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Zemina v. Solem

United States Court of Appeals, Eighth Circuit
Apr 10, 1978
573 F.2d 1027 (8th Cir. 1978)

Summary

holding that state trial court's refusal to instruct on justification, excuse, and self-defense violated petitioner's Sixth and Fourteenth Amendment rights

Summary of this case from U.S. ex Rel. Everette v. Roth

Opinion

Nos. 77-1899, 77-1846.

Submitted March 13, 1978.

Decided April 10, 1978.

Peter H. Lieberman, Asst. Atty. Gen., Pierre, S. D., for appellant-appellee; William J. Janklow, Atty. Gen., Pierre, S.D., on brief.

Stuart L. Tiede, of Woods, Fuller, Shultz Smith, Sioux Falls, S. D., for appellee-appellant.

Appeal from the United States District Court for the District of South Dakota.

Before LAY and BRIGHT, Circuit Judges, and VAN SICKLE, District Judge.

BRUCE M. VAN SICKLE, United States District Judge, District of North Dakota, sitting by designation.


Herman Solem, acting warden of the South Dakota State Penitentiary, appeals from a district court order granting habeas corpus relief to prisoner Fred J. Zemina. Zemina cross-appeals, contending that the district court erred in rejecting several other grounds asserted in his petition. We affirm.

The Honorable Fred J. Nichol, Chief Judge, District of South Dakota. Chief Judge Nichol's opinion is published at 438 F. Supp. 455.

Zemina was convicted of first degree manslaughter in a South Dakota state court and sentenced to life imprisonment. The Supreme Court of South Dakota affirmed the conviction. State v. Zemina, 87 S.D. 291, 206 N.W.2d 819 (1973). In this habeas corpus action, Zemina alleges numerous defects in his trial. After analyzing the entire record in detail, Chief Judge Nichol, in a well-reasoned opinion, granted Zemina's petition on two grounds and rejected the remaining allegations. First, Chief Judge Nichol concluded that the trial court had violated Zemina's right to a trial by jury and to due process of law by refusing to give the jury a proposed instruction on Zemina's defenses of justification, excuse, and self-defense. Second, he found that the trial court had violated Zemina's sixth amendment right to counsel by allowing the prosecutor to suggest in closing argument that Zemina's phone call to his attorney after his arrest indicated his guilt. We adopt Chief Judge Nichol's reasoning and affirm the judgment granting the writ of habeas corpus on the basis of that opinion.

Zemina's contentions on his cross-appeal (No. 77-1846) relate to errors in the trial that are unlikely to occur again if he is retried. We therefore do not reach the issues raised by Zemina's cross-appeal, and we dismiss that appeal.


Summaries of

Zemina v. Solem

United States Court of Appeals, Eighth Circuit
Apr 10, 1978
573 F.2d 1027 (8th Cir. 1978)

holding that state trial court's refusal to instruct on justification, excuse, and self-defense violated petitioner's Sixth and Fourteenth Amendment rights

Summary of this case from U.S. ex Rel. Everette v. Roth

adopting reasoning of Zemina v. Solem, 438 F.Supp. 455 (D.S.D. 1977)

Summary of this case from Davis v. Strack

affirming the grant of habeas corpus relief that the defendant's Sixth Amendment right to counsel was violated when the trial court allowed the prosecutor to suggest in closing argument that the defendant's phone call to his attorney after his arrest indicated his guilt

Summary of this case from Dendy v. State

In Zemina v. Solem, 573 F.2d 1027 (8th Cir. 1978), the court, without discussing the issue of harmless error, reversed a manslaughter conviction because the prosecutor had suggested that the defendant's post-arrest telephone call to his lawyer indicated his guilt.

Summary of this case from United States v. McDonald

In Zemina v. Solem, 573 F.2d 1027 (8th Cir. 1978), the court, without discussing the issue of harmless error, reversed a manslaughter conviction because the prosecutor had suggested that the defendant's post-arrest telephone call to his lawyer indicated his guilt.

Summary of this case from Arthur v. State
Case details for

Zemina v. Solem

Case Details

Full title:FRED J. ZEMINA, APPELLEE-APPELLANT, v. HERMAN SOLEM, AS THE DULY…

Court:United States Court of Appeals, Eighth Circuit

Date published: Apr 10, 1978

Citations

573 F.2d 1027 (8th Cir. 1978)

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