U.S. v. Baynes

• Decision Date: 11 August 1982
• Docket Number: No. 81-1620,81-1620
• Citation: 687 F.2d 659
• Parties: UNITED STATES of America v. Eugene BAYNES, a/k/a Bo, James Fox, Eugene Hearn, Russell Barnes, Barthaniel Thornton, William Jefferson, a/k/a Skinny, Terry, Ferris Foster, Gregory Trice. Appeal of Gregory TRICE.
• Court: U.S. Court of Appeals — Third Circuit

Page 659

687 F.2d 659

UNITED STATES of America v. Eugene BAYNES, a/k/a Bo, James Fox, Eugene Hearn, Russell Barnes, Barthaniel Thornton, William Jefferson a/k/a Skinny, Terry, Ferris Foster Gregory Trice Appeal of Gregory TRICE.

No. 81-1620.

United States Court of Appeals Third Circuit.

Argued June 8, 1982.

Decided Aug. 11, 1982.

Thomas A. Bergstrom (Argued), Philadelphia, Pa., for appellant.

Peter F. Vaira, U. S. Atty., E. D. Pa., Albert J. Wicks, Philadelphia Strike Force, Philadelphia, Pa., Gloria C. Phares (Argued), Dept. of Justice, Washington, D. C., for appellee.

Before ADAMS and WEIS, Circuit Judges, and BLOCH, District Judge. ^*

OPINION OF THE COURT

ADAMS, Circuit Judge.

In United States v. Baynes (Appeal of Trice), 622 F.2d 66 (3d Cir. 1980), this Court ordered that an evidentiary hearing be held with respect to the habeas petition brought by Gregory Trice, who claimed he had not received the effective assistance of counsel at his trial. On remand, after conducting such a hearing, the district court determined that Trice's constitutional right to effective assistance had been infringed, but held that no prejudice resulted to the petitioner therefrom. We agree that Trice's sixth amendment rights were violated by his trial counsel's admitted failure to investigate potentially exculpatory information. Unlike the district court, however, we cannot conclude that Trice was not prejudiced by his counsel's shortcomings. Accordingly, the judgment of the district court will be reversed.

I

Appellant Trice, along with seven co-defendants, was indicted in 1974 for conspiracy to distribute and possess heroin. In February 1975, he was convicted after a jury trial and sentenced to a prison term of fifteen years, which he immediately began serving. That conviction was affirmed without opinion by this Court, United States v. Baynes, 547 F.2d 1164 (3d Cir. 1976).

Subsequently Trice filed a petition for a writ of habeas corpus, alleging that he had been inadequately assisted by counsel at trial. The district court denied this application without a hearing. On appeal, this Court reversed and remanded for an evidentiary proceeding pursuant to 28 U.S.C. § 2255. United States v. Baynes, 622 F.2d 66 (3d Cir. 1980) (hereafter cited as Baynes).

According to this Court's opinion in Baynes, although "substantial evidence" was proffered at trial against each of his co-defendants, "the Government's entire case against Trice was predicated on an electronically intercepted telephone conversation of merely twelve words allegedly involving Trice and implicating him in the drug conspiracy." 622 F.2d at 67. Prior to trial, the Government had obtained from Trice a voice exemplar; however, that exemplar was never introduced into evidence by the prosecution, a fact which this Court labeled "surprising." Id. On his habeas appeal, Trice contended that, despite his repeated urgings, his defense counsel had made no attempt to listen to the exemplar and compare it with the Government's intercepted recording. Trice insisted that it was not his voice on the telephone recording, and that any diligent investigation by his lawyer would have revealed this fact and led to Trice's exoneration by the jury. Rather than conduct such an investigation, Trice's counsel did nothing with respect to the exemplar, choosing instead to cross-examine the officer at trial who identified the voice on the intercepted recording as belonging to Trice. ¹ Id. at 68.

The Court in Baynes accepted as true the allegations contained in Trice's petition, as required by the habeas statute. After reviewing this Circuit's standard for measuring inadequate assistance claims, discussed infra, the Court concluded that Trice had made out a case sufficient to warrant an evidentiary hearing. The panel expressed no opinion, however, whether Trice was entitled to collateral relief:

That determination can only be made after the district court makes a full inquiry into the facts surrounding trial counsel's alleged failure to investigate and utilize the voice exemplar. Such an inquiry may well require comparison of the voice exemplar with the intercepted telephone conversation to determine whether counsel's failure to explore the exemplar issue prejudiced Trice's case.

Id. at 69-70.

At the hearing on remand, Trice testified that he repeatedly had urged his attorney to listen to the voice exemplar, "because I was certain that the conversation that was allegedly attributed to me in this conspiracy was not, in fact, me at all, and I felt that the exemplar would bring ... this to light." Transcript of proceeding (July 31, 1980), Appendix at 68-69. Trice's trial counsel, who also testified at the habeas hearing, admitted that Trice "consistently" had indicated that his was not the voice on the intercepted recording; in fact, Trice had rejected a plea bargain arrangement of "four or five years" imprisonment, contending that he was innocent of the charges. Id. at 36, 39. Trial counsel also testified that, although he had accompanied his client when the voice exemplar originally was made, he had never listened to it again, and thus had never compared the exemplar with the intercepted recording. Id. at 35. When asked to explain why he had not made use of the voice exemplar in preparing Trice's defense, the attorney observed: "Frankly, I was fearful of using it. I didn't know what it would say and if it-if it were close, as a trial tactic (it) would have been stupid, I thought, in my humble opinion." Id. at 48. Additionally, counsel disclosed that, during the trial itself, when the intercepted conversation allegedly involving Trice was being played in court, counsel was informed by one of Trice's co-defendants that the taped voice in fact belonged to him (the co-defendant) and not to Trice. ²

Relying primarily on the above, the district court concluded that the attorney who represented Trice at trial had been constitutionally ineffective, in that he had failed to conduct an investigation designed to reveal whether the exemplar and the intercepted recording contained the same voice. Despite this finding, the court held that Trice was not entitled to habeas relief because he was unable to demonstrate that his attorney's negligence had prejudiced his defense.

First, the district court concluded that Trice was not prejudiced by his trial counsel's failure to procure a scientific comparison of the intercepted recording and the voice exemplar. Over Trice's objection, see Appendix at 197-204, and despite the Government's expressed reservation that "the technical uncertainties concerning the present practice of voice identification are so great as to require that forensic applications be approached with great caution," see id. at 205-06, the district judge ordered that a spectrographic analysis of the two recordings be prepared by a government expert. That expert subsequently concluded, in a written report to the court, that the voices on the intercepted recording and the exemplar belonged to "one and the same person." ³ The district court reasoned therefrom that because "(t)he results of the spectrograph analysis suggest that Trice was a speaker in the subject incriminating telephone conversation," his trial attorney's neglect in not obtaining a spectrographic assessment could not be deemed prejudicial, inasmuch as "a scientific comparison by trial counsel would not have yielded evidence of an exculpatory nature or of a nature possibly altering the jury's decision."

Neither, the district court continued, could Trice demonstrate prejudice resulting from his trial counsel's failure to conduct an aural comparison of the exemplar with the intercepted telephone recording. At the habeas hearing, Trice established that the two recordings contained varying pronunciations of three different words. ⁴ Additionally, the Government witness who testified that, in his opinion, the same person was speaking in both recordings, on cross-examination not only admitted that he had not detected the three pronunciation discrepancies, but also conceded that it was "absolutely" possible for someone else to conclude, after aurally comparing the two recordings, that the voices contained thereon belonged to different persons. ⁵ Despite this evidence and testimony, however, the district court was unpersuaded that trial counsel's failure to discover and exploit the pronunciation differences on the two tapes prejudiced Trice's defense. To begin with, the district court observed that even though nothing in the record "suggest(ed) that Trice modified his speech either intentionally or unintentionally" in making the voice exemplar, it was a matter of "common sense" that "this in fact may have occurred," considering that "the motivation and opportunity to give a deceitful exemplar is easily discernable." More to the point, the district court dismissed the three pronunciation differences uncovered at the habeas proceeding as "de minimis," in view of the fact that more than 400 words, some of them "difficult" and "capable of more divergent pronunciation" were uttered identically on the two recordings. In addition, the name of the police officer ("D'Amico") was mispronounced consistently in the voice exemplar and the recorded telephone conversation. The district court therefore "found" that even had the jury been made aware of the pronunciation variances,

(its) verdict would have remained unaltered, and thus Trice was not prejudiced. The difficulty of speculating upon the possible effect of this newly-discovered evidence pales in comparison to the Court's recollection of the entire trial and the conduct of all participants .... The Court's conclusion that the jury's verdict would not have been altered is unequivocable (sic ).

(citation omitted).

Finally, during a portion of the intercepted conversation, the parties discussed a contemplated visit, apparently scheduled for some time in May 1974, to a certain...