#27445-a-DG

2016 S.D. 41

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                    ****
STATE OF SOUTH DAKOTA,                       Plaintiff and Appellee,

      v.

STEVEN PURSLEY,                              Defendant and Appellant.


                                    ****

                   APPEAL FROM THE CIRCUIT COURT OF
                     THE SEVENTH JUDICIAL CIRCUIT
                   PENNINGTON COUNTY, SOUTH DAKOTA

                                    ****

                      THE HONORABLE JEFF W. DAVIS
                                Judge

                                    ****

MARTY J. JACKLEY
Attorney General

KELLY MARNETTE
Assistant Attorney General
Pierre, South Dakota                         Attorneys for plaintiff
                                             and appellee.


ERIC D. WHITCHER of
Pennington County
 Public Defender’s Office
Rapid City, South Dakota                     Attorneys for defendant
                                             and appellant.

                                    ****
                                             CONSIDERED ON BRIEFS
                                             ON NOVEMBER 30, 2015

                                             OPINION FILED 05/11/16
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GILBERTSON, Chief Justice

[¶1.]        Steven Pursley appeals his jury conviction for simple assault.

According to Pursley, prosecutor misconduct occurred during the State’s closing

argument and its cross-examination of Pursley, depriving him of his rights to an

attorney and due process. We affirm.

                          Facts and Procedural History

[¶2.]        On Friday, November 2, 2012, Jeffrey Patterson and Caleb Fousek

visited the Belle Star Gentleman’s Club in Box Elder, South Dakota, where they

were later joined by their friend James Thompson. Shortly after Thompson arrived,

he and Patterson decided to step outside to smoke cigarettes. Crystal Sandoval,

who is Defendant’s sister, was outside. Patterson began flirting with Sandoval but

ceased after an exchange of words with some third person.

[¶3.]        After Patterson stopped talking to Sandoval, Pursley exited the Belle

Star. Pursley did not speak to Patterson; instead, Pursley used his fist to strike

Patterson on the left side of his head. Patterson fell to the ground unconscious, and

Pursley walked back into the bar. Patterson suffered a bruise on the left side of his

brain and was not released from the hospital until the following Monday. Following

the attack, Patterson has suffered from headaches and short-term memory loss.

[¶4.]        Fousek exited the bar in search of his friends and broke up a fight

between Sandoval and another woman. Pursley again exited the bar, and

Thompson identified Pursley to Fousek as the individual who knocked out

Patterson. Fousek attacked Pursley, who responded by striking Fousek with his




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fist, knocking him to the ground. Pursley struck Fousek a second time before being

restrained by bystanders. Pursley eventually went back into the Belle Star.

[¶5.]        The Box Elder Police Department was notified of the assault around

2:00 a.m. on November 3, 2012. Although an officer spoke with Fousek and several

other people at the Belle Star, nobody positively identified Pursley as the attacker.

No arrest was made at that time, but the officer requested surveillance footage from

outside the bar.

[¶6.]        Patterson and Thompson returned to the Belle Star on November 30,

2012. As they were parking, Thompson saw Pursley and recognized him as the

individual who had attacked Patterson earlier in the month. Thompson called the

police. Box Elder Police Officer Joshua Campbell and another officer responded to

the Belle Star. After an officer spoke with Patterson and Thompson, Officer

Campbell accompanied Thompson inside the bar. Thompson identified Pursley, and

Officer Campbell asked Pursley to exit the bar. After they exited the bar, Officer

Campbell asked Pursley about the incident that occurred at the Belle Star in the

morning hours of November 3. Pursley denied any involvement. Even so, Officer

Campbell arrested Pursley for the November 3 incident.

[¶7.]        On December 12, 2012, Pursley was charged with assaulting both

Patterson and Fousek, and a jury trial commenced on October 22, 2013. At trial,

Pursley claimed his use of force against Fousek was justified as self-defense.

Pursley also claimed his use of force against Patterson was justified as defense of

others because according to Pursley, Patterson was sexually harassing his sister.

During cross-examination, the prosecutor and Pursley had the following discussion:


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         [Prosecutor]: Okay. November 30, 2012, you told Officer
         Campbell, “I was there. I wasn’t involved?”
         ....
         [Pursley]: Yes, ma’am. I did say that.
         [Prosecutor]: You get an attorney and today here we are 353
         days later—
         [Pursley]: Yes, ma’am.
         [Prosecutor]: —and you are saying you did not do anything
         wrong?
         [Pursley]: No, I did not.
         [Defense Counsel]: Objection, argumentative.
         [The Court]: Overruled. This is proper cross.
         [Prosecutor]: Are we here because you weren’t involved or are
         we here because you were just defending your sister’s glory at a
         strip joint?
         [Pursley]: I was defending my sister.
         [Defense Counsel]: Objection. Again, argumentative.
         [The Court]: Overruled. It’s cross-examination.
         [Pursley]: I was defending my sister from some guy she didn’t
         even know grabbing her boobs and sexually harassing her.
         [Prosecutor]: Okay. Well, I guess the jury will be—
         [Pursley]: —with three people around him.
         ....
         [Prosecutor]: I’m having trouble really understanding what
         has happened because you’ve told two officers you weren’t
         involved.
         [Pursley]: Yeah.
         [Prosecutor]: Now we are here today hearing a completely
         different story?
         [Pursley]: Yeah.
         [Prosecutor]: Okay. And this is after you’ve had an attorney
         and consulted with them [sic]?
         [Pursley]: Yes, ma’am.
         [Prosecutor]: Okay.
         [Defense Counsel]: Objection. Asked and answered.
         [The Court]: Overruled.
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During her closing argument, while recounting the above sequence of events, the

prosecutor said: “He then is arrested the 30th and charged with simple assault.

Consults with his attorney and then bam we have this defense of convenience . . . .”

[¶8.]         The jury convicted Pursley of assaulting Patterson but acquitted him

of assaulting Fousek. The circuit court sentenced Pursley to 360 days in the

Pennington County Jail but suspended execution of the sentence. Pursley appeals,

raising one issue: Whether the prosecutor’s reference to Pursley’s attorney in cross-

examination and closing argument violated Pursley’s Sixth Amendment right to

counsel and deprived him of a fair trial.

                                Analysis and Decision

[¶9.]         Pursley contends he is entitled to a new trial for two reasons. First,

Pursley argues the prosecutor’s comments violated his Sixth Amendment right to

counsel. Second, Pursley argues the comments improperly attacked—without a

good-faith basis for doing so—the credibility of his trial attorney by implying

Pursley’s attorney manufactured Pursley’s affirmative defenses. Because Pursley

argues that these comments prejudiced him, he concludes that he was denied a fair

trial. The State argues that no misconduct occurred and that even if it did, Pursley

was not prejudiced. Because harmless error analysis disposes of both arguments,

we address it first.

[¶10.]        When misconduct occurs, “we will reverse the conviction only if the

misconduct has prejudiced the party as to deny him or her a fair trial.” State v.

Smith, 1999 S.D. 83, ¶ 44, 599 N.W.2d 344, 354. We must disregard “[a]ny error,

defect, irregularity, or variance which does not affect substantial rights . . . .”


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SDCL 23A-44-14 (Rule 52(a)). “Even an error involving the denial of a

constitutional right can be harmless . . . .” State v. Heumiller, 317 N.W.2d 126, 130

(S.D. 1982); accord Chapman v. California, 386 U.S. 18, 23-24, 87 S. Ct. 824, 827-

28, 17 L. Ed. 2d 705 (1967).* “The question is whether there is a reasonable

possibility that the evidence complained of might have contributed to the

conviction.” Chapman, 386 U.S. at 23, 87 S. Ct. at 827 (quoting Fahy v.

Connecticut, 375 U.S. 85, 86-87, 84 S. Ct. 229, 230, 11 L. Ed. 2d 171 (1963)). Thus,

“before a federal constitutional error can be held harmless, the court must be able to

declare a belief that it was harmless beyond a reasonable doubt.” Id. at 24, 87 S. Ct.

at 828.

[¶11.]         Pursley asserts that “the effect of impugning [his] affirmative defense

was particularly harmful due to the nature of a self-defense theory. [He] admitted

as part of the self-defense that he did harm the alleged victims.” However, it is not

reasonably possible that the prosecutor’s objected-to comments influenced the jury.

First and foremost, Pursley’s trial testimony undermined his own credibility by

establishing that he either lied to police officers when he claimed he was not

involved in the November 3 incident or he lied on the witness stand when he



*        Automatic reversal is required, and harmless-error analysis does not apply,
         when “there has been ‘(1) a deprivation of the right to counsel; (2) a biased
         judge; (3) an unlawful exclusion of grand jurors of the defendant’s race; (4) a
         deprivation of the right of self-representation at trial; (5) a deprivation of the
         right to a public trial; and (6) an erroneous reasonable doubt standard.’”
         State v. Hayes, 2014 S.D. 72, ¶ 17, 855 N.W.2d 668, 674 (emphasis omitted)
         (quoting Guthmiller v. Weber, 2011 S.D. 62, ¶ 16, 804 N.W.2d 400, 406). “[I]f
         the defendant had counsel and was tried by an impartial adjudicator, there is
         a strong presumption that any other errors that may have occurred are
         subject to harmless-error analysis.” Rose v. Clark, 478 U.S. 570, 579,
         106 S. Ct. 3101, 3106, 92 L. Ed. 2d 460 (1986).
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claimed he acted in self-defense. The State also introduced evidence that Pursley

has a history of speaking falsely. During cross-examination, Pursley acknowledged

that on November 19, 2009, he pleaded guilty to the crime of false reporting.

Furthermore, the fact that the jury acquitted Pursley on the charge of assaulting

Fousek further supports the conclusion that the jury was not influenced by the

prosecutor’s references to defense counsel. “In all probability it is very unlikely the

prosecutor’s . . . statements altered the jury’s verdict.” Smith, 1999 S.D. 83, ¶ 53,

599 N.W.2d at 355. We believe the misconduct was harmless beyond a reasonable

doubt; therefore, Pursley is not entitled to a new trial.

[¶12.]       In light of the foregoing, we need not and do not determine whether

the prosecutor’s comments violated Pursley’s Sixth Amendment right to counsel.

Even so, we in no way condone the prosecutor’s unfounded insinuation that defense

counsel was complicit in manufacturing Pursley’s false testimony. “The prosecutor

has an overriding obligation, which is shared with the court, to see that the

defendant receives a fair trial. . . . The prosecutor must refrain from injecting

unfounded or prejudicial innuendo into the proceedings, and must not appeal to the

prejudices of the jury.” State v. Blaine, 427 N.W.2d 113, 115 (S.D. 1988) (citations

omitted). As the United States Supreme Court has explained:

             The [prosecutor] is the representative not of an ordinary party to
             a controversy, but of a sovereignty whose obligation to govern
             impartially is as compelling as its obligation to govern at all;
             and whose interest, therefore, in a criminal prosecution is not
             that it shall win a case, but that justice shall be done. As such,
             he is in a peculiar and very definite sense the servant of the law,
             the twofold aim of which is that guilt shall not escape or
             innocence suffer. He may prosecute with earnestness and
             vigor—indeed, he should do so. But, while he may strike hard
             blows, he is not at liberty to strike foul ones. It is as much his

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             duty to refrain from improper methods calculated to produce a
             wrongful conviction as it is to use every legitimate means to
             bring about a just one.

Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314 (1935).

[¶13.]       During final summation, the prosecutor argued for a guilty verdict,

pointing out that after Pursley was arrested and charged, he “consult[ed] with his

attorney and then bam we have this defense of convenience[.]” The prosecutor also

made repeated, similar inferences during her cross-examination of Pursley. After

attempting to impeach Pursley for changing his story, she then asked a series of

rhetorical questions designed to make statements rather than elicit answers. She

said: “So after you’ve had an attorney and consulted with them [sic], now you come

up with this story about your sister?” Over defense counsel’s unsustained

objections, the prosecutor again stated: “You get an attorney and today here we are

353 days later—and you’re saying you did not do anything wrong?” Finally, after

pointing out Pursley’s conflicting stories, the prosecutor stated: “And this is after

you’ve had an attorney and consulted with them [sic]?” Considered in their

rhetorical context, these questions improperly suggested to the jury that Pursley

and his defense counsel concocted a false defense to avoid a guilty verdict.

[¶14.]       There is no question that a prosecutor may suggest that a defendant’s

testimony is not credible by drawing the jury’s attention to the defendant’s

inconsistent statements. “[W]hen a defendant takes the stand, ‘his credibility may

be impeached and his testimony assailed like that of any other witness.’” Portuondo

v. Agard, 529 U.S. 61, 69, 120 S. Ct. 1119, 1125, 146 L. Ed. 2d 47 (2000) (quoting

Brown v. United States, 356 U.S. 148, 154, 78 S. Ct. 622, 626, 2 L. Ed. 2d 589

(1958)). In this case, however, the prosecutor’s comments went beyond legitimate
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impeachment. This conduct was improper. Regardless, as explained above, a new

trial is not warranted because Pursley was not prejudiced.

[¶15.]      We affirm.

[¶16.]      ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.




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