U.S. v. Weston, s. 82-1545

• Decision Date: 25 May 1983
• Docket Number: Nos. 82-1545,82-1863,s. 82-1545
• Citation: 708 F.2d 302
• Parties: 12 Fed. R. Evid. Serv. 1941 UNITED STATES of America, Plaintiff-Appellee, v. Richard L. WESTON and Drucilla Merida Thompson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 302

708 F.2d 302

12 Fed. R. Evid. Serv. 1941

UNITED STATES of America, Plaintiff-Appellee, v. Richard L. WESTON and Drucilla Merida Thompson, Defendants-Appellants.

Nos. 82-1545, 82-1863.

United States Court of Appeals Seventh Circuit.

Argued Feb. 22, 1983.

Decided May 25, 1983.

Steven R. Levin, Chicago, Ill., for defendants-appellants.

Paula E. Lopossa, Asst. U.S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Before PELL and BAUER, Circuit Judges, and GRAY, Senior District Judge. ^*

PELL, Circuit Judge.

Defendant Richard Weston was convicted of interstate transportation of stolen property and defendant Drucilla Merida Thompson was convicted of aiding Weston in transporting the property. Defendants were jointly represented at trial by one attorney. Defendants waived any conflicts of interest that might arise from joint representation but now claim that they were denied the effective assistance of counsel by their attorney's actual performance, which they claim fell below the minimum required level of professional representation to which they were entitled. In support of this claim they point to several instances in which counsel allegedly failed to provide adequate representation.

I. Facts.

On July 6, 1981, William and Linda Stevenson were robbed in their home in Bethel, Ohio. After the robbery the Stevensons, their son, and Mr. Stevenson's brother-in-law were found shot to death in the house. Jewelry, including a diamond ring, cash, and a .44 Magnum revolver were taken from the Stevensons' home.

Carol Thompson, daughter of the Stevensons, testified that she had seen defendant Weston and a metal dealer named Ron Thomas in her parents' home the evening before the murders. At the time of the robbery defendants were living with Janice Freeman in Indiana. Freeman testified that Weston left the house on the afternoon of July 5 and did not return until the next morning. During Weston's absence Drucilla Thompson seemed nervous. When Weston returned to Freeman's home he showed the women a large amount of cash, a diamond ring and a revolver, items which were later identified by Carol Thompson as having belonged to her parents.

During the evening of July 7 Weston, in the presence of Drucilla Thompson, told Freeman that he had gone to Ohio and robbed the Stevensons. Both defendants asked Freeman for a shovel and, when Freeman said that she did not have one, asked where one could be purchased. The next day defendants returned from an outing and presented Freeman with a shovel. Several days later defendants purchased a pick-up truck from a neighbor, paying $5,000 in cash. Defendants attempted to convince Freeman to say that they had not gone anywhere on July 5 or 6 if asked.

Agents of the Federal Bureau of Investigation (FBI) arrested Weston on July 14 and began trailing Thompson. During this period Thompson frequently drove with Freeman to an area known as Tunnel Road. On one occasion Thompson pointed to a particular spot and stated, "that's where the money and rings are buried." FBI agents later exhumed a plastic garbage bag from this area. The plastic bag contained a duffel bag bearing the name R. Weston, a large amount of cash, Mrs. Stevenson's diamond ring and the revolver taken during the robbery. Also found in the duffel bag were various personal items belonging to Weston and a money wrapper bearing Weston's fingerprints. Weston was charged with interstate transportation of the diamond ring.

Prior to trial, defense counsel made an oral motion to bar the introduction of evidence relating to the robbery and killings at the Stevenson residence. The court granted the motion with respect to the killings but ruled that evidence of the robbery was admissible to prove defendants' knowledge that the ring was stolen.

II. Alleged Ineffective Assistance of Counsel.

Defendants complain that their attorney, having obtained protection from the prejudicial impact knowledge of the murders would have on the jury, failed to preserve the jury's impartiality by mentioning the murders several times himself. The first instance occurred during cross-examination of Carol Thompson, who identified Weston as one of two men present in her parent's home the night before the robbery. During cross-examination defendants' counsel, after referring to a statement Thompson previously gave to the FBI, asked her, "Didn't you make a statement on July 6th or 7th to members of the FBI and officials of the Clermont County that you were unable to provide any suspects for these murders?"

The second instance also arose during cross-examination of Carol Thompson. Defense counsel brought out that Thompson lied to the FBI about the existence of three rings that belonged to her mother. On redirect examination the Government elicited the reason for Thompson's lie. The rings had been removed from her mother's hand by the funeral director and Thompson concealed their existence to avoid having them sold along with the rest of the estate. Defendants claim that counsel should have foreseen that impeachment of Thompson in this manner would open the door to rehabilitation by the Government, and that statements supplied to counsel should have alerted him to the fact that rehabilitation of Thompson would reveal Mrs. Stevenson's death.

The third instance occurred during defense counsel's questioning of FBI Agent Russo. In questioning Russo about an interview with Carol Thompson, counsel referred to the "alleged crimes in Ohio." Defendants contend that use of the plural "crimes" reinforced previous references to the murders. The final mention of the murders came during interrogation of Mary Deaton, who sold the pick-up truck to defendants. Counsel read into evidence Deaton's prior statement to the effect that Weston offered a gun as part payment for the truck, and that when Deaton refused the gun because it might have been used to kill somebody Weston reacted by looking at her in a strange manner.

Defendants also complain that counsel's performance fell below the required minimum level of competence in several other respects, including counsel's failure to object to the introduction of the revolver and his failure to impeach Government witnesses properly. Defendants urge that these faux pas, coupled with counsel's repeated references to the murders, deprived them of the effective assistance of counsel.

In this circuit the measure of an ineffective assistance of counsel claim is whether defendant received "legal assistance which meets a minimum standard of professional representation." United States ex rel. Williams v. Twomey, 510 F.2d 634 (7th Cir.1975), cert. denied, 423 U.S. 876, 96 S.Ct. 148, 46 L.Ed.2d 109. This standard applies whether counsel is appointed or retained. Id. at 640. A "minimum standard of professional representation" guarantees a defendant reasonably effective counsel, not errorless counsel. Given the pressures of trial and the myriad of quick decisions that must be made by counsel, and that even the most gifted attorney is fallible, occasional erroneous representation is not unlikely. Recognition of this led us to hold that there is no presumption of deprivation of constitutional rights "merely because defendant's attorney ... makes egregious errors, tactical or strategic, in preparation, in conference, in examining witnesses." Id; see also Wade v. Franzen, 678 F.2d 56 (7th Cir.1982); United States v. Bosch, 584 F.2d 1113 (1st Cir.1978).

To prove a claim of ineffective assistance of counsel a defendant must demonstrate that counsel provided representation amounting to "grossly incompetent professional conduct" or "representation which is in any aspect ... shockingly inferior to what may be expected of the prosecution's representation." 510 F.2d at 640. In reviewing an attorney's performance we are not free to second-guess his legitimate tactical decisions. With the benefit of hindsight one can always identify weaknesses in an unsuccessful attorney's strategy, but such errors do not amount to ineffective assistance of counsel. Rather, we will only examine those blunders not classifiable as an attorney's tactics and determine whether they amount to grossly unprofessional conduct.

In judging counsel's conduct "[m]uch depends on the nature of the charge, of the evidence known to be available to the prosecution, of the evidence susceptible of being produced at once or later by the defense, and of the experience and capacity of defense counsel." Twomey, supra, at 639. This determination, of necessity, takes into account the extent to which counsel's errors may have prejudiced defendant's case. Counsel may inexcusably fail to object to certain evidence or fail to follow court procedures properly, but do no harm to defendant's case. Such a mistake does not amount to ineffective representation as counsel's efforts would have been no more effective in securing a favorable result even absent the mistake. See Wade v. Franzen, 678 F.2d at 59; United States v. Murzyn, 631 F.2d 525 (7th Cir.1980), cert. denied, 450 U.S. 923, 101 S.Ct. 1373, 67 L.Ed.2d 351 (1981); United States ex rel. Ortiz v. Sielaff, 542 F.2d 377, 380 (7th Cir.1976).

In this case defendants complain that their counsel prejudiced the jury against them by inadvertently injecting the murders into the trial. One of the complained of instances occurred when counsel opened the door to testimony revealing Mrs. Stevenson's death by impeaching Carol Thompson. The decision to impeach Thompson, who was a key Government witness, and risk the possible prejudice that knowledge of Mrs. Stevenson's death might cause is the type of tactical decision which, although questionable in retrospect, is not sufficient to meet the requirements of a determination of incompetence. Defendants have not demonstrated that the decision to impeach Thompson "resulted from neglect or ignorance rather than from informed, professional deliberation." Marzullo v. Maryland, 561 F.2d 540, 544 (4th Cir.19...