Blackmon v. White

• Decision Date: 07 August 1987
• Docket Number: No. 87-1133,87-1133
• Parties: O'Dell BLACKMON, Appellant, v. Carl WHITE, Superintendent, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1263

825 F.2d 1263

O'Dell BLACKMON, Appellant, v. Carl WHITE, Superintendent, Appellee.

No. 87-1133.

United States Court of Appeals Eighth Circuit.

Submitted July 29, 1987.

Decided Aug. 7, 1987.

Robert O. Appelton, Jr., Clayton, Mo., for appellant.

Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before ARNOLD, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

ARNOLD, Circuit Judge.

O'Dell Blackmon, a Missouri inmate, is serving sentences of life and 35 years for the crimes of first-degree felony murder and assault with intent to kill, respectively. His case comes to us on appeal of the District Court's ¹ denial of his petition for a writ of habeas corpus. We affirm.

Blackmon was convicted in 1977 of causing the death of an accomplice during the armed robbery of an office of the Beneficial Finance Company in St. Louis. There was evidence from which the jury could have found that the accomplice was mortally wounded in an exchange of gunfire between Blackmon and an off-duty policeman who was resisting the robbery. The jury rejected Blackmon's alibi. On direct appeal the Missouri Court of Appeals affirmed, 587 S.W.2d 292 (1979). His petition for post-conviction relief was denied, 639 S.W.2d 127 (Mo.App.1982).

Blackmon's original petition for habeas corpus was filed in 1983. He claimed that his attorney had rendered ineffective assistance on appeal by not raising as error the trial court's failure to instruct the jury as to manslaughter. The District Court granted the writ on the ground that Blackmon had been entitled under Missouri law to an instruction on the lesser offense of manslaughter and that the trial court's failure to give that instruction, even though not requested, constituted a denial of due process. On appeal, this court reversed, Blackman v. White, 767 F.2d 929 (8th Cir.1985) (per curiam) and directed the District Court upon remand to address the question actually raised in Blackmon's petition, i.e., whether his attorney on appeal had been ineffective in failing to raise the instructional issue. On December 23, 1986, the District Court denied the writ, holding that counsel had not been ineffective.

A criminal defendant is entitled to the effective assistance of counsel during his appeal, just as at trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), sets out the standard by which attorney effectiveness at trial is to be judged. We have applied the same standard to questions of attorney effectiveness on appeal. Bell v. Lockhart, 795 F.2d 655, 657 & n. 6 (8th Cir.1986). The Strickland test requires first a determination whether the attorney's performance was deficient when compared with the assistance which would have been given by any reasonably competent attorney faced with the same circumstances. In making this judgment, the courts must resist the temptation to second-guess a lawyer's trial strategy; the lawyer makes choices based on the law as it appears at the time, the facts as disclosed in the proceedings to that point, and his best judgment as to the attitudes and sympathies of judge and jury. The fact that the choice made later proves to have been unsound does not require a finding of ineffectiveness. The petitioner bears the burden of successfully challenging particular acts and omissions of his attorney which were not the result of reasonable professional judgment; it is not enough to complain after the fact that he lost, when in fact the strategy at trial may have been reasonable in the face of an unfavorable case. See Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.

Even if the criminal defendant demonstrates that his lawyer's performance at trial or on appeal fell below a reasonable standard of competence, he must also show a reasonable probability that the lawyer's insufficiency made a difference in the outcome of the proceedings. He must show at least "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." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

At Blackmon's trial, the state presented evidence from which the jury could have concluded that Blackmon and an accomplice entered the office of the Beneficial Finance Company and announced a robbery. Blackmon was armed with a .32 caliber pistol; his accomplice was unarmed. An employee of the company was present, as was a customer who happened to be an off-duty policeman. The policeman drew his .38 caliber service pistol and challenged the accomplice, who struggled with him for control of the gun. While the two were wrestling on the floor, Blackmon is alleged to have fired several shots into the melee. The policeman returned fire. The policeman was gravely wounded but survived. Both robbers fled. Shortly, pursuing police found the accomplice, mortally wounded. He had suffered a single gunshot wound in the back which was shown to have been caused by a bullet of smaller caliber than those fired by the policeman.

Blackmon's defense was alibi; he denied being present at the Beneficial Finance Company on that day. There was no evidence suggesting that the killing was other than an adjunct to the robbery. There was no suggestion of lawful provocation or accident. At the conclusion of the testimony, the jury was instructed on first-degree (felony) murder. The state suggested to the court that a complete statement of the law would also include instructions on lesser degrees of homicide. The defendant did not request instructions on lesser degrees. The court declined to instruct down, and no objection was made by the defendant. The jury returned a verdict of conviction on felony murder, armed robbery, malicious assault, and a persistent offender violation. ²

Significantly, Blackmon does not find fault with his attorney's strategy at trial. He relied on the defense of alibi. All the evidence pointed towards a criminal episode in which the homicide was tied in with the robbery and the assault on the policeman. Suggesting to the jury that Blackmon had committed only a manslaughter, rather than first-degree murder, would have placed him at the scene. Since robbery and malicious assault carried potential life sentences, reduction of the homicide charge would be a poor compromise under those circumstances. Further, since first-degree murder was defined as any life-taking which occurred in the course of certain felonies (regardless of mental state), a jury initially inclined to convict only of manslaughter would be logically drawn back to conviction on the felony-murder charge instead. Cf. State v. Olds, 603 S.W.2d 501, 508-09 (Mo.1980).

Having decided not to request a manslaughter instruction, a choice which was reasonable in view of the overall strategy of the case, Blackmon's counsel could be heard on direct appeal on the instructional issue only if the trial court's failure to give the manslaughter instruction sua sponte was plain error. In Missouri, an instructional error is reviewable as plain error only if the jury was so misdirected by the faulty instructions that manifest injustice resulted. State v. Guyton, 635 S.W.2d 353, 357 (Mo.App.1982). Such a determination is to be made upon a consideration of the facts and circumstances of each case. State v. Tilley, 569 S.W.2d 346, 349 (Mo.App.1978). If, under the Missouri law as it stood at the time of Blackmon's direct appeal, the Missouri appellate courts would have viewed this instructional error as so egregious as to warrant reversal even though it was raised for the first time on appeal, then Blackmon has suffered prejudice which satisfies the reasonable-probability standard of Strickland, for he has lost the opportunity for a new trial at which he could possibly have been acquitted or have received a lesser sentence. In order to prevail here, however, he would also have to show that a reasonably competent lawyer would have known in 1977 that the instructional issue was reviewable as plain error. If, on the other hand, Missouri would not have reviewed this issue as plain error, then he has lost nothing by his attorney's failure to raise the issue.

At the time of Blackmon's trial, Missouri law placed on the trial court the duty of instructing the jury on all lesser grades of homicide, whether requested to do so or not. State v. Smith, 518 S.W.2d 665, 668-69 (Mo.App.1975). This procedure was mandated by the Missouri Approved Instructions for Criminal Trials (MAI--CR), which are promulgated by the Missouri Supreme Court. MAI--CR is procedural in nature, since the Supreme Court does not have the power to alter substantive law by court rule. However, some of the changes in the MAI were the result of changes in substantive law, particularly in the definition of voluntary manslaughter.

Prior to 1975, instructions on manslaughter were to be given only if there was sufficient evidence from which the jury could acquit on the greater offense and convict on manslaughter (the normal rule on submission of lesser offenses). This practice was in line with the understanding that manslaughter differs from second-degree murder only by the presence of lawful provocation. A presumption that an intentional killing is second-degree murder was followed in Missouri. Under that rule, the state could demonstrate that the intentional killing was deliberated upon, thereby proving first-degree (conventional) murder, or it could be demonstrated that there had been a sudden provocation which vitiated the malice necessary for conviction on second-degree murder. The homicide would then be manslaughter in its voluntary form. See State v. Williams, 442 S.W.2d 61, 64 (Mo.1969). At that time a manslaughter instruction would rarely be given in a felony-murder case. This was because in most felony-murder cases there is no evidence to...