State v. Thomas , 2011 S.D. LEXIS 15 ( 2011 )

#25628-rev & rem-SLZ
2011 S.D. 15IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
NATHANIEL J. THOMAS, Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
CLAY COUNTY, SOUTH DAKOTA
* * * *
HONORABLE ARTHUR L. RUSCH
Judge
* * * *
MARTY J. JACKLEY
Attorney General
KIRSTEN E. JASPER
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.
STEVE MILLER Attorney for defendant
Sioux Falls, South Dakota and appellant.
* * * *
CONSIDERED ON BRIEFS
ON FEBRUARY 16, 2011
OPINION FILED 04/13/11
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ZINTER, Justice
[¶1.] Nathaniel Thomas was convicted of Reckless Burning, a Class 4 felony.
He appeals, claiming that the circuit court plainly erred in failing to give
appropriate instructions on accomplice testimony. He also contends that
instructional and other errors deprived him of effective assistance of counsel. 1
Finding that Thomas received ineffective assistance of counsel, we reverse and
remand for a new trial.
Facts and Procedural History
[¶2.] The Pressbox bar and restaurant in Vermillion caught fire and burned
in the early morning hours of September 29, 2008. When firefighters arrived, the
north side of the building was in flames. Investigators found a Coors Light bottle
with a cloth sticking out of it on the northeast side of the building. A police officer
described it as a “Molotov cocktail.” The police treated the case as arson, but no
immediate headway was made in the investigation.
[¶3.] Nine months after the incident, Detective Crystal Brady received a tip
that Ryan Kightlinger, Thomas’s cousin, had information about the fire.
Kightlinger’s information led Detective Brady to Thomas and to Jimmy and Jeremy
Broomfield. Following interviews with Kightlinger and the Broomfields, Detective
Brady concluded that Thomas and the Broomfields set a fire behind the Pressbox
that spread to the building.
[¶4.] Detective Brady subsequently interviewed Thomas. Thomas admitted
reporting the fire to 911 at 3:34 a.m. Thomas also admitted that the Broomfields
1. Thomas’s appellate counsel did not represent him at trial.
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were at his house (across the street from the Pressbox) drinking on the night of the
fire. Thomas, however, claimed that the Broomfields left his house two or three
hours before he reported the fire. Thomas further claimed that he went to bed
immediately after the Broomfields left and that he slept until he woke up to go to
the bathroom. Thomas indicated that while in the bathroom, he saw the fire and
immediately called 911. Although Thomas denied talking with anyone from the
time he went to bed until he reported the fire, his cell phone records reflected that
he had eight incoming and outgoing phone calls between 2:50 a.m. and the 911 call
at 3:34 a.m. The calls were to and from Jimmy Broomfield, Kightlinger, and
Thomas’s mother.
[¶5.] Thomas was charged with Reckless Burning in violation of SDCL 22-
33-9.3. Counsel was appointed but withdrew due to a conflict. Substitute counsel
was appointed. Counsel prevailed on a motion to continue the jury trial but filed no
other pretrial motions.
[¶6.] At trial, the Broomfields were the only witnesses directly implicating
Thomas in starting the fire. Jimmy testified that he, Jeremy, and Thomas had been
drinking together the night of September 28 into the morning hours of September
29. He indicated that the three of them took two empty Coors Light bottles and
filled them with gasoline from Jimmy’s car. They also took paper towels from
Thomas’s home to help light the fire. They poured some of the gasoline onto a
gravel patch approximately ten or fifteen feet behind the building and ignited the
gasoline. Both Broomfields testified that they saw Thomas light the fire. According
to the Broomfields, the fire burned and then died down. They further claimed that
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they put out the remaining fire to the point it was just smoking and went home to
bed. Jimmy testified that approximately ten minutes after walking to his home
across the alley, he looked out the window and saw that the fire had started up
again. Jimmy testified that he called Thomas, told him about the fire, and tried to
get him to call 911.
[¶7.] Although Thomas admitted being with the Broomfields earlier that
evening, he vehemently denied any involvement with the fire. He contended that
animosity and the Broomfields’ plea agreements motivated them to lie. He also
contended that the Broomfields had a motive to lie because Thomas had assaulted
Jimmy.
[¶8.] Although the Broomfields’ trial testimony directly implicated Thomas,
Jimmy conceded that he gave two prior statements of the events to Detective Brady.
Both statements excluded Thomas’s involvement. Both Jimmy and Jeremy also
conceded that they entered into plea agreements with the State as a result of the
fire. The plea agreements required the Broomfields to testify at Thomas’s trial.
[¶9.] Other than the Broomfields, Ryan Kightlinger was the only other
witness who linked Thomas to the fire. Kightlinger testified that Thomas called
Kightlinger around three a.m. on September 29. Kightlinger testified that during
the phone call Thomas indicated that he and the Broomfields had been drinking
heavily and that “they” started the fire. However, when asked by the state’s
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attorney what “they” meant, Kightlinger conceded that Thomas never indicated he
was personally involved in starting the fire.2
[¶10.] Chad Grunewaldt, the owner of the Pressbox, was the only other
witness who observed people around the building the morning of the fire. He
2. Kightlinger testified:
A. He said that they started a small fire in the alleyway.
He didn’t say specifically who and what. He just said
they started a fire in the alleyway.
Q. Okay. So Nate [Thomas] told you that they started a
fire.
A. Right.
Q. The three of them.
A. Right.
...
Q. So, Ryan, let’s -- let’s go back, just so that we’re all clear
here. When you talked to Nate [Thomas] on the phone,
he did tell you that he had -- he had been one that had
started the fire?
A. He didn’t specifically clarify he himself did it.
Q. But he said that the three of them had been over and
started the fire?
A. He didn’t -- he didn’t -- he didn’t speculate on all three of
them. He just said that, you know, it was -- like a slang
language. I didn’t really understand at the moment,
because he was frantic, but --
Q. Okay. So you didn’t get the details of it?
A. Exactly.
Q. But from your conversation with him, did you figure that
he was involved in this some way?
A. I did, but I didn’t know what happened. I wasn’t there.
...
Q. (By Thomas’s trial counsel on cross-examination) You
stated that when you talked to Nate [Thomas], he never
told you he started the fire?
A. Correct.
In addition to the equivocal nature of this testimony, Kightlinger was
mistaken about who initiated the phone call. Although Kightlinger testified
that Thomas initiated the call, Thomas’s cell phone records reflected that
Kightlinger initiated the call.
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testified that around two a.m., he saw three male college-aged students grilling,
hanging out, and drinking in the vicinity of Thomas’s front yard. But Thomas’s
front yard was shared by other tenants, and Grunewaldt did not identify the
individuals.
[¶11.] The jury found Thomas guilty, and he raises two issues on appeal:
1. Whether the circuit court plainly erred in instructing the
jury on accomplice testimony.
2. Whether Thomas was denied effective assistance of trial
counsel.
Decision
[¶12.] Thomas’s primary contention in both issues involves claimed
inadequacies in the circuit court’s accomplice instruction. The court gave an
accomplice instruction (Instruction 16) sua sponte. Instruction 16 provided:
You cannot find a defendant guilty based upon the testimony by
a co-defendant that incriminates the defendant unless that
testimony is corroborated by other evidence which tends to
connect the defendant with the commission of the offense.
[¶13.] Thomas argues that this instruction was incomplete in three respects.
Thomas first contends that because the instruction referred to “co-defendants”
rather than “accomplices,” the jury was not instructed that the Broomfields’
testimony had to be corroborated. Second, Thomas contends that the court did not
adequately instruct on the nature of the evidence necessary to corroborate
accomplice testimony. Thomas points out that the instruction did not indicate that
corroborative evidence is insufficient if it merely shows the commission of the crime
or the circumstances thereof and that one accomplice cannot corroborate another.
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Thomas finally contends that the court failed to instruct that accomplice testimony
must be viewed with caution.
[¶14.] Because trial counsel did not object to the court’s instruction or
propose any defense instructions on accomplice testimony, Thomas concedes that
these issues are not preserved for regular appellate review. Consequently, Thomas
seeks relief on theories of plain error and ineffective assistance of counsel. Both
theories require a showing of error and prejudice. 3 We begin by discussing the
alleged errors. We then consider the issue of prejudice.
[¶15.] Thomas contends the circuit court erred in failing to instruct the jury
that the Broomfields’ testimony had to be corroborated. SDCL 23A-22-8 provides:
A conviction cannot be had upon the testimony of an accomplice
unless it is corroborated by other evidence which tends to
connect the defendant with the commission of the offense. The
corroboration is not sufficient if it merely shows the commission
of the offense, or the circumstances thereof.
Thomas claims that because Instruction 16 only required corroboration of a “co-
defendant’s” testimony and the Broomfields were not co-defendants in this trial, the
instruction could not have logically or grammatically applied to accomplices Jimmy
and Jeremy Broomfield. We disagree.
3. Plain error requires a defendant to establish “(1) error, (2) that is plain, (3)
affecting substantial rights; and only then may we exercise our discretion to
notice the error if (4) it ‘seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’” State v. Beck, 2010 S.D. 52, ¶ 11, 785
N.W.2d 288, 293 (quoting State v. Mulligan, 2007 S.D. 67, ¶ 26, 736 N.W.2d
808, 818 (quoting State v. Nelson, 1998 S.D. 124, ¶ 8, 587 N.W.2d 439, 443
(quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544,
1549, 137 L. Ed. 2d 718 (1997)))). To be entitled to relief on a claim of
ineffective assistance of counsel, a defendant must show both that his
counsel provided ineffective assistance and that he was prejudiced as a
result. Steichen v. Weber, 2009 S.D. 4, ¶ 24, 760 N.W.2d 381, 392.
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[¶16.] In reviewing the sufficiency of jury instructions, the question is what a
reasonable juror could have understood from the instructions. State v. Robinson,
1999 S.D. 141, ¶ 16, 602 N.W.2d 730, 734. In this case, Instruction 16 informed the
jury that corroboration was required of “a co-defendant.” Additionally, the jury was
instructed that “the [S]tate’s witnesses, James and Jeremy Broomfield, have
pleaded guilty to crimes which arose out of the same events for which the defendant
is on trial here.” Because a reasonable juror would have understood that the
Broomfields were the only witnesses who could have been co-defendants, the jury
would have understood that the Broomfields’ testimony was required to be
corroborated. 4 Under the unique facts and circumstances of this case, we see no
error in the court’s modification of the accomplice instruction to apply to co-
defendants rather than accomplices.
[¶17.] Thomas next contends that the circuit court erred in failing to
sufficiently describe the nature of the testimony necessary to corroborate accomplice
testimony. Thomas first points out that the court’s instruction omitted the second
sentence of SDCL 23A-22-8, which provides: “corroboration is not sufficient if it
merely shows the commission of the offense, or the circumstances thereof.” Thomas
also points out that the court’s instruction did not inform jurors that one
accomplice’s testimony cannot be used to corroborate another accomplice’s
4. Thomas also argues that the circuit court erred by not instructing the jury
that the Broomfields were accomplices as a matter of law. See State v.
Hoadley, 319 N.W.2d 505, 506 n.1 (S.D. 1982). Because the court’s
instructions required that the Broomfields’ testimony be corroborated, there
was no need to also instruct that the Broomfields were accomplices as a
matter of law.
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testimony. See State v. Wiegers, 373 N.W.2d 1, 16 (S.D. 1985) (“The testimony of
one accomplice cannot be regarded as corroborating the testimony of another
accomplice within the meaning of SDCL 23A-22-8.”); State v. Dominiack, 334
N.W.2d 51, 54 (S.D. 1983) (stating that the jury should have been further instructed
that an accomplice cannot corroborate the testimony of another accomplice).
[¶18.] “Instructions are sufficient when, viewed as a whole, they correctly
state the law and inform the jury.” State v. Corean, 2010 S.D. 85, ¶ 38, 791 N.W.2d
44, 58. Both the law and facts of this case warranted instructions on the
inadequacy of corroboration that merely showed the circumstances or commission of
the offense and the corroboration of one accomplice by another. Therefore,
instructional error would have been present had these instructions been requested.
[¶19.] Thomas finally contends that the circuit court erred in failing to give a
cautionary instruction regarding accomplice testimony. “[A]n accomplice, . . . in
law, is regarded as a corrupt source of testimony.” State v. Beene, 257 N.W.2d 589,
592 (S.D. 1977). Therefore, an accomplice’s testimony “ought to be received with
suspicion, and with the very greatest care and caution, and ought not to be passed
upon by the jury under the same rules governing other and apparently credible
witnesses.” Crawford v. United States, 212 U.S. 183, 204, 29 S. Ct. 260, 268, 53 L.
Ed. 465 (1909). Further, it is not enough for the circuit court to only instruct that
testimony of an accomplice must be corroborated. Beene, 257 N.W.2d at 591. “The
jurors must be warned that, in effect, the accomplice may tailor the truth to his or
her own self-serving mold, and that they are to weigh the testimony with that
caveat in mind.” Id. at 592. A circuit court errs in “fail[ing] upon request to give a
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cautionary instruction concerning accomplice testimony whenever the testimony
given upon the trial is sufficient to warrant the conclusion upon the part of the jury
that a witness implicating a defendant was an accomplice, provided the witness was
not called by the defendant requesting the instruction.” Id. at 592-93. The
Broomfields were accomplices, and they were not called as witnesses by Thomas.
Therefore, instructional error would have been present had Thomas’s trial counsel
requested a cautionary accomplice instruction.
[¶20.] Because trial counsel did not request these instructions thereby
preserving these instructional errors for regular appellate review, appellate counsel
raises them as plain-error and ineffective-assistance-of-counsel claims. “Where an
issue has not been preserved by objection at trial, our review is limited to whether
the trial court committed plain error.” State v. Bowker, 2008 S.D. 61, ¶ 45, 754
N.W.2d 56, 69. See SDCL 23A-44-15 (“Plain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of a court.”).
We also may consider unpreserved issues in certain cases involving claims of
ineffective assistance of counsel. See, e.g., Lee v. Solem, 405 N.W.2d 56 (S.D. 1987)
(considering unpreserved issues of counsel’s failures to object to jury instructions
and testimony as an ineffective-assistance claim). Because we conclude that this is
one of those rare cases where an ineffective-assistance-of-counsel claim is ripe for
review on direct appeal, we confine the remainder of our analysis to that claim for
relief.
[¶21.] To be entitled to relief on a claim of ineffective assistance of counsel, a
defendant must show that his counsel provided ineffective assistance and that he
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was prejudiced as a result. Steichen, 2009 S.D. 4, ¶ 24, 760 N.W.2d at 392. To
establish ineffective assistance, a defendant must show that counsel’s
representation fell below an objective standard of reasonableness. Dillon v. Weber
(Dillon II), 2007 S.D. 81, ¶ 7, 737 N.W.2d 420, 424. The question is whether
counsel’s representation “amounted to incompetence under ‘prevailing professional
norms,’ not whether it deviated from best practices or most common custom.”
Harrington v. Richter, --- U.S. ---, 131 S. Ct. 770, 788, 178 L. Ed. 2d 624 (2011)
(quoting Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L.
Ed. 2d 674 (1984)). “There is a strong presumption that counsel’s performance falls
within the wide range of professional assistance and the reasonableness of counsel’s
performance is to be evaluated from counsel’s perspective at the time of the alleged
error and in light of all circumstances.” Steichen, 2009 S.D. 4, ¶ 25, 760 N.W.2d at
392-93.
[¶22.] Thomas contends that trial counsel was deficient for a number of
reasons, 5 but primarily because he failed to request the accomplice instructions
previously discussed. Thomas argues that his ineffective-assistance-of-counsel
claim should be decided on direct appeal because his counsel’s failure to request a
cautionary accomplice instruction was ineffective performance as a matter of law,
5. Thomas argues that trial counsel’s performance was also ineffective because
he failed to: object to the admissibility of the Broomfields’ guilty pleas; make
substantive pretrial motions, particularly a request for advance notice of
“other acts” evidence; object to “other acts” evidence; object to Detective
Brady’s recitation of the Broomfields’ and Kightlinger’s statements; seek an
instruction that Brady’s testimony of others’ statements was being offered for
a limited purpose; object to Brady’s vouching for truth or falsity of witness
statements; and object to the prosecutor’s personal opinion of Thomas’s
testimony.
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and “there is no reason to withhold a ruling to allow counsel to come up with one
that will be held to be insufficient anyway.” Thomas also points out that because he
will serve a short sentence if his conviction is affirmed on direct appeal, he will be
out of custody too quickly to challenge his conviction in a habeas proceeding
alleging ineffective assistance of counsel.
[¶23.] Ineffective-assistance-of-counsel claims are generally not considered on
direct appeal. State v. Arabie, 2003 S.D. 57, ¶ 20, 663 N.W.2d 250, 256. The reason
is to allow “attorneys charged with ineffectiveness [to] explain or defend their
actions and strategies, and thus a more complete picture of what occurred is
available for review.” Id. This Court will “depart from this principle only when
trial counsel was ‘so ineffective and counsel’s representation so casual as to
represent a manifest usurpation of [the defendant’s] constitutional rights.’” Id.(quoting State v. Dillon (Dillon I), 2001 S.D. 97, ¶ 28, 632 N.W.2d 37, 48 (quoting
State v. Hays, 1999 S.D. 89, ¶ 14, 598 N.W.2d 200, 203)).
[¶24.] There is no question that, at the very least, trial counsel should
have requested a cautionary accomplice instruction. The Supreme Court has
concluded that the failure to demand a cautionary accomplice instruction,
together with other errors, violates due process and the defendant’s right to
counsel. Cash v. Culver, 358 U.S. 633, 637-38, 79 S. Ct. 432, 436, 3 L. Ed. 2d
557 (1959). In Beene, this Court mandated the instruction when requested by
the defendant. 257 N.W.2d at 592-93. Therefore, trial counsel could not
claim that asking for the instruction would have been futile.
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[¶25.] Nor could counsel claim that he withheld a request for a cautionary
instruction as part of a legitimate trial strategy. This Court has concluded that
when accomplice testimony is presented, there is no conceivable strategic motive
that would excuse failure to request a cautionary accomplice instruction.
By not requesting that the jury be instructed to consider with
caution the testimony of an accomplice, appellant’s counsel
omitted a defense which might have negated [the witness’s]
damning testimony. . . . [This] instruction[ ], if [it] had been
requested and given, might have mitigated the effect of [the
witness’s] testimony, hence reducing the chances of appellant’s
conviction. No advantage could have been envisioned by
appellant’s counsel in withholding [a] request[ ] for [this]
instruction.
State v. McBride, 296 N.W.2d 551, 556 (S.D. 1980). This Court reiterated this
conclusion in Grooms v. State, stating: “We cannot envision an advantage which
could have been gained by withholding a request for this instruction.” 320 N.W.2d
149, 152 (S.D. 1982).
[¶26.] The jury’s decision in this case was based almost entirely upon a
credibility dispute between the Broomfields and Thomas. Further, the Broomfields’
testimony was of no conceivable benefit to Thomas, and Jimmy Broomfield’s trial
testimony was impeached. In final argument, the State’s attorney admitted that in
Jimmy Broomfield’s first two interviews (not implicating Thomas), Jimmy lied
about what occurred but that he “came clean” in his testimony at trial.
Additionally, there was admitted personal animosity between the Broomfields and
Thomas. In addition to these evidentiary reasons for discrediting the Broomfields’
testimony, a cautionary instruction from the court would have explicitly warned the
jury to examine the Broomfields’ testimony “with great care and caution.” Beene,
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257 N.W.2d at 589. The State has not identified and we cannot see any benefit
gained or tactic served by not requesting a cautionary instruction.
[¶27.] Moreover, the Broomfields were the only witnesses having direct
knowledge of the events. Therefore, we can also conceive of no strategic benefit in
not requesting instructions informing the jury: (1) that one Broomfield could not
corroborate the other; and (2) that the remaining circumstantial evidence merely
showing the circumstances and commission of the offense was not sufficient to
corroborate the Broomfields. We finally note that appellate counsel has identified a
number of related and unrelated motions and failures to object to evidence that
have no apparent strategic benefit on this record. See supra note 5. Under these
circumstances, there is no need to withhold a ruling until a habeas corpus
proceeding. Cf. Dillon I, 2001 S.D. 97, ¶ 28, 632 N.W.2d at 48 (reasoning that main
purpose to decline evaluation of ineffective assistance on direct appeal is so that
“attorneys charged with ineffectiveness can explain or defend their actions and
strategies, and thus a more complete picture of what occurred is available for
review”). Thomas has established on direct appeal that trial counsel provided
ineffective assistance.
[¶28.] A defendant alleging ineffective assistance of counsel also has the
burden of proving prejudice. Dillon II, 2007 S.D. 81, ¶ 6, 737 N.W.2d at 424.
Prejudice “exists only when ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’” Id. ¶
8 (quoting Owens v. Russell, 2007 S.D. 3, ¶ 9, 726 N.W.2d 610, 615 (quoting
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068)). “A reasonable probability is a
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probability sufficient to undermine confidence in the outcome.” Id. Ultimately,
“[w]hen a defendant challenges a conviction, the question is whether there is a
reasonable probability that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695, 104 S. Ct. at 2068-
69. The question then is, if we take away the Broomfields’ accomplice testimony
(assuming the jury discredited it after having been properly instructed), is there a
reasonable probability that the jury would have had a reasonable doubt respecting
Thomas’s guilt?
[¶29.] Thomas points out that we found such prejudice in the failure to give
cautionary accomplice instructions in similar situations in Grooms, 320 N.W.2d
149; McBride, 296 N.W.2d 551; and Beene, 257 N.W.2d 589. In each of those cases,
no witnesses other than the accomplices gave testimony directly tending to show
the defendants’ complicity. See Grooms, 320 N.W.2d at 151 (recognizing that the
accomplice was the only individual to give testimony that directly linked defendant
with the theft; “evidence presented at trial by the other six witnesses was
circumstantial evidence”); McBride, 296 N.W.2d at 554 (noting that the accomplice
was “the only individual to give testimony which linked appellant with the
burglary,” and “the [S]tate did not have a case without the testimony of an
accomplice or a colleague in crime”); Beene, 257 N.W.2d at 589 (“No witness, other
than [the accomplice], gave any testimony directly tending to show defendant’s
complicity.”). We also found prejudice in Beene because “the jury had to credit [the
accomplice’s] testimony in order to convict [Beene].” 257 N.W.2d at 592. “Taken as
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true, the testimony of the [other witnesses] would not [have made] a case for the
jury on the charges against [Beene.]” Id. at 591.
[¶30.] The State contends that no prejudice has been shown because even
without the Broomfields testimony, Kightlinger made a case for the jury on
Thomas’s guilt. Although Kightlinger’s testimony makes this a closer case, it is
ultimately the same as Grooms, McBride, and Beene. Taken at its best,
Kightlinger’s testimony was equivocal. In both his direct and cross-examination,
Kightlinger established presence at the scene but no more. Thomas’s purported
admission to Kightlinger did not directly show that Thomas started the fire.
Additionally, all of the State’s remaining evidence was circumstantial, and even it
only tended to show Thomas’s presence at the scene. Finally, a conviction in this
case depended upon the Broomfields’ credibility. Because, absent the Broomfields’
testimony, there was no evidence directly implicating Thomas in starting the fire,
we conclude that Thomas has established prejudice; i.e., a reasonable probability
that proper jury instructions, motions, and objections at trial may have changed the
outcome. We therefore reverse and remand for new trial.
[¶31.] GILBERTSON, Chief Justice, and KONENKAMP, MEIERHENRY,
and SEVERSON, Justices, concur.
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