Streetman v. Lynaugh

• Decision Date: 09 March 1987
• Docket Number: No. 86-2319,86-2319
• Citation: 812 F.2d 950
• Parties: Robert L. STREETMAN, Petitioner-Appellant, v. James A. LYNAUGH, Interim Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 950

812 F.2d 950

Robert L. STREETMAN, Petitioner-Appellant, v. James A. LYNAUGH, Interim Director, Texas Department of Corrections, Respondent-Appellee.

No. 86-2319.

United States Court of Appeals, Fifth Circuit.

March 9, 1987.

Rehearing and Rehearing En Banc Denied April 29, 1987.

Will Gray, Houston, Tex., for petitioner-appellant.

William C. Zapalac, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before RUBIN, JOHNSON, and JONES, Circuit Judges.

JOHNSON, Circuit Judge:

In this capital case, the petitioner Robert Streetman appeals from the district court's dismissal of his petition for writ of habeas corpus, 634 F.Supp. 290. Finding that the facts relevant to Streetman's ineffective assistance of counsel claim have not been adequately developed, we reverse and remand for an evidentiary hearing in order to permit the full development of material facts.

I.

Christine Baker was fatally shot during a burglary of her home on December 17, 1982. Two days later, on December 19, 1982, law enforcement officials arrested Robert Streetman, Johnny Johnson, David Kirkendoll, and Gary Holden in connection with a series of thefts of agricultural equipment. While interrogating the four theft suspects, officials discovered that the men had also been involved in the Baker killing. Later that evening and early the following morning, Streetman gave statements and signed a written confession implicating himself as Baker's killer. ¹ Holden and Kirkendoll also gave statements detailing their involvement and identifying Streetman as the triggerman in the murder.

All four men were indicted for capital murder. Of the four, however, only Streetman was eventually tried for and convicted of capital murder. In exchange for his testimony at Streetman's trial, Holden received ten years' probation. Kirkendoll, in exchange for a plea agreement and his promise to testify, received a sentence of forty-five years in the Texas Department of Corrections. Authorities granted Johnson immunity. Neither Johnson nor Kirkendoll personally testified during Streetman's trial although the State read Kirkendoll's statement to the jury.

The state trial judge initially appointed Michael S. McNeely to represent Streetman. McNeely was inexperienced in handling contested criminal cases and had never before tried a death penalty case. Because of his lack of experience, McNeely requested the trial judge to appoint an experienced attorney to assist in preparing and trying the case. In response to McNeely's request, the trial judge appointed Robert S. Coe, who eventually served as de facto lead counsel at trial.

At the guilt stage of Streetman's trial, the State presented only four witnesses: Ralph Osborne, the Chief Deputy Sheriff of Hardin County, Texas; Nile Henry Baker, the victim's husband; Gary Holden; and Clint Parr, a friend of Streetman. The State's first witness, Deputy Sheriff Ralph Osborne, testified on direct examination regarding his investigation of the Christine Baker murder. Osborne's testimony focused on finding Baker's body and determining from the physical evidence at the scene that she had been murdered. On cross-examination, defense attorney Robert Coe solicited testimony from Deputy Osborne indicating that Streetman, Holden and Kirkendoll had each signed statements giving consistent accounts of the Baker murder and admitting their involvement.

Q. (By Coe): That means, I guess in your opinion, that from your investigation that all four of these people, that you had reason to believe that they're all guilty of capital murder?

A. (Osborne): I couldn't arrive at that, that they were all guilty of murder. Like I say, they was (sic) all charged with it, yes, sir.

Q.: Well, I mean, you had a pretty good idea excluding Johnny Johnson when all three of them said they did it and signed written statements either to you or to the Sheriff's office in the investigation; you'd have a pretty good idea if they signed written statements that they did?

A.: That's correct, yes, sir.

Q.: Did all three of those people sign an indictment--I mean a voluntary statement?

A.: Yes, sir, they did.

Q.: Within those statements, did they all admit their guilt, that they were involved in the killing of Mrs. Baker?

A.: That's correct, yes, sir.

* * *

Q. (By Coe): Now, I'm not asking you if they're worded just a like (sic), but in general, all of the written statements are similar in that they're all talking about that the three of them was (sic) involved in it and as far as you could determine, it (sic) really wasn't any conflict between Holden, Streetman, Kirkendoll or any of them? I mean, the statements all pretty well gives (sic) the same information, don't it (sic)?

A. (Osborne): That's correct. The four of them were kept separate at all times and of the three statements, they are similar, yes, sir.

Q.: I mean, you didn't find one different from the other one to make you believe one was lying and the other one was lying or anything?

A.: That's correct.

In response to a question by defense attorney Coe regarding why only Streetman was being tried for capital murder, Osborne testified that Streetman "told me personally that he [had] shot the lady." Coe solicited this testimony despite the fact that a written pretrial motion to suppress any statements by Streetman had been filed and taken under advisement by the trial court. As a result of Coe's cross-examination of Deputy Osborne, the State was never required to actually introduce Streetman's confession into evidence. In addition, because attorney Coe had opened the door for--indeed elicited--the admission of Kirkendoll's written confession, the State on redirect examination of Osborne introduced Kirkendoll's full statement into evidence. Thus, it was not necessary for Kirkendoll to testify in person, and he did not do so.

Following Deputy Osborne's testimony, the State called three additional witnesses. The State's second witness, Nile Baker, testified regarding the events of the night his wife was murdered. Mr. Baker, who had been away from home much of that evening, did not actually witness either the burglary or murder. The State's third witness, Gary Holden, who was a participant, testified that although he had not actually witnessed the killing, Streetman had admitted shooting Baker during a conversation the following day. The State's final witness, Streetman's friend Clint Parr, also testified that Streetman had admitted during a conversation the day after the murder to "having shot a woman." Although defense attorney Coe cross-examined each State witness, he declined during the guilt phase of the trial to call any defense witnesses on behalf of Streetman.

The jury found Streetman guilty of murder and, after hearing evidence on punishment, returned affirmative answers to the special issues submitted pursuant to Tex.Code Crim.Proc.Ann. art. 37.071 (Vernon 1981). ² Consequently, on August 10, 1983, the trial judge sentenced Streetman to death by lethal injection. On direct appeal, the Texas Court of Criminal Appeals affirmed both Streetman's conviction and sentence. See Streetman v. State, 698 S.W.2d 132 (Tex.Crim.App.1985) (J. Teague).

Streetman's execution was originally scheduled to take place on February 6, 1986. On February 3, 1986, Streetman, now represented by different counsel, filed an application for a writ of habeas corpus in state district court. At the same time Streetman moved to withdraw and recall the warrant of execution. In his state habeas corpus petition, Streetman asserted that he received ineffective assistance of trial and appellate counsel. Streetman's state habeas corpus petition focused principally on Coe's conduct during the guilt stage of Streetman's trial.

The state district court ordered an evidentiary hearing on Streetman's writ application (filed February 3, 1986) to be held the next day on February 4, 1986. At the outset of the hearing, Streetman's habeas counsel moved for a continuance arguing that additional preparation was necessary in order to conduct a meaningful hearing. Specifically, Streetman's attorney argued that he needed time to subpoena witnesses and to discuss matters outside the record with his client. Streetman's attorney stated that he had been contacted regarding the case only a few days earlier, on January 29. The court nevertheless denied the motion concluding that counsel had had a sufficient opportunity to prepare. The court cited the fact that Streetman had signed the habeas corpus application several days earlier, on January 29, 1986.

Both of Streetman's trial attorneys (Coe and McNeely) testified at the state evidentiary hearing. Attorney Coe testified that after discussing the case with Streetman and Streetman's family he determined that no basis existed for challenging the validity of Streetman's confessions. Based on Streetman's confessions and the statements made by Kirkendoll and Holden, Coe concluded that Streetman was certain to be found guilty of murder. Coe testified that this conclusion led him to adopt a trial strategy intended to: focus on reducing punishment by emphasizing the lesser punishment received by Streetman's equally guilty accomplices; disrupt the prosecution by bringing out the most damaging evidence in its least prejudicial form; establish that the victim and her husband were involved in criminal activities thereby lessening jury sympathy for the victim; and emphasize that Streetman had had a troubled and disadvantaged life and was deserving of sympathy. Attorney Coe's co-counsel McNeely, in contrast, testified that he thought Streetman might be acquitted. In particular, McNeely testified that his investigation revealed that Streetman's confessions were involuntary--thus were inadmissible.

Following the evidentiary hearing, the state district court denied Streetman's application for a writ of...