Beruflich Dokumente
Kultur Dokumente
2d 1429
20 Fed. R. Evid. Serv. 687
The defendant, Earl Paul Snyder, an inmate at the United States Penitentiary,
Leavenworth, Kansas, was convicted of conveying a weapon (a homemade
knife) within the prison, in violation of 18 U.S.C. Sec. 1792 (1984). On appeal,
he seeks a reversal of that conviction on two grounds: ineffective assistance of
counsel; and, refusal by the trial judge to admit into evidence written statements
taken from inmate bystanders, under the business records exception to the
hearsay rule, Fed.R.Evid. 803(6). We hold that no error was committed, and
affirm.
BACKGROUND
2
On January 24, 1984, at about 11:00 a.m., defendant Snyder, who was assigned
to work in the furniture factory at the Penitentiary, was observed by the general
At the conclusion of the government's case, and again after the defense rested,
defense counsel moved for a judgment of acquittal, which motion was denied
each time. The defense called no witnesses, and actual trial time was less than
one day.
After being found guilty by the jury, but before the date set for sentencing,
defendant wrote a letter to the court complaining about deficiencies in his
representation by appointed defense counsel. The trial court thereafter allowed
counsel to withdraw and on February 27, 1985 appointed the federal public
* The following reasons are given in support of the claim that counsel was so
ineffective as to deny defendant his Sixth Amendment right to be assisted by
counsel: (a) failure to file any pretrial motions; (b) insufficient trial preparation,
in that counsel interviewed defendant only once, for just thirty minutes, failed
to take pictures of the area where the incident took place, and interviewed no
witnesses; (c) failure to call inmates Wright and Scroggins as witnesses, and to
have Lieutenant Mowery's report marked as an exhibit which could at least be
reviewed on appeal; (d) refusal at trial either to call witnesses whom defendant
wanted called, or to ask more than one question out of the page and one-half of
questions he had prepared; and (e) failure to request any jury instructions,
especially one concerning the theory of the defense.
9 order to prevail on [an ineffective counsel argument], the defendant must show
"In
that his attorney made 'errors so serious that counsel was not functioning as the
counsel guaranteed ... by the Sixth Amendment' and that 'counsel's' errors were
prejudicial; that is, 'so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.' Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The court pointed
out that because of the distorting effect of hindsight, a reviewing court must exercise
care in determining whether counsel's actions fall below an objective standard of
reasonableness.
10
12
13
It is not enough for the defendant to show that the errors had some conceivable
effect on the outcome of the proceeding. Virtually every act or omission of
counsel would meet that test, and not every error that conceivably could have
influenced the outcome undermines the reliability of the result of the
proceeding.
14
....
15
... The 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.
16
17
Applying those standards, we conclude that defendant has not demonstrated his
trial counsel was ineffective. Defendant lists many acts and omissions which he
asserts were prejudicial; but, in each instance, he has shown neither actual
prejudice nor a reasonable probability of prejudice. Rather, he asks us to
speculate as to one of several inferences which could be drawn from each act or
omission assigned by defendant as an error of counsel. Thus, it is argued that
certain witnesses should have been called, including inmates Scroggins and
Wright; but we are not told what their testimony would have been, or shown
how the reliability of the outcome of the proceeding was actually compromised
by the omission of that particular testimony. Defendant speculates that "[t]he
report of the investigating Lieutenant, Mowery, obviously contained favorable
statements by inmates Wright and Scroggins"; Appellant's Opening Brief at 12,
and, "[b]ecause the government's evidence was based on circumstantial
evidence, any defense evidence may have been sufficient to cast doubt upon the
government's evidence," id. at 13. But, it is at least as reasonable, and maybe
more so, to speculate that the testimony of those witnesses would have
Similarly, defendant complains that his questions were not asked, but does not
identify what should have been asked or how the verdict was affected by the
omission. Counsel's selection of questions is a matter of "strategic choice," as to
which he has broad latitude. Glick, 710 F.2d at 644. The same is true with
respect to defendant's complaint that his counsel did not photograph the area in
question, a particularly weak assertion in view of the fact that a detailed
diagram of the area was admitted into evidence and used in examining
witnesses.
19
The same problem of speculation and competing inferences infects the charge
that trial preparation was ineffective. Defendant complains that no motions
were filed, but fails to identify one which, if filed, would have affected the
outcome of the case.1 Defendant also complains that he was interviewed for
only thirty minutes and that no witnesses were interviewed by counsel, but fails
to identify any fact which counsel should have, but did not, glean, which if
properly developed would have affected the outcome of the proceedings.
20
21
II
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26
"If however, the supplier of the information does not act in the regular course,
an essential link is broken; the assurance of accuracy does not extend to the
information itself, and the fact that it may be recorded with scrupulous
28
The statements attributed to Scroggins and Wright fall within the third party
category. They were mere bystanders, obviously not acting in the regular course
of business, and their statements as recorded by Officer Mowery cannot be
given the presumption of reliability and regularity accorded a business record.
United States v. Pazsint, 703 F.2d at 425. To allow the introduction of their
statements would impermissibly insulate them from the test of crossexamination, and would distort the plain purpose of the business records
exception. We hold that the trial court did not err in refusing to admit the
statements of the two inmates as part of Officer Mowery's written report.
29
JUDGMENT AFFIRMED.
Only those motions having a solid foundation, not every possible motion,
should be filed. United States v. Afflerbach, 754 F.2d 866, 870 (10th Cir.), cert.
denied, --- U.S. ----, 105 S.Ct. 3506, 87 L.Ed.2d 636 (1985)