U.S. v. Teller, 84-1783

• Decision Date: 23 May 1985
• Docket Number: No. 84-1783,84-1783
• Citation: 762 F.2d 569
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stephen TELLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 569

762 F.2d 569

UNITED STATES of America, Plaintiff-Appellee, v. Stephen TELLER, Defendant-Appellant.

No. 84-1783.

United States Court of Appeals Seventh Circuit.

Argued Feb. 28, 1985.

Decided May 23, 1985.

Philip S. Beck, Chicago, Ill., for defendant-appellant.

Lawrence Anderson, Asst. U.S. Atty., Joseph P. Stadtmueller, U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, and CUDAHY and POSNER, Circuit Judges.

CUDAHY, Circuit Judge.

Defendant Stephen Teller pled guilty to one count of assault resulting in serious bodily injury and was sentenced to incarceration for a term of ten years. After he had been sentenced, Teller moved to withdraw his guilty plea pursuant to Rule 32(d), FED.R.CRIM.P. The district court held an evidentiary hearing on the motion but denied relief. Teller now appeals the denial of relief, arguing that his guilty plea was not knowing, voluntary and intelligent, first because of the ineffectiveness of his counsel when informing him of the consequences of acquittal by reason of mental disease or defect, and second because it was entered while he was under the influence of drugs and alcohol. We affirm.

I.

Teller was indicted on July 14, 1981, and charged with two counts of robbery within the Indian country in violation of 18 U.S.C. Secs. 1153 & 2111. He originally pled not guilty but later changed this to not guilty by reason of mental disease or defect. A plea bargain was subsequently reached, and on July 30, 1982, Teller pled guilty to one count of assault resulting in serious bodily injury in violation of 18 U.S.C. Secs. 1153 & 113(f).

At the plea hearing, the United States offered to prove that on the afternoon of July 3, 1981, Teller, an enrolled member of the Menominee Indian Tribe, was operating a green sedan proceeding in a northerly direction on Highway 55 near Keshena, Wisconsin on the Menominee Indian Reservation. ¹ After pulling behind an automobile driven by Thomas Steidl, a non-Indian, in which Thomas Steidl's father Edward was a passenger, Teller repeatedly rammed his automobile into the rear of their vehicle. The Steidls stopped their vehicle by a wayside; Teller pulled behind them and stopped also. Teller then approached Thomas Steidl and forcibly pulled him from the automobile. Teller struck Thomas Steidl several times, first with his fists and then with a piece of wood, variously described as a club or a stick, which Teller got from his automobile. Teller then took the younger Steidl's wallet, which contained forty to fifty dollars, and his car keys, watch and credit cards.

At this point, Edward Steidl approached the driver's side of the vehicle in an attempt to aid his son. As the elder Steidl did so, Teller intentionally struck him over the head with his club. As a result of this blow, Mr. Steidl suffered a concussion and sustained a deep head wound which required numerous stitches. Teller then took a coin purse belonging to Edward Steidl and fled the scene.

The district court accepted the guilty plea to the assault charge, and Teller was sentenced to ten years imprisonment. Teller filed a pro se notice of appeal at the same time his appointed counsel filed a motion to withdraw the guilty plea, pursuant to Rule 32(d), FED.R.CRIM.P., and another motion not here relevant. On direct appeal the conviction was affirmed in an unpublished order, United States v. Teller, 714 F.2d 150 (7th Cir.1983) (mem.), after which jurisdiction revested in the district court for consideration of the pending motions. The district court held an evidentiary hearing on the issues raised by the motions, and, on April 11, 1984, issued a Decision and Order denying the motions. United States v. Teller, No. 81-CR-110 (E.D.Wis. Apr. 11, 1984).

During Teller's original plea hearing, the district court noted that Teller was composed and articulate. Plea Tr. at 42, 44. This condition is apparently in contrast to Teller's behavior when under the influence of drugs or alcohol. See Plea Tr. at 26-27. Teller himself advised the court that he was controlling his alcohol problem. Plea Tr. at 21, 40. Teller's experienced trial counsel, who had had previous opportunities to observe him, stated that he had no qualms about the court's accepting Teller's guilty plea. Plea Tr. at 9.

At the evidentiary hearing on Teller's Rule 32(d) motion, held on March 9, 1984, Teller testified, as did his wife, his mother, his court-appointed trial counsel, Mr. Robert LeBell, and a Deputy U.S. Marshall. Teller testified that his attorney had withdrawn the not guilty by reason of insanity plea without his, Teller's, knowledge, and that LeBell advised him as follows:

He says that he felt the jury wouldn't buy it, just 'cause I was messed up on drugs and alcohol that they wouldn't buy it, that I did the incident which I'm accused of; and he said if they did buy it, if they did go for it, I would more than likely spend the rest of my life in an insane asylum.

* * *

Well, he said he thought the jury wouldn't buy the idea of an insanity plea because of drugs and alcohol. He said, "If they did," he says, "you would more than likely spend the rest of your life in an insane asylum."

Tr. at 10-11. Teller further testified:

He [attorney LeBell] told me that that was life in an insane asylum, you know. He never mentioned that before. He never really explained nothing to me about the results of one of these hearings at all, and that's the first time he ever said anything about what kind of a sentence I'd get, and he said that I would get life, and I said, "No, no," I said, "I don't want to mess with no life."

Tr. at 22-23.

On the issue of intoxication, Teller testified that the night before the sentencing he was drinking a little bit and took about eight quaaludes. Tr. at 17. He said that the following morning his mother drove him to Keshena to meet the United States Marshal and that during this drive he took two more quaaludes. Tr. at 18. Teller testified that after he arrived in Milwaukee at about 11:00 or 11:30 a.m., he went to a bar where he had two shots of whiskey and took a third quaalude. Tr. at 20. Teller further testified that he then walked to his attorney's office and thereafter appeared at the sentencing. Teller acknowledged that he knew he was pleading guilty but claimed that "my mind wasn't in the right place, I know that, because I was--I had consumed like I say several quaaludes." Tr. at 23-24.

Attorney LeBell testified that two psychiatrists, Dr. Richard Gerhardstein and Dr. Frederick Fosdal, had examined Teller and that both had concluded that an insanity defense had no merit. Tr. at 33-35. LeBell said that Teller was also examined by a psychologist, Dr. Samuel Friedman, whom LeBell had used over 100 times. LeBell testified that although Friedman's report stated that Teller's condition was such as to render him incapable of forming intent, Friedman had advised him that "he had very little to back it up." Tr. at 35. LeBell also testified that he believed the prosecutor "would have made in essence mincemeat of [Friedman] on the witness stand." Tr. at 35-36. Indeed, when questioned by LeBell, the three experts "all agreed that they would be significantly embarrassed by the government" if their testimony were introduced to negate intent. Tr. at 34.

In regard to his conversations with Teller on this subject, LeBell stated:

I indicated to Mr. Teller that we had three doctors. One doctor was technically supporting his position. The other two were adamantly against, or actually I shouldn't say adamantly. They were not going to support his position.

I also told him that I spoke to Doctor Friedman who I've used on probably 100 occasions, and I was convinced that in my experience this was the weakest NGI [not guilty by reason of insanity] defense I could ever propose to any of my clients.

Not only that, but that the intent defense was not going to fly either.

Tr. at 35.

On the question of exposure, attorney LeBell testified that:

I basically said he runs the exposure of being institutionalized in an asylum such as the term he uses or actually a mental health facility for a period not to exceed the maximum duration of the sentence should he actually be found guilty, that they could quite possibly extend it on a civil procedure, and that theoretically as a murder case somebody could spend the rest of their life in a hospital.

I thought that in his case and I advised him in his case, I didn't think that that was what was going to happen, that he would spend some time in a hospital and then be released.

Tr. at 36-37. LeBell also testified that:

I advised him of that on a number of occasions, I believe before we entered the [not guilty by reason of mental disease or defect] plea, after we entered the plea and once we had gotten reports back from various doctors.

Tr. at 37.

In explaining Teller's decision to plead guilty to the reduced charge, LeBell testified:

Mr. Teller and I had a number of long conversations on the phone. He was of the belief that the NGI, at least not guilty by reason of mental disease would prevail.

After talking to me, he recognized that it would not, and he ultimately decided to take the negotiations.

Tr. at 38. LeBell further testified that Teller reaffirmed his decision to plead guilty immediately prior to the hearing. LeBell stated that while he did not feel he talked Teller into changing his plea, he did advise him to "take the negotiation" because he felt it was in Teller's best interest. Tr. at 41.

In regard to Teller's intoxication claim, LeBell testified that on the day of the plea he was concerned about Teller being under the influence of alcohol. Tr. at 40. He further testified that in observing Teller that day, he did not detect anything which indicated to him that Teller was either intoxicated or under the influence of drugs. Tr. at 40, 45.

The deputy marshal who transported Teller from the Menominee Indian Reservation to...