Gray v. Lynn

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

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No. 92-4502
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DEWEY SPENCER GRAY,

Petitioner-Appellant,

versus

BRUCE LYNN, Secretary, Department
of Corrections,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court
for the Western District of Louisiana

_________________________________________________________________
(October 20, 1993)

Before KING and BARKSDALE, Circuit Judges, and DUPLANTIER,1
District Judge.

BARKSDALE, Circuit Judge:

Dewey Spencer Gray's appeal from the denial of habeas relief

turns on whether his counsel's failure to object to a jury

instruction, conceded by the State to be erroneous as to an element

of the charged offense (attempted murder), constituted ineffective

assistance of counsel. Concluding that it was, we REVERSE the

denial of the application.

1
District Judge of the Eastern District of Louisiana, sitting
by designation.
 I.

On the evening of January 27, 1979, Sammy James and Patricia

Gaston2 were in bed at James' residence.3 The bedroom door opened

directly onto the front porch; and at about 9:00 p.m., someone

knocked on the door. When James went to the door, he saw Gray

there, with a gun in his hand.4 James testified that, when he

opened the door, Gray "told me he was going to blow my brains

out".5 According to James, he believed that, at that close range,

Gray was capable of carrying out the threat. Instead, Gray hit him

on the side of the head with the gun, and entered the bedroom,

holding the gun pointed at James. Gray struck Gaston with the

gun,6 and again struck James with the gun on his left forehead,

causing a gash which required stitches. Gaston saw Gray hit James

then, but did not see a weapon in Gray's hand.

2
Gaston died after the trial, which was held in 1979.
3
Gaston had previously lived with Gray, with whom James had
worked.
4
Gaston testified that, about two or three weeks earlier, she
and Gray got into an argument because she had gone out with someone
else. She did not want him to know who she had been out with, so
she lied and told him that she had been with James; at his request,
she took him to James' house.
5
Gaston testified that she heard a knock on the door, but did
not hear anyone say anything.
6
James testified that Gray hit Gaston two or three times;
Gaston, only once. Gaston saw Gray right after she was struck, but
did not see him strike her, because she was under the covers. She
testified that it felt like a hard object hit her; she did not know
what the object was, but stated that it did not feel like a hand.

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 After the two men struggled onto the front porch, Gray pointed

the gun and started to shoot, and James ran away. James testified

that he saw the flame (muzzle flash) when Gray fired, and James and

Gaston both testified that they heard three shots. (Both testified

that they were not armed.) James was not hit; he went to a

neighbor's house and called the police. Gaston testified that she

heard Gray come back into the house; her clothes, which were on a

chair in the bedroom, were not there when the police arrived; they

were later discovered in Gray's car.

While law enforcement officers were en route to the hospital

with James and Gaston, they saw Gray in his vehicle, coming back

toward James' house. When the deputy sheriff turned the lights on,

Gray increased his speed to avoid apprehension. The deputy pursued

Gray, who sped down the road to a dead end, left his car with the

motor running and the door open, and ran away through the woods.

Early the next morning, another deputy encountered Gray about five

miles from James' residence; Gray was arrested after James

identified him. A few days later, alongside the road in the

vicinity of where deputies had passed the car Gray was driving the

night of the incident, a deputy found a loaded gun, with four

expended cartridges, and a prescription bottle with Gray's name on

the label.

Gray was indicted in February 1979 for the attempted murder of

James. Trial was held that December; and, after the jury found

Gray guilty of attempted first degree murder, he was sentenced to

30 years imprisonment.

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 Gray's conviction was affirmed on direct appeal. State v.

Gray, 391 So. 2d 1184 (La. 1980).7 While that appeal was pending,

Gray filed a state application for post-conviction relief in July

1980, which apparently was rejected because his conviction was on

appeal. He filed for federal habeas relief in July 1981, asserting

that he had been denied a speedy trial. The district court's

denial of relief was affirmed by our court in early 1984, and the

Supreme Court denied certiorari that November. Gray v. King, 724

F.2d 1199 (5th Cir.), cert. denied, 469 U.S. 980 (1984).

In December 1985, Gray filed another state application for

post-conviction relief, which was dismissed in October 1986,

apparently because Gray had failed to use the printed application

form. In January 1987, Gray filed another state application,

asserting the same claims as in his 1985 application. The record

does not reflect any ruling on that application.

Gray filed the instant habeas application in late 1987,

presenting numerous issues. The magistrate judge found that the

delay in ruling on Gray's 1987 state application, and the State's

failure to offer any explanation for the delay, justified excusing

the exhaustion of remedies requirement.8 In May 1989, the district

court adopted the magistrate judge's recommendation, and dismissed

Gray's claims on the merits. On appeal, our court affirmed the

dismissal of most of the claims, but vacated that portion of the

7
The only issue raised was denial of the right to a speedy
trial.
8
The State does not claim abuse of the writ.

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judgment dismissing claims that Gray received ineffective

assistance of counsel and that the trial transcript had been

altered, and remanded for further proceedings on those claims.

Gray v. Phelps, No. 89-4435 (5th Cir. Oct. 17, 1990) (unpublished).

On remand, counsel was appointed to represent Gray. The

magistrate judge conducted an evidentiary hearing and again

recommended that relief be denied. Over Gray's objections, the

district court adopted the recommendation and dismissed the

petition. Gray appealed, and our court granted a certificate of

probable cause.

II.

"To obtain review of a state court judgment under [28 U.S.C.]

§ 2254, a prisoner must assert a violation of a federal

constitutional right". Lowery v. Collins, 988 F.2d 1364, 1367 (5th

Cir. 1993). Gray asserts a violation of the right to effective

assistance of counsel, contending that he was prejudiced by trial

counsel's failure to object to an erroneous jury instruction.9 The

Sixth Amendment, applicable to the States through the due process

clause of the Fourteenth Amendment, guarantees criminal defendants

the reasonably effective assistance of counsel.10 E.g., Johnson v.

9
Gray also contends that trial counsel was also ineffective in
failing to properly investigate the case and call certain witnesses
at trial, and that the trial transcript was altered. Because we
conclude that Gray is entitled to relief on the jury instruction
issue, we need not address the other two.
10
The Sixth Amendment provides: "In all criminal prosecutions,
the accused shall ... have the assistance of counsel for his
defence". U.S. Const. amend. VI.

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Blackburn, 778 F.2d 1044, 1049 (5th Cir. 1985); Ricalday v.

Procunier, 736 F.2d 203, 207 & n.4 (5th Cir. 1984).

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme

Court established the now well-known, two-part test for ineffective

assistance of counsel:

First, the [criminal] defendant must show that
counsel's performance was deficient. This requires
showing that counsel made errors so serious that
counsel was not functioning as the "counsel"
guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient
performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to
deprive the defendant of a fair trial, a trial
whose result is reliable.

Id. at 687. Generally, both components of this inquiry are mixed

questions of law and fact; accordingly, we generally "must make an

independent determination of whether counsel's representation

passed constitutional muster". Ricalday, 736 F.2d at 206.

A.

"In order to satisfy the first prong of the [Strickland] test,

the petitioner must show that counsel's acts `fell beneath an

objective standard of reasonable professional assistance.'"

Johnson v. Blackburn, 778 F.2d at 1049 (quoting Stokes v.

Procunier, 744 F.2d 475, 483 (5th Cir. 1984)). We "give great

deference to counsel's assistance, strongly presuming that counsel

has exercised reasonable professional judgment". Ricalday, 736

F.2d at 206.

It was settled long before Gray's trial in 1979 that, under

Louisiana law, the elements of attempted murder are (1) specific

intent to kill a human being, and (2) an overt act in furtherance

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thereof. State v. Butler, 322 So.2d 189, 192 (La. 1975) (citing

State v. Roberts, 213 La. 559, 35 So. 2d 216, 217 (1948)). State

v. Butler held that the specific intent to inflict great bodily

harm is not an alternative to the intent to kill element. Id. at

191-93.11 This notwithstanding, the jury was erroneously

instructed, without objection by Gray's counsel, that Gray could be

found guilty of attempted murder if he had either the intent to

kill or the intent to inflict great bodily harm:

[I]n order to convict of attempted first degree
murder, you must find that the defendant attempted
to kill Sammy James. And that the defendant had
the specific intent to kill or inflict great bodily
harm.

The jury also was instructed on the lesser offenses of attempted

second degree murder, attempted manslaughter, and aggravated

battery. None of those lesser offenses, as defined in the trial

11
In so doing, the Louisiana Supreme Court stated:

Murder requires a specific intent to kill or
to inflict great bodily harm. Such an intent will
be implied from the use of a deadly weapon--as by
stabbing or shooting the victim. A more difficult
burden of proof is imposed for a conviction of
attempted murder which requires a specific intent
to kill.... It is conceivable ... that a deadly
weapon may be used with a specific intent to maim
or seriously injure, rather than to kill. In such
a situation the defendant would be guilty of murder
if the victim died, but would not be guilty of
attempted murder if the shot or blow did not kill
the victim. By the nature of the attempt
definition a specific intent to commit the crime,
which may be more demanding than the intent
required for the completed offense, is an essential
element of that offense.

State v. Butler, 322 So.2d at 192 (internal quotation marks and
citation omitted).

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court's instructions, included as an element the intent to inflict

great bodily harm. Immediately thereafter, the jury was instructed

again that

[a]n essential element of the offense of attempted
first degree murder is specific criminal intent to
kill or inflict great bodily harm.

And once again, Gray's counsel did not object.

As noted, several years before Gray's trial, the Louisiana

Supreme Court held in State v. Butler not only that specific intent

to kill is an essential element of the crime of attempted murder,

but also, that an instruction permitting a jury to find an accused

guilty of attempted murder if it finds the accused "guilty of

either a specific intent to kill or of a specific intent to inflict

great bodily harm" is reversible error. 322 So. 2d at 191, 192-93.

Therefore, the failure by Gray's counsel to object to the erroneous

instruction "cannot be considered to be within the `wide range of

professionally competent assistance'". Ricalday, 736 F.2d at 207

(quoting Strickland, 466 U.S. at 690).

Indeed, in light of Louisiana jurisprudence, the State does

not contest Gray's assertion that the failure to object falls

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outside the range of professional competence.12 Instead, it asserts

that Gray was not prejudiced by the omission.

B.

"An error by counsel, even if professionally unreasonable,

does not warrant setting aside the judgment of a criminal

proceeding if the error did not prejudice the defense". Ricalday,

736 F.2d at 208. In order to demonstrate prejudice under this

second prong of the Strickland inquiry, Gray must demonstrate "that

there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome". Strickland, 466 U.S. at 694

(emphasis added).

Applying the prejudice standard to Gray's claim, we focus on

whether there is a reasonable probability that the jury would have

had a reasonable doubt respecting Gray's guilt if the phrase "or

inflict great bodily harm" had not been included in the charge.

See Ricalday, 736 F.2d at 208. In other words, "[t]he question is

whether, from all the evidence, the jury could have had a

reasonable doubt concerning [Gray's] intent to kill, and could have

12
The State does not claim waiver, pursuant to the
contemporaneous objection rule; nor does it assert that, for
strategic reasons, Gray's counsel intentionally did not object.
(Like Gaston, Gray's trial counsel is dead. There is nothing in
the record as to why he did not object.) Instead, it stated at
oral argument that, had this error been raised on direct appeal,
the conviction would have been reversed. See text infra for a
discussion of Louisiana authority which arguably holds implicitly
that an ineffective assistance of counsel claim of the type in
issue here is not subject to this form of waiver claim.

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convicted him of intent to cause [great] bodily [harm]". Ricalday,

736 F.2d at 208.

As stated, the evidence was that Gray appeared at James' door

with gun in hand and told James that he was going to "blow [his]

brains out". But, instead of immediately firing the gun in order

to carry out that threat, Gray struck James on the head with it.

That first blow caused only a bruise. Later, Gray again struck

James in the forehead with the gun, causing a gash that required

about six stitches. After the men struggled onto the porch, Gray

pointed the gun at James and, at close range, fired three shots.

Although James responded affirmatively when asked if he saw "the

flame coming out of the gun ... in [his] direction", none of the

shots struck him.

The jury plausibly could have interpreted this evidence in at

least two ways: (1) Gray intended to kill James by shooting him

with the gun, but did not succeed; or (2) Gray intended to inflict

great bodily harm on James by striking him and shooting him with

the gun. Considering the circumstances, including the fact that

Gray did not take advantage of several golden opportunities to kill

James if he had intended to do so, we think there is at least a

reasonable probability that the jury could have had a reasonable

doubt about Gray's intent to kill, and that it convicted him

instead on the basis of the erroneous instruction, because it found

that he had the intent to inflict great bodily harm.

The State acknowledges that the Louisiana courts have found

prejudice based on similar omissions by counsel. See State v.

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Rubin, 559 So. 2d 550 (La. App. 2d Cir. 1990); State v. Carter, 559

So. 2d 539 (La. App. 2d Cir. 1990); State v. Ball, 554 So. 2d 114

(La. App. 2d Cir. 1989). It attempts to distinguish those cases on

the ground that, in addition to the erroneous instruction, either

the prosecutor, defense counsel, or both, argued to the jury that

the defendants could be convicted of attempted murder if they acted

with the intent to inflict great bodily harm. The State points out

that, in this case, neither the prosecutor nor defense counsel

emphasized the erroneous instructions, and both argued to the jury

that, in order for Gray to be convicted of attempted first degree

murder, the State had to prove intent to kill.13

13
In his opening statement, the prosecutor told the jury:

Before proceeding, I want to read again to you the
definition of attempted murder. It is very
important that you understand the law. Attempted
murder is really found in two sections of our Code,
in the murder Article and in the attempt Article.
Murder is defined in Section 30 of our Criminal
Code as the killing of a human being when the
offender has the specific intent to kill or to
commit great bodily harm. That would be a murder.
Specifically intending to kill and then killing
someone. This is not a murder charge, it's an
attempted murder charge, so we have to look at
another section of the Code, Section 27, which
defines attempt. Any person who has the specific
intent to commit a crime and does an act for the
purpose of and tending directly toward
accomplishing his object is guilty of an attempt to
commit the crime. Combining these, the State
contends that the defendant, Dewey Spencer Gray,
had the specific intent to kill Sammy James and did
an act directly toward accomplishing that object.
The State will show you that the defendant pointed
a gun at Sammy James -- it was loaded -- and fired
at him three times. That will constitute attempted
murder.

During closing argument, the prosecutor stated:

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 Has the State of Louisiana proven the elements of
attempted first degree murder? As you will recall,
first degree murder requires a specific intent to
kill. Has the State shown first of all that the
defendant Dewey Spencer Gray had a specific intent
to kill.... So, did the State prove specific
intent. Well, of course. How? By the
circumstances. The defendant comes up uninvited to
a man's house, comes in, says I'm going to blow
your head off, points a gun at him, pistol whips
him, makes the man flee his own home and shoots at
him. I think that's pretty good evidence he had
the specific intent to kill the man. What better
words can be used to describe I'm going to kill you
than I'm going to blow your head off.... The
second part of the State's proof is did we show
that the man having the specific intent did an act
directly in furtherance of his objective, that is
to kill. Well of course he did. When you point a
loaded dangerous weapon at someone after you've
beat them with it, point it -- and after you've
told them you're going to kill them -- when you
point it at him and shoot it three times, it's a
pretty good idea that you're doing something in
furtherance of killing the man. So the State has
proven, it's submitted, beyond a reasonable doubt
that Dewey Spencer Gray had the specific intent to
kill and did an act in furtherance of it, that is
shooting a loaded weapon at the victim Sammy James.

Gray's trial counsel argued:

You heard Sammy James tell you and me that he and
this defendant were no further apart than that
chair and [the prosecutor] here. He had a pistol
that he shot three times. Did he really want to
kill him? He could have done it. That was not a
bonafide honest to goodness attempt. He did beat
up on him and that's what he intended to do and
that's aggravated battery. It's not responsive to
a charge of attempted murder.... He didn't attempt
-- he didn't have any intention of killing him. He
had too much opportunity to do so if he'd wanted
to. He came there because this scene was set up by
this girl with whom both of them had been taking
their pleasures and she freely admitted it and she
helped set the stage. And that was simply and
solely his whole intent. His whole intent was to
beat up on him and try to get him out of this
triangle.... He did not really attempt to kill

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 Considering the evidence and the instructions as a whole, we

cannot conclude that the prejudice resulting from counsel's failure

to object to the erroneous instruction was cured simply by counsel

stating the law correctly to the jury. Twice, the jury was

instructed that it had a duty to follow the court's instructions

regarding the law to be applied. Prior to opening statements, the

trial judge instructed the jurors:

I will instruct you to what the law that is
applicable to this case is. Then you will retire
to consider your verdict. As jurors you are the
judges of the facts.... As I indicated earlier, I
will later instruct you as to what the law is. And
it will be your duty to accept the instructions of
the law as given and then apply the[m] to the facts
that you find.

Sammy James because he could easily have done so.
He simply wanted to beat up on him and get him out
of the triangle. That is not attempted murder....

During his final closing argument, the prosecutor again argued
that Gray intended to kill James:

The charge was attempted murder. What is the
difference between attempted murder and aggravated
battery -- well, battery -- although it wasn't read
to you -- the definition of battery is when you
just intend to touch someone with a dangerous
weapon. That's not what this was. It all comes
back to what is intent. What intent was shown? If
the man wanted to commit a battery, would he have
fired at the man, trying to kill him. Would he
have said, I'm going to blow your brains out -- of
course not. The mere fact that [defense counsel]
mentions that the shooting only took place after
the man came in and after Sammy James started
running doesn't make it any less an attempted
murder. There were shots fired from that gun. The
shots were preceded with the words, I'm going to
blow your head off. The gun was pointed to the
defendant. Sure the man waited around and pistol
whipped a few people. Does that make it any less
of an attempted murder -- certainly not.

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And, during the charge, which was given after closing arguments and

just before the jury retired to deliberate, the court instructed

the jury:

[I]t is my duty to instruct you on the law that
applies to your deliberations. It is your duty to
follow these instructions in reaching your verdict.
Although you are the sole judges of the law and the
facts on the question of guilt[] or innocence, you
have a duty to accept and apply the law that the
Court gives you.... Statements and arguments made
by the attorneys are not evidence and are not to be
considered as such. In the opening statement, the
attorneys are permitted to familiarize you with
facts they expect to prove. In closing arguments,
the attorneys are permitted to present for your
consideration their contentions regarding what the
evidence has shown or not shown and what
conclusions they think may or should be drawn from
the evidence. The opening statements and closing
arguments are not to be considered as evidence.

It is more than well-settled that "juries are presumed to

follow their instructions". Zafiro v. United States, ___ U.S. ___,

113 S. Ct. 933, 939 (1993) (quotation marks and citation omitted).

Here, we can find no valid basis for disregarding that established

presumption. Accordingly, we cannot conclude that the jurors

ignored the court's erroneous instructions and chose, instead, to

apply the law as stated correctly by counsel. Under the court's

instructions, the jury could have convicted Gray for attempted

first degree murder on the basis of a finding that he had the

intent to inflict great bodily harm, even if it had a reasonable

doubt that he had the specific intent to kill James. Therefore,

Gray has demonstrated prejudice "sufficient to undermine confidence

in the outcome" of his trial. No more is required.

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 III.

For the foregoing reasons, the decision of the district court

denying Gray's habeas application is REVERSED, and this matter is

remanded with instructions that the district court grant the writ

unless the State of Louisiana commences a new trial within 120 days

following the issuance of this court's mandate.

REVERSED and REMANDED

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