McQueen v. Swenson
| Decision Date | 04 June 1974 |
| Docket Number | No. 73-1278.,73-1278. |
| Citation | 498 F.2d 207 |
| Parties | Roger Lee McQUEEN, Appellant, v. Harold R. SWENSON, Warden, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Michael Gross, Clayton, Mo., for appellant.
Steven D. Hoyne, Asst. Atty. Gen., Jefferson City, Mo., for appellee.
Before BRIGHT and STEPHENSON, Circuit Judges, and STUART, District Judge.*
Rehearing and Rehearing En Banc Denied July 18, 1974.
Roger Lee McQueen was charged with first-degree murder in the shooting death of one George Francis in the fall of 1963 and was tried in the Circuit Court of the City of St. Louis, Missouri, approximately a year later. On October 2, 1964, McQueen was found guilty of second-degree murder by a jury and subsequently sentenced to life imprisonment. After various appeals and collateral attacks on his conviction in state courts,1 he petitioned for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Missouri. Petitioner contended that his right to effective assistance of counsel—guaranteed to him in his state prosecution by the fourteenth amendment—was violated by his trial counsel's total failure to investigate the facts of the case.
The district court denied the petition without an evidentiary hearing in McQueen v. Swenson, 357 F.Supp. 557 (E.D.Mo.1973), and this appeal followed. We granted a certificate of probable cause, appointed counsel, and heard oral argument in this case because it presents a serious question about the parameters of the constitutional right to effective assistance of counsel. For reasons stated below, we reverse and remand for further proceedings.
A brief background of the testimony adduced at trial is useful. It was undisputed at the original trial and is undisputed in the instant proceedings that petitioner shot and killed a black homosexual, named George Francis, in the latter's apartment in St. Louis, Missouri, on the morning of October 23, 1963. At the original trial, McQueen relied on self-defense as a justification for the homicide, while the state spun a web of circumstantial evidence around him to negate that possibility.
According to the defense theory, McQueen had known the deceased since 1960. When McQueen was released from prison in 1963 after serving time on a narcotics charge, George Francis, who was employed as a librarian, offered to find him work. At the deceased's invitation, McQueen visited Francis' apartment late on the night before the shooting, but, for some reason, on arrival was told to return the next morning. When he did so, according to petitioner's version of the events, he encountered Francis in a drugged and drunken rage. At that point, the deceased—who outweighed McQueen by 60 or 65 pounds—allegedly attacked the petitioner with a long metal shoehorn, threatening some sort of homosexual rape as revenge for McQueen's unintentional precipitation of a quarrel between Francis and the latter's homosexual lover, one Donald Cole. According to McQueen, when the deceased lunged towards him menacingly, McQueen picked up a revolver which had been lying on a nearby dresser top and shot George Francis. Because Francis kept coming towards him, McQueen shot him again, and then once again when neither of the first two shots halted the attack. Thereafter, McQueen asserted, he consumed a large quantity of narcotics which were in the deceased's bedroom, but had only a vague recollection of his subsequent actions during the next few days.
Other than the petitioner, there was no one alive at the time of trial who saw the actual shooting. McQueen alone testified for the defense, but the state— through a parade of 26 witnesses—attempted to establish five propositions which seemed to destroy petitioner's self-defense theory. These propositions and the proof from which they were extrapolated are as follows:
1) McQueen brought the murder weapon with him to the deceased's apartment. The revolver was undisputedly the property of one Mary Zoeller. At the trial she stated that she did not know the deceased, but had met the petitioner through her brother, Dr. Conrad Zoeller. She testified that she kept the pistol under the front seat of her car, that she had vaguely mentioned the existence of the pistol to McQueen, and that she discovered it missing several days after the shooting. As corroboration for the theory that McQueen stole the pistol and brought it with him to the deceased's apartment, the state introduced two shirts belonging to Mary Zoeller's brother—one of which was found in Francis' apartment and the other in McQueen's possession when he was apprehended. Dr. Zoeller testified that his sister took his shirts to the laundry regularly and that these shirts must have been taken from her car.2
2) McQueen went to the deceased's apartment for the purpose of robbing him. Various members of the deceased's family testified that Francis owned an expensive, diamond-encrusted wrist-watch, which he took great pride in and which was seen in his possession prior to his death. Other witnesses testified that they observed the petitioner wearing such a watch on October 23, 24, and 25, 1963.3 McQueen admitted the theft, but claimed that the theft was unpremeditated and occurred almost as a reflex action after the shooting.
3) The shoehorn allegedly used by Francis to attack McQueen never existed. Several police officers who had investigated the scene at the deceased's apartment testified that in searching the area they found no such shoehorn.
4) McQueen revealed a consciousness of his guilt by fleeing the state. Testimony was introduced that, around midnight on October 24, petitioner approached a motorist named James Fisk at a roadside cafe in Independence, Kentucky, and brandished a revolver, ordering Fisk to drive him towards Louisville. The car was stopped at a roadblock near Covington, Kentucky, and, after attempting to force a county patrol officer to accompany him, petitioner was disarmed and taken into custody.
5) McQueen's self-defense theory was concocted long after the murder was committed. Police officers, who interrogated McQueen after his apprehension, testified that, in response to the question, "Were you ever in the presence of George Francis?", McQueen answered: "Not to the best of my knowledge." The officers also testified that in response to the question, "Did you shoot George Francis?", McQueen denied it, saying, "Not to the best of my knowledge."4
Based upon this circumstantial evidence, the jury found McQueen guilty of second-degree murder.5
In 1969, an evidentiary hearing was held in connection with McQueen's Rule 27.26 motion in state court, collaterally attacking his conviction on the ground that he had been denied effective assistance of counsel at trial. The testimony at the hearing showed that, approximately two months after his apprehension, McQueen was confined in the Jefferson County jail in Hillsboro, Missouri, where a separate first-degree murder charge was pending.6 At that time, a Jefferson County magistrate appointed an attorney from Kirkwood, Missouri, Hale W. Brown, to represent McQueen in the Hillsboro case. Shortly thereafter, Brown apparently volunteered to act as McQueen's attorney in the St. Louis case as well, but he was not officially appointed to that case until September 24, 1964, four days before the trial.
There is some dispute as to how many visits Brown made to the Jefferson County jail to confer with McQueen and how much time he devoted to the case. According to McQueen, Brown visited him only twice during the period he was confined in Hillsboro between December 1963 and June 1964. According to McQueen, none of the conferences in Hillsboro related to the St. Louis case in any significant way. Some factual corroboration for this contention was offered by a fellow prisoner whose cell was next door to McQueen's. The witness, who was in the Hillsboro jail between March and July 1964, testified that he saw Brown only once during that period, that he could hear everything that was said, that the conference was only about the Hillsboro case, and that it lasted only 15 minutes.
McQueen testified further that Brown did not visit him at all, during the entire time in which he was confined in the St. Louis City Jail, between June 1964 and the time of the St. Louis trial in late September, and that it was not until the actual trial that McQueen was able to discuss the death of George Francis with his attorney. McQueen asserts that, at that time, he attempted to persuade Brown to investigate Dr. Zoeller whose sister owned the murder weapon and who, according to McQueen, knew the deceased and was himself a homosexual.7
Brown's testimony, on the other hand, emphasized that he visited Jefferson County approximately 37 or 38 times and talked to the petitioner in the county jail about seven times and in the city jail about one or two times. Brown estimated, however, that he spent about four-fifths of all that time working on the Hillsboro case which he expected to come to trial first. In answer to questions probing the manner in which he investigated the St. Louis case, Brown replied as follows:
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