Burger v. Kemp, 86-5375

• Decision Date: 26 June 1987
• Docket Number: No. 86-5375,86-5375
• Citation: 107 S.Ct. 3114,97 L.Ed.2d 638,483 U.S. 776
• Parties: Christopher A. BURGER, Petitioner v. Ralph KEMP, Warden
• Court: U.S. Supreme Court

483 U.S. 776

107 S.Ct. 3114

97 L.Ed.2d 638

Christopher A. BURGER, Petitioner

v Ralph KEMP, Warden.

No. 86-5375.

Argued March 30, 1987.

Decided June 26, 1987.

Rehearing Denied Sept. 21, 1987.

See 483 U.S. 1056, 108 S.Ct. 32.

Syllabus

A Georgia trial court jury found petitioner guilty of murder and sentenced him to death. Both petitioner and a coindictee (Thomas Stevens) gave full confessions to the crime, and Stevens was tried later in a separate trial. The Georgia Supreme Court, after ordering a second sentencing hearing for petitioner which resulted in reimposition of the death sentence, affirmed the sentence. Throughout the state-court proceedings, petitioner was represented by appointed counsel, Alvin Leaphart, who was an experienced and well-respected local attorney. After exhausting state collateral remedies, petitioner (represented by a different attorney) sought habeas corpus relief in Federal District Court on the ground that Leaphart's representation was constitutionally inadequate, particularly because of a conflict of interest since Leaphart's law partner was appointed to represent Stevens at his trial, and Leaphart had assisted in that representation. At each trial, the defendant's strategy was to emphasize the coindictee's culpability in order to avoid the death penalty. Petitioner also based his Sixth Amendment claim of ineffective representation on Leaphart's failure to present any mitigating circumstances at the state-court sentencing hearings and on his allegedly inadequate investigation of the possibility of doing so. After an evidentiary hearing, the District Court rejected the Sixth Amendment claim, and the Court of Appeals ultimately affirmed.

Held:

1. There is no merit to petitioner's ineffective-assistance claim based on Leaphart's alleged conflict of interest. Even assuming that law partners are to be considered as one attorney in determining such a claim, requiring or permitting a single attorney to represent codefendants is not per se violative of constitutional guarantees of effective assistance of counsel. Any overlap of counsel did not so infect Leaphart's representation as to constitute an active representation of competing interests. Nor was an actual conflict established by the fact that Leaphart, who prepared the appellate briefs for both petitioner and Stevens, did not make a "lesser culpability" argument in petitioner's brief on his second appeal to the Georgia Supreme Court. That decision had a sound strategic basis and, as found by both the federal courts below, was not attributable to the fact that his partner was Stevens' lawyer, or to the further fact that he assisted his partner in Stevens' representation. Moreover, the record did not support petitioner's contention that, because of the asserted actual conflict of interest, Leaphart did not negotiate a plea bargain for a life sentence (the prosecutor, in fact, having refused to bargain) or take advantage of petitioner's lesser culpability when compared to Stevens'. Pp. 782-788.

2. Nor did petitioner receive ineffective assistance because of Leaphart's failure to develop and present any mitigating evidence at either of the two state-court sentencing hearings. The evidence that might have been presented would have disclosed that petitioner had an exceptionally unhappy and unstable childhood. Based on interviews with petitioner, his mother, and others, Leaphart decided that petitioner's interest would not be served by presenting such evidence. His decision was supported by reasonable professional judgment, and thus met the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Pp. 788-795.

785 F.2d 890 (CA11 1986), affirmed.

STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and SCALIA, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, and in Part II of which POWELL, J., joined, post, p. ----. POWELL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. ----.

Joseph M. Nursey, Atlanta, Ga., for petitioner.

William B. Hill, Jr., Atlanta, Ga., for respondent.

Justice STEVENS delivered the opinion of the Court.

A jury in the Superior Court of Wayne County, Georgia, found petitioner Christopher Burger guilty of murder and sentenced him to death on January 25, 1978. In this habeas corpus proceeding, he contends that he was denied his constitutional right to the effective assistance of counsel because his lawyer labored under a conflict of interest and failed to make an adequate investigation of the possibly mitigating cir- cumstances of his offense. After a full evidentiary hearing, the District Court rejected the claim. We are persuaded, as was the Court of Appeals, that the judgment of the District Court must be affirmed.

I

The sordid story of the crime involves four soldiers in the United States Army who were stationed at Fort Stewart, Georgia, on September 4, 1977. On that evening, petitioner and his coindictee, Thomas Stevens, both privates, were drinking at a club on the post. They talked on the telephone with Private James Botsford, who had just arrived at the Savannah Airport, and agreed to pick him up and bring him back to the base. They stole a butcher knife and a sharpening tool from the mess hall and called a cab that was being driven by Roger Honeycutt, a soldier who worked part-time for a taxi company. On the way to the airport, petitioner held the knife and Stevens held the sharpening tool against Honeycutt. They forced him to stop the automobile, robbed him of $16, and placed him in the backseat. Petitioner took over the driving. Stevens then ordered Honeycutt to undress, threw each article of his clothing out of the car window after searching it, blindfolded him, and tied his hands behind his back. As petitioner drove, Stevens climbed into the backseat with Honeycutt, where he compelled Honeycutt to commit oral sodomy on him and anally sodomized him. After stopping the car a second time, petitioner and Stevens placed their victim, nude, blindfolded, and hands tied behind his back, in the trunk of the cab. They then proceeded to pick up Botsford at the airport. During the ride back to Fort Stewart, they told Botsford that they had stolen the cab and confirmed their story by conversing with Honeycutt in the trunk. In exchange for Botsford's promise not to notify the authorities, they promised that they would not harm Honeycutt after leaving Botsford at the base.

Ultimately, however, petitioner and Stevens drove to a pond in Wayne County where they had gone swimming in the past. They removed the cab's citizen-band radio and, while Stevens was hiding the radio in the bushes, petitioner opened the trunk and asked Honeycutt if he was all right. He answered affirmatively. Petitioner then closed the trunk, started the automobile, and put it in gear, getting out before it entered the water. Honeycutt drowned.

A week later Botsford contacted the authorities, and the military police arrested petitioner and Stevens. The two men made complete confessions. Petitioner also took the military police to the pond and identified the point where Honeycutt's body could be found. Petitioner's confession and Private Botsford's testimony were the primary evidence used at Burger's trial. That evidence was consistent with the defense thesis that Stevens, rather than petitioner, was primarily responsible for the plan to kidnap the cabdriver, the physical abuse of the victim, and the decision to kill him. Stevens was 20 years old at the time of the killing. Petitioner was 17; ¹ a psychologist testified that he had an IQ of 82 and functioned at the level of a 12-year-old child.

II

Alvin Leaphart was appointed to represent petitioner about a week after his arrest. Leaphart had been practicing law in Wayne County for about 14 years, had served as the county's attorney for most of that time, and had served on the Board of Governors of the State Bar Association. About 15 percent of his practice was in criminal law, and he had tried about a dozen capital cases. It is apparent that he was a well-respected lawyer, thoroughly familiar with practice and sentencing juries in the local community. He represented petitioner during the proceedings that resulted in his conviction and sentence, during an appeal to the Georgia Supreme Court which resulted in a vacation of the death penalty, during a second sentencing hearing, and also during a second appeal which resulted in affirmance of petitioner's capital sentence in 1980. Burger v. State, 242 Ga. 28, 247 S.E.2d 834 (1978); Burger v. State, 245 Ga. 458, 265 S.E.2d 796, cert. denied, 446 U.S. 988, 100 S.Ct. 2975, 64 L.Ed.2d 847 (1980). Leaphart was paid approximately $9,000 for his services.

After exhausting his state collateral remedies, petitioner (then represented by a different attorney) filed a habeas corpus proceeding in the United States District Court for the Southern District of Georgia. He advanced several claims, including a charge that Leaphart's representation had been constitutionally inadequate. The District Court conducted an evidentiary hearing and emphatically rejected that claim,² but concluded that the trial court's instructions to the jury permitted it to base its sentencing decision on an invalid aggravating circumstance. Accordingly, the District Court vacated petitioner's death sentence. Blake v. Zant, 513 F.Supp. 772 (1981).

The Court of Appeals affirmed in part, reversed in part, and reinstated the death penalty. Burger v. Zant, 718 F.2d 979 (CA11 1983). On the issue of Leaphart's competence, it adopted the District Court's opinion as its own over the dissent of Judge Johnson. The dissent found that Leaphart had a conflict of interest because his partner Robert Smith ³ had been appointed to represent Stevens in his later, separate trial for the murder of Honeycutt, and Leaphart had assisted in that...