Reynolds v. Mabry

• Decision Date: 02 May 1978
• Docket Number: No. 77-1675,77-1675
• Citation: 574 F.2d 978
• Parties: Roy C. REYNOLDS, Appellant, v. James MABRY, Commissioner, Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 978

574 F.2d 978

Roy C. REYNOLDS, Appellant, v. James MABRY, Commissioner, Arkansas Department of

Correction, Appellee.

No. 77-1675.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 15, 1978.

Decided May 2, 1978.

Bart G. Mullis, Pine Bluff, Ark., for appellant.

Robert M. Lyford, Little Rock, Ark., for appellee; Bill Clinton, Atty. Gen., and Jackson Jones, Asst. Atty. Gen., Little Rock, Ark., on the brief.

Before LAY, HEANEY and HENLEY, Circuit Judges.

LAY, Circuit Judge.

On March 7, 1969, an Arkansas state court jury found Roy C. Reynolds guilty of kidnapping and first degree rape of a 13 year old girl. Reynolds was sentenced to 99 years imprisonment. The victim positively identified Reynolds as the person who kidnapped her younger brother and herself, and as the person who had raped her. Reynolds did not appeal from his conviction. In 1975 he unsuccessfully sought post-conviction relief in the state court on the grounds of ineffective assistance of counsel. The denial of his petition was affirmed by the Supreme Court of Arkansas in an unpublished opinion, No. CR-75-178, delivered February 9, 1976. Petitioner thereafter sought a writ of habeas corpus in the federal district court in the Eastern District of Arkansas. After an evidentiary hearing the district court also rejected petitioner's allegations. He now appeals.

Petitioner asserts his counsel failed (a) to adequately investigate the circumstances surrounding his arrest, (b) to move to suppress evidence found in the search of his vehicle, (c) to move to quash an identification made while he was in a lineup, (d) to move to strike an amended information or ask for a continuance based on the fact that the information was amended only two days prior to trial, (e) to move for a mistrial when one juror had to be dismissed because of illness, and (f) to pursue a possible plea bargain. Petitioner also urges that his counsel introduced severely prejudicial information at trial concerning petitioner's sexual abnormalities in an attempt to establish a "new theory" of insanity as a defense. Reynolds also contends that the trial court violated his right to a fair trial in granting a seven day "continuance" midway in the trial ¹ due to the illness of one of the government's key witnesses. ²

We find that the claims raised fail to demonstrate ineffective assistance of counsel. We also hold that the granting of a continuance is within the sound discretion of the trial judge and no abuse of that discretion has been demonstrated.

The accepted standard for effectiveness of trial counsel is now established as that degree of performance which conforms to the care and skill of a reasonably competent lawyer rendering similar services under the existing circumstances. United States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976), cert denied, 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1977). Furthermore, there is a presumption that counsel is competent, 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), and the petitioner must shoulder a heavy burden to override this presumption. Id.; Crismon v. United States, 510 F.2d 356, 358 (8th Cir. 1975); McQueen v. Swenson (McQueen I), 498 F.2d 207, 214 (8th Cir. 1974). Finally, the exercise of reasonable judgment, even when hindsight reveals a mistake in that judgment, does not render a lawyer negligent or lacking in competence in rendering his services. ³

Utilizing these basic precepts, we find petitioner's contentions must fall. Petitioner's counsel indicated that he did not object to the amended information since he was ready for trial and since such amendments were within the discretion of the court. ⁴ Petitioner's counsel also testified that he allowed the trial to continue with an 11-person jury so as not to risk losing a "good" jury and the benefits of the defense testimony already introduced. Petitioner did not at the time object to this decision. Counsel also stated that no plea bargain short of life imprisonment was ever offered by anyone with the authority to make such an offer. Finally, counsel stated that he focused the defense primarily on establishing insanity and that as a result highly prejudicial information was allowed to come into evidence. Petitioner's counsel, an experienced criminal attorney, felt that insanity was the only available defense and, in fact, secured an instruction from the court to the jury on a theory of insanity significantly broader than the prevailing Arkansas test. Based on the record adduced we find no merit to these claims.

Petitioner also contends that counsel failed to investigate the circumstances surrounding his arrest, the search of his vehicle and a subsequent lineup identification. Petitioner's counsel admitted at the hearing held by the district court that he did not fully investigate the circumstances surrounding these events. Such a failure to investigate may in given circumstances constitute ineffective assistance of counsel thereby depriving the defendant of his constitutionally protected right to counsel. See American Bar Association, Standards Relating to the Prosecution Function and the Defense Function § 4.1, at 225-28 (Tentative Draft March 1970). Cf. Garza v. Wolff, 528 F.2d 208 (8th Cir. 1975).

In situations where the trial court has limited defense counsel in his or her efforts to render essential services for the defendant the Supreme Court has held that the right to counsel is too fundamental to allow courts to "indulge in nice calculations as to the amount of prejudice arising from its denial." Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942). See Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) (denial of individual appointment of counsel creating conflict of interest in one attorney's joint representation of three defendants); Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) (denial of counsel's right to confer with defendant during recess); Herring v. New York, 422 U.S. 853, 95 S.Ct. 2250, 45 L.Ed.2d 539 (1975) (denial of right of counsel to make final summation).

In recent cases where the attorney's failure to provide essential services has been challenged this circuit has followed a flexible approach in requiring a petitioner to make some initial showing that his counsel's conduct may have prejudiced him in some way before a conviction will be reversed. In McQueen I we said:

We believe a flexible approach . . . is called for. 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.

498 F.2d at 220.

Decisions of two circuits have nevertheless questioned the need for a separate showing of prejudice in ineffective assistance cases. The Sixth Circuit in Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), held that once ineffectiveness has been established, "(h)armless error tests do not apply . . . ." The Ninth Circuit established a similar rule in Cooper v. Fitzharris, 551 F.2d 1162, 1165 (9th Cir. 1977), where the court held, citing Geders v. United States, supra, and Herring v. New York, supra, that "once a petitioner has carried his burden of establishing ineffectiveness of counsel, his conviction must be reversed without regard to the presence or absence of prejudice." Although the Supreme Court's recent decision in Holloway v. Arkansas, supra, may be viewed as supportive of the results reached by the Sixth and the Ninth Circuits, the effect of the case may be limited to conflict of interest situations. ⁵

In measuring effective assistance of counsel the question of harm or...