Evans v. Sullivan

1

2024 S.D. 36

HARRY DAVID EVANS, Petitioner and Appellant, v. DANIEL SULLIVAN, Warden of the South Dakota State Penitentiary, Respondent and Appellee.

No. 30507-a-MES

Supreme Court of South Dakota

June 26, 2024

CONSIDERED ON BRIEFS APRIL 23, 2024

APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT CUSTER COUNTY, SOUTH DAKOTA THE HONORABLE JOSHUA HENDRICKSON JUDGE

JOHN R. MURPHY RAPID CITY, SOUTH DAKOTA ATTORNEY FOR PETITIONER AND APPELLANT.

MARTY J. JACKLEY ATTORNEY GENERAL MATTHEW W. TEMPLAR ASSISTANT ATTORNEY GENERAL PIERRE, SOUTH DAKOTA ATTORNEYS FOR RESPONDENT AND APPELLEE.

SALTER, Justice

[¶1.] Harry David Evans is serving a life sentence in prison after a jury convicted him of six criminal offenses, including kidnapping, rape, burglary, assault, stalking, and violating a protection order. He filed a writ of habeas corpus setting forth nine claims, most of which alleged ineffective assistance of counsel in connection with his underlying criminal trial. He also alleged violations of his rights to due process and to be free of unreasonable searches and seizures. The habeas court granted the State's motion to dismiss three of Evans' claims on the basis of res judicata because they were effectively resolved in Evans' direct appeal. After an evidentiary hearing, the court denied the remaining claims and dismissed Evans' request for habeas relief. The court issued a certificate of probable cause, and Evans appeals. We affirm.^[1]

Factual and Procedural Background

The crime

[¶2.] After the breakup of her marriage, S.B. was living alone on an 11-acre property in Pennington County where she kept horses and other animals. She met Evans on an online dating site in 2016, and the two connected over their love for animals. They soon began an arrangement under which Evans helped S.B. care for her horses in exchange for a place to stay. But this employment-type arrangement quickly developed into a romantic relationship that, in time became tumultuous and was characterized by its on-again-off-again nature.

[¶3.] In December 2016, Evans trapped S.B. in her basement after she confronted him about having his mail delivered to her home. Evans threatened to kill both S.B. and himself, but S.B. was able to escape and called the police. Shortly after another incident occurred during which Evans again threatened S.B., this time giving her three choices: "You are either going to make love to me or I will rape you or I will murder you."

[¶4.] After a similar incident, Evans was arrested and charged with simple assault and false imprisonment. S.B. later called Evans' attorney, Elizabeth Frederick, in an effort to assist Evans. S.B. told Frederick that Evans was only trying to prevent S.B. from driving while intoxicated. S.B expressed that she wanted to have the charges against Evans dropped. Frederick told S.B. to call the state's attorney, and though the details surrounding the disposition of the case are not completely clear in the record, it does appear that the charges were ultimately dismissed.

[¶5.] S.B. began limiting her contact with Evans, although she did not want to abruptly end contact with him out of fear that doing so might anger him. When S.B. moved from her Rapid City home, she temporarily stayed in a camper while a new modular home was moved to an acreage she had purchased near Hermosa. Though she initially testified that the relationship with Evans was over at this point, she acknowledged on cross-examination that they had been intimate "a few times" while she was staying in the camper.

[¶6.] S.B. also agreed that she had accepted Evans' help in connection with her move to her new Hermosa home. However, she testified that Evans became angry with her after learning that she had not placed him on the deed to the recently purchased Hermosa real estate. According to S.B., any expectation that she would add Evans to the deed was unjustified, and she was alarmed by his reaction. She decided to end the relationship and advised Evans not to return to the Hermosa property. However, Evans did not accept her decision and, according to S.B., he began to harass her with calls and text messages. Before she had moved into the Hermosa house but after the modular home was located on the property, she discovered that Evans had been staying there after finding his clothing and a sleeping bag during a visit to the property. S.B. explained that she then obtained a protection order, acting on the advice of a local law enforcement officer.

[¶7.] But despite the protection order, Evans continued to contact S.B., mainly in the form of harassing calls and texts. S.B. contacted the police who placed game cameras around S.B.'s property.

[¶8.] On September 5, 2017, S.B. contacted police after receiving an unsettling message from Evans. Hermosa Town Marshal Jim Daggett went out to S.B.'s home and searched the surrounding acreage in an unsuccessful effort to find Evans. Daggett told S.B. he would return in the morning. S.B. then poured herself a glass of wine, opened her bathroom window slightly, and took a bath. Forgetting to close the window, she took a sleeping pill and went to bed around 1:15 a.m.

[¶9.] Around the same time, Evans had parked his partially spray-painted pickup down the road from S.B.'s home and made his way to S.B.'s house along a cattle path. He eventually positioned himself beneath the open bathroom window while S.B. was taking a bath. After she went to sleep, he cut the screen from the window and gained entry into her house.

[¶10.] S.B. was awakened by Evans beside her. He began wrapping her in duct tape and gave S.B. three familiar options: "she could make love to him, he could rape her, or he would kill her and himself." Evans then forced multiple sleeping pills into S.B.'s mouth before placing duct tape across her mouth. S.B. drifted in and out of consciousness as Evans wrapped her in a blanket, dragged her out of her house, loaded her into her SUV, and drove her off her property before returning to her home and dragging her back inside.

[¶11.] At some point, S.B. became aware that she was back in her bed while Evans cut the duct tape from her body with a hunting knife and raped her. S.B. lost consciousness again, and when she awoke, Evans ordered her to take him to his truck. He threatened to kill her friends and her animals if she told anyone about what had happened.

[¶12.] When Marshal Daggett returned to S.B.'s home that morning, S.B. did not at first tell him about the rape. But, sensing something was amiss, Daggett continued to ask S.B. if something had happened, and S.B. told him about the incident. Other officers responded and began looking for Evans.

[¶13.] Law enforcement officers eventually located Evans' truck at a hotel and casino on the Pine Ridge Indian Reservation. State officers sought assistance from their tribal counterparts who met them at the hotel where they learned that Evans had checked into a room. After unsuccessful efforts to contact Evans, tribal officers entered his room where they found him in bed, incoherent, with an empty bottle of S.B.'s prescription medication beside him. Officers arrested Evans and seized his truck, from which they collected evidence.

[¶14.] Evans was indicted and pled not guilty to six counts: second-degree rape, first-degree kidnapping, aggravated assault, stalking, violation of a protection order, and first-degree burglary. After a five-day trial, a jury found Evans guilty on all six counts.

The direct appeal

[¶15.] Evans appealed his convictions, which we affirmed in a 2021 decision. See State v. Evans (Evans I), 2021 S.D. 12, 956 N.W.2d 68. As it relates to the habeas case before us, we considered the following three issues in Evans I: (1) whether the circuit court erred by denying Evans' motion to suppress evidence based upon the assertion state law enforcement officers did not have jurisdiction to seize Evans' property on the Pine Ridge Indian Reservation, (2) whether the circuit court's deviation from jury selection statutes constituted structural error; and (3) whether the circuit court abused its discretion under SDCL 19-19-404(b) (Rule 404(b)) when it admitted other acts evidence relating to events involving his ex-wife that occurred during their marriage.^[2] Id. ¶ 1, 956 N.W.2d at 74.

[¶16.] We rejected Evans' challenge to the circuit court's denial of his suppression motion, noting that the United States Supreme Court has held that "the state's execution of a state warrant on a reservation for the violation of state laws occurring off the reservation does not impair the tribe's right to self-govern." Id. ¶ 51, 956 N.W.2d at 87 (citing Nevada v. Hicks, 533 U.S. 353, 364, 121 S.Ct. 2304, 2312, 150 L.Ed.2d 398 (2001)). Evans is not an Indian under federal law, the crimes occurred outside of Indian country, and the seized property belonged to Evans. Id. ¶ 52, 956 N.W.2d at 88. Moreover, the state officers investigating the case acted with the permission and assistance of tribal officers in a cooperative law enforcement effort. Therefore, we held that there was no "possible conclusion that the exercise of jurisdiction by state officers would infringe on tribal self-government." Id.^[3]

[¶17.] We also rejected Evans' arguments relating to jury selection and the circuit court's decision to allow other acts evidence. As to the former, Evans argued that the circuit court deviated from the jury selection process described in SDCL chapter 23A-20 when, instead of allowing challenges for cause, the court, acting on its own, summarily excused prospective jurors. Id. ¶ 38, 956 N.W.2d at 83. Evans did not object to the court's procedure at trial, but he argued on appeal that the court's procedure constituted structural error. Id. We...