APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BEADLE COUNTY, SOUTH DAKOTA. HONORABLE TIM D. TUCKER Judge.
The opinion of the court was delivered by: Konenkamp, Justice
[¶1.] Petitioner was convicted in 2001 of the murder of his wife. He sought habeas corpus relief in circuit court asserting that his trial counsel was ineffective for failing to move to suppress evidence obtained with a search warrant and subpoenas duces tecum. The habeas court denied relief. It concluded that the warrant was supported by probable cause and that, although the subpoenas violated petitioner's right of privacy, the evidence would have been inevitably discovered. Petitioner appeals and we affirm.
[¶2.] On May 14, 1999, Sharon Guthrie drowned in the bathtub of her home. Her husband, Petitioner Dr. William B. Guthrie, called 911 for emergency assistance. Sharon was taken to the hospital but could not be resuscitated. She was pronounced dead the next day. An autopsy revealed the presence of a debilitating and toxic level of Temazepam (Restoril), a prescription sleep medication. Unable to conclusively determine the cause of death, the pathologist declared it was either a suicide or homicide.
[¶3.] As the investigation progressed, suspicion on Guthrie, a Presbyterian minister, began to mount. Unhappy in his marriage, he had planned a divorce. Indeed, for six or seven years he had repeatedly told his youngest daughter, Danielle, that he hated Sharon, that she was fat and ugly, that she so disgusted him he could not force himself to touch her. Guthrie gave investigators and others inconsistent versions of the circumstances surrounding his wife's death. After first denying it, he admitted a long-term affair that started while he was a minister in Nebraska. Several strange mishaps in the months before Sharon's death only raised more questions about Guthrie's criminal involvement.*fn1
[¶4.] We turn to the background pertinent to this habeas appeal. During the investigation, the Beadle County State's Attorney served subpoenas duces tecum on several drug stores in the area. These subpoenas directed the pharmacies to turn over Guthrie's prescription records. The records revealed that Guthrie had several prescriptions filled for Temazepam shortly before Sharon's death. A search warrant was issued for Guthrie's residence and his office and personal effects at the Presbyterian Church allowing search and seizure of, among other things, Guthrie's computer located at his church office. DCI Agent Jerry Lindberg's affidavit in support of the warrant requested seizure of "the diary kept by William Guthrie of his activities and the computer he uses in his office for evidence of any conspiracy between he and his love interest, Debbie Christensen." The affidavit also requested permission to search for "any correspondence, such as love letters or cards from Debbie Christensen."
[¶5.] Forensic examination of the church computer revealed that before Sharon's death it had been used for repeated Internet queries on "household accidents" and "bathtub accidents." In addition to these searches, the church computer had also been used to explore the Internet on details about prescription drugs. An online search engine was engaged to look for such medications as "Lorazepam," "Ativan," "Ambien," and "TCA." Information available on the Internet was downloaded from drug manufacturers and other sites, all describing these drugs, their purposes, and their dangers. Although the date could not be isolated, one of the searches brought up a Website promoting a book entitled "Worst Pills Best Pills - A Consumer's Guide to Avoiding Drug-Induced Death or Illness." Listed among the 160 "do not use" prescriptions was a medication called Restoril (Temazepam). This medication carries dangerous consequences if taken improperly. Overdosage symptoms include: somnolence; confusion with reduced or absent reflexes; respiratory depression; apnea; hypotension; impaired coordination; slurred speech; seizures; and ultimately coma and death. See Guthrie, 2001 SD 61, ¶13, 627 NW2d at 409. The last Internet search concerning drugs on the church computer that month was on April 27, 1999.
[¶6.] This search information was significant at trial because the evidence showed that on April 29, 1999, two days after the last Internet drug search, Guthrie went to a local clinic complaining of insomnia. He declined a suggested prescription for Ambien and obtained a prescription for Temazepam, even though the prescribing physician's assistant had reservations about its side effects. Guthrie received a prescription for fifteen capsules at thirty-milligram strength, with three refills. Thereafter, in two weeks' time, he managed to obtain 60 Temazepam capsules. After this evidence was introduced at Guthrie's trial, the prosecutor called it "the most damaging evidence in this case."
[¶7.] Following his conviction and unsuccessful appeal, Guthrie petitioned the circuit court for a writ of habeas corpus. He averred ineffective assistance of counsel in his trial attorney's failure to move to suppress the information acquired from his church office computer and the evidence obtained with the investigative subpoenas duces tecum. At the evidentiary hearing, Guthrie's habeas attorney argued that the affidavit in support of the search warrant lacked any basis in fact, or a nexus, for the issuing court to reasonably conclude that the church office computer would contain evidence of a conspiracy Guthrie might have had with Christensen. Counsel maintained that there was no basis to conclude there had been electronic correspondence between Guthrie and Christensen. Guthrie's trial counsel testified that his failure to move to suppress the evidence was "pure oversight on [his] part." The habeas court declined to address whether Guthrie's trial counsel was ineffective, instead holding that Guthrie failed to establish that the warrant lacked probable cause. The court found that although the computer was only mentioned once in the affidavit, "evidence of a potential conspiracy and intimate relationship between Guthrie and Christensen is prevalent throughout the affidavit."
[¶8.] On Guthrie's claim that the investigative subpoenas were illegal, the habeas court agreed that Guthrie had an expectation of privacy in his prescription records, and therefore, the court ruled that his Fourth Amendment rights had been violated. Again declining to address whether Guthrie's trial counsel was ineffective, the court denied habeas relief based on its sua sponte ruling that the prescription records would have been inevitably discovered. The court further held that even if the evidence would not have been inevitably discovered, Guthrie suffered no prejudice, as the evidence of his guilt was overwhelming.
[¶9.] In this appeal, Guthrie asserts that (1) the affidavit in support of the search warrant did not establish probable cause to seize and search the church computer, and (2) the court erred when it concluded that the evidence seized with the illegal subpoenas duces tecum would have been inevitably discovered.
[¶10.] A writ of habeas corpus is a collateral attack on a final judgment. Baldridge v. Weber, 2008 SD 14, ¶21, 746 NW2d 12, 17 (citations omitted). Our standard of review is limited. Id. "As a general matter, habeas corpus is used to review only: (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) whether, in certain cases, a defendant was deprived of basic constitutional rights." Id. (quoting Moeller v. Weber, 2004 SD 110, ¶10, 689 NW2d 1, 6 (citing New v. Weber, 1999 SD 125, ¶5, 600 NW2d 568, 571-72)). Here, Guthrie claims he was deprived of certain Fourth Amendment rights because his trial counsel was ineffective. A claim of ineffective assistance of counsel is a mixed question of law and fact. Denoyer v. Weber, 2005 SD 43, ¶18, 694 NW2d 848, 854 (citations omitted). Guthrie must show that "trial counsel's errors were so serious that [counsel] was not functioning as counsel guaranteed by the Constitution." See id. ¶19 (citations omitted). In addition, because Guthrie's ineffective counsel claim asserts a Fourth Amendment violation, he "must also prove ...