573 F2d 1027 Zemina v. Solem

573 F.2d 1027

Fred J. ZEMINA, Appellee-Appellant,
Herman SOLEM, as the duly appointed, qualified and acting
Warden of the South Dakota State Penitentiary,

Nos. 77-1899, 77-1846.

United States Court of Appeals,
Eighth Circuit.

Submitted March 13, 1978.
Decided April 10, 1978.

Peter H. Lieberman, Asst. Atty. Gen., Pierre, S. D., for appellant-appellee; William J. Janklow, Atty. Gen., Pierre, S. D., on brief.

Stuart L. Tiede, of Woods, Fuller, Shultz & Smith, Sioux Falls, S. D., for appellee-appellant.

Before LAY and BRIGHT, Circuit Judges, and VAN SICKLE, District Judge.*


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Herman Solem, acting warden of the South Dakota State Penitentiary, appeals from a district court order granting habeas corpus relief to prisoner Fred J. Zemina.1 Zemina cross-appeals, contending that the district court erred in rejecting several other grounds asserted in his petition. We affirm.


Zemina was convicted of first degree manslaughter in a South Dakota state court and sentenced to life imprisonment. The Supreme Court of South Dakota affirmed the conviction. State v. Zemina, 87 S.D. 291, 206 N.W.2d 819 (1973). In this habeas corpus action, Zemina alleges numerous defects in his trial. After analyzing the entire record in detail, Chief Judge Nichol, in a well-reasoned opinion, granted Zemina's petition on two grounds and rejected the remaining allegations. First, Chief Judge Nichol concluded that the trial court had violated Zemina's right to a trial by jury and to due process of law by refusing to give the jury a proposed instruction on Zemina's defenses of justification, excuse, and self-defense. Second, he found that the trial court had violated Zemina's sixth amendment right to counsel by allowing the prosecutor to suggest in closing argument that Zemina's phone call to his attorney after his arrest indicated his guilt. We adopt Chief Judge Nichol's reasoning and affirm the judgment granting the writ of habeas corpus on the basis of that opinion.


Zemina's contentions on his cross-appeal (No. 77-1846) relate to errors in the trial that are unlikely to occur again if he is retried. We therefore do not reach the issues raised by Zemina's cross-appeal, and we dismiss that appeal.


BRUCE M. VAN SICKLE, United States District Judge, District of North Dakota, sitting by designation


The Honorable Fred J. Nichol, Chief Judge, District of South Dakota. Chief Judge Nichol's opinion is published at 438 F.Supp. 455