___________

No. 95-2392

___________ Russell Bryan Hadley, * * Petitioner/Appellee, * * v. * * Michael Groose; Paul Caspari; * James Purkett, Superintendent * of the Farmington Correctional * Center; Jeremiah (Jay) W. * Nixon, Attorney General, * * Respondents/Appellants. *

___________ Appeals from the United States District Court for the No. 95-2515 Western District of Missouri.

___________ Russell Bryan Hadley, * * Petitioner/Appellant, * * v. * * Michael Groose; Paul Caspari; * James Purkett, Superintendent * of the Farmington Correctional * Center; Jeremiah (Jay) W. * Nixon, Attorney General, * * Respondents/Appellees. *

___________ Submitted: February 13, 1996 Filed: October 11, 1996

___________ Before BOWMAN, HEANEY, and WOLLMAN, Circuit Judges.

___________

### The Honorable Howard F. Sachs, United States District Judge 1 

### for the Western District of Missouri.
-2- WOLLMAN, Circuit Judge.

Th e State of Missouri appeals the district court's order grantin g 1 Russell Hadley's petition for a writ of habeas corpus pursuant to 28 U.S.C

. § 2254. We affirm.

I.

In the early morning hours of December 11, 1985, Hazel Smith, a n elderlyresident of a trailer park in Webb City, Missouri, awoke to find
a man with a knife standing beside her bed. The man blindfolded Mrs. Smit h with her pajamas and then sodomized her. He also robbed her of a smal l amount of personal property and cash.
On the morning of December 15, 1985, Mrs. Smith awoke to hear s omeone attempting to force the front door to her traile r open. A newly-installed safety chain prevente d the intruder's entry. Mrs. Smith told police that she "kn ew it was the same individual" from the December 11 attack. Sh e testified at trial, however, that she only saw t he intruder's head and not his face, and did not offer any testimony connecting the December 1 5 intruder to the December 11 attack.
Hadley was arrested and charged with the December 11 attack. He was represented by public defenders Larry Maples and Craig Johnston. After a one-day trial on May 2, 1986, the jury returned that same night with a verdict finding Hadley guilty of sodomy, first-degree robbery, and armed criminal action. As a prior offender, Hadley wa s sentenced to consecutive thi rty-year terms on each count. Hadley's convictions were affirmed o n direct appeal. State v. Hadley , 736 S.W.2d 580 (Mo. Ct. App. 1987). His motion for post-conviction relief was denied, an d this denial was affirmed

### -3-

on appeal. Hadley v. State , 771 S.W.2d 943 (Mo. Ct. App. 1989).

II.
Hadley filed a petition for a writ of habeas corpus. After a l imited
ev identiary hearing, the district court denied Hadley's petition an d request for a full ev identiary hearing on the ground that his claims were procedurally barred. Hadley v. Groose , No. 91-0951-CV-W-6, 1994 WL 14855 (W.D. Mo. Jan. 19, 1994) (revised memorandum and order). We concluded tha t Ha dley's claims were not barred and reversed and remanded for a n evidentiary hearing a nd further consideration of Hadley's claims. Hadley v. Caspari , 36 F.3d 51, 52 (8th Cir. 1994) (per curiam).

On remand, after conducting a two-day hearing, the district cour t grante d Hadley's petition, concluding that Maples and Johnston had bee n ineffe ctive in dealing with the introduction of evidence regarding th e December 15 attempted break-in. Hadley v. Groose , No. 91-0951-CV-W-6, 199 5 WL 307424 (W.D. Mo. May 17, 1995) (memorandum and order).

The State appeals, arguing that the district court erred i n conduc ting a second evidentiary hearing and that the district cour t
er roneously concluded that Maples and Johnston had been ineffective

. Had leycross-appeals, arguing that he was entitled to relief on ground s alleged in his petition that the district court did not address.

III.
With respect to the State's first co ntention, the district court can har dlybe faulted for complying with our directive that it hold a n evidentiary hearing.

### Mrs. Smith, who said she only caught a side view of he r 2 

### attacker, described him as being 5'6" tall, 160 pounds, with very little hair on his chest excep t for a strip of hair in the middle. Hadley was 6' tall, 185 pounds, and, as demonstrated at the first eviden tiary hearing, has chest hair from armpit to armpit, wit h some bunched in the middle. F urthermore, Mrs. Smith was unable to pi ck Hadley out at a photo line-up on December 11, despite th e line-u p containing a mug shot with a side view of Hadley. Sh e testified that she said, while pointing to Hadley's picture, "`if it would be any of them, it would be this one.'"
-4- Turnin g to the merits of the district court's ruling, the key t o understanding this case is to appreciate the damning nature of the evidenc e of the December 15 attempted break-in, for we agree with the district cour t "that what the jury b elieved about Dec 15. was the `make-or-break' aspect of th e case." Memorandum and Order at 14. Hadley was never charged i n relation t o the December 15 incident, yet the trial court allowed th e introduction of testimony regarding the subsequent attempted break-in to show identification, common scheme or plan, and motive.
The State's case regarding the Decem ber 11 attack was weak. Smith's eyewitness identification of Hadley was describe d by the district court as "not v ery powerful" and "rather weak." The only other evidence linkin g 2 Hadley to the attack was a single pubic hair fou nd at the scene, which had charac teristics consistent with Hadley's pubic hair, and a semen sampl e left by a person with Type A blood--Hadley's blo od type and the blood type of app roximately 42% of the population. Furthermore, Hadley presente d evidence establishing an alibi for the time of the attack.

The evidence regarding the attempted break-in on December 1 5 developed as follows. Mrs. Smith called the police on December 15 soo n after the foiled intruder left. Officers Rogers and Breeden arrived a t Mrs. Smith's trailer at 5:43 a.m. on December 15. Deputy Sheriff Parrill arrived shortly thereafter. A light snow had fallen that morning

. Rogers's report contained the following statement:

### -5- This R/O [reporting officer] also observed that the re were snow tracks in the shape of f ootprints on the victim's front porch. The tracks appeared to b e that of boots with cleat type soles. The victim stated no one had been on her porch recently. This R/O and Officer Breeden made a canvass of the victi m's yard and found several footprints in the snow leading to and from th e victim's trailer to the street in front of the house, however, it was not possible to trace the prints further tha n the street area. This R/O and Officer Breeden checked the area aroun d tra iler #6 and Officer Breeden found footprints in the sno w around trailer #6.

Trailer #6 was the trailer of Mary Ellen Reding, Hadley's mother. Althoug h Hadley was living there on December 10-11, he ha d moved out of the trailer prior to December 15.
At a deposition in the present case, Rogers testified that he traced the footprints out to the edge of the street, where they disappeared; he did not trace them farther. Rogers also testifi ed that it was Breeden who discovered the footprints outside Reding's trail er. Rogers observed three
or four different types of footprints, none of which were the same as thos e outside Mrs. Smith's trailer. Rogers stated that the footprints at Mrs. Smith's trailer appeared to be from a hiking-typ e boot, not a cowboy boot.

DeputySheriff Parrill's report stated that the footprints in th e
snow "led S.E. to Road then vanished." Parrill testified at Hadley's post

conviction relief hea ring that the snow was soft in Mrs. Smith's yard but compacted in the road , that there were no visible prints in the road, and that he did not attempt to trail the prints farther.
The prose cutor added the following note to Rogers's report: "These officers followed tracks to road -- lost them in road & they appeared on opposite side, leading to Hadley's trailer." The fact that it was th e prosecutor who added this note was not disclosed

### -6-

until after trial.

Prior to trial, the defense filed a motion in limine to exclud e evidence of the December 15 attempted break-in. The prosecutor argued for admission of the evidence, stating that the footprints found on December 15 leading to Reding's trailer were "similar in size, shape, to what had been in front of" Mrs. Smith's trailer and that the footprints in front of Mrs. Smith's trailer "could be identified in going up to Hadley's trailer. " Agreeing with the prosecutor, the trial court stated that "you have th e footprints leading out to the road and to the defendant's trailer," an d that "we have the footprints pointing to his trailer."
The prose cutor then moved to substitute Officer Breeden for Officer Rogers as a witness at trial. The prosecutor argued that the police repor t referred to "following the snow tracks and the shape of footprints up to the d efendant's front porch," and that Breeden was the officer who ha d fol lowed the footprints. He argued that there was no surprise to th e defens e because Breeden's testimony would be "identical to what i s reflected in Officer Rogers's report." The trial court allowed th e substitution, stating that "the testimony of thi s witness is not different from that shown in th e police reports." The court allowed the defense to interview Breeden at the courthouse prior to his testimony.

Breeden was the State's final witness at trial. He testified tha t there were spots of snow shaped like a shoe on Mrs. Smith's porch. He the n drew a diagram showin g the tracks leaving Mrs. Smith's yard, disappearing at th e road, and reappearing and leading to Reding's trailer, which h e referred to as "Hadle y's" trailer. He testified that the tracks in front of "H adley's" trailer were "very similar in size and general shape" t o those in front of Mrs . Smith's trailer, and that he only found one set of tra cks. He also testified that "Hadley's" trailer was directly visibl e from Mrs. Smith's front door. On cross-examination, Breeden stated that

### -7-

although he couldn't be sure that the tracks in front of Reding's trailer
were the same as those in front of Mrs. Smith's trailer, they wer e "generally very similar." He was not asked abou t the contents of Rogers's or Parrill's report.
During the defense's case, Maples and Johnston put on no alib i evidence for the night of December 14 and early morning of December 15, an d they did n ot call Rogers to testify about the footprints, even thoug h Rogers was at the courthouse. When Hadley testified, they failed to ask him any questions regarding his whereabouts the morning of December 15 ; they asked him only whether he had gone to Mrs. Smith's trailer on Decembe r 15 and tried to break in.
During cl osing arguments the prosecutor capitalized on the December 15 evidence and made several references to the f ootprints in the snow. He argued, in part, that Hadley had tried to enter Mrs. Smith's trailer a second ti me and then walked through the snow to his trailer; that ther e were "tracks straight from her house to Russell Hadley's house"; that the officers "followed a bee-line straight from Mrs. Smith's trailer back to Russell Hadley's trailer"; and that "the footprints . . . don't lie."

IV.

A.

We re view the district court's legal conclusions de novo, and it s factu al findings for clear error. We accord deference to the distric t court's credibility d eterminations. Sidebottom v. Delo , 46 F.3d 744, 752 (8th Cir.), cert. denied , 116 S. Ct. 144 (1995); Singleton v. Lockhart , 96 2 F.2d 1315 , 1321 (8th Cir.), cert. denied , 506 U.S. 964 (1992). Th e district court concluded that Maples and Johnston performed deficientl y when the y failed to investigate Hadley's alibi for December 15 an d consequently were unable to present alibi evidence at trial. We agree.

### -8- To show t hat his counsel was ineffective, Hadley must show that his attorneys' performanc e was deficient and that their deficient performance prej udiced his defense. Strickland v. Washington , 466 U.S. 668, 68 7 (1984). Counsel has a duty to make a reasonable investigation based on th e inform ation provided by a defendant, particularly when an alibi i s involved. See Strickland , 466 U.S. at 691; Sidebottom , 46 F.3d at 752

. To establish prejudice from counsel's failure to investigate a potential witness, a petitioner must show that the witness would have testified and that their testimony "would have probably changed the outcome of th e trial." See Stewart v. Nix , 31 F.3d 741, 744 (8th Cir. 1994).

Ma ples and Johnston both testified that they were aware prior t o trial of the possible link between Hadley and th e December 15 incident and the possibility that evidence regarding December 15 might come in at trial

. The district court credited Hadley's testimony that he told Johnston and Maples that Maggie Burdick would testify that he was with her at a party the night of December 14-15. Burdick testified at a deposition in th e present action that she was with Hadley until 6:00 or 7:00 a.m. the mornin g of Dec ember 15. Maples testified that he knew that Hadley had alib i witnesses and that Hadley had provided information to either him o r Johns ton regarding his alibi, yet he failed to investigate or call an y alibi witnesses. Map les basically left the investigation up to Johnston. Johnston testified that Burdick's name was in his notes and that h e remembered trying to call her once. When he found she was not an alibi fo r December 11, he crossed her name off without ask ing her about December 15.

Despite Hadley's claim of innocence and his presentation of pot ential al ibi evidence to counsel, Johnston and Maples made no effort t o investigate Hadley's alibi for December 15, despite their admitte d knowledge that the attempted break-in was an iss ue in the case. Given the crucial nature of the December 15 evidence,

### The night before trial was the first time counsel told Hadley 3 

### tha t they thought evidence of the December 15 attempted break-i n was going to be admitted, and they advised him to plea bargain. Counsel missed one opportunity to do so at trial when Nancy 4 

### Potter was testifying. Potter testified that she had seen Hadley at a party subsequent to December 11, but counsel asked no followup questions. Potter has attested that the party she referred to was Burdick's party on December 14-15, and that she was sure Hadley was there as late as 5:00 a.m. -9- counsels' failure to investigate constituted deficient performance. See 3 Tosh v. Lockhart , 879 F.2d 412, 414 (8th Cir. 1989) (failure to obtai n alibi testimony of known, relevant witnesses); Thomas v. Lockhart , 738 F.2 d 304 , 308 (8th Cir. 1984) (investigation deficient where it consisted o f simply reading police file and not investigating defendant's claim o f innocence or three alibi witnesses whose names were provided by defendant)

. Furthermore, Hadley h as shown that Burdick would have testified at trial, what the contents of her testimony would have be en, and that her testimony "would have probably changed the outcome of the trial." Stewart , 31 F.3d at 744.
Maples testified that once the trial court denied the defense' s motion in limine and ruled that evidence of the December 15 attempte d break-in would be admitted, he knew it was impor tant to establish an alibi for December 15. Defense counsel failed to do so, presenting no alib i evidence whatsoever to the jury. In fact, Maples arguably made Hadle y 4 look suspect while testifying by asking Hadley whether he tried to break in to Mrs. Smith's trailer on December 15 and then failing to ask Hadley about his whereabouts on December 15.

B.
Maples an d Johnston were both aware of Rogers's report before trial and were aware that the prosecutor's handwritten addition differed from th e body of the report. Before trial, however, they

### -10-

believed that the body of the report was helpful. They did not investigat e the handwritten addition because Rogers was the endorsed witness, and no witness was endorsed to testify regarding who had inserted the additional language.

We agree with the district court that Maples's and Johnston's lac k of pre-trial investigation regarding the report may not have been deficien t performance. When th e prosecutor used his notation on Rogers's report to convince the trial court to allow Breeden to testify instead of Rogers , however, Maples and Johnston, as they have now acknowledged, were put on notice that Breeden's testimony would seriously implicate Hadley. We agre e with the district court that counsel performed d eficiently with respect to the manner in which t hey dealt with Officer Breeden's testimony at trial.

Defen se counsel had not interviewed Breeden prior to trial. Whe n Johnston interviewed Breeden the day of trial, what Breeden told him was consistent with how Breeden ultimately testified. Maples testified that after the subject of Breeden's testimony became apparent, there was n o str ategic reason for not impeaching Breeden with Rogers's report and i t would have been effective to call Rogers to impeach Breeden and offe r testimony favorable t o Hadley. Despite his knowledge of Rogers's report, Johnston could not explain why he failed to address the issue in his cross

examination of Breeden. Maples's and Johnston's failure to use the police report s to impeach Breeden, coupled with their failure to affirmativel y present Rogers's testimony as exculpatory defense evidence, allowe d Breeden's devastating footprint testimony, emphasized during th e prosecutor's closing argument, to go virtually unchallenged.

Furthermore, Johnston knew that Hadl ey had said that he did not have any shoes that would have made the treaded footp rint. Hadley told counsel to call his half-brot her, Steven Reding, who, besides bolstering Hadley's alibi for December 11, would testify

### -11-

that when Hadley went to prison Reding received all of Hadley's shoes, non e of which had soles with tread. Reding testified that Maples neve r contacted him about testifying, even though Reding was at the courthouse the day of Hadley's trial. The failure to call Reding allowed th e prosecutor to argue, "Well, where is the brother? . . . If he has such a fantastic alibi wouldn't his own brother come to court and tell us about it?"

C.

To demonstrate prejudice, Hadley "must show that there is a reasonable probabilit y that, but for counsel's unprofessional errors, the resul t of the proceeding would have been different. A reasonabl e probab ilityis a probability sufficient to undermine confidence in th e outcome." Strickland , 466 U.S. at 694; see also Lockhart v. Fretwell , 113 S. Ct. 838, 844 (1993) (prejudice component "focusses on the questio n whethe r counsel's deficient performance renders the result of the tria l
unr eliable or the proceeding fundamentally unfair"). We agree with th e district court that given the weakness of the State's case regarding the December 11 attack, i f the jury believed "`that [Hadley] was the December 15 culprit, there seems little doubt that a conviction was inevitable.'" Memorandum and Order at 14. In the absence of a libi witness testimony and in light of the unchallenged testimony and argument about the straight-lin e track s from the victim's trailer to the Hadley trailer, the jury coul d hardly have believed otherwise. Counsels' failure to introduce th e available alibi testimony and to challenge the footprint testimon y constituted deficient performance that resulted in prejudice as defined in Strickland

.

CONCLUSION

We do not minimize the gravity of overturning a state-cour t conviction, now a decade old, arising out of a sexual attack upon

### In light of our disposition of the State' s appeal, we decline 5 

### to reach the issues Hadley raises in his cross-appeal.
-12- an elderly woman, now deceased, in the supposedl y safe confines of her own home. Nevertheless, we are constrained to agree with the district court that trial counsels' failure to adequately deal with the evidence linking Had leyto the December 15 attempted break-in is sufficient to undermin e confidence in the outcome of the trial.
The judgment is affirmed. 5

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.