Lavern Fast Horse v. Joe Class ( 1996 )

_____________
No. 95-3193SD
_____________
Lavern Fast Horse, *
*
Appellant, *
* On Appeal from the United
v. * States District Court
* for the District of
* South Dakota.
Joe Class, Warden, *
*
Appellee. *
___________
Submitted: May 14, 1996
Filed: July 8, 1996
___________
Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and VAN
SICKLE,* District Judge.
___________
RICHARD S. ARNOLD, Chief Judge.
Lavern C. Fast Horse, who is serving a six-year sentence for theft
by deception and embezzlement of property received in trust, appeals the
District Court's1 denial of his petition for habeas corpus. We affirm.
In December 1990, Fast Horse sought employment from Jeff Dale, the
owner of Telescan Satellite and Pro Video. Dale informed Fast
*The Hon. Bruce M. Van Sickle, United States District Judge
for the District of North Dakota, sitting by designation.
1
The Honorable Lawrence L. Piersol, United States District
Judge for the District of South Dakota.
Horse that although no salaried positions were available, Dale would pay
Fast Horse a commission for the sale of certain products. The next day,
Fast Horse told Dale that the Oglala Sioux Tribe was interested in
purchasing a camcorder. Dale gave Fast Horse permission to take a
camcorder to show it to the Tribe.
Two days later, Fast Horse told Dale that Tribal President Harold
Salway was trying out the camcorder to see if he wanted to buy it for his
personal use. Fast Horse then said that he was going to California for
four or five days. After Fast Horse left, Dale asked Salway whether he
intended to purchase the camcorder. Salway replied that he had never seen
it.
Meanwhile, Fast Horse spoke to Peggy Poppe Basham, a travel agent,
about purchasing two one-way tickets to Los Angeles for himself and his
girlfriend, Patricia Swallow. Fast Horse said that he worked for Telescan
and wanted to charge the tickets to the business. According to Fast Horse,
Ms. Basham called Telescan, and Jeff Dale authorized the charge. Dale,
however, denies receiving the phone call. Fast Horse then left for
California with his girlfriend and the camcorder, which the police seized
from his hotel room, along with a satellite-tracking system.
At trial, Fast Horse gave a number of contradictory descriptions of
his activities. He first denied, then later admitted, that he had
purchased a one-way ticket. Fast Horse said that "the tribe did not want
the camera because it [was] too expensive," but then testified that Dale
"knew from the beginning" that Fast Horse "wanted to buy the camera for
[his son] for Christmas." Fast Horse's son, however, did not accompany his
father and the camcorder to California.
The jury convicted Fast Horse of theft by deception, S.D.C.L. § 22-
30A-3, and embezzlement of property received in trust, S.D.C.L. § 22-30A-
17(1). The South Dakota Supreme Court affirmed.
-2-
State v. Fast Horse, 490 N.W.2d 496 (S.D. 1992). Fast Horse unsuccessfully
sought state post-conviction relief. Fast Horse v. Leapley, 521 N.W.2d 102
(S.D. 1994). Fast Horse then filed a petition for habeas corpus, which the
District Court denied.
On appeal, Fast Horse argues that he did not receive effective
assistance of counsel because his lawyer did not call Peggy Poppe Basham
as a witness and failed to introduce evidence that Dale had mailed the
satellite-tracking system to Fast Horse in California. In order to
prevail, Fast Horse "must show that his counsel's performance fell below
professional standards and that his defense was prejudiced by his counsel's
ineffectiveness." Schneider v. Delo, 1996 WL 282416 at *3 (8th Cir. May
30, 1996). Fast Horse has not met this standard.
We begin with the failure of Fast Horse's lawyer to call Ms. Basham
to the witness stand. During Fast Horse's state post-conviction
proceedings, Ms. Basham testified that Dale had authorized her to charge
Fast Horse's airplane tickets to Telescan. Fast Horse asserts that this
testimony would have impeached the credibility of Dale, who testified that
he had never authorized the charge. Also, Fast Horse argues, if Dale was
willing to allow Fast Horse to charge the tickets, then Dale must not have
been worried about the camcorder's whereabouts.
We need not decide whether Fast Horse's counsel was ineffective for
failing to have Ms. Basham testify. When "it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, [that]
course should be followed." Strickland v. Washington, 466 U.S. 668, 697
(1984). A defendant is prejudiced if "there is a reasonable probability
[that is, a probability sufficient to undermine confidence in the outcome]
that, but for counsel's unprofessional errors, the result of the [trial]
would have been different." Id. at 694. Fast Horse has not shown that his
defense was prejudiced.
-3-
Fast Horse is correct that Ms. Basham's testimony would have
contradicted Jeff Dale's claim that he did not agree to pay for Fast
Horse's plane tickets. This would have been powerful testimony in a trial
for embezzling plane tickets. But Fast Horse was tried for stealing a
camcorder, and there was ample evidence -- which would not have been
contradicted by Ms. Basham -- that Fast Horse was guilty. For example,
Fast Horse explained that he failed to return the camcorder because he gave
it to Harold Salway, but Salway testified that he never saw it. Then, Fast
Horse testified that Jeff Dale was aware that Fast Horse was not going to
return the camcorder because he wanted to buy it for his son for Christmas.
Considering that Fast Horse bought a one-way ticket and took the camcorder,
but not his son, to California, Fast Horse had an odd way of giving gifts.
As for his trip, Fast Horse testified that he went to California to act in
"L.A. Law." If embezzlement were not a serious crime, Fast Horse's wildly
contradictory explanations for not returning the camcorder would be
comical. But embezzlement is no laughing matter, and the mountain of
evidence against Fast Horse convinces us that Ms. Basham's testimony would
not have changed the outcome of the trial.
We now turn to Fast Horse's claim that his lawyer should have
introduced evidence regarding the origins of the satellite-tracking system
which the police seized from Fast Horse's hotel room. According to Fast
Horse, Jeff Dale mailed the tracking system to him in California. Fast
Horse argues that his lawyer was ineffective because this evidence would
have shown that Dale did not regard Fast Horse as a thief. We are not
persuaded. Dale claims that Fast Horse stole the satellite-tracking
system. In fact, the prosecution tried to introduce evidence of Fast
Horse's possession of the tracking system to prove that he had stolen other
items from Telescan. Fast Horse's lawyer successfully moved to prohibit
the prosecution from presenting this evidence. In light of Fast Horse's
demonstrated lack of candor and consistency, we agree with the South Dakota
Supreme Court that Fast Horse's lawyer
-4-
made a reasonable strategic decision, which we are not free to second
guess. See Fast Horse, 521 N.W.2d at 105-06.
For these reasons, the judgment of the District Court is affirmed.
We express our thanks to Fast Horse's appointed counsel for his diligent
service in this proceeding.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-5-