Freeman v. Leapley

HENDERSON, Justice

(dissenting).

Based upon Laprath failing to request a jury instruction on accomplice testimony, failing to request a jury instruction on corroboration of accomplice testimony and failing to object to the prosecutor’s questions regarding Freeman’s decision to exercise his right to remain silent and then not moving for a mistrial, I cannot vote to affirm the quashing of the writ of habeas corpus.

As early as State v. Douglas, 70 S.D. 203, 16 N.W.2d 489 (1944), this Court recognized that the failure to give an accomplice testimony instruction and an accomplice corroboration instruction, where warranted, results in prejudicial error. Failure to initially ask for these instructions does the same damage. Although the question of whether evidence existed corroborating Primeaux’s testimony was a question for the jury, they never had the chance to answer. State v. Sondreal, 459 N.W.2d 435, 439 (S.D.1990).

A criminal pattern jury instruction accomplice testimony and corroboration thereof could easily have been requested. The evidence certainly merited such an action by Laprath, and her failure to do so does not appear to be a tactical decision. Grooms v. State, 320 N.W.2d 149, 152 (S.D.1982). Had the instructions been requested and given, it might have mitigated the effect of Pri-meaux’s testimony, hence, reducing the chances of Freeman’s conviction. “No advantage could have been envisioned by appellant’s counsel in withholding requests for these instructions.” State v. McBride, 296 N.W.2d 551, 555 (S.D.1980).

When they received their Miranda rights, Primeaux talked, but Freeman asserted his constitutional right to remain silent. The State elicited testimony of Trooper Evanson concerning Freeman’s refusal in the presence *620of the jury. Freeman had the constitutional right to not incriminate himself. S.D. Const., Art. VI, § 9 clearly provides: No person shall be compelled in any criminal case to give evidence against himself. Freeman’s decision to assert his constitutional right not to incriminate himself was highlighted by the prosecutor at trial without objection. A suspect’s refusal to make a statement is not admissible evidence. McBride, 296 N.W.2d at 555. Comment by the prosecution concerning a defendant’s silence is violative of his constitutional rights. State v. Strickland, 87 S.D. 522, 211 N.W.2d 575, 580 (1973) (citing Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)). Despite this basic tenet of criminal law, Freeman’s counsel never objected. It is difficult to fathom why this could be denominated as a tactical decision. Grooms, 320 N.W.2d at 152; Roden v. Solem, 431 N.W.2d 665, 667 (S.D.1988).

Today, this Court agrees that the inactions of Laprath emphasized above, along with several others, constitute error. According to the majority, Freeman’s defense failed the “Perry Mason” standard. Nevertheless, effective counsel would have attempted to avoid prejudicial error and constitutional deprivations. These failures by counsel rendered the trial fundamentally unfair. Lockhart v. Fretwell, 506 U.S. -,-, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180 (1993); Hopfinger v. Leapley, 511 N.W.2d 845, 847 (S.D.1994).

I am authorized to state that Justice WUEST joins this dissent.