Justices: Convicted man was denied effective counsel

PIERRE, S.D. (KELO) — A man found guilty of aggravated assault against a law enforcement officer was denied effective assistance of legal counsel, and his conviction and sentence must be vacated, according to the South Dakota Supreme Court.

The state’s high court on Thursday publicly released a 3-2 decision in favor of Christopher Schocker.

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Robert Doody of Sisseton served as Schocker’s court-appointed attorney in the criminal case. In November 2019, a Roberts County jury convicted Schocker of threatening a state conservation officer by walking toward him with a knife during a deer-poaching investigation the previous November. Schocker was sentenced to 25 years in the state penitentiary, with 15 years suspended and credit for time served.

Doody filed an appeal to the Supreme Court but then withdrew as Schocker’s lawyer. Schocker received a second court-appointed attorney, David Geyer of Sisseton. The Supreme Court in 2021 subsequently upheld Schocker’s conviction in an unpublished opinion.

Schocker, with the assistance of Geyer, then applied for a writ of habeas corpus, claiming that Doody hadn’t effectively represented Schocker and therefore the conviction was unlawful. Circuit Judge Richard Sommers agreed, ordering that the conviction and sentence be vacated. The state Office of Attorney General then appealed Judge Sommers’ order to the Supreme Court.

Justice Scott Myren wrote the high court’s majority opinion, after it was reassigned to him. Justice Myren said the U.S. Supreme Court in Strickland v. Washington set a two-prong test regarding claims of ineffective counsel: The defendant must show that the counsel’s performance was deficient, and then must show that the deficient performance prejudiced the defense.

All five justices in Schocker’s case agreed that Doody was deficient because he failed to interview two of the other witnesses, Kevin Morsching and Jeffry Hopkins, and failed to have Hopkins testify. At the habeas corpus hearing, Doody told the circuit judge that he had determined the officer’s video recording at the scene was sufficient and therefore they didn’t need to be interviewed.

“Although the entire incident was recorded, it was unreasonable for Doody to forgo interviewing the few witnesses present at the scene based solely on his assumption that additional interviews with the witnesses would produce nothing beyond what was in the video,” Justice Myren wrote. “Doody’s testimony that his review of the video provided him with a complete understanding of what occurred was shown to be incorrect because there were discussions that were not picked up by Officer (Blake) Swanson’s body camera.”

As to whether Doody’s deficient representation prejudiced the defense of Schocker, Justice Myren said the only disputed issue was what Schocker was attempting to do when he picked up the knife and began walking toward Officer Swanson.

Hopkins testified at the habeas corpus proceeding that Schocker had picked up the knife because he was going to cut the license tag off the deer. Justice Myren said that Hopkins’s statement could have affected the jury.

“This additional testimony would certainly provide additional context about Schocker’s conduct for the jury to consider,” Justice Myren wrote. “To establish attempted aggravated assault, a general intent offense, the State needed to prove that Schocker intentionally performed a physical act to put Officer Swanson in fear of imminent serious bodily harm. However, this additional testimony would support Schocker’s claim that he was engaged in the act of attempting to cut the tag off the deer rather than brandishing a knife at Officer Swanson. This distinction is relevant to the jury’s determination as to whether the acts performed by Schocker were sufficient to put a reasonable officer in fear of imminent serious bodily harm.”

Justice Myren concluded, “Hopkins’s testimony was different from any other evidence presented at trial and went directly to the only disputed issue on the charge of aggravated assault. Under these circumstances, there is a reasonable probability that, but for Doody’s deficient performance, the result of the proceeding would have been different.”

Chief Justice Steven Jensen and Justice Patricia DeVaney agreed with him. Justice Janine Kern and Justice Mark Salter dissented. Justice Kern wrote the dissent, saying that she was “unable toconclude that, but for this error, there is a ‘reasonable probability’ that Schocker would not have been convicted.”

Justice Kern stated that Hopkins’s testimony was similar to testimony given by Schocker’s mother, Doris, and Schocker’s defense that he picked up the knife to cut off the tag was “front and center” during the criminal trial.

“Additionally,” Justice Kern wrote, “Hopkins’s proposed testimony was subject to impeachment, as it contained several discrepancies when compared with other evidence offered at trial. For example, the body camera video shows that Officer Swanson was roughly one vehicle length away when Schocker began approaching him, not three car lengths away. Further, Hopkins testified that Officer Swanson pulled out his gun. According to Officer Swanson, he reached for his gun, but he never actually took the gun out of its holster. And finally, Hopkins’s testimony that when Officer Swanson told Schocker to stop walking toward him, Schocker threw the knife down and threw his hands up in the air is contradicted by the video played at trial.”

Justice Kern continued, “The video shows that Schocker stopped moving toward Officer Swanson, turned around, set the knife down on the tailgate, and started moving to the other side of Doris’s pickup. Hopkins’s description of the events was inaccurate and would have been subject to cross-examination and impeachment. The failure of Schocker’s trial counsel to introduce testimony that would have been impeached was not prejudicial to Schocker’s case.

“Moreover, the jury watched the video recording of the confrontation during the trial and again during their deliberations. The existence and importance of the video recording of the encounter was mentioned only in passing by the habeas court. The jury was in the best position to determine the nature of the confrontation,” Justice Kern concluded. “Schocker has failed to show that there is a reasonable probability that but for the absence of Hopkins’s testimony, which was cumulative and replete with inconsistencies, he would have been acquitted.”