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BURGER v. KEMP

decided: June 26, 1987.

BURGER
v.
KEMP, WARDEN



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.

Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O'Connor, and Scalia, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, and in Part II of which Powell, J., joined, post, p. 796. Powell, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 817.

Author: Stevens

[ 483 U.S. Page 777]

 JUSTICE STEVENS delivered the opinion of the Court.

A jury in the Superior Court of Wayne County, Georgia, found petitioner Christopher Burger guilty of murder and sentenced him to death on January 25, 1978. In this habeas corpus proceeding, he contends that he was denied his constitutional right to the effective assistance of counsel because his lawyer labored under a conflict of interest and failed to make an adequate investigation of the possibly mitigating circumstances

[ 483 U.S. Page 778]

     of his offense. After a full evidentiary hearing, the District Court rejected the claim. We are persuaded, as was the Court of Appeals, that the judgment of the District Court must be affirmed.

I

The sordid story of the crime involves four soldiers in the United States Army who were stationed at Fort Stewart, Georgia, on September 4, 1977. On that evening, petitioner and his coindictee, Thomas Stevens, both privates, were drinking at a club on the post. They talked on the telephone with Private James Botsford, who had just arrived at the Savannah Airport, and agreed to pick him up and bring him back to the base. They stole a butcher knife and a sharpening tool from the mess hall and called a cab that was being driven by Roger Honeycutt, a soldier who worked part-time for a taxi company. On the way to the airport, petitioner held the knife and Stevens held the sharpening tool against Honeycutt. They forced him to stop the automobile, robbed him of $16, and placed him in the backseat. Petitioner took over the driving. Stevens then ordered Honeycutt to undress, threw each article of his clothing out of the car window after searching it, blindfolded him, and tied his hands behind his back. As petitioner drove, Stevens climbed into the backseat with Honeycutt, where he compelled Honeycutt to commit oral sodomy on him and anally sodomized him. After stopping the car a second time, petitioner and Stevens placed their victim, nude, blindfolded, and hands tied behind his back, in the trunk of the cab. They then proceeded to pick up Botsford at the airport. During the ride back to Fort Stewart, they told Botsford that they had stolen the cab and confirmed their story by conversing with Honeycutt in the trunk. In exchange for Botsford's promise not to notify the authorities, they promised that they would not harm Honeycutt after leaving Botsford at the base.

Ultimately, however, petitioner and Stevens drove to a pond in Wayne County where they had gone swimming in the past. They removed the cab's citizen-band radio and, while

[ 483 U.S. Page 779]

     Stevens was hiding the radio in the bushes, petitioner opened the trunk and asked Honeycutt if he was all right. He answered affirmatively. Petitioner then closed the trunk, started the automobile, and put it in gear, getting out before it entered the water. Honeycutt drowned.

A week later Botsford contacted the authorities, and the military police arrested petitioner and Stevens. The two men made complete confessions. Petitioner also took the military police to the pond and identified the point where Honeycutt's body could be found. Petitioner's confession and Private Botsford's testimony were the primary evidence used at Burger's trial. That evidence was consistent with the defense thesis that Stevens, rather than petitioner, was primarily responsible for the plan to kidnap the cabdriver, the physical abuse of the victim, and the decision to kill him. Stevens was 20 years old at the time of the killing. Petitioner was 17;*fn1 a psychologist testified that he had an IQ of 82 and functioned at the level of a 12-year-old child.

II

Alvin Leaphart was appointed to represent petitioner about a week after his arrest. Leaphart had been practicing law in Wayne County for about 14 years, had served as the

[ 483 U.S. Page 780]

     county's attorney for most of that time, and had served on the Board of Governors of the State Bar Association. About 15 percent of his practice was in criminal law, and he had tried about a dozen capital cases. It is apparent that he was a well-respected lawyer, thoroughly familiar with practice and sentencing juries in the local community. He represented petitioner during the proceedings that resulted in his conviction and sentence, during an appeal to the Georgia Supreme Court which resulted in a vacation of the death penalty, during a second sentencing hearing, and also during a second appeal which resulted in affirmance of petitioner's capital sentence in 1980. Burger v. State, 242 Ga. 28, 247 S. E. 2d 834 (1978); Burger v. State, 245 Ga. 458, 265 S. E. 2d 796, cert. denied, 446 U.S. 988 (1980). Leaphart was paid approximately $9,000 for his services.

After exhausting his state collateral remedies, petitioner (then represented by a different attorney) filed a habeas corpus proceeding in the United States District Court for the Southern District of Georgia. He advanced several claims, including a charge that Leaphart's representation had been constitutionally inadequate. The District Court conducted an evidentiary hearing and emphatically rejected that claim,*fn2 but concluded that the trial court's instructions to the jury

[ 483 U.S. Page 781]

     permitted it to base its sentencing decision on an invalid aggravating circumstance. Accordingly, the District Court vacated petitioner's death sentence. Blake v. Zant, 513 F.Supp. 772 (1981).

The Court of Appeals affirmed in part, reversed in part, and reinstated the death penalty. Burger v. Zant, 718 F.2d 979 (CA11 1983). On the issue of Leaphart's competence, it adopted the District Court's opinion as its own over the dissent of Judge Johnson. The dissent found that Leaphart had a conflict of interest because his partner Robert Smith*fn3 had been appointed to represent Stevens in his later, separate trial for the murder of Honeycutt, and Leaphart had assisted in that representation. He had interviewed Stevens and assisted his partner during Stevens' trial. Moreover, the two partners shared their legal research and discussed the cases with one another. Judge Johnson was persuaded that the conflict created actual prejudice to petitioner's interest for two reasons. First, each of the two defendants sought to emphasize the culpability of the other in order to avoid the death penalty. Second, Leaphart failed to negotiate a plea bargain in which petitioner's testimony against Stevens might be traded for a life sentence. Judge Johnson was also persuaded that Leaphart's performance was defective because he did not conduct an adequate investigation of possible mitigating circumstances and did not have a valid strategic explanation for his failure to offer any mitigating evidence at either the first or the second sentencing hearing.

After the Court of Appeals rendered its decision, we decided Strickland v. Washington, 466 U.S. 668 (1984). We granted Burger's petition for certiorari and remanded the case to the Court of Appeals for consideration of "the effectiveness of counsel's assistance at petitioner's second sentencing hearing" in light of that decision. Burger v. Zant,

[ 483 U.S. Page 782467]

     U.S. 1212, 1213 (1984). The Court of Appeals in turn remanded the case to the District Court with instructions to extend or revise its findings, and if appropriate, its conclusions on the ineffective-assistance-of-counsel claim. Burger v. Zant, 741 F.2d 1274 (CA11 1984). The District Court wrote a more extensive opinion on that issue and again concluded that there was no merit to petitioner's claim. Once again, the Court of Appeals affirmed on the basis of the District Court's opinion, over the dissent of Judge Johnson. Burger v. Kemp, 753 F.2d 930 (CA11 1985) (per curiam).*fn4 We granted the petition for certiorari, vacated, and remanded for reconsideration in light of Francis v. Franklin, 471 U.S. 307 (1985), on the question whether the jury instruction impermissibly shifted the burden of proof on the issue of intent. Burger v. Kemp, 474 U.S. 806 (1985). The Court of Appeals assumed the trial court's charge on intent unconstitutionally shifted the burden of proof, but found the error harmless beyond a reasonable doubt. 785 F.2d 890 (1986) (per curiam). We granted certiorari, 479 U.S. 929 (1986), and now affirm. We first consider counsel's alleged conflict of interest argument and then his failure to offer mitigating evidence.*fn5

[ 483 U.S. Page 783]

     III

There is certainly much substance to petitioner's argument that the appointment of two partners to represent coindictees in their respective trials creates a possible conflict of interest that could prejudice either or both clients. Moreover, the risk of prejudice is increased when the two lawyers cooperate with one another in the planning and conduct of trial strategy, as Leaphart and his partner did. Assuming without deciding that two law partners are considered as one attorney, it is settled that "requiring or permitting a single attorney to represent co-defendants, often referred to as joint representation, is not per se violative of constitutional guarantees of effective assistance of counsel." Holloway v. Arkansas, 435 U.S. 475, 482 (1978). We have never held that the possibility of prejudice that "inheres in almost every instance of multiple representation" justifies the adoption of an inflexible rule that would presume prejudice in all such cases. See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). Instead, we presume prejudice "only if the defendant demonstrates that counsel 'actively represented conflicting interests' and that 'an actual conflict of interest adversely affected his lawyer's performance.'" Strickland, 466 U.S., at 692 (citation omitted). See also Cuyler, 446 U.S., at 348, 350.

As an initial matter, we agree with the District Court that the overlap of counsel, if any, did not so infect Leaphart's representation as to constitute an active representation of competing interests. Particularly in smaller communities where the supply of qualified lawyers willing to accept the demanding and unrewarding work of representing capital prisoners is extremely limited, the defendants may actually benefit from the joint efforts of two partners who supplement

[ 483 U.S. Page 784]

     one another in their preparation. In many cases a "'common defense . . . gives strength against a common attack.'" Holloway v. Arkansas, 435 U.S., at 482-483 (quoting Glasser v. United States, 315 U.S. 60, 92 (1942) (dissenting opinion of Frankfurter, J.)). Moreover, we generally presume that the lawyer is fully conscious of the overarching duty of complete loyalty to his or her client. Trial courts appropriately and "necessarily rely in large measure upon the good faith and good judgment of defense counsel." Cuyler, 446 U.S., at 347. In addition, petitioner and Stevens were tried in separate proceedings; as we noted in Cuyler, the provision of separate murder trials for the three coindictees "significantly reduced the potential for a divergence in their interests." Ibid.

In an effort to identify an actual conflict of interest, petitioner points out that Leaphart prepared the briefs for both him and Stevens on their second appeal to the Georgia Supreme Court, and that Leaphart did not make a "lesser culpability" argument in his appellate brief on behalf of petitioner even though he had relied on petitioner's lesser culpability as a trial defense. Given the fact that it was petitioner who actually killed Honeycutt immediately after opening the trunk to ask if he was all right, and the further fact that the Georgia Supreme Court expressed the opinion that petitioner's actions were "outrageously and wantonly vile and inhuman under any reasonable standard of human conduct," Burger v. State, 245 Ga., at 461-462, 265 S. E. 2d, at 800, the decision to forgo this issue had a sound strategic basis. As we reaffirmed in Smith v. Murray, 477 U.S. 527, 536 (1986), the "process of 'winnowing out weaker claims on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy. Jones v. Barnes, 463 U.S. 745, 751-752 (1983)."

In addition, determining that there was an actual conflict of interest requires the attribution of Leaphart's motivation for not making the "lesser culpability" argument to the fact

[ 483 U.S. Page 785]

     that his partner was Stevens' lawyer, or to the further fact that he assisted his partner in that representation. The District Court obviously credited his testimony to the contrary, see 513 F.Supp., at 795; 753 F.2d, at 941, and its findings were twice sustained by the Court of Appeals. It would thus be most inappropriate, and factually unsupportable, for this Court to speculate that the drafting of a brief on appeal was tainted by a lawyer's improper motivation. Our duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case. Nevertheless, when the lower courts have found that a lawyer has performed his or her solemn duties in such a case at or above the lower boundary of professional competence, both respect for the bar and deference to the shared conclusion of two reviewing courts prevent us from substituting speculation for their considered opinions. The district judge, who presumably is familiar with the legal talents and character of the lawyers who practice at the local bar and who saw and heard the witness testify, is in a far better position than we are to evaluate a charge of this kind, and the regional courts of appeals are in a far better position than we are to conduct appellate review of these heavily fact-based rulings.

We also conclude that the asserted actual conflict of interest, even if it had been established, did not harm his lawyer's advocacy. Petitioner argues that the joint representation adversely affected the quality of the counsel he received in two ways: Leaphart did not negotiate a plea agreement resulting in a life sentence, and he failed to take advantage of petitioner's lesser culpability when compared with his coindictee Stevens. We find that neither argument provides a basis for relief.

The notion that the prosecutor would have been receptive to a plea bargain is completely unsupported in the record. The evidence of both defendants' guilt, including their confessions, and eyewitness and tangible evidence, was overwhelming and uncontradicted; the prosecutor had no need

[ 483 U.S. Page 786]

     for petitioner's eyewitness testimony to persuade the jury to convict Stevens and to sentence him to death. In these circumstances, there is not the slightest reason for appellate doubt of the veracity of Leaphart's testimony:

"Q. Did you ever engage in any plea negotiations in this case?

"A. Yes.

"Q. Could you tell me the substance of it?

"A. Well, we -- I constantly all during the time I represented Mr. Burger tried to negotiate a plea with the district attorney for a life sentence. And, he -- during the first trial he just flatly refused to even discuss it in any terms. And, then when we got it reversed on the sentence feature I continued to -- in that time to try to negotiate with the -- with the district attorney about entering a plea, for Mr. Burger to serve a life sentence. And, he insisted on trying it and insisted on seeking the death penalty." App. 74-75.

As the District Court found, Leaphart "constantly attempted to plea bargain with the prosecutor," but was rebuffed. 753 F.2d, at 940. "The prosecutor's flat refusal to engage in plea bargaining is not surprising when viewed in light of the strength of the case against Burger." Ibid.

The argument that his partner's representation of Stevens inhibited Leaphart from arguing petitioner's lesser culpability because such reliance would be prejudicial to Stevens is also unsupported by the record. Such an argument might have been more persuasive if the two defendants had been tried together. As the State conducted the prosecutions, however, each defendant's confession was used in his trial but neither was used against the coindictee. Because the trials were separate, Leaphart would have had no particular reason for concern about the possible impact of the tactics in petitioner's trial on the outcome of Stevens' trial. Moreover,

[ 483 U.S. Page 787]

     in the initial habeas corpus proceeding, the District Court credited Leaphart's uncontradicted testimony that "he in no way tailored his strategy toward protecting Stevens." 513 F.Supp., at 795. The District Court concluded that his "testimony is strongly supported by examination of trial record, which shows considerable effort to gain mercy for petitioner by portraying Stevens as the chief architect of the crime." Ibid.*fn6

In an effort to bolster his claim that an adverse effect resulted from Leaphart's actual conflict of interest, petitioner

[ 483 U.S. Page 788]

     argues that because he was tried in a small community in which the facts of the crime were widely known, "it necessarily follows that the public, and very possibly members of the jury, knew that the cases were being tried on inherently inconsistent theories." Brief for Petitioner 14. But this observation does nothing to establish an actual, deleterious conflict of interest between Leaphart's work for his client and his partner's representation of Stevens. If two unaffiliated lawyers, complete strangers to one another, had represented Burger and Stevens respectively and had advanced the same defenses that were advanced, the community would have had the same awareness that the theories were inherently inconsistent. There was undoubtedly a conflict of interest between Burger and Stevens because of the nature of their defenses. But this inherent conflict between two participants in a single criminal undertaking cannot be transformed into a Sixth Amendment violation simply because the community might be aware that their respective attorneys were law partners.

IV

The District Court expressed much more concern about petitioner's argument that Leaphart had failed to develop and present mitigating evidence at either of the two sentencing hearings. See 513 F.Supp., at 796. At both hearings Leaphart offered no mitigating evidence at all. A capital sentencing proceeding "is sufficiently like a trial in its adversarial format and in the existence of standards for decision" that counsel's role in the two proceedings is comparable -- it is "to ensure that the adversarial testing process works to produce a just result under the standards governing decision." Strickland, 466 U.S., at 686, 687. We therefore must determine whether Leaphart's performance in evaluating the mitigating evidence available to him, and in deciding not to pursue further mitigating evidence, undermines confidence in the adversarial process of this case. In embarking

[ 483 U.S. Page 789]

     on our review of the District Court's conclusions, we are guided by our most recent admonition on this subject:

"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland v. Washington, 466 U.S., at 689.

The evidence that might have been presented would have disclosed that petitioner had an exceptionally unhappy and unstable childhood.*fn7 Most of this evidence was described by petitioner's mother, who testified at length at the habeas

[ 483 U.S. Page 790]

     corpus hearing. At the age of 14 she married Burger's father, who was 16. She was divorced from petitioner's father when petitioner was nine years old. She remarried twice, and neither of petitioner's stepfathers wanted petitioner in the home; one of them beat his mother in petitioner's presence when he was 11 and the other apparently "got him involved with marijuana, and that was the whole point of his life, where the next bag was coming from, or the next bottle of beer. And, this was the kind of influence that he had." App. 91. When his mother moved from Indiana to Florida, petitioner ran away from his father and hitchhiked to Tampa. After he became involved in an auto accident, she returned him to Indiana where he was placed in a juvenile detention home until he was released to his father's custody. Except for one incident of shoplifting, being absent from school without permission, and being held in juvenile detention -- none of which was brought to the jury's attention -- petitioner apparently had no criminal record before entering the Army.

Leaphart was aware of some, but not all, of this family history prior to petitioner's trial. He talked with petitioner's mother on several ...


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