Reagan v. Norris

• Decision Date: 07 April 2004
• Docket Number: No. 03-1955.,No. 03-1582.,03-1582.,03-1955.
• Citation: 365 F.3d 616
• Parties: David REAGAN, Appellee/Cross-Appellant, v. Larry NORRIS, Director, Arkansas Department of Corrections, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

365 F.3d 616

David REAGAN, Appellee/Cross-Appellant, v. Larry NORRIS, Director, Arkansas Department of Corrections, Appellant/Cross-Appellee.

No. 03-1582.

No. 03-1955.

United States Court of Appeals, Eighth Circuit.

Submitted: November 17, 2003.

Filed: April 7, 2004.

Counsel who presented argument on behalf of the appellant was Jeffrey A. Weber, Little Rock, AR.

Counsel who presented argument on behalf of the appellee was Craig Lambert, Little Rock, AR.

Before LOKEN, Chief Judge, McMILLIAN, and BEAM, Circuit Judges.

BEAM, Circuit Judge.

Larry Norris, as Director of the Arkansas Department of Corrections, appeals the district court's grant of one ground for relief in David Reagan's 28 U.S.C. § 2254 petition for habeas corpus. The district court determined that Reagan was denied conflict-free representation in violation of the Sixth Amendment. Reagan cross-appeals the district court's denial of his claim concerning an improper jury instruction. Since we reverse on the cross-appeal, we do not reach the Sixth Amendment claim.

I. BACKGROUND

Reagan was convicted in 1990 of first-degree murder in Arkansas state court for the death of two-year-old Sarah Binkard. Reagan and his girlfriend, Renay Binkard, lived together with Renay's four children in the fall of 1989. On November 27, 1989, Reagan and Renay took Renay's youngest daughter, Sarah, to the emergency room of a local hospital because she was having trouble breathing. The emergency room doctors found that her abdomen was swollen and bloated, she had several bruises on her body, cigarette burns on her feet, and other scars. Her diaper was bloody, and, at first, the doctors erroneously believed she had been sexually abused. Emergency room personnel could not revive Sarah, and she was pronounced dead approximately seventy-five minutes after arriving at the hospital.

Reagan was charged with first-degree murder, while Renay was originally charged with second-degree murder and permitting the abuse of a child. Renay's charge was later upgraded to first-degree murder, but prior to Reagan's trial she accepted the state's offer that she plead guilty to permitting the abuse of a child and receive a ten-year sentence, with four years suspended. The plea agreement was not finalized nor was the murder charge formally dropped until after Reagan's trial. Reagan and Renay were both represented by the same attorney-C.W. Knauts. While the murder cases were proceeding, Knauts was also appointed to represent Renay in a dispute with the state concerning the custody of her remaining three children.

At Reagan's trial, the medical examiner testified that although there was evidence that Sarah had been a victim of child abuse in the past, the immediate cause of her death was an infection from a ruptured bowel caused by a blow with a blunt object, likely a fist or an elbow, at least twenty-four hours before her death.

Police officers testified that Reagan told different stories regarding Sarah's injuries. Reagan first told the police that Sarah had fallen off of a four-foot-high porch. In his second statement, Reagan stated that while raking leaves, he tripped over a limb and fell onto Sarah's stomach with his knee. In his third statement, Reagan told police that he was dislodging a large limb from a tree when he fell back onto Sarah, knocking her down.

There was conflicting testimony at trial about Reagan's treatment of Renay's children. Although some witnesses suggested that Reagan was possibly abusive, there was also testimony from several sources that the children loved Reagan and that he took care of them as though they were his own.

The prosecution did not call Renay (as the defense apparently thought it would, based on her plea bargain), and so the defense called her as a witness. On direct examination, Renay testified that she had seen Sarah fall off of the porch the day before she died, but that Reagan had not told her he had fallen on Sarah. Renay also testified that Reagan took good care of the children and that she did not think he had intentionally harmed Sarah. Renay testified that Sarah was anemic and would bruise very easily. She denied knowing anything about cigarette burns on Sarah, and explained that she had pled guilty to permitting abuse of a child because she felt some criminal responsibility for being too strict of a disciplinarian or for not looking after the children well enough.

On cross-examination, the government impeached Renay's direct testimony with evidence that she had told police on the night of Sarah's death that Reagan had likely abused Sarah, both the day before and during past incidents when Sarah suffered unexplained bruises. She explained that, at the time she gave these potentially damaging statements to the police, she mistakenly believed that Reagan had sexually molested Sarah. She further testified that Reagan smoked, while she did not (creating an inference about the burn marks on Sarah's feet). Knauts did not conduct a redirect examination of Renay following this testimony.

Reagan testified in his own defense that he had fallen into Sarah while tugging on a stray limb from a tree in the yard in the late afternoon. Sarah seemed to be okay at the time, so he took her inside and gave her a sandwich. After she had eaten it, they returned outside until dark while he worked on his car and the children played. The next day, after a morning of errands, Sarah took a nap shortly after lunch and remained asleep until Renay woke her up around 5:30 p.m. Renay called Reagan into Sarah's room because she was having trouble breathing, and the two decided to take her to the emergency room.

Reagan testified that he enjoyed taking care of the children and wanted to be a father to them. He acknowledged that Sarah had been bruised in the past by her brothers' roughhousing and by the dog knocking her off the stairs or porch, but he also noted that Sarah was anemic and bruised easily. Reagan testified that he did not give contradictory statements to the police regarding the limb, but that the investigator incorrectly recorded his second statement.

The case was submitted to the jury with the following first-degree murder instruction:

David H. Reagan is charged with the offense of murder in the first degree. To sustain this charge the state must prove beyond a reasonable doubt that David H. Reagan caused the death of Sarah Binkard, date of birth, November 20, 1987, a person under the age of 14 years under circumstances manifesting cruel and malicious indifference to the value of human life.¹

The judge instructed the jury that, for it to find circumstances manifesting cruel and malicious indifference to the value of human life, it must "find that by his actions [Reagan] caused the death of Sarah Binkard, a person under the age of fourteen years."

Reagan was convicted of first-degree murder and sentence to life in prison. This is the second time we have considered an appeal in Reagan's habeas corpus case. In our prior opinion, we recounted the case's lengthy procedural history, determined that Reagan had not procedurally defaulted his ineffective assistance of counsel claims, and remanded the case to the district court for further proceedings relating to those claims. Reagan v. Norris, 279 F.3d 651, 657-58, 660 (8th Cir.2002) (Reagan I).

Following our remand in Reagan I, the district court held an evidentiary hearing. At the evidentiary hearing, Knauts testified that he was simultaneously appointed to represent both Renay and Reagan and that he realized there might be a conflict issue shortly after he began representing them, but did not think it was problematic enough to withdraw as counsel for either one. Knauts repeatedly stated that it was his strategy to keep Renay as a client to keep her from completely turning on Reagan. Knauts stated that she was "difficult" to work with and that he thought it would be best to keep her in their camp. Despite this, however, it is clear from the record that Knauts did not ever consider the possibility that Reagan's alleged fall onto Sarah did not cause her fatal injuries, but that Renay had inflicted them instead. Knauts believed that the first-degree murder charge against Renay was "overkill" and an attempt to get her to testify against Reagan.

Knauts knew about evidence in the record that Renay had been investigated for child abuse involving Sarah as early as December 1988, when Reagan was not living with her (but while they were dating). However, once Renay's positive direct testimony had been undermined by the state on cross-examination, Knauts acknowledged that "we didn't ever make any plans to try to impeach" Renay's testimony further regarding the previous investigation into Sarah's abuse.

While the murder trials were pending, Knauts was also appointed to represent Renay in a dispute with the state regarding the custodial status of her remaining three children. Knauts admitted at the evidentiary hearing that it would have been harmful to Renay's custody case to show during Reagan's trial that she was an abusive mother. Finally, Knauts defended his decision not to ask Renay about her smoking marijuana (and thereby creating the inference that she had inflicted...