Appeal from the United States District Court for the Eastern District of Wisconsin, No. 85 C 143, Terence T. Evans, Judge.
Easterbrook and Ripple, Circuit Judges, and Grant, Senior District Judge.*fn*
Augustus Marshall, a state prisoner, appeals from the denial of his petition for a writ of habeas corpus. Mr. Marshall was convicted of one count of murder and two counts of attempted murder. He claims that he received ineffective assistance of counsel at trial because his trial counsel failed to make an adequate investigation regarding the bullets that remained in the bodies of the attempted murder victims. He also argues that his conviction was obtained through the use of hearsay testimony that violated the confrontation clause of the sixth amendment because it lacked sufficient indicia of reliability, as required by Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980). For the reasons set forth in the following opinion, we affirm the order of the district court.
On October 28, 1979, Ryan Kent Baxter was shot to death during a shootout at Groovy People's International, a Milwaukee after-hours club. Mary Polk and Eddie Young received gunshot wounds. Their treating physicians decided, for medical reasons, to leave the bullets in their bodies. Several eyewitnesses, including Ms. Polk and Mr. Young, testified as to the events surrounding the shootings.
Ms. Polk testified that she and several other people were in the room where the shootings took place. She testified that a man named Joe Brackins, after having left to investigate a disturbance in another part of the building, ran back into the room shouting "they got guns." Tr. II at 6. According to Ms. Polk, she ran to a corner of the room to hid behind a fan. She heard a conversation between two men and Mr. Baxter; then she heard two shots. She believed that one was louder than the other, as if two different guns were fired. She also testified that, after Mr. Baxter had been shot, Mr. Young stood up over Ms. Polk and began to fire toward the men at the other end of the room. At this point, the men at the other end of the room (Mr. Marshall and Mr. Bruce Jones) returned Mr. Young's fire. She testified that, during this exchange, she and Mr. Young were shot. After being told to throw out his gun, Mr. Young did so. Ms. Polk testified that she was treated for a bullet wound to her stomach, and that a bullet remains lodged in her stomach.
Mr. Young testified that, after he heard shouts about men having guns, Mr. Baxter walked to the bar at the front of the room, and drew his gun and held it behind him. He testified that Mr. Baxter reassured everyone and said, "[i]f they come in there, they is dead now." Tr. II at 58. He then testified that two men with guns entered the room and requested a key. The men told Mr. Baxter that he was dead if he had a gun. Mr. Young further testified that Mr. Baxter struggled with them and that he was eventually spun around and shot once by each of the two men. Mr. Young guessed that the shorter man had a magnum and that the taller one had either a .32 caliber or .38 caliber pistol. He testified that he then fired one shot toward the two men, after which he himself was shot in the leg. He fired his last bullet, and then threw his gun out into the center of the room after being ordered to do so. He also testified that, when he was treated for the gunshot wound, the bullet was not removed.
Another eyewitness was Carolyn Jackson, Mr. Baxter's girlfriend. She testified that she and Mr. Baxter had gone out with a group of people, including Mr. Young and Ms. Polk, on October 27. In the early morning hours of the 28th, they went to the after-hours club and went to a room on the first floor that contained a bar - the room where the shootout occurred. She testified that, at about 8:00 a.m., Mr. Baxter went to the front of the room to the bar. She testified that an old man (Mr. Brackins) ran into the room and hid in a corner by a fan. Mr. Marshall and Mr. Jones then entered the room with guns drawn and stood very close to Mr. Baxter. She testified that Mr. Marshall's gun was bigger than Mr. Jones' gun and that Mr. Marshall's gun had a long barrel. Ms. Jackson testified that two shots were fired, one of which was louder than the other. Mr. Baxter then fell to the floor. She then testified that, after Mr. Baxter fell, Mr. Marshall and Mr. Jones fired shots toward the back of the room and Ms. Polk and Mr. Young were wounded. She testified that Mr. Young had a gun but she was unsure whether he had fired it. After the shootings, Mr. Marshall and Mr. Jones left the room and she heard the sound of breaking glass as they left through a window in the next room.
Joseph Brackins testified that he left the room where the shootings occurred to investigate a disturbance on the second floor. As he was going to the second floor, two men holding guns came down the stairs and told him to return to the room from which he came. Mr. Brackins identified one of these men as Mr. Marshall. He believed that the gun Mr. Marshall held was either a .357 magnum or a .45 caliber pistol. He testified that Mr. Jones' gun was either a .32 or a .38 caliber pistol. Mr. Brackins testified that he hid behind a fan in the back corner of the room. He testified that he saw Mr. Marshall confront Mr. Baxter and then spin Mr. Baxter around and shoot him in the back. He heard a second shot, not as loud as the first, which he assumed to come from Mr. Jones' gun. He then heard Mr. Marshall and Mr. Jones say "drop it" and then a sound which he assumed to be a gun hitting the floor. Tr. I at 292. This was followed by more gun fire, after which Ms. Polk fell into his lap with a gunshot wound to her stomach.
An additional witness of the events at the club was Adolph Tates.*fn1 Mr. Tates did not see the shootings. He testified that, prior to the shootings, he was on the second floor of the club and saw Mr. Marshall, Mr. Jones and an unidentified third man surround a man named Sonny Carter and escort him downstairs. They then disappeared from Mr. Tates' view. Mr. Tates testified that all three men had guns drawn. A short time later, Mr. Tates heard gunshots. He proceeded to a porch area on the roof by the front of the building. From there he observed Mr. Marshall, Mr. Jones and the third man jump out of a window on the first floor and leave in a black Cadillac with a Wisconsin license plate. Mr. Tates said that the third man was not Arthur Johnson.
Arthur Johnson testified as to events that occurred before and after the shootout. Mr. Johnson testified that he met Mr. Marshall and Mr. Jones at a disco club on the night before the shooting. He testified that Mr. Jones asked if he and Mr. Marshall might borrow Mr. Johnson's car, a 1974 black Cadillac, for the evening in exchange for $100. Mr. Johnson agreed, and Mr. Jones and Mr. Marshall dropped Mr. Johnson off at his house at about 7:30 that evening.
Mr. Johnson testified that the men returned the car the following morning and that they asked Mr. Johnson to drive them to another location. Mr. Jones and Mr. Marshall were accompanied by a third man whom Mr. Johnson knew only as "Sly". Mr. Johnson drove the men to the home of Elijah Jackson. Mr. Johnson had known Mr. Jackson through prior drug transactions. The four men entered Mr. Jackson's home and Mr. Johnson sat apart from the other four. Mr. Johnson testified that the men talked about a shooting and that Mr. Jackson was apparently angry and told Mr. Marshall that he could not pay him $1,000 because he had not killed Sonny Carter. From the conversation, Mr. Johnson surmised that Mr. Carter apparently had "beat" Mr. Jackson out of some drugs and that Mr. Jackson had hired someone to kill Mr. Carter. In response to Mr. Jackson's remarks that he could not pay Mr. Marshall $1,000 because he had killed the wrong man, Mr. Marshall responded that he had risked his life, that everyone had started shooting and that he had to flee from the building. Mr. Johnson also testified that, based on the conversation, he understood that Mr. Jackson had previously told the other three men that Mr. Carter would be at the club, and that these men were supposed to kill Mr. Carter.
Mr. Marshall testified in his defense. He testified that he and his girlfriend were out with Mr. Jones and Mr. Jones' girlfriend and that they met Arthur Johnson and his wife and sister at approximately 1:30 a.m. The couples took Mr. Johnson's sister home and then rode in Mr. Johnson's car to the after-hours club. Mr. Marshall further testified that, after arriving at the club, the group went to the second floor where Mr. Jones had a conversation with Sonny Carter about buying cocaine. After this, Mr. Marshall, Mr. Jones and Mr. Johnson went to a house to obtain cocaine to sell to Mr. Carter. Mr. Marshall testified that, on this trip, Mr. Jones obtained a .22 caliber pistol and Mr. Johnson stated that he was getting a gun from the trunk of his car.
According to the defendant, when the men returned to the club, Mr. Carter said he would not purchase the cocaine. Mr. Jones pulled out his gun and said he was going to take Mr. Carter outside to beat him up. Mr. Marshall claimed that he had no gun at this time. When the men tried to leave the building they found that the exit on the first floor was locked. Mr. Marshall testified that he following Mr. Jones into a room so that they could find someone who had a key to the door. Mr. Johnson stayed with Mr. Carter. Mr. Marshall testified that they entered the room where the shootout occurred to ask for a key. Mr. Marshall testified that Mr. Baxter then charged Mr. Jones with a pistol drawn. He also testified that, at the same time, a woman in a fur coat ...