Justia Federal District Court Opinions

Harold McQueen appeals from the district court's denial of his petition for a writ of habeas corpus (No. 93-5854) and from the district court's denial of his subsequent motion for relief from judgment under Fed.R.Civ.P. 60(b) (No. 94-6116). A Kentucky court convicted McQueen of capital murder and sentenced him to death in 1981. For the reasons set out more fully below, we find no merit in any of McQueen's contentions and therefore affirm the district court's denial of the petition for a writ of habeas corpus and the district court's denial of the Rule 60(b) motion.

* A jury convicted Harold McQueen of capital murder on March 29, 1981. The charge stemmed from the execution-style slaying of 22-year-old Rebecca O'Hearn in Richmond, Kentucky on January 17, 1980. The murder was part of an armed robbery of the "Minit Mart" convenience store where O'Hearn was working. McQueen, 27 at the time of the murder, apparently spent most of January 17 drinking and taking drugs. McQueen does not dispute that he was in the habit of drinking, taking valium, and smoking marijuana, often contemporaneously. On the date of the murder, McQueen and his girlfriend Linda Rose picked up McQueen's half-brother and accomplice William Burnell, who was 19 at the time. The group went to the Minit Mart at 11:00 p.m. where, according to Ms. Rose, McQueen said "he had some business to take care of." McQueen, armed with a .22 caliber pistol, left Rose in the car and he and Burnell entered the store. Several minutes later, Rose heard shots.

Burnell and McQueen emerged from the store, Burnell carrying a bag with the store's surveillance camera, and McQueen carrying three small bags. Rose testified that McQueen told her that he shot O'Hearn twice, and stated that "I know the bitch is dead." McQueen and Burnell then disposed of the surveillance camera in a nearby pond. Apparently, Burnell then left McQueen and Rose, who retired to a motel room for the evening.

At approximately 11:30 p.m., Michael Rhodu, a park ranger, stopped at the Minit Mart for a soda. He found Rebecca O'Hearn kneeling and slumped forward with her hands over her face, on the floor behind the counter. Officer Brock arrived at the scene in response to Rhodu's call for assistance. Brock recalled driving past the Minit Mart at about 11:15 p.m. and seeing Rebecca O'Hearn wave to him. He also recalled seeing two white males at the scene, one of whom he later identified as Harold McQueen.

Rebecca O'Hearn was barely alive when the police arrived at the scene and was dead on arrival at the hospital. The evidence, including the pathologist's report, disclosed that McQueen shot O'Hearn in the face from a distance of three to six inches with a .22-caliber handgun. The shot was not fatal and may not have even induced unconsciousness. McQueen delivered the fatal shot to the back of O'Hearn's neck and head, either after he made O'Hearn kneel on the floor or after she fell in a kneeling position.

Three days later, on January 20, 1980, police arrested Burnell for driving with a revoked operator's license. The next day, police arrested McQueen and Rose on an unrelated theft charge when they went to the Madison County Jail to visit Burnell.

A series of searches of the trailer where McQueen and Rose lived, some based on consent by Rose, some on search warrants, turned up a significant body of incriminating evidence.¹ In particular, officers found a bundle of cash (the evidence showed that the robbers had made off with $1500), a white bag with two pistols, and a bundle of food stamps taken from the Minit Mart. One food stamp bore notations from the manager of the Minit Mart, another bore notations made by O'Hearn. A dollar bill taken from the trailer bore a handwritten notation by the manager of the Minit Mart, and another dollar bill bore handwritten notations made by O'Hearn. A ballistic test revealed that one of the firearms recovered from the bag was the murder weapon. Finally, Rose led police to the pond where Burnell and McQueen dumped the video camera, which police divers recovered.

McQueen and Burnell were tried jointly for robbery and capital murder, beginning on March 16, 1981, before a Madison County Jury. The prosecution introduced the physical evidence, as well as testimony from Rose. The jury found both men guilty on March 29, 1981. The jury convicted Burnell and the judge sentenced him to two twenty-year terms, in light of the jury's refusal to recommend the death penalty. However, as recommended by the jury, the trial court sentenced McQueen to twenty years in prison for the robbery and to death for the murder. The Kentucky Supreme Court affirmed the conviction and sentence on direct appeal. McQueen v. Commonwealth, 669 S.W.2d 519(Ky.), cert. denied, 469 U.S. 893, 105 S.Ct. 269, 83 L.Ed.2d 205 (1984).

McQueen then filed a state collateral attack in the Madison Circuit Court, pursuant to Kentucky Rule of Criminal Procedure 11.42. The court held an evidentiary hearing, as well as two other hearings, before denying relief. The Kentucky Supreme Court affirmed the denial of post-conviction relief. McQueen v. Commonwealth, 721 S.W.2d 694 (Ky.1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2203, 95 L.Ed.2d 858 (1987).

McQueen then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, on June 8, 1987. On July 21, 1988 a magistrate filed proposed findings of fact and recommended that the district court deny the petition. After a series of motions requesting evidentiary hearings and expert fees, the district court dismissed the habeas petition on June 24, 1991. McQueen then filed a motion pursuant to Fed.R.Civ.P. 59 for a new trial on July 9, 1991.

On September 18, 1991, while the Rule 59 motion was pending in federal district court, McQueen filed a petition in the Kentucky Supreme Court seeking "relief from a judgment affirmed on appeal, or to reinstate an appeal," on the ground of ineffective assistance of appellate counsel. This motion raised alleged deficiencies in the performance of appellate counsel for the first time, and was filed in light of purported new remedies created in the Kentucky Supreme Court's preliminary opinion in Hicks v. Commonwealth, 89-sc-213-tg (decided September 6, 1990).

On the same day (September 18, 1991), McQueen filed a motion in the federal district court to hold in abeyance any further proceedings, particularly his Rule 59 motion, pending resolution of the Kentucky Supreme Court petition. Although warden Scroggy filed papers in opposition, the district court granted the motion on March 6, 1992.

The Kentucky Supreme Court denied the petition to reinstate the appeal on August 28, 1992, based on the final opinion in Hicks v. Commonwealth, 825 S.W.2d 280 (1992). The Kentucky Supreme Court then denied McQueen's petition for rehearing on October 20, 1992. The United States Supreme Court denied a petition for certiorari on April 5, 1993. McQueen v. Kentucky, 507 U.S. 1020, 113 S.Ct. 1820, 123 L.Ed.2d 450 (1993).

McQueen and Scroggy filed status reports in federal district court on April 15 and 16, 1993. On May 5, 1993, the district court denied McQueen's Rule 59 motion. It vacated the stay of execution and, in accord with its June 24, 1991 decision, noted the matter as stricken from the docket. On May 17, 1993, McQueen filed a motion for reconsideration. The district court denied this motion on May 21, 1993. McQueen then filed an appeal in this court, docketed as No. 93-5854, from the denial of the habeas petition.

While this appeal was pending, McQueen filed a motion in this court seeking a remand to the district court. The purported goal of the motion was to allow the habeas petition to be amended to include the ineffective assistance of appellate counsel issues raised and rejected by the Kentucky Supreme Court. McQueen then filed a second motion seeking to supplement the initial motion to remand to the district court. The goal of the second motion was to allow further amendment of the habeas petition to include claims that McQueen has brain damage. On February 8, 1994, this panel denied the motion to remand and, in doing so, called McQueen's attention to Fed.R.Civ.P. 60(b).

On May 5, 1994, McQueen filed a motion in the district court pursuant to Fed.R.Civ.P. 60(b). McQueen also filed an accompanying motion asking the district court to, in effect, request a remand of the case from this court to the district court under First Nat'l Bank of Salem v. Hirsch, 535 F.2d 343 (6th Cir.1976). Scroggy opposed both motions. Specifically, Scroggy claimed that the Rule 60(b) motion constituted a successive petition and an abuse of the writ.

On July 25, 1994, the district court denied McQueen's motion for judgment pursuant to Rule 60(b) and for remand from this court. The district court determined that the Rule 60(b) motion was an attempt to raise new claims and, as such, was a successive petition and an abuse of the writ. McQueen then filed an appeal from this decision, docketed in this court as No. 94-6116.

Though the two appeals were separately briefed, this court consolidated them for argument and we will address them jointly in this opinion.

II

This court reviews de novo a district court's refusal to grant a writ of habeas corpus. Seaton v. Jabe, 992 F.2d 79, 80-81 (6th Cir.), cert. denied, 510 U.S. 871, 114 S.Ct. 200, 126 L.Ed.2d 157 (1993). We review the district court's factual findings only for clear error. McCall v. Dutton, 863 F.2d 454, 459 (6th Cir.1988), cert. denied, 490 U.S. 1020, 109 S.Ct. 1744, 104 L.Ed.2d 181 (1989). Also, this court defers to state court factual findings. Lundy v. Campbell, 888 F.2d 467, 469-70 (6th Cir.1989), cert. denied, 495 U.S. 950, 110 S.Ct. 2212, 109 L.Ed.2d 538 (1990).

Pursuant to 28 U.S.C. § 2254(d), we presume a state trial or appellate court's conclusions as to facts are correct unless the petitioner demonstrates by convincing evidence that the facts are erroneous under one of the eight conditions enumerated in 28 U.S.C. § 2254(d)(1)-(8). Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306-07, 71 L.Ed.2d 480 (1982) (per curiam); Levine v. Torvik, 986 F.2d 1506, 1514 (6th Cir.), cert. denied, 509 U.S. 907, 113 S.Ct. 3001, 125 L.Ed.2d 694 (1993); Hart v. Marion Correctional Inst., 927 F.2d 256, 257 (6th Cir.), cert. denied, 502 U.S. 816, 112 S.Ct. 70, 116 L.Ed.2d 44 (1991); Nichols v. Perini, 818 F.2d 554, 557 (6th Cir.1987). The burden rests with the petitioner to establish by convincing evidence that the factual determination by the state court is erroneous, see 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 551, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981); Smith v. Jago, 888 F.2d 399, 407 (6th Cir.1989), cert. denied, 495 U.S. 961, 110 S.Ct. 2572, 109 L.Ed.2d 754 (1990); Brown v. Davis, 752 F.2d 1142, 1147 (6th Cir.1985).

The presumption only applies to basic, primary facts, and not to mixed questions of law and fact. Levine, 986 F.2d at 1514 (question of mental competency is a mixed question of law and fact, subject to de novo review); Sims v. Livesay, 970 F.2d 1575, 1579 (6th Cir.1992) (ineffective assistance of counsel claim is a mixed question of law and fact, subject to de novo review); Smith, 888 F.2d at 407 (same). The presumption also applies to implicit findings of fact, logically deduced because of the trial court's ability to adjudge the witnesses' demeanor and credibility. Indeed, the presumption applies with particular force to credibility determinations, as the Supreme Court has ruled that such determinations receive "special deference" from the federal courts. Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 2892, 81 L.Ed.2d 847 (1984); see Brown, 752 F.2d at 1147.

Where the state court findings have support in the record, those findings must control, even though the federal habeas court might have rendered contrary findings that also would have support in the record. Wainwright v. Goode, 464 U.S. 78, 85, 104 S.Ct. 378, 382-83, 78 L.Ed.2d 187 (1983) (if two different conclusions find fair support in the record, a federal court may not substitute its view of the facts for that of the state court). If a federal district court does not defer to the state court findings of fact, it must provide a written justification and state which of the first seven factors under § 2254(d) are present, or it must provide reasons for concluding that the state court findings are not fairly supported by the record, pursuant to the eighth factor of § 2254(d). Sumner, 449 U.S. at 551, 101 S.Ct. at 771.

To establish ineffective assistance of counsel, McQueen must show that counsel's performance was deficient and that the deficient performance so prejudiced the defense as to render the trial unfair and the result unreliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Sims, 970 F.2d at 1579-81; Beam v. Foltz, 832 F.2d 1401, 1408-09 (6th Cir.1987), cert. denied, 485 U.S. 980, 108 S.Ct. 1278, 99 L.Ed.2d 489 (1988); United States v. Cox, 826 F.2d 1518, 1525-26 (6th Cir.1987), cert. denied, 484 U.S. 1028, 108 S.Ct. 756, 98 L.Ed.2d 768 (1988). While we review the district court's findings of fact pertinent to this question for clear error, Strickland, 466 U.S. at 698, 104 S.Ct. at 2070; Blackburn v. Foltz, 828 F.2d 1177, 1181 (6th Cir.1987), cert. denied, 485 U.S. 970, 108 S.Ct. 1247, 99 L.Ed.2d 445 (1988), the performance and prejudice components of the Strickland test are considered mixed questions of law and fact, and are thus subject to de novo review. Strickland, 466 U.S. at 698, 104 S.Ct. at 2070; Sims, 970 F.2d at 1579; Blackburn, 828 F.2d at 1181.

The reviewing court's scrutiny of counsel's performance is highly deferential, Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; indeed, "the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S.Ct. at 2066; accord O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir.1994); United States v. Morrow, 977 F.2d 222, 229-30 (6th Cir.1992) (en banc), cert. denied, 508 U.S. 975, 113 S.Ct. 2969, 125 L.Ed.2d 668 (1993). The court also must not indulge in hindsight, but must evaluate the reasonableness of counsel's performance within the context of the circumstances at the time of the alleged errors. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066; Cobb v. Perini, 832 F.2d 342, 347 (6th Cir.1987), cert. denied, 486 U.S. 1024, 108 S.Ct. 1998, 100 L.Ed.2d 230 (1988); Blackburn, 828 F.2d at 1180-81. Indeed, "trial counsel's tactical decisions are particularly difficult to attack," O'Hara, 24 F.3d at 828, and a defendant's challenge to such decisions must overcome a presumption that the " 'challenged action might be considered sound trial strategy' ". Ibid. (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065). Nonetheless, the court must make an independent judicial evaluation of counsel's performance and not be swayed by the defendant's possible acquiescence in counsel's performance at trial, Ward v. United States, 995 F.2d 1317, 1322 (6th Cir.1993), and must also ensure that counsel acted reasonably under all the circumstances. Sims, 970 F.2d at 1580-81 (counsel still has " 'a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary ' " quoting Strickland, 466 U.S. at 691, 104 S.Ct. at 2066 (emphasis added in Sims )); accord O'Hara, 24 F.3d at 828 (failure to investigate, especially as to key evidence, must be supported by a reasoned and deliberate determination that investigation was not warranted); Workman v. Tate, 957 F.2d 1339, 1345-46 (6th Cir.1992) (reasonable investigation was lacking and hence counsel's performance was deficient).

To satisfy the prejudice prong of the Strickland test, "[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. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; accord Sims, 970 F.2d at 1581; Cox, 826 F.2d at 1525-26. To some degree, "[t]he essential question is whether better lawyering would have produced a different result." Ward, 995 F.2d at 1321; see also United States v. Sanchez, 960 F.2d 610, 612 (6th Cir.1992) (per curiam).

Notwithstanding the outcome-determinative focus in Strickland, the Court in Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), clarified that

an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him.

Id. at 369-70, 113 S.Ct. at 842 (footnote omitted).

Hence, the Lockhart Court instructs us to focus on whether counsel's errors have undermined the reliability of and confidence in the result, i.e., can one confidently say that the trial or proceeding has reached a fair and just result. Ibid.; see also Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 998, 89 L.Ed.2d 123 (1986); United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 2046, 80 L.Ed.2d 657 (1984); Workman, 957 F.2d at 1346. On balance, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. at 2064.

III

McQueen advances a broad claim of ineffective assistance by his trial counsel, Jerome Fish, during the penalty phase of the trial. Because they are not properly before the court, as discussed below at Section VI, pp. 61-63, we will not address McQueen's claims that Fish was ineffective because of alleged failures regarding his "brain damage." This "evidence" of organic brain damage did not appear until twelve years after the trial and then only as part of a Rule 60(b) motion made by McQueen in the federal district court. As to the claims properly before the court, we hold that McQueen's assertions of ineffective assistance of counsel at the penalty phase of the trial are unpersuasive. We note as background that Fish had been practicing in the same area for over 20 years at the time of trial, that half his practice was criminal law, and that he had previously tried several murder cases.

A. Ineffective assistance at the penalty phase

McQueen appears to raise two primary issues for his claim of ineffective assistance of counsel during the penalty phase of the trial. First, he argues that Fish's conduct regarding the calling of Dr. Gebrow, an expert psychiatric witness, was ineffective. Second, McQueen claims that Fish should have put on more character witnesses. Specifically, McQueen claims that certain unused character witnesses, who are all family members, would have served two purposes: they would have humanized him and they would have provided testimony about his terrible childhood.

McQueen raises several points that he claims demonstrate that Fish was ineffective in his handling of Dr. Gebrow. Each is meritless. After moving for a psychiatric evaluation, which McQueen received, Fish sought out his own expert, in an effort to get a more favorable opinion. Ironically, he relied on the Department of Public Advocacy, McQueen's current counsel, for assistance in defending the case, and it was the Department of Public Advocacy that provided a list of psychiatrists that it thought qualified. McQueen does not dispute that the only psychiatrist that Fish found willing to testify was Dr. Gebrow.

Dr. Gebrow interviewed McQueen and administered a standardized psychiatric test. Contrary to McQueen's allegation that Gebrow knew nothing about him or his childhood, Gebrow was able to state on direct examination at trial that the "examination consisted of talking with the defendant about the reasons for his coming to see me and I talked about his past history, his family history, and I did a mental status examination." Gebrow backed up this claim by relating to the jury that

"Mr. McQueen has a rather long history of drug abuse and alcohol abuse also. He began drinking at the age of 10 or 11 years old and when I commented to him that this was rather young, he stated he never had anyone to tell him to stop drinking. He was brought up essentially by older grandparents who were unable to give much control or support. He began taking drugs in 1970 and was taking such drugs as LSD, amphetamines or speed, cocaine, heroin, and all kinds of downers or sedative drugs. Somewhere in the 1970's he began taking Valium and by 1976 through 1978 he had been taking them he described by the handful. He was taking upwards from 150 milligrams a day and he was drinking anywhere from 2 to 3 pints of whiskey and a case of beer a day, in addition to the Valium."

Therefore, the claim that Fish was somehow ineffective for not preparing Gebrow simply has no factual basis. As the testimony indicates, Gebrow was familiar with McQueen's background. This testimony also refutes the claim that Fish had no idea of McQueen's past drug and alcohol problems.

Similarly, the claim that somehow Fish was ineffective because Gebrow testified that McQueen had a sociopathic personality and because he also testified that it was possible for a person to become acclimated to heavy drinking and drug use also fails. There is no basis for the proposition that when an expert gives less than favorable testimony, the attorney eliciting the evidence is unconstitutionally ineffective. Such a holding would be anomalous when the role of the expert is considered. Certainly an attorney looks for an expert who will best support his version of the facts. Nonetheless, that expert gives his testimony under oath and under penalty of perjury. McQueen cannot seriously suggest that an attorney must have an expert who will tailor his testimony, in the face of his honest opinion, to suit the defense. Nor can McQueen contend that an attorney is ineffective whenever he decides to call an expert whose opinion does not directly track, on each point, what the defense hoped to prove.

While there may indeed be circumstances where putting an expert on the stand is so harmful and so obviously detrimental to a client's case that offering the testimony would amount to ineffective assistance of counsel, that is not the case here. Fish faced a simple dilemma. Gebrow, the only witness willing to testify, was frank in his assessment of McQueen in his private conversations with Fish, apparently telling Fish words to the effect that McQueen was "just one of those asses ... just bad ... just a mean boy...."² However, he also made it clear that he would "lean as far as I can" on behalf of McQueen and would testify to the effect of drugs and alcohol (J.A. 3549). Fish faced the choice of no expert testimony, since no one else was willing to testify, or of presenting Gebrow's testimony and putting it in the best light possible. Fish chose the latter, a reasonable tactical decision under the circumstances. Although the dissent (p. 1339) essentially states as a matter of law that Fish was ineffective for putting Gebrow on the stand, we do not doubt that had he failed to do so, Fish would now stand accused of ineffective assistance of counsel for failing to present any expert.

McQueen also attacks Fish's performance with respect to his decision to not call family members as character witnesses. In certain circumstances, failing to call appropriate mitigation witnesses can amount to ineffective assistance of counsel. Specifically, this is true where the character witnesses had evidence to offer and where it was not a reasonable tactical decision to refuse to call them. See Kenley v. Armontrout, 937 F.2d 1298, 1304-09 (8th Cir.), cert. denied, 502 U.S. 964, 112 S.Ct. 431, 116 L.Ed.2d 450 (1991). The claim that Fish's failure to call McQueen's family witnesses was ineffective assistance of counsel has an intuitive appeal, until one examines the substance behind Fish's decision not to call them³. McQueen claims that calling his family members would serve two purposes. First, it would humanize him. Second, it would demonstrate the miserable childhood he had, providing a basis for his later destructive behavior. However, when we review the record, Fish's decision not to call McQueen's family members appears within the bounds of reasonable competence.

With regard to humanizing McQueen, Fish felt that calling family members would only antagonize the jury. At least one member of the original jury venire was dismissed because he was a victim of Harold McQueen, Sr.'s criminal conduct. Similarly, McQueen admits that his father was known to be an alcoholic, and it was reasonable for Fish to fear that the proverbial sins of the father would be visited on the son. Fish testified in the post-trial proceedings that, from his knowledge and experience in the community, he felt that the McQueen family had a bad reputation, and he feared that the jury would hold it against his client.

Furthermore, the humanizing effect of the testimony would have been minimized, if not eliminated, by the lack of knowledge of the proposed witnesses. Specifically, the testimony that would have been offered would lead a reasonable jury to conclude that the witnesses actually knew next to nothing about McQueen's adult life.

McQueen claims that Fish should have called three family members as character witnesses: his stepfather, his mother, and an aunt. When the three witnesses testified during the post-trial proceedings, McQueen was represented by his current counsel. At this point the gravity of the situation, that McQueen had been convicted of capital murder, that he had been sentenced to death, and that his direct appeal had failed, should have been readily apparent to all concerned. Nevertheless, even at this late date, the proposed witnesses were unable to offer more than a cursory knowledge of McQueen and his adult life.

Harold McQueen's stepfather, William Burnell, while testifying that he loved his stepson, was unable to offer any details about his life. He testified that he married Harold's mother when Harold was approximately six years old and that Harold lived with them for about ten years, moving out of his home around 1969. As to his knowledge of McQueen's life after moving out of the house, he admitted that he knew about McQueen's felony convictions from reading about them in a newspaper.

Harold McQueen's mother is also proposed as a character witness. However, McQueen's mother admitted that she did not know how far her son had gone in school or that he had been convicted of a felony. Furthermore, John Lackey, the counsel for McQueen's half-brother and accomplice, also refused to call McQueen's mother as a character witness during the penalty phase. Apparently Lackey concurred in Fish's tactical judgment regarding the effect of calling McQueen's mother. Similarly, the last witness proposed by McQueen, Faye Ballenger, McQueen's aunt, had knowledge of his prior criminal record but did not know whether he had served time in prison for past criminal behavior.

Taken as a whole, it cannot be said that the decision not to call witnesses who knew little about McQueen's adult life amounted to ineffective assistance of counsel. When the minimal testimony that could have been offered is balanced against the risks faced during cross-examination, the decision not to call them is not an example of an unconstitutional ineffectiveness. McQueen has failed to demonstrate that there was a deficient performance, let alone that the purported deficiency makes it a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 104 S.Ct. at 2068. Still less can he meet the Fretwell standard.

McQueen's second argument is that the testimony of his stepmother, mother, and aunt would have demonstrated to the jury that he had a difficult and troubled childhood. However, other than McQueen's obviously self-serving affidavits, not a single witness offered by McQueen has characterized his childhood as horrible. To the contrary, the three witnesses proposed by McQueen (as well as McQueen himself) all testified in the RCr 11.42 hearing and that his childhood was relatively normal. No witness offered the type of testimony that would render a decision not to call that witness an example of ineffective assistance of counsel.

McQueen's mother testified about his childhood as follows:

Q. Okay. And how would you describe Harold as a child? What was he like?

A. Well, he was like any ordinary child.

Q. Did he seem to have a pretty normal childhood, apart from being, you know, having divorced parents?

A. Yes, he did.

McQueen's stepfather testified similarly:

Q. Okay. And can you tell us what Harold was like as a child? Was he fairly normal--act fairly normal?

A. Yes. He was.

Finally, McQueen's aunt also testified that McQueen was a normal child, going through a normal childhood.

Q. Did he seem to be a fairly normal child?

A. Yes, yes, he was.

THE COURT: I take it Mrs. Ballenger, the--your sister's divorce from Harold's natural father didn't seem to have affect[ed] him in any way. He grew up in--without any visible personality disorder?

A. Well I am sure at times it probably did bother him. Because we all had a father and mother.

THE COURT: Well, you said he's a normal child--

A. Well--

THE COURT:--and he's a sweet little boy.

A. --because my father more or less stepped in and tried to take over where his father left off.

THE COURT: So that didn't, in your opinion, didn't affect his personality in any way?

A. Not as far as--as I could tell, no.

McQueen, while making the general accusations above, is unable to provide any support for his contention that Fish was unconstitutionally ineffective in his conduct regarding Dr. Gebrow or the purported character witnesses. Whenever an attorney loses a case or suffers some adverse result, he may be ineffective in the colloquial sense of the word. However, "ineffective assistance of counsel" is a constitutional term of art. Because the sole basis for the presence of an attorney is not to turn a courtroom into a jousting arena, but to ensure systemic fairness, an attorney's merely losing, being wrong, or miscalculating is not enough to free every person convicted of a crime. As Fretwell makes clear, even proving that the outcome would have been different standing alone is not enough. Here, McQueen has not shown that the outcome would have been different, let alone that the failure to achieve a different outcome was the result of constitutional ineffectiveness.

B. Other claims of ineffectiveness--no prejudice shown

Generally, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. Several of the claims so clearly fail to present any plausible claim of prejudice that we need not examine whether counsel was ineffective. These three claims are: Fish relied on Burnell's counsel for motion practice; Fish failed to seek a trial separate from that of Burnell; and Fish failed to investigate properly the composition of the jury.

McQueen argues that Fish was ineffective for allowing Burnell's attorney to make pre-trial motions for him. Specifically, after the parties and the judge agreed that any motion made by one attorney would be considered as if it were made also by the other when their interests did not conflict, Fish purportedly failed to make motions and instead relied on Burnell to do so. McQueen claims that in doing so Fish abdicated his responsibility to defend McQueen.

This argument cannot be reconciled with two important facts and therefore must fail. First, Fish did make motions when it was necessary to protect his clients' interest. He made motions for a psychiatric evaluation, for additional time to secure an expert, and for funds to retain that expert. Second, and most important, McQueen is unable to identify a single motion that Fish should have made (with the exception of seeking a change of venue and seeking a separate trial) and did not. Simply stated, even if McQueen were correct, he is unable to demonstrate any prejudice from Fish's actions.

The dissent attempts to make a great deal out of the relationship between McQueen's attorney, Mr. Fish, and Mr. Lackey, the attorney for co-defendant Burnell. A careful reading of the record shows that Fish in no way compromised McQueen's interests in his relationship with Lackey. Each counsel knew that the other's client would not testify. (J.A. 3527, 3535-36, 3539). This information in no way allowed Lackey to "sandbag" or disadvantage McQueen. By the time of closing arguments, whether McQueen, Burnell, or anyone else had testified was a historical fact, and Lackey would always have been free to make any argument he chose in closing argument, just as Fish was.

The quotation in the dissent (p. 1337), where Lackey appears to be boasting about attacking McQueen when he couldn't hit back, is a garbled account of a theory Lackey hoped to pursue, followed by a question that Lackey asked on voir dire, which was stricken, and after which the judge admonished the jury.

In fact, the ellipses before the final sentence of the quotation omits a lengthy discussion at J.A. 3579-80 where Lackey notes that Burnell decided not to take the stand and that he therefore asked a question at voir dire attempting to lay a ground work for dealing with that fact, showing that even before the trial began, the quoted material had become simply an unrealistic hypothetical.

Both counsel indicated that they discussed with each other their witnesses and other matters, and that the information flow went both ways (J.A. 3525-29, 3570, 3581, 3588-92, 3596-97). There is no indication that this was disadvantageous to either defendant. Again, had Fish played "hide-the-ball" with every piece of information, he would undoubtedly now be under attack for not making the best use of his available resources, to say nothing of the impossibility of hiding a fact, "that neither brother was going to testify against the other," that was common currency among the parties themselves and their family. In short, it is completely fanciful to suggest that there was anything improper or prejudicial in the sharing of the information in this case.

The only direct conflict between the two counsel was that Lackey wanted separate trials and Fish did not. This was understandable, as Ms. Rose would testify that McQueen admitted to being the killer. McQueen wanted to hide behind Burnell, and Burnell wanted to avoid being tainted by McQueen. Fish zealously represented his client on this issue, and prevailed by having a joint trial. The fact that ultimately his strategy failed and Lackey's succeeded does not provide ineffectiveness. It only shows that the facts of the case may have guided the jury's deliberations.

2. The decision not to seek a separate trial

Similarly, Fish's decision not to seek a separate trial was a reasonable tactical decision. The decision was based on the hope that a joint trial would cloud the issue of guilt by allowing McQueen to hide behind his less culpable half-brother. More importantly, McQueen cannot demonstrate any prejudice from the decision not to seek a separate trial, since it is clear that any such motion would have been denied.

Burnell, who had more to fear from a joint trial, apparently thought that McQueen's tactics would result in both parties getting the death penalty, and sought a severance on three occasions, and was denied each time. The Kentucky Supreme Court noted that severance is discretionary and the possibility of antagonistic defenses is only one factor and therefore held that "[d]efense counsel committed no error and there is no evidence of prejudice to [the petitioner]...." McQueen v. Commonwealth, 721 S.W.2d 694, 699 (Ky.1987).

Similarly, there was no prejudice resulting from Fish's failure to conduct a jury composition challenge. McQueen claims that women were systematically excluded from venire panels. McQueen fails to produce any evidence that this is true. Similarly, it is difficult to conclude that it is ineffective assistance of counsel for an attorney not to challenge the purported under-inclusion of females when the accused is a male accused of murdering a young woman.

Finally, even giving the benefit of the doubt to McQueen regarding the above, it is beyond peradventure that McQueen has failed to show any prejudice from the failure to conduct a jury composition challenge. The relevant population group is 52.6% female. The jury was initially compromised of seven men and seven women (twelve jurors plus two alternates). The jury that decided the case after the alternates were dismissed consisted of six men and six women.

Each court that has reviewed this issue has concluded that McQueen has failed to demonstrate any prejudice. McQueen makes no new arguments here and fails to make even a colorable claim of prejudice. Therefore, it was not ineffective assistance of counsel not to pursue a jury composition challenge.

C. Ineffective assistance claims with no basis in fact

Two claims of ineffective assistance merit special discussion because they simply have no basis in fact. McQueen claims that he was never informed of his right to testify at the penalty phase of the trial. He admits that both the trial judge and Fish informed him of his right to testify, and he admits that he told Fish he would not testify. Now he claims he is the victim of a misunderstanding. McQueen claims they never told him that he was entitled to testify at the sentencing phase of the trial, apart from the guilt phase.

At the hearing on the state collateral attack, Fish testified at length about his conversations with McQueen and stated that he had numerous discussions with him about the right to testify. While McQueen tries to make something out of the fact that Fish never said that he told McQueen that he could testify at the sentencing phase, every court has noted that this was because Fish was never asked that question. In weighing the credibility of McQueen and Fish, and based on his having sat as the trial judge, Judge Chenault made a finding of fact that McQueen had in fact been informed of his right to testify at the sentencing phase.

The trial judge's decision to credit Fish's claims that he repeatedly told McQueen about his right to testify is based on his credibility determination, and is therefore not subject to habeas review. Walker v. Engle, 703 F.2d 959, 969 (6th Cir.), cert. denied, 464 U.S. 951, 104 S.Ct. 367, 78 L.Ed.2d 327 (1983). Similarly, the Kentucky Supreme Court's conclusion that McQueen was informed of his right to testify is subject to a presumption of correctness because it is fairly supported by the record. See 28 U.S.C. § 2254(d); Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984).⁴

Similarly, McQueen argues that Fish was ineffective for failing to adopt a strategy for dealing with pre-trial publicity. Specifically, McQueen alleges that Fish should have sought a change of venue. No court reviewing the matter has ever characterized the publicity as sufficiently adverse to warrant constitutional concern. A review of the articles provided in the joint appendix makes the reason obvious.

Though the articles are crude photocopies and difficult to read, there appear to be a total of approximately fifty-five articles. Eleven of these report the judge's imposition of a death sentence and eight report the guilty verdicts. Therefore, nineteen of the articles are obviously not "pre-trial" publicity. Furthermore, many of these articles are simply short blurbs reporting the result and containing no significant discussion of the case.

Of the remaining thirty-six articles, fully twenty-two articles report on developments during the trial. Since jurors are routinely admonished not to read about cases on which they sit, these articles are also not properly denominated as "pre-trial" publicity. Therefore, only the fourteen remaining articles can be classified as pre-trial publicity.

Of these fourteen articles, most reported the crime, the arrest of suspects, and the initial procedural matters (indictment, bail, etc.). These articles are largely contemporaneous with the crime, after which a period of media silence ensued, with one exception, until the trial began more than one year later. The one exception consists of four articles dealing with McQueen's possession of a gun in jail, apparently smuggled into his cell by a fellow prisoner. Therefore, approximately ten articles deal with the crime and its aftermath. The articles are unremarkable and simply report the facts of the crime and the alleged involvement of McQueen.

In general, few of the articles contain significant headlines. Most appear to be small blurbs rather than substantive articles and none are hysterical or atypical for a crime of this nature. The vast majority (forty-one) deal with the trial or its aftermath and are therefore, not properly called pre-trial publicity. Similarly, this figure is generous and overstates the amount of publicity, since it is not fifty-five separate days of coverage, but fifty-five different articles appearing in several different newspapers, including the Louisville Courier-Journal, the Lexington Herald, the Lexington Leader (currently the Lexington Herald-Leader), and the Richmond Register, usually on the same days. Therefore, the level of pre-trial publicity was insufficient to warrant constitutional concern.

Even assuming, arguendo, that the level of pre-trial publicity was more than minimal and would have merited a change of venue, had one been sought, Fish provided ample justification for his decision not to seek a change of venue. Specifically, Fish stated that he had four reasons for refusing to seek a change of venue. First, he thought jurors in Fayette County (the county to which the trial would have been moved) were more likely to impose the death penalty. Second, Fish felt Judge Chenault was more competent to hear a death penalty case than judges in the adjoining county. Third, because two colleges are located in Madison County, Fish thought he would get more intelligent jurors willing to listen to the intoxication defense. Fourth, based on having lived in the community all his life and having practiced law there for many years, he did not feel that the pre-trial publicity was that bad.

This is just the type of reasonable tactical decision that is insulated from attack. Nowhere does McQueen offer any credible evidence that these reasons are not valid. The jury selection process only required sixty-eight jurors to get a qualified panel of thirty-two (before peremptories). While most jurors had heard of the case, only one said that pre-trial publicity was sufficiently extensive to have left her unable to put aside her opinion. Because the evidence of pre-trial publicity offered is simply insufficient to warrant constitutional concern, and because there is ample tactical justification for Fish's decision not to seek a change of venue, this issue does not merit reversal.

When the totality of Fish's work is reviewed, our conclusion is that he exceeded the constitutional standard. Fish was not a perfect attorney, but the Constitution does not require perfection. What the Constitution requires is an attorney capable of advancing his client's interest.

In this case, there was no plausible claim of actual innocence. McQueen was found to be in possession of the murder weapon and the proceeds of the robbery. McQueen's girlfriend testified to his confession of shooting O'Hearn and led police to corroborating evidence. Finally, a police eyewitness placed McQueen at the scene of the murder. Therefore, Fish was faced with compelling evidence of guilt. In the face of this evidence, Fish advanced an intoxication defense and offered an expert (the only one available) to buttress his claim. He found and offered as a witness the last person who saw McQueen before the crime that night, who testified to McQueen's extreme intoxication. Fish also found and paid personally for a prison chaplain to come and testify, as well as a witness who procured McQueen's religious conversion. He elected not to call family members, and while his reasoning is not crystal clear (he was not questioned until years after the trial), the reasons that are articulated and the substance of the family members' later testimony lead us to conclude that McQueen has not demonstrated that there is a substantial likelihood that but for Fish's conduct the outcome would have been different. For this reason, we reject the claim of ineffective assistance of counsel.

IV

JUROR ISSUES

McQueen alleges that the judge's refusal to disqualify for cause Leo Johnson, a member of the jury venire, was a constitutional error. While McQueen admits that Johnson was dismissed from the jury in response to a preemptory challenge, he nonetheless claims that the judge's refusal to dismiss him for what McQueen characterizes as Johnson's "facile assurances" of impartiality amounted to a violation of his constitutional right to be judged by an impartial jury. McQueen's argument is unpersuasive for two reasons. First, he cannot meet the rigorous burden placed on such claims by the Supreme Court. Second, even assuming that the entire Leo Johnson issue warrants concern of a constitutional magnitude, the fact that Johnson never sat with the jury makes the issue largely academic.

During voir dire, Leo Johnson admitted that he was a friend of two of the police officers in the case: Larry Brock and Earl Estes. He also knew Police Chief Russell Lane and had a passing acquaintance with Linda Rose. During the voir dire of Leo Johnson, the defense attorneys elicited from him his view of the case and some of the parties involved. At the conclusion of the voir dire, the judge determined that Johnson was qualified to serve as an impartial juror and refused to dismiss him for cause. At this point, he was excused by a peremptory challenge.

The particular answers about which McQueen complains are informative. McQueen claims that Johnson stated that he would be inclined to believe the officers before he believed a stranger. However, Johnson made it clear that this only applied if the parties were not under oath. Johnson stated unequivocally that "when they are under oath, I wouldn't weigh their testimony above somebody else's also under oath...." Similarly, when asked what effect his acquaintance would have in the face of conflicting testimony, he stated "I would have to consider the facts."

McQueen also complains that Johnson was contaminated by pretrial publicity. To the contrary, while Johnson admitted that he had read about the case and formed some opinions, he stated unequivocally that "I would make my judgment on the facts, on the basis of the facts in it. Here before, that's all gone by. I would have to decide in my heart on the facts that are brought out here." There is no per se rule that mere exposure to media reports about a case merits exclusion of a juror. To the contrary, in order to merit disqualification of a juror, the media reports must engender a predisposition or bias that cannot be put aside, requiring the juror to decide a case one way or the other.

Finally, McQueen claims that Johnson would hold his silence against him and would not follow the presumption of innocence. Specifically, McQueen points to the following testimony:

Mr. Lackey: How would you feel if defendant Burnell did not take the witness stand?

Mr. Johnson: Well, my personal opinion, I think he should stand up and be counted for if he didn't have anything to hide but that wouldn't have any effect on my decision, but if he doesn't have anything to hide he should stand up and be counted for.

Mr. Lackey: Do you feel the fact that he doesn't take the stand indicates that he has something to hide?

Mr. Johnson: No, not necessarily.

Mr. Lackey: Do you feel like there might be other reasons why a person might not take the witness stand other than they had something to hide?

Mr. Johnson: That's right.

* * * * * *

Mr. Lackey: You feel any problem with the concept that the defendant doesn't have to prove his innocence at all?

Mr. Johnson: No, I believe he has to prove his innocence.

Mr. Lackey: You think he should have to prove his innocence?

Mr. Johnson: Right.

* * * * * *

The Court: ... Would you have any difficulty in going in with that attitude with the presumption that the defendant is innocent and it is not up to the defendant to prove anything? It is up to the Commonwealth to prove guilt. Do you understand that?

Mr. Johnson: Yes, sir.

The Court: All right. And will you abide by that principle of law?

Mr. Johnson: Yes, sir.

Johnson made it clear that he was willing to weigh testimony given under oath without regard to any acquaintance with the witness, that he would put aside any purported contamination from pretrial publicity, and that he would accept the right not to testify and the presumption of innocence. The Supreme Court has made clear the substantial burden faced by McQueen. Specifically, the trial judge's decision that Leo Johnson could obey the instructions of the court and could put any biases aside was one of historical fact. Therefore, the trial judge's decision is one entitled to great deference.

In Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984), the Supreme Court described the standards to be applied to cases such as this. The court rejected the application of a previous Supreme Court case, Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), which dealt with the partiality of a trial jury as a whole. The Supreme Court stated that "[w]e do not think its analysis can be extended to a federal habeas corpus case in which the partiality of an individual juror is placed in issue. That question is not one of law and fact. Rather it is plainly one of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed." Patton, 467 U.S. at 1036, 104 S.Ct. at 2891. As such, "the determination is essentially one of credibility, and therefore largely one of demeanor." Id. at 1038, 104 S.Ct. at 2892.

The Supreme Court further stated that "[i]t is here that the federal court's deference must operate, for while the cold record aroused some concern, only the trial judge could tell which of these answers was said with the greatest comprehension and certainty." Id. at 1040, 104 S.Ct. at 2893. Therefore, "the trial court's resolution of such questions is entitled, even on direct appeal, to 'special deference' ... [t]he respect paid such findings in a habeas proceeding certainly should be no less." Id. at 1038, 104 S.Ct. at 2892. (Footnotes and citations omitted). The issue then is not whether this panel or another trial judge would have decided differently. Instead, the issue is whether there is fair support in the record for the court's conclusion that Leo Johnson would be impartial. Clearly there is.

McQueen apparently confuses sound trial tactics with constitutional standards. There is no constitutional prohibition against jurors simply knowing the parties involved or having knowledge of the case. The Constitution does not require ignorant or uninformed jurors; it requires impartial jurors. While it may be sound trial strategy for an attorney to exclude anyone with knowledge of the facts or the parties, such a result is not mandated by the Constitution.

Even assuming that the inclusion of Leo Johnson on the jury would have been unconstitutional, the fact remains that Johnson was excluded by peremptory challenge. McQueen is unable to demonstrate what constitutional harm resulted from this. There is no constitutional right to peremptory challenges, see Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), and there is no showing that had there been one more peremptory available, it would have had any effect on the trial at all, let alone that the lack of a peremptory (because it was used on Leo Johnson) resulted in an unconstitutionally biased jury. It is insufficient simply to claim that, had there been another peremptory available, a different juror would have been excluded, and the result might have been a more favorable jury for McQueen. In other words, it is not enough for a defendant to say "I would have been better off if...." He must demonstrate that judicial or prosecutorial action (or inaction) resulted in a constitutional violation, not a tactical or strategic disadvantage. The Constitution is not designed to afford either party a right to the most advantageous tactical or strategic situation possible. It is designed to insure that a person receives a fair trial by an impartial jury.

In this case, the trial judge made a decision based on his impression of the prospective juror's answers. We have no basis for concluding that his judgment was incorrect. The Constitution requires that a person be judged by a fair and impartial jury, and a review of the facts surrounding the purported bias of Leo Johnson leads us to agree that McQueen in fact was judged by such a jury.

Equally unpersuasive is McQueen's claim that a peripheral issue surrounding Johnson's voir dire resulted in a denial of due process. Specifically, McQueen points to a question asked of Johnson by Burnell's attorney. This question intimated that a person might refuse to take the stand in his own defense because he "[m]ight not want to take the stand and testify against his brother." The prosecutor objected and the judge sua sponte admonished the venire to disregard any inference that the question might raise. The judge stated:

Now, let me again caution you. This is a questioning period and any inference that might have been suggested by that question reflecting on the co-defendant's guilt or innocence should be laid aside. That would have no effect whatever. Mr. Lackey is exploring your attitudes toward being a juror and it is not intended in any way to suggest or condition you that the other defendant is chargeable with this offense in any way. That has to be determined from the evidence that comes from the stand once the trial is started. If any inference was drawn from that, I ask you to lay that aside and dismiss it.

(J.A. 2247).

The reference by the co-defendant's attorney (not the prosecution), while made during voir dire in the presence of other jurors, was made to a juror who was disqualified, and was fleeting. Similarly, because the question is directed more toward the issue of guilt, an issue McQueen never contests with any credible arguments and which was clearly established, rather than sentencing, the harm (if any) is further attenuated. Any such harm was cured by the judge's admonition and does not warrant reversal of the sentence.

A significant portion of McQueen's brief on appeal is dedicated to his claim that his constitutional rights were violated by the dismissal of a juror after the trial began. Specifically, McQueen claims that juror Sherry Winkler was dismissed because of her opposition to the death penalty and that such a dismissal was a violation of the Sixth, Eighth, and Fourteenth Amendments of the Constitution. We hold that this claim does not warrant reversal.

The legal issues surrounding the whole Winkler affair are not complex or particularly vexing. Nonetheless, they cannot be fully understood without explaining the factual background surrounding both the selection and dismissal of Winkler. The transcripts provide the authoritative version of events.

Like all jurors, Winkler was subject to voir dire. The full text of that voir dire follows:

Mr. Gilbert [the prosecutor]: Mrs. Winkler, as the Judge explained to you outside, the questions that we want to pose to you in here concern your attitude about the third of the potential punishments that could be considered, and that is about the death penalty.

I want to ask you first, ma'am, do you believe that under certain circumstances the death penalty is appropriate for the offense of murder?

[Mrs.] Winkler: You mean how severe?

Mr. Gilbert: Do you believe it is appropriate under certain circumstances for the offense of murder?

Mrs. Winkler: I guess. It would be--it would have to be something really terrible.

Mr. Gilbert: Do you have any conscientious scruples against the imposition of the death penalty for the offense of murder?

Mrs. Winkler: You mean like is it morally wrong? Is that what you are asking me? I don't understand.

* * * * * *

Mr. Gilbert: Let me ask you this. I am not inquiring as to your views about capital punishment but let me ask you: would your views about capital punishment, whatever they may be, prevent you from following your oath as a juror and considering all the ranges of punishment that the Court tells you you can consider in the case.

Mrs. Winkler: No.

Mr. Gilbert: Is your mind in any way closed on the possibility of imposing the death penalty if the evidence and circumstances warranted it and if you were so instructed by the Court?

Mrs. Winkler: No.

Mr. Gilbert: Could you consider fairly all three of the punishment options that the Court will instruct you on, if we get to that phase, without being prejudiced one against the other?

Mrs. Winkler: I wouldn't be prejudiced against them.

Mr. Gilbert: And I take it then are you telling us at this time you are not now irrevocably committed against the imposition of the death penalty in the proper case?

Mrs. Winkler: That's right.

Mr. Gilbert: That's all.

The Court: Mr. Fish.

Mr. Fish: No questions.

The Court: Mr. Lackey.

Mr. Lackey [attorney for co-defendant]: Mrs. Winkler, assuming that there is a verdict of guilty in this case in the penalty phase of the case, you are likely to be asked to consider mitigating circumstances, which would mean events, actions that might tend to reduce the blamibility [sic] by the defendant of his conduct, excuse and explain it in some fashion. Would you be able to take those pieces of evidence and use them to consider reducing the amount of the penalty if it was appropriate and if the evidence warranted it? Do you follow me? If something was introduced into evidence at the penalty phase that was intended to mitigate the severity of the crime, you would be able to consider that in fixing the penalty wouldn't you?

Mrs. Winkler: Sure.

Mr. Lackey: Do you think that every murder is the kind of offense that deserves the death penalty?

Mrs. Winkler: No.

The Court: Okay, Mrs. Winkler, you go back to the courtroom.

(J.A. 1931-35).

From the voir dire, itself a legally impeccable, model set of responses, it is clear that Winkler did not voice a strenuous objection to the death penalty. This fact is important because much of McQueen's argument is based on the mistaken notion that somehow Winkler waffled on the issue of the death penalty or was less than likely to impose it. In fact, this position is grounded not in the answers given during voir dire, but instead on the allegations that began to surround Winkler almost immediately.

The first of these involved allegations that she discussed the case with another juror and implied that she would not give the death penalty. Specifically, the prosecutor made the following statement to the judge:

On Friday afternoon, the spouse of one of the jurors that was on the panel at large; not this particular jury, came to me and advised me in the strictest confidence that juror Sherry Winkler, in the presence of witnesses had publicly stated prior to being selected on the jury, she stated to various people that she did not know why the Commonwealth had kept her in light of her response in here in chambers to the death penalty questions. She said that she could not give it. This person who imparted the information to me did so with the strictest of confidence fearing political reprisal or job reprisal to this person's self or family and also advised this person that the people to whom Mrs. Winkler addressed herself were in similar situations; that they would be greatly embarrassed to testify in this manner. To that extent I fixed up an affidavit setting forth what I know and bring this to the Court's attention. Maybe we should ask Miss [sic] Winkler whether these statements were made and whether it would be proper to bring her back here and talk to her.

The judge did question Winkler about this allegation and determined that there was not enough credible information to warrant her removal from the jury. On the following day, Winkler's conduct became an issue again. Once again sources (different from the previous ones) claimed that Winkler had talked about the case and had said that she would never give the death penalty. The initial discussion of this matter follows:

[Prosecutor] Your honor, I feel I ought to bring it to the Court's attention, it was brought to my attention yesterday afternoon, that there is possibly another problem with Juror Winkler. I understand that she has technically, I believe, violated the admonition by discussing the case with someone and it is a limited discussion. However, in light of the fact, this person was her brother-in-law, a Sergeant with the Richmond Police Department, I feel that the Court should be made aware of this. It was brought to my attention yesterday afternoon that on Sunday, Sherry Winkler engaged in a discussion with Shelby Winkler, her brother-in-law, to the effect, concerning this case, that she could not give anyone the death penalty. Now what other discussion, if any, took place I don't know. During the recess I was able to get in touch with Shelby Winkler and he advised me--I would have him here but he is in the dentist's chair for oral surgery right now. He advised me that they had engaged in a brief conversation and that it was joking in nature but she told him in a joking manner she could not give anybody the death penalty, and he said he couldn't elaborate at this time because he had to go to the dentist.

I wanted to bring that to the Court's attention for whatever purposes so that if something were to later come up that we wouldn't be confronted with the problem that members of the Commonwealth or the Police Department tried to influence one of the jurors.

The judge acknowledged this issue and contributed his own story about allegations against Mrs. Winkler. Specifically, he stated that:

Well, I am hesitant to say this but last night, it came unsolicited to my attention that Mrs. Winkler--apparently she teaches school at Madison High, and she apparently, at a table, with a number of teachers, made that same remark, that she just couldn't understand why anybody left her on the jury because she made it perfectly clear that she would not give the death penalty. Now, that is an unseemly thing and it came to me, again, I heard it because someone confronted me about, not getting the lady removed, but what kind of jurors did they have trying this case. They had no notion that it would affect the proceedings in any way, but it creates an unseemly cloud on these proceedings with that juror.

That is, counting the time that I mentioned, this makes the third time we have had where she has apparently--I gather the first time you said, it was to some juror. The conversation she had the other day was with some person on the jury panel generally, wasn't it? And now it is with a policeman and some teachers? What should we do?

The court elected to hear Officer Winkler's testimony the next day. The pertinent parts of the final stage of the inquiry into Juror Winkler's conduct are as follows:

The Court: Let the record show we came to the law library outside the presence and hearing of the Jurors for the purpose of taking up some matter mentioned yesterday about Juror Sherry Woolum Winkler. Mr. Smith, what has the Commonwealth concluded on this matter.

Mr. Smith: Your Honor, I spoke with her brother-in-law, the Sergeant with the Richmond Police Department, Shelby Winkler, and he related to me that there was a conversation held briefly between himself and Sherry Winkler concerning this case and the nature of the discussion concerned her attitude toward the death penalty and rather than filing an affidavit, I have Shelby Winkler here and I would like to bring him in and have him repeat to the Court that there was a conversation and the nature of the discussion.

The Court: All right, sir. Bring Mr. Winkler in.

* * * * * *

Mr. Smith: And what is the relationship you have with Juror Sherry Winkler?

Witness: She is my sister-in-law.

Mr. Smith: Last Sunday, were you in the company of Sherry Woolum Winkler?

Witness: Yes.

Mr. Smith: And did the subject of this trial come up?

Witness: Yes.

Mr. Smith: Was there some conversation between you two about it?

Witness: Yes.

Mr. Smith: And would you tell the Court what the nature of that conversation was?

Witness: It was just about the penalty, you know, what they could receive and the statement was made whether she could or couldn't and she said she didn't know if she could or couldn't.

Mr. Smith: Who all was present at that time?

Witness: Just family members.

Mr. Smith: How many were there?

Witness: Four.

Mr. Smith: And this was last Sunday after she had been selected to sit on the jury?

Witness. Yes, sir.

Mr. Smith: What other discussions took place concerning the trial?

Witness: That was about it, you know.

Mr. Smith: That was about it. What other things were brought up? What other items were touched on?

Witness: Oh, just whether they were guilty or if there was enough evidence. We didn't go into details about it.

Mr. Smith: Can you be a little more specific about what you didn't go into detail about?

Witness: I don't understand what you mean. You know, I just, myself, I brought it up first. I was just curious, you know, how she felt about it.

Mr. Smith: And did she elaborate?

Witness: Not a whole bunch. She just made that one statement.

Mr. Smith: Did she talk about the amount of proof it would take?

Witness: No.

Mr. Smith Did she express an opinion?

Witness: She just said like she felt like she didn't know whether she could give them the death penalty or not. She told me she didn't know.

Cross-examination: I think that's all. Your Honor.

QUESTIONS: THE COURT:

Q: Mr. Winkler, you said you discussed, too, just briefly some of the facts involved in the case?

A: Yes, sir.

Q: And just generally, what were the things--the incidents of the shooting or what facts were discussed?

A: Just about the incidents of the robbery, the general information. She wouldn't go into detail.

Q: And then there was talk about the death penalty and she said she didn't know whether she could or couldn't?

A: Yes.

* * * * * *

The Court: When the juror comes in, I intend to do the questioning myself. I don't think it is now in a posture where the lawyers should do any questioning.

(MRS. WINKLER came into the law library)The Court: Mrs. Winkler, come over and sit down, please. Mrs. Winkler, we have brought you in because another question has arisen concerning possibly some comments that you may have made as a juror after you were selected. We understand that Sunday you were at some kind of family gathering in which perhaps your brother-in-law, the City Policeman, was there and that the case was again discussed and during which time you again expressed an opinion about the imposition of the death penalty.

Do you recall any such meeting or any such family gathering?

Mrs. Winkler: I remember being there Sunday.

The Court: Do you remember the discussions taking place? Perhaps in general or brief discussion of some kind about the facts involved in the case itself?

Mrs. Winkler: We were sitting in the kitchen and something was said about the case and I am not sure what was said, exactly how it came about, and I was sitting and I thought, now, I need to leave, and about that time, my husband said, "Sherry can't talk about it," and they might have said, "I hate for you to be on the jury" or something like that. I said, "I hate to be there." Oh, and my brother-in-law said, "I didn't think you would have to be on the jury since I am your brother-in-law," and I said, "well, I was hoping that, too."

The Court: Did you make a remark to the effect that you were very much--I won't say very much; that you were in a quandry as to whether or not you could give the death penalty in any case?

Mrs. Winkler: No, we didn't say anything about what kind of a verdict--

The Court: Were any facts briefly discussed about what happened out at the place about which we have since heard evidence?

Mrs. Winkler: You mean at the Minit Mart?

The Court: Yes, was anything discussed generally there about what happened?

Mrs. Winkler: No. I did say that because of my brother-in-law and the fact that I knew Russell Lane, I was hoping both of those would get me off of it but as far as the facts of the case, I don't remember.