742 F.2d 371 (7th Cir. 1984), 82-1055, Evans v. Meyer

Docket Nº:82-1055.
Citation:742 F.2d 371
Party Name:Jackie EVANS, Petitioner-Appellant, v. Leo MEYER, Warden, Logan Correctional Center, Respondent-Appellee.
Case Date:August 23, 1984
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 371

742 F.2d 371 (7th Cir. 1984)

Jackie EVANS, Petitioner-Appellant,


Leo MEYER, Warden, Logan Correctional Center, Respondent-Appellee.

No. 82-1055.

United States Court of Appeals, Seventh Circuit

August 23, 1984

        Submitted Dec. 1, 1983.

Page 372

        Suzanne Philbrick, Oak Lawn, Ill., for petitioner-appellant.

        Jackie Evans, pro se.

        Kenneth A. Fedinets, Ill. Atty. Gen., Chicago, Ill., for respondent-appellee.

        Before CUMMINGS, Chief Judge, and CUDAHY and POSNER, Circuit Judges.

Page 373

        POSNER, Circuit Judge.

        Jackie Evans appeals from the district court's denial of his application for a writ of habeas corpus. The principal ground for the appeal and the only one worth discussing is that the district court should have held an evidentiary hearing to determine whether the failure of Evans' counsel to advise Evans that he might have a defense of intoxication either constituted ineffective assistance of counsel or made Evans' plea of guilty involuntary.

        At 4:30 one morning Evans entered a police station and asked the radio operator, Lonbom, to call Detective Azbill for him. Lonbom told Evans to call Azbill himself, using a telephone in another office. Evans left but returned shortly and placed a steak knife against Lonbom's neck and told him to call Azbill and tell him to come to the station. Lonbom did as told. When Azbill arrived, Evans told him to unload his gun and place the gun and cartridges on the counter; Azbill complied. Evans then told Azbill to go and get a police report on him. Azbill again did as told. When he returned he noticed that Evans had reloaded Azbill's gun and was holding it. Azbill expressed some concern about this turn of events but Evans assured Azbill that he was afraid of guns and never used them. Evans let Lonbom leave the station, and Evans and Azbill then spent an hour and a half discussing the contents of the police report and also the question of Evans' visitation rights with his daughter. Azbill told Evans he thought he could bring the daughter to the station and Evans told him that that was what he wanted. Azbill brought the child to the station, where Evans spoke with her privately for a while and was then arrested. He was charged with a variety of offenses under Illinois law, and in 1978 pleaded guilty and was sentenced to 9 1/2 years in prison.

        Although Evans told his lawyer that he had been extremely drunk during the incident at the police station, the lawyer advised him that he had no defense of intoxication, and it is this advice of which Evans principally complains. There is debate in the briefs over whether intoxication is a defense under Illinois law to the crimes with which Evans was charged, but the state concedes that it is to at least one (unlawful restraint), and for purposes of this appeal we shall assume (without deciding) that it is to all. We still do not think that Evans is entitled to a hearing on his claim of ineffective assistance of counsel. For it is apparent from the facts narrated above, none of which Evans disputes, that no competent counsel would have advised Evans to risk a trial in which his defense would have been intoxication.

        Intoxication as such is not a defense to a criminal charge; many crimes are committed by people who are under the influence of alcohol. The only relevance of intoxication is that it may prevent the perpetrator from forming the intent required by law for the commission of the particular crime. The offenses with which Evans was charged were armed violence, unlawful restraint, and forcible detention. See Ill.Rev.Stat.1983, ch. 38, Secs. 33A-2, 10-3, 10-4. "Armed" violence is the commission of a felony while armed with a dangerous weapon. Forcible detention and unlawful restraint are felonies, and hence possible predicates of an armed-violence charge. Forcible detention is committed when a person armed with a dangerous weapon "holds an individual hostage without lawful authority for the purpose of obtaining performance by a third person of demands made by the person holding the hostage." Unlawful restraint is committed when one "knowingly without legal authority detains another." Forcible detention requires that the offender be able to form the intent to obtain performance of his demands by a third person, and it is plain that Evans had and indeed fulfilled that purpose by taking Lonbom hostage in order to get Azbill to talk to him. It is also apparent that Evans could not have believed that he had the legal authority to hold a knife to Lonbom's throat, and therefore was also able to form the intent required to commit unlawful restraint. It is not as if Evans, perhaps suffering from delusions, believed that

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Lonbom was a threat to him and that he was acting in self-defense; there is not the slightest suggestion of delusion, hallucination, or automatism. Evans knew who Lonbom was and knew that he had no authority to threaten Lonbom; his actions belie any claim that he was so drunk that he could have misconceived his authority to do what he did.

        Thus, with respect to both the forcible-detention and the unlawful-restraint charges, and hence with respect to the armed-violence charge as well, a defense of intoxication would have been at best a theoretical possibility. The uncontested facts of the incident out of which the criminal charges grew made it inconceivable that a jury would have acquitted Evans because he was too intoxicated to form the intent required to commit these crimes. See People v. Primmer, 111 Ill.App.3d 1046, 1052, 67 Ill.Dec. 593, 597, 444 N.E.2d 829, 833 (1983).

        All this is so plain that no lawyer in his right mind would have advised Evans to go to trial with a defense of intoxication, especially when he could if convicted on all charges have been sentenced to 120 years in prison. Evans' argument thus reduces to the proposition that his lawyer should have told him that he had at least a theoretical defense of intoxication, should have explained to him the unlikelihood that the defense would be accepted in a trial, but should have left to him the ultimate decision whether to raise the defense. That might well have been the better course but the only issue for us is whether Evans' conviction should be set aside on the ground that he was denied "reasonably effective assistance of counsel," Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), bearing in mind that, "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the range of reasonable professional assistance." Id. 104 S.Ct. at 2065-66. It is not the normal practice of lawyers to advise their clients of every defense or argument or tactic that while theoretically possible is hopeless as a practical matter. Among other objections to holding that they must do so is that it would create an exquisite conflict between the lawyer's duty to his client and to justice; for by holding back from his client some unimportant information about litigation options the lawyer would guarantee that the client could get his guilty plea set aside as involuntary if he was dissatisfied with the sentence he received after pleading guilty. The fact that an intoxication defense may have been Evans' only possible defense to any of the charges against him would not change this conclusion. "If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade." United States v. Cronic, --- U.S. ----, 104 S.Ct. 2039, 2045 n. 19, 80 L.Ed.2d 657 (1984).

        It is not enough, moreover, for Evans to show that his lawyer unreasonably failed to raise the intoxication defense. The Supreme Court has now made clear that, "Conflict of interest claims aside [and none is made here], actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice." Strickland v. Washington, supra, 104 S.Ct. at 2067; see also Wade v. Franzen, 678 F.2d 56, 59 (7th Cir.1982). Although these are cases where there was an actual trial, that should make no difference. It is true that if there has been no trial the record will be scantier. But when there has been a trial the record still may be incomplete because of the strategy followed by the very lawyer whose competence has been called into question; and yet the Supreme Court has made clear that the court must, in evaluating a claim of ineffective assistance of counsel, require that the claimant show actual prejudice. We do not think that requirement should be dispensed with here just because, as in the vast majority of criminal cases, the defendant pleaded guilty.

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        The uncontested facts show that Evans cannot satisfy the requirement of "affirmatively prov[ing] prejudice." It is inconceivable to us, and not merely improbable as in Henderson v. Morgan, 426 U.S. 637, 644 n. 12, 96 S.Ct. 2253, 2257 n. 12, 49 L.Ed.2d 108 (1976), that Evans would have gone to trial on a defense of intoxication, or that if he had done so he either would have been acquitted or, if convicted, would nevertheless have been given a shorter sentence than he actually received. It just is not believable that Evans did all the things he does not deny having done, involving elaborate negotiations with the police over several hours, in some sort of alcohol-induced trance. In this respect the present case resembles Morgan v. Israel, 735 F.2d 1033 (7th Cir.1984). In evaluating the voluntariness of Morgan's failure to plead not guilty we said, "It is sufficiently clear that Morgan had no hope at all of an acquittal to enable us to infer that he would not have changed his plea to not guilty .... He...

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