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David Dewayne JOHNSON

 
 
 
 
 

 

 

 

   
 
 
Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: September 2, 1989
Date of arrest: Same day
Date of birth: January 10, 1963
Victim profile: Leon Brown, 67 (night watchman)
Method of murder: Beating with a 2x4
Location: Pulaski County, Arkansas, USA
Status: Executed by lethal injection in Arkansas on December 19, 2000
 
 
 
 
 

United States Court of Appeals
For the Eighth Circuit

 

opinion 99-2670EA

 
 
 
 
 
 

Summary:

Johnson entered a warehouse and convinced the night watchman, 67 year old Leon Brown, that he needed to use the telephone to get his car out of a ditch nearby.

Brown was found later beaten to death with a 2 X 4 in a pool of blood. Johnson's fingerprints were found at the scene and Johnson was in possession of property stolen from the warehouse.

 
 

David DeWayne Johnson (January 10, 1963 December 19, 2000) was a murderer executed for the September 2, 1989 murder of Leon Brown, 67, in Little Rock, Arkansas.

The murder

David DeWayne Johnson entered a warehouse and convinced the night watchman, 67 year old Leon Brown, that he needed to use the telephone to get his car, a white Oldsmobile, out of a ditch nearby. Dudley Swann, the principal stockholder in Little Rock Crate and Basket identified Johnson as the driver of the white Oldsmobile. Swann had earlier asked Johnson to leave and come back the next day to get his car because he did not want the driver on the premises after dark. Brown was found later beaten to death with a 2x4 in a pool of blood. Johnson's fingerprints were found at the scene and Johnson was in possession of property stolen from the warehouse.

Appeals

Johnson appealed by claimed his lawyer was manic-depressive and incapable of defending an accused murderer.

The Eighth Circuit Court of Appeals upheld the denial of Johnson's appeal. The court's March ruling acknowledged that Johnson's first lawyer might have been mentally ill during his trial, that he did not press hard to admit certain testimony and that he behaved unprofessionally during jury selection. "We nevertheless are convinced that the governing law requires that this conviction and sentence be upheld", the judges wrote. "We deal in specific facts, not abstractions, and petitioner has failed to show any reasonable likelihood that the outcome of this case would have been different even if his lawyer had conducted himself perfectly", the opinion said.

Execution

Johnson made no final statement. He was executed at 9:11 p.m on December 19, 2000 by lethal injection.

Brown had two sons, both of whom live out of state. Neither attended the execution.

Johnson was the 23rd person executed by the state of Arkansas since Furman v. Georgia, 408 U.S. 238 (1972), after new capital punishment laws were passed in Arkansas and that came into force on March 23, 1973.

 
 

ProDeathPenalty.com

A man convicted of beating a night watchman to death during a warehouse robbery was executed by injection Tuesday. David Dewayne Johnson, 37, was convicted of killing Leon Brown at the Little Rock Crate and Basket Co. in 1989.

Johnson made no final statement.

He lost appeals that claimed his lawyer was manic-depressive and incapable of defending an accused murderer. Prosecutors said Johnson's fingerprints were found at the scene and items taken from the crate company were found in Johnson's home.

Gov. Mike Huckabee denied Johnson's request for mercy. He also said delaying the execution until after the holiday would have set it closer to Johnson's birthday, Jan. 10.

"This is in many ways an unfortunate case," the U.S. Eighth District Court of Appeals wrote in upholding denial of Johnson's appeal.

The court's March ruling acknowledged that Johnson's first lawyer might have been mentally ill during his trial, that he did not press hard to admit certain testimony and that he behaved unprofessionally during jury selection. "We nevertheless are convinced that the governing law requires that this conviction and sentence be upheld," the judges wrote. "We deal in specific facts, not abstractions, and petitioner has failed to show any reasonable likelihood that the outcome of this case would have been different even if his lawyer had conducted himself perfectly," the opinion said.

 
 

Arkansas man executed for 1989 murder

Black Vault.com

December 20, 2000

VARNER, Arkansas (AP) - A man convicted of beating a night watchman to death during a warehouse robbery was executed in Arkansas by injection Tuesday.

David Dewayne Johnson, 37, was convicted of killing Leon Brown at the Little Rock Crate and Basket Co. in 1989. Johnson made no final statement.

He lost appeals that claimed his lawyer was manic-depressive and incapable of defending an accused murderer. Prosecutors said Johnson's fingerprints were found at the scene and items taken from the crate company were found in Johnson's home.

Gov. Mike Huckabee denied Johnson's request for mercy. He also said delaying the execution until after the holiday would have set it closer to Johnson's birthday, January 10.

 
 

Fight the Death Penalty USA

David Dewayne Johnson, the man who killed a night watchman during a 1989 robbery at Little Rock Crate and Basket Co., was executed Tuesday night.

Asked if he had any last words, Johnson, 37, kept his eyes closed and gave a near-imperceptible shake of his head. He was pronounced dead at 9:11 p.m., 10 minutes after the lethal cocktail was administered.

Johnson was sentenced to death in November 1990 for the slaying of 67-year-old Leon Brown, whose battered body was found in a pool of blood near the security office at 7 a.m. on Sept. 2, 1989.

Brown had 2 sons, both of whom live out of state. Neither attended the execution. The retiree, who worked as a security guard on weekends, was last seen talking to Johnson at 6 p.m. the night he was killed.

Witnesses said Johnson came in and asked Brown if he could use a telephone to call someone to help haul his 1981 Oldsmobile out of a ditch nearby. Brown never made his 7 p.m. rounds, according to the company time clock.

Coworkers describe Brown as a congenial man who always went out of his way to help people. "Brown was always real friendly, you know what I mean?" Lawrence Sloan, a fellow guard, said shortly after Brown's death. Sloan once warned Brown that his good nature "was going to get him in trouble," he said.

Johnson was arrested 5 hours after Brown's body was discovered. Stolen goods were later found at his girlfriend's house, according to testimony from his trial.

The attorneys that handled Johnson's appeals contended that the lawyer who represented him during his capital murder trial was incompetent and ill-prepared. The courts rejected these arguments, and a recent request for clemency was denied.

Tuesday's execution was Arkansas' second this year and the 23rd since the state resumed executions in 1990. Christina Riggs, sentenced to die for killing her 2 young children, was put to death on May 2.

(source: Arkansas Democrat-Gazette)

 
 

Governor Huckabee's Press Release

Little Rock, Arkansas

December 19, 2000

Governor Mike Huckabee has denied the clemency request of David Dewayne Johnson. Johnson was convicted of capital murder in 1990. His appeals have been exhausted. "After careful consideration and an exhaustive review of the files, Mr. Johnson's request has been denied," the governor said.

 
 

Johnson v. State, 823 S.W.2d 800 (1992) (Direct Appeal).

The appellant was convicted of capital murder and sentenced to death by lethal injection. Upon review of the points assigned as error by the appellant, and upon our own comparative review of other death penalty cases, we affirm the judgment of conviction as well as the sentence imposed.

Even though the appellant does not contest the sufficiency of the evidence, we detail the facts for the purpose of making a comparative review of other cases in which we have affirmed the death penalty. We do so to be assured of the evenhandedness of the application of the death penalty. See Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977) and Collins v. State, 280 Ark. 312, 657 S.W.2d 546 (1983) (Hickman, J., concurring).

The victim in this case, Leon Brown, a sixty-seven-year-old male, first went to work for Little Rock Crate and Basket Company in 1967, worked there a few years, left, returned in 1982, and continued to work there until he was murdered. During the last few years he worked as a night watchman only on Friday and Saturday nights.

On the evening of Saturday, September 2, 1989, while on duty, he wore a black leather John Brown type of police belt and holster to carry his .41 caliber Smith and Wesson pistol, and four (4) empty shell casings.

He was known to carry the empty casings, although no one knew the reason. He also carried a watchman's clock, which is a device that looks something like an old- fashioned leather covered circular style canteen with a paper disc on the outside.

As he made his rounds, he would stop at designated locations which had permanent station keys and insert one of the keys in his watchman's clock. It would punch a hole in the paper disc. That hole would reflect the time the watchman stopped at that particular station.

Little Rock Crate and Basket Company is located at 1623 East Fourteenth Street, which is at the end of Fourteenth Street in Little Rock.

It manufactures fruit and vegetable containers, baskets, and wire bound crates. It consists of warehouses located on both sides of the street, a log yard, and an office which is located at the end of one of the warehouses.

The office area, comprised of five (5) offices, is built of concrete blocks and has three (3) steel doors which were locked with dead bolt locks. It has windows which open into a lunchroom which is located at the end of the warehouses. The warehouses are built of corrugated steel, and on September afternoons, it gets hot inside them, so it was not unusual for the workers to open the warehouse doors to cool the building.

The doors were so opened at 6:30 on the evening of September 2, 1989. Even so, one would not worry about security because Fourteenth Street at that location is a private street, owned by Little Rock Crate and Basket, with no through traffic, and the business is surrounded by a high chain link fence with barbed wire on top.

Leon Brown had a number of friends who worked at Little Rock Crate and Basket Company, and he enjoyed going to work a little early so he could visit with them. His night watchman's shift began at 4 p.m. on the 2nd. He went in early and visited with his friends and then, at work time, began his rounds.

Dudley Swann, the principal stockholder in Little Rock Crate and Basket, received a call from a customer at about 4:30 in the afternoon on the 2nd.

The customer wanted some crates delivered immediately, and Swann had to find truck drivers who were willing to work on the Labor Day weekend. He was at his home when he received the customer's call and did not have the drivers' telephone numbers there, so he went to the plant to get the telephone numbers.

As he drove up to the company office area at about 6:30 that evening, he saw a white Delta 88 Oldsmobile automobile stuck in the drainage ditch beside the private street.

The rear wheels of the car were spinning, and the tires were smoking. Swann parked his car, walked over to the white Oldsmobile, and told the driver he was tearing up his car. He asked the driver to leave and come back the next day to get his car because he did not want the driver on the premises after dark. Swann later identified appellant as the driver of the white Oldsmobile.

Swann went into the building with the offices and there saw Leon Brown on duty. He told Brown about the white Oldsmobile and stated that he had asked the driver to leave and come back the next day to get his car.

Swann went into his office and, over about a fifteen-minute period, got the telephone numbers. He left the office area and went into the lunchroom area and again saw Brown. He asked Brown if the driver had left, and Brown motioned toward a pay telephone located on the wall.

Swann looked there and saw the appellant. He went over to him and said, "I thought I asked you to walk on out." The appellant replied, "Yes sir, I am in just a moment. I need to make one or two telephone calls to try to find some friends but they're all at work." Brown told Swann, "Don't worry about anything. Everything's all right." Swann made a note of the license plate number on the white Oldsmobile and left at 6:50 p.m.

The next morning, Sunday, the 3rd, at 7:15, George Wood, another part-time watchman, came to Little Rock Crate and Basket Company to check on Brown, as he usually did. He stood outside and called out for Leon Brown.

There was no response and he waited ten (10) or fifteen (15) minutes for Brown to complete one of his rounds, but Brown did not appear.

By then, Lawrence Sloan had come to work the day watch, and after about fifteen (15) minutes more, the two of them decided to go in the building. The gate was locked, but they went around to one of the doors that had been left open to cool the building the evening before. Just inside the building, in the lunchroom area, where Swann had last seen the appellant and Brown, they saw Brown's body.

Lawrence Sloan's initial response graphically described the scene: "Ooh, somebody done beat Leon's brains out." Leon Brown's motionless body was lying face-down in a large pool of blood. He had been bludgeoned to death with a piece of 2" x 4" board that was found near his body.

Three (3) of the blows to his head were made with such force that his skull was crushed, part of it was dislodged and rammed into his brain, and his brain was crushed.

The medical examiner estimated that the blows to the head were so forceful that 300 to 400 pounds of pressure per square inch had been inflicted on his skull.

An image of the extent of the damage to the victim's skull is created by the fact that upon arriving at the scene experienced detectives thought the victim had been shot in the head. His false teeth were found six feet away from his head, and his glasses were found past his feet.

The vending machines in the lunchroom area had been turned over and broken into. The windows into the office area had been forced open and the offices had been entered. Papers had been strewn about, desk drawers had been opened, and the pay telephone had been torn off the wall.

Among the missing items were a typewriter, a Sharp brand calculator, two (2) cameras, tools, three (3) pistols, a fountain pen, a briefcase, a television set, three (3) Motorola brand handheld radios, and a battery charger.

The police were called; they quickly responded and immediately began their investigation. Among their procedures, officer Todd Vint was assigned to watch the white Delta 88 Oldsmobile automobile that was still stuck in the ditch.

At about 11 o'clock that morning, the 3rd, a blue and white pickup stopped beside the white Oldsmobile, and three (3) people got out and began to try to get the Oldsmobile out of the ditch. The three (3) were Terrie Dickerson; her father, Elmer Richardson; and the appellant. Dudley Swann saw them and told officer Vint that appellant was the man he had seen the evening before, first trying to get the car out of the ditch and then later inside the building.

Police work developed many additional facts which were subsequently proven at trial. Steve Rowell told the police he was the manager of Lucky's Seafood in Little Rock and that appellant worked there and was supposed to report for work at either 4:00 or 5:00 p.m. on the 2nd but did not do so.

At a few minutes after 7:00 p.m. on the 2nd, the Appellant had called Rowell and told him that he could not come to work because he was in jail. In fact, he was not in jail, and at that time, the police were not looking for him. Robert Sanders told the police that he saw a low-slung black car parked in front of Little Rock Crate and Basket Company a little after 9:00 on the night of the 2nd.

Terrie Dickerson told the police that, at about 11:00 on the morning of the 2nd, before the murder, the appellant came to her house and told her that his car was out of gasoline.

He asked to borrow her car. She stated that he owned a low-slung black Oldsmobile Cutlass automobile. She loaned him her white Oldsmobile Delta 88. He left in her car, came back about 2:30 that afternoon, and left again in her car at about 2:45.

She did not see him again until about 9:00 that night, the 2nd, when he returned on foot and told her that the police had been chasing him and that he had gotten her car stuck in a ditch.

In fact, the police were not chasing him. He left her house afoot, but later came back in his low-slung black car, and brought into her house three (3) Motorola brand handheld radios and a Sharp brand calculator. Later, she went with him when he drove his black car to Priscilla Marshall's house. At that time she saw some guns and tools in his car. He took the guns and tools into Priscilla's house.

The next morning, September 3, Terrie and the appellant went to the home of Terrie's father, Elmer Richardson. They asked him to drive them to the Little Rock Crate and Basket Company so they could get Terrie's white Oldsmobile out of the ditch.

As they drove up in his pickup truck, they were spotted by Officer Vint; appellant was identified by Dudley Swann and was arrested by the police. Subsequently, the radios and calculator were recovered from Terrie's house. They were identified as part of the property taken from the Little Rock Crate and Basket Company.

Priscilla Marshall told the police that the appellant came to her house on the morning of the 3rd, told her that his girlfriend was moving to North Little Rock, and said he needed to store some guns and tools.

From her house the police later recovered the battery charger, a .38 caliber pistol, a Magnavox brand television set, cameras, tools, a fountain pen, and Leon Brown's .41 caliber Smith and Wesson revolver.

Each of the items was identified as property taken from Little Rock Crate and Basket. Connie Manuel testified that the appellant came to her house at about 10:00 on the night of the 2nd, remained a few minutes, left, and came back between midnight and 1:00 a.m. on the 3rd.

At that time, he washed his clothes and took a bath. He spent the rest of the night with her. Her mother, Luella Shavis, gave the washed clothes, including his tennis shoes, to the police.

A police officer, Jack Matlock, found one of appellant's palm prints on the coin box which had been ripped out of the soft drink vending machine in the lunchroom area, and removed one of his fingerprints from the inside of an office window. Both prints were positively identified as being appellant's.

Appellant's tennis shoes, which had been recovered from Luella Shavis, had human blood on them, but it was not in sufficient quantity to type.

Hair samples found on the 2" x 4" board were compatible with the hair of Leon Brown. The paper disc from the watchman's clock reflected that Leon Brown did not make his round through the building at 7:00 p.m. on September 2.

The appellant did not testify at trial. One defense witness, Ella Mae Richardson, testified at the guilt phase of the trial that the appellant phoned her at 5:00 or 5:30 p.m. on the 2nd, and another witness, public defender Llewellyn J. Marczuk, testified that detective Mark Stafford told him that the appellant might not have committed the crime alone.

The detective denied making the statement. The other defense witness took the Fifth Amendment.

After hearing the above testimony, the jury unanimously found the appellant guilty of capital murder. The punishment phase of the trial was then held, and the jury found one aggravating circumstance, that the murder was committed for pecuniary gain, and one mitigating circumstance, that the appellant was a model prisoner and could conform to prison life and be a productive member of the prison society.

The jury weighed the two and unanimously determined beyond a reasonable doubt that the aggravating circumstance outweighed the mitigating circumstance and determined that appellant should be sentenced to death by lethal injection. Pursuant to Ark.Code Ann. 5-4-603(a), the jury is required to return written findings.

For some unknown reason, the record contains only part of the required written findings, but that has not caused us any difficulty in reviewing the matter since the record reflects that the jury foreman read the findings aloud and each juror stated aloud that the foreman had correctly stated his or her individual finding.

In summary, the proof is overwhelming that appellant savagely murdered Leon Brown for pecuniary gain.

 
 

United States Court of Appeals for the Eighth Circuit

207 F.3d 515

David Dewayne Johnson, Appellant,
v.
Larry Norris, Director, Arkansas Department of Correction, Appellee

Submitted: January 10, 2000
Decided: March 27, 2000

On Appeal from the United States District Court for the Eastern District of Arkansas.

Before Richard S. Arnold, Fagg, and Hansen, Circuit Judges.

Richard S. Arnold, Circuit Judge.

The petitioner, David Johnson, appeals the denial of his petition for a writ of habeas corpus. Although the District Court1 denied the petition on all grounds, it granted a certificate of appealability on three issues: (1) whether evidence concerning trial counsel's bipolar disorder should have been considered only in evaluating his credibility, or, instead, as evidence of per se ineffective assistance of counsel, which rendered the trial fundamentally unfair; (2) whether the petitioner was denied his Sixth Amendment right to counsel because of an actual conflict of interest arising from his trial counsel's representation of the petitioner and a defense witness; and (3) whether trial counsel was ineffective during jury selection. We affirm the decision of the District Court on all three of these issues.

I.

After a jury trial in 1990, the petitioner was convicted of capital murder. The jury found that the petitioner murdered Leon Brown, a sixty-seven-year-old night watchman at the Little Rock Crate and Basket Company. The evidence against the petitioner was strong: he was admittedly seen at the scene of the crime, items stolen from the crime scene were found in his possession, and physical evidence linked him to the place of the murder. The petitioner was sentenced to death by lethal injection.

His conviction and sentence were affirmed on direct appeal to the Arkansas Supreme Court. Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992). His petition for writ of certiorari to the United States Supreme Court was denied. Johnson v. Arkansas, 505 U.S. 1225 (1992). His motion for post-conviction relief under Arkansas law was denied, and that decision was affirmed by the Arkansas Supreme Court. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995).

At his trial and on direct appeal, the petitioner was represented by Robert Smith. The petitioner's issues before this Court all relate to Mr. Smith's representation. In 1993, Mr. Smith surrendered his law license. Between 1994 and 1996, he was convicted of various felony counts of property theft. He is currently serving a fifteen- year sentence in the Arkansas Department of Correction. During his testimony before the District Court, Mr. Smith, for the first time, revealed that he had been diagnosed with bipolar disorder.

II.

We first consider the question of whether evidence concerning Mr. Smith's bipolar disorder should have been considered only in evaluating his credibility, or whether it should have been treated as showing per se ineffective assistance of counsel which rendered the trial fundamentally unfair.

In his habeas petition, the petitioner cited numerous examples of Mr. Smith's conduct before and during trial which seem unprofessional, and perhaps bizarre. These included lying to the petitioner about his experience in capital cases, submitting a false application for malpractice insurance, being unprepared to present the petitioner's case, and appearing confused during trial.

When Mr. Smith was testifying before the District Court about his performance, he stated that he had been diagnosed with bipolar disorder. He stated that according to his psychiatrist, this disorder is partly to blame for his legal problems. He stated that he was currently on medication for this disorder, which he would have to take for life. The petitioner attempted to obtain Mr. Smith's complete medical records, but Mr. Smith would not allow access to them.

To uphold a claim of ineffective assistance of counsel, a court must find that the counsel's performance was seriously deficient, and that the ineffective performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668 (1984). However, the petitioner argues that he should not be held to the normal Strickland prejudice requirement. Rather, he says, Mr. Smith's bipolar disorder should be considered a structural error, which should require a per se presumption of prejudice.

The petitioner relies on our decision in McGurk v. Stenberg, 163 F.3d 470 (8th Cir. 1998) (failure to notify the defendant of his right to a jury trial was structural error which did not require proving prejudice), and argues that other circuits have found structural error when counsel is not mentally present at trial. See Javor v. United States, 724 F.2d 831 (9th Cir. 1984) (counsel was per se ineffective when he slept through substantial portion of trial); Tippens v. Walker, 77 F.3d 682 (2d Cir. 1986).

We note at the outset that there is some question as to whether Mr. Smith had bipolar disorder at the time of the petitioner's trial. Mr. Smith testified before the District Court that he was diagnosed with bipolar disorder "last year," Habeas Tr. at 72, which would presumably refer to some time in 1996. He testified that he did not recall having any of the symptoms of bipolar disorder in 1990, when the trial took place, but he attributed some of his actions in 1992 and 1993 to the disorder. Id. at 73- 74.

Petitioner offers instances of Mr. Smith's behavior during the petitioner's trial, which are consistent with Mr. Smith's behavior in 1992 and 1993, to prove that Mr. Smith was afflicted by bipolar disorder at trial. The District Court did not resolve this issue, noting that "Mr. Smith . . . reported . . . having been diagnosed with bipolar disorder which may or may not have manifested at the time of [the petitioner's] trial.".

Even if we assume that Mr. Smith's bipolar condition existed during the petitioner's trial, we decline to adopt the petitioner's proposed rule. This is not the type of structural error envisioned in McGurk, where we recognized the limited number of circumstances in which structural-error analysis was appropriate. Our Court has previously declined to adopt a rule requiring a per se presumption of prejudice with regard to mental illness. See Pilchak v. Camper, 935 F.2d 145,149 (8th Cir. 1991).

Bipolar disorder, like most mental illnesses, can have varying effects on an individual's ability to function, and the disease can vary widely in the degree of its severity. We are not convinced there is anything about Mr. Smith's bipolar condition that would not lend itself to the normal fact-specific Strickland analysis. See Bellamy v. Cogdell, 974 F.2d 302, 308 (2d Cir. 1992). Any errors Mr. Smith made, even as a result of his mental illness, should be apparent from the face of the trial record, or otherwise susceptible of proof, and thus readily reviewable.

Therefore, using specific acts or omissions of counsel at trial, the petitioner must prove that Mr. Smith's performance was deficient and prejudicial. Evidence of his bipolar disorder can be considered in attempting to prove this. However, Mr. Smith's statements about his bipolar condition, made in 1996, are not particularly probative in proving deficient performance in 1991.

The District Court was correct in reasoning that this evidence is most probative in evaluating Mr. Smith's credibility and state of mind, which are relevant to the petitioner's conflict-of-interest claim. The unprofessional and perhaps bizarre behavior that the petitioner now claims was a result of Mr. Smith's bipolar disorder includes lying to the petitioner about his experience in capital cases, submitting a false application for malpractice insurance, and a general lack of trial preparedness.2 Whether a result of bipolar disorder, character flaws, or just bad lawyering, these examples do not rise to the level of constitutionally deficient performance, because they cannot be shown to have affected the outcome of the case.

Without the benefit of a per se presumption, evidence of Mr. Smith's bipolar disorder does not help the petitioner to establish Strickland prejudice. The petitioner cannot point to a single example of Mr. Smith's performance where there is a reasonable probability that the result of the proceeding would have been different if Mr. Smith had done something differently. Nor can the petitioner show that there is a reasonable probability that, absent any example of Mr. Smith's unprofessional behavior, the jury would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Strickland, 466 U.S. at 695. Even after we consider the evidence of Mr. Smith's bipolar disorder, the petitioner's ineffective- assistance-of-counsel claim fails.

III.

The second question the District Court certified for appeal is whether the petitioner was denied his Sixth Amendment right to counsel because of an actual conflict of interest arising from Mr. Smith's joint representation of the petitioner and Derrick Gilbert.

At trial, the defense had intended to use Derrick Gilbert as a witness. Gilbert was going to testify that another individual, Ford, had told Gilbert that Ford had sold certain items of stolen property to the petitioner.3 This would explain why the items of stolen property were found in the petitioner's possession. However, Gilbert never testified.

The prosecution had interviewed Gilbert, as a potential defense witness, prior to trial. When Mr. Smith attempted to call Gilbert at trial, the Court inquired as to what Gilbert's testimony would be. Mr. Smith responded that Gilbert would testify that Ford had told him that he had sold the stolen goods to the petitioner. The Court noted that such testimony would be inadmissible hearsay. Mr. Smith made no further argument to try to get the testimony admitted. Nevertheless, the Court was about to swear Gilbert in when the following exchange occurred:

MRS. LaRUE (prosecuting attorney): I think at this time Mr. Gilbert is going to need an attorney. Mr. Fraiser and I went out and he informed us that if he testified today to what Mr. Smith has just said that he would testify to that he would be committing perjury.

MR. SMITH: Your Honor, I also have a problem with this in that I do represent Mr. Gilbert in Fifth Division.

THE COURT: Mr. Gilbert, why don't you go on and get out of here before you get yourself in trouble. They're not going to call you.

Trial Tr. at 760.

A claim for ineffective assistance of counsel arising from a conflict of interest does not require proof of the prejudice component of the Strickland test. Rather, the petitioner can establish a Sixth Amendment violation if he can demonstrate that "an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). To be within Cuyler, the petitioner must prove both that his attorney acted under an actual conflict of interest, as opposed to just a potential one, see Dawan v. Lockhart, 31 F.3d 718, 721 (8th Cir. 1994), and that the conflict of interest actually affected the adequacy of the representation. See Simmons v. Lockhart, 915 F.2d 372, 378 (8th Cir. 1990).

Even if we assume that an actual, as opposed to a potential, conflict of interest existed, the petitioner cannot show that this conflict of interest actually affected the adequacy of Mr. Smith's representation. The petitioner argues that Mr. Smith did not do all he could to get Gilbert's testimony admitted because Mr. Smith was protecting Gilbert's interests over the petitioner's. However, the weight of the evidence is against this interpretation of Mr. Smith's motivations.

The District Court specifically found that a fear of prejudicing Gilbert's interests played no part in Mr. Smith's inaction. This factual finding was supported by an evaluation of Mr. Smith's credibility in his testimony before the District Court, and is not clearly erroneous.

Therefore, the petitioner does not receive the benefit of Cuyler, and must meet the Strickland ineffective-assistance-of-counsel test. This he cannot do. Even if Mr. Smith had properly argued for the admissibility of Gilbert's testimony under the hearsay exception found in Rule 804(b)(3) of the Arkansas Rules of Evidence (declaration against penal interest), it would not have made a difference.

The Arkansas Supreme Court held that this exception would not apply, because there were no corroborating circumstances to indicate the trustworthiness of the statement. Johnson v. State, 321 Ark. 117, 125-26, 99 S.W.3d 940, 945 (1995). Therefore, there is no prejudice under Strickland.

IV.

We turn to the final question the District Court certified for appeal: whether trial counsel was ineffective during jury selection by focusing on jurors' religious denominations and beliefs, and by failing to eliminate jurors who had recently served on a panel in another capital case which imposed the death penalty.

The petitioner argues that Mr. Smith's performance during voir dire was completely ineffective. The petitioner offers expert testimony that Mr. Smith's voir dire did not appear to have any direction or purpose. Through the testimony of two attorneys who worked with Mr. Smith, the petitioner argues that Mr. Smith's only discernible trial strategy was to seat an all-Catholic jury.

Most seriously, the petitioner maintains that Mr. Smith's ineffectiveness was demonstrated by the fact that he did not question every potential juror about prior jury service. This resulted in the selection of four jurors (one of whom was an alternate) who had imposed the death sentence the previous week to sit on the petitioner's jury. The petitioner argues that these jurors would be predisposed to impose the death penalty, and that the rest of the jury could have been swayed by these three jurors.

Mr. Smith believed that the religious beliefs of Roman Catholics would make them less likely to impose the death sentence. During the sentencing phase of the case, he appealed to what he supposed to be the jurors' religious convictions. We assume for present purposes that this strategy, if it was worthy of the name, was seriously unprofessional.

The assumption that every Roman Catholic is opposed to the death penalty, we think, is an unreasonable stereotype. The difficulty with the argument is that no prejudice can possibly be shown. We have no way of knowing who would have gotten on the jury if counsel had adopted a different strategy during voir dire, or if these hypothetical jurors would have been more favorable to petitioner.

The same reasoning applies to counsel's conduct in allowing three jurors to sit on petitioner's jury who had served on a jury that returned a death sentence the previous week. We have no trouble agreeing that no reasonable lawyer would have allowed this to happen, at least without making some kind of a record. There is absolutely no showing, however, that the three jurors in question were unfair to petitioner. We are unwilling to assume that someone who votes to sentence A to death will necessarily be inclined to impose the same sentence on B.

The jurors' previous service does show that they were willing to impose a death sentence, but jurors absolutely unwilling to impose such a penalty are not qualified to sit. Neither the "Catholic strategy" nor the failure to challenge the jurors who had previously served can be shown to have had anything to do with the actual conduct of the jury in petitioner's case. In short, there is no reasonable likelihood that the result of petitioner's trial would have been different if counsel had behaved more prudently.

V.

This is in many ways an unfortunate case. Petitioner has been sentenced to death. The lawyer who tried his case may have been mentally ill at the time, failed to press vigorously for the admission of certain defense testimony, and pursued unprofessional strategies during jury selection.

We nevertheless are convinced that the governing law requires that this conviction and sentence be upheld. We deal in specific facts, not abstractions, and petitioner has failed to show any reasonable likelihood that the outcome of this case would have been different even if his lawyer had conducted himself perfectly. Accordingly, it is our duty to reject the petitioner's three contentions on appeal, and the judgment of the District Court is affirmed.

*****

NOTES:

1

The Honorable James M. Moody, United States District Judge for the Eastern District of Arkansas.

2

The petitioner makes more specific ineffective-assistance claims with regard to conflict of interest and jury selection. These will be addressed below.

3

There is a discrepancy in the record as to what exactly Gilbert told Smith his testimony would be. At the District Court hearing, Gilbert testified that Ford claimed to have committed the murder and the robbery, and to have sold the stolen goods to the petitioner. In contrast, Smith has claimed throughout that Gilbert told him only that Ford had claimed to have sold the stolen goods to the petitioner. The District Court evaluated Smith's and Gilbert's credibility and all other evidence relevant to the claim that Ford committed the murder and robbery. In light of this, the Court explicitly rejected Gilbert's version of what he told Smith. We adopt this factual finding, as it is not clearly erroneous. See Battle v. Delo, 19 F.3d 1547, 1552 (8th Cir. 1994).

 

 

 
 
 
 
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