Kellogg v. Scurr

• Decision Date: 27 August 1984
• Docket Number: No. 83-2198,83-2198
• Citation: 741 F.2d 1099
• Parties: Francis Vern KELLOGG, Appellant, v. David SCURR, Warden, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1099

741 F.2d 1099

Francis Vern KELLOGG, Appellant, v. David SCURR, Warden, Appellee.

No. 83-2198.

United States Court of Appeals Eighth Circuit.

Submitted April 9, 1984.

Decided Aug. 27, 1984.

Kermit L. Dunahoo, Des Moines, Iowa, for appellant.

Thomas J. Miller, Atty. Gen. of Iowa, Thomas D. McGrane, Asst. Atty. Gen., Des Moines, Iowa, for appellee.

Before LAY, Chief Judge, McMILLIAN and JOHN R. GIBSON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Francis Vern Kellogg appeals from the judgment of the district court ¹ denying his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254 (1982). Kellogg was convicted of second-degree murder in the death of his wife Constance. On appeal, he argues that he was denied effective assistance of counsel as guaranteed by the sixth and fourteenth amendments because his attorney failed to (1) introduce into evidence an alleged suicide note written by his wife; (2) call as a witness the physician who attended to his wife on the night of the shooting; and (3) move to suppress the weapon causing his wife's death. We affirm the denial of the writ.

On the evening of August 22, 1975, Francis and Constance Kellogg were quarreling in the bedroom of their home in Waterloo, Iowa. Constance was shot in the head with Kellogg's pistol and died later that evening. Kellogg has never admitted guilt, and his defense at trial was that his wife committed suicide or that her death was accidental. His conviction, which rested on circumstantial evidence because the two were alone when the shooting occurred, was affirmed on direct appeal. State v. Kellogg, 263 N.W.2d 539 (Iowa 1978). Kellogg then filed an application for post-conviction relief in Iowa state court. The petition was denied by the same judge who presided over the trial and the denial was affirmed on appeal. Kellogg v. State, 288 N.W.2d 561 (Iowa 1980). Kellogg then filed this petition for writ of habeas corpus in the United States District Court for the Southern District of Iowa.

I.

To succeed on a sixth amendment ineffective assistance of counsel claim, a defendant must show that his or her attorney failed to provide reasonably effective assistance which resulted in prejudice to the defense. Strickland v. Washington, --- U.S. ----, ----, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Reasonably effective assistance may be defined as "the skill and diligence that a reasonably competent attorney would exercise under similar circumstances * * *." Thomas v. Lockhart, 738 F.2d 304, 307 (8th Cir.1984). Because "[t]here are countless ways to provide effective assistance in any given case," Strickland, 104 S.Ct. at 2066, and to offset the "distorting effects of hindsight," id. at 2065, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," id. at 2066. See Wallace v. Lockhart, 701 F.2d 719, 726 (8th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 340, 78 L.Ed.2d 308 (1983); Comer v. Parratt, 674 F.2d 734, 736 (8th Cir.), cert. denied, 459 U.S. 856, 103 S.Ct. 125, 74 L.Ed.2d 108 (1982). To establish that an attorney's inadequacy was also prejudicial, a defendant must show that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 104 S.Ct. at 2068.

An ineffective assistance of counsel claim presents a mixed question of law and fact. Eldridge v. Adkins, 665 F.2d 228, 236 n. 5 (8th Cir.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 168 (1982). Therefore, the presumption of correctness accorded the factual determinations of the state court under 28 U.S.C. Sec. 2254(d), and those of the district court under the clearly erroneous standard of Fed.R.Civ.P. 52(a), applies only to the historical facts underlying the attorney's performance but not to the ultimate conclusion as to whether or not effective assistance has been rendered. Thomas, 738 F.2d at 307 n. 3; Strickland, 104 S.Ct. at 2070. Cf. Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1307, 71 L.Ed.2d 480 (1982).

II.

Kellogg first argues that his attorney, James Dunbar, was ineffective because he failed to introduce an alleged suicide note written by his wife. He contends that because his defense was that his wife died accidentally or by suicide, and the note was the only evidence corroborating the suicide theory, Dunbar's omission was both professionally unreasonable and prejudicial. Dunbar testified that he declined to use the note because (1) he estimated that it was written three to four years before Constance's death when she thought she was suffering from terminal cancer and (2) the note portrayed Kellogg as an unloving, uncaring husband, an image he did not want portrayed to the jury. Both state courts and the federal district court concluded that Dunbar's decision not to introduce the note was a tactical decision that was not professionally unreasonable.

The state courts made the following factual determinations in regard to the note. Dunbar was aware of the note prior to trial and had discussed the option of using it with Kellogg. It was found in one of the purses not then used by Constance and was "not unequivocally a 'suicide' note." The note contained matters which tended to put Kellogg in a bad light and the decision not to use it was a tactical one because the harmful effects of offering the note outweighed any possible benefits. ²

The district court also observed, and we agree, that Dunbar's first reason for not introducing the note--that it was written three to four years earlier when Constance thought she had little time to live--was "somewhat implausible" since the note refers to her marriage to Kellogg which occurred only fourteen months before her death. ³ Were this Dunbar's sole reason, we would have a far different case than the one before us. However, his testimony reveals that he also decided against using the note for tactical reasons: [T]he note revealed to me a portrayal of Kellogg as rather insensitive, perhaps unfaithful, non-loving, non-attentive husband, certainly a characterization that I did not want to have presented to this court.

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[I]n my professional judgment, it would have been a serious tactical mistake to allow that material to go to the jury.

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It's exactly the thing we're trying to prevent Kellogg as being portrayed as.

Kellogg argues that all decisions made by trial counsel are tactical in some sense and that "even tactics must stand the scrutiny of common sense * * *." Appellant's Brief at 15. We agree that the label "trial strategy" does not automatically immunize an attorney's performance from sixth amendment challenges. In Eldridge v. Atkins, supra, we determined that counsel's so-called strategic decision not to call certain defense witnesses constituted ineffective assistance because the decision was less strategic than it was the result of inadequate preparation and investigation. As recently stated by the Supreme Court, however, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland, 104 S.Ct. at 2066. In this case, Dunbar discussed with Kellogg the option of using the note. He ultimately determined that the strongest way to present the suicide and accident defenses was to keep out any evidence of Kellogg's propensity or motive to commit violent acts against his wife. He concluded, and both state courts and the federal district court have agreed, that the note presented exactly this type of evidence. Moreover, Dunbar took other action consistent with this strategy. He made a motion in limine to exclude the testimony of some eleven witnesses prepared to attest to Kellogg's temper, possible unfaithfulness and fits of violence against his wife and others. Dunbar's decision represents a reasoned and plausible trial strategy which was not the product of inadequate investigation or preparation. ⁴ To now hold that his choice was professionally unreasonable, a conclusion inevitably influenced by the jury's guilty verdict, would "give[ ] impetus to a form of second guessing which is possible in every case and does not comport with the constitutional standards which require defense counsel to exercise only that skill and diligence possessed by competent counsel under like or similar circumstances." Knott v. Mabry, 671 F.2d 1208, 1214 (8th Cir.1982).

III.

Kellogg next contends that Dunbar rendered ineffective assistance because he failed to present the testimony of Dr. Kyle, the physician attending to Constance in the emergency room on the night she was admitted. In the Admitting History and Examination, Dr. Kyle wrote as follows:

PRESENT SYMPTONS: In Coma from Self inflicted Gunshot Wd. of The head. Pt. has reportedly threatened to shoot herself previously and this time she did about 8 PM Aug 22, 1975 [.] Has been depressed about six wks (Hsb).

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IMPRESSION: Self Inflicted Gunshot wound of the head[.] Prognosis is very poor. Survival impossible[.]

In the Discharge Summary, Kyle stated: "Constance Kellogue [sic] shot herself in the brain about 8:00 p.m. on August 22nd. * * * Impression: Self inflicted gunshot wound of the head."

Dunbar testified that he interviewed Dr. Kyle and a second physician attending to Constance that night. He stated that they recalled only that her death was inevitable, but no other "details of what transpired." On this basis, he decided against calling Kyle as a witness.

Dunbar's decision not to call Dr. Kyle, who admitted to no recollection of the events surrounding that night, was not unreasonable. Maxwell v. Mabry, 672 F.2d 683, 685-86 (8th Cir.1982). At the same time, we recognize that the failure to confront a forgetful witness with previous statements relating to the supposedly forgotten events may, under some circumstances, be a troubling omission. Cf. Harris v. Housewright, ...