On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Crim. No. 87-00025.
Sloviter, Becker and Scirica, Circuit Judges.
Appellant Tyrone Gray appeals from the order of the district court denying his motion to vacate, set aside or correct sentence under 28 U.S.C. 2255 on the ground of ineffective assistance of counsel. Gray's claim was based, inter alia, on his trial counsel's failure to conduct any pre-trial investigation, hire an investigator to conduct such investigation, or contact potential witnesses. We have jurisdiction under 28 U.S.C. 1291.
"The issue of whether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. We are therefore not bound by the clearly erroneous rule and we may freely review the district court's conclusion." Morrison v. Kimmelman, 752 F.2d 918, 923 (3d Cir. 1985), aff'd, 477 U.S. 365, 91 L. Ed. 2d 305, 106 S. Ct. 2574 (1986) (citations omitted). Application of the two-pronged test for ineffective assistance of counsel defined in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), "'requires courts carefully to examine trial records in light of both the nature and seriousness of counsel's errors and their effect in the particular circumstances of the case.'" McNeil v. Cuyler, 782 F.2d 443, 449 (3d Cir.) (quoting Strickland, 466 U.S. at 702 (Brennan, J., concurring in part and dissenting in part)), cert. denied, 479 U.S. 1010, 93 L. Ed. 2d 709, 107 S. Ct. 654 (1986). We thus begin with a detailed examination of the record at trial and at the post-trial evidentiary hearing on the ineffectiveness claim.
Facts and Procedural History
Gray was indicted on February 5, 1987 under 18 U.S.C.App. 1202 (1982) (repealed and recodified as amended at 18 U.S.C. 922(g) (1987 Supp.)), for possession of a firearm as a convicted felon. Gray admittedly had possession of a weapon, and before trial stipulated to both the interstate commerce and prior felony aspects of the offense. At trial Gray presented the affirmative defense of self-defense, maintaining that he had taken the firearm from an assailant in the heat of a fight and that the exigencies of the situation justified his possession of it when he was apprehended by the police.*fn1 The jury returned a verdict of guilty against the defendant, and the District Court for the Western District of Pennsylvania sentenced Gray to the mandatory minimum sentence of fifteen years imprisonment because Gray had three or more prior violent felony convictions, see 18 U.S.C. 924(e) (1987 Supp.)
Gray's conviction arose out of his arrest on August 23, 1986 by two Pittsburgh police officers who were called to the scene of the fight and who discovered a .22 caliber automatic pistol and twelve rounds of ammunition fitting this gun in the pockets of Gray's pants during a pat-down search. Gray was originally charged under state law, but these charges were subsequently dropped in favor of the federal indictment. The case proceeded to trial in federal district court on March 31, 1987, seven months after Gray's arrest. Gray was represented by attorney Michael Witherel, who was appointed by the court on February 10, 1987.
The government first called Officer George Roeschenthaler, who testified that he and his partner, Officer Carl Finkbeiner, responded to a "disturbance on the street" call at approximately 6:15 p.m. on August 23, 1986. Supp.App. at 2. They proceeded to a bar named Mecrecco's in the "North Side" neighborhood of Pittsburgh. Officer Roeschenthaler testified that on their arrival at the scene there was a crowd of twenty to twenty-five people assembled outside the bar in pouring rain. One member of the crowd stated, "'It's all over now,'" and another shouted, "'Watch out, he's got a gun.'" Supp.App. at 3. Someone pointed at an individual walking down the street, and stated that he had a gun. Roeschenthaler testified the individual designated was approximately "50 or 60 yards away" from the crowd. Id.
Roeschenthaler testified that he began to walk towards the individual, who hastened his steps when he saw the officer approaching. Roeschenthaler began to run and immediately caught up to him and began to pat him down. Feeling a bulge in the right rear pocket of the individual's pants, the officer reached inside and discovered a loaded .22 caliber stainless steel automatic pistol. By this time, Officer Finkbeiner had approached, and he continued the pat-down search and discovered twelve live rounds of loose ammunition in a front pocket of the individual's pants. Officer Roeschenthaler identified the defendant Gray as the person apprehended.
On further questioning, Roeschenthaler stated that although people had come out of the houses and businesses lining the street on which Gray was walking, so that there were people "all along" the street, Supp.App. at 8, 11, Gray was not near any other individual at the time that the officers arrived at the scene and was "away from the crowd." Supp.App. at 7. Furthermore, Gray was not injured and bore no other signs of having just been in a fight, though he did appear intoxicated. His lower trousers were not wet so that it did not appear that he had been "on the ground or fighting or rolling around." Supp.App. at 7.
Officer Finkbeiner testified next. Finkbeiner's testimony largely matched Roeschenthaler's. As Finkbeiner explained, "On our arrival it was raining pretty hard, and there was a fairly large crowd in the middle of the street and on the sidewalk. . . . Somebody says that everything was over, everything was okay, it was cool, and then somebody yelled that a man walking down the street had a gun. So Officer Roeschenthaler proceeded down, he called to the fellow, and the fellow walked a little bit faster than he was at first. He stopped him . . . patted him down and he brought defendant back with the gun." Supp.App. at 16-17. Finkbeiner remained behind and asked questions of Mr. Mecrecco, the bartender, who had been one of the people in the crowd to warn the officers that Gray had a gun and whom Finkbeiner knew from his years of service as a police officer on the North Side. Before arresting Gray and loading him in the police van, Finkbeiner took a turn frisking him and discovered twelve loose live rounds of ammunition in a front pocket. Someone identifying himself as a relative of Gray's came up to the officers and asked to take Gray home, but the officers explained that they could not release him because of the gun.
On cross-examination, Finkbeiner continued to insist that there were no signs of a scuffle in progress when the officers arrived at the scene and that Gray was walking away, forty to fifty yards from the crowd, Supp.App. at 23, or thirty to forty yards away, Supp.App. at 26, at the time Finkbeiner first noticed him. Finkbeiner acknowledged that the department had not tested the gun found on Gray for fingerprints.
The government's last witness was William J. Oterson, a special agent with the federal Bureau of Alcohol, Tobacco and Firearms in Pittsburgh, who testified that Gray had called him several times during the course of the preparation of the federal indictment to ask questions about why the state charges brought against him were being dismissed in favor of federal charges and what the possible penalties under federal law would be. Oterson stated that Gray did not tell him that he had taken the gun from someone else in a fight until Gray gave Oterson his formal statement on February 10, 1987, which Oterson read into the record. In this statement, Gray claimed that he had taken the gun and ammunition in the course of a fight after they fell from the pocket of the individual he was fighting with, whose name he did not know. Oterson further testified that the gun in question had been traced to a purchase in 1982 in Alabama by an individual named Reba McComb, and had never been reported stolen.
On the next day of trial, counsel for the government explained to the court that Gray's counsel had the day before provided the government with a statement made by Officer Finkbeiner in a preliminary hearing held in state court on the state charges, in which Finkbeiner presented a version of the incident which differed substantially from the version to which he had just testified at trial. Finkbeiner was therefore recalled to the stand.
Finkbeiner's new testimony, based on his review of his sworn statement given on September 18, 1986, was that, upon the officers' arrival at the scene of the disturbance on August 23, 1986, Finkbeiner in fact had observed two men in the process of fighting in the middle of the street. Finkbeiner rolled down the window on his side of the police van and told the two men to break it up. The two men were "[ten], fifteen feet" away from the officers, Supp.App. at 59, not thirty to forty yards away as Finkbeiner had testified the day before. When the two men persisted in fighting, the two officers got out of their vehicle and Roeschenthaler took Gray over to the van. The bartender from the bar came over to Finkbeiner and warned him that Gray had a gun. Roeschenthaler frisked Gray and discovered the .22 caliber pistol in his right rear pocket. Finkbeiner then discovered the twelve rounds of ammunition in a front pocket.
Finkbeiner explained that his testimony at trial the day before contradicted his description of the incident as he now recalled it because his earlier trial testimony had been based on his review of a statement he had given Agent Oterson several months after the incident occurred. Officer Roeschenthaler was then recalled to the stand and stated that his testimony of the day before was from present recollection and that he had nothing to add in light of Finkbeiner's renunciation of his earlier testimony. The government rested its case.
The defense called as its first witness the public defender who represented Gray in the preliminary hearing in state court. This witness testified that Gray told her on September 18, 1986 that he had taken the gun found on him from another person in the course of a fight.
Gray's second witness was his brother, Sherwood Robinson, who had apparently been sequestered by government request during the prior testimony. Trial Transcript at 16. Robinson testified that August 23, 1986 had been his fortieth birthday, and he and Gray had gone out to celebrate it. The two went to Mecrecco's, a bar Robinson often frequented, and began to shoot pool and drink. After an hour or two, Gray left the bar to get some air. Robinson remained inside until the bartender told him that his companion was outside fighting. Robinson ran outside and saw his brother and another man fighting on the ground on the sidewalk in front of the bar. Robinson testified that he saw a silver object, a gun, and bullets laying around it on the sidewalk, and witnessed his brother and the other individual reaching for it. Robinson ran up behind Gray and attempted to pull him away. Gray grabbed the gun and the bullets from the ground and told the man he was fighting with, in obscene language, that he intended to make him eat the gun. Robinson testified that he continued to restrain Gray and Gray, while retaining his hold on the gun, continued to struggle against him and demand that his brother let him go. The man with whom Gray had been fighting hit Gray in the face and ran away. "About a minute" later, Supp.App. at 89, while Robinson was still struggling with his brother, the police arrived. Robinson told Gray to put the gun in his pocket and went back inside the bar. A short time later he was told that his brother had been arrested.
On cross-examination, Robinson testified that he did not know the man with whom his brother had fought and had never seen him before, that both he and his brother "were high" at the time of the incident due to their alcohol consumption, and that he did not go back to ...