Yarrington v. Davies, 89-3412-S.
| Decision Date | 23 December 1991 |
| Docket Number | No. 89-3412-S.,89-3412-S. |
| Citation | 779 F. Supp. 1304 |
| Court | U.S. District Court — District of Kansas |
| Parties | Leslie Dewayne YARRINGTON, Petitioner, v. Steven DAVIES, Respondent. |
Charles A. O'Hara, pro se.
Jay W. Watson, Asst. Atty. Gen., Topeka, Kan., for respondent.
This matter is before the court on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, who is an inmate in the Kansas State Correctional Facility, Norton County, Kansas, was convicted by a jury of first degree murder in October, 1984. 238 Kan. 141, 708 P.2d 524. In this action, petitioner challenges his conviction and claims he was denied the effective assistance of counsel during his trial. Specifically, petitioner claims: (1) counsel was not familiar with the proper burden of proof and during voir dire and opening argument, shifted the burden to the defendant to prove his innocence; (2) counsel did not properly voir dire the jury and failed to properly examine and cross-examine witnesses; and (3) counsel did not make objections to the improper introduction of evidence, particularly hearsay evidence attributed to a subpoenaed witness who invoked the Fifth Amendment's protection against self-incrimination.
Having reviewed the record in this matter, the court makes the following findings and order.
On January 14, 1984, the body of Nicki Merrill of Parsons, Kansas was found next to his car in a field outside Coffeyville, Kansas. Death was caused from a bullet wound to the right temple. The surrounding area showed no signs of a struggle and there was no evidence that any other person or automobile had been at the scene. Because of the cold temperatures, the time of death could have been anywhere from one-half hour to one day before the body was found. There were no bruises or abrasions on the body. It could not be determined if the bullet which killed Merrill was fired from a gun found near his hand.
Merrill's death was initially listed as a suicide. Merrill's family, which included his wife Crissy and a young son, was convinced that his death was not a suicide.
A few weeks after Merrill's death, petitioner and Crissy began living together and shortly thereafter, they moved to Broken Arrow, Oklahoma. The record is unclear as to the reason, but after a short time in Broken Arrow, Crissy returned to Parsons. Petitioner's name was furnished to police as a likely suspect in Merrill's death and he was charged with first degree murder on April 14, 1984.
There was evidence which placed petitioner at his father's home in Coffeyville late Friday evening, January 13, 1984 and during the day on Saturday, January 14, 1984. The evidence also showed petitioner left his father's home late Friday evening stating he was going to call Crissy. Telephone records show a call was made from Crissy's phone to a pay phone at the Derby station in Coffeyville at 1:00 a.m. on Saturday and another call from the pay phone to Crissy's home at 7:00 p.m. on Saturday. Petitioner denied making those calls.
There was also testimony that the gun found by Merrill's body had been stolen by Chuck Furrow in 1979. Furrow testified he sold the gun to petitioner in 1981. Petitioner denied that he ever purchased or possessed the gun.
David Yarrington, petitioner's father, testified that in a phone call from his son in Broken Arrow, he understood petitioner to say he had killed Merrill. On cross-examination, David admitted he had a hearing problem and could not be sure of what petitioner said.
Crissy Merrill, who had testified at a preliminary hearing, invoked the Fifth Amendment's protection against self-incrimination and refused to testify at trial. She was found in contempt of court and was sentenced to jail apparently until she agreed to testify. She did not, however, testify at trial, and the jury sent a question to the judge asking why Crissy Merrill did not testify. The record does not show how the court answered the question.
On September 17, 1984, petitioner was found guilty of first degree murder, although neither the pathologist nor the corner could testify whether the death was a suicide or a homicide. Petitioner was sentenced to a term of life imprisonment. On February 17, 1987, petitioner filed a motion pursuant to K.S.A. 60-1507 challenging his conviction. The motion was denied and the Kansas Court of Appeals affirmed. On April 12, 1988, petitioner filed a second motion pursuant to K.S.A. 60-1507 for the first time alleging ineffective assistance of trial counsel. This motion was also denied and the Kansas Court of Appeals again affirmed.
Petitioner filed this action seeking federal habeas relief on October 4, 1989.
To establish his claim of ineffective assistance of counsel, petitioner must meet the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The two-part test set forth in Strickland requires (1) a showing that counsel committed errors so serious that the defendant did not receive the counsel guaranteed by the Sixth Amendment, and (2) a showing that counsel's performance was so deficient that the defendant did not receive a fair trial. Under Strickland, the defendant bears the burden to establish both incompetence and prejudice, and there is a presumption that the attorney's conduct comes within "the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065.
Petitioner claims his attorney misunderstood the burden of proof and improperly stated that burden to the jury on voir dire and opening argument. On voir dire, counsel said: "It's up to Defendant to prove beyond a reasonable doubt that Mr. Yarrington is not guilty, and if we are able to convince you beyond a reasonable that this young man is innocent, would any of you have any reservation about finding him not guilty?" During his opening argument, counsel again stated: "We will attempt to prove to you the innocence of this defendant. ..."
The constitution guarantees every defendant the presumption of innocence. Zygadlo v. Wainwright, 720 F.2d 1221 (11th Cir.1983) cert. denied 466 U.S. 941, 104 S.Ct. 1921, 80 L.Ed.2d 468 (1984). This presumption remains with the defendant throughout every phase of the trial including the deliberations of the jury and is only extinguished when the jury has determined that the state has established defendant's guilt beyond a reasonable doubt. Mahorney v. Wallman, 917 F.2d 469 n. 2 (10th Cir.1990).
During closing argument, counsel correctly stated that the burden of proof was on the state, not on the defendant. Counsel said: "... the burden is on the State to prove to you beyond a reasonable doubt that this young man is guilty." Again during closing argument, counsel said: ...
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Yarrington v. Davies, 92-3009
...from an order of the district court denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Yarrington v. Davies, 779 F.Supp. 1304 (D.Kan.1991). On appeal, he continues to argue that his trial counsel was ineffective because counsel misstated the burden of proof durin......