Foote v. Young

1

2024 S.D. 41

BEAU FOOTE, SR., Petitioner and Appellant, v. DARRIN YOUNG, Warden of the South Dakota State Penitentiary, Respondent and Appellee.

No. 30503-a-MES

Supreme Court of South Dakota

July 17, 2024

CONSIDERED ON BRIEFS JUNE 6, 2024

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT STANLEY COUNTY, SOUTH DAKOTA THE HONORABLE BOBBI J. RANK Judge

LINDSEY L. RITER-RAPP of Riter, Rogers, LLP Pierre, South Dakota

Attorneys for petitioner and appellant.

MARTY J. JACKLEY Attorney General

MATTHEW W. TEMPLAR Assistant Attorney General Pierre, South Dakota

Attorneys for respondent and appellee.

OPINION

SALTER, JUSTICE

[¶1.] Beau Foote Sr. is currently serving prison sentences for his convictions of aggravated assault on a law enforcement officer with a deadly weapon. Foote filed a petition for a writ of habeas corpus alleging his trial counsel rendered ineffective assistance. After an evidentiary hearing, the habeas court denied Foote's request for habeas relief. It issued a certificate of probable cause, and Foote appeals. We affirm.

Factual and Procedural Background

[¶2.] In September 2017, law enforcement officers learned that Beau Foote Sr., who had an outstanding arrest warrant for a parole violation, was in a trailer home in Fort Pierre. Stanley County Deputy Sheriff Greg Swanson and Foote's parole officer, Agent Michael Stolley, went to the trailer home to execute the warrant. While Deputy Swanson waited at the back door, Agent Stolley knocked on the front door, announcing that officers were present and attempting to locate Foote. Receiving no verbal response but hearing shuffling, the officers made entry through the unlocked doors.

[¶3.] When they entered, Foote was lying on the ground. Agent Stolley attempted to handcuff Foote, but Foote jumped up and tried to flee the home. Deputy Swanson stopped him by pushing Foote onto the couch. The physical contact between the men caused Deputy Swanson's taser^[1] to fall from its holster. The two men grabbed the taser and were struggling over it when its probes fired into the nearby couch. Deputy Swanson got tangled in the wires, which delivered an electrical shock to his arms, incapacitating him.

[¶4.] Next, Foote pushed the taser into Agent Stolley's chest and pulled the trigger. But due to Agent Stolley's bullet-proof vest, he was not shocked. Finally, Agent Stolley drew his firearm and ordered Foote to drop the taser. He did, and officers handcuffed him.

[¶5.] Still, Foote continued to be combative after being handcuffed, attempting to bite and trip officers and shouting obscenities at them. Once in the back of the patrol vehicle, Foote intentionally hit his head against the window. To keep Foote from hurting himself, the Stanley County sheriff rode in the back of the vehicle with Foote to the jail. After Foote had been removed from the scene, both Deputy Swanson and Agent Stolley discovered they had suffered injuries from the encounter inside the trailer home.

[¶6.] Foote was charged with two counts of aggravated assault on a law enforcement officer with a dangerous weapon and, in the alternative, two counts of simple assault on a law enforcement officer. He was also charged with resisting arrest. The State filed a part II information, alleging Foote had six prior felony convictions, one of which included a crime of violence.

[¶7.] Attorney Brad Schreiber was appointed to represent Foote. For much of the case, plea discussions were at the forefront, but an agreement was never reached. At one point, Foote indicated that he would accept the State's plea offer, but just before the change of plea hearing, he changed his mind and decided he wanted to go to trial.

[¶8.] At the two-day jury trial, the State presented testimony through eight witnesses, two of whom testified as to the function and operation of tasers. The first was Jeff Hill who identified himself as a park ranger with the South Dakota Department of Game, Fish, and Parks, and the other was Don McCrea, an instructor at the South Dakota Law Enforcement Training Center. Both Hill and McCrea were listed as potential witnesses in the State's pretrial disclosures, which described the subject of their prospective testimony as "[t]aser function and operation." The State also indicated that Hill would testify about the data report obtained from Deputy Swanson's taser after the encounter with Foote. They were not specifically designated as expert witnesses, and the circuit court had not ordered the disclosure of expert witnesses.

[¶9.] The jury found Foote guilty on both counts of aggravated assault against a law enforcement officer and guilty of resisting arrest. Foote also admitted to the part II information, and the circuit court sentenced him to fifteen years in the South Dakota Penitentiary^[2] with five years suspended on each of the aggravated assault counts, ordered to run consecutively. The court imposed a jail sentence for the resisting arrest conviction that has since been served.

[¶10.] Foote appealed, and we affirmed his convictions. See State v. Foote (Foote I), 2019 S.D. 32, 930 N.W.2d 650. On direct appeal, Foote challenged his aggravated assault convictions with a textual argument relating to SDCL 22-1-2(10), which defines a "dangerous weapon" as it is used in the aggravated assault statute, SDCL 22-18-1.1(2). Foote argued that the State failed to present sufficient evidence "to prove he possessed a dangerous weapon[,]" claiming "a Taser is not a dangerous weapon because it was not calculated or designed to cause serious bodily injury or death and it was not used in a manner that was likely to inflict death or serious bodily harm." Foote I, 2019 S.D. 32, ¶ 8, 930 N.W.2d at 652.

[¶11.] We rejected this argument, citing a different provision of SDCL 22-1-2(10) that specifically designates a "stun gun" as a dangerous weapon. See SDCL 22-1-2(50) (defining a stun gun as a "battery-powered, pulsed electrical device of high voltage and low or no amperage that can disrupt the central nervous system and cause temporary loss of voluntary muscle control of a person"). Our conclusion in this regard was supported by testimony from McCrea, who stated that "Deputy Swanson's Taser is a type of 'stun gun' because 'it is [a] conductive electronic weapon. . . . It sets up a major neurological interface, . . . and people cannot operate properly, and it sends their muscles into overload and spasms and creates quite a bit of pain.'" Foote I, 2019 S.D. 32, ¶ 12, 930 N.W.2d at 653 (alterations in original).

[¶12.] Foote also challenged his convictions on the basis of his claim that he had not attempted to use the taser to cause bodily harm. In his view, "the evidence established he merely acted in an effort to get away and avoid being arrested." Id. ¶ 10, 930 N.W.2d at 652. However, applying our settled standard that requires us to view the evidence in favor of the verdict, we determined that "the jury could have concluded Foote attempted to use the Taser in a manner likely to inflict serious bodily harm upon the officers." Id. ¶ 15, 930 N.W.2d at 653.

[¶13.] After his convictions were final, Foote filed a pro se application for writ of habeas corpus, alleging three grounds for relief that included a double jeopardy claim, an Eighth Amendment cruel and unusual punishment claim, and an allegation that he received ineffective assistance of counsel. The habeas court appointed counsel for Foote, and in an amended application, Foote alleges his incarceration "is unconstitutional in that it is the product of ineffective assistance and [sic] counsel and it is violative of due process."

[¶14.] The habeas court held an evidentiary hearing, at which Foote's trial counsel, Brad Schreiber, and Foote himself testified. Schreiber explained that he considered Hill and McCrea to be experts from the outset based on the State's pretrial disclosures. Schreiber acknowledged he did not challenge their qualifications because, in his view, he "didn't feel the need to." He believed he could elicit information that would be favorable to Foote from the experts on cross-examination. Schreiber's research relating to taser use led him to believe he could get the experts to admit that the taser was not specifically designed to cause serious injury or death. Because of this, and because he did not think an expert would provide any additional benefit to Foote's defense, Schreiber decided not to hire an expert on Foote's behalf.

[¶15.] When asked about his trial strategy, Schreiber described two goals: first, he sought to convince the jury that Foote was only attempting to get away from officers and, therefore, he did not attempt to cause or knowingly cause bodily injury to the officers; and second, Schreiber would attempt to convince the jury that the taser did not meet the "dangerous weapon" definition because it was not specifically calculated or designed to inflict death or serious bodily injury. Schreiber indicated that his decisions to not object to the expert witnesses' testimony and to not hire a defense expert were in furtherance of this second goal. [¶16.] Foote testified that he felt "like my case didn't matter." But when asked why he felt that way, all he could say was, "I don't know." He also admitted that he had, at one point, been quite pleased with Schreiber's representation. In fact, in a letter to Schreiber after receiving a copy of his appellate brief, Foote wrote, "I got the brief you sent me. I read it and it made me shed some tears because about time the truth comes out. Brief couldn't be done better. I like it." Nevertheless, based on independent research Foote had done after his convictions were affirmed on appeal, Foote now believes that Schreiber should have hired a taser expert.

[¶17.] The...