Griffin v. McVicar, 95-2330

• Decision Date: 23 September 1996
• Docket Number: No. 95-2330,95-2330
• Citation: 84 F.3d 880
• Parties: Lee O. GRIFFIN, Petitioner-Appellee, v. Richard D. McVICAR, Warden, Shawnee Correctional Center, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 880

84 F.3d 880

Lee O. GRIFFIN, Petitioner-Appellee, v. Richard D. McVICAR, Warden, Shawnee Correctional Center Respondent-Appellant.

No. 95-2330.

United States Court of Appeals Seventh Circuit.

Argued Jan. 12, 1996.

Decided May 21, 1996.

As Amended on Denial of Rehearing and Rehearing En Banc

Sept. 23, 1996.

Arden J. Lang (argued), Charles M. Schiedel, Office of the State Appellate Defender, Springfield, IL, for Petitioner-Appellee.

Arleen C. Anderson (argued), Office of the Attorney General, Chicago, IL, for Defendant-Appellant.

Before POSNER, Chief Judge, and CUDAHY and FLAUM, Circuit Judges.

CUDAHY, Circuit Judge.

Respondent, Warden McVicar, appeals the grant of petitioner Lee Griffin's habeas corpus petition. The district court granted the writ of habeas corpus on grounds of ineffective assistance of counsel due to an actual conflict of interest inhering in the joint representation of Griffin and a co-defendant, Jimmy Lee Smith, by Marvin Goldenhersh in a 1981 murder trial. We affirm.

I. Introduction

Lee Griffin and Jimmy Lee Smith were convicted in June 1981 of the shooting murder of Charles Sims, Christi Smith and Ronald Walker and of the serious wounding of Charles Kellick. The shootings occurred on February 5, 1981, in the apartment which Smith and Walker shared. Three men were identified by witnesses as having been involved in the shootings--Lee Griffin, Jimmy Lee Smith and Will Hudson, who apparently was never apprehended. Griffin was initially represented by attorney Ralph Derango. He told Derango that, though he had walked in during the shooting episode, he had not been involved in the shootings but was merely an innocent bystander who had, in fact, tried to stop the shooting. On this basis, Derango approached police officer L.C. Moore and attempted to negotiate a deal for Griffin in exchange for his testimony against Smith. Derango's overtures were apparently not well-received by the State and, perhaps for that reason, Griffin's family retained Marvin Goldenhersh in Derango's place approximately three weeks after Griffin's arrest. The state court opinions in this case indicate that Mr. Goldenhersh was already representing Jimmy Smith at that time. ¹ People v. Griffin, 124 Ill.App.3d 169, 79 Ill.Dec. 509, 511 463 N.E.2d 1063, 1065 (5 Dist.1984); People v. Griffin, 109 Ill.2d 293, 93 Ill.Dec. 774, 777, 487 N.E.2d 599, 602 (1985).

Mr. Goldenhersh moved to sever the trials of the two defendants on grounds that Jimmy Smith's extensive criminal record might prejudice Griffin and that either defendant might have made admissions which could prove damaging to the other. ² In arguing the motion Mr. Goldenhersh specifically cited examples of admissions made by Griffin. The motion to sever was denied.

The potential for conflict of interest in the joint representation of Griffin and Jimmy Smith was raised at least twice prior to trial, although not by Mr. Goldenhersh. When questioned by the judge prior to trial, Mr. Goldenhersh asserted that there was no conflict in his joint representation. Then, during the hearing of motions just prior to trial, the State, apparently concerned about the potential for reversal on appeal, raised the issue of potential conflicts:

Mr. Hamilton [State's Attorney]: The second question which I think we should deal with is whether these defenses, these defendants' defenses will become, if they are not now, antagonistic to each other at some point in the trial. Now Mr. Goldenhersh has represented both of these defendants for some time. He has access to the Discovery provided by the State's Attorney's Office. He has talked with both of these defendants, and I don't think he should be permitted to just juggle strategic weapons, if [sic] I'm not trying to suggest that there is anything improper into his continued representation of both defendants, but if he now knows that such a conflict may develop, perhaps there is a question of whether he can continue to represent both the parties....

Trial Tr. at 12.

Neither Mr. Goldenhersh nor the trial judge responded to this point and the case proceeded to trial without further inquiry into the matter.

II. The Trial

A. The Evidence

The eyewitness testimony, taken as a whole, established that three men, other than the victims, were in the apartment during the period in which the shootings occurred. Christi Smith was already in the apartment with one of these men when Sims and Kellick, who had come by to visit Christi and were outside the apartment, heard her crying. When she did not answer the door, they went in to investigate. Velma Robinson, who had come with Sims and Kellick, remained outside in Kellick's truck while they went in. Velma saw two more men get out of a red and white Cadillac and enter the apartment after Sims and Kellick had gone in.

When Sims and Kellick entered the apartment looking for her, Christi Smith was in the bathroom with one of the other three men. The two men whom Robinson had seen enter came up behind Sims and Kellick. At this point, Sims was shot by the man in the bathroom, according to Kellick. Kellick turned to run and he was shot twice--once in the back of the head and once in the face after he fell. At some point after the three men left, Kellick managed to crawl out of the apartment and hide in a basement or crawl space under the stairs.

Next, Robinson saw the same two men she had observed entering leave the apartment and drive away. A few minutes later Walker returned home and went into the building. Shortly after that, the two men in the Cadillac returned, got out of the car and went into the building as well. Robinson heard another shot, at which time she drove away in search of police. Though Walker was shot five times, he managed to make his way to a nearby convenience store where he spoke to several police officers. He died shortly thereafter, having been taken by ambulance to a hospital.

The key issues at trial were the identification of the three men and of the role each had played. Smith was identified as a shooter by the testimony of Kellick and of three witnesses who testified as to the dying declarations of Walker. Kellick testified that Jimmy Smith shot him in the face and kicked him after he was felled by a shot from behind as he tried to run away. Three witnesses testified to having heard Walker's dying declarations in the convenience store. Police officer Settles, state trooper Rice and store manager David Winchester each testified that he heard Walker say that Jimmy Smith shot his girlfriend (Christi Smith).

While this testimony consistently implicated Smith, there were significant contradictions in the testimony implicating Griffin in the shootings. Kellick testified that Griffin was the first man in the apartment and was in the bathroom with Christi Smith when Kellick arrived. Thus, Kellick testified, it was Griffin who shot Sims. Kellick did not identify Griffin immediately, however. He was hospitalized after the shootings due to his serious injuries. A police officer testified that at the hospital in the hours just after the shootings Kellick told him that he didn't know who had done the shooting. Tr. at 337. Kellick testified that he did not remember talking to police during the first few days after the incident. Kellick later identified Griffin from a videotaped lineup several days after the shooting. He testified that he recognized Griffin from having seen him on two prior occasions.

Robinson, in direct contradiction of Kellick's testimony, identified Griffin as one of the two men who emerged from the red and white Cadillac (later shown to be Griffin's) and entered the apartment after Sims and Kellick.

Police officer Settles testified that Walker said that "Lee" shot him. State trooper Darrell Rice, however, testified that Walker said that Lee's friend shot him. Winchester had not heard Walker say who had shot him.

In sum, while Kellick's unrefuted testimony identified Jimmy Smith as his assailant and all three witnesses to Walker's dying declaration reported his identifying Jimmy Smith as Christi Smith's assailant, only two witnesses, Kellick and Settles, gave testimony suggesting that Griffin had shot anyone. The testimony of each of these latter two witnesses was directly contradicted by other testimony. Thus, the identification evidence against Jimmy Smith was much stronger than the evidence against Griffin.

B. The Theory of Defense

At trial, Griffin and Smith were both represented by Mr. Goldenhersh. The two defendants presented a joint alibi defense, consisting of Griffin's testimony that he and Smith had been at a local tavern playing cards at the time of the murders. The alibi was supported to some extent by the testimony of a witness, Priscilla Smith, ³ that she had loaned Griffin five dollars and danced with him at the tavern. Priscilla Smith placed the defendants at the tavern between 4:30 and 5:00 p.m. and again at sometime after 6 p.m. and said that she did not see them there after about 6:30 p.m. The shootings apparently took place sometime between 5 p.m. and 6:30 p.m., when Walker showed up at the convenience store.

The alibi story was presented through Griffin's and Priscilla Smith's testimony. However, Mr. Goldenhersh's major trial strategy was apparently to discredit the eyewitness identifications of Griffin and Jimmy Smith. Indeed, Mr. Goldenhersh did not even mention the alibi in either his opening or closing argument. Mr. Goldenhersh's efforts to discredit the eyewitness testimony were organized around a theory that the shootings were linked to the drug-related killing of Griffin's brother, which had occurred just a few weeks earlier. ⁴ In his opening statement, for example, Mr. Goldenhersh said that the evidence would show that Sims and Kellick "after killing the brother of Griffin, ... then have set up and plotted, plainly set up and plotted to make his brother, Lee Griffin, and Jimmy Smith the scapegoats of this dope-related...