U.S. v. Baynes

• Decision Date: 10 June 1980
• Docket Number: No. 79-2741,79-2741
• Citation: 622 F.2d 66
• 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 66

622 F.2d 66

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. 79-2741.

United States Court of Appeals, Third Circuit.

Argued May 23, 1980.

Decided June 10, 1980.

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

Peter F. Vaira, U. S. Atty., E. D. Pa., Albert J. Wicks, Sp. Atty., Philadelphia Strike Force, Philadelphia, Pa., William C. Bryson, Joan M. Azrack (argued), Attys., Dept. of Justice, Washington, D. C., for appellee.

Before SEITZ, Chief Judge, and GIBBONS and ROSENN, Circuit Judges.

OPINION OF THE COURT

PER CURIAM:

Appellant Gregory Trice appeals from a decision of the United States District Court for the Eastern District of Pennsylvania denying without an evidentiary hearing his motion to vacate and set aside his sentence brought pursuant to 28 U.S.C. § 2255 (1976). ¹ Trice was convicted on various drug-related offenses in the district court in 1975. At trial, the Government's sole proof against Trice was an electronically intercepted telephone conversation. In his petition for collateral relief, Trice alleges that he was denied his sixth amendment right to the effective assistance of counsel by his trial counsel's failure to utilize a voice exemplar obtained from him by the Government which Trice claims would have proven that he was not the speaker in the intercepted conversation. We vacate and remand for an evidentiary hearing.

I.

Appellant Trice was indicted along with seven co-defendants in 1974 on charges of conspiracy to distribute and possess heroin with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 846 (1976). He was also charged in one of the substantive counts with using a telephone to facilitate the unlawful distribution of heroin in violation of 21 U.S.C. § 843(b) (1976). The defendants were jointly tried in federal court in a nineteen-day trial from January 6 through February 1, 1975. Although the Government adduced substantial evidence against Trice's seven 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. Prior to trial, the Government obtained voice exemplars from all the defendants including Trice, apparently for purposes of comparison with the electronically intercepted evidence.

The Government, however, surprisingly failed to introduce the voice exemplars into evidence or make any attempt to verify scientifically that the voices on the electronically intercepted tapes were those of the defendants. ² In Trice's case, the Government identified his voice on the intercepted telephone conversation through an in-court identification by a police officer connected with the case.

According to Trice, despite his repeated urgings, defense counsel made no attempt to obtain a copy of the voice exemplar and utilize it to disprove that Trice was the person involved in the incriminating telephone conversation. Instead, counsel relied on cross-examination of the identifying police officer to undermine the Government's case. Counsel also sought an instruction commenting on the Government's failure to introduce Trice's voice exemplar into evidence, but this request was denied. Counsel, in his closing argument, did refer to the Government's failure to use the voice exemplar but upon the prosecution's objection the jury was instructed to disregard the argument. The jury subsequently convicted Trice and he was sentenced to prison terms totalling fifteen years and fined $7500. His conviction was affirmed by this court in December 1976. United States v. Baynes, 547 F.2d 1164 (3d Cir. 1976).

Trice subsequently filed a pro se section 2255 motion to vacate sentence on November 3, 1978, alleging, inter alia, the ineffective assistance of trial counsel for failing to (1) listen to the tape of the intercepted conversation prior to trial; (2) listen to the voice exemplar; (3) compare the taped conversation and the voice exemplar; (4) file motions seeking the tape and exemplar; (5) use the exemplar for exculpatory purposes at trial; and (6) raise the exemplar issue either in post-trial motions or on direct appeal. The district court denied Trice's section 2255 motion without requiring a government response to the petition or conducting an evidentiary hearing. This appeal followed.

II.

We note at the outset that we are not asked to review the merits of Trice's section 2255 motion at this time. We are asked solely to determine whether the district court erred in failing to grant an evidentiary hearing on the motion.

We are mindful that in a pro se section 2255 petition we must accept "as true the allegations of the petitioner, unless they are clearly frivolous." Moore v. United States, 571 F.2d 179, 184 (3d Cir. 1978) (footnote omitted); United States v. Williams, 615 F.2d 585, 591 (3d Cir. 1980). The district court is required by 28 U.S.C. § 2255 to conduct an evidentiary hearing "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." However, the petitioner must show that the district court abused its discretion in failing to conduct an evidentiary hearing. Williams, supra, 615 F.2d at 591; Page v. United States, 462 F.2d 932, 933 (3d Cir. 1972).

With these considerations in mind, we turn to Trice's argument. Trice contends that his trial counsel's representation was constitutionally defective because counsel failed to investigate and utilize the voice exemplar as exculpatory evidence. Trice vigorously asserts that had counsel listened to the exemplar and compared it with the Government's intercepted telephone conversation, the comparison would have conclusively rebutted the sole item of the Government's proof against him. Trice further alleges that he repeatedly implored his counsel to obtain and utilize the voice exemplar but these requests were ignored.

The Government, in response argues that trial counsel's decision not to utilize the voice exemplar was a "tactical decision" well within the acceptable range of effective representation. It cites counsel's vigorous conduct of all other aspects of Trice's defense including an extensive cross-examination of the police officer who identified Trice as the speaker on the intercepted telephone conversation.

The standard for sixth amendment effective assistance of counsel is well-established in this circuit. "(T)he standard of adequacy of legal services as in other professions is the exercise of the customary skill and knowledge which normally prevails at the time and place." Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970) (en banc) (footnote omitted); Williams, supra, 615 F.2d at 593-94. The defendant bears the burden of proof to demonstrate ineffective assistance of counsel. Williams, supra, 615 F.2d at 594; United States ex rel Johnson v. Johnson, 531 F.2d 169, 174 (3d Cir.), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976).

We believe Trice has made out a sufficient case of ineffective assistance of counsel to warrant an evidentiary hearing. Although the decision whether or not to utilize a particular item of evidence may be a matter of trial strategy within the acceptable bounds of trial counsel's discretion, we believe the failure to investigate a critical source of potentially exculpatory evidence may present a case of constitutionally defective representation. Defense counsel is under an ethical obligation "to conduct a prompt investigation of the circumstances of the case and explore all avenues...