Aldrich v. Wainwright

• Decision Date: 19 November 1985
• Docket Number: No. 84-5523,84-5523
• Citation: 777 F.2d 630
• Parties: Levis Leon ALDRICH, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 630

777 F.2d 630

Levis Leon ALDRICH, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.

No. 84-5523.

United States Court of Appeals Eleventh Circuit.

Nov. 19, 1985.

Richard H. Burr, II, Craig S. Barnard, Asst. Federal Public Defenders, West Palm Beach, Fla., for petitioner-appellant.

Joy Shearer, Asst. Atty. Gen., West Palm Beach, Fla., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before RONEY, FAY and JOHNSON, Circuit Judges.

RONEY, Circuit Judge:

Levis Leon Aldrich was convicted of first degree murder in Florida and sentenced to death. In this appeal from the denial of his federal habeas corpus petition, he raises three claims: (1) that he received ineffective assistance of counsel at his trial; (2) that the trial judge erred by not instructing the jury on second degree felony murder; and (3) that the trial judge excluded doubt about Aldrich's guilt as a nonstatutory mitigating factor at Aldrich's capital sentencing hearing. We affirm.

Since the three-day trial in January 1975, in which the jury found Aldrich guilty of murder in connection with an armed burglary, his conviction and death sentence, in which the court followed the jury's recommendation, have been subject to much litigation in the state courts. ¹

In June 1983, Aldrich filed his first federal habeas corpus petition. Although many grounds for relief were asserted, all have apparently dropped by the way except the three issues asserted by able and experienced counsel on this appeal. ²

I. INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL

The ineffective assistance of counsel claim turns essentially on whether this Court should reverse the decision of the state courts and the federal district court that the failure to take discovery depositions and to properly investigate the case prior to trial did not work to the defendant's substantial disadvantage.

Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant alleging ineffective assistance of counsel must establish two components: that his attorney's performance was deficient and that the deficient performance The state post-conviction court found after a full evidentiary hearing that counsel's failure to investigate or depose the State's key witnesses was a substantial and serious deficiency measurably below that of competent counsel. The Florida Supreme Court stated:

                was prejudicial to the defense.  Id. at ----, 104 S.Ct. at 2064-65, 80 L.Ed.2d at 693;  see also King v. Strickland, 748 F.2d 1462, 1463 (11th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 2020, 85 L.Ed.2d 301 (1985).  Failure to establish either prong of the Washington standard will result in denial of defendant's Sixth Amendment claim.   Washington, 466 U.S. at ----, 104 S.Ct. at 2069-70, 80 L.Ed.2d at 699-700.  Although a district court's findings of fact are subject to the clearly erroneous rule, "both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact."    Id. at ----, 104 S.Ct. at 2070, 80 L.Ed.2d at 700
                

The trial judge found that appointed counsel's failure to take formal depositions under the criminal rules was a substantial and serious deficiency. Although we agree that the failure to take depositions requires an inquiry, it does not necessarily follow that this conduct in itself necessitates a finding of ineffective assistance of counsel or prejudice to appellant.

Aldridge v. State, 425 So.2d 1132, 1136 (Fla.1982) (per curiam), cert. denied, 461 U.S. 939, 103 S.Ct. 2111, 77 L.Ed.2d 315 (1983). Without denying the finding that the conduct of counsel was wanting, the court went on to affirm the trial court on the ground there was no showing of the required prejudice. The federal district court, after reviewing the state record, stated:

It cannot be questioned that appointed counsel's failure to adequately prepare Petitioner's case by taking oral depositions of the State's main witnesses, most notably witnesses Strickland and Sapp, resulted in representation at trial not reasonably likely to render effective assistance.

Although the State continues to argue that Aldrich has failed to meet this first prong of the Washington test, the record fully supports the findings of the other courts in this regard. At the evidentiary hearing conducted in the state post-conviction proceedings, Aldrich presented the testimony of three attorneys who had worked on his case: Bruce Wilkinson, Willie Gary, and Elton Schwarz. At the time of Aldrich's trial all three were working at the Public Defender's office for the Nineteenth Judicial Circuit.

Their testimony established that public defenders Wilkinson and another lawyer were assigned to represent Aldrich shortly after his September 9, 1974 arrest. Within the next two weeks, the attorneys and an investigator contacted a clerk at the hotel where Aldrich had been staying, the record keeper at the community work release center, and Jo Ann DeSamarais, a bar owner and potential alibi witness. In late October Aldrich, dissatisfied with the progress of the investigation, demanded new counsel. The court arranged for Elton Schwarz, the head Public Defender, to represent Aldrich.

Burdened by numerous other cases and administrative duties, Schwarz assigned the actual preparation of the case to Willie Gary, a legal intern in the Public Defender's office who did not become licensed to practice law until December 20, 1974. Gary, functioning as an assistant to Schwarz, also had a heavy workload. He spent time familiarizing himself with the case file, and he also went with an investigator to talk to Jo Ann DeSamarais at her bar.

Schwarz tried another capital case in December 1974, and only turned to devote attention to Aldrich's upcoming capital murder trial a week or two before it was scheduled to commence on January 6, 1975. Four days before the trial, Schwarz moved for a continuance. A hearing was held on the motion on the morning of January 6. Schwarz represented to the court that he was unprepared for trial, that he had just After the hearing, the court denied the continuance on the ground there had already been ample time for preparation. The court did not make any finding that the case actually had been properly prepared. That same day, the three-day trial began.

completed another capital case, that no depositions of the State's witnesses had been taken, that no one from the Public Defender's office had examined the State's physical exhibits, and that he needed an additional 30 days to conduct depositions and otherwise prepare the case. Later, Schwarz testified at the post-conviction hearing that he fully expected to get the continuance as it was the first his office had requested in the case, and the trial judge in the past had been sympathetic to the workload of the Public Defender's office. Schwarz relied on the fact that in his previous experience no capital case had gone to trial in less than four months, and several other capital cases were set prior to Aldrich's. In reliance on his expectation that the continuance would be granted, Schwarz had set depositions of the State's witnesses for the following week. Defense counsel testified they were "caught sleeping" by the denial of the continuance.

At the 1981 post-conviction hearing, Schwarz testified unequivocally that he was "totally unprepared" to try Aldrich's case. Schwarz stressed that during the period immediately before Aldrich's trial, the Public Defender's office was carrying the heaviest caseload it had ever had, including numerous other capital cases. Schwarz said he never recalled "going to trial even on a misdemeanor case in the state of readiness we were in at that time." If ever again forced to go to trial in similar circumstances, Schwarz said he would either seek to withdraw as counsel or, if not allowed to withdraw, "stand mute."

Schwarz, Gary, and Wilkinson, as well as an expert witness, all testified that depositions were essential to the preparation of a capital murder case and that the failure to take depositions constituted a serious deficiency in the preparation of Aldrich's defense. There was no indication that the failure to depose any of the State's witnesses was a strategic decision on the part of the defense. See Washington, 466 U.S. at ----, 104 S.Ct. at 2066, 80 L.Ed.2d at 695; Mitchell v. Kemp, 762 F.2d 886, 889-90 (11th Cir.1985) (holding incomplete investigation of potential mitigating witnesses a strategic choice by defense counsel); Green v. Zant, 738 F.2d 1529, 1536 (11th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 827, 83 L.Ed.2d 716 (1984) (defense counsel's strategic decision to "forego an extensive investigation into petitioner's background" held not ineffective).

The State argues that the real basis of this claim is the denial of the continuance, and it contends that any such challenge is barred by procedural default. The denial of a continuance was not asserted as an issue on district appeal. The basis of the ineffective assistance claim, however, is the failure to take depositions and to investigate, not the failure to obtain a continuance. The finding that the attorney's performance was deficient and that Aldrich thus met the first prong of Washington must be accepted by this Court.

The question, then, is whether Aldrich has shown the prejudice that is required to obtain relief for ineffective assistance of counsel. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." 466 U.S. at ----, 104 S.Ct. at 2067, 80 L.Ed.2d at 696. Aldrich 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....