Warden v. Wyrick, 84-1435

• Decision Date: 09 August 1985
• Docket Number: No. 84-1435,84-1435
• Citation: 770 F.2d 112
• Parties: Charles "Red" WARDEN, Appellant, v. Donald WYRICK, Warden, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 112

770 F.2d 112

Charles "Red" WARDEN, Appellant, v. Donald WYRICK, Warden, Appellee.

No. 84-1435.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 16, 1984.

Decided Aug. 9, 1985.

Alan J. Agathen, St. Louis, Mo., for appellant.

Richard Brooks Pitchie, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and BOWMAN, Circuit Judge.

McMILLIAN, Circuit Judge.

Charles "Red" Warden appeals from a final judgment entered in the District Court ¹ for the Eastern District of Missouri denying his petition for habeas corpus relief pursuant to 28 U.S.C. Sec. 2254 (1982). Appellant was convicted of first degree murder in the Circuit Court of Jefferson County, Missouri, and is currently serving a life sentence in the Missouri Penitentiary. For reversal appellant argues that he was denied a fair trial because of (1) an instruction error, (2) ineffective assistance of counsel, (3) a reference during his trial to his prison record, and (4) a violation of his right of confrontation. Appellant also argues that the district court erred in denying his request for an evidentiary hearing on his habeas corpus petition. For the reasons discussed below, we affirm.

Appellant was charged by an amended information with acting in concert with others to cause the death of Jack Warden, his brother. The state's principal witness was Norval Cadwallader, Jr., one of the alleged accomplices. Cadwallader testified that he, appellant, and James Hudson (Cadwallader's nephew) drove to a tavern in Herculaneum, Missouri, on January 17, 1975, where they spent approximately an hour and a half drinking and talking. The three then left the tavern and drove to appellant's apartment. There appellant stated that he would pay $500 to "get rid" of his brother. Hudson stated that he would do the job, and appellant placed the $500 on the table. Cadwallader picked up the money and put it in his pocket. Appellant later obtained a gun and gave it to Cadwallader. Hudson subsequently decided that he would not shoot Jack Warden and suggested that Hubert Brissette might do the job. Cadwallader contacted Brissette and told him that Hudson had a deal for him whereby he could make some money. Hudson, Cadwallader, and Brissette then met. Hudson explained to Brissette that he had taken the job to shoot Jack Warden for $500 but could not do it. Brissette was to be paid $400 to do the shooting, while Hudson would receive $100 for driving to and from the victim's apartment. Hudson later changed his mind about driving the car. Brissette then bought Hudson's car for $100 and took the balance of the $500. On January 20, 1975, Brissette shot and killed Jack Warden.

Brissette was initially charged with first degree murder, but later pleaded guilty to an amended charge of second degree murder. Cadwallader was charged with conspiracy to commit murder and, at the time of appellant's trial in March 1978, had not been prosecuted on that charge.

Following a jury trial appellant was found guilty of first degree murder and sentenced to life imprisonment. This conviction was appealed and affirmed in State v. Warden, 591 S.W.2d 170 (Mo.Ct.App.1980). Appellant's subsequent motion for a rehearing or transfer to the Missouri Supreme Court was denied. A Rule 27.26 motion for post-conviction relief was filed and subsequently denied on May 4, 1981, by the Circuit Court of Jefferson County, Missouri. The denial of the Rule 27.26 motion was appealed and affirmed in Warden v. State, 633 S.W.2d 298 (Mo.Ct.App.1982).

Appellant filed a petition for writ of habeas corpus in federal district court on December 2, 1982. On March 28, 1983, the magistrate recommended that the habeas petition be dismissed without further proceedings. On April 5, 1985, appellant filed exceptions to the recommendation of the magistrate and a motion for leave to amend his habeas petition. Appellant subsequently amended his petition to add a claim of ineffective assistance of appellate counsel. On January 25, 1984, the magistrate recommended that appellant's amended petition be dismissed, and this recommendation was adopted by the district court on March 20, 1984. On the same date the district court denied a certificate of probable cause; however, this court granted appellant's application for certificate of probable cause on April 5, 1984.

Appellant initially argues that he was denied a fair trial because the verdict director instruction permitted the jury to find appellant guilty of first degree murder without requiring that the jury find that the principal possessed the mental state required to support such a charge. Appellant further contends that he was denied a fair trial and state appellate review because his counsel failed to challenge this instruction at trial or to raise the issue on appeal.

The state argues that this court should not consider this issue because appellant raises it for the first time on appeal. Appellant argues that this issue was raised in his motion to amend his habeas petition. In his April 5, 1984, motion to amend appellant stated that "the state committed plain error in not reversing the conviction on the grounds that the state charged the petitioner with first degree murder (as the aider and abettor), and charged the principal person with only second degree murder...."

As a general rule failure to present an issue to the district court precludes appellate consideration of that issue. Urquhart v. Lockhart, 726 F.2d 1316, 1318 (8th Cir.1984); Wallace v. Lockhart, 701 F.2d 719, 727 (8th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 340, 78 L.Ed.2d 308 (1983) (failure to present claim in habeas petition). Appellant did not present the issue of instruction error to the district court in his amended petition or in his original petition. The original petition, although alleging ineffective assistance of counsel, did not allege the failure of counsel to object to the instruction at trial or the failure to raise the instruction issue on appeal. Because the alleged instruction error was not presented to the district court, we do not consider it on appeal.

Appellant next argues that he was denied a fair trial because of ineffective assistance of counsel. Appellant argues that his trial counsel ² failed to prepare for trial and cites his counsel's failure to prepare an alibi defense and the failure to interview witnesses as examples of this lack of preparation. Appellant argues that his counsel did not interview any defense witnesses until several days before the trial in 1978, although appellant in 1975 had given him the names of witnesses who could provide an alibi for him on January 17, 1975. Appellant further argues that counsel met with six of the defense witnesses on March 4, 1978, but did not ask them about January 17, 1975 (the date of the meeting at the bar), but rather asked them about January 20, 1975 (the date the victim was killed). Appellant also argues that counsel interviewed or deposed only two of the thirty-two witnesses endorsed by the state and did not interview Cadwallader at all. Lastly, appellant argues that his counsel presented defense evidence for only twenty-eight minutes, even though the trial lasted for five days.

"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Washington v. Strickland, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). "The proper standard for attorney performance is reasonably effective assistance." Id. 104 S.Ct. at 2064. A court must be "highly deferential" and must judge the reasonableness of counsel's challenged conduct on the facts of the particular case viewed as of the time of counsel's conduct. Id. at 2065. "The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.... In particular, what investigation decisions are reasonable depends critically on such information." Id. at 2066. Although both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact, state court findings of fact made in the course of deciding an ineffectiveness claim are subject to the deference requirement of 28 U.S.C. Sec. 2254(d) and district court findings are subject to the clearly erroneous standard. Id. at 2070.

There are no conflicts between the findings of fact of the district court and the state court. The district court found that appellant admitted to his counsel that he met with Hudson and Cadwallader on January 17, 1975, to discuss killing his brother; counsel testified at the Rule 27.26 hearing that this was the reason he did not investigate appellant's whereabouts on January 17, 1975, or offer an alibi defense. The district court also found that appellant's trial counsel met and discussed the case with appellant on at least thirteen occasions; filed numerous pretrial motions, some of which were successful; received and reviewed discovery materials from the prosecutor, including police reports, ballistics reports, and the preliminary hearing testimony of Cadwallader; cross-examined state witnesses to show their dislike of the victim and the possibility that others may have caused the victim's death; cross-examined Cadwallader to reveal inconsistencies in his testimony and to impeach his credibility; examined the witnesses at the preliminary hearing; and obtained and reviewed a copy of the transcript of Brissette's preliminary hearing.

Appellant denies that he told his counsel of a meeting with Cadwallader and Hudson but does not suggest that counsel did not take the actions described above. We hold that the district court's findings of fact as to counsel's representation of appellant are not clearly erroneous. We agree with the state court and the district court that co...