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No. 95-4196

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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. *

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 Submitted: July 11, 1996

 Filed: August 30, 1996

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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
 Under state law, Freeman was entitled to an instruction on

1

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).

 Freeman's habeas petition also contained other claims of

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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. 

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

619, failure to give an accomplice testimony and corroboration

instruction is prejudicial error. State v. Douglas, 16 N.W.2d 489

(S.D. 1944).

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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). 

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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
 The court emphasized that the car keys were found in the

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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.

 While there is circumstantial evidence linking Freeman to the 5

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).

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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, 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 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. The 5

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 . . . ." 
 Defense counsel failed to object to these statements.

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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.

 When trial counsel offered the report into evidence, the

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prosecutor did not object and indicated that he would have

submitted it himself had he thought there would be no objection.

Tr. at 270.

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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. Defense counsel then offered the written statement into

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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
 As the district court noted, introduction of the document by 8

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.

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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. Her action in doing so is almost incredible. Absent

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

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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.

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were in direct response to defense counsel's legitimate but unsuccessful

trial tactics. Additionally, the state asserts that the prosecutor's

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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,
 The following exchange occurred when Freeman's counsel cross 10

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.

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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. 

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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
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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.