Lavern Fast Horse v. Joe Class ( 1996 )


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  •                                   _____________
    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-
    

Document Info

Docket Number: 95-3193

Filed Date: 7/8/1996

Precedential Status: Precedential

Modified Date: 10/13/2015