State v. Thomas

#25628-rev & rem-SLZ

2011 S.D. 15

IN 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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