Smith v. White

• Decision Date: 01 May 1987
• Docket Number: No. 86-7468,86-7468
• Citation: 815 F.2d 1401
• Parties: Willie Morris SMITH, Petitioner-Appellant, v. J.D. WHITE, Warden, Charles A. Graddick, individually and Donald Siegelman, Attorney General of the State of Alabama, in his official capacity, Respondents-Appellees. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1401

815 F.2d 1401

Willie Morris SMITH, Petitioner-Appellant, v. J.D. WHITE, Warden, Charles A. Graddick, individually and Donald Siegelman, Attorney General of the State of Alabama, in his official capacity Respondents-Appellees.

No. 86-7468

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

May 1, 1987.

Tyrone C. Means, Montgomery, Ala., for petitioner-appellant.

P. David Bjurberg, Asst. Atty. Gen., Montgomery, Ala., for respondents-appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before FAY, ANDERSON and EDMONDSON, Circuit Judges.

EDMONDSON, Circuit Judge:

Willie Morris Smith, an Alabama prisoner serving a life sentence on a robbery conviction and a concurrent twenty year sentence on a conviction for assault with intent to murder, petitioned for a federal writ of habeas corpus. The district court denied the petition, and Smith appealed. We affirm.

I. Sufficiency of Evidence

The first argument Smith raises on appeal is that the evidence was insufficient to support his convictions. The relevant question with respect to such a habeas challenge is whether, after viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). This analysis requires an assessment of the essential elements under Alabama law of the crimes of robbery and assault with intent to murder. See Martin v. Alabama, 730 F.2d 721 (11th Cir.1984).

Under Alabama law in effect in 1975 when Smith committed the crimes, assault with intent to murder required assault, intent to kill a human being, and malice aforethought. See Hall v. State, 348 So.2d 870 (Ala.Crim.App.), cert. denied, 348 So.2d 875 (Ala.1977), cert. also denied, 434 U.S. 1021, 98 S.Ct. 745, 54 L.Ed.2d 768 (1978); Toliver v. State, 50 Ala.App. 654, 282 So.2d 92 (Ala.Crim.App.1973). The offense of robbery had three essential elements: (1) felonious intent, (2) force, or putting in fear as a means of effecting the intent; and (3) by that means taking and carrying away the property of another from his person or in his presence. See Vickerstaff v. State, 374 So.2d 443 (Ala.Crim.App.1979); Fincher v. State, 55 Ala.App. 676, 318 So.2d 371 (Ala.Crim.App.1975).

Smith's convictions resulted from two separate jury trials: Smith was tried first for assault with intent to murder, and then for robbery. In both trials, the government presented, inter alia, the following evidence: Clifford St. John, an eighty-year-old white male, was shot from behind while working in his yard on the morning of November 21, 1985. St. John passed out and subsequently regained consciousness long enough to call for help. At the time St. John was shot, he was carrying a wallet with forty-one dollars in it. The wallet was missing by the time he got to the hospital.

On the same day as the shooting, the police searched with a metal detector and discovered a spent .22 caliber shell approximately 75 feet from where St. John was shot. The next day, St. John's son discovered St. John's billfold on a railroad track west of St. John's house, and a .22 caliber rifle nearby. Without moving this evidence, St. John's son called the police, and then showed it to them when they arrived. The forty-one dollars was missing from the wallet. A firearms expert testified that the markings on the spent shell were consistent with the markings that would be produced by the rifle that was found.

John Goldberg testified that his home at 456 Shannon Hill Road had been burglarized on November 18, 1975, and that among the items which were missing was a .22 caliber rifle. Goldberg identified the rifle which had been found near the railroad track as his own.

Petitioner Smith was arrested on December 8, 1985 for an unrelated burglary. At the police station, Smith was shown a photograph of the .22 caliber rifle. Smith confessed that he had acquired this rifle when he and his friend, John Cotton, burglarized a home at 456 Shannon Hill Road (Goldberg's address).

John Cotton testified at each trial that he had seen petitioner with a rifle. Cotton also testified, however, that he was not sure if the rifle found on the railroad track was the same as the one he had seen in Smith's possession.

Stella Ford, John Cotton's live-in lover, testified that in November, petitioner was sitting with Stella, Cotton, and a third person. According to Stella, petitioner had a rifle across his lap and stated that he was going to take the gun and "go shoot a white mother fucker" with it. Stella further testified that petitioner came back on a subsequent morning and said that he had "shot a white mother fucker."

Although the evidence against Smith was circumstantial, a rational jury could have found that the evidence in Smith's first and second trials established beyond a reasonable doubt the essential elements of assault with intent to murder and robbery, respectively. Therefore, the evidence supporting Smith's convictions was sufficient.

II. Effectiveness of Assistance of Counsel

The second argument raised by Smith is that he was denied effective assistance of counsel at his two trials. Smith alleges that Tom Payne, his appointed counsel, a) labored under a conflict of interest, b) filed neither discovery motions nor other pretrial motions, c) failed to interview potential witnesses whose names Smith supplied, d) failed to seek pretrial suppression hearings, e) discussed with Smith neither defense strategy nor tactics, in general, nor the decision that Smith should not take the stand, in particular, f) wasted a preemptory strike by using it to remove a juror who could have been removed for cause, g) failed to question jurors during voir dire regarding racial prejudice in a case with racial overtones, h) failed to call Smith to testify at suppression hearings during the trials, and i) did not file a motion of autrefois convict after the assault with intent to murder conviction.

We consider first Smith's allegation of conflict of interest. According to Smith, his trial attorney, Tom Payne, labored under a conflict of interest because Payne had previously represented a government witness, Cotton. This conflict had devastating results, Smith alleges, because Cotton was the most likely other suspect for the robbery and attempted murder of St. John.

To establish a sixth amendment violation, Smith must demonstrate both that an actual conflict of interest existed and that such conflict adversely affected the adequacy of his representation. Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984); Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980); Porter v. Wainwright, 805 F.2d 930, 939-40 (11th Cir.1986); Stevenson v. Newsome, 774 F.2d 1558, 1562 (11th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1476, 89 L.Ed.2d 731 (1986).

Thus, the threshold issue is whether Smith demonstrated an actual conflict of interest. A mere possibility of conflict of interest does not rise to the level of a sixth amendment violation. See Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719, Stevenson, 774 F.2d at 1561.

This circuit has adopted a test to distinguish actual from potential conflict:

We will not find an actual conflict [of interest] unless appellants can point to specific instances in the record to suggest an actual conflict or impairment of their interests.... Appellants must make a factual showing of inconsistent interests and must demonstrate that the attorney made a choice between possible alternative courses of action, such as eliciting (or failing to elicit) evidence helpful to one client but harmful to the other. If he did not make such a choice, the conflict remained hypothetical.

Barham v. United States, 724 F.2d 1529, 1532 (11th Cir.) (citations omitted), cert. denied, 467 U.S. 1230, 104 S.Ct. 2687, 81 L.Ed.2d 882 (1984); see also Porter, 805 F.2d at 939; Stevenson, 774 F.2d at 1561.

The federal magistrate in this habeas proceeding conducted an evidentiary hearing. At this hearing, Smith, who was represented by legal counsel, presented testimony and documentary evidence regarding his ineffective assistance of counsel claim in general and the conflict of interest issue in particular. Smith demonstrated that his trial lawyer, Payne, had represented Cotton, a prosecution witness, in a prior case in which Cotton was convicted of selling marijuana. In that earlier case, the court gave Cotton a suspended sentence and placed Cotton on probation on April 4, 1975.

Smith presented evidence at the hearing which suggests that Payne may have continued to represent Cotton with respect to this marijuana conviction even after St. John was shot on November 21, 1975. A certified copy of a "case action summary" for Cotton's marijuana case indicates that on December 19, 1975--after St. John was shot--the court revoked Cotton's probation and put Cotton's previously suspended sentence into effect. Although the case action summary neither explicitly states that a probation revocation hearing was held, nor explicitly states that Payne represented Cotton at such hearing, Payne may have represented Cotton with respect to his probation revocation on December 19, 1975.

Smith, however, introduced no evidence indicating that Payne ever simultaneously represented both Smith and Cotton. Payne was appointed to represent Smith in the case sub judice on about March 19, 1976, and met with Smith for the first time on that date. Nothing in the record suggests that Payne continued to represent Cotton with respect to the marijuana case in March, 1976 or at any time thereafter. At the habeas hearing, Payne testified that "to the best of [his] knowledge," he had ceased to represent Cotton at the time he began to represent Smith.

We therefore treat this case as one of...