Russell Hadley v. Michael Groose , 97 F.3d 1131 ( 1996 )

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No. 95-2392
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Russell Bryan Hadley, *
*
Petitioner/Appellee, *
*
v. *
*
Michael Groose; Paul Caspari; *
James Purkett, Superintendent *
of the Farmington Correctional *
Center; Jeremiah (Jay) W. *
Nixon, Attorney General, *
*
Respondents/Appellants. *
___________ Appeals from the United States
District Court for the
No. 95-2515 Western District of Missouri.
___________
Russell Bryan Hadley, *
*
Petitioner/Appellant, *
*
v. *
*
Michael Groose; Paul Caspari; *
James Purkett, Superintendent *
of the Farmington Correctional *
Center; Jeremiah (Jay) W. *
Nixon, Attorney General, *
*
Respondents/Appellees. *
___________
Submitted: February 13, 1996
Filed: October 11, 1996
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Before BOWMAN, HEANEY, and WOLLMAN, Circuit Judges.
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WOLLMAN, Circuit Judge.
The State of Missouri appeals the district court's1 order granting
Russell Hadley's petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. We affirm.
I.
In the early morning hours of December 11, 1985, Hazel Smith, an
elderly resident of a trailer park in Webb City, Missouri, awoke to find
a man with a knife standing beside her bed. The man blindfolded Mrs. Smith
with her pajamas and then sodomized her. He also robbed her of a small
amount of personal property and cash.
On the morning of December 15, 1985, Mrs. Smith awoke to hear someone
attempting to force the front door to her trailer open. A newly-installed
safety chain prevented the intruder's entry. Mrs. Smith told police that
she "knew it was the same individual" from the December 11 attack. She
testified at trial, however, that she only saw the intruder's head and not
his face, and did not offer any testimony connecting the December 15
intruder to the December 11 attack.
Hadley was arrested and charged with the December 11 attack. He was
represented by public defenders Larry Maples and Craig Johnston. After a
one-day trial on May 2, 1986, the jury returned that same night with a
verdict finding Hadley guilty of sodomy, first-degree robbery, and armed
criminal action. As a prior offender, Hadley was sentenced to consecutive
thirty-year terms on each count. Hadley's convictions were affirmed on
direct appeal. State v. Hadley, 736 S.W.2d 580 (Mo. Ct. App. 1987). His
motion for post-conviction relief was denied, and this denial was affirmed
1
The Honorable Howard F. Sachs, United States District Judge
for the Western District of Missouri.
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on appeal. Hadley v. State, 771 S.W.2d 943 (Mo. Ct. App. 1989).
II.
Hadley filed a petition for a writ of habeas corpus. After a limited
evidentiary hearing, the district court denied Hadley's petition and
request for a full evidentiary hearing on the ground that his claims were
procedurally barred. Hadley v. Groose, No. 91-0951-CV-W-6, 1994 WL 14855
(W.D. Mo. Jan. 19, 1994) (revised memorandum and order). We concluded that
Hadley's claims were not barred and reversed and remanded for an
evidentiary hearing and further consideration of Hadley's claims. Hadley
v. Caspari, 36 F.3d 51, 52 (8th Cir. 1994) (per curiam).
On remand, after conducting a two-day hearing, the district court
granted Hadley's petition, concluding that Maples and Johnston had been
ineffective in dealing with the introduction of evidence regarding the
December 15 attempted break-in. Hadley v. Groose, No. 91-0951-CV-W-6, 1995
WL 307424 (W.D. Mo. May 17, 1995) (memorandum and order).
The State appeals, arguing that the district court erred in
conducting a second evidentiary hearing and that the district court
erroneously concluded that Maples and Johnston had been ineffective.
Hadley cross-appeals, arguing that he was entitled to relief on grounds
alleged in his petition that the district court did not address.
III.
With respect to the State's first contention, the district court can
hardly be faulted for complying with our directive that it hold an
evidentiary hearing.
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Turning to the merits of the district court's ruling, the key to
understanding this case is to appreciate the damning nature of the evidence
of the December 15 attempted break-in, for we agree with the district court
"that what the jury believed about Dec 15. was the ``make-or-break' aspect
of the case." Memorandum and Order at 14. Hadley was never charged in
relation to the December 15 incident, yet the trial court allowed the
introduction of testimony regarding the subsequent attempted break-in to
show identification, common scheme or plan, and motive.
The State's case regarding the December 11 attack was weak. Smith's
eyewitness identification of Hadley was described by the district court as
"not very powerful" and "rather weak."2 The only other evidence linking
Hadley to the attack was a single pubic hair found at the scene, which had
characteristics consistent with Hadley's pubic hair, and a semen sample
left by a person with Type A blood--Hadley's blood type and the blood type
of approximately 42% of the population. Furthermore, Hadley presented
evidence establishing an alibi for the time of the attack.
The evidence regarding the attempted break-in on December 15
developed as follows. Mrs. Smith called the police on December 15 soon
after the foiled intruder left. Officers Rogers and Breeden arrived at
Mrs. Smith's trailer at 5:43 a.m. on December 15. Deputy Sheriff Parrill
arrived shortly thereafter. A light snow had fallen that morning.
Rogers's report contained the following statement:
2
Mrs. Smith, who said she only caught a side view of her
attacker, described him as being 5'6" tall, 160 pounds, with very
little hair on his chest except for a strip of hair in the middle.
Hadley was 6' tall, 185 pounds, and, as demonstrated at the first
evidentiary hearing, has chest hair from armpit to armpit, with
some bunched in the middle. Furthermore, Mrs. Smith was unable to
pick Hadley out at a photo line-up on December 11, despite the
line-up containing a mug shot with a side view of Hadley. She
testified that she said, while pointing to Hadley's picture, "``if
it would be any of them, it would be this one.'"
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This R/O [reporting officer] also observed that there were snow
tracks in the shape of footprints on the victim's front porch.
The tracks appeared to be that of boots with cleat type soles.
The victim stated no one had been on her porch recently. This
R/O and Officer Breeden made a canvass of the victim's yard and
found several footprints in the snow leading to and from the
victim's trailer to the street in front of the house, however,
it was not possible to trace the prints further than the street
area.
This R/O and Officer Breeden checked the area around
trailer #6 and Officer Breeden found footprints in the snow
around trailer #6.
Trailer #6 was the trailer of Mary Ellen Reding, Hadley's mother. Although
Hadley was living there on December 10-11, he had moved out of the trailer
prior to December 15.
At a deposition in the present case, Rogers testified that he traced
the footprints out to the edge of the street, where they disappeared; he
did not trace them farther. Rogers also testified that it was Breeden who
discovered the footprints outside Reding's trailer. Rogers observed three
or four different types of footprints, none of which were the same as those
outside Mrs. Smith's trailer. Rogers stated that the footprints at Mrs.
Smith's trailer appeared to be from a hiking-type boot, not a cowboy boot.
Deputy Sheriff Parrill's report stated that the footprints in the
snow "led S.E. to Road then vanished." Parrill testified at Hadley's post-
conviction relief hearing that the snow was soft in Mrs. Smith's yard but
compacted in the road, that there were no visible prints in the road, and
that he did not attempt to trail the prints farther.
The prosecutor added the following note to Rogers's report: "These
officers followed tracks to road -- lost them in road & they appeared on
opposite side, leading to Hadley's trailer." The fact that it was the
prosecutor who added this note was not disclosed
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until after trial.
Prior to trial, the defense filed a motion in limine to exclude
evidence of the December 15 attempted break-in. The prosecutor argued for
admission of the evidence, stating that the footprints found on December
15 leading to Reding's trailer were "similar in size, shape, to what had
been in front of" Mrs. Smith's trailer and that the footprints in front of
Mrs. Smith's trailer "could be identified in going up to Hadley's trailer."
Agreeing with the prosecutor, the trial court stated that "you have the
footprints leading out to the road and to the defendant's trailer," and
that "we have the footprints pointing to his trailer."
The prosecutor then moved to substitute Officer Breeden for Officer
Rogers as a witness at trial. The prosecutor argued that the police report
referred to "following the snow tracks and the shape of footprints up to
the defendant's front porch," and that Breeden was the officer who had
followed the footprints. He argued that there was no surprise to the
defense because Breeden's testimony would be "identical to what is
reflected in Officer Rogers's report." The trial court allowed the
substitution, stating that "the testimony of this witness is not different
from that shown in the police reports." The court allowed the defense to
interview Breeden at the courthouse prior to his testimony.
Breeden was the State's final witness at trial. He testified that
there were spots of snow shaped like a shoe on Mrs. Smith's porch. He then
drew a diagram showing the tracks leaving Mrs. Smith's yard, disappearing
at the road, and reappearing and leading to Reding's trailer, which he
referred to as "Hadley's" trailer. He testified that the tracks in front
of "Hadley's" trailer were "very similar in size and general shape" to
those in front of Mrs. Smith's trailer, and that he only found one set of
tracks. He also testified that "Hadley's" trailer was directly visible
from Mrs. Smith's front door. On cross-examination, Breeden stated that
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although he couldn't be sure that the tracks in front of Reding's trailer
were the same as those in front of Mrs. Smith's trailer, they were
"generally very similar." He was not asked about the contents of Rogers's
or Parrill's report.
During the defense's case, Maples and Johnston put on no alibi
evidence for the night of December 14 and early morning of December 15, and
they did not call Rogers to testify about the footprints, even though
Rogers was at the courthouse. When Hadley testified, they failed to ask
him any questions regarding his whereabouts the morning of December 15;
they asked him only whether he had gone to Mrs. Smith's trailer on December
15 and tried to break in.
During closing arguments the prosecutor capitalized on the December
15 evidence and made several references to the footprints in the snow. He
argued, in part, that Hadley had tried to enter Mrs. Smith's trailer a
second time and then walked through the snow to his trailer; that there
were "tracks straight from her house to Russell Hadley's house"; that the
officers "followed a bee-line straight from Mrs. Smith's trailer back to
Russell Hadley's trailer"; and that "the footprints . . . don't lie."
IV.
A.
We review the district court's legal conclusions de novo, and its
factual findings for clear error. We accord deference to the district
court's credibility determinations. Sidebottom v. Delo, 46 F.3d 744, 752
(8th Cir.), cert. denied, 116 S. Ct. 144 (1995); Singleton v. Lockhart, 962
F.2d 1315, 1321 (8th Cir.), cert. denied, 506 U.S. 964 (1992). The
district court concluded that Maples and Johnston performed deficiently
when they failed to investigate Hadley's alibi for December 15 and
consequently were unable to present alibi evidence at trial. We agree.
-7-
To show that his counsel was ineffective, Hadley must show that his
attorneys' performance was deficient and that their deficient performance
prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). Counsel has a duty to make a reasonable investigation based on the
information provided by a defendant, particularly when an alibi is
involved. See Strickland, 466 U.S. at 691; Sidebottom, 46 F.3d at 752.
To establish prejudice from counsel's failure to investigate a potential
witness, a petitioner must show that the witness would have testified and
that their testimony "would have probably changed the outcome of the
trial." See Stewart v. Nix, 31 F.3d 741, 744 (8th Cir. 1994).
Maples and Johnston both testified that they were aware prior to
trial of the possible link between Hadley and the December 15 incident and
the possibility that evidence regarding December 15 might come in at trial.
The district court credited Hadley's testimony that he told Johnston and
Maples that Maggie Burdick would testify that he was with her at a party
the night of December 14-15. Burdick testified at a deposition in the
present action that she was with Hadley until 6:00 or 7:00 a.m. the morning
of December 15. Maples testified that he knew that Hadley had alibi
witnesses and that Hadley had provided information to either him or
Johnston regarding his alibi, yet he failed to investigate or call any
alibi witnesses. Maples basically left the investigation up to Johnston.
Johnston testified that Burdick's name was in his notes and that he
remembered trying to call her once. When he found she was not an alibi for
December 11, he crossed her name off without asking her about December 15.
Despite Hadley's claim of innocence and his presentation of potential
alibi evidence to counsel, Johnston and Maples made no effort to
investigate Hadley's alibi for December 15, despite their admitted
knowledge that the attempted break-in was an issue in the case. Given the
crucial nature of the December 15 evidence,
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counsels' failure to investigate constituted deficient performance.3 See
Tosh v. Lockhart, 879 F.2d 412, 414 (8th Cir. 1989) (failure to obtain
alibi testimony of known, relevant witnesses); Thomas v. Lockhart, 738 F.2d
304, 308 (8th Cir. 1984) (investigation deficient where it consisted of
simply reading police file and not investigating defendant's claim of
innocence or three alibi witnesses whose names were provided by defendant).
Furthermore, Hadley has shown that Burdick would have testified at trial,
what the contents of her testimony would have been, and that her testimony
"would have probably changed the outcome of the trial." Stewart, 31 F.3d
at 744.
Maples testified that once the trial court denied the defense's
motion in limine and ruled that evidence of the December 15 attempted
break-in would be admitted, he knew it was important to establish an alibi
for December 15. Defense counsel failed to do so, presenting no alibi
evidence whatsoever to the jury.4 In fact, Maples arguably made Hadley
look suspect while testifying by asking Hadley whether he tried to break
in to Mrs. Smith's trailer on December 15 and then failing to ask Hadley
about his whereabouts on December 15.
B.
Maples and Johnston were both aware of Rogers's report before trial
and were aware that the prosecutor's handwritten addition differed from the
body of the report. Before trial, however, they
3
The night before trial was the first time counsel told Hadley
that they thought evidence of the December 15 attempted break-in
was going to be admitted, and they advised him to plea bargain.
4
Counsel missed one opportunity to do so at trial when Nancy
Potter was testifying. Potter testified that she had seen Hadley
at a party subsequent to December 11, but counsel asked no follow-
up questions. Potter has attested that the party she referred to
was Burdick's party on December 14-15, and that she was sure Hadley
was there as late as 5:00 a.m.
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believed that the body of the report was helpful. They did not investigate
the handwritten addition because Rogers was the endorsed witness, and no
witness was endorsed to testify regarding who had inserted the additional
language.
We agree with the district court that Maples's and Johnston's lack
of pre-trial investigation regarding the report may not have been deficient
performance. When the prosecutor used his notation on Rogers's report to
convince the trial court to allow Breeden to testify instead of Rogers,
however, Maples and Johnston, as they have now acknowledged, were put on
notice that Breeden's testimony would seriously implicate Hadley. We agree
with the district court that counsel performed deficiently with respect to
the manner in which they dealt with Officer Breeden's testimony at trial.
Defense counsel had not interviewed Breeden prior to trial. When
Johnston interviewed Breeden the day of trial, what Breeden told him was
consistent with how Breeden ultimately testified. Maples testified that
after the subject of Breeden's testimony became apparent, there was no
strategic reason for not impeaching Breeden with Rogers's report and it
would have been effective to call Rogers to impeach Breeden and offer
testimony favorable to Hadley. Despite his knowledge of Rogers's report,
Johnston could not explain why he failed to address the issue in his cross-
examination of Breeden. Maples's and Johnston's failure to use the police
reports to impeach Breeden, coupled with their failure to affirmatively
present Rogers's testimony as exculpatory defense evidence, allowed
Breeden's devastating footprint testimony, emphasized during the
prosecutor's closing argument, to go virtually unchallenged.
Furthermore, Johnston knew that Hadley had said that he did not have
any shoes that would have made the treaded footprint. Hadley told counsel
to call his half-brother, Steven Reding, who, besides bolstering Hadley's
alibi for December 11, would testify
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that when Hadley went to prison Reding received all of Hadley's shoes, none
of which had soles with tread. Reding testified that Maples never
contacted him about testifying, even though Reding was at the courthouse
the day of Hadley's trial. The failure to call Reding allowed the
prosecutor to argue, "Well, where is the brother? . . . If he has such a
fantastic alibi wouldn't his own brother come to court and tell us about
it?"
C.
To demonstrate prejudice, Hadley "must show that there is a
reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome." Strickland, 466 U.S. at 694; see also Lockhart v. Fretwell, 113
S. Ct. 838, 844 (1993) (prejudice component "focusses on the question
whether counsel's deficient performance renders the result of the trial
unreliable or the proceeding fundamentally unfair"). We agree with the
district court that given the weakness of the State's case regarding the
December 11 attack, if the jury believed "``that [Hadley] was the December
15 culprit, there seems little doubt that a conviction was inevitable.'"
Memorandum and Order at 14. In the absence of alibi witness testimony and
in light of the unchallenged testimony and argument about the straight-line
tracks from the victim's trailer to the Hadley trailer, the jury could
hardly have believed otherwise. Counsels' failure to introduce the
available alibi testimony and to challenge the footprint testimony
constituted deficient performance that resulted in prejudice as defined in
Strickland.
CONCLUSION
We do not minimize the gravity of overturning a state-court
conviction, now a decade old, arising out of a sexual attack upon
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an elderly woman, now deceased, in the supposedly safe confines of her own
home. Nevertheless, we are constrained to agree with the district court
that trial counsels' failure to adequately deal with the evidence linking
Hadley to the December 15 attempted break-in is sufficient to undermine
confidence in the outcome of the trial.
The judgment is affirmed.5
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
5
In light of our disposition of the State's appeal, we decline
to reach the issues Hadley raises in his cross-appeal.
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