Opinion
Civil Action No. 02-3001-GTV; Crim. Action No. 98-20033-02-GTV
March 27, 2003
MEMORANDUM AND ORDER
The defendant, Demetrius R. Hargrove, has filed a Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 189). Following a jury trial in this court he was convicted of kidnaping in violation of 18 U.S.C. § 1202 and 2, and carrying and using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) and 2. He received a sentence of imprisonment of 360 months on the kidnaping count, and 60 months consecutive on the firearm count. He appealed his conviction and sentence, and the Tenth Circuit Court of Appeals affirmed in an unpublished opinion. United States v. Hargrove, 229 F.3d 1165, 2000 WL 1227895 (10th Cir. Aug. 30, 2000). The Supreme Court denied certiorari, and the instant motion was timely filed.
The grounds alleged by Defendant in his motion are: (1) that his trial counsel was ineffective; (2) that counsel for the government was guilty of prosecutorial misconduct by offering perjured testimony before the grand jury which indicted Defendant; and (3) that there was prosecutorial misconduct "for vouching for witnesses' credibility, misstating the facts of evidence, and smearing petitioner with other alleged crimes or acts." In his argument in support of the motion, Defendant appears to contend that the misconduct of the prosecutor occurred both before the grand jury and at trial.
A. Ineffective Assistance of Counsel
Defendant makes seven claims that his counsel was ineffective such that his right to counsel guaranteed by the Sixth Amendment was denied. There is a strong presumption that counsel provided effective assistance, and a § 2255 defendant has the burden of proof to overcome that presumption. United States v. Rantz, 862 F.2d 808, 810 (10th Cir. 1988) (citing United States v. Cronic, 466 U.S. 648, 658 (1984)). To prevail on his claim of ineffective assistance of counsel, Defendant must show: (1) that his counsel's representation was deficient, and (2) that counsel's deficient performance was prejudicial to Defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984).
To establish that counsel's performance was deficient, Defendant must establish that counsel's representation fell below an objective standard of reasonableness. United States v. Walling, 982 F.2d 447, 449 (10th Cir. 1992). Counsel's errors must be "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. To meet his burden, Defendant must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.
To establish prejudice, the defendant must show that counsel's performance was so prejudicial to him that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id.
Defendant's first claim relating to ineffective assistance is that his trial counsel, on cross examination of the government's witnesses Shedrick Kimbrel and Joshua Hunt, questioned them about payments made to them by the FBI. The government was then permitted by the court to ask the witnesses the reason that the payments were made to them. They responded that the victim of the kidnaping had been murdered, and they needed the money in order to leave Leavenworth, Kansas, because Defendant's co-defendant was about to come to trial (separately from Defendant), and they were afraid. Defendant contends that the cross examination "opened the door" for the government to present evidence about the death of Tyrone Richards, the kidnaping victim. But neither the witnesses nor the government made any allegations at trial that the defendant Hargrove was in any way responsible for the death of Richards. Kimbrel and Hunt were important witnesses for the government, and their credibility was crucial. It was an important strategic decision to call into question their credibility by asking about payments received from the government. This was an objectively reasonable trial strategy. An attorney's conduct is presumed to be objectively reasonable if it could be considered part of a legitimate trial strategy. Bullock v. Carver, 297 F.3d 1036, 1046 (10th Cir. 2002), cert. denied, 123 S.Ct. 703 (2002).
Defendant's second claim of ineffective counsel is that trial counsel failed to request a limiting instruction relating to Kimbrel's and Hunt's testimony. Defendant contends that an instruction to the effect that the jury should consider their testimony relating to Tyrone Richard's death only for the purpose of assessing their credibility should have been requested and given. The court did give Instruction No. 28, which cautioned the jury as to the credibility of witnesses who have received money. To establish that counsel's failure to request a different limiting instruction was performance falling below professional norms, Defendant must show how such failure was so prejudicial to his defense as to deprive him "of a fair trial, a trial whose result is reliable." United States v. Simmonds 111 F.3d 737, 746 (10th Cir. 1997) (quoting from Strickland, 466 U.S. at 687). In determining whether the failure to request the instruction resulted in deprivation of a fair trial the court should consider, inter alia, whether the evidence was improperly emphasized or used as evidence of guilt of the defendant; whether the failure to request could have been the result of tactical considerations; or whether, in light of all of the evidence the error was harmless beyond a reasonable doubt. See United States v. Whitney, 229 F.3d 1296, 1304 (10th Cir. 2000). In the instant case, the evidence was not emphasized or used as evidence of Defendant Hargrove's guilt. The failure to request could well have been a tactical consideration by defense counsel. The court concludes that there was no error in the failure to give Defendant's version of a limiting instruction, and if there was error, it was harmless in light of all of the evidence. The court finds that there was neither deficient performance nor prejudice to Defendant.
Defendant's third claim of ineffective assistance of counsel is that counsel "failed to object to or raise that the indictment in Count 2 had been constructively amended." Count 2 of the indictment charged Defendant with violating 18 U.S.C. § 924(c) and 2 (using or carrying a firearm during and in relation to any crime of violence, and aiding and abetting.) The basis for this claim is that Count 2 of the indictment charged Defendant Hargrove and his co-defendant, Christopher Trotter, with using and carrying a "firearm, that is, a handgun, and assault-type weapon. . . .," but that the court instructed the jury that Hargrove could be convicted if they found that the government had proved beyond a reasonable doubt that he had used or carried one of the firearms and were unanimous as to which firearm was used or carried. "A constructive amendment of an indictment `occurs when the terms of the indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment.'" United States v. Hornung, 848 F.2d 1040, 1046 (10th Cir. 1988) (quoting United States v. Hathaway, 798 F.2d 902, 910 (6th Cir. 1986)). "`[A] crime denounced in the statute disjunctively may be alleged in an indictment in the conjunctive, and thereafter proven in the disjunctive'" United States v. Simpson, 94 F.3d 1373, 1378, n. 2 (10th Cir. 1996) (quoting United States v. Parrish, 925 F.2d 1293, 1297 (10th Cir. 1991)). Under these Tenth Circuit standards there was no constructive amendment of the indictment; thus counsel's failure to raise such an objection was not a deficient performance.
Defendant's fourth claim of counsel's ineffective assistance is that counsel "stipulated not to admit Richards' statements into evidence." This claim relates to a transcript of an oral statement made by Tyrone Richards, the deceased victim of the kidnaping, to a Leavenworth police officer. The court finds that there was no stipulation about the admission of the statement. It simply was not offered. The decision appears to the court to have been a matter of trial strategy. The statement contained much evidence which was highly damaging to Defendant. Defendant claims that because Richards made no mention of the fact that he was taken across the bridge from Leavenworth, Kansas, into Missouri, the statement was somehow demonstrative of inconsistencies in the testimony of FBI Special Agent Jerry Wiley to the effect that Richards had told him that he was taken across the river, and that it was prejudicial not to have offered the statement in evidence. The court finds, however, that the decision not to offer the statement was an objectively reasonable trial strategy. It was not unreasonable for counsel to have considered the material contained in the transcribed statement to have been substantially more damaging to Defendant than the possibility that the jury might have considered the absence of reference to travel into Missouri an inconsistency. Defendant's counsel's performance was neither deficient nor did it result in prejudice which would affect the outcome of the case.
Defendant next claims that counsel was ineffective because he did not interview the government's witnesses Kimbrel and Hunt prior to trial. Even if the court assumes that no interviews of the witnesses were conducted prior to trial, the court is not convinced that there is a reasonable probability that the outcome of the trial would have been altered. As the government points out, counsel had available transcripts of the testimony that Kimbrel and Hunt had given at the trial of Chris Trotter, Hargrove's co-defendant who had been tried separately, and was able to use the transcripts as well as statements previously made by them in cross-examination. The court concludes that counsel's performance was not deficient, and that no prejudice to Defendant resulted.
Defendant has two remaining claims of ineffective assistance of counsel, but they are not discussed as such. Those claims are addressed, at least to some extent, in his two claims of prosecutorial misconduct before the grand jury which returned the indictment, and at trial.
B. Prosecutorial Misconduct Before the Grand Jury
The two claims of prosecutorial misconduct are: (1) Knowing use of false testimony and hearsay evidence before the grand jury; and (2) vouching for the credibility of witnesses and misstating facts and evidence to the grand jury. Presumably, Defendant's ineffective assistance of counsel claims relating to these issues are that counsel did not raise the issues prior to trial.
The first claim of prosecutorial misconduct relates to testimony before the grand jury of FBI Special Agent Jerry Wiley. Defendant Hargrove claims that SA Wiley's testimony was hearsay because it recounted to the grand jury the statements given by Shedrick Kimball, Tyrone Richards, and Joshua Hunt, and that it was error for an indictment to have been returned based on hearsay evidence. But Fed.R.Evid. 1101(d)(2) provides that the rules do not apply to proceedings before the grand jury, and long before the adoption of the Federal Rules of Evidence the Supreme Court had held that an indictment should not be quashed because it was supported by hearsay or other incompetent evidence. Costello v. United States, 350 U.S. 359, 363 (1956) ("An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.") Hargrove's assertion that SA Wiley testified falsely when he stated to the grand jury that Richards had told him that the state line had been crossed is wholly unsupported by the record. Defendant claims that because a recorded statement that Richards gave to the Leavenworth police does not mention going from Kansas into Missouri, SA Wiley must have testified falsely when he gave evidence that Richards had told him about going into Missouri. To find that Wiley's testimony was false on such a basis would require the court to abandon its reason and good sense.
Defendant's other claims of prosecutorial misconduct are that Assistant U.S. Attorney Streepy "smeared" Defendant by asking about other investigations of Defendant which were ongoing, by asking about Defendant telling Richards that "I am not going to do hard forty," and by refusing to answer a question raised by a member of the grand jury who asked why Kimbrel has not been prosecuted. The court has reviewed the transcript, and finds no error. The questions about other investigations were not inappropriate. They reasonably related to motive and intent of the defendant. The accusation that the prosecutor refused to answer a grand juror's question is simply untrue. The question was answered, but not in detail. This certainly did not amount to misconduct on the part of the prosecutor, nor was it prejudicial to the defendant. The standard is whether the prosecutor engaged in misconduct so flagrant or egregious that it significantly infringed on the grand jury's ability to exercise independent judgment. United States v. Lopez-Gutierrez, 83 F.3d 1235, 1245 (10th Cir. 1996) (citations omitted). Where the errors are such that they affect only the grand jury's finding of probable cause, they are deemed to be technical or procedural, and do not require dismissal of the indictment. Id. at 1244. Defendant's claims in the case now before the court involve, at best, even if the court should consider them to involve error, only such technical or procedural errors.
The court concludes that because there was no error in the grand jury proceedings, counsel's failure to move to dismiss the indictment did not render his representation deficient, nor were any deficiencies in counsel's performance prejudicial to Defendant.
C. Prosecutorial Misconduct at Trial
Defendant Hargrove also makes claims of prosecutorial misconduct at trial, and that counsel's representation at trial was deficient because he did not object to remarks of the prosecutor or request a curative instruction. The claims are that the Assistant U.S. Attorney in his closing argument misstated the testimony of Joshua Hunt, and that he improperly "vouched" for evidence.
Defendant claims that the prosecutor misstated evidence by stating that Hunt had testified that the defendant Hargrove had said "we want Bony," instead of "where is Bony at?" This does not appear to the court to be a material misstatement of Hunt's evidence, nor such a variation that it rises to the level of prejudice to the defendant, particularly in the light of the instruction that the court gave to the jury that the statements and arguments of counsel are not evidence.
The "vouching" claim is that the prosecutor improperly said that he believed the evidence would support a conclusion that the defendant is guilty on Count Two. The court does not find the remark to have been improper. It is difficult to see how the comment could be characterized as prosecutorial vouching. As the Tenth Circuit Court of Appeals said in United States v. Santiago 977 F.2d 517, 520 (10th Cir. 1992), "The comments were not unreasonable in light of the evidence, and even if they had been improper, their effect would have been negated by the court's instruction that a lawyer's argument is not evidence upon which a conviction may be based. Absent evidence to the contrary, it is presumed that juries follow the trial court's instructions." Once again, the court notes that it gave such an instruction. Even if the court could classify the remarks complained of as improper, they were not such that they would interfere with the jury's ability to judge the evidence fairly. See Moore v. Gibson, 195 F.3d 1152, 1171 (10th Cir. 1999); United States v. Dickey, 736 F.2d 571, 596 (10th Cir. 1984).
The court concludes that counsel's failure to object to the remarks of the prosecutor or to request a curative instruction was not deficient representation. Moreover, such failure was not prejudicial to Defendant.
IT IS, THEREFORE, BY THE COURT ORDERED, that Defendant's Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 189) is overruled, and all relief is denied.
The clerk is directed to transmit copies and/or notices of this order to counsel of March 26, 2003 record and to the defendant, Demetrius R. Hargrove.
BY THE COURT IT IS SO ORDERED.