Smith v. Smith, 90-7096

• Decision Date: 23 April 1991
• Docket Number: No. 90-7096,90-7096
• Citation: 931 F.2d 242
• Parties: Elwood SMITH, Petitioner-Appellee, v. Robert SMITH, Superintendent; Attorney General of the State of N.C., Respondents-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 242

931 F.2d 242

Elwood SMITH, Petitioner-Appellee, v. Robert SMITH, Superintendent; Attorney General of the State of N.C., Respondents-Appellants.

No. 90-7096.

United States Court of Appeals, Fourth Circuit.

Argued March 8, 1991.

Decided April 23, 1991.

Clarence Joe DelForge, III, Asst. Atty. Gen., argued (Lacy H. Thornburg, Atty. Gen., Richard N. League, Sp. Deputy Atty. Gen., on brief), Raleigh, N.C., for respondents-appellants.

Clela Margaret Errington, argued (John W. Gresham, on brief), Ferguson, Stein, Watt, Wallas, Adkins & Gresham, P.A., Charlotte, N.C., for petitioner-appellee.

Before SPROUSE, Circuit Judge, DUPREE, Senior District Judge for the Eastern District of North Carolina, sitting by designation, and WARD, Senior District Judge for the Middle District of North Carolina, sitting by designation.

SPROUSE, Circuit Judge:

In this appeal, we review a Sixth Amendment claim of ineffective assistance of counsel raised by defendant, Elwood Smith, who had been convicted in state court of murder and assault. He exhausted his state appeals and was denied post conviction relief in the state court. However, the federal district court granted his petition for a writ of habeas corpus, finding that Smith had received ineffective assistance of counsel. We reverse.

I

On the evening of November 10, 1978, Terry Jewett and Gary Stratton went to the Fonz Club, in Charlotte, North Carolina. After spending some time inside the Club, the two exited to its parking lot with another couple--Debra Sloan and Perry Short. There, the four stood around a car consuming alcoholic drinks. ¹ At approximately 10:00 p.m. an assailant opened fire on the group, killing Stratton and seriously wounding Sloan. After the police arrived, Terry Jewett immediately approached an officer, M.M. Stevens, and informed him that the defendant Smith had done the shooting. Stevens, who knew Smith well, contacted another police officer, D.L. Case, who advised that he had just seen Smith at a store three or four blocks from the Fonz Club. Officer Stevens then drove toward that store and, while en route, spotted Smith driving a tan, off-white hatchback. Stevens stopped Smith, ² questioned him, and brought him back to the Fonz Club, where Jewett positively identified him as the assailant and he was arrested. He was subsequently indicted for murder.

At trial, Jewett testified that on the night in question she heard one shot, looked up, and saw Smith standing at the corner of the Fonz Club pointing a long-handled gun at them. According to Jewett, Stratton then pushed her off to the side of the car and fell on top of her. Jewett also testified that she had lived with Stratton for two-and-one-half years and that he had fathered her son. Stratton and Jewett, however, terminated their relationship and the latter began a "stormy" relationship with Smith. ³ Shortly before the night of the shooting, however, Jewett separated from Smith and renewed her relationship with Stratton. Smith requested that Jewett return to him, but she refused. Enraged, he purportedly warned Jewett that Stratton had better "look out" for him.

At trial, Debra Sloan, the other person who had been shot, testified that when the shooting started she immediately looked up and saw "fire" coming from the corner of the Fonz Club, but that she could not see who was firing the shots. She explained that Perry Short had thrown her to the ground before she had a chance to look.

Another witness, who was in the back seat of a car in the parking lot of the Fonz Club during the shooting, testified that a few minutes before the shooting she saw a cream colored hatchback drive into the parking lot and that the driver of the car looked like Smith.

Officer Stevens testified that he apprehended Smith within blocks of the Fonz Club, that Jewett positively identified Smith as the assailant when he brought the defendant back to the parking lot, and that Smith, on the night of his arrest, had attempted to escape through the ceiling of the Charlotte Law Enforcement Center. ⁴ A firearms expert testified concerning eleven shell casings. Ten had been found at the scene of the murder. The other shell had been given to the police by Jewett, who explained that she had retained it after a previous shooting encounter with Smith. The expert indicated that all eleven shells had been fired from the same weapon and that the groove markings were consistent with being fired from a .22 caliber Winchester semi-automatic rifle.

Smith's defense rested on the testimony of a single alibi witness, Kim Kennedy. She testified that on the night of the shooting Smith picked her up at approximately 7:15 p.m. at a hospital, where she was visiting her sick nephew. She stated that she drove with Smith and her friend, Arlene Clark, and an unidentified male to a diner. At around 9:30 p.m., they left the diner and drove to a pool hall. Kennedy testified that she left the pool hall around 10:05 p.m. and that Smith was still inside.

In response to Kennedy's testimony, the state recalled Officer Stevens, who testified that after Smith had been arrested, the latter protested that he had been at the homes of two friends, a Mitch Tickle and a Tony Bullock, and that he had not mentioned a pool hall.

Smith was convicted by a jury and sentenced to concurrent terms of life imprisonment for the murder of Stratton and ten to twenty years for the assault of Sloan. His conviction was affirmed by the Supreme Court of North Carolina. State v. Smith, 299 N.C. 533, 263 S.E.2d 563 (1980). After he exhausted his appeals, Smith filed a Motion for Appropriate Relief in state court contending, in part, that he had been denied effective assistance of counsel because his attorney failed to call Perry Short as a witness. After a full hearing, the Mecklenburg County superior court denied his motion. Thereafter, he filed a writ of habeas corpus in federal district court. After oral argument, the district court granted the writ and ordered Smith to be discharged from custody unless the state provided a new trial within 120 days. It is that ruling which the state appeals.

II

In order to establish ineffective assistance of counsel, Smith must, of course, prove both that: (1) his counsel's performance fell below an objective standard of...