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Courtesy of The State Bar of South Dakota and South Dakota Continuing Legal Education, Inc. 222 East Capitol Ave. Pierre, SD 57501 RICHARD NORMAN ST. CLOUD, Applicant and Appellant, v. JOE CLASS, Warden, South Dakota State Penitentiary, Appellee. South Dakota Supreme Court Appeal From The Sixth Judicial Circuit, Lyman County, SD Hon. Max A. Gors, Judge #19288 -- Affirmed Timothy M. Gebhart, Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD Attorneys for applicant and appellant. Mark Barnett, Attorney General John P. Guhin, Assistant Attorney General, Pierre, SD Attorneys for appellee. Argued Mar 13, 1996; Opinion Filed May 29, 1996 SABERS, Justice. [¶1] St. Cloud appeals the denial of his application for writ of habeas corpus. He claims the jury panel did not represent a fair cross section of the community and that his counsel was ineffective. We affirm. FACTS [¶2] St. Cloud is a Native American whose blood quantum is 15/32 Yankton Sioux and 7/16 Ponca. He is 29/32 Native American.{fn1} As a child, he was enrolled in the Ponca Tribe of Nebraska. The United States Congress terminated the Ponca Tribe of Nebraska in 1962, but restored federal recognition of the tribe in 1990. St. Cloud was married to an enrolled member of the Lower Brule Sioux Tribe and lived on the Lower Brule Reservation from 1973 to 1986. [¶3] In April 1986, St. Cloud was charged with the kidnapping and rape of a non-Indian woman on the Lower Brule Reservation. St. Cloud pleaded guilty in fedefral district court to involuntary sodomy. After he was sentenced, St. Cloud filed a motion for dismissal in federal district court, which was granted. The federal district court found that it lacked jurisdiction to convict St. Cloud because he was not an "Indian" for the purpose of federal criminal jurisdiction due to the termination of his tribe. St. Cloud v. United States, 702 FSupp 1456, 1466 (DSD 1988) (St. Cloud I). [¶4] St. Cloud was tried in state court in Lyman County, where the Lower Brule Sioux Reservation is located, on charges of first-degree rape and kidnapping. In December 1989, a jury found him guilty on both
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counts. He was sentenced to the South Dakota State Penitentiary for twenty-five years for rape and sixty years for kidnapping, with the sentences to run concurrently. His convictions were affirmed on direct appeal to the South Dakota Supreme Court. State v. St. Cloud, 465 NW2d 177, 182 (SD 1991) (St. Cloud II ). [¶5] St. Cloud applied for a writ of habeas corpus. One of the issues he raised was a violation of his constitutional right to a jury comprised of a fair cross section of the community, because Native Americans were underrepresented on the jury panel. The habeas court denied his application, finding St. Cloud had no standing to challenge the underrepresentation because he was "not an Indian." St. Cloud appealed to this court. We noted the federal district court's decision that he was not an Indian for the purpose of federal prosecution, but held that he was racially an Indian. We stated that St. Cloud did not need to be a member of the group excluded from the jury pool in order to challenge underrepresentation. We remanded the case so the habeas court could consider the merits of the claim. St. Cloud v. Leapley, 521 NW2d 118, 125 (SD 1994) (St. Cloud III). The habeas court was allowed to "take any necessary additional evidence and enter specific findings of fact and conclusions of law." Id. [¶6] On remand, neither the State nor St. Cloud presented additional evidence to the habeas court. The habeas court sent a letter to all persons on the jury panel for St. Cloud's trial, which asked the recipients to identify whether they were full-blood Indian, part-blood Indian or non-Indian.{fn2} [¶7] From the 1980 census figures, the habeas court determined that "[t]he percentage of jury-age Indians in Lyman County was 17.553% of the total jury-age population of Lyman County."{fn3} The habeas court considered the responses to its letter as well as evidence admitted at the first habeas hearing and determined that 11% of the 1989 Lyman County jury panel members were Indian.{fn4} The habeas court therefore determined that Indians were underrepresented by 6.5% (17.5% less 11%).{fn5} The habeas court determined that St. Cloud's right to a fair cross section of the community was not violated. St. Cloud appeals. [¶8] 1. Whether St. Cloud's constitutional right to a jury representing a fair cross section of the community was violated by the jury panel? [¶9] The Sixth Amendment to the United States Constitution guarantees that a petit jury will be selected from a panel of names representing a fair cross section of the community. Taylor v. Louisiana, 419 US 522, 528, 95 SCt 692, 697, 42 LEd2d 690, 697 (1975); State v. Hall, 272 NW2d 308, 310 (SD 1978). SDCL 1613-10.1 provides in part: It is the policy of the State of South Dakota that all litigants in the courts of this state entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair crosssection of the community in the municipality, district or county where the court convenes. ... [¶10] The defendant has the burden of making a prima facie showing that the cross-section requirement has been violated. State v. Lohnes, 432 NW2d 77, 83 (SD 1988) (citing Duren v. Missouri, 439 US 357, 99 SCt 664, 58 LEd2d 579 (1979); Taylor, 419 US 522, 95 SCt 692, 42 LEd2d 690). To establish a prima facie challenge, the defendant must show that: (1) the group excluded is a "distinct" group in the community; (2) the representation of this group in the jury pools is not fair and reasonable in relation to the number of such persons in the community; (3) this underrepresentation is due to the systematic exclusion of the group from the juryselection process. Lohnes, 432 NW2d at 83-84 (citing Duren, 439 US 357, 99 SCt 664, 58 LEd2d 579; Turner v. Fouche, 396 US 346, 90 SCt 532, 24 LEd2d 567 (1970)). [¶11] St. Cloud alleges and the State does not dispute that Native Americans are a "distinct" group in the

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community. United States v. Black Bear, 878 F2d 213, 214 (8thCir 1989). This satisfies the first Duren factor. [¶12] St. Cloud claims the habeas court erred in four ways when it applied the second Duren factor.{fn6} [¶13] First, St. Cloud disputes the habeas court's decision that a jury panel is comprised of a fair cross section of the community if an identifiable group is not underrepresented by more than 15%. Hall, 272 NW2d at 311 n1, cited in St. Cloud III, 521 NW2d at 125. St. Cloud claims the Eighth Circuit indicated that an absolute disparity of 10% is the threshold for finding underrepresentation. United States v. Clifford, 640 F2d 150, 155 (8thCir 1981).{fn7} In citing Hall in St. Cloud III, we noted "'[t]rial judges may avoid these challenges by supplementing any jury panel where an identifiable group is underrepresented by fifteen percent or more.'" St. Cloud III, 521 NW2d at 125 (quoting Hall, 272 NW2d at 311 n1). [¶14] Second, the habeas court sent letters to the members of the 1989 jury panel. Four members of the panel responded that they were Indian or part-blood Indian.{fn8} The responses were admitted as evidence. We review a trial court's decision to admit evidence under the abuse of discretion standard. State v. White, 538 NW2d 237, 242 (SD 1995). St. Cloud objects to the letters as inadmissible hearsay. The State claims the responses were admissible as part of a survey or under South Dakota rules of evidence.{fn9} [¶15] The statements are offered as evidence of a material fact, SDCL 19-16-28(1), that the declarant was or was not Native American. The statements are "more probative on the point for which [they are] offered than any other evidence which the proponent can procure through reasonable efforts." While the habeas court could have called each juror to testify at the habeas hearing, such activity seems excessive when it was possible to contact jurors by mail.{fn10} The "interests of justice will be served by the admission of the statement into evidence." SDCL 19-16-28(3). The interests of justice in this case demand that information regarding the number of Native Americans in the jury venire be placed before the habeas court. Finally, the statements have "equivalent circumstantial guarantees of trustworthiness" with, for example, "[s]tatements of fact concerning personal or family history" admissible under SDCL 19-16-17. Presumably, each juror signed the statement, and it would have been possible to contact each juror personally to verify the accuracy of the information. [¶16] St. Cloud claims the habeas court did not properly enter findings of fact and conclusions of law about the reliability of the statements. See Matter of R.S.S., 474 NW2d 743, 750 (SD 1991). This court in R.S.S. cited State v. Luna, 378 NW2d 229 (SD 1985), for the proposition that the trial court should make a preliminary determination concerning the reliability of hearsay evidence. Luna discussed the defendant's right to confront witnesses against him and stated: "'The focus of the court's concern is then to insure that there are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant, ... and to afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement.'" Luna, 378 NW2d at 238 (quoting State v. McCafferty, 356 NW2d 159, 163 (SD 1984) (quoting Ohio v. Roberts, 448 US 56, 65-66, 100 SCt 2531, 2539, 65 LEd2d 597, 607-08 (1980))). There is no such concern here. The statements, while possibly harmful to the result of St. Cloud's appeal, are not directly adverse to him in a way that necessitates confrontation of the declarant. No person is testifying against St. Cloud. [¶17] Third, St. Cloud claims the habeas court erred in limiting the "community" to persons eligible for jury duty.{fn11} The habeas court used the 1980 census to determine that 23.369% of the total population of Lyman County was Native American. At the time of St. Cloud's trial only registered voters were eligible for jury duty, so the habeas court used the census figures to determine that 17.553% of the jury-eligible (over eighteen years of age) population in Lyman County was Native American. St. Cloud claims failure to use the total Native American population "skewed the results." [¶18] St. Cloud cites two sources for his position that the total Native American population should be
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used. First, the United States Supreme Court stated in Duren, 439 US at 365 n23, 99 SCt at 669 n23, 58 LEd2d at 587 n23, that the fair cross-section requirement "involves a comparison of the makeup of jury venires or other sources from which jurors are drawn with the makeup of the community, not of voter registration lists." However, the petitioner in Duren utilized census figures, which included only persons twenty-one years of age and older. Id. Second, the Eighth Circuit in Black Bear, 878 F2d at 215, stated: "To determine if Indians are unfairly excluded from juries, we compare [the percentage of Indians in the total population of the counties] to the percentage of Indians on the master jury list." [¶19] The State cites Davis v. Warden, Joliet Correctional Institution at Stateville, 867 F2d 1003, 1014 (7thCir 1989), where the Seventh Circuit stated: The census figures arguably are overinclusive because they include children and other persons ineligible for jury service. The majority of jury discrimination cases that we found compare the adult voting population with the jury lists drawn ... The overinclusiveness of defendant's statistic calls into question the weight a court should give to this evidence of unfair and unreasonable representation on the venire. (Citations omitted) (emphasis added). However, the Seventh Circuit continued: This is not to say, however, that defendant has failed to prove that blacks were underrepresented on the venire. The Supreme Court, using raw census statistics that included the underaged and unqualified, held that a 23% disparity in the general population and the number of blacks on a grand jury showed unconstitutional discrimination against blacks [in Turner, 396 US at 360, 90 SCt at 540, 24 LEd2d at 579]. Id. at 1014 (citations omitted). However, St. Cloud's argument fails on this point because the habeas court also considered the underrepresentation based on the total population of Lyman County. According to the 1980 census, the total population was 3864, of which 903 were Native American. The habeas court found the percentage of Native Americans was 23.5%. The habeas court then subtracted 11%, to reach an absolute disparity of 12.5%, which is less than the 15% under-representation at which the jury panel should be supplemented. [¶20] Fourth, St. Cloud claims the habeas court erred by using data from the 1980 census, rather than the 1990 census which was taken a few months after St. Cloud's trial. He claims the older data "significantly distorted" the characteristics of the population because 28.9% of the total population of Lyman County was Native American in the 1990 census, while only 23.36% of the total population was Native American in the 1980 census. The habeas court determined the 1980 census figures were more appropriate because "the 1990 census was not taken and therefore not available to the trial court when the jury was selected in this case in December of 1989 when St. Cloud's trial was held." We agree that the determination of underrepresentation should rest on information available to the trial court at the time the jury was selected when, as here, the jury panel was not challenged until after the trial. The habeas court did not err in using data from the 1980 census. [¶21] Therefore, St. Cloud has failed to meet the second Duren factor in that he failed to show the representation of this group in the jury pools was unfair or unreasonable in relation to the number of such persons in the community. [¶22] Although it is not necessary to reach the third Duren factor in this case, we do so for the benefit of the bench and the bar. [¶23] In State v. Rough Surface, 440 NW2d 746 (SD 1989), while acknowledging Hall's 15% rule, we upheld the method of selection of the jury panel as racially neutral. We cited with approval the observation of the Eighth Circuit in Clifford, 640 F2d at 156, that: "[T]here has been no showing that juries are not selected from a fair cross section of the
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community or that there has been exclusion of jurors based on any basis other than failure to register to vote ... . The mere fact that one identifiable group of individuals votes in a lower proportion than the rest of the population does not make the jury selection system illegal or unconstitutional." Rough Surface, 440 NW2d at 749 (quoting Clifford, 640 F2d at 156). It has been suggested that Native Americans may opt for registering and voting in tribal elections rather than registering to vote in state elections from which the voter lists have been traditionally drawn. Cf. Buckanaga v. Sisseton Indep. School Dist., 804 F2d 469, 476 (8thCir 1986). [¶24] In United States v. Garcia, 991 F2d 489 (8thCir 1993), the court held that it is appropriate to address the third part of the Duren test, that being whether there was a "systematic exclusion," prior to any analysis of statistical data. The court concluded that, in order to prove systematic exclusion, the defendant must show that the exclusion is "inherent in the particular jury-selection process utilized."{fn12} Garcia, 991 F2d at 491. The Eighth Circuit held that Garcia failed to show that the voter registration qualifications, which were the source of the jury pool, and the administration of the selection of the jury pool, was "administered in a discriminatory manner." Id. [¶25] Garcia was followed in United States v. Warren, 16 F3d 247 (8thCir 1994). The court held that despite the defendant's statistical data which supposedly showed underrepresentation of African-Americans in the venire pool, he failed to offer evidence of the "systematic exclusion" of African-Americans in the jury-selection process. The court rejected the argument that "numbers alone are sufficient proof of systematic exclusion." Warren, 16 F3d at 252. The Eighth Circuit considered Minnesota's jury-selection process and stated: [Defendant] has failed to offer any other evidence of systematic exclusion. For example, he has failed to point to a defect in the process itself that serves to exclude African-Americans. Nor has [defendant] alleged that the voter registration, driver's license, or state identification requirements impose any discriminatory qualifications on applicants. Nor has [defendant] shown that the administration of the juror selection plan is discriminatory. Consequently, we find no Sixth Amendment violation. Warren, 16 F3d at 252 (citing Garcia, 991 F2d at 492, which examined Iowa's jury-selection process). The court concluded that Warren failed to show any discriminatory qualifications to become eligible for jury service or that the administration of the juror selection plan was discriminatory. [¶26] There is nothing novel about the Garcia-Warren analysis. This Court basically adopted the same approach in State v. Plenty Horse, 85 SD 401, 184 NW2d 654 (1971), a case that was decided on the basis of an equal protection challenge. We held that near total exclusion of Native Americans from the jury lists, together with the attitude of local officials charged with administering the selection process, resulted in a violation of the rule that one cannot intentionally exclude members of a race from jury service on the basis of race or color. [¶27] While statistical data certainly will have some relevance depending on the other facts of the case{fn13} it should not be the beginning and the end of the analysis to the exclusion of everything else. It cannot be assumed "that all citizens are fungible for purposes of determining whether members of a particular class have been lawfully excluded." City of Richmond v. J. A. Croson Co., 488 US 469, 501, 109 SCt 706, 726, 102 LEd 2d 854, 887 (1989) (citing Mayor v. Educational Equality League, 415 US 605, 620, 94 SCt 1323, 1333, 39 LEd2d 630 (1974)). If statistical evidence of disparity alone was adequate to establish a violation of the cross-section guarantee, the third prong of the Duren test would be surplusage. People v. Bell, 778 P2d 129, 143 (Cal 1989). Under the Garcia-Warren discrimination test, the trial court determines if discrimination exists. Once the source of discrimination has been identified, it can be removed and the panel properly supplemented. [¶28] For all of these reasons, the defendant fails in his burden to show a "systematic exclusion." Duren,
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439 US at 364, 99 SCt at 668, 58 LEd2d at 587. [¶29] 2. Whether St. Cloud was denied effective assistance of counsel. [¶30] St. Cloud claims he was denied effective assistance of counsel because his trial counsel did not object to the makeup of the jury panel. "We have adopted the two-prong test of Strickland v. Washington, 466 US 668, 104 SCt 2052, 80 LEd2d 674 (1984), for ineffective assistance of counsel claims. First, the applicant must prove that his trial counsel's performance was deficient. He must show that trial counsel made errors 'so serious that counsel was not functioning as the "counsel" guaranteed ... by the Sixth Amendment.' Secondly, he must show that the deficient performance 'prejudiced the defense' by showing that 'counsel's errors were so serious as to deprive the defendant of a fair trial.' The reasonableness of trial counsel's action is evaluated from his perspective at the time the alleged error occurred. Garritsen v. Leapley, 541 NW2d 89, 93 (SD 1995) (quoting Mitchell v. Class, 524 NW2d 860, 862 (SD 1994)). [¶31] St. Cloud does not claim he was prejudiced by trial counsel's actions. The State argues he was aided by trial counsel's strategy. At the habeas hearing, St. Cloud's trial counsel, Steve Rabuck, was called and stated, "[St. Cloud's] reputation up at Lower Brule was quite bad." When asked if he "would have been inclined to leave jurors from Lower Brule on a jury panel" on a case involving St. Cloud, trial counsel answered, "no." Larry Hollman, a former prosecutor for the Lower Brule Sioux Tribe testified, and stated, "[St. Cloud] was not well liked around the community, from the people that I talked to." Hollman and Larry Mammula, the Dakota Plains Legal Services attorney, also testified that it was common knowledge on the reservation that St. Cloud had at one time pled guilty to this crime in federal court. [¶32] Steve Smith, an attorney who had assisted Rabuck in jury selection was asked whether they wanted Indians from Lower Brule on the jury and answered: We had some concerns. We knew that [St. Cloud's] general reputation in Lower Brule was not very highly thought upon. And secondly, we were very concerned over the fact that many people in Lower Brule were afraid of, or knew, [St. Cloud] had previously ... pled guilty in federal court to the rape conviction ... We were afraid that we might have someone put on the jury who would have said, "No, I know nothing about this case, I can be fair," but by the same token knew that [St. Cloud] previously had pled guilty. Smith also testified that if one prospective juror from Lower Brule had divulged St. Cloud's guilty plea to the entire panel, counsel "would have had to move for a mistrial and start over." [¶33] The habeas court determined the jury panel was comprised of a fair cross section of the community and held it was not necessary to answer this question. St. Cloud has not shown ineffective assistance of counsel. [¶34] Affirmed. [¶35] MILLER, Chief Justice, AMUNDSON, KONENKAMP, and GILBERTSON, Justices, concur. ----Footnotes---fn1 . The trial court cited SDCL 37-7-4, which defines "Indian" as "any person who is enrolled or who is a lineal descendant of one enrolled upon the enrollment listing of a recognized Indian tribe domiciled within the United States." The parties use the terms "Indian" and "Native American" interchangeably and for

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purposes of this opinion, so do we. fn2 . The habeas court's letter which was printed on circuit court stationery stated: Dear Jury Panel Member: The Supreme Court has directed me to determine how many members of the jury panel were Indians to determine whether a defendant in a case tried in the year you were on the panel had a fair trial. (1989 panel). If you wish to mark and return this letter (in the enclosed, stamped, return-addressed envelope), you will not need to appear in court. _____ I am a full-blood Indian (any tribe) _____ I am a part-blood Indian (any tribe) _____ I am not an Indian Thank you for your assistance. ________________________________ Your Name Sincerely, /s/ Max A. Gors fn3 . The habeas court found the number of jury-age Indians was 439. The total jury-age population in Lyman County was 2501. The percentage of jury-age Indians was 17.553%. fn4 . The habeas court found the "jury panel contained 22 Indians and 178 non-Indians and the percentage of Indians on the panel was 11% (22/200)." At the habeas trial, St. Cloud called Joyce Estes, an administrative manager for the Bureau of Indian Affairs at Lower Brule who is in charge of enrollment records. Estes identified 18 of the jury panel members as Indian. Responses to the trial court's letter indicated an additional four individuals were Indian. fn5 . "Under the absolute disparity calculation, the percentage of Indians on the list of persons eligible for petit jury service is subtracted from the percentage of Indians in the general population, resulting in a figure constituting the absolute difference." United States v. Clifford, 640 F2d 150, 155 (8thCir 1981). This is the method utilized by the habeas court in determining the 6.5% underrepresentation. fn6 . At the original habeas hearing, St. Cloud presented evidence of the makeup of juries and the Indian population in Lyman County. The State did not present evidence to the contrary at the original hearing or on remand. fn7 . St. Cloud also presented calculations of "comparative disparity," which "measures underrepresentation by the percentage by which the probability of serving as a juror is reduced for people in a particular category or cognizable class." Clifford, 640 F2d at 155. The comparative disparity calculation is as follows: [(Proportion of the population that is in the specified category - Proportion of the source that is in the specified category) divided by Proportion of the population that is in the specified category] x 100. Id. at n3. The Eighth Circuit has not adopted the comparative disparity method. Id.; Floyd v. Garrison, 996 F2d 947, 950 (8thCir 1993). This court has used the absolute disparity method. See Hall, 272 NW2d at 311. fn8 . The habeas court noted: Fourteen members of the panel were deceased. Addresses were not available for nineteen members. Four responded that they were Indians. Ten did not respond at all. The remainder responded that they were not Indians or gave some other response.

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fn9 . SDCL 19-16-28 provides: A statement not specifically covered by any of §§ 19-16-5 to 19-16-27, inclusive, but having equivalent circumstantial guarantees of trustworthiness, is not excluded by § 19-16-4, even though the declarant is available as a witness, if the court determines that (1) the statement is offered as evidence of a material fact; (2) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (3) the general purposes of chapters 19-9 to 19-18, inclusive, and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this section unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant. fn10 . The habeas court did a cost analysis when it considered the possibility of summoning each juror to appear for questioning. It also considered that the court could possibly be unable to compel tribal members on the Lower Brule Reservation to attend such questioning, and that some jurors might be unwilling to disclose their race during such questioning. fn11 . SDCL 16-13-10 provides in part: All citizens of this state, who are residents of the county where the jury is selected, eighteen years of age or older prior to January first of the year of jury service, of sound mind and who are able to read, write, and understand the English language, are eligible to serve as jurors. ... fn12 . The court specifically affirmed its holding of Clifford to the effect that South Dakota's federal court system of jury selection by voter registration lists was constitutional. Prior to 1991, South Dakota's state jury-selection system was the same. SDCL 16-13-4.1. It is now comprised of current registered voters and driver's license lists. Id. fn13 . In Plenty Horse, it was established that in Cedar Butte Township, which was 60% Native American, there had never been a person of that descent certified on its jury lists during the ten years preceding trial. Likewise, Norris Township, which had in excess of 60% Native American population, had only one Native American name qualified for jury duty in the past ten years. 85 SD at 405-06, 184 NW2d at 656. In Duren, women constituted 54% of the adult female population but only 15% of the jury venires were women. The reason for this vast difference was that, at that time, Missouri had a law that allowed women to opt out of jury service but did not allow the same option to men. 439 US at 359, 99 SCt at 666, 58 LEd2d at 583-84.

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