United States v. Eugene Baynes, A/K/A Bo, James Fox, Eugene Hearn, Russell Barnes, Barthaniel Thornton, William Jefferson, A/K/A Skinny, Terry, Ferris Foster, Gregory Trice. Appeal of Gregory Trice

Citations: 687 F.2d 659; 1982 U.S. App. LEXIS 16681Docket: 81-1620

Court: Court of Appeals for the Third Circuit; August 11, 1982; Federal Appellate Court

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The United States Court of Appeals for the Third Circuit addressed Gregory Trice's appeal regarding his habeas corpus petition, claiming ineffective assistance of counsel during his 1975 trial for conspiracy to distribute heroin. The district court initially found a violation of Trice's Sixth Amendment rights due to his counsel's failure to investigate exculpatory evidence but concluded that this did not result in prejudice. The appellate court disagreed, emphasizing that the entirety of the government's case against Trice relied on a brief intercepted phone conversation, which lacked supporting evidence compared to his co-defendants. Notably, Trice had provided a voice exemplar prior to trial, which was not used by the prosecution. Trice's defense counsel failed to investigate this exemplar, which Trice argued would have proven it was not his voice on the recording and could have led to his exoneration. The appellate court accepted Trice's allegations as true and determined that an evidentiary hearing was warranted to assess the potential impact of his counsel's shortcomings. The court reversed the district court's judgment, indicating that a thorough inquiry was necessary to evaluate whether the lack of investigation prejudiced Trice's case.

Trice testified at a remand hearing, asserting that he had urged his attorney to review a voice exemplar, believing it would prove he was not the voice on an intercepted recording related to a conspiracy. Trice's trial counsel acknowledged that Trice consistently claimed the voice was not his and even rejected a plea deal, maintaining his innocence. The attorney admitted he had not listened to the voice exemplar again after its initial creation and did not compare it to the intercepted recording. He expressed fear about using the exemplar, concerned it might inadvertently harm Trice's defense. During the trial, a co-defendant informed the attorney that it was his voice on the tape, not Trice's.

The district court found the trial attorney's performance constitutionally ineffective due to the lack of investigation into the voice recordings. However, the court denied Trice's habeas relief, ruling he could not demonstrate prejudice from this ineffectiveness. The court ordered a spectrographic analysis, which concluded that the voices on the intercepted recording and the exemplar were from the same person. Consequently, the court reasoned that the absence of a scientific comparison was not prejudicial since it would not have produced exculpatory evidence. Additionally, the court found no prejudice from the failure to conduct an aural comparison, despite evidence of pronunciation differences, as a government witness conceded the possibility of differing conclusions regarding the voices. Ultimately, the court was not convinced that the trial counsel's shortcomings adversely affected Trice's defense.

The district court noted that there was no evidence suggesting Trice intentionally modified his speech in the voice exemplar; however, it acknowledged the possibility of such modification due to the apparent motivation to provide a deceitful exemplar. The court dismissed three minor pronunciation differences found during the habeas proceedings as insignificant, given that over 400 words were pronounced identically in both recordings. Trice's consistent mispronunciation of the police officer's name, D'Amico, did not affect the jury's verdict, which the court believed would remain unchanged even with knowledge of these variances, indicating no prejudice against Trice.

The court also addressed an intercepted conversation regarding a potential visit to a prisoner in May 1974. Despite prison records showing Trice was not among the five visitors that month, the court found that the vague nature of the conversation and lack of specific visitation details meant the omission of these records by trial counsel was not prejudicial to Trice's defense. The district court deemed the claims of prejudice too speculative to warrant relief and subsequently denied Trice's habeas petition.

In reviewing the ineffective assistance of counsel claims, the court referenced the standard established in Moore v. United States, which requires attorneys to exhibit customary skill and knowledge. It emphasized that the assessment of counsel's performance must consider the specific circumstances of the case, underlining that effective defense requires professional judgment tailored to the unique facts at hand. Categorical rules are inappropriate in such nuanced evaluations.

The Government contends that the defense counsel's failure to utilize a voice exemplar during Trice's trial does not constitute ineffective assistance. It argues that this decision was a strategic choice, as the attorney feared the jury hearing Trice read potentially incriminating words. Introducing the exemplar could have raised questions about why Trice did not testify for a direct comparison with the intercepted recording. The Government also highlights that the counsel provided vigorous cross-examinations of prosecution witnesses and had prior familiarity with Trice's voice, which negated the need for a voice comparison. Consequently, the Government asserts that Trice's Sixth Amendment right to effective counsel was not violated.

However, the court finds flaws in the Government's arguments, emphasizing that they fail to address the critical issue of the counsel's failure to investigate the voice exemplar as a potential source of exculpatory evidence. While strategic choices in evidence presentation may be permissible, neglecting to investigate a key piece of evidence could indicate ineffective representation. The court concludes that the lack of effort to compare the voice exemplar with the intercepted tape raises concerns about the adequacy of Trice's legal defense.

Trice's attorney may have opted not to introduce a voice exemplar at trial based on a strategic assessment that the similarity of the voices could lead the jury to view the exemplar as incriminating. Such a decision should have stemmed from a comprehensive evaluation of the recordings. However, the attorney's performance at trial does not compensate for a lack of pretrial investigation that could have potentially exonerated Trice. Past rulings indicate that effective trial performance cannot substitute for inadequate pretrial preparation, including failing to interview key witnesses or arrange their testimonies, as these deficiencies may not be apparent during trial.

Furthermore, an attorney's familiarity with a client's voice does not exempt them from addressing potentially exculpatory evidence, even if the client expresses guilt or a desire to plead guilty. The responsibility for drawing conclusions about evidence rests with the jury, not the defense counsel. The government's attempts to justify the attorney's actions were found unconvincing, and it was determined that the failure to investigate the voice exemplar constituted a lack of the necessary skill and knowledge required.

The government's case against Trice hinged on a brief phone call; thus, if the attorney had successfully demonstrated that the voice on the tape was not Trice's or raised reasonable doubt, it could have led to an acquittal. The duty to thoroughly compare the voice recordings became evident after Trice denied being the speaker and a co-defendant indicated he was the one speaking during the call.

Failure to investigate potentially exculpatory evidence cannot be justified by the mere possibility that such an investigation would yield no significant results. Defense attorneys, whether appointed or retained, have an obligation to thoroughly explore all relevant defenses and evidence. This includes conducting prompt investigations into the case's circumstances and seeking information from prosecution and law enforcement. The courts must ensure that every accused individual, regardless of their situation, receives a comprehensive defense. In this case, a competent attorney would have compared a voice recording with a voice exemplar to find exculpatory evidence for the jury. Consequently, the trial counsel's failure to do so constitutes ineffective assistance of counsel.

In addressing whether Trice experienced prejudice from this ineffective representation, he argues that a showing of prejudice is unnecessary once ineffective assistance is established. He cites several Supreme Court cases that discuss the denial of counsel rather than ineffective assistance, asserting that these cases indicate a no-harmless-error principle. However, the courts clarify that these precedents pertain to situations where a defendant was completely denied counsel, which is distinct from ineffective assistance claims. The fundamental rule established in Gideon v. Wainwright states that complete denial of counsel cannot result in harmless error.

The Supreme Court has not specifically addressed the threshold required for a petitioner claiming ineffective assistance of counsel under the habeas statute; however, this issue was arguably resolved in United States v. Morrison, where the Court ruled that an indictment cannot be dismissed for government misconduct unless there is an allegation and demonstration that such misconduct prejudiced the quality of the legal representation. The ruling emphasizes that remedies for Sixth Amendment violations should be appropriately tailored to the harm caused without unnecessarily infringing on other interests. The precedent suggests that a constitutional infringement must adversely affect counsel's effectiveness or prejudice the defense.

Even if Morrison and Chambers v. Maroney are limited to their specific circumstances, the harmless error standard established in Chapman v. California applies. This standard requires that a federal constitutional error be proven harmless beyond a reasonable doubt before it can be dismissed. Consequently, a habeas petitioner must show a "reasonable possibility" that the error influenced the jury's outcome. Consistent with this, courts have historically required habeas corpus petitioners to demonstrate prejudice in ineffective assistance cases.

In Trice's situation, the court previously mandated a hearing to determine whether his attorney's failure to investigate a pertinent issue affected his case. The court disagrees with Trice’s assertion that the district court erred by requiring proof of prejudice. It acknowledges that in some cases, ineffective assistance may be so pervasive that determining prejudice is difficult, and any substantial doubt must be resolved in favor of the defendant. Thus, for Trice to succeed in his appeal, he does not need to prove that it was not his voice on the recording; he simply needs to show that his attorney's exploration of the issue could have potentially led to a favorable verdict. Trice must demonstrate that the ineffectiveness of his counsel was not harmless beyond a reasonable doubt.

Trice was not found to be prejudiced by his attorney's failure to compare a voice exemplar with an intercepted recording based on two factors cited by the district court: a spectrographic analysis indicating both recordings featured 'one and the same' speaker, and an aural comparison that the judge viewed as displaying only minor pronunciation differences. The court concluded that even with further investigation by defense counsel, the jury's conviction decision would remain unchanged.

However, this conclusion is challenged on several grounds. Firstly, the reliability of the spectrographic analysis is disputed and not universally accepted as infallible. The district court's reliance on this analysis is criticized as it is not established that it provides definitive evidence necessary to justify the conclusion that Trice suffered no prejudice. 

Secondly, the district court failed to scrutinize the methodology of the spectrographic analysis or allow the defense to contest the expert’s qualifications, potentially overlooking flaws that could raise reasonable doubt about the voice exemplar's relevance. 

Lastly, even if spectrographic analyses were deemed reliable, the district court's emphasis on subsequent scientific findings from six years post-trial obscured the original issue of ineffective assistance of counsel. In the context of the 1975 trial, the defense was not obligated to obtain such scientific comparisons, making the later analysis less relevant to determining the effectiveness of Trice’s legal representation at that time. If it can be shown that Trice was harmed by his attorney's lack of an aural comparison, this harm cannot be dismissed by the later spectrographic results.

The district court found no prejudice to Trice from his attorney's shortcomings, believing a jury would dismiss differences in pronunciation on two recorded tapes as minimal. However, the appellate court disagreed, asserting that the jury should evaluate reasonable doubts about whether Trice's voice appeared on the tape. Key factors influencing this decision included: (1) pronounced differences in three words on the recordings, (2) a government witness acknowledging the possibility of different voices, (3) a co-defendant claiming the voice was his, and (4) Trice's absence from the referenced prison visit. The court emphasized that such determinations about innocence and guilt should be within the jury's purview, not the court's during a habeas proceeding. Given that the intercepted tape was the sole evidence against Trice in a lengthy trial, the court concluded that effective counsel could have utilized the exemplar evidence to support Trice's defense. The court did not need to confirm that a different defense would have ensured an acquittal, only that the failure to investigate this evidence prejudiced Trice's defense. Consequently, the court reversed the district court's judgment and ordered a new trial.

The witness confirmed that the unidentified caller's voice, labeled 'G' in the transcript, matched Gregory Trice's voice according to forensic analysis by Frederick A. Lundgren, who used voiceprint methods for speaker identification. Agent Donn Jerre Miller, a government witness, initially found no differences between the two recordings but later acknowledged discrepancies in the pronunciation of three words. During cross-examination, Miller conceded that different listeners could arrive at opposing conclusions regarding the voice identification, and he recognized the validity of such differing opinions.

The document also addresses the effectiveness of legal counsel, noting that assessing an attorney's performance involves mixed considerations of law and fact, allowing for broader judicial review. It assumes Trice would have maintained his attorney's strategy had he known about the voice comparison results, but if his attorney ignored Trice's objections regarding the exemplar, it could raise constitutional concerns about Trice's rights to make fundamental defense decisions. The excerpt references previous case law illustrating the complexities of legal representation and the obligations attorneys have in investigating potential discrepancies in evidence.

An evidentiary hearing was ordered by the Court regarding a claim of ineffective assistance of counsel, specifically concerning the attorney's failure to investigate or assert a defense related to the Interstate Agreement on Detainers Act, despite the defendant's insistence. Several precedents illustrate ineffective assistance, including cases where attorneys failed to pursue insanity defenses or call alibi witnesses despite the defendant's requests. Notably, the Court does not imply that the counsel's choice to avoid a spectrographic examination was negligent, as the admissibility of such evidence was unclear at the time of trial, and prevailing standards do not require attorneys to foresee legal changes or novel defenses. The general requirement in habeas proceedings is to demonstrate "cause and actual prejudice." The Fifth Circuit has analyzed the necessity of showing prejudice due to an attorney's failure to investigate, noting a division among Circuits on this issue. Trice's argument to reassess the necessity of demonstrating prejudice in ineffective assistance claims is declined. The Court acknowledges that, under certain circumstances, prejudice can be established as a matter of law, making precise calculations unnecessary in assessing the impact of ineffective assistance.

Trice contends that the district judge improperly ordered a spectrographic analysis and an aural examination of voice exemplars, a claim the court rejects. Trice previously acknowledged the potential validity of such analyses in his appeal, asserting that expert spectrographic analysis could confirm that the incriminating tape did not contain his voice. This procedure was deemed appropriate based on prior case law, specifically referencing Baynes, which indicated that a comparison of voice exemplars with intercepted conversations was necessary to assess potential prejudice to Trice's defense. 

While one Court of Appeals ruled that spectrographic analyses lack general acceptance in the scientific community and thus are inadmissible in criminal trials (United States v. Addison), other circuits have accepted such evidence, provided the expert is subject to cross-examination and jurors are instructed to weigh the evidence accordingly. The court also notes that a co-defendant's statement could have been admissible as an admission against interest, although it concludes that even without this evidence, the remaining facts presented could create reasonable doubt regarding a jury's conviction of Trice.