Walker v. Lockhart, 86-1041

• Decision Date: 16 December 1986
• Docket Number: No. 86-1041,86-1041
• Citation: 807 F.2d 136
• Parties: Edward Louis WALKER, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 136

807 F.2d 136

Edward Louis WALKER, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.

No. 86-1041.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 12, 1986.

Decided Dec. 16, 1986.

Marie-Bernarde Miller, Little Rock, Ark., for appellant.

Sandra Johnson-Buchanan, Asst. Atty. Gen., Little Rock, Ark., for appellee.

Before HEANEY and BOWMAN, Circuit Judges, and REGAN, ^* Senior District Judge.

HEANEY, Circuit Judge.

Petitioner Edward Louis Walker, an inmate at the Cummins Unit of the Arkansas Department of Corrections, appeals from the district court's denial of habeas relief. 28 U.S.C. Sec. 2254. We reverse.

On November 29, 1982, a jury convicted Walker of three counts of forgery in the second degree and of one count of theft of property in the Jefferson County, Arkansas, Circuit Court. The jury sentenced Walker as a habitual offender to sentences totaling sixty years. The trial court ordered that Walker serve the sentences consecutively, meaning that Walker would serve sixty years without possibility of parole. ¹ This punishment was for taking less than $1,000 from a person with whom he had had a homosexual relationship.

In an appeal to the Arkansas Supreme Court, Walker argued that the trial court erred in not granting a continuance to secure a material witness. The Arkansas Supreme Court affirmed the convictions finding that Walker's attorney had not requested a continuance at trial and therefore had waived Walker's right to raise the issue on appeal. Walker v. State, 280 Ark. 17, 655 S.W.2d 370 (1983).

Walker next sought post conviction relief under Ark.R.Crim.P. 37. In an unpublished per curiam opinion, the Arkansas Supreme Court denied Walker relief. Walker v. State, No. CR 83-51, slip op. (Ark.S.Ct. January 9, 1984).

In seeking habeas corpus relief in federal district court, Walker argued, among other things, ² that counsel provided ineffective assistance during the trial. After finding that Walker had met the exhaustion requirements of 28 U.S.C. Sec. 2254(b), the district court denied Walker's petition.

On appeal to this Court, Walker contends that counsel was ineffective in failing to secure a material witness, Stanley Anderson, for trial. In oral argument the state conceded that "the only issue on appeal is whether or not counsel was ineffective in failing to secure the presence of Mr. Anderson."

We reverse because the defense counsel's failure to seek a continuance in order to obtain Anderson's testimony constituted serious error. The error was magnified by counsel's failure to investigate what Anderson's testimony might have been even though Walker had stated that Anderson would support his version of the facts and by counsel's failure to offer mitigating facts at sentencing, even though counsel knew or should have known that Walker could be subject to the habitual offender statute. The error resulted in prejudice to Walker's defense such that in its absence it is reasonably probable that the jury's verdict would have been different.

BACKGROUND

The following is undisputed. On February 21, 1982, Walker cashed an $85 check drawn on the account of Lee Andrew McNeal at the Simmons Bank in Pine Bluff, Arkansas, using McNeal's Arkansas Department of Corrections Employee I.D. ³ On February 24, Walker withdrew $350 from McNeal's savings account. On February 26, Walker attempted to withdraw $425 from McNeal's savings account. By this time, however, McNeal had complained to the bank about unauthorized transactions in his account. The bank employees therefore called the police. Before the police arrived, Walker left the bank because the "cashier was taking too long." Walker left a withdrawal slip and McNeal's Department of Corrections I.D. at the bank. The bank employees gave a description of Walker to the police who picked up Walker a couple of blocks from the bank as he was walking down the street shortly thereafter. A police officer patted Walker down and found McNeal's checkbook. The officer testified that Walker told him his name was Edward Smith. Walker was taken back to the bank where the employees identified him. Before being taken back to the bank, the police officer said Walker told him, "Look, don't take me back there. * * * I don't want to go back there. It's too embarrassing. I'll tell you what you want to know."

The police officer took Walker to jail. Four days later, on March 2, 1982, Walker was first read his Miranda rights. Walker signed a waiver form acknowledging that he understood his rights and then made the following statement:

I got the checkbook from McNeal and wrote a check at Simmons Branch Bank and tryed [sic] to cash another. I cash[ed] [one] for $85.00 and one for $350.00. Both checks was [sic] cash[ed] at different Branch Bank[s] and attempted to cash another for the amount of $425.00. The cashier was taking too long so I just walked out. Left I.D. and withdrawal their [sic].

Edward Walker

At trial the primary issue was whether McNeal gave Walker authorization to negotiate his checks and withdraw money from McNeal's savings account. Lack of authorization is an element that must be proved by the state. See Ark.Stat. 41-2302 (1975). McNeal, in his testimony, claimed he had not given Walker authorization to negotiate his checks and withdraw money from the savings account.

McNeal testified that on February 20, 1982, he let Walker stay in his house overnight; that on the night of February 20, 1982, he and Walker slept in the same room and had a "homosexual relationship;" that at least once before in the summer of 1981 Walker stayed at his home for two weeks; and that in the past he had given Walker money "on several occasions" and allowed Walker to drive his car.

On the morning of February 21, 1982, McNeal stated that he and Walker left together out McNeal's front door, with McNeal locking the door behind them. Later that afternoon, McNeal claims to have returned from work and parked his car in his carport. According to McNeal, both his front and back doors were chained from the inside and a third door to the den, to which McNeal had no key, was locked. McNeal said at that point he "knew someone had been there by the mere fact that both chains were on the door." After prying off the chain to one of the doors, McNeal said he discovered his wallet and some clothing were missing. Later, although it is unclear when, McNeal learned from an unnamed friend that Walker had taken other clothing and his checkbook.

How Walker got back into McNeal's locked house was not revealed at trial. Nor was it stated in the testimony when, if at all, McNeal reported the break-in to his house and the theft of his wallet to the police. ⁴ McNeal apparently reported the theft of his checkbook to Simmons Bank on February 23, two days after the alleged theft, and signed an affidavit to that effect for a bank official, Terry Young. ⁵

Walker did not testify on his own behalf. The defense offered two witnesses whom defense counsel asked a total of forty-five questions. Most of the questions asked of the first witness concerned a party at McNeal's house which Walker did not attend. The second witness, a private club owner, was asked whether he had seen Walker and McNeal together at his club. He had seen them once together drinking whiskey for which Walker had paid. The state did not cross-examine the witnesses.

Walker's attorney failed to secure for trial two other witnesses: Joe Young and Stanley Anderson. Stanley Anderson was at that time incarcerated in the state penitentiary. Walker's counsel failed to get an order to have Anderson testify as required by Arkansas law. Ark.Stat.Ann. Sec. 43-2022 (1977); See also Walker, 280 Ark. at 20, 655 S.W.2d at 371.

Walker told his attorney that Anderson would testify that McNeal had once stated: "Whatever I've got is yours. Here is a passbook or here is the check. Go cash a check if you need some money. Go get some money." Walker's attorney read this into the record during a recess out of the hearing of the jury. He failed, however, to ask the court for a continuance in order to secure Anderson's testimony.

After the jury found Walker guilty on all three counts of forgery and one count of theft, the trial court judge instructed the jury on sentencing Walker under the Arkansas Habitual Offender Statute. Ark.Stat.Ann. Sec. 41-1001 (Supp.1981). ⁶ Under the statute, the jury sentenced Walker to twenty years on the first forgery count, ten years on the second forgery count, twenty years on the third forgery count, and ten years on the theft count. The judge decided immediately thereafter without explanation, or any objection from the defense counsel, to impose consecutive sentences. ⁷ Defense counsel also failed to offer the judge or jury significant mitigating factors.

ANALYSIS

We find that defense counsel's failure to request a continuance to secure Anderson as a witness was an error resulting in prejudice to Walker.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), established the standard of review for claims of ineffective assistance of counsel. To be ineffective, counsel's representation must be deficient and prejudicial to the defendant's case. Id. at 687, 104 S.Ct. at 2064. Deficient assistance means performance which falls below a standard of reasonableness as measured by prevailing professional standards. Id. at 688, 104 S.Ct. at 2065. Prejudicial assistance occurs when it is reasonably probable "that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.

In examining defense counsel's performance, we are mindful that ineffective assistance of counsel complaints based on the failure to secure witness testimony are disfavored, see Sherrill v. Wyrick, 524 F.2d 186, 190 (8th Cir.1975), because presentation of evidence is a matter of trial strategy. Schwander v. Blackburn, 750 F.2d...