Hodge v. Haeberlin

BOYCE F. MARTIN, JR., Circuit Judge,

dissenting.

Benny Lee Hodge was convicted by a jury in Kentucky state court of first-degree robbery, first-degree burglary, and two counts of murder, and was sentenced to death. I dissent because I believe that the state courts unreasonably rejected his ineffective assistance of counsel claim. Hodge’s counsel’s cross-examination of the state’s key witness, his ex-wife Sherry Hamilton, was a disaster, and his lawyer also failed to object to any of the incriminating — and inadmissible — answers that he had elicited from her. Altogether, Hodge’s counsel’s performance fell below the minimum constitutional standards of professional competence, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and the state courts’ determination otherwise was unrea*652sonable, 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). I respectfully dissent.

I.

Edwin and Bessie Morris, an elderly couple, were murdered in their home in Jackson County, Kentucky in 1986, during a robbery. The murderers took over $35,000. Petitioner Benny Lee Hodge and his co-defendants, Donald Bartley and Roger Epperson, were charged and convicted in separate trials. A jury first found Hodge guilty in 1987, but the Kentucky Supreme Court vacated that decision because the trial court had not properly conducted individual voir dire on the issue of pretrial publicity. Hodge was retried in 1996 in Laurel County, Kentucky, was found guilty on all counts, and was sentenced to death.

The record is voluminous, but Kentucky and the majority concede that the state presented no direct physical evidence linking Hodge to the murders. Its case consisted of the testimony of two witnesses, Bartley, Hodge’s co-defendant, and Sherry Hamilton, his ex-wife. Bartley did not testify in person at Hodge’s second trial, however, because he asserted his Fifth Amendment right against self-incrimination. Instead, the jury was read a redacted transcript of his testimony from Hodge’s 1987 trial, with all references to the previous trial omitted. Hamilton was thus the government’s lone primary witness who testified in person. Hamilton and Bartley both identified Hodge as one of the killers, though they differed on other details, including who had accompanied Hodge into the Morrises’ home to kill them (Hamilton said Bartley went in; Bartley said it was Epperson). Hamilton’s testimony was based on her having allegedly witnessed Hodge’s and Bartley’s reactions to seeing reports of the murders on television.

During deliberations, several jurors requested to hear certain testimony again; they reheard portions of the testimony of Bartley and Hamilton, as well as one of Hodge’s witnesses, Tammy Gentry. At one point, the jury indicated that it was deadlocked, but later returned a verdict finding Hodge guilty on all counts.

II.

A brief digression before turning to Hodge’s ineffective assistance of counsel claim. Though I agree with my colleagues’ conclusion that Hodge’s right to testify claim was procedurally defaulted and, alternatively, fails on the merits, I must point out a possible confusion of the law. The majority correctly recognizes that “[t]he right of a defendant to testify at trial is a constitutional right of fundamental dimension and is subject only to a knowing and voluntary waiver by the defendant.” United States v. Webber, 208 F.3d 545, 550 (6th Cir.2000) (citing Rock v. Arkansas, 483 U.S. 44, 52, 53 n. 10, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)). Such waivers may be upheld where “[t]here is no evidence in the record that Defendant attempted to communicate with and ‘alert the trial court’ to a disagreement with defense counsel regarding whether Defendant should take the stand.” Webber, 208 F.3d at 552. But an attempt to “alert” the court need not, as the majority intimates, involve a dramatic outburst like, “I am being denied my right to testify!” See United States v. Ortiz, 82 F.3d 1066, 1071 (D.C.Cir.1996) (observing “the impracticability of placing a burden on a defendant to assert a right of which he might not be aware or to do so in contravention of the court’s instructions that the defendant speak to the court through counsel”). This suggestion elides the circumstances under which this Court and others have held that a district judge must inquire further into whether a defendant is knowingly and vol*653untarily waiving his right to testify: a court may be required to so inquire if the court either becomes aware of the defendant’s stated wish to testify or of the presence of a conflict between a defendant and his attorney. See, e.g., United States v. Manjarrez, 258 F.3d 618, 624 (7th Cir. 2001); Webber, 208 F.3d at 552; United States v. Sys. Architechts, Inc., 757 F.2d 373, 375-76 (1st Cir.1985). With that clarification, I agree that Hodge has not shown that his waiver of his right to testify was involuntary or unknowing.

III.

Turning to Hodge’s (primary) ineffective assistance claim, the issue is whether Hodge’s counsel was so deficient during his cross-examination of Sherry Hamilton that Hodge is entitled to a new trial. I think so. To establish ineffective assistance of counsel, a claimant must show two things: “A petitioner must show that counsel’s performance was deficient, and that the deficiency prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). This performance is measured by an “objective standard of reasonableness” with an eye to “prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Prejudice occurs when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. Stated differently, “[w]e do not ask whether [the defendant] was ultimately innocent, but, rather, whether he was deprived [of] a reasonable shot of acquittal.” Avery v. Prelesnik, 548 F.3d 434, 439 (6th Cir.2008). Moreover, habeas claims are governed by the now familiar standards of the Antiterrorism and Effective Death Penalty Act of 1996, under which the writ may be granted only if the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established federal law.” 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

It is no surprise that Hodge’s counsel’s cross-examination of Sherry Hamilton was a train wreck considering that he failed to prepare for it. For example, at the beginning of his questioning, he asked Hamilton if they had ever spoken before, and she replied that they had not. The ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases require counsel to “conduct thorough and independent investigations” to prepare for their cases. ABA Guideline 10.7 (2003). And, though it was no longer in effect, the previous version of the ABA’s Guidelines explicitly required counsel to interview government witnesses. No competent lawyer would fail to interview the key — indeed the only in-person — witness against his client.

Preparation aside, Hodge’s counsel was utterly ineffective during the cross-examination itself. He began by attempting to impeach Hamilton as a liar and a jealous ex-spouse, but his questioning soon veered off into the irrelevant but harmful before disintegrating into the totally devastating. (Keep in mind that none of the following was addressed during Hamilton’s direct examination.) Hodge’s lawyer first brought up an irrelevant “immigration scam,” of which Hodge was the chief architect.

Q: Okay. Now, after you were divorced from Mr. Pelfrey you got married a second time, correct?
A: Yes, sir; I did.
Q: And that was to Mr. Wong.
A: Yes, sir.
Q: And that was basically an immigration scam, correct?
*654A: If that’s what you want to call it; yes, sir. I married him so he could become a citizen of the United States. I lived with Benny Hodge the whole time I was married to him. The Chinese man, Mr. Wong, only stayed in the house with us a couple of nights. He slept in one bedroom and Benny Hodge and I slept in the other.
Q: And you were paid money for marrying Mr. Wong, correct?
A: I was paid $10,000 cash up front. He paid mine and Mr. Hodge’s utilities, rent, phone bill, cable, car insurance, and bought us a car.

J.A. 888-89.

Next, Hodge’s lawyer asked Hamilton if Hodge ever dyed his hair, which elicited the reply, “Yes.... When he was on the run.” J.A. 891. Hodge’s lawyer then switched subjects, apparently deciding that the best way to establish his client’s innocence was to detail the specifics of his drug abuse.

Q: And for the most part during that time period, was Mr. Hodge using substantial amounts of cocaine?
A: Not to my knowledge, no.
Q: Okay. I mean, in fact, Mr. Hodge didn’t use cocaine; is that correct?
A: On occasion, he may. But as an everyday thing? No, sir; he did not.
Q: Okay, and for the most part, he was a bodybuilder, correct?
A: Yes, sir, he smoked pot every day.
Q: Okay. He smoked pot every day?
A: Yes, sir.
Q: And did he drink alcohol?
A: No, sir. He might drink occasionally, when he was with his girlfriend.

J.A. 892-93. All this was apropos of nothing. Hodge’s counsel then switched topics again, asking if Hamilton “rememberfed] in [19]85 when [Hodge] wore a beard frequently?” Her predictable reply: “Yes, sir; he’d wear a beard unless he was fixing to do a job, and he would shave it off.” J.A. 893.

Hamilton was obviously a hostile witness, and, later during cross-examination, she began to give long monologues about her belief in Hodge’s guilt and speculation about what Hodge was capable of. Yet Hodge’s lawyer sat idly by. For example, Hamilton stated:

.... Now, I must tell the truth. The Morris family and others have to know the truth. This man is guilty of murder. He does not deserve to be free, because he will do it again. And I may be the next person he kills, because he has threatened me several times to take my life.

Hodge’s counsel responded, rather, well, passively, as the Kentucky Supreme Court observed:

At no time during or after the cross-examination of Hamilton did defense counsel object to her answers, request that the witness be admonished against testifying about “other crimes,” or request that the jury be admonished to disregard her answers. Nor did defense counsel object or ask for an admonition during the prosecutor’s inquiries on redirect. It was only after Hamilton had been excused and the jury had been discharged for the weekend that defense counsel moved for a mistrial on the basis of an alleged violation of the pre-trial order [not to make reference to the previous trial],

Hodge v. Commonwealth, 17 S.W.3d 824, 846 (2002). This was worse than foolish, it was inept. Indeed, most of the testimony elicited by Hodge’s own lawyer (a) was otherwise inadmissible, and (b) was later belabored during the prosecution’s closing *655argument. The majority concedes that this cross examination was “extremely damaging.”

Yet the Kentucky Supreme Court’s analysis of Hodge’s ineffective assistance claim, reads, in its entirety:

Hodge contends that defense counsel was deficient in the investigation and cross-examination of his former wife. The issue on direct appeal was the admission of [prior bad acts] evidence. We held that counsel’s continued cross examination of an obviously hostile witness was a tactical decision. Trial strategy trill not be second-guessed in a [post-conviction] proceeding.

Hodge v. Commonwealth, 116 S.W.3d 463, 473 (Ky.2003) (quotations omitted) (emphasis added). This is hogwash. As the majority also concedes, Kentucky’s courts failed to give his claim any meaningful review, so we must do our own de novo review of these claims, though the state court’s ultimate conclusions nevertheless must receive a dollop of deference under the AEDPA. But the majority, like the state court, falls under the seductive notion that the word “strategy” somehow deflects all meaningful review. Wrong: “[T]he label ‘strategy’ is not a blanket justification for conduct which otherwise amounts to ineffective assistance of counsel.” White v. McAninch, 235 F.3d 988, 995 (6th. Cir.2000). The entire point of an ineffective assistance of counsel claim is to “second-guess” trial strategy, though with deference for legitimate-and reasonable— strategic choices. See Miller v. Anderson, 255 F.3d 455, 458 (7th Cir.2001) (“The fact that it was a tactic obviously does not immunize it from review in a challenge to the lawyer’s effectiveness. Tactics are the essence of the conduct of litigation; much scope must be allowed to counsel, but if no reason is or can be given for a tactic, the label ‘tactic’ will not prevent it from being used as evidence of ineffective assistance of counsel.”).

The only reason Hodge’s counsel proffered for his disastrous cross-examination performance — that he didn’t want to draw attention to Hamilton’s answers — is inadequate given how predictably harmful Hamilton’s testimony was. Nor does it explain the inanity of his questioning, full as it was with discussions of Hodge’s past crimes and drug abuses. Indeed, very little of what went on approaches the term “strategy.” There was nothing “strategic” about a failure to prepare, and there was nothing strategic about a bumbling, meandering cross-examination that let in a flood of otherwise inadmissible evidence. And, even if counsel’s failure to object or request an admonishment regarding Hamilton’s errant statements could in some fashion be labeled a “strategic choice” or a “tactic” in some absurd, Pollyannish sense, it was so unreasonable that it cannot pass constitutional muster. Thus, because there were not even minimally intelligent reasons given to explain this inadequate lawyering, I think the state courts unreasonable in determining that Hodge’s counsel was not constitutionally deficient.

Having concluded that Hodge’s counsel was inadequate, I have no doubt Hodge was prejudiced by the error. The state had no direct evidence linking Hodge to the murders, and both the Kentucky Supreme Court and the majority agree that Hodge was convicted on the basis of Hamilton’s and Bartley’s (at-times contradictory) testimony. Further, Bartley did not even testify in person at the second-trial— his testimony was merely read to the jury. Sherry Hamilton was the state’s key witness linking Hodge to the murders, and she was the only such major witness to testify in person. Unsurprisingly, the jury’s decision was apparently quite close: the jurors at one point announced that they were deadlocked and they requested a review of the testimony before delivering their verdict. Hodge’s counsel’s disastrous *656cross-examination cost Hodge a reasonable shot at acquittal. See Avery, 548 F.3d at 439. Thus, because the state courts were unreasonable in concluding that Hodge’s counsel was not constitutionally deficient, he is entitled to a new trial. I respectfully dissent.