47 F3d 1178 Wise v. D Hannigan

47 F.3d 1178

William L. WISE, Petitioner-Appellant,
v.
Robert D. HANNIGAN and Attorney General of the State of
Kansas, Respondents-Appellees.

No. 94-3156.
(D.C. No. 92-CV-3435)

United States Court of Appeals, Tenth Circuit.

Feb. 14, 1995.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before MOORE, BARRETT, and EBEL, Circuit Judges.

ORDER AND JUDGMENT1


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1

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

2

A jury convicted petitioner William L. Wise of one count of felony murder committed in the course of an aggravated robbery; he was acquitted of premeditated murder. Petitioner was sentenced to life imprisonment. He then sought post-conviction relief claiming ineffective assistance of counsel in the Kansas state courts. Following an evidentiary hearing, the state courts denied relief. Petitioner, representing himself, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. The federal district court denied the writ, but issued a certificate of probable cause.

3

Again representing himself, petitioner appeals, claiming he was denied his Sixth Amendment right to the effective assistance of counsel at his murder trial. Petitioner alleges his trial counsel, Michael Wilson, was ineffective in the following ways: (1) he introduced evidence of petitioner's prior criminal record and bad acts, notwithstanding Kan. Stat. Ann. 60-421 (prohibiting introduction of a defendant's criminal convictions to impair his credibility), (2) Wilson was inadequately prepared for trial and did not convey enough information to petitioner to permit him to make an informed decision whether to testify, (3) Wilson failed to object to inadmissible rumor and opinion evidence, and (4) Wilson labored under a conflict of interest because his former client was the main witness in the case against petitioner.

4

The underlying facts are recited in petitioner's direct criminal appeal to the Kansas Supreme Court. State v. Wise, 697 P.2d 1295, 1296-97 (Kan.1985). The evidence at trial showed that the victim, Richard Ricks, died of a gunshot wound to the head in a motel room on April 21, 1981. His wallet was on the dresser, and a five-dollar bill was near his body. No drugs or other money were found in the room.

5

Shortly after the murder, petitioner's girlfriend, Christina Lynn, stated that she had spent the evening and night prior to the murder with petitioner. During that evening, Ricks had made a pass at Lynn. When she told petitioner about it, "he threatened to blow Ricks' brains out if he ever 'messed' with her again." Id. at 1297.

6

On February 10, 1983, murder charges were filed against petitioner, but the charges were dropped when the key witness disappeared. On October 23, 1983, Lynn made a statement to authorities that petitioner and two other men went to Ricks' room on the night of the murder to steal money and drugs from him. According to Lynn's account, she persuaded Ricks to open the door to his motel room. The three men entered the room while she waited outside. When petitioner came out of the room, he told Lynn he had shot Ricks. Murder charges against petitioner were reinstated on January 11, 1984.

7

A few days after making the statement inculpating petitioner, Lynn recanted it. According to her, she made the statement because she believed petitioner had a contract out on her life. After she determined the rumor was false, she recanted her story.


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8

At petitioner's trial, Lynn admitted making the statement described above, and explained the circumstances that caused her to make the statement and then to recant it. She testified at trial that the true version of events was as she had first stated them: petitioner had spent the evening and night of the murder with her. The evidence at trial also included the testimony of three witnesses who stated petitioner had told each of them that he had killed Ricks. Two of those witnesses were prison inmates.

9

Petitioner was the final witness at his trial. He testified that he had been with Lynn on the evening and night of the murder, and he denied any involvement in the murder. At the outset of his testimony, his attorney elicited part, but not all, of petitioner's past criminal record. In addition, the attorney had petitioner testify that he had been in a bar fight shortly before the Ricks murder. On cross-examination, the prosecuting attorney brought out additional convictions petitioner had failed to disclose during direct examination, including crimes involving firearms and thefts.

10

In closing argument, petitioner's attorney referred to petitioner as "a sneak thief" who had "committed various and assorted crimes," but not violent crimes. R. Vol. VI at 12. Counsel also pointed out to the jury that petitioner was not "any sort of upstanding, middle class sort of citizen," id. at 11-12, and characterized petitioner as a "forty-six year old individual who's never been any more nor less than a thief," id. at 15.

11

To prove a claim of ineffective assistance of counsel, petitioner must show that his attorney's performance was deficient, and that the errors were so serious that petitioner did not receive a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687 (1984). "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689. The performance prong contemplates that an attorney's trial strategy must be a reasonable one considering all the circumstances of the case. See id. at 688. To establish prejudice, " 'a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case.' Instead, the defendant bears the burden of showing 'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Osborn v. Shillinger, 861 F.2d 612, 626 (10th Cir.1988)(quoting Strickland, 466 U.S. at 693, 694).

12

"[T]he performance and prejudice prongs under Strickland involve mixed questions of law and fact which we review de novo." Brecheen v. Reynolds, 41 F.3d 1343, 1365-66 (10th Cir.1994)(quotation omitted). The state court's findings of historical fact are presumed correct; the federal district court's findings of fact are reviewed for clear error. Id. at 1366. "[A] state court conclusion that counsel rendered effective assistance is not a finding of fact binding on the federal court." Id.

13

At the hearing on the ineffective counsel claims, Wilson explained his theory of defense as containing four elements: (1) to blame others for the murder, or at least give the jury alternative suspects; (2) to show the jury that petitioner was not a violent person by showing that his criminal history contained no violent crimes; (3) to attack the credibility of two prison inmate witnesses based on their status as inmates; and (4) to present petitioner's criminal record before it came out inadvertently. R. Vol. II at 17-18.

14

We first address petitioner's claim that Wilson was unprepared for trial and did not inform petitioner sufficiently to permit him to decide whether to volunteer his prior criminal record. We are bound by the state district court's findings of fact that Wilson consulted with petitioner four times, and Wilson conducted an independent investigation. See 28 U.S.C. 2254(d)(state court's findings of fact presumed correct); state district court's Feb. 19, 1991 memorandum decision at 2-3. In view of the expert attorney testimony that Wilson's preparation was not inadequate and our review of the trial record, we hold that petitioner has not met his burden of proving Wilson's preparation fell below a reasonable standard.

15

Wilson's failure to object to the rumor and opinion evidence surrounding the contract on Lynn's life, and the claim that Wilson had a conflict of interest due to his past attorney-client relationship with Lynn also were not constitutionally deficient in the context of this case. We will not second-guess counsel's decision to allow the circumstances surrounding Lynn's October 1993 statement in order to explain the statement and Lynn's subsequent retraction. See Strickland, 466 U.S. at 689 ("court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance"). Similarly, Wilson's decision not to impeach Lynn with her drug use and prior conviction falls within the range of reasonable strategic decisions because Lynn was petitioner's alibi witness.

16

We next consider whether Wilson's decision to reveal petitioner's past criminal record to the jury was a reasonable tactical decision. Kan. Stat. Ann. 60-421 permits a defendant to testify on his own behalf without being required to disclose his past crimes unless he has first introduced evidence solely to support his credibility. Petitioner was the last person to testify. No reference had been made to his prior record up to that time. Therefore, the risk that petitioner's record would be brought out inadvertently was diminished. There was no credible fear that petitioner's record would be revealed accidentally, so it was not necessary to volunteer it. Even if it was a valid strategy, it was incompetently executed because Wilson failed to bring out all of petitioner's prior convictions, thus permitting the prosecutor to impeach petitioner with the remainder of his record. Finally, to emphasize it in closing argument further highlighted petitioner's record, and could not reasonably be aimed at defusing damaging evidence, particularly since Wilson did not attack the credibility of the two inmate witnesses based on their prior criminality. Consequently, Wilson's decision to reveal petitioner's prior criminal record was not a reasonable strategy, and his representation fell below an objective standard of reasonableness.

17

Having concluded that Wilson's performance was deficient under Strickland, we turn to the prejudice prong of plaintiff's ineffective assistance of counsel claim. The state trial court gave the following jury instruction:

18

Evidence has been admitted that William L. Wise committed crimes other than the present crimes charged. You may not consider as evidence against William L. Wise in this case the fact that he has been convicted of other crimes.

19

Jury instruction No. 10, R. trial pleadings at 88.

20

We assume the jury followed their instructions. Richardson v. Marsh, 481 U.S. 200, 206-07, 211 (1987)(citing cases). In addition, there was evidence that petitioner went to Ricks' room to rob him. Even though the evidence was in the form of Lynn's statement that was later recanted, the jury was free to believe the incriminating statement. Therefore, petitioner has failed to establish that he was prejudiced by his counsel's errors. Accordingly, the district court properly denied the petition for a writ of habeas corpus.

21

The judgment of the United States District Court for the District of Kansas is AFFIRMED. The mandate shall issue forthwith.

1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470