Anderson v. Butler, 87-1781

• Citation: 858 F.2d 16
• Decision Date: 22 June 1988
• Docket Number: No. 87-1781,87-1781
• Parties: Bruce ANDERSON, Petitioner, Appellant, v. Norman BUTLER, Respondent, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 16

858 F.2d 16

Bruce ANDERSON, Petitioner, Appellant, v. Norman BUTLER, Respondent, Appellee.

No. 87-1781.

United States Court of Appeals, First Circuit.

June 22, 1988.

Rehearing and Rehearing En Banc Denied June 22, 1988.

Steven Hrones with whom Hrones & Harwood, Boston, Mass., was on brief for petitioner, appellant.

Linda G. Katz, Asst. Atty. Gen., with whom James M. Shannon, Atty. Gen., and Annette C. Benedetto, Asst. Atty. Gen., Criminal Bureau, Boston, Mass., were on brief for respondent, appellee.

Before BREYER, Circuit Judge, ALDRICH, Senior Circuit Judge, and PETTINE, ^* Senior District Judge.

BAILEY ALDRICH, Senior Circuit Judge.

Bruce Anderson, convicted in the Massachusetts superior court of first degree murder of his wife, petitioned for habeas corpus on the single ground of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Failing, he appeals. He had failed previously, on a post-trial motion in the superior court, and, again, in the Supreme Judicial Court. Commonwealth v. Anderson, 398 Mass. 838, 501 N.E.2d 515 (1986).

There is no dispute as to the facts which, understandably, were presented more graphically at the trial than they are summarized by the Massachusetts court.

About 4 a.m. on July 27, 1983, in Worcester the defendant forced his way into the second floor apartment of his estranged wife, who had given birth to their child about six weeks earlier. He discovered a partially clothed man in the bedroom, chased him from the apartment building, but did not catch him. The defendant returned upstairs, with a knife he had taken from the pantry, and pursued his wife to a third floor apartment where she had sought refuge and had telephoned the police. He forced his way in, slashed one occupant of the third floor apartment, and assaulted another. He repeatedly stabbed his wife, while the occupants of the third floor apartment helplessly watched. The police recorded part of the conversation between the defendant and the victim. The defendant left the apartment, but approximately thirty seconds later he returned, stabbed her several more times, and fled. He turned himself into the police later that morning.

(398 Mass. at 839, 501 N.E.2d at 516)

It was open to the jury to find murder in the first degree, or second degree, or manslaughter. On the issue of state of mind--defendant did not plead insanity, and never sought a not guilty verdict--defendant's counsel, in his opening at the close of the Commonwealth's case, told the jury that he would call a psychiatrist and a psychologist, whose testimony would show that defendant was "walking unconsciously toward a psychological no exit.... Without feeling, without any appreciation of what was happening, Bruce Anderson on that night was like a robot programmed on destruction." This statement was based upon reports from the doctors in question in counsel's possession, and the doctors were available. Nonetheless, the day after his opening, counsel rested his case on the basis of lay witnesses only, without calling the doctors. A verdict of murder in the first degree followed.

On this appeal from the denial of the writ, the Commonwealth, pointing to the subsequent history, notes that defendant is here with three called strikes on him. If we accept the analogy, was the ball dropped, so that defendant can run on the third strike? We consider this in terms of the prior courts' failure, in appraising the possible effects of the doctors' proposed testimony and the failure to introduce it, to include in the mix the effect on the jury of counsel's not putting the doctors on the stand after he had said he would do so. Perhaps more exactly, we consider the totality of the opening and the failure to follow through.

Two members of this panel have long held the opinion that little is more damaging than to fail to produce important evidence that had been promised in an opening. This would seem particularly so here when the opening was only the day before, and the jurors had been asked on the voir dire as to their acceptance of psychiatric testimony. The promise was dramatic, and the indicated testimony strikingly significant. The first thing that the ultimately disappointed jurors would believe, in the absence of some other explanation, would be that the doctors were unwilling, viz., unable, to live up to their billing. This they would not forget.

Counsel was acutely conscious of his noncompliance, as it was the first subject of his summation. Here his fluency was more marked than his substance. ¹ Consequently, the jurors' conclusion would remain that impartial experts--the most qualified witnesses--would not testify as counsel had said they would; in effect a contradiction of the favorable lay witnesses, much worse than if he had not mentioned the doctors initially. Or, if counsel's explanation was to be taken to mean, "I promised you a lot of medical mumbo jumbo," this would scarcely help matters.

The approach taken by the three prior courts was to review the doctors' reports and point out why, considering the possible disadvantages by way of collateral facts that might be brought out in their testimony as against the advantage from their opinions, it was not unreasonable not to call them. Although there were variances in their analyses, all had one thing in common: in making this weighing of the pros and cons of calling the doctors the serious consequences of the failure to comply with the opening promise was not included, but was treated only separately, as an afterthought. Thus the superior court, after discussing the beneficial aspects of the doctors' reports as against the possible harmful disclosures, concluded, "Viewed in retrospect, after a first degree conviction, it might be easy to say that the criteria for an ineffective assistance of counsel case are present. However, after a pragmatic consideration of the realities of criminal practice, I do not find that counsel's strategy was 'manifestly unreasonable.' " Only after this did the court add,

I do feel that it would have been preferable had counsel refrained from referring to prepared psychiatric testimony. But, I understand that in the trial of a serious case a lawyer prefers to keep his options open. I do not see great harm to the client.

Thus the failure to comply with the opening was not only regarded as an independent matter, it was disposed of simply as of no "great harm," and not to be charged against counsel because it was reasonable for him "to keep his options open." This much is clear: it was not necessary to mention the doctors in the opening in order to preserve the right to call them. There is no principle, or requirement, that one must name all one's witnesses, (as distinguished from announcing an insanity defense) in the opening; indeed, some defendants' lawyers choose not to open at all. One keeps options open by keeping silent. Counsel "preserved" nothing but a potential embarrassment in case he changed his mind, with no offsetting benefit.

On appeal, the Supreme Judicial Court differed somewhat from the superior court in its reasoning, but agreed that there were both advantages and disadvantages in the doctors' reports. After a review of the reports the Court stated,

The risk of the disclosure of negative information in those reports was substantial if the experts had testified. Defense counsel had a tactical choice to make: whether to present an expert opinion that might raise a reasonable doubt on premeditation and extreme atrocity and cruelty at the risk of the disclosure of unfavorable information that would reflect adversely on the defendant and make less likely a sympathetic manslaughter verdict.

* * *

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The decision not to present the expert testimony was a tactical one that was not "manifestly unreasonable" when made.

Then, like the superior court, the court added,

Defense counsel might have been better advised not to have announced that he was going to present expert testimony, but his explanation to the jury as to why he changed his mind.... has a plausible ring to it.

The district court, though not bound by the conclusions reached by the two state courts, Strickland, 466 U.S. at 698, 104 S.Ct. at 2070, followed the same pattern. We note, in passing, that it considered that the doctors' opinions would have helped the chances of both murder 2 and manslaughter defenses, while the Supreme Judicial Court felt only the former. For ourselves, we might have no quarrel with counsel's decision to call, or not to call, as a strategic decision, had that matter stood alone (although our own decision would have been to call), but counsel's choice was not made in that parameter. The choice was made in the posture of the jurors having heard, only the day before, that a psychiatrist and a psychologist would testify that defendant was "[w]ithout feeling, without any appreciation of what was happening ... like a robot programmed on destruction," and now they would not do so--surely a speaking silence. We cannot accept the approach that we should consider each matter separately--weighing counsel's choice on the second day as if there had been no opening. There was thrown into the scales the heavy inference the jurors would draw from the non-appearance of the doctors. In those circumstances it was a very bad decision, or, if it was still wise because of the damaging collateral evidence, it was inexcusable to have given the matter so little thought at the outset as to have made the opening promise.

We are not bound by the trial court's opinion that this was not a "great harm." It went to the vitals of defendant's defense, and no juror, obviously offended by defendant's conduct, would ignore it. Indeed, it directly bore on the only extenuation. Nor can we accept the conclusion that the opening was a "strategic choice," or a "plausible option;" there could be nothing to gain. Counsel did not even...