Woods v. Solem

405 N.W.2d 59, 1987 S.D. LEXIS 266
CourtSouth Dakota Supreme Court
DecidedApril 22, 1987
Docket15366-a-FEH
StatusPublished
Cited by48 cases

This text of 405 N.W.2d 59 (Woods v. Solem) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Woods v. Solem, 405 N.W.2d 59, 1987 S.D. LEXIS 266 (S.D. 1987).

Opinions

. HENDERSON, Justice.

HABEAS CORPUS/APPEAL

This is an appeal from an order denying petitioner-appellant Wayne Woods (Woods) habeas corpus relief. Woods contends that his trial counsel was ineffective in that

(1) Woods was not advised to testify; and
(2) accomplice instructions were not requested regarding Ruben Garcia.

Woods is now serving a life imprisonment sentence on a conviction of murder. This conviction is for premeditated murder and not for murder committed in furtherance of a felony.1 We affirm.

FACTS

The background facts of this case appear fully in our prior opinion, State v. Woods, 374 N.W.2d 92, 94-95 (S.D.1985) (Woods I). Reference is made to all of those facts, plus the pertinent facts set forth in this decision.

On January 22, 1986, Woods requested habeas corpus relief. On February 4,1986, the trial court issued an Order Appointing Attorney for purposes of the Writ of Habe-as Corpus. The court issued a Writ of Habeas Corpus on February 28, 1986. A hearing was held on April 4, 1986. Woods alleged that his trial counsel, Kenn Pugh (who also acted as Woods’ counsel on appeal), was ineffective. The trial court, by Order filed May 8, 1986, denied Woods habeas corpus relief. On May 13,1986, the same court issued a Certificate of Probable Cause. Woods appeals from the May 8 Order. Both Woods and State couch two issues to be considered, word for word, in their respective briefs, which we treat seri-atim.

DECISION

I.

WAS TRIAL COUNSEL’S ADVICE TO ' DEFENDANT THAT HE NOT TAKE THE STAND A FAILURE TO EXERCISE GOOD FAITH JUDGMENT?

Those accused are guaranteed the right to counsel. U.S. Const, amend. VI; S.D. Const, art. VI, § 7; Jones v. State, 353 N.W.2d 781, 783 (S.D.1984). “[T]he controlling case on ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” State v. Anderson, 387 N.W.2d 544, 546 (S.D.1986) (Henderson, J., specially [61]*61concurring). See also Jones, 353 N.W.2d at 784-85. We 'have stated that the standard enunciated in Strickland is in accord with, though less restrictive than, our prior method for reviewing ineffective assistance of counsel claims. Preston v. State, 356 N.W.2d 907, 908 n. 2 (S.D.1984) (per cu-riam); Jones, 353 N.W.2d at 784-85; Stacey v. State, 349 N.W.2d 439, 443 n. 2 (S.D.1984). See, e.g., Williams v. State, 349 N.W.2d 58 (S.D.1984); State v. Tchida, 347 N.W.2d 338 (S.D.1984); High Elk v. State, 344 N.W.2d 497 (S.D.1984); State v. McBride, 296 N.W.2d 551 (S.D.1980).

In Strickland, the United States Supreme Court noted that to succeed on an ineffective assistance of counsel claim, the defendant must show two requirements.

First, ... 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, ... 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.

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693 (quoted in Anderson, 387 N.W.2d at 547 (Henderson, J., specially concurring)). Accord State v. Dornbusch, 384 N.W.2d 682, 687 (S.D.1986) (Henderson, J., concurring); State v. Hammond, 357 N.W.2d 278, 280 (S.D.1984) (Wuest, Acting J., specially concurring); Jones, 353 N.W.2d at 784. We also note that even an unprofessional error by counsel will not result in a judgment being set aside if the error had no effect on that judgment. See Hammond, 357 N.W.2d at 280 (Wuest, Acting J., specially concurring); Jones, 353 N.W.2d at 784. Moreover, under Strickland, ineffective assistance of counsel will be found only if counsel’s errors were prejudicial. If prejudice is found, “[t]he 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.” Anderson, 387 N.W.2d at 547 (Henderson, J., specially concurring) (citing Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698). See Hammond, 357 N.W.2d at 280 (Wuest, Acting J., specially concurring); Stacey, 349 N.W.2d at 443 n. 2. See also Dom-busch, 384 N.W.2d at 687 (Henderson, J., concurring) (which also highlights this language); Jones, 353 N.W.2d at 784. With this prologue in mind, we turn to the issues at hand.

Woods alleges that his trial counsel advised him not to testify. Woods claims this advice was erroneous and his trial counsel adhered to a strategy which offered little or no chance of success. Woods observes that a failure to testify is a “high risk” defense.

Woods’ counsel admits he encouraged Woods not to testify. Attorney Pugh notes that Woods told two different stories of the shooting. Version one (told to Deputy Juso soon after Woods’ arrest on November 18, 1983) stated that Woods went back to the victim’s (James Everett) home to apologize to Everett for burglarizing his home. In version two (told by Woods at the habeas corpus hearing and to Deputy Bentliff, the polygraph operator who tested Woods a few hours after his arrest on November 18, 1983), Woods claimed Everett had molested (“raped” or “queered”) Woods’ younger brother and Everett had threatened the brother not to tell or “he could get hurt.” Woods stated he burglarized Everett’s home to remove the latter’s guns so Everett could not make good on his threat to hurt Woods’ brother.

At the remand hearing, Attorney Pugh explained Woods’ version one had already been introduced into evidence via Deputy Juso. Attorney Pugh was concerned Woods’ testimony would prompt exposure of version two. We observe that an intercepted note written by Woods to his father made reference to the molestation story and was available for impeachment purposes. In addition, Attorney Pugh was afraid revealment of the “rape” could pro[62]*62vide motive/premeditation for Woods’ killing of Everett.

The record reveals that Attorney Pugh and Woods reasoned and thoroughly discussed whether Woods should or should not testify. Woods voluntarily agreed that he did not desire to testify. Pugh took the precaution of reducing Woods’ agreement not to testify in writing which was introduced as Exhibit 1 below.

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Bluebook (online)
405 N.W.2d 59, 1987 S.D. LEXIS 266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/woods-v-solem-sd-1987.