Thomas v. Wyrick, 75-1699
| Decision Date | 28 May 1976 |
| Docket Number | No. 75-1699,75-1699 |
| Parties | Sanford THOMAS, Appellant, v. Donald WYRICK, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jack M. Chasnoff, Tucker & Chasnoff, Clayton, Mo., made argument for appellant.
John C. Danforth, Atty. Gen., and Neil MacFarlane, Asst. Atty. Gen., Jefferson City, Mo., made appearance for appellee and filed brief for appellee.
Before CLARK, Associate Justice, Retired, * and BRIGHT and HENLEY, Circuit Judges.
Sanford Thomas seeks habeas corpus relief from his conviction in the state courts of Missouri of first degree murder and from his sentence of life imprisonment. The district court, after an evidentiary hearing, denied Thomas any relief. Thomas appeals, asserting that the assistance afforded by his retained trial counsel fell below minimal constitutional standards and that the prosecutor violated due process by falsely stating that a crucial witness was unavailable due to illness. Thomas has fully exhausted his state remedies. 1 The basic facts underlying petitioner's conviction are relatively uncomplicated. The Missouri Supreme Court accurately summarized them as follows:
On Sunday evening, November 27, 1966, defendant had been riding around the North Florissant and Cass Avenue neighborhood in St. Louis with a number of other youths. About 8 p.m., they went to the Greyhound Bus Station. At the station one Frederick Brown and defendant got into a taxicab, driven by John Dougherty, and the cab proceeded south on Broadway. One of the youths who had been with Brown and defendant at the bus terminal came back to where the others were parked and reported that Brown and defendant were going to 16th and Mullanphy. The others tried to follow the cab but lost it in the traffic and then drove to Brown's house. Sometime later, Dougherty was found in the front seat of his cab at 16th and Mullanphy unconscious. A tooth was knocked out and he was bleeding from two stab wounds in his chest, which wounds proved fatal.
There was further testimony that Brown and defendant later went to Brown's house and entered the back door into the kitchen where the other boys were assembled, and that they threw a watch and wallet on the table and said "that was all they got, they robbed the cab driver." 2 The watch and wallet were later identified as having belonged to Dougherty. One of the youths told his father something about what had occurred and his father reported the matter to the police.
Brown was arrested the next day and pointed out to officers a garbage can in which they found portions of the partially burned wallet and pieces of charred paper that had been in it. The knife used in the murder was given to Niles Pursley by Brown's girl friend and was recovered by the police.
Defendant, who apparently had no previous criminal record, was the only witness for the defense. He stated that after he and Brown entered the cab Brown whispered, "Let's rob the cab driver," but that he refused to go along with that plan and got out of the cab at 14th and Cass. He further stated that he later got another cab and went to 18th and Cass to see if Brown was at his mother-in-law's house; that about that time he saw Brown walking up the street so they both got into another cab and went to Brown's house, where they went inside. Defendant denied participating in the crime and denied that he and Brown walked into the kitchen and threw the watch and wallet on the table and said, "That's all we got out of the robbery." (512 S.W.2d at 118.)
We may also note that Thomas was age 17 at the time of the crime and age 18 at the time of the trial.
Appellant's claim to habeas corpus relief centers primarily upon the admitted failure of his retained trial counsel, Alfred I. Harris (now deceased), to interview any witnesses who might have lent support to petitioner's testimony that he was not present at the time when John Dougherty was killed. The state court found that defense counsel Harris did not interview any witnesses but confined his investigation to discussing the evidence with the prosecutor, learning of the confession of Frederick Brown, Jr. which implicated the petitioner, 3 and reviewing the contents of the state's file, which included statements of the witnesses endorsed by the state on the indictment. See note 6 infra, for an explanation of the practice of endorsement.
Petitioner asserts that there were at least three groups of witnesses which his attorney should have interviewed. First and foremost, petitioner asserts that his counsel should have interviewed Frederick Brown, who had admitted participating in the killing. Brown was clearly available to defense counsel had he wished to conduct an interview. Harris was retained as petitioner's attorney shortly after petitioner was first arrested in February of 1967. Petitioner was confined in the St. Louis city jail from that time until his trial on November 13, 1967. Brown was confined in the same jail. He pleaded guilty to murdering Dougherty on October 17, 1967, and remained in the St. Louis city jail until November 9, 1967, four days before the commencement of petitioner's trial.
The second group of potential witnesses were those other young men who were with Thomas and Brown before and after the killing. Harris evidently made no attempt to interview any of these individuals. Several of these were endorsed on the indictment as potential state witnesses and two, Lonnie Anderson and Niles Pursley, testified for the state at trial.
Thirdly, Harris made no attempt to interview any of the individuals which petitioner asserted he had met at the house of Brown's mother-in-law during his search for Brown after he claimed he had gotten out of the cab. These individuals were Brown's wife, and her cousin. The state court found that had Harris contacted these individuals they would have testified "that Sanford Thomas arrived at their house at some time during the evening and then left." The factual basis for this finding is not clear as these persons did not testify at any post-conviction hearing. Evidently the state court either credited petitioner's testimony or assumed these witnesses would support Brown's statement in some degree. Petitioner testified at the post-conviction hearings that not only would these individuals have confirmed that he came to their house, but also would have testified that he came there alone and that he was looking for Brown. 4
It is not clear why defense counsel made no attempt to contact the persons present at the house of Brown's mother-in-law. They were not endorsed on the indictment as witnesses for the state. Evidently counsel was content to rely on Thomas' testimony alone to establish the facts to which these witnesses could testify.
However, matters are clearer with respect to defense counsel's failure to interview Brown and the other young men who were present before and after the alleged crime. These individuals had been endorsed by the prosecutor upon the indictment as state witnesses. See note 6 infra. Defense counsel testified at the post-conviction hearings that in order to avoid the appearance of impropriety he followed an established custom of not interviewing any government witnesses.
Although Brown was endorsed as a state witness, he did not testify at trial. When the trial commenced, the prosecutor informed the court that Brown would not be called. Defense counsel objected, stating that he anticipated eliciting favorable testimony from Brown on cross-examination. 5 The prosecutor then explained to the court that Brown was suffering from hepatitis and was quarantined. After being so informed, the trial court declined to order the prosecution to call Brown as a witness, but offered to provide assistance to the defense should it wish to call Brown. This offer was never accepted.
It now has been stipulated that the prosecutor was in error when he stated that Brown was quarantined at the time of trial. The basis for this mistake is not clear. There is some indication that a prisoner with a very similar name was in isolation at that time.
All of these events became revealed in dramatic highlight two years after petitioner's conviction when Brown recanted his statements implicating petitioner in the murder. He announced that he had implicated petitioner in order to protect two other individuals who were his close friends. He further stated that had he been interviewed by defense counsel, he would have told the truth at that time. Petitioner asserts that this clearly demonstrates that his counsel's failure to conduct an adequate investigation deprived him of effective assistance of counsel. Petitioner also asserts that in light of Brown's present testimony, the prosecutor's misrepresentation that Brown was unavailable at the time of the trial amounted to a denial of due process and requires reversal.
The district court expressed some uncertainty as to the proper constitutional standard by which petitioner's claim of ineffective assistance of counsel should be assessed. After reviewing our decisions the district court concluded that this circuit still adheres to the "farce or mockery of justice" standard. Applying this standard the district court denied petitioner any relief. However, the district court made the following observations:
This is, undeniably, a close case. If the applicable rule were * * * "reasonably competent assistance of counsel", I believe petitioner would not have been afforded his constitutional right to assistance of counsel.
Because there has been some variance in the language of our opinions and because the proper standard is important in determining this close case, we think it advisable for us to review the applicable law of this circuit.
We first considered an allegation of inadequate investigation and preparation by counsel in ...
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