___________ 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 So uth Dakota Supreme Court found that although counsel
was defic ient, Freeman was not deprived of a fair trial. Freeman v
. Leapley , 519 N.W.2d 6 15, 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 g ranted Freeman's petition. We affirm.

On Februa ry 2, 1991, a 1982 Oldsmobile Firenze was unlawfully taken in Bonesteel, South Dakota. Later that morning, Freeman and

### Under state law, Freeman was entitled to an instruction o n 1 

### corroborating evidence and an instruction on accomplice testimony. See S.D. Codified Laws Ann. § 23A-22-8 (1994); S.D. Pattern Jur y Instructions (SDPJI) 1-14-8 (rev. Sept. 1990).

Freeman's habeas petition also contained other claims o f 2 

### ineffe ctive assistance of counsel. Specifically, that defens e counsel failed to move for a directed verdict, failed to sub mit any authority to substantiate a mo tion for change of venue, and failed to object to other hearsay statements.
-2- David Primeaux were arrested for theft of the automobile. The charge s agains t Primeaux were dropped in exchange for his testimony agains t Freeman. At Freeman 's trial, Primeaux testified that Freeman had stolen the car. Freeman's attorney did not request any cautionary instructions 1 concerning the weight to be given to Primeaux's testimony. In addition, defense counsel offered a police report which contained a hearsay statemen t that Freeman stole the automobile and failed to object to the prosecutor's statements that Freeman had exercised his constitutional right to remain silent. The federal district court granted Freeman's petition for a writ

2 of habeas corpus. The state of South Dakota timely appeals.

Discussion
In all criminal prosecutions an accu sed 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 stat e prisoner's claim that counsel's assistance was so defective as to require reversal of a conviction has two components. First, the defendant mus t show that counsel's performance is, in light of all the circumstances , outsid e the range of professionally competent assistance. Second, th e defendant must show a ctual prejudice, i.e., that there existed not only a reasonable probabilit y that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt, but that the proceeding wa s rendered unfair or unreliable. Lockhart v.

### -3-

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

The state initially argues the district court misapplied th e Stricklandanalysis i n each of Freeman's claims of ineffective assistance of counsel. Specifically, because of a single c itation to State v. Beene , 257 N.W.2d 589, 592 (S.D. 1977), the state urges that rather than applying the "r easonable probability" standard, the district court applied a n
erroneous "had some effect" standard and therefore must be reversed. A thorough review of the district court's opinion shows this argument i s without merit. Furthermore, a review of the rec ord as a whole compels the
con clusion that Freeman's attorney's performance was constitutionall y defic ient, and that such deficiency constituted actual prejudice t o 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 th e
seven sat isfied the Strickland test. We need only pass on the mor e egregious claims. Inassessing Freeman's first claim that his attorney's fa ilure to request a cautionary instruction regarding the accomplic e testim ony was deficient and highly prejudicial, the district court di d state, citing Beene , that "[f]ailure to give a cautionary instruction in all probability produced some effect upon the jury verdict." Freeman v. Clas s , 911 F. Supp. 402, 406-07 (D.S.D. 1995). Notwithstanding thi s passing reference, the district court went on to correctly analyze th e claim under the proper standard set forth in Stricklandand Hill , and foun d tha t Freeman's trial counsel was "remiss in not requesting a cautionar y instruction[,]" that such "[f]ailure . . . was highly prejudicial to the petitioner to the extent that the fundamental fairness of the proceeding and the conviction wa s undermined[,]" and that had the jury been properly instructed, there was "a strong probability that the result of the trial would have been diffe rent." Freeman , 911 F. Supp. at 407 (our emphasis).

### As the dissenting judges observed in Freeman , 519 N.W.2d at 3 

### 61 9, failure to give an accomplice testimony and corroboratio n instruction is prejudicial err or. State v. Douglas , 16 N.W.2d 489 (S.D. 1944).
-4- 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 finge rprints. On the contrary,
a convenience store clerk testified that Primeaux came into the store earl y 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 though t she saw Primeaux drive away, and did not see anyone else in the vehicle. Ashort 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 carryi ng 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 Fr eeman. Under South Dakota law, a defendant is entitled to a special cautionary instruction on th e credibility of accomplice testimony. See S.D. Pattern Jury Instruction s (SDPJI) 1-14-8. Furt hermore, South Dakota law provides that a conviction cannot be had upon the testimony of an accomplice unless it is corroborate d by other evidence which tends to connect the def endant with the commission of the offense. S.D. Codified Laws Ann. § 23A-22-8 (1994). 3

The stat e's case hinged on Primeaux's testimony. The weight give n to his testimony was crucial to the outcome of the case. As found by the South D akota Supreme Court, there is no reasonable trial strategy fo r fail ing to request the cautionary accomplice testimony instruction an d corrobo ration 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

### The c ourt emphasized that the car keys were found in th e 4 

### defen dant's pocket and there was other testimony indicatin g Primeaux did not know how to drive the automobile. This evidence is not overwhelming when considered with the convenience stor e cl erk's testimony that Primeaux admitted that he stole th e auto mobile to her and that she thought she saw him open th e driver's side of the automobile to drive away. While there is circumstantial evidence li nking Freeman to the 5 

### cr ime, whether evidence exists that corroborates an accomplice' s testimony is a question for the jury. State v. Sondreal , 45 9 N.W.2d 435, 439 (S.D. 1990).
-5- could have been gained by withholding a request for th[ese ] instruction[s.]" Freeman , 519 N.W.2d at 617. However, the state cour t reasoned that there was overwhelming evidence of guilt, thereby rendering 4 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 funda mental 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 linke d Freeman to the theft of the car. See Grooms , 320 N.W.2d at 152

. Mor eover, counsel's failure to make such requests deprived Freeman of a jury that would give appropriate anal ysis to the evidence presented. The 5 trial cou rt 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 wa s denied a fair trial.
Hearsay Evidence

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

### Defense counsel failed to object to these statements

. 6 

### Arguing against his state habeas petition, the state contend ed that the statements were exceptions to the hearsay rule. The Sout h Dakota Supreme Court stated:
State's arguments merely highlight the problem wit h co unsel's failure to object. Whether either statemen t was hearsay requires an analys is of the hearsay rule and the exceptions thereto. Defense counsel did not object to the statements and consequently the trial court wa s never called upon to rule on the admissibility of th e statem ents. Even if the statements were admissible a s ex ceptions to the hearsay rule, defense counsel shoul d have asked that the jury be instructed that th e statements were being offered for that limited purpose.
Freeman , 519 N.W.2d at 617.

When trial counsel offered the report into evidence, th e 7 

### pro secutor did not object and indicated that he would hav e submitted it himself had he thought there would be no objection

. Tr. at 270. -6- Def.'s Ex. A . at 1. By this point in the trial, a South Dakota Stat e Trooper had already been allowed to testify that Primeaux said Freema n stole the car. Defense counsel then offered the written statement int o 6 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 testimon y at trial and statements given to the State Trooper by showing that Primeau x was incapable of understanding the written state ment. Moreover, the state
con tends that even if counsel was deficient in introducing the exhibit , there was no prejudice.

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

### As the dist rict court noted, introduction of the document by 8 

### the defense was particularly damaging. Had it come from th e prosecution, the jury may not have given it much weight, whereas, in this si tuation, they would be more inclined to treat it a s indistinguishable to an admiss ion by the defense. Freeman , 911 F. Supp. at 408.
-7- question the reasonableness of defense counsel's tactical decision."). By offering the written statement into evidence, defense counsel presented th e jury with documentary evidence containing a statement that Freeman stole the automo bile. Her action in doing so is almost incredible. Absen t 8 introduction of this exhibit, the jury could have reached the conclusion that other than Primeaux's testimony, the only e vidence linking Freeman to the theft of the stolen automobile was the keys found in his pocket. Ther e is a reasonable probability that, absent this error, the jury would have had r easonable doubt respecting Freeman's guilt. Defense counsel' s introduction of the exhibit rendered the proceed ing unreliable. Lockhart , 506 U.S. at 369.

Post-Miranda Silence
During the trial, on three occasions, the prosecutor elicite d testimony from the State Trooper and Deputy Sheriff concerning Freeman's exercise of his constitutional right to remain silent after being given hi s Mir anda warning. In addition, the prosecutor himself made reference t o Freeman's right to remain silent, and alluding to Freeman's silence i n closing arguments, st ated that while individuals have the right to remain silent, Primeaux cooperated and did not exercise that right. Defens e counsel did not object, nor move for a mistrial.

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

### For whatever reason, the state did not call petitioner' s 9 

### trial counsel as a witness in the habeas hearing in federal court. Any reliance on the trial coun sel's strategy for failure to object is pure speculation.
-8- were in direct response to defense counsel's legitimate but unsuccessful trial ta ctics. Additionally, the state asserts that the prosecutor' s 9 refere nce to Freeman's post- Miranda silence in his closing argument wa s proper, because the prosecutor did not intend to obtain an inference o f guilt from Freeman's silence, rather, he made the statement to bolste r Primeaux's credibility. We disagree.

A defend ant has a constitutional right to remain silent, and unde r Griffin v. California , 380 U.S. 609 (1965), a prosecutor is prohibited fro m commenting on the accused's post arrest silence. Id. at 615; see Unite d 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 the n later use this silenc e against the accused."), cert. denied , 506 U.S. 827 (199 2). 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. 100 0 (1992), they are not relevant here.

In this c ase, 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 thes e comments. On the contrary, a motion for a mistrial would have bee n 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 wer e
a "fair response" to defense counsel's strategy is misplaced. Two of thre e references elicited by the prosecution were made during the prosecution's case-in-chief on direct examination, thus, couldnot have been in response to any defense tactic s. cf. United States v. Tenorio , 69 F.3d 1103, 1107 (11th Cir. 1995) (Edmondson, J,

### The following exchange occur red when Freeman's counsel cross 10 

### examined the Deputy Sheriff who had been involved in Freeman an d Primeaux's arrest: [MRS LA PRATH]: Why didn't you ask Mr. Primeaux if he wa s driving that car? He is [sic] talking to you. MR. JACOBSEN: Your Honor, I would object. This witness has tes tified that he previously gave Mr. Freeman the opportunity t o visit with him pursuant to question number six of the Mirrand a [sic] Warning and that Mr. Freeman refused.
THE COUR T: That's not what she's asking. She's asking wh y 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- con curring) (reaffirming that introduction of post- Miranda silence i n 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 t o Freeman's post- Miranda silence in his closing argument was meant to bolste r Primeaux's testimony, not draw an adverse inference as to Freeman's guilt is s pecious. In the context of this case, it was impossible to do on e without the other. The message sent by the prosecutor to the jury wa s clear: Primeaux cooperated with the police by t alking with them after his Miranda warning, ther efore 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 jur y to draw a negative inference from a defendant's silence, Griffinholds tha t the privilege against compulsory self-incrimination is violated. United State s v. Robinson , 485 U.S. 25, 32 (1987). Defense counsel's action s clearly prejudiced Freeman. McBride , 296

### -10-

N.W.2d at 555. Furth ermore, we are not persuaded by the state's argument that th e evidence against Freeman was overwhelming. The South Dakot a Supreme Court places a great deal of weight on t he fact that the defendant did not take the stand to refute (1) that he was "in" the stole n aut omobile, and (2) that the shells found on his person came from th e stolen automobile. A review of the record, howe ver, shows that the shells
were foun d on Primeaux. Tr. at 223. Second, this evidence is highl y equivocal as to wheth er Freeman stole the automobile. It does not become
ove rwhelmingly incriminating merely because Freeman exercised hi s constitutional right to remain silent or to not testify at trial.
Upon appraisal of several of Freeman 's claims, specifically, defense
co unsel's introduction into evidence of the police report containin g hearsay statements, failure to request cautionary instructions to whic h Freeman w as entitled under state law, and failure to object or move fo r mistrial based on the prosecution's improper comments regarding Freeman's post- Miranda silence, we find that Freeman was d enied effective assistance of counsel and satisfied the tests established by Strickland and Lockhart

. Un der the circumstances, defense counsel's deficient performance wa s clearly prejudicial to the defendant and rendere d 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.