Pickens v. Lockhart

Decision Date12 August 1983
Docket NumberNo. 82-1836,82-1836
Citation714 F.2d 1455
PartiesEdward Charles PICKENS, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Corrections, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Ray Hartenstein, Little Rock, Ark., for appellant.

Steve Clark, Atty. Gen. by C.R. McNair, III, Victra L. Fewell, Asst. Attys. Gen., Little Rock, Ark., for appellee.

Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.

LAY, Chief Judge.

In 1975 Edward Charles Pickens was charged by information in Arkansas state court with murder in the first degree pursuant to Ark.Stat.Ann. § 41-2205 (current version at Ark.Stat.Ann. § 41-1502 (1977)). Several weeks prior to trial the State amended the information to charge Pickens with capital felony murder pursuant to Ark.Stat.Ann. § 41-4702 (current version at Ark.Stat.Ann. § 41-1501 (1977)), which carries the possibility of a death sentence. Because of the death penalty possibility, Pickens was afforded a bifurcated jury trial. See Ark.Stat.Ann. § 41-1301 (1977). The first phase of the trial was for the determination of guilt or innocence and the second phase was for the determination of a penalty. After a two-day trial the jury found Pickens guilty of the capital felony murder of Wesley Noble and sentenced him to death by electrocution. Pickens' motion for a new trial was denied and his conviction and sentence were affirmed by the Arkansas Supreme Court. Pickens v. State, 261 Ark. 756, 551 S.W.2d 212 (1977) (en banc), cert. denied, 435 U.S. 909, 98 S.Ct. 1459, 55 L.Ed.2d 500 (1978). 1

Pickens filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1976) in federal district court on May 14, 1981, raising twenty separate points as grounds for relief. The district court, the Honorable Henry Woods presiding, held an evidentiary hearing and issued an opinion denying the petition in its entirety. Pickens v. Lockhart, 542 F.Supp. 585 (E.D.Ark.1982). This appeal followed.

Pickens' main contention on appeal relates to his claim that he did not receive effective assistance of counsel under the sixth and fourteenth amendments of the United States Constitution in either phase of his bifurcated capital felony murder trial. Pickens also claims on appeal that (1) the case should be remanded because the district court refused to consider his claim that jurors "death-qualified" under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), were more likely to convict; 2 (2) improper jury instructions fundamentally infected the fairness of both phases of his trial; and (3) Arkansas capital-sentencing procedures impermissibly penalized his constitutional rights to plead not guilty and have a jury trial. 3 We find that Pickens' counsel failed to exercise the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances in the penalty phase of the trial, thereby violating the sixth and fourteenth amendments of the United States Constitution; we vacate the judgment of the district court and remand with directions.

I. FACTS.

On the afternoon of October 20, 1975, Pickens, Antonio Clark, and Sherwood Gooch entered a rural grocery store in Casscoe, Arkansas with a sawed-off shotgun and a .22 caliber pistol. They robbed the owner, the clerk, and seven customers in the store and two of the robbers raped the female clerk. They then made their victims lie face down on the floor and shot seven of them in the back of the head with the .22 caliber pistol. Several of the victims were shot a second time after the pistol was reloaded. Two of the victims, including seventy-six year old Wesley Noble, died. Noble was one of those shot a second time. The store owner later implicated Clark and Pickens in the shootings and absolved Gooch from any of the firing. Clark and Pickens were both dark complexioned black men and Gooch was a light-skinned, Spanish-appearing person. The store owner testified that the dark ones did the shooting and the light complexioned man did not. Another witness testified that Pickens had possession of the shotgun while the robbery was in progress. The female clerk testified that Pickens had possession of the .22 pistol, but she did not know whether he fired the shots.

Later the same evening Memphis, Tennessee police, acting on a prostitute's tip, chased and stopped a stolen vehicle carrying Clark, Gooch, and Pickens. The occupants of the car fled, but Gooch and Pickens were quickly apprehended. The car contained items taken in the robbery and Pickens was found wearing the rape victim's wedding ring. Pickens was interrogated by Memphis and Arkansas police officers and confessed to participating in the armed robbery of the Casscoe grocery store. He identified Antonio Clark as the killer and denied firing the fatal shots.

II. INEFFECTIVE ASSISTANCE OF COUNSEL.

The sixth amendment of the United States Constitution has been interpreted by the Supreme Court to guarantee to every criminal defendant the right to effective assistance of counsel. Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799 (1963); cf. Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932) (capital case). The failure to provide effective assistance is a fundamental constitutional error that undermines the entire adversary process. See Thomas v. Wyrick, 535 F.2d 407, 413 (8th Cir.), cert. denied, 429 U.S. 868, 97 S.Ct. 178, 50 L.Ed.2d 148 (1976). Nevertheless, a presumption exists that defense counsel has rendered effective assistance and a disappointed criminal defendant has a heavy burden to establish otherwise. See Harris v. Housewright, 697 F.2d 202, 206 (8th Cir.1982); Eldridge v. Atkins, 665 F.2d 228, 231-32 (8th Cir.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 168 (1982); McQueen v. Swenson, 498 F.2d 207, 216 (8th Cir.1974).

Our cases have established that for a habeas corpus petitioner to prevail on an ineffective assistance of counsel claim he or she must satisfy a two-part test. First the petitioner must show that the attorney failed to exercise the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances. Second, the petitioner must show that he or she was prejudiced by counsel's ineffectiveness. E.g., Harris v. Housewright, 697 F.2d at 204; Holtan v. Parratt, 683 F.2d 1163, 1167 (8th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1231, 75 L.Ed.2d 466 (1983); United States v. Easter, 539 F.2d 663, 666 (8th Cir.1976); see also Reynolds v. Mabry, 574 F.2d 978, 981 (8th Cir.1978) (question of prejudice intertwined with question of breach of duty); cf. United States v. Morrison, 449 U.S. 361, 364-67, 101 S.Ct. 665, 667-69, 66 L.Ed.2d 564 (1981) (absent showing of some prejudice, sixth amendment violation does not justify dismissal of indictment or interference with criminal proceedings against defendant). We have characterized the first step of this test in terms of whether the attorney has failed to perform a duty owed to the client. See Eldridge v. Atkins, 665 F.2d at 232. 4

Shortly after Pickens was arrested, Judge W.M. Lee appointed Willis Plant to represent him. At the time of his appointment, Plant was in his mid-sixties and in poor health. His main source of income was from his Army retirement pension, rather than from his law practice. Although Judge Lee testified at the habeas hearing that Plant handled "a lot of criminal cases," another witness, attorney Robert Morehead, characterized Plant's practice as mostly civil, such as land leases for farmers. Prior to the evidentiary hearing held in the federal district court, Plant suffered a severe stroke and became mentally and physically disabled.

A. Guilt phase of the trial.

1. Failure to interview law-enforcement officers who conducted Pickens' stop, arrest, search, and interrogation.

Pickens initially contends that Plant completely failed to prepare for trial. We have long recognized that courtroom experience is no substitute for thorough pretrial investigation and preparation in every case. Wolfs v. Britton, 509 F.2d 304, 309 (8th Cir.1975) ("effective assistance refers not only to forensic skills but to painstaking investigation in preparation for trial"); see also Eldridge v. Atkins, 665 F.2d at 232 (petitioner materially prejudiced by counsel's failure to investigate and present defense). The American Bar Association has observed:

It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilt or the accused's stated desire to plead guilty.

1 ABA Standards for Criminal Justice, Standard 4-4.1 (2d ed. 1980).

Pickens contends that Plant's pretrial investigation did not adhere to this standard and that he was prejudiced by Plant's failure to investigate.

Pickens argues that the circumstances surrounding his stop, arrest, and confession in Memphis were such that the events should have been investigated by his counsel. The stop of the car in which Pickens was riding was based on the partially inaccurate tip of a prostitute with whom Clark and Gooch had just had an argument. Further, Pickens testified that he confessed to participation in the robbery only after he asked one of the Memphis police officers for a lawyer and being told that he "didn't need a lawyer, but ... needed Jesus Christ." He testified that the same officer also told him that no lawyer would take his case and that it would cost more than $50,000 to get a lawyer.

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