Martin v. Norris

• Decision Date: 25 April 1996
• Docket Number: No. 95-3141,95-3141
• Citation: 82 F.3d 211
• Parties: John Douglas MARTIN, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 211

82 F.3d 211

John Douglas MARTIN, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.

No. 95-3141.

United States Court of Appeals,

Eighth Circuit.

Submitted March 13, 1996.

Decided April 25, 1996.

Appeal from the United States District Court for the Eastern District of Arkansas. Honorable Stephen M. Reasoner, Judge.

Walter Craig Lambert, Little Rock, AR, argued, for appellant.

Vada Berger, Little Rock, AR, argued (Teena L. White and Winston Bryant, Atty. Gen., on the brief), for appellee.

Before MORRIS SHEPPARD ARNOLD, FLOYD R. GIBSON, and HEANEY, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

In 1992, a jury convicted John Martin in Arkansas state court of kidnapping and first-degree murder. On direct appeal, he argued that there was insufficient corroboration under Arkansas law of the testimony of his alleged accomplice, see Ark.Code Ann. § 16-89-111(e)(1), and therefore that the evidence was insufficient under Arkansas law to sustain his convictions. He also argued that the state trial court improperly refused to instruct the jury on the lesser included offense of second-degree murder.

The state appeals court held that Mr. Martin's trial lawyer had failed to make an adequately specific motion for a directed verdict at the close of the evidence, see Ark. R.Crim. P. 36.21(b), and therefore that Mr. Martin had waived the issue of the sufficiency of the evidence. See Martin v. State, 46 Ark.App. 276, 879 S.W.2d 470, 472 (1994). The state appeals court also held that because Mr. Martin's defense was that he was not even in Arkansas at the time of the crime, there was no rational basis for allowing a jury instruction on second-degree murder. See id., 879 S.W.2d at 472-73. The state appeals court subsequently denied Mr. Martin's petition for rehearing. See Martin v. State, 46 Ark.App. 276, 883 S.W.2d 854 (1994) (en banc ).

In late 1994, Mr. Martin filed in federal district court for habeas corpus relief under 28 U.S.C. § 2254(a). In his habeas petition, Mr. Martin alleged, first, that his state trial lawyer was ineffective to a constitutionally significant degree in failing to move specifically enough for a directed verdict at the close of the evidence and, second, that the trial court denied him due process by refusing to instruct the jury on second-degree murder.

A magistrate recommended that Mr. Martin's petition be denied. With respect to the issue of ineffective assistance of counsel, the magistrate assumed that Mr. Martin's trial lawyer's performance was not objectively reasonable under Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). The magistrate noted, however, that the state trial court denied the motion for a directed verdict that Mr. Martin's lawyer made when the state rested (before the defense presented its only witness) and concluded from that action that no matter how Mr. Martin's lawyer might have phrased his motion for a directed verdict at the close of the evidence, the state trial court would have denied that motion.

The magistrate then went on to discuss the sufficiency of the corroborating evidence and concluded that if the state appeals court had considered the legal issue of sufficiency, that court would have upheld the trial court's denial of the motion for a directed verdict. The magistrate reasoned, therefore, that Mr. Martin suffered no prejudice from his trial lawyer's action. See id. at 692, 104 S.Ct. at 2067. In other words, the magistrate believed that there was no "reasonable probability" that if Mr. Martin's trial lawyer had made a proper motion at the close of the evidence, "the result of the proceeding would have been different"--i.e., that the state appeals court would have reversed the trial court and dismissed the case as legally insufficient. Id. at 694, 104 S.Ct. at 2068. With respect to the jury instruction on second-degree murder, the magistrate concluded that the state trial court's refusal to give that instruction was not such a deprivation as to amount to a violation of due process.

The district court reviewed the record de novo and adopted the report and recommendation of the magistrate. The district court also held, independently, that the motion for a directed verdict that Mr. Martin's lawyer made at the close of the evidence was adequate under Arkansas law and that Mr. Martin's trial lawyer's performance was, therefore, objectively reasonable. See id. at 687-88, 104 S.Ct. at 2064-65. Mr. Martin appeals. We affirm the judgment of the district court. ¹

I.

For the purposes of this opinion, we assume, without holding, that Mr. Martin's lawyer failed to preserve properly the issue of the sufficiency of the evidence against Mr. Martin. We further assume, without holding, that that failure was not objectively reasonable under Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). We turn, then, to the question of whether that failure was so serious that "there is a reasonable probability that, but for counsel's unprofessional error[ ], the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. In other words, we consider whether there is a reasonable probability that the state appeals court would have reversed the state trial court's denial of Mr. Martin's lawyer's motion for a directed verdict if the state appeals court had evaluated the sufficiency of the evidence as a legal matter.

Under Arkansas law, a person may not be convicted of a felony solely on the basis of the testimony of an accomplice. See Ark.Code Ann. § 16-89-111(e)(1). There must be "other evidence tending to connect the defendant with the commission of the offense." Id. The corroborating evidence "must connect the accused with the crime and be independent of the evidence given by the accomplice.... The test for determining the sufficiency of the corroborating evidence is whether, if the accomplice's testimony were eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission." Sanders v. State, 310 Ark. 510, 838 S.W.2d 359, 360 (1992). The corroborating evidence must be "stronger evidence than that which merely raises a suspicion of guilt.... However, it is something less than that evidence necessary[,] in and of itself, to sustain a conviction." Henderson v. State, 279 Ark. 435, 652 S.W.2d 16, 19-20 (1983). When an accomplice's testimony "is corroborated as to particular material facts, the factfinder can infer [that] the accomplice spoke the truth as to all." Franklin v. State, 311 Ark. 601, 845 S.W.2d 525, 529 (1993). With these principles in mind, we recount the testimony of Mr. Martin's alleged accomplice and the corroboration provided for that testimony.

II.

The alleged accomplice was Mr. Martin's nephew, Adell Henry. According to Mr. Henry's testimony, he and Mr. Martin drove Mr. Martin's gold Cadillac from Lawton, Oklahoma, where they lived in the same house, to Little Rock, Arkansas, on October 11, 1991. The trip was Mr. Martin's idea. They arrived late (around 11:00 p.m. or midnight), "rode around town," and then went to a convenience store, where Mr. Henry called a former girlfriend. They went to the former girlfriend's home about two hours after they arrived in Little Rock. Mr. Henry went inside and stayed until shortly before 7:00 a.m; Mr. Martin remained in the car (although he had family who lived only 10 blocks away). In corroboration, Mr. Henry's former girlfriend testified that he called her in Little Rock on October 12, 1991, around 2:30 a.m., came over shortly thereafter, and stayed till about 6:00 a.m.

According to Mr. Henry, after he returned to the car that morning, Mr. Martin drove to the college where his wife, Felicia Martin, from whom he was estranged, worked. His wife drove into the college parking lot at approximately the same time. Mr. Martin parked and went over to talk to Mrs. Martin in her car. After a short time, Mrs. Martin went inside the building where she worked but then came out and talked again with Mr. Martin. Both walked over to the gold Cadillac, where Mr. Henry was waiting in the front seat. Mr. and Mrs. Martin talked momentarily by the back door on the passenger's side. Mr. Martin then opened that door, pushed Mrs. Martin into the car, and told Mr. Henry to drive off.

In corroboration, a co-worker of Mrs. Martin's testified that he arrived at the college on October 12, 1991, about 7:05 a.m. He saw Mrs. Martin clock in about 7:10 a.m. Shortly afterward, he saw Mrs. Martin sitting in her car with a black man who "looked large." He also saw a gold Cadillac nearby and identified a picture of Mr. Martin's car as the one he saw. He later saw Mrs. Martin standing by the gold Cadillac. The next time he looked, both Mrs. Martin and the gold Cadillac were gone, although her car remained in the parking lot. He stated that Mrs. Martin was wearing glasses that morning and left a coin purse and a cup of coffee at her workplace.

Also in corroboration, Mrs. Martin's great-aunt testified that one of Mrs. Martin's co-workers called her about 9:00 a.m. on October 12, 1991, to say that Mrs. Martin was missing. The great-aunt stated that Mrs. Martin always wore glasses and "said she couldn't see without them." The great-aunt identified a pair of glasses as those belonging to Mrs. Martin. A man who worked in the housekeeping department at the college identified those glasses as the ones he found between 9:00 a.m. and 10:00 a.m. on October 12, 1991, near a curb behind Mrs. Martin's workplace.

According to Mr. Henry, Mrs. Martin "was trying to get up [in the car], and [Mr. Martin] was laying on top of her." A few blocks later, Mr. Henry heard Mrs. Martin "gasping for air" and "choking." Mr. Henry further stated that Mr. Martin subsequently told him to pull over; Mr. Martin began driving; Mr. Henry heard nothing more from the...