                                   ___________

                                   No. 95-4196
                                   ___________

Benjamin Franklin Freeman,             *
                                       *
          Petitioner-Appellee,         *
                                       *   Appeal from the United States
     v.                                *   District Court for the
                                       *   District of South Dakota.
Joseph Class, Warden, South            *
Dakota State Penitentiary;             *
Mark W. Barnett, Attorney              *
General for the State of South         *
Dakota,                                *
                                       *
          Respondents-Appellants.      *

                                   ___________

                      Submitted:   July 11, 1996

                          Filed:   August 30, 1996
                                   ___________

Before FAGG, LAY, and HEANEY, Circuit Judges.

                                   ___________

LAY, Circuit Judge.


     Benjamin Franklin Freeman was convicted of grand theft by a jury in
state court.   He brought a petition for a writ of habeas corpus in state
court claiming ineffective assistance of counsel.    The petition was denied,
and on appeal, the South Dakota Supreme Court found that although counsel
was deficient, Freeman was not deprived of a fair trial.           Freeman v.
Leapley, 519 N.W.2d 615, 619 (S.D. 1994) (three-to-two opinion).      Freeman
then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254
in federal district court.   The district court granted Freeman's petition.
We affirm.


     On February 2, 1991, a 1982 Oldsmobile Firenze was unlawfully taken
in Bonesteel, South Dakota.      Later that morning, Freeman and
David Primeaux were arrested for theft of the automobile.          The charges
against Primeaux were dropped in exchange for his testimony against
Freeman.       At Freeman's trial, Primeaux testified that Freeman had stolen
the car.      Freeman's attorney did not request any cautionary instructions1
concerning the weight to be given to Primeaux's testimony.         In addition,
defense counsel offered a police report which contained a hearsay statement
that Freeman stole the automobile and failed to object to the prosecutor's
statements that Freeman had exercised his constitutional right to remain
silent.2      The federal district court granted Freeman's petition for a writ
of habeas corpus.      The state of South Dakota timely appeals.


Discussion


      In all criminal prosecutions an accused has a right to the effective
assistance of competent counsel to ensure that he or she receives a fair
trial.        Strickland v. Washington, 466 U.S. 668, 689 (1984).      A state
prisoner's claim that counsel's assistance was so defective as to require
reversal of a conviction has two components.        First, the defendant must
show that counsel's performance is, in light of all the circumstances,
outside the range of professionally competent assistance.          Second, the
defendant must show actual prejudice, i.e., that there existed not only a
reasonable probability that, absent the errors, the factfinder would have
had a reasonable doubt respecting guilt, but that the proceeding was
rendered unfair or unreliable.       Lockhart v.




      1
      Under state law, Freeman was entitled to an instruction on
corroborating evidence and an instruction on accomplice testimony.
See S.D. Codified Laws Ann. § 23A-22-8 (1994); S.D. Pattern Jury
Instructions (SDPJI) 1-14-8 (rev. Sept. 1990).
          2
       Freeman's habeas petition also contained other claims of
ineffective assistance of counsel.      Specifically, that defense
counsel failed to move for a directed verdict, failed to submit any
authority to substantiate a motion for change of venue, and failed
to object to other hearsay statements.

                                       -2-
Fretwell, 506 U.S. 364, 369 (1993).


     The   state    initially   argues    the   district   court   misapplied   the
Strickland analysis in each of Freeman's claims of ineffective assistance
of counsel.   Specifically, because of a single citation to State v. Beene,
257 N.W.2d 589, 592 (S.D. 1977), the state urges that rather than applying
the "reasonable probability" standard,           the district court applied an
erroneous "had some effect" standard and therefore must be reversed.             A
thorough review of the district court's opinion shows this argument is
without merit.   Furthermore, a review of the record as a whole compels the
conclusion that Freeman's attorney's performance was constitutionally
deficient, and that such deficiency constituted actual prejudice to
Freeman.


Cautionary Instruction


     The district court, in a thoughtful and well reasoned opinion,
thoroughly analyzed each of Freeman's claims and found that five of the
seven satisfied the Strickland test.            We need only pass on the more
egregious claims.   In assessing Freeman's first claim that his attorney's
failure to request a cautionary instruction regarding the accomplice
testimony was deficient and highly prejudicial, the district court did
state, citing Beene, that "[f]ailure to give a cautionary instruction in
all probability produced some effect upon the jury verdict."           Freeman v.
Class, 911 F. Supp. 402, 406-07 (D.S.D. 1995).              Notwithstanding this
passing reference, the district court went on to correctly analyze the
claim under the proper standard set forth in Strickland and Hill, and found
that Freeman's trial counsel was "remiss in not requesting a cautionary
instruction[,]" that such "[f]ailure . . . was highly prejudicial to the
petitioner to the extent that the fundamental fairness of the proceeding
and the conviction was undermined[,]" and that had the jury been properly
instructed, there was "a strong probability that the result of the trial
would have been different."     Freeman, 911 F. Supp. at 407 (our emphasis).




                                         -3-
     The only direct evidence in the record linking Freeman to the theft
of the automobile is the testimony of the accomplice, David Primeaux.
There were no eyewitnesses.   There were no fingerprints.   On the contrary,
a convenience store clerk testified that Primeaux came into the store early
in the morning looking for a map, and "[h]e told me that he had stolen a
car, literally told me that." J.A. at 206a.   She testified that she thought
she saw Primeaux drive away, and did not see anyone else in the vehicle.
A short while later, both Primeaux and Freeman were found walking down a
South Dakota highway approximately one-quarter mile from where the stolen
car was subsequently found.   Primeaux was carrying a box of shotgun shells
that had been taken from the automobile, and a set of the vehicle's keys
were later found in Freeman's pocket.


    The evidence at trial revealed that Primeaux was to have the charges
against him dismissed if he testified against Freeman.   Under South Dakota
law, a defendant is entitled to a special cautionary instruction on the
credibility of accomplice testimony. See S.D. Pattern Jury Instructions
(SDPJI) 1-14-8.   Furthermore, South Dakota law provides that a conviction
cannot be had upon the testimony of an accomplice unless it is corroborated
by other evidence which tends to connect the defendant with the commission
of the offense.   S.D. Codified Laws Ann. § 23A-22-8 (1994).3


     The state's case hinged on Primeaux's testimony.       The weight given
to his testimony was crucial to the outcome of the case.     As found by the
South Dakota Supreme Court, there is no reasonable trial strategy for
failing to request the cautionary accomplice testimony instruction and
corroboration instruction.     Freeman, 519 N.W.2d at 617; see Grooms v.
State, 320 N.W.2d 149, 152 (S.D. 1982).    The court observed:    "We cannot
envision an advantage which




     3
      As the dissenting judges observed in Freeman, 519 N.W.2d at
619, failure to give an accomplice testimony and corroboration
instruction is prejudicial error. State v. Douglas, 16 N.W.2d 489
(S.D. 1944).

                                    -4-
could           have   been   gained    by    withholding   a     request    for   th[ese]
instruction[s.]" Freeman, 519 N.W.2d at 617.                    However, the state court
reasoned that there was overwhelming evidence of guilt,4 thereby rendering
counsel's errors harmless.             The record does not support this conclusion.


        Failure to make the requests was highly prejudicial to Freeman to the
extent that the fundamental fairness of the proceeding and the conviction
was undermined.           Had the jury been properly instructed, it may well have
discredited Primeaux's testimony, which was the only direct evidence that
linked Freeman to the theft of the car.               See Grooms, 320 N.W.2d at 152.
Moreover, counsel's failure to make such requests deprived Freeman of a
jury that would give appropriate analysis to the evidence presented.5                  The
trial court was correct in concluding that there existed not only a
reasonable probability that, absent counsel's error, the jury would have
had a reasonable doubt respecting Freeman's guilt, but that Freeman was
denied a fair trial.


Hearsay Evidence


        At       trial,   defense   counsel   introduced    a    police   statement   which
contained a transcript of questions asked to David Primeaux.                 Primeaux was
asked: "Who took the car last night?"             Primeaux responded, "He did!        Ricky
Freeman said he steal car . . . ."




            4
       The court emphasized that the car keys were found in the
defendant's pocket and there was other testimony indicating
Primeaux did not know how to drive the automobile. This evidence
is not overwhelming when considered with the convenience store
clerk's testimony that Primeaux admitted that he stole the
automobile to her and that she thought she saw him open the
driver's side of the automobile to drive away.
        5
     While there is circumstantial evidence linking Freeman to the
crime, whether evidence exists that corroborates an accomplice's
testimony is a question for the jury.      State v. Sondreal, 459
N.W.2d 435, 439 (S.D. 1990).

                                               -5-
Def.'s Ex. A. at 1.     By this point in the trial, a South Dakota State
Trooper had already been allowed to testify that Primeaux said Freeman
stole the car.6   Defense counsel then offered the written statement into
evidence and asked a number of questions about it.


     The state asserts that introduction of this exhibit was a reasonable
trial strategy.   It claims that given Primeaux's limited mental faculties,
defense counsel attempted to attack the credibility of Primeaux's testimony
at trial and statements given to the State Trooper by showing that Primeaux
was incapable of understanding the written statement.   Moreover, the state
contends that even if counsel was deficient in introducing the exhibit,
there was no prejudice.


     We reject the state's argument, and agree with the district court
that defense counsel's offering of the report that contained a hearsay
statement that Freeman stole the car was not a reasonable trial strategy.7
cf. Freeman, 519 N.W.2d at 618 ("[O]ne must




           6
         Defense counsel failed to object to these statements.
Arguing against his state habeas petition, the state contended that
the statements were exceptions to the hearsay rule.       The South
Dakota Supreme Court stated:

     State's arguments merely highlight the problem with
     counsel's failure to object. Whether either statement
     was hearsay requires an analysis of the hearsay rule and
     the exceptions thereto. Defense counsel did not object
     to the statements and consequently the trial court was
     never called upon to rule on the admissibility of the
     statements. Even if the statements were admissible as
     exceptions to the hearsay rule, defense counsel should
     have asked that the jury be instructed that the
     statements were being offered for that limited purpose.

Freeman, 519 N.W.2d at 617.
       7
       When trial counsel offered the report into evidence, the
prosecutor did not object and indicated that he would have
submitted it himself had he thought there would be no objection.
Tr. at 270.

                                    -6-
question the reasonableness of defense counsel's tactical decision.").             By
offering the written statement into evidence, defense counsel presented the
jury with documentary evidence containing a statement that Freeman stole
the automobile.8 Her action in doing so is almost incredible.                  Absent
introduction of this exhibit, the jury could have reached the conclusion
that other than Primeaux's testimony, the only evidence linking Freeman to
the theft of the stolen automobile was the keys found in his pocket.            There
is a reasonable probability that, absent this error, the jury would have
had   reasonable doubt respecting Freeman's guilt.               Defense counsel's
introduction of the exhibit rendered the proceeding unreliable.             Lockhart,
506 U.S. at 369.


Post-Miranda Silence


      During   the   trial,   on   three    occasions,   the   prosecutor    elicited
testimony from the State Trooper and Deputy Sheriff concerning Freeman's
exercise of his constitutional right to remain silent after being given his
Miranda warning.     In addition, the prosecutor himself made reference to
Freeman's right to remain silent, and alluding to Freeman's silence in
closing arguments, stated that while individuals have the right to remain
silent, Primeaux cooperated and did not exercise that right.                  Defense
counsel did not object, nor move for a mistrial.


      The state contends that defense counsel's actions were not deficient,
and further, that Freeman cannot establish prejudice.               Except for an
"isolated" reference to Freeman's post Miranda silence, the state argues
the references and comments in question




      8
      As the district court noted, introduction of the document by
the defense was particularly damaging.      Had it come from the
prosecution, the jury may not have given it much weight, whereas,
in this situation, they would be more inclined to treat it as
indistinguishable to an admission by the defense. Freeman, 911 F.
Supp. at 408.

                                           -7-
were in direct response to defense counsel's legitimate but unsuccessful
trial tactics.9     Additionally, the state asserts that the prosecutor's
reference to Freeman's post-Miranda silence in his closing argument was
proper, because the prosecutor did not intend to obtain an inference of
guilt from Freeman's silence, rather, he made the statement to bolster
Primeaux's credibility.    We disagree.


     A defendant has a constitutional right to remain silent, and under
Griffin v. California, 380 U.S. 609 (1965), a prosecutor is prohibited from
commenting on the accused's post arrest silence. Id. at 615; see United
States v. Harris, 956 F.2d 177, 181 (8th Cir.) ("Reference to the silence
of an accused usually is impermissible, because it is fundamentally unfair
for the government to induce silence through Miranda warnings and then
later use this silence against the accused."), cert. denied, 506 U.S. 827
(1992).     While limited exceptions to this rule may exist, see, e.g.,
Amirault v. Fair, 968 F.2d 1404 (1st Cir.), cert. denied, 506 U.S. 1000
(1992), they are not relevant here.


     In this case, defense counsel's inaction allowed the jury to equate
Freeman's silence with guilt.     See State v. McBride, 296 N.W.2d 551, 555
(S.D. 1980).    There was no reasonable tactical bases not to object to these
comments.      On the contrary, a motion for a mistrial would have been
appropriate and should have been made.     A review of the record shows the
state's argument that the comments and references to Freeman's silence were
a "fair response" to defense counsel's strategy is misplaced.   Two of three
references elicited by the prosecution were made during the prosecution's
case-in-chief on direct examination, thus, could not have been in response
to any defense tactics.    cf. United States v. Tenorio, 69 F.3d 1103, 1107
(11th Cir. 1995) (Edmondson, J,




       9
       For whatever reason, the state did not call petitioner's
trial counsel as a witness in the habeas hearing in federal court.
Any reliance on the trial counsel's strategy for failure to object
is pure speculation.

                                     -8-
concurring) (reaffirming that introduction of post-Miranda silence in
prosecution's case-in-chief is constitutional error).     One of the direct
references by the prosecution was in an erroneous objection during cross
examination.10


     Finally, the state's argument that the prosecutor's reference to
Freeman's post-Miranda silence in his closing argument was meant to bolster
Primeaux's testimony, not draw an adverse inference as to Freeman's guilt
is specious.     In the context of this case, it was impossible to do one
without the other.     The message sent by the prosecutor to the jury was
clear:    Primeaux cooperated with the police by talking with them after his
Miranda warning, therefore he must be telling the truth.    Freeman, on the
other hand, exercised his right to remain silent, therefore he must have
something to hide.   When a prosecutor, on his own initiative, asks the jury
to draw a negative inference from a defendant's silence, Griffin holds that
the privilege against compulsory self-incrimination is violated.     United
States v. Robinson, 485 U.S. 25, 32 (1987).       Defense counsel's actions
clearly prejudiced Freeman.    McBride, 296



     10
      The following exchange occurred when Freeman's counsel cross
examined the Deputy Sheriff who had been involved in Freeman and
Primeaux's arrest:

    [MRS LAPRATH]:  Why didn't you ask Mr. Primeaux if he was
driving that car? He is [sic] talking to you.

     MR. JACOBSEN: Your Honor, I would object. This witness has
testified that he previously gave Mr. Freeman the opportunity to
visit with him pursuant to question number six of the Mirranda
[sic] Warning and that Mr. Freeman refused.

     THE COURT: That's not what she's asking.            She's asking why
they didn't ask Mr. Primeaux, isn't that right?

     MRS. LAPRATH:      Yes.

     MR. JACOBSEN:      I apologize.

     THE COURT:      Overruled, answer the question.

Tr. at 265.

                                     -9-
N.W.2d at 555.   Furthermore, we are not persuaded by the state's argument
that the evidence against Freeman was overwhelming.       The South Dakota
Supreme Court places a great deal of weight on the fact that the defendant
did not take the stand to refute (1) that he was "in" the stolen
automobile, and (2) that the shells found on his person came from the
stolen automobile.   A review of the record, however, shows that the shells
were found on Primeaux.     Tr. at 223.   Second, this evidence is highly
equivocal as to whether Freeman stole the automobile.    It does not become
overwhelmingly   incriminating   merely   because   Freeman   exercised   his
constitutional right to remain silent or to not testify at trial.


     Upon appraisal of several of Freeman's claims, specifically, defense
counsel's introduction into evidence of the police report containing
hearsay statements, failure to request cautionary instructions to which
Freeman was entitled under state law, and failure to object or move for
mistrial based on the prosecution's improper comments regarding Freeman's
post-Miranda silence, we find that Freeman was denied effective assistance
of counsel and satisfied the tests established by Strickland and Lockhart.
Under the circumstances, defense counsel's deficient performance was
clearly prejudicial to the defendant and rendered the proceedings at trial
fundamentally unfair.


     The judgment of the district court is AFFIRMED.


     A true copy.


           Attest:


                  CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                   -10-
