Miller v. State

¶1This appeal arises from a trial court’s order denying appellant John Miller (Miller) post-conviction relief from a conviction for escape from the South Dakota State Penitentiary (penitentiary). Miller appeals and we affirm.

¶2On November 13, 1979, while serving the fourth year of a twenty-five year sentence in the penitentiary, Miller escaped from the penitentiary’s “west farm” near Ellis, South Dakota. Approximately four days later, Miller was arrested in Dodgeville, Wisconsin. He was subsequently convicted by a *675jury of escape and sentenced to two and one-half years in the penitentiary. This court affirmed that conviction in State v. Miller, 313 N.W.2d 460 (S.D.1981).

¶3Miller now brings this post-conviction proceeding under the provisions of SDCL ch. 23A-34. The trial court denied Miller’s request for post-conviction relief and Miller appeals. The issues on this appeal, as framed by Miller, are whether the trial court’s inquiry as to Miller’s reasons for requesting a change of judge denied Miller due process of law; whether the prosecution’s and trial court’s misinforming the jury regarding Miller’s plea to the information denied Miller his right to a fair and impartial jury trial and his right to due process of law; whether the trial court’s failure to properly instruct the jury on Miller’s mental illness defense denied Miller his right to a fair and impartial jury trial and his right to due process of law; and, whether Miller was denied his right to effective assistance of counsel.

¶4The grounds for instituting a post-conviction proceeding are provided at SDCL 23A-34^1,1 which states:

Except at a time when direct appellate relief is available, any person who has been convicted of, or sentenced for, a crime and who claims:

(1) That his conviction or sentence was in violation of the Constitution of the United States or the Constitution of this state;

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(4) That there exists evidence of material facts bearing upon the constitutionality of the petitioner’s detention or sentence, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;

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(6) That his conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy;

may institute a proceeding under this chapter to secure relief.

¶5A post-conviction proceeding is not a substitute for a direct appeal. See Rauscher v. State, 292 N.W.2d 106 (S.D.1980). The burden of establishing a basis for post-conviction relief rests upon a petitioner. State v. Roth, 84 S.D. 44, 166 N.W.2d 564 (1969). The court must make specific findings of fact, and state expressly its conclusions of law on each issue presented. SDCL 23A-34-18. On appeal, this court cannot disturb such findings unless they are clearly erroneous. SDCL 15-6-52(a); Gregory v. State, 325 N.W.2d 297 (S.D.1982); Spirit Track v. State, 272 N.W.2d 803 (S.D.1978).

¶6Miller’s first claim is that the trial court’s inquiry into his reasons for requesting a change of judge denied him due process of law. Three days prior to his trial for escape, Miller moved for a change of judge. SDCL 15-12-27 requires such a motion to be made at least ten days prior to the date of trial. Since the motion was not properly made, the trial court rejected it.

¶7Before proceeding with the case, however, the trial court judge asked Miller for the reasons for the motion for change of judge. Although the judge need not have asked for the reasons for the motion, see State v. Thompson, 43 S.D. 425, 180 N.W. 73 (1920), Miller did not object to the judge’s questions. Further, when Miller directly appealed his conviction to this court, he did not raise this issue. The general rule is that a petitioner who takes a direct appeal cannot thereafter raise in a post-conviction proceeding any matter which he knew at the time of the direct appeal, but did not raise. Geelan v. State, 85 S.D. 346, 182 N.W.2d 311 (1970); State v. Roth, supra.Since Miller did not object to the judge’s questions and further, was aware of this issue when he directly appealed his convic*676tion, he cannot raise it now in this post-conviction proceeding.

¶8Miller’s second contention is that the prosecutor and trial court misinformed the jury of Miller’s plea to the information. SDCL 23A-24-2 provides, in pertinent part, that: “After a jury has been impaneled and sworn, a trial must proceed in the following order: (1) If the ... information is for a felony, the clerk or prosecuting attorney must read it and state the plea of the defendant to the jury.” When Miller was arraigned on April 8, 1980, he pleaded not guilty and not guilty by reason of insanity. At that time, Russell D. Kading (Kading) was Miller’s attorney. Subsequently, Kad-ing withdrew and A. Thomas Pokela (Poke-la) was appointed. The judge ordered a psychiatric report on Miller and as Pokela testified at the post-conviction hearing when Pokela received the report he felt there were no grounds to proceed with the defense of insanity at trial. Consequently, when the plea to the information was read to the jury at trial, only the plea of not guilty was read; the plea of not guilty by reason of insanity was not read. Miller now contends he did not intend to drop the defense of insanity and the failure to read the entire plea constitutes reversible error.

¶9In previous cases, where the plea to the information was incorrectly read, the inaccuracy was later cured by one of the attorneys or the judge. See State v. Wilson, 297 N.W.2d 477 (S.D.1980); State v. Hoover, 89 S.D. 608, 236 N.W.2d 635 (1975). Significantly here, Miller had requested and had been appointed co-counsel before the trial started.2 Neither Pokela nor Miller objected to the fact that only one of the defenses was read. Moreover, Pokela testified at the post-conviction hearing that before the trial he and Miller discussed the defense of insanity after receiving the psychiatric report and they agreed not to pursue the insanity plea.3

¶10Clearly, here, Miller and his co-counsel, Pokela, did not object to the plea as read, did not attempt to correct this alleged error at trial and also did not move for a new trial or raise this as an assignment of error on direct appeal. Moreover, the record indicates that this defense of insanity was abandoned before trial. Accordingly, the trial court did not err by reading only the plea of not guilty to the jury.

¶11We now turn to Miller’s third contention which is that the trial court’s failure to properly instruct the jury on Miller’s mental illness defense denied Miller his right to a fair and impartial jury trial and to due process of law.

¶12Although errors in instructing the jury do not always rise to a constitutional level as required by Rauscher, supra,if the error goes to the heart of a defendant’s theory of defense it can infringe upon defendant’s rights to due process and jury trial. Zemina v. Solem, 438 F.Supp. 455 (D.S.D.1977) aff'd 573 F.2d 1027 (8th Cir.1978). A trial court is required to instruct on the law only when there exists evidence on the record upon which such instruction can be based. State v. Bean, 265 N.W.2d 886 (S.D.1978). Miller now asserts that the heart of his defense was mental illness. As a veteran of Vietnam, Miller claims the stressful circumstances at the penitentiary caused his mind to snap and he began to hallucinate about Vietnam. Miller claims he “woke up” from the hallucinations when he was arrested in Dodgeville, Wisconsin.

¶13According to the record, however, the heart of Miller’s theory of defense was not insanity. As Pokela testified at the post-conviction hearing, after receiving the psychiatric report he and Miller discussed the theory of defense and decided to drop insanity as a defense. Additionally, the record overwhelmingly indicates that Miller and Pokela pursued a theory of not guilty by reason of justification. According to testimony at trial, in June, 1979, Miller had been stabbed and severely injured by anoth*677er inmate while m the mam prison facility. After recovering, Miller was transferred to the penitentiary’s “west farm.” On the morning of November 13, 1979, guards informed Miller that he was being returned to the main prison facility later that day. Thereafter, according to the testimony, Miller, fearing for his life, left the “west farm” before he could be transferred. In our view, the defense of mental illness would be inconsistent with the defense of justification.

¶14Clearly, the record shows that Pokela and Miller decided to abandon the theory of insanity. Moreover, since the testimony overwhelmingly supports the theory of justification, a jury instruction on insanity would not go to the heart of Miller’s defense. Accordingly, this does not rise to a constitutional level as required by Rauscher, supra,when seeking post-conviction relief. While Miller has the burden of establishing a basis for post-conviction relief, Roth, supra,he has failed to meet that burden.

¶15We now turn to Miller’s final issue which is whether Miller was denied effective assistance of counsel. Every defendant in a criminal prosecution has a constitutional right to counsel.4 In Grooms v. State, 320 N.W.2d 149 (S.D.1982), this court held that when reviewing the issue of ineffective assistance of counsel: (1) an attorney is presumed competent; and (2) the party alleging incompetency has a heavy burden of establishing ineffective assistance of counsel. Additionally, the petitioner attempting to show ineffective counsel must also demonstrate that he was prejudiced by the alleged ineffective assistance. State v. Pieschke, 262 N.W.2d 40 (S.D.1978).

¶16The trial court made the following conclusion of law concerning this issue:

(8) The entire record as presented to this court fails to demonstrate ineffective assistance of counsel upon any grounds; and fails specifically upon the ground that counsel failed to file for change of the trial court judge, upon the ground that counsel failed to present a mental illness defense, upon the ground that counsel failed to demand instructions; and upon the ground that counsel failed to request a mistrial. State v. Grooms, 320 N.W.2d 149 (S.D.1982) PSCR 41. [Grooms v. State, 320 N.W.2d 159 (S.D.1982).]

¶17Accordingly, for this court to reverse the trial court, we would have to find this conclusion in error as a matter of law.

¶18Miller’s primary claim here is that his co-counsel’s failure to pursue the mental illness defense based upon “Vietnam Stress Syndrome” constitutes ineffective assistance of counsel. In support of this contention, Miller cites United States v. Baynes, 687 F.2d 659 (3rd Cir.1982), which discusses a defense attorney’s duty to investigate possible defense. In Baynes, the court held that “a defense attorney, whether appointed or retained, is obligated to inquire thoroughly into all potentially exculpatory defenses and evidence.”5Id. at 668. Similarly, this court held that the right of an accused to the services of an attorney envisages that his attorney will investigate and consider possible defenses. State v. Walker, 287 N.W.2d 705 (S.D.1980); State v. Pieschke, supra.

¶19The record before us demonstrates that Pokela did not pursue the mental illness defense based upon the “Vietnam Stress Syndrome.” He read the psychiatrist’s report but did not seek another opinion; nor did he attempt to procure Miller’s V.A. records. As Pokela testified, after the trial *678was in progress and Miller had testified, he had second thoughts about the mental illness defense.6 At that time, however, it was too late since Miller and Pokela had already chosen their trial tactics.

¶20Miller relies upon Baynes, supra,a recent Third Circuit Court of Appeals case. In Baynes, the Third Circuit Court points out that ordinarily a lawyer is not required to anticipate changes in the law or pursue novel theories of defense.7 The “Vietnam Stress Syndrome” is a new theory of defense. Neither party cites to a case in which this theory was utilized. The only authority cited by Miller is a 23-page pamphlet published by Disabled American Veterans in 1980. Miller escaped from the penitentiary in 1979 and this trial was held in 1980. While mental illness is an established defense, clearly this “Vietnam Stress Syndrome” is a novel theory of defense— and especially so three years ago, in 1980.

¶21On review, it is not this court’s function to second-guess tactical decisions of defense counsel at trial; this court will not substitute its own theoretical judgment for that of counsel. State v. McBride, 296 N.W.2d 551 (S.D.1980). Effectiveness of counsel is not to be judged by hindsight. State v. Bartlett, 210 Neb. 886, 317 N.W.2d 102 (1982). Miller has a heavy burden in establishing ineffective assistance of counsel, State v. Walker, supra,and from our review of the entire record, Miller has not met that burden.

¶22Accordingly, we affirm.