Griffin v. Delo

• Decision Date: 21 November 1994
• Docket Number: No. 90-2377,90-2377
• Citation: 33 F.3d 895
• Parties: Larry GRIFFIN, Appellant, v. Paul DELO, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 895

33 F.3d 895

Larry GRIFFIN, Appellant, v. Paul DELO, Appellee.

No. 90-2377.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 25, 1993.

Decided Aug. 23, 1994.

Rehearing and Suggestion for

Rehearing En Banc Denied Nov. 21, 1994. ^*

Daniel J. Gralike, Clayton, MO, argued, for appellant.

Appellant is currently represented by Kent E. Gipson, Kansas City, MO.

Frank Jung, Asst. Atty. Gen., Jefferson City, MO, argued, for appellee.

Before BEAM, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and URBOM, ^** Senior District Judge.

URBOM, Senior District Judge.

Larry Griffin appeals a final order entered in the United States District Court for the Eastern District of Missouri denying his second, third, and fourth amended petitions for a writ of habeas corpus under 28 U.S.C. Sec. 2254. ¹ In support of reversal Griffin argues that he was denied effective assistance of counsel, is actually innocent, and that a pretrial photo identification was tainted by suggestive police misconduct, thereby depriving him of his constitutional due process rights. For the reasons discussed below, we affirm the orders of the district court denying habeas relief and dismissing with prejudice the petitioner's second, third, and fourth amended petitions.

I. PROCEDURAL HISTORY

On April 14, 1992, we remanded this federal habeas corpus action to the district court for further proceedings consistent with our opinion. We retained jurisdiction over the action and directed the district court to certify a final consideration of the matter. Upon remand, the petitioner filed a second amended petition and later filed a motion to assert a claim based on newly discovered evidence of actual innocence. In July 1993, the district court dismissed the second amended petition with prejudice and granted the petitioner leave to file a third amended petition to assert the claim of actual innocence. On September 16, 1993, the district court granted the petitioner's motion to file a fourth amended petition to assert a claim that his due process rights were violated by suggestive photo identification procedures employed by the St. Louis Police Department.

On October 6, 1993, the district court conducted an evidentiary hearing on the petitioner's third and fourth amended petitions. Later on October 25, 1993, the district court certified its final consideration of this habeas action and entered judgment dismissing Griffin's claim of actual innocence without prejudice and his due process claim with prejudice. However, the district court had dismissed the actual innocence claim without considering its merits based on factual findings from the evidentiary hearing. We, therefore, vacated the judgment of the district court entered on October 25, 1993, and directed the district court to complete factual findings on the evidence and merits of petitioner's claim of actual innocence.

On April 25, 1994, the district court certified its final consideration of this habeas action and entered judgment dismissing with prejudice the petitioner's second, third, and fourth amended petition for habeas corpus relief. We now review the merits of the appeal.

II. SECOND AMENDED PETITION

On April 14, 1992, we remanded this habeas action to the district court with directions that the petitioner be permitted to file a second amended petition. Griffin v. Delo, 961 F.2d 793, 794 (8th Cir.1992). Without reaching the merits of the claims, we found that counsel may not have recognized and presented issues of constitutional significance during the petitioner's post-conviction and habeas proceedings. Id. Considering the severity of the sentence, we believed that it was the most prudent course to allow the petitioner a reasonable opportunity to raise additional claims of constitutional error for consideration by the district court. On July 7, 1993, the district court issued its memorandum and order on the petitioner's second amended habeas petition. We now review the findings of the district court.

In his second amended petition for writ of habeas corpus, Griffin raises fourteen claims for relief. Numerous claims allege violations of his Sixth Amendment right to effective assistance of counsel. In addition to allegations of Sixth Amendment violations, Griffin asserts violations of his Fourteenth Amendment right to due process. Griffin further claims that his Eighth Amendment right to be free from cruel and unusual punishment, as well as his Fourteenth Amendment right to due process, were violated by an instruction in the penalty phase of his trial. Lastly, Griffin claims that his Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated by the prosecutor's closing arguments in both the penalty and guilt phases of his trial.

A. Ineffective Assistance of Counsel

To prevail on an ineffective-assistance-of-counsel claim the United States Supreme Court has ruled that a petitioner must establish that his attorney failed to exercise the skill and diligence that a reasonably competent attorney would exercise under similar circumstances and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). The petitioner has the burden of establishing that counsel's conduct fell below an objective standard of reasonableness. Wing v. Sargent, 940 F.2d 1189, 1191 (8th Cir.1991). The petitioner must also affirmatively establish prejudice resulting from the attorney's conduct. Lawrence v. Armontrout, 961 F.2d 113, 115 (8th Cir.1992).

Trial counsel's failure to investigate the defendant's alibi defense did not cause the omission of affirmative evidence that would have exculpated Griffin. Nor is there any evidence of prejudice before the court such that the result of the trial would have been different. We agree with the district court's factual finding that the record reflects substantial evidence on which to find Griffin guilty of first-degree murder. We find no merit in the argument.

We also agree with the district court that there is no merit in the petitioner's claim that his trial attorney was ineffective in failing to discover that Robert Fitzgerald was placed in the Federal Witness Protection Program and relocated to St. Louis, Missouri, near the time Moss was murdered. The trial record clearly establishes that Griffin's counsel knew of Fitzgerald's participation in the program prior to trial. See Transcript of April 10, 1981, deposition of Robert John Fitzgerald at pp. 26-27. Therefore, trial counsel's conduct was not defective and the petitioner's due process claim under the Fourteenth Amendment is without merit.

Next, we review petitioner's claim that his trial counsel was ineffective because he did not present evidence at trial that Griffin is left-handed. The trial court found that evidence of Griffin's left-handedness would not have persuasively discredited Fitzgerald's testimony, because he admitted that he assumed that the gun was in the petitioner's right hand, but that he could not "say for certain" or "say positively." (emphasis added). Undercutting the right-handedness of the petitioner would have nominal, if any, effect of Fitzgerald's credibility. Moreover, Fitzgerald positively identified Griffin's features, clothes, and the vehicle in which he was riding. We agree with the trial court that even if trial counsel's conduct was deficient in failing to present evidence of Griffin's left-handedness, the prejudice prong of Strickland test has not been met.

The petitioner also contends that trial counsel failed to investigate and present evidence to rebut the prosecution's theory that Griffin had a motive to kill Moss. The prosecution advanced the theory that the petitioner believed that Moss had killed his older brother, Dennis Griffin, in January 1980. We support the district court's finding that the petitioner has not satisfied the second prejudice prong of the Strickland test. If the other-motive evidence had been admitted at trial, we cannot say that the outcome of the trial would have been different in light of the eyewitness testimony and other substantial incriminating evidence.

Griffin further alleges that his trial attorney was ineffective in failing to object to the testimony of police officer Thomas Murphy and for failing to call Robert Campbell as a witness. During his oral testimony officer Murphy told the court what Campbell had told him at the scene of the murder. Griffin argued that the hearsay admission violated his Sixth Amendment right to confront his witnesses. The respondent argued that Campbell's statements were offered by Murphy to explain the course of police conduct at the murder scene, not to prove that Griffin shot Campbell. The respondent also argued that Campbell was available and could have been called by Griffin as a witness. On appeal the Missouri Supreme Court ruled that Campbell's statements delivered through Murphy's testimony were admissible as spontaneous statements or excited utterances. State v. Griffin, 662 S.W.2d 854, 858 (Mo.1983), cert. denied, 469 U.S. 873, 105 S.Ct. 224, 83 L.Ed.2d 153 (1984). Unavailability of the declarant is not a prerequisite to satisfying the Confrontation Clause where the out-of-court statement was a spontaneous declaration. White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992). A spontaneous declaration is a "firmly rooted" exception to the hearsay rule and thus carries sufficient indicia of reliability to satisfy the Confrontation Clause's reliability requirement. Id. 502 U.S. at ---- n. 8, 112 S.Ct. at 742 n. 8. There was no violation of Griffin's Sixth Amendment right to confrontation.

The district court, reviewing the findings of the Missouri Court of Appeals on post-conviction, found no merit in Griffin's ineffective-assistance-of-counsel claim focusing on the failure to call Campbell...