Full opinion text
MEMORANDUM OPINION EISELE, Chief Judge. Currently before the Court is Mr. Billy Woodard’s Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Mr. Woodard was convicted of capital felony murder in Poinsett County, Arkansas Circuit Court on March 4, 1976 and sentenced to death. His conviction was affirmed by the Arkansas Supreme Court on June 27, 1977. Woodard v. State, 261 Ark. 895, 553 S.W.2d 259 (1981). Permission to proceed under Rule 37 of the Arkansas Rules of Criminal Procedure was denied on June 29, 1981. Woodard v. State, 273 Ark. 235, 617 S.W.2d 861 (1981). His petition for a Writ of Certiorari in the United States Supreme Court was denied on November 16, 1981. The current petition for a Writ of Habeas Corpus was filed on December 23,1981, and a stay of execution was granted on December 29, 1981. An evidentiary hearing was held on the petition on January 13, 14, and 24, 1983. Petitioner raises a number of arguments in support of his contention that his conviction and sentence were unconstitutionally obtained. Each argument will be discussed in turn. I. PETITIONER’S FOURTH AMENDMENT RIGHTS WERE VIOLATED BY THE INTRODUCTION OF CONFESSIONS OBTAINED AS THE RESULT OF AN ILLEGAL ARREST Mr. Woodard was convicted of the murder of Mr. Columbus Baker. The evidence against him consisted principally of three confessions given on October 10 and II, 1975. The petitioner argues that he was arrested without probable cause on October 10 in violation of the Fourth Amendment, and that his confessions were the fruit of this illegal arrest. This argument is based on Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). The Court has concluded that this issue is not properly cognizable on habeas review. In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) the Court held that prisoners in state custody may not challenge their convictions on Fourth Amendment grounds through a collateral attack under 28 U.S.C. § 2254. The Court reasoned that the purpose behind the exclusionary rule, the deterrence of police misconduct, was not served by addressing the merits of the prisoner’s Fourth Amendment challenge at the level of federal habeas corpus review. Such a claim was not, therefore, properly reviewable, absent a showing that the petitioner was denied a full and fair opportunity to litigate the claim in the state courts. The petitioner argues that the Stone rule applies only to the exclusion of physical evidence, and not to the exclusion of custodial statements allegedly obtained in violation of the Fourth Amendment. While that issue was unresolved by the United States Supreme Court at the time the parties briefed it, it has since been addressed by the high court. In Cardwell v. Taylor, - U.S. -, 103 S.Ct. 2015, 76 L.Ed.2d 333 (1983) the Court concluded that a claim based on Dunaway v. New York was subject to the rule in Stone. The Court specifically held that custodial statements which were allegedly obtained as the result of an arrest without probable cause could not be challenged on Fourth Amendment grounds in a federal habeas corpus proceeding. The petitioner also argues that the preclusion of Stone should not apply in capital cases. There is, however, no precedent for the notion that the application of Stone is predicated on the severity of the sentence. The Stone rationale, that the exclusionary rule has little deterrent value at the stage of habeas corpus collateral review, certainly applies in capital cases. The Court notes parenthetically that Cardwell involved a sentence of 28 separate life sentences. The Court recognizes that capital cases demand thorough and careful review. Nevertheless, the principles of law which determine whether or not a particular conviction was arrived at by constitutional means, do not change because the case involves the death penalty. The Supreme Court has determined that Fourth Amendment issues, particularly a claim predicated on Dunaway v. New York, are not cognizable on federal habeas corpus review. No exception should be made for those cases in which the severity of the crime has warranted the imposition of the ultimate penalty- The petitioner also argues that he was denied the opportunity for a full and fair litigation of the Fourth Amendment claim within the meaning of Stone v. Powell. Petitioner’s trial counsel filed a motion to suppress the confessions as involuntary under the Fifth Amendment. He did not raise a Fourth Amendment challenge to the confessions, nor was the Fourth Amendment issue raised on appeal. The issue was first raised in Mr. Woodard’s Rule 37 Petition in the Arkansas Supreme Court wherein he was represented by his present attorneys. The Court dealt with the issue as follows: Under the circumstances it seems that this argument is not timely. In any event, the testimony of the officers was that the petitioner voluntarily traveled to the scene of the crime with the deputy and that he was not being held in custody until after he made statements which gave rise to probable cause. 617 S.W.2d at 862. Petitioner maintains that the failure of his trial counsel to raise the issue amounted to ineffective assistance of counsel. He argues that his attorney’s alleged incompetence denied him the opportunity for full and fair litigation of the claim. The Supreme Court has not yet specified what is meant by a “full and fair opportunity” to litigate a Fourth Amendment claim. This Court concludes that the failure of trial counsel to raise the claim is not a denial of the opportunity for such litigation. Stone was bottomed on the premise that the exclusion of evidence on collateral review would have little deterrent effect on police misconduct. This rationale is applicable so long as the petitioner could have raised the Fourth Amendment issue. Only in those cases where the state court refuses to entertain the claim is the state prisoner entitled to raise a Fourth Amendment challenge. In Lenza v. Wyrick, 665 F.2d 804 (8th Cir.1981) the Court of Appeals applied the bar of Stone where the petitioner had raised the Fourth Amendment issue at trial. The state appellate court refused to rule on the merits of the issue because of a breach of a procedural briefing rule. The Court concluded: It is the existence of state processes allowing an opportunity for full and fair litigation of fourth amendment claims, rather than a defendant’s use of those processes, that bars federal habeas corpus consideration of claims under Stone. “[I]f state procedures afford the defendant in a criminal case the opportunity to [fully and fairly] litigate whether evidence obtained in violation of the fourth amendment should be excluded ... then Stone v. Powell precludes federal habeas corpus consideration of those issues whether or not the defendant avails himself of that opportunity.” Carver v. Alabama, 511 F.2d 1188 (5th Cir.1978). The Stone bar applies despite a state court’s error in deciding the merits of a defendant’s fourth amendment claim. Moreover, the Stone bar applies with equal force to procedural mistakes that thwart the presentation of fourth amendment claims .. . Johnson v. Meacham, 570 F.2d 918, 920 (10th Cir.1978). Id. at 808 (other citations omitted). Lenza establishes that the petitioner’s own failure to raise a Fourth Amendment claim does not enable him to argue that he was denied the opportunity to litigate that claim. To hold otherwise would be the clearest example of bootstrapping. The Court is not impressed with petitioner’s reference to the Eighth Circuit’s citation of the Tenth Circuit’s decision in Johnson v. Meachum, supra. There the court applied the Stone v. Powell preclusion where the petitioner had failed to raise the issue at trial. The state appellate court did not consider the merits of the issue because no objection had been made at trial. The Tenth Circuit concluded: ° Therefore we hold that where Johnson presented his Fourth Amendment claim to the Wyoming Supreme Court, where the Wyoming Supreme Court applied an adequate procedural ground in refusing to reach the merits of that claim, and where Johnson’s claim of ineffective assistance of counsel is not related to this issue, habeas review of the Fourth Amendment claim is barred. 570 F.2d at 920 (Emphasis supplied). The Tenth Circuit was not, of course, ruling that ineffective assistance of counsel amounts to the denial of an opportunity to litigate the Fourth Amendment claim. The language emphasized above merely points out the narrow scope of the decision. It is evident from the context of the quotation in Lenza above that the Eighth Circuit did not cite Johnson for the narrow dictum to which the petitioner refers. Moreover, and most important in this Court’s view, the claim of ineffective assistance of counsel can be addressed in the context of a Sixth Amendment challenge to the conviction. See, Section II infra. The fact that the particular ineffective assistance of counsel claim arises in the context of a Fourth Amendment issue does not transform that argument into one which escapes the rule of Stone v. Powell. The exclusionary rule does not apply in federal habeas corpus proceedings. The notion that the failure to move for the exclusion of evidence was predicated on trial counsel’s incompetence must be analyzed by Sixth Amendment standards which govern the duties of effective representation. II. INEFFECTIVE ASSISTANCE OF COUNSEL — FAILURE TO ASSERT THE FOURTH AMENDMENT CLAIM To establish a claim of ineffective assistance of counsel, Mr. Woodard must prove (1) that his attorney failed to exercise the skills and diligence of a reasonably competent attorney, and (2) that he was materially prejudiced as a result. Morrow v. Parratt, 574 F.2d 411, 412-3 (8th Cir.1978). Counsel is presumed to be competent, even if hindsight reveals a tactical mistake. Reynolds v. Mabry, 574 F.2d 978, 979 (8th Cir.1978). In applying these legal principles, the Court must analyze the facts and circumstances which were known to the police at the time that they arrested Mr. Woodard. The Court must then determine on the basis of all of those facts whether (1) a reasonably competent attorney would have moved to suppress the confessions of the petitioner on Fourth Amendment grounds, and (2) whether such a motion might have been successful. The victim, Mr. Columbus Baker, a 65 year old white male, lived south of Jonesboro on State Highway 1 in Craighead County. On the evening of September 3, 1975 he was reported missing by his wife. An investigation was begun by the Craig-head County Sheriff’s office. The initial missing person investigation revealed that Mrs. Baker had left her husband at their home at 6:15 a.m. on Wednesday, September 3. She informed the police that her husband had $180.00 in cash on him at that time, including a $100.00 bill. Someone from Bay, Arkansas was to have come by that morning to perform a tune up on his truck, according to Mrs. Baker. Mr. Baker had informed his wife that he planned to wait at the house to receive his social security check which was to arrive in that day’s mail sometime after 12:00 noon. The Craighead County authorities talked to two of the Baker’s neighbors. Mrs. Ela Turman informed them that she was outside mowing her lawn on the morning of September 3. She noticed a young white male talking with Mr. Baker in his yard. A Volkswagen with floral designs on the back was parked in the Baker’s driveway. Mr. Baker’s truck was also parked there. She saw Mr. Baker’s truck leave and head north on Highway 1. It was gone for approximately 5 minutes. She then went into her house, and saw no further comings or goings. Mrs. Ona Downs lived north of the Baker residence. She stated that although she wasn’t sure, she thought she saw Mr. Baker drive past in his truck heading north at approximately 10:00 or 10:30 a.m. She said that he did not honk or wave at her which was unusual. She could not be certain whether anyone was with Mr. Baker or not. Mr. Gary Horn, the mail carrier for the Baker residence, informed the Craighead County Sheriff’s department that he made his usual run and was by the Baker residence at about 1:30 p.m. Mr. Baker’s truck was parked in the drive. He did not see Mr. Baker or anyone else at the house. He stated that this was unusual because Mr. Baker always met him to receive his social security check. The description of the individual and the car by Mrs. Turman led the authorities to Billy Woodard. He was interviewed initially on September 5. He informed the Sheriff’s department that he had been at Mr. Baker’s residence on September 3 to work on Mr. Baker’s truck. He claimed to have first eaten a piece of watermelon with Baker, and then worked on his truck. He said that he last saw him standing under his carport talking to a young man standing next to a blue or green Ford with a black vinyl top. Woodard could not be any more specific about the car or the individual. A Craighead County deputy, Bill Findley, again questioned Woodard on September 6 at his parent’s home in Bay. He questioned the petitioner for about one hour. Deputy Findley came back about a half hour later and asked him additional questions about the blue or green Ford he reported seeing at the Baker residence. On the evening of September 6, Mr. Baker’s body was discovered by coon hunters in a remote wooded area in Poinsett County south of Payneway. The wooded area was adjacent to a soybean field and was accessible by a dirt road over a floodway levee. The road was a dead end after crossing the levee, and was not commonly travelled. The area was frequented by hunters, fishermen, and farmers who farmed land in the area accessed by the levee road. The body was lying face up approximately 90 feet south of the road in a partially wooded and weedy area. The body was badly decomposed and appeared to have been shot with several shotgun blasts. It was apparent that at least one such shot had been to upper body, and one to the head. Mr. Baker was shoeless with clean white socks. A straw hat later identified by Mrs. Baker as belonging to the victim was found near the body. The victim’s wallet was missing. A pair of prescription eyeglasses, also later identified as Mr. Baker’s were found (on September 8) approximately 64 feet from where the body was located in the adjacent bean field. A “plastic power piston”, or shotgun wadding, was found under the right shoulder of the victim’s body. A plastic shotgun shell was found 90 feet south of the body in the farm road. The discovery of the body triggered an investigation by three separate law enforcement jurisdictions — the Poinsett County Sheriff’s Office, the Craighead County Sheriff’s Office and the Arkansas State Police. While all three agencies participated, and all three agencies could pursue the investigation at their own initiative, the general coordinator or leader of the investigation was Trooper Fred Odom (now Lt. Odom) of the Arkansas State Police. Sheriff Floyd Johnson of Craighead County and his deputy Bill Findley were the principal participants of that jurisdiction. The Poinsett County authorities were headed by Sheriff Gerald Crawford and Deputy Jim Walker. At approximately 8:00 a.m. on September 7, Findley arrived at Woodard’s trailer in Trumann (Poinsett County). He informed the petitioner that they would like to question him about Mr. Baker’s death at the Craighead County Sheriff’s Office. Woodard agreed to accompany Findley in the police car. The petitioner is a diabetic. He testified that he ordinarily takes his insulin in the morning after eating breakfast. On the morning of September 7, he had not yet eaten or taken his insulin. Deputy Findley and Sheriff Johnson were both aware, at this time, of Woodard’s diabetic condition. Woodard testified that he informed the authorities on that morning that he had not yet had his insulin and would need a shot. They allegedly told him that the interview would last for only a brief period and he could therefore return home for his insulin shot. Findley and Johnson deny that Woodard ever informed them about his need for an insulin shot on September 7. He was questioned until 4:30 p.m. and did not receive insulin or food, except for a candy bar and soft drink. When Woodard arrived at the sheriff’s office he was questioned by Findley, Odom and Johnson after being advised of his rights and given the standard Miranda warnings. He signed a form acknowledging his understanding of those rights. Woodard’s statement was essentially the same one that he had given the Craighead County authorities on the two previous days, although somewhat more detailed. He stated to Lt. Odom that he arrived at Mr. Baker’s house at approximately 9:15 a.m. on September 3 to put plug wires on his truck. He told Odom that he put the wires on and was then invited in to eat watermelon with Baker. While inside, Baker received a phone call from a woman (Woodard said that Baker addressed the caller as “Mam”). Woodard then told Baker that he needed to get a “dwell meter” to set the points on Baker’s truck. Baker said that he would drive with him to the auto shop, but that he had to hurry back because he was expecting a call regarding his brother who was in the hospital in Memphis. Woodard then stated that he drove the truck, with Baker in the passenger seat, to Luke’s Body Shop, which was located south of the Baker residence on State Highway 1. He claimed that, although the doors to the shop were open, no one was inside. He sounded his horn. He claims that a woman then looked out the window of the shop and saw them. This occurred at approximately 9:45 a.m. They then left the shop without getting the dwell meter and returned directly to Baker’s house. Baker then paid for Woodard’s services out of a black trifold. Woodard then claimed that he test drove the truck to determine whether it was still missing. He drove it north on' Highway 1 and returned approximately five minutes later. When he returned, Woodard stated that a young man was talking to Baker under the carport. He claimed that there was a 1969 or 1970 Ford Galaxie or Fairlane parked in the drive. The car was green with a black vinyl top with a tear in the top on the driver’s side. Woodard stated that he yelled at Baker that he would have to go get a dwell meter and would be back sometime later. After leaving the Baker residence, Woodard claims that he returned to his trailer and drank a beer. At approximately 11:40 a.m. he claimed that a man from Imboden, Arkansas arrived at his trailer to purchase a dog that Woodard owned. The man’s name was “Stout”, “Stroud” or “Shroud” and he was driving a 1974 Chevrolet Cheyenne black pickup truck with a chain across the back. According to Woodard, this type of chain was typical for owners of “coon dogs” or “swim dogs” (the dogs were chained to the chain). The two did not negotiate a sale of the dog, and the gentleman allegedly left shortly before 2:00 p.m. Woodard then claimed to have gone to Wood Ford in Trumann, arriving there at approximately 2:10 p.m. He named several employees that he talked to there, but did not mention purchasing anything or spending any money. He claimed to have left Wood Ford at about 3:00 p.m. and then went to Stinger Sam’s auto parts store in Jonesboro. He was uncertain of his time of arrival. While there he observed an automobile accident outside of the store. He talked to a witness of the wreck while the police dismantled the wreckage, etc. Woodard claimed to have been at Stinger Sam’s “a good two hours”, and did not mention any purchases at the store. He then went to pick up his wife from work at Frolic Footwear in Jonesboro, arriving there at approximately 5:00 p.m. Woodard then went with his wife to his mother’s house in Bay for dinner, arriving there at 6:00 p.m. He said that he remembered the time because a certain television show was ending as he arrived. A separate statement was taken by Sheriff Johnson. See, Petitioner’s Exhibit 9. This statement was essentially the same one given to Odom with a few minor differences. Woodard told Johnson that before arriving at Baker’s he took his wife to work and stopped by Cato’s Animal Clinic to inquire about the purchase of dogs. He told Johnson that before he began any work on the truck, Baker invited him in for watermelon. He also told Johnson that the truck was driven three times, instead of the two times as related to Lt. Odom. He explained that the first time he drove it by himself after replacing the wires. The second time he was accompanied by Mr. Baker to Luke’s Welding Shop. The third time was the drive by himself to test the truck. He told Johnson that he left the Baker residence at approximately 11:00 a.m. or 11:30 a.m. and then drove south on Highway 1 to Ryan’s store and bought a Coke. Sheriff Johnson also asked Woodard if he was a coon hunter. Woodard replied that he was. Johnson then asked him how long it had been since he had been on the levy south of Payneway. Woodard replied that it had been at least 30 days since he had been down there. Johnson then told him, apparently without any factual basis, that a vehicle fitting the description of Woodard’s vehicle had been seen in that area “in the last few days”. Woodard then replied that he had, in fact, been “at a bridge south down the levy (sic) from Payneway on Tuesday, September 2, fishing and drinking beer”. Lt. Odom testified that at the latter stages of the September 7 interview he felt that the petitioner was near to confessing to the crime. He said that tears appeared in Woodard’s eyes, and that he became emotional. It was at that point, according to Odom, that Sheriff Crawford arrived at the station and advised the petitioner once again of his right to remain silent. Odom was of the opinion that this intrusion by Crawford prevented a confession. The petitioner testified that he was not near to confessing anything, and that any emotional state was brought about by his lack of insulin and food. At the conclusion of the interview, the petitioner consented to a search of his trailer and truck. He accompanied the police to his trailer. They removed a 12 gauge pump Revelation shotgun. Woodard stated that the gun belonged to his brother, but had been in his possession for about one year. The officers also took some phone numbers found in Woodard’s trailer. The only other evidence removed were samples of what appeared to be blood splatters on one of the doors of Woodard’s truck. The petitioner testified that the questioning of September 7 without his medication left him shaky and “walking around like I was drunk.” He testified that his sugar count was extremely high. He checked into the Veteran’s Administration Hospital in Memphis on September 8. Except for a weekend pass, he remained in the hospital for two weeks. During this two week period the investigation into the Baker murder continued. A number of different leads were traced, but the prime suspect remained Billy Woodard. The police discovered evidence which suggested that Mr. Woodard had no money on September 2. Greg Totty, a friend of Woodard’s, told the police that on Tuesday, September 2, he did not have enough money to purchase a dog that he wanted, but that he had requested the seller of the dog to wait until Friday. He also told Totty that, “I’m flat broke”; he did not have enough money to buy Totty a coke. Nancy Utley, the owner of a local tavern in Harrisburg, stated that Billy Woodard wrote two hot checks totaling $50,00 during the month of August. She said that she spoke with Mr. Woodard about the checks on September 2 and that he told her he had no money to cover the checks. Ms. Utley also spoke with Woodard’s wife, Lena, who also told her on September 2 that they had no money to cover the checks. Because of the hot checks, a warrant was issued for Woodard on September 2. Floyd Smith, an acquaintance of the petitioner’s, stated that Woodard called him on August 31 and said that he needed $150.00 to pay off a gambling debt. Woodard was alleged to have said that his creditors “were going to get him” if he did not come up with the money. Smith refused his request for a loan. Woodard repeated his request on September 1 and Smith again refused. He stated that Woodard appeared “shook up.” The investigation also uncovered evidence that the petitioner was spending money on September 3 and the following days. Leroy Baker, the humane officer with the Jonesboro City Pound reported that Billy Woodard bought three dogs, for a total of $27.00, on September 3. He also stated that Woodard bought another dog from him on September 5 for $9.00. Frank Ray, an employee of Wood Ford in Trumann, said that the petitioner was at Wood Ford for approximately 1.5 hours on September 3 in the middle of the morning. He said that Woodard bought him a coke, breaking a five dollar bill to do so. Another Wood Ford employee, Melba Wood, reported that Mr. Woodard paid $10.30 for a tuneup of his truck on September 3 and left just before noon. Several witnesses at the “Rib House”, a tavern in Trumann, said that Billy Woodard was buying beers for “everybody”, on the afternoon of September 3. According to one witness, he spent at least $4.00 or $5.00. Kelly Walters, a neighbor of Woodard’s, reported that he sold a .25 automatic pistol to the petitioner on September 5 for $30.00 or $35.00. He stated that Woodard offered to pay for the pistol with a $100 bill, but that he (Walters) did not have the proper change. He reported that Woodard returned later with the correct change. John Paul Noble, another neighbor of Woodard’s, said that on the evening of September 3 or September 4, he went with the petitioner to the A & G grocery store in Trumann and changed a $100 bill for him. He then went to the “Wagon Wheel”, a tavern, and played games and drank beer. After that, Noble reported that they went back to their trailer park where the petitioner purchased a pistol from another man. Bruce Zitzelber, a friend of the petitioner’s, saw the petitioner spend $11.00 or $12.00 at the TG & Y store in Trumann on September 5 for a purse for his wife and a toy for a little boy. Some evidence was uncovered that Woodard had other sources of income. Lena Woodard reported that her husband sold a dog on September 3 for $10.00 to $15.00. She said that he used that money to buy gas for his truck. She said that Mr. Baker paid him $10.00 for his work on the truck. She said that Woodard told her that he got parts for his Volkswagon at Stinger Sam’s on September 3 by trading in a gauge. She reported that Woodard told her that he had received $25.00 for selling dogs. Donna Skaggs, a wife of a friend, reported that on September 1 her husband traded a Volkswagon to Woodard for an organ, and that Woodard was due $75.00 on the transaction. This payment was made on September 6. Woodard had come by several times to collect his debt, but had been unable to find Mr. Skaggs at home. Bufford Moody told the police that on August 31 he bought a dog from Woodard and paid him $15.00. Greg Totty stated that Woodard had some money (“quite a few bills”) on his person on the evening of September 3. He told Totty that he got the money from selling dogs. In addition to checking Mr. Woodard’s financial situation, the police began investigating Woodard’s story for verification. A few discrepancies were discovered. Woodard had told the police that he arrived at Wood Ford at 2:10 p.m. and left at 3:00 p.m. The witnesses at Wood Ford referred to above said that he arrived sometime during mid-morning and left shortly before noon. The police could find no evidence that Mr. Woodard had been at Luke’s Welding Shop with Mr. Baker on the morning of September 3. Luther Weeks, the owner of the shop, reported that he was there continuously from 8:30 a.m. on and never saw the two. His daughter, the only other person at the shop, could not remember anyone honking a car horn, or looking out the window to see who it was. The police attempted to find a coon hunter in Imboden named Stroud, Shroud or Stout with a truck that matched the description given by Woodard. No such person could be found. Lt. Odom attended a meeting of a “swim dog” club in Imboden. No one could be found that matched the description, nor did any of the members of the club know of such a person. The blue or green Ford described by Woodard could not be located. Bill Cato, the owner of Cato’s animal clinic, said that he closed his business on Wednesdays, and that Billy Woodard, a frequent customer, would have known that fact. Thus, Billy Woodard could not have been at Cato’s on the early morning of September 3. The police also developed evidence that the petitioner was familiar with the remote location where the body was found. Shirley Hill reported that she and her two sons went hunting with Woodard at that location on September 1. Mr. Russell Jones, the hunter who discovered the body, stated that he had hunted with Billy Woodard at the spot on a number of times. The last time they hunted there, Billy Woodard had parked the truck “right near where the body was found.” While the investigation focused primarily on Woodard, the police had some information implicating others. Mr. Baker’s son-in-law was considered a suspect because their relationship had been somewhat violent, and there were reports that Baker had once threatened him with a gun. This lead was discounted, however, when the police discovered that Baker was going to co-sign a promissory note for his son-in-law on September 3. The police also had evidence that a blue truck was seen driving erratically away from the area where the body was found on September 3. When Woodard returned from the hospital in Memphis on September 22, he was questioned “almost daily” by the police. Woodard testified that he thought they stopped him for questioning “about seven times” between September 22 and his confession of October 10. He was ordinarily stopped by the flashing lights of the police car while taking his wife to work. He continued to tell the police the same story that he had on prior occasions. On October 8, Mr. Woodard gave the police some new information. He stated that on September 2 he had gone to West Memphis to transport L.S.D. from there to Jonesboro. He claimed to have received $120.00 for participating in this narcotics transaction. Lt. Odom testified that this story of a drug transaction was investigated but could not be verified. Woodard claimed at the time that the $100 bill given to John Paul Noble to cash was from this transaction. After his statement on October 8, Woodard agreed to accompany Sheriff Johnson to the State Police Headquarters in Little Rock for a polygraph examination. Prior to the test, Woodard became ill and was hospitalized at the VA Hospital in Little Rock, and no polygraph examination was ever conducted. On the morning of October 10, 1975 Mr. Woodard was once again stopped by the flashing blue lights of the police car while taking his wife to work. He was instructed by the officer to follow him to the Sheriff’s office for questioning about the theft of some dog trophies. Upon his arrival at the Craighead County Sheriff’s Office at approximately 7:00 a.m., he was questioned about the Baker murder by Sheriff Johnson and Deputy Findley after being read his Miranda rights. The petitioner was given an insulin shot prior to any questioning. Sheriff Johnson called Lt. Odom in Wynne. Odom arrived in Jonesboro and began questioning the petitioner about the murder at approximately 11:15 a.m. Shortly before noon, Woodard was taken to the “I.D. Section” where he was fingerprinted and photographed. He was then placed in an unmarked police car, and went with Odom and Findley for lunch at a drive-in restaurant. After lunch the three drove to the location in Payneway where the body was found. They arrived at the scene at 1:18 p.m. After being readvised of his rights, petitioner was shown a series of photographs of the body at the scene. The officers discussed the crime and the circumstances with Woodard. At approximately 1:40 p.m. the petitioner began relating a version of the crime and confessed to the murder. Lt. Odom wrote out a ten-page statement of the petitioner’s story and he signed it at 4:28 p.m. Billy Woodard related that he arrived at Mr. Baker’s house at 9:30 or 10:00 a.m. on September 3 to work on Mr. Baker’s truck. He stated that he arrived at the Baker residence in his Volkswagen, which had his 12 gauge shotgun lying between the bucket seats of the car. The shotgun shells were in a pocket of the car door. After eating watermelon with Mr. Baker and changing the wires on his truck, Woodard stated that he and Mr. Baker drove to Luke’s Welding Shop to get a dwell meter. Discovering no one at Luke’s, the two returned to Baker’s house. After regaging the plugs on the truck, Billy Woodard stated that he then test drove the truck by himself. He was gone for a few minutes and then returned. Woodard then recalled that Baker had earlier mentioned wanting to buy a house trailer. He claimed that he told Baker that he knew where there was a trailer for sale, and persuaded Mr. Baker to go with him to look at it. Mr. Woodard then related the facts of the drive to the scene where the body was found at Payneway. He described a car for sale at a particular car lot. He stated that the car would be expensive. Mr. Baker was alleged to have said that money would be no problem to him, and he then revealed a fold of money with a $100 bill showing. Woodard stated that it was at that point that he first thought of taking his money. Woodard then described in detail the back roads he took before reaching a point where his car ran out of gas. He stated that he went to the trunk of his car to get a jug of gasoline. While he was pouring the gas, he stated that Mr. Baker got out of the car to go sit under a shade tree. Woodard then claimed to have taken his shotgun (while Baker was still walking away from him), and shot Mr. Baker once in the left back. He stated that Baker fell to the ground moaning and crawling away from him. Woodard then stated that he moved close to Baker and shot him in the back again. When he continued to moan, Woodard stated that he shot once more in the side of the head. He then stated that he drug the victim by the feet (causing his shoes to come off) into the woods. Woodard then stated that he picked up the shotgun shells, the victim’s wallet, and his shoes, and put them in the floorboard of his car. He stated that he threw Baker’s glasses into an adjacent bean field. On his return trip, he stated that he threw the wallet (after taking its contents), the shoes, and the shotgun shells into a drainage ditch. After his confession, Billy Woodard was placed in the custody of Sheriff Gerald Crawford of Poinsett County. After spending that night in jail, Mr. Woodard gave two more statements the following day, essentially identical to the one given on the 10th. One statement was given to Deputy Walker and recorded. The other was written in long hand by Sheriff Crawford. Also on October 11, the petitioner accompanied the police to a floodway ditch near the location where the body was discovered. It was in this ditch that Mr. Woodard stated that he threw the victim’s wallet, shoes, and the expended shotgun shells. While at the scene, Woodard spoke with a television reporter about the circumstances of the crime, and expressed some remorse for having committed the murder. On the basis of all of the facts and circumstances known to the police on the morning of October 10, the Court concludes: (1) that a reasonably competent attorney would not have been obligated, under the applicable constitutional standards, to raise a Fourth Amendment challenge to the petitioner’s confessions; and (2) that the petitioner was not materially prejudiced by his attorney’s failure to make that challenge. In sum, the Court concludes that there was probable cause to arrest the petitioner. The Court’s conclusion is based primarily on the fact that the petitioner was the last person seen with the victim alive. After a month of investigation, law enforcement authorities from three jurisdictions could not locate any other person who had any contact with the victim after Mr. Woodard. A number of courts have found probable cause based on similar circumstances. In Bishop v. Wainwright, 511 F.2d 664 (5th Cir.1975) the petitioner was convicted of murder and sentenced to death. His petition for a writ of habeas corpus was denied. Both the U.S. District Court for the Southern District of Florida and the Fifth Circuit Court of Appeals rejected the petitioner’s contention that his warrantless arrest was without probable cause. The Fifth Circuit concluded that probable cause existed on. the following facts: the petitioner was the last person seen talking to the two murder victims; he later told a friend he had seen two corpses in the woods; and he led that friend to the place where the bodies were found approximately two weeks after the murders. The Court does not accept the petitioner’s argument that the statement of Ona Downs indicates that he was not the last person seen alive with Mr. Baker. She stated that she thought she saw Mr. Baker driving his truck by himself at 10:00 or 10:30 a.m., which would have been after the time when Woodard claimed to have left the Baker residence. She stated, however, that she was not sure that it was Baker, and that it was unusual that he did not wave or honk as he normally did. The police could have concluded that Ms. Downs was confused as to time, and that it was actually Woodard driving the truck, as Woodard himself admitted he had done. While Mr. Baker was a 65 year old gentleman and Mr. Woodard was, as petitioner’s brief describes him, a “long-haired teenager” (actually Billy Woodard was 22 at the time), the perception of eyewitnesses is often questionable, a fact that the police were well aware of. The fact that there was a single person driving Mr. Baker’s truck may have triggered the perception in Ms. Downs that it was in fact Mr. Baker driving. In any event, even if construed in the light most favorable to the petitioner, Ms. Downs’ statement does not establish that .anyone else was seen with Mr. Baker. While the fact that Woodard was the last person seen with Baker might not have been enough, by itself, to establish probable cause, taken along with the other facts and suspicious circumstances it sufficed to establish the reasonable grounds necessary for such a finding. Foremost among these facts were the incriminating financial circumstances. Mr. Woodard was desperate for money on September 2, and had money to spend on September 3. He had a $100 bill in his possession which he requested that another person cash for him. To be sure, the petitioner came up with some explanations for his new found wealth. In determining probable cause, however, the police are entitled to weigh the evidence, including assessing the credibility of the witnesses. Common sense must be applied to determine what is the likely truth. The process (for determining probable cause) does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. Illinois v. Gates, - U.S. -, -, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983) (quoting, United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). A “common-sense conclusion about human behavior” would certainly permit the police to conclude that Billy and Lena Woodard’s explanations were untrue and self-serving. It was certainly common sense to disbelieve them in light of the suspicious circumstances related by Floyd Smith and John Paul Noble. Also relevant to the determination of probable cause was the fact that the petitioner was familiar with the remote isolated area where the body was found. Indeed, Woodard had been to that very spot the day before the murder, a fact which he initially denied upon questioning by Sheriff Johnson on September 7. See, e.g., United States v. Skinner, 412 F.2d 98 (8th Cir.1969), cert. denied, 396 U.S. 967, 90 S.Ct. 448, 24 L.Ed.2d 433 (Probable cause existed where the defendant was observed by police officers in the geographic vicinity of the robbery, and matched the general physical description of the suspect). In addition, the petitioner was in possession of the same type of weapon that was used in the murder. See, Hairston v. Peyton, 282 F.Supp. 907 (W.D.Va.1968) (Probable cause existed where the defendant had been in the vicinity of the crime and possessed a knife fitting the description of the one used in the crime). The police were also entitled to rely on the fact that some of the information given by Woodard concerning his whereabouts on September 3 could not be verified. A Mr. “Stroud” or “Shroud” could not be located in Imboden. The petitioner’s explanation of the time spent at Wood Ford did not check out with the statements of the employees there. No one saw Woodard and Baker together at Luke’s Welding Shop. While some of those inconsistencies are not necessarily inculpatory, and while the police are not entitled to base probable cause solely on the basis of the failure of their investigation to turn up exonerating evidence, those discrepancies must be considered along with the totality of the other circumstances. The petitioner’s argument that the police themselves did not believe they had probable cause on October 10 is not relevant to this analysis. The subjective view of the police is not in question. The inquiry on habeas review is whether the objective facts known to the police at the time suffice to constitute probable cause. Ricehill v. Brewer, 459 F.2d 537, 539 (8th Cir.1972). Furthermore, three different jurisdictions were involved, with all three conducting separate interviews of witnesses. “In order for an officer to have probable cause to make an arrest ... it is not necessary that he have personal knowledge of all items of information which taken together constitute probable cause. The court looks to the collective knowledge and information of all of the officers involved.” United States v. Rose, 541 F.2d 750, 756 (8th Cir.1976). Finally, the Court considers as only marginally relevant the petitioner’s evidence that other leads were not traced. While that may be a criticism of the conduct of the investigation, and may be evidence which could be introduced at trial to attempt to persuade the jury that the petitioner was not the man who committed the murder, it does not bear directly on the evidence which pointed to Billy Woodard. After careful review of all of the information available in the investigative file, the Court concludes that probable cause existed for Woodard’s arrest. While in hindsight it probably would have been advisable for Woodard’s trial counsel to raise the Fourth Amendment issue on the slim chance that such a claim might be successful, counsel was not constitutionally obliged to raise such a claim. Every trial presents a myriad of possible claims. Counsel might’ have overlooked or chosen to omit (a particular claim) while pursuing other avenues of defense. We have long recognized, however, that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim. Engle v. Isaac, 456 U.S. 107, 133, 102 S.Ct. 1558, 1574, 71 L.Ed.2d 783, 50 U.S.L.W. 4376, 4383 (1982). III. INEFFECTIVE ASSISTANCE OF COUNSEL — FAILURE TO INVESTIGATE THE PETITIONER’S MEDICAL CONDITION As noted, Billy Woodard was and is a diabetic. He argues that his trial counsel was ineffective in failing to investigate the precise nature of his disease as it related to various defenses and trial strategies. Specifically, he maintains that his diabetes could have affected his mental state at the time of any alleged murder, that the emotional state produced by his diabetes rendered his confessions involuntary, and that the nature of his disease would have been important mitigating evidence at the penalty phase of the trial. Mr. Woodard was represented at trial by Mr. Burk Dabney, court-appointed counsel. Mr. Dabney filed a motion to suppress all the confessions as involuntary. That motion did not raise the issue of Mr. Woodard’s diabetes. Mr. Dabney’s challenge to the confession was based on the petitioner’s story that he was physically abused and threatened by Odom and Findley on October 10. Woodard did not inform his attorney that his diabetes contributed to the breakdown of his will on that day. Mr. Dabney did not attempt to obtain his client’s-medical or hospital records. He did, however, telephone Woodard’s physician, Dr. John Faris of Jonesboro. Mr. Dabney testified at the habeas hearing that he inquired of Dr. Faris about Mr. Woodard’s diabetes, and the effect of that disease on his involvement in the offense charged. Mr. Dabney testified that Dr. Faris told him that his testimony would be of no help to the petitioner, and would in fact hurt his case. Mr. Dabney did not follow up on any further inquiry of Dr. Faris. Dr. Faris testified in this case by way of deposition. He stated that he remembered the telephone conversation with Mr. Dabney, but had absolutely no recollection of what was said. He did not remember, as petitioner’s counsel tried to suggest, that he asked Mr. Dabney to drop by his office for a personal in depth interview. Dr. Faris testified that during the time that he treated Mr. Woodard, he found nothing to indicate that his diabetic condition had any drastic effect on his mental state, including those times when his condition deteriorated to ketoacidosis, requiring hospitalization. Dr. Faris testified that he was familiar with diabetics, and had treated a number of them. He stated that he was also familiar with the physical and emotional states induced by hyperglycemia (high blood sugar) and hypoglycemia (low blood sugar). He acknowledged that it was difficult for lay persons, and even physicians to recognize when a diabetic was suffering from these extreme conditions. It was his opinion that patients can recognize the onset of these conditions. He stated that Billy Woodard recognized them to the extent that he knew when to check into the hospital. Dr. Faris testified that he did not like Mr. Woodard as a person. He characterized him as a man with poor judgment, a character trait which he said was totally unrelated to his diabetes. He testified that the petitioner had a bad temper, and often refused to follow his (Dr. Faris’) medical advice, particularly with regard to his diet. He also testified that Billy Woodard never paid his bills. He noted that when Mr. Woodard suffered from severe ketoacidosis, he would become more “agitated.” At the hearing on Mr. Woodard’s motion to suppress, he testified that he did not commit the murder. He claimed that he was physically beaten and that his life was threatened by Deputy Findley on October 10. It was his testimony that the statements given to the Poinsett County authorities on the following day were made out of fear that a contrary statement would place him back in the hands of the Craighead County Sheriff’s Department, where he feared for his life. Mr. Dabney asked him about his interrogation without food or insulin on September 7, and his subsequent hospitalization on September 8. Mr. Woodard testified that he was given his insulin shot on October 10, and was given lunch. He also noted that he had suffered a severe diabetic reaction while incarcerated in the Poinsett County Jail. He did not testify that his diabetic condition affected his mental state on October 10. Mr. Dabney offered no expert medical testimony in support of that position. Both Lt. Odom and Deputy Findley denied that Mr. Woodard was in any way threatened or abused on October 10. Sheriff Crawford and Deputy Walker testified about the statements made by the petitioner on October 11. Both testified that Woodard promptly informed them that Odom and Findley “had been mean” to him. Sheriff Crawford testified that he didn’t think that Woodard told him that he had been beaten, only that he was afraid of the two officers. Neither Crawford nor Walker testified that Woodard mentioned anything about his mental state or diabetes, on the previous day. The trial judge, the Honorable Gerald W. Pearson, ruled at the conclusion of the hearing that the confessions were voluntary and could be admitted into evidence. At trial Mr. Woodard testified and told essentially the same story that he did at the suppression hearing. He testified once again about the deprivation of insulin on September 7, and his frequent hospitalizations (including the two weeks following September and the hospitalization in Little Rock on October 8). Mr. Dabney elicited testimony from Mr. Woodard to the effect that his illness was the cause of his inability to hold a steady job. All statements made by Mr. Woodard, including the statement made to a television reporter on October 11, were introduced. The jury returned a verdict of guilty. At the penalty phase of the trial, Mr. Woodard did not testify. Mr. Dabney called two witnesses, both aunts of the petitioner. Both testified that Billy Woodard was a peaceful person and was not a “troublemaker.” Both noted that he served in the Army, and both noted that he was a diabetic. One of them described the effect of the diabetes on the petitioner’s behavior, and testified that sometimes he “did not act like himself.” At the evidentiary hearing on the petition before this Court, the petitioner called Dr. Stephen Leichter. Dr. Leichter practices medicine at the University of Kentucky Medical Center, specializing in the treatment of diabetes. He is the medical director of the Kentucky Diabetes Center and the Kentucky Diabetes Foundation. He was accepted by the Court as an expert. He testified that Billy Woodard was and is a “type I” diabetic — juvenile onset with an absolute deficiency in the production of insulin. He stated that Mr. Woodard must have regular doses of insulin to avoid a hyperglycemic crisis (where the blood sugar is too high). He testified that Mr. Woodard was maintained on NPH insulin which delays the onset of insulin action — the patient feels the effect of the insulin within 2 to 4 hours. If the insulin is not received, then the blood sugar increases and a person with type I diabetes can suffer from ketoacidosis — a condition brought about by hyperglycemia, high blood sugar. According to Dr. Leichter, a hyperglycemic crisis can affect the patient’s mental state and decrease one’s alertness. The patient may become irritable, cross, and less tolerant. He also stated that patients in such a condition can exhibit abnormal behavior. Dr. Leichter noted the example of a patient who refused to take her insulin, and slapped her husband when he tried to counsel her. Dr. Leichter’s testimony regarding the petitioner was based on his examination of the petitioner’s medical records. His examination of the records prior to 1975 led him to the conclusion that Billy Woodard had uncontrolled diabetes; he often had high blood sugar which resulted in severe hyperglycemia. He characterized Mr. Woodard as a “brittle diabetic”- — one with wide uncontrolled swings in blood sugar levels. He testified that when the petitioner was admitted to the VA Hospital in Memphis on September 8, 1975, he was suffering from ketoacidosis and was diagnosed as a poorly controlled type I diabetic. With respect to his hospitalization in Little Rock on October 8, he stated that Mr. Woodard was released with “unresolved acedosis.” With respect to the confession of October 10, he noted that Mr. Woodard’s insulin shot was delayed until approximately 10:00 a.m., that he received NPH insulin which was not fast acting, and that it was therefore “likely” that Billy Woodard was suffering from abnormally high blood sugar during the afternoon hours of October 10. He testified that this “possibly” could have had an effect on his mental state which would not necessarily have been evident to observers. Moreover, Dr. Leichter testified that the onset of the condition would not necessarily have been evident to Mr. Woodard. He stated that patients often become accustomed to the feelings of disorientation and emotional instability. Dr. Peter Kohler testified for .the respondent. He is the current chairman of the University of Arkansas Medical School. He was accepted by the Court as an expert. He testified that patients with high blood sugar suffer from lethargy, nausea and extreme irritability. He indicated that a number of patients have observable physical symptoms while others do not. It was his opinion that violent behavior may be induced by extremely low blood sugar, hypoglycemia, but not by high blood sugar. He testified that in the medical records available, there was only one instance of hypoglycemia in Mr. Woodard’s history. Dr. Kohler acknowledged that hyperglycemia can lead to confusion and disorientation, and that the stress of interrogation can worsen the effects. On the basis of all the evidence, the Court concludes that Mr. Dabney’s investigation and presentation of Mr. Woodard’s medical condition did not fall below the standard of a reasonably competent attorney. Even if it could be said that trial counsel breached some duty to his client, it is clear to the Court that no prejudice resulted. The Court bases its conclusions on the following pertinent facts: (1) Mr. Woodard never informed his attorney that his medical condition contributed to his involuntary confession; (2) Dr. Faris’ observation and treatment of Mr. Woodard suggested to trial counsel that such a defense was not advisable; (3) Mr. Dabney did inquire of Dr. Faris about the possibility of raising such a defense; and (4) Mr. Dabney did elicit testimony from Mr. Woodard about the effects of his diabetes and his frequent hospitalizations. While it is evident that testimony such as Dr. Leichter’s would have been helpful to Mr. Woodard’s case, the Court is doubtful that Judge Pearson's ruling on the admissibility of Mr. Woodard’s confessions would have been any different had he heard such testimony. While Dr. Leichter indicated that the effects of hyperglycemia might contribute to the breakdown of a particular patient’s will, there was nothing in his testimony to establish that a diabetic would confess to a murder which he did not commit because of the effects of the disease. The petitioner argues that he need not conclusively establish prejudice, but must only prove “the existence of admissible evidence which could have been uncovered by reasonable investigation and which would have proved helpful to the defendant either on cross-examination or in his case in chief in the original trial. Once this showing is made, a new trial is warranted unless the Court is able to declare a belief that the omission of such evidence was harmless beyond reasonable doubt.” McQueen v. Swenson, 498 F.2d 207, 220 (8th Cir.1974). The instant case does not present a case such as McQueen where the alleged incompetence was the failure to discover certain exculpatory information relating to the facts of the crime. The Court here is faced only with trial counsel’s failure to seek expert assistance, for it is clear that Mr. Dabney knew about the petitioner’s diabetes, and made some inquiry about the circumstances of that disease both at the suppression hearing and at trial. In Knott v. Mabry, 671 F.2d 1208 (8th Cir.1982) the Court of Appeals ruled that trial counsel was not ineffective for failing to seek expert assistance to rebut crucial evidence presented by the State Toxicologist. That evidence constituted a substantial portion of the case against the petitioner, and was the only direct evidence linking him to the scene of the crime. The defense counsel chose to limit his cross-examination of the toxicologist to common-sense factual inquiries that he testified were designed to better appeal to a jury. The Eighth Circuit reversed this Court’s grant of the writ of habeas corpus. Although petitioner’s trial counsel probably should have increased his knowledge of the relevant scientific techniques and principles by consulting an expert ... we have difficulty in light of the existing record holding that counsel’s representation was constitutionally inadequate. Human nature is such that most people think they have a better understanding of the demands of an event after it has happened. Trial of law suits is peculiarly susceptible to hindsight appraisal of another lawyer’s endeavors. Id. at 1212. Here trial counsel investigated the medical condition of the petitioner to the extent of questioning his treating physician. When that physician did not offer any helpful information, Mr. Dabney did not pursue the matter further. Mr. Dabney did not testify that there was any strategic reason why he chose not to pursue any expert medical assistance, only that he considered the matter of petitioner’s diabetes essentially a non-issue. The Court cannot say that counsel is constitutionally obliged to inquire further than the defendant’s treating physician. This is particularly true when it is realized that had Mr. Woodard called someone like Dr. Leichter to testify, the State would no doubt have called Dr. Faris to the Stand. He would have given the generally unfavorable report that he gave in his deposition. The issue is much closer with respect to trial counsel’s failure to seek expert medical assistance in the penalty phase. Mr. Dabney did raise the issue of Woodard’s diabetes during the penalty phase. He introduced the testimony of the two aunts, and argued the disease as a mitigating circumstance. While expert testimony would have aided his argument, the Court concludes that trial counsel’s failure to elicit such testimony is not a sufficient basis to vacate the death penalty. This is not a case like Neal v. State, 274 Ark. 217, 623 S.W.2d 191 (1981) in which the Arkansas Supreme Court vacated the death penalty because trial counsel failed to pursue at the penalty phase evidence of diminished mental capacity. In that case the defendant allegedly suffered from organic brain syndrome and raised the defense of insanity at trial. Here, the defendant did not raise the defense of mental disease or defect at trial. Indeed, that defense would have been somewhat inconsistent .with defendant’s theory that he did not commit the murder, but was instead coerced into confessing. Mr. Dabney offered his client’s medical condition as a mitigating circumstance. The Court concludes that where counsel has no reason to believe that the disease rises to the level of a “mental disease or defect” as was the case in Neal, he has not rendered ineffective assistance by failing to produce expert testimony at the penalty phase of the trial. Here, not only would the theory of a mental disease or defect conflict with the petitioner’s defense, but the report of the state psychiatrist who examined Mr. Woodard after his arrest mentioned nothing about the effect of his diabetes on his mental state. Based on those circumstances, the Court concludes that Mr. Dabney was not ineffective in failing to proffer expert medical testimony on the issue of Mr. Woodard’s diabetes. IV. INEFFECTIVE ASSISTANCE OF COUNSEL — FAILURE TO CALL ALIBI WITNESSES The petitioner argues that his trial counsel was ineffective for failing to call two alibi wi