846 F.2d 1103 (7th Cir. 1988), 85-2755, United States v. Olson

Docket Nº:85-2755.
Citation:846 F.2d 1103
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Clifford OLSON, Defendant-Appellant.
Case Date:May 09, 1988
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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846 F.2d 1103 (7th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,

v.

Clifford OLSON, Defendant-Appellant.

No. 85-2755.

United States Court of Appeals, Seventh Circuit

May 9, 1988

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Argued April 7, 1987.

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Robert G. Le Bell, Milwaukee, Wis., for defendant-appellant.

Joseph P. Stadtmueller, U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before COFFEY, RIPPLE and MANION, Circuit Judges.

COFFEY, Circuit Judge.

Defendant-Appellant, Clifford Olson, appeals his conviction of first degree murder. We affirm.

I. Background

On Easter Sunday, April 10, 1977, the body of Clifford George Albers was found in the Wolf River on the Menominee Indian Reservation in Menominee County, Wisconsin. Three years later an indictment was returned charging the defendant with first degree murder. 1 On July 7, 1980, prior to the commencement of the trial, the government dismissed the original indictment without prejudice pursuant to Fed.R.Crim.P. 48(a). Olson was reindicted for the same offense in February 1985 and went to trial in September of that year.

At trial, the government's case in chief consisted primarily of the testimony of three main witnesses, Wanda Dick, Brenda LaRock, and Ella Peters. Wanda Dick testified that on April 9, 1977, she lived with Clifford Olson on the Menominee Indian Reservation in an area known as "South Branch." On that date, Dick testified, she was with Olson, Ella Peters, Brenda LaRock, and Robert Kakwitch, riding in the defendant's car and drinking beer. At some point, the four left the reservation and turned onto a gravel road where they came upon a station wagon. Olson and Kakwitch got out of their car and spoke to the man driving the station wagon; that man was later identified by Brenda LaRock as the victim, Clifford Albers. According to Dick, Olson grabbed Albers' arm and escorted him to Olson's car. Albers got into the back seat. Dick then drove Albers' station wagon to another location at Olson's request. When she returned to Olson's car, Albers was blindfolded. Olson, Dick, Peters, LaRock, Kakwitch and Albers then rode back to the South Branch area of the Menominee Reservation, parked the car and walked into the woods. Dick testified that they built a fire and drank beer and brandy, the defendant pouring brandy into Albers' mouth. Later, Olson hit Albers in the leg or ankle with an ax. Shortly thereafter, Dick saw Olson shoot Albers in the face with a handgun. Olson handed her the gun and she shot Albers once. Dick did not recall who else shot the victim. The defendant asked her to get a blanket from the car. Dick did so, and they rolled Albers' body into the blanket and placed it in the trunk of the car. Dick testified that they then drove to the Keshena Bridge and threw the body into the river.

Brenda LaRock's trial testimony substantially corroborated that of Wanda Dick. Her testimony differed only slightly from Dick's. LaRock stated that another individual, Charlie Peters, was also present during the events of April 9, that she was some distance away from the others in the woods when she heard gunshots, that when she walked back to the others she saw guns in the hands of Ella Peters, Bobby Kakwitch and Clifford Olson, and that after Wanda Dick shot the victim, Olson handed LaRock the gun, and she also shot him. Finally, LaRock identified a photograph of Clifford George Albers as that of the victim.

Ella Peters' trial testimony was also consistent with that of both Wanda Dick and Brenda LaRock. Peters' testimony differed from Dick's and LaRock's in that she did not, as LaRock had, mention the involvement of Charlie Peters, and that she stated that when the group left the reservation,

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the defendant talked of burglarizing a house in the area of Lakewood. Peters also testified that all of the individuals involved shot at the victim, but she only saw one gun.

In addition to the testimony of the three main witnesses, the government introduced various physical evidence, including a number of .22 caliber and .32 caliber bullets, and a 9mm or .38 autocaliber bullet, all taken from the body, a number of cartridge cases found at the scene of the crime in 1980, and a .22 caliber High Standard semi-automatic pistol that was seized in 1979 from the home of the defendant's mother pursuant to a search warrant. 2 Special Agent Richard A. Crum of the Federal Bureau of Investigation (FBI) Laboratory in Washington, D.C. was qualified and testified as a firearms identification expert. In Agent Crum's opinion, several of the .22 caliber bullets found in the victim's body were fired from the pistol seized from the home of the defendant's mother, and three others could have been fired from that pistol. Agent Crum also testified that cartridge cases found at the scene of the crime in 1980 had been fired from the same pistol.

On September 13, 1985, the jury found the defendant guilty of first degree murder, and Olson appealed. On May 7, 1986, we granted his "Motion to Remand" to the district court for consideration of a claim of ineffective assistance of trial counsel. The trial court held an evidentiary hearing on June 23, 1986 and found that Olson had not received ineffective assistance. Defendant then filed a motion in this court requesting that we expand the remand to include consideration of a motion for a new trial based on newly discovered evidence; we granted that motion. On October 14, 1986, the trial court denied Olson's motion for a new trial.

Olson now appeals from his conviction and from the denial of his motion for a new trial. He alleges a variety of errors, namely: 1) he received ineffective assistance of trial counsel; 2) the trial court abused its discretion by refusing to order a new trial on the basis of newly discovered evidence; 3) the 1980 indictment should have been dismissed with prejudice; 4) the indictment was insufficient; 5) certain physical evidence was improperly admitted; and 6) the trial court erred by refusing to require the government to produce a statement regarding the purpose of a payment made to a witness' boyfriend. We find no merit in any of these contentions.

II. Ineffective assistance of counsel

a) Standard

Olson's most serious contention, and the one pressed most strenuously at oral argument by his current counsel, is his claim of constitutionally ineffective assistance of trial counsel. After a hearing on this issue, Judge Curran, who had presided over the defendant's trial, found that the defendant had not been denied effective assistance. Judge Curran, applying the two-part standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), found both that the performance of defendant's trial counsel was reasonable and that the alleged errors did not prejudice the defense. Although both of these findings are "mixed questions of law and fact," id. at 698, 104 S.Ct. at 2070, and therefore subject to our independent review, Sullivan v. Fairman, 819 F.2d 1382, 1393 (7th Cir.1987), our own application of the Strickland standard to the facts of this case convinces us that the trial judge's conclusions are correct and that the defendant was not denied effective assistance of counsel.

The Supreme Court in Strickland set forth the strict standard to be applied to claims of ineffective assistance of counsel. A convicted defendant claiming constitutionally ineffective assistance must establish both deficient "performance" and "prejudice" to the defense. In assessing

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the "performance" component, "the proper standard ... is that of reasonably effective assistance." Strickland, 466 U.S. at 698, 104 S.Ct. at 2070. "[T]he defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. at 2064. Moreover, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. at 689, 104 S.Ct. at 2065 (citation omitted). Turning to the "prejudice" component, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693, 104 S.Ct. at 2067. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068. For each of the nine alleged errors made by the defendant's trial counsel in this case, the defendant has failed to establish the existence of either deficient performance or prejudice. We will address each of the alleged errors briefly in turn.

b) Inadequate pre-trial contact

First, Olson claims that his attorney, William Coffey, 3 did not have adequate contact with him prior to trial. At the June 23 hearing before the district court, the defendant testified that Mr. Coffey spoke to him only twice before trial. He also testified, however, that he contacted Mr. Coffey at least once by telephone and that they corresponded by mail. In contrast, Mr. Coffey testified that he met with the defendant three or four times prior to trial, conferred with the defendant by telephone when the defendant called him at his office, and conferred with the defendant's brother, wife, and sister. At any rate, as we have noted previously, "[w]e know of no case establishing a minimum number of meetings between counsel and client prior to trial necessary to prepare an attorney to...

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