Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 82 C 1301 - William E. Steckler, Judge.
Cummings, Chief Judge, Bauer and Posner, Circuit Judges.
Petitioner, Stephen Leo Keys, was convicted, after a jury trial in Indiana state court, of criminal deviate conduct, Ind. Code Ann. § 35-42-4-2 (West 1978), and attempted rape while armed, Ind. Code Ann. § 35-42-4-1 (West 1978). However, the trial judge merged the latter felony into the former and pronounced a sentence of 30 years imprisonment based on only the first count. The conviction was affirmed by the Indiana Supreme Court. Keys v. State, 271 Ind. 52, 390 N.E.2d 148 (1979). On June 24, 1982, petitioner, aided by an attorney, filed the present petition for a writ of habeas corpus, alleging that he had received ineffective assistance of counsel prior to his state criminal trial.*fn1 The district court denied petitioner's original application and his motion to reconsider.*fn2 Petitioner appeals, claiming that the pre-trial performance of his trial counsel was ineffective in that counsel failed to investigate the availability of an intoxication defense, did not interview the victim or the state's corroborating witness, and failed to look for possible defense witnesses. We affirm.
At petitioner's trial, the victim testified that she picked up petitioner, who was hitchhicking [hitchhiking] beside a stalled car on a rainy night. When the two arrived at petitioner's apartment-house parking lot he grabbed the victim's keys and started to kiss her. She screamed, and petitioner responded by drawing a knife and ordering her into the backseat. He attempted to rape her but was unable to achieve an erection so he forced her to perform oral sex, threatening her repeatedly. She talked petitioner into going to a motel. There, she signed the register and went to the restroom. When she emerged and they passed through the lobby, she grabbed the front desk counter and yelled for help. Petitioner ran.
Petitioner was represented by his present counsel at the sentencing hearing held after the jury had found him guilty. Petitioner's uncle testified under oath that by chance he had encountered petitioner with some friends at a restaurant about an hour before the incident. Petitioner's uncle characterized petitioner at the time as "drunk," "disorderly," and "in pretty bad condition." He offered to drive petitioner home, or suggested that one of petitioner's friends drive, but petitioner refused. Petitioner's father testified that petitioner had a severe drinking problem and one drunk driving conviction and stated that the car petitioner had been driving stalled on the night of the crime because petitioner had had an accident that punctured the gas tank.
To establish his claim that he received ineffective assistance of counsel, petitioner must show that (1) his counsel's performance fell below objective standards of reasonableness, and (2) counsel's acts or omissions prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674 (1984). While the choice of a particular line of defense is often characterized as trial strategy, the decision to forego what may be the only available defense can fall below sixth amendment standards. See Weidner v. Wainwright, 708 F.2d 614, 616 (11th Cir. 1983). See also Clay v. Director, Juvenile Division, department of Corrections, 749 F.2d 427, 430-34 (7th Cir. 1984); Rogers v. Israel, 746 F.2d 1288, 1294-95 (7th Cir. 1984).
As noted above, petitioner alleges in his petition that "trial counsel failed to investigate or research the availability of, and the factual basis for, an intoxication defense."*fn3 The law in Indiana on the defense of voluntary intoxication is in a state of flux.*fn4 The intoxication defense has been applied in Indiana to charges of rape and criminal deviate conduct. See Duffy v. State, 275 Ind. 191, 195-96, 415 N.E.2d 715, 718 (1981).*fn5 Moreover, the Indiana Supreme Court has recently held that a defendant in Indiana can offer voluntary intoxication as a defense to any crime. Terry v. State, Ind. , , 465 N.E.2d 1085, 1088 (1984). See also Butrum v. State, Ind. , , 469 N.E.2d 1174, 1176 (1984). However, the Terry court noted, "It is difficult to envision a finding of not guilty by reason of intoxication when the acts committed require a significant degree of physical or intellectual skills. As a general proposition, a defendant should not be relieved of responsibility when he was able to devise a plan, operate equipment, instruct the behavior of others or carry out acts requiring physical skill." Terry v. State, 465 N.E.2d at 1088. (Holding that the acts of the defendant in that case showed that no reasonable doubt existed that he had the necessary intent, and that, therefore, it was not error to omit an instruction on voluntary intoxication in his attempted murder conviction.)*fn6
The facts already in the record in the instant case strongly refute any intoxication defense. The crime was ongoing, lasting a significant period of time. The victim testified that when she picked up petitioner on the freeway, "he seemed very [pause]; everything seemed just fine," and she made no mention in her testimony of his appearing intoxicated. Petitioner was able to carry on "light conversation" during the drive to his apartment building, and he gave the victim directions through a part of town unfamiliar to her. When the two arrived at petitioner's apartment-house parking lot, petitioner drew a knife and ordered the victim into the backseat. He ordered her to perform sexual acts, threatening her and telling her that he had "done this type of thing before and it was not pretty." He demonstrated that he was capable of making decisions and formulating a plan when he accepted her suggestion that they go to a motel. Furthermore, the desk clerk at the motel gave no indication in his testimony that petitioner was noticeably intoxicated when he arrived. These facts indicate that petitioner, at the time of the incident, possessed physical and intellectual skills that negate any possibility of his showing that he lacked the requisite specific intent. See Terry v. State, 465 N.E.2d at 1088. See also Johnson v. State, Ind. , , 455 N.E.2d 932, 937 (1983) (appeal from felony attempted murder conviction for striking pedestrians with an automobile after a fight with them). ("Appellant's intoxication is a factual question to be decided by the trier of fact and Appellant bears the burden of proof. So long as Appellant was capable of conceiving a design, she will be presumed - in absence of contrary proof - to have intended the natural consequences of her acts.") There is no reasonable probability that petitioner's counsel's failure to investigate the intoxication defense affected the outcome of his trial, and therefore, petitioner's claim of ineffective assistance of counsel on this issue must fail. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2068-69, 80 L. Ed. 2d 674 (1984); Evans v. Meyer, 742 F.2d 371, 375 (7th Cir. 1984).
In his habeas corpus petition, petitioner also alleges:
Trial counsel for defendant failed to interview the victim in this case, take her deposition, or investigate the victim's background of the facts alleged in the victim's handwritten statement obtained through discovery; trial counsel also failed to interview, depose or investigate any of the eyewitnesses listed by the State; trial counsel further failed to interview possible defense witnesses which became known to him through conversation with the defendant.
On the other hand, the record shows that petitioner's counsel succeeded in getting petitioner's pre-trial bond reduced from $50,000 to $15,000 and that petitioner's trial was continued for four months after counsel began representing petitioner. Petitioner admitted that his counsel had examined the prosecutor's filed prior to the trial and had discussed the case with the investigating detectives. The victim was the only eyewitness to the crime, her story never changed, and petitioner does not dispute her identification of him. The state's only other witness, besides the detectives, was the motel desk clerk. He merely corroborated the victim's testimony that petitioner was present with the victim at the motel.
Given the strength of the case against petitioner, it is difficult to conceive of any useful evidence that would have been discovered in a general investigation. At no point in the record before this court, or in the state court, does petitioner indicate the information that further pre-trial investigation would have uncovered. At oral argument, petitioner's current attorney was unable to suggest any prejudice resulting from trial counsel's alleged failure to talk to the victim, the desk clerk or any other potential witness. Petitioner has offered no support for his allegations that his right to the effective assistance of counsel was violated by his trial attorney's pre-trial investigation. See Crisp v. Duckworth, 743 F.2d 580, 583, 587 (7th Cir. 1984), cert. denied, 469 U.S. 1226, 105 S. Ct. 1221, 84 L. Ed. 2d 361 (1985).
The decision of the district court ...