McQueen v. Swenson, 76-1926

• Decision Date: 23 August 1977
• Docket Number: No. 76-1926,76-1926
• Parties: Roger Lee McQUEEN, Appellant, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 959

560 F.2d 959

Roger Lee McQUEEN, Appellant, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Appellee.

No. 76-1926.

United States Court of Appeals,

Eighth Circuit.

Submitted June 14, 1977.

Decided Aug. 23, 1977.

Michael A. Gross, Clayton, Mo., argued and on brief for appellant.

Neil MacFarlane, Asst. Atty. Gen. (argued), and John D. Ashcroft, Atty. Gen., Jefferson City, Mo., on brief, for appellee.

Before BRIGHT, STEPHENSON and HENLEY, Circuit Judges.

STEPHENSON, Circuit Judge.

In McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974) (McQueen I ), we held that appellant McQueen, a state prisoner, had been denied the effective assistance of counsel constitutionally required because of the failure of his counsel to make an adequate investigation prior to appellant's trial for murder. ¹ We remanded for a determination of whether that failure prejudiced appellant's defense to the extent that his conviction must be vacated. The district court, after conducting an evidentiary hearing, ultimately found that "the ineffective assistance of counsel rendered petitioner, did not prejudice his right to a fair trial," and ordered the dismissal of McQueen's application for a writ. We conclude that the district court's finding is clearly erroneous and reverse.

After conducting the evidentiary hearing, the district court initially remanded this case to the Supreme Court of Missouri with the suggestion that the original Missouri trial judge, then retired, be appointed to serve as a special master to review the entire state and federal record and make findings with respect to whether defendant was denied a fair trial, these findings to be reviewable on appeal if unacceptable to either party. ²

McQueen thereafter made application for writ of mandamus to compel the district court to render a final determination of his pending application for a writ of habeas corpus. This court denied the petition for writ of mandamus holding it was within the discretion of the district court to send this case back to the state court for an initial determination of whether lack of investigation was harmless. United States ex rel. McQueen v. Wangelin, 527 F.2d 579 (8th Cir. 1975) (McQueen II ). Subsequently, the district court on January 14, 1976, entered the following order:

It is now the directive of this Court that the State of Missouri commence appropriate proceedings to ascertain whether or not McQueen's trial counsel was ineffective, ³ and whether or not said ineffectiveness, if same existed, denied petitioner a fair trial. If the State of Missouri fails to make this inquiry and come to conclusion concerning this allegation, within six months from the date of this Order, then the judgment and conviction of petitioner is vacated.

Respondent-appellee Swenson appealed from the above order. This court then ordered the district court to make factual findings based upon the evidence presented at the January 20, 1975, hearing and enter an appropriate order.

The district court on August 16, 1976, filed the memorandum which is the subject of the instant appeal. In substance the court found that appellant had failed to establish the existence of admissible evidence which his counsel could have uncovered, which would have proven helpful to the defendant in his original trial. More specifically, that:

(1) The shoe horn allegedly used by the deceased in his purported attack on McQueen, turned out to be a flimsy, metallic, combination shoe horn and hair brush, which "weapon" was hardly needed by an alleged assailant some sixty-five pounds heavier than his target. It had no "carving knife handle" as alleged by petitioner in his state court trial. (2) The police report introduced at the hearing presented nothing that this Court found startlingly novel or helpful to defense. (3) The coroner's report, introduced by petitioner, impressed this Court as being actually detrimental to petitioner's cause. It revealed that the death of George Francis, the homicide victim of McQueen, was caused by three thirty-eight caliber gunshot wounds, any one of which could have been fatal.

McQueen v. Swenson, 425 F.Supp. 373, 374 (E.D.Mo.1976) (emphasis added).

In addition the district court discussed the reputation of McQueen's trial counsel as a skilled criminal practitioner; counsel's admitted failure to interview state witnesses because he was fearful of being accused of "tampering;" the somewhat common practice for skilled practitioners not to take state criminal witnesses' depositions; trial tactics in waiting for the prosecutor to put on his case and not alerting him as to the defense; and finally, the strength of the state's case against McQueen and the weakness of McQueen's defense. Following the foregoing discussion the district court "makes an express finding that the ineffective assistance of counsel rendered petitioner, did not prejudice his right to a fair trial, and more certainly, did not reach constitutional inadequacy." McQueen v. Swenson, supra, 425 F.Supp. at 376.

In McQueen I we stated, "In the circumstances of this case, we hold the lack of pretrial investigation amounts to ineffective assistance of counsel." 498 F.2d at 213. That issue was closed in this case. We held, however, that a second determination must be made as to whether the failure to investigate prejudiced McQueen's defense. See discussion, 498 F.2d 218-20. ⁴ We remanded to the district court

for a hearing on the issue of whether or not prejudice flowed from the failure of counsel to make a reasonable investigation of this case. The petitioner, as we have already stated, must shoulder the initial burden of showing either prejudice or, alternatively, changed circumstances which would justify placing on the state the burden of proving the absence of prejudice.

498 F.2d at 220. We further stated:

We ought not to intervene in the criminal process unless and until it can be shown that the alleged error itself prejudiced the petitioner in obtaining a fair trial. But this is not to say that, on remand, petitioner must prove his innocence even by so much as a preponderance of the evidence; nor should we be understood to suggest that the Court may trespass upon what properly would have been the jury's province of weighing the truth or falsity of this evidence at the original trial. What we are saying is that, here, the petitioner must shoulder an initial burden of showing the existence of admissible evidence which could have been uncovered by reasonable investigation and which would have proved helpful to the defendant either on cross-examination or in his case-in-chief at the original trial. Once this showing is made, a new trial is warranted unless the court is able to declare a belief that the omission of such evidence was harmless beyond a reasonable doubt. Cf. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

498 F.2d at 220.

We are satisfied from our review of the testimony and exhibits produced at the hearing conducted by the district court pursuant to our remand that its findings that errors of counsel were not prejudicial are clearly erroneous. Rice v. Wolff, 513 F.2d 1280, 1293 (8th Cir. 1975), reversed on other grounds sub nom., Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); Parnell v. Wainwright, 464 F.2d 735, 737 (5th Cir. 1972); Shultz v. State of Nebraska, 353 F.2d 81, 82 (8th Cir. 1965).

A brief review of the specific items mentioned by the district court will demonstrate the existence of admissible evidence which appellant's counsel could have uncovered by reasonable investigation and which would have proved helpful to McQueen either on cross-examination or in his case-in-chief.

Shoehorn

McQueen testified at trial that he shot the deceased, George Francis, as the latter made an assault on him with a long metal shoehorn approximately two feet in overall length. Several police officers who had investigated the scene at the deceased's apartment testified in rebuttal that in searching the area they found no such shoehorn. The importance of this rebuttal testimony was recognized by us in McQueen I, 498 F.2d at 210. See also McQueen v. State of Missouri, 475 S.W.2d 111, 120-24 (Mo.1971) (Seiler, J., dissenting). Appellee concedes the shoehorn would have been discovered by a reasonable investigation by appellant's defense counsel, ⁵ but contends it would not have been helpful because (1) the shoehorn produced did not fit the description given by appellant and thus was inadmissible; (2) even if admitted, it was cumulative of appellant's version and would not have affected the jury's decision; and (3) most importantly, the evidence indicates the shoehorn was hanging on the door at all times.

The shoehorn produced is substantially identical, except for the "carving knife handle," to the description given by appellant at his trial. It is about two feet long, has a shoehorn on one end, and is constructed primarily of metal. Although not a lethal weapon in itself, in the hands of the deceased it could have been a formidable weapon and thus is corroborative of appellant's trial testimony. We cannot agree that the omission of this evidence was harmless beyond a reasonable doubt.

Police report

The district court found nothing in the police report "startlingly novel or helpful to the defense." McQueen v. Swenson, supra, 425 F.Supp. at 374. ⁶ We cannot agree.

The police report indicates that Donald Cole, a homosexual partner of the deceased for two years who spent the...