley, 503 N.W.2d 868, 870 (S.D.1993) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693)); see also Lockhart, 506 U.S. -, 113 S.Ct. 838, 122 L.Ed.2d 180.

Courts are highly deferential in scrutinizing trial counsel’s performance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. It is necessary for us to judge the trial counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. Id. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Olesen must overcome the presumption that, under the circumstances, the challenged action “ ‘might be considered sound trial strategy.’ ” Id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694 (quoting Michel v. Louisiana, 350 U.S. 91, 100-01, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). Upon review of the habeas court decision, this Court will not upset factual findings unless they are clearly erroneous. Ashker v. Solem, 457 N.W.2d 473, 476 (S.D.1990).

ANALYSIS

Preparation of Witnesses

Olesen claims L.S.’s testimony was an indispensable component of State’s case. In an attempt to undermine State’s case, Olesen called several witnesses to give their opinion of L.S.’s reputation for truth and veracity. Olesen now argues that his trial counsel was constitutionally ineffective because he did not adequately prepare these witnesses prior to trial.

We approach such allegations with the realization that it is not difficult after contemplation and searching analysis of the record of a trial to find imperfections and irregularities therein and to conclude that both the trial judge and losing counsel might well have done a better job.

High Elk v. State, 344 N.W.2d 497, 501 (S.D.1984) (citations omitted).

There is no question the evidence showed there was minimal pretrial witness preparation by counsel. The record also discloses that at least five defense witnesses testified about L.S.’s reputation for truth or veracity.¹ Although this was not a textbook example of direct examination, the issue of L.S.’s credibility was still presented for the jury’s determination. Under the facts of this case, this lack of preparation cannot be viewed as rising to the level of constitutional deficiency.

These witnesses stated their opinion at trial and, considering the cumulative nature of this evidence, Olesen has not shown a situation where counsel’s performance was so deficient that the result - of the trial is fundamentally unfair or unreliable. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Lockhart, 506 U.S. -, 113 S.Ct. 838, 122 L.Ed.2d 180. The habeas court’s finding that trial counsel had adequately represented Olesen is not clearly erroneous.

Prior Inconsistent Statements

Due to irregularities, three separate grand juries convened before Olesen was brought to trial. After the first grand jury’s indictment had been dismissed and the second grand jury convened, L.S.’s testimony changed. Olesen does not explain what inconsistencies exist but, a review of the record shows at the first grand jury, L.S. testified that Olesen rubbed her vagina in October of 1979 and he had intercourse with her in August, 1979. During the second grand jury proceeding, and at trial, L.S. testified that Olesen not only rubbed her vagina in October, 1979, but engaged in sexual intercourse. No reference was made to the alleged August, 1979, incident at the second grand jury hearing.

Olesen claims his trial counsel did not adequately cross-examine L.S. about these inconsistencies. The record indicates trial counsel did cross-examine L.S. about inconsistencies in her testimony.² At the habeas court trial, trial counsel testified: “I tried to impeach her as best I could and I pushed it as far as I thought I dared, to the jury.” Tidal counsel also stated that at trial he believed the prosecuting attorney’s direct examination of L.S. “pretty much took any sting that I had in my cross-examination of her out of the picture.”

Because of the difficulties inherent in making the evaluation [of an attorney’s performance during trial], a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’

Strickland, 466 U.S. at 689, 104 S.Ct. at 2066, 80 L.Ed.2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 168, 164, 100 L.Ed. 83, 93 (1955)). Olesen’s trial counsel pointed out L.S.’s inconsistencies but testified that in his opinion it would have been detrimental if he “pushed” L.S. too far because the jury would gain sympathy for her. “Trial tactics, not errors, are being argued.” Jenner v. Leapley, 521 N.W.2d 422, 430 (S.D.1994) (citation omitted). “It is not our function to second guess the decisions of experienced trial attorneys regarding matters of trial tactics.” High Elk v. State, 344 N.W.2d 497, 501 (S.D.1984) (citations omitted). “It is always easy to use hindsight to cast doubt on a lawyer’s trial tactics, but a wrong or poorly advised exercise of judgment is not alone enough to support a subsequent claim of ineffective counsel.” Id.

Upon review, this court concludes defense counsel’s decision regarding the breadth of his cross-examination of L.S. on her prior inconsistencies falls within the realm of trial tactics and is not subject to second guessing by this court. Therefore, this was not a decision which would amount to ineffective counsel under the circumstances. Roden v. Solem, 431 N.W.2d 665, 667 (S.D.1988).

Failure to Object

At trial, the defense called numerous witnesses to impeach L.S.’s credibility. Witnesses testified at length about L.S.’s suicidal tendencies, drug usage, family problems, mental and physical maladies, and her lack of veracity. On rebuttal, State called Angini Tapscott, a psychologist, to describe symptoms suffered by women who have been sexually abused as children and to rehabilitate L.S.’s bruised credibility.

Olesen claims his counsel was constitutionally ineffective because he did not object when the prosecution asked Tapscott the following question:

Q Now, based upon your education, your experience in the area of working with sexually abused people and all the time that you have spent with L.S., do you have an opinion as to whether or not L.S. would fabricate a story involving sexual abuse?

A No, she would not.

‘Generally, the making or failure to make motions and objections are trial decisions within the discretion of trial counsel. State v. Anderson, 387 N.W.2d 544 (S.D.1986); State v. Tchida, 347 N.W.2d 338 (S.D.1984). This general rule will not apply, however, where trial counsel’s actions cannot reasonably relate to any strategic decision and are clearly contrary to the actions of competent counsel in similar circumstances.’

Jenner, 521 N.W.2d at 425-26 (quoting Roden v. Solem, 431 N.W.2d 665, 667 (S.D.1988).

SDCL 19-14-9 prohibits witnesses from infringing upon a jury’s function by testifying that another witness has testified truthfully. Based on this rule, trial counsel should have objected to the prosecution’s question because it did not ask for an opinion as to reputation for truthfulness or the lack thereof. “ ‘[I]t is hornbook law that the credibility of a witness and the weight to be given his testimony rests exclusively with the jury.’ ” United States v. Azure, 801 F.2d 336, 340 (8th Cir.1986) (quoting United States v. Rosenberg, 108 F.Supp. 798, 806 (S.D.N.Y.1952), aff'd, 200 F.2d 666 (2d Cir.1952)). “An expert ‘may not go so far as to usurp the exclusive function of the jury to weigh the evidence and determine credibility.’ ” Azure, 801 F.2d at 340 (quoting United States v. Samara, 643 F.2d 701, 705 (10th Cir.), cert. denied, 454 U.S. 829, 102 S.Ct. 122, 70 L.Ed.2d 104 (1981) (quoting United States v. Ward, 169 F.2d 460, 462 (3d Cir.1948))). Therefore, we find that Olesen has satisfied the first prong of the Strickland analysis by showing trial counsel’s performance was deficient. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

We must next determine if this deficient performance was prejudicial to Olesen, causing the result of the trial to be unreliable or fundamentally unfair. Lockhart, 506 U.S. -, 113 S.Ct. at 842, 122 L.Ed.2d at 191. “The defendant must show that there is a 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.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. “ ‘Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture^]’ ” Id. (quoting Strickland). This is not one of those errors.

This question was asked to rebut a litany of defense witnesses questioning L.S.’s credibility. This witness was obviously not called during the State’s case-in-chief. Tapscott was the last witness called to testify at trial. In a perfect trial an objection would have been made, but a criminal defendant is not entitled to a perfect trial, only a fair one. State v. Bennis, 457 N.W.2d 843, 847 (S.D. 1990) (citing Brown v. United States, 411 U.S. 223, 231, 93 S.Ct. 1565, 1570, 36 L.Ed.2d 208, 215 (1973)). Failure to object to a single question asked on rebuttal does not cast a doubt on this proceeding which renders it fundamentally unfair or unreliable.³

The habeas court’s decision is affirmed.

MILLER, C.J., and WUEST and SABERS, JJ., concur. HENDERSON, Retired Justice, who was a member of the Court at the time this action was submitted, dissents. KONENKAMP, J., not having been a member of the Court at the time this case was submitted to the Court, did not participate.

1 . SDCL 19-14-9 provides:

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:

(1) The evidence may refer only to character for truthfulness or untruthfulness, and

(2) Evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

2 . An example of this cross-examination is as follows:

Q Now, [L.S.], at that time (at the grand jury), you told a different story than you told today, didn't you?

A What do you mean?

Q About your father and your sister and everything, you told a different story on November 24th that (sic) you did today?

A Yes, I did.

Q You told the grand jury and there you were under oath, were you not?

A I remember.

Q You took the same kind of oath in front of the grand jury as you did from this lady here today?

A Yes, I did.

Q You swore to tell the truth, nothing but the truth?

A Yes, I did.

Q You didn’t do that, or did you? Did you tell the truth?

A Half-way.

Q Is there such a thing as half-way truth?

A To me there is.

3 . The dissent cites to In Matter of Tidball, 503 N.W.2d 850 (S.D.1993), where the misdeeds which brought Attorney Tidball before this court, occurred in 1989, 1990 and 1991. The trial of Olesen concluded with a guilty verdict on May 15, 1986. The record in this case does not include a claim that Tidball's defense of Olesen was deficient due to Tidball’s alcoholism in 1986. It would go without saying that, if Tidball were "operating with an impotent, deadened, crippled and disabled mind” during the May 1986 trial, Olesen would have presented such a claim in this proceeding. If the alcoholism issue had been presented to the habeas court as an integral part of the ineffective assistance of counsel claim, it would have accordingly been addressed in this decision. To conclude in retrospect that Tid-ball's alcoholism resulted in ineffective assistance of counsel at the time of the 1986 trial is speculative and unsupported by the record.