Coon v. Weber, No. 22060

644 N.W.2d 638

2002 SD 48

Eric J. COON, Petitioner and Appellant, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent and Appellee.

Robert D. Poppen, Petitioner and Appellant, v. Douglas Weber, Warden, South Dakota State Penitentiary, Respondent and Appellee.

Nos. 22060, 22061.

Supreme Court of South Dakota.

Considered on Briefs March 25, 2002.

Decided May 1, 2002.

Michael B. Thompson, Sioux Falls, South Dakota, Attorney for petitioners and appellees Coon and Poppen.

Mark Barnett, Attorney General, Frank Geaghan, Sherri Sundem Wald, Assistant Attorneys General, Pierre, South Dakota, Attorneys for respondent and appellee.

PER CURIAM.

[¶ 1.] Eric J. Coon and Robert D. Poppen filed separate appeals from a joined habeas corpus action. Each is serving a life sentence in the state penitentiary for his involvement in the murder of Mary K. Ross. Because their appeals are nearly identical and involve the same legal issue, they are combined here.¹ We affirm.

FACTS AND PROCEDURE

[¶ 2.] Ross was murdered in her Sioux Falls apartment around 4:00 a.m. on July 9, 1995 by Coon and co-defendant, Poppen. Coon and Poppen were hired by Michael Smith and Robert Power to kill Ross, a friend of Power's wife. Power believed Ross was interfering with his marriage and was upset that Ross had smoked marijuana in front of his child. Coon and Poppen were provided with Power's automobile, money to purchase supplies to commit the crime,² and a map of Ross' apartment and parking area and a key to her apartment.

[¶ 3.] Coon and Poppen found Ross sleeping in her bedroom and delivered a total of 16 stab and sharp force wounds to her head and upper body. The crime scene was particularly gruesome because Ross had managed, during the attack, to escape to the kitchen and attempt telephone contact with a 911 operator. Coon and Poppen, whose knives broke with the force of their stabbings, rifled through kitchen drawers for knives to complete their mission. They left Ross on her living room couch, with her throat cut, believing she was dead.

[¶ 4.] Coon and Poppen were to receive $10,000 each for killing Ross. They believed their acts would make people fear them and provide a boost to their egos. Poppen claimed that for he and Coon, it was all about "power and money." In the end, they received no more than the $50 given them to purchase the knives and gloves, though they were convinced Power would pay them as he "seemed like a nice enough person" when they contracted with him to kill Ross.

[¶ 5.] Investigators arrived at the crime scene almost within the hour of the murder and quickly put together a list of suspects from information gleaned from Ross' address book and informants. On August 1, 1995, police detectives began to gather those suspects for interrogation. As authorities located these individuals, they began to appear at the police station around the same time although it had not been the intent of law enforcement to have them all present at the same time. They were placed in various interview rooms, some equipped with taping equipment and some not. Detectives moved between the rooms as information unfolded about the events surrounding this crime. That day, after waiving their Miranda rights, both Coon and Poppen separately confessed to her murder. That same evening, co-defendant Smith admitted that Power had hired Coon and Poppen to murder Ross.

[¶ 6.] Although their attorneys filed motions to suppress their confessions, Poppen pled guilty on December 15, 1995, and Coon pled guilty on December 18.³ Each was sentenced to life in prison. By pleading guilty, conspiracy to commit murder charges were dropped and they avoided the death penalty, an option open to the State's Attorney. Poppen was also able to have a Part II habitual offender information dropped.

[¶ 7.] Both filed pro se habeas corpus actions that were later amended by court-appointed counsel. Both claimed the same issue and requested joinder of their actions before the habeas court. They were denied relief by the habeas court, were granted certificates of probable cause and appealed to this Court. Both identify the same issue on appeal.

ISSUE

[¶ 8.] Whether ineffective assistance of counsel rendered Coon's and Poppen's guilty pleas involuntary.

STANDARD OF REVIEW

[¶ 9.] The scope of review is limited in this collateral attack on the final judgment. Hofer v. Class, 1998 SD 58, ¶6, 578 N.W.2d 583, 585. Habeas can only be used to review whether the trial court had personal and subject matter jurisdiction, whether the sentence was illegal, and whether the defendant was deprived of basic constitutional rights. Id.

[¶ 10.] A claim of ineffective assistance of counsel presents a mixed question of law and fact. Factual findings are reviewed under the clearly erroneous standard. "In the absence of a clearly erroneous determination, we defer to the habeas court's findings of fact regarding what counsel did or did not do, but we may substitute our own judgment `as to whether defense counsel's actions or inaction[s] constituted ineffective assistance of counsel.' " Id. at ¶ 7, 578 N.W.2d at 585 (quoting Lien v. Class, 1998 SD 7, ¶ 12, 574 N.W.2d 601, 607; Lykken v. Class, 1997 SD 29, ¶ 6, 561 N.W.2d 302, 304-05).

ANALYSIS AND DECISION [¶ 11.] Coon and Poppen shoulder a heavy burden of proof in their ineffective assistance of counsel claims. They must prove "(1) that counsel's representation fell below an objective standard of reasonableness, and (2) that such deficiency prejudiced the defendant." Rhines v. Weber, 2000 SD 19, ¶ 13, 608 N.W.2d 303, 307; Siers v. Class, 1998 SD 77, ¶ 12, 581 N.W.2d 491, 495; Sprik v. Class, 1997 SD 134, ¶ 22, 572 N.W.2d 824, 829; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Id. at 686, 104 S.Ct. at 2064, 80 L.Ed.2d at 692-93. Attorneys are presumed to be competent unless otherwise shown and the reasonableness of counsel's performance is evaluated from counsel's perspective at the time in light of all of the circumstances. Davi v. Class, 2000 SD 30, ¶ 17, 609 N.W.2d 107, 112.

[¶ 12.] In examining the first prong of an ineffective assistance claim under Strickland, we have held:

When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel's performance must be highly deferential. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.

Lien, 1998 SD 7 at ¶ 14, 574 N.W.2d at 607 (citations omitted). However, where there is no trial, as is the case here, the burden on the defendants to show ineffective assistance of counsel is increased. They must show not just deficient performance, but gross error by counsel in recommending that they plead guilty. Hofer, 1998 SD 58 at ¶ 11, 578 N.W.2d at 586 (quoting Williams v. State, 349 N.W.2d 58, 62 (S.D. 1984)); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).

[¶ 13.] In examining the second prong under Strickland, where there is no trial, we have held:

In many guilty plea cases, the `prejudice' inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error `prejudiced' the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the `prejudice' inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.

Lien, 1998 SD 7 at ¶ 15, 574 N.W.2d at 607-08 (citations omitted)(emphasis in original).

[¶ 14.] Both Coon and Poppen now claim their drug use just prior to their August 1, 1995 confessions at the police station caused their confessions to be involuntary. They claim their motions to suppress their confessions would have been successful, but for their guilty pleas which effectively precluded consideration of these motions. They claim their attorneys were ineffective in allowing them to plead under these circumstances, rather than proceeding to trial, and therefore, their guilty pleas are invalid. Attorneys John Schlimgen and Scott Heidepriem represented Coon; attorneys Steve Binger and Michael Hanson represented Poppen.⁴ Both Coon's and Poppen's videotaped interviews with law enforcement on August 1, 1995 were reviewed by Dr. Mathias Stricherz, a psychologist and chemical dependency counselor, in preparation for their habeas hearing.

1. Voluntariness of the confessions

[¶ 15.] The question of voluntariness of a confession is a factual matter for the trial court. State v. Phipps, 318 N.W.2d 128, 131 (S.D.1982); State v. DuBois, 286 N.W.2d 801 (S.D.1979); State v. Lyons, 269 N.W.2d 124 (S.D.1978). "The test for determining voluntariness of incriminating statements or confessions requires the trial court to consider the effect the totality of the...