Petition for Writ of Certiorari — Charles Russell Rhines, Petitioner v. Darin Young, Warden
Supreme Court briefFeb 15, 2019
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CASE NO. ________ (CAPITAL CASE) (18A612)
IN THE SUPREME COURT OF THE UNITED STATES
____________________________________________________________
CHARLES RUSSELL RHINES,
Petitioner,
v.
DARIN YOUNG, WARDEN, SOUTH DAKOTA STATE PENITENTIARY,
Respondent.
____________________________________________________________
On Petition for a Writ of Certiorari to
The United States Court of Appeals for the Eighth Circuit
________________________________________________________________
APPENDIX
________________________________________________________________
Neil Fulton
Federal Public Defender
Jason J. Tupman
First Assistant Federal Public Defender
Office of the Federal Public Defender
Districts of South Dakota and
North Dakota
200 W. 10th Street, Suite 200
Sioux Falls, SD 57104
(605) 330-4489
Claudia Van Wyk*
Stuart Lev
Assistant Federal Defenders
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street, Suite 545 West
Philadelphia, PA 19106
(215) 928-0520
*Counsel of Record
Member of the Bar of the Supreme Court
Counsel for Petitioner, Charles Russell Rhines
APPENDIX CONTENTS
Eighth Circuit Order Declining to Issue COA ......................................................App. 1
Eighth Circuit Order Denying Petition for Panel Rehearing ..............................App. 2
District Court (D.S.D.) Order Regarding Motion to Amend ................................App. 4
District Court (D.S.D.) Order Declining to Issue COA ......................................App. 28
Jury Note to Trial Court Judge, January 26, 1993 ............................................App. 30
Declaration of Juror, H.K. ...................................................................................App. 33
Declaration of Juror, F.C. ....................................................................................App. 34
Declaration of Katherine Ensler, Federal Community Defender Office ...........App. 35
Petitioner’s Motion for Leave to Amend Initial Petition
(filed in D.S.D. Sept. 28, 2017) ................................................................App. 35
Petitioner’s Proposed Amendment to Initial Petition
(filed in D.S.D. Sept. 28, 2017) ................................................................App. 49
Petitioner’s Letter to Clerk of Court for the Eighth Circuit
(filed in 8th Cir. Dec. 13, 2017) ................................................................App. 73
Affidavit of Brett Garland
(filed in D.S.D. Nov. 27, 2017) ..................................................................App. 77
Supplemental Affidavit of Brett Garland
(filed in D.S.D. Feb. 22, 2018)...................................................................App. 84
Supreme Court of South Dakota Order
State v. Rhines, No. 28444 (S.D. Jan. 2, 2018) ........................................App. 87
Voir Dire Transcript for Juror, H.K. (Tr. Vol. 2, 1/5/1993) ................................App. 89
Voir Dire Transcript for Juror, B.B. (Tr. Vol. 5, 1/8/1993) ............................... App. 107
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No: 18-2376
Charles Russell Rhines
Appellant
v.
Darin Young, Warden, South Dakota State Penitentiary
Appellee
______________________________________________________________________________
Appeal from U.S. District Court for the District of South Dakota - Rapid City
(5:00-cv-05020-KES)
______________________________________________________________________________
ORDER
With the district court’s final order denying Charles Russell Rhines’s federal
petition for a writ of habeas corpus pending on appeal, Rhines filed in the district court a
Rule 15(a)(2) motion for leave to amend the petition and a Rule 60(b) motion for relief
from judgment. The district court denied relief on the ground that Rhines was seeking
second or successive habeas relief that had not been authorized by the court of appeals,
see 28 U.S.C. § 2244(b)(3)(A), and denied a certificate of appealability. We deny
Rhines’s application for a certificate of appealability from that ruling. Judge Kelly would
grant the certificate.
Rhines also filed a motion in the district court for an order requiring respondent to
produce Rhines for evaluation by mental health experts retained by the defense to support
a potential request for executive clemency, relief that the South Dakota state courts have
denied. The district court denied relief on the merits and denied a certificate of
appealability. We conclude that no certificate of appealability is required to appeal this
issue. A separate order establishing a briefing schedule will be issued.
The motion for leave to file an amicus brief is hereby granted.
September 07, 2018
Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
____________________________________
/s/ Michael E. Gans
App. 1
Appellate Case: 18-2376
Page: 1
Date Filed: 09/07/2018 Entry ID: 4702404
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No: 18-2376
Charles Russell Rhines
Appellant
v.
Darin Young, Warden, South Dakota State Penitentiary
Appellee
-----------------------------American Civil Liberties Union, et al.
Amici on Behalf of Appellant(s)
______________________________________________________________________________
Appeal from U.S. District Court for the District of South Dakota - Rapid City
(5:00-cv-05020-KES)
______________________________________________________________________________
CORRECTED ORDER
This order corrects the Judge order entered 09/18/2018, denying the petition for rehearing.
The petition for rehearing by the panel is denied. Judge Kelly would grant the petition
for rehearing.
September 18, 2018
Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
____________________________________
/s/ Michael E. Gans
App. 2
Appellate Case: 18-2376
Page: 1
Date Filed: 09/18/2018 Entry ID: 4706246
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No: 18-2376
Charles Russell Rhines
Appellant
v.
Darin Young, Warden, South Dakota State Penitentiary
Appellee
-----------------------------American Civil Liberties Union, et al.
Amici on Behalf of Appellant(s)
______________________________________________________________________________
Appeal from U.S. District Court for the District of South Dakota - Rapid City
(5:00-cv-05020-KES)
______________________________________________________________________________
ORDER
The petition for rehearing by the panel is denied.
September 18, 2018
Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
____________________________________
/s/ Michael E. Gans
App. 3
Appellate Case: 18-2376
Page: 1
Date Filed: 09/18/2018 Entry ID: 4706154
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 1 of 24 PageID #: 7967
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CHARLES RUSSELL RHINES,
Petitioner,
vs.
DARIN YOUNG, WARDEN, SOUTH
DAKOTA STATE PENITENTIARY;
5:00-CV-05020-KES
ORDER DENYING MOTION FOR
LEAVE TO AMEND, DENYING
MOTION FOR RELIEF FROM
JUDGMENT, AND DENYING MOTION
FOR EXPERT ACCESS
Respondent.
Petitioner, Charles Russell Rhines, moves the court for leave to amend
his petition for habeas corpus under Fed. R. Civ. P. 15(a)(2), or in the
alternative, moves the court for relief from judgment under Fed. R. Civ. P.
60(b)(6). Docket 383. Respondent, Darin Young, resists the motion on both
grounds. Docket 389. In addition, Rhines moves the court for an order
requiring Young to produce Rhines for two mental health expert evaluations in
support of a potential clemency application to the South Dakota Governor.
Docket 394. Respondent also opposes Rhines’s motion for expert access.
Docket 396. 1 For the following reasons, the court denies Rhines’s motion to
1 Contained in respondent’s briefs in opposition to Rhines’s motions are
numerous ethical allegations against the Pennsylvania Federal Community
Defender’s Office. Such claims have no relevance to Rhines’s case, the law
pertinent to Rhines’s motions, or the particular attorneys appointed to
represent Rhines. Rhines’s motions appear to the court to be no more than
zealous representation of Rhines, which is what this court expects from court
appointed counsel. Respondent’s ethical allegations are stricken as scandalous.
App. 4
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amend under Rule 15(a)(2), denies Rhines’s motion for relief from judgment
under Rule 60(b)(6), and denies Rhines’s motion for expert access.
BACKGROUND
The factual and procedural history of this case is more fully set forth in
the court’s February 16, 2016 order granting summary judgment in favor of
respondent. See Docket 305. The court will briefly summarize the procedural
history and then address any facts that are relevant to Rhines’s pending
motions throughout the analysis.
Rhines is an inmate at the South Dakota State Penitentiary in Sioux
Falls, South Dakota. He was convicted of premeditated first-degree murder and
third-degree burglary of a Dig’Em Donuts Shop in Rapid City, South Dakota.
On January 26, 1993, a jury found that the death penalty should be imposed,
and the trial judge sentenced Rhines to death by lethal injection. The South
Dakota Supreme Court affirmed Rhines’s conviction and sentence on direct
appeal, and the United States Supreme Court denied further review in 1996.
Rhines applied for a writ of habeas corpus in state court, raising numerous
issues, which was denied in 1998 and affirmed by the South Dakota Supreme
Court in 2000.
Rhines then filed a federal petition for a writ of habeas corpus in 2000.
This court found several of Rhines’s claims were unexhausted and granted a
stay pending exhaustion in state court. Following respondent’s appeal, the
Eighth Circuit vacated the stay and remanded the case. Rhines filed a petition
for a writ of certiorari in the United States Supreme Court, which granted
2
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certiorari. After finding that a stay and abeyance is permissible under some
circumstances, the Supreme Court remanded the case for further analysis not
relevant to the pending motions. Ultimately, Rhines’s petition in this court was
stayed until he exhausted his state court claims. When this court lifted the
stay, respondent moved for summary judgment. On February 16, 2016, this
court granted respondent’s motion for summary judgment, denied Rhines’s
amended habeas petition, and ruled on numerous other motions not relevant
to the current motions. See Dockets 304, 305, 306. The court then denied
Rhines’s motion to alter or amend the judgment under Fed. R. Civ. P. 59(e).
Docket 348. On August 3, 2016, Rhines appealed this court’s rulings to the
Eighth Circuit Court of Appeals. Docket 357. Rhines has filed the two current
motions during the pendency of his appeal.
DISCUSSION
I.
Rhines’s Motion for Leave to Amend Petition under Fed. R. Civ. P.
15(a)(2)
Under the Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA), a petitioner must file his or her application for a writ of habeas
corpus within one year of:
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the
United States is removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
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(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d)(1).
Because habeas proceedings are civil in nature, the Federal Rules of Civil
Procedure apply. See 28 U.S.C. § 2242 (“[An application for a writ of habeas
corpus] may be amended or supplemented as provided in the rules of
procedure applicable to civil actions.”). Federal Rule of Civil Procedure 15(a)(2)
allows a party to amend its pleading with the opposing party’s consent or the
court’s leave “when justice so requires.” But a petitioner’s amendment must
meet the relation back requirements set forth in Federal Rule of Civil Procedure
15, which provides:
(1) When an Amendment Relates Back. An amendment to a pleading
relates back to the date of the original pleading when:
(A) the law that provides the applicable statute of limitations
allows relation back;
(B) the amendment asserts a claim or defense that arose out of
the conduct, transaction, or occurrence set out--or attempted
to be set out--in the original pleading . . . .
Fed. R. Civ. P. 15(c); see also McKay v. Purkett, 255 F.3d 660, 660-61 (8th Cir.
2001) (applying Rule 15(c) to a petitioner’s § 2254 amended petition and
affirming the district court’s dismissal of the amended claims because they did
not relate back to petitioner’s original claims). Thus, in the habeas context, any
amendment to a timely filed habeas petition must be filed within AEDPA’s oneyear limitations period or the amendment must assert a claim that arose out of
the conduct, transaction, or occurrence set out in the original petition.
4
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The Supreme Court has addressed what the phrase “conduct,
transaction, or occurrence” means under Fed. R. Civ. P. 15(c)(2) in the habeas
framework. In Mayle, the Ninth Circuit, in agreement with the Seventh Circuit,
had interpreted “conduct, transaction, or occurrence” to allow relation back to
an original habeas petition when the petitioner’s new claim stemmed from the
petitioner’s trial, conviction, or sentence. Mayle v. Felix, 545 U.S. 644, 656
(2005). The Supreme Court rejected that definition because it was too broad.
Id. at 656-58. “An amended habeas petition, we hold, does not relate back
(and thereby escape AEDPA’s one-year time limit) when it asserts a new ground
for relief supported by facts that differ in both time and type from those the
original pleading set forth.” Id. at 650.
The substance of Rhines’s new claim is that some jurors from his trial
have recently expressed the notion that a homosexual bias against Rhines
“played a significant role in the decision to sentence him to death.” Docket 383
at 1. And Rhines argues such juror bias is now admissible under the United
States Supreme Court’s recent decision in Pena-Rodriguez v. Colorado, 137 S.
Ct. 855 (2017). Id.
Because Rhines has appealed this court’s denial of his habeas petition to
the Eighth Circuit and that appeal is still pending, this court must first
determine if it has jurisdiction over Rhines’s current motion. Rhines maintains
that this court still has jurisdiction to allow his amendment because “the
judgment is not yet final.” Id. at 3. Other than his reliance on Nims v. Ault, 251
F.3d 698 (8th Cir. 2001) and resistance to Williams v. Norris, 461 F.3d 999 (8th
5
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Cir. 2006), which will be addressed below, see infra Section II.B., Rhines has
not cited any Eighth Circuit precedent to establish that a judgment is not
considered “final” until it is affirmed on appeal. In response, respondent
contends that this court’s judgment is final so the Eighth Circuit has exclusive
jurisdiction over Rhines’s case. Docket 389 at 7-9.
A.
Judgment is Final
In general, a district court decision is final if “there is some clear and
unequivocal manifestation by the trial court of its belief that the decision made,
so far as [the court] is concerned, is the end of the case.” Waterson v. Hall, 515
F.3d 852, 855 (8th Cir. 2008) (internal quotations omitted) (alteration in
original). “A final decision is ordinarily one which disposes of all the rights of all
the parties to an action.” Patterson v. City of Omaha, 779 F.3d 795, 800 (8th
Cir. 2015) (quotation omitted).
Here, judgment is final. In addition to the order granting respondent’s
motion for summary judgment and denying Rhines’s petition for habeas corpus
(Docket 305), this court entered a judgment denying Rhines’s petition for
habeas corpus relief on February 16, 2016. Docket 306. Entering a judgment
clearly demonstrated the court’s belief that Rhines’s case was over. Rhines
moved the court to alter or amend its judgment under Fed. R. Civ. P. 59(e)
(Docket 323), which this court denied. Docket 348. Rhines then appealed
several of this court’s rulings, including this court’s order granting summary
judgment in favor of respondent (Docket 305) and judgment (Docket 306).
Docket 357. See Patterson, 779 F.3d at 800 (noting that the Eighth Circuit’s
6
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jurisdiction is “limited to appeals taken from final decisions of the district
courts.”). If the Eighth Circuit affirms this court’s order and judgment, nothing
further will remain to be done. Thus, this court’s judgment, which disposed of
all claims in Rhines’s petition for habeas corpus relief, was final.
B.
Because this Court’s Judgment was Final, Rhines’s Motion to
Amend is a Successive Petition.
AEDPA established a strict procedure that prisoners in custody under a
state court judgment must follow in order to file a second or successive habeas
corpus application challenging that custody. Under 28 U.S.C. § 2244(b)(2), a
claim presented in a successive habeas petition under section 2254 that was
not presented in the prior petition shall be dismissed unless:
(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable; or
(B) (i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by clear
and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty of
the underlying offense.
28 U.S.C. § 2244(b)(2).
Before a district court can consider a successive petition, the petitioner
“shall move in the appropriate court of appeals for an order authorizing the
district court to consider the application.” Id. § 2244(b)(3)(A). There is no
indication that Rhines has moved the Eighth Circuit Court of Appeals for an
7
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order authorizing this court to consider Rhines’s new claim of juror bias based
on his homosexuality. 2
Rhines argues that “[a]n amendment filed in the district court during the
pendency of an appeal of the habeas petition, however, is not considered a
second or successive petition.” Docket 383 at 4. He relies on Nims v. Ault, 251
F.3d 698 (8th Cir. 2001) to support his position, arguing that Nims suggests
“the addition of a juror misconduct claim after a district court’s denial of a
habeas petition, but before that petition is resolved on appeal, was not
successive” because the Nims court considered the claim on its merits. Id.
Nims was convicted of kidnapping and sexually abusing an eight year old
girl, which was affirmed by the Iowa Supreme Court on direct appeal. Nims,
251 F.3d at 700. After his post-conviction application for relief was denied,
2 On January 11, 2017, Rhines filed a protective petition for writ of habeas
corpus while his application for authorization to file a successive petition was
pending in the Eighth Circuit. Docket 377. The new claim raised in Docket
377, Rhines argues, is based on a new rule of constitutional law made
retroactive to cases on collateral review that was announced in Hurst v. Florida,
136 S. Ct. 616 (2016). Rhines contends that Hurst stands for the rule that a
statute must require a jury to make death penalty findings beyond a
reasonable doubt in order to comply with the Sixth Amendment, and South
Dakota’s death penalty statute violates this rule. Docket 377 at 4-6. The Eighth
Circuit consolidated Rhines’s petition for permission to file a successive habeas
petition (Rhines v. Young, No. 17-1060 (8th Cir. application docketed Jan. 10,
2017)), with Rhines’s appeal of this court’s orders (Rhines v. Young, No. 163360 (8th Cir. appeal docketed Aug. 15, 2016)). See No. 17-1060; 16-3360,
CLERK ORDER, docketed Feb. 16, 2017. “[T]he panel to which the consolidated
cases are submitted for disposition on the merits shall determine whether to
grant or deny the petition at the time it considers the appeal from the district
court’s order denying habeas relief in No. 16-3360.” Id. This application for
authorization, however, does not request authorization to file a successive
petition on Rhines’s new claim of sexual orientation bias by his state court
jury.
8
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Nims filed a federal habeas corpus petition, which was initially denied by the
district court. Id. While that denial was on appeal to the Eighth Circuit, Nims
requested the Eighth Circuit to remand the case to the district court so Nims
could file an amended petition raising a newly-discovered claim of juror
misconduct. Id. The Eighth Circuit dismissed the appeal without prejudice and
remanded the case to the district court. Id.
The district court then dismissed Nims’s amended petition without
prejudice in order for Nims to fully exhaust his state remedies. Id. Following an
unsuccessful attempt in front of the Iowa post-conviction court, Nims again
filed a habeas petition in federal court, which was denied by the district court
because the newly-discovered claim of juror misconduct was procedurally
defaulted. Id. at 701. The district court issued a certificate of appealability, and
the Eighth Circuit opinion, that Rhines currently relies on, followed.
After discussing Nims’s failure to show cause for and prejudice from the
default, the Eighth Circuit ultimately concluded that the district court did not
err in finding that Nims’s new claims were procedurally defaulted. Id. at 703.
But because the Eighth Circuit considered Nims’s new juror misconduct claim
on its merits rather than on jurisdictional grounds for successive petitions,
Rhines argues that Nims stands for the proposition that an amendment filed in
the district court while an appeal is pending is not a successive petition. See id.
at 703-06 (Bye, J., dissenting) (stating that Nims’s petition should be
considered successive and noting that “[t]he majority permits a prisoner to file
a petition in district court, receive a complete adjudication on the merits,
9
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appeal, dismiss the appeal to add a new claim, and start all over without
penalty.”) (emphasis in original). As an initial matter, the court does not read
Nims to stand for the far-reaching proposition that Rhines suggests.
In Williams v. Norris, 461 F.3d 999 (8th Cir. 2006), on the other hand,
the Eighth Circuit affirmed the district court’s denial of a motion for relief from
judgment after finding that it was a successive petition. The federal district
court denied Williams’s original petition for a writ of habeas corpus. Id. at
1000. Williams then filed a motion to alter or amend the judgment, or
alternatively, for relief from judgment, but the district court denied Williams’s
motion as successive. Id. Then a renewed motion for relief from judgment was
filed on Williams’s behalf, raising a new claim based on a recent United States
Supreme Court ruling. The district court determined it was also a successive
habeas petition and denied the motion. Id. at 1000-01.
On appeal, the Eighth Circuit reviewed whether Williams’s motion for
relief from judgment constituted a successive habeas petition de novo. Id. at
1001. The first argument raised by Williams, and noted as the “strongest
argument” by the Eighth Circuit, “revolve[d] around the fact that the district
court did not file a separate judgment, as required by Rule 58, when denying
Williams’s initial petition.” Id. 3 Williams thus argued that the denial of his
3 As discussed above, see supra Section II.A., this court filed a judgment as a
separate document in Rhines’s case (Docket 306), suggesting Rhines’s
argument here is weaker than the argument raised by Williams. See Williams,
461 F.3d at 1001 (noting the district court’s inadvertent failure to file a
judgment as a separate document was Williams’s “strongest argument”).
10
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petition was not a final judgment so his Rule 59(e) motions to alter or amend
the judgment and his Rule 60(b) motions for relief from judgment “should have
been treated as motions to amend the initial habeas petition under Rule 15.”
Id. Despite the clerical error, the Eighth Circuit found that the district court
properly dismissed Williams’s Rule 59(e) and Rule 60(b) motions as successive
petitions because it was clear that the district court intended its order to
dispose of Williams’s petition on the merits. Id. at 1002. The court cited to and
discussed Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995), where the Ninth
Circuit refused to construe the petitioner’s motion to amend a habeas petition,
after the district court had denied the petition, as a Rule 15 motion merely
because the district court had failed to file a separate judgment. Agreeing with
this analysis, the Eighth Circuit in Williams refused to accept Williams’s
argument that his motion should be construed as a Rule 15 motion just
because a final judgment was inadvertently not filed.
Williams also argued that his motions were not successive because the
denial of his original petition was not yet affirmed on appeal. Williams, 461
F.3d at 1003. Relying on Davis v. Norris, 423 F.3d 868 (8th Cir. 2005), the
Eighth Circuit disagreed with Williams. Id.
Rhines argues that Williams erroneously relied on Davis, a 2005
decision, rather than the 2001 Nims decision, because Eighth Circuit precedent
directs a court to follow the earliest opinion when there is a conflict between
panel opinions. Docket 383 at 4-5 (quoting Mader v. United States, 654 F.3d
794, 800 (8th Cir. 2011) (en banc)). Notably missing from Rhines’s argument,
11
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however, is the Eighth Circuit’s discussion of the potential conflict between
Nims and Davis in Williams. The Williams court found Nims and Davis
reconcilable because the Nims court remanded the petition to the district court
in 1992, pre-AEDPA and with the expectation that “petitioner [would] be able to
later raise both his original and amended claims on appeal[,]” whereas Davis
was different “in that the petitioner’s request for a remand occurred after the
passage of AEDPA.” Williams, 461 F.3d at 1004. The Williams court’s
discussion of the distinctions between Nims and Davis leads this court to
conclude that there are not two conflicting panel decisions that are implicated
here. So Rhines’s argument that Nims, the earlier decision, is controlling,
rather than Williams and its reliance on Davis, is misplaced. Because Rhines’s
petition was filed post-AEDPA, Williams’s reliance on Davis, and the
subsequent decision to “reject Williams’s claim that an amendment to a
petition is not a successive habeas if it occurs after the petition is denied, but
before the denial is affirmed on appeal,” controls. Id. at 1004.
The other issue with Rhines’s argument is that Nims is distinguishable
from this case. In Nims, the Eighth Circuit panel remanded the petition to the
district court before Nims’s petition was heard on appeal because Nims
requested a remand. Nims, 251 F.3d at 700. And Nims requested the remand
pre-AEDPA, but his subsequent appeal was heard and adjudicated by the
Eighth Circuit post-AEDPA. Rhines’s petition, on the other hand, was
adjudicated by this court post-AEDPA, appealed to the Eighth Circuit postAEDPA, and there is no indication that Rhines has asked the Eighth Circuit to
12
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remand his petition to this court in order to amend the petition with his new
claim of juror bias. So even if Nims did stand “for the proposition that a new
claim cannot be deemed successive until the denial of the underlying petition
has been affirmed on appeal” just because the Nims panel adjudicated Nims’s
claim on the merits, as Rhines argues (Docket 383 at 5), Nims is factually
distinct from Rhines’s motion. Thus, Nims does not support Rhines’s position,
and, based on Williams, the court rejects Rhines’s argument that an
amendment filed in the district court while the appeal of his habeas petition is
pending is not a successive petition.
The court concludes that because it entered a final judgment in Rhines’s
case and the appeal of that final judgment is still pending, it does not retain
jurisdiction to allow Rhines to amend his habeas petition to add a new claim
under Fed. R. Civ. P. 15(a). Rather, based on Eighth Circuit case law, Rhines’s
motion to amend (Docket 383) is a successive petition. And because Rhines has
not received authorization from the Eighth Circuit to file a successive petition,
this court cannot adjudicate the merits of his motion under Rule 15.
II.
Rhines’s Rule 60(b) Motion
A.
Jurisdiction
Rhines argues that if the court finds it does not have jurisdiction to grant
his motion under Rule 15(a)(2), it should alternatively review the motion under
Rule 60(b)(6). Docket 383 at 5. Federal Rule of Civil Procedure 60(b) allows a
court to relieve a party from a final judgment, order, or proceeding for various
reasons, such as mistake, newly discovered evidence, or fraud, among others.
13
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Rule 60 includes a catchall provision, which allows the court to relieve a party
for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). In order for a
court to grant a 60(b)(6) motion, the movant must show “extraordinary
circumstances” to justify relief, and “[s]uch circumstances will rarely occur in
the habeas context.” Buck v. Davis, 137 S. Ct. 759, 772 (2017) (quoting
Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)). “A district court has discretion
under Rule 60(b) to grant postjudgment leave to file an amended complaint if
the motion is ‘made within a reasonable time,’ and the moving party shows
‘exceptional circumstances’ warranting ‘extraordinary relief.’ ” United States v.
Mask of Ka-Nefer-Nefer, 752 F.3d 737, 743 (8th Cir. 2014) (quoting Fed. R. Civ.
P. 60(c)(1); United States v. Young, 806 F.2d 805, 806 (8th Cir. 1986)).
What constitutes a reasonable time depends on the facts of the particular
case. Watkins v. Lundell, 169 F.3d 540, 544 (8th Cir. 1999). See Moses v.
Joyner, 815 F.3d 163, 166-67 (4th Cir. 2016) (concluding that the district court
did not abuse its discretion in ruling that a habeas petitioner’s Rule 60(b)(6)
motion for relief from judgment, based on a change in habeas procedural law
15 months after the Supreme Court’s decision, was untimely under Rule 60(c)).
While leave to amend under Rule 15(a) should be “freely given,” post-judgment
leave to amend under Rule 60(b) is subject to stricter standards. See Gonzalez,
545 U.S. at 535 (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S.
847, 873 (1988) (Rehnquist, C.J., dissenting)) (noting a “ ‘very strict
interpretation of Rule 60(b) is essential if the finality of judgments is to be
preserved’ ”).
14
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The Federal Rules of Civil Procedure also provide that if a court lacks
authority to grant a motion for relief from judgment because an appeal is
pending, “the court may: defer considering the motion; deny the motion; or
state either that it would grant the motion if the court of appeals remands for
that purpose or that the motion raises a substantial issue.” Fed. R. Civ. P.
62.1(a). Thus, although an appeal is pending, this court may rule on Rhines’s
Rule 60(b) motion consistent with Rule 62.1(a).
B.
Second or Successive Petition
The Supreme Court has acknowledged that Rule 60(b) motions in the
habeas context, while playing “an unquestionably valid role,” must not conflict
with AEDPA’s standards. Gonzalez, 545 U.S. at 533. “Using Rule 60(b) to
present new claims for relief from a state court’s judgment of conviction-even
claims couched in the language of a true Rule 60(b) motion-circumvents
AEDPA’s requirement that a new claim be dismissed unless it relies on either a
new rule of constitutional law or newly discovered facts.” Id. at 531 (citing 28
U.S.C. § 2244(b)(2)).
A Rule 60(b) motion is a second or successive habeas corpus
application if it contains a claim. For the purpose of determining
whether the motion is a habeas corpus application, claim is defined
as an ‘asserted federal basis for relief from a state court’s judgment
of conviction’ or as an attack on the ‘federal court’s previous
resolution of the claim on the merits.’ Gonzalez, 545 U.S. at 530,
532. ‘On the merits’ refers ‘to a determination that there exist or do
not exist grounds entitling a petitioner to habeas corpus relief under
28 U.S.C. §§ 2254(a) and (d).’ Id. at 532 n.4. When a Rule 60(b)
motion presents a claim, it must be treated as a second or successive
habeas petition under AEDPA.
15
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No claim is presented if the motion attacks ‘some defect in the
integrity of the federal habeas proceedings.’ Id. at 532. Likewise, a
motion does not attack a federal court’s determination on the merits
if it ‘merely asserts that a previous ruling which precluded a merits
determination was in error-for example, a denial for such reasons
as failure to exhaust, procedural default, or statute-of-limitations
bar.’ Id. at n.4.
Ward v. Norris, 577 F.3d 925, 933 (8th Cir. 2009). In Gonzalez, the Rule 60(b)
motion, which sought to challenge a statute of limitations ruling that had
prevented review of the petitioner’s initial habeas petition, did not require
authorization from the court of appeals. Gonzalez, 545 U.S. at 533, 538.
Here, Rhines argues his Rule 60(b)(6) motion is not a claim, and thus not
a successive petition, because he attacks a defect in the integrity of the federal
habeas proceeding. Docket 383 at 7. Specifically, he argues, “a rule of evidence,
now declared unconstitutional [by Pena-Rodriguez], precluded review” of his
claim of juror bias based on Rhines’s homosexuality, and thus, the Supreme
Court has removed an obstacle to a merits review of his claim. Id.
After considering Rhines’s Rule 60(b)(6) motion, the court concludes
Rhines’s is attempting to present a new claim, which means his motion is a
successive petition. Rhines is attempting to assert a claim of sexual orientation
bias by the jury based on the Supreme Court’s decision in Pena-Rodriguez. In
other words, Rhines is attempting to use a Supreme Court case, and extend
the holding of that case to the facts of his case, as a basis for relief from his
death penalty sentence in state court. Thus, Rhines’s new claim meets the very
definition of “claim” that was established in Gonzalez: “an asserted federal
basis for relief from a state court’s judgment of conviction[.]” Gonzalez, 545
16
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Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 17 of 24 PageID #: 7983
U.S. at 530; see also id. at 538 (“We hold that a Rule 60(b)(6) motion in a
§ 2254 case is not to be treated as a successive habeas petition if it does not
assert, or reassert, claims of error in the movant’s state conviction.”). Rhines is
doing exactly that—asserting a claim of error in his state conviction. Because
Rhines’s Rule 60(b)(6) motion is a successive petition and he did not seek or
obtain the Eighth Circuit’s authorization to file it, this court does not have
jurisdiction to consider it on the merits. See Burton v. Stewart, 549 U.S. 147,
152 (2007) (concluding that because petitioner filed a successive petition
without appellate authorization, “the [d]istrict [c]ourt never had jurisdiction to
consider it in the first place.”).
III.
Rhines’s Motion for Expert Access
Rhines also moves the court for an order requiring respondent to
produce Rhines for expert evaluations by Richard Dudley, Jr., M.D., a forensic
psychiatrist, and Dan Martell, Ph.D., a neuropsychologist. Docket 394. He
plans to use the advice of Dr. Dudley and Dr. Martell for a possible clemency
application, should one become necessary. Id. The Department of Corrections,
acting under SDCL § 23A-27A-31.1, will not allow the two experts to access
Rhines in prison without a court order. Id.
Rhines previously moved this court for a different doctor’s expert access
as part of his habeas proceeding. Docket 313. The court denied Rhines’s
motion because Rhines is in a state penitentiary, not a federal penitentiary,
and SDCL § 23A-27A-31.1 authorizes a state trial court—here, the Circuit
Court for the Seventh Judicial Circuit of South Dakota—to order the
17
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Department of Corrections staff to allow other persons not specified in the
statute access to capital inmates. Docket 334 at 6. Based on the principles of
comity and federalism, the court concluded SDCL § 23A-27A-31.1 did not
authorize the court to grant Rhines’s request. Id. at 7.
Rhines contends that he has now addressed the federalism concerns
because he has sought relief in the South Dakota courts, which have denied
his motion for expert access. Docket 394 at 4; see also Docket 394-1 (Circuit
Court for the Seventh Judicial Circuit of South Dakota denial of Rhines’s
motion, dated Oct. 24, 2017); Docket 394-2 (South Dakota Supreme Court
order dismissing Rhines’s appeal, dated Jan. 2, 2018). As a legal basis for his
motion, Rhines argues that this court’s appointment of counsel under 28
U.S.C. § 3599 extends representation to clemency proceedings, which may also
include expert services in support of such clemency proceedings. Docket 394 at
6. Rhines also argues he has a due process right to these expert services for his
possible clemency request. Id. at 12.
A.
Authorization for Representation under 18 U.S.C. § 3599
On Rhines’s first argument, 28 U.S.C. § 3599 provides in relevant part:
(a)(2) In any post conviction proceeding under section 2254 or 2255
of title 28, United States Code, seeking to vacate or set aside a death
sentence, any defendant who is or becomes financially unable to
obtain adequate representation or investigative, expert, or other
reasonably necessary services shall be entitled to the appointment
of one or more attorneys and the furnishing of such other services
in accordance with subsections (b) through (f).
....
(e) Unless replaced by similarly qualified counsel upon the attorney’s
own motion or upon motion of the defendant, each attorney so
18
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appointed shall represent the defendant throughout every
subsequent stage of . . . all available post-conviction process,
together with applications for stays of execution and other
appropriate motions and procedures, and shall also represent the
defendant in such competency proceedings and proceedings for
executive or other clemency as may be available to the defendant.
18 U.S.C. § 3599.
The Supreme Court has interpreted the phrase, “shall also represent the
defendant in such competency proceedings and proceedings for executive or
other clemency as may be available to the defendant” found in 18 U.S.C.
§ 3599. Harbison v. Bell, 556 U.S. 180, 185 (2009). The Court concluded that
the plain language of the statute provides that federally appointed counsel’s
authorized representation for a habeas petitioner includes state clemency
proceedings that are available to state petitioners. Id. at 185-86. In rejecting
the government’s argument that § 3599(e) refers only to federal clemency, the
Court reasoned:
To the contrary, the reference to “proceedings for executive or other
clemency, § 3599(e) (emphasis added), reveals that Congress
intended to include state clemency proceedings within the statute’s
reach. Federal clemency is exclusively executive: Only the President
has the power to grant clemency for offenses under federal law. U.S.
Const., Art. II, § 2, cl. 1. By contrast, the States administer clemency
in a variety of ways. . . . Congress’ reference to “other clemency” thus
does not refer to federal clemency but instead encompasses the
various forms of state clemency.
Id. at 186-87 (internal citations omitted).
The Supreme Court’s holding in Harbison does not mandate federally
funded counsel for a capital habeas petitioner to represent the petitioner in his
state clemency proceedings, it merely authorizes such representation. See
19
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Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 20 of 24 PageID #: 7986
Harbison, 556 U.S. at 194 (“We further hold that § 3599 authorizes federally
appointed counsel to represent their clients in state clemency proceedings and
entitles them to compensation for that representation.”). And authorizing a
federally appointed and funded counsel’s representation under § 3599 does not
give this court the authority to supervise or control a state’s clemency process.
Thus, 18 U.S.C. § 3599’s authorization for representation alone does not
require this court to order respondent to produce Rhines for an evaluation by
the two mental health experts in support of a clemency request.
B.
Due Process Right to Expert Services for Clemency
Rhines states that he has never received neuropsychological testing to
determine if he suffers from any brain disease or injury, and he has never been
evaluated by a psychiatrist who engaged in an independent background
investigation. Docket 394 at 13. Thus, he argues, it is his due process right to
be evaluated by Dr. Dudley and Dr. Martell in support of his “potential
clemency application.” Id. at 2, 12.
The Supreme Court has recognized that “[c]lemency is deeply rooted in
our Anglo-American tradition of law, and is the historic remedy for preventing
miscarriages of justice where judicial process has been exhausted.” Harbison,
556 U.S. at 192 (quoting Herrera v. Collins, 506 U.S. 390, 411-12 (1993)). And
as the Eighth Circuit has explained, “clemency is extended mainly as a matter
of grace, and the power to grant it is vested in the executive prerogative, [so] it
is a rare case that presents a successful due process challenge to clemency
procedures themselves.” Noel v. Norris, 336 F.3d 648, 649 (8th Cir. 2003) (per
20
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Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 21 of 24 PageID #: 7987
curiam). But in Ohio Adult Parole Authority v. Woodard, a divided Supreme
Court acknowledged that “some minimal procedural safeguards apply to
clemency proceedings.” 523 U.S. 272, 289 (1998) (O’Connor, J., concurring)
(plurality opinion) (emphasis in original).
Rhines has not presented the court with a case holding that a capital
habeas petitioner has a due process right to expert evaluations in support of a
potential clemency application. In Ake v. Oklahoma, 470 U.S. 68, 83 (1985),
which Rhines relies on, the Supreme Court held that a capital defendant has a
due process right to access a competent psychiatrist when the “defendant
demonstrates . . . his sanity at the time of the offense is to be a significant
factor at trial” so the psychiatrist can help the defendant prepare his defense.
Rhines, on the other hand, is potentially seeking clemency relief. He is not
preparing for trial, and his motion for expert access does not raise the issue of
insanity at the time of the offense.
The other cases Rhines cites, and the cases this court has reviewed, all
discuss the “minimal” due process rights afforded to petitioners in the act of
applying for clemency to the respective executive branch—not the preparation
leading to a possible application. See Lee v. Hutchinson, 854 F.3d 978, 981-82
(8th Cir. 2017) (per curiam) (denying capital inmates’ motion to stay executions
because the Arkansas Parole Board’s clemency process, “despite the procedural
shortcomings,” afforded the inmates the “minimal due process guaranteed by
the Fourteenth Amendment.”); Winfield v. Steele, 755 F.3d 629, 631 (8th Cir.
2014) (per curiam) (concluding that inmate failed to demonstrate “a significant
21
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Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 22 of 24 PageID #: 7988
possibility of success on his claim that the Missouri clemency process violated
his rights under the Due Process Clause” when he claimed correctional
employees threatened and pressured someone to not make statements in
support of the inmate’s clemency application); Young v. Hayes, 218 F.3d 850,
853 (8th Cir. 2000) (holding that a city attorney’s interference, in the form of
witness tampering, with the petitioner’s efforts to present evidence to the
Missouri Governor in his clemency application was “fundamentally unfair” and
required a stay of execution). But see Winfield, 755 F.3d at 631-32 (Gruender,
J., concurring) (maintaining that Young “lacks support in relevant Supreme
Court authority” and is an “outlier” compared to narrower approaches adopted
by other circuits). See also Turner v. Epps, 460 F. App’x 322, 330-31 (5th Cir.
2012) (concluding that capital prisoner’s motion for expert access to assist in
“laying a foundation for a request for clemency” did not violate his due process
right).
In fact, the Eighth Circuit has rejected a due process argument for
alleged interference with the ability to prepare for a clemency application. In
Noel v. Norris, 336 F.3d 648, 649 (8th Cir. 2003) (per curiam), a capital
prisoner in Arkansas claimed the State of Arkansas violated his due process
right by interfering “with his ability to prepare and present his case for
executive clemency.” The Eighth Circuit noted that “if the state actively
interferes with a prisoner’s access to the very system that it has itself
established for considering clemency petitions, due process is violated.” Id. One
argument Noel presented was that the state did not allow him to undergo a
22
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particular brain-scan procedure to prove his brain damage should be
considered in his clemency application. Id. But the Eighth Circuit rejected this
argument, stating “we cannot say . . . that the state prohibited Mr. Noel from
using the procedure that it had established.” Id.
Rhines presents a similar claim to Noel in that he wants to undergo
medical evaluations in order to prepare and present a clemency application.
But the prisoner in Noel had already applied for, and been denied, clemency.
Rhines, on the other hand, has construed his motion for expert access in his
habeas case as a due process requirement for his “potential” clemency
application. Unlike the cases discussed above where due process may be
implicated by clemency procedures, Rhines has not initiated his clemency
application. And he has not provided evidence that South Dakota has
“arbitrarily denied [him] access to its clemency process.” Woodard, 523 U.S. at
289 (O’Connor, J., concurring) (plurality opinion). No Eighth Circuit case,
South Dakota statute, or state or federal constitutional provision creates a due
process right to accumulate all information that may lead to a clemency
application, or to present a certain type of information in a clemency
application. See Turner, 460 F. App’x at 331 (noting the lack of “a due process
right to a more effective or compelling clemency application.”). Because Rhines
has not established a due process right to an expert evaluation in preparation
for a possible clemency application, his request for this court to order
respondent to produce Rhines for evaluations by Dr. Dudley and Dr. Martell is
denied.
23
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CONCLUSION
Rhines has appealed this court’s final judgment to the Eighth Circuit,
and that appeal is still pending. Thus, Rhines’s Rule 15(a)(2) motion to amend
is a successive petition, and Rhines has not received authorization to submit
the successive petition to the district court. If construed to be a Rule 60(b)(6)
motion, Rhine’s motion is also a successive petition. But again, because he has
not received authorization from the Eighth Circuit to file a successive petition
raising the new claim of juror bias based on his homosexuality, this court does
not have jurisdiction to rule on the merits of his motion. Finally, Rhines has
failed to show he has a due process right under the Constitution to an expert
evaluation in order to prepare for a potential clemency application to the South
Dakota Governor. Thus, it is
ORDERED that Rhines’s motion to amend, or in the alternative, motion
for relief from judgment (Docket 383) is denied.
IT IS FURTHER ORDERED that Rhines’s motion for expert access
(Docket 394) is denied.
DATED this 25th day of May, 2018.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
24
App. 27
Case 5:00-cv-05020-KES Document 401 Filed 06/21/18 Page 1 of 2 PageID #: 8005
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CHARLES RUSSELL RHINES,
5:00-CV-05020-KES
Plaintiff,
ORDER DENYING CERTIFICATE OF
APPEALABILITY
vs.
DARIN YOUNG, WARDEN, SOUTH
DAKOTA STATE PENITENTIARY,
Defendant.
Rhines moves for a certificate of appeability (COA) in order to appeal this
court’s order denying Rhines’s motion for leave to amend, denying Rhines’s
motion for relief from judgment, and denying Rhines’s motion for expert access.
Docket 400 (referring to this court’s order found at Docket 399). Under 28
U.S.C. § 2253, a habeas petitioner seeking to appeal from a final order of the
district court must first obtain a COA before an appeal of that denial may be
entertained. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). This certificate
may be issued “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(2). A “substantial showing” is
one that demonstrates “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). Stated differently, “[a] substantial showing is a
App. 28
Case 5:00-cv-05020-KES Document 401 Filed 06/21/18 Page 2 of 2 PageID #: 8006
showing that issues are debatable among reasonable jurists, a court could
resolve the issues differently, or the issues deserve further proceedings.” Cox v.
Norris, 133 F.3d 565, 569 (8th Cir. 1997).
Rhines raised similar claims in related state court litigation, but the
South Dakota Supreme Court dismissed his appeal. See Dockets 392-1, 392-2,
394-1. Rhines then petitioned the United States Supreme Court for a writ of
certiorari to review the judgment of the South Dakota Supreme Court. On June
18, 2018, the United States Supreme Court denied Rhines’s petition. Rhines v.
South Dakota, --- S. Ct. ----, 2018 WL 2102800, at *1 (June 18, 2018). The
court finds that Rhines has not made a substantial showing that his claims
here are debatable among reasonable jurists, that another court could resolve
the issues raised in his claims differently, or that a question raised by his
claims deserves further proceedings. Thus, a certificate of appealability is not
issued.
Dated June 21, 2018.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
App. 29
App. 30
App-1562
App-1563
App. 31
App-1564
App. 32
App. 33
App. 34
App. 35
Case 5:00-cv-05020-KES Document 383 Filed 09/28/17 Page 1 of 13 PageID #: 6104
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CHARLES RUSSELL RHINES,
Petitioner,
v.
DARIN YOUNG, Warden,
South Dakota State Penitentiary,
Respondent.
)
)
)
)
)
)
)
)
)
)
CIV. 5:00-5020-KES
CAPITAL CASE
MOTION FOR LEAVE TO AMEND PETITION FOR HABEAS
CORPUS AND CONSOLIDATED BRIEF IN SUPPORT OF MOTION
Petitioner, Charles Rhines, by and through undersigned counsel, hereby seeks
leave of this Court to amend his Petition for Habeas Corpus pursuant to Fed. R. Civ.
P. 15(a)(2). In the alternative, Mr. Rhines requests that this Court construe this
Motion as a Motion for Relief from Judgment Pursuant to Rule 60(b)(6). His
proposed amendment is submitted as Exhibit 1 to this pleading.
Jurors from Mr. Rhines’s trial have recently come forward to explain that a
bias against Mr. Rhines because of his homosexual identity played a significant role
in the decision to sentence him to death. Jurors rejected a sentence of life
imprisonment because of an explicitly voiced concern that such a sentence would
App. 36
Case 5:00-cv-05020-KES Document 383 Filed 09/28/17 Page 2 of 13 PageID #: 6105
effectively reward him with the opportunity to mingle with, and have sexual relations
with, young male inmates.
Until recently, juror statements about their internal discussions and decision
processes were always inadmissible and could never give rise to claims of juror
misconduct. In Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 860 (2017), however,
the United States Supreme Court recently changed course, holding that such evidence
is admissible when offered to prove a claim of juror bias. As described below, the
new juror statements, combined with the change of law in Pena-Rodriguez, should
provide Mr. Rhines the opportunity to show that there was juror bias that was not
revealed in voir dire, and that he was sentenced to death, in part, because he is a
homosexual.
BRIEF IN SUPPORT OF MOTION
I.
THIS COURT HAS THE AUTHORITY TO GRANT LEAVE TO
AMEND, AND AN AMENDMENT WOULD BE PROPER.
This Court has the authority to grant this motion to amend although the case is
pending on appeal – both because it retains jurisdiction to amend until the conviction
is final and because it may in any case grant relief pursuant to Rule 60(b) of the Rules
of Civil Procedure. The circumstances support allowing the amendment.
2
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Case 5:00-cv-05020-KES Document 383 Filed 09/28/17 Page 3 of 13 PageID #: 6106
A.
New Evidence of Juror Bias
Newly discovered information has disclosed that Mr. Rhines’s homosexuality
was definitely a focal point of the deliberations.
Juror Frances Cersosimo recalled hearing an unidentified juror comment of
Mr. Rhines “that if he’s gay we’d be sending him where he wants to go if we voted
for LWOP.” Ex. B, Decl. of Frances Cersosimo.
Juror Harry Keeney stated that the jury “knew that [Mr. Rhines] was a
homosexual and thought he shouldn’t be able to spend his life with men in prison.”
Ex. C, Decl. of Harry Keeney.
Juror Bennett Blake confirmed that “[t]here was lots of discussion of
homosexuality. There was a lot of disgust. This is a farming community. . . . There
were lots of folks who were like, ‘Ew, I can’t believe that.’” ” Ex. D, Decl. of
Katherine Ensler.
All of the jurors who were asked, including Mr. Keeney and Mr. Blake, had
told the Court in voir dire that they did not harbor anti-gay bias. See, e.g., Trial Tr. at
327-28 (1/5/1993) (Keeney); 932 (1/8/1993) (Blake). The newly discovered
information establishes that these assertions were false.
B.
The Court Has Jurisdiction Because The Judgment Is Not Yet Final.
Because the judgment is not yet final, this motion does not qualify as a
successive petition. 28 U.S.C. § 2244(b)(3)(A) requires that an applicant obtain
3
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Case 5:00-cv-05020-KES Document 383 Filed 09/28/17 Page 4 of 13 PageID #: 6107
authorization from the Court of Appeals before filing a second or successive petition
in the district court. An amendment filed in the district court during the pendency of
an appeal of the habeas petition, however, is not considered a second or successive
petition. See Nims v. Ault, 251 F.3d 698, 703 (8th Cir. 2001) (suggesting that the
addition of a juror misconduct claim after a district court’s denial of a habeas
petition, but before that petition is resolved on appeal, was not successive, by
considering that claim on its merits notwithstanding the jurisdictional prerequisites
for filing second or successive petitions); id. at 705 (Bye, J., dissenting) (“The
majority permits a prisoner to file a petition in district court, receive a complete
adjudication on the merits, appeal, dismiss the appeal to add a new claim, and start all
over without penalty.”) (emphasis in original); see also Whab v. United States, 408
F.3d 116, 118-19 (2d Cir. 2005) (explaining that when a habeas petitioner raises a
new claim, it is not successive so long as the habeas petition remains on appeal, and
that the court should consider whether to permit the amendment under the flexible
standards of Fed. R. Civ. P. 15(a), rather than the AEDPA standards governing
second or successive petitions).
Later authority from this Circuit erroneously relied on the wrong panel opinion
as precedent. In Williams v. Norris, 461 F.3d 999 (8th Cir. 2006), the panel held that
an amendment to a habeas petition is a successive habeas petition if it occurs after the
petition is denied by the district court but before the denial is affirmed on appeal. Id.
4
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at 1004. The Williams Court declined to rely on Nims, and instead relied on Davis v.
Norris, 423 F.3d 868 (8th Cir. 2005), a later panel opinion which conflicted with
Nims. Williams, 461 F.3d at 1004. The Eighth Circuit has since ruled that “when
faced with conflicting opinions, the earliest opinion must be followed as it should
have controlled the subsequent panels that created the conflict.” Mader v. United
States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc). Here, the earliest opinion is
Nims. Thus, the instant motion should be governed by Nims rather than Williams.
Because Nims stands for the proposition that a new claim cannot be deemed
successive until the denial of the underlying petition has been affirmed on appeal, a
district court retains discretion to permit an amendment under Fed. R. Civ. P. 15(a)
while that petition is pending on appeal.
C.
The Court Has Jurisdiction Under Rule 60(b) To Consider Whether
An Obstacle To Merits Review Has Been Removed.
If this Court finds that it does not have jurisdiction to entertain this motion
under the authority of Nims – although it should – it should nevertheless entertain this
motion under Rule 60(b)(6) of the Federal Rules of Civil Procedure. Rule 60(b)(6)
provides that “the court may relieve a party or its legal representative from a final
judgment, order, or proceeding for . . . any other reason that justifies relief.” Fed. R.
Civ. P. 60(b)(6). The statute requires the litigant to file a motion under Rule 60(b)
within a “reasonable time[.]” Fed. R. Civ. P. 60(c).
5
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“[A] Rule 60(b)(6) motion in a § 2254 case is not to be treated as a successive
habeas petition if it does not assert, or reassert, claims of error in the movant’s state
conviction.” Gonzalez v. Crosby, 545 U.S. 524, 538 (2005). Rather, upon a showing
of extraordinary circumstances, Rule 60(b) is the proper vehicle where the “motion
attacks, not the substance of the federal court’s resolution of a claim on the merits,
but some defect in the integrity of the federal habeas proceedings.” Id. at 532, 535.
If neither the motion itself nor the federal judgment from which it seeks
relief substantively addresses federal grounds for setting aside the
movant's state conviction, allowing the motion to proceed as
denominated creates no inconsistency with the habeas statute or rules.
Petitioner's motion in the present case, which alleges that the federal
courts misapplied the federal statute of limitations set out in § 2244(d),
fits this description.
Gonzalez , 545 U.S. at 533.
This Court has recognized that a change in the law that had previously
prevented a litigant from even bringing a claim can, in some circumstances, warrant a
grant of Rule 60(b) relief. See Cornell v. Nix, 119 F.3d 1329, 1332-33 (8th Cir.
1997) (analyzing whether newly decided Schlup v. Delo, 513 U.S. 298 (1995), which
recognized innocence exception to procedural rule that would otherwise bar review
of Cornell’s claim, was “extraordinary circumstance” entitling him to 60(b) relief);
Cox v. Wyrick, 873 F.2d 200, 201-02 (8th Cir. 1989) (“A change in the law having
retroactive application may, in appropriate circumstances, provide the basis for
granting relief under Rule 60(b)[,]” but in this case new law “inapposite.”).
6
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In a case similar to this one, Cox v. Horn, 757 F.3d 113, 120-26 (3d Cir. 2014),
the petitioner sought to raise an otherwise defaulted trial ineffective assistance claim,
arguing that the Supreme Court’s then-recent decision in Martinez v. Ryan, 566 U.S.
1 (2012), now provided a means to establish cause and prejudice to overcome the
default and allow habeas review of the merits. The Court of Appeals rejected an
argument that a new decision, categorically, could never be sufficient to support a
Rule 60(b) motion. It held that a district court has discretion to consider the change
in the law, along with other factors, in making the equitable determination whether to
grant relief. Id. at 124; accord Ramirez v. United States, 799 F.3d 845, 850-6 (7th
Cir. 2015) (district court abused discretion in ruling petitioner categorically ineligible
for 60(b) relief in light of Martinez, and in failing to consider multiple factors before
making equitable decision).
Here, Mr. Rhines attacks a defect in the integrity of the federal habeas
proceeding. Just as the statute of limitations in Gonzalez precluded the habeas court
from reviewing any of the claims in the habeas petition, in this case a rule of
evidence, now declared unconstitutional, precluded review of this claim. 1 Indeed, it
was not even raised in Mr. Rhines’s habeas petition. Mr. Rhines could not introduce
1
Mr. Rhines attempted to raise a similar claim in his motion for relief from judgment
pursuant to Rule 59 of the Rules of Criminal Procedure. Although this Court rejected
the claim because it was inappropriate matter for a Rule 59 motion, it also suggested
that juror affidavits were not even admissible. Order, July 5, 2016, Doc. 348, at 8.
7
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the evidence he now proffers in either state or federal court to establish that he was
prejudiced, because federal law and South Dakota law forbade jurors from offering
testimony or affidavits concerning what occurred during the jurors’ deliberations.
See Fed. R. Evid. 606(b)(1); SDCL § 19-19-606. Additionally, Tanner v. United
States, 483 U.S. 107 (1987), barred Mr. Rhines from introducing the evidence he now
proffers as support for a claim that jurors were untruthful during voir dire, and as a
result his right to an impartial jury was violated. 2
The Supreme Court has now set aside these obstacles to merits review on
constitutional grounds. In Pena-Rodriguez, 137 S. Ct. at 860, the Court held that due
process requires the states to allow petitioners in certain circumstances to offer
jurors’ affidavits to obtain relief from judgment. As explained below, this case
presents one of those circumstances. Therefore, as in Gonzalez, Mr. Rhines seeks a
ruling that would remove an obstacle to merits review. The motion therefore does
not constitute a second or successive petition.
2
Mr. Rhines’s stand-alone claim that his right to an impartial jury was violated is
unexhausted in state court but not necessarily defaulted. In Hughbanks v. Dooley,
887 N.W.2d 319, 326 (S.D. 2016), the South Dakota Supreme Court construed the
two-year statute of limitations provision in S.D.C.L. § 21-27-3.3 to allow an
additional two-year period beginning on the statute’s effective date July 1, 2012 for
petitioners whose time to file had already lapsed. It did not determine whether the
statute made any exception for capital cases, was subject to equitable tolling, or
attempt to reconcile its well-settled case law. Thus, it remains unclear whether
exhaustion of the new claims in state court would be futile.
8
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The motion otherwise satisfies the criteria for Rule 60(b)(6) relief. Rule
60(b)(6) “confers broad discretion on the trial court to grant relief when appropriate
to accomplish justice; it constitutes a grand reservoir of equitable power to do justice
in a particular case and should be liberally construed when substantial justice will
thus be served.” MIF Realty v. Rochester Assocs., 92 F.3d 752, 755 (8th Cir. 1996)
(“Rule 60(b) is to be given a liberal construction so as to do substantial justice and to
prevent the judgment from becoming a vehicle of injustice.” (citations and quotation
marks omitted)); see also City of Duluth v. Fond du Lac Band of Lake Superior
Chippewa, 702 F.3d 1147, 1154 (8th Cir. 2013) (Rule 60(b)(6) “broadly permits
relief” for any reason justifying it); Thompson, 580 F.3d at 444 (citations omitted)
(granting Rule 60(b)(6) motion in capital habeas case); Lasky v. Cont’l Prods. Corp.,
804 F.2d 250, 256 (3d Cir. 1986) (“the Rule should be liberally construed for the
purpose of doing substantial justice”).
In Buck v. Davis, 137 S. Ct. 759 (2017), the Supreme Court reaffirmed a
court’s broad discretion to entertain Rule 60(b) motions and emphasized the range of
factors that may properly be considered:
In determining whether extraordinary circumstances are present, a court
may consider a wide range of factors. These may include, in an
appropriate case, “the risk of injustice to the parties” and “the risk of
undermining the public’s confidence in the judicial process.” Liljeberg v.
Health Services Acquisition Corp., 486 U.S. 847, 863–864, 108 S. Ct.
2194, 100 L.Ed.2d 855 (1988).
9
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137 S. Ct. at 777-78.
In Buck, the Court found extraordinary circumstances present because the
petitioner had been sentenced to death in part because of his race. Id. at 778. “Our
law punishes people for what they do, not who they are. Dispensing punishment on
the basis of an immutable characteristic flatly contravenes this guiding principle.” Id.
The Buck Court further noted that, as to the second factor, “[r]elying on race to
impose a criminal sanction ‘poisons public confidence’ in the judicial process.” Id.
(citation and quotations omitted). “It thus injures not just the defendant, but ‘the law
as an institution, . . . the community at large, and . . . the democratic ideal reflected in
the process of our courts.’” Id.
Mr. Rhines’s case presents an extraordinary circumstance – he was sentenced
to death, in part, due to his homosexuality, an immutable characteristic congruent to
the one condemned in Buck. Furthermore, just as relying on race in capital
sentencing undermines public confidence in the judicial process, so too does relying
on a defendant’s sexuality in deciding whether he lives or dies.
State and federal evidentiary rules barred Mr. Rhines from presenting evidence
to support his claim that he was sentenced to death based on his sexuality. These
barriers have now been removed. Rule 60(b) relief from the judgment should
accordingly be granted.
D.
The Criteria for Amendment Are Satisfied.
10
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Rule 15(a)(2) provides that a district court “should freely give leave [to amend]
when justice so requires.” “Under the liberal amendment policy of Federal Rule of
Civil Procedure 15(a), a district court’s denial of leave to amend pleadings is
appropriate only in those limited circumstances in which undue delay, bad faith on
the part of the moving partly, futility of the amendment, or unfair prejudice to the
non-moving party can be demonstrated.” Roberson v. Hayti Police Department, 241
F.3d 992, 995-96 (8th Cir. 2001) (citing Foman v. Davis, 371 U.S. 178, 182 (1962);
cf. Griffin v. Delo, 961 F.2d 793, 793–94 (8th Cir. 1992) (“In light of the death
sentence under which appellant labors and our granting of permission for his second
attorney to withdraw, we believe that a remand with directions to allow the petitioner
to raise additional issues for consideration by the district court is the most prudent
course.”).
Justice requires this Court to grant Petitioner leave to file an amendment to his
petition. The proposed claim was never presented or ruled upon during Mr. Rhines’s
state or federal habeas corpus proceedings because evidentiary rules made it
unavailable to Mr. Rhines. If this Court denies Mr. Rhines’s motion for leave to
amend his petition, these meritorious claims of constitutional magnitude may never
be heard in any courtroom, state or federal, and no court will be able to correct this
substantial injustice. Leave to amend should accordingly be granted.
11
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CONCLUSION
For these reasons, the Court should grant Mr. Rhines leave to file the proposed
amendment to his petition for a writ of habeas corpus, and all other appropriate relief.
Respectfully submitted,
NEIL FULTON, Federal Public Defender
Claudia Van Wyk, PA Bar #95130
Stuart Lev, PA Bar #45688
Assistant Federal Defenders
Federal Community Defender Office
Capital Habeas Unit
601 Walnut Street, Suite 545 West
Philadelphia, PA 19106
Telephone (215) 928-0520
Claudia_Vanwyk@fd.org
By: /s/ Jason J. Tupman
Jason J. Tupman
Assistant Federal Defender
Office of the Federal Public Defenders
Districts of South Dakota and North Dakota
200 W. 10th Street, Suite 200
Sioux Falls, SD 57104
Telephone (605) 330-4489
Facsimile (605) 330-4499
Filinguser_SDND@fd.org
Counsel for Petitioner, Charles Russell Rhines
Dated: September 28, 2017
12
App. 47
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CERTIFICATE OF SERVICE
This will certify that, on September 28, 2017, a true and correct copy of the
foregoing has been electronically filed with the Clerk of the Court via CM/ECF
to be served on the following persons authorized to be noticed:
Paul S. Swedlund
Assistant Attorney General
State of South Dakota
1302 East Highway 14, Suite 1
Pierre, SD 57501
/s/ Jason J. Tupman
Jason J. Tupman
App. 48
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CHARLES RUSSELL RHINES,
Petitioner,
v.
DARIN YOUNG, Warden,
South Dakota State Penitentiary,
Respondent.
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CIV. 5:00-5020-KES
CAPITAL CASE
PROPOSED AMENDMENT TO PETITION FOR HABEAS CORPUS
VII. MR. RHINES’S RIGHT TO AN IMPARTIAL JURY WAS VIOLATED
BY THE ANTI-GAY BIAS OF MULTIPLE JURORS, WHICH THEY
FAILED TO DISCLOSE DURING VOIR DIRE.
1.
“The jury is a central foundation of our justice system and our
democracy. Whatever its imperfections in a particular case, the jury is a necessary
check on government power.” Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 860
(2017).
2.
But in some instances, a jury’s “imperfections” strike at the heart of
the justice system. In these cases—where a jury acts on the basis of discrimination
rather than the evidence before it—the jury’s behavior “is especially pernicious.”
Id. at 868 (citation omitted).
App. 49
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3.
The jury at Mr. Rhines’s trial knew he was gay. Almost all of the
jurors were offered an opportunity to acknowledge their anti-gay biases during voir
dire. They denied bias. 1
4.
But for at least some jurors, Mr. Rhines’s sexual orientation made it
impossible for them to provide him with the unbiased deliberations guaranteed by
the Sixth and Fourteenth Amendments.
5.
Instead, the decision between life and death became, at least in part, a
referendum on whether a gay man should be afforded the purported benefit of living
around other men in prison.
6.
The jury’s anti-gay bias and untruthful voir dire responses deprived
Mr. Rhines of his right to a fair trial by an impartial jury. Relief is warranted.
A.
The Jury’s Knowledge of Mr. Rhines’s Homosexuality
7.
From before the beginning of Mr. Rhines’s January 1993 trial,
prospective jurors were informed that he was gay.
8.
Mr. Rhines’s own lawyers asked venirepersons if they harbored anti-
gay bias. See, e.g., Trial Tr. at 99 (1/5/1993) (“You are going to hear evidence that
Mr. Rhines is gay, he’s a homosexual, and you are going to hear that at least a
couple of the people testifying in this case also are gay. Does that change your
feelings about this case or sitting on this case in any way?”).
1
The one exception was juror Daryl Anderson, who was never asked how he
felt about Mr. Rhines’s sexual orientation. See Trial Tr. at 1326-50 (1/11/1993).
2
App. 50
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9.
During the trial, the jury also heard evidence regarding Mr. Rhines’s
homosexuality.
10.
For example, witness Heather Harter testified that she walked in on
Mr. Rhines “cuddling” with her husband, Sam Harter, when she and Mr. Harter
visited Mr. Rhines in Seattle. Trial Tr. at 2362 (1/19/1993).
11.
Ms. Harter further testified that Mr. Rhines told her that he hated her
because Mr. Harter loved her instead of him. Trial Tr. at 2364 (1/19/1993).
12.
Mr. Rhines’s ex-boyfriend Arnold Hernandez also testified that he had
a “sexual” relationship with Mr. Rhines before Mr. Rhines lived with Mr. Harter.
Trial Tr. at 2292 (1/19/1993).
B.
“We’d Be Sending Him Where He Wants to Go.”
13.
Some of the jurors proved incapable of separating out their knowledge
of Mr. Rhines’s sexual orientation from their duty to serve impartially.
14.
During penalty-phase deliberations, the jury debated the merits of a
death sentence versus a sentence of life without parole (“LWOP”).
15.
On the second day of penalty deliberations, the jurors sent the trial
judge a note that read as follows:
Judge Kon[en]kamp,
In order to award the proper punishment we need a clear p[er]spective
on what “Life In Prison Without Parole” really means. We know what
the Death Penalty means, but we have no clue as to the reality of Life
Without Parole.
3
App. 51
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The questions we have are as follows:
1. Will Mr. Rhines ever be placed in a minimum security
prison or be given work release.
2. Will Mr. Rhines be allowed to mix with the general
inmate population.
3. [A]llowed to create a group of followers or admirers.
4. Will Mr. Rhines be allowed to discuss, describe or brag
about his crime to other inmates, especially new and/or
young men jailed for lesser crimes (ex: Drugs, DWI,
assault, etc.)
5. Will Mr. Rhines be allowed to marry or have conjugal
visits.
6. Will he be allowed to attend college.
7. Will Mr. Rhines be allowed to have or attain any of the
common joys of life (ex[:] TV, Radio, Music, Telephone
or hobbies and other activities allowing him distraction
from his punishment).
8. Will Mr. Rhines be jailed alone or will he have a cellmate.
9. What sort of free time will Mr. Rhines have (what would
his daily routine be).
We are sorry, Your Honor, if any of these questions are inappropriate
but there seems to be a huge gulf between our two alternatives. On
one hand there is Death, and on the other hand what is life in prison
w/out parole.
Ex. A, Jury Note.
16.
The jury note suggested that anti-gay bias played a role in the jury’s
decision-making process. The jurors’ concerns mirrored themes elicited in the
testimony of Heather Harter and Arnold Hernandez and reflected commonly held
stereotypes of gay men: they were worried that he might taint other inmates by
“mingling” with general population, that he might develop “followers” or
4
App. 52
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“admirers,” and that he might “brag” to young inmates or have “conjugal visits” or
marry.
17.
As newly discovered information has disclosed, Mr. Rhines’s
homosexuality was definitely a focal point of the deliberations.
18.
Juror Frances Cersosimo recalled hearing an unidentified juror
comment of Mr. Rhines “that if he’s gay we’d be sending him where he wants to go
if we voted for LWOP.” Ex. B, Decl. of Frances Cersosimo.
19.
Juror Harry Keeney stated that the jury “knew that [Mr. Rhines] was a
homosexual and thought he shouldn’t be able to spend his life with men in prison.”
Ex. C, Decl. of Harry Keeney.
20.
Juror Bennett Blake confirmed that “[t]here was lots of discussion of
homosexuality. There was a lot of disgust. This is a farming community. . . .
There were lots of folks who were like, ‘Ew, I can’t believe that.’” Ex. D, Decl. of
Katherine Ensler.
21.
All of the jurors, including Mr. Keeney and Mr. Blake, told the court
that they did not harbor anti-gay bias. See, e.g., Trial Tr. at 327-28 (1/5/1993)
(Keeney); 932 (1/8/1993) (Blake). The newly discovered information establishes
that these assertions were false.
5
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C.
Mr. Rhines’s Right to an Impartial Jury Was Violated.
22.
The Sixth Amendment guarantees a defendant that each juror will be
“indifferent as he stands unsworne.” Irvin v. Dowd, 366 U.S. 717, 722 (1961)
(citation omitted).
23.
When a juror gives material false information during voir dire
regarding possible bias, a defendant must be granted a new trial if the nondisclosure
denies the defendant his right to an impartial jury. McDonough Power Equip., Inc.
v. Greenwood, 464 U.S. 548, 549 (1984).
24.
Under the McDonough Power standard, a defendant must be granted a
new trial where (1) a juror provides false information during voir dire and (2) the
truth, if known, would have provided the defense the basis for a successful cause
challenge to that juror. Id. at 556.
25.
Here, both Juror Keeney and Juror Blake satisfy the McDonough
Power standard. First, they both provided false information during voir dire. Each
testified that Mr. Rhines’s sexual orientation would not affect his decision. See
Trial Tr. at 328 (1/5/1993) (“I guess a man or lady has to live their own lives the
way they see fit. . . . I don’t see where that would have any variance on this case as
far as I’m concerned.”); 932 (1/8/1993) (“Q: [T]here will be some evidence here
that will show that Mr. Rhines is a homosexual, he’s gay and one or two of the
witnesses who might be called in this case are also gay and have had relationship[s]
6
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with Mr. Rhines. Knowing that, does that cause you to view Mr. Rhines differently
at all? A: Not at all.”). Based on their later statements regarding Mr. Rhines’s
homosexuality, each testified falsely.
26.
Second, had each of the jurors answered the voir dire questions
truthfully, Mr. Rhines and his attorneys would have known that each harbored antigay animus that he would not be able to put aside in judging Mr. Rhines’s case.
Thus, each could have been challenged for cause.
27.
Separate from the McDonough Power standard, a defendant can show
a violation of his Sixth Amendment rights where he can demonstrate actual bias on
the part of a juror. See Smith v. Phillips, 455 U.S. 209, 215-16 (1982).
28.
Here, Mr. Rhines can demonstrate actual bias against him on the part
of Mr. Keeney, Mr. Blake, and the jury as a whole.
29.
The jurors not only discussed Mr. Rhines’s homosexuality during
deliberations, they held it against him.
30.
Eager to prevent him from receiving what they saw as the benefit of
access to other men in prison, the jurors voted to impose a death sentence instead of
LWOP.
31.
Under Smith, the jurors who based their decision on anti-gay animus
were biased against Mr. Rhines and thus deprived him of his right to fair trial under
the Sixth and Fourteenth Amendments.
7
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D.
The “No-Impeachment Rule” Does Not Apply.
32.
Like most jurisdictions, South Dakota employs a version of the “no-
impeachment” rule. The rule, codified in South Dakota at SDCL § 19-19-606,
provides that a juror may not testify or offer an affidavit “about any statement made
or incident that occurred during the jury’s deliberations; the effect of anything on
that juror’s or another juror’s vote; or any juror’s mental processes concerning the
verdict or indictment.” The rule has several exceptions that are not relevant to this
case.
33.
However, under the Supreme Court’s recent decision in Pena-
Rodriguez, there are circumstances where the no-impeachment rule must give way
to allow a court to consider evidence that purposeful discrimination has infected the
deliberation process.
34.
In Pena-Rodriguez, the defendant was charged with sexual assault.
According to two jurors, a fellow juror commented during deliberations that he
believed the defendant to be guilty of the sexual assault because “Mexican men had
a bravado that caused them to believe they could do whatever they wanted with
women.” 137 S. Ct. at 862. The Colorado courts ruled that they could not consider
the evidence of racial bias because the no-impeachment rule barred the jurors from
providing evidence regarding the internal process of deliberations. Id. at 862-63.
8
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35.
The Supreme Court reversed, holding that “where a juror makes a clear
statement that indicates he or she relied on racial stereotypes or animus to convict a
criminal defendant, the Sixth Amendment requires that the no-impeachment rule
give way in order to permit the trial court to consider the evidence of the juror’s
statement and any resulting denial of the jury trial guarantee.” 137 S. Ct. at 869.
36.
The Court acknowledged other instances in which it had declined to
find exceptions to the no-impeachment rule, including cases where jurors harbored
generalized bias in favor of one side or abused drugs and alcohol. Id. at 868. The
Court stressed that the no-impeachment rule remained generally applicable to help
the jury system avoid “unrelenting scrutiny.” Id.
37.
But the Court concluded that racial bias was different because “if left
unaddressed, [it] would risk systemic injury to the administration of justice.” Id.
The Court noted that its decisions “demonstrate that racial bias implicates unique
historical, constitutional, and institutional concerns” and added: “An effort to
address the most grave and serious statements of racial bias is not an effort to
perfect the jury but to ensure that our legal system remains capable of coming ever
closer to the promise of equal treatment under the law that is so central to a
functioning democracy.” Id.
9
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38.
The logic of Pena-Rodriguez applies in this case. Like racial
discrimination, discrimination on the basis of sexual orientation risks systemic,
rather than case-specific, injury to the administration of justice.
39.
Like racial discrimination, discrimination on the basis of sexual
orientation implicates unique historical, constitutional and institutional concerns.
See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2607 (2015) (recognizing right to
same-sex marriage); United States v. Windsor, 133 S. Ct. 2675, 2696 (2013)
(striking down as unconstitutional provision in Defense of Marriage Act that
defined marriage as between man and woman); Lawrence v. Texas, 539 U.S. 558,
578 (2003) (holding unconstitutional law criminalizing private homosexual sexual
conduct); Romer v. Evans, 517 U.S. 620, 635 (1996) (declaring unconstitutional
state constitutional amendment that banned laws which themselves banned
discrimination against gays and lesbians).
40.
And, like the effort to eradicate racial discrimination, an effort to rid
the justice system of discrimination on the basis of sexual orientation is not an
exercise in perfecting the jury but rather an attempt to ensure that the legal system
provides equal treatment under law.
41.
Finally, as with attitudes about race, opinions about sexual orientation
are not necessarily easy to unmask. See Pena-Rodriguez, 137 S. Ct. at 869. That
was the case here, where the jurors deliberated regarding Mr. Rhines’s sexual
10
App. 58
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orientation despite having pledged during voir dire that it would have no impact on
their decision.
42.
There is no principled reason to relax the no-impeachment rule to root
out racial discrimination but enforce it where sexual-orientation-based animus is
alleged. The no-impeachment rule should not apply here.
E.
This Claim Is Timely.
43.
Federal law provides that a claim is timely if it is filed within one year
of the “date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.” 28 U.S.C. §
2244(d)(1)(D). Diligent counsel would not have questioned the jurors on their
deliberations because at the time of state post-conviction and federal habeas corpus
proceedings, no statements made during a jury’s deliberations were admissible. See
Pena-Rodriguez, supra.
44.
The factual predicates for the claims were developed during
conversations between counsel for Mr. Rhines and jurors on December 10 and 11,
2016. See Exs. B-D. This petition is being filed within one year of the date of
those conversations; the claim is therefore timely.
F.
Conclusion
45.
Mr. Rhines was “entitled to be tried by 12, not 9 or even 10, impartial
and unprejudiced jurors.” Parker v. Gladden, 385 U.S. 363, 366 (1966).
11
App. 59
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46.
The involvement of biased jurors in the deliberation and decision of
Mr. Rhines’s case violated his right to a fair trial by an impartial jury. Mr. Rhines
respectfully requests that this Court grant the writ, conditioned on a new trial of Mr.
Rhines’s guilt or innocence and/or penalty.
12
App. 60
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CONCLUSION
For these reasons, the Court should grant Mr. Rhines’s petition for a writ of
habeas corpus and all other appropriate relief.
Respectfully submitted,
NEIL FULTON, Federal Public Defender
Claudia Van Wyk, PA Bar #95130
Stuart Lev, PA Bar #45688
Assistant Federal Defenders
Federal Community Defender Office
Capital Habeas Unit
601 Walnut Street, Suite 545 West
Philadelphia, PA 19106
Telephone (215) 928-0520
Claudia_Vanwyk@fd.org
By: /s/ Jason J. Tupman
Jason J. Tupman
Assistant Federal Defender
Office of the Federal Public Defenders
Districts of South Dakota and North Dakota
200 W. 10th Street, Suite 200
Sioux Falls, SD 57104
Telephone (605) 330-4489
Facsimile (605) 330-4499
Filinguser_SDND@fd.org
Counsel for Petitioner, Charles Russell Rhines
Dated: September 28, 2017
13
App. 61
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CERTIFICATE OF SERVICE
This will certify that, on September 28, 2017, a true and correct copy of the
foregoing has been electronically filed with the Clerk of the Court via CM/ECF
to be served on the following persons authorized to be noticed:
Paul S. Swedlund
Assistant Attorney General
State of South Dakota
1302 East Highway 14, Suite 1
Pierre, SD 57501
/s/ Jason J. Tupman
Jason J. Tupman
App. 62
Case 5:00-cv-05020-KES Document 383-1 Filed 09/28/17 Page 15 of 24 PageID #: 6131
Exhibit A
App. 63
Case 5:00-cv-05020-KES Document 383-1 Filed 09/28/17 Page 16 of 24 PageID #: 6132
App.JT_Box3_001480
64
Case 5:00-cv-05020-KES Document 383-1 Filed 09/28/17 Page 17 of 24 PageID #: 6133
App.JT_Box3_001481
65
Case 5:00-cv-05020-KES Document 383-1 Filed 09/28/17 Page 18 of 24 PageID #: 6134
App.JT_Box3_001482
66
Case 5:00-cv-05020-KES Document 383-1 Filed 09/28/17 Page 19 of 24 PageID #: 6135
Exhibit B
App. 67
Case 5:00-cv-05020-KES Document 383-1 Filed 09/28/17 Page 20 of 24 PageID #: 6136
App. 68
Case 5:00-cv-05020-KES Document 383-1 Filed 09/28/17 Page 21 of 24 PageID #: 6137
Exhibit C
App. 69
Case 5:00-cv-05020-KES Document 383-1 Filed 09/28/17 Page 22 of 24 PageID #: 6138
App. 70
Case 5:00-cv-05020-KES Document 383-1 Filed 09/28/17 Page 23 of 24 PageID #: 6139
Exhibit D
App. 71
Case 5:00-cv-05020-KES Document 383-1 Filed 09/28/17 Page 24 of 24 PageID #: 6140
App. 72
FEDERAL COMMUNITY DEFENDER OFFICE
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Capital Habeas Unit
FEDERAL COURT DIVISION - DEFENDER ASSOCIATION OF PHILADELPHIA
SUITE 545 WEST -- THE CURTIS CENTER
601 WALNUT STREET
PHILADELPHIA, PA 19106
LEIGH M. SKIPPER
CHIEF FEDERAL
DEFENDER
PHONE NUMBER (215) 92
FAX NUMBER (215) 928-0
FAX NUMBER (215) 928-3
HELEN A. MARINO
FIRST ASSISTANT FEDERAL
DEFENDER
December 13, 2017
BY ECF and Regular Mail
Michael E. Gans
Clerk of Court
United States Court of Appeals
For the Eighth Circuit
Thomas F. Eagleton Courthouse
111 South 10th Street, Room 24.329
St. Louis, MO 63102
Re: Charles Russell Rhines v. Darin Young, No. 16-3360
Dear Mr. Gans:
In order to inform this Court of other pending litigation arising from Mr. Rhines’s
conviction and death sentence, I am writing to give notice of the following related litigation:
1.
Mr. Rhines has moved in the district court for permission to amend the habeas
petition to include the statements of jurors – newly admissible under Peña-Rodriguez v.
Colorado, 137 S. Ct. 855 (2017) – that reflect anti-gay bias displayed during penalty phase
deliberations. Alternatively, he has moved for relief from judgment pursuant to F.R. Civ. P.
App. 73
Appellate Case: 16-3360
Page: 1
Date Filed: 12/13/2017 Entry ID: 4610192
60(b). Rhines v. Young, Civ. No. 5:00-5020-KES, Doc. Nos. 383, 389, 391. The motion is
awaiting the district court’s decision.
2.
Mr. Rhines has moved for relief from judgment, on the basis of the same juror
statements showing anti-gay bias, in the South Dakota Supreme Court. The State’s response to
the motion is due on December 18. A motion by Lambda Legal Defense Fund for permission to
file a brief as amicus curiae is awaiting decision. State v. Charles Russell Rhines, Motion for
Relief from Judgment Pursuant to SDCL 15-6-60(b), No. 28444 (S.D. S. Ct.).
3.
Mr. Rhines has also appealed to the South Dakota Supreme Court an order of the
Seventh Judicial Circuit Court that denied his application for authorization for his mental health
experts to enter the prison to evaluate him. The State has moved to dismiss the appeal, Mr.
Rhines has responded, and the State’s motion is awaiting the State’s reply (if any) and the
Supreme Court’s decision. State v. Charles Russell Rhines, Motion to Dismiss Appeal, No.
28460 (S.D. S. Ct.).
App. 74
Appellate Case: 16-3360
Page: 2
Date Filed: 12/13/2017 Entry ID: 4610192
Respectfully submitted,
/s/ Claudia Van Wyk
CLAUDIA VAN WYK
STUART B. LEV
Assistant Federal Defenders
Federal Community Defender Office
601 Walnut Street, Suite 545W
Philadelphia, PA 19106
Telephone (215) 928-0520
Facsimile (215) 928-0826
Claudia_Vanwyk@fd.org
NEIL FULTON
Federal Public Defender
BY: Jason J. Tupman
Assistant Federal Defender
Office of the Federal Public Defender
Dist. of South Dakota and North Dakota
200 W. 10th Street, Suite 200
Sioux Falls SD 57104
Telephone: (605) 330-4489
Facsimile: (605) 330-4499
jason_tupman@fd.org
Attorneys for Petitioner Charles Russell Rhines
App. 75
Appellate Case: 16-3360
Page: 3
Date Filed: 12/13/2017 Entry ID: 4610192
CERTIFICATE OF SERVICE
This will certify that, on December 13, 2017, a true and correct copy of the foregoing was
electronically filed with the Clerk of the Court via CM/ECF to be served on the following
persons authorized to be noticed:
Paul S. Swedlund
Assistant Attorney General
State of South Dakota
1302 East Highway 14, Suite 1
Pierre, SD 57501
/s/Claudia Van Wyk
Claudia Van Wyk
App. 76
Appellate Case: 16-3360
Page: 4
Date Filed: 12/13/2017 Entry ID: 4610192
Case 5:00-cv-05020-KES Document 389-1 Filed 11/27/17 Page 1 of 7 PageID #: 6205
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
CHARLES RUSSELL RHINES,
Petitioner,
v.
DARIN YOUNG, Warden,
South Dakota State Penitentiary,
Respondent.
*
*
*
*
*
*
*
*
*
*
*
*
CIV 00-5020-KES
AFFIDAVIT OF BRETT GARLAND
Affiant, after first being sworn upon his oath, states as follows:
1. Affiant is a Special Agent for the South Dakota Department of Criminal
Investigation. At the direction of the Office of the Attorney General,
affiant attempted to contact all jurors in the matter of State v. Rhines,
CR 93-81 (Cir.Ct.S.D. 7th), in order to determine if the sentence of death
wa.s imposed due to homophobic bias. Affiant learned that one juror,
Martha Anderson, is deceased.
2. The jurors were uniformly annoyed or uncomfortable about being
contacted to discuss their deliberations and verdict, whether by affiant or
Rhines' defense team. Some were willing to discuss the experience with
affiant, others were not.
3. The jurors uniformly described the deliberations as serious and
professional. The jurors were complimentary of their fellow jurors'
conscientiousness, and of the foreman's professionalism in particular.
The jurors uniformly reported that Rhines' sexual orientation had no
influence on their decision to impose a death sentence. Rather, the
jurors reported that it was the brutality of the killing and Rhines'
remorseless confession that caused them to believe a death sentence was
warranted.
4. On May 2, 2017, affiant contacted Bobby Charles Walton by telephone.
Juror Walton served as foreman of the jury.
5. When contacted by affiant, Juror Walton stated that "four or five people"
from the Rhines defense team had "come last year knocking on [his] door
or calling" him. Juror Walton stated that "these people" were asking if he
had "changed" his mind about the case. Juror Walton was audibly
frustrated with people "trying to get Uurors] involved again" and was
EXHIBIT
i
I
App. 77
Case 5:00-cv-05020-KES Document 389-1 Filed 11/27/17 Page 2 of 7 PageID #: 6206
"tired of being harassed." Juror Walton told Rhines' defense team that
he had "nothing else to say or do in that matter."
6. Juror Walton also refused to meet with affiant or any representative from
the South Dakota Office of the Attorney General.
7. Juror Walton did inform affiant over the phone that he did not "recall
anybody saying anything like [SOB queer] when we were in the
deliberation phase." Juror Walton said the allegation that a juror had
said "SOB queer" during deliberations was "news to me." When asked if
anyone was influenced to hand down the death sentence based on
Rhines' homosexuality, Juror Walton responded "No. No."
8. Juror Walton recalled being asked during voir dire about whether he had
any "qualms" with "people being ... gay." Juror Walton remembers
telling them that he could not "care less about who is gay or who is
whatever." Juror Walton's attitude toward a person's sexual orientation
was "To each his own."
9. When asked if he felt that anyone tried to influence his decision at all
based on sexual orientation or religion, Juror Walton said "No. No. None
of that was brought up." When asked if he remembered any conflict at
all with any specific individual or individuals in that jury room as it
related to religion, sexual orientation or anything like that, Juror Walton
said "No. No."
10. Juror Walton stated that his decision was based on the evidence,
Rhines' taped confession, and "what [Rhines] did to that young boy. He
could have spared that boy's life." Juror Walton stated that the jury
arrived at its verdict "as a group."
11. On April 28, 2017, affiant interviewed Mark Thomas Dean.
12. Juror Dean was advised that affiant was investigating an allegation of a
homophobic statement made during the jury deliberations. Before the
interview, Juror Dean was not told the reason affiant wanted to talk to
him or made aware of the "SOB queer" statement attributed to him in the
affidavit of "Juror B" on file in this case. DOCKET 323, Exhibit B. Juror
Dean was directed to Paragraph 7 of Juror B's affidavit to read the
allegation for himself so that affiant could witness his reaction.
13. After reading Paragraph 7 of Juror B's affidavit, Juror Dean stated that
he had no recollection of any such statement and could not imagine that
he would have made any such statement. Juror Dean said "I would
never say something like that in a situation like that." Juror Dean knew
that Rhines' homosexuality had no bearing on any decision he had to
make.
14. Juror Dean stated that he is not homophobic. He stated that he believed
people have the right to live in the way they want. Juror Dean said "I
honest to God can say I don't remember saying anything like that in that
App. 78
Case 5:00-cv-05020-KES Document 389-1 Filed 11/27/17 Page 3 of 7 PageID #: 6207
room, or wherever." Juror Dean said a person's sexual orientation is not
something he would judge them by. Juror Dean said a person's sexual
orientation was none of his business.
15. Juror Dean said he voted for the death penalty based on the guidelines of
the law provided by the judge, the type of crime and the way it was
committed, and the brutality of the crime.
16. Juror Dean stated that the jury followed guidelines of what the law
required them to do. Juror Dean described the jury foreman, Bobby
Walton, as a "ramrod" strict military man who conducted the
deliberations in a non-nonsense manner. According to Juror Dean, the
jury found that the crime was premeditated and that Rhines deserved the
maximum sentence. Juror Dean stated that nobody on the jury wanted
to have someone's life in their hands and that the jury struggled with the
decision.
17. When asked if he felt anyone on the jury was influenced to return a
death sentence because of Rhines' homosexuality, Juror Dean said
"Honestly, no." Juror Dean said Rhines' homosexuality did not matter to
him and had nothing to do with the crime.
18. Juror Dean said it was disturbing to read Paragraph 7 of Juror B's
affidavit. Juror Dean said that the jurors all got along with each other.
He stated that each juror was allowed to think on their own. Juror Dean
said neither he nor anyone else tried to sway a juror to vote for a death
sentence against their moral or religious beliefs. Juror Dean said that
the mood in the room was that nobody was wanting to "lay anything on
one person's shoulder" that they would later regret. Juror Dean said
that the goal of the deliberations was to let everyone make their own
decision so when they walked out of the jury room they could live with
themselves.
19. Juror Dean's wife, Patricia, sat at the table during the interview. She
mentioned that she met Juror Dean shortly after the trial. She said the
only thing that Juror Dean had ever said to her about the case was that
it was a very brutal murder. Patricia said the topic of Rhines'
homosexuality had never come up in the entire time she has known
Juror Dean. Patricia said that she did not even know that Rhines was
homosexual before the interview with affiant. Patricia said it was not like
her husband to throw around careless words like those alleged.
20. Juror Dean stated that persons from Rhines' defense team had come to
his door and had called him. He told them that the trial was done and
that he had done what he thought was right, and that he did not want to
talk about it. Juror Dean stated he did not want to have to come to
court to testify about the case.
21. Contrary to Juror B's characterization of Juror Dean as "a masculine,
self-assured guy who ... saw things in a very black and white way,"
App. 79
Case 5:00-cv-05020-KES Document 389-1 Filed 11/27/17 Page 4 of 7 PageID #: 6208
affiant found him to be a soft-spoken and thoughtful individual who
described performing his duties as a juror in a conscientious manner
and who was sensitive to the opinions and feelings of his fellow jurors
and the magnitude of the decision he and his fellow jurors were tasked
with.
22. Affiant spoke with Frances Cersosimo on May 4, 2017.
23. Like other jurors, Cersosimo was aware that Rhines is a homosexual.
She stated this fact was "abstract from the reality of what we were even
basing anything on."
24. According to Cersosimo, one juror made a joke that Rhines might enjoy a
life in prison where he would be among so many men. This "stab at
humor" "did not go over well" and everyone agreed that Rhines' sexual
orientation "was not even a consideration" and had nothing to do with
their verdict. The juror who made the joke said that what he had said
was stupid or dumb or something to that effect and "that was the end of
it." According to Cersosimo, there were no other comments like that and
Rhines' sexual orientation was not discussed again.
25. Cersosimo kept a journal of her jury service. DOCKET 340, Exhibit N.
After each day of proceedings or deliberations in the case, Cersosimo
recorded her thoughts and impressions in her journal. Cersosimo stated
that if she had felt that Rhines' homosexuality influenced the sentencing
determination in any way, she would have recorded it in her journal.
The court can review DOCKET 340, Exhibit N, to see if her journal
contains any mention of Rhines' homosexuality influencing the
deliberations.
26. Cersosimo stated that the jury was instructed against basing its
sentencing determination on bias or prejudice and that the jury followed
that instruction by giving Rhines' sexual orientation no weight in
consideration of a death sentence. When asked what bearing Cersosimo
believed Rhines' sexual orientation had on the verdict she said "Not one
iota. Not one iota."
27. Cersosimo said she did not observe any juror being pressured in any way
for any reason by any other juror to return a death sentence. Cersosimo
said her own sentencing determination was based on the relevant
evidence and the nature of the crime itself, not Rhines' sexual
orientation.
28. When asked her thoughts on the allegation that the jury sentenced
Rhines to death because he is gay, Cersosimo said it "ludicrous."
29. Affiant spoke with Robert Corrin on June 6, 2017.
30. When asked if he felt that he or any of the jurors reached their decision
to impose the death penalty based on any prejudices in regard to Rhines'
sexual orientation, Corrin stated that "No. None of that went on."
App. 80
Case 5:00-cv-05020-KES Document 389-1 Filed 11/27/17 Page 5 of 7 PageID #: 6209
31. Corrin said that the jury foreman did a very good job. There was no
friction between the jurors on any matters.
32. In regard to a person's sexual orientation, Corrin stated that it did not
matter to him who a person is. He said that every person has the same
rights as everyone else and he went into the trial with an open mind and
the thought that Rhines was innocent. The jury's verdict, he said, was
based on the evidence presented. Corrin believed that a death sentence
was the only option that seemed fair and right and that Rhines' actions
warranted the penalty.
33. Corrin was approached by members of Rhines' defense team. He was
uncomfortable talking to them and felt that they were "grasping at
straws." He was concerned that his statements to them would be "taken
the wrong way."
34. Affiant spoke with Bennett Blake at his home on June 6, 2017.
35. Blake stated that people from Rhines' defense team, one an attorney who
identified himself as an "Assistant Federal Defender" from Philadelphia,
came to his home in October of 2016. They were "rude as hell." He did
not invite them into his house.
36. They wanted to know if he now thought that life in prison would be
acceptable. Blake stated that he told them it would as long as Rhines
never got out. Blake stated that he felt Rhines had committed a "horrible
crime" for just ''chump chang€."
37. Blake stated that Rhines' defense team kept badgering him about
homosexuality. Like Cersosimo, Blake recalled a comment to the effect
that Rhines might like life in the penitentiary among other men. Blake
felt the comment was made as "somewhat of a tension release." Blake
said that the foreman and everyone else on the jury agreed that Rhines
was not on trial for being homosexual. The comment was just "a one
moment thing" which "was never referred to again."
38. Blake said that, though he believed that some religious jurors
disapproved of homosexuality, no juror attempted to influence his
decision to vote for the death penalty based on any prejudices. Blake
said "everything was done very professionally."
39. Blake had no recollection of anyone referring to Rhines as an "SOB
queer." Blake said there was no friction between the jurors. He said
everyone was uncomfortable with making a life and death decision.
When asked if he believed the decision to impose a death sentence was
reached based on Rhines' race, ethnicity or sexual orientation, Blake said
that it was not. Blake said he had a difficult time distinguishing what
was said during the guilt phase deliberations from what was said in the
penalty phase deliberations.
App. 81
Case 5:00-cv-05020-KES Document 389-1 Filed 11/27/17 Page 6 of 7 PageID #: 6210
40. When asked if he felt he was influenced to impose a death sentence
based on Rhines' homosexuality, Blake answered "No sir." Blake stated
that Rhines' crime of "splitting a kid's head open with a hunting knife"
for "$200-$300 in change" was "deplorable" to him. He thought the
death penalty was appropriate based on the evidence presented.
41. Affiant spoke with Judy Shafer/Rohde on June 6, 2017.
42. Like other jurors, Rohde was contacted by Rhines' defense team who said
they were trying to find something that would get Rhines out of the death
penalty. They asked if anyone on the jury had referred to Rhines in
pejorative terms such as "faggot" and, if so, if that made her feel
differently about the outcome. Rohde stated that nothing like that
happened. Rohde stated that everything about the deliberations was "all
good and clean." She said everyone did the job they were supposed to in
a very professional manner.
43. Rohde remembers some religious jurors having difficulty with imposing a
death sentence. She remembers one such juror waivering on the
decision until she looked at the pictures from the trial and other
evidence, at which time she stated "Yes, he deserves to die."
44. Rohde stated that no juror tried to influence her or anyone else to reach
any decision based on race, ethnicity, sexual orientation or religion. She
said everyone was taking the job very seriously and that all the jurors
were "real professional."
45. Rohde stated that nothing like "SOB queer" was ever said during
deliberations. When asked if any statements regarding Rhines' sexual
orientation were made during deliberations she said that "Nothing.
Absolutely nothing." Rohde said she would have been offended if she
had heard someone talk like that in that situation.
46. Rohde said the deliberations were "extremely professional." She said she
was impressed with all the extra care and thought people put into it.
Rohde said the process was very serious. The jury foreman did a good
job and kept everyone on task. Rohde said that neither she nor anyone
else was influenced to hand down a death sentence based on Rhines'
homosexuality.
47. Rohde said that when Rhines' defense team talked to her about the
deliberations, they were more "vocal" than affiant and "used a lot of bad
language." Rohde said she did not typically talk that way, but Rhines'
defense team asked her if anyone referred to Rhines as a "fucking queer"
and things like that. Rohde said there was no talk like that among the
jurors. Rhines' defense team tried to get her to tell them that some
aspersion about homosexuality may have been made that would have
influenced somebody or the outcome of the deliberations. Rohde said
that she did not think that the jury ever discussed Rhines' sexual
orientation whatsoever. She had no memory of any "flippant comments"
App. 82
Case 5:00-cv-05020-KES Document 389-1 Filed 11/27/17 Page 7 of 7 PageID #: 6211
being made about homosexuality during the deliberations. Rohde said
Rhines' sexual orientation did not matter, that it had no bearing on what
happened.
48. Rohde said that she has no personal feelings one way or the other about
homosexuality. Rohde said the jury based its decision in the fact that
Rhines had "brutally killed that kid, and intended to." She mentioned
that Rhines had even commented on how he could shove a knife through
a person's head to a certain point to kill them because he was military
trained. Rohde remembered that, at one point, Rhines laughed because
it did not kill the victim right away like Rhines thought it would. She
said it was an awful thing to think about someone doing.
49. On June 6, 2017, affiant made contact with Harry Keeney. Affiant
identified himself. When asked if he had served on the Rhines jury,
Keeney stated he had but that it was a long time ago. Keeney then said
goodbye, and hung up.
50. On October 27, 2017, affiant contacted Delight McGriff. McGriff stated
that she is not personally comfortable with the death penalty but she
voted in favor of it because Rhines showed no remorse for the murder
whatsoever in his confession and kind of bragged about it on the tapes.
51. When asked if she recalled Rhines' sexual orientation being brought up
during the deliberations, McGriff said "No." McGriff said that Rhines'
sexual orientation made no difference as far as she was concerned.
When asked if she felt pressured to hand down a death sentence based
on Rhines' homosexuality, McGriff said "Oh, absolutely not. No."
52. McGriff said the deliberations were about the murder itself and that her
decision was based on the facts of the case and the confession tapes.
53. On November 1, 2017, affiant contacted William Brown. Brown said
that Rhines' sexual orientation had no bearing on his decision to vote in
favor of a death sentence.
54. Affiant made several calls in an effort to contact jurors Wilma Woodson
and Daryl An~ut was unable co tact eit r.
Dated this
1J:r: day of Nov.
OJ:>=fo
'-ii""'"' Gar · n , Special Agent
South Dakota Division of Criminal Investigation
Subscribed to and sworn befor;zis (;lP,day of November 2017.
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App. 83
Case 5:00-cv-05020-KES Document 395-2 Filed 02/22/18 Page 1 of 9 PageID #: 6687
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EXHIBIT
12
App. 84
Case 5:00-cv-05020-KES Document 395-2 Filed 02/22/18 Page 2 of 9 PageID #: 6688
iteS:)?Qnde.d t~t~ dtd·n.ot ·oare 'if~yone was .gay;•. 'tlll.11,!J:e aa:l!.f t.hat
...·~!'""""".
,... ,..1..."$'H·J I"'
i,.,,_. ' ' ''h" .. 11"' -'. ·•·- .l>.
t1<i!r~J•i.!i': W!\tfL .J..§. ·.•~S,tjill!',
.
<&. ~lake memetJi~ treca.hte,,oti'e:rJ.d&i. l\fu; aiiitnewhit;~ angi;11¥ aske.d .itluan;t
:r.tOW'
'fs that what.y~tt't~
."S'i:ry··ilu :sa''
;J t'n'l• ~ntl•"Ei.'~
,i;o: "'
- ..
. .. ~a;';I·;
~"'<.'.'.''~" ·siake:
. . wa·
. s.·
~fo~med f~at:theaewere ~~ti~s O:elng ~a.tllil :U<t.Rhfue.~:· brief:andw~!! .
ilire.!;lte:d: .ti:!. P'ase IQ of the: bfl~tti rea.d f~m-.
6.. Reading the afieg!'l-tfonS:liin PaJe. 10 ot:t.h:e bria', :a-Jake exelaimed •1 did
nnt ...,..
""'li\ll~ fitlse ,.,.,
~ottJra;tt~""
····id
..... .t"""'i'th"·alle
· ·.•:.•.,.. ..,.,""
. ....... " al·k"
a ".tia
""" . .., . . ga....,.~,.
..,, ~'t.e,
.IJ•. .b¥l~"·
.,,,,,,,.
wer~ ''lot: true, t don't.'1raw: antHiil~ &entittlllnt.l'I !:it anything.like fb:at."
'I\
..._ "~b..n,tlil.o/i•
•. ' . - '· 1·~- .. j:,j "h· . ,.,iii .J .... ... ... ... ' t.. . ... .. .. --=4 ... .
.· ·.o. ..,~1·1&>
g1_al.\;I>; sl!l11;1, t .'ii,t ~~1... ""~~seGi iitJilt.~~er mlii g~ :.a:1w.. µ~at.
b(l had .7;J.O:· adVer.tiity.·t11 bis brQ±ber's: li{estyle,.
'7~ Bla;'k~nc:Kt te:vfowed th.a,do~tml:erit Mt!tled .,,~la:tatil!1h~l«tfhe.tihe
E1t$ler~ whiOh'PUtpot~$ to desco'be J,mm,o,ph!ibfo,~ttttem¢:ttts made by
·
hke: or i1ther l~Qf!t A'fter reading ;e.n!iler'.i!i'ff'de.o:'li;(ratiQP;t alake -&U!tted
~1 :rl,Qp'j; oare if.ti.e's ho.m9sexual pr l'l,e°t/' @lu!ii '&aid th..itt k!e. ~s npl.
mntlen:ce4. mlli1' vel,j;¢ for the 4~l±.i :p.e.nli!lty p..y ~ne~1 h:m;11ri1el!JJ!'lfjty.,
~l~!l} sat<;! "I' tto~•t,~ep see: !;low th~ !SeXJ;!al o~li,1,~'fii,o~ .ofthe man came
~ Plll--Y ln this 1>~se:"
8. a~ke $ta~d tl:Jii!.t Rhl:.lles "'k.illed :i<lc g~ with oe; P.9~Jl;ft't lmifei for SQ PW~~s in
~i;w.ters rtr·· somethmg lfke tnat:?'' B~e· si'lict'"J liloJJ. 't ®re {fb.e1i;; qµe,e,r 1;1r:.
p,o.t;, it :Q,~q,,1ft~t1ie1;; thee~ wa!S l;l?;tµn}Jite,d; a:s: (E!lr as Fm cone~r~¢d?"
9.. On Dei;~ •r., ~<H 7., arnant nrad~ ¢on-tact with JJ-rq· K~¢ney'~d his
wif¢ J.~t tit. their Jtoine-. "MG· SwedlµI)'!i\s~~d: U\m theY :neecfed to a~~
so~ qtte.1;$tQ-n:s al;>qut t.!'tl!l R.J:xlp:es c~l!e· .lanlll~'!!W:~ 'tlu!t ~r h~p~d:has
FlwJ:ii\l~ w:IQ:!. t::\eJJ:lc;I,J..ti:it ~ th!l.t s,11$ :<;\~<$ D:oil\ l;l~<t tha,t her hµSban!i
oQ4'ld ~eriiember :fl.>1:4ch. Keeney seemed Qortt\:l.Sed. through .parts ·ef the
·eonv.etsation.
tQ,, AA<l ~w:l';,'dliano p,F~~ Ja.Fl.~t w,iUi lthe- ~~I'!· e~0¢rpts froll), Rhmes'pri~
'$l;l:thad pi;evl0i;i:~Jybeef1 prqviqe<;I: tq ~laj!;e.. Janet: sai4the @.'llegationsdn
the htieF weft;: a '1itelnd1 of noosense."
Jl. J#net g;11.ve l;tie e~~~:rta her llu!l.b.®:\i tg r~d, Keen~ s~a:te9 th~t h:e
sen.red O,lil the ~l;>ines'jlllj>\ .Janet re,1')1l'}nded ~eeney tha,ft.1toveJiY0:ne present
knew· thf\ltalr~d:)<: After tea.ding theoexcerpts1, ~a Swedltil!d asked.
Keeney' ff he had been Mtiestw:ltien h.e wa<.s asked@estlons 11!l voit di'te
liilli:L:Ket!ney. &tatl\ct "¥'6:tt ~tt was." Keeney Stat.eu thltt iii~ b€!.li'ev:ed hts
votci was ttue.
12. Janet stated that she did nof firid otit 'that Rhines was gay unbiLRhmes'
attdtn:eys she:we-.tl. Up atth-etr, h0:Us.e: ask'iri~;,qiJ:estions: abi:;ut. it.. ·Janet
said sfte theri asked keemiy if homoa~ualicy< was ever· l:itllught U1? :and he
aak'I "Not ¢luring the \:dal That was W:t an isaue." Jane.£ $a:id that
gr0t,tps ·of pe<'l,Flll <:ame t(l #ie1J" J:i:pµi;ey, and dld .n:tit. re!lll.y 1><1--Y whp- t~eqr
We're repr\lti~ntmg or the purpo~ for mee:tipg with th'\!m. ·"Tb.e.y wer11;
lcin4 gf snea:Ky in th~r reg!l.l"Q.s, l gues,s;'' ~p'.bQ!'ly frqll): ~e state had
App. 85
Case 5:00-cv-05020-KES Document 395-2 Filed 02/22/18 Page 3 of 9 PageID #: 6689
pl'eviouSly 'llisite.d :the Kee.tiey ho'tfte sd J.ati'll"t oould only' h:;tve beel'i
ief.e·
;,'"'"·" ¥d
..,,,.: ..... ·"'f·W<-·;.,.,..,;•
J.,t .....
.,, s........,.. t·e.. ..,.::m.,.
.. ·
. ,.""""
• . .m··:·......
,.,,...,..,.,r
.., ··N'"""" u,1<.e
13: MG. SwedJ:Und asked :Keeney<t0: examine ·the d:Ocuxnent tl:tle.d
"Declatatfuil,of Hattj' Kllenefl'·iWptatt~chetf hereto. J.Milit said.Keeney
did ho't Mite the do~t; tka:t it had ·~iftt!ady:beem ·f>i'epared: whert
"the.¥' cam~ baak~
·
IA;, ~e.ney i;aJ~;thatdro~ w11a11,.he co~ 111M1¥~nib~r :'!if ~ilreSJtr41l, the ~U!\Y
was \<very fait. Tl'rae ndbb.d,y hesitated, they aiseusi5ed tfie. ease,. and
evecybody agreed. iobi>Ai. •eney said that "Nabo~ :said <W'ti'!t, :l don't:
!'
k110w ... m ·
·
·
App. 86
il
il
it
rN rlrE su rREME couR,r
llil
ol rri.
ll
ilil
urArc oF sourH DAKoTA
ll-' oF sourH DAKorA,
llsrArE
ll
Plaj_nt.íff and Appetlee,
ll
ll "=.
il)
ll c¡¡en¡,n
ll
ll
)
)
onpsa
)
#28444
)
s RUssELL RHTNEs '.
pefendan
t and Appellanr.
ii---
)
\
;
il
Appellarrt havíng served and filed a motion for r:el ief from
il
llLhc ci.rcuit co'r-t:/ s judgment- i n the al¡ove-ent:ì..t.Iec,l matter, and
ll
il
llappellee having served and filed a response thel:eto atong with a
lt
llmotion I,c¡ file exhibits uncìer seal, ancl appellant having served ancl
il
ll I LcJ.r rrply rh.re .,, arrd Lombdo lcg-l Let. cl.,s,r ärto Lclu,-dL.on Lund
1t
ll r.u,r:,',q servecl and fiÌed
il
a mot j-on f oi: I eave to file
å brief ôf amicus
atld the Court havinq considered saj.d motions, respónses / and
llcur:rae/
llt.Otio", and bcins f'1ly advised in the p'emises, now, therefore, it
lt
llt
il
ll
'
ORDERED that
Appellee/ s mot.i..Õn to file exhibits under: seal
lt
llas granted;
il
J
aRDERIìì l-ì ar Annol l^¡l
/ c r^r-i r¡
e
¡,- -¡ tr ^F ¡,
r
Fr- -
court/ s judgement is denj_ed. Appellant cites pe¡â-llodrlguez v.
Co.Lorado, ._.__ U.S. _,
137 S. Ct. 855, 1.9i L. Ed. 2d 1.Aj (?-0I-l) ,
arguing that the jury improperly considered hi.s sexual orienr-ation i.n
the penal-ty phase of his tria1.
Assuming, but not deciding, that t-hi
appellate Court has origi.nal jurisdiction
o grant re_Lj.ef from a
circui.t court's finaÌ judqmenl, uncler SDCL 15-6-60 (l¡) (6) based on an
1-,
App. 87
l+28444, order
alJ-eged change in conditions,
and assuming but not deciding that the
constitutlonal
rule articul-ated in Pena-Rodriguez is to be
retroactively
applied, this Court declines to apply Pena-Rodriguez.
It is this Court's view that neither Appellant's legal- theory
(stereotypes or animus relating to sexual orientation)
threshol-d factual showing is sufficient
nor Appel-l-ant'
to t.rigger the protectlons of
Pena-Rodriguez; and it is
ORDERED that
motion for l-eave to file
DATED at
Lambda Legal Defense and Education Fund/ s
a brief of amicus curiae is denied as moot.
Pierre, South Dakota, this 2nd day of January,
201.8 .
BY THE COURT:
0r
. :,- !ìlÌ \: ,^"\r \ì e ;
i)
David Gilbertson, Chief Justice
ATTEST:
upreme Court
(Justice .Taníne M. Kern disqualified,
)
PARTICIPATING: Chief ,fustice David Gilbertson,
Glen A. Severson and Steven R.
STATE OF SOUTHDAKOÎA
F'ILED
SIATË OF SOUTH DAKOTA
ln the Supreme Court
l, Shirley A. James0n-Fergel, 0lerk of the Supreme Court of
South Dakota, hereby certify lhat the w¡lhin instrument is a true
and colrect copy ot the 0riginal thereof as the same appears
on rec0rd in my ofl¡ce. ln witness whereof, I have hereùnlo set
my hând arìd flixed the seal 0f sa¡d court at P¡erre, S.D. this
,.
Clerk of SuFeme Court
Justices Steven L, Zinter,
Jensen' supREME coIJRT
JAN _ 2 2018
Jr//$k::í*e/
- /,a
Depltv
App. 88
Case 5:00-cv-05020-KES Document 389-7 Filed 11/27/17 Page 9 of 55 PageID #: 6404
182681'
'
J.
1
STATE OF SOUTH DAKOTA
IN CIRCUIT COURT
2
COUNTY OF PENNINGTON
SEVENTH JUDICIAL CIRCUIT
3
4
STATE OF SOUTH DAKOTA,
Plaintiff,
5
7
93-81
CHARLES RUSSELL RHINES,
Defendant.
8
9
JURY TRIAL
v.
6
VOLUME II OF
11
PROCEEDINGS:
The following matters were had before the
HONORABLE JOHN K. KONENKAMP, Circuit Judge at
Rapid City, South Dakota, on the 5th day of
January, 1993.
12
APPEARANCES:
10
13
14
FOR THE STATE
15
16
17
UPRfME COURT
OF SOlfTH OAKOT~
Fl' "fl
UN 0 8 1995
18
19
20
21
22
23
24
MR. DENNIS GROFF, MR. JAY MILLER, and.
MR. MARK VARGO
State's Attorney's Office
Pennington County
Rapid City, south Dakota
MR. JOSEPH BUTLER
Attorney at Law
PO Box 2670
Rapid City, South Dakota
and
MR. WAYNE GILBERT
Attorney at Law
3202 West Main Street
Rapid City, South Dakota
and
MR. MICHAEL STONEFIELD
,J'ublic Defender
F
$-Upennington County
IN T'·Tl': CTl!CU!T CC'Ull~apid City, South Dakota
.Pezmhi.~
C
IL E-3'
8 1993
FOR THE DEFENDANT
25
---
ORIGINAL'
...
83
App. 89
Case 5:00-cv-05020-KES Document 389-7 Filed 11/27/17 Page 10 of 55 PageID #: 6405
1
defense counsel and based upon the statutes, the
2
State would challenge for cause the disqualification
3
because of his current circumstance of being under
4
the felony conviction and currently on probation.
5
THE COURT:
6
MR. STONEFIELD:
7
THE COURT:
No.
Mr. Miessner, we will excuse you on this
8
case.
9
You were previously sworn and you are still under
10
oath.
Defense may inquire.
(Prospective Juror HARRY KEENEY, having previously been
11
sworn, testified as follows:)
12
14
Any objection?
13
EXAMINATION BY MR. GILBERT:
14
Q
State your name please?
15
A
Harry Keeney.
16
Q
Mr. Keeney, I'm Wayne Gilbert and along with me here
17
is Joe Butler and Mike Stonefield.
The three of us
18
are the defense attorneys for Charles Rhines.
19
look around the courtroom here, both in front of the
20
bar and behind it, do you see anyone you recognize or
21
know?
As you
22
A
No, sir.
23
Q
Mr. Keeney, we have, both sides have had access to
24
the questionnaire you filled out approximately a
25
month ago and I notice in that questionnaire that you
316
II
App. 90
Case 5:00-cv-05020-KES Document 389-7 Filed 11/27/17 Page 11 of 55 PageID #: 6406
1
have seen some newspaper and television accounts of
2
the events that led up to this case, is that right?
3
A
Yes.
4
Q
Do you subscribe to the Rapid City Journal?
5
A
Yes.
6
Q
Do you watch the local news stations, the three
television stations for the news medium area?
7
8
A
Yes, sir.
9
Q
Can you tell us from what you have read in the
10
newspaper and what you· have seen on the news what you
11
have heard about this case before you came to Court?
12
A
About the only thing I could say is that the young
13
gentleman that was killed was an extremely nice young
14
man, and outside of that, you know, the place where
15
he was killed at Dig 'Em Donuts and I recall he was
16
tied up and knifed in the back of the head, I believe
17
they said and outside of that I don't know anything
18
else to speak of that I can recall right offhand.
19
Q
20
21
Do you have any feelings, a philosophy or opinions
about the death penalty?
A
Well, I would say in some cases it's justified, the
22
death penalty in some cases would be justified in
23
some individuals.
24
25
Q
Based on what you have heard about the case at this
point, do you feel that the death penalty would be
317
App. 91
Case 5:00-cv-05020-KES Document 389-7 Filed 11/27/17 Page 12 of 55 PageID #: 6407
1
justified if someone were to be convicted of first
2
degree murder because of the facts and circumstances
3
as you heard them to be?
'
A
4
I haven't heard any facts either way on that, so you
5
know, I don't know.
6
opinion on that to be honest with you because I
7
haven't heard the facts one way or the other.
8
don't know.
9
Q
I guess I haven't formed an
I just
I understand that, and I appreciate that answer.
I'm
10
wondering, based on what you have heard in terms of
11
you heard news reports that the victim was tied up
12
and stabbed in the back of the head as you said,
13
based upon those facts ••.
14
MR. GROFF:
Objection, because those are not facts.
15
MR. GILBERT:
Facts -- I'll rephrase it.
16
MR. GROFF:
I want to finish my objection.
17
THE COURT:
He said he's going to rephrase rather than
getting into that.
18
19
Q
Based upon what you have heard, have you at this
20
point formed any opinion as to whether the death
21
penalty would be appropriate in this case?
A
22
I guess not.
I haven't heard enough of i t to form an
opinion one way or the other.
23
Q
24
Would you say that there are certain types of cases
in which you favor the death penalty?
25
318
II
App. 92
Case 5:00-cv-05020-KES Document 389-7 Filed 11/27/17 Page 13 of 55 PageID #: 6408
1
A
Yes.
2
Q
Have you had a chance to think about what types of
cases those are?
3
4
A
I would say anyone that premeditated a murder,
5
planned it out, I would say definitely would say they
6
should be put to death.
7
something like that I wouldn't say that, but really
8
premeditated murder would be a cause for me to think
9
of a person that would deserve that penalty.
10
Q
As far as accidents or
Now, let me take a couple of minutes to tell you
11
about the process that's involved in a case like
12
this.
13
murder and we are now selecting a jury that would sit
14
and decide this case.
15
with first degree murder and when the prosecutor has
16
decided to seek the death penalty, there is a trial
17
at which the guilt or innocence of the Defendant is
18
determined.
19
sit on the jury you would hear evidence as to whether
20
or not the crime of first degree murder was committed
21
and as to whether or not Charles Rhines was the
22
person who committed the crime.
23
satisfied as a jury unanimously, beyond a reasonable
24
doubt that Mr. Rhines were guilty of first degree
25
murder then there'd be a second trial.
Mr. Rhines has been charged with first degree
Now, when a person is charged
In other words, if you were selected to
And if you were
Now, if on
319
II
App. 93
Case 5:00-cv-05020-KES Document 389-7 Filed 11/27/17 Page 14 of 55 PageID #: 6409
l
the other hand, the jury was not satisfied that the
2
case had been proved beyond a reasonable doubt and
3
returned a verdict of not guilty, then it would be
4
over as far as the sentencing and the jury's
5
involvement and the case would be concerned.
6
back to if there is a conviction, if there is a
7
conviction then the same jury would reconvene and
8
hear evidence on what the.Y call aggravating
9
circums·tances.
10
obligated to attempt to prove beyond a reasonable
11
doubt that there are one or more aggravating
12
circumstances.
13
instruct you in detail about those aggravating
14
circumstances, and if you as a jury were to find
15
beyond a reasonable doubt that one or more of these
16
aggravating circumstances exist, then you could
17
impose the death penalty.
18
to, but you could, and that would be the jury's
19
decision.
20
decision is to impose the death penalty, the death
21
penalty would be imposed and there is no chance that
22
there'd be a commutation or somebody would step in at
23
the last minute.
24
be carried out if the death penalty were not imposed.
25
In South Dakota life imprisonment does not have a
15
Going
The State of South Dakota would be
And in this case the Court would
You would not be obligated
And I should tell you, if the jury's
You'd have to assume that it would
320
II
App. 94
Case 5:00-cv-05020-KES Document 389-7 Filed 11/27/17 Page 15 of 55 PageID #: 6410
possibility of parole, did you know that?
1
2
A
I guess I didn't know.
3
Q
That is in South Dakota, life imprisonment means just
4
that.
Knowing about this procedure and getting back
5
to, you said that in a case of planned out
6
premeditated murder, the death penalty would be
7
appropriate or would be justified.
8
the first trial you were satisfied beyond a
9
reasonable doubt that there had been a premeditated
If at the end of
10
murder, would you go into the second phase of the
11
trial leaning toward the death penalty?
12
A
I would say I'd have to weigh a lot of circumstances
13
and see what the evidence really was, I mean, you
14
know.
15
on that, sir, because I would think there'd be a lot
16
of variations on that and I want to give you an
17
honest answer, so I at this time I'll be honest with
18
you, I couldn't give you a good honest answer because
19
I don't know.
20
things that was, you know, presented to me at that
21
time.
22
that what you are saying?
It's hard for me to give you a correct answer
It would depend on the evidence and
Would I need to go in with an open mind, is
23
Q
Yes, that's what I'm getting at.
24
A
Well, I guess I'd have to see what the evidence was.
25
Q
When you say that, do you have in mind the process
321
II
App. 95
Case 5:00-cv-05020-KES Document 389-7 Filed 11/27/17 Page 16 of 55 PageID #: 6411
that I described, the two stages?
1
2
A
I think -- it's all new to me.
Yeah.
Like I say,
3
the differential between the two things isn't real
4
clear, to be honest with you.
Q
5
Well, let me put it this way.
If at the end of the
6
first trial, if you in your mind, and the jury was
7
unanimous, that Mr. Rhines was guilty of premeditated
8
murder, and if at that point, no further evidence was
9
offered on aggravating circumstances, would you
consider the death penalty at that point?
10
A
11
I would think so.
I mean, you know, if everything
pointed that way and -- I would say I would, yes.
12
13
Q
If you were instructed that you had to find beyond a
14
reasonable doubt that there was an aggravating
15
circumstance over and above any evidence that was
16
presented at stage one of the trial, in other words,
17
more evidence on an aggravating circumstanqe, if you
18
were instructed that you had to find this aggravating
19
circumstance beyond a reasonable doubt, and no
20
additional evidence ...•
21
MR. GROFF:
22
Objection.
May we approach the bench?
(Side bar 4iscussion was had.)
23
THE COURT:
I'll sustain the objection to the form of the
question.
24
25
Q
If at the alose of the first stage of the trial you
322
II
App. 96
Case 5:00-cv-05020-KES Document 389-7 Filed 11/27/17 Page 17 of 55 PageID #: 6412
1
concluded beyond a reasonable doubt that Mr. Rhines
2
was guilty of premeditated murder, and you were
3
instructed that there was an additional aggravating
4
circumstance that had to be found beyond a reasonable
5
doubt before you could consider the death penalty,
6
and in that event would you consider the'death
7
penalty, based solely on the premeditated finding
8
that you had made?
9
A
Well, if I was instructed I had to find, been
10
presented with enough evidence to convince me that it
11
was premediated, I would say that I would have to be
12
convinced that there was, like you say •.•
13
Q
If you were convinced that it was premeditated, would
14
that be alone enough in your mind to justify the
15
death penalty?
16
A
Well, if I was instructed at this second trial I had
17
to be convinced that it was premeditated, I guess I
18
don't know how to answer you really.
19
Q
I'll try and simplify it a little.
Do you think that
20
the fact that you would find a murder was
21
premeditated, that fact in and of itself alone would
22
cause you to consider imposing the death penalty?
23
A
If it was well planned out and premeditated I would
24
say, yes.
If he said he planned it out and
25
everything else and that was his desire and his aim
323
II
. ··············~··-·---------------···-~.. -.--·-,..,.,_,,,.,.,.,..,...,...~--~~~
App. 97
Case 5:00-cv-05020-KES Document 389-7 Filed 11/27/17 Page 18 of 55 PageID #: 6413
I'd say, yes, and he carried it out.
1
2
Q
Do you know the aggravating circumstances that we
3
have talked about, I haven't identified them for you
4
as to specifically what they are, but would you be
5
able to follow the Court's instructions in that
6
regard as long as you understand them, in other
7
words, more specifically, if the Court provided you
8
with definitions of the aggravating circumstances and
9
they did not include something like planned out as
10
you have described it, would you still lean toward
11
the death penalty, even if that was not included as
12
an aggravating circumstance in the Court's
13
instructions?
14
A
I guess I don't see where you are headed there.
I
15
guess, am I correct in saying that you are saying if
16
the instructions were not towards the premeditated
17
side and he hadn't planned it out, would I still aim
18
towards the death penalty and I would say that it
19
would depend on other circumstances and other
20
evidence.
21
Q
And the Court's instructions?
22
A
Right.
23
Q
Have you ever served as a juror before in any other
type of case?
24
25
A
No, sir.
324
11
App. 98
Case 5:00-cv-05020-KES Document 389-7 Filed 11/27/17 Page 19 of 55 PageID #: 6414
Q
1
Had you ever heard the concept of presumption of
innocence before yesterday?
2
A
3
Well, that was what I thought, everybody in the
4
United States, that everybody is innocent until
5
they're proven guilty.
6
Q
So you heard about it before?
7
A
Sure.
8
Q
As we sit here today, since I have asked you a lot of
9
questions about the death penalty and you know that
10
the State has decided to seek the death penalty, does
11
that make you think that maybe Mr. Rhines is guilty
12
since we are so concerned about the death penalty in
13
this case?
14
A
Not necessarily, because I don't have any idea of the
15
circumstances.
16
the evidence and all the circumstances and make up my
17
own mind because I don't know anything about Mr.
18
Rhines or anything involved in the case at all.
19
don't have any idea what's going on or what happened
20
and I'd have to hear everything and weigh everythi,ng
21
out in my own mind and go from there.
22
Q
I mean, I guess I'd have to hear all
I
If you had to vote right now without hearing any
23
evidence, if you had to vote right now as to whether
24
Mr. Rhines was guilty or not guilty, how would you
25
vote?
325
II
App. 99
Case 5:00-cv-05020-KES Document 389-7 Filed 11/27/17 Page 20 of 55 PageID #: 6415
A
1
Right now I don't know anything about it.
I mean I
2
couldn't vote intelligently right now because I don't
3
know.
4
Q
I want to know more about it.
Would you expect -- do you understand that the
5
defense does not have to offer any evidence of any
6
kind or nature, that it has no burden of proof or
7
persuasion, that it can rely on and argue that the
8
State has not met its burden of proof, that the
9
defense is not obligated at all to bring any evidence
forward?
10
11
A
I didn't realize that, I guess, no.
12
Q
Would you expect the defense to bring some evidence
forward in a criminal case?
13
A
14
I would expect they'd try to prove the gentleman was
15
innocent and what he was charged with and everything
16
wasn't true.
Q
17
If the defense didn't try to prove that, would you
18
take that into account and hold that against the
19
defense?
A
20
Well, I think it would be leaving -- I'd be honest
with you, I think it would be failing.
21
22
Q
It would be what?
23
A
I would think that the lawyers that he had would be
24
doing a poor job, to be real honest with you, you
25
know.
326
II
App. 100
Case 5:00-cv-05020-KES Document 389-7 Filed 11/27/17 Page 21 of 55 PageID #: 6416
Q
1
And if you thought that, would you take that into
2
consideration and in how you viewed the evidence at
3
the close of the case?
A
4
That's a hard question.
There's too many
5
circumstances involved there to answer a question
6
like that as far as I'm concerned.
7
could be so many variances in there, I couldn't give
8
you an honest answer on it, you know.
Q
9
You know, there
r don't know.
Would you expect Mr. Rhines himself to take the
witness stand?
10
A
11
r would say that's up to him and the lawyer as far
12
as -- you know -- r don't know that much about this
13
system to make a decision on that.
Q
14
If Mr. Rhines didn't take the witness stand, would
15
you think from that fact in and of itself that he
16
must be trying to hide something important, must be
17
guilty or he would have taken the stand?
A
18
I wouldn't say that would be necessary, you know.
A
19
person -- lot of people handle pressure in different
20
ways.
21
people can't.
22
too.
Q
23
Some people can handle pressure and some
There could be a lot of variance there
There is going to be some evidence in this case that
24
Mr. Rhines is a homosexual and one or two of the
25
witnesses that may be called are also homosexuals.
327
II
App. 101
Case 5:00-cv-05020-KES Document 389-7 Filed 11/27/17 Page 22 of 55 PageID #: 6417
1
Do you have any opinions about homosexuals as to
2
whether that's sinful or a wrong lifestyle or course
3
of conduct?
A
4
6
way they see fit and the way they are directed and
the way they live it is entirely up to them and so,
7
you know, I don't see where that would have any
8
variance on this case as far as I'm concerned.
5
9
Q
Were you ever in the military?
10
A
Yes.
11
Q
What branch?
12
A
Air Force.
13
Q
How long?
14
A
Four years.
15
Q
Were you stationed overseas?
16
A
No, sir.
17
Q
So you didn't see any combat duty or anything like
that?
18
19
A
No, sir.
20
Q
How do you feel about president-elect Clinton's plan
to allow homosexuals into the armed services?
21
A
22
17
I guess a man,or lady has to live their own lives the
Well, he's the Commander In Chief, you know, and I
23
guess to be real honest with you, I don't know that
24
much about homosexuals one way or the other.
25
really don't.
I
328
II
App. 102
Case 5:00-cv-05020-KES Document 389-7 Filed 11/27/17 Page 23 of 55 PageID #: 6418
1
Q
So you don't have any strong feelings?
2
A
No.
Like I say, I don't know what they believe or
3
what they do or how they do it or whatever, I
4
don't know.
just
5
Q
You have four children?
6
A
Yes, sir.
7
Q
They live in the Rapid City area?
8
A
One daughter does.
9
Q
The others have moved to other parts of the country?
10
A
Yes, sir.
11
Q
You keep in close contact with all four of them?
12
A
Yes, sir.
13
Q
You get together when you can on holidays and that
sort of thing?
14
15
A
Yes, sir.
16
Q
In front of you on the witness stand there is a paper
17
that has a list of names of people who might be
18
called as witnesses in this case.
19
minute and look that over and see if any of the names
20
are familiar to you.
21
at that?
Yes, sir.
22
A
23
MR. GILBERT:
24
Could you take a
Have you had a chance to
look
No names that I recognize.
Thank you.
I appreciate your honesty in
answering the questions.
25
EXAMINATION BY MR. GROFF:
329
II
App. 103
Case 5:00-cv-05020-KES Document 389-7 Filed 11/27/17 Page 24 of 55 PageID #: 6419
Q
1
Mr. Keeney, I have a few questions before you leave.
2
Mr. Gilbert was asking you questions about evidence
3
and things like that and you understand that in a
4
criminal case the burden is on the State to prove its
5
case beyond a reasonable doubt?
6
A
Yes, sir.
7
Q
And really the burden is on us to produce all the
8
evidence to convince you of that and the Defendant
9
doesn't have to produce any evidence and he can rely
10
on our inability to prove our case; it's his choice
11
whether or not he wants to testify and if he doesn't
12
testify that can't be used against him and that's his
13
right?
14
A
Yes, sir.
15
Q
Can you follow instructions on all those areas from
the Court, the jury instructions?
16
17
A
Yeah, I can.
18
Q
In South Dakota here it is not enough to just have a
19
first degree murder in terms of imposing the death
20
penalty, not even enough to have a premeditated
21
murder we have what are called aggravating
22
circumstances that have to be proven in that second
23
stage.
24
the evidence in the second stage, should you decide
25
Mr. Rhines is guilty of first degree murder; can you
Do you think you can wait and consider all
330
"
App. 104
Case 5:00-cv-05020-KES Document 389-7 Filed 11/27/17 Page 25 of 55 PageID #: 6420
1
wait until the second stage and consider all the
2
evidence then and determine whether or not an
3
aggravating circumstance has been proven beyond a
4
reasonable doubt and whether or not, secondly,
5
whether the death penalty is appropriate?
6
think you can wait and make that decision then?
Do you
7
A
I would think so, you know.
8
Q
Once again, would you follow the Court's instructions
and consider all that evidence?
9
10
A
11
MR. GROFF:
12
13
Yes.
That's all I have today.
Thank you.
Pass
for cause.
THE COURT:
All right, Mr. Keeney we will be in touch
14
with you.
15
at noon, I would appreciate y~u calling the Clerk's
16
Office to check on the status of the case and see if
17
you are still on the final jury list.
18
important now that you are still a prospective juror
19
here that you not talk to anybody about this case or
20
allow anyone to talk to you about it or not read or
21
listen to any media accounts about it.
22
promise that you'll do that?
23
HARRY KEENEY:
If you don't hear from us by next Tuesday
Yes, sir.
And it's very
can you
I should call in to check if I
24
need to check in on any other jury duty or does this
25
take preference?
331
App. 105
Case 5:00-cv-05020-KES Document 389-7 Filed 11/27/17 Page 26 of 55 PageID #: 6421
1
THE COURT:
This takes preference.
2
Tuesday.
3
(Side bar discussion was had.)
4
THE COURT:
5
6
Just check in next
Could I speak with counsel?
Mr. Meier, you were previously sworn and you
are still under oath now.
Defense may inquire.
(Prospective Juror JACK MEIER, having previously been
7
sworn, testified as follows:)
8
EXAMINATION BY MR. GILBERT:
9
Q
State your name so we have a record.
10
A
Jack Meier.
11
Q
Mr. Meier, you filled out a questionnaire a month ago
12
and we have had a chance to look at it.
13
high school in Falkton?
You finished
14
A
Yes.
15
Q
When did you move to this area?
16
A
September, 1972.
17
Q
Just shortly after you finished high school?
18
A
Yeah, two years.
19
Q
You have lived here ever since?
20
A
I lived in Kearney, Nebraska for a while.
21
Q
Between '72 and now?
22
A
Yeah, for a year.
23
Q
When was that?
24
A
'80, I think.
25
Q
Since you filled out the questionnaire, have you
332
App. 106
Case 5:00-cv-05020-KES Document 389-6 Filed 11/27/17 Page 26 of 58 PageID #: 6363
182681
1
STATE OF SOUTH DAKOTA
IN CIRCUIT COURT
2
COUNTY OF PENNINGTON
SEVENTH JUDICIAL CIRCU!T
3
4
STATE OF SOUTH DAKOTA,
Plaintiff,
5
6
7
JURY TRIAL
v.
Defendant.
8
9
10
11
12
93-81
CHARLES RUSSELL RHINES,
VOLUME V
PROCEEDINGS:
The following matters were had before thd
HONORABLE JOHN K. KONENKAMP, Circuit Judge at
Rapid City, South Dakota, on the 8th day of
January, 1993.
APPEARANCES:
14
MR. DENNIS GROFF, MR. JAY MILLER,
MR. MARK VARGO
State's Attorney's Office
P~nnington County
Rapid City, .south Dakota
an~.
15
FOR THE STATE
16
17
SUPREME COURT
i'\TE CF SOUTH DAKOTA
18
Fii Cf)
19
JUNO 8 1995
20
21
22
23
24
25
MR. JOSEPH BUTLER
Attorney at Law
PO Box 2670
Rapid City, South Dakota
and
MR. WAYNE GILBERT
Attorney at Law
3202 West Mai~ Street
Rapid City, S'outh Dakota
and
MR. MICHAEL STONEFIELD
Public Def ender
Pennln'11Cn c~l(lllngton county
~ r 1 P E)lpid City, South Dakota
.. " ' _,
'1UR'n
IN .,---.......,,,:·~;O·R THE DEFENDANT
1\P R :! :i \993
ORIGINAL
erald, Clerk
·.J..!..:=:::::~~-__.iD.eP..uf'Jl
890
App. 107
Case 5:00-cv-05020-KES Document 389-6 Filed 11/27/17 Page 27 of 58 PageID #: 6364
1
inquire.
2
MR. GZLBBRT:
3
(Prospective Juror BBNNBTT BLAKB, having previoualy been
Thank you, your Honor.
sworn, testified as follows:)
4
5
BXAMZNATZON BY MR. GZLBBRT:
6
Q
state your name please.
7
A
Bennett Blake.
8
Q
Z'm Wayne Gilbert and Z'm one of the attorneys for
9
Charles Rhines and he's sitting at the table here
10
with Mike Stonefield and Joe Butler who are also
11
representing him.
12
a questionnaire a month ago and the lawyers for both
13
sides have had a chance to look at it.
14
in the Air Poree approximately eight years?
Good morning, sir.
You filled out
You have been
15
A
Yes, sir.
16
Q
And were you born and raised in Texas?
17
A
Yeah.
18
Q
Zn the eight years you have bean in the Air Poree
7
where h·ave you been?
19
20
A
Two years in Germany.
21
Q
And six at Bllsworth?
22
A
Yup.
23
Q
Z noticed you obtained an Associate'• Degree at a
collage in Huntsville, Texas?
24
25
A
Z think
well, Z cannot remember.
Z went to a
929
App. 108
Case 5:00-cv-05020-KES Document 389-6 Filed 11/27/17 Page 28 of 58 PageID #: 6365
1
couple different colleges and I ran track in collage
2
and when my grade point average from a regular
3
college and junior collage -- my major was in
4
sociology.
5
Q
Before you went in the Air Poree?
6
A
Yea.
7
Q
What attracted you to sociology?
8
A
The fact that I liked the study of the behavior of
9
people and trying to figure out what is inside a
10
person maybe, stuff like that.
11
Q
What do you do in the Air Poree?
12
A
I'm personnel specialist and I used to work on the
13
minuteman missles and I have this missing finger that
14
happened before I came in the service at a summer job
15
when I went to school and now I work in the personnel
16
office out there.
17
Q
What kind of things do you do?
18
A
Separations.
19
Q
With the early-out type?
20
A
Yea.
21
Q
You have had a lot of activity and it's in the news
we have had a lot of that lately.
22
and are you snowed under at work, is that the kind of
23
thing if you were called upon to sit as a juror in
24
this case that would effect •••
25
A
Not at all.
930
App. 109
Case 5:00-cv-05020-KES Document 389-6 Filed 11/27/17 Page 29 of 58 PageID #: 6366
1
Q
That wouldn't be a concern being called away froa
your work a month or so or four or five weeks?
2
3
A
Not a problem.
4
Q
You are also active in the Democratic Party and is
5
there a difference between a Texas Democrat and a
6
south Dakota Democrat?
A
7
Texas was a Democratic state and :i: said, hey, let's
go cross the board; let's make it a Democratic Party.
8
9
Q
Were your parents Democrats?
10
A
Yea, they were.
11
Q
:i:n front of you theli.·e is a witness list of people who
12
might be call~d as some of the witnesses in this
13
case.
14
are any names you may recognize?
Would you take look at that and see if there
15
A
Certainly; one for sure and one maybe.
16
0
Who is the for sure?
17
A
Jerry Haamerquist, he's the Rapid Valley J:rrigation
18
Supervisor and Harrold Plooster, my wife is from
19
eastern south Dakota, and J: can only assume that they
20
may be related.
21
Q
Let ma ask you about Harrold Ploostar first.
J:f
22
Harrold Plooatar were to testify in this case, would
23
there be any reason, baaed on what you know,. that you
24
would believe .••
25
A
No.
J: wouldn't even know what he looked like.
J:
931
II
App. 110
Case 5:00-cv-05020-KES Document 389-6 Filed 11/27/17 Page 30 of 58 PageID #: 6367
1
just had a passing acquaintance with his son.
2
was a Plooster assigned and we might have had lunch
3
on a chance meeting, and it was a chance meeting that
•
we started talking one day.
Q
5
There
But, no •••
Bow about Jerry Bammerquist, would you tend to give
6
hia testimony more or leas weight because of any
7
contacts you have had with him?
8
A
Not a bit.
9
Q
The evidence, there will be some evidence here that
10
will abow that Mr. Rhines is a homosexual, he's gay
11
and one or two of the witnesses who might be called
12
in this case are also gay and have bad relationship
13
with Mr. Rhines.
14
to view Mr. Rhines differently at all?
Knowing that, doe• that cause you
15
A
Not at all.
16
Q
Do you happen to have any acquaintances or friends or
relatives that are gay?
17
18
A
Not that X know of.
19
0
Xf you were to find out today that one of your
20
friends is gay, would it make any difference towards
21
you as far as your friendship is concerned?
22
A
Not really.
23
0
How do you feel about the proposal to allow
homosexuals into the armed services?
24
A
25
X feel they have been there for some time.
932
''
App. 111
Case 5:00-cv-05020-KES Document 389-6 Filed 11/27/17 Page 31 of 58 PageID #: 6368
0
1
To make it official wouldn't make any difference to
you?
2
3
A
Not at all.
-'
0
would you say you are in favor of that proposal?
A
Leaning more toward indifference than favorable.
5
I
6
think if it's a decision of our superiors, well let's
7
just say you'd have to live with it.
8
0
You have never served on a jury before?
9
A
No, I haven't.
10
0
Rave you heard over the years about the presumption
11
of innocence and the burden of proof and reasonable
12
doubt?
13
.l
I have seen enough Perry Mason.
14
Q
One thing about Perry Mason i• also a defense lawyer
15
and he always has something to put on as evidence or
16
does something to show hi• clients are innocent.
17
Now, do you understand that the burden of proof and
18
guilt beyond a reas,onable doubt is actually on the
19
state at all stages of the case and the burden never
20
shifts?
21
A
That'• correct.
22
Q
so that the Defendant is not obligated or expected to
23
put on any evidence of any kind at all; he has three
24
lawyers and we can decide not to put on a thing and
25
you can't hold that against Mr. Rhines; do you agree
933
II
App. 112
Case 5:00-cv-05020-KES Document 389-6 Filed 11/27/17 Page 32 of 58 PageID #: 6369
1
with that?
2
A
Yes, sir.
3
Q
Have you had a chance, through your studies or over
Abso1utely.
8
4
the years in yoµr life, to give any thought to the
5
death penalty?
6
A
Yes, I have.
7
Q
Have you come to any opinions or conclusion?
8
A
I think it should be a case-by-case basis.
9
I can't
say that it should be arbitrary for every crime.
10
Q
11
On the other band, you are not opposed to it, so it
should never be permitted?
12
A
You could say this.
13
Q
In South Dakota in a criminal case where tbe State
14
has decided that they want to ask for the death
15
penalty, there could be two trials.
16
trial which the jury is asked to determine whether
17
they think guilt has been proved beyond a reasonable
18.
doubt.
19
murder, so it would be the State's obligation to
20
prove at the trial that we are now concerned with
21
that he's guilty of first degree murder beyond a
22
reasonable doubt.
23
murder beyond a reasonable doubt, then the jury's
24
function as far as Mr. Rhines in further proceedings
25
is concerned is over.
There is the
Here Mr. Rhines is charged with first degree
If they don't prove first degree
If they do prove guilt beyond
934
II
App. 113
Case 5:00-cv-05020-KES Document 389-6 Filed 11/27/17 Page 33 of 58 PageID #: 6370
1
a reasonable doubt, then the jury ia asked to
2
consider whether there are certain aggravating
3
circumstance• that the Judge will instruct you about
4
and define for you, and if the jury in this second
5
part of the trial f inda beyond a reasonable doubt
6
that one or aore of these aggravating circumstances
1
are present, then the jury consider• whether to
8
impose a death sentence.
9
about how people are sentenced to death and it goes
And we hear in the news
10
on for years and years and there are appeal• and
11
commutations, but the fact is, the death penalty in
12
south Dakota is carried out.
13
that the jury could be thinking, if we sentence him
14
to death, something else will happen.
15
is not required to sentence him to death, even if
16
they find an aggravating circumstance.
17
finds an aggravating circuatance but concludes the
18
death penalty ia not appropriate, then there ia
19
iapriaonaent.
20
without possibility of parole.
21
sentenced to life, he'd never get out and if the jury
22
finds that there are not aggravating circumstances
23
proved beyond a reasonable doubt, then it would be a
24
life imprisonment situation instead of the death
25
penalty.
so this ia not a thing
And the jury
If the jury
life
In South Dakota that means life
If Mr. Rhines was
Now, since you have had a chance to think
935
II
App. 114
Case 5:00-cv-05020-KES Document 389-6 Filed 11/27/17 Page 34 of 58 PageID #: 6371
1
about the death penalty over the yeara, do you think
2
that there are any typea of cases that come to mind
3
where it is appropriate?
4
A
Yea.
5
Q
What comes to mind?
6
A
Well, if it'• indeed a heinous, let'• say a crime
7
that goes beyond -- x don't know what we'd consider
8
normal, maybe a normal, something that society is
9
more in tune with, something that'• so bizarre and
10
outlandish or something that basically that the jury
11
warrants that the death penalty be imposed.
12
Q
Xt may be that if the jury should get to the second
13
phase after the trial and you listen to the Court
14
define and list these aggravating oircumatanoea, it
15
may be that some of the aggravating circumstances
16
would be as bad as what you just described.
17
wouldn't necessarily have to be a bizzare type of
18
thing or something that is just horrible or something
19
that's bard to describe; would you be able to follow
20
the Court's instruction• and give serious
21
consideration to an aggravating circumstance that
22
maybe doesn't rise to thi• horrible •••
23.
A
X guess we would have to wait and see what is
presented there.
24
25
Xt
Q
After you had seen what is presented, would you be
936
App. 115
Case 5:00-cv-05020-KES Document 389-6 Filed 11/27/17 Page 35 of 58 PageID #: 6372
able to follow tha Court's instructions?
1
2
A
Yaa.
3
Q
Aa long aa you understood them you'd be abla to
follow them?
4
5
A
Yea.
6
Q
I try to make -- I just interrupted you.
7
A
Hack, no, don't worry about it.
I finished.
I just
a
wanted to say, yes, I could make a decision if ao
9
instructed.
10
Q
And you'd be able to give serious consideration both
11
to the death penalty and the aggravating
12
circumstances that you would be instructed about as
13
well aa going the other way and life without parole?
14
A
Once the evidence is presented.
15
Q
Have you got an idea in your mind right now as you
16
think would be the worse sentence to give a person,
17
death or life without parole?
18
A
without parole.
19
Q
20
Do you hold that view so strongly that you think an
execution might be doing a Defendant a favor?
21
22
In my opinion the worst sentence would be life
. A
Not necessarily.
It depends on the circumstances,
you know.
23
24
Q
And maybe in your mind if you somehow hypothetically
were in a situation you might even want to be
25
937
II
.---------- ....
App. 116
Case 5:00-cv-05020-KES Document 389-6 Filed 11/27/17 Page 36 of 58 PageID #: 6373
executed instead of doing life without parole?
l
2
A
Have :rou beard an:rthing about this case?
3
'5
Possibl:r.
A
Znitiall:r some standard stuff, but it just went by
the wa:rside.
9
Ve had a lot of work come up in the
6
office and worked a lot of nights and Z didn't keep
7
up with it in the last few months and to be honest it
a
was a surprise to get called in, a real surprise.
9
Q
When :rou got called in, did the name Charles Rhines
mean an:rthing to :rou at all?
10
11
A
Yeah,' it did.
12
Q
What do you recall hearing about Mr. Rhines before
you were called here for jury dut:r?
13
14
A
The stuff that was in the news and stuff like that,
15
bringing him in from Washington State back to be
16
Rapid Cit:r. · Z figured there'd be a trial at some
17
point, but as far as the specifics of it, no.
18
Q
can recall as us sit here today?
19
20
Any other more specifics or more detailed things you
A
No, just standard stuff.
Again, Z remember it when
21
the night back in March it happened because Z had to
22
drive to Colorado, and other than that just went into
23
kind of a blur.
24
25
Q
How about since Monday, have you beard anything or
read anything?
938
App. 117
Case 5:00-cv-05020-KES Document 389-6 Filed 11/27/17 Page 37 of 58 PageID #: 6374
1
A
I followed the Judge'• inatructiona when the local
2
newa came on, and I went in the other room and I
3
noticed that the newspaper really cut down in today's
'
paper what they had about it and I don't think there
5
was anything at all.
I waa more interested in the
6
sport's page to be honest with you.
7
Because of anything that you might have read or heard
8
or discussed with friend• or family people at work,
9
do you come here today with any ideas one way or the
10
other whether Mr. Rhines is guilty or not guilty of
11
this of fsnse?
12
A
Not at all.
13
MR. GILBBRT:
14
BXAMIHATION BY MR. GROFF:
15
Q
Mr. Bennett, I'm the Stata's Attorney?
16
A
Good morning, sir.
17
Q
It's going to ba my job during the next couple of
Thank you.
That's all the
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