noting that the accomplice was “the only individual to give testimony which linked appellant with the burglary,” and “the [S]tate did not have a case without the testimony of an accomplice or a colleague in crime”
How later courts described this case
- noting that the accomplice was “the only individual to give testimony which linked appellant with the burglary,” and “the [S]tate did not have a case without the testimony of an accomplice or a colleague in crime”
- “No advantage could have been envisioned by -10- #30145 appellant’s counsel in withholding requests for these instructions.”
Written by the judges who cited it.
The opinion
WOLLMAN, Chief Justice
(dissenting).
Although I am in agreement with the general principles of law regarding the constitutional right of an accused to the effective assistance of counsel, my reading of the *557 record in this case does not persuade me that the judgment of conviction must be reversed.
Although I agree that counsel should have moved for judgment of acquittal, how can we say that such a motion would have resulted in any benefit to defendant in view of the fact that the trial court submitted to the jury the question whether Williams was in fact an accomplice?
Likewise, although in view of our decision in State v. Beene, 257 N.W.2d 589 (S.D.1977), counsel should have requested an instruction regarding the nature of an accomplice’s testimony, I am not prepared to say that the result of the trial probably would have been any different had the instruction been given. Indeed, even today the members of this Court are not in unanimity on the necessity of giving such an instruction. See State v. Spoonemore, 287 N.W.2d 109 (S.D.1980).
With regard to the questioning of the officer about defendant’s silence at the time of his arrest, defense counsel asked defendant to explain the reasons why he had declined to give any statement to the officer at the time of his arrest. Although one can debate whether it would have been better for defense counsel to object to the State’s questions of the officer regarding defendant’s silence, can we say that defendant would have been any less prejudiced by the question and the objection, which presumably would have been sustained, than he was by the full explanation of his reasons for remaining silent? Had defense counsel not responded in any way to the questions asked of the officer concerning defendant’s silence, I would be inclined to agree with the majority opinion’s holding on this point. As it was, however, defense counsel elected to respond to the State’s improper attack by portraying defendant’s exercise of his constitutional rights as that of a reasonable person under the circumstances.
I do not think it is a fair characterization of defense counsel’s treatment of witness Williams to say that he was weak and passive. I quote the following excerpts from defense counsel’s cross-examination of this witness:
Q. What are you charged with?
A. Receiving stolen property.
Q. And what happened to those charges?
A. Well, I got released on self-personal recognizance.
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Q. Do you still have to go to court?
A. I don’t think so.
Q. Why not?
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A. If I testify we’ll drop all the charges, you know, on me, against me.
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Q. And so the charges on you have been dropped, is that right?
A. Yeah.
Q. And you’re testifying here today knowing that you can’t be prosecuted, isn’t that right?
A. I think so.
Q. In other words, now you have been given what we call immunity, is that right?
A. Yes.
Q. Do you understand that?
A. Yes.
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Q. Mike, have you ever been in the State Penitentiary before yourself?
A. Yeah.
Q. How many times?
A. Two times.
Q. What was that for?
A. Parole violation and forgery.
Q. Okay, you’re on probation and you violated probation?
A. Yes.
Q. And what were you on probation for?
A. Forgery.
Q. You know what it’s like to be in the penitentiary, don’t you?
A. Yes, I think so.
*558 I agree that defense counsel should have asked for an instruction regarding the effect of a prior felony conviction on a witness’ credibility, but it blinks reality to assume that the jury would have placed any less credence in Williams’ testimony in the light of such an instruction than they did in the light of the admissions he made on cross-examination. Again, defense counsel effectively assailed Williams’ credibility in his final argument:
The state called Michael Williams because Michael Williams said what the state wanted to hear.
Michael Williams made that statement, the written statement, to the sheriff and deputy sheriff, after he was promised that he could get out, off easy, recognizance bond. Recognizance bond is one that you sign your name and you’re out of jail on your own responsibility. He got leniency, too. He got immunity. Because he would testify to what the state wanted you to hear. We tried calling Larry Roast. Of course Larry took the fifth amendment. He didn’t have immunity.
Defense counsel knew his jury, he knew the local community, and he knew the few cards that he held in his hand. That he may not have employed the same trial tactics that any one of us might have is not warrant for us to characterize his representation as mediocre, superficial, perfunctory, and casual. State v. Pieschke, 262 N.W.2d 40 (S.D.1978).
I would affirm the conviction.