Arrowood v. Clusen, 83-1855
| Decision Date | 24 May 1984 |
| Docket Number | No. 83-1855,83-1855 |
| Citation | 732 F.2d 1364 |
| Parties | Patrick ARROWOOD, Petitioner-Appellant, v. Donald CLUSEN, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
William J. Tyroler, Wis. Public Defender, Milwaukee, Wis., for petitioner-appellant.
Stephen W. Kleinmaier, Wis. Dept. of Justice, Madison, Wis., for respondent-appellee.
Before BAUER and FLAUM, Circuit Judges, and SWYGERT, Senior Circuit Judge.
On this appeal from an order denying the appellant's petition for a writ of habeas corpus, the appellant ("petitioner") asserts claims of ineffective assistance of counsel. For the reasons set forth below, we affirm in part and reverse in part.
In a complaint issued on August 14, 1979, the petitioner was charged with first-degree sexual assault (Count 1) and first-degree murder (Count 2). After a preliminary hearing, at which the petitioner was bound over for trial, the petitioner filed a motion to suppress statements that he had given to the police on the morning of the murder. At the suppression hearing, which took place on October 5, 1979, the petitioner presented no evidence. The prosecution produced five witnesses, who testified to the following events.
At approximately 4:45 a.m. on August 13, 1979, police officers Daniel Petersen and James Daly were dispatched to the home of the petitioner in Racine, Wisconsin. The petitioner, who was crying, told the officers that he had overheard several people say that they had killed someone. He further stated that he had seen the body in a nearby park. The officers asked the petitioner to accompany them to the park, where the petitioner directed the officers to the body of a woman lying in a river. After finding the body, Officer Daly asked the petitioner to recount what happened. The petitioner explained that he was in the park at about 2:00 a.m., drinking beer with several men who he did not know, when a woman approached. At that point, according to the petitioner, he passed out. When he awoke, one of the men said that they had "nailed" the woman and that she was dead. The three men then left, and the petitioner found the body as he was looking for his car keys.
Officer Petersen proceeded to inform the petitioner of his Miranda rights, though he explained to the petitioner that he was not in custody or under arrest. The petitioner agreed to talk further about the homicide, and he took the officers to the spot in the park where he had overheard the men discuss the murder. The petitioner then consented to give a statement at the police station. Officer Daly and the petitioner arrived at the police station at about 6:00 a.m.
At 6:11 a.m., police detective Thomas Cooper gave the petitioner the Miranda warnings. After the petitioner signed a waiver of rights form at 6:14 a.m., Detective Cooper interviewed him until 7:15 or 7:30 a.m. During this time, the petitioner repeated the story that he had related to Officer Daly. At about 9:00 a.m., Detective Cooper received new information regarding evidence found at the scene. 1 When confronted with this information, the petitioner suggested that he accompany Detective Cooper and another detective to the scene. The petitioner and the detectives arrived at the park at about 10:00 a.m., and the petitioner showed the detectives where he had been sitting when he passed out. Officer Petersen, who was still at the scene, informed the petitioner that he was not pointing to the spot that he had indicated earlier. The petitioner admitted that he had lied to the police officers earlier in the morning. He then gave a new statement, describing how he and three members of the High Riders motorcycle gang had sexual intercourse with the victim. When she resisted, one of the High Riders struck and killed her.
The detectives then asked the petitioner to come to the police station, where he could view photographs and give a written statement. The petitioner and the detectives returned to the station at about 11:15 a.m., and they had lunch in the patrolmen's lounge. After lunch, at about 12:15 p.m., the petitioner repeated his story about the High Riders, while Detective Cooper prepared an affidavit. Before the affidavit was completed, the detectives received information that cast doubt upon the petitioner's story. 2 When the detectives confronted the petitioner with this information at about 2:00 p.m., the petitioner admitted that no High Riders had been in the park, and he proceeded to give his third account of the events of the evening. He stated that he met the victim at a tavern and took her to the park, where he made sexual advances that she resisted. When she fled, 3 the petitioner chased her and had sexual intercourse with her. Afterward, the petitioner knocked her down and left the area. At this point in the petitioner's narration, Detective Cooper asked rhetorically who could have killed the victim, if the petitioner had not. The petitioner responded by requesting an attorney. No further questions were asked, the petitioner was placed under arrest, and Detective Cooper allowed the petitioner to call his wife and his attorney.
The trial court denied the motion to suppress the petitioner's pretrial statements. At the petitioner's trial, which began on February 26, 1980, Officer Daly and Detective Cooper testified to the events outlined above. In addition, the prosecution produced a witness who, in the early morning of August 13, 1979, saw the victim and the petitioner leave a tavern together. Another witness, an acquaintance of the petitioner who was with him at the tavern, testified that he followed the petitioner's car to the park and observed the petitioner in the company of the victim, who was very intoxicated. After telling the petitioner to take the victim home, the witness left the park when it appeared that the petitioner was helping the victim into his car. Additional prosecution witnesses testified that blood stains on the petitioner's overalls, shirt, and shoes were of the same blood type as the victim's blood; that a rectal swab taken from the victim's body indicated an elevated amount of acid phosphatase, an enzyme that is present in high quantities of semen; that seminal components were present in a stain on the front of the petitioner's jockey shorts; that the victim's hearing aid and the petitioner's car keys were found within three or four feet of each other, near drag marks on the footpath leading to the victim's body; and that the victim died of drowning after she sustained head injuries caused by a beating.
The petitioner took the stand at trial and testified that he met the victim in a tavern and offered her a ride home. He said that they went to the park, walked around for awhile, and were going to have sex. As the victim was undressing, she mentioned the petitioner's wife. The petitioner told her to "knock it off," and when the victim persisted, the petitioner hit her in the face with the back of his hand. Trial Tr. at 697. According to the petitioner, the victim hit him in the face and went for his eyes. He "hit her some more," and she fell to the ground. Id. at 698. After throwing the victim's clothes in the bushes, the petitioner ran to his car. The victim got up and began running along the footpath, toward the petitioner's car. The petitioner further testified that when he reached his car, he discovered that he had lost his car keys. He was unsuccessful in his attempts to start the car with a screwdriver, and he returned along the footpath with a flashlight, looking for his keys. While searching for the keys, he found the victim in the river and attempted to pull her out. When he could not, he ran home and told his wife that he found the body.
The jury returned verdicts of guilty on both counts, and the petitioner was sentenced to life imprisonment plus thirty years. In post-trial motions, the petitioner alleged that he had been deprived of effective assistance of counsel. After a post-conviction hearing, the trial court denied the motions. The Wisconsin Court of Appeals affirmed the convictions. The Wisconsin Supreme Court granted discretionary review, but it later ruled that such review was improvidently granted. The petitioner then filed a petition for a writ of habeas corpus in federal district court. That petition was denied. In appealing this denial, the petitioner claims that his trial counsel was ineffective in several respects. First, the defense counsel failed to present the petitioner's wife and sister as witnesses at the pretrial suppression hearing. Second, the defense counsel exposed the petitioner to damaging prosecutorial comments about his pretrial exercise of the right to counsel. Third, the defense counsel failed to request jury instructions regarding the trustworthiness of pretrial statements. Fourth, the defense counsel failed to elicit testimony from the petitioner at trial in support of the defense theory that the petitioner's pretrial statements were untrustworthy. Fifth, the defense counsel failed to investigate and present as a witness at trial the petitioner's sister, who possessed relevant information pertaining to the trustworthiness of the petitioner's pretrial statements.
As a threshold matter, the respondent contends that the petitioner's claims regarding the defense counsel's failure to present witnesses at the suppression hearing and his failure to elicit testimony from the petitioner at trial are not properly before us. The Wisconsin Court of Appeals found that the record was insufficient to reach these claims because the defense counsel was never asked, at the post-conviction hearing, to provide reasons for the allegedly incompetent omissions. According to the respondent, the petitioner's failure to comply with state procedural rules regarding the conduct of the post-conviction hearing precludes the petitioner from arguing these...
To continue reading
Request your trial
-
Wallace v. Duckworth
...be given the opportunity to decide an issue; it is not necessary that the court explicitly rule on the issue. See Arrowood v. Clusen, 732 F.2d 1364, 1368 (7th Cir.1984). Thus, if the substance of the petitioner's constitutional claims are raised in his state court brief, the fact that the s......
-
U.S. v. Moya-Gomez
...were decided before Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is misplaced. See Arrowood v. Clusen, 732 F.2d 1364 (7th Cir.1984); Vela v. Estelle, 708 F.2d 954 (5th Cir.1983), cert. denied, 464 U.S. 1053, 104 S.Ct. 736, 79 L.Ed.2d 195 (1984). To begin wi......
-
McKnight v. Bobby
...and that the state court had notice and an opportunity to rule on the expanded federal constitutional claim, citing Arrowood v. Clusen, 732 F.2d 1364, 1367-68 (7th Cir. 1984). Arrowood, however, is distinguishable from McKnight's situation. There, the state court was presented with two clai......
-
Dortch v. O'Leary
...has argued to the state court that those facts constituted a violation of the petitioner's constitutional rights." Arrowood v. Clusen, 732 F.2d 1364, 1368 (7th Cir.1984), quoted in United States ex rel. Patton v. Thieret, 791 F.2d 543, 547 (7th Cir.), cert. denied, 479 U.S. 888, 107 S.Ct. 2......