U.S. v. Myers, 90-2224

• Decision Date: 06 November 1990
• Docket Number: No. 90-2224,90-2224
• Citation: 917 F.2d 1008
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kellie J. MYERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1008

917 F.2d 1008

UNITED STATES of America, Plaintiff-Appellee, v. Kellie J. MYERS, Defendant-Appellant.

No. 90-2224.

United States Court of Appeals Seventh Circuit.

Argued Oct. 22, 1990.

Decided Nov. 6, 1990.

Lisa J. Stark, Dept. of Justice, Tax Div., Washington, D.C., Gwenn R. Rinkenberger, Asst. U.S. Atty., Office of U.S. Atty., Hammond, Ind., Daniel P. Butler, Gerrard Hogan, Dept. of Justice, Civ. Div., Appellate Section, Washington, D.C., for plaintiff-appellee.

F. Allen Tew, Jr., Indianapolis, Ind., for defendant-appellant.

Before BAUER, Chief Judge, EASTERBROOK, Circuit Judge, and WILL, Senior District Judge. ^*

EASTERBROOK, Circuit Judge.

Kellie Myers was convicted of conspiring to firebomb the car of a black family of her neighborhood, depriving them of their civil rights in violation of 18 U.S.C. Sec. 241. Doubts about the work of Martin H. Kinney, her lawyer at trial, led us to vacate the conviction and remand for a detailed inquiry into the constitutional adequacy of the defense he provided. 892 F.2d 642 (7th Cir.1990). The district judge took evidence from Kinney and concluded that he made reasoned, tactical decisions. These did not turn out well (no convicted defendant receives effective assistance if the desired effect is acquittal), but shortcomings did not fall below professional standards. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The district judge wrote a careful, 25-page explanation of his conclusions, considering Myers' objections point-by-point.

Although Myers' vigorous appellate counsel identifies nine deficiencies in Kinney's work, two dominate. The first is a contention that Kinney should have moved to sever Myers' trial from that of Randall Neal. The other is the argument that Kinney should have asked for an instruction reminding the jury not to hold against Myers an oblique reference to "another person" in a statement Neal made. Because our earlier opinion sets out the facts, we can be brief.

Both Myers and Neal offered alibis. They had been together smoking and drinking the evening of October 4, 1984, and until 1:30 a.m. on October 5, they conceded, but they said they parted ways at 1:30 and did not participate in the torching that occurred 2 1/2 hours later. The rub is that Neal had to explain away a beer can and a cigarette package, bearing his fingerprints, found near the crime. He did this by testifying that he had fetched beer for Myers, implying that if she dropped the can it was understandable that it had his prints, even though he played no role in the crime. Myers insists that a severance would have protected her from this implication.

Although the evidence was adverse to Myers, the defenses were not mutually exclusive. See United States v. Buljubasic, 808 F.2d 1260, 1263-64 (7th Cir.1987); United States v. Turk, 870 F.2d 1304, 1306 (7th Cir.1989). We remarked in Buljubasic on the strong interest in joint trials and observed that "[f]inger-pointing is an acceptable cost of the joint trial and at times is even beneficial because it helps complete the picture before the trier of fact." 808 F.2d at 1263. So a motion for severance would have had dim prospects. Kinney explained, moreover, that he would not have made the motion even if it were sure to be granted--especially not then. Neal's testimony that he gave the beer to Myers was evidence against her. Kinney reasoned that his best shot to keep the jury from learning this was to participate in a joint trial and hope that Neal would elect to stay off the stand. Kinney told the district court that he feared that, if the cases were severed, Neal would be tried first, convicted, given immunity, and called by the prosecution to testify against Myers--leading not only to this evidence but also to any other tidbits Neal may have had, perhaps even eyewitness testimony about the planning and execution of the firebombing. The district court thought this sound, writing that the "testimony Myers apparently considers to be 'antagonistic' would in all likelihood have been brought out by the government in a separate trial, but there was a chance of it being unavailable in a joint trial." Such findings about historical facts and the probable outcome under different strategies are reviewed deferentially, even though legal conclusions are reviewed de novo. United States v. Olson, 846 F.2d 1103, 1107 (7th Cir.1988); Sullivan v. Fairman, 819 F.2d 1382, 1393 (7th Cir.1987). The district court characterized Kinney's decision as "sound", and under Strickland an attorney's strategic choice is "virtually unchallengeable", 466 U.S. at 690, 104 S.Ct. at 2066.

Myers' most substantial contention is that Kinney should have asked the court to give an instruction reminding the jury not to infer anything from a mysterious reference in one of Neal's statements. A few days after the arson, Neal told Meg McBrayer that he and Myers committed the crime together because Myers' parents were concerned that the presence of a black family would depress property values in the neighborhood. McBrayer relayed that statement to the jury, discreetly replacing Myers' name with "another person" but including the reference to property values. This cured any hearsay problem. There was no problem under the confrontation clause because Neal, the...