Tomlin v. Myers

• Decision Date: 28 July 1994
• Docket Number: No. 93-15247,93-15247
• Citation: 30 F.3d 1235
• Parties: Charles R. TOMLIN, Petitioner-Appellant, v. E. MYERS, Superintendent, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1235

30 F.3d 1235

Charles R. TOMLIN, Petitioner-Appellant, v. E. MYERS, Superintendent, Respondent-Appellee.

No. 93-15247.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 3, 1993.

Decided July 28, 1994.

Gerson S. Horn, William S. Pitman, Law Offices of Gerson S. Horn, Beverly Hills, CA, for petitioner-appellant.

Janet Bangle, Deputy Atty. Gen., Sacramento, CA, for respondent-appellee.

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

Before: KOZINSKI and O'SCANNLAIN, Circuit Judges, and GEORGE, District Judge. ^*

Opinion by Judge KOZINSKI; Dissent by Judge GEORGE.

KOZINSKI, Circuit Judge.

In this state habeas appeal, we consider whether petitioner was represented by constitutionally deficient counsel.

I

Sixteen years ago, Charles Tomlin was convicted of first degree murder for shooting Daniel Stewart during a drug deal gone bad. Stewart and his girlfriend, Laura Leticia Mendez, had arranged to sell nine pounds of marijuana through an intermediary, Charles Tillman. On the night the sale was to take place, everything seemed to go according to plan until Tillman directed Stewart and Mendez to an alley and got out of their truck, promising to return with the money. Seconds later, an armed man got into the truck and directed Stewart, who was at the wheel, to drive. The assailant soon fired his gun in Stewart's direction to get him to comply, which Stewart did, and then robbed them each of a few dollars and ordered Stewart to drive down an alley. When Stewart refused and appeared to reach for a weapon, the man shot Stewart in the head, grabbed the drugs and fled.

Mendez, who was unharmed, immediately provided a description of the assailant to police: a black man, approximately twenty-five years old; about five feet six to eight inches tall, ¹ 150-160 pounds, stocky and broad-shouldered; with a one and a half to two inch afro and, perhaps, a mustache; and wearing jeans and a Pendleton-type shirt. RT 222, 226. ² She also pointed the finger--first at Tomlin's picture, and then directly at him, both in a live line-up and during trial. In fact, Mendez was the prosecution's case. ³

II

The live line-up, however, was illegal. Although Tomlin was represented, his lawyer--apparently through inadvertence on the part of the officers involved--was not notified and did not participate. The state, therefore, could not adduce any evidence of the line-up at his trial. Gilbert v. California, 388 U.S. 263, 273-74, 87 S.Ct. 1951, 1957, 18 L.Ed.2d 1178 (1967). And--if challenged--it would only have been entitled to present Mendez's in-court identification by demonstrating through "clear and convincing evidence that the in-court identification [wa]s based upon observations of the suspect other than the lineup identification." United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149 (1967). Yet Tomlin's counsel never challenged Mendez's in-court identification and, in fact, himself elicited Mendez's testimony that she'd identified Tomlin in a live line-up.

The only issue before us is whether Tomlin's lawyer was constitutionally deficient. To show ineffective assistance of counsel, Tomlin must show that "counsel made errors so serious that [he] was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). There is a "strong presumption that counsel's performance f[ell] within the 'wide range of professional assistance.' " Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 2586, 91 L.Ed.2d 305 (1986) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065).

The district court held that counsel's performance was constitutionally deficient, but that Tomlin was not prejudiced because Mendez's in-court identification was derived from an independent source and would have been admissible under Wade. ⁴ A claim of ineffective assistance of counsel is a mixed question of law and fact, reviewed de novo. Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir.1988); see Adams v. Peterson, 968 F.2d 835, 843 (9th Cir.1992) (en banc).

III

When faced with a client who has been identified in an illegal line-up, most defense attorneys would challenge the admission of any evidence related to it. After all, a defendant "arguably ... has 'everything to gain and nothing to lose' in filing a motion to suppress," United States v. Molina, 934 F.2d 1440, 1447 (9th Cir.1991), especially one involving an identification by the sole eyewitness to the crime.

Of course, "it is not professionally unreasonable to decide not to file a motion ... clearly lacking in merit." Id. The government, however, does not argue that the suppression motion here would have lacked merit, nor could it. Rather, it asserts that Tomlin's counsel had a tactical reason for failing to challenge the admission of this evidence, namely that the state would call Charles Tillman as a witness. See Transcript of Evidentiary Hearing at 250. Tillman had confessed to functioning as an intermediary during the events leading up to Stewart's death. It was he who led Stewart and Mendez to an alley and then disappeared, leaving Stewart and Mendez to the tender mercies of an armed assailant. It would seem a pretty safe bet he'd know the assailant's identity. And he had, according to the police, provided them with Tomlin's nickname, "Treetop," when asked who'd committed the murder. ⁵

In light of this scenario, the state argues, it made sense for Tomlin's counsel to avoid challenging the line-up evidence--which might have led to suppression of Mendez's in-court identification--in order not to force the state to call Tillman as a witness. As the theory goes, defense counsel believed that the state would make a deal with Tillman for his testimony only if it lost Mendez's in-court identification, ⁶ and he thought Mendez's testimony would be easier to impeach than Tillman's.

In a case that so hinges on an eyewitness's testimony, however, it's difficult to assume that a reasonable tactical decision was made not to challenge that testimony. We agree with the district court that the explanation presented by the State is simply too implausible to support a finding that counsel's performance was objectively reasonable. We also have serious doubts whether a competent attorney in this position would have predicted the state could make a better case with Tillman's testimony than with that of an innocent eyewitness. Tillman was, after all, the assailant's apparent accomplice, something certain to affect his credibility in the eyes of the jury; in fact, the trial court would surely have instructed the jury to use caution in weighing his testimony. See CALJIC 3.18 (5th ed. 1988). And, in order to secure a conviction using Tillman's testimony, the State would need corroborating evidence connecting Tomlin to the offense. Cal.Penal Code Sec. 1111 (West 1985); People v. Price, 1 Cal.4th 324, 443-44, 3 Cal.Rptr.2d 106, 821 P.2d 610 (1991). If Mendez's live line-up and in-court identifications were kept out, the only such evidence the state would have had was Mendez's preline-up description of the assailant which, as discussed below, differs in material respects from Tomlin's appearance, and her identification of him in a photo line-up which, as also addressed below, she later testified was in various ways suggestive.

Moreover, the state's version of events does not coincide with counsel's testimony at the state habeas evidentiary hearing. According to counsel, he "was almost certain that [Tillman] was going to be offered a deal on the thing." Transcript of Evidentiary Hearing at 257. Not that this was contingent on whether Mendez would identify Tomlin--indeed, not that it was at all influenced by that fact. He thought it was going to happen. This does not reflect the type of deep strategic planning the state now attributes to Tomlin's counsel.

Nor is there any other basis for finding counsel's actions to have been "the result of reasonable professional judgment." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. Some seven years later, at the evidentiary hearing, counsel seemed to explain that he didn't think the in-court identification would have been excluded because "there had been a previous photographic line-up that would not be a poisoned line-up and would have been admitted." Transcript of Evidentiary Hearing at 258. But he did not indicate that that was the basis on which he chose not to object. In fact, when asked if he would "have any reason for not objecting to [a live line-up in the absence of counsel]," he responded, "No. I certainly--if this was a fact, in retrospect, I certainly should have objected." Id. at 254. He called himself "derelict" for not making a motion on these grounds. Id. at 258-59. Nor could we deem such an approach reasonable, absent some indication the motion would have been lacking in merit. Molina, 934 F.2d at 1447. There is none. And without it, the failure to bring to the court's attention a major constitutional error in the prosecution's case is not the product of reasonable professional judgment.

We therefore agree with the district court that defense counsel's performance fell below an objective standard of reasonableness.

IV

Before making a determination as to possible prejudice, we first take note of another troubling aspect of this case: Mendez didn't just identify Tomlin in court; she also testified she'd identified him previously in a live line-up. That evidence is without a doubt excludable under Gilbert, 388 U.S. at 273-74, 87 S.Ct. at 1957. The twist is, Mendez first revealed this line-up evidence in response to questioning by Tomlin's counsel on cross-examination ("And you later made an identification at a line-up in the Kern County Jail, is that correct? ... At that time the person you identified did not...