McQueen v. State , 1971 Mo. LEXIS 826 ( 1971 )

SEILER, Presiding Judge

(dissenting).

I respectfully dissent. In my opinion the conclusion of the trial court that defendant received effective assistance of counsel was clearly erroneous and on the entire evidence I am “left with the definite and firm conviction that a mistake has been committed”, Clayton v. United States (C.C.A.8) 302 F.2d 30; Crosswhite v. State (Mo.Sup.) 426 S.W.2d 67. I say this because on the record counsel did not meet the standard of normal competence. Endorsement of the kind of representation which was provided here would lead to relaxation of the standards adopted by the court, particularly Canon 6 and DR 6-101 (A) (2).¹ Relaxation of this standard degrades the administration of justice and burdens the courts and public, as well as imperiling Sixth Amendment rights of an accused. In this case, where his client was charged with first degree murder, with the state seeking the death penalty and qualifying the jury accordingly, and where the state in presenting its case was to rely entirely on circumstantial evidence, defense counsel admittedly did not interview or attempt to interview a single one of the state’s endorsed witnesses.

Counsel undertook to try the case with no preparation on the facts other than talking on several occasions with the defendant, who was at all times confined to jail. Therefore, we are not dealing with the usual attempt to second-guess trial counsel’s tactics and strategy chosen after reasonable investigation and research, but instead with judgments made in default of knowledge. No lawyer could have effectively represented defendant in this case without first investigating the state’s case. Trial lawyers everywhere know that adequate investigation and preparation are crucial to an effective defense. No one, asserting his innocence as defendant did, would employ a lawyer in a capital case who made it a condition of his employment that he would make no investigation of the case before trying it. No law professor, worth his salt, would teach his students in a trial practice course that they should make no investigation of the facts before announcing ready for trial. The point is so obvious it would seem unnecessary to state it, but for emphasis we quote from the American Bar Association’s Standards Relating to the Prosecution Function and the Defense Function, Part IV, Investigation and Preparation, 4.1- — -Duty to investigate, p. 161: “It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to the lawyer of facts constituting guilt or his stated desire to plead guilty.”

These standards were prepared by a committee of- experienced judges, prosecutors and trial lawyers, one member being the present Chief Justice of the United States.

Other than the proposed opinion in this case, I know of no case holding that where there was a complete failure to investigate as here, defendant nonetheless was not denied effective assistance of counsel. In Cross v. Peyton (C.C.A. 8) 392 F.2d 360, cited in the proposed opinion, where there was a comparable failure — counsel made no effort to interview witnesses or investigate, because he never did any of that until his fee was paid — the court sent the case back for a hearing in the trial court on the effective assistance of counsel issue and we do not know the ultimate outcome. The court did not affirm the judgment. In fact, the appellate court was sufficiently concerned over the way counsel had apparently neglected his client that it said it might be necessary for the trial court to consider whether counsel should be disbarred. The Cross case, in my judgment, does not support affirmance of the present judgment.

For other illustrations of ineffective assistance of counsel cases bottomed all or in part on failure to investigate, see United States ex rel. Green v. Rundle (C.C.A. 3) 434 F.2d 1112 (where counsel did not take time to investigate thoroughly employment records which might have corroborated defendant’s alibi); Coles v. Peyton (C.C.A. 4) 389 F.2d 224, 226 (no investigation, among other factors, the court stating: “ * * * Counsel must conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself enough time for reflection and preparation for trial * * * ”); Brubaker v. Dickson (C.C.A. 9) 310 F.2d 30 (failure by default of knowledge of what reasonable inquiry would have produced); Fields v. Peyton (C.C.A.4) 375 F.2d 624 (guilty plea after short consultation with appointed counsel at rear of the courtroom); Thomas v. State (Ind.) 242 N.E.2d 919 (inadequate investigation); Hillman v. State, 234 Ind. 27, 123 N.E.2d 180 (defendant’s lawyer interviewed no witnesses); Abraham v. State, 228 Ind. 179, 91 N.E.2d 358 (no consultation prior to trial and no investigation); State v. Osgood, 266 Minn. 315, 123 N.W.2d 593 (defendant’s lawyer conferred with him once immediately before the trial); McKenzie v. State, 233 Miss. 216, 101 So.2d 651 (defendant tried without prior consultations with appointed counsel).

The earliest case about the indigent defendant being entitled to effective representation is, of course, Powell v. Alabama, 287 U.S. 45, 57-58, 53 S.Ct. 55, 59-60, 77 L.Ed. 158. Here, as there, “ * * * during perhaps the most critical period of the proceedings * * * when consultation, thorough-going investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself.”

* * * * * *

“It is not enough to assume that counsel * * * exercised their best judgment in proceeding to trial without preparation. Neither they nor the court could say what a prompt and thorough-going investigation might disclose as to the facts. * * * ”

Obviously witnesses should be interviewed as early as possible, while events are still fresh in their minds. Details of even the most memorable events are subject to memory dissipation, “a leveling-out process in which most of what happened is forgotten within a matter of hours or days”, Marshall, Law and Psychology in Conflict, 26-27 (1966). As time passes, inconsistencies and variations between the witnesses for the state tend to disappear. Additionally, battle lines harden, especially in a homicide case, and witnesses unconsciously tend to identify with one “side” of a case. It is impossible to say at this date, after there has already been a trial where the important state witnesses testified free from being questioned ahead of time by the defense as to what they claimed to know about the facts, exactly what could have been developed had trial preparation been made at the proper time.

Specifically, however, in the case before us, various possibilities readily suggest themselves: The defendant testified the deceased (a 37 year old black man weighing around 200 pounds) made an assault on him (age 28, white, weight around 130 pounds) with a weapon consisting of an elongated shoe horn made of a shiny metal with some sort of a carving knife handle, around 2 feet in overall length — the kind some people use to get into their shoes without having to stoop very much. The state then recalled several police officers who had investigated the scene at the deceased’s apartment to prove that in seaching the apartment they did not find any such shoe horn, the obvious purpose being to cast doubt on defendant’s story that there ever was any such shoe horn available. On this exact point, however, there were several of the state’s witnesses who should have had some knowledge on whether deceased had such a shoe horn in his apartment. These were his mother, who lived in the apartment directly below her son; his aunt, who lived with deceased, and his step-brother, who was familiar with the apartment, the clothing of the deceased, and who found the deceased’s body around 8:00 p. m. the day of the shooting.² Any or several of these witnesses might very well have been able to confirm that the deceased did have such a shoe horn.

The same is true of the witness, Donald Lawrence Cole, the homosexual who spent the night in bed with the deceased at the apartment, got up the next morning, shaved, borrowed some clothing from the deceased, and went on to work. Cole had been in the apartment many times, was intimately acquainted with the deceased, and no doubt knew about the shoe horn. Yet, defense counsel did nothing about checking this possibility and asked no questions of any of these witnesses on this subject.

As pointed out in the original opinion in this case, State v. McQueen (Mo.Sup.) 399 S.W.2d 3, 4, the state relied- on circumstantial evidence and “With meticulous care, it presented a large quantity of detailed facts” in making its submissive case. Such a meticulously detailed case, impressive when it stands unchallenged, is also the sort of structure which can start collapsing pretty rapidly once some of the meticulous detail is smudged or dislodged. An important part of the state’s case was the theory that defendant had gone to deceased’s apartment with a stolen gun for the purpose of robbery and that the matter of self-defense and attempt to commit sodomy did not occur at all. The state had some rather vague testimony from a dentist and the dentist’s sister, who both knew defendant, that the gun used to shoot deceased had been stolen from the dentist’s sister’s automobile, presumably by defendant.

Defendant told defense counsel that the dentist, who was also a homosexual, and the deceased, another homosexual, knew each other in such relationship. If the dentist and the deceased carried on their activities in the deceased’s apartment, it might well be that the gun actually was in the apartment because the dentist had left it there (as well as his shirts). It may have been that when defendant said he saw the gun on the dresser in the deceased’s bedroom and picked it up when the deceased started toward him with the upraised shoe horn, that he was telling the truth. But defense counsel made no effort to interview the dentist or the sister or to connect the dentist with the deceased or to find out if this is the way the gun got to the apartment. The people who lived beneath the apartment may have known whether the dentist had been in the apartment. They may have recognized him coming or going. If the dentist left his sister’s gun in the apartment it would have cast doubt on the state’s theory that the defendant came to the apartment with a stolen gun, bent on robbery.

Defendant’s testimony was that the deceased was drinking, was “wobbling”, “upset”, “raving and screaming”, “just like a madman, crazy”, yet deceased’s cousin testified she talked to him around 8:30 a. m. the morning of the homicide, by telephone. Counsel made no attempt to find out whether she could corroborate any of this from her conversation with the deceased. Nor did counsel make any investigation to ascertain if the police pathologist had made any tests for alcohol in the deceased’s blood.

According to Cole, some unidentified third person came to the apartment in the middle of the night, was admitted by the deceased and taken to another bedroom, and was still in the apartment when Cole left at 7:15 a. m. Again, no investigation of this was made by defense counsel. Whoever it was might have overheard all that occurred. The possibility was worth investigating. Also, Cole may have seen the gun in deceased’s possession or on the dresser, but defense counsel made no investigation and was in no position to venture into an examination of Cole on the subject at the trial. Indeed, with respect to all the key witnesses, counsel was in the unhappy position of not being able to cross-examine effectively, because he had no idea what the answers would be or whether the answers accorded with the facts. It is a fact of life that adverse witnesses do not always tell the truth or the whole truth unless they know the examiner is in a position to expose them if they do not, or unless they sense from his questions that he knows what the true facts arc. So when the dentist was asked, for example, whether he was acquainted with the deceased (an affirmative response would have been important, as both the trial judge and defense counsel said there was no doubt in the courtroom but that the dentist was also a homosexual) counsel could do nothing but drop the subject when the dentist answered in the negative.

Even when it came to examining the defendant, counsel was at a disadvantage in never having visited the apartment and having no clear visualization of the arrangement of the rooms, doors and windows. This was apparent during counsel’s direct examination of defendant on his account of self-defense, when the trial court almost sustained the state’s objections on the ground that defendant had not shown that he could not have retreated or escaped.

There is no way to tell now what a careful checking of the above-mentioned possibilities would have produced had it been made at the crucial time. As it turned out, the state was not • able to obtain a first degree conviction, even though the defendant had a prior record and was a narcotics addict. Had the defense been armed with an adequate investigation, cross-examination of the state’s witnesses might well have raised substantial doubts and the jury might have found only manslaughter or conceivably might have acquitted.

In my opinion, it is unrealistic to expect this defendant at this date to prove definitely that if a proper investigation had been made an acquittal would have resulted. No one can say what a jury will do with a case. The point remains, however, that the making of no investigation whatever is in and of itself inherently prejudicial. To insist that the defendant now show specific prejudice is requiring him to establish by his own efforts the very things for which the law recognized he needed the assistance of counsel in the first place and which he did not receive. As expressed in Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680: “ * * * The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial * * * ”

When a lawyer attempts to defend a case without prior investigation he is at a constant disadvantage and numerous opportunities for making telling points will pass unrecognized and remain so, although they are there if one but knew where to look. This is recognized in United States ex rel. Green v. Rundle, supra, 434 F.2d 1115, where the court said: “ * * * In many instances ineffective assistance of counsel may have had so pervasive an effect on the process of guilt determination that it is impossible to determine accurately the presence or absence of prejudice * * * In such instances a finding of departure from the standard of normal competence requires without more, a new trial * * * ”

Moore v. United States (C.C.A.3) 432 F.2d 730, 735, involved a claim of inadequacy of counsel in the preparation for trial. In remanding and overruling the district court’s denial of a hearing, the court discussed adequate preparation for trial as related to effective assistance of counsel and said: “ * * * Adequate preparation for trial often may be a more important element in the effective assistance of counsel to which a defendant is entitled than the forensic skill exhibited in the courtroom. The careful investigation of a case and the thoughtful analysis of the information it yields may disclose evidence of which even the defendant is unaware and may suggest issues and tactics at trial which would otherwise not emerge * *

Continuing, the court said as to the standard to be applied, 432 F.2d l. c. 736: “Whether an indigent is represented by an individual or by an institution, he is entitled to legal services of the same level of competency as that generally afforded at the bar to fee-paying clients. In both cases, therefore, the standard of adequacy of legal services as in other professions is the exercise of the customary skill and knowledge which normally prevails at the time and place.”

Finally, particularly appropriate to the present case, is the following at 432 F.2d 739: “We have no doubt that counsel acted in an effective manner as far as the trial judge was able to observe his conduct. But representation involves more than the courtroom conduct of the advocate. The exercise of the utmost skill during the trial is not enough if counsel has neglected the necessary investigation and preparation of the case or failed to interview essential witnesses or to arrange for their attendance. Such omissions, of course, will rarely be visible on the surface of the trial, and to that extent the impression of a trial judge regarding the skill and ability of counsel will be incomplete.”

In my opinion, in this case counsel’s performance did not come up to the normal standards. The result was inevitable prejudice to defendant, and I would set aside the judgment of conviction and remand the case for a new trial with different counsel.

After reading Judge Finch’s interesting treatment of the subject in his concurring opinion, I would like to add this: Judge Finch takes up the various leads which the writer pointed out should have been investigated by counsel in order to get ready to defend the case, stating it is all couched in terms of what “might well be” or what someone “may have known” or “might have heard”, and that this is all speculation, with no showing the investigation would have uncovered anything. But this can be said of any investigation. Even the most promising leads may turn out to be worthless, but this does not mean the investigation should not be undertaken. By pointing out what proper investigation might have uncovered, I am attempting to illustrate that counsel’s failure to do anything about investigating these obvious leads constituted ineffective assistance of counsel at the time, just as was held to be the case in Powell v. Alabama, supra, where counsel made no investigation or thorough preparation.

I quite'agree with Judge Finch’s admonition that “Counsel, even when appointed without compensation, should prepare the case fully.” What I am trying to point out is that it is this aid of counsel during the critical time of getting ready to defend which was irretrievably lost to this defendant’s prejudice by counsel’s failure to interview any of the witnesses referred to above. There is nothing speculative about this. This was sufficient to reverse in Powell v. Alabama and it should be sufficient here.

Everyone now agrees that where counsel is denied, as in Gideon v. Wainwright, cited by Judge Finch, a new trial must be granted, without calling on defendant to prove he was prejudiced any further. When it is established that a defendant has not had effective assistance of counsel, it seems to me it is a distinction without a difference to say this is not as prejudicial as having no counsel. Either way he has not had the benefit of counsel or a fair trial as we understand a trial to be in Missouri or the nation.

1 . “A lawyer should not * * * handle a legal matter without preparation adequate in the circumstances.”

2 . One of the loose ends in the case was how the aunt, living in the same apartment, failed to hear any shots or discover the body lying in the hall.