Underwood v. Clark
| Citation | 939 F.2d 473 |
| Decision Date | 08 August 1991 |
| Docket Number | No. 90-2906,90-2906 |
| Parties | Hurley E. UNDERWOOD, Petitioner-Appellant, v. Richard CLARK and Attorney General of the State of Indiana, Respondents-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Jay T. Hirschauer (argued), Logansport, Ind., for petitioner-appellant.
David A. Nowak, David M. Wallman (argued), Kimberlie A. Forgey, Deputy Attys. Gen., Indianapolis, Ind., for respondents-appellees.
Before CUMMINGS, POSNER and FLAUM, Circuit Judges.
Hurley Underwood was convicted of criminal confinement with a deadly weapon and of attempted rape, and given concurrent prison terms of four and forty years, respectively. After the Indiana Supreme Court affirmed his conviction, Underwood v. State, 515 N.E.2d 503 (Ind.1987), he turned to the federal district court, which denied his application for habeas corpus.
A woman was jogging alongside a road outside of town. Underwood ran after her, grabbed her around the neck with one arm, and menaced her with a knife held in his other hand, saying, "You're coming with me now." He dragged her into the woods, threw her to the ground, and sat on her. She was struggling all the time. He stabbed her right hand, inflicting a severe wound, and punched her in the face, breaking several teeth. The struggle continued. He tried to pull down her shorts and she punched him in the groin, causing him to release her momentarily. She ran into the road and he fled to his car and drove off. A passing motorist, alerted by the victim, followed Underwood and got his license number. He was arrested and both the victim and the motorist identified him in lineups. Underwood did not testify at the trial or present any other evidence.
Underwood's lawyer conceded before the jury his client's guilt of criminal confinement with a deadly weapon, stating in closing argument: The lawyer was trying to enhance his credibility with the jury by conceding his client's guilt of the offense of which the evidence was overwhelming, and to focus his efforts on the weakest link in the state's case, the charge that Underwood had attempted to have sex with his victim, an essential element, obviously, of attempted rape.
Underwood argues that it is ineffective assistance of counsel per se for a lawyer to concede his client's guilt without the client's consent. What is true, although it really has nothing to do with ineffective assistance, is that a defendant cannot be made to plead guilty against his wishes, however wise such a plea would be. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312-13, 77 L.Ed.2d 987 (1983). And if his lawyer told the jury in closing argument, "my client has decided to plead guilty," that would be a forced plea, and would deprive the defendant of his right to put the prosecution to its proof of guilt. Byrd v. United States, 342 F.2d 939, 941 (D.C.Cir.1965). It is otherwise if in closing argument counsel acknowledges what the course of the trial has made undeniable--that on a particular count the evidence of guilt is overwhelming. Such acknowledgment can be a sound tactic when the evidence is indeed overwhelming (and there is no reason to suppose that any juror doubts this) and when the count in question is a lesser count, so that there is an advantage to be gained by winning the confidence of the jury. Such was this case. Given the protracted encounter between the defendant and his victim, the absence of any preexisting relationship that might have given her an incentive to lie, the ugly wounds, and the eyewitness testimony of a totally disinterested passer-by, there was no way in the world that the jury was going to acquit Underwood of criminal confinement with a deadly weapon. The lawyer did not plead Underwood guilty; he merely acknowledged the weight of the evidence of criminal confinement in order to contrast it with the lack of direct evidence of an intent by Underwood to have intercourse with the victim. The lawyer's tactic was reasonable, and though unlike United States v. Simone, 931 F.2d 1186, 1196-97 (7th Cir.1991), we cannot say that it had the consent of the client, a lawyer is not required to consult with his client on tactical moves. United States v. Joshi, 896 F.2d 1303, 1307-08 (11th Cir.1990).
Underwood next argues that his lawyer was (1) ineffective in counseling him not to testify, and (2) actually forbade him to testify and by doing so infringed his constitutional right to testify in his own defense. The first argument has no merit. The lawyer's advice was sound, not only because any testimony that Underwood might have given would have been discredited on cross-examination--for when first arrested he had claimed not even to have been in the vicinity of the assault when it occurred--but also because his testimony would have been unbelievable even without being picked apart on cross-examination. Apparently he would have testified as follows. He showed up for work one day and found his boss murdered and a dog eating the man's brains. This experience made Underwood depressed, almost suicidal, and desperate to find a sympathetic person to talk to. Hence he accosted the victim, who far from proving sympathetic attacked him with his own knife; he inflicted the wounds on her in self-defense. No jury would believe such a story.
This discussion shows not only that the lawyer's advice was sound but also that, sound or unsound, it wasn't likely to change the outcome of the trial--in legalese, it was not "prejudicial." The evidence against Underwood was overwhelming and would not have been rebutted by Underwood's denials. This is so even with respect to the question whether he intended to rape the victim. For why else did he drag her into the woods, sit on her, and try to pull off her shorts? There is no suggestion that robbery was the motive for the assault; the inescapable inference is that rape was.
The more substantial issue relating to Underwood's not testifying is whether his lawyer did not merely counsel Underwood not to do so but forbade him. A criminal defendant has a constitutional right to testify in his own behalf; it is an aspect of his right to defend himself, a right held in Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S.Ct. 2704, 2709-10, 97 L.Ed.2d 37 (1987), to be implicit in the Fifth, Sixth, and Fourteenth Amendments. See also Rogers-Bey v. Lane, 896 F.2d 279, 283 (7th Cir.1990); Ortega v. O'Leary, 843 F.2d 258, 261 (7th Cir.1988...
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