Appendix — Armontrout v. Chambers

r Supreme Co@rt, U.S. |

LA | :

90-495 FILED

No 90- SFP 5 1990

JOSEPH F. SPANIOL, JR.

SER

IN THE

Supreme Court of the United States

OctToBer TERM, 1990

Bit ARMONTROUT, Warden

Missouri State Penitentiary,

Petitioner,

vs .*

JAMEs W. CHAMBERS,

Respondent.

APPENDIX TO_

PETITION FOR A WRIY OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

WILLIAM L. WEBSTER

Attorney General

STEPHEN D. HAWKE

Assistant Attorney General

Counsel of Record

JARED R. CONE

Assistant Attorney General

of Counsel

Post Office Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Attorneys for Petitioner

St. Louis Law Printing Co.,Inc., 13307 Manchester Road 63131 314-231-4477

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 88-2383EM

James W. Chambers,

Appellant,

Vv.

Bill Armontrout,

Appellee.

Appeal from the United States District Court

for the Eastern District of Missouri

Appelice’s motion to stay the mandate of this court is granted

pending the filing of a petition for writ of certiorari with the

United States Supreme Court.

The issuance of the mandate in this case shall be stayed to and

including September 7, 1990. If within that time there is filed

with the Clerk of this court a certificate of notification by the

Clerk of the Supreme Court that a petition for writ of certiorari

has been filed, this stay shall continue until final disposition of

the case by that court.

August 7, 1990

Order Entered at the Direction of the Court:

/s/ Robert D. St. Vrain

Clerk, U.S. Court of Appeals, Eighth Circuit

a ee

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 88-2383

James W. Chambers,

Appellant,

Vv.

Bill Armontrout,

Appellee.

Appeal From the United States District Court

for the Eastern District of Missouri.

Submitted: January 19, 1990

Filed: July 5, 1990

Before LAY, Chief Judge; FLOYD R. GIBSON, HEANEY,

Senior Circuit Judges; MCMILLIAN, ARNOLD, JOHN

R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL,

and BEAM, Circuit Judges.

HEANEY, Senior Circuit Judge.

James Chambers appeals his conviction and sentence of death

for the capital murder of Jerry Lee Oestricker. We reverse the

conviction because Chambers received ineffective assistance of

counsel when his counsel (1) failed to interview, (2) failed to call

— * oon

at trial, and (3) failed to call at sentencing the only witness who

would have testified that Chambers acted in self-defense.

I. BACKGROUND

In December 1982, Chambers was tried for the murder of

Oestricker in the Circuit Court of Jefferson County, Missouri.

At that trial, two eyewitnesses gave conflicting versions of the

events surrounding the moment when Chambers shot and killed

Oestricker outside a bar in Arnold, Missouri.

Fred leppert, the government’s eyewitness, testified to the

following: (1) Chambers and Oestricker engaged in a heated

argument inside the bar; (2) both Chambers and Oéestricker

decided to take the argument outside; and (3) upon their exit,

leppert moved from his chair to the door of the bar, taking a

few seconds to do so. lIeppert testified that he could observe the

following from the door: (1) Oestricker stood up with his hands

in the air; (2) Chambers pointed a pistol at Oestricker and fired

a single shot into Oestricker’s chest; (3) Chambers pistol-

whipped Oestricker several times after he fell to the ground; and

(4) Chambers told the victim to ‘‘take that, tough guy,”’

shouted an epithet into the bar, and ran away.

James Jones, the other eyewitness, had left the bar several

minutes before the shooting but had to wait in his car in the

bar’s pasking lot because his engine was flooded. He testified

that he observed the following: (1) the smaller man (Chambers)

left the bar first, walked about half the length of a truck, and

stood facing the bar; (2) the bigger man (Oestricker) left the bar

a moment later; (3) the two men argued; (4) Oestricker moved

towards Chambers and struck Chambers in the face, knocking

Chambers to the ground; (5) Chambers then stood up and shot

Oestrickr, who was standing six feet away; (6) Oestricker fell

back against the wall; (7) Chambers hit the victim with the gun

several times, knocking the victim to the ground; (8) Chambers

yelled into the bar, ‘‘Do any of you want any of this?’’ and to

se

the victim, ‘‘Lay there and die’’; (9) Chambers ran nearby to a

parked car that had its engine running; and (10) the car sped

quickly away. In addition, Jones testified that Oestricker was

six foot-one inch tall and weighed 240 pounds and that

Chambers was five foot-nine inches tall and weighed 150

pounds. Jones was the only eyewitness to the events occuring

just before the shooting.

Chambers’ attorney requested that a self-defense instruction

be submitted to the jury. The trial court refused. The jury

found Chambers guilty of capital murder and sentenced him to

death.

On appeal, the Missouri Supreme Court reversed the convic-

tion. State v. Chambers, 671 S.W.2d 781 (Mo. 1984) (en banc)

[Chambers I}. It held that there was sufficient evidence to

justify an instruction on self-defense, pointing specifically to

Jones’ testimony that Oestricker struck Chambers in the face,

knocking Chambers to the ground. /d. at 783. The court held

that a jury could reasonably conclude that Oestricker was the

initial aggressor and that Chambers shot Oéestricker because

Chambers feared great bodily harm. /d.'

' The Missouri Supreme Court stated:

Although there was verbal exchange inside the tavern, the in-

itial act of physical aggression occurred when Oestricker struck

Chambers in the face. Consequently, a jury could reasonably

conclude that Oestricker, not Chambers, was the initial ag-

gressor.

Chambers is small in stature—5’6’’ tall and weighing 150

pounds. O6estricker, on the other hand, was 6’4’’ and 250

pounds. something more than fear of size, however, is required

to justify the use of deadly force in self-defense. Some affir-

mative action, gesture or communication by the person feared

indicating the immediacy of the danger, the ability to avoid it

and the necessity of using deadly force must also be present.

State v. Jackson, [522 S.W.2d 317, 319 (Mo. App. 1975)}; State

v. Isom, 660 S.W.2d 739 (Mo.App. 1983). In State v. Hicks,

—

Missouri retried Chambers in Jefferson County. His newly

appointed counsel was Donald W. Hager, a public defender.

Hager neither interviewed Jones nor called Jones to testify on

behalf of Chambers. The state did not call Jones. With this ex-

ception, the second trial proceeded in much the same manner as

the first with Fred leppert providing the bulk of the pfdsecu-

tion’s case. At the conclusion of evidence, Hager requested a

self-defense instruction. As with the earlier trial, the trial court

refused to instruct the jury on self-defense and denied

Chambers the right to argue self-defense in his closing argu-

ment. The second trial also resulted in a conviction for capital

murder. At sentencing, Hager sat mute, waiving Chambers’

right to present mitigating evidence and argue for leniency. The

jury sentenced Chambers to death.

With the assistance of yet another attorney, Chambers again

appealed to the Missouri Supreme Court. Over the strong dis-

sent of two judges, the court affirmed the conviction and the

death sentence. State v. Chambers, 714 S.W.2d 527 (Mo. 1986)

(en banc) [Chambers IT].

On November 12, 1986, Chambers filed a motion in the Cir-

cuit Court of Jefferson County under Missouri Rule 27.26

asserting that he received ineffective assistance of counsel at the

second trial. A hearing on this motion was held on February 3,

1987. Several witnesses testified, including Jones. Jones

[438 S.W.2d 215 (Mo. 1969)], the victim was not only much

larger than the defendant but was also the initial aggressor. This

Court found that these factors created an appearance of necessi-

ty for defendant to use deadly force to protect himself against

severe bodily harm. Certainly, appellant could have drawn the

same conclusion here.

Chambers I, 671 S.W.2d at 783. |

hasten

— ~~ po

testified to the same version of events as he had at the first trial.”

Jones also testified that neither Hager nor anyone else from the

public defenders’ office had contacted him since the first trial.

Hager also testified at the Rule 27.26 hearing. He testified

that before the second trial he had read Jones’ testimony from

the first trial, but that neither he nor anyone else from the

public defenders’ office ever contacted Jones.’ Hager testified

that he considered much of Jones’ testimony to be damaging.

The damaging aspects, according to Hager, were that Chambers

stepped outside first, stopped, turned, and waited for

Oestricker, concealing a pistol against his leg; Chambers pistol-

? Jones did attempt, however, to eliminate some apparent confusion

created by his testimony at the first trial.

Q: [Thomas Schlesinger, Chambers’ counsel]: Please read from

the first seven lines on Page 741 [of the transcript of the first

trial].

A: [James Jones]: ‘‘No. It was right here, putting it behind his

body, kind of against his leg. Q. Was Oestricker between him

and the door? A. Yeah. Q. So was the gun back here? Is that

right? A. Yeah.’’

Q: Okay. Now, it says here—or you just read that you testified

it was kind of against his leg. Did you mean that it was hidden?

A: No. I didn’t mean that it was hidden.

Q: Is the testimony that you gave here accurate?

A: I would say. I could show anybody—I could show you

where it was. You could make your own judgment on it. I

would say its being hidden, my own personal opinion.

Chambers v. Missouri, No. CV186-4580-CC-J3, transcript at 67 (Mo.

23d Cir. Feb. 23, 1987).

> Hager did testify that an investigator from the public defenders’

office contacted Jones’ attorney. Nothing came of this conversation,

and Hager’s office did not make any attempt to follow up on this con-

tact. -

——_ <. po

whipped O6estricker and shouted, ‘‘Lay there and die;’’

Oestricker was six feet away and not moving towards Chambers

at the time of the shooting; and Chambers left the scene in a car

that was facing the road with its engine running. On this basis,

Hager testified that he did not interview Jones or call Jones at

the second trial because he believed that the damaging aspects

of Jones’ testimony outweighed its mitigating value.

Chambers’ Rule 27.26 motion was denied by the Circuit

Court of Jefferson County. His appeal of that ruling was

denied by the Missouri Court of Appeals, and his application

for transfer to the Missouri Supreme Court was denied.

Chambers next filed a petition for a writ of habeas corpus in

federal court. Chambers alleged, inter alia, that he was denied

effective assistance of counsel at the second trial because Hager

failed to interview Jones or to call him at that trial. The district

court held that Hager’s performance was constitutionally ade-

quate. The court concluded that the decision not to interview or

call Jones at trial was reasonable because of the potential

damaging aspects of Jones’ testimony, because Jones was not a

credible witness, and because Chambers signed a pretrial state-

ment in which he agreed with Hager’s decision not to call Jones

at trial. Accordingly, the district court denied Chambers’ peti-

tion for habeas relief.

Chambers appealed the district court’s decision to this Court.

On appeal, he argues that he was denied effective assistance of

counsel because Hager did not interview Jones and did not call

Jones at trial. A panel of this Circuit agreed, reversing the

district court. Chambers v. Armontrout, 885 F.2d 1318 (8th

Cir. 1989). We granted the petition for rehearing en banc and

vacated the panel decision. After rehearing the appeal en banc,

we reaffirm the panel decision and reverse the district court’s

denial of habeas relief.

titania

a

_

: = *

Il. DISCUSSION

Under the standards for analyzing a claim of ineffective

assistance of counsel enunciated in Strickland v. Washington,

466 U.S. 668 (1984), Chambers must show that Hager’s perfor-

mance was deficient and that it prejudiced Chambers’ defense.

See id. at 687. Counsel’s performance is deficient when it is less

competent than the assistance that should be provided by a

reasonable attorney under the same circumstances. /d.

A. FAILURE TO INTERVIEW JONES

The decision to interview a potential witness is not a decision

related to trial strategy. Rather, it is a decision related to ade-

quate preparation for trial. Thus, Hager had ‘‘a duty to make

reasonable investigations or to make a reasonable decision that

makes particular investigations unnecessary.’’ Jd. at 691.

Because Jones was never interviewed by Hager, the question

before us is whether Hager’s decision not to interview Jones was

reasonable from counsel’s perspective at the time that decision

was made.

The facts of this case, confirmed by Hager’s actions at trial

and testimony at the Rule 27.26 hearing, indicate that there was

only one defense upon which Chambers could rely: self-defense.

That defense was the only realistic defense to the capital murder

charge. Moreover, self-defense was a mitigating circumstance

appropriate for the jury’s consideration in determining whether

Chambers should be sentenced to death. Thus, without Jones’

testimony that Oestricker had knocked Hager to the ground,

Hager was not permitted to argue self-defense as either a partial

or complete defense to capital murder. Without Jones’

testimony, the jury could only return a verdict that Chambers

was guilty of capital murder.

Because of the grave effect of Hager’s decision not to inter-

view Jones in this capital murder case, Chambers alleges that

Hager’s decision was unreasonable. He asserts that an interview

ae. em

with Jones would have (1) clarified many of the problems Hager

saw in jones’ testimony at the first trial, (2) permitted Hager to

make his own assessment of Jones’ demeanor and credibility,

(3) permitted Hager to ascertain whether Jones would adhere to

his testimony at the first trial, see supra note 2, (4) enabled

Hager to discover additional evidence favorable to Chambers,

and (5) enabled Hager to be more effective in his cross-

examination of witnesses put forward by the government.‘

To determine the reasonableness of Hager’s decision not to

interview Jones, a review of the underlying circumstances as

known to Hager at the time of second trial is in order.

Chambers never contended that he did not shoot Oestricker.

Chambers never contended that he and Oestricker did not argue

with each other in the bar. Chambers never contended that he

and Oestricker did not challenge each other to a fight.

Chambers did contend at both trials that the government’s

theory that the fight was a ruse to lure Oestricker outside where

Chambers could murder him was fiction and not fact. He con-

tended that the shooting grew out of a barroom altercation and

that he acted in self-defense after he had been knocked to the

ground by Oestricker. Because Chambers’ apparent strategy

did not change from the first trial to the second trial and

because no indication of new or different testimony existed,

reasonable counsel would have anticipated that Chambers’ se-

cond trial would proceed much as the first trial did. Except for

the lack of testimony tending to show that Oestricker knocked

Chambers to the ground just before Chambers shot him, the se-

cond trial did proceed much as the first did. The second trial

therefore lacked the very testimony that the Missouri Supreme

Court stated justified a self-defense instruction in the first trial.

* Although the State does not suggest that Jones was unavailable,

Chambers notes that Hager had at his disposal the address and phone

number of Jones and a paid investigator who was available to locate,

interview, and subpoena Jones.

— A-10 —

Missouri argues, however, that Hager’s decision not to inter-

view Jones was reasonable in light of the damaging aspects of

Jones’ testimony. We disagree. Other witnesses had testified to

the negative aspects of Jones’ testimony cited by Hager as justi-

fying his decision not to interview Jones.’ In that respect, any

* The State notes that Jones testified in the first trial that Chambers

left the bar first and waited for Oestricker. Numerous witnesses

testified to this fact at both trials. Second, Jones’ testimony at the

first trial could be read to imply that Chambers, as he left the bar, in-

tentionally hid his pistol from O6cstricker’s view. A state witness

testified to the same fact at both trials. Missouri v. Chambers, No.

64709, Transcript at 505-07 [Chambers I, T.] (tesimony of James

Fowler, a bar patron); see Missouri v. Chambers, No. 67191,

Transcript at 586-88 [Chambers I], T.]; see also Chambers I, T. at 466

(testimony of Fred leppert and several other witnesses that Chambers

was hiding some knife or weapon). An interview with Jones would

have clarified that he never intended to give such an impression. See

supra note 2. Third, Jones testified that Chambers pistol-whipped

Ocstricker. Several of the State’s witnesses also testified that

Chambers pistol-whipped Oestricker. Chambers I, T. at 465, 508, 556,

645, 654, 689; see Chambers II, T. at 374-77, 420, 458, 501, 524,

540-41, 590. Fourth, Jones testified that at the time he was shot,

Oecstricker was standing six feet away from Chambers. Fred leppert

testified to the same fact. Chambers I, T. at 464; see Chambers I/, T.

at 447 (Fred leppert testified that the distance separating the two was

five feet). Fifth, Hager indicated that he considered Jones’ testimony

that Chambers shouted several epithets at Oestricker and the other bar

patrons after the shooting to be damaging. Numerous witnesses

repeatedly testified to this fact. Chambers I, T. at 466, 509, 542, 566,

680, 700; see Chambers II, T. at 330, 360, 375, 420-21, 508, 591. The

final aspect that Hager considered damaging relatcd to Jones’

testimony that after the shooting, Chambers ran to a waiting car with

its motor running which immediately sped off.

The dissent asserts that the ‘‘most damning evidence of cool plann-

ing was Jones’ testimony that the car was left running.’’ This may in-

deed be the case, but another witness, Dennis Simmons, testified that

Chambers had a car ‘‘waiting.’’ Chambers I, T. at 656-57; see

Chambers II at 460-61. This evidence of premeditation therefore was

before the jury, but without Jones’ further testimony that Oecstricker,

a much larger man, knocked Chambers to the ground before the

shooting occurred—evidence which was essential to the self-defense

theory and tended to show that the shooting may not have been

premeditated was not presented to the jury.

; — A-ll —

damaging testimony that Jones gave at the first trial was

cumulative, and reasonable counsel would have interviewed

Jones to make sure that Jones was willing to repeat his earlier

testimony that Oestricker knocked Chambers to the ground, to

satisfy himself as to the remainder of Jones’ testimony, and to

assess Jones’ credibility.

The State also argues that Hager’s decision not to interview

Jones was reasonable because Hager had reasonably determined

that Jones lacked credibility. We do not agree: (1) the Missouri

Supreme Court based its decision in Chambers I to remand for a

new trial on Jones’ testimony; (2) the government made no at-

tempt to impeach Jones’ credibility at the first trial; (3) Hager

never met Jones nor spoke with him on the telephone enabling

Hager to form a personal impression of Jones; and (4) the

transcript of Jones’ testimony at the first trial discloses no basis

upon which reasonable counsel would have concluded that

Jones was not a credible witness.’

The State argues that further investigation of Jones was un-

necessary because Chambers did not intend to use the theory of

self-defense at trial. This argument is not supported by the facts

of the case. Hager’s defense of Chambers proceeded on a self-

defense theory. His questions on cross-examination were focus-

ed solely on the issue of self-defense. Hager requested and was

denied a self-defense instruction. The trial court also did not

permit Hager to argue self-defense to the jury. Most important-

ly, the self-defense theory, as either a total or partial defense to

capital murder or a mitigating circumstance at the sentencing

phase, was Chambers’ only possible, indeed, his only

reasonable, defense to the death penalty. See also Code vy.

’ Assuming that Hager’s determination that Jones lacked credibility

was reasonable, we doubt that that determination, under these facts,

would justify reasonable counsel's decision not to interview the only

witness who had the only evidence supporting an essential element of

the defendant's only defense.

a

- hi —

Montgomery, 799 F.2d 1481, 1483 (11th Cir. 1986) (failure to

investigate sole defense established ineffectiveness) and cases

cited therein.

The State’s final contention is that Chambers gave Hager

reason to believe that further investigation of Jones would be

fruitless or even harmful.' In support of this contention, the

State relies on language in Strickland.

Strickland, however, is inapposite. The Supreme Court in

Strickland stated that

{cJounsel’s actions are usually based quite properly, on in-

formed strategic choices made by the defendant and on in-

formation supplied by the defendant. In particular, what

investigation decisions are reasonable depends critically on

such information. For example, when the facts that sup-

port a certain potential line of defense are generally known

to counsel because of what the defendant has said, the

need for further investigation may be considerably

diminished or eliminated altogether. And when a defen-

dant has given counsel reason to believe that pursuing cer-

tain investigations would be fruitless or even harmful,

counsel’s failure to pursue those investigations may not

later be challenged as unreasonable.

Strickland, 466 U.S. at 694. Chambers’ statement did not give

Hager reason to believe that pursuing certain investigations

* The State’s argument is that Hager’s decision not to interview

Jones is reasonable for the very reason that Chambers agreed with the

decision in a signed statement. Chambers’ signed statement is as

follows:

I agree that Mr. Hager need not subpoena or call James Jones

at my trial. His cross examination at the first trial was extremely

damaging to me and I believe it would be at the second trial. |

have been admonished that by not calling James Jones it may

not be possible to obtain a jury instruction on self defense.

4/13/85 /s/ James W. Chambers

fis —

would be fruitless or harmful. It does not provide Hager with

any information that either discredited Jones or Jones’

testimony. Rather, the statement indicates only that a defen-

dant with an eighth grade education, relying on information

provided by Hager, agreed with Hager’s decision not to call

Jones. Whether or not Chambers agreed with the decision not

to call Jones does not make that decision any more reasonable

or the investigation fruitless or harmful.

Accordingly, we conclude that reasonable counsel would have

interviewed Jones. The probativeness of Jones’ testimony

regarding self-defense weighs heavily in this determination. He

was the only person to see the entire altercation outside the bar.’

As such, his testimony regarding Oestricker knocking Chambers

down was uncontradicted. Because reasonable counsel would

have interviewed Jones, Hager’s decision not to do so constituted

ineffective assistance.

B. FAILURE TO CALL JONES AT TRIAL

Our analysis of Hager’s decision not to call Jones as a witness

parallels our analysis of Hager’s decision not to interview Jones.

**[S}trategic choices made after less than complete investigation

are reasonable precisely as to the extent that reasonable profes-

sional judgment supports the limitations on investigation.’’

Strickland, 466 U.S. at 690-91. Hager’s decision not to call

Jones thus is only as reasonable as Hager’s decision not to inter-

view Jones. That decision amounted to ineffective assistance of

counsel. See Part (IIA).

* As noted above, a gap of several seconds exists in the testimony of

the government's eyewitness, Fred leppert. Jones had a clear view of

the area outside the bar from his car. This is confirmed by the fact

that the State neither cross-examined as to Jones’ view of the incident

nor argues on appeal that Jones was unable to see the entire incident

clearly. Jones’ unquestioned clear view of the incident simply em-

phasizes the importance of an interview with Jones.

el

— <P

Furthermore, because the deference generally granted to

strategic choices of trial counsel is not required due to Hager’s

lack of preparation, the decision not to call Jones at trial was

itself unreasonable in light of all the circumstances as they ap-

peared at the time of the second trial.

By failing to call Jones, Hager attempted to use a defense that

lacked evidentiary support.'® By failing to call Jones, Hager

neglected the law of the case. See Chambers I, 671 S.W.2d at

783 (something more than the barroom argument and the dif-

ferences in physical size—something indicating the immediacy

of danger—had to be present). By failing to call Jones, Hager

ignored an unbiased, uncontradicted witness who provided

evidentiary support to Chambers’ only defense and whose

damaging testimony was merely cumulative of several of the

State’s witnesses’ testimony. By failing to call Jones, Hager

disregarded a witness whose testimony would have directly con-

tradicted the State’s theory that Chambers’ barroom altercation

with Oestricker was a ruse on Chambers’ part to lure Oestricker

'© Hager attempted to elicit sufficient evidence of self-defense

through cross-examination of the State’s witnesses. The alleged

evidence that supported Hager’s theory at the second trial was that

Oestricker had a pair of pliers in his hand when he was shot. Hager

questioned several of the State’s witnesses about the plie.s. Only one

of the witnesses, Fred Ieppert, knew any information about any pliers,

and leppert testified that he had dropped a pair of pliers when he

reached in his pants pocket to pull out a handkerchief on seeing

Oestricker’s dead body.

Our review of the record indicates that at the time of the second

trial, Hager had no reasonable basis to conclude that he would be able

to elicit sufficient evidence of self-defense through cross-examination.

As a matter of fact, Hager was unable to elicit sufficient evidence.

Furthermore, Hager never interviewed any of the witnesses, including

leppert, as to Oestricker’s possession of pliers.

— A-15 —

outside where Chambers could murder him.'' By failing to call

Jones, Hager slighted testimony amounting to a mitigating cir-

cumstance at the subsequent sentencing hearing.

In sum, Hager’s decision not to call Jones resulted in

Chambers admitting that he had shot and killed Oestricker

without any explanation that would support a verdict of less

than capital murder and sentence of less than death. The State

has not offered sufficient reason to support a conclusion that

Hager’s decision not to call Jones was reasonable.'?

C. PREJUDICE

Under Strickland, the question remains whether, in light of

all the circumstances, Hager’s ineffective assistance of counsel

resulted in any prejudice. Prejudice occurs when ‘‘there is a

reasonable probability that, but for counsel’s unprofessional er-

rors,’’ the ‘‘result would have been different.’’ Strickland, 466

'! The probative value of Jones’ testimony on this point is striking.

If the barroom altercation was merely a ruse, as the State suggested, to

provide sufficient evidence of Chambers’ intent to support a capital

murder instruction, then why did Chambers—according to Jones’

testimony—wait until Oestricker hit him in the face, knocking him to

the ground, before he shot him?

'? Judge Blackmar of the Missouri Supreme Court noted this point

in his concurring opinion in Chambers II.

There is a mystery as to why the evidence that the victim struck

the defendant, knocking him to the ground, which was held to

require a self-defense instruction in the first trial, was not of-

fered in the second.

Chambers II, 714 S.W.2d at 534 (Blackmar, J., concurring). In

dissenting from a holding that there was insufficient evidence at the

second trial to justify submission of a self-defense instruction, Judge

Welliver of the Missouri Supreme Court stated, ‘“The principal opi-

nion, I fear, becomes the best evidence for proof of a charge of inef-

fective counsel.’’ Jd. (Welliver, J., dissenting).

|

— A-16 —

U.S. at 694-95; Sanders v. Trickey, 875 F.2d 205, 208 (8th Cir.

1989). ‘‘A reasonable probability is a probability sufficient to

undermine confidence in the outcome.’’ Strickland, 477 U.S. at

694. In this instance, prejudice occurred if Hager’s deficient

**conduct so prejudiced [Chambers] as to undermine confidence

in the outcome of the trial’’ or sentencing. Byrd v. Armon-

trout, 880 F.2d 1, 4 (8th Cir. 1989).

The result of Hager’s ineffective assistance to Chambers was

that Jones did not testify in Chambers’ behalf at trial or senten-

cing. Jones’ testimony had great potential to aid Chambers’

case. Jones was a disinterested witness who testified that

Oestricker hit Chambers hard enough to knock Chambers to the

ground before the fatal shot was fired. Because no one else saw

what occurred outside the bar the first few moments after

Oestricker exited the bar, Jones’ testimony would have been

given to the jury without contradiction. With Jones’ testimony,

the court would have instructed the jury on self-defense and

permitted Hager to argue self-defense. Our review of the record

indicates that only Jones’ testimony substantially supported

either approach.'’ The prejudice is plain.

We cannot say what would have happened at the second trial

had Jones testified, but we are not confident in its verdict. Had

Jones testified, a self-defense instruction would have been sub-

mitted to the jury and Hager would have been permitted to

argue self-defense. The jury might have acquitted Chambers of

'? Even without Jones’ testimony, Hager asserted that Chambers

acted in self-defense or with legal provocation. Hager presented in-

sufficient evidence, however, either to support an instruction on self-

defense or to permit Hager to argue self-defense to the jury.

— A-17 —

capital murdez, either by finding him guilty of a lesser charge'‘

or by finding that he acted in self-defense.'’ In addition, if the

jury had credited Jones’ testimony at sentencing, it might not

have sentenced Chambers to death.'®

'* The State contends that the reasonable probability of being found

guilty of a lesser charge does not amount to prejudice. We cannot

agree. See Strickland, 466 U.S. at 695 (prejudice is the ‘‘likelihood of

a result more favorable to the defendant’’). The State’s interpretation

of Strickland ignores the facts of that case. The Supreme Court ex-

plicitly recognized that prejudice can occur in sentencing alone. /d.

Therefore, if the possibility of a shorter sentence constitutes pre-

judice, then the possibility of a conviction of a lesser charge resuiting

in a shorter sentence also constitutes prejudice.

'’ Missouri argues that Chambers cannot make an adequate show-

ing of prejudice because the other evidence against iim was sufficient-

ly impressive that his failure to call Jones was not likely to alter the

outcome of the case. We disagree. See Chambers I, 671 S.W.2d at

784 (‘‘While the evidence of self-defense is not so unequivocal as to

mandate a directed verdict of acquittal, the evidence is sufficient to

justify submission of self-defense to the jury.’’). Assuming, however,

that Jones’ testimony is not likely to be outcome determinative, we

would still find sufficient prejudice under the Constitution. In adop-

ting the prejudice prong of Strickland, the Supreme Court stated that

it believes ‘‘that a defendant need not show that counsel’s deficient

conduct more likely than not altered the outcome in the case.’’

Strickland, 466 U.S. at 693. The Constitution merely requires ‘‘a pro-

bability sufficient to undermine confidence in the outcome.’’ /d. at

694.

'* Chambers also makes two other claims: Hager’s decision not to

interview or call as witnesses Donald Chapman, Eleanor Hotchkiss,

and Jackie Turner denied Chambers effective assistance of counsel;

and Chambers was denied a fair trial because the trial court failed to

submit a self-defense instruction to the jury. As to the former issue,

we have carefully examined the record and find that claim to be

without merit. As to the latter issue, the trial court was correct not to

submit the self-defense instruction to the jury because absent Jones’

testimony, insufficient evidence existed to support the theory that

Chambers acted in self-defense.

— A-18 —

Iii, CONCLUSION

At the time of the second trial, this case appeared to involve a

barroom brawl or altercation. Chambers did not, and could

not, deny shooting Oestricker. His only defense to the charge

of capital murder and the death penalty was that he acted in

self-defense. Only one witness could testify to one of the re-

quired elements of self-defense permitting either submission of

the issue or argument to the jury. That witness’ harmful

testimony would have appeared to reasonable counsel at the

time of the second trial to be cumulative rather than significant-

ly damaging. That witness appeared credible. That witness ap-

peared crucial to Chambers’ only defense. Chambers’ counsel

nonetheless failed to interview or call this witness to the stand,

although he knew of his existence, knew of his testimony, and

was able to contact him. On these facts, we hold that Chambers

received ineffective assistance of counsel and was prejudiced

thereby.

Therefore, we reverse and remand to the district court with

directions that it enter an order that the state either retry

Chambers within 120 days of this order or free him from

custody. The district court shall further order that the state

notify this court and the district court of its intention in this

regard within 45 days of this order.

JOHN R. GIBSON, Circuit Judge, dissenting, with whom FAGG,

BOWMAN, MAGILL, and BEAM, Circuit Judges, join.

I respectfully dissent.

The court today ignores the Supreme Court’s instruction that

in reviewing the performance of Chambers’ lawyer, Hager,

“‘every effort be made to eliminate the distorting effects of hind-

sight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective

at the time.’’ Strickland v. Washington, 466 U.S. 668, 689

(1984). Like the district court and the state trial court that

— A-19 —

reviewed this claim, I conclude that Hager properly made a

strategic judgment that Jones should not be called to testify and

need not be interviewed because Jones’ testimony would have

been more harmful than helpful to Chambers. Furthermore,

after studying Jones’ testimony during the first trial, I believe

that neither element of the Strickland test has been satisfied,

and I would affirm the district court judgment denying the writ.

Although the decision of the Missouri Supreme Court,

reviewing the direct appeal from Chambers’ first trial, clearly

states that Jones’ testimony would have supported a self-

defense instruction,' Jones was not called to testify at the se-

cond trial. However, the state trial court, in considering the col-

lateral attack under Missouri’s Rule 27.26, concluded that

Jones’ testimony, on balance, was more damaging than helpful

to Chambers. After observing that Hager ‘‘could cho[o]se bet-

ween a weak self-defense theory that carried with it a

strengthening of the State’s case,’’ or try the case as he did, the

state court concluded that the decision to not call Jones was a

' The Missouri Supreme Court, in reversing the Chambers I judg-

ment, observed that there was conflicting evidence as to the incident

and stated that ‘‘[iJn examining the record for evidence of self-

defense, we must consider the evidence in [the] light most favorable to

appellant Chambers.’’ State v. Chambers, 671 S.W.2d 781, 783 (Mo.

1984) (en banc). After reviewing the evidence in that manner, the

court concluded that ‘‘[w]hile the evidence of self-defense is not so

unequivocal as to mandate a directed verdict of acquittal, the evidence

is sufficient to justify submission of self-defense to the jury.’ Jd. at

784.

hs aeeeecnteeieeeenell

—~<

reasonable one.? The Missouri Court of Appeals affirmed the

conviction, Chambers v. State, 745 S.W.2d 718 (Mo. Ct. App.

1987), and Chambers’ application for transfer to the Missouri

Supreme Court was denied.

2 The detailed reasoning of the state trial judge is as follows:

During this proceeding, Donald Hager testified that the deci-

sion not to call Jones was [a] deliberate one, based upon

strategic concerns. That, having the benefit of Jones’ testimony

on cross-examination adduced at the first trial, in his profes-

sional opinion, the disadvantages of Jones’ testimony outweigh-

ed the advantages. The State’s cross-examination . . . was highly

damaging in that it supported the State’s theory of the case

under a capital murder submission. Mr. Hager knew that

although Jones’ testimony would have supported a self-defense

instruction, it corroborated the State’s main witness—Fred lep-

pert—and conflicted with his defense strategy. His strategy at

trial was to: 1) attack the credibility of the State’s witnesses; 2)

suggest that Oestricker had a pair of pliers in his hands; and 3)

attempt to negate the element of Chambers reflecting “‘cooly’’

upon . . . taking the life of Oestricker. The fact that Jones was

in a position to observe the condition of the getaway car with

running engine and the distance between the victim and peti-

tioner at the time of the fatal shot would have made this trial

strategy almost impossible from a practical standpoint.

Without Jones’ testimony a jury might believe, as at least one

[Missouri] Supreme Court Judge did, that the whole matter was

just ‘‘an ordinary barroom altercation” thus negating the cool

reflection that might not exist under those circumstances.

In light of the foregoing, the Court finds that petitioner’s trial

counsel’s decision not to call Jim Jones was a reasonable one

based on his professional judgment in consideration of the

evidence and the circumstances in the first trial.

Chambers v. Missouri, No. CV186-4580-CC-J3, slip op. at 12-13 (23d

Cir. Ct. March 11, 1987). The court also rejected Chambers’ claim

that he had not read the signed statement in which he agreed with the

decision to not call Jones. Jd. at 14 n.2.

— A-21 —

The district court, in this habeas corpus action, concluded

that Jones’ testimony would have supported the State’s theory

of the case. It also concluded that, because Hager’s failure to

interview Jones resulted from a strategic decision, his perfor-

mance was not deficient. Because it decided that Hager

rendered effective assistance, the district court did not reach the

question of prejudice.’

The effectiveness component of the Strickland test asks

whether the defendant received “reasonably effective

assistance.’ 466 U.S. at 687. Moreover, Strickland teaches us

that judicial scrutiny of counsel’s performance must be “thighly

deferential,’’ id. at 689, and should eliminate the “distorting ef-

fects of hindsight,’’ id.

In performing the first part of the Strickland analysis, courts

distinguish between actions that result from inadequate pretrial

preparation and those that are the product of trial strategy deci-

sions. See Burger v. Kemp, 483 U.S. 776, 788-95 (1987); Kim-

melman v. Morison, 477 U.S. 365, 384-87 ( 1986); Darden v.

* The district court’s reasoning is of interest:

The Court finds reasonable counsel’s conclusion that Jones’

testimony would have tended to support the state’s theory of the

case and thus his decision not to call Jones as a witness. This is

especially true in view of petitioner’s written and signed pretrial

statement that he agreed with counsel’s decision in this regard.

As the United States Supreme Court noted, “*it}he

reasonableness of counsel’s actions may be determined or

substantially influenced by the petitioner’s own statements or

actions.”” Strickland, supra, 466 U.S. at 691. Furthermore,

counsel reasonably assessed the affect [sic] of Jones’ earlier

testimony on both the state’s theory of the case and Jones’

credibility as a witness.

Chambers v. Armontrout, No. 88-0567C(3), slip op. at 12 (E.D. Mo.

July 19, 1988).

— A-22 —

Wainwright, 477 U.S. 168, 184-87 (1986); Strickland, 466 U.S.

at 687-91; United States v. Gray, 878 F.2d 702, 711 (3d Cir.

1989); Laws v. Armontrout, 863 F.2d 1377, 1382-86 (8th Cir.

1988) (en banc), cert. denied, 109 S.Ct. 1944, reh’g denied, 109

S.Ct. 3179 (1989). ‘‘{C]ounsel has a duty to make reasonable

investigations or to make a reasonable decision that makes par-

ticular investigations unnecessary. In any ineffectiveness case, a

particular decision not to investigate must be directly assessed

for reasonableness in all the circumstances, applying a heavy

measure of deference to counsel’s judgments.”’ Strickland, 466

U.S. at 691. As the Third Circuit recently stated, ‘‘Ineffec-

tiveness is_generally clear in the context of complete failure to

investigate because counsel can hardly be said to have made a

strategic choice against pursuing a certain line of investigation

when s/he has not yet obtained the facts on which such a deci-

sion could be made.’’ Gray, 878 F.2d at 711.

In contrast to the close scrutiny which courts give to an at-

torney’s preparatory activities, greater deference is given to an

attorney’s informed strategic choices. Indeed, it has been clear

since Strickland that ‘‘strategic choices made after thorough in-

vestigation of law and facts relevant to plausible options are vir-

tually unchallengeable.”’ Strickland, 466 U.S. at 690. Also, in

reviewing the performance of counsel, ‘‘courts must resist the

temptation to second-guess a lawyer’s trial strategy.’’ Laws, 863

F.2d at 1393 (quoting Blackmon v. White, 825 F.2d 1263, 1265

(8th Cir. 1987)), because even a losing strategy ‘“‘may have been

reasonable in the face of an unfavorable case.’’ Jd. at 1394 (em-

phasis removed) (quoting Blackmon, 825 F.2d at 1265).

Chambers attempts to formulate arguments based upon

Hager’s allegedly inadequate investigation. However, as the

Seventh Circuit has observed:

When the allegation of the ineffectiveness of counsel

centers on a supposed failure to investigate, we cannot see

how, especially in the context of a habeas proceeding that

— A-23 —

collaterally attacks the state court conviction, the peti-

tioner’s obligation can be met without a comprehensive

showing as to what the investigation would have produced.

The focus of the inquiry must be on what information

would have been obtained from such an investigation and

whether such information, assuming its admissibility in

court, would have produced a different result.

United States ex rel. Cross y. DeRobertis, 811 F.2d 1008, 1016

(7th Cir. 1987).

Hager, trial counsel in Chamber’s second trial, read the

transcript of Jones’ testimony in the first trial and concluded

that the testimony was more damaging than helpful. While the

court today states that Hager’s decision to not interview Jones

reflects inadequate preparation for trial rather than a conscious

trial strategy, that conclusion ignores the fact that Hager

carefully studied and analyzed Jones’ testimony from the first

trial and knew that any departures from it would open up a

strong credibility attack. His decision to not interview Jones

does not demonstrate inadequate preparation for trial, but

rather a careful analysis of known testimony. The only reason

for Hager to have interviewed Jones would have been to see if

Jones would change his story. Hager decided not to interview

Jones because even any substantial, beneficial changes in his

story would have created an excessive danger of devastating im-

peachment. Chambers v. State, 745 S.W.2d at 720. Further-

more, as is clear from Jones’ testimony at the 27.26 hearing, the

only new information that an interview would have produced

was Jones’ rather lame explanation that when he said that

Chambers had held the gun ‘‘back here’’ and against his leg, he

did not mean that it was hidden. See ante at 4-5 n.2,9n.7. Such

an embellishment is precisely the sort of a change that could

have led to damaging cross-examination of Jones, particularly

because Jones had explicitly stated at the first trial that

Chambers was not displaying the weapon. (Chambers I Tr. at

740-41).

=- At —

My study of the record convinces me that both the state trial

court and the district court properly assessed Jones’ testimony.

At the first trial, Jones testified that Chambers arrived in a car

which was turned to face the exit from a bar’s parking lot.

(Chambers I Tr. at 748). As Chambers entered the building, the

car was left running and was still occupied by the driver. (/d. at

748-49). Jones testified that he saw Chambers come out the

door, get about half the distance of an automobile or truck,

and turn half-way toward the door. (/d. at 738). O6cestricker

followed Chambers out of the door and struck Chambers hard

enough to knock him down. (/d.). Chambers then got up, took

a step forward, and shot Oestricker. (/d.).

However, on cross-examination, Jones revealed that when

Chambers walked out the door and turned around half-way, he

already had a pistol in his hands, (/d. at 740), with the gun

against his leg and positioned behind him, (/d. at 741).

Oecestricker was just emerging through the door when Chambers

stopped, turned around with the gun in hand, and waited for

Oestricker to come out. (/d. at 741-42). Jones also testified that

he had not seen Oestricker attempt to strike Chambers before

Chambers initially took the gun out. (/d. at 742). According to

Jones, after Chambers shot Oestricker, Chambers said either

**[t]ake that, tough guy,’”’ or “‘[t]ake that.’’ (/d.). After being

shot, Oestricker made a grunting sound and backed up three or

four steps. (/d.). Chambers then walked toward him and slap-

ped him in the head with the pistol ‘‘[o]ver and over and over

again.’’ (/d. at 742-43). Furthermore, Oestricker was standing

about six feet away from Chambers at the time of the shot and

was not moving toward Chambers. (/d. at 747). Jones also said

that, after shooting Oecestricker, Chambers walked into the

building and asked “‘if anybody else wanted any of this.’’ (/d. at

746). As he left the building, Chambers said to Oestricker,

**Lay there and die.’’ (/d. at 747).

Based upon this testimony, I cannot conclude that Hager

acted in an unreasonably ineffective manner by deciding to not

— A-25 —

call Jones. Even if Jones’ testimony supported a self-defense in-

struciton, as the Supreme Court of Missouri held, the testimony

also indicated that Chambers, with a pistol concealed against his

leg, both waited for Ocestricker to come out of the door and,

after being struck, fired the fatal shot while Ocestricker was six

feet away and was not moving toward him. After threatening

the crowd in the bar, Chambers ran to the car which had waited

for him, with its motor running, during the entire incident.

While the question of whether there was enough evidence to

support a self-defense instruction involves considering the

evidence in the light most favorable to Chambers, a professional

evaluation of the testimony’s trial impact involves considering it

in the light that the jury would consider it. This is a far broader

analysis, and I cannot conclude that Hager was unreasonably

ineffective in his assessment of the impact of Jones’ testimony

on the jury. The Supreme Court has refused .to find ineffective

assistance where a lawyer did not introduce helpful evidence

which, in turn, could have led to the introduction of other more

harmful testimony. See Burger, 483 U.S. at 788-95; Darden,

477 U.S. at 184-87. The testimony by Jones presented just such

a dilemma for Hager, and we should follow the teaching of the

Supreme Court by refusing to hold that there was ineffective

assistance in this respect.

The court today has only one answer to the damaging aspects

of Jones’ testimony: it states that ‘‘any damaging testimony that

Jones gave at the first trial was cumulative.’’ Ante at 9. An ap-

pellate court often categorizes testimony as cumulative in

deciding evidence questions, but this is no answer at all in the

context of evaluating Hager’s decision. While the court

establishes conclusively that testimony by James Fowler, Fred

leppert, Dennis Simmons and several other witnesses overlap-

ped with testimony by Jones, anfe at 9 n.7, it fails to establish

that Jones’ testimony would have had only a negligible impact

on the jury, thus underscoring the wisdom of Hager’s decision

to not call Jones to testify. Jones was the only witness who saw

as lh a

the whole incident outside the bar. Hager, when evaluating the

probable impact of Jones’ testimony on the jury, could have

reasonably concluded that Jones’ testimony would drive the

damaging points home to the jury. That strategic decision is

one that must be viewed from the testimony’s impact on the

jury, because we are here deciding how the jury’s verdict would

have been affected. An appellate court engages in a far dif-

ferent exercise when it concludes that evidence is cumulative in

deciding whether evidence either should have been admitted or

excluded, or whether error was harmless or prejudicial. It was

the jury impact, however, that Hager analyzed.

Moreover, the court’s assertion that all of Jones’ harmful

testimony was already before the jury in the second trial* is

patently incorrect. Had Jones testified at the second trial, he

would have introduced an important piece of information that

would have helped establish an element of capita! murder, and

he would have hurt Chambers by directly contradicting the

testimony of another witness.

At the first trial, Jones testified Chambers arrived in a car

that made a U-turn to face the street, that someone stayed in the

car while Chambers went inside, that Chambers was inside the

bar for only two or three minutes, and that the car's engine was

left running during the entire episode. (Chambers I Tr. at

748-49). At the second trial, the jury was instructed that it

could convict Chambers of capital murder only if it found that

he ‘‘considered taking the life of Jerry Lee Ocstricker and

reflected upon this matter coolly and fully before doing so.”’

(Chambers Ii Tr. at 681). The most damning evidence of cool

planning was Jones’ testimony that the car was left running,

because that testimony undercuts Chambers’ theory that he in-

* Although the court today relies upon testimony from both trials, it

does not explain why testimony at the first trial, by witnesses other

than Jones, is relevant to the question of whether Jones should have

been called at the second trial.

o- Al? —

nocently went into the bar to drink with Oestricker, but it

squarely supports the State’s theory that Chambers planned the

shooting even before entering the bar. Because Jones was not

called at the second trial, the jury at that trial was unaware of

Jones also would have hurt Chambers by directly contradict-

ing the testimony of Fred leppert, the only witness besides Jones

who testified concerning the events that immediately preceded

the shooting. At the first trial, both Jones and leppert testified

that Chambers shot Ocstricker while Oestricker was standing

still, approximately six feet away from Chambers. (Chambers I

Tr. at 464, 746-47, 750-51). After Hager confronted leppert

with statements that leppert had made at a pre-trial hearing,

however, /eppert testified at the second trial that Oestricker was

moving toward Chambers when the shot was fired. (Chambers

IIT Tr. at 446, 451). leppert’s testimony at the second trial helps

support a self-defense theory. Had Jones testified at the second

trial, he would have directly contradicted Ieppert. Thus, it is

difficult to understand how the court can call this part of Jones’

testimony “‘cumulative.”’

It is also important to consider the fact that, before the sec-

ond trial, Chambers signed a statement in which he agreed with

the decision to not call Jones. The Supreme Court stated in

Strickland that ‘*|t}he reasonableness of counse!’s actions may

be determined or substantially influenced by the defendant’s

Own statements or actions,’’ 466 U.S. at 691, and that those

statements are critical to a proper assessment of litigation deci-

sions, id. When Chambers’ signed statement is considered in

combination with the content of Jones’ testimony at the first

trial, | am convinced that the decision to not call Jones was

reasonable under Strickland.

—

The court, purporting to answer arguments made by the

State, engages in a substantial discussion of Jones’ credibility.’

The court’s affirmation of Jones’ credibility hardly supports its

position today, however, because Jones’ believable testimony

simply hammered home the State’s case.

The court views Hager’s actions in a myopic sense when it

concludes that Jones was not called as a witness because he was

not interviewed. Hager had the full benefit of the trial

transcript of Jones’ earlier testimony and made a careful

strategic determination that the testimony was more harmful

than helpful and that any changes in the testimony would open

Jones up for vigorous cross-examination that would hurt

Chambers. We should not second-guess that decision or place it

in a light contrary to that required by Strickland.

In holding that Hager’s assistance was unreasonably ineffec-

tive, the court today reaches a result contrary to that reached in

earlier decisions in which we recognized that Strickland is not

violated when a counsel, in the exercise of professional judg-

ment, decides not to produce mitigating evidence that could

reasonably be considered more damaging than helpful. In

Smith v. Armontrout, 888 F.2d 530 (8th Cir. 1989), we held that

certain medical records would have hurt the defendant at least

as much as they helped, and we refused to flyspeck the decision

of a lawyer long after the fact. Jd. at 534-35. Similarly, in

Swindler v. Lockhart, 885 F.2d 1342 (8th Cir. 1989), cert.

denied, 110 S. Ct. 1938 (1990), we held that it was not

unreasonable for counsel to refrain from offering into evidence

medical reports, concerning the defendant’s mental condition,

that he felt to be more damaging than helpful. Jd. at 1352-53.

See also Laws, 863 F.2d at 1387-91.

* The statement that the Missouri Supreme Court found Jones’

testimony credible is simply not based upon its opinion. See ante at 19

n.l. The fact that the State did not attempt to impeach Jones’

credibility is completely understandable in light of the support that

Jones gave to the State’s version of the case.

a

ee

— A-29 —

Even if Hager should have called Jones, the Strickland test is

not satisfied unless Chambers can also demonstrate ‘‘that the

deficient performance prejudiced the defense.’’ Strickland, 466

U.S. at 687. In order to prove prejudice, ‘‘[t]he defendant must

show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.’’ Jd. at 694. A reasonable probabili-

ty is defined as one which is ‘‘sufficient to undermine con-

fidence in the outcome.’’ Jd. After a thorough examination of

the record, I conclude that there is not a reasonable probability

that the introduction of Jones’ testimony would have changed

the outcome of the second trial.*

Accordingly, I would affirm the judgment of the district

court denying the writ.

A true copy.

Attest:

Clerk, U.S. Court of Appeals, Eighth Circuit.

* We need not discuss in detail the statement and assumption made

by the court today that the two trials were essentially the same except

for the fact that Jones was not called at the second trial. There were

significant differences which point to the strength of the defense wag-

ed by Hager. For example, under cross-examination at the second

trial, but not at the first, Kenneth Vaughn stated that Oestricker was

drunk and ‘‘wanting to fight like crazy—wanting to fight anybody.’’

(Chamber II Tr. at 385). Hager also significantly impeached several

of the other witnesses. (See, e.z., Chambers I] Tr. at 581-615)

(Testimony of James Fowler).

— A-30 —

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 88-2383EM

James W. Chambers,

Appellant,

vs.

Bill Armontrout,

Appellee.

Appeal from the United States District Court

For the Eastern District of Missouri.

The panel opinion and judgment entered September15,1989

are vacated, and appellee’s suggestion for rehearing en banc is

granted. Counsel will be notified as to the time of oral argu-

ment. Counsel will each be given thirty days from the date of

this order to file any supplemental briefs which are not

duplicative of the briefs originally filed. The supplemental

briefs shall not exceed fifteen pages.

November 08, 1989

Order entered at the Direction of the Court:

/s/ Robert D. St. Vrain

Clerk, U. S. Court of Appeals, Eighth Circuit.

— A-31 —

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 88-2383

James W. Chan vers,

Appellant,

v.

Bill Armontrout,

Appellee.

Appeal from the United States District Court

for the Eastern District of Missouri.

Submitted: March 16, 1989

Filed: September 15, 1989

Before JOHN R. GIBSON, Circuit Judge, and FLOYD R.

GIBSON and HEANEY, Senior Circuit JUDGES

HEANEY, Senior Circuit Judge.

James Chambers appeals his conviction and death sentence of

_the capital murder of Jerry Lee Oestricker. We reverse because

! Chambers received ineffective assistance of counsel when his

) counsel for his second trial failed to interview or to call a witness

who would have testified that Chambers acted in self-defense.

~ hit —

I. BACKGROUND

In December of 1982, James Chambers was tried for the

murder of Jerry Lee Oestricker in the Circuit Court of Jefferson

County, Missouri. At this trial, two eyewitnesses gave conflic-

ting versions of the events immediately preceding the moment

that Chambers shot and killed Oestricker outside a bar in Ar-

nold, Missouri.

The government’s eyewitness, Fred Ieppert, testified that he

savy Chambers first strike Oestricker with a pistol, knocking

Oestricker to the ground. Ieppert testified that he then saw

Oestricker stand up with his hands in the air, Chambers point

the pistor at Oestricker and Chambers fire a single shot into

Oestricker’s chest.

James Jones, the other eyewitness, had left the bar several

minutes before the shooting but had to wait in his car in the

bar’s parking lot because his engine was flooded. He testified at

the first trial to the following: (1) the smaller man (Chambers)

came out the bar door first, walked about half the distance of a

truck and stood facing the bar door; (2) the bigger man

(Oestricker) followed; (3) the two men argued; (4) Oestricker

went towards Chambers and struck Chambers in the face,

knocking Chambers to the ground; and (5) Chambers stood up

and shot Oestricker. :

At the first trial, Chambers’ attorney requested submission of

a self-defense instruction to the jury. The trial court refused,

but the court did instruct the jury in the lesser charges of murder

in the first and second degree, as well as capital murder. The

jury found Chambers guilty of capital murder and sentenced

him to death.

On appeai, the Missouri Supreme Court reversed the convic-

tion. State v. Chambers, 671 S.W.2d (Mo. banc 1984)

(Chambers I). It held that there was sufficient evidence to

justify an instruction on self-defense, pointing specifically to

— A-33 —

Jones’ testimony that Oestricker struck Chambers in the face.

Id. at 783. The court held that a jury could reasonably conclude

that Oestricker was the initial aggressor and that Chambers may

have shot Oestricker because Chambers feared great bodily

harm. Id.

Chambers was retried in Jefferson County. His newly ap-

pointed counsel for the second trial was Donald W. Hager, a

public defender. Hager neither interviewed Jones before trial

nor called him to testify on behalf of Chambers. At the conclu-

sion of evidence, Hager requested a self-defense instruction. As

with the first trial, the trial court refused. Moreover, Hager was

not permitted to argue self-defense in his closing argument. The

second trial also resulted in a conviction for capital murder and

a sentence of death.

With the assistance of yet another attorney, Chambers again

appealed to the Missouri Supreme Court. This time, however,

the court affirmed the conviction and death sentence. State v.

Chambers, 714 S.W.2d 527 (Mo. banc 1986) (Chambers

I1(Donnelly, J. and Welliver, J., dissenting).

On November 12, 1986, Chambers filed a motion in the Cir-

cuit Court of Jefferson County under Missouri Rule 27.26. A

hearing on this motion was held on February 3, 1987. The

issues raised at this hearing included whether Chambers received

ineffective assistance of counsel at his second trial because

Hager failed to interview or call Jones at trial. At this hearing,

Jones gave a similar account of the incident to the account that

he had given at Chambers’ first trial. Jones also testified that

neither Hager nor anyone else from the public defenders’ office

had contacted him since the first trial.

Hager also testified at the Rule 27.26 hearing. He conceded

that Jones was not contacted by him or anyone else in the public

defender’s office. Hager stated that he did not interview or call

Jones at trial because he felt that Jones’ testimony at the first

trial contained aspects which were very damaging to Chambers.

—~ oo

Hager testified Jones would testify that Chambers stepped out-

side first, stopped, turned, and waited for Oestricker, conceal-

ing a pistol against his leg, that Chambers pistol-whipped

Oestricker and shouted, ‘‘Lay there and die,’’ that Oestricker

was six feet away and not moving towards Chambers at the time

of the shooting, and that Chambers left the scene in a car that

was facing the road with its engine running.

Chambers’ Rule 27.26 motion was denied by the Circuit

Court of Jefferson County. His appeal of that ruling was

denied by the Missouri Court of Appeals, and his application

for transfer to the Missouri Supreme Court was denied.

Chambers next filed a petition for a writ of habeas corpus in

federal court. On habeas, Chambers alleged, inter alia, that he

was denied effective assistance of counsel at the second trial.

The district court held that Hager’s performance was above that

of a reasonable attorney. In specific reference to Hager’s deci-

sion not to interview or call Jones at trial, the court concluded

that this decision was reasonable because of the damaging

aspects of Jones’ testimony during the first trial, Jones was not

a credible witness, and Chambers signed a pretrial statement in

which he agreed with Hager’s decision not to call Jones at trial.

Chambers appeals the district court’s decision to this Court.

On appeal, he raises only one issue that merits our attention:

- Did Hager’s decision aot to interview or to call Jones at trial

deny Chambers effective assistance of counsel?’

' Chambers also raises two other issues: (1) Hager’s decision not to

interview or call as witnesses Donald Chapman, Eleanor Hotchkiss

and Jackie Turner denied Chambers effective assistance of counsel,

and (2) Chambers was denied a fair trial by the trial court because it

failed to submit a self-defense instruction to the jury. As to the

former issue, we have carefully examined the record and find that it is

without merit. As to the latter issue, the trial court was correct not to

submit the self-defense instruction in light of the fact that, absent

Jones’ testimony, there is insufficient evidence to support the theory

that Chambers acted in self-defense.

ma ieee i eA ORS

he th ee

NS RR eh A el

— A-35 —

Il. DISCUSSION

Under the standards for analyzing a claim of ineffective

assistance of counsel, enunciated in Strickland v. Washington,

466 U.S. 668 (1984), Chambers must show that Hager’s perfor-

mance was deficient and that it prejudiced Chambers’ defense.

Id. at 687. Counsel’s performance is deficient if the perfor-

mance is less than that provided by reasonable counsel under

the same circumstances. /d.

Chambers alleges that Hager’s decision not to interview or

call Jones at trial was unreasonable for three reasons. First,

Hager’s testimony, confirmed by the facts of the case, indicates

that there was only one defense on which Chambers could rely.

From this, Chambers asserts that Hager’s failure to investigate

Jones or to call him at trial left Chambers with no defense to

capital murder. Second, the seriousness of the charges against

Chambers must be considered in assessing the reasonableness of

Hager’s decision. Finally, an interview with Jones would have

given Hager an opportunity either to confirm or to clarify the

problems he saw in Jones’ testimony at the first trial and to be

more effective in his cross-examination of the government

witnesses.

We are guided in our determination of whether Hager was

reasonable in deciding not to interview or call Jones at trial by

the Supreme Court’s decision in Strickland.

[S]trategic choices made after thorough investigation of

law and facts relevant to plausible options are virtually un-

challengeable; and strategic choices made after less than

complete investigation are reasonable precisely to the ex-

tent that reasonable professional judgments support the

limitations on investigation. In other words, counsel has a

duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations

unnecessary. In any ineffectiveness case, a particular deci-

sion not to investigate must be directly assessed for

— A-36 —

reasonableness in all the circumstances, applying a heavy

measure of deference to counsel’s judgments.

Id. at 690-91.

The question before us is whether Hager’s less than complete

investigation of Jones was reasonable from counsel’s perspec-

tive at the time that decision was made. In this regard, we must

set forth the factual circumstances that a reasonable attorney

would have known from the first trial and the likely path the se-

cond trial would take.

Chambers has never disputed shooting Oestricker. Chambers

has never asserted that he and Oestricker did not argue with

each other in the bar. Chambers has never disputed that both

he and Oestricker challenged each other to a fight. Chambers

did dispute, however, the government’s theory that the fight

was a ruse on Chambers’ part to lure Oestricker outside where

he could murder him. Moreover, there was no indication from

the state that the testimony at the second trial would significant-

ly differ from the testimony given at the first trial. From this

background, reasonable counsel would have anticipated that

Chambers’ second trial would proceed much like the first trial.

In light of the above facts, we believe that Hager’s determina-

tion that the negative aspects of Jones’ testimony outweighed

the positive aspects was unreasonable because the damaging

portion of Jones’ testimony was either cumulative of earlier

testimony given by witnesses for the state or of de minimis ef-

= AS? —

fect.? Several witnesses testified that Chambers left the bar first

and waited for Oestricker. James Fowler, a bar patron, testified

that, as the defendant left the bar, he pulled out a gun and then

concealed it from view with his body as he waited outside for

Oestricker. State of Missouri v. Chambers, No. 64709, T. at

? The only damaging testimony of Jones not directly testified to by

one of the state’s witnesses is that the engine in the waiting car was

running and the car was parked in such a manner to permit an im-

mediate exit. Both of these facts, however, were implicit in Dennis

Simmons’ testimony. Simmons, who was standing about 150 feet

from the bar and whose attention was caught by the sound of the gun,

testified at the first trial that Chambers ran to a ‘‘waiting’’ car, which

sped off immediately. Chambers I, T. at 656-57. Simmons also

testified that the driver was waiting in the car. Simmons’ testimony

was not contradicted nor was he extensively cross-examined as to these

points. Moreover, reasonable counsel would have concluded that the

damaging effect of this testimony, in light of the information

available to Hager at the time he made this decision, would have been

de minimus.

~—e

505-07 (Chambers I, T. );’ State of Missouri v. Chambers, No.

67191, T. at 568-88 (Chambers II, T.). Fred leppert testified

that Chambers had a gun at his side. Chambers I, T. at 466.

Other witnesses testified at both trials that Chambers was pull-

ing a “‘knife or something’’ out of his pants as he was leaving.

Several witnesses testified that Chambers pistol-whipped

Oecstricker. Chambers I, T. at 465, 508, 556, 645, 654 and 689;

* Fowler’s relevant testimony at the first trial proceeded as follows:

Q_ [Mr. Finnical, the prosecutor] Did you have an

unobstructed view out the door or was it blocked?

A Straight view.

Q Did you see Chambers walk outside?

A Yes, sir; I did.

Q What, if anything, did you see Chambers do when he walk-

ed outside?

A As he walked out the door, he made about three or four,

maybe five steps. He stepped, had both hands in front of him,

more or less turned mostly to the left, the left of his body turned

toward the door.

He reached in the front of his shirt, pulled up, I don’t know

if he grabbed with his right hand or left hand, but he pulled a

revolver out of the front of his pants.

He looked back over his shoulder, took two more steps,

looked over his shoulder again, and | seen the barrel.

He cocked it, put it down to his side, towards his chest; then

he started down toward his side.

Q How far was Chambers outside the door when he finally

stopped?

MR. ALLRED [Chambers’ counsel]: Object to that. He

testified to it. It's repetitious.

THE COURT: Overruled.

Q (By Mr. Finnical) How far outside the door was Chambers

when he stopped?

— A-39 —

Chambers II, T. at 374-77, 420, 458, 501, 524, 540-41 and 590.

Fred leppert also testified in the first trial that, after Chambers

had knocked Oestricker down to the ground and Oéestricker

stood up, Oestricker was six feet away and standing when

Chambers shot him. Chambers I, T. at 464. See also Chambers

II, T. at 447 (testifying that the distance separating the two was

five feet). Numerous witnesses testified that Chambers shouted

A Approximately twelve foot or so.

Q Twelve foot. Okay. So, if this is the door through which

Chambers walked going out that way, | want you to stand out

here and walk, do what you saw Chambers walk and do.

A He walked out one, two, three steps, turned around, look-

ed, raised up his shirt, pulled the pistol out, made two more

steps, left side back, cocked it, set the gun to his side, then

brought it back down to his side. How did he position his body

to the door?

A You could see most of his left side at an angle, more of his |

left side than his full back.

Q Was he looking back or looking towards the parking lot?

A He was looking back at the door.

Q After you saw him cock the gun and put it next to his chest

and come to a stop, could you see the gun or was it obstructed by

his body?

A It was obstructed by his body.

Q When Chambers walked out of the door and proceeded to

get this pistol and proceeded a couple more steps and cocked it

MR. ALLRED: Object to the leading questions, your

Honor.

THE COURT: Overruled.

Q (By Mr. Finnical) Where was Ocstricker at the time

Chambers was outside with the pistol like this? Was he still in-

side or outside?

A He was outside, sir.

>

SE

~~ =

several epitaphs after shooting Ocstricker. Chambers I, T. at

466, 509, 542, 566, 680 and 700; Chambers II, T. at 330, 360,

375, 420-21, 508 and 591. In sum, other witnesses had testified

to the negative aspects of Jones’ testimony. Thus, any damag-

ing testimony that Jones gave at the first trial was cumulative.

The state also argues that Hager’s decision not to interview

Jones was reasonable because Hager’s determination that Jones

lacked credibility was reasonable. We do not agree. Hager

never met Jones nor spoke with him on the telephone. The state

fails to point out any evidence upon which a reasonable at-

torney could determine a witness’ credibility. Moreover, the

government made no attempt to impeach Jones at the first trial,

a fact that is inconsistent with Hager’s determination that Jones

lacked credibility. Furthermore, the Missouri Supreme Court

Q Where would you say he was?

A Approximately right here.

Q Did Oestricker have anything in his hands as he walked out

the door?

A No, sir; he didn’t.

Q Did Oestricker subsequently walk out the door?

A Yes, sir.

Q Was Chambers still standing out there twelve or so feet

out?

A Yes, sir.

Q What did you do then?

A I see him pull the pistol and an older man standing next to

me hollered out: ‘‘He’s got a knive."’

Q What happened then?

A About the time Ocstricker walked out the door | said:

“Knife, hell; he’s got a gun."

— A-41 —

obviously did not view Jones as a witness who lacked crediblity

| because it based its decision in Chambers I on his testimony

alone.

This is not a case where further investigation of a potential

defense was unnecessary because counsel reasonably intended

not to use that defense at trial. Strickland, 466 U.S. at 696. The

| self-defense theory, as either a partial or total defense, was

) Chambers’ only possible defense during either the merits phase

or the sentencing phase. This is also not the case where the

defendant gave his attorney reason to believe that pursuing cer-

tain investigations would be fruitless or even harmful. /d.

Chambers’ signed statement, in which he agreed with Hager’s

decision not to call Jones,‘ fails to make Hager’s conduct

reasonable. First, Hager did not rely on Chambers’ statement

) because the text clearly indicates that Hager had already made

| the decision not to call Jones. Second, even if he had relied on

| Chambers’ advice, rather than using his own professional judg-

ment, Hager’s conduct would violate Missouri’s Rule of Profes-

| sional Conduct 1.2(a).

| Hager’s decision not to call Jones at trial and to rely only on

his ability to cross-examine the state’s witness in Chambers’

defense, given the facts at the time of the second trial, was

unreasonable. The decision manifested both arrogance and a

failure to adequately appraise his client’s situation. The only

evidence supporting either the self-defense theory or a verdict of

* Chamber's signed statement is as follows:

I agree that Mr. Hager need not subpoena or call James Jones

at my trial. His cross examination at the first trial was extremely

damaging to me and I believe it would be at the second trial. |

have been admonished that by not calling James Jones it may

not be possible to obtain a jury instruction on self defense.

4/13/85 /s/ James W. Chambers

EE

hi —

guilty of a lesser included offense which Hager could have

elicited on cross-examination was that Oestricker was ‘‘crazy

drunk’’ and spoiling for a fight. No other witness was prepared

to testify that Oestricker knocked Chambers down before the

shot was fired. In addition, Hager’s decision not to call Jones

was based on inadequate investigation. See Strickland, 466

U.S. at 690-91 (‘‘strategic choices made after less than complete

investigation are reasonable to the extent that reasonable pro-

fessional judgments support the limitations on investigation’’).

Moreover, the Missouri Supreme Court implicitly advised

Chambers’ counsel to call Jones to testify at his second trial.

Chambers I, 671 S.W.2d at 783.

Thus, both Hager’s decision not to interview Jones and his

decision not to call Jones at trial were unreasonable and,

thereby, meet the ‘‘deficiency’’ prong of Strickland. Only

Jones’ testimony in the first trial contradicted the state’s theory

of the case. Only Jones’ testimony in the first trial -- albeit with

the exception of testimony about the argument in the bar and

testimony about the differences in size between the two men —

provided Chambers with evidence that he killed Oestricker in

self-defense. The Missouri Supreme Court had stated that

something more than the barroom argument and the differences

in physical size — something indicating the immediacy of

danger — had to be present to justify a self-defense instruction.

Chambers I, 671 S.W.2d at 783. Only Jones’ testimony in the

first trial indicated that there was this immediacy of danger.

Nothing in Jones’ testimony at the first trial was sufficiently

damaging to Chambers, in light of the other testimony, that

reasonable counsel would have been justified in not calling

Jones. Hager had at his disposal the address and phone number

of Jones and a paid investigator was available to locate, inter-

view and subpoena Jones. Most importantly, the second trial

was likely to proceed in a similar fashion as the first trial, but

= firld —

Hager unreasonably failed to follow the Missouri Supreme

Court’s implicit advice in Chambers I.’

The question remains whether, in light of all the cir-

cumstances, Hager’s ineffective assistance of counsel resulted in

any prejudice. Prejudice occurs when “‘there is a reasonable

probability that, but for counsel’s unprofessional errors,’’ the

**result would have been more favorable to the defendant.’’ Jd.

at 694-95; Sanders v. Trickey, 875 F.2d 205, 208 (8th Cir. 1989).

This standard for determining prejudice is somewhat lower than

the preponderance of the evidence standard. Jd. ‘‘A reasonable

probablity is a probability sufficient to undermine confidence in

the outcome.’’ Jd. at 694; Byrd v. Armontrout, No. 88-1903,

slip op. at 3 (June 27, 1989).

Jones’ testimony had the potential to greatly aid Chambers’

case. Jones was a fully disinterested witness who testified that

Oestricker hit Chambers before the shot was fired. The only

facts that were overwhelmingly conclusive at the second trial

were that Chambers and Oestricker engaged in a loud argument,

that Chambers shot Oestricker, and that Chambers struck

Oestricker in the face with his pistol after shooting him.

Chainbers did not contest those issues. Rather, Chambers

argued that he acted in self-defense or with legal provocation

* Judge Blackmar of the Missouri Supreme Court noted this point in

his concurring opinion in Chambers II.

There is a mystery as to why the evidence that the victim struck

the defendant, knocking him to the ground, which was held to

require a self-defense instruction in the first trial, was not of-

fered in the second.

.

Chambers II, 714 S.W.2d at 534 (Blackmar, J., concurring). In

dissenting from a holding that there was insufficient evidence at the

second trial to justify submission of a self-defense instruction, Judge

Welliver of the Missouri Supreme Court stated, ‘‘The principal opin-

ion, I fear, becomes the best evidence for proof of a charge of ineffec-

tive counsel.’ Jd. (Welliver, J., dissenting). We agree.

—_

contesting the state’s theory that the barroom brawl was just a

ruse in Chambers’ premeditated and deliberate murder of

Oestricker. Only Jones’ testimony substantially supported

either approach.

Nevertheless, Missouri argues that Chambers cannot make a

showing of prejudice because the other evidence against him

was sufficiently impressive that his failure to call Jones was not

likely to have altered the outcome of the case. Missouri also

argues that Strickland does not stand for the principle that the

reasonable probability of being found guilty of a lesser charge is

prejudice.

Missouri’s arguments against a finding of prejudice represent

misreadings of Strickland. Sirickland does not require

Chambers to prove that Jones’ testimony would have likely af-

fected the outcome. ‘‘[W]e believe that a defendant need not

show that counsel’s deficient conduct more likely than not

altered the outcome in the case.’’ Jd. at 693. Strickland merely

requires ‘‘a probability sufficient to undermine confidence in

the outcome.’’ /d. at 694. Thus, Chambers does not have to

prove that Hager’s ineffective assistance of counsel was out-

come determinative. As to the lesser charge issue, Missouri’s in-

terpretation conflicts with language in Strickland focusing on

the ‘‘likelihood of a result more favorable to the defendant.’’

Id. at 695. Moreover, the state’s version is incongruent with the

Supreme Court’s explicit recognition that prejudice can occur in

sentencing alone. /d. If a smaller sentence is prejudice, then a

conviction of a lesser charge resulting in a smaller sentence also

constitutes prejudice.

Considering all the circumstances, there is a reasonable prob-

ability that, absent Hager’s decision not to interview or call

Jones at trial, the jury woud have acquitted Chambers of

capital murder, either by finding him guilty of a lesser charge or

by finding that he acted in self-defense.

— A-45 —

~ Nt ee otal Rit nis cere eae aetna

il. CONCLUSION

| At the time of the second trial, this case appeared to involve a

barroom brawl or altercation. Chambers did not, and could

not, deny shooting Oestricker. His only defense to the charge

of capital murder and the death penalty was that he acted in

self-defense. Only one witness could testify to one of the re-

| quired elements of self-defense to justify submitting the issue to

the jury. That witness’ harmful testimony would have appeared

to reasonable counsel at the time of the second trial to be

cumulative. Yet, Chambers’ counsel did not interview or call

this witness to the stand, although he knew of his existence and

testimony and was able to contact him. On these facts, we hold

that Chambers received ineffective assistance of counsel. In our

view, there is a reasonable probability that, absent this error,

Chambers would not have been convicted of capital murder.

Therefore, we reverse and remand to the district court to enter

an order that the state either retry Chambers within 120 days of

this order or free him from custody. The district court shall fur-

ther order that the state shall notify this court and the district

court of its intention in this regard within 45 days of this order.

JOHN R. GIBSON, Circuit Judge, dissenting.

I respectfully dissent.

The court today concludes that trial counsel Hager’s failure

; to interview Jones or to call him as a witness at trial constituted

ineffective assistance of counsel under Strickland’s tests for

i reviewing claims of ineffective performance and prejudice.

Because I conclude that neither element of the Strickland test is

satisfied, I would affirm the judgment of the district court deny-

ing the writ.

The decision of the Missouri Supreme Court in its considera-

tion of the facts in the case clearly indicates that evidence to

support the self-defense instruction could have come only from

=

Jones,' and we know from the record that Jones was not called

to testify at the second trial. However, the state trial court, in

considering the collateral attack under Missouri’s Rule 27.26,

concluded that Jones’ testimony, on balance, was more Gamag-

ing than helpful to Chambers. After observing that counsel

‘*could cho[o]se between a weak self-defense theory that carried

with it a strengthening of the State’s case,’’ or try the case as he

did, the state court concluded that the decision not to call Jones

' The Missouri Supreme Court, in reversing the Chambers / trial,

observed that there was conflicting evidence as to the incident and that

**{iJn examining the record for evidence of self-defense, we must con-

sider the evidence in [the] light most favorable to appellant

Chambers.’ State v. Chambers, 671 A.Q.2d 781, 783 (Mo. 1984) (en

banc). After reviewing the evidence in that manner, the court con-

cluded that ‘‘[w]hile the evidence of self-defense is not so unequivocal

as to mandate a directed verdict of acquittal, the evidence is sufficient

to justify submission of self-defense to the jury.’’ Id. at 784.

— A-47 —

was a reasonable one.*? The Missouri Court of Appeals affirmed

the conviction, Chambers v. State, 745 S.W.2d 718 (Mo. Ct.

App. 1987), and Chambers’ application for transfer to the

Missouri Supreme Court was denied. The district court, in this

? The detailed reasoning of the state trial judge is as follows:

During this proceeding, Donald Hager testified that the deci-

sion not to call Jones was [a] deliberate one, based upon

strategic concerns. That, having the benefit of Jones’ testimony

on cross-examination adduced at the first trial, in his profes-

sional opinion, the disadvantages of Jones’ testimony outweigh-

ed the advantages. The State’s cross-examination * * * was

highly damaging in that it supported the State’s theory of the

case under a capital murder submission. Mr. Hager knew that

although Jones’ testimony would have supported a self-defense

instruction, it corroborated the State’s main witness — Fred Iep-

pert — and conflicted with his defense strategy. His strategy at

trial was to: 1) attack the credibility of the State’s witnesses; 2)

suggest that Oestricker had a pair of pliers in his hands; and 3)

attempt to negate the element of Chambers reflecting ‘‘cooly’’

upon * * * taking the life of Oestricker. The fact that Jones was

in a position to observe the condition of the getaway car with

running engine and the distance between the victim and peti-

tioner at the time of the fatal shot would have made this trial

strategy almost impossible from a practical standpoint.

Without Jones’ testimony a jury might believe, as at least one

[Missouri] Supreme Court Judge did, that the whole matter was

just ‘‘an ordinary barroom altercation’’ thus negating the cool

reflection that might not exist under those circumstances.

In light of the foregoing, the Court finds that petitioner’s trial :

counsel’s decision not to call Jim Jones was a reasonable one

based on his professional judgment in consideration of the

evidence and the circumstances in the first trial.

: Chambers v. Missouri, No. CV186-4580-CC-J3, slip op. at

12-13 (23d Cir. March 11, 1987). The court also rejected

Chambers’ claim that he had not read the signed statement

which indicated that he agreed with the decision not to call

Jones. /d. at 14 n.2.

habeas corpus action, concluded that Jones’ testimony would

have supported the state’s theory of the case. It also concluded

that because the trial counsel’s failure to investigate further

resulted from a strategic decision made in the exercise of profes-

sional judgment, his performance was not deficient. Because it

decided that the trial counsel rendered effective assistance, the

district court did not reach the question of prejudice.’

The effectiveness component of the Strickland test asks

whether the defendant received ‘‘reasonably effective

assistance.”’ 466 U.S. at 687. Moreover, Strickland teaches

that judicial scrutiny of counsel’s performance must be ‘‘highly

deferential,’’ id. at 689, and should eliminate the ‘‘distorting ef-

fects of hindsight,’’ id.

In performing the first part of the Strickland analysis, courts

distinguish between pretrial preparation and trial strategy deci-

sions. See Burger v. Kemp, 483 U.S. 776, 788-95 (1987); Kim-

melman vy. Morrison, 477 U.S. 365, 384-87 (1986); Darden v.

Wainwright, 477 U.S. 168, 184-87 (1986); Strickland, 466 U.S.

_—

> The district court’s reasoning is of interest:

The Court finds reasonable counsel’s conclusion that Jones’

testimony would have tended to support the state’s theory of the

case and thus his decision not to call Jones as a witness. This is

especially true in view of petitioner’s written and signed pretrial

statement that he agreed with counsel’s decision in this regard.

As the United States Supreme Court; noted, ‘‘[t]he

reasonableness of counsel’s adtions may be determined or

substantially influenced by the petitioner’s own statements or

actions.”’ Strickland, supra, 466 U.S. at 691. Furthermore,

counsel reasonably assessed the affect [sic] of Jones’ earlier

testimony on both the state’s theory of the case and Jones’

credibility as a witness.

Chambers v. Armontrout, No. 88-0567C(3), slip op. at 12 (E.D. Mo.

July 19, 1988).

—

he ah

at 687-91; United States v. Gray, 878 F.2d 702, 711 (3d Cir.

1989); Laws v. Armontrout, 863 F.2d 1377, 1382-86 (8th Cir.

1988) (en banc), cert. denied, 109 S.Ct. 1944, reh’g denied, 109

S.Ct. 3179 (1989). ‘‘[{C]ounsel has a duty to make reasonable

investigations or to make a reasonable decision that makes par-

ticular investigations unnecessary. In any ineffectiveness case, a

particular decision not to investigate must be directly assessed

for reasonableness in all the circumstances, applying a heavy

measure of deference to counsel’s judgments.’’ Strickland, 466

U.S. at 691. The Third Circuit recently stated: ‘‘Ineffect:veness

| is generally clear in the context of complete failure to investigate

| because counsel can hardly be said to have made a strategic

choice against pursuing a certain line of investigation when s/he

has not yet obtained the facts on which such a decision could be

made.”’ Gray, 878 F.2d at 711.

In contrast to the relatively close scrutiny which courts give to

an attorney’s preparatory activities, greater deference is given to

an attorney’s informed strategic choices. Indeed, it has been

clear since Strickland that ‘‘strategic choices made after

thorough investigation of law and facts relevant to plausible op-

tions are virtually unchallengeable.’’ Strickland, 466 U.S. at

690. In reviewing the performance of counsel, ‘‘courts must

resist the temptation to second-guess a lawyer’s trial strategy.’’

Laws, 863 F.2d at 1393 (quoting Blackmon v. White, 825 F.2d

1263, 1265 (8th Cir. 1987)). Even a losing strategy ‘‘may have

been reasonable in the face of an unfavorable case.”’ Jd. at 1394

(emphasis removed) (quoting Blackmon, 825 F.2d at 1265).

Chambers attempts to formulate arguments based upon

Hager’s allegedly inadequate investigation. However, as the

Seventh Circuit observed:

When the allegation of the ineffectivness of counsel

centers on a supposed failure to investigate, we cannot see

how, especially in the context of a habeas proceeding that

collaterally attacks the state court conviction, the peti-

tioner’s obligation can be met without a comprehensive

— A-50 —

showing as to what the investigation would have produced.

The focus of the inquiry must be on what information

would have been obtained from such an investigation and

whether such information, assuming its admissibility in

court, would have produced a different result.

United States ex rel. Cross v. DeRobertis, 811 P.2d 1008, 1016

(7th Cir. 1987).

Hager, trial counsel in Chambers’ second trial, read the

transcript of Jones’ testimony in the first trial and concluded

that it was more damaging than helpful. The only reason to in-

terview Jones would have been to see if he would change his

story. Hager decided not to interview Jones because even any

substantial changes in his story would create an excessive danger

of devasting impeachment. Chambers v. State, 745 S.W.2d at

720. Thus, although Chambers claims that he is challenging

Hager’s preparation, he is, in fact, attempting to challenge these

strategic decisions by Hager.

My review of the record convinces me that both the state trial

court and the district court properly assessed Jones’ testimony.

At the first trial, Jones testified that Chambers arrived in a car

which was turned to face the exit of the parking lot. (Tr. first

trial 748). As Chambers entered the building, the car was left

running and was still occupied by the driver. (Tr. 748-49). Jones

testified that he saw Chambers come out the door, get about

half the distance of an automobile or truck, and turn half-way

‘toward the door. (Tr. 738). Oestricker followed Chambers out

the door and struck Chambers hard enough to knock him

down. (Tr. 738). Chambers then got up, took a step forward,

and shot O6estricker. (Tr. 738). However, on cross-

examination, Jones revealed that when Chambers walked out

the door and turned around half-way, he already had a pistol in

his hands, (Tr. 740), with the gun against his leg and positioned

behind him, (Tr. 741). Odcestricker was just emerging through

the door when Chambers stopped, turned around with the gun

— A-51 —

in hand, and waited for Oestricker to come out. (Tr. 741-42).

Jones testified that he had not seen Oestricker attempt to strike

Chambers before Chambers initially took the gun out. (Tr.

742). According to Jones, after Chambers shot Oestricker,

Chambers said either ‘‘[t]ake that tough guy,”’ or ‘‘[t]ake that.”’

(Tr. 742). After being shot, Oestricker made a grunting sound

and backed up three or four steps. (Tr. 742). Chambers then

walked toward him and slapped him in the head with the pistol

‘over and over again.’’ (Tr. 742-43). Oestricker was standing

about six feet away from Chambers at the time of the shot and

was not moving toward Chambers. (Tr. 747). Jones also said

that, after shooting Oestricker, Chambers walked into the

building and asked ‘‘if anybody else wanted any of this.’ (Tr.

746). As he left the building, Chambers said to Oestricker,

**Lay there and die.’’ (Tr. 747).

Based upon this testimony, I cannot conclude that trial

counsel acted in any unreasonably ineffective manner by

deciding not to call Jones. Even if Jones’ testimony supported a

self-defense instruction, as the Supreme Court of Missouri held,

the testimony also indicated that Chambers, with a pistol con-

cealed against his leg, waited for Oestricker to come out the

door and, after being struck, fired the fatal shot while

Oestricker was six feet away and was not moving toward him.

Chambers, after threatening the crowd in the bar, then ran to

the car which had waited for him, with its motor running, dur-

ing the entire incident.

While the question of whether there was evidence to support

the giving of a self-defense instruction involves consideration of

the evidence in the light most favorable to Chambers, a profes-

sional evaluation of the trial impact of the testimony involves

consideration of that testimony in the light that the jury would

consider it. This is a far broader analysis and | cannot conclude

that Hager was unreasonably ineffective in his assessment of the

impact of the Jones testimony on the jury. The Supreme Court

has refused to find ineffective assistance where a lawyer did not

s

hd

— A-52 —

introduce helpful evidence which, in turn, could have led to the

introduction of other more harmful testimony. See Burger, 483

U.S. at 788-95; Darden, 477 U.S. at 184-87. The testimony of

Jones presented just such a dilemma for Hager, and we should

follow the teaching of the Supreme Court by refusing to con-

clude that there was ineffective assistance in this respect.

It is also important to consider the fact that, before the se-

cond trial, Chambers signed a statement in which he agreed with

the decision not to call Jones. The Supreme Court stated in

Strickland that ‘‘[t]he reasonableness of counsel’s actions may

be determined or substantially influenced by the defendant’s

own statements or actions,’’ 466 U.S. at 691, and that those

statements are critical to a proper «ssessment of litigation deci-

sions, id. When this statement is considered in combination

with the content of Jones’ testimony at the first trial, I am con-

vinced that the decision not to call Jones was reasonable under

Strickland.

Furthermore, even if the trial counsel should have called

Jones, the Strickland test is not satisfied unless Chambers can

also demonstrate ‘‘that the deficient performance prejudiced

the defense.’’ Strickland, 466 U.S. at 687. In order to prove

prejudice, ‘‘[t]he defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.’’ /d. at 694.

A reasonable probability is defined as one which is ‘‘sufficient

to undermine confidence in the outcome.’’ /d. After a

thorough examination of the record, I conclude that there is not

a reasonable probability that the introduction of Jones’

testimony would have changed the outcome of the second trial.

Accordingly, I would affirm the judgment of the district

court denying the writ.

A true copy.

Attest:

Clerk, U.S. Court of Appeals, Eighth Circuit.

— A-53 —

APPENDIX E

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 88-0567C(3)

James W. Chambers,

Petitioner,

v.

Bill Armontrout,

Respondent,

ORDER

A memorandum dated this day is hereby incorporated into

and made a part of this order.

IT IS HEREBY ORDERED that the second amended peti-

tion for writ of habeas corpus filed by James W. Chambers pur-

suant to 28 U.S.C. § 2254 is denied on its merits.

IT IS HEREBY FURTHER ORDERED that, to the extent

they remain before the Court, the parties’ separate requests for

hearings and respondent’s motion to reconsider are denied as

moot.

IT IS HEREBY FURTHER ORDERED that the stay of ex-

ecution entered on June 20, 1988, is extended from July 20,

1988, to August 20, 1988.

Dated this 19th day of July, 1988.

/s/ William L. Hungate

United States District Judge

oo

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 88-0567C(3)

James W. Chambers,

Petitioner,

Ve

Bill Armontrout,

Respondent.

MEMORANDUM

This matter is before the Court on the petition for writ of

habeas corpus filed by James W. Chambers pursuant to 28

U.S.C. § 2254.

In 1985, petitioner was convicted of capital murder in the

1982 death of Jerry Lee Oestricker.' The jury recommended the

death penalty and petitioner was sentenced accordingly. On

direct appeal, the Missouri Supreme Court affirmed the convic-

tion and sentence. State v. Chambers, 714 S.W.2d 527 (Mo.

1986) (en banc). Thereafter, petitioner filed in state court a re-

quest for relief under then-cffective Missouri Supreme Court

Rule 27.26 which was denied. The Missouri Court of Appeals

affirmed that ruling. Chambers v. State, 745 S.W.2d 718 (Mo.

App. 1987).

On March 23, 1988, petitioner filed in this Court his original

pro se petition for writ of habeas corpus pursuant to 28 U.S.C.

' This was a retrial after the Missouri Supreme Court reversed peti-

tioner’s earlier conviction for Mr. Oecstricker’s death. State v.

Chambers, 671 S.W.2d 781 (Mo. 1984) (en banc) (‘‘Chambers I’’).

That decision overturned the first conviction based on a finding the

evidence introduced at petitioner’s December 1982 trial warranted a

self-defense instruction that had been refused by the trial court. /d.

— ASS —

§ 2254. Petitioner’s appointed counsel subsequently filed

amendments to that petition. Now before the Court are four

claims’ for federal habeas relief based on alleged violations of

due process and effective assistance and counsel guarantees of

the fifth, sixth, and fourteenth amendments to the United States

In particular, petitioner alleges (I) he was denied the effective

assistance of trial counsel by that attorney’s failure to interview

and call as witnesses Donald Chapman, James Jones, and

Eleanor Hotchkiss; (II) he was denied effective assistance of

trial counsel by that attorney’s failure to locate and interview

witnesses at an eye doctor’s office where petitioner reportedly

made certain incriminating statements; (III) he was denied a fair

trial when the trial court refused to give a self-defense instruc-

tion offered by petitioner; and (IV) he was denied a fair trial

when the trial court denied petitioner’s motion for change of

venue due to pretrial publicity.

Respondent does not contend petitioner has failed to exhaust

any of these claims. Thus, the Court finds the exhaustion prere-

quisite to federal habeas relief has been satisfied. See 28 U.S.C.

§ 2254(b).

Respondent does urge, however, that petitioner is barred

from pursuing his claim of ineffective assistance >f trial counsel

due to that attorney’s failure to interview and call as a witness

Eleanor Hotchkiss. Respondent argues that petitioner did not

present evidence on this claim during the hearing on his post-

conviction proceeding and did not raise the issue on appeal

therefrom. Since petitioner has not shown ‘‘cause’’ for failing

to do so, the attorney’s decision not to investigate Ms. Hot-

* Petitioner’s second amended petition, the petition now before the

Court, does not reiterate several claims set forth in petitioner's

Original and first amended petitions. Thus, the Court does not now

address those claims.

— A-56 —

chkiss further was reasonable, and the evidence at trial was

overwhelming, respondent contends petitioner has not satisfied

the ‘‘cause and prejudice’’ test of Wainwright v. Sykes, 433

U.S. 72 (1977). Petitioner counters that the Court need not con-

sider this as a separate matter because this claim is intertwined

with the ineffective assistance of counsel claim regarding

Donald Chapman and James Jones, citing Smith v. Wolff, 506

F.2d 556 (8th Cir. 1974). The Court finds Smith allows the con-

sideration of this claim, since it is intertwined with the other in-

effective assistance of counsel claims. Thus, the Court will con-

sider the merits of this claim along with petitioner’s other inef-

fective assistance of counsel claims.

A. Ineffective Assistance of Counsel Claims’

Petitioner alleges that Donald Chapman’s testimony at the

post-conviction proceeding shows that (1) on the evening of

May 29, 1982, he drove to the Country Club Lounge with peti-

tioner, Eleanor Hotchkiss, and Jackie Turner to find a boat and

a lantern for fishing; (2) he parked facing the street and watched

in the rearview mirror for petitioner to come out of the tavern;

(3) he saw petitioner come out, followed by Mr. Oestricker; (4)

he saw petitioner ‘‘smacked dead in the face’’ by Oestricker and

then fall backwards; (5) once the fight started, Mr. Chapman

watched through the rear window of his car; and (6) Oestricker

started toward petitioner again, petitioner ‘‘jumped up and they

grabbed each other and I heard a shot go off.”’

Petitioner alleges James Jones’ testimony at the post-

conviction proceeding shows that (1) he was in his car on the

parking lot of the Country Club Lounge the evening of May 29,

1982; (2) he saw a small man come out of the tavern followed by

a big man, he heard the two men exchange a few words, and

*Petitioner is alleging his counsel at his second trial, not his first

trial, was ineffective.

— A-57 —

then he saw the big man hit the small man; (3) the small man

started to get up and shot the big man with a gun the small man

had in his hand when he came out of the tavern.

Petitioner alleges Eleanor Hotchkiss’ affidavit, which was

submitted to this Court with ‘‘petitioner’s reply to respondent’s

response to order to show cause,’’ shows (1) she was in the car

with Donald Chapman, Jackie Turner, and petitioner when,

during the evening of May 29, 1982, they drove to the Country

Club Lounge looking for a boat and lantern; (2) just prior to

and during the ride to the lounge, she heard no mention of Jerry

Oestricker’s name; (3) when they arrived at the lounge, peti-

tioner got out of the car saying, ‘‘I’m going to go in to see about

a boat and a lantern;’’ (4) while petitioner was gone, she was sit-

ting in the car, facing away from the lounge; and (5) she did not

“‘see anything that happened outside the bar and then [she]

heard a gunshot. [She] was scared then.’’

Petitioner further alleges that testimony at the post-

conviction proceeding from one of the eye doctor’s patients

shows petitioner did not make the allegedly incriminating

statements reportedly made by him on January 3, 1985, at an

eye doctor’s office in Arnold, Missouri.

Each of these potential witnesses stated that petitioner’s trial

counsel did not contact or attempt to contact them. Petitioner

now urges the failure to investigate and present these individuals

at the second trial constituted ineffective assistance in light of

the fact self-defense was petitioner’s defense; there was no

eyewitness testimony at trial of exactly what occurred when the

two men first left the lounge; and petitioner was trying to negate

the State’s theory that petitioner cooly deliberated on the

murcuer prior to the incident.

In construing the constitutional requirement for effective

assistance of counsel, the ‘‘benchmark . . . must be whether

counsel’s conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having

— oe

produced a just result.’ Strickland v. Washington,, 466 U.S.

668, 686 (1984). The Court determines whether counsel’s per-

formance was deficient and, if so, whether the deficient perfor-

mance prejudiced the defense. Jd. at 687. In analyzing

counsel’s performance, the Court must determine whether,

under all the circumstances, the ‘identified acts or omissions

were outside the range of professionally competent assistance.”’

Id. at 690. This review is highly deferential for there is a strong

presumption that counsel’s conduct ‘*falls within the wide range

of reasonable professional assistance.’’ Jd. at 689. With respect

to the duty to investigate, the Supreme Court stated:

[Counsel has a duty to make reasonable investigations or

to make a reasonable decisiou that makes particular in-

vestigations unnecessary. In any ineffectiveness case, a

particular decision not to investigate must be directly

assessed for reasonableness in all the circumstances, apply-

ing a heavy measure of deference to counsel’s judgments.

Id. at 691.

A deficient performance alone is insufficient to find counsel

was ineffective. The Court must also find prejudice resulted

from such performance. To establish the prejudice element,

petitioner must show

there is a reasonable probability that, but for counsel’s un-

professional errors, the result of the proceeding would

have been different. A reasonable probability is a pro-

bability sufficient to undermine confidence in the out-

come. ... When a [petitioner] challenges a conviction, the

question is whether there is a reasonable probability that,

absent the errors, the factfinder would have had a

reasonable doubt respecting guilt.

Id. at 694, 695. In making this determination, the Court ‘‘must

consider the totality of the evidence before the judge or jury.”’

Id. at 695.

0

— A-59 —

When a state court has rendered specific findings regarding

historical facts underlying the attorney’s performance, those

findings are presumed correct in the related federal habeas pro-

ceeding unless certain exigencies exist. 28 U.S.C. § 2254(d);

Sumner v. Mata, 449 U.S. 539 (1981); Kellogg v. Curr, 741 F.2d

1099, 1101 (8th Cir. 1984). While such a presumption attaches

to any facts underlying an ineffective assistance of counsel

claim, it does not apply to the state court’s ultimate conclusion

about whether or not petitioner’s counsel rendered effective

assistance. Strickland, supra, 466 U.S. at 698; Kellogg, supra,

741 F.2d at 1101. Here, the Missouri Court of Appeals analyz-

ed the claims that petitioner’s trial counsel was ineffective in not

investigating and presenting Donald Chapman, James Jones, or

the persons at the eye doctor’s office. Petitioner does not con-

tend any circumstance precludes the application of the

presumption of correctness, and this Court finds the state

courts’ findings supported by the record. Thus, the Court con-

siders as correct the following relevant facts as found by the

state appellate court:

In brief, the evidence showed [that on the evening of May

29, 1982,] appellant went to a lounge in Arnold, Missouri

and sought out the victim. Appellant initiated an argu-

ment with the victim and coaxed the victim to settle the

matter outside of the establishment. Appellant departed

the establishment first and drew a handgun on his way out.

As the unarmed victim exited the lounge, appellant struck

the victim over the head with the gu: gun. The victim rose to

his feet with his hands in the air. Appellant fired a single

shot into the victim’s chest. Appellant then proceeded to

pistol whip the victim, dragged the victim across the park-

ing lot, and taunted him. Thereafter, appellant ran to the

passenger side of an awaiting automobile and fled the

scene. Following the incident, a pair of needle-nosed pliers

was found lying next to the victim’s body. The owner of

the lounge, however, testified the pliers were his and had

dropped from his pocket after the incident when he reach-

—=—"

ed for a handkerchief while standing over the victim’s

body.

The State’s theory of the case under the capital murder

submission was that appellant intended to cause the death

of the victim and reflected upon the matter cooly and fully

before doing so in that appellant sought out the victim, ap-

pellant drew a handgun and waited for the unarmed victim

to exit the establishment, and appeliant had a getaway car

waiting so that he could quickly flee the scene.

At the 27.26 motion hearing, appellant’s counsel from

his second trial testified it was his trial strategy to under-

mine the credibility of the state’s witnesses and to suggest

the victim had a pair of needle-nosed pliers in hand at the

time of the incident in order to get a self-defense instruc-

tion.

At appellant’s first trial, « witness, Jim Jones, wascalled ~~

to testify in appellant’s defense. Jones was not called to

testify at appellant’s second trial. It was this witness’

testimony that was central to the Supreme Court’s decision

in Chambers I, supra, requiring reversal on grounds the

trial court failed to instruct on self-defense where the in-

struction was warranted. Jones testified during the first

trial that he was in the parking lot of the lounge on the

night in question and witnessed the shooting. It was Jones’

testimony that the victim struck appellant first, appellant

fell backwards and as appellant was rising to his feet, he

shot the victim.

On cross-examination, however, Jones testified to facts

adverse to appellant’s case. Jones substantiated the state’s

case that appellant had the handgun drawn before the vic-

tim exited the lounge and that the victim was unarmed.

Moreover, Jones testified the victim was six feet away from

appellant and was not advancing towards appellant when

appellant fired the shot. Jones also testified that appellant

ee

— Ai —

pistol shipped the victim and told the victim to *‘lay there

and die.’’ Jones’ testimony also supported the state’s

theory of a getaway car as Jones testified the vehicle in

which appellant fled the scene was waiting in the parking

lot the entire time with the engine running and was parked

in a position facing out towards the exit.

At the motion hearing, appellant’s counsel acknowledg-

ed he did not interview Jones but did read the transcript of

his testimony from the first trial. Counsel considered

Jones’ testimony very damaging to appellant and conclud-

ed Jones, for impeachment purposes, was locked into his

testimony from the first trial. Counsel testified further

that appellant was emphatic about the decision not to call

Jones and signed a statement to that effect. The signed

statement was introduced at the motion hearing. In that

statement appellant agreed Jones should not be called as a

witness and acknowledged that failure to call Jones might

prevent appellant from receiving a self-defense instruction.

Donald Chapman, the driver of the vehicle in which ap-

pellant fled the scene of the crime, did not testify at either

of appellant’s trials. Chapman, a first cousin of appellant,

was arrested in connection with the murder for driving the

getaway car. Chapman gave recorded statements to the

police after the incident. At the motion hearing, Chapman

testified he witnessed the incident from the rear window of

the automobile. It was Chapman’s testimony that the vic-

tim struck appellant first, hitting appellant in the face and

knocking him backwards. Appellant then jumped up, the

two men struggled, and a shot went off.

Appellant’s counsel acknowledged he did not interview

Chapman. Counsel, however, did have transcripts of the

statements Chapman made to the police. Counsel found

these statements damaging and did not consider Chapman

a credible witness in light of the fact he was arrested in con-

nection with the incident.

— A-62 —

At appellant’s second trial, Deputy Sheriff Kentch

testified that while appellant was in custody the deputy ac-

companied appellant to an appointment with an eye doc-

tor. While in the waiting room of the doctor’s office, ap-

pellant made statements the substance of which were that

he had killed a man in Arnold and would kill two police of-

ficers if given the opportunity.

At the motion hearing, a patient who was at the doctor’s

office testified he was present when appellant was brought

into the waiting room but did not hear appellant make the

statements the deputy testified to. The patient

acknowledged, however, that he had a hearing problem

and was present in the waiting room with appellant no

longer than five minutes.

At the motion hearing, appellant’s former counsel

testified he did not interview the employees or patients of

the doctor. Counsel testified further that he was made

aware of the incident by the prosecution through discovery

only one week before trial. Counsel interviewed Deputy

Kentch and found him credible. He spoke with appellant

and appellant gave counsel the name of a deputy who was

allegedly present at the doctor’s office and would con-

tradict Deputy Kentch. Counsel’s preliminary investiga-

tion revealed this deputy was not present at the doctor’s of-

fice with appellant and Deputy Kentch. Counsel testified

he thereafter made the decision to spend the last few days

before trial on other matters pertaining to appellant’s

defense. Counsel testified appellant had sent counsel on

wild goose chases in the past and considered this another

such incident. Counsel, however, did file a motion in

limine to prohibit Deputy Kentch’s testimony and cross-

examined the deputy «t trial as to why he never prepared a

full report of the incident.

— A-63 —

. . « [T]he [motion] court concluded there was no

evidence that any of the doctor’s employees or patients

would have contradicted the deputy’s testimony.

Chambers, supra, 745 S.W.2d at 719-21.

At the post-conviction hearing, petitioner’s trial counsel

testified about his decision not to call Eleanor Hotchkiss. In

particular, counsel stated he remembered thinking it was

damaging that ‘‘she said when Chambers came out to the car

after the shooting he was so calm about it that it scared her.”’

Respondent’s Exhibit F-2, Supplemental Transcript on Appeal

to the Missouri Court of Appeals Eastern District at 39.

Upon careful consideration of the record, the Court finds

reasonable trial counsel’s conduct in not pursuing further the

witnesses at issue here. This is not an instance where counsel

failed to pursue any investigation, did not engage in a strategic

decisionmaking process, or failed to represent petitioner during

trial. Indeed, the record reflects that after his entry of ap-

pearance on September 28, 1984, counsel sought reduction of

petitioner’s bond; pursued two motious for change of venue; in-

terviewed several persons with knowledge of the incident;

sought various types of relief during voir dire, including suc-

cessful requests for individualized questioning and for the exclu-

sion of those who had read pretrial newspaper articles regarding

the case; and, during the first phase of the trial, pursued various

motions in limine, cross-examined almost all of the state’s

witnesses, proposed jury instructions, and gave closing argu-

ment. Counsel had the benefit of and reviewed the earlier trial

transcript; conversed with petitioner on several occasions prior

to trial; and reviewed available statements made by Hotchkiss,

Jones and Chapman. —

The Court finds reasonable counsel’s conclusion that Jones’

testimony would have tended to support the state’s theory of the

case and thus his decision not to call Jones as a witness. This is

especially true in view of petitioner’s written and signed pretrial

an itt —_

statement that he agreed with counsel’s decision in this regard.

As the United States Supreme Court noted, ‘‘[t]he—

reasonableness of counsel’s actions may be determined or

substantially influenced by the petitioner’s own statements or

actions.’’ Strickland, supra, 466 U.S. at 691. Furthermore,

counsel reasonably assessed the affect of Jones’ earlier

testimony on both the state’s theory of the case and Jones’

credibility as a witness.

Counsel’s concern that Chapman’s inconsistent statements to

the police and his arrest for the incident would undermine his

credibility to a significant degree was also reasonable. Thus, the

choice not to investigate further or call Chapman was

reasonable under the circumstances.

Counsel’s decision not to pursue further the incident at the

eye doctor’s office was also within the bounds of reasonable

professional judgment. The Supreme Court has stated that

[cJounsel’s actions are usually based, quite properly, . . .

on information supplied by defendant. ... [WJhat in-

vestigation decisions are reasonable depends critically on

such information .... [When] a defendant has given

counsel reason to believe that pursuing certain investiga-

tions would be fruitless . . ., counsel’s failure to pursue

those investigations may not later be challenged as

unreasonable.

Id. Here, counsel learned of the eye doctor office incident a

short time prior to trial. Counsel investigated the person sug-

gested by petitioner to counter the apparently damaging

testimony, and that investigation did not support petitioner’s

position. Moreover, this was not the first time counsel had in-

vestigated something at petitioner’s behest, only to find the in-

formation did not support petitioner’s position. Thus, peti-

tioner had given counsel reason to believe further investigation

of this matter at that time might be fruitless. Under the cir-

cumstances, it was reasonable for counsel not to pursue the eye

doctor office witnesses further.

— As —

With respect to Hotchkiss, counsel reasonably determined

that her stated fear upon petitioner’s return to the vehicle would

not assist petitioner. This witness did not observe what occur-

red prior to the shooting. The averments in her affidavit about

the lack of references to the victiré: prior to their arrival at the

lounge might conceivably assist only in negating any element of

premeditation or cool deliberation. Such potential was severely

undermined, however, by her expressed fear. Additionally, to

the extent petitioner sought to focus on self-defense, Ms. Hot-

chkiss’ testimony does not clearly assist that endavor.

None of the decisions by counsel to forego further investiga-

tion of these witnesses resulted from a blanket policy not to in-

vestigate. Rather, each was a result of a strategic decision made

in the exercise of professional judgment based on information

then available to counsel and based on his experience with peti-

tioner. Thus, the Court finds trial counsel’s performance was

not deficient. Since the Court has not found petitioner’s at-

torney’s performance deficient, the Court need not and will not

address the prejudice prong of the Strickland test for constitu-

tionally ineffective assistance of counsel.

B. Denial of Fair Trial for Failure to Submit Self-Defense In-

struction

Petitioner alleges there was ‘‘the sufficient quantum of

evidence in the record to warrant submission of the [self-

—S

defense] instruction’’ offered by petitioner.‘ In particular, peti-

tioner asserts questions regarding whether or not the victim was

the initial aggressor and whether petitioner had a reasonable

belief in the necessity of using deadly force should have been

submitted to the jury. Thus, petitioner argues, the refusal of

the trial court to give that instruction denied petitioner his

federal constitutional right to a fair trial.

* The self-defense instruction offered by petitioner provided as

follows:

One of the issues in this case is whether the use of physical

force against Jerry Oecestricker was justifiable. The use of

physical force including the use of deadly force is justifiable if

used in lawful self-defense. On that issue you are instructed as

follows:

1. The state has the burden of proving beyond a reasonable

doubt that the defendant did not act in lawful self-defense. If the

evidence in this case leaves in your mind a reasonable doubt as to

whether the defendant acted in lawful self-defense in using

physical force against Jerry Oestricker, you must find the defen-

dant not guilty.

If the defendant was not the initial aggressor in the encounter

with Jerry Oestricker and if the defendant reasonably believed it

was necessary to use deadly force to protect himself against what

he reasonably believed to be the use of unlawful force putting

himself in an imminent danger of serious physical injury at the

hands of Jerry Oestricker, then the defendant acted in lawful

self-defense and must be acquitted.

2. In determining whether or not the defendant acted in

lawful self-defense you should consider all of the evidence in the

case.

If Jerry Oestricker prior to the encounter made threats which

were known by or communicated to the defendant, you may

consider such threats as explaining the conduct or apprehensions

of the defendant at the time of the encounter and for the further

purpose [sic] of determining who was the aggressor.

a

= AO?

Federal habeas relief ‘‘is not available because of improper

jury instructions unless the error constitutes a fu damental

defect that resulted in a complete miscarriage of justice or so in-

fected the entire trial as to deprive the defendant of a fair trial.’’

Berrisford v. Wood, 826 F.2d 747, 752 (8th Cir. 1987), cert.

denied, 108 S.Ct. 722 (1988); Williams v. Lockhart, 736 F.2d

1264, 1267 (8th Cir. 1984); see Cupp v. Naughton, 414 U.S. 141,

147 (1973) (‘‘it must be established . . . that [the instruction]

violated some right which was guaranteed by the Fourteenth

Amendment’’). This standard applies to a habeas petitioner’s

claim that submitted instructions were improper, as well as to a

habeas petitioner’s claim that the refusal to give an instruction

was improper. See Williams, supra (applying the standard to a

habeas petitioner’s attack on the impropriety of (a) a submitted

instruction, and (b) a refused instruction). Notably, ‘‘[nJeither

due process nor any other constitutional guarantee is offended

by a trial judge’s refusal to charge the jury on a matter not

presented by the evidence.’’ Hallowell v. Keve, 555 F.2d 103,

107 (3d Cir. 1977).

The question of whether there is sufficient evidence to

warrant submission of an issue to the jury is a question of

law based on the historical facts developed at trial. While

a federal court [in a habeas case] may apply the law to a

given set of facts as it deems appropriate, a presumption of

correctness attaches to all underlying factual determina-

tions made by a state court.

Mecichior v. Jago, 723 F.2d 486, 493 (6th Cir. 1983), cert.

denied, 466 U.S. 952 (1984). Additionally, if a state court’s in-

terpretation of its own law is not an ‘‘obvious subterfuge to

evade consideration of a federal issue,’’ then a federal district

court is bound by that interpretation. Hallowell, supra, 555

F.2d at 107.

Here, petitioner does not contest the propriety of the state

supreme court’s interpretation of Missouri law on the use of

—=_~

deadly force in self-defense as set forth in Chambers I. Nor

does this Court find that interpretation is a subterfuge to the

determination of any federal constitutional issue. Thus, this

Court finds that Missouri law allows the use of deadly force in

self-defense

only when there is (1) an absence of aggression or provoca-

tion on the part of the defender, (2) a real or apparently

real necessity for the defender to kill in order to save

himself from an immediate danger of serious bodily injury

or death, (3) a reasonable cause for the defender’s belief in

such necessity, and (4) an attempt by the defender to do all

within his power consistent with his personal safety to

avoid the danger and the need to take a life.

Chambers I, supra, 671 S.W.2d at 783.

In its review of petitioner’s second conviction, the Missouri

Supreme Court analyzed the sufficiency of the evidence in light

of petitioner’s challenge to the trial court’s refusal to give the

proposed self-defense instruction. Petitioner has not contested

in these proceedings the propriety of the state supreme court’s

factual findings regarding the evidence at trial. Furthermore,

this Court determines those findings are supported by the

record. Therefore, the Court finds those findings are correct

and the evidence at petitioner’s second trial established the

following:

The chain of events which ultimately led to the slaying of

Jerry Lee Ocestricker began and ended at the Country Club

Lounge in Arnold, Missouri. At approximately 7:00 p.m.

on May 29, 1982, Oestricker, who was playing pool and

drinking, bumped into the chair of another patron of the

bar, Jackie Turner. Turner was seated at a table with

members of his family. Immediately after Oecestricker

bumped into Turner’s chair, the two men began to argue.

Before this verbal confrontation progressed any further,

Kenneth Vaughn, the owner of the bar asked the parties in-

volved in the argument to leave the bar. The Turner family

departed, but O6cestricker remained at the bar and con-

tinued to play pool.

Defendant made his first appearance that evening at the

Country Club Lounge at approximately 10:00 p.m. Upon

entering the bar, he asked an employee, Norma Jean lep-

pert, where he could find the Turners. When Mrs. leppert

informed defendant that the Turners had left the bar

earlier in the evening, defendant immediately departed.

Defendant, however, returned approximately 30 minutes

later in the company of Jackie Turner.

Once inside the bar, defendant immediately approached

Oestricker and asked the victim to buy him a drink.

Oestricker, referring to defendant by his nickname, ‘‘Bim-

bo’’, indicated in strong language that he had no desire to

buy defendant a drink. During this initial confrontation

between defendant and Oestricker, no blows were ex-

changed and one witness who was present at the time, Fred

leppert, testified that this initial exchange of words was

loud. And he testified further that defendant told the vic-

tim, ‘‘] thought you were a friend of mine.”’ To this state-

ment, Oecestricker replied, “‘No, you are no friend of

mine.’’ This exchange of words was corroborated by the

testimony of a number of other witnesses who were present

that evening. After a few minutes had passed, the owner

of the bar, Kenneth Vaughn, told the two men to leave the

bar.

The evidence presented at trial leaves no room for doubt

that defendant exited the bar before the victim. Defendant

contends that Oestricker, whose blood alcohol level was

determined to be .14[,] was “‘crazy drunk’’ and ‘“‘trying to

get a fight going with anybody he could.’’ And there was

evidence that before leaving the bar, Oestricker told defen-

dant that ‘‘[defendant] didn’t scare him’’ and ‘‘if you want

a piece of my ass just come on.’’

— A —

A total of five witnesses, all of whom were present im-

mediately before and after Oestricker was shot, testified

that defendant, as he was leaving the bar, turned to

Oestricker and yelled, ‘‘come on mother-fucker we’ll settle

this outside.’’ Each of these witnesses testified that defen-

dant began the entire confrontation when he approached

Oestricker and asked the victim to buy him a drink.

The State presented testimony from a number of

witnesses that as defendant walked out of the bar, he

reached under his shirt and removed an object. One

patron, thinking defendant had pulled a hidden knife yell-

ed to Oestricker, ‘‘. . . he’s got a knife.’’ There was no

testimony that the victim was armed with a weapon of any

kind. Defendant, however, contends that there was

evidence to suggest Oestricker was in possession of a pair

of needlenose pliers which were found near the victim’s

body. However, the owner of the bar testified that the

pliers belonged to him and fell out of his pocket when he

removed a handkerchief to wipe his nose while standing

over the victim.

Within seconds after Oestricker stepped outside the

front door, a single shot was heard. Fred leppert, who

testified that he witnessed the shooting, stated that as

Oestricker walked through the door, he saw defendant hit

Oestricker with a pistol, knocking him to the ground. As

Oestricker got up with his hands raised in the air, defen-

dant pointed the pistol at the victim and fired a single shot

into the victim’s chest. Not a single witness testified that

Oestricker was the first to strike a blow, or even had the

opportunity to do so.

Further, testimony was presented that after shooting

Oestricker, who by that time was lying prostrate on the

ground, defendant proceeded to pistol whip the victim

about the face, drag him across the parking lot, and taunt

— A-71 —

him with the following statements: ‘‘take that you mother-

fucking tough guy”’ and ‘‘get up motherfucker and fight

like aman’’. And defendant also told the mortally wound-

ed victim, ‘‘You better get up and call the hospital because

you are going to die.’’ Seconds later defendant yelled to

the patrons inside the bar, ‘‘if any of the rest of you

motherfuckers want some of this, come on out.’’ There-

after, defendant ran from the scene and fled in a waiting

automobile. He was apprehended later that evening by Ar-

nold police at a liquor store in St. Louis County.

Chambers, supra, 714 S.W.2d at 529-30.

In light of these findings and applicable state law, the Court

cannot say petitioner’s federal right to due process was violated

by the trial court’s refusal of petitioner’s proferred instruction.

Petitioner is the one who approached the victim inside the

tavern. While the men may have exchanged strong words, no

physical attacks occurred inside. The departure of the two men

was instigated by the tavern owner. There is no evidence that

the victim initiated any physical aggression, placing petitioner in

immediate danger of serious bodily injury or death. At the time

of the shooting, the participants were outside. They were in an

open area which reasonably provided petitioner with an oppor-

tunity to flee or to use a response short of using a gun if any

physical aggression by the victim occurred in the short time

prior to the shooting after the men left the lounge. There is no

evidence to suggest the victim had a deadly weapon in his

possession when he left the tavern. Yet the evidence shows peti-

tioner had a deadly weapon in his possession as he left.

Moreover, petitioner’s belief that deadly force was necessary

simply does not appear reasonable. Under the circumstances,

the trial court’s refusal of petitioner’s self-defense instruction

does not warrant habeas relief.

C. Denial of Fair Trial Due to Denial of Motions for Change

of Venue

Petitioner alleges he was

— i

denied his right to a fair trial under the Fifth and Four-

teenth Amendments because the trial court denied peti-

tioner’s Motion for Change of Venue despite the prejudice

of the inhabitants of Jefferson County, against petitioner,

due to extensive pre-trial publicity.

In particular, petitioner alleges that over a three-year period, the

newspaper articles, to which the parties stipulated, showed that

Jefferson County residents ‘‘were subject to several different

barrages of incriminating publicity regarding petitioner.’’ Peti-

tioner points to repeated references to him as being a convicted

killer, as having received the death penalty after the first trial, as

having four prior felony convictions, and as having been out on

a pass from a state correctional facility on May 29, 1982. Addi-

tionally, petitioner points to newspaper editorials criticizing

decisions of the Missouri Supreme Court and of the Missouri

state parole board relating to petitioner.

In deciding whether or not pretrial publicity unconstitutional-

ly affected petitioner’s criminal trial, the relevant inquiry is not

simply whether adverse pretrial publicity existed, but ‘‘whether

the jurors at [the] trial had such fixed opinions that they could

not judge impartially the guilt of the defendant.’’ Patton v.

Yount, 467 U.S. 1025, 1035 (1984), citing Irvin v. Dowd, 366

U.S. 717, 723 (1961). In other words, the issues are (a) whether

each juror seated was truthful when the juror swore it was possi-

ble to set aside any opinion held and decide the case on the

evidence; and (b) should the juror’s statement of impartiality be

believed. Jd. at 1036. These questions are questions of

historical fact to which the presumption of correctness applies

in a subsequent federal habeas proceeding as long as the record

fairly supports the state court’s conclusion. Jd. at 1037-38.

Here, petitioner does not contest the propriety of applying the

presumption of correctness and the Court finds that the record

supports the relevant factual findings made by the Missouri

Supreme Court in its review of the record in response to peti-

tioner’s argument that the trial court erred in refusing to sustain

73 —

his motions for a change of venue. Specifically, the Missouri

Supreme Court found ‘‘{a]ll of the potential jurors were closely

questioned on whether they had read or heard anything about

the crime with which [petitioner] was charged and about their

ability to be fair and impartial. The trial judge’s concern for the

danger of a tainted jury is quite evident from the cautious man-

ner in which he proceeded.’’ Chambers, supra, 714 S.W.2d at

532.

Additionally, the record reflects that the trial judge excused

any jurors indicating they had read newspaper articles published

in local publications within a week or two prior to the com-

mencement of trial. One person on the jury panel who stated

that, at the time of the incident, she had seen a paper with a pic-

ture of the lounge and a statement describing what had happen-

ed, was not selected as a juror in petitioner’s trial. Of the twelve

jurors and one alternate selected to sit during petitioner’s trial,

only two were specifically questioned regarding any statements

they may have seen or heard about the case. One, who was

released prior to deliberations due to a family emergency, stated

she remembered seeing petitioner’s name ‘‘but [she] had no idea

as to what [she] may have read;’’ and she had no knowledge of

any of the details about the case. The other juror stated he had

not read any of the newspaper articles that were published and

had not heard anything about the case.

Notably, petitioner does not direct the Court’s attention to

any particular juror who was allegedly, improperly biased by

any pretrial publicity. Nor does petitioner contend any of the

published articles were false.

Based on the available record, the Court finds that the jurors

who were ultimately seated had not formed an opinion about

the incident and could base their decision on the evidence

presented. The impartiality of the jury is fairly supported by the

record. Futhermore, the Court finds the publicity did not in

and of itself necessitate a change of venue prior to jury selec-

tion. Chambers is not entitled to habeas relief on this ground.

—

In light of the foregoing, petitioner’s request for habeas relief

will be denied on the merits. To the extent the parties’ separate

requests for hearing and respondent’s motion to reconsider re-

main pending, those requests will be denied.

Dated this 19th day of July, 1988.

/s/ William L. Hungate

United States District Judge

— . oo

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 88-0567C(3)

James W. Chambers,

Petitioner,

Vv.

Bill Armontrout,

Respondent.

JUDGMENT

The issues in this case having come before the Court, the

Honorable William L. Hungate, District Judge, presiding, on

the petition of James W. Chambers for writ of habeas corpus;

the issues having been duly presented and considered; and a

decision having been rendered,

IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that petitioner James W. Chambers take nothing by

his cause of action against respondent Bill Armontrout, and the

same is dismissed with prejudice.

Each party shall bear its own costs.

Eyvon Mendenhall, Clerk

By /s/ Lisa Kollasch

Deputy Clerk

Dated this 19 day of

July, 1988.

~

— oe

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

Number 88-0567-C(3)

James W. Chambers,

Petitioner,

VS.

Bill Armontrout,

Respondent.

SECOND AMENDED PETITION IN HABEAS CORPUS

Comes now Petitioner, JAMES W. CHAMBERS, and for his

Second Amended Petition under 28 U.S.C. §2255, states to the

Court as follows:

1. Petitioner hereby realleges and readopts the allegations

contained in Paragraphs 1 through 11 of Petitioner’s Pro Se

Petition filed herein on March 23, 1988.

2. In Petitioner’s proceeding under Missouri Supreme Court

Rule 27.26, Petition raised the following grounds:

a. Petitioner was denied the effective assistance of counsel

under the Sixth Amendment, because Petitioner’s trial counsel

failed to interview or call, as witnesses, Donald Chapman,

James Jones, Eleanor Hotchkiss, and Jackie Turner. Chapman

and Jones would have testified that the victim knocked Peti-

tioner to the ground immediately before Petitioner shot the vic-

tim. Hotchkiss and Turner would have testified that Petitioner

did not go to the Country Club Lounge intending to kill the vic-

tim.

b. Petitioner was denied his right to effective assistance of

counsel under the Sixth Amendment, because Petitioner’s trial

a

= ATT

counsel failed to interview witnesses who were at an

eye-doctor’s office, wherein Petitioner allegedly made

statements admitting that he killed the victim. These witnesses

would have testified that they never heard Petitioner make such

a statement.

c. Petitioner was denied his right to effective assistance of

counsel under the Sixth Amendment, because Petitioner’s trial

counsel failed to procure, as evidence, Petitioner’s clothing

which would have refuted State’s theory of the shooting.

d. Petitioner was denied his right to a fair trial under the

Fifth and Fourteenth Amendments because members of the Ar-

nold Police and Jefferson County Sheriff’s Department

threatened and harassed witnesses who would have testified on

Petitioner’s behalf, thereby inducing them not to testify.

e. Members of the Arnold Police Department deliberately

kept from Petitioner’s counsel a needle-nosed, red-handled

pliers, which was an important element of Petitioner’s trial

defense.

3. Petitioner is being unlawfully held for the following

reasons:

a. Petitioner was denied his right to the effective assistance

of counsel under the Sixth Amendment because Petitioner’s

trial counsel failed to interview, as potential witnesses, Donald

Chapman, James Jones, and Eleanor Hotchkiss. Donald Chap-

man would have refuted all major contentions of the State’s

theory of the case. He would have testified that he and Peti-

tioner and Eleanor Hotchkiss drove to the Country Club

Lounge in Arnold, Missouri, on May 29, 1982, in order to bor-

row equipment so that they could continue fishing at night. He

would further have testified that the victim followed Petitioner

out of the Country Club Lounge, hit him in the face and knock-

ed him to the ground, after which Petitioner shot the victim.

Chapman drove the car in which Petitioner was riding on that

—* po

night and was sitting in the car, outside the Country Club

Lounge, when the shooting occurred. James Jones would have

testified that Petitioner walked out of the Country Club

Lounge, followed by the victim, who then hit Petitioner, Peti-

tioner shot him. Jones was sitting in his car in the parking lot of

the Country Club Lounge at the time. Eleanor Hotchkiss would

have testified that, to her knowledge, they were just going to the

Country Club Lounge to get fishing equipment. She also rode

in the car, with Petitioner and Chapman, to the Country Club

Lounge, at the time of the shooting.

All three of these witnesses would have directly refuted

the State’s theory of capital murder, which was that Petitioner

drove to the Country Club Lounge intending to kill the victim.

The State’s theory was further that when Petitioner and the vic-

tim walked out of the bar, Petitioner struck the victim in the

face with his gun and then shot him. Petitioner’s trial counsel’s

failure to interview these witnesses was not supported by

reasonable professional judgment. Petitioner’s trial counsel

called no witnesses on Petitioner’s behalf, at Petitioner’s trial.

Petitioner’s trial counsel knew how to contact these three

witnesses and chose not to contact them. If these witnesses had

testified, Petitioner could have been acquitted on a theory of

self-defense, or could have been convicted of a lesser offense

than capital murder.

b. Petitioner was denied his right to effective assistance of

counsel under the Sixth Amendment because Petitioner’s tria!

counsel failed to attempt to locate or to attempt to interview

potential witnesses at an eye-doctor’s office where Petitioner

allegedly made incriminating admissions. Deputy Eugene

Kentch testified at Petitioner’s trial that Petitioner made

statements to the people in the waiting room of an eye-doctor’s

office to the effect that Petitioner had killed one of their friends

and that he would kill two police officers if he would get a gun.

Petitioner’s trial counsel only talked to employees of the

Sheriff’s Department about the incident. He did not attempt to

Ie

—*

locate or interview any of the patients who were at the eye-

doctor’s office at the time these statements were allegedly made.

These patients would have testified that they did not hear Peti-

tioner make these statements. This testimony would have im-

peached the credibility of a Sheriff’s Deputy involved in the

case, and would have injected doubt into the credibility of all

State’s witnesses. This doubt would or could have changed the

verdict in the case.

c. At Petitioner’s trial, there was sufficient evidence in the

record to warrant submission of Petitioner’s proffered self-

defense instruction. The trial court refused to submit Peti-

tioner’s self-defense instruction, and in so doing, denied Peti-

tioner his right to a fair trial under the Fifth and Fourteenth

Amendments.

The evidence at Petitioner’s trial was that the victim was

involved in a loud argument before Petitioner arrived, that the

victim was ‘‘crazy drunk . . . wanting to fight like crazy . . . try-

ing to get a fight going with anybody he could.’’ The evidence

was further that the victim’s blood alcohol level was .14 even

after being given fresh blood subsequent to the shooting, that

the victim followed Petitioner out the door, turned toward Peti-

tioner, and that no one then saw the victim or the Petitioner for

the next ten seconds. A pair of needle-nosed pliers were found

next to where the victim fell. The testimony “as further that the

victim started toward Petitioner and that’. . Yen the shot was

fired. Petitioner is between 5’6’’ and 5’8”’ in height, weighing

approximately 160 pounds. The victim was approximately 6’

tall, and weighed approximately 200 pounds.

Based on this evidence, whether or not the Petitioner

could have shot the victim in self-defense should have been a

question for the jury. If the trial court had instructed the jury

on the issue of self-defense, the jury could have found the Peti-

tioner not guilty, or could have found him guilty of a lesser

charge than capital murder.

—_e

d. The Petitioner was denied his right to a fair trial under

the Fifth and Fourteenth Amendments, because his Motion for

Change of Venue was denied. Prior to Petitioner’s second trial

for this offense, in May, 1985, there was extensive publicity in

Jefferson County Newspapers dealing with the fact that Peti-

tioner had already been convicted onece for this same offense,

and had his conviction overturned. Prior to Petitioner’s second

trial, twenty-one newspaper articles appeared in Jefferson

County regarding Petitioner and the shooting herein. These ar-

ticles appeared in five different newspapers over a three year

period. Petitioner’s name appeared in the headlines in Jeffer-

son County newspapers at least fifteen times, and Petitioner’s

name was in the headlines on page | at least five times prior to

trial. Nineteen of the twenty-one newspaper articles referred to

the fact that Petitioner had already been tried and convicted of

murder, and sentenced to death.

In view of this barrage of damaging pre-trial publicity,

Petitioner’s Motion for Change of Venue should have been

granted.

4. Petitioner hereby readopts and realleges each and every

allegation contained in Paragraphs 13 through 17 of Petitioner’s

Pro Se Petition filed herein on March 23, 1988.

WHEREFORE, Petitioner prays that this Court vacate the

Sentence and Judgment entered by the Circuit Court of Jeffer-

son County, which Sentence and Judgment was entered June

10, 1985, in State of Missouri v. James W. Chambers, and that

this Court grant Petitioner whatever other relief to which Peti-

tioner may be entitled in this proceeding.

Respectfully submitted,

SPALDING, WESTHUS &

MEYER, P.C.

— A-81 —

By: Thomas R. Schlesinger #33494

Attorneys for Petitioner

400 Chesterfield Center

Suite 220

Chesterfield, Missouri 63017

532-6100

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing

was mailed, postage prepaid, this 23rd day of June, 1988, to:

PATRICK L. KING, Assistant Attorney General, Post Office

Box 899, Jefferson City, Missouri 65102.

/s/ Thomas R. Schlesinger

— A-82 —

APPENDIX G

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

Number 88-0567-C-3

James W. Chambers,

Petitioner,

vs.

Bill Armontrout,

Respondent.

AMENDED PETITION IN HABEAS CORPUS

Comes now Petitioner, JAMES W. CHAMBERS, and for his

Amended Petition under 28 U.S.C. §2255, states to the Court as

follows:

1. Petitioner hereby realleges and readopts the allegations

contained in Paragraphs | through 11 of the Petition previously

filed herein.

2. In Petitioner’s proceeding under Missouri Supreme Court

Rule 27.26, Petitioner raised the following grounds:

a. Petitioner was denied the effective assistance of counsel

under the Sixth Amendment, because Petitioner’s trial counsel

failed to interview or call, as witnesses, Donald Chapman,

James Jones, Eleanor Hodgkiss, and Jackie Turner. Chapman

and Jones would have testified that the victim knocked Peti-

tioner to the ground immediately before Petitioner shot the vic-

tim. Hodgkiss and Turner would have testified that Petitioner

did not go to the Country Club Lounge intending to kill the vic-

tim.

b. Petitioner was denied his right to effective assistance of

counsel under the Sixth Amendment, because Petitioner’s trial

—

~ A-83 —

court failed to interview witnesses who were at an eye-doctor’s

office, wherein Petitioner allegedly made statements admitting

that he killed the victim. These witnesses would have testified

that they never heard Petitioner make such a statement.

c. Petitioner was denied his right to effective assistance of

counsel under the Sixth Amendment, because Petitioner’s trial

counsel failed to procure, as evidence, Petitioner’s clothing

which would have refuted State’s theory of the shooting.

d. Petitioner was denied his right to a fair trial under the

Fifth and Fourteenth Amendments because members of the Ar-

nold Police and Jefferson County Sheriff's Department

threatened and harassed witnesses who would have testified on

Petitioner’s behalf, thereby inducing them not to testify.

e. Members of the Arnold Police Department deliberately

kept from Petitioner’s counsel a needle-nosed, red-handled

pliers, which was an important element of Petitioner’s trial

defense.

3. Petitioner is being unlawfully held for the following

reasons:

| a. Petitioner was denied his right to the effective assistance

| of counsel under the Sixth Amendment because Petitioner’s

| trial counsel failed to interview, as potential witnesses, Donald

. Chapman, James Jones, and Eleanor Hodgkiss. Donald Chap-

man would have refuted all major contentions of the State’s

theory of the case. He would have testified that he and Peti-

tioner and Eleanor Hodgkiss drove to the Country Club Lounge

in Arnold, Missouri, on May 29, 1982, in order to borrow

equipment so that they could continue fishing at night. He

would furthur have testified that the victim followed Petitioner

out of the Country Club Lounge, hit him in the face and knock-

ed him to the ground, after which Petitioner shot the victim.

Chapman drove the car in which Petitioner was riding on that

night and was sitting in the car, outside the Country Club

— At —

Lounge, when the shooting occurred. James Jones would have

testified that Petitioner walked out of the Country Club

Lounge, followed by the victim, who then hit Petitioner in the

face and knocked him to the ground. As the victim moved

toward Petitioner, Petitioner shot him. Jones was sitting in his

car in the parking lot of the Country Club Lounge at the time.

Eleanor Hodgkiss would have testified that, to her knowledge,

they were just going to the Country Club Lounge to get fishing

equipment. She also rode in the car, with Petitioner and Chap-

man, to the Country Club Lounge, at the time of the shooting.

All three of these witnesses would have directly refuted the

State’s theory of capital murder, which was that Petitioner

drove to the Country Club Lounge intending to kill the victim.

The State’s theory was further that when Petitioner and the vic-

tim walked out of the bar, Petitioner struck the victim in the

face with his gun and then shot him. Petitioner’s trial counsel’s

failure to interview these witnesses was not supported by

reasonable professional judgment. Petitioner’s trial counsel

called no witnesses on Petitioner’s behalf, at Petitioner’s trial.

Petitioner’s trial counsel knew how to contact these three

witnesses and chose not to contact them. If these witnesses had

testified, Petitioner could have been acquitted on a theory of

self-defense, or could have been convicted of a lesser offense

than capital murder.

b. Petitioner was denied his right to effective assistance of

counsel under the Sixth Amendment because Petitioner’s trial

counsel failed to attempt to locate or to attempt to interview

potential witnesses at an eye-doctor’s office where Petitioner

allegedly made incriminating admissions. Deputy Eugene

Kentch testified at Petitioner’s trial that Petitioner made

statements to the people in the waiting room of an eye-doctor’s

office to the effect that Petitioner had killed one of their friends

and that he would kill two police officers if he would get a gun.

Petitioner’s trial counsel only talked to employees of the

Sheriff’s Department about the incident. He did not attempt to

Qe

— A-85 —

locate or interview any of the patients who were at the eye-

docior’s office at the time these statements were allegedly made.

These patients would have testified that they did not hear Peti-

tioner make these statements. This testimony would have im-

peached the credibility of a Sheriff’s Deputy involved in the

case, and would have injected doubt into the credibility of all

State’s witnesses. This doubt would or could have changed the

verdict in the ease.

c. Petitioner was denied his right to effective assistance of

counsei under the Sixth Amendment because Petitioner’s trial

counsel failed to procure and to use, as evidence, Petitioner’s

t-shirt and blue jeans, as well as the victims clothes, which were

in the custody of the Arnold Police. The State’s case rested

largely on the idea that Petitioner was five to ten feet away from

the victim when he shot him. By examining the powder burns

on the victim’s clothing and Petitioner’s clothing, Petitioner’s

trial counsel could have proven that the victim was only a couple

feet away from Petitioner when Petitioner fired the shot. In ad-

dition, Petitioner’s trial counsel failed to procure a needle-

nosed pliers which Defendant told him had been used as a

weapon by the victim. This would have supported Petitioner’s

theory of self-defense and would have allowed the jury to reach

a different verdict.

d. Petitioner was denied his right to a fair trial under the

Fifth and Fourteenth Amendments because the Arnold Police

threatened and harassed his potential witnesses to such an ex-

tent that they were afraid to testify on is behalf. Members of the

Arnold Police Department told Eleanor Hodgkiss that they

would ‘‘gas’’ her boyfriend, Donald Chapman, if she testified

on Petitioner’s behalf. She would have testified that Petitioner

was going to the Country Club Lounge for the purpose of ob-

taining fishing equipment.

Police arrested Donald Chapman in connection with the

shooting and held him for thirty days thereafter. He was then

relezx2d and charges against him were dropped. However, he

—_—- =

was told by members of the Arnold Police, that if he testified on

behalf of Petitioner, the charges against him would be

reinstated and he would be executed.

Chapman and Hodgkiss would have testified as

hereinabove mentioned. Their testimony was crucial to Peti-

tioner’s defense and directly refuted all key elements of the

State’s case. No witnesses were called to testify on behalf of

Petitioner at his trial. If Chapman and Hodgkiss had testified,

Petitioner would have been acquitted or convicted of a lesser

charge than capital murder.

e. Petitioner was denied his right to a fair trial under the

Fifth and Fourteenth Amendments because members of the Ar-

nold Police deliberately lost or hid a pair of red-handled,

needle-nosed pliers, which were crucial to the defense of Peti-

tioner. Petitioner had evidence to indicate that the victim was

holding this pair of pliers when he walked out of the Country

Club Lounge, following the Petitioner. After knocking Peti-

tioner to the ground, the victim then tried to stab Petitioner

with the pliers, after which Petitioner shot the victim. Petitioner

and Petitioner’s trial counsel were unable to examine the pliers

prior to trial because the police allegedly lost them.

At trial, Kenneth Vaughn testified that the pliers were his

and that he had dropped them by the victim’s body, accidental-

ly, after the shooting. If Petitioner and Petitioner’s trial

counsel had access to the pliers, they could have proven that the

victim had the pliers at the time of the shooting. This would

have supported Petitioner’s theory of self-defense and would

have allowed the jury to acquit Petitioner or convict him of a

lesser charge than capital murder.

f. At Petitioner’s trial, there was sufficient evidence in the

record to warrant submission of Petitioner’s proffered self-

defense instruction. The trial court refused to submit Peti-

tioner’s self-defense instruction, and in so doing, denied Peti-

tioner his right to a fair trial under the Fifth and Fourteenth

Amendments.

— A-87 —

The evidence at Petitioner’s trial was that the victim was

involved in a loud argument before Petitioner arrived, that the

victim was ‘‘crazy drunk . . . wanting to fight like crazy . . . try-

ing to get a fight going with anybody he could.’’ The evidence

was further that the victim’s blood alcohoi level was .14 even

after being given fresh blood subsequent to the shooting, that

the victim followed Petitioner out the door, turned toward Peti-

tioner, and that no one then saw the victim or the Petitioner for

the next ten seconds. A pair of needle-nosed pliers were found

next to where the victim fell. The testimony was further that the

victim started toward Petitioner and that’s when the shot was

fired. Petitioner is between 5’6’’ and 5’8’’ in height, weighing

approximately 160 pounds. The victim was approximately 6’

tall, and weighed approximately 200 pounds.

Based on this evidence, whether or not the Petitioner

could have shot the victim in self-defense should have been a

question for the jury. If the trial court had instructed the jury

on the issue of self-defense, the jury could have found the Peti-

tioner not guilty, or could have found him guilty of a lesser

charge than capital murder.

g. The Petitioner was denied his right to a fair trial under

the Fifth and Fourteenth Amendments, because his Motion for

Change of Venue was denied. Prior to Petitioner’s second trial

for this offense, in May, 1985, there was extensive publicity in

Jefferson County Newspapers dealing with the fact that Peti-

tioner had already been convicted once for this same offense,

and had his conviction overturned. Prior to Petitioner’s second

trial, twenty-one newspaper articles appeared in Jefferson

County regarding Petitioner and the shooting herein. These ar-

ticles appeared in five different newspapers over a three year

period. Petitioner’s name appeared in the headlines in Jeffer-

son County newspapers at least fifteen times, and

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