Johnny Franklin Harris v. Vernon Housewright, Director, Arkansas Department of Correction

LAY, Judge, Before HEANEY, Chief Judge, HENLEY, Circuit Senior Circuit Judge.

HEANEY, Judge. Circuit Johnny appeals Franklin Harris from the district court’s1 denial of petition his writ of corpus pursuant habeas to 28 U.S.C. 2254. He contends that he § did re ceive effective assistance state court trial in which he was con aggravated victed of robbery murder, imprisonment and sentenced to life without parole.2 Because we perform find that the ance of attorneys, Harris’s when viewed as whole, did not demonstrate level customary skill for reasonably competent practitioners circumstances, under similar and that Harris prejudiced was thereby, we judgment reverse the of the district court. Harris was convicted for robbing Beulah tenant, Collins for murdering her Joe 20, 1976, Vinson. August On two men en- Arkansas, tered the home of Collins in rural $200, Vinson, stole beat her and and bound leaving. them to chairs before The next day, the caught house fire. Beulah Collins escaped the fire when she discovered by neighbors who came extinguish body flames. The of Joe Vinson was found inside the burned house. 24, 1976,

On August Harris was arrested passing police bad check. At station, gun an officer noticed a on the passenger side floor of the truck that Har- Eisele, Judge constitutionally 1. The support Honorable G. Thomas Chief insufficient the con- viction; the United States (3) District Court for the East- that evidence was obtained ern District of Arkansas. violation Fourth Amendment. Because grant grounds on writ of ineffective petitioner presented argu- 2. The three other counsel, we need not address appeal: (1) ments the district court these other issues. denying request supplement erred in his record; evidentiary (2) that the evidence was Thereafter, requested Harris relief. obtaining a search After driving. ris was hearing before the evidentiary warrant, gun, seized the an additional the officer gun reported of a court denied description The district magistrate.4 matched On of Beulah Collins. robbery without comment adopted stolen a warrant obtained day, the same opinion. magistrate’s While apartment. Harris’s to search police found apartment, searching the I. Fryer, Harris’s of Curtis pocket pistol attempting to who was alleged accomplice, TO EFFECTIVE THE RIGHT subsequent- apartment. flee the COUNSEL. in one stolen pistol as the identified the ly every guarantees Amendment Sixth robbery of Collins. In to counsel. right defendant criminal with the rob- charged was petitioner 55, 45, Alabama, 53 v. 287 U.S. S.Ct. Powell murder of and the of Beulah Collins bery (1932), Supreme Court 158 77 L.Ed. two appointed The state court Joe Vinson. to counsel is the right recognized At petitioner. represent Powell, counsel. Since right to effective as defense appointment the time of their scope of expanded the Court admitted to counsel, attorney had been one counsel.5 assistance of right to effective months; the other had eighteen the bar a defendant’s Indeed, right may be two the bar less than admitted to been because it is essen right fundamental most weeks. any to assert other ability his or her tial to was lasting days, two Harris In a trial have. United he or she See right robbery capital and aggravated 1197, convicted of DeCoster, 1201 v. States imprisonment to life murder and sentenced (D.C.Cir.1973). the Ar appeal, On direct parole. without assistance of establish ineffective To his convic Supreme Court affirmed kansas that his counsel, must show petitioner 506, State, Ark. 558 v. 262 tion. Harris the cus failed to exercise attorney or her sought post-convic (1977). 143 He S.W.2d reasonably diligence and tomary skill Ar 37 of the pursuant to Rule tion relief under perform competent attorney Procedure, and Rules of Criminal kansas Solem, 687 v. similar circumstances. Walker Court, opin without Supreme the Arkansas 1235, (8th Cir.1982); Eldridge 1236 F.2d under ion, proceed permission denied him 228, (8th Atkins, 231 rule.3 910, 1760, 102 456 S.Ct. U.S. seeking federal petition filed a Harris Additionally, (1982). 168 72 L.Ed.2d relief to 28 U.S.C. pursuant post-conviction that he or she demonstrate must petitioner District Court in the United States 2254 § ineffectiveness. by counsel’s prejudiced Fol- of Arkansas. for the Eastern District Id. hearing, the United evidentiary lowing an competence professional The level Recommended filed a Magistrate States among generally,6 trial counsel denying among Fact Findings Disposition objected court, that the petition have demonstrated pro in state 3. In his se requested appointment of counsel alleged of counsel as a to the ineffective Thus, his choice. obtain counsel of ground substance of the leave to for relief. fairly presented to the state claim was federal 25, Hamlin, See, e.g., Argersinger v. 407 U.S. 270, 5. Connor, 404 U.S. 92 court. See Picard 2006, (1972); Gideon v. 32 L.Ed.2d 530 92 S.Ct. (1971). Because 438 30 L.Ed.2d 9 Wainwright, 83 S.Ct. remedy available to the further state there is no L.Ed.2d requirement petitioner, is satis- exhaustion 2254(b), (c). Knott v. See fied. 28 U.S.C. § See, Special e.g., Burger, Skills of Advo- Cir.1982). Mabry, F.2d Training cacy: Specialized and Certifíca- Are System of supple- Essential Our alleges tion of Advocates at the that the evidence 4. Harris Maddi, (1973); Justice?, L.Rev. 227 hearing 42 Fordham mentary addi- would have established Advocacy Competence: Per- The Judicial private payment Trial requests and would tional compensate is a sometimes particular,7 the criminal defense bar for their lack of ex judici bar matter concern to the perience by unusual industry.8 zeal and case, In this are faced with a ary. recognize courts that “law school particularly aspect troublesome of that is does not endow the young lawyer with all inexpe appointment young sue: skills, abilities and ‘know-how’ of the counsel to de represent rienced criminal experienced advocate” and that the young involving capital fendant a case offense gain “must attorney experience somewhere, imagine —murder. It is difficult to a case somehow, and sometime.” Smotherman v. greater our im society should accord Beto, F.Supp. (N.D.Tex.1967). portance one potential than in which the Yet, criminal defendants should not be ex penalty is death. pected pay steep price counsel’s Notwithstanding the seriousness by experience.9 education here, charged offense at the time defense appointed represent were counsel bottom, the At most serious mistake petitioner, one had attorney been admitted petitioner’s made may counsel months; to the bar eighteen the other at in accepting appointment been in less torney, than two weeks. Plainly, 6-101(A)(l) the first instance. DR of the experience lack of is of counsel a factor American Bar Association Code of Profes may contribute represen to ineffective Responsibility provides: sional Nonetheless, determining tation. in wheth * * * A lawyer shall not a legal handle er assistance, there has been effective matter which he knows or should know primary must on focus be how well counsel handle, competent that he is not with- performed case, particular on not associating out lawyer with him a who is experience how much counsel has had. competent to handle it. ex United States rel. v. Twomey, Williams major A part of the responsibility for en 634, (7th Cir.), cert. denied sub 510 F.2d 639 suring counsel, however, effective Williams, must in nom. Sielaff v. 876, 423 U.S. 96 here in 148, appointment itself. Alire v. (1975); 46 109 It S.Ct. L.Ed.2d Cir.1966),duty States, United 278, (10th 365 of the courts to F.2d 279 ensure that effective denied, rt. 984, legal appointed 386 U.S. 87 counsel are to represent S.Ct. ce 1290, 18 (1967). 233 may L.Ed.2d Counsel criminal defendants.10 spective, procedure, Am. Bar properly expected Foundation Res.J. 105 and can be (1978); Schwarzer, Dealing Incompetent assigned with imper- serve as counsel. While it is Role, Judge’s Counsel—The Trial assigned possess 93 Harv.L. advocacy ative that counsel (1980). Rev. 633 prompt skills so that and wise reactions to exigencies may expected, of a trial this See, e.g., Bazelon, 7. The Defective Assistance alone is not deemed sufficient. There must Counsel, (1973); 42 1 U.Cin.L.Rev. ABA familiarity practice pro- also be Report, Convention Justice Criminal Section knowledge cedure criminal courts and Program Lawyer Competency, 31 Crim.L. in the art of criminal defense. (BNA) Rep. (1982). 2469 Association, American Bar Standards for Pro- Services, viding (2d Defense Standard 2.2 ed. See, e.g., States, 278, Alire v. United 365 F.2d 1980). (10th denied, 984, 279 rt. ce 1290, (1967); 87 S.Ct. 18 233 L.Ed.2d Achtien judge 10. One federal noted reluc- Dowd, (7th Cir.1941). v. 992 In grant tance of courts relief based on ineffec- deed, case, appear spent in this counsel to have tive assistance of counsel stem from the adequate preparing peti an amount of time damaging ruling effect will such have on the tioner’s case. attorney. properly, suggests, More the in- empha- 9. The American Bar Association has system, dictment should be aimed at importance assigning experienced sized the Indeed, attorney. case, the claim this to criminal cases: might accurately be termed “failure practice process” Judge sug- The of criminal law has become criminal Bazelon has highly specialized only years, Bazelon, gested. in recent See The Realities of Gideon lawyers experienced practice, in trial Argersinger, (1976). 64 823 Geo.L.J. knowledge interest in and of criminal law defending connection with Harris.

II. request petitioner contends THE INEFFECTIVENESS destroyed payment attorney-client rela REQUIREMENT. of trust tionship and confidence which is A. Effect Er- Overview—Cumulative representation. essential effective rors. counsel’s in requesting pri defense conduct payment improper. general vate See totality, Viewed in this case Association, American Bar Code of ly, Pro attorneys, presents picture young of two 2-106; fessional DR Responsibility, Ameri school, who recently graduated from law Association, Bar for the can Standards De into appointment were thrust court Function, (2d 1980). fense Standard 3.3 ed. capital murder trial without sufficient not, however, does payment effectively to deal with the diffi experience independently ineffective assist establish judgments cult a case necessarily that such counsel. does payment ance of call pre recognize entails. We that counsel are diligent were question into whether counsel sumed to have rendered effective assistance devoted advocates pre and the must overcome case, primarily or whether inter sumption to establish his or her ineffective in collecting ested a fee. Cf. Friedman v. Atkins, supra, Eldridge assistance claim. States, (5th United Cir. 231; Wyrick, F.2d at Thomas 1979). Cir.), F.2d 868, 97 50 L.Ed.2d 148 U.S. Change of Hearing. C. Venue petitioner’s the burden in over

coming presumption heavy is a one. trial, Prior to moved for a change g.,E. McQueen Swenson, 207, 216 v. of venue. The offered defense counsel two Cir.1974). (8th The exercise of reasonable pieces support of evidence in of the motion: judgment, proven professional even if later (1) reporting a local newspaper account the unwise, not does constitute ineffective as displaying picture murder a the de- Knott F.2d Mabry, sistance. fendant, (2) of four an affidavit Mon- (8th Cir.1982); Solem, Walker County roe who stated that they residents (8th 1981). F. 2d 1188 Cir. did not believe that Harris could receive a fair trial in County. Monroe The court case, however, Harris In this advised defense the counsel that affiants effective presumption as overcome cross-examination, subject would be but error made single sistance. No attorneys any had not asked of the is of constitu appointed counsel appear affiants to in The court. defense Yet, when viewed cumu tional dimension. presented support counsel in no witnesses in revealed latively, multiple errors produced of the motion. The state seven record, below, demonstrate that discussed support position witnesses in of their that performance total was below the counsel’s the defendant fair could obtain a customary for professional level of skill County. Unsurprisingly, Monroe Harris’s similarly situated. See competent change motion for a of venue was denied. Fitzharris, Cooper v. say petitioner We cannot that the would 59 L.Ed.2d 793 have received a change of venue had de- presented fense counsel in sup- witnesses Request Payment. B. for Private case, however, port motion. The customary appointments It is in criminal presented seeking classic situation for legal that counsel their fees solely change against receive of venue: a heinous crime case, from the court. couple In this elderly in a rural community. petitioner’s appointed defense counsel crime re- The received considerable local atten- quested payment private importance change received a tion. to Harris of a petitioner’s family legal reasonably from of venue was such compe- $500 fees that people, tent would have obtained wit- close friends with these close so nesses, or otherwise made a more effective you that won’t able make a fair case, on motion. behalf judgment they say something and when you can take that stride if some- Jury

D. Selection. says something, one else someone who is policeman, you not a that don’t petitioner contends that his attor know challenge neys’ jurors say something failure to or strike they completely—will you strongly suggestive who had relationships weigh people’s testimony be able to those bias pro-prosecutorial constituted inef equally people in the sheriff’s jurors fective revealed assistance. Several department? relationships had with members said, I think A. so. Like I there department police sheriff’s or the personal relationship there will that—it department, both of which were involved in It bearing. won’t uh I necessarily investigation of the crime. sheriff like, know, you want it to don’t sound trial, testified at as did other members it bearing will have a I but like department of both the and the sheriff’s some of people. know these police department.11 argues Q. All I asking am for— jurors following least four I am going try weigh A. both challenged should have been stricken or and listen to says. sides whatever cause: (1) (4) Ruth Reynolds Spurlock Alma on voir dire stat- Dennis stated that he knew brother-in-law, Dollar, Bobby people ed her several on the department. sheriff’s department was a member of sheriff’s When he asked whether would tend to be- and had “worked case.” also She testi- lieve a officer he be- before would fied that she had not discussed case individual, lieve replied: another “I with him and that all she consider of don’t know. It might That’s hard. and would not tend believe should be that hard but it I say is. would just police- him because he was a relative or badge something means but if there is some man. room for doubt I think maybe you should distinguish between them.” (2) Cole daughter Carole was the Smith of Leonard Cole of the Clarendon Police contexts, In related we emphasized Department, peti- who sat as bailiff at the danger conviction-prone jury a when tioner’s trial. testified on voir dire She jurors have been with or associated chosen she would consider the testimony all See, by e.g., Thompson the sheriff. would not tend to a believe what witness White, (8th Cir.1982); 680 F.2d merely policeman. said because he was a 1080, 1082-1083 v. Wyrick, Henson (3) Frank Newby was member of the (8th Cir.1980), 958, 101 dire, patrol. sheriff’s On voir he testified L.Ed.2d 383 At the as follows: evidentiary hearing, one at of the defense Q. friendly You are with people in the testified torneys pleased that he was with department. sheriff’s composition jury. Although each A. I am on patrol. the sheriff’s I am juror stated that or be she not patrol. member the sheriff’s affected such relationships, are

Q. persuaded by these to people going responses leading Some those are to be in questions. there testifying. Larry Morris We are reluctant to second- [the may be testifying guess something subjective as as probably an attor sheriff] you will Nevertheless, know a bunch of ney’s jury them are selection. pos going you testifying. very among jurors Are of bias sibility these was so department. department police 11. Of the twelve witnesses the state called at iff’s or trial, six were with associated either the sher- strong police that we must conclude that reason was arrested. A officer testified that ably competent practitioners would have he, deputy sheriff had informed him that challenges exercised or chal peremptory told deputy, pur had been that Collins lenges for respect cause with to at least gun particular chased the sporting from jurors.12 some of these goods store.13 Additionally, police offi dealer, cer required by testified that the Prepare E. Failure to for Witnesses. law, kept had a record of the sale to Collins. several occasions during On the short tri- The firearms record was not introduced into al, the expressed surprise defense counsel Clearly, evidence. officer’s testi prosecution that certain witnesses were to mony was hearsay inadmissible and could Repeatedly, be called. the defense either objected have been the defense attorn did not know who the witnesses were or eys.14 Arkansas Rule of Evidence going about what testify. On 28-1001. Ark.Stat.Ann. We are aware of § occasion, each prosecution or the court pressures facing an in a attorney had to inform Harris’s attorneys that setting and do not an expect errorless trial. person was listed the witness list or on Nonetheless, object this failure to is one frequent- crime-scene search. We have example more of where the inexperience of ly emphasized importance of interview- the defense counsel was evident. ing preparing witnesses or otherwise the testimony of a witness at trial. See G. Failure to Assert Falsity Solem, supra, Walker v. 687 F.2d at 1238- Essential Statement Search 1239; Parratt, Hawkman v. Warrant Affidavit. (8th Cir.1981); Wyrick, Thomas v. su- 413; pra, McQueen Swenson, 535 F.2d at accomplice testimony, Aside from the es supra, 498 F.2d at 216. Counsel’s failure to against sential evidence Harris consisted of prepare adequately respect to certain guns allegedly two which were stolen in the prosecution witnesses is further evidence robbery. guns One of those was seized performance that their was below the level pursuant to a search of the of reasonably competent attorneys. apartment. Harris contends that the affi supporting davit the search contained false

F. Hearsay Testimony. which, omitted, statements when eliminate probable the basis for alleges attorneys, the defense cause. His object counsel failed prejudicial hear- did not attack the warrant on the say basis of the major trial. One of the false statement in the affidav pieces linking Harris to the it.15 One statement in the affidavit de crime was the .22 caliber revolver found clared that Harris was arrested the vehicle he driving was at the time he charged carrying illegal with an weapon argues 12. The defense counsel did not exhaust their state that had the defense counsel ob- peremptory challenges jected, in the selection of prosecutor simply the the would have jury. obtained the dealer’s record of firearms sales and introduced it as a business record. Al- Indeed, during testimony, prosecu- this though might occurred, this we believe groundwork objection by tor laid the for an competent defense counsel would have by interrupting defense counsel offi- objected, forcing prosecution prove to its saying, get cer and “Excuse me now before we case with admissible evidence. hearsay.” into argues although 14. The state this testimo- general 15. Counsel did raise in state court a ny admittedly hearsay, prejudi- it was not objection whether the warrant substan- cial to the defendant for either of two reasons: tially complied requirements for issu- First, positively Beulah also Collins identified warrants, ing including probable such cause. gun as one which had been stolen from her. Supreme The Arkansas Court found that it did testimony, particularly This was not State, requirements. meet such Harris v. 262 strong. very poor eyesight Collins had 143, Ark. 558 S.W.2d 144 only gun stated that the “looked like” a revolv- Second, robbery. er taken from her in the

209 Collins, which was stolen from Beulah ered in the when burned house of Beulah Collins. fact, a was arrested on bad check Nevertheless, prosecution when the called a A charge. passenger in the truck with the witness who stated that he had seen the possession was arrested for remains of appeared what abe human illegal weapon. The magistrate found that house, body in the burned the defense coun- this false statement was made reckless sel embarked on an unusually pointless and disregard truth, for the but concluded that prejudicial cross-examination. The defense supported the affidavit still of finding pressed counsel witness asking him probable Although cause. we express no whether he was sure it was the remains of a probable view on whether cause exists with- human he saw or whether it could not have statement, out this dowe note that been the of dog remains or an animal of elimination of this statement casts doubt on examination, some sort. On redirect finding probable cause. The failure prosecutor picked up grisly on this line of of counsel to allege this colorable is defense questioning, discussing whether the burned further evidence of their ineffectiveness al- remains dog were human flesh or flesh. alone, though, it would not warrant rever- Although the defense objected, counsel sal. court noted that the defense counsel had ** “opened the door on that We find H. Medical Testimony. Examiner’s no conceivable tactical rationale for the de- The petitioner contends that counsel were up fense counsel opening of ques- line ineffective because they impeach failed It tioning. impossible to determine what testimony state medical examiner effect this may have had on the with allegedly conflicting jury, it but would be anyone difficult for autopsy report. prosecution had theo forget gruesome details that dis- rized that Joe Vinson had died as a result cussed. We do not beating. believe that reasonably medical examiner testified competent although cause death could would have made this certainty, determined with judgment. could have serious error in been beaten to report, death. The autopsy however, stated that sign there was no J. Request Failure to Mistrial.

penetrating trauma, which is normally es n The petitioner contends that counsel were sential for death to result a beating.16 from ineffective because failed Although trial counsel testified that he was mistrial a juror after observed the defend certain he had access to the autopsy report, ant in shackles during a recess. A defend counsel failed to report use the to impeach ant is entitled physical to the indicia the medical examiner’s testimony. We can innocence, otherwise legal presumption perceive of no tactical reason for this omis of innocence is weakened. United States v. sion. The failure to report, use this Robinson, (8th Cir.), was available to counsel and contradicted U.S. important prosecutor’s element of the (1981); L.Ed.2d United States Gam case, is general further evidence of the inef bina, (8th Cir.1977). No fectiveness of counsel. appears tactical rationale to exist for coun

I. Burned sel’s failure to request Remains Testimony. a mistrial.17 There was defendant, no dispute course, that Joe Vinson had bears the bur- died and that his remains had been discov- den of demonstrating prejudice in such a evidentiary hearing, Fahmy 16. At evidentiary the Dr. hearing magis- Ma- 17. At the before the lak, trate, state medical at examiner the time of the one of Harris’s testified that hearing, although testified he that had examined the au- he could not recall whether or not he topsy report Vinson, prepared by requested on mistrial, Joe a had prac- a it was his usual previous examiner, Thus, state medical appear and that it tice do to so. it does not that the indicating contained no information that Vin- failing defense counsel had tactical reasons son had been beaten to death. to a mistrial. prose Robinson, belief. personal su- such a v. United States situation. expe late public now too to trust his position F.2d at 617. It is cutor’s pra, 645 jur- resulting from the prejudice induce the may assess the criminal trials rience in in The of Harris chains. or’s observation personal to his give weight unwarranted to situation, such a possibility of in prejudice and irrelevant which is extraneous opinion, compe- however, strong that sufficiently is Sing v. guilt. the United States to issue request that the generally tent counsel will (8th er, 1303-1304 F.2d take otherwise a mistrial or grant court 1156, 102 S.Ct. 454 U.S. remedial action. Bar American See 71 L.Ed.2d Association, Relating the to Standards Object Improper to Com- Failure to K. Function, (2d 5.8(b) Standard Prosecution the by ments Prosecutor. 1980). ed. coun argues that the trial petitioner object improper com- to to failure object to failing sel to were ineffective dili- a lack of skill or ments indicate by prosecutor made improper comments part of counsel. When counsel gence on First, petitioner closing argument. failing strategic reason for plausible have a on commented his prosecutor notes that the to we are object, reluctant to can be no doubt testify.18 to There failure such a tactical decision. See second-guess prosecutor to improper it is (8th Wyrick, Adail v. exercise of upon comment the defendant’s Wyrick, 546 F.2d Cir.1982); Agee v. his Griffin privilege. Fifth Amendment Cir.1976). evidentiary At 609, 614-615, California, 85 S.Ct. trial magistrate, Harris’s 1229, 1232-33, (1965); hearing before the 14 L.Ed.2d 106 objected to States, he not testified that had Catches United (8th Cir.1978). he comments because felt improper jury. no on the impression had made Second, urges that his improper prejudicial nature seriously to objected have comments counsel should argu- prosecutor’s closing comments person by prosecutor expressed competent to ment lead us believe that guilt. al to the defendant’s opinion as empha- We objected. have counsel would prose argument, final Throughout object to would not that this failure size personally that he believed cutor indicated itself, sufficient, ineffective constitute unprofes It is guilty.19 that Harris was is fur- prosecutor express again, of counsel. But it sional conduct for a robbery aggravated capital and of improper as murder comments are follows: my It all heart. and I believe you Judge that the I told on voir dire weigh my sit you at all to doesn’t conscience instruct as circumstantial you just up want which he done. I to read that here tell this. equal- following you Additionally, prosecutor are to ly once more. All instructions made the important important—one as personal opinion: as is as expressing his remarks one, think, certainly impor- I other. This anybody believing that some- I can’t visualize * * * you yesterday tant to the because I told State really body I else could have done it. you questioning prospec- when or if Vinson died on the 19th don’t know Joe eye jurors I did have an witness tive got really I but I don’t know the 20th. theory. two that I could call. Of course there were committed, I this crime was believe people I them. that were there but didn’t call beating part it of was committed the morning personally that Joe and I believe employed defendant has the defense of [T]he morning I know but don’t Vinson died that No took alibi. What was his alibi. one * * * that he The doctor testified for sure. 9:00, stand testified where give I of death and could not us cause Thursday. 10:00 or o’clock on No one. 11:00 why. He testi- think we can all understand [Emphasis added.] fully enough I there but fied that there wasn’t prosecutor example, 19. For commented Af- that the man was beat death. believe Collins, jury: seeing picture of Beulah Mae ter my neighbor to love I am commanded God [sic] I love I don’t love what John but guilty he did and he deserves to found supra, cumstances. general ther ineffectiveness See at 204—206. The evidence requirement second attorneys. establishing of Harris’s this constitutional claim is that the habeas Accomplice Request L. Failure to Testi- petitioner’s was prejudiced by defense his mony Instruction. or her counsel’s E.g., ineffectiveness. Mabry, supra, Knott v. 671 F.2d at 1210. In The petitioner contends that the trial Circuit, petitioner this generally bears counsel rendered ineffective assistance be Id.; proving the burden of that prejudice. accomplice cause failed to an Wyrick, Tyler 635 F.2d 754-755 testimony instruction. Under Arkansas U.S. law, no felony conviction can be obtained on 69 L.Ed.2d 958 (1981). accomplice testimony unless corroborating evidence links the to the defendant crime. McQueen Swenson, supra, In Ark.Stat.Ann. 43-2116 Addition § we stated that the burden such an instruction ally, generally indicates will shift to the state under certain circum- testimony accomplice that of an should McQueen stances. The recognized Court See, be considered with e.g., caution. Dev that prove while the burden to prejudice Blackmar, itt & Jury Federal Practice & upon properly petitioner rests when he Instructions, (2d 1977). pe 17.06 ed. § alleges or specific she error defense alleges titioner that such an instruction was counsel, other circumstances may require crucial in this case because the essence of government to bear the burden of the state’s case rested upon proof: of two persons who charged as Har many In instances ineffective assistance Although ris’s accomplices.20 the Arkansas may of counsel pervasive have had so Supreme Court has considered the sufficien process guilt effect on the determina- cy of the corroborating the testi tion is impossible that it to determine mony the accomplices found accurately presence or absence of sufficient, it was finding does not de prejudice. In changes other cases in cir- termine how a would have reacted to original since the proceedings cumstances the issue in the first instance. Harris v. beyond petitioners’ control, such as the State, supra, 558 S.W.2d at 145. death of a called, witness who was not dowe not believe petitioner that the need impossible make it at the time of the establish that he had a conclusive accom corpus petition prej- habeas to determine plice testimony defense. The unexcused In finding udice. such instances a failure of counsel to raise a known defense departure from the standard of normal of potential merit is further evidence that requires more, competence without newa counsel’s performance overall was below trial. level of customary skill of reasonably 219-220, quoting Id. at approval, Unit- competent practitioners. Rundle, ed ex rel. States Green v. (3d Cir.1970). Wyr- Accord Thomas v.

m. ick, supra, 535 F.2d at 414. REQUIREMENT. THE PREJUDICE presents type This case of situation Harris, by presenting foregoing evi- McQueen Court envisioned would dence, satisfied first element of require government his inef- to bear the burden claim; fective proved that his of proving not prej- perform degree failed udiced his counsel’s ineffectiveness. of skill with which reasonably competent alleges single error by his perform rather, under cir- attorneys; similar he contends that his evidentiary hearing, At one the de- flicted with the alibi We defense. agree fense counsel testified that he considered re- cannot these two defenses would questing such an instruction but decided not to have been inconsistent. do so because he believed it would have con- may result from the cumulative continuing prejudice a series of committed counsel Cooper v. deficiencies. impact multiple nonfeasance of

errors of misfeasance above, Fitzharris, supra, 586 F.2d at 1333. throughout As discussed the trial. petitioner’s the the record substantiates prejudice that requirement the claim. relief is availa- not mean that appear does do, cannot, have us the state would acquit- We been Harris would have only if ble by Id.; committed view the individual mistakes his counsel’s mistakes. ted but for isolation. petitioner’s the at 1414. Wyrick, supra, 535 F.2d Thomas v. whole, record, establishes that viewed as a defendant, or guilty whether inno- Every performance counsel’s overall trial, the defense and the cent, is to fair entitled multiple of their effect and the cumulative “often a of counsel is effective assistance. errors denied Harris effective a fair very existence of requisite to the as- every so pervaded This ineffectiveness Hamlin, Argersinger trial.” this case adversary pect process of the 2006, 2009, 32 L.Ed.2d 530 31, 92 S.Ct. accurately to impossible that it determine Fitzharris, supra, 586 F.2d Cooper v. (1972); to Har- prejudice or presence the absence Thus, must shift to ris. the burden say that counsel’s Accordingly, we cannot the ineffectiveness prove state to that Har- prejudice did not here ineffectiveness beyond a rea- counsel was harmless Harris’s Therefore, judgment we reverse ris. supra, v. Wyrick, Thomas sonable doubt. for a new court and remand district 424; Swenson, McQueen v. su- 535 F.2d at granted. hereby The writ is trial. 219-220. 498 F.2d at pra, its burden has not met government HENLEY, dissent- Judge, Circuit Senior was against Johnny Harris here. Its case ing. strong; primarily it rested not particularly murder case was tried capital Petitioner’s accomplices and of two upon experienced capable state before an guns, of two stolen upon the identification affirmed judge. The conviction was petition- on the neither of which was found Supreme Court which con- by the Arkansas Harris, however, er himself. Counsel adduced at trial cluded government by case for the made the easier support conviction. was sufficient beginning committing a series of errors State, 558 S.W.2d 262 Ark. Harris v. ending with jury selection pe- state post-conviction A by object to comments improper failure to essentially the same basic raised tition that In during argument. prosecutor final are raised here denied. issues as between, attorneys committed the defense concedes, ante, at errors, alia, majority including, failing inter other single by petition- error made witnesses, failing to for certain prepare “[n]o is of constitutional appointed er’s testimony, damaging or impeach object ap- by process Yet dimension.” potential failing to assert defenses undue reliance to me involve mitigated pears merit either contradicted or inference, conjecture youth ap- case. of the state’s important elements counsel, majority proceeds pointed fashion, state, addresses in seriatim of counsel to a alleged errors elevate of counsel each act of ineffective assistance magnitude. of constitutional level Harris, that each and concludes raised circumstances, in- totality In the constitution- cannot sustain despite strong evi- clear, cluding fact however, that if the It is al claim. not call guilt verdict did charged multiple dence of defense counsel are I penalty, am imposition death trial, government does errors at of counsel to find ineffectiveness unwilling dem- prejudice the absence of establish significance. of constitutional prejudice considered or onstrating single that no error respectfully I dissent. Accordingly, the defense— significantly impaired alone

Case Details

Case Name: Johnny Franklin Harris v. Vernon Housewright, Director, Arkansas Department of Correction

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Dec 28, 1982

Citation: 697 F.2d 202

Docket Number: 82-1075

Court Abbreviation: 8th Cir.