Crisp v. Duckworth

• Decision Date: 14 September 1984
• Docket Number: No. 83-1368,83-1368
• Citation: 743 F.2d 580
• Parties: Michael CRISP, Petitioner-Appellant, v. Jack R. DUCKWORTH, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 580

743 F.2d 580

Michael CRISP, Petitioner-Appellant, v. Jack R. DUCKWORTH, Warden, Respondent-Appellee.

No. 83-1368.

United States Court of Appeals Seventh Circuit.

Argued April 3, 1984.

Decided Sept. 14, 1984.

J. Richard Kiefer, Indianapolis, Ind., for petitioner-appellant.

Kermit R. Hilles, Deputy Atty. Gen., Indianapolis, Ind., for respondent-appellee.

Before WOOD, and FLAUM, Circuit Judges, and GIBSON, Senior Circuit Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

Michael Crisp appeals the district court's denial of his petition for a writ of habeas corpus. Crisp argues that he was denied effective assistance of counsel at his state court first degree murder trial due to the allegedly incompetent acts and omissions of his attorney, Jack Quirk. Although this is a close and difficult case, under the strict standards set forth in Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we affirm. ¹

I

The story behind this petition started when defendant-appellant Michael Crisp met Patti Elder. That was about two years before the incident that led to his conviction for first degree murder. Crisp and Elder dated and then lived together, but eventually their relationship deteriorated and Crisp moved out. Elder refused Crisp's requests to move back in, but Crisp did occasionally come and spend the night. On one of these occasions Crisp held a knife to Elder's throat and told her, "It's either going to be you or me tonight." Crisp then gave her five minutes to get a gun and shoot him. When Elder told Crisp that she did not have a gun, he offered her his knife, but nothing further came of the incident.

On a Sunday morning three days later, after an unsuccessful attempt to commit suicide, Crisp drove to Elder's house, but parked four blocks away, allegedly because his car overheated. Crisp entered the house through the back door, and when he discovered that no one was home, he went to sleep in one of the bedrooms. Elder returned and saw that the back door had been opened. She feared Crisp was there, and so she drove to a friend's house for help. Elder got John Joslin, Barbara Joslin, and Timothy Brackman to return with her to her house. Brackman entered through the back door, while John Joslin, who had a double-barrelled shotgun, entered through the front. At some point Crisp and Joslin met and exchanged gunfire. Crisp was unharmed, but Joslin died at the scene. Brackman then jumped on Crisp and, as the two struggled, Crisp stabbed Brackman with a knife. Crisp also stabbed Barbara Joslin in the leg as she fled from the scene.

Crisp went immediately to a Catholic priest, Father Wieber, who had been counseling him about his difficulties with Elder. Thirty minutes after the shooting Crisp went with the priest to the sheriff and surrendered. A jury eventually convicted him of first degree murder, and the Indiana courts upheld the conviction. Crisp now claims that this conviction resulted from incompetent trial counsel.

II

Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), established a two-prong test for determining whether a conviction must be set aside due to ineffective assistance of counsel. The defendant must show that his attorney's representation "fell below an objective standard of reasonableness," id. 104 S.Ct. at 2065, and that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 2068.

The multiplicity of allegedly incompetent acts and omissions Crisp claims his attorney, Jack Quirk, committed fall into three categories: inadequate investigation and trial preparation; errors committed during the course of the trial; and conflicts of interest. Though we examine each example of incompetence individually, we must also consider their cumulative effect in light of the totality of circumstances. Strickland, 104 S.Ct. at 2069; United States v. Brown, 739 F.2d 1136 at 1145 (7th Cir.1984). On one hand, this means that an attorney's individual errors may not, looking at the trial as a whole, cast doubt on the reliability of the result, and therefore would not merit reversal. On the other hand, even if individual acts or omissions are not so grievous as to merit a finding of incompetence or of prejudice from incompetence, their cumulative effect may be substantial enough to meet the Strickland test. See United States v. Merritt, 528 F.2d 650, 651 (7th Cir.1976) (per curiam); United States v. Hammonds, 425 F.2d 597, 604 (D.C.Cir.1970). Looking at the alleged errors as a whole, we agree that Crisp has overcome the presumption that his trial counsel provided reasonable professional assistance, Strickland, 104 S.Ct. at 2065; United States v. Weston, 708 F.2d 302, 306 (7th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 397, 78 L.Ed.2d 340 (1984), and has established that counsel was in fact incompetent. But, looking at the trial as a whole, we do not believe that his "counsel's conduct so undermined the proper functioning of the adversarial process that the trial court cannot be relied on as having produced a just result." Strickland, 104 S.Ct. at 2064.

III

A. Claims of Inadequate Investigation and Trial Preparation.

Crisp alleges that Quirk did not adequately prepare his case because he failed to interview the three witnesses to the killing, his interviews with defense witnesses were limited to a few minutes the day each witness took the stand, he failed to interview or call the neighbor Patti Elder went to immediately upon her discovery that Crisp was in her house, he failed to interview or call any of the persons Crisp said could corroborate his story that his car frequently overheats, he failed to interview Father Wieber, he failed to visit the scene of the crime, and he failed to adequately prepare Crisp to testify.

Effective representation hinges on adequate investigation and pre-trial preparation. See United States ex rel. Spencer v. Warden, Pontiac Correctional Center, 545 F.2d 21, 24-25 (7th Cir.1976) (as corrected) (mere appearance of in-court effectiveness cannot compensate for inadequate pre-trial preparation). Quirk testified at a post-trial hearing on the competency of his representation that he generally knows without investigating what information he wants to put before the jury. We find this an amazing statement. Investigation may help an attorney develop or even discover a defense, locate witnesses, or unveil impeachment evidence. Though there may be unusual cases when an attorney can make a rational decision that investigation is unnecessary, as a general rule an attorney must investigate a case in order to provide minimally competent professional representation. See United States v. Tucker, 716 F.2d 576, 581-83 & nn. 16 & 18 (9th Cir.1983) (as corrected); Davis v. Alabama, 596 F.2d 1214, 1217 (5th Cir.1979), vacated as moot, 446 U.S. 903, 100 S.Ct. 1827, 64 L.Ed.2d 256 (1980); Morrow v. Parratt, 574 F.2d 411, 413 (8th Cir.1978); United States v. DeCoster, 487 F.2d 1197, 1204 (D.C.Cir.1973); United States ex rel. Cosey v. Wolff, 562 F.Supp. 140, 144 (N.D.Ill.1983), aff'd, 727 F.2d 656, 658 (7th Cir.1984). ²

Considering the above list of avenues Quirk neglected to pursue, it would be difficult to conclude that he thoroughly investigated and prepared this case. Under the circumstances, however, this lack of zealous pre-trial preparation does not appear to have prejudiced the outcome of the proceeding.

Crisp first complains about Quirk's failure to interview Joslin, Elder, and Brackman, key prosecution witnesses and the only persons present during the shooting. Quirk explained that he had Joslin's, Elder's, and Brackman's police statements and a transcript of Brackman's testimony at a preliminary hearing, and therefore did not need to interview them. We do not agree that police statements can generally serve as an adequate substitute for a personal interview. See United States v. Tucker, 716 F.2d at 583 & n. 17; United States v. DeCoster, 487 F.2d at 1204 ("a defense attorney ... should interview not only his own witnesses but also those that the government intends to call"). Quirk also explained that he did not interview the prosecution witnesses so that they would be nervous during cross-examination. This "is an absurd and dangerous policy which can only be viewed as an abdication--not an exercise--of ... professional judgment." McQueen v. Swenson, 498 F.2d 207, 216 (8th Cir.1974). Though we conclude that it would have been prudent for Quirk to interview Joslin, Elder, and Brackman, Crisp has not demonstrated that conducting personal interviews would have yielded different testimony or cross-examination in this particular case, and therefore has not shown any prejudice.

Similarly, it would have been prudent for Quirk to interview the defense witnesses prior to the day they testified. Quirk said that he relied on Crisp's representation as to what their testimony would be and therefore did not need to interview them. As a general practice, it would have been wiser to interview the witnesses, see United States v. Tucker, 716 F.2d at 583 n. 17, 584 & n. 21; McQueen v. Swenson, 498 F.2d at 216 (an attorney should do more investigation than merely interviewing the defendant), but Crisp has again made no showing that the witnesses' testimony would have been any different in this case if they had been interviewed earlier and more thoroughly prepared.

The other claims of inadequate investigation and preparation are a bit more problematic since Crisp explains why they might be prejudicial, but even considering their potential cumulative effect, we do not believe they sufficiently undermine confidence in the outcome of the trial to warrant habeas relief. First, Crisp claims that Quirk's failure to interview or call Elder's neighbor was prejudicial because the neighbor would have testified that Elder visited her before going to get the...