James W. Chambers v. Bill Armontrout

907 F.2d 825, 1990 U.S. App. LEXIS 11331, 1990 WL 91201

• Court: Court of Appeals for the Eighth Circuit
• Decided: July 5, 1990
• Docket: 88-2383
• Status: Published

Opinions

HEANEY, Senior Circuit Judge.

James Chambers appeals his state 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 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 Ieppert, the government’s eyewitness, testified to the following: (1) Chambers and Oestricker engaged in a heated argument inside the bar; (2) both Chambers and Oestricker decided to take the argument outside; and (3) upon their exit, Ieppert moved from his chair to the door of the bar, taking a few seconds to do so. Ieppert 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 Oes-tricker 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 parking 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- Oestricker, 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 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 conviction. 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. Id. at 783. The court held that a jury could reasonably conclude that Oes-tricker was the initial aggressor and that Chambers shot Oestricker because Chambers feared great bodily harm. Id.1

Missouri retried Chambers in Jefferson County. His newly appointed counsel was Donald W. Hager, a public defender. Hag-er neither interviewed Jones nor called Jones to testify on behalf of Chambers. The state did not call Jones. With this exception, the second trial proceeded in much the same manner as the first with Fred Ieppert providing the bulk of the prosecution’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 argument. 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 dissent 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 II].

On November 12, 1986, Chambers filed a motion in the Circuit 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 testified to the same version of events as he had at the first trial.² 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.³ 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-whipped Oestricker and shouted, “Lay there and die;” Oestricker was six feet away and not moving towards Chambers at the time of the shooting; and Chambers left the scene in a car that was facing the road with its engine running. On this basis, Hager testified that he did not interview Jones or call Jones at the second trial because he believed that the damaging aspects of Jones’ testimony outweighed its mitigating value.

Chambers’ Rule 27.26 motion was denied by the Circuit Court of Jefferson County. His appeal of that ruling was denied by the Missouri Court of Appeals, and his application for transfer to the Missouri Supreme Court was denied.

Chambers next filed a petition for a writ of habeas corpus in federal court. Chambers alleged, inter alia, that he was denied effective assistance of counsel at the second trial because Hager failed to interview Jones or to call him at that trial. The district court held that Hager’s performance was constitutionally adequate. The court concluded that the decision not to interview or call Jones at trial was reasonable because of the potential damaging aspects of Jones’ testimony, because Jones was not a credible witness, and because Chambers signed a pretrial statement in which he agreed with Hager’s decision not to call Jones at trial. Accordingly, the district court denied Chambers’ petition for habeas relief.

Chambers appealed the district court’s decision to this Court. On appeal, he argues that he was denied effective assistance of counsel because Hager did not interview Jones and did not call Jones at trial. A panel of this Circuit agreed, reversing the district court. Chambers v. Armontrout, 885 F.2d 1318 (8th Cir.1989). We granted the petition for rehearing en banc and vacated the panel decision. After rehearing the appeal en banc, we reaffirm the panel decision and reverse the district court’s denial of habeas relief.

II. DISCUSSION

Under the standards for analyzing a claim of ineffective assistance of counsel enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Chambers must show that Hager’s performance was deficient and that it prejudiced Chambers’ defense. See id. at 687, 104 S.Ct. at 2064. Counsel’s performance is deficient when it is less competent than the assistance that should be provided by a reasonable attorney under the same circumstances. Id.

A. FAILURE TO INTERVIEW JONES

The decision to interview a potential witness is not a decision related to trial strategy. Rather, it is a decision related to adequate preparation for trial. Thus, Hager had “a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 691, 104 S.Ct. at 2066. Because Jones was never interviewed by Hag-er, the question before us is whether Hag-er’s decision not to interview Jones was reasonable from counsel’s perspective at the time that decision was made.

The facts of this case, confirmed by Hag-er’s actions at trial and testimony at the Rule 27.26 hearing, indicate that there was only one defense upon which Chambers could rely: self-defense. That defense was the only realistic defense to the capital murder charge. Moreover, self-defense was a mitigating circumstance appropriate for the jury’s consideration in determining whether Chambers should be sentenced to death. Thus, without Jones’ testimony that Oestrieker had knocked Hager to the ground, Hager was not permitted to argue self-defense as either a partial or complete defense to capital murder. Without Jones’ testimony, the jury could only return a verdict that Chambers was guilty of capital murder.

Because of the grave effect of Hager's decision not to interview Jones in this capital murder case, Chambers alleges that Hager’s decision was unreasonable. He asserts that an interview with Jones would have (1) clarified many of the problems Hager saw in Jones’ testimony at the first trial, (2) permitted Hager to make his own assessment of Jones’ demeanor and credibility, (3) permitted Hager to ascertain whether Jones would adhere to his testimony at the first trial, see supra note 2, (4) enabled Hager to discover additional evidence favorable to Chambers, and (5) enabled Hager to be more effective in his cross-examination of witnesses put forward by the government.⁴

To determine the reasonableness of Hag-er’s decision not to interview Jones, a review of the underlying circumstances as known to Hager at the time of second trial is in order. Chambers never contended that he did not shoot Oestrieker. Chambers never contended that he and Oestricker did not argue with each other in the bar. Chambers never contended that he and Oestrieker did not challenge each other to a fight.

Chambers did contend at both trials that the government’s theory that the fight was a ruse to lure Oestrieker outside where Chambers could murder him was fiction and not fact. He contended that the shooting grew out of a barroom altercation and that he acted in self-defense after he had been knocked to the ground by Oestrieker. Because Chambers’ apparent strategy did not change from the first trial to the second trial and because no indication of new or different testimony existed, reasonable counsel would have anticipated that Chambers’ second trial would proceed much as the first did. Except for the lack of testimony tending to show that Oestrieker knocked Chambers to the ground just before Chambers shot him, the second trial did proceed much as the first did. The second trial therefore lacked the very testimony that the Missouri Supreme Court stated justified a self-defense instruction in the first trial.

Missouri argues, however, that Hager’s decision not to interview Jones was reasonable in light of the damaging aspects of Jones’ testimony. We disagree. Other witnesses had testified to the negative aspects of Jones’ testimony cited by Hager as justifying his decision not to interview Jones.⁵ In that respect, any damaging testimony that Jones gave at the first trial was cumulative, and reasonable counsel would have interviewed Jones to make sure that Jones was willing to repeat his earlier testimony that Oestricker knocked Chambers to the ground, to satisfy himself as to the remainder of Jones’ testimony, and to assess Jones’ credibility.

The State also argues that Hager’s decision not to interview Jones was reasonable because Hager had reasonably determined that Jones lacked credibility. We do not agree: (1) the Missouri Supreme Court based its decision in Chambers I to remand for a new trial on Jones’ testimony; (2) the government made no attempt to impeach Jones’ credibility at the first trial; (3) Hag-er never met Jones nor spoke with him on the telephone enabling Hager to form a personal impression of Jones; and (4) the transcript of Jones’ testimony at the first trial discloses no basis upon which reasonable counsel would have concluded that Jones was not a credible witness.⁶

The State argues that further investigation of Jones was unnecessary because Chambers did not intend to use the theory of self-defense at trial. This argument is not supported by the facts of the case. Hager’s defense of Chambers proceeded on a self-defense theory. His questions on cross-examination were focused solely on the issue of self-defense. Hager requested and was denied a self-defense instruction. The trial court also did not permit Hager to argue self-defense to the jury. Most importantly, the self-defense theory, as either a total or partial defense to capital murder or a mitigating circumstance at the sentencing phase, was Chambers’ only possible, indeed, his only reasonable, defense to the death penalty. See also Code v. Montgomery, 799 F.2d 1481, 1483 (11th Cir.1986) (failure to investigate sole defense established ineffectiveness) and cases cited therein.

The State’s final contention is that Chambers gave Hager reason to believe that further investigation of Jones would be fruitless or even harmful.⁷ In support of this contention, the State relies on language in Strickland.

Strickland, however, is inapposite. The Supreme Court in Strickland stated that

[cjounsel’s actions are usually based quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.

Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. Chambers’ statement did not give Hager reason to believe that pursuing certain investigations would be fruitless or harmful. It does not provide Hager with any information that either discredited Jones or Jones’ testimony. Rather, the statement indicates only that a defendant with an eighth grade education, relying on information provided by Hager, agreed with Hager’s decision not to call Jones. Whether or not Chambers agreed with the decision not to call Jones does not make that decision any more reasonable or the investigation fruitless or harmful.

Accordingly, we conclude that reasonable counsel would have interviewed Jones. The probativeness of Jones’ testimony regarding self-defense weighs heavily in this determination. He was the only person to see the entire altercation outside the bar.⁸ As such, his testimony regarding Oestricker knocking Chambers down was uncontra-dieted. Because reasonable counsel would have interviewed Jones, Hager’s decision not to do so constituted ineffective assistance.

B. FAILURE TO CALL JONES AT TRIAL

Our analysis of Hager’s decision not to call Jones as a witness parallels our analysis of Hager’s decision not to interview Jones. “[Strategic choices made after less than complete investigation are reasonable precisely as to the extent that reasonable professional judgment supports the limitations on investigation.” Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066. Hager’s decision not to call Jones thus is only as reasonable as Hager's decision not to interview Jones. That decision amounted to ineffective assistance of counsel. See Part (H)(A).

Furthermore, because the deference generally granted to strategic choices of trial counsel is not required due to Hager’s lack of preparation, the decision not to call Jones at trial was itself unreasonable in light of all the circumstances as they appeared at the time of the second trial.

By failing to call Jones, Hager attempted to use a defense that lacked evidentiary support.⁹ By failing to call Jones, Hager neglected the law of the case. See Chambers I, 671 S.W.2d at 783 (something more than the barroom argument and the differences in physical size — something indicating the immediacy of danger — had to be present). By failing to call Jones, Hager ignored an unbiased, uncontradicted witness who provided evidentiary support to Chambers’ only defense and whose damaging testimony was merely cumlative of several of the State’s witnesses’ testimony. By failing to call Jones, Hager disregarded a witness whose testimony would have directly contradicted the State’s theory that Chambers’ barroom altercation with Oes-tricker was a ruse on Chambers’ part to lure Oestricker outside where Chambers could murder him.¹⁰ By failing to call Jones, Hager slighted testimony amounting to a mitigating circumstance at the subsequent sentencing hearing.

In sum, Hager’s decision not to call Jones resulted in Chambers admitting that he had shot and killed Oestricker without any explanation that would support a verdict of less than capital murder and sentence of less than death. The State has not offered sufficient reason to support a conclusion that Hager’s decision not to call Jones was reasonable.¹¹

C. PREJUDICE

Under Strickland, the question remains whether, in light of all the circumstances, Hager's ineffective assistance of counsel resulted in any prejudice. Prejudice occurs when “there is a reasonable probability that, but for counsel’s unprofessional errors,” the “result would have been different.” Strickland, 466 U.S. at 694-95, 104 S.Ct. at 2068; Sanders v. Trickey, 875 F.2d 205, 208 (8th Cir.1989). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. In this instance, prejudice occurred if Hager’s deficient “conduct so prejudiced [Chambers] as to undermine confidence in the outcome of the trial” or sentencing. Byrd v. Armontrout, 880 F.2d 1, 4 (8th Cir.1989).

The result of Hager’s ineffective assistance to Chambers was that Jones did not testify in Chambers’ behalf at trial or sentencing. Jones’ testimony had great potential to aid Chambers’ case. Jones was a disinterested witness who testified that Oestricker hit Chambers hard enough to knock Chambers to the ground before the fatal shot was fired. Because no one else saw what occurred outside the bar the first few moments after Oestricker exited the bar, Jones’ testimony would have been given to the jury without contradiction. With Jones’ testimony, the court would have instructed the jury on self-defense and permitted Hager to argue self-defense. Our review of the record indicates that only Jones’ testimony substantially supported either approach.¹² The prejudice is plain.

We cannot say what would have happened at the second trial had Jones testified, but we are not confident in its verdict. Had Jones testified, a self-defense instruction would have been submitted to the jury and Hager would have been permitted to argue self-defense. The jury might have acquitted Chambers of capital murder, either by finding him guilty of a lesser charge ¹³ or by finding that he acted in self-defense.¹⁴ In addition, if the jury had credited Jones’ testimony at sentencing, it might not have sentenced Chambers to death.¹⁵

III. CONCLUSION

At the time of the second trial, this case appeared to involve a barroom brawl or altercation. Chambers did not, and could not, deny shooting Oestricker. His only defense to the charge of capital murder and the death penalty was that he acted in self-defense. Only one witness could testify to one of the required elements of self-defense permitting either submission of the issue or argument to the jury. That witness’ harmful testimony would have appeared to reasonable counsel at the time of the second trial to be cumulative rather than significantly damaging. That witness appeared credible. That witness appeared crucial to Chambers’ only defense. Chambers’ counsel nonetheless failed to interview or call this witness to the stand, although he knew of his existence, knew of his testimony, and was able to contact him. On these facts, we hold that Chambers received ineffective assistance of counsel and was prejudiced thereby.

Therefore, we reverse and remand to the district court with directions that it enter an order that the state either retry Chambers within 120 days of this order or free him from custody. The district court shall further order that the state notify this court and the district court of its intention in this regard within 45 days of this order.

1 . The Missouri Supreme Court stated:

Although there was verbal exchange inside the tavern, the initial 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 aggressor.

Chambers is small in stature — 5'6" tall and weighing 150 pounds. Oestricker, 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 affirmative 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, [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 necessity 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.

2 . 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).

3 . 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 contact.

4 . Although the State does not suggest that Jones was unavailable, Chambers notes that Hager had at his disposal the address and phone number of Jones and a paid investigator who was available to locate, interview, and subpoena Jones.

5 . The State notes that Jones testified in the first trial that Chambers left the bar first and waited for Oestrieker. Numerous witnesses testified to this fact at both trials. Second, Jones’ testimony at the first trial could be read to imply that Chambers, as he left the bar, intentionally hid his pistol from Oestricker’s view. A state witness testified to the same fact at both trials. Missouri v. Chambers, No. 64709, Transcript at 505-07 [Chambers I, T.] (testimony of James Fowler, a bar patron); see Missouri v. Chambers, No. 67191, Transcript at 586-88 [Chambers II, T.]; see abo Chambers I, T. at 466 (testimony of Fred leppert and several other witnesses that Chambers was hiding some knife or weapon). An interview with Jones would have clarified that he never intended to give such an impression. See supra note 2. Third, Jones testified that Chambers pistol-whipped Oestrieker. Several of the State’s witnesses also testified that Chambers pistol-whipped Oestrieker. Chambers I, T. at 465, 508, 556, 645, 654, 689; see Chambers II, T. at 374-77, 420, 458, 501, 524, 540-41, 590. Fourth, Jones testified that at the time he was shot, Oestrieker was standing six feet away from Chambers. Fred leppert testified to the same fact. Chambers I, T. at 464; see Chambers II, T. at 447 (Fred leppert testified that the distance separating the two was five feet). Fifth, Hager indicated that he considered Jones' testimony that Chambers shouted several epithets at Oestrieker and the other bar patrons after the shooting to be damaging. Numerous witnesses repeatedly testified to this fact. Chambers I, T. at 466, 509, 542, 566, 680, 700; see Chambers II, T. at 330, 360, 375, 420-21, 508, 591. The final aspect that Hager considered damaging related to Jones’ testimony that after the shooting, Chambers ran to a waiting car with its motor running which immediately sped off.

The dissent asserts that the "most damning evidence of cool planning was Jones' testimony that the car was left running.” This may indeed be the case, but another witness, Dennis Simmons, testified that Chambers had a car "waiting.” Chambers I, T. at 656-57; see Chambers II at 460-61. This evidence of premeditation therefore was before the jury, but without Jones’ further testimony that Oestricker, a much larger man, knocked Chambers to the ground before the shooting occurred — evidence which was essential to the self-defense theory and tended to show that the shooting may not have been premeditated was not presented to the jury.

6 . Assuming that Hager’s determination that Jones lacked credibility was reasonable, we doubt that that determination, under these facts, would justify reasonable counsel’s decision not to interview the only witness who had the only evidence supporting an essential element of the defendant's only defense.

7 . The State’s argument is that Hager's decision not to interview Jones is reasonable for the very reason that Chambers agreed with the decision in a signed statement. Chambers’ signed statement is as follows:

I agree that Mr. Hager need not subpoena or call James Jones at my trial. His cross examination at the first trial was extremely damaging to me and I believe it would be at the second trial. I 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

8 . As noted above, a gap of several seconds exists in the testimony of the government's eyewitness, Fred Ieppert. Jones had a clear view of the area outside the bar from his car. This is confirmed by the fact that the State neither cross-examined as to Jones' view of the incident nor argues on appeal that Jones was unable to see the entire incident clearly. Jones’ unquestioned clear view of the incident simply emphasizes the importance of an interview with Jones.

9 . Hager attempted to elicit sufficient evidence of self-defense through cross-examination of the State’s witnesses. The alleged evidence that supported Hager’s theory at the second trial was that Oestricker had a pair of pliers in his hand when he was shot. Hager questioned several of the State's witnesses about the pliers. Only one of the witnesses, Fred Ieppert, knew any information about any pliers, and Ieppert testified that he had dropped a pair of pliers when he reached in his pants pocket to pull out a handkerchief on seeing Oestricker's dead body.

Our review of the record indicates that at the time of the second trial, Hager had no reasonable basis to conclude that he would be able to elicit sufficient evidence of self-defense through cross-examination. As a matter of fact, Hager was unable to elicit sufficient evidence. Furthermore, Hager never interviewed any of the witnesses, including Ieppert, as to Oestricker’s possession of pliers.

10 . The probative value of Jones' testimony on this point is striking. If the barroom altercation was merely a ruse, as the State suggested, to provide sufficient evidence of Chambers' intent to support a capital murder instruction, then why did Chambers — according to Jones’ testimony. — wait until Oestricker hit him in the face, knocking him to the ground, before he shot him?

11 ." 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 offered 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 opinion, I fear, becomes the best evidence for proof of a charge of ineffective counsel.” Id. (Welliver, J., dissenting).

12 . Even without Jones' testimony, Hager asserted that Chambers acted in self-defense or with legal provocation. Hager presented insufficient evidence, however, either to support an instruction on self-defense or to permit Hager to argue self-defense to the jury.

13 . The State contends that the reasonable probability of being found guilty of a lesser charge does not amount to prejudice. We cannot agree. See Strickland, 466 U.S. at 695, 104 S.Ct. at 2068 (prejudice is the "likelihood of a result more favorable to the defendant"). The State's interpretation of Strickland ignores the facts of that case. The Supreme Court explicitly recognized that prejudice can occur in sentencing alone. Id. Therefore, if the possibility of a shorter sentence constitutes prejudice, then the possibility of a conviction of a lesser charge resulting in a shorter sentence also constitutes prejudice.

14 . Missouri argues that Chambers cannot make an adequate showing of prejudice because the other evidence against him was sufficiently impressive that his failure to call Jones was not likely to alter the outcome of the case. We disagree. See Chambers I, 671 S.W.2d at 784 ("While the evidence of self-defense is not so unequivocal as to mandate a directed verdict of acquittal, the evidence is sufficient to justify submission of self-defense to the jury.”). Assuming, however, that Jones’ testimony is not likely to be outcome determinative, we would still find sufficient prejudice under the Constitution. In adopting the prejudice prong of Strickland, the Supreme Court stated that it believes "that a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.” Strickland, 466 U.S. at 693, 104 S.Ct. at 2068. The Constitution merely requires "a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068.

15 . Chambers also makes two other claims: Hag-er's decision not to interview or call as witnesses Donald Chapman, Eleanor Hotchkiss, and Jackie Turner denied Chambers effective assistance of counsel; and Chambers was denied a fair trial because the trial court failed to submit a self-defense instruction to the jury. As to the former issue, we have carefully examined the record and find that claim to be without merit. As to the latter issue, the trial court was correct not to submit the self-defense instruction to the jury because absent Jones’ testimony, insufficient evidence existed to support the theory that Chambers acted in self-defense.