Opinion
No. 1:99CV00668
June 12, 2001
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Petitioner seeks relief pursuant to 28 U.S.C. § 2254. A jury convicted petitioner in state court of first-degree murder and attempted larceny. The jury recommended death as his sentence. The Supreme Court of North Carolina upheld his conviction and sentence on appeal.See State v. Chandler, 342 N.C. 742, 467 S.E.2d 636, cert. denied, 519 U.S. 875, 117 S.Ct. 196, 136 L.Ed.2d 133 (1996). Petitioner filed a Motion for Appropriate Relief in the North Carolina Superior Court, but the court denied relief after holding an evidentiary hearing. The Supreme Court of North Carolina denied certiorari review.
The jury found petitioner not guilty of attempted first-degree rape and first-degree sexual offense. He was found guilty of first-degree murder under the felony murder rule, with first-degree burglary as the underlying felony.
The evidence of petitioner's guilt is very substantial and is set out in the opinion of the Supreme Court of North Carolina. To briefly summarize, on December 10, 1992, family members and a housekeeper found Mrs. Doris Poore dead in her bed in her residence in Mt. Airy, North Carolina. Police determined that the back door of the residence had been forced open. Mrs. Poore's body was lying on the bed with the top of her pajamas open and she was nude from the waist down. Her panties and the bottoms of her pajamas were on the bed at her feet.
The pathologist testified that Mrs. Poore died from a single, massive blow to her head. Police found petitioner's palm print on the back door which had been forced open. Petitioner allowed police to fingerprint him, but after having provided his prints, he attempted to destroy the fingerprint card and other documents.
Jeffrey Kyle Wilson, petitioner's cell-mate in jail, testified at trial that petitioner described for him how he committed the murder of Mrs. Poore. Petitioner told Wilson that as a defense he planned to "play crazy."
Petitioner testified as his only defense witness during the guilt phase of his trial. He admitted forcing his way into Mrs. Poore's home, described how she startled him as he walked through her house, and confessed to striking her, catching her as she fell, and carrying her to her bed. Petitioner testified that he went to her bathroom to wash the blood off his hands and picked up her panties and pajama bottoms off the bathroom floor and put them in her bed and covered her up.
Petitioner testified that he had not known who lived in Poore's house, but thought that a man lived there because he had seen a blue pickup truck parked in front of the house and a man smoking marijuana there. On cross-examination, petitioner said that after killing Mrs. Poore he did not look for the marijuana as he had originally planned.
Standard of Review
If the Court finds that the claims were adjudicated on the merits, it must then apply 28 U.S.C. § 2254(d)'s highly deferential standard of review to petitioner's claims. That statute states that habeas relief cannot be granted in cases where a state court has considered a claim on its merits unless the decision was contrary to or involved an unreasonable application of clearly established federal law as set out by the United States Supreme Court or the state court decision was based on an unreasonable determination of the facts. A state court decision is "contrary to" Supreme Court precedent if it either arrives at "a conclusion opposite to that reached by [the Supreme] Court on a question of law" or "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite" to that of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000). A state decision "involves an unreasonable application" of Supreme Court law "if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id., 120 S.Ct. at 1520. "Unreasonable" is not the same as "incorrect" or "erroneous" and the reasonableness of the state court's decision must be judged from an objective, rather than subjective, standpoint. Id. at 1521-1522. A holding is not reasonable simply because precedent written by one of the Nation's jurists agrees with it. Id. As for questions of fact, state court findings of fact are presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Ground I-Failure to Disclose Impeachment Evidence
Petitioner claims that the State failed to disclose impeachment evidence of its witness Wilson in violation of Giglio v. United States, 405 U.S. 150 (1972), and Brady v. Maryland, 373 U.S. 83 (1963). To establish a Brady violation, petitioner must show that evidence favorable to him was suppressed by the prosecution and that the evidence was material either to his guilt or punishment. Brady, 373 U.S. at 87. Evidence is material if there is a reasonable probability that its disclosure would have changed the result of the trial. See United States v. Bagley, 473 U.S. 667, 682 (1985). There is no "reasonable probability" of a different result if, in the absence of the evidence, petitioner received a fair trial which is understood as a trial resulting in a verdict worthy of confidence. See Kyles v. Whitley, 514 U.S. 419, 434 (1995)
The parties strongly disagree on the relative importance of Wilson's trial testimony. (See Petitioner's reply brief at 1-3; Respondent's memorandum of law in support of answer at 3-4).
As for petitioner's claims of perjured testimony, the prosecution may not knowingly present false testimony or allow such testimony to go uncorrected. See Giglio, 405 U.S. at 153-54. A new trial is required if the false testimony could in any reasonable likelihood have affected the judgment. Id.
Petitioner places his evidence into five categories.
a. Expectation of sentencing concessions. The first category is composed of three pieces of evidence which petitioner claims bear on Wilson's expectation of sentencing concessions or assistance. The first piece of evidence is a question Wilson asked of Mt. Airy Police Detective Shelton prior to Wilson giving a statement to Shelton and SBI Agent Perry. The question was: "What's in it for me?" Petitioner claims that this question reveals Wilson's true intentions in making his statement and would have been used to impeach Wilson on his trial testimony that he made his statement not for personal gain, but because he did not want to see such a crime against an older person happen again. (Petitioner's Br. at 5-7)
The state court hearing petitioner's motion for appropriate relief addressed this claim. It reasoned that because there was no agreement, express or implied, between the police and Wilson, there was no violation of Giglio. (Id. at 24, 25, ¶ 26, 27). The court did not make specific findings regarding the materiality of Wilson's question. The factual findings made by the state court are presumed correct in this proceeding absent petitioner's rebuttal of them by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
The state court found that Detective Shelton responded to Wilson's question by stating that the police could not give Wilson anything, and that if a deal was to be tied to this information, then officers did not want the information. (Order on Motion for Appropriate Relief, at 23, ¶ 14) SBI Agent Perry told Wilson the same thing. (Id.) The state court further found that Wilson never mentioned the possibility of a deal again. (Id.) The court found that there was no deal of any kind between agents of the State and Wilson for his statement or testimony. (Id. at 24, ¶ 25) The court found that when Wilson testified, he hoped to receive some reward money, but that he had originally approached law enforcement with the information about petitioner as a matter of conscience. (Id. at 20, ¶ 4)
In addition, defense counsel thoroughly cross-examined Wilson at trial regarding his possible motives for giving the information to the police. These motives included Wilson seeking assistance by asking SBI Agent Perry to come to his parole revocation hearing to testify that Wilson had provided information in the Poore murder case. Wilson admitted that he thought Perry's testimony would help him. (Trial Tr. Vol. V, at 628). Defense counsel also reviewed in detail Wilson's lengthy criminal history which included many crimes involving deception, such as forgery and uttering, and Wilson's pending charges had been exposed on direct examination. (Id. at 605-06, 618-24) Wilson also admitted that he was a cocaine addict. (Id. at 625) To sum up, although Wilson never admitted that he was seeking help on any of his pending charges, defense counsel successfully impeached his testimony by having Wilson admit that he sought gain by having an officer testify at his parole hearing, by detailing Wilson's lengthy criminal history, and by establishing that another possible motive for Wilson's testimony was to receive help with his pending charges.
Agent Perry did, in fact, attend Wilson's parole hearing and testified that Wilson had provided information in the Poore case, but Wilson's parole was revoked nevertheless. (Order on Motion for Appropriate Relief, at 16, ¶ 42)
Against this background of successful impeachment, Wilson's question to Detective Shelton was of very limited impeachment value. First, it was a single, isolated question. Second, Wilson gave his statement immediately after the officers told him that there would be no deals. Third, indeed no deals were made with Wilson for his statement or testimony. This Court finds that there is no reasonable probability that disclosure of this question would have changed the result of petitioner's trial. Petitioner received a fair trial even in the absence of this evidence. Therefore, petitioner has failed to establish a Brady violation.
The second and third pieces of evidence which were not disclosed to defense counsel are copies of SBI and Mt. Airy Police Department reports of the interview of Wilson held on February 1, 1993, in which Wilson lists his pending charges and parole violations. Petitioner contends that these reports show that Wilson testified falsely when he testified that he had not "brung up" his charges in relation to his giving of the information on petitioner or his testifying at petitioner's trial.
However, the state court found in rejecting petitioner's motion for appropriate relief that this listing came as a response to the officers asking Wilson why he was in jail. (Order on Motion for Appropriate Relief, at 21, ¶ 9) The state court found that since "no agreement existed, implied or express, the State did not present perjured testimony through Wilson when he testified that he had not brought up his pending charges in expectation of a sentencing concession." (Id. at 24-25, ¶ 27)
Under 28 U.S.C. § 2254(e)(1), this factual finding that Wilson did not initiate the discussion of his pending charges is presumed to be correct, and petitioner has not rebutted that presumption. This finding robs petitioner's argument of any force. The statement would not have been impeaching, and thus there was no Brady violation.
Moreover, SBI Agent Perry testified during petitioner's trial that Wilson had given him this information regarding "what he was in jail for." (Trial Tr. Vol. IV, at 597) Therefore, this information was disclosed at trial before Wilson testified. There is no actionable failure to disclose evidence when defense counsel is aware of the evidence in time to make use of it at trial. See United States v. Smith Grading Paving, Inc., 760 F.2d 527, 532 n. 6 (4th Cir. 1985).
In addition to the Brady claims, petitioner claims violations ofGiglio. Dealing first with the reports made of Wilson's interview, this Court agrees with the state court that since the investigators first broached the subject of what Wilson was in jail for, his response does not show that Wilson testified falsely when he stated that he had not "brung up" his charges in relation to the information he gave officers. Moreover, even if Wilson had first broached this subject, since Perry disclosed at trial that Wilson had spoken to Perry and Shelton about what he was in jail for, petitioner waived any objection to Wilson's testimony by waiting until after trial to bring the question to the attention of the court. See United States v. Meinster, 619 F.2d 1041, 1045-46 n. 8 (4th Cir. 1980)
Turning now to petitioner's Giglio claim premised upon Wilson's "What's in it for me" question, this Court finds that the question does not establish false testimony. First, the question fails to reveal whether Wilson was referring to pending charges when he asked the question. The state court made the finding of fact that when Wilson testified he hoped to receive reward money. This question could have referred to that possibility. Or, Wilson could have been thinking about his parole revocation hearing which was scheduled for the near future. That Wilson's question referred to his pending charges in Surry County, even when considered with the fact that the officers asked him about his pending charges in concluding his interview, is not at all clear.
Second, Wilson's denials at trial that he had discussed his charges presuppose some meaningful discussion of them in the hope of making a deal in exchange for his information. The state motion for appropriate relief court found that when prosecutor Yeatts questioned Wilson during petitioner's trial, "he and Wilson were talking about whether anybody had promised Wilson anything or made any deals with him with regard to his pending charges." (Order on Motion for Appropriate Relief, at 23, ¶ 16) Wilson's posing of his question to Detective Shelton simply does not prove false his denials during trial when they are considered in context.
b. Expectation of assistance in parole hearing. SBI Agent Perry attended Wilson's parole revocation hearing and subsequently made a written report of his attendance. The written report was not disclosed, but the prosecution revealed before trial that a state agent had appeared before a parole board to ask that a possible state's witness be given some consideration. Also, Agent Perry testified at trial that he had attended Wilson's parole hearing and had told the parole hearing officer that Wilson "had provided information to investigating officers on this case." (Trial Tr. Vol. IV, at 591, 597) In addition, Wilson testified that he expected that Perry's presence might help him serve less time and that Perry attended the hearing. (Id. Vol. V at 608, 623)
Petitioner takes issue with the failure of the prosecution to produce the copy of Perry's report. The state court hearing petitioner's motion for appropriate relief found no constitutional violation. (Order on Motion for Appropriate Relief, at 24) Petitioner first contends that the report itself would show that Perry viewed his attendance at the parole hearing as part of his duties for the murder investigation. Petitioner fails to explain why he could not have drawn such a link from Perry's testimony in the murder case and the prosecutor's admission in a pretrial hearing that a state's witness in the case had been given some consideration. This Court finds that the written report would not have provided any greater basis for linking Agent Perry's attendance at the hearing to his duties in the murder investigation than the information otherwise provided to the petitioner.
Second, petitioner contends that the report would have "been used by defense counsel to refute Mr. Perry's testimony and to discredit the State for its misleading questions of Mr. Wilson." (Petitioner's Br. at 19) As stated previously, Perry testified that his intent in attending Wilson's parole hearing was to relate that Wilson provided information in the Poore case. Petitioner fails to show how the report in any way refutes this or any other testimony of Perry. Moreover, petitioner cites no part of the report which would discredit the State in any manner.
Third, petitioner argues that the report shows that Surry County Sheriff Hall was present at the parole hearing, which is significant because Surry County had pending charges on Wilson, and arguably created expectations in Wilson of receiving help on these charges. However, the parole hearing was held in Sheriff Hall's jail. (Trial Tr. Vol. IV, at 592) Given that the hearing location provided a reasonable explanation for Sheriff Hall's presence, in addition to the fact that there is no showing in the record of any action by Sheriff Hall that would have led Wilson to think that he would receive some help on his pending charges, this Court finds no basis for petitioner's theory that Sheriff Hall's presence created expectations in Wilson of receiving help on his pending charges.
Therefore, the Court finds that Agent Perry's report of his attendance at Wilson's parole hearing was not material given the other evidence disclosed and that the report does not show that the prosecution presented any false testimony.
c. Expectation of reward money. The Governor of North Carolina offered a $5000 reward for information in the Poore murder case. The Governor's Proclamation stated: "The payment of this reward or any portion thereof is conditional upon the information being furnished as a direct result of the issuance of this proclamation." Petitioner contends that this language would have been evidence of inducement for Wilson to embellish his testimony and that it should have been disclosed.
Petitioner's argument is that because the proclamation by its terms required knowledge of the proclamation in order to be entitled to the reward and because Wilson got the reward, this proves that Wilson necessarily knew about the reward before he testified. The falsity of the syllogism is that it denies the possibility that the terms of the proclamation were not strictly adhered to when Wilson received part of the reward. This latter scenario appears to be the true state of events as found by the state court.
The respondent contends that the reward would have to have been well-publicized to be effective and that the defense attorneys with due diligence could have discovered the proclamation.
The state court hearing petitioner's motion for appropriate relief made several relevant factual findings. The court found that no agreement of any kind, including a monetary reward and/or sentencing concession, express or implied, was offered or made between any agent of the State and Jeffrey Kyle Wilson. (Order on Motion for Appropriate Relief, at 24, ¶ 25) The court also found that the "subject of a reward fund had never come up in any of the meetings with Wilson." (Id. at 23, ¶ 17) Assistant District Attorney Yeatts "did not know about the Governor's reward fund until after defendant's trial was over." (Id.) And finally, District Attorney Dellinger "had no recall of Wilson stating that he was interested in a monetary reward prior to defendant's trial." (Id. ¶ 20)
Therefore, it appears that although by the time he testified, Wilson hoped for some money (Id. at 20, ¶ 4), no state agent had discussed a possible monetary reward with Wilson. Although Wilson may have known of the reward money being offered, petitioner points to no evidence that Wilson had knowledge of the language in the proclamation. If Wilson did not know about the language of the proclamation, the proclamation is not material evidence because it could not have been a basis for Wilson to embellish his testimony. If, on the other hand, Wilson had somehow discovered the language of the proclamation, surely defense counsel could have discovered it with due diligence. If counsel with due diligence could have discovered the suppressed evidence, there is no Brady violation. See Hoke v. Netherland, 92 F.3d 1350, 1355 (4th Cir. 1996). Under either scenario, there was no Brady violation.
d. Statement of petitioner. The February 1, 1993 Mt. Airy Police Department report of the interview of Wilson contained a notation that "Chandler never said that he touched or fondled her in any way." This, of course, refers to the victim, Mrs. Poore. Petitioner argues that this notation should be read as though Chandler made the affirmative statement that he did not fondle Mrs. Poore and that the notation would be exculpatory. However, after hearing from Detective Shelton and Agent Perry during the motion for appropriate relief hearing, the state court found that the notation meant that Chandler had not made a statement either that he had or had not fondled Mrs. Poore. (Order on Motion for Appropriate Relief, at 29, ¶ 46) Thus, petitioner's argument is based upon facts contrary to the state court finding. He has not rebutted the presumed correctness of the state court finding, however. See 28 U.S.C. § 2254(e)(1). Therefore, that finding is binding on this court and based upon it, petitioner's argument has no merit. The notation was not exculpatory.
e. SBI lab report. An SBI Lab Report dated July 13, 1993 bore the results of the analysis of a handwritten letter purportedly written by Wilson. The letter stated that Wilson had never talked to a District Attorney or any member of the court about petitioner, that Wilson would not testify for either party at petitioner's trial, and that if he were questioned, Wilson would let the court or any officer of the court know that he had lied concerning petitioner's pending charges. (Order on Motion for Appropriate Relief, at 25-26, ¶ 33) The origin of the letter and exactly how it came to exist in the defense counsel's files and in the prosecution's file are all mysteries. (Id. at 26-28) Petitioner argues that the lab report confirms that Wilson actually wrote the letter. He claims it was, thus, exculpatory and should have been disclosed.
The report results were as follows:
It is this Examiner's opinion that there was enough similarity between the questioned writing on Item Q-1(A) and the known handwriting on Item K-1 to warrant a degree of belief that they were written by the same author. The examination of the original questioned document and additional nondictated standards may aid this Examiner in reaching a more definite opinion.
The fax copy [Item Q-1] did not provide a satisfactory basis for examination and comparison.
(SBI Lab Report dated July 13, 1993)
The state court found after the motion for appropriate relief hearing that the report stated that the examiner's opinion was not conclusive because additional writings were needed. (Order on Motion for Appropriate Relief, at 26, ¶ 37) Wilson denied writing the letter both before trial and at the post-conviction evidentiary hearing. (Id. at 26, ¶ 34, 37) The state court also found that a copy of the letter was in both defense counsel's file. (Id. at 28, ¶ 45) However, defense counsel did not use the letter at trial. The state court found that because the letter was not used at trial, the lab report would not have had a significant impact on the theory of defense and did not rise to the level of impeaching evidence. (Id. at 29, ¶ 45)
Petitioner argues that the state court erred because if the report had been disclosed prior to trial, then the defense could have, sought further expert assistance to prove that Wilson wrote the impeaching letter. (Petitioner's Br. at 24) However, petitioner could have sought expert assistance even without the lab report because defense counsel had the letter prior to trial. This Court agrees that the lab report itself was not material impeaching or exculpatory evidence. The state trial court did not reach a result contrary to federal law or one that involves an unreasonable application of federal law.
This Court must also consider whether cumulatively the suppressed evidence might have made a difference in the outcome of petitioner's trial. See Kyles, 514 U.S. at 436-37 n. 10. Even viewing all of these categories of evidence which petitioner raises, there is no reasonable probability that this evidence would have changed the outcome of petitioner's trial. Wilson was impeached successfully during trial by his criminal record and his admission that he thought Agent Perry's presence at his parole hearing might help him. The jury also knew of Wilson's pending charges. The additional evidence by which petitioner seeks to impeach Wilson would not have made a significant difference in the jury's perception of Wilson and his motive for testifying.
The state court's denial of relief based on petitioner's claims ofBrady and Giglio violations was neither contrary to federal law nor did it involve an unreasonable application of clearly established federal law as determined by the Supreme Court. Accordingly, petitioner's first ground for relief should be dismissed. See 28 U.S.C. § 2254(d);Williams v. Taylor, 529 U.S. 362, ___, 120 S.Ct. 1495, 1523 (2000).
Ground II-Attorney Conflict of Interest
Petitioner next contends that his Sixth Amendment rights were violated because his trial attorneys acted under a conflict of interest resulting from the prior representation of witness Wilson. The state court hearing petitioner's motion for appropriate relief found that defense counsel Collins never represented Wilson and that Collins had no conflict of interest whatsoever. (Order on Motion for Appropriate Relief, at 13, ¶ 29) Collins was the attorney who actually cross-examined Wilson during petitioner's trial. The same court found, however, that attorney Gillespie represented Wilson in 1988 on several forgery and uttering charges, which were disposed of by negotiated plea with Assistant District Attorney Yeatts. (Id. at 13, ¶ 30)
The state court found that a potential conflict of interest existed because of Gillespie's prior representation of Wilson. (Id. ¶ 31) The court also found that Gillespie did not inform the trial court of the potential conflict because he knew of nothing that would amount to an actual conflict. (Id.) The court found that Gillespie had obtained no potentially impeaching information of Wilson and that Gillespie did not recall any such information at the time of petitioner's trial or at the post-conviction evidentiary hearing. (Id. at 9, ¶ 13) Gillespie informed petitioner of the prior representation. (Id. at 13, ¶ 33)
Notwithstanding the potential conflict of interest in regard to one of the counsel, the state court found that petitioner failed to show that an actual conflict existed due to Gillespie's prior representation of Wilson. (Id. at 16, ¶ 43) The state court also found that even if an actual conflict had existed, petitioner failed to show that he suffered prejudice. (Id. at 17, ¶ 44)
Petitioner contends that the state court clearly erred because it applied the conflict of interest law applicable to disclosed conflicts and in petitioner's case the conflict was not disclosed to him. Petitioner also contends that because the potential conflict was not disclosed to him or the court, prejudice must be presumed. (Petitioner's Br. at 31) Although petitioner contends he need not show prejudice, he does cite specific examples of alleged prejudice. And, petitioner fails to show that ordinary conflict rules apply when a defendant is represented by two attorneys and the non-conflicted attorney does the examination. Contrast Hoffman v. Leeke, 903 F.2d 280 (4th Cir. 1990) (conflicted counsel taking action on behalf of both clients at the same time for the same events). In any event, there was no error even under ordinary conflict situation rules.
The Supreme Court established the proper test for analyzing a conflict of interest claim in Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). "In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Id. When an actual conflict is present and the conflict adversely affects counsel's performance in the defense of the defendant, prejudice to the defense is presumed and a new trial must be ordered. See § United States v. Tatum, 943 F.2d 370, 375 (4th Cir. 1991).
There is presently some disagreement in the Fourth circuit court of Appeals on whether, when the trial court fails to make an inquiry into the possible conflict when it knows or reasonably should know that a particular conflict exists, the defendant must make the showing of an adverse effect. See Mickens v. Taylor, 227 F.3d 203 (4th cir. 2000),vacated pending rehearing en banc (Oct. 23, 2000). Because the trial court in petitioner's case had no knowledge of the alleged conflict and should not have reasonably known of it, this situation is not presented in petitioner's case. Therefore, if the trial court has no duty to inquire as in petitioner's case, under Cuyler v. Sullivan he must make the adverse effect showing notwithstanding the fact that full disclosure of the effects of the conflict was not made to him. See 446 U.S. at 348.
To establish an actual conflict of interest, the petitioner must show that his interests "diverge [d] with respect to a material factual or legal issue or to a course of action." Williams v. French, 146 F.3d 203, 212 (4th Cir. 1998), cert. denied, 525 U.S. 1155 (1999); see Burket v. Angelone, 208 F.3d 172 (4th Cir.), cert. denied, 120 S.Ct. 2761, 147 L.Ed.2d 1022 (2000) (No. 99-9917). A court accords "great weight" to a lawyer's perception of a conflict" when evaluating a conflicts claim.See United States v. Young, 644 F.2d 1008 (4th Cir. 1981).
Petitioner attempts to show prejudice or adverse effect in five ways. Petitioner first contends that trial counsel did not investigate and impeach Wilson regarding his financial motive to testify against petitioner. Petitioner is referring to the reward money which was being offered for information in the Poore case. Counsel questioned Wilson extensively during trial regarding his motivation for testifying against petitioner. He attempted to get Wilson to admit that he was testifying in hopes of personal gain rather than for totally unselfish reasons. (Trial Tr. Vol. V, at 624) At the time of the trial, there were no agreements with regard to the reward money as found by the state motion for appropriate relief court. (Order on Motion for Appropriate Relief, at 24, ¶ 25) And, Wilson had not received the $2,500 that he would receive from the Governor's reward offer. Petitioner fails to cite any specific method of investigation which counsel could have followed which would likely have resulted in the discovery of Wilson's purported financial motivation. Moreover, there is no showing that Gillespie's prior representation of Wilson hindered this aspect of cross-examination or that there was ever a divergence of interests with regard to it.
Petitioner next claims that trial counsel did not properly prepare to cross-examine Wilson. Specifically, petitioner attacks counsel's failure to go to the jail and speak to Wilson prior to his testimony. However, there is no showing that counsel's decision not to visit Wilson in jail was due to Gillespie's prior representation of Wilson. Moreover, with the exception of a calendar Wilson kept which will be discussed later, there is no showing of any specific information that such an interview would have revealed.
Petitioner's next contention is that trial counsel did not properly cross-examine Wilson about his lengthy criminal record. Petitioner concedes that counsel apparently had a copy of Wilson's record while cross-examining him. But petitioner says that counsel should have had the case files of Wilson's prior convictions in the courtroom so that he could have impeached Wilson with the records if he denied the convictions. However, the cross-examination on Wilson's criminal record was extensive. It successfully placed before the jury that Wilson had been convicted three times for breaking and entering, thirty-six times for forgery and uttering, for probation violations, for possession of cocaine, for misdemeanor escape from jail, for assault on a female, and for driving offenses. (Trial Tr. Vol. V, at 618-22) Petitioner cites no convictions which Wilson denied that he could have been impeached on by use of the files of his cases. There is no showing of either an effect on counsel's cross-examination resulting from the potential conflict or a divergence of interests.
Petitioner next attempts to show some adverse effect by pointing out that counsel made no effort to obtain a calendar that Wilson testified he kept while in jail. Wilson testified that in this calendar he made notations about petitioner's confession to him. (Order on Motion for Appropriate Relief, at 25, ¶ 29) Petitioner contends that the calendar could possibly have been used to impeach Wilson at trial. However, the state court hearing petitioner's motion for appropriate relief found that the calendar would have corroborated Wilson's trial testimony. (Id. at 15, ¶ 39) The court also found that the calendar was not favorable to petitioner, that counsel would not have wanted the calendar introduced into evidence, and that no reasonable probability exists that disclosure of the calendar would have changed the result at trial. (Id. at 28, ¶ 44; at 15, ¶ 40) Petitioner has not shown any divergence of interests regarding this calendar and has not shown an adverse effect on counsel's performance due to any potential conflict.
The calendar was lost before the time of the post-conviction evidentiary hearing.
Next, petitioner contends that trial counsel failed to aggressively cross-examine Wilson about his history of drug abuse. Counsel did cross-examine Wilson regarding his abuse of drugs, and as a result Wilson admitted that he had been convicted of possession of cocaine and that he was a cocaine addict. (Trial Tr. Vol. V, at 625) Wilson also admitted that he was involved in an undercover drug deal by which he sought to get revenge on someone who had "crossed" him. (Id. at 630) Petitioner argues that counsel "should have cross-examined Wilson about the fact that he frequented bars and drug houses." (Petitioner's Br. at 35) However, such revelations would have added little to the information that the jury already knew about Wilson. Petitioner fails to show that any more aggressive cross-examination would have resulted in any more damaging information on Wilson's drug history. In addition, there is no showing that counsel's purportedly mild cross-examination was due in any way to Gillespie's prior representation of Wilson.
Finally, petitioner contends that trial counsel failed to interview friends and associates of Wilson so that witnesses could have been presented at trial to show Wilson's poor reputation in the community for credibility. Petitioner fails to name any specific individuals who would have testified and fails to proffer any testimony that they would have given. See Bassette v. Thompson, 915 F.2d 932, 940-41 (4th Cir. 1990) (requiring proffer of testimony from witnesses to establish ineffective assistance). As noted previously, the jurors knew that Wilson was a drug addict and a convicted felon several times over. It is very unlikely that they were under the impression that Wilson enjoyed a high reputation for credibility in the community. Petitioner has failed to make a showing of a divergence of interest or an adverse effect resulting from the prior representation.
In considering all of these arguments by petitioner, he has failed to show any divergence of his interests from those of his attorneys in the cross-examination of Wilson. This Court, therefore, finds that no actual conflict existed. See Williams, 146 F.3d at 212. Moreover, even if petitioner had established an actual conflict, there is no showing that the purported actual conflict adversely affected his lawyer's performance. See Cuyler v. Sullivan, 446 U.S. at 348.
Petitioner relies upon two cases in arguing that a conflict existed which this court finds unpersuasive due to the different factual situations presented. In Hoffman v. Leeke, 903 F.2d 280 (4th cir. 1990), the attorney advised one client to give a statement and testify to the essential elements of a crime allegedly committed by a second client. The conflict in that case was apparent. Also, in United States v. Williams, 81 F.3d 1321 (4th cir. 1996), the court found no abuse of discretion by the trial court in disqualifying counsel for the husband who was the same attorney who, as of about a year earlier, had represented the wife who would be a significant witness for the government with respect to the same crime.
The state court's denial of relief based upon petitioner's claim of attorney conflict of interest was not contrary to federal law nor did it involve an unreasonable application of federal law. Petitioner's second ground for relief should be dismissed. See 28 U.S.C. § 2254(d).
Ground III-Failure to submit mitigating circumstance
Petitioner contends in his third claim that the trial court violated his Eighth and Fourteenth Amendment rights by refusing to submit a statutory mitigating circumstance to the jury. See Lockett v. Ohio, 438 U.S. 586 (1978). The circumstance at issue is that petitioner committed the murder while under the influence of a mental or emotional disturbance. Petitioner contends that the jury was not allowed to consider that he had been smoking marijuana and drinking alcohol prior to the crime, and suffered from a mixed personality disorder and a substance abuse disorder. Respondent notes that voluntary intoxication by drugs or alcohol at the time of the offense does not qualify as a mental or emotional disturbance under North Carolina's death penalty statute. See State v. Irwin, 304 N.C. 93, 106 (1981).
The Supreme Court of North Carolina considered this claim on direct appeal. The court held that the trial court did not err in refusing to submit to the jury this mitigating circumstance because petitioner had not submitted sufficient evidence to support his contention that he was under a mental or emotional disturbance at the time of the murder. See Chandler, 342 N.C. at 756-57.
The Eighth and Fourteenth Amendments require that the sentencer not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. See Lockett v. Ohio, 438 U.S. 586, 604 (1978).
In petitioner's case, the jury was not prevented from considering any of the evidence petitioner relies upon in this claim. The jury simply was not given an instruction on the specific mitigating circumstance that petitioner desired. However, the jury was instructed to consider several similar mitigating circumstances. One such submitted circumstance was whether petitioner's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired. Petitioner argued in connection with this circumstance that his alcohol use affected his judgment as supported by the testimony of Dr. Warren. (Trial Tr. Vol. VIII, at 1032-33). In addition, petitioner submitted the circumstance that he had a history of alcohol and drug abuse which led him to make poor choices in his life. He argued in connection with this circumstance that such abuse was a factor in his entering Mrs. Poore's home on the evening of the murder. (Id. at 1035) Finally, the court submitted a "catch-all" circumstance to the jury. This mitigating circumstance allowed the jury to consider "any circumstance or circumstances arising from the evidence which you, the jury, deem to have mitigating value." (Id. at 1038-39)
To the extent petitioner may be claiming that there was sufficient evidence to support the statutory mitigating construction, he fails to show that the decision of the North Carolina Supreme court was both wrong and a violation of his constitutional rights.
Because the jury was free to consider as a mitigating factor all of the evidence raised by petitioner, this Court finds no violation of petitioner's Eighth or Fourteenth Amendment rights. This Court cannot find that the Supreme Court of North Carolina's decision was contrary to federal law or involved an unreasonable application of federal law. Petitioner's third ground for relief should be dismissed. See 28 U.S.C. § 2254(d).
Claim IV-Restrictive definition of mitigation
Petitioner's final claim is that the trial court erred by giving the jury an improperly restrictive definition of mitigation. He claims this instruction violated his Eighth and Fourteenth Amendment rights. See Lockett, 438 U.S. 586. The instruction was as follows:
Now, a mitigating circumstance is a fact or a group of facts which do not constitute a justification or excuse for a killing, or reduce it to a lesser degree of crime than first degree murder, but which may be considered as extenuating or reducing the moral culpability of the killing, or making it less deserving of extreme punishment than other first degree murders. Our law identifies several possible mitigating circumstances. However, in considering Issue No. 2 it would be your duty to consider as mitigating circumstances any aspect of the defendant's character or record or any of the circumstances of this murder that the defendant contends is a basis for a sentence less than death, and any other circumstances arising from the evidence which you, the jury, deem to have mitigating value.
(Trial Tr. Vol. VIII, at 1071-72)
Petitioner cites only the first paragraph of the instruction quoted above and argues that it focuses exclusively on the facts of the crime itself without regard for the individual circumstances of the petitioner, in violation of Lockett.
The Supreme Court of North Carolina addressed this issue on direct appeal as a preservation issue and declined to depart from its prior holding. See Chandler, 342 N.C. at 759-60.
The standard for determining whether the jury instruction passes constitutional muster is "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." See Boyde v. California, 494 U.S. 370, 380 (1990). A reviewing court evaluates the instruction with a commonsense understanding of the instructions in light of all that has taken place at the trial. See Johnson v. Texas, 509 U.S. 350, 368 (1993).
Petitioner specifically cites his youth, immaturity, and impairment at the time of the crime and contends that these instructions permitted the jury to ignore such evidence. However, the instruction read in its entirety allows and specifically invites the jury to consider the individual circumstances of the petitioner when determining what mitigating circumstances are present. The first mitigating circumstance that petitioner argued to the jury was his age at the time of the murder. (Trial Tr. Vol. III, at 1030) Also, as mentioned earlier, petitioner argued to the jury both that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired and that his history of alcohol and drug abuse had mitigating value. (Trial Tr. Vol. VIII, at 1032-35) There is no reasonable likelihood that the jury misinterpreted the challenged instruction and ignored this evidence as a result.
This Court finds no violation of federal law with respect to petitioner's final ground for relief. Accordingly, petitioner's final ground should be dismissed. See 28 U.S.C. § 2254(d).
IT IS THEREFORE RECOMMENDED that the habeas corpus petition of Frank Ray Chandler be denied and that this action be dismissed.