State v. Tchida ( 1984 )

FOSHEIM, Chief Justice.

Richard Tchida was convicted on two counts of grand theft for receiving stolen firearms¹ and two counts of possession of a firearm by one with a prior violent crime conviction.² He appeals. We reverse.

In December 1982 two pistols were unlawfully removed from the Schütz Foods Company in Sisseton, South Dakota. Both firearms were retrieved from a cemetery by the local sheriff’s office on January 11, 1983, following an anonymous phone call. Investigation revealed that the pistols had been stolen by two fourteen-year-old boys. The lads arranged with Jonathan and Harlan DuMarce to dispose of the weapons, who together with another adult, Keith Du-Marce, allegedly sold the pistols to appellant Tchida. The three DuMarces were given immunity for their testimony which implicated Tchida. Keith DuMarce testified that he told appellant at the time of the sale that the pistols were stolen. That testimony was supported by Harlan Du-Marce. The pistols, however, were never found in appellant’s possession or linked to him by fingerprints. Appellant claims inadequate assistance of counsel and insufficiency of the evidence. Because we reverse on the first issue, we need not reach the evidence question. We cannot know what quantum of evidence will be received at a new trial.

The State counters that ineffective assistance of counsel may not be raised on direct appeal. In State v. McBride, 296 N.W.2d 551 (S.D.1980), we did hold that post-conviction relief is the most appropriate means to present that issue. In State v. Phipps, 318 N.W.2d 128 (S.D.1982), however, we identified an exception which allows the issue of incompetent counsel to be raised on direct appeal when the representation was “so casual that the trial record evidences a manifest usurpation of appellant’s constitutional rights.” Phipps, 318 N.W.2d at 131. We reaffirmed that exception in State v. Iron Shell, 336 N.W.2d 372 (S.D.1983).

Appellant notes sixteen areas in which he claims his trial counsel was incompetent. We examine these contentions from the perspective that an attorney is presumed competent and the party alleging incompetency has a heavy burden of establishing ineffective assistance of counsel. Jibben v. State, 343 N.W.2d 788 (S.D.1984); Grooms v. State, 320 N.W.2d 149 (S.D.1982); State v. McBride, 296 N.W.2d 551 (S.D.1980); State v. Pieschke, 262 N.W.2d 40 (S.D.1978). The test is whether defense counsel exercised “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). In making this review it is not our function to second-guess the tactical decisions of the trial attorney. We will not substitute our own theoretical judgment for that of appellant’s defense counsel. Jibben, 343 N.W.2d 788; Grooms, 320 N.W.2d.l49.

Viewed in this light, most of appellant’s contentions fail, since they relate to making, or not making, motions or objections which are generally trial decisions within the discretion of the attorney. Trial counsel’s candid preliminary statement that her experience in the practice of law was limited and that it was her feeling that someone who had practiced criminal law for a longer period would be better able to represent appellant did not overcome her presumed competency. Ineffective counsel must be demonstrated by acts or omissions which cause actual prejudice to the defense. Jibben, 343 N.W.2d 788; Pieschke, 262 N.W.2d 40. Inexperience alone does not mean incompetency.

In examining the record, however,we feel that several other aspects of the representation prejudiced Tchida’s defense. The record demonstrates that Tchida stands convicted on the uncorroborated testimony of three accomplices. 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.

Defense counsel failed to challenge the conviction on the grounds that it was based on uncorroborated testimony. The motion for directed verdict at the close of the State’s case did not zero in on the defect, but rather concentrated on the inadequacy of the accomplice testimony. Proper focus on the corroboration question might very well have meant a different result. We conceive no possible defense strategy which would justify allowing the case to go to the jury in that posture without vigorous objection. Additionally, defense counsel failed to propose any jury instructions on the necessity for corroboration, nor did she object when the .prosecution moved to have the three accomplices declared hostile witnesses. The record indicates that each was granted immunity from the first day of investigation and that they evidenced no hostility at the preliminary hearing. Despite the trial court’s warning of the consequences of declaring them hostile witnesses, defense counsel persevered in declaring that she had no objection.

Another unexplainable inadequacy was counsel’s failure to give timely notice of an alibi defense. The information alleged the receipt of stolen firearms occurred on December 25, 1982. On the back of both informations the prosecuting attorney requested that the defense give timely notice of intention to use an alibi defense pursuant to SDCL 23A-9-1 and 23A-8-4. The defense did not provide notice within the statutory ten days after request but moved for the first time during trial to allow introduction of an alibi defense that appellant was with his relatives on that day and evening. The motion was properly denied. Due to the untimely notice, Tchida was accordingly deprived of an alibi defense. Prom the informations, defense counsel had early notice of the date an alibi defense would have to meet. State v. Reiman, 284 N.W.2d 860 (S.D.1979).

The scant record available on direct appeal makes it difficult to assess the other alleged deficiencies of counsel. We do, however, deem the inadequacies discussed to be a “manifest usurpation of appellant’s constitutional rights,” Phipps, 318 N.W.2d at 131, and therefore reverse on direct appeal.

We reiterate our previously stated preference, however, for a means of review other than direct appeals on the adequacy of counsel issue. Our review is facilitated if a record is available which likely would include the testimony of trial counsel. The post-conviction statutes were repealed by the 1983 legislature. The same legislative session correspondingly amended and augmented the habeas corpus procedures of SDCL ch. 21-27. This is now the preferred procedure.

Reversed.

WOLLMAN, DUNN and MORGAN, JJ., concur. HENDERSON, J., concurs specially.

1 . SDCL 22-30A-7 and SDCL 22-30A-17.

2 . SDCL 22-14-15.