UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-30019
_____________________
GEORGE PRATT, JR.,
Petitioner-Appellee,
versus
BURL CAIN, Warden, Louisiana State Penitentiary,
Respondent-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________________________________________________
May 20, 1998
Before BARKSDALE, BENAVIDES, and DENNIS, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
In this challenge to habeas relief conditionally granted to
George Pratt, Jr., at issue is whether, pursuant to LA. CODE CRIM.
PROC. ANN. art. 770 (West 1981) (mistrial for objected-to references
by the State to inadmissible evidence of other crimes committed by
the defendant), Pratt’s counsel’s failure to object to the
prosecutor’s references to Pratt’s involvement with illegal drugs,
both in questions on cross-examination of Pratt and during rebuttal
closing argument, constitutes ineffective assistance of counsel,
violative of the Sixth Amendment. The district court concluded
that it did. We REVERSE and RENDER.
I.
A Louisiana jury convicted Pratt for the second degree murder
of Leo Washington. State v. Pratt, 653 So. 2d 174, 176 (La. Ct.
App.), writ denied, 662 So. 2d 9 (La. 1995). The State presented
evidence that, on 19 November 1992, in a parking lot in Monroe,
Louisiana, Washington demanded payment from Pratt for cocaine
seized by police due to Pratt’s being an informant; that, when
Pratt claimed he could not pay, Washington began hitting Pratt in
the head; that Pratt pulled a gun from his back pocket and fired it
at Washington, who was unarmed and ran; that, while firing the gun,
Pratt pursued Washington; that Pratt followed Washington into a
nearby residence, firing once while inside; and that Washington
died of a single gunshot wound to the chest. Id. at 175-76.
Along this line, the theory of the defense was that Washington
and his family were involved in drug-trafficking; that Pratt,
acting as an informant for the Houston, Texas, Police, had caused
the arrest of two of Washington’s nephews and the loss of the
cocaine; and that the fight and shooting arose out of Washington’s
demand that Pratt pay him $10,000 for the lost cocaine. See id. at
175.
The following testimony was presented at Pratt’s trial. On
cross-examination of the State’s first witness, Pratt’s counsel
elicited evidence that Washington’s two nephews were in jail in
Houston on a cocaine charge. On cross-examination of another of
the State’s witnesses, Bessie Washington (the victim’s sister),
Pratt’s counsel asked whether any of the persons involved used
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drugs; and whether the homicide arose out of problems stemming from
the arrest of Washington’s nephews. And, on cross-examination of
the State’s final witness, Monroe Police Detective Kerry Black,
Pratt’s counsel elicited evidence that Bessie Washington had told
Detective Black that there was “bad blood” between Pratt and the
Washington family stemming from a cocaine arrest in Houston.
Pratt testified in his own defense. On direct examination,
his counsel elicited testimony that Washington thought Pratt owed
him $10,000, because Pratt had informed on Washington’s nephews and
caused their arrest, as well as confiscation of two “big bags” of
cocaine; that Pratt had a prior conviction for attempted possession
of cocaine in 1989; and that Pratt was “on drugs” in 1986 or 1987.
The following exchange occurred on cross-examination of Pratt:
Q. The two nephews that got arrested in
Houston, you went with them over there
didn’t you?
A. Sir?
Q. You went with the two nephews to Houston
didn’t you?
A. Yes, sir.
Q. You were also going over there to get
some drugs weren’t you?
A. No, sir.
Pratt’s counsel did not object.
In closing argument, Pratt’s counsel stated:
Quite candidly perhaps Leo [Washington]
deserved it. Leo Washington, I believe it is
clear, was a drug dealer. My client was an
informant, informed on Leo’s money, Leo’s two
cousins who are in jail in Texas. Leo didn’t
like that. Leo frightened my client.
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....
[Leo] [g]ot in an argument, over dope money
that he lost, his $10,000. Drug dealers ...
get killed when they’re trying to pressure
informants, when they’re trying to pressure
people, and that’s what happened here.
During rebuttal closing argument for the State, the prosecutor
stated:
[Pratt’s] on trial for murder. He’s not going
to get up on that stand and tell you that he’s
not a drug dealer. What’s not clear from the
testimony that his attorney brought out at
trial is why was Leo Washington asking him for
$10,000.00 if he just went to Houston to visit
some of Leo’s relatives. If he wasn’t
involved in something himself why would he
even give Leo some money. Why? It doesn’t
make sense. It’s a smoke screen. You still
can’t kill somebody regardless of what you may
think about Leo [Washington]. The defense has
put Leo Washington on trial. He is not on
trial, he was a living, breathing human being.
He’s no longer a living, breathing human
being, he’s dead. He can’t come into this
courtroom and he can’t talk to you and tell
you what he was thinking or he can’t tell you
that George Pratt was the one involved with
drugs.
(Emphasis added.) Pratt’s counsel did not object to the references
to drugs.
Pratt was sentenced to life in prison without benefit of
probation, parole, or suspension of sentence. After obtaining new
counsel, he moved for a new trial, on the ground that his trial
counsel rendered ineffective assistance by failing to object: to
the State’s cross-examination of Pratt about accompanying
Washington’s nephews to obtain drugs; and to the State’s rebuttal
closing argument, in which Pratt was referred to as a drug-dealer.
Pratt maintained that a mistrial would have been granted had
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counsel objected. After conducting a hearing, the trial court
denied the motion.
Pratt appealed, claiming error in the denial of his new trial
motion. Noting that an ineffective assistance claim is usually
properly raised in seeking collateral relief, the state court of
appeal found the record sufficient to instead consider the claim on
direct appeal. Pratt, 653 So. 2d at 176. The court affirmed,
holding that, even assuming the prosecutor’s response to Pratt’s
evidence and argument was improper and Pratt’s counsel rendered
deficient performance by not objecting, Pratt had not demonstrated
a reasonable probability that, but for the State’s references to
other crimes, the outcome would have been different. Id. at 177-
78. The court stated: “[E]ven if counsel had moved for a mistrial
and it had been granted, there is no reasonable probability that
the outcome of a new trial would have been different”. Id. at 178.
The Louisiana Supreme Court denied Pratt’s application for a writ
of certiorari. State v. Pratt, 662 So. 2d 9 (La. 1995).
In March 1996, Pratt filed for federal habeas relief, raising
the same ineffective assistance claim: that his trial counsel’s
performance was deficient, because he failed to object when the
prosecutor referred to uncharged drug-dealing, both during cross-
examination and in closing argument; and that he was prejudiced by
that deficient performance, because, under state law, an objection
would have resulted in a mandatory mistrial.
Concluding both that an evidentiary hearing was not necessary
and that the state court records provided a sufficient basis for
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resolving the sole issue presented, the magistrate judge
recommended habeas relief, on the basis that Pratt’s trial
attorney’s performance was deficient when he failed to object to
the prosecutor’s remarks and ask for a mistrial; and that Pratt had
shown prejudice, because an objection would have resulted in a
mandatory mistrial. The district court overruled the State’s
objections to the recommendation, and ordered that Pratt be
discharged from custody unless the State rearraigned him within 60
days after the date of the judgment.1
II.
The Supreme Court’s “decisions have emphasized that the Sixth
Amendment right to counsel exists ‘in order to protect the
fundamental right to a fair trial.’” Lockhart v. Fretwell, 506
U.S. 364, 368 (1993) (quoting Strickland v. Washington, 466 U.S.
668, 684 (1984)).
[T]he right to the effective assistance of
counsel is recognized not for its own sake,
but because of the effect it has on the
ability of the accused to receive a fair
trial. Absent some effect of challenged
conduct on the reliability of the trial
process, the Sixth Amendment guarantee is
generally not implicated.
United States v. Cronic, 466 U.S. 648, 658 (1984).
1
Although the State timely appealed, it did not seek a
stay of the district court’s order, and kept Pratt in custody
beyond the 60-day limit before rearraigning him. In his brief,
Pratt contended that the State’s institution of a new prosecution
mooted this appeal. At oral argument, however, he conceded that it
is not moot. See Calderon v. Moore, 518 U.S. 149 (1996). As noted
by counsel at oral argument, Pratt, of course, will not be re-tried
unless we affirm the habeas relief.
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The standard for prevailing on an ineffective assistance of
counsel claim is well-known. Pratt was required to show “that
counsel’s performance was deficient” and “that the deficient
performance prejudiced the defense”. Strickland, 466 U.S. at 687.
Of course, Pratt must succeed on both prongs. In maintaining that
Pratt was not denied his right, under the Sixth Amendment, to
effective assistance of counsel, the State contends that not
objecting to the prosecutor’s references to Pratt’s involvement
with drugs was part of a sound trial strategy (therefore, no
deficient performance); and, in the alternative, that the district
court erroneously interpreted Louisiana law as mandating a mistrial
had Pratt’s counsel so objected (therefore, no prejudice).
An ineffective assistance claim presents mixed questions of
law and fact; accordingly, we review de novo the conclusion that
Pratt received ineffective assistance of counsel. E.g., Earhart v.
Johnson, 132 F.3d 1062, 1065 (5th Cir. 1998); Ricalday v.
Procunier, 736 F.2d 203, 206 (5th Cir. 1984). In this regard,
because Pratt filed his habeas petition prior to 24 April 1996, the
effective date of the Antiterrorism and Effective Death Penalty Act
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), pre-AEDPA law
applies. See Green v. Johnson, 116 F.3d 1115 (5th Cir. 1997).
And, although state court findings of fact made in the course
of deciding an ineffective assistance claim are presumptively
correct under pre-AEDPA 28 U.S.C. § 2254(d), determinations
regarding the adequacy of counsel’s performance and prejudice are
mixed questions of law and fact to which that presumption does not
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apply. See Westley v. Johnson, 83 F.3d 714, 720 (5th Cir. 1996),
cert. denied, ___ U.S. ___, 117 S. Ct. 773 (1997); Amos v. Scott,
61 F.3d 333, 348 (5th Cir.), cert. denied, 516 U.S. 1005 (1995).
Therefore, we must independently review the state appellate court’s
conclusion that Pratt did not receive ineffective assistance of
counsel.
The district court’s conclusion that Pratt’s trial counsel’s
performance was deficient because he did not object to the State’s
questioning and argument regarding Pratt’s alleged involvement with
drugs, and that Pratt was prejudiced by that deficient performance,
was premised on LA. CODE CRIM. PROC. ANN. art. 770 (West 1981). The
court ruled that, under Article 770, and had counsel objected, a
mistrial would have been mandatory. Article 770 provides, in
pertinent part:
Upon motion of a defendant, a mistrial
shall be ordered when a remark or comment,
made within the hearing of the jury by the
judge, district attorney, or a court official,
during the trial or in argument, refers
directly or indirectly to:
....
(2) Another crime committed or alleged to
have been committed by the defendant as to
which evidence is not admissible....
....
An admonition to the jury to disregard
the remark or comment shall not be sufficient
to prevent a mistrial. If the defendant,
however, requests that only an admonition be
given, the court shall admonish the jury to
disregard the remark or comment but shall not
declare a mistrial.
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The State contends that, because the failure to object was
part of a sound trial strategy, the district court erroneously
found deficient performance; and, in the alternative, that Pratt
was not prejudiced, because the court misinterpreted Article 770 as
mandating a mistrial had counsel objected.
A.
To prove deficient performance, the first of the two prongs
for satisfying a constitutional ineffective assistance claim, Pratt
must show that his counsel’s actions “fell below an objective
standard of reasonableness”. Strickland, 466 U.S. at 688. “Our
scrutiny of counsel’s performance is highly deferential, and we
must make every effort 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”. Pitts v. Anderson, 122 F.3d 275, 279 (5th Cir. 1997)
(brackets, internal quotation marks, and citation omitted).
In other words, Pratt must overcome the “strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance”. Williams v. Cain, 125 F.3d 269, 276 (5th
Cir. 1997) (internal quotation marks and citation omitted). “A
conscious and informed decision on trial tactics and strategy
cannot be the basis for constitutionally ineffective assistance of
counsel unless it is so ill chosen that it permeates the entire
trial with obvious unfairness”. Green v. Johnson, 116 F.3d 1115,
1122 (5th Cir. 1997) (internal quotation marks and citation
omitted).
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As noted, the issue at hand was presented in state court on
direct appeal, not habeas review. And, the record in district
court consisted only of the state court record. In short, for
collateral review purposes, no new evidence, such as an affidavit
by Pratt’s trial counsel, was made part of the record.
In any event, the apparent defense strategy was to negate the
crime of murder, or to reduce it to manslaughter, by portraying the
victim, Washington, as a drug-dealer who provoked the shooting by
demanding that Pratt repay $10,000, the value of cocaine allegedly
lost when Washington’s nephews were arrested after Pratt allegedly
informed the police about their drug-dealing. It would seem
Pratt’s counsel knew that, by employing this strategy, including by
asking Pratt on direct examination about his involvement with
drugs, the State would — and could, as discussed infra — make
references, as it did, to Pratt’s drug-activities.
In the light of the strong evidence that Pratt committed
second degree murder — after all, he chased Washington, who was
unarmed, into a house, shooting at him several times — it is quite
arguable that Pratt has not overcome the strong presumption that
his counsel exercised reasonable professional judgment in employing
such strategy. As the state trial court noted in denying Pratt’s
new trial motion, the strategy was almost successful: the jury
voted only ten-to-two to convict.
B.
But, even assuming that the failure to object was not part of
a sound legal strategy and that, therefore, Pratt has shown
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deficient performance, he must, of course, still show prejudice.
To prove prejudice, the second prong, Pratt must show that “there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different”.
Strickland, 466 U.S. at 694 (emphasis added). A “reasonable
probability” is a probability sufficient to undermine confidence in
the outcome of the proceeding. Id.
When distilled, the prejudice question becomes whether,
because Pratt’s counsel did not object, Pratt was deprived of the
procedural right, vested by Article 770, to a mistrial/new trial.
In this regard, the application in Lockhart of the Strickland
prejudice prong guides the way. Lockhart reminds that the
prejudice prong
focuses on ... whether counsel’s deficient
performance renders the result of the trial
unreliable or the proceeding fundamentally
unfair. Unreliability or unfairness does not
result if the ineffectiveness of counsel does
not deprive the defendant of any substantive
or procedural right to which the law entitles
him.
Lockhart, 506 U.S. at 372 (citations omitted).
Admittedly, Article 770 — “[u]pon motion of a defendant, a
mistrial shall be ordered” — appears to mandate a mistrial whenever
a prosecutor refers to inadmissible evidence of another crime
alleged to have been committed by the defendant, and the defendant
so moves. However, the rule has not been interpreted or applied
quite so broadly.
In State v. Gay, the Louisiana Court of Appeal for the Second
Circuit addressed a Sixth Amendment ineffective assistance of
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counsel claim based, in part, on counsel’s failure to object and
move for a mistrial under Article 770, when the prosecutor referred
to other alleged crimes committed by the defendant. State v. Gay,
616 So. 2d 1290, 1295-98 (La. Ct. App.), writ denied, 624 So. 2d
1223 (La. 1993). The court stated in that case: “To be within the
scope of Article 770(2), the remark complained of must be an
unambiguous reference to crimes alleged to have been committed by
the defendant”. Id. at 1296-97. Of course, as noted in that case,
there are exceptions to Article 770's mandating mistrials.
First, “the Louisiana Supreme Court has held that failure to
grant a mistrial is not reversible error when the question asked is
purely ‘interrogatory’....” State v. Cotten, 438 So. 2d 1156, 1161
(La. Ct. App. 1983) (quoting State v. Anderson, 358 So. 2d 276 (La.
1978); State v. Hatch, 305 So. 2d 497 (La. 1974), cert. denied, 423
U.S. 842 (1975); and State v. Huizar, 414 So. 2d 741 (La. 1982)),
writ denied, 444 So. 2d 606 (La. 1984).
Second, “references to inadmissible evidence of other crimes
do not apply to evidence of words or actions which form an integral
part of the charged offense, formerly res gestae”. State v. Gay,
616 So. 2d at 1297.
Third, as referenced in note 2 infra, “a mistrial is not
mandated where, considering the totality of the evidence, there is
no reasonable probability that, absent the error, the trier of fact
would have had a reasonable doubt respecting the defendant’s
guilt....” Id.; see also State v. Johnson, 622 So. 2d 845, 852
(La. Ct. App. 1993) (prosecutor’s reference in closing argument to
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uncharged crime of possession of cocaine with intent to sell was
not so prejudicial as to warrant a mistrial).
And, fourth, the rule does not apply “when the defendant has
‘opened the door’ to evidence of other crimes.” State v. Gay, 616
So. 2d at 1297; see also State v. Cotten, 438 So. 2d at 1162-63
(where defendant testified on direct examination about his previous
arrest record, questions posed by prosecution about such arrests
“do not constitute impermissible references to other crimes” and
Article 770(2) is inapplicable). In other words, “[a] mistrial is
not required when the prosecutor’s references or questions can be
classified as responsive to an issue which the defendant himself
has brought into the case”. State v. Gay, 616 So. 2d at 1297.
Obviously, the latter exception is particularly relevant here.
Pratt’s counsel introduced evidence of drug-dealing into the case,
through cross-examination of the State’s witnesses and in Pratt’s
case-in-chief. Especially significant is Pratt’s testimony on
direct examination that he was “on drugs” in 1986 or 1987; that he
was convicted of attempted possession of cocaine in 1989; and that
there was “bad blood” between him and Washington, because
Washington thought Pratt had informed on his nephews, causing their
arrest and the loss of $10,000 worth of cocaine. Finally, in
closing argument, Pratt’s counsel argued that Washington “perhaps”
deserved to be murdered because he was a drug-dealer.
Under these circumstances, the State’s cross-examination of
Pratt regarding whether he accompanied Washington’s nephews to
obtain drugs, and the prosecutor’s characterizations, during
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closing argument, of Pratt as a drug-dealer were responsive to
Pratt’s evidence and argument, which attempted to portray
Washington as a drug-dealer and Pratt as, instead, an innocent
informant. In short, the challenged State conduct falls outside
the prohibition of Article 770(2).
Accordingly, had an objection been made, it would not have
resulted in a mistrial. Therefore, Pratt was not deprived of a
procedural right to one. There was no prejudice.2
III.
For the foregoing reasons, the judgment granting habeas relief
is REVERSED, and judgment is RENDERED denying Pratt habeas relief.
REVERSED and RENDERED
2
Left for another day, in another case, is the following
possible question, prompted in part by one of the earlier-discussed
state court exceptions to application of Article 770(2) and by
possible tension between state rules of procedure and federal
habeas constitutional fundamental fairness questions, as well as by
possible tension between Strickland and Lockhart: even when the
procedural right to a mistrial is shown pursuant to Article 770(2),
does this concomitantly satisfy the requisite Strickland
unconstitutional prejudice prong?
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