Edward L. Wing v. Willis Sargent, Warden, Arkansas Department of Correction

940 F.2d 1189, 1991 U.S. App. LEXIS 17955, 1991 WL 149260
CourtCourt of Appeals for the Eighth Circuit
DecidedAugust 8, 1991
Docket90-2027
StatusPublished
Cited by20 cases

This text of 940 F.2d 1189 (Edward L. Wing v. Willis Sargent, Warden, Arkansas Department of Correction) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Edward L. Wing v. Willis Sargent, Warden, Arkansas Department of Correction, 940 F.2d 1189, 1991 U.S. App. LEXIS 17955, 1991 WL 149260 (8th Cir. 1991).

Opinion

*1190 LOKEN, Circuit Judge.

Edward L. Wing appeals from the district court’s 1 denial of his petition for a writ of habeas corpus following an eviden-tiary hearing. Wing argues that his trial counsel was ineffective because, in pursuit of a foolish trial strategy, counsel failed to interview several potential defense witnesses and the key prosecution witnesses. We affirm.

I.

Early one morning in January 1984, burglars broke into a King Pizza restaurant in Fayetteville, Arkansas and stole the coins out of several video games. When the police arrived they followed two sets of footprints in the snow from the restaurant to a house where Wing lived with two other men. Landon Pratt, one of the housemates, told the police that the other two, Kevin Gates and Wing, had committed the crime. The police obtained a search warrant, searched the house, found almost $300 in a pillow case in the attic, and arrested Gates and Wing.

At Wing’s trial, Gates, who had pleaded guilty, testified that he and Wing had committed the burglary. Pratt corroborated Gates’s testimony. Wing’s trial counsel cross-examined all but one of the state’s witnesses, recalled Gates and Pratt as part of Wing’s defense, but did not call any new witnesses for the defense. The jury found Wing guilty of burglary and theft of property. His conviction was affirmed, Wing v. State, 286 Ark. 494, 696 S.W.2d 311 (1985), and his petition for post-conviction relief to the state court was denied in an unpublished opinion. Wing then filed this petition for federal habeas corpus relief. After holding an evidentiary hearing the district court denied the petition; this appeal followed.

At the evidentiary hearing, Wing testified that he gave his counsel a list of potential defense witnesses who would testify that Gates or Pratt had made statements after the burglary implicating Pratt, not Wing, as the second burglar. This list included Donald Wing (Wing’s brother) and Dickie Spears, both former clients of Wing’s trial counsel. Donald Wing testified at the hearing that he had asked Gates, while the two of them were in a holding cell, if Wing had committed the burglary and Gates had answered, “Oh, no, he was just staying at the house.” Spears also testified about a conversation that he had with Gates: “He told me he felt Ed [Wing] was getting a bad deal because Ed was in bed asleep when him and the other dude went and done it, and that the DA had made him a deal that they would let him off if he would testify against Ed.”

Wing's trial counsel then testified as to his trial strategy. He realized that the prosecution had little evidence implicating Wing besides the testimony of Gates and Pratt. Under Arkansas law, Wing could not be convicted of this felony based upon uncorroborated accomplice testimony. Gates was an admitted accomplice. Thus, if the jury concluded Pratt was an accomplice, Wing might be acquitted because of a lack of corroborating evidence. Moreover, if the trial court failed to give an accomplice instruction as to Pratt, counsel hoped to obtain a reversal on this ground, following which the prosecutor might offer Wing a more favorable plea agreement rather than conduct a second trial. In pursuing this strategy, counsel contacted Gates’s attorney before trial and obtained Gates’s cooperation so that, when Gates was recalled as a witness for the defense, he gave evidence that subtly painted Pratt as a possible accomplice. Counsel then requested the accomplice instruction. When the trial court gave that instruction, counsel’s instruction error strategy was foiled, but he was then able to stress in closing argument that the jury should find that Pratt was in fact an accomplice.

With regard to Wing’s list of witnesses, counsel testified that before trial he interviewed one of those persons who said he would not testify because his original as *1191 sertion — that Gates had said Wing was not involved in the crime — was a made up story. Counsel testified that he chose not to call Donald Wing and Spears because he did not think they were believable and, moveover, their testimony would have frustrated his strategy by making obvious the need for an accomplice instruction as to Pratt.

II.

Wing argues that his trial counsel was ineffective for failing to make use of witnesses who would have refuted the trial testimony of Gates and Pratt. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to establish ineffective assistance of counsel, Wing must prove ineffectiveness and prejudice, that is, he “must show that counsel’s performance was deficient,” or below an objective standard of reasonableness, and that “there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 687, 695, 104 S.Ct. at 2064, 2068-69. In this case, we agree with the district court that Wing failed to prove that the assistance of his trial counsel was legally ineffective.

At the evidentiary hearing only Dickie Spears and Donald Wing testified as to what their trial testimony would have been had they been called as defense witnesses. Wing has the burden of proving that his counsel’s performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 691, 104 S.Ct. at 2066; Laws v. Armontrout, 863 F.2d 1377, 1387 (8th Cir.1988) (en banc), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d 415 (1989). Wing’s speculation as to how the others on his list would have testified fails to meet his burden of proof that counsel’s assistance was ineffective. See Cross v. O’Leary, 896 F.2d 1099, 1100 (7th Cir.1990); Sanders v. Trickey, 875 F.2d 205, 210 (8th Cir.), cert. denied, — U.S. -, 110 S.Ct. 252, 107 L.Ed.2d 201 (1989).

With respect to Spears and Donald Wing, Wing first alleges that his trial counsel was ineffective in failing to interview them. As to decisions made after less than complete investigation, Strickland noted that “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.” 466 U.S. at 691, 104 S.Ct. at 2066. Wing’s counsel testified that he knew these witnesses and the substance of their potential trial testimony — that Gates had told them that Pratt, not Wing, was the second burglar. Counsel’s decision not to call them was based upon his perception that their testimony would not be believed and would be inconsistent with his own trial strategy. Under these circumstances, counsel’s decision to not interview the witnesses was reasonable and in any event had no impact upon his performance at trial.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Schocker v. Fluke
2024 S.D. 65 (South Dakota Supreme Court, 2024)
Clark v. Falkenrath
E.D. Missouri, 2024
Daniels v. Clark
E.D. Virginia, 2022
Ramsey v. United States
E.D. Missouri, 2020
Stewart v. United States
E.D. Missouri, 2020
Sabot v. Pringle
D. North Dakota, 2020
Demario Griffin v. United States
617 F. App'x 618 (Eighth Circuit, 2015)
Rodela-Aguilar v. United States
596 F.3d 457 (Eighth Circuit, 2010)
Sillick v. Ault
358 F. Supp. 2d 738 (N.D. Iowa, 2005)
Fast Horse v. Weber
1999 SD 97 (South Dakota Supreme Court, 1999)
Bowman v. Gammon
85 F.3d 1339 (Eighth Circuit, 1996)
James Bowman v. James Gammon
85 F.3d 1339 (Eighth Circuit, 1996)
Larry Griffin v. Paul Delo
33 F.3d 895 (Eighth Circuit, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
940 F.2d 1189, 1991 U.S. App. LEXIS 17955, 1991 WL 149260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edward-l-wing-v-willis-sargent-warden-arkansas-department-of-correction-ca8-1991.