Lewis v. Alexander

• Decision Date: 17 December 1993
• Docket Number: No. 92-3689,92-3689
• Citation: 11 F.3d 1349
• Parties: Douglas S. LEWIS, Petitioner-Appellant, v. George ALEXANDER, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1349

11 F.3d 1349

Douglas S. LEWIS, Petitioner-Appellant, v. George ALEXANDER, Respondent-Appellee.

No. 92-3689.

United States Court of Appeals Sixth Circuit.

Argued Oct. 4, 1993.

Decided Dec. 17, 1993.

J. Dean Carro (argued and briefed), University of Akron School of Law, Appellate Review Office, Akron, OH, for petitioner-appellant.

John J. Gideon (argued and briefed), Robert L. Solomon, Office of the Atty. Gen. of Ohio, Columbus, OH, for respondent-appellee.

Before: RYAN and SUHRHEINRICH, Circuit Judges; and JOINER, Senior District Judge. ^*

CHARLES W. JOINER, Senior District Judge.

Douglas Lewis appeals the denial of his petition for a writ of habeas corpus, 28 U.S.C. Sec. 2254. Lewis contends that the district court erred in concluding that he was not denied effective assistance of counsel in his 1982 murder trial. We affirm the judgment of the district court.

I.

A.

On the night of July 3, 1982, Lewis hosted a party at which guests shot off fireworks and threw apples at passing cars. Decedent Dana Bohse was a passenger in one of the cars hit by apples. The car stopped, and Bohse bolted out in Lewis' direction. Lewis had been hiding in the bushes, but stepped out and ordered Bohse off the property, warning Bohse that he had a gun. Lewis testified at his criminal trial that Bohse threatened him, and that he became scared and was trying to back away when he slipped and his shotgun went off. Bohse was hit at close range in the groin. He was immediately hospitalized and had surgery, but died eight days later.

Lewis was defended at trial by retained counsel, Walter Porter. Porter advanced the defense of accident, but Lewis was found guilty of murder and was sentenced to a prison term of 15 years to life. He is currently on parole.

B.

Lewis' habeas corpus petition ¹ is based on Porter's decision not to rely on the defense that Bohse's death was caused by intervening gross medical maltreatment. Lewis contends that Porter's rejection of this defense without reasonable investigation deprived him of effective assistance of counsel. He requests this court to reverse the district court's conclusion to the contrary, and remand the case for a determination as to whether he was prejudiced by counsel's failure to advance the defense. The district court conducted an evidentiary hearing on Lewis' petition, and we briefly set forth the evidence submitted.

Porter had substantial prior experience in trying criminal cases, first in the prosecutor's office and then in private practice. Porter was familiar with the defense of lack of causation in murder cases, and had been involved in a case in which the defense was asserted but rejected by the Ohio Court of Appeals. In 1978, the Ohio Supreme Court decided State v. Johnson, 56 Ohio St.2d 35, 381 N.E.2d 637, 640 (1978), stating in pertinent part:

It is the general rule that one who inflicts injury upon another is criminally responsible for that person's death, regardless of whether different or more skillful medical treatment may have saved his life. This rule has been qualified where there has been a gross or willful maltreatment of the patient by the medical personnel, which is shown to have been an independent intervening cause of the patient's death.

(Citations omitted.) While Porter did not review Johnson during his representation of Lewis, he was familiar with the case and the standard for a gross medical maltreatment defense.

Porter obtained and reviewed a copy of the autopsy protocol, but it is not clear whether he personally obtained Bohse's medical records from the hospital. However, the medical records were provided to the coroner's office, and were reviewed by Dr. Donald Schaffer, the deputy coroner who performed Bohse's autopsy. Porter met with Schaffer during his preparation for trial. One of Porter's principal concerns was the autopsy's report that Bohse was 6'4"' tall and weighed 290 pounds, because Porter had been advised that Bohse was 6'2" tall and weighed only 200 pounds. Schaffer explained that the height measurement on the autopsy report was an estimate, but that the weight discrepancy was accurate and reflected that Bohse had been transfused 192 times during the eight days following surgery. Porter asked Schaffer whether there was anything in Bohse's treatment that could have been the cause of death. Schaffer told Porter that his findings at the autopsy and his review of the medical records "did not lead me to believe that his death at all was secondary to treatment but was, in actuality, as a result of the wound he had received." Schaffer told Porter that Bohse survived for eight days because he was a teenager in good health when he was shot, and because of the treating hospital's heroic efforts. Porter did not obtain a second opinion regarding the cause of death because he had known Schaffer professionally for a number of years, was aware of his excellent reputation, and had a high regard for his professional judgment.

Porter also reviewed the color slides taken during the autopsy of Bohse's swollen body and internal injuries. The slides were graphic and potentially inflammatory. Based upon Schaffer's opinion as to the cause of Bohse's death, and to reduce the risk that the autopsy slides would be admitted at trial to the prejudice of his client, Porter elected to not advance the defense that Bohse's death was due to intervening gross medical maltreatment. Porter did not discuss this decision with Lewis.

Extensive testimony was submitted at the evidentiary hearing regarding the medical and surgical care Bohse received. The autopsy's gross anatomic summary reflected sutured lacerations of the left femoral artery and ligated and transected left femoral vein. The summary also noted lacerations of the iliac vein, but that reference was not accompanied by a statement that the lacerations were sutured. Schaffer testified that he would have noted the existence of sutures if they were present, but also stated that the absence of sutures at the time of the autopsy was not conclusive as to whether the vein had been sutured during surgery.

Petitioner's medical expert testified that Bohse's medical records reflected that Bohse had oozed or bled so extensively into his abdominal and peritoneal cavities that reexploration was required. According to petitioner's expert, Bohse's surgeons never controlled his vascular injuries, which led to other problems, including respiratory distress syndrome and renal failure. This expert characterized Bohse's care as gross negligence, and testified that Bohse most likely would have survived if his major vein had been tied, although he might have lost his left leg.

The state's medical expert testified that for the surgeons to have dissected the injured vein would have required opening more wound. The state's expert explained that the absence of small sutures on the vein did not rule out the possibility that the surgeons repaired the vein with large sutures. In this expert's opinion, the surgeons were not grossly negligent, but were in a very tough spot and were fortunate that Bohse survived the surgery.

Lewis' legal expert witness testified that any competent defense attorney would have been alerted to the need for a second opinion on the cause of Bohse's death due to: the fact that the injury occurred in the early morning hours of July 4, when residents rather than seasoned medical professionals were likely to be on duty; the height and weight differentials in the autopsy report; and the unusual circumstance that Bohse lingered for eight days before dying. In addition, the existence of a personal or professional relationship between Schaffer and the treating physicians or hospital would have alerted defense counsel that something could be amiss with Schaffer's assessment of the case. ²

C.

The court found that Porter determined that he could not raise a viable intervening medical maltreatment defense and made a strategic decision not to pursue investigation of that defense, although he did not inform Lewis of that decision. The court concluded as a matter of law that Lewis was not deprived of effective assistance of counsel because Porter made a strategic decision to not rely on the defense, and based that decision upon a correct understanding of the law, both with respect to the elements of a causation defense and the risk of admissibility of the evidence.

The court further noted that Lewis would have to demonstrate prejudice as a result of Porter's failure to rely on the intervening medical maltreatment defense. The court found that Bohse's surgeons should have recognized that they had not controlled Bohse's vascular injuries, and further noted that Bohse's medical records made no reference to the internal iliac vein, indicating that the surgeons either did not explore that area or did not discover the lacerations. While the court found that the treating physicians were negligent, it found the issue of gross negligence more difficult. However, the court stated that it was unnecessary to decide this issue due to Lewis' failure to demonstrate that Porter's performance was not competent.

II.

In Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984), the Court set forth the now familiar two-prong test applicable to claims of ineffective assistance of counsel. A petitioner such as Lewis bears the heavy burden of demonstrating that counsel made an error so serious that he was not functioning as counsel guaranteed by the Sixth Amendment and that this deficient performance prejudiced his defense. In other words, the issue is "whether counsel's performance was so...