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Rogers v. Israel

October 16, 1984


Appeal from the United States District Court for the Eastern District of Wisconsin. No. 81-C-653 -- Terence T. Evans, Judge.

Author: Flaum

Before CUDAHY and FLAUM, Circuit Judges, and KELLAM, Senior District Judge.*fn*

FLAUM, Circuit Judge. This is an appeal from the district court's denial of a petition for a writ of habeas corpus. For the reasons set forth below, we remand the case to the district court.

In the late afternoon of May 29, 1976, the petitioner and Angelo Griffin were at a tavern in Racine, Wisconsin, where they became involved in a dice game with other patrons. When the petitioner refused to pay off on a bet, Griffin pulled the money from the petitioner's hand. Several minutes later, when the petitioner was standing at approximately the third stool along the bar and Griffin was in front of a cigarette machine at the east end of the bar, the defendant took a gun from his pocket and fired. Griffin threw up his arms and ran toward the defendant, who moved away from the bar. A brief struggle occurred, another shot was fired, and both men fell to the floor. The defendant got up, walked outside, hid the gun, and then returned to the tavern, where he was arrested by police. Griffin, who never moved after falling to the floor, was pronounced dead on arrival at a nearby hospital. An autopsy revealed that Griffin suffered a fatal wound to the chest, which was caused by a bullet that entered the left chest, penetrated the heart and right lung, and lodged beneath the skin of the back. Shortly after the incident, the owner of the tavern discovered a bullet hole in the ceiling of the tavern above the cigarette machine.

An information charging the defendant with first degree murder was filed on July 7, 1976. The defendant's trial commenced on September 15, 1976, and lasted three days. The state's theory, as explained during the prosecutors' opening statement and closing argument, was that the petitioner's first shot struck Griffin and the second bullet was fired into the ceiling during the ensuing struggle. The prosecutors argued that the petitioner fired the first bullet with the intent to kill, this bullet caused Griffin's death, and the petitioner therefore committed first degree murder. The defense theory, on the other hand, was that the first bullet did not strike Griffin, but instead lodged harmlessly in the ceiling. According to the defense, Griffin was killed by the second bullet, which the defendant fired during the struggle, when he did not have the criminal intent that is required for a first degree murder conviction.*fn1

A factual dispute relevant to these two theories was whether Griffin would have been capable of engaging in a struggle after receiving his bullet wound. If the wound would have rendered Griffin incapable of such activity, the shot that preceded the struggle could not have caused the wound. The prosecution called as a witness Dr. Myron Schuster, the pathologist who performed the autopsy. Consistent with the state's "first shot" theory, Dr. Schuster stated that it was possible for Griffin to move under his own power after receiving his wound. Trial Tr. at 230. On cross-examination, Dr. Schuster further testified that it was possible for a person with a bullet wound through the heart and right lung to be capable of strenuous activities for half an hour. Trial Tr. at 232. The defense presented no evidence to refute Dr. Schuster's testimony. During closing argument, the defense attorney asked the jurors to use their common sense in concluding that Griffin could not have engaged in a struggle after being short through the heart.

The jury found the petitioner guilty of first degree murder. In a post-conviction motion, the petitioner alleged that he was denied the effective assistance of counsel because his trial counsel failed to reasonably investigate the effect of a heart wound on a person's ability to maintain physical activity. At a hearing on the motion, which took place on November 11, 1977, the petitioner presented Dr. Billy Bauman, a forensic pathologist, who testified that, in his experience, victims of heart wounds comparable to that of Griffin had been immediately incapacitated upon receiving the wounds. Dr. Bauman expressed his opinion that it would be virtually impossible for victims of such wounds to engage in the physical struggle that was described in the testimony at trial. Furthermore, Dr. Bauman stated that he discussed the nature of Griffin's wound with six other pathologists, who agreed that the victim of such a wound would "go down . . . right away." Tr. of Proceedings of November 11, 1977, at 17-18. The petitioner's trial counsel also testified at the post-conviction hearing. He said that, after reading Dr. Schuster's autopsy report prior to trial, he attempted to find a medical opinion to the effect that a bullet wound such as that of Griffin would have caused the immediate collapse of a victim. The trial counsel asserted that this attempt consisted of "discuss[ing] certain of [Dr. Schuster's] findings with other physicians," none of whom were pathologists. Id. at 41. Moreover, the trial counsel testified that, if he had read Dr. Bauman's report prior to trial, he would have used it to counter Dr. Schuster's opinion that Griffin was capable of strenuous activity after sustaining his wound.

The trial court denied the petitioner's post-conviction motion, stating that it did not "think that Doctor Schuster's testimony was at such great odds with that of Doctor Bauman's to make a substantial difference in the circumstances" of the case. Id. at 70.The petitioner then appealed his conviction to the Wisconsin Court of Appeals which rejected his ineffective assistance claim, holding that the trial counsel's consultation with various physicians was a good faith investigation and did not constitute ineffective assistance of counsel. The petitioner's subsequent petition for review to the Wisconsin Supreme Court was denied.

On June 9, 1981, the petitioner filed a petition for a writ of habeas corpus with the United States District Court for the Eastern District of Wisconsin. While the petition was pending, the petitioner made a motion to expand the record with an affidavit, in which the petitioner's trial counsel stated that his pretrial search for a medical opinion consisted of speaking to one radiologist, who had no expertise or training in either cardiology or traumatic injuries to the heart. The petitioner also moved for an evidentiary hearing on the ground that material facts were not adequately developed at the state court hearing. The district court denied the petitioner's motion for an evidentiary hearing, finding that, after the post-conviction hearing that took place in state court, "another hearing on the same issue in [the federal district] court would be of no benefit. . . ." Rogers v. Israel, No. 81-C-653, unpublished decision and order at 4 (E.D. Wis. Nov. 22. 1982).With regard to the ineffective assistance claim, the district court considered the performance of the petitioner's trial counsel during the trial, as well as the trial counsel's testimony during the post-conviction hearing,*fn2 and it concluded that the representation received by the petitioner met minimum standards of professional competence. After reviewing both Dr. Bauman's oral testimony at the post-conviction hearing and his written report, which had been entered into evidence at the hearing, the district court concluded that, in light of the evidence supporting the state's "first shot" theory, "Dr. Bauman's testimony was not as persuasive as [the petitioner] asserts." Id. at 6. The court thus denied the petition for a writ of habeas corpus.

In appealing this ruling, the petitioner argues that, contrary to the district court's conclusion, Dr. Bauman's testimony could have made a difference in the jury verdict. However, on the issue of whether the trial counsel's pretrial search for such testimony was reasonably competent, the petitioner asserts that a remand is necessary because the facts surrounding this search were not developed adequately at the post-conviction hearing. The petitioner further argues that, if this court finds a remand unnecessary, the conviction should nonetheless be reversed because it was unreasonable for the trial counsel to fail to consult an expert when investigating the effects of the victim's heart wound. The state responds, first, that the absence of Dr. Bauman's testimony at trial did not affect the verdict because this testimony was not very different from Dr. Schuster's testimony and also because other overwhelming evidence supports the defendant's conviction beyond a reasonable doubt. Second, on the issue of the adequacy of the trial counsel's search for expert testimony, the state asserts that a remand to develop the facts is improper and that the factual record developed at the post-conviction hearing fails to prove that the trial counsel's search was unreasonable.


When determining whether a defendant received ineffective assistance of counsel in violation of the sixth amendment, "the benchmark . . . must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Accordingly, the Supreme Court has ruled that the defendant must show both that the defense counsel's performance was deficient and that the deficient performance prejudiced the defense. Id. We shall consider these two prongs in reverse order.*fn3

A. Prejudice to Defense

To establish that a defense counsel's performance prejudiced the defense, "[a] defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 2068. Thus, where a defendant challenges his conviction, "the question is whether there is a reasonable probability that, absent the error, the factfinder would have had a reasonable doubt respecting guilt." Id. at 2069. As defined by the Supreme Court, "reasonable probability" is a "a probability sufficient to undermine confidence in the outcome." Id. at 2068.

In deciding whether a defense counsel's failure to investigate expert opinions was prejudicial, courts have considered whether such opinions were critical to the presentation of a defense. See United States v. Fessel, 531 F.2d 1275 (5th Cir. 1976) (where evidence that defendant committed offense was virtually uncontested and only issue was sanity of defendant at time of offense, failure of counsel to move for court-appointed psychiatrist under 18 U.S.C. ยง 3006A(e) constituted ineffective assistance of counsel). See also United States v. Baynes, 687 F.2d 659 (3d Cir. 1982) (where only evidence against defendant was intercepted tape recording, failure of defense counsel to investigate possibility of distinguishing exemplar of defendant's voice from voice on intercepted tape was prejudicial to defense). In addition, when determining prejudice, courts have taken into account both the defense counsel's success in eliciting favorable expert testimony through the cross-examination of government witnesses, see Hall v. Sumner, 682 F.2d 786, 789 (9th Cir. 1982), and the overall strength of the prosecution's case, see Solomon v. Kemp, 735 F.2d 395, 402 (11th Cir. 1984).

Under the facts of the present case, there was no question that the petitioner fired a bullet that killed Griffin. The only issue was whether it was the first or second bullet. A review of the record indicates that the eyewitness testimony and the physical evidence presented at trial supported both the ...

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