Towns v. Smith

Decision Date07 January 2005
Docket NumberNo. 03-1988/2030.,03-1988/2030.
Citation395 F.3d 251
PartiesParrish TOWNS, Petitioner-Appellee/Cross-Appellant, v. David SMITH, Warden, Respondent-Appellant/Cross-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Laura Graves Moody, Office of the Attorney General, Lansing, Michigan, for Appellant.

Craig A. Daly, Detroit, Michigan, for Appellee.

Before: MARTIN and BATCHELDER, Circuit Judges; JORDAN, Senior District Judge.*

BOYCE F. MARTIN, JR., Circuit Judge.

David Smith, Warden, appeals the district court's conditional grant of Parrish Towns's petition for a writ of habeas corpus. Because Parrish Towns's two brothers also are involved in this case, we generally will refer to Parrish Towns by his first name. The district court held that Parrish's trial counsel rendered ineffective assistance in violation of the Sixth Amendment by failing to investigate a witness who had admitted to the police, among others, that he had been involved in the crimes of which Parrish was ultimately convicted and that Parrish had played no part in those crimes. For the reasons that follow, as well as those expressed in the district court's well-reasoned opinion, we AFFIRM.

I.

Parrish Towns was convicted and sentenced to life in prison for his role in the 1982 robbery and murder of Wilma Steward. The sole eyewitness to the crime was a man named Roland Higgs, who also was robbed by the perpetrators but who survived. Soon after the murder, the police arrested an individual named Michael Richard on an unrelated charge. At the time of his arrest, Richard was in possession of a handgun, which—after Richard was released from custody—was determined to be the gun used to shoot Steward. The police also learned that Richard had committed a number of robberies in the past. Collectively, this information led the police to suspect that Richard was involved in the Steward robbery and murder, and they obtained and executed a warrant for his arrest.

Although he initially denied any involvement in the crime, Richard later admitted to an officer named Sergeant Brantley that he had, in fact, driven the get-away car, but that "Willie and his brother" were the individuals who actually robbed and shot Steward. Police determined that the "Willie" to whom Richard had referred was Willie Towns, one of Parrish's brothers, whom they proceeded to arrest. Richard subsequently told two other officers, Sergeant Sterr and Lieutenant Morrison, that the "brother" who committed the murder with Willie Towns was Kevin Towns, Parrish's other brother. Based upon this revelation, about which Sterr and Morrison informed Brantley as well as the prosecutor, the police obtained an arrest warrant for Kevin Towns and a search warrant for the Towns residence.

When the police arrived at the Towns residence, they found Parrish, who, at the time, physically resembled Kevin. Both brothers were described as being 5' 10" tall and weighing 175 pounds, and there was only a one-year difference in their ages. At this point, for reasons that never have been adequately explained, the police switched their focus from Kevin to Parrish. They asked Parrish to accompany them to the police station, which he did, and proceeded to put him in a line-up. Higgs, the eyewitness, tentatively identified Parrish as one of the perpetrators, but only on the basis of Parrish's height and weight, which—as explained—were similar to Kevin's. Moreover, Higgs emphasized that he "couldn't be sure of any identification" that he made. Later, Higgs firmly identified Willie Towns as the second perpetrator in photographic and live line-ups. Willie and Parrish Towns were ultimately tried jointly for their alleged roles in the Steward murder. It remains unclear why Richard never has been prosecuted for his role in this crime, as well as why the police never executed the warrant for Kevin Towns's arrest.

The prosecutor initially intended to call Richard as a witness at trial—presumably because he had implicated Willie Towns in the Steward murder—but changed his mind at the last minute. After the court granted the prosecutor's motion to strike Richard's name as a prosecution witness, Parrish's defense counsel insisted on having the opportunity to visit Richard in the county jail, where he had been transferred in anticipation of his trial testimony, to determine what Richard's testimony would be and whether it would be beneficial to call him as a witness in Parrish's defense. Counsel explicitly stated to the trial judge that "I have to speak with him first" in order to decide whether to call Richard as a defense witness. Richard was kept in the county jail over night, at counsel's request, but counsel never made any attempt to contact him. The following day, counsel informed the court that he would not be calling Richard as a witness.

Not surprisingly, the prosecution's case against Parrish was weak. There was no direct evidence linking him to the crimes and the strongest evidence against him was Higgs's eyewitness testimony, which was equivocal at best. Parrish's primary defense was alibi, and he called several witnesses who established his whereabouts on the evening in question. First, Marion Wimberly testified that Parrish helped her move throughout that afternoon and evening. She stated that Parrish arrived at her house at 1:00 p.m. and helped her until 7:35 p.m. when she went to get a trailer. When she returned at about 8:00 or 8:15, she stated, Parrish was still there and he continued to help her move until 1:00 a.m., when her grandfather drove him home. Second, Chester McCoy, Wimberly's grandfather, testified that he arrived at Wimberly's home at 6:00 p.m. and that Parrish was with him continuously from that time until 1:00 or 1:30 a.m. Third, Yolanda Wimberly, Marion's sister, testified that Parrish helped in the move, that he arrived at about noon or 1:00 p.m., that she and Parrish went to a restaurant together at 2:00 p.m., and that she was with Parrish until 1:00 or 1:30 a.m. Finally, Parrish's mother testified that Parrish returned home at approximately 1:00 a.m. after helping his friend move, and that he had called her that evening to tell her that the friend's grandfather would be driving him home.

Following this alibi testimony, the prosecution called Sergeant Dunn to the stand as a rebuttal witness. Dunn testified that on the day of his arrest, Parrish denied any involvement in the Steward murder and told him that he was at an arcade on the day of the murder. Although Parrish never testified at trial, he testified at the habeas evidentiary hearing that he initially told the police he was at an arcade because that was his normal routine and he had no specific recollection of his activities on the day of the murder, which was two weeks earlier.

At the conclusion of the trial. Willie and Parrish Towns both were convicted of robbery and first degree felony murder. Approximately nineteen years after his conviction, and after the state courts declined to grant relief, Parrish filed the instant habeas petition in the district court. His petition asserted a number of claims, including a claim for ineffective assistance of trial counsel. The Warden argued in the district court—and continues to argue in this appeal—that Parrish's ineffective assistance claim should be dismissed pursuant to the doctrine of laches because critical witnesses and evidence are no longer available, thereby impairing the Warden's ability to defend against the claim. The Warden also argued—and continues to argue—that the other claims asserted in the petition are barred by procedural default. According to Parrish, however, any procedural default that may have occurred with respect to those claims should be excused because he is actually innocent of the crimes of which he was convicted.

By order of the district court, the magistrate held an evidentiary hearing on the actual innocence issue. Although the hearing focused specifically on actual innocence, much of the testimony elicited also is relevant to Parrish's ineffective assistance claim. For example, attorney Darwin Fair testified about an interview that he conducted with Michael Richard in connection with a state court motion for relief from judgment that he had filed on Parrish's behalf. According to Fair, Richard told him that he was familiar with the facts and circumstances surrounding Parrish's conviction and that he had personal knowledge that Parrish had nothing to do with the offenses for which he had been convicted. Further, Richard indicated to Fair that he was never contacted by Parrish's trial counsel, despite his willingness to testify at trial that Parrish was not involved in the Steward murder. Based upon this information, Fair prepared an affidavit for Richard to sign, although Richard never actually signed it.

Parrish's mother also testified, as she did at trial, that Parrish returned home at approximately 1:00 a.m. on the night in question, after helping his friend move. She also explained that Richard was a friend of her son Willie but not of Parrish. Finally, she testified that on the day before Parrish's trial, she received a phone call from someone identifying himself as Michael Richard, who said that he was calling from jail and informed her that Parrish was not involved in the Steward murder.

At the beginning of the second day of the habeas evidentiary hearing, Parrish's attorney indicated that he intended to call Richard as his next witness. Because Richard had expressed a reluctance to testify without a formal grant of immunity, the magistrate appointed attorney Epstein of the Federal Defender's Office to represent him. After consulting with Richard, Epstein informed the court that Richard was unwilling to testify without a grant of immunity from prosecution and that, if called without immunity, he would invoke his Fifth Amendment privilege against self-incrimination. For...

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