Plant v. Wyrick

• Decision Date: 07 November 1980
• Docket Number: No. 80-1301,80-1301
• Parties: Robert Harry PLANT, Appellant, v. Donald W. WYRICK, Warden, John Ashcroft, Attorney General, State of Missouri, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 188

636 F.2d 188

Robert Harry PLANT, Appellant, v. Donald W. WYRICK, Warden, John Ashcroft, Attorney General, State of Missouri, Appellees.

No. 80-1301.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 14, 1980.

Decided Nov. 7, 1980.

John Ashcroft, Atty. Gen., Robert Lawrence Presson, Asst. Atty. Gen., Jefferson City, Mo., for appellees.

Norman W. Pressman, MBE, St. Louis, Mo., for appellant.

Before STEPHENSON and HENLEY, Circuit Judges, and HUNTER, District Judge. ^*

PER CURIAM.

Robert Harry Plant appeals an order of the United States District Court for the Eastern District of Missouri ¹ denying his petition for a writ of habeas corpus filed pursuant to the provisions of 28 U.S.C. § 2254. We affirm.

Appellant was convicted in the Circuit Court of St. Charles County, Missouri, of second degree burglary and stealing. He now contends, as he did before the district court, that his conviction and ensuing detention were secured in violation of the sixth amendment to the United States Constitution, more specifically in violation of his right to effective representation by counsel.

Appellant alleges that his trial counsel's failure to undertake adequate pretrial preparation and failure to request an alibi instruction rendered his representation ineffective.

From the materials before the court, essential facts concerning the offense and the state trial are clear.

Soon after 4:00 a. m. on April 14, 1969 a burglary was committed at a clothing store in Washington, Missouri. Almost immediately an officer saw first one fugitive, then another, run from the vicinity of the store and down a street upon which was parked a 1965 Chevrolet automobile. In the automobile a quantity of men's suits was found.

One of the fleeing suspects, who proved to be the appellant, was arrested after a chase. His codefendant, Eddie Dorsey, was found a few minutes later hiding near the place where appellant was arrested. A key found in Dorsey's possession fit the trunk of the automobile in which some of the stolen suits were found.

Both appellant and Dorsey were charged with the burglary. A few days before their trial, Dorsey entered a plea of guilty. He later testified as a witness called by the State.

At appellant's trial the State called as witnesses the store owner, who testified to the occurrence of the burglary and identified some of the recovered clothing, the officers who arrested Dorsey and appellant, who testified to finding the Chevrolet automobile apparently used by the burglars, and Dorsey.

On direct examination Dorsey testified that he had borrowed the Chevrolet automobile and that he and appellant had been in the car together in Washington, Missouri.

On cross-examination Dorsey testified that appellant did not help in the burglary but had been at the time drunk and asleep in the front seat of the car. He said he asked appellant to help carry some suits that were still on the ground, that the two men went back to the store, but heard somebody and then ran away.

Prior to trial defense counsel interviewed appellant a number of times, spoke with the prosecutor, visited the scene of the crime and reviewed the prosecutor's file. When he went to Dorsey's home for an interview Dorsey was not there. ²

In attempting to show ineffective counsel the defendant is faced with a heavy burden. Johnson v. United States, 506 F.2d 640, 645 (8th Cir. 1974), cert. denied, 420 U.S. 978, 95 S.Ct. 1404, 43 L.Ed.2d 659 (1975). He must show that his attorney failed to exercise the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances. Morrow v. Parratt, 574 F.2d 411, 412-13 (8th Cir. 1978) (citations and footnote omitted). E. g., United States v. McMillan, 606 F.2d 245, 247 (8th Cir. 1979); Word v. United States, 604 F.2d 1127, 1130 (8th Cir. 1979); Beran v. United States, 580 F.2d 324, 326 (8th Cir. 1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1422, 59 L.Ed.2d 634 (1979); Benson v. United States, 552 F.2d 223, 224 (8th Cir.), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 120 (1977); United States v. Easter, 539 F.2d 663 (8th Cir. 1976).

As indicated, appellant primarily relies on counsel's failure to interview potential witnesses as evidencing inadequate trial preparation. On numerous other occasions, this court has addressed this precise allegation, e. g., Word v. United States, supra, 604 F.2d at 1130; Beran v. United States, supra, 580 F.2d at 327; Benson v. United States, supra, 552 F.2d at 225, and only rarely, under circumstances unlike those in the present case, have we found it sufficient to warrant a finding of ineffective counsel, Morrow v. Parratt, supra, 574 F.2d at 413; 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); McQueen v. Swenson, 498 F.2d 207, 216 (8th Cir. 1974).

Unlike Thomas and McQueen, we are not faced here with a situation where counsel did not interview potential witnesses as a matter of policy. The decision to forego witness interviews resulted rather from an experienced criminal attorney exercising his professional judgment.

(A)n attorney's professional judgment may lead him to decline to interview some or all of the government's witnesses and to rely on other sources of information. Such an...