Petition — Solem v. Lufkins

Office-Supreme Court, US. 3

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@ 83-1072 DEC 19 1983

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IN THE

- SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

e HERMAN S. SOLEM, WARDEN,

S eenaneneeeenamaanmesnnaenne mem a aeenenen aon ere eenmnenenenne

MARK V. MEIERHENRY, ATTORNEY GENERAL

STATE OF SOUTH DAKOTA,

e Petitioners,

Vv.

DENNIS LUFKINS

. Respondent.

6

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE EIGHTH CIRCUIT

€

MARK V. MEIERHENRY

ATTORNEY GENERAL

Mikal Hanson

rd] Assistant Attorney General

State Capitol

Pierre, South Dakota 57501-5090

Telephone: (605) 773-3215

Counsel for Petitioners

QUESTION PRESENTED

WAS IT CONSTITUTIONALLY NECESSARY

FOR THE FEDERAL COURTS TO ORDER THE

STATE TO HOLD A NEW TRIAL INSTEAD

OF A NEW FULL AND FAIR VOLUNTARI-

NESS HEARING?

(i)

PARTIES TO THE PROCEEDINGS

IN THE UNITED STATES

COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioners Solem and Meierhenry and

Respondent Lufkins have been the parties to

this action in both the District Court and

the Court of Appeals. The Petitioners

represent the State of South Dakota, and

will hereafter be referred to as_ the

"State." Respondent Lufkins will hereafter

be referred to as "Lufkins."

(ii)

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED i

PARTIES TO THE PROCEEDINGS

IN THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT ii

TABLE OF AUTHORITIES iv

OPINIONS BELOW Vv

JURISDICTIONAL STATEMENT

STATEMENT OF THE CASE 2

REASONS FOR GRANTING THE PETITION 10

I. THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT HAS

DECIDED A FEDERAL QUESTION WHICH

CONFLICTS WITH APPLICABLE DECISIONS

OF THIS COURT. 10

II. THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT HAS

DECIDED A FEDERAL QUESTION IN A WAY

WHICH CONFLICTS WITH OTHER COURTS

OF APPEAL ON THE SAME MATTER. 18

CONCLUSION 20

(iii)

TABLE OF AUTHORITIES

CASES: PAGE

Gladden v. Unsworth, 396 F.2d 373,

Be 8) 19

Jackson v. Denno, 378 U.S. 368, 394

(1964) PASSIM

Lindsey v. Craven, 521 F.2d 1071,

1072-75 (9th Cir. 1975) 19

Martinez v. Estelle, 612 F.2d 173,

Ls e 0) 20

Morrow v. Parratt, 574 F.2d 411, 412,

ir. 1978) >

Pinto v. Pierce, 389 U.S. 31, 33-34

(1967) 8, 9, 18

State v. Lufkins, 309 N.W.2d (S.D.

1981) 6

United States ex rel. Bennett v. Rundle,

. 9 r ir. 19

United States ex rel. Hickman v. Sielaff,

: " - ir. 19

OTHER REFERENCES:

28 U.S.C. § 1254(1) 2

(iv)

OPINIONS BELOW

The opinion of the United States

District Court for the District of South

Dakota is reported at 554 F. Supp. 988, and

appears in the Appendix pp. A-l - A-33. The

District Court's Order dated January 10,

1983, appears in the Appendix pp. A-34 -

A-35.

The opinion of the United States Court

of Appeals for the Eighth Circuit is

reported at the following citation:

Lufkins v. Solem, et al., 716 F.2d 532 (8th

Cir. 1983). The opinion of the Court of

Appeals also appears in the Appendix pp.

A-36 - A-37. The Judgment of the Court of

Appeals, dated September 12, 1983, appears

in the Appendix at pp. A-78 - A-79.

Finally, the State's Petition for

Rehearing and supporting Affidavits appear

(v)

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

HERMAN S. SOLEM, WARDEN,

SOUTH DAKOTA STATE PENITENTIARY; and

MARK V. MEIERHENRY, ATTORNEY GENERAL

STATE OF SOUTH DAKOTA,

Petitioners,

Vv.

DENNIS LUFKINS,

Respondent.

JURISDICTIONAL STATEMENT

The judgment of the United States Court

of Appeals for the Eighth Circuit was entered

on September 12, 1983. The Order denying the

2

State's Petition for Rehearing was entered

October 19, 1983. This Court's jurisdiction

is invoked under 28 U.S.C. § 1254(1).

STATEMENT OF THE CASE

A. STATEMENT OF FACTS

Testimony presented at trial established

that Petitioner, the victim Sylvester Johnson,

Eugene Hedine, Ruth Titus, Mathew Blue Dog

and Ernest Hayes spent most of December 4,

1979, at Hayes' residence in Sisseton, South

Dakota, engaging in partying and drinking.

According to the State's eye witnesses, there

was an argument about drinking between the

victim Johnson and Lufkins which resulted in

Sylvester Johnson being clubbed on the head

with an ax handle.

Johnson apparently died while being

driven to a hospital by Ernest Hayes.

Mr. Hayes aborted his drive to the hospital

and left the decedent on a church lawn.

There the body was discovered on December 5,

3

1979. An autopsy determined that the vic-

tim's death was caused by a_- subdural

hematoma, consistent with trauma inflicted by

a blunt instrument.

Investigation in the matter led to

Lufkins who had commenced serving a sixty

(60) day sentence for DWI. He was therefore

incarcerated at the time the police came to

question him concerning the death of

Sylvester Johnson. Testimony and exhibits at

trial clearly established that prior to

questioning, Lufkins was informed of his

legal rights and he signed two statements of

waiver of Miranda rights. Lufkins then

signed a statement indicating that he had hit

Johnson during the party.

B. PROCEDURAL HISTORY

Prior to his trial on First Degree

Manslaughter and Habitual charges, Lufkins

personally filed with the Court a hand writ-

ten list of objections to the proceedings

4

against him. He stated that he had not hit

the decedent, that the officers had told him

that "things would go easy for him" if he

Signed an incriminating statement, that the

officers were "hollering at him," and that

his state of mind was not clear when he

signed the statement. Lufkin's counsel,

however, made no pretrial motion to suppress

the statement.

Lufkins' trial began June 30, 1980,

wherein Ernest Hayes, Eugene Hedine and

Mathew Blue Dog testified that Lufkins had

hit the victim with an ax handle. Addi-

tionally the State, through the testimony of

Sheriff Long, introduced Lufkins' confession

and the evidence surrounding its voluntary

taking. Sheriff Long's testimony was taken

during the course of the trial, in open

court, before the jury. Lufkins' trial

counsel did not request any independent

voluntariness hearing outside the jury's

5

presence. Sheriff Long's testimony that the

statement was voluntarily given was elicited

during the State's case in chief. During

this testimony, Lufkins rose to his feet and

challenged the sheriff's veracity. After

Long finished his direct testimony, Lufkins'

trial counsel objected to the admission of

Lufkins' statement on voluntariness grounds.

The Judge overruled the objection and

admitted the statement into evidence. Sub-

sequently, Sheriff Long was cross-examined in

regard to this statement, and Agent Peterson

presented corroborating testimony regarding

the voluntariness of the statement. Lufkins

was never given an opportunity to present

rebuttal evidence prior to the statement

being admitted.

On July 1, 1980, the Roberts County jury

entered a verdict of guilty against Lufkins.

Following his conviction of First Degree

Manslaughter, Lufkins pled guilty to Habitual

6

Offender charges; whereupon he was sentenced

to life imprisonment.

On direct appeal, the South Dakota

Supreme Court rejected all of Lufkins' claims

and affirmed his conviction. State v.

Lufkins, 309 N.W.2d (S.D. 1981). At no time

was the State Supreme Court presented the

issue of whether or not Lufkins had received

a full and fair voluntariness hearing. The

only issue raised before the South Dakota

Supreme Court was whether Lufkins was denied

due process of law by the admission of his

incriminating statement without a prior

determination of its voluntariness outside

the presence of the jury. The lower District

Court, sua sponte, raised the issue of

whether or not Lufkins received a full and

fair voluntariness hearing.

Subsequentlv, Lufkins filed a writ of

Habeas Corpus in Federal District Court. The

7

District Court, following an evidentiary

hearing issued a Memorandum Opinion granting

Lufkins a new voluntariness hearing. The

Lower District Court claimed to have based

its decision on Jackson v. Denno, 378 U.S.

368 (1964).

Secondly, the District Court concluded

that Lufkins was denied effective assistance

of counsel} because:

1. Lufkins' trial counsel failed

to mount any challenge to the

voluntariness of Lufkins'

inculpatory statement.

a Lufkins' trial counsel had not

sequestered the State's eye

witnesses.

3. Lufkins' trial counsel had

bolstered testimony of one of

the State's witnesses.

On appeal the Eighth Circuit agreed with

the District Court and upheld the District

Court's Order granting Lufkins a Writ of

1 Entitling him to a new trial.

8

Habeas Corpus. In its opinion the Eighth

Circuit concurred with the Lower District

Court's decision that the procedures employed

by the State trial court fell short of satis-

fying the due process standards enumerated in

Jackson v. Denno, supra.

Additionally, the Eighth Circuit inter-

preted this Court's holding in Pinto v.

Pierce, 389 U.S. 31 (1967), to require a

defense counsel to specifically consent to

the jury's presence, before a voluntariness

hearing can be held with the jury present.

Finally, the Eighth Circuit agreed with

the Distrcit Court that the trial counsel

rendered ineffective assistance of counsel by

failing to mount a legal attack on Lufkins'

inculpatory statements, and that such failure

prejudiced Lufkins' defense. The Eighth

Circuit also agreed that Lufkins' trial

counsel's ineffectiveness entitled him to a

new trial. In so finding, it dismissed this

9

Court's holding in Jackson v. Denno, supra,

and Pinto v. Pierce, supra, and accepted the

rationale of the concurring opinion of

Justice Fortes in Pinto v. Pierce, supra at

33-34. That rationale being that the failure

to have the jury excluded significantly

vitiated the jury's ability to make its own

independent judgment as to the voluntariness

of the statement for purposes of evidentiary

acceptability, credibility and weight.

Following the issuance of the Eighth

Circuit's Judgment, filed September 12, 1983,

the State Petitioned for Rehearing based upon

the Court of Appeals erroneous finding that

Lufkins' trial counsel failed to sequester

the State's eye witnesses. To support this

finding the State submitted four Affidavits

from individuals who were present during

Lufkins' trial; all of whom stated and

affirmed that the State's witnesses were

sequestered during the trial.

10

On October 19, 1983, the Eighth Circuit

denied the State's Petiton for Rehearing.

The State then initiated this appeal.

REASONS FOR GRANTING PETITION

I

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT HAS DECIDED

A FEDERAL QUESTION WHICH CONFLICTS

WITH APPLICABLE DECISIONS OF THIS

COURT.

For purposes of this Petition for Writ

of cCertiorari, the State will admit that

Lufkins did not receive a full and fair

voluntariness hearing and that such a hearing

should be conducted by the State. The sole

question the State presents to this Court on

appeal is whether or not the Federal Court

Order requiring the State to conduct a new

trial was proper, or did such an Order con-

flict with the applicable decisions of this

Court.

The Eighth Circuit Court of Appeals

ordered a new trial based on its Conclusion

11

of Law that Lufkins' trial counsel was inef-

fective. That conclusion was based on three

findings:

i. Lufkins' trial counsel failed

to mount any challenge to the

voluntariness of Lufkins'

inculpatory statements;

YP Lufkins' trial counsel did not

sequester the State's wit-

nesses; and

3. Lufkins' trial counsel bol-

stered the testimony of one of

the State's witness.

To succeed on a claim of ineffective

assistance of counsel Lufkins must not only

show that his trial attorney failed to exer-

cise the customary skill and diligence that a

reasonable competent attorney would perform

under similar circumstances, but he must also

show that he was materially prejudiced in the

defense of his case by the actions or inac-

tions of his attorney. Morrow v. Parratt,

574 F.2d 411, 412, 413 (8th Cir. 1978).

12

The Eighth Circuit Court of Appeals

concluded that Lufkins should have received a

full and fair voluntariness hearing, and that

it was ineffective assistance of counsel for

his trial counsel not to request such a

hearing. The State would submit that if a

new full and fair voluntariness hearing is

held, and Lufkins' statements are found to be

voluntary, it is obvious that Lufkins has

suffered no prejudice in the failure of his

original trial counsel to request such a

hearing.

To restate this argument, if Lufkins'

statements are found to be voluntary at a new

and fair voluntariness hearing, this Court

cannot accept the Eighth Circuit Court of

Appeals' finding that the failure of Lufkins'

trial counsel to mount ae challenge to

Lufkins' statement was prejudicial to his

right to a fair trial. If the statements are

found to be voluntary, it was not prejudicial

13

for Lufkins trial counsel not to request a

voluntariness hearing. Thus, Lufkins fails

to prove the second prong of the two-prong

test established in Morrow v. Parratt, supra.

Of course, if the State Court, in a new

full and fair evidentiary hearing, determines

that Lufkins' confession was involuntary,

there must be a new trial on the guilt or

innocence of Lufkins without the confession

being admitted into evidence. This is

exactly the procedure granted Jackson by this

Court in Jackson v. Denno, supra. This court

stated in Jackson:

If at the conclusions of such an

evidentiary hearing in the State

Court on the coercion issue, it is

determined that Jackson's confes-

sion was voluntarily given,

admissible in oe properly to

be considered by the jury, we see

no constitutional necessity at that

point for proceeding with a new

trial, for Jackson has already been

tried by the jury with a confession

placed before it and has been found

guilty.

Jackson v. Denno, supra, at 394.

14

To refute this argument the Eighth

Circuit of Appeals discusses two other pur-

ported facts which demonstrate that Lufkins'

trial counsel was ineffective. The first

alleged fact was that Lufkins' trial counsel

failed to sequester the State's three eye

witnesses. In its original brief to the

Eighth Circuit on page 22, and in its Peti-

tion for Rehearing the State unsuccessfully,

but truthfully argued, that the record was

void of any indication of whether the State's

witnesses were sequestered or not. The Lower

District Court's finding that they were not

sequestered was based on pure speculation and

conjecture.

The State in its Petition for a Rehear-

ing submitted Affidavits from the State's

Attorney (who prosecuted the case), the Clerk

of Courts (who was present during the case),

the Sheriff (who provided security during the

court proceedings), and a court reporter (who

15

recorded Lufkins' trial)--to confirm that the

three eye witnesses of the State were seques-

tered and not present in the courtroom during

each others testimony. See Appendix pp.

A-82 - A-90. Obviously, based on the void

record and these Affidavits, this Court must

dismiss the claim by the Lower Federal Courts

that the State's witnesses were not seques-

tered.

The third claim of ineffectiveness

concerns an allegation that Lufkins' inter-

ests were undercut by his trial counsel's

statement which supposedly bolstered a

State's witnesses. This claim is based on

such an insignificant incident as to be

Clearly harmless. The alleged improper

remark is found in the trial transcript on

page 102. On cross-examination Lufkins'

trial counsel stated:

Actually, Mr. Peterson [State

Division of Criminal Investigation

16

agent], there isn't any question

about your experience or working

for the Attorney General's Office.

I have known you for a long time.

Obviously this statement does not in and

of itself create reversible error and can be

interpreted to mean that Lufkins' trial

counsel knew Mr. Peterson and knew that he

worked for the Attorney General's Office. To

interpret it as a statement bolstering Mr.

Peterson's testimony is indicative of the way

that the lower Federal Courts have searched

the record to find anything which could

support their shaky conclusion that Lufkins

was denied effective assistance of counsel.

Once the previous section's erroneous

finding is thrown out and the insignificance

of the Lufkins' trial counsel's statement is

weighed, it is clear that the only legitimate

ineffective assistance of counsel claim is

that Lufkins' trial counsel failed to request

a voluntariness hearing.

17

As was outlined previously, if in a new

voluntariness hearing the inculpatory state-

ments are found to be voluntary, it was not

prejudicial error for his original trial

counsel not to institute procedural chal-

lenges against them.

Finally, the State would submit that the

remedy in Jackson v. Denno, and Pinto v.

Pierce, was intended to cover the factual

Situations presented by this case and rejects

the Eighth Circuit's finding that Justice

Fortes' concurring opinion in Pinto v. Pierce

supplies the proper legal authority in regard

to this issue.

The majority of this Court, unlike

Justice Fortes, does not believe that the

jury's function is reduced to an echo when it

is present and hears the evidence submitted

in regard to the admissibilty or inadmis-

sibility of a confession. If that were the

18

case, this Court in Jackson v. Denno and

Pinto v. Pierce would necessarily have

ordered those individuals to receive a new

trial. The Eighth Circuit’ incorrectly

applied the insights of Justice Fortes in-

stead of the holdings of this Court to this

present case and therefore the State appeals

to this Court for relief.

II

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT HAS DECIDED

A FEDERAL QUESTION IN A WAY WHICH

CONFLICTS WITH OTHER COURTS OF

APPEAL ON THE SAME MATTER.

The Eighth Circuit Court of Appeals has

concluded that Pinto v. Pierce, supra, stands

for the proposition that if a defense counsel

waives objection to the jury's presence, then

no claim can be made that a voluntariness

hearing in the jury's presence is unfair or

violates a defendant's due process. Conv-

ersely, the Eighth Circuit stated in this

case that it believes that Pinto explicitly

19

recognizes that if there is no waiver, it is

a violation of due process to hold the hear-

ing in the jury's presence.

This interpretation, the Eighth Circuit

itself recognizes in Footnote #2, is in

conflict with other applicable decisions of

Federal Appeals Courts on the same matter.

As the Eighth Circuit points out in Footnote

#2, several Federal Appeals Courts have read

Pinto to require a waiver of objection of the

jury's presence. See United States ex rel.

Hickman v. Sielaff, 521 F.2d 378, 379-80 (7th

Cir. 1975); Lindsey v. Craven, 521 F.2d 1071,

1072-73 (9th Cir. 1975); Gladden v. Unsworth,

396 F.2d 373, 375 (9th Cir. 1968); cf. United

States ex rel. Bennett v. Rundle, 419 F.2d

599, 605 (3rd Cir. 1969).

Conversely, the Fifth Circuit Court of

Appeals has interpreted Pinto as saying that

regardless of an expressed waiver, the jury's

20

presence does not violate due process when

the confession is proven to be voluntary.

See Martinez v. Estelle, 612 F.2d 173, 177

(5th Cir. 1980).

Because the decision of the Eighth

Circuit Court of Appeals and the Fifth

Circuit Court of Appeals are in direct con-

flict on the same issue of law, this Court

should grant the State's Petition in order to

review the question presented herein.

CONCLUSION

Based on the foregoing arguments and

authorities, Petitioners Herman S. Solem,

Warden, South Dakota State Penitentiary, and

Mark V. Melierhenry, Attorney General for the

State of South Dakota, pray that their Peti-

tion for Writ of Certiorari to the United

21

® States Court of Appeals for the Eighth Cir-

cuit be granted.

Respectfully,submitted,

Mikal Hanson

Assistant Attorney General

> State Capitol

e Pierre, South Dakota 57501-5090

Telephone: (605) 773-3215

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

CENTRAL DIVISION

Donald J. Porter

U.S. District Judge

Rm. 413 =- U.S. Courthouse January 10, 1983

Pierre, South Dakota 57501

Richard P. Tieszen

DUNCAN, OLINGER, SRSTKA, LOVALD

& ROBBENNOLT, P.C.

P.O. Box 66

Pierre, South Dakota 57501

Attorneys for Petitioner

Mark V. Meierhenry, Attorney General

Mikal Hanson, Assistant Attorney General

State Capitol

Pierre, South Dakota 57501

Attorneys for Respondents

RE: CIV. NO. 81-3060

DENNIS LUFKINS, Petitioner

Vs.

HERMAN SOLEM, WARDEN; MARK V. MEIERHENRY,

ATTORNEY GENERAL, STATE OF SOUTH DAKOTA,

Respondents

Dear Counsel: MEMORANDUM OPINION

Petitioner Dennis Ray Lufkins was con-

victed of voluntary manslaughter on July l,

1980, in the Fifth Judicial Circuit Court of

A-2

South Dakota. He is currently serving a term

of life imprisonment in the South Dakota

State Penitentiary. He has applied to this

Court for a writ of habeas corpus as provided

by 28 U.S.C. § 2254 and § 2241(c)(3). Peti-

tioner contends that his Fourteenth Amendment

rights to due process of law were violated by

the procedures used to determine the volun-

tariness of a statement given by him to law

enforcement authorities and that he was

denied effective assistance of counsel at

trial in violation of the Sixth Amendment.

Having reviewed all the files and records of

petitioner's state criminal case, and based

further on its own evidentiary hearing, this

Court determines that petitioner's rights

under the United States Constitution have

been violated.

FACTS AND PROCEDURE

A drinking party on December 4, 1979, at

the residence of Ernest Hayes in Sisseton,

A-3

South Dakota, culminated in the death of one

of the participants, Sylvester Johnson.

Clubbed in the head with an axe handle,

Johnson died apparently while being driven to

a hospital by Ernest Hayes. Mr. Hayes

aborted his drive to the hospital and left

the decedent on a church lawn. There the

body was discovered on December 5, 1979. An

autopsy determined that the victim's death

was caused by a subdural hematoma, consistent

with trauma inflicted by a blunt instrument.

On January 31, 1980, petitioner signed

an inculpatory statement provided by Sisseton

County Sheriff Neil Long and Division of

Criminal Investigation Agent Delbert

Peterson. Petitioner was, at that time, nine

days into a sixty-day jail term in the

Roberts County jail for DWI. On April 21,

1980, petitioner was arraigned on both first-

degree manslaughter and habitual criminal

A-4

1 petitioner pled not guilty to

informations.

both charges.

On June 2, 1980, petitioner changed his

plea to guilty to the manslaughter charge,

bringing to a halt a jury trial then under-

way. Petitioner filed with the trial judge a

handwritten list of objections to the pro-

ceedings against him. On June 12, 1980, the

trial judge refused to accept petitioner's

1 Petitioner has been convicted of at least

one other felony. Under South Dakota's

"habitual offender" statute, a defendant with

a history like petitioner's, i.e., “one who

has been convicted of one or two prior fe-

lonies," shall, upon conviction of another

felony, have the sentence for the principal

er enhanced "by changing the class of the

principal felony to the next class which is

more severe." SDCL § 22-7-7. First degree

manslaughter is a Class 1 felony in South

Dakota. SDCL § 22-16-15. The maximum

penalty for a Class 1 felony is life impri-

sonment and a $25,000 fine. SDCL § pi tap

The only class more severe than Class 1 is

Class A. Class A felonies carry the penalty

of mandatory life imprisonment with a poten-

tial for the 7 iichaia of the death penalty.

SDCL § 22-6-1(1).

A-5S

guilty plea and rescheduled his trial. Peti-

tioner's two-day trial began June 30, 1980.

Ernest Hayes, Eugene Hedine and Matthew Blue

Dog testified that they spent December 4,

1979, drinking wine and rubbing alcohol with

petitioner, Ruth Titus and the victim. All

testified that petitioner hit the victim with

an axe handle. Petitioner's incriminating

statement was also received in evidence.

Petitioner's sister testified that petitioner

had been at her home from December 4 to

December 5. Following his conviction of

first degree manslaughter, petitioner pled

guilty to the habitual offender charge,

whereupon he was sentenced to life imprison-

ment.

On appeal, the South Dakota Supreme

Court resolved five issues against petitioner

and affirmed his conviction. State v.

Lufkins, 309 N.W.2d 331 (S.D. 1981). In-

cluded among these. issues were the claim that

A-6

petitioner was denied due process of law by

the admission of his incriminating statement

without a prior determinaton of its volun-

tariness and the claim that petitioner was

denied effective assistance of counsel. Id.

at 333.

Petitioner filed in this Court for a

writ of habeas corpus. This Court received

briefs from both sides and directed the

expansion of the record to include tran-

scripts of proceedings in state court. 28

U.S.C. § 2254 Rule 7. Determining that

petitioner's claim could not be resolved on

the basis of the expanded record alone, id

Rule 8, this Court convened an evidentiary

hearing on September 27, 1982.

EXHAUSTION OF STATE CLAIMS

The United States Supreme Court has

ruled that habeas petitioners must completely

exhaust state remedies before asking a

federal court to hear their claims. Rose v.

A-7

Lundy, U.s. __, 102 §.Ct. 1198, 71

L.Ed.2d 379 (1982). As stated above, the

South Dakota Supreme Court ruled on both

claims presented in petitioner's habeas

petition when it decided his appeal from

conviction.

The exhaustion requirement is a rule of

comity designed to prevent undue friction

between state and federal courts. The re-

quirement is satisfied when the federal claim

has been fairly presented to the state

courts. Picard v. Connor, 404 U.S. 270, 275

(1971). The claim presented to the federal

court must be the same as the claim presented

to the state court. Id. at 276. There is no

requirement that the state court have more

than one opportunity to rule on the clain.

Thompson v. White, 661 F.2d 103, 106 n.6 (8th

Cir. 1981); Mucie v. Missouri State Dept. of

Corrections, 543 F.2d 633, 636 (8th Cir.

1976). Once Petitioner has brought his claim

A-8

to the highest state court, and that court

has passed on the claim, a federal court may

hear petitioner's application for a writ of

habeas corpus. Brown v. Allen, 344 U.S. 443,

448 n.3 (1953); Irby v. Missouri, 502 F.2d

1096, 1098 (8th Cir. 1974); Maggitt v.

Wyrick, 533 F.2d 383 (8th Cir.), cert. den.,

406 U.S. 909 (1971).

Petitioner has presented to the Supreme

Court of South Dakota both claims in his writ

of application. The Supreme Court has denied

him relief from each claim. Since the high-

est court of South Dakota has ruled on

petitioner's claims, petitioner has satisfied

the exhaustion requirement, and his peti-

tion is properly before this court.

VOLUNTARINESS OF ADMISSION

A federal court hearing a state pri-

soner's petition for a writ of habeas corpus

is not convened to retry the petitioner's

case or to decide issues of state law. It

A-9

has as its limited but important function to

ensure that petitioner, in his trial, re-

ceived the protections afforded by the United

States Constitution. In re Parker, 423 F.2d

1021 (@th Cir. 1970). Moreover, a federal

court's power when hearing constitutional

questions is plenary, Townsend v. Sain, 372

U.S. 293, 312 (1963), and the federal court

is not bound by a state court's adjudication

of federal law. Brown v. Allen, supra, 344

U.S. at 506. See also, Wainwright v. Sykes,

433 U.S. 72, 87 (1977). On the other hand,

absent constitutional deficiency, the habeas

statute in 28 U.S.C. § 2254(d) instructs the

federal court that state court factual find-

ings are presumptively correct when supported

by sufficient evidence and arrived at with

procedural fairness. In re Parker, supra,

423 F.2d at 1024.

The Supreme Court has recently empha-

sized the limitations placed on federal

A-10

courts when asked to make a collateral eval-

uation of state court findings under the

habeas statute. Sumner v. Mata, 449 U.S.

539, 544-549 (1981). The teaching of Sumner

is that federal courts must explicitly state

their reasons for differing from state court

findings. Id. at 548. See e.g. Lombard v.

Taylor, 606 F.2d 371 (2d Cir. 1979), cert.

denied 445 U.S. 946 (1980). As developed

below, this Court has reviewed the state

trial proceedings and has determined that the

state appellate court's finding that peti-

tioner's trial judge made a determination as

to the voluntariness of petitioner's state-

ment not entitled to deference. 28 U.S.C.

§ 2254(8).

The question presented by petitioner's

voluntariness claim requires a determination

of the procedures the Constitution mandates

for a hearing on the voluntariness of a

defendant's inculpatory statement. The

A-11

importance of the voluntariness question

cannot be overstated, because "[i]Jt is now

axiomatic that a defendant in a criminal case

is deprived of due process of law if his

conviction is founded, in whole or in part,

upon an involuntary confession, without

regard for the truth or falsity of the con-

fession." Jackson v. Denno, 378 U.S. 368,

376 (1964). The Supreme Court has stated: "A

defendant objecting to the admission of a

confession is entitled to a fair hearing in

which both the underlying factual issues and

the voluntariness of his confession are

actually and reliably determined." Id. at

381. In Jackson, the Supreme Court struck

down a New York procedure which allowed the

jury that was to determine a defendant's

guilt simultaneously to determine the volun-

tariness of the defendant's confession.

Emphasizing that the evaluation of an incul-

patory statement is always a sensitive task,

A-12

the Supreme Court reasoned that placing the

double determination of voluntariness and

guilt in the same hands ran too great a risk

of collapsing the double into a single deter-

mination. Id. at 389-390. The Constitution

does not nominate any particular agent to

decide the voluntariness question. Id. at

391 n.19. To comport with the due process

Clause of the Fourteenth Amendment, however,

the “procedures must .. . be fully adequate

to ensure a reliable and clear-cut determina-

tion of the voluntariness of the confession,

including the resolution of disputed facts

upon which the voluntariness issue may de-

pend. "? Id. at 391.

2 The South Dakota Supreme Court brought the

state's criminal procedures into line with

Jackson in State v. Thundershield, 83 S.D.

0 N.W.2d 408 (1968). There the court

held that proof of the voluntariness of a

confession "must be made in an independent

hearing of all the relevant facts outside the

presence of the jury." Id. at 422, 160

N.W.2d at 412.

o

A-13

The record of petitioner's trial reveals

that the evidence on the voluntariness of

petitioner's statement to Sheriff Long and

Agent Peterson was taken during the course of

the trial, in open court, and before the jury

(Trial Transcript 79-104).

The testimony by Sheriff Long regarding

the voluntariness of this statement was

elicited in the court of his testimony re-

garding the State's case in chief. Agent

Peterson was then called to corroborate that

part of the Sheriff's testimony involving the

inculpatory statement. Petitioner's counsel

did object to admission of-the statement into

evidence at the end of Sheriff Long's direct

examination on the ground that the statement

was involuntarily given. (TT 89).3 The

trial judge overruled the objection at that

3 Besides the defense counsel's objection to

the statement's admission into evidence, the

trial court also had before it petitioner's

A-14

time, but her ruling came before cross-

examination of the witness and before any

testimony by Agent Peterson.

The hearing afforded petitioner does not

measure up to the due process requirements

enunciated in Jackson. The Supreme Court has

called for a "clear-cut" determination of a

statement's voluntariness. In petitioner's

case, the trial court made no distinct find-

ing as to the voluntariness of the statement.

The South Dakota Supreme Court said of this

procedure that "(t]he trial court, by allow-

ing the statement into evidence, impliedly

ruled that it was given voluntarily." State

v. Lufkins, supra, 309 N.W.2d at 334. The

own handwritten objection to the voluntari-

ness of the statement. The trial judge

received this objection before the beginnin

of trial. Furthermore, petitioner himsel

challenged the veracity of Sheriff Long while

the Sheriff was testifying (TT 85). There

can be little doubt that petitioner raised

the question of voluntariness or that the

trial judge was aware of the issue. See

Wainwright v. Sykes, supra, 433 U.S. at SI.

e

A-15

Constitution and the United States Supreme

Court require more than the implicit rulings.

The requirement is for a clear-cut determina-

tion which means that a criminal defendant

has a right to expect that the agent deciding

the issue of voluntariness will evaluate all

the evidence concerning voluntariness before

making an overt ruling on the voluntariness

issue.

Even assuming that implicit rulings are

adequate to meet due process standards, the

timing of the judge's decision in peti-

tioner's case undercuts any possibility that

the judge's implicit ruling was arrived at

reliably. The judge admitted petitioner's

statement into evidence at the end of Sheriff

Long's direct examination. The judge's

ruling was made before petitioner's counsel

had an opportunity to test the accuracy of

the sheriff's account of how the statement

was obtained. Fundamental to the adversary

athe)

ree |

A-16

process is the submission of each witness's

assertions to that great legal engine for the

discovery of proof, cross-examination.*

As stated above, a defendant who claims

that his statement was not voluntarily given

"is entitled to a fair hearing in which both

the underlying factual issues and the volun-

tariness of his confession are actually and

reliably determined." Jackson v. Denno,

supra, 378 U.S. at 380. With the "determina-

tion" made before the cross-examination of a

witness, before hearing all the evidence the

state would present regarding voluntariness,

and before petitioner could present evidence

of his own, the actuality and reliability of

the factual investigation are too suspect to

satisfy the requirements of due process. The

underlying factual issues had scarcely been

* see F. J. Wigmore, Evidence Section 1867

(Chadbourne Rev. 1974).

A-17

opened before the trial judge implicitly

resolved then.

Respondents argue that the procedure

employed by the trial judge in petitioner's

case is saved by Pinto v. Pierce, 389 U.S. 31

(1967). There the Supreme Court upheld a

conviction even though the trial judge held a

voluntariness hearing in the presence of the

jury. The judge who tried the petitioner in

Pinto had repeatedly asked the petitioner's

counsel if counsel had any objection to

holding the hearing in the jury's presence.

Defense counsel expressly waived any right to

hold the hearing outside the jury's presence.

At petitioner's trial, the prudence of

holding the hearing in the jury's presence

was never considered. There was no waiver.

Whether Pinto would protect a trial judge's

decision to hold a voluntariness hearing in

the jury's presence when the judge knew of

A-18

the defendant's objections to the voluntari-

ness of this statement” would be a difficult

question. That question is not, however,

before this Court. The standard that applied

in Pinto was "that a defendant's constitu-

tional rights were violated when his

challenged confession is introduced without a

determination by the trial judge of its

voluntariness after an adequate hearing."

Pinto v. Pierce, supra, 389 U.S. at 32.

Without an adequate hearing and without an

explicit determination by the trial judge,

petitioner's case is not governed by Pinto.

The procedures used by the state to

determine the voluntariness of petitioner's

statement were constitutionally defective.

The federal habeas court cannot, however,

decide whether petitioner's statement was in

5 See supra note 3.

rs,

A-19

fact voluntarily given. Principles of fed-

eralism constrain the federal habeas court to

defer to the state so that it may "provide

[petitioner] with that which he is constitu-

tionally entitled -- an adequate evidentiary

hearing productive of reliable results con-

cerning the voluntariness of his confession."

Jackson v. Denno, supra, 378 U.S. at 393-94.

Petitioner's claim shall, therefore, be

remanded to the state judicial system so that

he may receive a hearing on the voluntariness

of his statement as provded by state proced-

ures.° See id. at 392-96.

6 Remanding petitioner's case for an ade-

quate voluntariness determination is not a

sterile gesture that would merely save con-

Poe ob ater appearances. As noted infra, the

nee trae et statement had real impact on

ee oner's trial. Under the standard

adopted by the South Dakota Supreme Court,

the burden is placed upon the State to prove

beyond a reasonable doubt that the statement

was voluntarily made. State v. Stumes, 90

S.Ct. 382, 390 n.4, 241 N.W.2d 587, 591 n.4

(1976); State v. Kiehn 86 S.D. 549, 199

N.W.2d 594, 598 (1572); State v. Thundershield,

83 S.D. 414, 422, 160 N.W. ’ "

A-20

EFFECTIVE ASSISTANCE OF COUNSEL

The second claim presented by peti-

tioner's habeas application is that he lacked

effective assistance of counsel in violation

of the Smith [sic] Amendment as made applic-

able to the states by the Fourteenth

Amendment. Because counsel is presumed to be

competent, a petitioner alleging ineffective

assistance of counsel shoulders a heavy

burden when challenging the effectiveness of

his representation. Cox v. Wyrick, 642 F.2d

222, 225 (8th Cir.), cert. den., 451 U.S.

1021 (1981); Thomas v. Wyrick, 535 F.2d 407,

413 (8th Cir.), cert. den., 429 U.S. 868

(1976). Moreover, a federal court reviewing

habeas corpus petitions is bound by the

factual findings made by state courts unless

one of the circumstances encompassed in 28

U.S.C. § 2254(d) applies. Sumner v. Mata,

449 U.S. 439 (1981).

z*

A-21

The South Dakota Supreme Court ruled

that petitioner was not denied effective

assistance of counsel after "carefully re-

view[{ing] the particulars which [petitioner]

contends indicate the ineffectiveness of his

trial counsel." State v. Lufkins, supra, 309

N.W.2d at 337. The South Dakota Supreme

Court appears to have based its finding on

the transcripts of petitioner's trial and

hearings. On its own review of that record,

this Court concluded that the record was not

adequately developed to support a determina-

tion of trial counsel's effectiveness. 28

U.S.C. § 2254(d). See aso Townsend v. Sain,

supra, 372 U.S. at 313. An evidentiary

hearing held before this Court compels the

conclusion that the state court findings are

not entitled to a presumption of correct-

ness. 28 U.S.C. § 2254(d). See also Sumner

v. Mata, supra, 449 U.S. at 552. Petitioner

A-22

has carried his burden “by convincing evi-

dence that the factual determination by the

state court was erroneous." 28 U.S.C. §

2254(d).

Petitioner's trial counsel is an exper-

ienced attorney who has been a member of the

South Dakota bar for thirty-five years. He

has represented a significant number of

criminal defendants in that time (Habeas

Corpus Evidentiary Transcript 46). A court

reviewing a defense attorney's work should

not sit merely to second-guess the attorney

with the benefits of hindsight. Thomas v.

Wyrick, supra, 535 F.2d at 413. Even with

due regard to his experience, however, coun-

sel's conduct of the defense must still meet

the standard that an attorney should "exer-

cise the customary skills and diligence that

a reasonably competent attorney would perform

under similar circumstances." United States

v. Easter, 539 F.2d 663, 666 (8th Cir. 1976),

A-23

cert. den., 434 U.S. 844 (1977). Accord

Cox v. Wyrick, supra, 642 F.2d at 226. Under

the circumstances of this case, petitioner's

counsel did not meet this standard.

At a minimum, to prove ineffectiveness

of counsel, petitioner must show that counsel

was derelict in some duty. JZaehringer v.

Brewer, 635 F.2d 734, 737 (8th Cir. 1980).

For a lawyer to fail to exercise his profes-

sional judgment on behalf of a client is a

serious breach of his duty to that client.’

Thomas v. Wyrick, supra, 535 F.2d at 413. In

petitioner's case, defense counsel was faced

7 The ABA Code of Professional Respon-

sibility provides that a lawyer should

represent his client zealously within the

bounds of the law. Canon 7. Under a

lawyer's duty to represent his client com-

petently (Canon 6), the Code provides that a

lawyer should not "[hjandle a legal matter

without preparation adequate in the circun-

stances." D.R. 6-101(a)(2). See SDCL

Section 16-18 Appx.

A-24

with defending a client who had given a

statement to the authorities implicating

himself in a homicide. At the time of the

8

trial counsel knew that his client main-

tained that the statement was neither

8 At the evidentia hearing before this

Court, defense counsel asserted that he had

never before seen the list of objections that

petitioner wrote to his trial judge. He

denied that petitioner had handed him the

list to transmit to the judge or that he knew

its contents (HCET 50, 55). Counsel's state-

ments directly contradicted petitioner, who

testified that he drew up the list of objec-

tions with the help of counsel and that he

gave counsel the list to deliver to the judge

(HCET 19, 72).

At the time of petitioner's trial, moreover,

counsel not only was aware of the objections

but also asserted that "I had the defendant

write out a statement which the Court has

just read. ..." This statement, written in

petitioner's “own handwriting asking that

there be several things done in this case,"

is the list of objections filed with the

trial court (Transcript of Proceedings,

June 12, 1980) (Withdrawal of Plea]5).

Prominently included.in this list was peti-

tioner's objection to the voluntariness of

his inculpatory statement. This Court finds

that counsel's earlier representation as to

his os, -caialeaima in drawing up the list more .

cre e.

A-25

voluntarily given nor representative of his

version of the events of December 4, 1979.

Counsel described his trial strategy as one

based on the theory that his client did not

strike the victim (HCET 57), and he admits

the voluntariness of his client's statement

to the authorities was material to the case

(HCET 61).

The steps open to counsel were clearly

defined at the time of defendant's trial:

When a confession or incriminating

statement allegedly made by the

accused is offered by the prosecu-

tion and objected to, the state has

the burden of proving beyond a

reasonable doubt the same was

freely and voluntarily made. This

proof must be made in an indepen-

dent hearing of all relevant facts

outside the presence of the jury.

At this hearing the defendant may

testify and be cross-examined as to

the issue of voluntariness without

jeopardy or waiver of his right to

remain silent at the trial.

State v. Thundershield, 83 S.D. 414, 422, 160

N.W.2d 408, 412 (1968). A reasonably compe-

tent attorney exercising minimal skill in the

A-26

representation of petitioner would have

sought to test the voluntariness of his

client's statement under the provisions of

Thundershield. Counsel accurately testified

that he objected to the voluntariness of the

statement at trial, but that cursory objec-

tion did not satisfy his duty for competent

representation. As counsel himself charac-

terized the objection, it was a "catchall

objection" (HCET 52). The procedures made

available to criminal defendants by

Thundershield implicate fundamental consti-

tutional rights. Regardless of the propriety

of holding the voluntariness hearing in the

jury's presence, effective assistance of

counsel would mean that the issue was at

least raised. A perfunctory objection such

as counsel's in this case does not meet basic

standards of representation. The Court can

only conclude that counsel did not make a

specific objection on due process grounds

A-27

because counsel was unaware of the due pro-

cess dimension of holding the voluntariness

hearing in the jury's presence.

An attorney has a duty to "exert his

best efforts to ensure that decisions of his

client are made only after the client has

been informed of relevant considerations. A

lawyer ought to initiate this decision-making

process if the client does not do so." ABA

Code of Professional Responsibility E.C. 7-8.

Petitioner himself initiated the decision-

making process but received little assistance

from his counsel. Counsel did not inform

petitioner that he had the opportunity to

challenge the voluntariness of his statement

in a separate hearing or that he could

testify at such a hearing without jeopardiz-

ing his right to remain silent at trial.?

9 Counsel testified that he could not recall

whether he informed petitioner of his right

to testify at a suppression hearing but 4

A-28

Counsel's failure seriously undercut his

client's effort to defend himself.

An attorney does not fail "to render

effective legal service if he fails to dis-

cuss with his client a procedural alternative

which a reasonable attorney would consider

having little or no likelihood of success."

Zaehringer v. Brewer, supra, 635 F.2d at 737.

See also Benson v. United States, 552 F.2d

223, 225 (8th Cir.), cert. den. 434 U.S. 851

(1977). Counsel in this case seems to have

formed the opinion his client's statement was

voluntarily given (HCET 52.)19 Indeed, at

trial counsel bolstered Agent Peterson's

he ordinarily touched on that matter (HCET

54). Petitioner testified that his attorne

never informed him of his options (id. a

12). Counsel did not take notes of his

conversations with petitioner (id. at 54),

and this Court finds that petitioner's recol-

lection is more likely correct.

10

At the evidenti hearing, this Court

made @ pastialenah reling aesteiainn 6h

A-29

statement as to voluntariness (TT 102). The

instances in which the Eighth Circuit upheld

an attorney's decision not to prosecute

available procedures were instances where

such prosecution was obviously doomed to

failure. Petitioner's voluntariness claim

was not obviously condemned.

At the evidentiary hearing before this

Court, the evidence raised a real question as

to the voluntariness and accuracy of the

statement. Certainly, a resolution of the

voluntariness of the statement is beyond the

province of this Court hearing a habeas

petition, and the Court makes no attempt to

resolve that question now. In light of the

to a question that solicited coun-

sel's opinion as to the voluntariness of the

statement. That ruling is now revoked, and

counsel's answer that he believed the state-

ment to be voluntary is part of the record.

A-30

heavy burden of proof placed on the state, 2}

however, the testimony does demonstrate that

petitioner's challenge is not so utterly

frivolous as to presage sure failure if

pursued. A reasonable attorney would not

consider it as having little or no likelihood

of success, and petitioner's counsel's fail-

ure to pursue it cannot be saved by calling

it strategy. See Collins v. Auger, 577 F.2d

1108 (8th Cir. 1978).

Petitioner's demonstration that he was

ineffectively represented by counsel is not

enough to carry his burden. Petitioner must

also show that his counsel's shortcomings

prejudiced his defense. Thomas v. Wyrick,

supra, 535 F.2d at 414. See also Wainwright

v. Sykes, 433 U.S. 72 (1977). To show pre-

judice, petitioner does not have to prove

that effective representation would have led

a3 See supra, note 6.

A-31

to his acquittal. Thomas v. Wyrick, supra,

535 F.2d at 414. The precise standard of

review is unsettled. Collins v. Auger,

supra, 577 F.2d at 1110. The most demanding

standard requires the reviewing court to

evaluate the entire record to determine

whether the other evidence presented at trial

would negate any possible prejudice from

admission of the inculpating statement. Id.

at 1110-11 (citing Wainwright v. Sykes,

supra). Petitioner has met this standard.

The evidence produced by the State

against petitioner consisted primarily of

testimony by three companions who supposedly

witnessed the lethal events of December 4,

1979. None of these witnesses were particu-

larly reliable. All had been drinking

heavily from at least the early hours of

December 4, and all had leaden memories of

A-32

2 Petitioner's inculpatory

the evening.+

statement in these circumstances surely took

on particular significance. The trial did

not produce a record in which "[t]he evidence

of guilt presented at trial .. . was subs-

tantial to a degree that would negate any

possibility of actual prejudice resulting

. from the admission of [the] inculpatory

statement." Wainwright v. Sykes, supra, 433

U.S. at 91. Counsel's failure to mount any

challenge to the voluntariness of peti-

tioner's inculpatory statement was,

therefore, significantly prejudicial to peti-

tioner's right to a fair trial.

\

12 Petitioner's counsel did not move to have

the witnesses sequestered as is permitted by °

SDCL § 19-14-29. Counsel knew that the

recollection of the witnesses against his

client was unsure (Transcript of Preliminary

Hearing 38). Failure to move that these

witnesses not have the chance to listen to

one another's testimony, is another instance e

of counsel's failure to exercise his profes-

sional judgment in his client's f.

See supra note 7 and accompanying text.

4 Ae 52%

, 5

——

.. Be 2 ee ee

E °

A-33

CONCLUSION

The evidence compels the conclusion that

a writ of habeas corpus is appropriate. The

findings regarding effective assistance of

counsel take petitioner's relief beyond that

stated in the first part of this opinion.

Besides a suppression hearing, petitioner is

entitled to a new trial or release from

prison. The State of South Dakota will

therefore be given a reasonable opportunity

to re-try petitioner. If the State fails to

take advantage of this opportunity, the writ

of habeas corpus will issue. This memorandum

constitutes the Court's findings of fact and

conclusions of law.

A-34

FILED

January 10, 1983

William F. Clayton, Clerk

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

CENTRAL DIVISION

DENNIS LUFKINS,

Petitioner

v. CIV. 81-3060

HERMAN SOLEM, WARDEN; ORDER

MARK V. MEIERHENRY,

Attorney General, State

of South Dakota,

Respondents.

Petitioner having applied for a writ of

habeas corpus, and on the basis of all the

files and records of the above-entitled

action, and for the reasons stated in the

memorandum opinion filed this day, it is now

hereby

ORDERED that the Clerk of this Court

shall issue a Writ of Habeas Corpus as prayed

A-35

for by petitioner, provided however that this

Order shall be stayed for a period of ninety

days.

Dated January 10, 1983.

BY THE COURT:

DONALD J. PORTER

ATTEST:

WILLIAM F. CLAYTON, CLERK

BY: Judy L. Harvey

“Deputy

(SEAL OF COURT)

A-36

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

83-1078

Dennis Lufkins,

Appellee, )

) Appeal from the United

Vv. ) States District Court

) for the District of

Herman Solemn, ) South Dakota

Warden; Mark )

Meierhenry, )

Attorney General)

of South Dakota, )

)

Appellants. )

Submitted: June 17, 1983

Filed: September 12, 1983

Before HEANEY, Circuit Judge, FLOYD R. GIBSON,

and ROSENN,* Senior Circuit Judges.

*The Honorable Max Rosenn, Senior Circuit

Judge for the United States Court of Appeals

for the Third Circuit, sitting by designation.

FLOYD R. GIBSON, Senior Circuit Judge.

A-37

Dennis Lufkins, a life-term prisoner

convicted of voluntary manslaughter in a

South Dakota state trial court, sought a writ

of habeas corpus in the federal district

court, + alleging: (1) he was denied due

process because inadequate procedures were

used by the trial court to determine the

voluntariness of an incriminating statement

he gave to law enforcement authorities; and

(2) he was denied effective assistance of

counsel. After an evidentiary hearing, the

district court issued an order granting

Lufkins habeas relief. The court ruled that

under Jackson v. Denno, 378 U.S. 368 (1964),

Lufkins was entitled to a new, full and fair

hearing on the voluntariness of the incrinm-

inating statement. The court also ruled that

Lufkins was entitled to a new trial or release

1 The Honorable Donald J. Porter, United

States District Judge, District of South

Dakota.

A-38

from prison because he was denied effective

assistance of counsel. South Dakota now

appeals these rulings. We affirn.

I.

During a wine drinking party on Decen-

ber 4, 1979, at the residence of Ernest Hayes

in Sisseton, South Dakota, Sylvester Johnson

was clubbed in the head with an axe handle.

Johnson apparently died while Ernest Hayes

was driving him to the hospital. Hayes

aborted his drive to the hospital, leaving

the then deceased Johnson on a church lawn.

The decedent's body was discovered on Decenm-

ber 5, 1979. An autopsy determined that

death was caused by a subdural hematoma,

consistent with trauma inflicted by a blunt

instrument.

On January 31, 1980, Lufkins signed an

inculpatory statement provided by Sisseton

County Sheriff Long and Division of Criminal

A-39

Investigation Agent Peterson. The signed

statement indicated that Lufkins had hit

Johnson during the wine drinking party of

December 4, 1979. At the time he signed the

statement, Lufkins was serving a sixty-day

DWI sentence.

On April 21, 1980, Lufkins was arraigned

on both first-degree manslaughter and habit-

ual criminal informations. Lufkins pled not

guilty to both charges. Prior to his trial,

and in open court Lufkins personally filed

with the trial court a handwritten list of

objections to the proceedings against him.

In this list, Lufkins stated that he had not

hit the decedent, that the officers told him

that “things would go easy for him" if he

signed the incriminating statement, that the

officers were “hollering at him," and that

his state of mind was not clear when he

signed the statement. Despite learning about

i, om #3

A-40

this list of objections, Lufkins' counsel

made no pretrial motion to suppress. the

incriminating statement as allegedly involun-

tarily given.

During Lufkins' two-day trial, which

began on June 30, 1980, Ernest Hayes, Eugene

Hedine and Matthew Blue Dog testified that

they spent most of the day on December 4,

1979, drinking wine and rubbing alcohol with

Lufkins, Ruth Titus, and the victim Johnson.

All three testified that Lufkins struck the

victim with an axe handle. However,

Lufkins's sister testified that Lufkins had

been at her home from December 4 to Decenm-

ber 5, 1979.

The trial court also admitted Lufkins'

incriminating statement into evidence. The

State's evidence on the voluntariness of this

statement, which included the testimony of

Sheriff Long and Agent Peterson, was taken

A-41

during the course of the trial, in open

court, and in the jury's presence. Lufkins'

trial counsel failed to request an indepen-

dent voluntariness hearing outside of the

jury's presence. Sheriff Long's testimony

that the statement was voluntarily given was

elicited during the State's case in chief.

While Sheriff Long was testifying, Lufkins

rose to his feet and challenged the Sheriff's

veracity. The trial court also had before it

Lufkins's pretrial handwritten objections to

the voluntariness of the statement. After

Sheriff Long finished testifying on direct

examination, Lufkins' counsel objected to the

admission of the statement into evidence on

the ground that it was involuntarily given.

The trial judge overruled the objection and

admitted the statement into evidence. This

ruling came before any cross-examination of

the sheriff, before any corroborating testi-

mony by Agent Peterson, and before Lufkins

S

A-42

was given an opportunity to present any

rebuttal evidence. Lufkins was convicted of

first degree manslaughter; he also pled

guilty to the habitual offender charge and

was sentenced to life imprisonment.

On direct appeal, a divided South Dakota

Supreme Court rejected all of Lufkins' claims

and affirmed his conviction. State v.

Lufkins, 309 N.W.2d 331 (S.D. 1981) (Morgan

and Foshiem, J.J. dissenting). Included

among these rejected claims were Lufkins’'

claim that he was denied due process by the

admission of his incriminating statement

without a prior determination of its volun-

tariness outside of the jury's presence and

his claim that he was denied effective assis-

tance of counsel. Id. at 333-34, 336-37.

In rejecting Lufkins' voluntariness

Claim, the South Dakota Supreme Court was

apparently under the mistaken impression that

A-43

the trial court admitted the statement after

Sheriff Long had been cross-examined. The

supreme court stated:

After Sheriff Long was extensively

questioned in the presence of the

jury by both the State and appell-

ant regarding the voluntary nature

of the statement, the trial court

admitted the statement into evid-

ence over appellant's objection.

309 N.W.2d at 333. The supreme court went on

to find that "the trial court, by allowing

the statement into evidence, impliedly ruled

that it was given voluntarily." Id. at 334.

The Court, citing Pinto v. Pierce, 389 U.S.

31 (1967), also found that: "(by not making

the appropriate objection, appellant's trial

counsel consented to the taking of evidence

in the jury's presence on the voluntariness

of the statement." The court then concluded

that “(Lufkins] was not denied his constitu-

tional rights by the admission of the

statement into evidence." Id. at 335.

A-44

Lufkins thereafter filed his writ of

habeas corpus in the federal district court,

raising the same voluntariness and ineffec-

tive assistance of counsel claims that had

been rejected by the South Dakota Supreme

Court. The district court received briefs

from both sides and granted Lufkins' motion

for expansion of the record pursuant to 28

U.S.C. § 2254, Rule 7, to include transcripts

of all state court proceedings. The district

court then determined that Lufkins' ineffec-

tive assistance claim could not be resolved

on the basis of the expanded record alone and

therefore granted an evidentiary hearing

pursuant to 28 U.S.C. § 2254(d). At the

evidentiary hearing, Lufkins' trial counsel

was called as a witness by the State and

cross-examined at length by Lufkins' habeas

counsel.

* Awd 7

me Petey (<4 “Sere 7 we” £6 2G

A-45

The district court issued a memorandum

opinion granting Lufkins' writ of habeas

corpus. First, the district court, relying

on Jackson v. Denno, 378 U.S. 368, 380

(1964), concluded that Lufkins was denied a

full and fair hearing. The district court

specifically found: (1) the trial court made

no distinct finding of the voluntariness of

the statement; and (2) the statement was

admitted before cross-examination of Sheriff

Long and before Lufkins could present evi-

dence of his own. The district court also

noted that while Pinto v. Pierce, 389 U.S. 31

(1967), held that a defendant could expressly

waive his right to a voluntariness hearing

outside the jury's presence, there was no

such waiver here; and, regardless of the

propriety of the jury's presence, Lufkins was

still denied an adequate and reliable volun-

tariness hearing. The district court

therefore remanded to the state judicial

A-46

system so that Lufkins could receive a full

and fair voluntariness hearing.

Second, the district court concluded

that Lufkins was denied effective assistance

of counsel, entitling him to a new trial.

The district court found that a reasonably

competent attorney exercising minimal skill

in the representation of his client would

have sought to test the voluntariness of

Lufkins' statement by requesting an inde-

pendent voluntariness hearing outside of the

jury's presence, a procedure made available

to criminal defendants in State v. Thunier-

shield, 160 N.W.2d 408, 412 (S.D. 1968). The

district court further emphasized that conm-

petent counsel at the very least would have

raised a due process objection to holding the

hearing in the jury's presence. The court

characterized counsel's objection to the

voluntariness of the statement as a “cursory”

A-47

and “catchall objection," falling far short

of the duty of competent representation. The

court also noted that counsel's ineffective-

ness was evidenced by his bolstering of the

State's witnesses and his failure’ to

sequester the three purported eyewitnesses

whose testimony was not particularly reli-

able.

The district court concluded that

counsel's ineffectiveness significantly

prejudiced Lufkins' right to a fair trial.

In doing so, the court emphasized the weak-

ness of the government's case apart from

Lufkins' incriminating statement. Specific-

ally, the three purported eyewitnesses who

testified that Lufkins hit the victim were

viewed as unreliable because they all had

been drinking heavily prior to the lethal

events of December 4.

Il.

The State first argues that the issue of

whether Lufkins was denied due process be-

cause of the lack of a full and fair volun-

tariness hearing was not exhausted in the

South Dakota Supreme Court. It contends that

the only issue before the South Dakota

Supreme Court was whether the trial court

erred in holding the voluntariness hearing in

the jury's presence.

The issue of whether Lufkins was denied

due process because of the lack of a full and

fair voluntariness hearing was squarely

before the South Dakota Supreme Court.

Lufkins' claim before both the state supreme

court and the federal district court was that

he was deprived due process by the defective

procedures the trial court used to determine

the voluntariness of his statement. In order

to comply with the due process clause, the

trial court was required to provide Lufkins

A-49

with a fair voluntariness hearing, one that

was "fully adequate to insure a reliable and

clear-cut determination of the confession

including the resolution of disputed facts

upon which the voluntariness issue may de-~-

pend.” Jackson v. Denno, 378 U.S. 368, 380,

391 (1967). Thus, by concluding that the

trial court procedures for determining volun-

tariness did not violate Lufkins' due process

right, the supreme court necessarily con-

sidered those procedures to have been full

and fair.

Moreover, the specific findings made by

the South Dakota Supreme Court indicate that

it considered the fullness and fairness of

the voluntariness hearing. First, the

supreme court specifically found that the

trial court's admission of Lufkins' statement

into evidence constituted an independent

determination of voluntariness. Under

Jackson v. Denno, a necessary component of a

rs

SS .« ei

A-50

fair and fully adequate voluntariness hearing

is a distinct determination of voluntariness.

378 U.S. at 380. Indeed, the district

court's conclusion that the state trial court

procedures were not full and fair was based

in large part upon its rejection of the

supreme court's finding that the trial court

made a distinct determination of voluntari-

ness. The supreme court also found, albeit

erroneously, that lLufkins' statement was

admitted only after Sheriff Long had been

subject to extensive cross-examination by

Lufkins' counsel. This erroneous finding

certainly would have fostered a belief on the

part of the supreme court that the hearing

was fair and fully adequate to insure a

reliable determination of voluntariness.

The State however urges that the South

Dakota Supreme Court's opinion only addressed

Lufkins' claim that the trial court erred in

holding the hearing in the jury's presence.

A-51

While it is true that the supreme court's

opinion primarily focused upon the propriety

of the trial court's holding the hearing in

the jury's presence, we cannot infer from

this that the supreme court failed to con-

sider other aspects of the fairness and

adequacy of the trial court's procedures.

Indeed, in order to conclude that the trial

court procedures complied with due process,

the court must have reviewed the overall

fairness and adequacy of the hearing, in

addition to the propriety of the jury's

presence. Therefore, we conclude that

Lufkins' claim as to the unfairness and

inadequacy of the voluntariness hearing,

having been fairly presented to and passed

upon by the South Dakota Supreme Court, is

exhausted. Picard v. Connor, 404 U.S. 270,

275 (1971).

A-52

III.

We now consider the fairness and ade-

quacy of the procedures used by the trial

court to determine the voluntariness of

Lufkins' incriminating statement. The State

argues that the trial court's procedures were

fair and fully adequate to insure a reliable

and clear-cut determination of voluntariness.

It alternatively suggests that any procedural

errors were harmless because the testimony of

Officers Long and Peterson clearly estab-

lished that the statement was voluntarily

given.

In Jackson v. Denno, the Supreme Court

struck down a state procedure allowing the

same jury to determine both the defendant's

guilt and the voluntariness of the defen-

dant's confession for admissibility purposes.

The Court reasoned that placing the detern-

ination of voluntariness for admissibility

purposes and guilt in the same hands posed a

A-53

significant risk that matters pertaining to

the defendant's guilt and the truthfulness or

reliability of his confession would infect

the findings bearing upon voluntariness. 378

U.S. at 383, 386-87, 389-90, 394. The

Jackson court stated: "[I]t is now axiomatic

that a defendant in a criminal case is de-

prived of due process of law if his convic-

tion is founded, in whole or in part, upon an

involuntary confession, without regard for

the truth or falsity of the confession." Id.

at 376. The Court accordingly held that in

order to assure compliance with the due

process clause of the fourteenth amendment,

the trial court procedure for determining

voluntariness “must .. . be fully adequate

to insure a reliable and clear-cut determina-

tion of the voluntariness of the confession,

including the resolution of disputed facts

upon which the voluntariness issue may de-

pend.” Id. at 391.

A-54

We argee with the district court that

the procedures employed by the trial judge

fell short of satisfying the due process

standard enunciated in Jackson v. Denno.

First, we express grave doubts as to whether

the trial court's admission of the statement

into evidence met the Jackson v. Denno re-

quirement of a “clear-cut determination" of

the voluntariness of the statement. See

Sims v. Georgia, 385 U.S. 538, 544 (1967)

(trial court's finding of voluntariness "must

appear from the record with unmistakable

clarity. ); See also Parker v. Sigler, 413

F.2d 459, 462 (8th Cir. 1969) (trial court's

overruling of objection to admission of

confession insufficient to constitute a

finding of voluntariness), rev'd on other

grounds, 396 U.S. 482, 483 (1970).

However, even assuming the admission of

the statement did constitute a "clear-cut

dete ~mination" of voluntariness, the timing

A-55

of the trial court's admission of the state-

ment rendered a fair and reliable deter-

mination of voluntariness highly improbable

if not impossible. The trial court admitted

the statement after Sheriff Long testified

that the statement was voluntarily given, but

before Lufkins had an opportunity to test the

accuracy and reliability of Sheriff Long's

testimony by cross-examination or by rebuttal

evidence. That Lufkins vehemently disputed

Sheriff Long's account was evidenced by

Lufkins' pretrial list of objections and his

challenges to the veracity of Sheriff Long's

testimony while the Sheriff was testifying.

Yet despite this factual dispute surrounding

the circumstances under which Lufkins' in-

criminating statement was given, the trial

judge admitted the statement before giving

Lufkins an opportunity to challenge Sheriff

Long's version. A voluntariness hearing that

A-56

prevents a defendant from challenging the

State's evidence as to voluntariness of his

statement can be neither fair nor reliable.

See, United States ex rel. Hickman v. Sielaff,

521 F.2d 378, 386 (7th Cir. 1975) (voluntari-

ness hearing incomplete where trial judge

fails to hear defendant's version).

In United States v. Carignan, 342 U.S.

36, 38 (1951), the Supreme Court held that

the trial court committed reversible error by

admitting defendant's confession into evi-

dence after the State had presented evidence

of voluntariness but without giving the

defendant an opportunity to present rebuttal

evidence. The Court in Carignan reasoned

that the "[defendant's] evidence would be

pertinent to the inquiry on admissibility and

might be material and determinative." 14.

We believe this reasoning is directly appli-

cable here.

A-57

We also question the propriety of the

trial court's holding the voluntariness

hearing in the jury's presence. In Pinto v.

Pierce, 389 U.S. 31 (1967), the Supreme Court

upheld a conviction even though the trial

judge held a voluntariness hearing in the

presence of the jury. In doing so, the

Supreme Court emphasized that the trial judge

had repeatedly asked defense counsel whether

there was any objection to holding the hear-

ing in the jury's presence and counsel

expressly waived any objection. Id. at

32-33. The Pinto court held that "[s]ince

trial counsel consented to the evidence on

voluntariness being taken in the presence of

the jury, and the judge found the statement

voluntary, [defendant] was deprived of no

constitutional right.” Id. at 33.

The reasoning underlying the Pinto

holding seems clear enough: if defense

A-58

counsel waives objection to the jury's pre-

sence, then no claim can be made that the

voluntariness hearing was unfair or inade-

quate because the jury was present. Id. at

32. By the same token, however, we believe

Pinto at least implicitly recognizes that if

there is no waiver, it may be unfair to hold

the hearing in the jury's presence.” The

Court in Pinto, 389 U.S. at 32 n.2, specific-

ally noted its earlier holding in United

States v. Carignan, 342 U.S. at 38, that a

2 Circuit courts have interpreted Pinto

differently. Some courts read Pinto to °

require a waiver of objection to ury's

presence. See United States ex rel. ckman

v. Sielaff, “521 - ¥.

e ve Craven, 521 F.2d 1071,

1072-73 (Sth Cir 1975); Gladden v. Unsworth, *

296 F.2d 373, 375 n. 1 (Sth Cir. a a!

tes i.

sete tise

a = pS NSS SNS.

tie le

2"

are a as net

Ser P36 378, =. = ie mae

A-59

defendant who challenges the voluntariness of

a confession should be given an opportunity

to testify as to the facts surrounding his

confession in the absence of the jury.3

In the instant case, the trial court

never considered the propriety of holding the

hearing in the jury's presence, despite

knowing of Lufkins' vehement objections to

the voluntariness of the statement. Unlike

Pinto, the trial court here never asked

defense counsel if he had any objection to

the jury's presence and there was no express

waiver. Whether Pinto permits a trial court

to hold a voluntariness hearing in the jury's

3 Im Watkins v. Sowders, 449 U.S. 341, 346

(1980), the Supreme Court assumed, without

express deciding, that Jackson v.

saaniahes r se due process right st

hearing outa presence of the sary

whenever question ef voluntariness of a

eendeceien is raised.

he

A-60

presence when the judge knows of the defen-

dant's vehement objections to the

voluntariness of the statement is a very

difficult question. Under the circumstances

presented here, it certainly would have been

prudent for the trial court to have asked

whether Lufkins' counsel consented to the

jury's presence. Pinto, 389 U.S. at 32.

However, even assuming trial counsel's fail-

ure to object to the jury's presence

constitutes a waiver under Pinto, the trial

court's procedures were still constitu-

tionally defective because, as set forth

above, they were incapable of insuring a fair

and reliable determination of voluntariness.

It should be noted that in Pinto the deter-

mination of voluntariness was not made until

after all evidence concerning that subject

was heard which included the testimony of the

defendant.

A-61

We cannot agree with the State that

Lufkins' opportunity to cross-examine Sheriff

Long and to present rebuttal evidence after

the trial court had admitted the incrimi-

nating statement satisfies the requirement of

a fair and reliable determination of volun-

tariness. Once the trial court admitted the

statement and thereby impliedly determined

that it was voluntarily given, and subsequent

effort to challenge the admissibility of the

statement and to have it excluded from the

jury's consideration would have been virtu-

ally futile. See Hickman, 521 F.2d at 386.

Moreover, even if subsequent cross-examina-

tion and rebuttal evidence conceivably could

have enabled the trial court to later make a

reliable determination of voluntariness,

there was no such determination here. The

only gesture by the trial court even remotely

resembling a determination of voluntariness

A-62

was the ruling admitting the statement into

evidence, which came before Lufkins was given

an opportunity to cross-examine the State's

witnesses and to present his own rebuttal

evidence.

Alternatively, the State contends that

any procedural error here was harmless

because the purported "airtight" testimony of

Sheriff Long and Investigator Peterson

Clearly established the Lufkins' statement

was voluntarily given. We disagree. The

officer's testimony, no matter how seemingly

airtight, could not have supported a reliable

determination of voluntariness until that

testimony was first tested by Lufkins' cross-

examination and rebuttal evidence. Providing

a defendant with a meaningful opportunity to

challenge the state's testimony on voluntar-

iness is not an extravagant, procedural

formality to be cast aside when conveniént;

A-63

it is fundamental to a fair and reliable

determination of voluntariness and hence

firmly rooted in the due process clause of

the fourteenth amendment.

IV.

The State contends the district court

erred in finding that Lufkins' trial counsel

was incompetent. First, the State urges that

under 28 U.S.C. § 2254(d) the district court

was bound by the South Dakota Supreme Court's

finding of counsel's competence. Further-

more, the State suggests, counsel's failure

to request an independent voluntariness

hearing outside of the jury's presence was a

reasonable tactical choice because Lufkins'

voluntariness claim was destined to fail.

Finally, the State contends that Lufkins

could not have been materially prejudiced by

counsel's purported incompetence because of

other evidence existing in the record to

sustain guilt.

A-64

To prevail on his claim of ineffective

assistance of counsel, a habeas petitioner

must demonstrate: (1) that his attorney

failed to exercise the customary skills and

diligence that a reasonably competent attor-

ney would perform under similar circumstances;

and (2) that he suffered material prejudice

as a result. Morrow v. Parratt, 574 F.2d

411, 412-413 (8th Cir. 1978). A federal

court reviewing a habeas petitioner's inef-

fective assistance claim must accord a

presumption of correctness to a state court's

determination of effectiveness unless one of

the circumstances set forth in 28 U.S.C.

§ 2254(d) applies. Summer v. Mata, 449 U.S.

539, 551-52 (1981).

Considering the foregoing, we initially

note that the district court acted properly

in holding an evidentiary hearing on Lufkins'

ineffective assistance claim because the

record before the South Dakota Supreme Court

A-65

was not adequately developed to support a

determination of counsel's effectiveness.

Townsend v. Sain, 372 U.S. 293, 313 (1963).

Moreover, having carefully reviewed the

district court's evidentiary hearing tran-

script, which includes the testimony of

Lufkins and his trial counsel, and the State

court record, which includes the transcript

of Lufkins' trial, we hold that the district

court properly concluded that Lufkins carried

his burden of proving by convincing evidence

that the South Dakota Supreme Court's finding

of trial counsel's competence was erroneous.

28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S.

at 550 (1981).

Lufkins' trial counsel, despite having

experience in representing criminal defend-

ants, failed to exercise the customary skill

and diligence that a reasonably competent

attorney would have exercised under the

circumstances. Specifically, Lufkins' trial

A-66

counsel failed to fulfill his duty to exer-

Cise his professional judgment on behalf of

his client and his duty of adequate legal

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

413 n.6 (8th Cir. 1976). See also ABA Code

of Professional Responsibility, D.R. 6-101

(A)(2). Lufkins' trial counsel knew that

Lufkins had given a statement directly impli-

cating himself in a homicide. He also

recognized that his client vehemently main-

tained that’ the statement was given

involuntarily.* Counsel's trial strategy was

based on the theory that someone other than

Lufkins had struck the decedent, a theory

‘ Although at the evidentiary hearing before

the district court, defense counsel denied

having ever actually seen the contents of

Lufkins' handwritten list of objections filed

in open court on June 12, 1980, he was cer-

tainly aware’ of the document's existence.

Moreover, Lufkins testified that he had

counsel's help in drawing up the list and

that counsel delivered the list to the judge.

A-67

that was to be undercut directly by the

admission of the incriminating statement

signed by Lufkins. Counsel therefore readily

admitted during the evidentiary hearing

before the district court that the voluntari-

ness of his client's statement was a material

issue in the case.

Under these circumstances, trial counsel

had a duty to test the voluntariness of

Lufkins' statement. Under the provisions set

forth in State v. Thundershield, 160 N.W.2d

at 412, counsel could have challenged the

voluntariness of the statement in an inde-

pendent hearing outside of the jury's

presence. Thundershield, 160 N.W.2d at 412,

provides:

When a confession or an incrimi-

nating statement allegedly made by

the accused is offered by the

prosecution and objected to, the

State has the burden of proving

beyond a reasonable doubt the same

was freely and voluntarily made.

This proof must be made in an

independent hearing of all relevant

A-68

facts outside the presence of the

jury. At this hearing the defendant

may testify and be cross-examined

as to the issue of voluntariness

without jeopardy to or waiver of

his right to remain silent at the

trial.

The procedures made available to a criminal

defendant in Thundershield implicate funda-

mental constitutional rights. In Pinto v.

Pierce, 389 U.S. at 32-33, the Supreme Court

implicitly recognized that a defendant is

entitled to an independent hearing outside of

the presence of a jury unless he waives that

right. Also, in United States v. Carignan,

342 U.S. at 38, the Supreme Court recognized

that a defendant who challenges the volun-

tariness of a confession should be given an

opportunity to testify as to the facts sur-

rounding his confession in the absence of the

jury.

We therefore conclude that reasonably

competent counsel would have attempted to

test the voluntariness of Lufkins' statement

A-69

under the provisions of Thundershield. At

the very least, competent counsel would have

made an objection on due process grounds to

having the hearing in the jury's presence.

Furthermore, competent counsel would have

raised an objection to the trial court's

admission of the statement without first

giving counsel an opportunity to cross-

examine and to rebut the State's witnesses.

Here, Lufkins' counsel failed: to request an

independent voluntariness hearing; to inform

Lufkins that he had an opportunity to chall-

enge the voluntariness of his statement in a

separate hearing during which he could

testify without jeopardizing his right to

remain silent; to make any objection to

holding the hearing in the jury's presence;

and to object to the trial court's admission

of the statement without the benefit of

cross-examination of the State's witnesses.

- .

A-70

Counsel also bolstered Agent Peterson's

testimony as to the voluntariness of Lufkins'

statement. Counsel's failures here seriously

undercut Lufkins' effort to defend himself.

Although counsel did make a cursory, catchall

objection to the admission of the incrimi-

nating statement, this did not satisfy his

duty of competent representation.

The State however urges that Lufkins'

trial counsel reasonably believed that

Lufkins' statement was voluntarily given and

that a voluntariness challenge would have

been futile. While a reasonably competent

attorney is not required to pursue a proced-

ural alternative having little or no

likelihood of success, Zaehringer v. Brewer,

635 F.2d 734, 737 (8th Cir. 1980), Lufkins'

voluntariness challenge could not have been

fairly regarded as having little or no like-

lihood of success. At the evidentiary

hearing before the district court, Lufkins

A-71

raised a genuine question as to the volun-

tariness and accuracy of his incriminating

statement. Specifically, questions were

raised about Lufkins' state of mind when he

signed the statement. Without attempting to

resolve the voluntariness question now, we

conclude that, considering the heavy burden

placed on the State to prove beyond a reason-

able doubt that the statement was voluntarily

made, >

a reasonably competent attorney would

not have considered a voluntariness challenge

as futile.

Lufkins has also met his burden of

proving that counsel's ineffectiveness pre-

judiced his defense. The trial record does

not show that “[the] other evidence of guilt

presented at trial... was substantial to a

degree that would negate any possibility of

actual prejudice resulting from the admission

. See Thundershield, 160 N.W.2d at 412.

A-72

of [the] inculpatory statement." Wainwright

v. Sykes, 433 U.S. 72, 91 (1977). Other than

the incriminating statement, the only evi-

dence of guilt was the testimony of three

companions who purportedly witnessed Lufkins

hit the decedent with an axe handle on the

evening of December 4, 1979. However, as

emphasized by the district court, these

witnesses were not particularly reliable

because they had been drinking heavily from

the early hours of December 4, and they had

difficulty recalling the events of that

evening. Furthermore, apart from the pre-

judice caused by counsel's failure to chal-

lenge the admission of the incriminating

statement, counsel undercut Lufkins' trial

defense by failing to sequester these eye-

witnesses so that they could not listen to

one another's testimony. We believe this was

further evidence of counsel's prejudicial

A-73

failure to exercise his professional judgment

in his client's behalf.

V.

The last and certainly most difficult

issue we address is whether the district

court erred in ruling that trial counsel's

ineffectiveness entitled Lufkins to a new

trial. The State argues that if a new volun-

tariness hearing determines that Lufkins'

statement was voluntary and therefore

properly before the jury, counsel's ineffec-

tiveness in failing to mount a voluntariness

challenge would be nonprejudicial, and would

not warrant a new trial. In support of this

argument, the State relies upon Jackson v.

Denno, 378 U.S. at 394, where the Court

states:

If at the conclusion of such an

evidenti hear in the State

Court on coercion issue, it is

determined that [the defendant's]

confession was voluntarily given,

admissible in evidence, properly to

A-74

be considered by the jury, we see

no constitutional necessity at that

point for proceeding with a new

trial, for [the defendant] has

already been tried by a jury with a

confession placed before it and has

been found guilty.

Although superficially appealing, the

State's argument is defective in two signifi-

cant respects. First, while the district

court primarily focused upon counsel's inef-

fectiveness in failing to mount a volun-

tariness challenge, it also found that

counsel's ineffectiveness was reflected by

his failure to sequester the three purported

eyewitnesses who were to testify, and by his

apparent bolstering of a State's witness.

Certainly the prejudice resulting from coun-

sel's failure to sequester the three

unreliable eyewitnesses and his bolstering of

a State witness would not be cured by a

subsequent determination of voluntariness in

a full and fair voluntariness hearing.

A-75

Second, the remedy in Jackson v. Denno

was not intended to cover situations where

counsel prejudices his client's right to a

fair trial by failing to request an inde-

pendent voluntariness hearing outside of the

jury's presence. In his concurrence in

Pinto, 389 U.S. at 33-34, Justice Fortas

accentuated the danger of having the jury

present while the trial judge hears evidence

on the voluntariness of a confession and

determines its admissibility. Justice Fortas

stated:

Jackson v. Denno means that the

judge and the jury must each make

an independent judgment of volun-

tariness of an admission, the judge

for purposes of admissibility and

the jury for evidentiary accept-

ability, credibility, and weight.

A telescoped hearing before judge

and jury, in which the judge finds

voluntariness for purposes of

= dee in reality reduces

the Ragticn to an echo.

Seasiaa the evidence simultaneously

with the judge, the jury is not apt

to approach disagreement with

Ba. oe * (This procedure], by

A-76

reducing the effectiveness of the

jury, gravely impairs the constitu-

tional principle of excluding

involuntary confessions which

Jackson v. Denno ought to serve.

The jury is the traditional and

preferred arbiter of facts. The

procedure countenanced here, by

dicta, sanctions, in effect, a

direction to the jury to accept and

give full credence to the admission

--because the judge, hearing the

same testimony, has ruled that the

admission is voluntary.

Id. at 34. Accord Hickman, 521 F.2d at 386.

Applying Justice Fortas' insights to

this case, even if a full and fair voluntari-

mess hearing determines that Lufkins'

statement was properly admitted during

Lufkins's trial, this would not cure the

prejudice caused by the jury's presence when

the trial court took testimony on the volun-

tariness of Lufkins' statement and ruled that

the statement was voluntary for purposes of

admissibility. By failing to have the jury

excluded, Lufkins' counsel significantly

vitiated the jury's ability to make its own

A-77

independent judgment as to the voluntariness

of the statement for purposes of “evidentiary

acceptability, credibility, and weight."

We therefore affirm the district court's

ruling the trial counsel's ineffectiveness so

prejudiced Lufkins' right to a fair trial as

to entitle Lufkins to a new trial.

A true copy.

ATTEST:

CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

Ww

A-78

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 83-1078-SD September Term, 1982

Dennis Lufkins, FILED

September 12, 1983

Appellee,

Robert D. St. Vrain,

vs. Clerk

Herman Solem, Warden, et al,

Appellants.

Appeal from the United States District

Court for the District of South Dakota.

This appeal from the United States

District Court was submitted on the record of

the said District Court, brief of the

parties, and was argued by counsel.

After consideration, it is ordered and

adjudged that the judgment of the said Dis-

trict Court in this cause be, and the same is

hereby, affirmed in accordance with the

opinion of this Court.

: ee

~@

A-79

September 12, 1983

A true copy.

ATTEST:

CLERK, UNITED STATES COURT OF APPEALS,

EIGHTH CIRCUIT

11/2/83

A-80

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

DENNIS LUFKINS, ) No. 83-1078

Appellee,

PETITION FOR

REHEARING

)

)

Vv. )

)

HERMAN SOLEM, )

Warden; MARK )

MEIERHENRY, Attorney)

General of South )

Dakota,

Appellants. )

COMES NOW Appellants and pursuant

to Rule 40 of the Federal Rules of Appellate

Procedure and Local Rule 16 of the Rules of

the United States Court of Appeals for the

Eighth Circuit and respectfully petition this

Court for a rehearing based on the grounds

that the original panel's decision in this

case erred in a critical Fact of this case.

Such error is set forth in the State's accom-

panying Memorandum and Affidavits which are

A-81

attached hereto and incorporated in this

Petition.

Dated this _—_——sésday':« fF: September,

1983.

MARK V. MEIERHENRY

ATTORNEY GENERAL

Mikal Hanson

Assistant Attorney General

State Capitol

Pierre, South Dakota 57501-5090

Telephone: (605) 773-3215

A-82

STATE OF SOUTH DAKOTA) IN CIRCUIT COURT

COUNTY OF ROBERTS \ PIeTE JUDICIAL CIRCUIT

State of South Dakota,

Plaintiff,

Vv. $ AFFIDAVIT

Dennis Lufkins, .

Defendant.

tke RRR RRR RRR RRR KKK KR KR KR

STATE OF SOUTH DAKOTA)

COUNTY OF ROBERTS )

Vivian Hove, being first duly sworn,

deposes and says:

I.

That she is the Clerk of Courts for

Roberts County, South Dakota and held that

position during the trial of State v. Dennis

Lufkins which commenced on June 30, 1980.

II.

That she was present in the. courtroom

during the tesimony of Eugene Hadine, Ernest

A-83

Hayes and Matthew Bluedog. That to the best

of your affiant's knowledge and belief,

Eugene Hadine, Ernest Hayes and Matthew

Bluedog were in the courtroom only to testifv

and that they were not present in the court-

room to hear the other two witnesses testify.

Dated at Sisseton, South Dakota, this

____ day of September, 1983.

Vivian Hove

Subscribed and sworn to before me this

day of September, 1983.

David Gilbertson - Notary Public

Roberts County, South Dakota

My commission expires June 6, 1991.

A-84

STATE OF SOUTH DAKOTA) IN CIRCUIT COURT

COUNTY OF ROBERTS ye piers JUDICIAL CIRCUIT

State of South Dakota,

Plaintiff,

Vv. AFFIDAVIT

Dennis Lufkins,

Defendant.

tke RRR RRR RRR RRR RRR RK KR KR

STATE OF SOUTH DAKOTA)

COUNTY OF ROBERTS )

Neil D. Long, being first duly sworn,

deposes and states:

I.

That he is the duly elected Sheriff of

Roberts County, South Dakota and has been

serving in that capacity since January of

1975.

II.

That he was present in the courtroom

during the above entitled matter during trial

which commenced on June 30, 1980.

A-85

III.

That he was present in the courtroom

during the testimony of Eugene Hadine, Ernest

Hayes and Mathew Bluedog. That to the best

of your affiant's knowledge and belief,

Eugene Hadine, Ernest Hayes and Matthew

Bluedog were in the courtroom only to testify

that they were not present in the courtroom

to hear the other two witnesses testify

Dated at Sisseton, South Dakota, this

_._._ day of September, 1983.

Neil D. Long

Subscribed and sworn to before me this

day of September, 1983.

David Gilbertson - Notary Public

Roberts County, South Dakota

My commission expires June 6, 1991.

A-86

STATE OF SOUTH DAKOTA i+) IN crRcuIT court ®

COUNTY OF ROBERTS FIFTH JUDICIAL CIRCUIT

State of South Dakota,

Plaintiff, , ©

v. ; AFFIDAVIT

Dennis Lufkins,

Defendant. °

a ee

STATE OF SOUTH DAKOTA)

COUNTY OF ROBERTS ‘2 °

David Gilbertson, being first duly

sworn, deposes and states:

I. .

That he is the duly appointed and is

currently serving as the Deputy State's

Attorney of Roberts County, South Dakota and .

has been so since May of 1975. That during

the course of this time he has conducted

approximately fourteen criminal jury trials. e

A-87

II.

That it is his practice to have his

witnesses sequestered outside the courtroom

during jury trials except when testifying or

in the case of law enforcement officers who

are in the courtroom to preserve order.

IIl.

That your affiant prosecuted Dennis

Lufkins for Manslaughter commencing on June

30, 1980.

IV.

That it is your affiant's knowledge and

belief, he sequestered Ernest Hayes, Eugene

Hadine and Matthew Bluedog outside the court-

room except when they were testifying in this

matter.

Dated at Sisseton, South Dakota, this

_.__. day of September, 1983.

David Gilbertson

A-88

Subscribed and sworn to before me this

____ day of September, 1983.

Milton Cameron - Notary Public

Roberts County, South Dakota

My commission expires February 14, 1991.

A-89

STATE OF SOUTH DAKOTA ) IN CIRCUIT COURT

COUNTY OF ROBERTS ) FIFTH JUDICIAL CIRCUIT

State of South Dakota,

Plaintiff,

Vv. ' AFFIDAVIT

Dennis Lufkins, ,

Defendant.

take R RRR RK RK KR RK KR KR KR KR KR KR KR KK

STATE OF SOUTH DAKOTA)

COUNTY OF ROBERTS )

Galleen Thorn, being first duly sworn,

deposes and says:

I.

That she is the court reporter for the

Honorable Mildred Ramynke, Judge of the Fifth

Judicial Circuit of the State of South Dakota.

II.

That your affiant reporter [sic] the

case of State v. Dennis Lufkins which com-

menced on June 30, 1980.

A-90

IIl.

That it is your affiant's knowledge and

belief that the State's witnesses, Eugene

Hadine, Mathew Bluedog and Ernest Hayes were

in the courtroom only to testify and that

they were not present in the courtroom to

hear the other two witnesses testify.

Dated at Sisseton, South Dakota, this

_.._. day of September, 1983.

Galleen Thorn

Subscribed and sworn to before me this

____ day of September, 1983. Se

David Gilbertson - Notary Public

Roberts County, South Dakota ©

My commission expires June 6, 1991.

A-91

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 83-1078-SD ) September Term 1983

Dennis Lufkins,

Appellee, )

) Appeal from the

vs. ) United States

) District Court

) for the

Herman Sollem [sic], ) District of

Warden, et al, ) South Dakota

)

Appellants. )

)

)

Petitions of appellants for rehearing

filed in this cause having been considered,

it is now here ordered by this Court that the

same be, and it is hereby, denied.

October 19, 1983