Robert Mems v. City of St. Paul

*
The Honorable James B. Loken became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2003.
1 The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-2763
___________
Dennis Lamar, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
L. W. Graves, Jr., Warden, *
*
Appellee. *
___________
Submitted: January 15, 2003
Filed: April 17, 2003 (Corrected: April 30, 2003)
___________
Before LOKEN,* FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
___________
MORRIS SHEPPARD ARNOLD, Circuit Judge.
Dennis Lamar was convicted in state court of first degree murder and three
counts of first degree robbery. After the state court denied Mr. Lamar's appeal and
his requests for post-conviction relief, he filed a petition under 28 U.S.C. § 2254.
The district court 1 denied his petition and he appealed. We affirm.

-- 1 of 7 --

-2-
On the day of the robbery, Mr. Lamar told Thomas Gladson that he planned to
rob a grocery store in Newton, Iowa, and asked him to be his driver. Mr. Gladson
initially declined, but both of them then armed themselves and drove together to the
store in question. Mr. Lamar went in and robbed the store employees at gunpoint,
and Mr. Gladson waited in the car. While Mr. Lamar was inside, the store alarm went
off and three police officers arrived at the store parking lot. As Mr. Lamar attempted
to leave the scene a gunfight with the police ensued, and Officer Daniel McPherren
was killed. When Gladson was arrested the gun that fired the fatal shot was in his
possession.
In this appeal, Mr. Lamar contends that he received ineffective assistance of
counsel and that the state engaged in prosecutorial misconduct. Mr. Lamar may not
obtain relief unless the state court's adjudication of his claims "resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the [United States] Supreme Court." 28 U.S.C.
§ 2254(d).
I.
Mr. Lamar contends that his right to the effective assistance of trial counsel
was denied in several respects. As a general rule, to succeed on a claim of ineffective
assistance of counsel the defendant must establish both "that counsel's representation
fell below an objective standard of reasonableness," and that but for counsel's
deficiency there is "a reasonable probability that ... the result of the proceeding would
have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). But
Mr. Lamar argues that in this case the state court should have applied the principle
established in United States v. Cronic, 466 U.S. 648, 659 (1984), namely, that
prejudice need not be proven when "counsel entirely fails to subject the prosecution's
case to meaningful adversarial testing." The difference between the ineffectiveness
of counsel in cases governed by Strickland and those governed by Cronic is a
difference in "kind" rather than simply "degree," and the Cronic standard applies only

-- 2 of 7 --

-3-
if counsel's failure to test the prosecution's case is "complete." See Bell v. Cone, 122
S. Ct. 1843, 1851 (2002).
Here, after carefully reviewing the record, we conclude that Mr. Lamar's trial
counsel repeatedly challenged the prosecution's case, and that those aspects of
Mr. Lamar's counsel's performance that he questions are not different in kind from
attorney's actions that the Supreme Court has "held subject to Strickland's
performance and prejudice components," cf. Bell, 122 S. Ct. at 1851-52. The state
court therefore correctly relied on the standard in Strickland to deal with his
ineffective-assistance claims.
Mr. Lamar argues, in the alternative, that even under Strickland his counsel's
performance was ineffective in several respects. We address each of these claims in
turn.
II.
Mr. Lamar first claims that his counsel should have more thoroughly
questioned a witness about the statements of his co-defendant, Mr. Gladson. In Iowa,
first degree murder may be proved against one participant in a robbery by showing
that another participant killed an individual with malice aforethought, see State v.
Ragland, 420 N.W.2d 791, 793-94 (Iowa 1988); see also Iowa Code Annot.
§§ 707.2(2), 702.11.1, and felony murder was submitted to the jury as a basis for
Mr. Lamar's conviction. At trial, Mr. Lamar admitted to committing the robbery, but
contended that Mr. Gladson, who had escaped from prison, shot Officer McPherren
to avoid capture, and that he (Mr. Lamar) could not be guilty of felony murder
because he and Mr. Gladson were not co-participants in a felony. In support of this
contention, Mr. Lamar's counsel elicited witness testimony that when Mr. Lamar
asked Mr. Gladson to participate in the robbery, Mr. Gladson emphatically refused.

-- 3 of 7 --

-4-
Mr. Lamar argues that counsel should have elicited testimony that Mr. Gladson
repeatedly expressed his lack of interest in Mr. Lamar's plan. In Iowa, a person
participates in an offense "during part or the entire period" from the first act "toward
the commission of the offense" until "the person has been arrested or has withdrawn
from the scene," Iowa Stat. Ann. § 702.13; see also State v. Liggins, 557 N.W.2d 263,
267 (Iowa 1996). Here, after declining to assist Mr. Lamar, Mr. Gladson, aware of
Mr. Lamar's intentions, armed himself, rode to the grocery store with Mr. Lamar,
waited for him in the car behind the store, and shot at the police as Mr. Lamar left the
store. Based on these facts the jury was, of course, free to believe that Mr. Gladson
was participating in the robbery. The state court concluded that there was no
reasonable probability that additional testimony about Mr. Gladson's initial reluctance
to participate in the robbery would have changed the jury's verdict. See Strickland,
466 U.S. at 694. In so doing, we think that the court reasonably applied clearly
established law as set forth in the decisions of the Supreme Court.
III.
We also reject Mr. Lamar's claim that his trial counsel should have consulted
with an expert in order to respond to a police officer's testimony that an indentation
on the grocery store wall was caused by a bullet fired by Mr. Lamar, who testified
that he did not fire his gun. As the state court reasonably concluded, Mr. Lamar
cannot succeed on this claim because he has offered no expert testimony to support
it. See Sanders v. Trickey, 875 F.2d 205, 210 (8th Cir. 1989), cert. denied, 493 U.S.
898 (1989).
IV.
Mr. Lamar also claims that his attorney should have presented the testimony
of Russell Zitek, who would have testified that Mr. Gladson admitted shooting at a
police officer after she shot at him. According to Mr. Lamar, this shot from
Mr. Gladson (rather than a shot from Mr. Lamar) could have caused the indentation
on the grocery store wall and Mr. Zitek's testimony would have supported

-- 4 of 7 --

-5-
Mr. Lamar's version of the events. The state argues that this claim is procedurally
defaulted because it was not raised in state court, see Williams v. Kemna, 311 F.3d
895, 897 (8th Cir. 2002), but Mr. Lamar asserts that it was. In any event, even if the
claim was preserved, the state court rejected it, and we think that it was not an
unreasonable application of clearly established federal law as determined by the
Supreme Court to conclude that there was no reasonable probability that the jury
would have reached a different verdict had it heard that Mr. Gladson said that he
exchanged gunfire with another officer at the scene.
V.
We also believe that Mr. Lamar is not entitled to relief on his claim that his trial
counsel was ineffective when he did not object to a juror sleeping through part of the
state's case. Counsel testified that he withheld his objection because he did not mind
if a juror missed part of the state's presentation. We believe that the state court did
not unreasonably apply Supreme Court decisions by concluding that counsel's
strategy was the "result of reasonable professional judgment" and did not prejudice
Mr. Lamar. See Strickland, 466 U.S. at 690; cf. Mitchell v. Kemna, 109 F.3d 494, 496
(8th Cir. 1997), cert. denied, 522 U.S. 880 (1997).
VI.
Mr. Lamar, who is black, also claims that his counsel was ineffective because
he did not object to a racial slur that the prosecutor allegedly made in closing
argument. Closing arguments were not recorded, and the only evidence that
Mr. Lamar offered in support of this claim is the testimony of his trial counsel, who
was deposed during Mr. Lamar's state post-conviction proceedings. The attorney's
recollection of the closing argument, which had taken place seven years earlier, was
vague: Counsel testified that the prosecutor "made a racial slur regarding blacks, and
I don't remember his comments." Later in the deposition, counsel explained that he
did not object, in part, because he did not think that the prosecutor's remark "was very
persuasive. I mean it was kind of like a 'Black Sambo' kind of comment." We are

-- 5 of 7 --

-6-
unsure of exactly what counsel meant by his description of the remark, although we
note that he used it in the context of downplaying the comment's effect on the jury.
We find any racial slur, assuming that it was uttered, inexcusably
reprehensible, but Mr. Lamar has established neither what was said nor the context
in which the undefined remark was made. Based on this uncertain and incomplete
rendition of what occurred, we simply cannot say that it was an unreasonable
application of clearly established federal law as determined by the Supreme Court for
the state court not to conclude that counsel's failure to object violated Mr. Lamar's
constitutional right to the effective assistance of counsel.
VII.
Mr. Lamar also contends that the state violated his due process right to a fair
trial by asking him during cross-examination whether certain state witnesses,
including police officers, were lying. Mr. Lamar relies on cases from other circuits
that prohibit a prosecutor from eliciting testimony from one witness that another
witness has lied, particularly where, as here, the witness is a law enforcement officer.
See, e.g., United States v. Fernandez, 145 F.3d 59, 64 (1st Cir. 1998); United States
v. Richter, 826 F.2d 206, 208 (2d Cir. 1987). We first note that the cases cited by
Mr. Lamar are direct criminal appeals that do not rely on constitutional principles for
their rulings, and that Mr. Lamar has not cited to nor have we found a Supreme Court
case addressing this issue. We believe, moreover, that regardless of whether the
challenged questions had been asked it was obvious to the jury that Mr. Lamar's
testimony was contrary to that of several of the prosecution's witnesses. Cf. United
States v. Sullivan, 85 F.3d 743, 750 (1st Cir. 1996). Although we do not necessarily
condone the questions posed to Mr. Lamar, we conclude that the state court's
rejection of the claim (which Mr. Lamar framed in that court as an ineffective-
assistance claim) is not an unreasonable application of federal law as established by
relevant Supreme Court decisions.

-- 6 of 7 --

-7-
VIII.
Finally, Mr. Lamar contends that his appellate counsel was ineffective for
failing to raise on direct criminal appeal the claims that we have already addressed
and rejected in this opinion. Assuming for the sake of argument that Mr. Lamar has
not defaulted these claims, and that they could have even been raised in a direct
appeal in Iowa, we conclude that the Iowa court would have rejected them (as it did
in post-conviction proceedings) and thus Mr. Lamar has suffered no prejudice.
IX.
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

-- 7 of 7 --