Shillinger v. Haworth

Citation70 F.3d 1132
Decision Date17 November 1995
Docket NumberNo. 94-8062,94-8062
PartiesDuane SHILLINGER, Warden, Wyoming State Penitentiary, and the Attorney General of The State of Wyoming, Appellant/Respondents, v. Steven K. HAWORTH, Appellee/Petitioner.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Mary Beth Wolff, Senior Assistant Attorney General, Cheyenne, Wyoming, for Appellant/Respondents.

Gerald Gallivan, Defender Aid Program, University of Wyoming College of Law, Laramie, Wyoming, for Appellee/Petitioner.

Before HENRY and McKAY, Circuit Judges, and VRATIL, * District Judge.

HENRY, Circuit Judge.

In this case we must determine the appropriate Sixth Amendment standards governing an intrusion by the prosecution into the defendant's communications with his attorney. The district court held that the defendant's Sixth Amendment rights were violated by the prosecutor's intrusion into the defendant's trial preparation sessions and accordingly granted his petition for habeas relief. We agree that under the facts found by the Wyoming courts the defendant's Sixth Amendment rights were violated, but we remand the case for an evidentiary hearing to determine the appropriate remedy.


In 1990, Steven Haworth was arrested after using his pocketknife against Rod Risk in an early-morning brawl outside the Lazy 8 Bar. The fight apparently culminated from a day of drinking, an arm-wrestling match, and an argument involving a Milk Bone dog biscuit. Haworth was charged with aggravated assault and battery and was incarcerated in a local county jail. Because Haworth was unable to make bail, he remained in jail before his trial. When the trial date approached, Haworth's attorney arranged to hold several preparatory sessions with Haworth in the trial courtroom. Because Haworth was in custody, these pretrial preparatory sessions were held on the condition that a deputy sheriff would be present at all times. Haworth's attorney paid the deputy overtime wages for his services; he also allegedly instructed the deputy to consider himself an employee of defense counsel during the trial preparation sessions and that "none of this goes out of this room," although the prosecutor denied that there was such an understanding. See Haworth v. State, 840 P.2d 912, 913 & n. 2 (Wyo.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2395, 124 L.Ed.2d 296 (1993). Regardless of the nature of the parties' understanding, it is clear "the sheriff required that one of his deputies remain with Haworth during these trial preparation sessions." Id. at 913.

On the first day of trial, Rod Risk testified for the prosecution. The prosecutor asked Risk if he had rehearsed his testimony prior to trial, and Risk responded that he had not. Because this aroused defense counsel's concern that the prosecutor intended to cross-examine Haworth about the preparatory sessions, the court held an in-chambers conference on the record. Haworth's attorney moved to suppress evidence of the preparatory sessions, arguing that such evidence would be irrelevant and prejudicial. During the course of this discussion, "it became apparent to Haworth's defense counsel that the prosecutor had learned not only about Haworth's weekend trial preparation sessions with defense counsel but also about the substance of some of the conversations between Haworth and defense counsel during those sessions." Id. Specifically, the following exchange took place between the prosecutor, Mr. Crank, and Haworth's attorney, Mr. Sedar:

MR. CRANK: Your Honor, it is my understanding that the Defendant was brought over here for two hours Friday evening, two hours Saturday afternoon, and two hours on Sunday. His testimony was video taped. The video tape was reviewed between Mr. Sedar, Mr. Boynton, and the Defendant.

MR. SEDAR: Not the Defendant. The Defendant never saw the video tape.

MR. CRANK: Jeff Laub, Randy Hanson, and a legal intern were in this Courtroom. It is my understanding that the Defendant's language, certain language and certain phrases were suggested to the Defendant. "Let's not use the word stab, let's say that you cut him." It is my understanding that there were instructions on "Don't rock in the seat, sit up, cross your hands in front of you." It guess [sic] well beyond preparing him for a courtroom setting. That is coaching the witness and that is unethical.


[MR. SEDAR:] I would ask [Mr. Crank] how he knows all this. I'll tell you how he knows it, because I had to bring an officer over with my client and that officer obviously spoke to Mr. Crank and told Mr. Crank what was going on. I have a real problem with that.

MR. CRANK: Why do you have a problem with that?

MR. SEDAR: Because I was paying him to bring him over. It came out of my pocket to bring him over and then he goes over to you and tells you what is going on down there.

Applts.App. at 17, 19. The prosecutor admitted at this conference that his knowledge of the preparatory sessions was acquired through a conversation with the deputy that was initiated by the prosecutor. The trial judge ruled that although the prosecutor could not directly refer to the preparatory sessions, he could cross-examine Haworth regarding whether his testimony had been coached.

On the following day, the issue was again raised with the trial judge, and a second in-chambers conference was held on the record. Haworth's attorney again expressed his concern that the attorney-client privilege had been compromised by the prosecutor's knowledge of what went on in the preparatory sessions, and he sought to suppress evidence of the sessions as work product. The prosecutor still wanted to elicit evidence of improper coaching during his cross-examination of Haworth and argued that the attorney-client privilege had been waived by the deputy's presence. The prosecutor was particularly concerned that Haworth had been instructed to use the word "cut" rather than the word "stab" during his testimony. The conference concluded with the following exchange:

THE COURT: I think there are ways that the State is protected in their [sic] cross examination to get at what you are getting at.


[The deputy's communication to the prosecutor] just strikes me as being unfair. Not only that, but it strikes me as being a potential reversible error.

I think you can get at it in cross examination without referring to the conversations between counsel and the Defendant. That would be my ruling.

MR. CRANK: My question will be, ... You have been specifically instructed to use the word "cut" versus "stabbed?"

MR. SEDAR: That comes straight out of my work product.

THE COURT: That, I find, is objectionable.

Applts.App. at 32-33 (emphasis added).

When the trial resumed, Haworth testified on his own behalf and used the word "cut" several times to describe the events leading up to his arrest. On cross-examination of Haworth the prosecutor asked: "You have specifically used the word 'cut' versus 'stabbed' in your testimony today, correct?" Applts. Ex. I, vol. 3, at 535. Haworth responded: "True." Id. The prosecutor frequently used the word "stab" during the cross-examination and during closing arguments when referring to Haworth's acts on the night in question. 1 Because Haworth and Risk testified to different versions of the events leading up to Haworth's arrest, the prosecutor's closing argument was mostly devoted to bolstering Risk's credibility and impeaching Haworth. The prosecutor told the jury: "[T]his whole trial process is designed to ferret out inconsistencies and test the soundness of a witness's testimony." Id. at 567. Then, when discussing Haworth's testimony, the prosecutor said:

He is the only witness that you heard from who had to practice his presentation to you. He told you, his testimony was that Mr. Sedar wanted me to practice opening the knife before I actually testified.

You know, he told you that he deliberately in his testimony used the word "cut" versus "stabbed."

Id. at 583-84.

The jury rejected Haworth's self-defense theory and found him guilty of aggravated assault and battery under Wyo.Stat. Sec. 6-2-502(a)(ii), (b). Haworth was sentenced to four to five years of confinement in the state penitentiary. Haworth appealed the case to the Wyoming Supreme Court, which held that his right to effective assistance of counsel was not infringed by the actions of the prosecutor and the law enforcement officers, and over a vigorous dissent, the court affirmed his conviction.

Haworth then filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. Sec. 2254 in the district court. On cross-motions for summary judgment, the district court held that Haworth's Sixth Amendment rights had been violated, granted Haworth's petition for habeas relief, and stayed any retrial by the state pending resolution of this appeal.


We review the district court's summary judgment order granting Haworth's habeas petition de novo, applying the same legal standard as did the district court under Fed.R.Civ.P. 56(c). James v. Sears, Roebuck & Co., 21 F.3d 989, 997-98 (10th Cir.1994); see also Fed.R.Civ.P. 56(c) (Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law."). In our review, we will first discuss the presumption of correctness to which state courts' factual determinations are ordinarily entitled in a habeas proceeding. We will then review the relevant Sixth Amendment standards governing intentional prosecutorial intrusions into a defendant's relationship with his attorney. Finally, we will consider the relevant precedent guiding the district court's effort to fashion an appropriate remedy in this case on remand.

A. Presumption of Correctness of State Courts' Factual

Federal courts entertaining habeas petitions must give a presumption of correctness to the state courts' factual findings absent an exception...

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