Primeaux v. Leapley

502 N.W.2d 265, 1993 S.D. LEXIS 74, 1993 WL 220948

• Court: South Dakota Supreme Court
• Decided: June 23, 1993
• Docket: 17889
• Status: Published

Opinions

WUEST, Justice.

Primeaux was convicted of second-degree murder and two counts of aggravated assault. His convictions were affirmed by this court in State v. Primeaux, 328 N.W.2d 256 (S.D.1982).

Primeaux then filed this writ of habeas corpus in circuit court. He claims his trial counsel was ineffective by failing to insist the expert witness test Primeaux more thoroughly, by failing to obtain an opinion from a second or third expert, by attempting to prove insanity through the trial testimony of lay witnesses and by “essentially abandoning” the insanity defense in closing argument. He also claims he was denied due process when the habeas court refused to provide him with a psychiatric expert.

After a hearing, the circuit court denied habeas corpus relief. Primeaux appeals. We affirm.

I.

PRIMEAUX WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

The United States Supreme Court has set forth a two-step test to determine whether a defendant has been denied effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). This court adopted the Strickland test to judge whether a defendant received effective assistance of counsel as guaranteed by Article VI, § 7 of the Constitution of South Dakota. Luna v. Solem, 411 N.W.2d 656 (S.D.1987); Woods v. Solem, 405 N.W.2d 59, 61 (S.D.1987). Primeaux therefore must prove both deficient representation and prejudice.

“ ‘The right to counsel is the right to effective assistance of counsel.’ ” Miller v. Leapley, 472 N.W.2d 517, 518 (S.D.1991) habeas corpus granted in part on other grounds, Civil No. 91-1017, 1993 WL 172904 (D.S.D. March 24, 1993); (quoting Strickland, 466 U.S. at 686, 104 S.Ct. at 2063, 80 L.Ed.2d at 692 (citing McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763, 773 n. 14 (1970))).

“When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. “Because of the difficulties inherent in making the evaluation, 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.’ ” Id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95 (citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83, 93 (1955)).

Miller, 472 N.W.2d at 518.

Primeaux was arraigned November 9, 1981 and the court granted his request for an independent psychiatric examination. The defense selected and retained Dr. David W. Bean, Chairman of the Department of Psychiatry at the University of South Dakota School of Medicine. Pri-meaux was examined by Dr. Bean on November 18, 1981 for approximately two hours. Trial counsel’s associate held a meeting with Dr. Bean that same day to discuss his findings. At that meeting, Dr. Bean told the attorney he found Primeaux was competent to stand trial and that he found no signs or symptoms of mental illness but did find indications Primeaux was suffering from “voluntary alcoholic intoxication” at the time the stabbings occurred. Additionally, Dr. Bean requested Primeaux be examined by a neurologist, Dr. George C. Flora, M.D. for a possible seizure disorder. Dr. Bean submitted a written report to trial counsel on December 4, 1981. The report from Dr. Flora was submitted December 7, 1981. Dr. Flora’s clinical impressions indicated “no evidence of focal neurological deficit nor seizure pattern” and “chemical dependency, mixed type, severe.” Trial counsel then contacted Dr. Darrell Stephenson to discuss Pri-meaux’s mental and neurological reports.

At trial, the defense elected not to call Dr. Bean. Dr. Bean was called by the prosecution to rebut opinion testimony from lay witnesses regarding Primeaux’s sanity.

In his habeas action, Primeaux claims the examination by Dr. Bean was inadequate and trial counsel should have insisted the expert test Primeaux more thoroughly. He presents a laundry list of tests he claims should have been done but presents no evidence they were not performed. Nor does he present any evidence the tests were necessary for a competent psychiatric examination.

Trial counsel and his associate found Pri-meaux “lucid, knowing and intelligent” during their many interviews with him. Both thought his mental faculties were “in good order.” In short, there was nothing in Primeaux’s background, in the information he gave counsel, in his behavior with counsel or in the medical and psychiatric reports to indicate that additional psychiatric testing should be pursued. When there are no grounds for doubting the accuracy of a psychiatric report, there is no obligation for counsel to seek further evaluation. Mikel v. State, 550 S.W.2d 863, 869 (Mo.Ct.App.1977). Counsel is not required to obtain repeat examinations until an advantageous report is acquired. People v. Webster, 54 Cal.3d 411, 285 Cal.Rptr. 31, 814 P.2d 1273 (1991) cert. denied, — U.S. -, 112 S.Ct. 1772, 118 L.Ed.2d 431 (1992); Pruett v. Commonwealth, 232 Va. 266, 351 S.E.2d 1 (1986); Weaver v. State, 432 N.E.2d 5 (Ind.1982).

Dr. Bean found Primeaux “logical and coherent” and “of average intellectual ability.” Primeaux expressed no “depressive symptomatology;” in fact, Primeaux denied depressive symptoms to Dr. Bean. He now asserts defense counsel should have conducted an investigation to provide the expert with family and historical background which Primeaux asserts left him in a “severe state of depression.” Trial counsel could not give information he did not possess. The reasonableness of counsel’s decision to investigate insanity depended on the information Primeaux supplied. United States v. Miller, 907 F.2d 994, 998 (10th Cir.1990); United States v. Soto-Hernandez, 849 F.2d 1325, 1329 (10th Cir.1988); State v. Pound, 793 S.W.2d 505, 509 (Mo.1990). “[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.” Strickland, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 696. Where Primeaux did not give information to counsel, counsel could neither investigate it nor pass it on to the expert.

Primeaux next asserts his trial counsel should have sought second and third psychiatric opinions as to his sanity. However, trial counsel was legitimately concerned additional examinations would put more “ammunition in the hands of the prosecuting attorney.” Counsel testified he wanted to avoid handing the prosecution an assembly of experts to parade before the jury, each and every one declaring Pri-meaux was sane. The decision was a strategic trial tactic.

Primeaux further claims that counsel was ineffective in trying to prove his insanity defense through the use of lay witnesses. By presenting witnesses who had observed Primeaux’s behavior the day of the murder, counsel tried to show that despite the expert’s opinion Primeaux knew right from wrong, the witnesses saw bizarre behavior the doctor did not observe. In cross-examination of Dr. Bean, counsel attempted to elicit testimony from the Doctor that a person could panic and temporarily “snap.” Counsel’s decision to use lay testimony to establish temporary insanity was a strategic trial decision; his only other choice was to abandon the insanity defense or obtain another expert opinion, thereby risking additional expert testimony that Primeaux was sane. We will not second-guess counsel’s trial tactics. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694; Aliberti v. Solem, 428 N.W.2d 638, 641 (S.D.1988).

Primeaux also claims counsel “abandoned” the insanity defense in closing argument. A close reading of the trial court record shows counsel clearly argued insanity to the jury in his closing statement. The insanity defense was not abandoned. We find nothing in the performance of trial counsel that shows ineffective assistance of counsel in Primeaux’s defense. Counsel’s decisions were strategic judgments which we will not second-guess. It is the opinion of this court that under the difficult circumstances of this case, Primeaux’s trial counsel did an adequate job in representing his client at trial.

II.

PRIMEAUX WAS NOT DENIED DUE PROCESS OF LAW BY THE CIRCUIT COURT’S REFUSAL TO APPOINT A PSYCHOLOGIST IN HIS HABEAS PROCEEDING.

The habeas court denied Primeaux’s motion to appoint a psychologist for his hearing. He asserts the testimony of a forensic psychologist, a Dr. Rypma, would show the examination by Dr. Bean was inadequate. Primeaux now asserts the denial of a court-appointed psychologist to help him establish his habeas claim was a violation of his right to due process under the Fourteenth Amendment.

Primeaux bases his claim on Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Primeaux stretches Ake too far. Ake holds that a state must provide an indigent defendant with psychiatric assistance at the guilt phase of a trial when the defendant has demonstrated his sanity may be a factor in determining guilt. Ake, 470 U.S. at 83, 105 S.Ct. at 1096, 84 L.Ed.2d at 66.

We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the States the decision on how to implement this right.

Id.

Primeaux did have access to psychiatric assistance at the guilt phase of his trial. In fact, the State went further than required by Ake and gave Primeaux funds for a psychiatrist of his own choosing rather than a court-appointed expert.

The Seventh Circuit Court of Appeals rejected a similar claim in upholding a district court’s conclusion there was no violation of due process when a court denied appointment of a psychiatrist to support a prisoner’s claim of “incompetent” diagnosis by psychiatrists during the guilt phase of trial. Silagy v. Peters, 905 F.2d 986, 1012 (7th Cir.1990). In rejecting Silagy’s claim the court said:

[W]e would be reluctant to open up this type of Ake claim to a battle of experts in a “competence” review ... — a never ending process.... A conclusion to the contrary would require this Court and other federal courts to engage in a form of “psychiatric medical malpractice” review as part-and-parcel of its collateral review of state court judgments. The ultimate result would be a never-ending battle of psychiatrists appointed as experts for the sole purpose of discrediting a prior psychiatrist’s diagnosis. We do not believe this was the intent of the Court in Ake when it held that indigent defendants who raise a defense of insanity are entitled to psychiatric assistance in the preparation of their defense.

Id. at 1013. The reasoning of Silagy on this issue was adopted by the Ninth Circuit Court of Appeals in Harris v. Vasquez, 949 F.2d 1497, 1517 (9th Cir.1990) cert. denied, — U.S. -, 112 S.Ct. 1275, 117 L.Ed.2d 501 (1992). The Harris Court said: “Allowing such battles of psychiatric opinions during successive collateral challenges to a [verdict] would place federal courts in a psycho-legal quagmire resulting in the total abuse of the habeas process." Id. at 1518 (emphasis added).

This quagmire is exactly what the habe-as court was referring to in its order denying funds for appointment of a psychologist at Primeaux’s hearing: “[Appointment of expert witnesses as requested by the Applicant would serve no purpose but to deteriorate the trial of this matter into a trial of experts and not address the Constitutional question as to ineffective assistance of counsel.”

Primeaux had no constitutional right to a court-funded expert for his habeas corpus hearing; therefore, his due process rights were not violated by the habeas court’s order denying appointment of a psychologist.

III.

THE STATE OF SOUTH DAKOTA HAD JURISDICTION OVER PRIMEAUX.

Primeaux asserts the south housing district of Wagner is in Indian Country and therefore the State had no jurisdiction to arrest him without the consent of the tribe and an extradition order. First, he has made no showing the south housing district is in Indian Country. Thus, he has failed in his burden of proof. See Nachtigall v. Erickson, 85 S.D. 122, 178 N.W.2d 198 (1970); State v. Brech, 84 S.D. 177, 169 N.W.2d 242 (1969). Secondly, Primeaux was arrested by tribal police who then turned him over to State authorities. “Where jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain the offender and transport him to the proper authorities.” Duro v. Reina, 495 U.S. 676, 697, 110 S.Ct. 2053, 2066, 109 L.Ed.2d 693, 711 (1990) (holding the criminal enforcement power of tribes does not extend to tribal nonmember Indians) supersession by statute noted sub nom., Mousseaux v. United States Comm’n of Indian Affairs, 806 F.Supp. 1433 (D.S.D.1992).¹

Even were we to find Primeaux’s arrest was not legal, and we do not, his conviction would stand under the Ker-Frisbe rule.² Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Winckler, 260 N.W.2d at 363. We decline Primeaux’s request to overturn Winckler to the extent it adheres to the Ker-Frisbie rule. It is established law in this state that even an illegal arrest does not render a subsequent conviction void. State v. Spotted Horse, 462 N.W.2d 463, 468 (S.D.1990) cert. denied, — U.S. -, 111 S.Ct. 2041, 114 L.Ed.2d 125 (1991); Davis v. Muellar, 643 F.2d 521, 527 (8th Cir.1981) cert. denied, 454 U.S. 892, 102 S.Ct. 387, 70 L.Ed.2d 206 (1981); Winckler, 260 N.W.2d at 363.

Primeaux’s final argument is that the knife found on his person should not have been admitted into evidence because it was the result of an illegal search as the State had no jurisdiction in the Wagner housing area. He did not argue this issue at his habeas hearing below and so may bring it before this court only under the plain error rule. SDCL 23A-44-15. The arrest of Pri-meaux was legal. Tribal police detained Primeaux and held him for State authorities. The search of Primeaux’s person was made incident to a lawful arrest; therefore, the knife was properly admitted into evidence.

MILLER, C.J., concurs. SABERS, J., concurs specially. AMUNDSON, J., dissents in part and concurs in part. HENDERSON, J., dissents.

1 . We note Congress subsequently passed 25 U.S.C. § 1301 which expands the jurisdiction of Indian tribes to criminal jurisdiction over nonmember Indians as defined in § 1153 of Title 18. A federal district court has applied the statute retroactively. Mousseaux, 806 F.Supp. at 1443. The statute does not address tribal power to detain or turn over a person who has committed an offence in another jurisdiction.

2 . The Ker-Frisbe rule, as expressed by this court in State v. Winckler, 260 N.W.2d 356, 363 (S.D. 1977) (citing 4 Wharton’s Criminal Procedure § 1484 at 39 (1957)) states:

When a person accused of a crime is found within the territorial jurisdiction wherein he is so charged and is held under process legally issued from a court of that jurisdiction, neither the jurisdiction of the court nor the right to put him on trial for the offense charged, is impaired by the manner in which he was brought from another jurisdiction, whether by kidnapping, illegal arrest, abduction, or irregular extradition proceedings.