Chambers v. Armontrout

• Citation: 885 F.2d 1318
• Decision Date: 08 November 1989
• Docket Number: No. 88-2383,88-2383
• Parties: James W. CHAMBERS, Appellant, v. Bill ARMONTROUT, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1318

885 F.2d 1318

James W. CHAMBERS, Appellant, v. Bill ARMONTROUT, Appellee.

No. 88-2383.

United States Court of Appeals,

Eighth Circuit.

Submitted March 16, 1989.

Decided Sept. 15, 1989.

Order on Grant of Rehearing En Banc Nov. 8, 1989.

Thomas R. Schlesinger, Chesterfield, Mo., for appellant.

Patrick L. King, Jefferson City, Mo., for appellee.

Before JOHN R. GIBSON, Circuit Judge, and FLOYD R. GIBSON and HEANEY, Senior Circuit Judges.

HEANEY, Senior Circuit Judge.

James Chambers appeals his conviction and death sentence for the capital murder of Jerry Lee Oestricker. We reverse because Chambers received ineffective assistance of counsel when his counsel for his second trial failed to interview or to call a witness who would have testified that Chambers acted in self-defense.

I. BACKGROUND

In December of 1982, James Chambers was tried for the murder of Jerry Lee Oestricker in the Circuit Court of Jefferson County, Missouri. At this trial, two eyewitnesses gave conflicting versions of the events immediately preceding the moment that Chambers shot and killed Oestricker outside a bar in Arnold, Missouri.

The government's eyewitness, Fred Ieppert, testified that he saw Chambers first strike Oestricker with a pistol, knocking Oestricker to the ground. Ieppert testified that he then saw Oestricker stand up with his hands in the air, Chambers point the pistol at Oestricker and Chambers fire a single shot into Oestricker's chest.

James Jones, the other eyewitness, had left the bar several minutes before the shooting but had to wait in his car in the bar's parking lot because his engine was flooded. He testified at the first trial to the following: (1) the smaller man (Chambers) came out the bar door first, walked about half the distance of a truck and stood facing the bar door; (2) the bigger man (Oestricker) followed; (3) the two men argued; (4) Oestricker went towards Chambers and struck Chambers in the face, knocking Chambers to the ground; and (5) Chambers stood up and shot Oestricker.

At the first trial, Chambers' attorney requested submission of a self-defense instruction to the jury. The trial court refused, but the court did instruct the jury in the lesser charges of murder in the first and second degree, as well as capital murder. The jury found Chambers guilty of capital murder and sentenced him to death.

On appeal, the Missouri Supreme Court reversed the conviction. State v. Chambers, 671 S.W.2d 781 (Mo. banc 1984) (Chambers I ). It held that there was sufficient evidence to justify an instruction on self-defense, pointing specifically to Jones' testimony that Oestricker struck Chambers in the face. Id. at 783. The court held that a jury could reasonably conclude that Oestricker was the initial aggressor and that Chambers may have shot Oestricker because Chambers feared great bodily harm. Id.

Chambers was retried in Jefferson County. His newly appointed counsel for the second trial was Donald W. Hager, a public defender. Hager neither interviewed Jones before trial nor called him to testify on behalf of Chambers. At the conclusion of evidence, Hager requested a self-defense instruction. As with the first trial, the trial court refused. Moreover, Hager was not permitted to argue self-defense in his closing argument. The second trial also resulted in a conviction for capital murder and a sentence of death.

With the assistance of yet another attorney, Chambers again appealed to the Missouri Supreme Court. This time, however, the court affirmed the conviction and death sentence. State v. Chambers, 714 S.W.2d 527 (Mo. banc 1986) (Chambers II ) (Donnelly, J. and Welliver, J., dissenting).

On November 12, 1986, Chambers filed a motion in the Circuit Court of Jefferson County under Missouri Rule 27.26. A hearing on this motion was held on February 3, 1987. The issues raised at this hearing included whether Chambers received ineffective assistance of counsel at his second trial because Hager failed to interview or call Jones at trial. At this hearing, Jones gave a similar account of the incident to the account that he had given at Chambers' first trial. Jones also testified that neither Hager nor anyone else from the public defenders' office had contacted him since the first trial.

Hager also testified at the Rule 27.26 hearing. He conceded that Jones was not contacted by him or anyone else in the public defenders' office. Hager stated that he did not interview or call Jones at trial because he felt that Jones' testimony at the first trial contained aspects which were very damaging to Chambers. Hager testified that Jones would testify that Chambers stepped outside first, stopped, turned, and waited for Oestricker, concealing a pistol against his leg, that Chambers pistol-whipped Oestricker and shouted, "Lay there and die," that Oestricker was six feet away and not moving towards Chambers at the time of the shooting, and that Chambers left the scene in a car that was facing the road with its engine running.

Chambers' Rule 27.26 motion was denied by the Circuit Court of Jefferson County. His appeal of that ruling was denied by the Missouri Court of Appeals, and his application for transfer to the Missouri Supreme Court was denied.

Chambers next filed a petition for a writ of habeas corpus in federal court. On habeas, Chambers alleged, inter alia, that he was denied effective assistance of counsel at the second trial because Hager failed to interview or call Jones at trial. The district court held that Hager's performance was above that of a reasonable attorney. In specific reference to Hager's decision not to interview or call Jones at trial, the court concluded that this decision was reasonable because of the damaging aspects of Jones' testimony during the first trial, Jones was not a credible witness, and Chambers signed a pretrial statement in which he agreed with Hager's decision not to call Jones at trial.

Chambers appeals the district court's decision to this Court. On appeal, he raises only one issue that merits our attention: Did Hager's decision not to interview or to call Jones at trial deny Chambers effective assistance of counsel? ¹

II. DISCUSSION

Under the standards for analyzing a claim of ineffective assistance of counsel, enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Chambers must show that Hager's performance was deficient and that it prejudiced Chambers' defense. Id. at 687, 104 S.Ct. at 2064. Counsel's performance is deficient if the performance is less than that provided by reasonable counsel under the same circumstances. Id.

Chambers alleges that Hager's decision not to interview or call Jones at trial was unreasonable for three reasons. First, Hager's testimony, confirmed by the facts of the case, indicates that there was only one defense on which Chambers could rely. From this, Chambers asserts that Hager's failure to investigate Jones or to call him at trial left Chambers with no defense to capital murder. Second, the seriousness of the charges against Chambers must be considered in assessing the reasonableness of Hager's decision. Finally, an interview with Jones would have given Hager an opportunity either to confirm or to clarify the problems he saw in Jones' testimony at the first trial and to be more effective in his cross-examination of the government witnesses.

We are guided in our determination of whether Hager was reasonable in deciding not to interview or call Jones at trial by the Supreme Court's decision in Strickland.

[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

Id. at 690-91, 104 S.Ct. at 2066.

The question before us is whether Hager's less than complete investigation of Jones was reasonable from counsel's perspective at the time that decision was made. In this regard, we must set forth the factual circumstances that a reasonable attorney would have known from the first trial and the likely path the second trial would take.

Chambers has never disputed shooting Oestricker. Chambers has never asserted that he and Oestricker did not argue with each other in the bar. Chambers has never disputed that both he and Oestricker challenged each other to a fight. Chambers did dispute, however, the government's theory that the fight was a ruse on Chambers' part to lure Oestricker outside where he could murder him. Moreover, there was no indication from the state that the testimony at the second trial would significantly differ from the testimony given at the first trial. From this background, reasonable counsel would have anticipated that Chambers' second trial would proceed much like the first trial.

In light of the above facts, we believe that Hager's determination that the negative aspects of Jones' testimony outweighed the positive aspects was unreasonable because the damaging portion of Jones' testimony was either cumulative of earlier testimony given by witnesses for the state or of de minimis effect. ² Several witnesses testified that Chambers left the bar first and waited for Oestricker. James Fowler, a bar patron, testified that, as the defendant left the bar, he pulled out a gun and then concealed it from view with his body as he waited outside for Oestricker. State of Missouri v. Chambers, No. 64709, T. at 505-07 (Chambers I, T.); ³ State of Missouri v. Chambers, No. 67191, T. ...