# Appendix — Armontrout v. Chambers

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2792%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 950

## Text

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. -

——_

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 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.

— A-88 —

In view of this barrage of damaging pre-trial publicity t
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 the Petition
previously filed herein.

WHEREFORE, Petitioner prays that this Court grant Peti-
tioner a hearing in this case, and after said hearing, that this
Court grant Petitioner the relief to which Petitioner may be en-
titled in this proceeding.

Respectfully submitted,

/s/ Thomas R. Schlesinger #33494
Attorney for Petitioner
400 Chesterfield Center
Suite 220
Chesterfield, Missouri 63017
532-6100

I declare under penalty of perjury that the foregoing is true and
correct. Executed on this _____ day of ___, 1988.

James W. Chambers

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was
mailed, postage prepaid, this 6th day of April, 1988, to:
PATRICK L. KING, Assistant Attorney General, Post Office
Box 899, Jefferson City, Missouri 65102.

/s/ Thomas R. Schlesinger

—_

APPENDIX H

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
DIVISION

PERSONS IN STATE CUSTODY APPLICATION FOR
HABEAS CORPUS UNDER 28 U.S.C. SECTION 2254

Name: JOHN CHAMBERS
Prison Number: C.P. 22

Place of Confinement: main prison at Jefferson City, Mo. (Box
900) 65201

United States District Court EASTERN District of MISSOURI
Case No.: 88-0567-C-3

JAMES CHAMBERS PETITIONER
¥.
BILL ARMONTROUT RESPONDENT
and
THE ATTORNEY GENERAL OF THE STATE OF MISSOURI
ADDITIONAL RESPONDENT.

(If petitioner is attacked a judgment which imposed a
sentence to be served in the future, petitioner must fill in the
name of the state where the judgment was entered. If petitioner
has a sentence to be served in the future under a federal judg-
ment which he wishes to attack, petitioner should file a motion
under 28 U.S.C. Section 2255, in the federal court which
entered the judgment.)

Instructions - Read Carefully

(1) This petition must be legibly handwritten or typewritten,
and signed by the petitioner under penalty of perjury. Any
false statement of a material fact may serve as a basis for
prosecution and conviction for perjury. All questions

(2)

(3)

(4)

(5)

(6)

(7)

(8)

—_—y

must be answered concisely in the proper space on the
form.

Additional pages are not permitted except with respect to
the facts which you rely upon to support your grounds for
relief. No citation of authorizaties need be furnished. If
briefs or arguments are submitted, they should be submit-
ted in the form of a separate memorandum.

Upon receipt of a fee of $5 your petition will be filed if it is
in proper order.

If you do not have the necessary filing fee you may request
permission to proceed in forma pauperis, in which event
you must execute the declaration on the last page, setting
forth information estaolishing your inability to prepay the
fees and costs or give security therefor. If you wish to pro-
ceed in forma pauperis, you must have an authorized of-
ficer at the penal institution complete the certificate as to
the amount of money and securities on deposit to your
credit in any account in the institution.

Only judgments entered by one court may be challenged in
a single petition. If you seek to challenge judgments
entered by different courts either in the same state or in
different states, you must file separate petitions as to each
court.

Your attention is directed to the fact that you must include
all grounds for relief and all facts supporting such grounds
for relief in the petition you file seeking relief from any
judgment of conviction.

When the petition is fully completed, the original and two
copies must be mailed to the Clerk of the United States
District Court whose address is 1114 Market St., St. Louis,
Missouri 63101.

Petitions which do not conform to these instructions will
be returned with a notation as to the deficiency.

— A-91 —

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
DIVISION

PETITION

1. Name and location of court which entered the judgment of
conviction under attack: Circuit Court of Jefferson Coun-
ty, Mo. at Hillsboro, Mo.

Date of judgment of conviction: June 20th, 1985.
Length of Service: DEATH.

Nature of offense involved (all counts): Capital murder.

vu S ~ N

What was your plea? (Check one)
(a) Not Guilty YES
(b) Guilty

(c) Nolo Contendere

If you entered a guilty plea to one count or indictment, and a
not guilty plea to another count or indictment, give details: N/A

6. Kind of trial: (Check One) (a) Jury XX
(b) Judge only

7. Did you testify at the trial? Yes [ ] No [XX]

8. Did you appeal from the judgment of conviction?
Yes [XXX] No[ ]

9. If you did appeal, answer the following:
(a) Name of court: Mo. S. Ct.
(b) Result: denied
(c) Date of result: June 15th, 1986

eee

— A-92 —

10. Other than a direct appeal from the judgment of convic-
tion and sentence, have you previously filed any petitions,
applications, Rule 27.26 motions or other motions with
respect to this judgment in any court, state or federal?

Yes [XXX] No[ ]

If your answer to 10 was “‘yes’’, give the following infor-
mation:

11.

(a)

(b)

(1)

(2)
(3)

(4)

(5)
(6)

Name of court: Circuit Court Jefferson Coun-
ty, Mo.

Nature of proceeding: Mo. S. Ct. Rule 27.26

Grounds raised: See attached sheets (Movant
has copied the points relied on from the brief fil-
ed in the Mo. App. court in the appeal of the
Circuit Court’s denial of the Rule 27.26 thus
avoiding any claim that Movant is not presenting
the same claims.

Did you receive an evidentiary hearing on your
petition, application, or motion? Yes[XX} No [ ]

Result: denied
Date of result: December 22nd, 1987

As to any second petition, application or motion give
the same information:

(1)
(2)

(3)
(4)

(5)

Name of court: N/A

Nature of proceeding:

Grounds raised:

Did you receive an evidentiary hearing on your
petition, application, or motion? Yes[ ] No[ ]

Result: N/A

—_—s

(6) Date of result:

(c) As to any third petition, application or motion, give
the same information:

(1) Name of court: N/A
(2) Nature of proceeding:
(3) Grounds raised: N/A

(4) Did you receive an evidentiary hearing on your
petition, application, or motion? Yes[ ] No[ ]

(5) Result: N/A

(6) Date of result:

(d) Did you appeal to the highest state court having
jurisdiction the result of action taken on any petition,
application or motion? }

(1) First petition, etc. Yes [XXX] No[ ]
(2) Second petition, etc. Yes[ ] No[ ] N/A
(3) Third petition, etc. Yes[ ] No[ ] N/A

(e) If you did not appeal from the adverse action on any
petition, application or motion, explain why you did
not: N/A

12. State concisely every ground on which you claim that you
are being held unlawfully. Summarize briefly the facts
supporting each ground. If necessary, you may attach
pages stating additional grounds and facts supporting
same.

CAUTION: In order to proceed in the federal
court, you must ordinarily first exhaust your
state court remedies as to each ground on which
you request action by the federal court. If you

oo Di

fail to set forth all grounds in this petition, you
may be barred from presenting additional
grounds at a later date.

For your information, the following is a list of the most fre-
quently raised grounds for relief in habeas corpus proceedings.
Each statement preceded by a letter constitutes a separate
ground for possible relief. You may raise any grounds which
you may have other than those listed if you have exhausted your
state court remedies with respect to them. However, you should
raise in this petition all available grounds (relating to this con-
viction) on whichyou based your allegations that you are being
held in custody unlawfully.

Do not check any of these listed grounds. If you select one or
more of these grounds for relief, you must allege facts. The
petition will be returned to you if you merely check (a) through
(j) or any one of the grounds.

(a) Conviction obtained by plea of guilty which was
unlawfully induced or not made voluntarily with
understanding of the nature of the charge and the
consequences of the plea.

(b) Conviction obtained by use of coerced confession.

(c) Conviction obtained by use of evidence gained pur-
suant to an unconstitutional search or seizure.

(d) Conviction obtained by use of evidence obtained pur-
suant to an unlawful arrest.

(e) Conviction obtained by a violation of the privilege
against self-incrimination.

(f) Conviction obtained by the unconstitutional failure
of the prosecution to disclose to the defendant
evidence favorable to the defendant.

(g) Conviction obtained by a violation of the protection
against double jeopardy.

circa

— A-95 —

(h) Conviction obtained by action of a grand or petit jury
| which was unconstitutionally selected and impanell-
ed.

(i) Denial of effective assistance of counsel.
(j) Denial of right of appeal.
A. Ground one: see attached sheets

Supporting FACTS (tell your story briefly
without citing cases or law): Movant has copied
each of the points relied on from the direct ap-
peal and the post conviction appeal and included
. same herein as the points relief on in this Court
i and thus grounds for the to issue the great writ.
This will avoid any claim by the Respondent that
Movant is not presenting the same claims.
Counsel will provide the ‘arguments and
authorities relied upon.

B. Ground two:

Supporting FACTS (tell your story briefly with-
out citing cases or law):

THE TRIAL COURT ERRED IN REFUSING TO GIVE IN-
STRUCTION NO. A, DEFENDANT’S SELF-DEFENSE IN-
STRUCTION, BECAUSE THERE WAS SUFFICIENT
EVIDENCE IN THE RECORD TO WARRANT SUBMIS-
SION OF THIS INSTRUCTION AND, BY REFUSING, THE
TRIAL COURT FAILED TO INSTRUCT THE JURY ON
THE WHOLE LAW OF THE CASE.

State v. Chambers, 671 S.W.2d 781 (Mo. banc 1984);
State v. Rash, 359 Mo. 215, 221 S.W.2d 124 (1949);
State v. Hicks, 438 S.W.2d 215 (Mo. 1969);

State v. Wilson, 645 S.W.2d 372 (Mo. 1983);

State v. McGowan, 621 S.W.2d 557 (Mo. App. 1981);
State v. Jackson, 522 S.W.2d 317 (Mo. App. 1975).

THE TRIAL COURT ERRED IN DENYING AP-
PELLANT’S SECOND MOTION FOR CHANGE OF VEN-
UE, BECAUSE THE INHABITANTS OF JEFFERSON
COUNTY WERE PREJUDICED AGAINST APPELLANT
DUE TO EXTENSIVE PRETRIAL PUBLICITY REGARD-
ING HIS PRIOR CONVICTION FOR THE SAME OF-
FENSE, THEREBY DENYING APPELLANT HIS RIGHT
TO A FAIR TRIAL UNDER THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT.

Sheppard v. Maxwell, 384 U.S. 333 (1966);
Irvin v. Dowd, 366 U.S. 717 °1961);
Forsythe v. State, 230 N.E.2d 681 (C.P. of Allen County 1967);

i

— A-97 —

State v. Boggs, 634 S.W.2d 447 (Mo. banc 1982);
State v. Hayes, 624 S.W.2d 16 (Mo. 1981);

State v. Molasky, 655 S.W.2d 663 (Mo. App. 1983), cert.
denied, 464 U.S. 1049 (1984);

Maine v. Superior Court, 68 Cal.2d 375, 438 P.2d 372 (Cal.
banc 1968);

Bainszewski v. State, 261 N.E.2d 359 (Ind. 1970);
People v. Tidwell, 3 Cal.3d 62, 473 P.2d 748 (Cal. banc 1970).

THE TRIAL COURT ERRED IN OVERRRULING
DEFENDANT’S OBJECTIONS TO THE EXCUSAL, FOR
CAUSE, OF VENIREMEN BETALLE AND GERLEMAN,
BECAUSE THEIR EXCUSAL FROM SITTING AS JUROR
IN THE GUILT PHASE OF APPELLANT’S TRIAL:

A)- RESULTED IN A JURY WHICH WAS MORE
CONVICTION PRONE, THEREBY DEPRIVING AP-
PELLANT OF A FAIR AND IMPARTIAL JURY AND
A JURY REPRESENTATIVE OF FAIR CROSS SEC-
TION OF THE COMMUNITY IN VIOLATION OF HIS
RIGHTS UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CON-
STITUTION IN THAT

1) JURORS WHO COULD IMPARTIALLY
TRY THE ISSUE OF GUILT OR INNOCENCE
BUT COULD NOT ASSESS THE DEATH PENAL-
TY ARE A CONSTITUTIONALLY SIGNIFICANT
SEGMENT OF THE POPULATION;

2) ‘“*SCRUPLED’’ VENIREMEN WERE
REMOVED FROM THE PANEL AND THE RE-
MAINING VENIREMEN WERE PREJUDICED
BY THE QUALIFICATION PROCEDURE; AND

—*

B) WAS IN VIOLATION OF ART. I, SEC. 5 OF THE
MISSOURI CONSTITUTION AND SEC. 546.130 RSMo
1978, IN THAT THEY WERE DISQUALIFIED FROM
JURY SERVICE DUE TO THEIR VIEWS ON THE
DEATH PENALTY, WHICH WERE OR MAY HAVE
BEEN RELIGIOUS IN BASIS.

~_

Keeten v. Garrison, 578 F. Supp. 1164 (W.D. N.C. 1984); rev’d,
742 F.2d 129 4th Cir. 1984);

Grigsby v. Mabry, 569 F. Supp. 1273 (E.D. Ark. 1983), aff’d,
758 F.2d 226 (8th Cir. 1985); cert. granted sub nom. Lockhart
v. McCree, 106 S.Ct. 59 (1985);

Witherspoon v. Illinois, 391 U.S. 510 (1968);

State v. Lashley, 667 S.W.2d 712 (Mo. banc 1984); cert. denied,
___ U.S. ___, 105 S.Ct. 229 (1984);

Duren v. Missouri, 439 U.S. 357 (1979);
Ballew v. Georgia, 435 U.S. 223 (1978);
Taylor v. Louisiana, 419 U.S. 522 (1975);
Peters v. Kiff, 407 U.S. 493 (1972);

Hovey v. Superior Court of Alameda County, 28 Cal.3d 1, 168
Cal. Rptr. 128, 616 P2d 1301 (1980);

State v. Kenley, 693 S.W.2d 79 (Mo. banc 1985);

State v. Johns, 780 S.W.2d 253 (Mo. band 1984);

Rodgers v. Danforth, 486 S.W.2d 258 (Mo. banc 1972);

US. , 105 S.Ct. 844 (1985);
State v. Nave, 694 S.W.2d 729 (Mo. banc 1985);

State v. Jones, No. 66697 (Mo. banc 1985);

Bounds v. Smith, 430 U.S. 817 (1977);

Wainwright v. Witt,

—_—-
Estelle v. Williams, 425 U.S. 501 (1976), reh’g denied, 426 U.S.
954 (1976);

Castaneda v. Partida, 430 U.S. 482 (1976);

Schowgurow v. State, 420 Md. 121, 213 A.2d 475 (1965);
State v. Madison, 240 Md. 265, 213 A.2d 880 (1965);

Labat v. Bennet, 365 F.2d 698 (Sth Cir. 1966), cert. denied, 386
U.S. 991 (1967);

Simmons v. State, 182 So.2d 442 (Fla. Ct. App. 1966);

People v. Attica Brothers, 79 Misc.2d 492, 359 N.Y.S.2d 699
(N.Y. Sup. Ct. 1974);

United States v. Butera, 420 F.2d 564 (ist Cir. 1970);
U.S. Const., amend. V;

U. S. Const., amend VI;

U.S. Const., amend XIV;

Mo. Const., Art. I, sec. 5;

Section 546.130, RSMo 1978;

C. Haney, On the Selection of Capital Juries: The Biasing Ef-
Sects of the Death Qualification Process, 8 LAW & hum. behav.
121 (1984); and

B. Winick, Prosecutorial Peremptory Challenge Practices in
Capital Cases: An Empirical Study and a Constitutional
Analysis, 81 MICH. L. REV. 1, 57 (1982).

= »

— A-100 —

IV

THE TRIAL COURT ERRED IN NOT PERMITTING AP-
PELLANT, IN HIS ARGUMENT TO THE JURY, TO
DRAW AN ADVERSE INFERENCE FROM THE STATE’S
FAILURE TO CALL A WITNESS WHO WAS CLOSELY
CONNECTED WITH THE STATE AND, THEREFORE,
WAS NOT EQUALLY AVAILABLE TO BOTH PARTIES.

State v. Farrell, 682 S.W.2d 118 (Mo. App. 1984);
State v. Moore, 620 S.W.2d 370 (Mo. banc 1981);
State v. Wilkerson, 559 S.W.2d 228 (Mo. App. 1977);
State v. Beasley, 182 S.W.2d 541, 353 Mo. 392 (1944).

THE HEARING COURT WAS CLEARLY ERRONEOUS
IN OVERRULING APPELLANT’S TRIAL COUNSEL TO
INTERVIEW WITNESSES JAMES JONES AND DONALD
CHAPMAN WAS NOT SUPPORTED BY REASONABLE
PROFESSIONAL JUDGMENT AND THEREBY DENIED
APPELLANT HIS RIGHT TO EFFECTIVE ASSISTANCE
OF COUNSEL UNDER THE SIXTH AMENDMENT.

Poole v. State, 671 S.W.2d 787 (Mo. App. 1983);
Wilson v. Cowan, 578 F.2d 166 (6th Cir. 1978);
Nealy v. Cabana, 764 F.2d 1173 (Sth Cir. 1985);
Strickland v. Washington, 466 U.S. 668 (1984);
Seales v. State, 580 S.W.2d 733 (Mo. banc 1979);

Hanch v. K.F.C. National Management Corporation, 618
S.W.2d 28 (Mo. banc 1981);

Davis v. Alabama, 596 F.2d 1214 (Sth Cir. 1979);
Coleman v. Brown, 802 F.2d 1227 (10th Cir. 19@)):
Weidner v. Wainwright, 708 F.2d 614 (11th Cir. 1983);
Code v. Montgomery, 799 F.2d 1481 (11th Cir. 1986);
Gomez v. Beto, 462 F.2d 596 (Sth Cir. 1972);

U.S. v. Dingle, 546 F.2d 1378 (10th Cir. 1976);

Bell v. Georgia, 554 F.2d 1360 (Sth Cir. 1977);

House v. Balkcom, 725 F.2d 608 (11th Cir. 1984);

State ex rel Casey v. Wolff, 727 F.2d 658 (7th Cir. 1984);
U.S. v. Moore, 554 F.2d 1086 (D.C. Cir. 1976);

— A-102 —

Crisp v. Duckworth, 743 F.2d 580 (7th Cir. 1984);
Ladd v. State, 621 S.W.2d 543 (Mo. App. 1981);
Ladd v. Hopper, 621 S.W.2d 543 (Mo. App. 1981);
Gaines v. Hopper, 575 F.2d 1147 (Sth Cir. 1978);
State v. Chambers, 714 S.W.2d 527 (Mo. banc 1986).

II.

THE HEARING COURT WAS CLEARLY ERRONEOUS
IN OVERRULING APPELLANT’S MOTION UNDER
RULE 27.26, BECAUSE THE FAILURE OF APPELLANT’S
TRIAL COUNSEL TO ATTEMPT TO LOCATE AND IN-
TERVIEW WITNESSES FROM THE EYE-DOCTOR’S OF-
FICE WAS NOT SUPPORTED BY REASONABLE PRO-
FESSIONAL JUDGMENT AND, WHEN COUPLED WITH
COUNSEL’S OTHER ERRORS, DENIED APPELLANT HIS
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
UNDER THE SIXTH AMENDMENT.

Trimble v. State, 693 S.W.2d 267 (Mo. App. 1985);
Poole v. State, supra;
Eldridge v. Atkins, 665 F.2d 228 (8th Cir. 1981);
Strickland v. Washington, supra,
Wilson v. Cowan, supra.

C. Giound three:

Supporting FACTS (tell your story briefly
without citing cases or law):

13. If any of the grounds listed in 12A, B, C, and D were not
previously presented in any other court, state or federal,
state briefly what grounds were not so presented, and give
your reasons for not presenting them: N/A

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— A-103 —

14. Do you have any petition or appeal now pending in any

15.

16.

17.

court, either state or federal, as to the judgment under at-
tack? Yes[ } No [XX]

Give the name and address, if known, of each attorney

who represented you in the following states of the judg-
ment attacked herein:

(a) At preliminary hearing Donal Haggar, Public
Defender, Hillsboro, Mo.

(b) At arraignment and plea Haggar
(c) At trial Haggar
(d) At sentencing Haggar

(e) On appeal Tomas R. Schlessinger, 317 N. 11th St.,
Suite 1111, St. Louis, Missouri 63101

(f) In any post-conviction proceeding Schlessinger

(g) On appeal from any adverse ruling in a post-
conviction proceeding. Schlessinger

Were you sentenced on more than one count of an indict-
ment, or on more than one indictment, in the same court
and at approximately the same time? Yes [ ] No [XX]

Do you have any future sentence to serve after you com-

plete the sentence imposed by the judgment under attack?
Yes [ ] No [XX]

(a) If so, give name and location of court which imposed
sentence to be served in the future: N/A

(b) And give date and lenth of sentence to be served in
the future: N/A

(c) Have you filed, or do you contemplate filing, any
petition attacking the judgment which imposed the

sentence to be served in the future? Yes[{ ] No[ ]
N/A

— A-104 —

Wherefore, petitioner prays that the Court grant
petitioner relief to which petitioner may be entitled in
this proceeding.

/s/ James W. Chambers

I declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct. Executed on 18th,
March, 1988.

/s/ James W. Chambers

— A-105 —

APPENDIX I

James W. CHAMBERS, Appellant,
v.
STATE of Missouri, Respondent.

No. 52910

Missouri Court of Appeals,
Eastern District,
Division Two.

Dec. 22, 1987.

Motion for Rehearing and/or Transfer
Denied Feb. 4, 1988.

Application to Transfer Denied
March 15, 1988.

Appeal was taken from order of the Circuit Court, Jefferson
County, John L. Anderson, J., which denied postconviction
motion. The Court of Appeals, Dowd, J., held that defendant
did not receive ineffective assistance of counsel.

Affirmed.
Thomas R. Schlesinger, Chesterfield, for appellant.

William L. Webster, Atty. Gen., Jared R. Cone, Asst. Atty.,
Jefferson City, for respondent.

DOWD, Judge.

Movant James W. Chambers appeals after the denial of his
Rule 27.26 motion following an evidentiary hearing. We af-
firm.

Appellant was convicted of capital murder for which he was
sentenced to death. On direct appeal following his original trial,
the Missouri Supreme Court reversed appellant’s conviction and

iain

— A-106 —

ordered a new trial on grounds the trial court refused
appellant’s tendered self-defense instruction when there was
sufficient evidence of self-defense to warrant submission of the
issue to the jury. State v. Chambers, 671 S.W.2d 781 (Mo. banc
1984) (hereinafter cited as Chambers I].

On retrial, appellant did not adduce the evidence of self-
defense presented in the first trial. Accordingly, the trial court
refused appellant’s tendered instruction on self-defense. Ap-
pellant was again convicted of capital murder and sentenced to
death. On direct appeal, the Missouri Supreme Court upheld
appellant’s conviction concluding the evidence presented at ap-
pellant’s second trial did not justify a self-defense instruction.
State v. Chambers, 714 S.W.2d 527 (Mo. banc 1986)
{hereinafter cited as Chambers IT}.

In his motion seeking relief under Rule 27.26, appellant con-
tends he was denied effective assistance of counsel in that
counsel who represented appellant during his second trial failed
to interview and call crucial witnesses who could have testified
in appellant’s behalf.

A full statement of the facts surrounding appellant’s convic-
tion is given in the opinion on direct appeal. Chambers /I,
supra. In brief, the evidence showed appellant went to a lounge
in Arnold, Missouri and sought out the victim. Appellant ini-
tiated an argument with the victim and coaxed the victim to set-
tle 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 vic- r
tim over the head with the gun. The victim rose to his feet with
his hands in the air. Appellant fired a single shot into the vic-
tim’s chest. Appellant then proceeded to pistol whip the victim,
dragged the victim across the parking 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.

|

— A-107 —

The owner of the lounge, however, testified the pliers were his
and had dropped from his pocket after the incident when he
reached for a handkerchief while standing over the victim’s
body.

The State’s theory of the case under the capital murder sub-
mission was that appellant intended to cause the death of the
victim and reflected upon the matter cooly and fully before do-
ing so in that appellant sought out the victim, appellant drew a
handgun and waited for the unarmed victim to exit the estab- -
lishment, and appellant had a getaway car waiting so that he
could quickly flee the scene.

At the 27.26 motion hearing, appellant’s counsel from his sec-

ond trial testified it was his trial strategy to undermine 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 instruction. ;

At appellant’s first trial, a witness, Jim Jones, was called 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 instruction 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, ap-
pellant fell backwards and as appellant was rising to his feet, he
shot the victim.

On cross-examination, however, Jones testified to facts
adverse to appeliant’s case. Jones substantiated the state’s case
that appellant had the handgun drawn before the victim 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 pistol whipped the victim and

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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 acknowledged 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 concluded Jones, for
impeachment purpose

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2792%3A2. Public record. Not legal advice.