Petition — Solem v. Nerison

Office - Supreme Court, U

83-1002 FILED

DEC 17 1806

ALEXANDER LL. S

NO. 83- CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

HERMAN SOLEM, Warden

South Dakota State Penitentiary,

Petitioner,

Vv.

RICHARD ALLEN NERISON,

Respondent,

CROSS-PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

MARK V. MEIERHENRY

ATTORNEY GENERAL

Grant Gormley

Chief Deputy Attorney General

State Capitol

Pierre, South Dakota 57501-5090

Telephone: (605) 773-3215

Counsel for Petitioner

QUESTION PRESENTED

WHETHER A CIRCUIT COURT OF APPEALS

VIOLATES THE RULE OF ROSE V. LUNDY,

BY SUA SPONTE RAISING A NEW ISSUE

AT THE FEDERAL APPELLATE LEVEL AND

THEN RULING THAT THE NEW ISSUE IS

UNEXHAUSTED WHILE, AT THE SAME

TIME, ADDRESSING THE REMAINING

ISSUES?

(i)

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED i

TABLE OF AUTHORITIES iii

JURISDICTIONAL STATEMENT 1

STATEMENT OF THE CASE 2

REASONS FOR GRANTING THE CROSS-PETITION 7

I. THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT HAS

DECIDED A FEDERAL QUESTION IN A WAY

IN CONFLICT WITH APPLICABLE DECI-

SIONS OF THIS COURT. 7

II. THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT HAS

DECIDED AN IMPORTANT QUESTION OF

FEDERAL LAW WHICH HAS NOT BEEN, BUT

SHOULD BE, SETTLED BY THIS COURT. 9

CONCLUSION 10

APPENDIX

(ii)

TABLE OF AUTHORITIES

CASES: PAGE

Rose v. Lundy, 455 U.S. 509, 71 L.Ed.zd

, 102 S.Ct. 1198 (1982) 8

OTHER REFERENCES:

28 U.S.C. § 2253 5

28 U.S.C. § 2254 3, 4

(iii)

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NO. 83-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

HERMAN SOLEM, Warden

South Dakota State Penitentiary,

Petitioner,

Vv.

RICHARD ALLEN NERISON,

Respondent,

JURISDICTIONAL STATEMENT

On August 24, 1983, the Eighth Circuit

Court of Appeals entered Judgment and filed

an Opinion denying Petitioner Nerison's

Petition for Writ of Habeas Corpus.

On November 21, 1983, Petitioner

Nerison's Petition for Writ of Certiorari to

2

the United States Court of Appeals for the

Eighth Circuit and Appendix in the case of

Richard Allen Nerison v. Herman Solem, et al.,

was received by the South Dakota Attorney

General's Office, the attorneys for the

Respondents.

This Court's jurisdiction is invoked

under rules of the Supreme Court No. 19.5.

STATEMENT OF THE CASE

On January 30, 1976, #=Richard Allen

Nerison pled guilty to the crime of third

degree burglary at arraignment before a South

Dakota circuit judge. Nerison's plea was

entered pursuant to a plea agreement in which

the prosecuting attorney agreed to drop the

original charge of first degree burglary if

Nerison would plead guilty to third degree

burglary. Nerison was sentenced to six (6)

years in the State Penitentiary.

This judgment and six-year sentence were

a

-

. %

a

later vacated.

pee se

3

On December 17, 1976, Nerison was then

recharged with first degree burglary.

Nerison was convicted of first degree bur-

glary by a trial jury and sentenced to

fifteen (15) years in the State Penitentiary.

On July 18, 1979, Nerison requested and

received a state post-conviction relief hear-

ing. On January 18, 1980, Nerison's requested

post-conviction relief was denied.

On July 29, 1980, Nerison filed with the

United States District Court for the District

of South Dakota, Southern Division, a Peti-

tion for Writ of Habeas Corpus pursuant to 28

U.S.C. § 2254. In that application, Nerison

claimed the following six grounds for relief:

1. Did the trial court abuse its

discretion in refusing Peti-

tioner's request for a change

of judge?

2. Did the trial court abuse its

discretion in refusing to

permit Petitioner a continu-

ance for the reason that

Petitioner's attorney was

|

- es

4

requested to prepare Peti-

tioner's case only two days

prior to trial?

Bie Did the trial court abuse its

discretion in denying Peti-

tioner's request for

appointment of substitute

counsel?

4. Was the Petitioner denied

effective assistance of coun-

sel?

5. A. Did the Jury Instruction

No. 11 violate : Peti-

tioner's right of due

process?

B. Did Jury Instruction No.

12 violate Petitioner's

constitutional rights?

6. Was the trial court's refusal

to give Petitioner's proposed

jury instructions 2 through 4

constitutional error?

The jurisdiction of the District Court

to hear the Petition for Writ of Habeas

Corpus was invoked pursuant to 28 U.S.C. §

2254. | \

On February 24, 1982, the District Court ©

rejected Nerison's arguments and on Febru-

ary 25, 1982, filed a Judgment of Dismissal.

5

On April 16, 1982, Nerison's Notice of

Appeal of the above issues was filed with the

Eighth Circuit Court of Appeals. The juris-

diction of the Circuit Court of Appeals was

invoked pursuant to 28 U.S.C. § 2253.

On January 31, 1983,- following submis-

sion of briefs by both parties, the Eighth

Circuit Court of Appeals, on its own motion,

ordered the parties to file supplemental

briefs covering the new issue of “enhanced

sentence." (Appendix at pp. 62-63).

The State's Supplemental Brief responded

to the order by claiming that the Eighth

Circuit Court of Appeals was not empowered to

decide the new “enhanced sentence" issue

because (1) a court of appeals may not con-

sider facts or issues not presented to the

district court, (2) Rose v. Lundy, denied

jurisdiction by the Eighth Circuit Court of

wh Oe

a < - .

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Lee

6

Appeals, (3) Engle v. Isaac, denied juris-

diction by the Eighth Circuit Court of

Appeals, (4) a Court of Appeals. has no juris-

diction to grant an original writ of habeas

corpus, and (5) the new “enhanced punishment"

issue was not ripe for adjudication.

In its opinion filed o7 August 24, 1983,

the Eighth Circuit Court of Appeals ruled on

the new “enhanced punishment" issue in a

footnote as follows:

Nerison received a six year sen-

tence after pleading guilty to

third degree burglary; following

his conviction for first degree

burglary, he received a fifteen

year term. He now argues that the

imposition of a longer sentence

after retrial for the same criminal

transaction is unconstitutional in

light of North Carolina v. Pearce,

395 U.S. Vil (1968). In Pearce,

the Court set certain guidelines to

be followed upon resentencing after

a new trial. Nerison raises this

claim for the first time on appeal.

Because Nerison has not exhausted

his state remedies, we have no

jurisdiction to review this claim.

(Appendix at p. 16).

4

Notwithstanding their own ruling that

the new "enhanced punishment" issue was

unexhausted, the Eighth Circuit opinion pro-

ceeded to rule on the merits of Nerison's

other issues.

The August 24, 1983, opinion denied

Nerison's requested relief.

On November 21, 1983, Nerison's Petition

for Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit in

the case of Richard Allen Nerison v. Herman

Solem, et al., was received by South Dakota

Attorney General's Office, the attorneys for

the Respondents.

This Cross-Petition for Writ of Cer-

tiorari followed.

REASONS FOR GRANTING THE CROSS-PETITION

I

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT HAS DECIDED

A FEDERAL QUESTION IN A WAY IN

CONFLICT WITH APPLICABLE DECISIONS

OF THIS COURT.

8

In Rose v. Lundy, 455 U.S. 509, 71

L.Ed.2d 379, 102 S.Ct. 1198 (1982), this

Court held that if a federal district court

is presented a petition for writ of habeas

corpus containing both exhausted and unex-

hausted claims, the court must "dismiss such

‘mixed petitions,' leaving the prisoner with

the choice of returning to state court to

exhaust his claims or of amending or resub-

mitting the habeas petition to present only

exhausted claims to the district court."

In this case, Nerison's habeas corpus

petition to the federal district court con-

tained only exhausted claims. It is also

true that Nerison's appeal to the Eighth

Circuit Court of Appeals originally contained

only exhausted claims.

When, however, the Eighth Circuit or-

dered the parties to brief the new "enhanced

punishment" issue, the parties complied, and

the Eighth Circuit, in its opinion, held that

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9

the new issue was unexhausted, Nerison's

habeas corpus petition was transformed into a

“mixed petition."

Therefore, the decision of the Eighth

Circuit Court of Appeals to address Nerison's

remaining issues was a violation of the total

exhaustion requirement articulated in Rose.

II

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT HAS DECIDED

AN IMPORTANT QUESTION OF FEDERAL

LAW WHICH HAS NOT BEEN, BUT SHOULD

BE, SETTLED BY THIS COURT.

Assuming, arguendo, that Rose v. Lundy

is not dispositive of Nerison's appeal (for

the Eighth Circuit, not Nerison, created the

rixed petition), the State of South Dakota

believes that the question whether a circuit

court of appeals violates the rule of Rose v.

Lundy by sua sponte raising a new issue at

the appellate level and then ruling that the

new issue is unexhausted while, at the same

10

time, addressing the remaining issues, is an

important question of federal law which has

not been, but should be, settled by this

Court.

CONCLUSION

Based on the foregoing arguments and

authorities, the State of South Dakota prays

that its Cross-Petition for Writ of Certior-

ari to the United States Court of Appeals for

the Eighth Circuit be granted.

Respectfully’ submitted

‘ioe

Hrant Aolon f

Grant Gormley U0

Chief Deputy Attorney General

State Capitol

Pierre, South Dakota 57501-5090

Telephone: (605) 773-3215

Counsel for Petitioner

or ,

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JUDGMENT

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 82-1483-SD

September Term, 1982

Richard Allen Nerison,

Appellant,

vs.

Herman Solem, Warden, etc., et al,

Appellees.

Appeal from the United States District

Court for the District of South Dakota.

This appeal from the United States Dis-

trict Court was submitted on the record of

the said District Court and briefs of the

parties without oral argument.

After consideration,

it is ordered and

adjudged that the judgment of the said Dis-

—

trict Court in this cause be, and the same is

Aas

A=-2

hereby, affirmed in accordance with the

opinion of this Court.

August 24, 1983

A True Copy:

ATTEST: /s/ Robert D. St. Vrain

Clerk, U.S. Court of Appeals,

Eighth Circuit

9/21/83

*

A-3

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 82-1483

Richard Allen Nerison, *

Appellant,

Vv. Appeal from the

United States District

Court for the District

of South Dakota

Herman Solem, Warden,

South Dakota State

Penitentiary and Mark

Meierhenry, Attorney

General, State of

South Dakota,

e*eeezeeeee eee se &

Appellees.

Submitted: August 18, 1983

Filed: August 24, 1983

Before HEANEY, ROSS and FAGG, Circuit Judges.

ROSS, Circuit Judge.

Richard Allen Nerison filed a petition

for a writ of habeas corpus pursuant to 28

U.S.C. § 2254 in United States District

A-4

Court.

His petition was ‘nied and he

appeals to this court. For the reason set

forth below, we affirm the judgment of the

District court.

Nerison was charged with the first de-

gree burglary of an occupied structure in

Union County, South Dakota, on December 26,

1975. On January 30, 1976, pursuant to a

plea bargain, Nerison pleaded guilty to the

crime of third degree burglary and was sen-

tenced to six years in the South Dakota Peni-

tentiary by Circuit Judge Donald Erickson.

The judgment and sentence were later vacated

in post-conviction proceedings. Thereafter,

Nerison was recharged with first degree bur-

glary based on the same incident. Nerison

went to trial on December 29, 1976, and a

1 The Honorable John B. Jones, United States

District for the District of South Dakota.

3

A-5

jury convicted him of first degree burglary

on December 30. Judge Erickson presided over

both trials.

Nerison petitioned the state trial court

for post-conviction relief, which was denied

after an evidentiary hearing. Nerison ap-

pealed the denial to the South Dakota Supreme

Court. Having exhausted all state remedies,

Nerison filed a federal habeas corpus peti-

tion, assigning the following errors in his

state trial:

That his due process rights were violat-

ed when his request for change of judge was

denied as untimely and the trial judge failed

to recuse himself on his own motion.

That his rights to due process and ef-

fective assistance of counsel were denied by

the court's refusal to substitute court ap-

pointed counsel.

That the trial judge deprived him of ef-

fective assistance of counsel by denying his

motion for a continuance.

That two of the trial court's jury in-

structions violated his due process rights.

A-6

That the court's refusal to give three

of his proposed instructions to the jury vio-

lated due process.

Discussion

A. Change of Judge

Nerison filed an affidavit of prejudice

against Judge Erickson on December 17, 1976,

two days before his trial date. The affidav-

it alleged that Judge Erickson had formed an

opinion that Nerison was guilty of the of-

fense charged because the judge had accepted

his earlier plea and had become familiar with

the facts of the case. Through this affi-

davit, Nerison requested that another judge

be appointed. The presiding circuit judge

denied the request because it was not timely

made more than ten days prior to trial, as

required by S.D. CODIFIED LAWS ANN. § 15-1227

(1967). Under Wainright v. Sykes, 433 U.S.-

72 (1977), failure to comply with state pro-

cedure is an independent and adequate state

A-7

ground barring federal habeas corpus review,

absent a showing of cause for and actual pre-

judice resulting from the waiver. This prin-

ciple applies even where the error affects

the truthfinding function of the state trial.

Engle v. Isaac, 456 U.S. 107, 129 (1982).

Nérison cites Canon 3C(1l)(a) of the

South Dakota Code of Judicial Conduct, Appen-

dix to Chapter 16-2 of the South Dakota Codi-

fied Laws:

¢. Disqualification.

(1) A judge should dis-

qualify himself in a

proceeding in which

his impartiality

might reasonably be

estioned, includ-

ing but not limited

to instances where:

(a) he has a per-

sonal bias or

prejudice con-

cerning a par-

ty, or personal

knowledge of

disputed evi-

dentiary facts

concerning the

proceeding;

A-8

This section clearly refers to personal bias,

as opposed to judicial bias. It is settled

in this circuit that the bias necessary to

disqualify a judge must “stem from an extra-

judicial source and result in an opinion on

the merits on some basis other than what the

judge learned from his participation in the

case. United States v. Beneke, 449 F.2d

1259, 1260-61 (8th Cir. 1971)(quoting United

States v. Grinnel Corp., 384 U.S. 563, 583

(1966)). A trial judge's mere familiarity

with a party and his legal difficulties

through prior judicial hearings does not

automatically or inferentially raise the

issue of bias. Id. at 1261. Nerison has not

pointed to any instances of personal bias and

his claim of judicial bias is factually

unsubstantiated. Having shown no cause for

his failure to make a timely request and no

prejudice as a result, he has no grounds for

habeas corpus relief.

A-9

B. Ineffective Assistance of Counsel

Nerison contends that his trial counsel

failed to effectively represent him. The

district court applied the Eighth Circuit

standard of review for this claim, as set out

in Dupree v. United States, 606 F.2d 829,

830-31 (8th Cir. 1979), cert. denied, 445

U.S. 919 (1980):

The standard for determining

the adequacy of counsel is whether

the trial counsel exercised "the

customary skills and diligence that

a reasonably competent attorney

would perform under similar cir-

cumstances." United States v. Eas-

ter, 539 F.2d 663, 666 (8th Cir.

1976), cert. denied, 434 U.S. 844,

98 S.Ct. 145, 54 L.Ed.2d 109 (1977).

There is a presumption that counsel

has rendered effective assistance.

Thomas v. Wyrick, 535 F.2d 407, 413

(8th Cir.), cert. denied, 429 U.S.

868, 97 S.Ct. 178, 50 L.Ed.2d 148

(1976). To overcome the presump-

tion, appellant must show, that: (1)

there was a failure to rform an

essential duty owned [sic] by the

defense attorney to his client; and

(2) that the failure prejudiced the

defense. McQueen v. Swenson, 498

F.2d 207, 218 (8th Cir. 1974).

A-10

In regard to this contention, the court made

the following factual determinations:

Counsel was familiar with the case —

before trial, having represented Nerison in

prior post-conviction proceedings concerning

the same incident;

Counsel consulted with his client a num-

ber of times aftex being formally appointed

on December 3, and attended the December 13

hearing *n an advisory capacity;

Counsel adequately prepared for trial

and adequately conducted his client's de-

fense. He demonstrated reasonable familiar-

ity with the facts at trial, conducted both

adequate direct and cross-examination, and

secured the testimony of several witnesses,

including one expert witness to support his

client's defenses. In light of these circun-

stances, we find that Nerison has not over-

come the presumption of adequate representa-

tion.

o. Denial of Continuance and Substitu-

tion of Counsel

At the preliminary hearing, Nerison in-

formed the court that he did not want his

court-appointed attorney» to represent him.

A-11

The court amended its order to make counsel's

assistace available at Nerison's request, and

continued the preliminary hearing for one

week to allow him to retain other counsel.

Nerison failed to get another attorney,

insisting that the court must appoint one to

his satisfaction. On December 27, 1976,

¥ Nerison requested his court-appointed counsel

to represent him at the trial scheduled to

commence on December 29, 1976. On Decem-

ber 28, 1976, counsel telephoned the trial

judge to request that the trial be postponed.

Immediately preceding the trial and immedi-

ately after both sides had rested, counsel

moved for dismissal based on the trial

court's refusal to grant his client's request

for a continuance. Both motions were denied.

A denial of a continuance will be re-

versible error only if there is a clear abuse

of discretion. United States v. Sheehy, 670

F.2d 798, 799 (8th Cir. 1982). To determine

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A-12

whether the trial court has abused its dis-

cretion, the reviewing court will consider

factors including counsel's time for prepara-

tion, conduct of counsel at trial and pres-

ence of prejudice in the record. United

States v. Campbell, 609 F.2d 922, 925 (8th

Cir. 1979), cert. denied, 445 U.S. 918 (1980).

The factual basis underlying both the crime

charged and the available defenses was rela-

tively simple. Furthermore, although Nerison

did not fully accept counsel's representation

until two days before trial, counsel was fam-

iliar with the case, having represented him

in prior post-conviction and pretrial pro-

ceedings. No prejudice resulted from the

trial court's denial, and if counsel was not

completely prepared, Nerison contributed to

the lack of preparation.

To warrant substitution of counsel, the

defendant must show justifiable dissatis-

faction with his appointed counsel. United

A-13

States v. Hart, 557 F.2d 162, 163 (8th Cir.),

cert. denied, 434 U.S. 906 (1977. The right

to effective assistance of counsel may not be

improperly manipulated by an eleventh hour

request to obstruct the orderly administra-

tion of justice. Id. Substitution of coun-

sel is a matter committed to the sound dis-

cretion of the trial court. In the context

of this case, grounded either on ineffective

assistance of counsel or abuse of discretion

in denying a continuance, the critical issue

is whether the appellant was materially

prejudiced by the trial court's failure to

grant a continuance to allow his counsel to

further prepare the case. Nerison has made

no showing of prejudice.

D. Jury Instructions

First, Nerison claims that the trial

court erred by giving jury instructions 11

and 12. He argues that instruction 11 re-

moved the element of specific intent from the

A-14

burglary charge, and that instruction 12

impermissibly shifted the burden of proof on

the specific intent element from the state to

him. South Dakota has a statutory contempor-

aneous objection rule, S.D. CODIFIED LAWS

ANN. § 23A-24-2(5) (1979); we note that

Nerison never objected to these instructions

at trial. Failure to raise a timely objec-

tion is a procedural bar to habeas corpus

review under Wainwright v. Sykes, 433 U.S. 72

(1977), and Nerison has shown no cause for

his failure to object. Under these cir-

cumstances, Wainwright v. Sykes is disposi-

tive. Cf. Dietz v. Solem, 640 F.2d 126 (8th

Cir. 1981).

Finally, Nerison contends that he was

entitled to have the jury instructed on the

lesser included offenses of grand larceny and

petty larceny. At trial, Nerison proposed

three larceny instructions, but the court

rejected them and instructed the jury on

A-15

first, third and fourth degree burglary.

Nerison now argues that he was entitled to

the larceny instructions as a matter of due

process.

Claimed errors in instructions

to the jury are generally not of

such constitutional magnitude and

do not state a claim for habeas

corpus relief. * * * More particu-

larly the courts have held that the

trial court's failure to give a

lesser included offense instruction

is not normally such a constitu-

tional error or "fundamental de-

fect" as to allow collateral review

under habeas corpus.

DeBerry v. Wolff, 513 F.2d 1336, 1338-39 (8th

Cir. 1975)(citation omitted). It is signifi-

cant that the jury was charged on the lesser

offenses of third and fourth degree burglary,

but returned a verdict of first degree bur-

glary. Thus, the failure to give instruc-

tions on larceny, even if error, was harm-

less. Cooper v. Campbell, 597 F.2d 628, 631

(8th Cir.), cert. denied, 444 U.S. 852 (1979).

" i.

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A-16

We have thoroughly reviewed the state

court files and transcripts of proceedings,

as well as the record in federal court, and

we affirm the district court's denial of the

writ.”

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

2

Nerison received a six year sentence after

pleading guilty to ‘third degree burglary;

following his conviction for first degree

burglary, he received a fifteen year term.

He now argues that the imposition of a longer

sentence after retrial for the same criminal

transaction is unconstitutional in light of

North Carolina v. Pearce, 395 U.S. 711 (1968).

In Pearce, the Court set certain guidelines

to be followed upon resentencing after a new

trial. Nerison raises this claim for the

first time on appeal. Because Nerison has

not exhausted his state remedies have no

jurisdiction to review this claim.

A-17

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

an Sn RARER HA RE WHR OR 2 OSS

RICHARD ALLEN NERISON, * CIV 80-4132

-_

Petitioner, *

*

-vs- * MEMORANDUM OPINION

x

HERMAN SOLEM, Warden, *

South Dakota State *

Penitentiary; *

MARK V. MEIERHENRY, *

Attorney General, *

State of South Dakota, *

*

”

Respondents.

ee ee

Richard Allen Nerison (Petitioner) peti-

tioned thi~ court for a Writ of Habeas Cor-

pus, pursuant to 28 U.S.C. 2254, alleging

that he is incarcerated in the South Dakota

State Penitentiary in violation of the United

States Constitution. Counsel for both Peti-

_tioner and Respondent stipulated that the

A-18

entire state court file be made a part of the

record in this case, that no further evidence

need be introduced, and that the issues be

submitted on briefs.

On January 30, 1976, pursuant to a plea

bargain, Petitioner pled guilty to the crime

of third degree burglary and was sentenced to

six years in the South Dakota State Peniten-

tiary by a state court judge. This guilty

1 Nerison is incarcerated for the first de-

gree burglary of an occupied structure in

Union County, South Dakota, on December 26,

1975. The petition, filed on July 29, 1980,

was initially referred, by U. S. District

Judge Fred J. Nichol, to former U. =. Magis-

trate William F. Clayton, who settled the

record by Order dated November 10, 1980. It

was thereafter transferred to the current

U.S. Magistrate. This court agreed to take

the petition under advisement in late January

of 1982.

Although the Stipulation and Order set-

tling the record in this case does not clear-

ly refer to Mr. Nerison's state court post-

conviction file, the court has considered

both the criminal file, State v. Nerison, Cr.

76-1, and the post-conviction file, Nerison

v. State, denominated Cr. 79-97.

A-19

plea and concomitant sentence were later va-

cated in post-conviction proceedings. Short-

ly thereafter, Petitioner was recharged with

first degree burglary. Both charges stemmed

from the same incident.

Following arraignment and appointment of

counsel on December 3, 1976, and a prelimin-

ary hearing on December 13, 1976, petitioner

was convicted of first degree burglary, by

jury verdict, on December 30, 1976. The

judge who had previously taken petitioner's

guilty plea also presided at the trial and

later sentenced petitioner to fifteen years

in the State Penitentiary.

Post-conviction relief was denied by the

state trial court, after an evidentiary hear-

ing. A certificate of probable cause to

appeal that decision was denied by both the

trial court and the South Dakota Supreme

Court. Respondent concedes in its answer

A-20

that petitioner has exhausted all available

state remedies.

Petitioner raises the following issues:

(1) Were petitioner's due process

rights violated when his request for change

of judge was denied as untimely and when the

trial judge failed to recuse himself on his

own motion?

(2) Was petitioner denied due process

and ineffective assistance of counsel when

his repeated requests for substitute court-

appointed counsel were denied?

(3) Was petitioner deprived of effec-

tive assistance of counsel and a fair trial

when the trial judge denied his motion for a

continuance shortly before the trial?

(4) Did two of the trial court's jury

instructions and its refusal to give three of

the petitioner's proposed instructions de-

prive petitioner of due process of law?

A-21

(5) Was petitioner's trial counsel con-

stitutionally ineffective?

Petitioner's first three grounds concern

alleged procedural errors committed by the

state trial court. It is well established,

however, that the function of federal courts

in reviewing habeas corpus petitions is not

to remedy state court procedural errors or to

promulgate state rules of criminal procedure.

Rather, a justiciable federal issue is pre-

sent only where the state procedural or trial

error infringes upon a specific constitution-

al protection or is so prejudicial as to

amount to a denial of due process of law.

Arnold v. Wyrick, 646 F.2d 1225 (8th Cir.

1981); See Schleicher v. Wyrick, 529 F.2d 906

(8th Cir. 1976).

CHANGE OF JUDGE

Having failed to timely file an affi-

davit of prejudice against the trial judge

A-22

under state procedural law, petitioner now

Claims that he was denied due process of law

because of the judge's prejudice against him.

The judge had previously accepted petition-

er's guilty plea to the charge of third

degree burglary, had established a factual

basis for that plea, and had sentenced him to

Six years in the penitentiary for acts aris-

ing out of the same incident for which peti-

tioner was subsequently sentenced to fifteen

years. Petitioner contends that this sen-

tencing disparity alone clearly demonstrates

the prejudice of the trial judge. Alterna-

tively he argues that, because the judge's

impartiality might reasonably be questioned,

a different judge should have been appointed

even if he cannot show actual prejudice

during the trial.

Petitioner's claims are without merit.

All factual issues in this case were tried to

a jury. Although a trial before an unbiased

t. --ee

A-23

judge is essential to due process, petitioner

has not shown any specific manifestations of

bias on the part of the trial court. Nor has

he alleged any attempt by the trial court to

influence the jury or its verdict. Notably,

a different state judge, after holding a

post-conviction hearing on this issue, found

no evidence of bias or prejudice on the part

of the trial judge. That finding is presump-

tively correct, 28 U.S.C. 2254(d), and has

been confirmed by this Court's independent

review of the record.

Furthermore, petitioner has neither

claimed nor shown any personal bias on the

part of the judge; rather, he simply alleges

that the judge formed a prior opinion on

petitioner's guilt or innocence through what

he had learned about the case in previous

judicial proceedings. Petitioner cites no

authority establishing a violation of any due

A-24

process rights simply because of knowledge

gained in pre-trial proceedings.

More importantly, however, petitioner's

claim of judicial prejudice is factually un-

substantiated. The mere fact that the trial

judge exercised his statutory discretion in

sentencing petitioner to a longer prison

term, after the facts surrounding the bur-

glary were fully developed at trial and after

petitioner had been convicted of a more

serious felony by jury verdict, does not

establish either prejudice on the part of the

trial judge or prejudice to petitioner during

his trial. Absent a showing of prejudice,

petitioner's claim that the judge should have

disqualified himself because “his impartial-

ity might reasonably be questioned," has no

constitutional significance. Compare Menden-

hall v. Hopper, 453 F.Supp. 977, 983 (S.D. Ga.

1978).

A-25

Because of this disposition on _ the

merits, the court does not address respon-

dent's claim that review is barred under

Wainwright v. Sykes, 433 U.S. 72 (1977),

because petitioner failed to file a timely

request for change of judge under S.D.C.L.

15-32-27.

APPOINTMENT OF SUBSTITUTE COUNSEL

Petitioner alleges that because of a

complete breakdown of communications with his

2 petitioner's affidavit for change of judge

was filed on December 23, 1976. The trial

date had been previously set for December 29,

1976. Thus, petitioner had not complied with

S.D.C.L. 15-12-27 which reads, in pertient

[sic] part, as follows:

[A]n affidavit for change of cir-

cuit judge. . . must be filed with-

in the following times:

(b) In actions triable by a jury

in the circuit court at least ten

days prior to the date said action

is scheduled for trial ....

A-26

appointed counsel, counsel's lack of trial

preparation, petitioner's mistrust of

counsel, and general animosity between the

two, the trial court's refusal to appoint

substitute counsel resulted in ineffective

assistance of counsel and a denial of peti-

tioner's due process rights. These claims

are unsubstantiated and without merit.

A court is not constitutionally required

to provide an indigent accused with appointed

counsel of his own choosing. Therefore, in

absence of good cause or a showing of "justi-

fiable dissatisfaction" with appointed

counsel by the petitioner, substitution of

counsel is a matter committed to the sound

discretion of the trial court. United States

v. Hart, 557 F.2d 162 (8th Cir. 1977), cert.

denied 434 U.S. 906 (1977); United States v.

Young, 482 F.2d 993 (Sth Cir. 1973); State

v. Erickson, 129 N.W.2d 712 (S.D. 1964).

oa P|

A-27

By the same token a complete breakdown

in communications or an irreconcilable con-

flict that leads to an apparently unjust

verdict, or some other "justifiable dissatis-

faction" may be sufficient to deprive an

accused of effective assistance of counsel.

See Brown v. Craven, 424 F.2d 1166 (9th Cir.

1970); U.S. v. Hart, supra; U.S. v. Young,

supra.

Petitioner's reliance on Brown v. Craven

is misplaced. The record here indicates that

any conflict between petitioner and his

court-appointed attorney was neither irrecon-

Ccilable nor so great that it resulted in a

"total lack of communication" between the

accused and his appointed attorney. The two

conferred a number of times prior to trial.

Counsel also advised petitioner on filing an

affidavit of prejudice against the trial

judge, and later, at petitioner's request,

prepared and submitted such an affidavit.

ee ee

soe

.

A-28

Petitioner ultimately requested that counsel

defend him at trial. The trial testimony of

petitioner and the various witnesses who

presented testimony in petitioner's defense,

pursuant to questions asked by the defense

attorney, shows that counsel had prepared the

case and had communicated with his client

prior to trial. Moreover, there is no indi-

cation that dissatisfaction with counsel

resulted in an unjust verdict. Consequently,

Brown v. Craven is clearly distinguishable.

The court is also not convinced that the

state trial court inadequately inquired into

the factual basis of petitioner's dissatis-

faction with counsel. Pursuant to petition-

er's repeated requests for the opportunity to

secure private counsel and his general claims

of dissatisfaction with appointed counsel,

the state court amended its order appcinting

counsel to make counsel's assistance avail-

able at petitioner's request. A different

A-29

judge, acting as the committing magistrate,

also reviewed and rejected petitioner's

claimed dissatisfaction with counsel; he, in

fact, continued petitioner's preliminary

hearing for one week to give him an opportun-

ity to retain counsel. By the time of the

rescheduled hearing it was apparent that

petitioner had not yet secured private coun-

sel but continued to believe that the trial

court must appoint an attorney with which he

was satisfied. (Preliminary Hearing Tr. p:

3). Petitioner also claimed that "[t]here is

no way I can get the assistance of [appointed

counsel]. I believe that he's working with

3 Apparently the arraignment and this initi-

al preliminary hearing were not transcribed.

The record references these hearings, how-

ever, in the trial transcript, at page 3, the

amended order regarding court-appointed

counsel, and in the transcript of the re-

a preliminary hearing at pages 2, 3,

and 4.

A-30

. the State's Attorney here to try to get

a conviction... ." (Preliminary Hearing

Tr. P. 4) Petitioner did not, however, cite

any specific factual support for these

Claims, nor does he now assert the belief

that counsel was working with .the State's

Attorney. The committing magistrate factu-

ally rejected both contentions on the basis

of the record and from his discussion with

petitioner at the prior hearing (Preliminary

Hearing Tr. p. 4). Petitioner does not

allege that the magistrate's review of these

Claims was inadequate and this court will not

so hold.

Assuming arguendo that the trial court

should have inquired more thoroughly into the

factual basis, if any, for petitioner's

allegation, the error was harmless since the

record as a whole reflects that petitioner's

claim is unsubstantial and that he received

A-31

adequate representation at trial. United

States v. Young, 482 F.2d 993, (5th Cir.

1973).

DENIAL OF A CONTINUANCE

Petitioner's claim that the trial court

deprived him of effective assistance of

counsel and a fair trial by refusing to

postpone his trial or grant a continuance is

also unsupported by the record.

In the afternoon of December 27, 1976,

petitioner requested his court-appointed

counsel to represent him at the trial sched-

uled to commence on December 29, 1976. Early

December 28, counsel telephoned the trial

judge to request that the trial be postponed.

Also, immediately preceding the trial and

immediately after both sides had rested,

counsel made a motion for dismissal based on

the trial court's refusal to grant petition-

er's request for a continuance. (Trial Tr.

A-32

pp. 2, 3 and 110). These motions were all

denied.

When a denial of a continuance forms a

basis of a habeas petition, the trial court

must not only have clearly abused its dis-

cretion but it must have been so arbitrary

and fundamentally unfair that it violated the

constitutional principles of due process. *

Because there is no mechanical test for

deciding when an action is arbitrary, review

hinges on the facts and circumstances present

in each case, particularly the reasons for a

continuance presented to the trial judge at

‘ In Parker v. Solem, 450 F.Supp. 1150

(D.S.D. 1970) one district court has taken

the view that refusing to grant a continuance

does not present a cognizable issue for

habeas corpus review, citing Houser v.

United States, 508 F.2d 509, 515 (8th Cir.

- Because Houser dealt with section

2255 and does not clearly reach the issues

presented here, the court will decide the

issue on its merits.

A-33

the time the request is denied. See Hicks

v. Wainwright, 633 F.2d 1146 (5th Cir. 1981),

citing Ungar v. Sarafite, 376 U.S. 575, 589

(1964). Where the accused claims that denial

of a continuance prohibited adequate prepara-

tion of counsel, it is also proper to examine

counsel's performance during trial. United

States v. Gaither, 527 F.2d 456 (4th Cir.

1975).

In the instant case, the factual basis

underlying both the crime charged and the

available defenses was relatively simple.

Although petitioner did not fully accept

counsel's representation until two days

before trial, counsel was familiar with the

case prior to that time since he had repre-

sented petitioner in prior post-conviction

proceedings concerning the same incident, had

consulted with petitioner a number of times

after being formally appointed on December 3,

A-34

and had attended the December 13 preliminary

hearing in an advisory capacity.

Counsel also exhibited reasonable famil-

iarity with the facts of the case during the

trial. He adequately raised petitioner's

available defenses and was able to secure the

testimony of several witnesses, including one

expert witness, to support those defenses.

He adequately conducted both direct examina-

tion and cross examination.

Significantly, neither counsel nor peti-

tioner informed the trial court, on the

record, of the specific trial preparation yet

to be accomplished or the nature of any

evidence or testimony yet to be secured.

Compare Hicks v. Wainwright, 633 F.2d 1146

(Sth Cir. 1981). Absent such a record, the

court declines to speculate on the relation-

ship of a continuance to the alleged defi-

ciencies raised by petitioner.

A-35

Finally, it is evident that if counsel

were unprepared, petitioner contributed to

that lack of preparation. United States v.

Davis, 604 F.2d 470, 481 (7th Cir. 1979);

United States v. Gaither, 527 F.2d 456, 458

(4th Cir. 1975). Petitioner himself had

adequate notice of trial, of his options

concerning counsel, and of his need to pre-

pare a defense.

Thus, the court holds that petitioner

was not prejudiced by the trial court's

refusal to grant a continuance. United

States v. Gaither, supra. The cases cited by

petitioner's brief are distinguishable on

their facts.

JURY INSTRUCTIONS

Petitioner first claims that the trial

court deprived him of due process of law by

giving jury instructions numbers 11 and 12.

These instructions read, in pertinent part,

as follows:

A-36

JURY INSTRUCTIONS #11

In crimes such as these of

which the defendant is charged in

the information, there must exist a

union or joint operation of act or

conduct and criminal intent. To

constitute criminal intent it is

not necessary that there should

exist an intent to violate the law.

Where a person intentionally does

that which the law declares to be a

crime, he is acting with criminal

intent, even though he may not know

that his act or conduct is unlaw-

ful.

INSTRUCTION #12

An intent to do an act is a purpose

or determination formed in the mind

to do the act. Intent is a state

of condition of the mind. The

intent with which an act was done

is to be determined from any direct

evidence such as the statement of

purpose or intent of the person

doing the act as well as from all

the evidence, facts and circum-

stances shown relating to the act

charged. In such connection you

are entitled to consider in light

the

of eneral human experience

natural Obable and usual conse-

quences ry: the acts and conduct

shown and an facts and circum-

stances shown e xplaining such acts

and conduct or ears to show with.

what urpose or intent or want

thereo? Fre perpetrator thereof

acted.

. ey

>

Mm > a

y

Z a

—.

A-37

> = eS

(Emphasis added)

Respondent contends that petitioner's failure

to object to these instructions bars habeas

corpus review under the doctrine of Wain-

wright v. Sykes, 433 U.S. 72 (1977).

Generally, improper jury instructions do

not form a basis for habeas corpus relief.

Dietz v. Solem, 640 F.2d 126 (8th Cir. 1981).

When such a challenge is raised, petitioner

has the burden of establishing that the

instruction is not merely erroneous or even

"universally condemned," but that, when

viewed in the context of the overall change,

it so infected the entire trial that the

resulting conviction violates due process.

Dietz v. Solem, supra, (8th Cir. 1981),

citing Henderson v. Kibbe, 431 U.S. 145

(1977) and Cupp v. Naughten, 414 U.S. 141

(1973).

ee eee

A-38

Petitioner argues that, instruction 11

effectually removed the element of specific

intent from the burglary charge, making the

crime one of malum prohibitum. Although the

inclusion of this general intent instruction

was not appropriate, the instruction cannot

be viewed in isolation when reviewing the

constitutional claim. Cupp v. Naughten,

supra. In this case, instructions numbers 2,

3, 5, 7, 8 and 9 instructed that a finding of

specific intent was necessary for a convic-

tion. In addition, instruction 13, which

correctly explained petitioner's defense to

the jury, clearly reinforced the legal prin-

ciple that specific intent to commit larceny

was an essential element of the offense with

which he was charged. Consequently, peti-

tioner was not prejudiced.

Petitioner's contention that instruction

number 12 impermissibly shifted the burden of

A-39

proof on the specific intent element from the

state to him has been rejected in Bonnett v.

Solem, 640 F.2d 125 (8th Cir. 1981). In

Bonnett the court interpreted an instruction

virtually identical to number 12 and held

that it did not create a presumption that a

person intends the ordinary consequences of

his voluntary acts--a presumption held uncon-

stitutional in Sandstrom v. Montana, 442 U.S.

570 (1979). Like the Bonnett instruction,

instruction 12 is merely couched in terms of

a permissive inference that the jury might

draw from the petitioner's actions. As such,

it does not shift the burden of proving

intent or otherwise violate due process.

Bonnett v. Solem, supra.

As to both instructions, the court

further finds overwhelming evidence from

which the jurors could determine the exist-

ence of specific intent to commit larceny.

Jj ‘ " ; .

ee at s ¢' ee hk ta ee _! -

A-40

Consequently, if giving either instruction 1l

or 12 amounted to error, the error would be

harmless beyond a reasonable doubt under

Chapman v. California, 386 U.S. 18 (1967).

Although the court's finding that peti-

tioner was not prejudiced by either instruc-

tion may obviate the need to address respon-

ent's procedural claim, the court also finds

that petitioner has shown no cause for his

failure to make timely objections to the

5 Therefore, review

challenged instructions.

would be barred under either prong of the

cause and prejudice test promulgated in

Wainwright v. Sykes, 433 U.S. 72 (1977). See

Dietz v. Solem, 640 F.2d 126 (8th Cir. 1981).

S South Dakota has a statutorily enacted

contemporaneous objection rule, S.D.C.L.

23-42-6(5) repealed July 1, 1979. Present

law is identical, S.D.C.L. 23A-24-2(5) effec-

tive July 1, 1979).

A-41

As further ground for relief, petitioner

contends that he was entitled to have the

jury instructed on the lesser included of-

fenses of grand larceny and petty larceny.®

First, larceny is not a lesser included

offense of burglary in this state. See,

State v. Moeller, 298 N.W.2d 93, 94 (S.D.

1980). More importantly, the Eighth Circuit

Court of Appeals has held that "the trial

court's failure to give a lesser included

offense instruction is not normally such a

constitutional error or 'fundamental defect'

as to allow collateral review under habeas

corpus." Cooper v. Campbell, 597 F.2d 628

(8th Cir. 1979); DeBerry v. Wolff, 513 F.2d

1336 (8th Cir. 1975). This case presents no

exception. Given the evidence in this case,

denial of petitioner's proposed instructions

6 The trial court instructed on first, third

and fourth degree burglary.

eae rt ye

° ape

A-42

did not inherently result in a miscarriage of

justice or an omission inconsistent with the

rudimentary demands oof fair procedure.

Cooper v. Campbell, supra; DeBerry v. Wolff,

Supra.

INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner's separate claim of ineffec-

tive assistance of counsel is also without

merit. In the Eighth Circuit, the burden of

proving ineffective assistance of counsel is

a heavy one and involves a two-step process:

The standard for determining the

adequacy of counsel is whether the

trial counsel exercised “the cus-

tomary skills and diligence that a

reasonably competent attorney would

perform under similar circum-

stances." There is a presumption

that counsel has rendered effective

assistance. To overcome the pre-

sumption, appellant must show that:

(1) there was a failure to perform

an essential duty owned [sic] by

the defense attorney to his client;

and (2) that the failure prejudiced

the defense.

A-43

DuPree v. Unzted States, 606 F.2d 829, 830-31

(8th Cir. 1979) (per curiam), cert. denied,

445 U.S. 919 (1980). (citations omitted)

Petitioner has not overcome this pre-

sumption. Most of the claimed deficiencies

of counsel have been specifically disposed of

in the above sections. Briefly, the court

‘finds that counsel adequately prepared for

trial and adequately conducted ‘petitioner's

defense. If there was inadequate assistance

in any particular respect before trial, the

court finds that either it did not prejudice

petitioner or it was occasioned by peti-

tioner's choice to ignore counsel until

shortly before trial. See United States v.

Johnson, 585 F.2d 374 (8th Cir. 1978). The

record discloses that the trial court ap-

pointed a capable attorney who was prepared

to and did counsel petitioner before trial.

i. hati ay

A-44

Although he repeatedly raises the fact

that counsel did not interview his wife, who

accompanied him on the night of the incident,

petitioner has not shown that this was a

breach of an essential duty or that it mater-

ially prejudiced his defense of intoxication.

Counse] did secure the testimony of the

Director of the Sioux City American Indian

Center and also an expert witness, a psychol-

ogist and alcoholic counsellor, who inter-

viewed petitioner and supported his defense

of a blackout during the incident; in addi-

tion, petitioner himself testified that he

had been drinking the night of the incident;

moreover, he was the only one who could

personally testify as to the nature of his

alleged blackout. The court will not second

guess counsel when petitioner has failed to

show how the witness' testimony would have

made any material addition to petitioner's

defense.

A-45

Finally, in an argument raised for the

first time in his application for habeas

corpus relief, petitioner asserts that coun-

sel failed to suppress an alleged confession

made by petitioner to a probation officer,

which formed a part of the state's rebuttal

evidence. Petitioner's conversations with

the probation officer were permissibly

admitted at trial, however, as prior incon-

sistent statements impeaching the credibility

of the defendant's trial testimony. See

State v. Lana, 264 N.W.2d 465, 489 (S.D.

1978). Moreover, petitioner has again failed

to demonstrate any factual basis suggesting

that a suppression motion might have succeed-

ed or that a reasonably competent attorney

would have attempted suppression given the

evidence in the case as a whole. See Long

v. Brewer, No. 81-1530, slip op. at 5-6, (8th

Cir. filed January 8, 1982).

a

A-46

Any issues not specifically addressed

herein have been reviewed and are found to be

either groundless or rendered moot by this

decision.

Petitioner's application is without

merit, and is hereby denied.

This memorandum opinion shall constitute

the court's findings of fact and conclusions

of law under Fed. R. Civ. P. 52. Judgment

shall be entered accordingly.

Dated this 24th day of February, 1982.

/s/ John B. Jones

United States District

Judge

A-47

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

wane &£ ee 2 eR AR kRKRARAR RASA 2 RBS

RICHARD ALLEN NERISON, CIV 80-4132

Petitioner,

-vVs- JUDGMENT OF DISMISSAL

South Dakota State

Penitentiary and

MARK MEIERHENRY,

Attorney General,

x

*

*

*

*

*

HERMAN SOLEM, Warden, *

*

*

*

*

State of South Dakota, *

*

”

Respondents.

|

Petitioner above named having petitioned

for a Writ of Habeas Corpus under 28 U.S.C.

2254, and the issues herein having been fully

briefed, and the Court having considered the

matter on its merits, and

The Court having entered herein its

Memorandum Opinion as its Findings of Fact

and Conclusions of Law,

A-48

Now, therefore,

IT IS ORDERED, ADJUDGED AND DECREED:

That the petition of Richard Allen Neri-

son for a Writ of Habeas Corpus be and the

same hereby is denied on its merits.

Dated this 25th day of February, 1982.

BY THE COURT:

{s/f John B. Jones

United States District Judge

ATTEST:

/s/ William F. Clayton

WILLIAM G. CLAYTON, Clerk

BY /s/ DeAnn Noteboom

Deputy

(SEAL )

IN eb) . Wulf

Sf o % tt, ‘pen’ “a - % ~, ‘

ae ae el nu pe Oe POP ee Or ae

A-49

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

a;

RICHARD ALLEN NERISON, * CIV 80-4132

Plaintiff,

-vs- ORDER NUNC PRO TUNC

HERMAN SOLEM, Warden,

South Dakota State

Penitentiary and

MARK MEIERHENRY,

Attorney General,

State of South Dako va,

+e ee He eH He HF HF HF HF HF FF

Defendants.

aw mem eP RR eRARARARAARARAAR EA

It appearing to the Court that the peti-

tioner, Richard Allen Nerison, had sent a

letter to Judge Nichol after receiving an

Order denying his petition for habeas corpus,

and that said letter constituted a request

for counsel and for the right to appeal, it

is hereby

a Aw ee ror 2 oe “* 7 ees ea” ae eae

A-50

ORDERED that the Court finds that there

is probable cause for said appeal, and that

said notice of appeal be filed with the Clerk

of this Court, and

IT IS FURTHER ORDERED that Michael H.

Dow be appointed as counsel for the Peti-

tioner, Richard Allen Nerison.

Dated at Sioux Falls, South Dakota, this

16th day of April, 1982, nunc pro tunc

March 18, 1982.

BY THE COURT:

f/s/ John B. Jones

United States District Judge

ATTEST:

/s/ William F. Clayton

WILLIAM F. CLAYTON, Clerk

By /s/ DeAnn Noteboom

Deputy

(SEAL )

A-51

STATE OF SOUTH DAKOTA ) IN CIRCUIT COURT

: SS

COUNTY OF UNION ) FIRST JUDICIAL CIRCUIT

)

RICHARD ALLEN NERISON, )

PETITIONER, )

)

)

vs. MEMORANDUM OPINION

)

STATE OF SOUTH DAKOTA, )

RESPONDENT. )

)

APPEARANCES :

Mr. Thomas M. Frankman, Esq., of Willy, Pruitt,

Matthews, Hurd,

Farrell, Frankman

and Johnson,

Attorneys at Law

801 National

Bank of South

Dakota Building

Sioux Falls,

N South Dakota

57102

Attorney for

Petitioner;

Mr. Denis R. Eckert, Esq., Elk Point, South

F. Dakota, State's

Attorney in and

for Union County,

Elk Point,

South Dakota.

On December 30, 1976, Petitioner was

convicted of First Degree Burglary by a jury

at Elk Point, Union County, South Dakota.

Petitioner has petitioned for post conviction

relief and has raised a number of conten-

tions.

Petitioner contends that the Court erred

in not appointing him a different attorney;

in not granting his application for a change

of judge; and in not granting his motion for

a continuance of the trial.

Upon careful review of the record this

Court finds no merit in the above conten-

tions. The trial Court appointed Mr. James

Krueger, a competent attorney to represent

Mr. Nerison on Dec. 3, 1976. Mr. Nerison,

through his own obstinacy refused to believe

he was not entitled to an attorney of his own

choosing at the expense of Union County. He

A

also apparently believed that he could in

; $ Sires ee ge pa Ral

, V Peat rt OS. sl Mihi Y Ona he seeker

z A elo " ao Be a eal hare, A: oe Se sata Ne

A-53

some manner secure his own attorney. Because

of these mistaken beliefs he did not cooper-

ate with his attorney until right before

trial. Petitioner's own negligence caused

the affidavit for change of judge to be filed

late and created a short preparation time for

Mr. Krueger.

Mr. Krueger, however, knew the facts of

the case for some time, as he attended the

preliminary hearing on Dec. 13, 1976, and the

record shows that he adequately defended Mr.

Nerison at the trial. While Mr. Nerison was

entitled to adequate assistance of counsel he

is not entitled to counsel of his own choos-

ing. Judge Erickson's participation in Mr.

Nerison's previous plea to this charge does

render him prejudiced against Mr. Nerison

since this was a trial to the jury and jus-

tice does not require that the requirements

A-54

of SDCL 15-12-27 (2) (b) be overlooked.

Furthermore the record shows absolutely no

bias on the part of Judge Erickson. This

case was easily preparable due to the sim-

plicity of the facts involved and Judge

Erickson did not err in denying the motion

for continuance.

Petitioner further contends that his

motion to dismiss on the grounds that the

State failed to show specific intent to

commit larceny should have been granted.

There is no merit to this contention since

the record clearly shows testimony establish-

ing specific intent beyond a_ reasonable

doubt, if said testimony was believed by the

jury.

Lastly, petitioner contends, that the

Court committed prejudicial error in giving

instructions number 11 and 12 as follows:

A-55

Instruction # 11

“In crimes such as these of which

the defendant is charged in the

information, there must exist a

union or joint operation of act or

conduct and criminal intent. To

constitute criminal intent it is

not necessary that there should

exist an intent to violate the law.

Where a person intentionally does

that“which the law declares to be a

crime, he is acting with criminal

intent, even though he may not know

<5 gem, act or conduct is unlaw-

ul.'

Instruction # 12

“An intent to do an act is a pur-

pose or determination formed in the

mind to do the act. Intent is a

state of condition of the mind.

The intent with which an act was

done is to be determined from any

direct evidence such as the state-

ment of purpose or intent of the

person doing the act as well as

from all the evidence, facts and

circumstances shown relating to the

act charged. In such connection

you are entitled to consider in

light of general human experience

the natural, probable and usual

consequences of the acts and con-

duct shown and any facts and cir-

cumstances shown any any [sic]

facts and circumstances shown

explaining such acts and conduct or

ae

Fae

a *5

ee 2: ~

Bae ot <a

A-56

tending to show with what purpose

or intent or want thereof the

perpetrator thereof acted.

Since the human mind functions with

great rapidity such an intent can

be formed instantly before commit-

ting the act by which it is carried

into execution and to establish

such intent it is not necessary

that it be shown that the intent

had been formed and existed for any

considerable time before the act

but it is sufficient if it be shown

that the intent had been formed and

existed at the time the act was

committed.

Burglary in the First Degree is a spe-

cific intent crime. Instruction # 1l is a

general intent instruction. Petitioner

contends that the inclusion of this instruc-

tion removed the element of specific intent

by making the crime one of malum prohibitum.

He further contends that instruction # 12

allows the jury to infer specific intent from

the petitioner's doing of a particular act

thus shifting the burden of proof to the _

petitioner to rebut the inference.

_ ie ei

A-57

The inclusion of Instruction #11 in this

case was not appropriate. Instruction #12

however was appropriate. The question is did

the inclusion of Instruction #11 deprive the

petitioner of a fair trial? This Court holds

that it did not, and the inclusion of said

instruction would not constitute prejudicial

error in this particular case.

The instructions in this case must be

read as a whole to determine whether or not

the jury was misled as claimed by the peti-

tioner.

Correct and adequate instructions were

given to inform the jury that the burden of

proof was upon the State to prove all the

elements of burglary beyond a reasonable

doubt as evidenced by instructions 2, 3, 5,

7, 9, 16 and 17. In addition thereto in-

struction 13 was given as follows:

"There is no evidence in this case

tending to show that the defendant

may have been intoxicated prior to

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and at the time of the alleged

commission of the offense with

which he is charged.

Under our law no act committed by a

person while in a state of volun-

tary intoxication shall be deemed

less criminal by reason of his

having been in such condition. But

whenever the existence of any

particular purpose, motive or

intent is a necessary element to

constitute the crime charged, the

jury may take into consideration

the fact, if it is a fact, that the

accused was intoxicated at the time

of the alleged offense in determin-

ing the purpose, motive, or intent

with which he commited [sic] the

act, if he did commit it.

An essential element of the offense

with which the defendant is charged

is that he had the specific intent

to commit some crime, namely lar-

ceny. Even though the defendant

may have been intoxicated to some

degree, if you find that the State

has proved beyond a _ reasonable

doubt that the defendant was cap-

able of forming the specific intent

to commit some crime, namely lar-

ceny, and had such specific intent

and that the State has proved

beyoind [sic] a reasonable doubt

all other essential elements of the

offense charged, you may find the

defendant guilty.

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But if you find that the State has

failed to prove beyond a reasonable

doubt that at the time of the

commission of the alleged offense

the defendant was capable of form-

ing the specific intent to commit

some crime, namely larceny, and so

faild [sic] to find that he had

such specific intent, you must find

the defendant not guilty."

This instruction clears up any ambigui-

ties that could have been created by instruc-

tion #11. The charge to the jury must "be

viewed as a whole to determine whether it

conveyed to the jury a clear and correct

understanding of the law." MAUK v. JOHNSON,

MINN., 219 NW2d 631, 636 (1974). (see also

DWYER v. CHRISTENSEN, 92 NW2d 199 (1958).

"The test in passing on the prejudical effect

of an erroneous instruction is the probabil-

ity, not the possibility that the jury was

misled thereby." FLEURY v. WENTORF, WISC.,

262 NW2d 68, 72 (1978).

The defense in this case was intoxica- a

tion to the extent that a specific intent to

A-60

commit larceny could not have been formed.

Petitioner testified to this effect. An

expert witness testified to the existance

{sic] of “blackouts" and to the probability

that the petitioner had one at the time of

the incident. Petitioner was caught in the

act of conmitting the burglary. The victim

and the arresting officers testimony were not

cone .stent with a substantial degree of

intoxication on the part of the petitioner

nor were his general actions after he left

the scene of the crime. Furthermore peti-

tioner later made statements to a state

parole officer that were inconsistent to his

defense of "blackout".

An instruction on presumed criminal

intent was found not to be prejudicial “where

a different result would not have been ar-

rived at by the jury had an instruction on

general intent not been given." PEOPLE v.

WALDRON, 7 CAL. REP. 916 (1960). In LUTZ v.

A-61

SHELBY MUT. INS. CO., WISC., 235 NW2d 426

(1975) the Court held"...an error relating to

the giving or refusing to give an instruction

is not prejudicial if it appears that the

result would not be different had the error

not occurred."

The evidence of guilt in this case is _

overwhelming. It can be said beyond a rea-

sonable doubt that there was no prejudicial

error in this proceeding.

The petition for post conviction relief

is denied. Counsel for respondent shall

prepare findings of fact and a judgment

consistent herewith.

Respectfully submitted,

/s/ Paul J. Kern

Circuit Judge

A-62

January 31, 1983

Mr. Michael H. Dow

Swanson, Carter & Dow

100 South Dakota Avenue

Sioux Falls, SD 57102

Mr. Richard Allen Nerison

Reg. No. 34050

P.O. Box 2500

Lincoln, NE 68508

Hon. Mark Meierhenry

Attorney General

Attn: Mr. Grant Gormley

Assistant Attorney General

State Capitol

Pierre, SD 57501

Re: No. 82- .483 Richard Allen Nerison v.

Herman Solem, Warden, etc., et al

Gentlemen:

Enclosed please find copy of an order

entered by us today in the ve-entitled

a This order was entered at the direc-

on of the court.

Sincerely,

Linda L. Penberth

Chief Deputy Cler

caf

Enclosure

A-63

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 82-1483 September Term, 1982

Richard Allen Nerison,

Appellant,

Appeal from

the United States

District Court

for the District

of South Dakota

Vv.

Herman Solem, Warden,

South Dakota State

Penitentiary and Mark

Meierhenry, Attorney

General, State of South

Dakota,

+e eeeeeee ee + + FF

Appellees.

On the court's own motion, it is ordered

that the parties file supplemental briefs

covering only the subject of "enhanced sen-

tence." The briefs should be limited to

twenty (20) pages and be filed within ten

(10) days of the date of this order.

January 31, 1983.