765 F.2d 91 | 7th Cir. | 1985
Lead Opinion
Harold Earl appeals from the district court’s order denying his petition for habe-as corpus. Earl had been sentenced to life imprisonment following his conviction of first-degree murder by a Wisconsin state court. After exhausting his state remedies he sought federal habeas corpus, arguing that he had not had effective assistance of counsel at his state trial.
Earl does not deny having stabbed to death Denise Stacy, a friend of his estranged wife, Nancy Earl. Nancy Earl testified that she overheard her husband say to a police officer, three days before Harold Earl killed Denise Stacy, “Damn, Denise, if she doesn’t stay out of my business, I am going to kill that bitch.” This testimony is the focus of Earl’s complaint about the effectiveness of his trial lawyer’s efforts on his behalf. The testimony almost certainly was false. Both police officers denied under oath — but in post-conviction proceedings, not at the trial — that Earl had threatened Denise during the incident about which Nancy Earl had testified. But Earl’s lawyer failed to interview the officers, and not knowing what their testimony would be did not call them as witnesses to rebut Nancy Earl’s testimony.
The representation to which a criminal defendant is constitutionally entitled requires his lawyer, before trial, to look for evidence that will be helpful to the defendant; but of course if it is reasonable in the circumstances not to conduct a particular investigation, the lawyer’s failure to do so will not establish ineffective representation. Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984). Earl's lawyer testified in the Wisconsin post-conviction proceeding that preceded this habeas corpus action that he had figured that if his motion to exclude evidence of death threats was denied, he would then have time to investigate them; and if it was granted, he would not have to investigate them. He cannot be criticized for making the motion. He testified (in the state post-conviction proceeding) that by making the motion in the form he did — a motion to exclude all statements of Earl that had not been furnished to the defense in response to its discovery request — he had hoped to induce the prosecutor to make a more extensive response to that request, so that it would be easier to prepare a defense. This was not a foolish or reckless tactic, especially when it succeeded beyond the lawyer’s expectations: the judge’s granting the motion seemed to eliminate the issue of threats from the case, and to make the notation about threats next to the name of one of the prosecution’s witnesses moot.
Of course there was always a chance that developments at trial would result in reopening the issue. But it was not so unreasonable as to be unprofessional for defense counsel to assume that he heed not conduct an investigation into the factual background of an issue that he had succeeded in getting excluded from the trial — to assume that if it should unexpectedly pop up in the trial he would have an opportunity to investigate then. A more cautious and far-seeing lawyer would have gone ahead and interviewed the policemen — not a burdensome undertaking. But a lawyer’s failure to carry out his duties to his client with extraordinary skill and conscientiousness does not convict the lawyer of subminimum representation.
This conclusion pretty much dooms Earl’s claim of ineffective assistance of counsel. For nothing that happened at the
Even if counsel should have realized that the judge’s earlier warning about “opening the door” remained in force, the judge had only warned against opening the door “on threats.” Defense counsel could reasonably have understood by this that he was safe as long as he did not ask Earl whether Earl had ever threatened Denise Stacy. Counsel cannot be severely criticized for not having realized that any inquiry into Earl’s intent to kill would “open the door,” when that intent was a central issue in the case and was analytically distinct from the matter of threats.
Earl had stabbed a defenseless woman to death with repeated jabs of a kitchen knife, one of which was seven inches deep and penetrated the heart. His intent to kill was not negated by the lack of advance planning. “No appreciable space of time is required to elapse between the formation of the intent to kill and the act of killing in order for the homicide to be first-degree murder.” Brook v. State, 21 Wis.2d 32, 45, 123 N.W.2d 535, 541 (1963); State v. Clifford, 58 Wis. 477, 489, 17 N.W. 304, 308 (1883); see Wis.Crim.Code § 940.-01; cf. United States v. Solina, 733 F.2d 1208, 1214-15 (7th Cir.1984). The defense presented some, but not convincing, psychological evidence; one witness inferred that Earl had not intended to kill Stacy by noting that there were no stab wounds in her back, and another inferred lack of intent to kill from the fact that the IQ test he administered to Earl showed an IQ of only 55, which is moderately retarded. Yet the IQ test contained on the one hand difficult questions (such as the height of the average American woman), and on the other hand questions easy to answer in a way suggestive of retardation (e.g., how many months are there in a year?), plus questions that have to do with morality rather than intelligence (such as, what would you do if you found a stamped, addressed envelope in the street?). Earl’s principal defense, therefore, feeble though it was, was self-defense; Denise Stacy had come at him with a knife, and he had wrested it from her and killed her with it. Earl does not argue that his counsel was unprofessional in putting on such a defense; and there was no way to make out the defense without Earl’s being called as a witness. Even if his counsel had not asked him whether he had ever intended to kill Stacy, the prosecutor could still have argued that Earl’s testimony of self-defense opened up the issue of threats, since if Earl had threatened Stacy's life, this would make his defense of self-defense less believable.
Defense counsel objected vigorously when the prosecutor on cross-examination asked Earl about threats, and later when the prosecutor put on Nancy Earl as a rebuttal witness; counsel tried to interview witnesses to the statement; and though he misunderstood the judge as forbidding him to do so, the misunderstanding was a reasonable one. A more alert and determined lawyer might have pressed the point harder and a more daring lawyer might have taken a chance and called the officers as witnesses without first interviewing them (though it is not altogether clear that the trial judge would have allowed this); but it is not unreasonable for a lawyer to obey what he thinks is the judge's ruling, even though the ruling might not be 100 percent clear. Lawyers naturally hesitate to antagonize judges by pressing points after the judge appears to have ruled on them.
Considered all in all, the representation of Harold Earl did not fall below minimum professional standards; indeed, but for the judge’s somewhat erratic conduct
Affirmed.
Concurrence Opinion
concurring.
I do not agree that the failure of the police officers to testify was not prejudicial. The testimony seems to me to have been crucial in removing reasonable doubt about the defendant’s intent in conducting his altercation with Denise Stacy.
. The majority suggests that the evidence against Earl was overwhelming. Not so. No witnesses were present when the scuffle between Earl and Stacy occurred. Further, Dr. Harold Wagner, an experienced forensic pathologist, testified that, based upon his review of the circumstances surrounding Stacy’s death as well as the nature of the wounds inflicted, Earl’s act was “not intended." Dr. McDonald, a clinical psychologist, administered a series of tests to Earl, including the Wechsler Adult Intelligence Scale, from which he determined that Earl’s “full scale IQ” was fifty-five, which classified him as severely retarded and in the range of border and severe mental deficiency. Dr. McDonald concluded that it was probable that Earl’s act was unplanned and committed on impulse.