Schocker v. Fluke

1

2024 S.D. 65

CHRISTOPHER SCHOCKER, Respondent and Appellee, v. BRENT FLUKE, Warden, Mike Durfee State Prison, Petitioner and Appellant.

No. 30218-a-SPM

Supreme Court of South Dakota

October 23, 2024

CONSIDERED ON BRIEFS AUGUST 29, 2023

REASSIGNED JULY 18, 2024

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT ROBERTS COUNTY, SOUTH DAKOTA THE HONORABLE RICHARD A. SOMMERS Judge

MARTY J. JACKLEY Attorney General MATTHEW W. TEMPLAR Assistant Attorney General Pierre, South Dakota Attorneys for petitioner and appellant.

DAVID A. GEYER of Delaney, Nielsen & Sannes, P.C. Sisseton South Dakota Attorneys for respondent and appellee.

MYREN JUSTICE (ON REASSIGNMENT).

[¶1.] Christopher Schocker was convicted of aggravated assault against a law enforcement officer. This Court summarily affirmed his conviction on direct appeal. Schocker sought a writ of habeas corpus on the grounds that he received ineffective assistance of counsel at trial. After an evidentiary hearing, the habeas court concluded Schocker had been denied the effective assistance of counsel in violation of the state and federal constitutions and vacated his conviction and sentence. This Court issued a certificate of probable cause, and the State appealed. We affirm.

Factual and Procedural Background

[¶2.] On November 21, 2018, Officer Blake Swanson, a Game, Fish and parks conservation officer, received a tip that two individuals poached a deer on the outskirts of Summit, South Dakota. The tip included a description of the vehicle, as well as information that Doris Schocker owned the vehicle. Officer Swanson then traveled to her residence northwest of Summit in Roberts County.

[¶3.] When he arrived at her house, Officer Swanson noticed individuals dragging a deer out of a red pickup that matched the description of the vehicle given in the tip.^[1] The pickup was backed into a wide corridor between rows of outbuildings. A horse corral blocked the end of the corridor. Officer Swanson parked his vehicle about a car length from the front of the pickup on the passenger side. He approached the individuals and introduced himself. Doris took a deer tag from her pickup and handed it to her son, Chris Schocker, who began field-dressing the deer.^[2] The other individuals present were Jeffry Hopkins and Kevin Morsching. After briefly making small talk with the men, Officer Swanson asked Doris to come to his vehicle. Once in the vehicle, Officer Swanson learned that Doris had a landowner deer tag, which permitted her to harvest a deer on her property. Doris claimed that she shot the deer behind one of the barns and was alone at the time she did so. Officer Swanson confronted her with the information he received from the tip. Eventually, Doris admitted, and Morsching later confirmed, that Morsching shot the deer without a license.

[¶4.] After visiting with Doris, Officer Swanson concluded that hunting violations had occurred. Doris remained in the vehicle while Officer Swanson got out and walked toward the men, informing them that he was confiscating the deer. Officer Swanson did not explain the reason for his decision at that time. Schocker immediately responded in a matter-of-fact tone, "No you're not!" When Officer Swanson again stated, "Yeah, it's going to come with me, okay?" Schocker responded forcefully, "No, you're not!"

[¶5.] At that point, Schocker moved directly in front of Officer Swanson in an intimidating manner so that the two men were almost face-to-face. Officer Swanson warned Schocker, "Don't come any closer to me, do you understand?" Schocker stepped backward but belligerently asked Officer Swanson, who was in uniform, "What gives you the right to do that?" Officer Swanson answered, "I've already talked to Doris, okay?" At the same time, Officer Swanson held his hand up, continuing to warn Schocker to stay back.

[¶6.] In the meantime, Doris approached the group from Officer Swanson's pickup and said, "He's going to take the deer, because he saw it happen, he saw it happen, he says." With that, Officer Swanson pointed toward Schocker again and warned him, "And don't take another step closer to me, do you understand?"

[¶7.] As Schocker moved back behind the deer, a brief verbal exchange took place between Doris and Officer Swanson, and Doris told him to take the deer. Morsching had gone into the area of one of the nearby sheds and was not engaged with the other individuals. Officer Swanson pointed at Morsching and asked him, "You want to come help me put [the deer] in the back?" Before he could answer, Schocker interjected, pointed at him, and ordered sharply, "You don't help him! Stay right there!"

[¶8.] Doris told Officer Swanson, "See, it's making him kind of angry." At about the same time, Schocker pointed toward Officer Swanson and then the deer and said, "You, You want that deer, you do it!" Officer Swanson replied, "We'll get [the deer] up there if that's the way you want to be, okay?" Schocker answered, "I ain't helping!"

[¶9.] Doris again commented, "It does make people kind of angry I guess . . . Well, you can't blame them for getting angry." Officer Swanson asked Doris, "Well, do you understand?" and Doris replied, "Yeah." Officer Swanson then asked Schocker, still standing nearby, "You want to stay there?" Schocker held his hands out to his sides, palms up, saying, "I'm on my own property, you can go to hell!"

[¶10.] At that point, Doris again tried to calm the situation, saying, "Hey, don't get that way." Officer Swanson interjected, commenting, "Doris has been plenty, plenty cordial with me, alright?" Schocker replied, "Well, I don't think you'll find that with me." Doris again told Schocker, "That's enough."

[¶11.] Officer Swanson next turned to Hopkins, who had been standing silently to one side of the deer and observing the entire time. Officer Swanson asked Hopkins, "Do you mind helping me?" Doris and Schocker both quickly interjected, saying, "No!" Then Schocker repeated more forcefully, "No!" Hopkins held his hands up, indicating that he did not want to be involved in the situation. As Officer Swanson began dragging the deer to his vehicle, Doris asked what would happen to the tag on the deer's leg. Officer Swanson replied that he would be taking both the tag and the deer as evidence. Schocker again became agitated and began stating obscenities under his breath.

[¶12.] Schocker approached Doris, who muttered something to him that cannot be understood on the video. Schocker can then be heard yelling loudly and clearly, "Horseshit!" At that point, Officer Swanson had turned away from Schocker and Doris so that the video shows only the side of one of the outbuildings. When Officer Swanson turned back around, Schocker was standing directly behind the open tailgate of Doris's pickup. Doris was beside the rear wheel on the passenger side of the vehicle walking slowly toward Officer Swanson with her back to Schocker. Officer Swanson and the deer were just past the front corner of the passenger side of the same vehicle.

[¶13.] As Officer Swanson was dragging the deer across the ground, he noticed Schocker come from the backside of Doris's pickup with a hunting knife in his hand. Schocker did not move quickly toward Officer Swanson, but he did move deliberately. However, before he was even with Doris, Officer Swanson sharply warned Schocker, "You come any closer with that f***ing knife, that is the last day you will." Although it cannot be seen on the video, Officer Swanson later testified that he reached for his service weapon at that same moment, but it did not clear the holster. Immediately upon hearing Officer Swanson's warning, Schocker turned back toward the tailgate of Doris's pickup and put the knife down.

[¶14.] Officer Swanson then called for backup. Two highway patrolmen and a conservation officer arrived on the scene in response to Officer Swanson's request for assistance. Officer Swanson placed Schocker under arrest for several offenses.

The criminal trial

[¶15.] Schocker was charged with possession of a firearm by a person with a prior drug conviction (SDCL 22-14-15), possession of a loaded firearm while intoxicated (SDCL 22-14-7), and aggravated assault against a law enforcement officer (SDCL 22-18-1.05). Schocker applied for court-appointed counsel, and Robert Doody was appointed to represent him. Following a preliminary hearing, Schocker pleaded not guilty at his arraignment. Between the date of his arraignment and jury trial, Schocker was convicted of a separate felony in Codington County and transported to prison.

[¶16.] In preparation for trial, Doody spoke with Schocker and reviewed Officer Swanson's body camera footage, but he never interviewed Hopkins or Morsching. Schocker and Doody disagree on the number of times Doody and Schocker spoke; however, Schocker claimed that Doody never called him while he was incarcerated and did not answer his letters. Schocker's trial was moved up on the court's trial calendar and set to begin on November 7, 2019. Because of his incarceration, Schocker did not arrive in town until the night before his trial. Doody and Schocker briefly met that night to discuss the case. During pretrial hearings, the State dismissed the other charges and proceeded only with the aggravated assault charge.

[¶17.] After jury selection and opening statements, the State called Officer Swanson as its only witness. During his testimony the State introduced two exhibits: the video recording from his body camera^[3] and a partial plat map depicting the location of the Schocker residence within Roberts County. The State rested its case-in-chief and the defense called Doris as its only witness. Doris testified that prior to Schocker picking up the knife, she told him to cut the tag off...