APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT AURORA COUNTY, SOUTH DAKOTA HONORABLE BRUCE V. ANDERSON Judge.
The opinion of the court was delivered by: Meierhenry, Justice
CONSIDERED ON BRIEFS NOVEMBER 3, 2008
[¶1.] Robert Steichen appeals the denial of his petition for habeas corpus relief. Specifically, Steichen argues that the admission of SDCL 19-12-5 (Rule 404(b)) evidence of other acts violated his due process rights; that he had ineffective assistance of counsel at trial; and that his sentences were grossly disproportionate. We affirm.
FACTS AND PROCEDURAL BACKGROUND
[¶2.] Steichen was convicted in 1997 of three counts of First-Degree Rape, seven counts of Third-Degree Rape, and one count of Sexual Contact with a Child under the Age of sixteen. The incidents allegedly occurred in Aurora and Jerauld Counties, South Dakota, between July 1996 and February 1997. The counts involved sexual conduct towards H.F., Steichen's six-year old step-daughter and towards K.C., a babysitter. At trial, the children testified to repeated molestations by Steichen. On the three counts of First-Degree Rape, the circuit court imposed consecutive sentences of thirty years, seventy-five years, and life imprisonment without parole. On the other charges, the trial court imposed consecutive sentences of eight years for one count of Third-Degree Rape, and fifteen years for each of the other seven charges, for a total of 113 years, to run concurrent with the First-Degree Rape sentences.
[¶3.] Steichen's convictions were affirmed by a majority of this Court in State v. Steichen, 1998 SD 126, 588 NW2d 870. Steichen's application for a writ of habeas corpus from the United States District Court for the District of South Dakota in 2000 was denied because he had not exhausted state court remedies. In 2007, Steichen filed a writ of habeas corpus in state circuit court. The circuit court denied Steichen's writ on January 30, 2008. Steichen appeals the following issues:
1) Whether Steichen's right to due process was violated by the admission of other acts evidence.
2) Whether Steichen was denied his right to effective assistance of trial counsel because an alibi witness was not called to testify.
3) Whether Steichen's sentences were unconstitutionally cruel and unusual.
[¶4.] We consider habeas corpus proceedings under a limited standard of review. Erickson v. Weber,2008 SD 30, ¶17, 748 NW2d 739, 744 (citations omitted). Habeas corpus review does not substitute for direct review. Id.
Habeas corpus can be used only to review (1) whether the court has jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) in certain cases whether an incarcerated defendant has been deprived of basic constitutional rights. Habeas corpus is not a remedy to correct irregular procedures, rather, habeas corpus reaches only jurisdictional error. For purposes of habeas corpus, constitutional violations in a criminal case deprive the trial court of jurisdiction. Further, we may not upset the habeas court's findings unless they are clearly erroneous.
Id. (citing Bradley v. Weber, 1999 SD 68, ¶12, 595 NW2d 615, 619 (quoting Flute v. Class, 1997 SD 10, ¶8, 559 NW2d 554, 556)) (other citations omitted). The initial burden is on the applicant to demonstrate by a preponderance of the evidence that relief is required. Id. (citing New v. Weber, 1999 SD 125, ¶5, 600 NW2d 568, 572 (citing Lien v. Class, 1998 SD 7, ¶11, 574 NW2d at 607)).
1. Whether Steichen's Rright to due Process was Violated by the Admission of other acts Evidence
[¶5.] As part of its case-in-chief, the State presented the testimony of the two children who were named victims of the charged offenses. Additionally, the State offered testimony of four other children who claimed Steichen had sexually molested them. The State also presented limited testimony of incidents of Steichen's violence towards his wife and other family members. The testimony of the other children and the references to Steichen's violence were allowed under SDCL 19-12-5 (Rule 404(b)) as other acts evidence. SDCL 19-12-5 (Rule 404(b)) restricts the use of other acts evidence as follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
SDCL 19-12-5. The trial court determined that the other acts evidence was admissible to show motive, common scheme and plan, opportunity, lack of mistake or accident, and continuing course of criminal conduct. The trial court further determined that the other acts evidence was more probative than prejudicial.
[¶6.] On appeal, a majority of this Court found no error in admitting the other acts evidence under SDCL 19-12-5 (Rule 404(b)) "to show motive, common plan or scheme, opportunity and a continuing course of criminal conduct." Steichen, 1998 SD 126, ¶¶16-34, 588 NW2d at 874-78. This Court determined, however, that it was error for the trial court to admit the evidence to show lack of mistake or accident. Even so, the error was determined harmless ...