Brower v. Secretary for Department of Corrections , 137 F. App'x 260 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 04-14963 FILED
Non-Argument Calendar U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
June 24, 2005
D. C. Docket No. 00-14015-CV-DLG THOMAS K. KAHN
CLERK
RICHARD MARION BROWER,
Petitioner-Appellant,
versus
SECRETARY FOR THE DEPARTMENT
OF CORRECTIONS, Secretary of Florida
Department of Corrections,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 24, 2005)
Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.
PER CURIAM:
Richard Brower appeals the district court’s denial of his petition for writ of
habeas corpus, brought pursuant to 28 U.S.C. § 2254. Brower was convicted of
murder by a jury in a Florida state court. His conviction was affirmed on direct
review and his petition rejected by state collateral proceedings. On appeal,
Brower raises six arguments, which we will address in turn.
I. Standard of Review
As amended by AEDPA, 28 U.S.C. § 2254 states:
(d) An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.
According to Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000),
Under the “contrary to” clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached
by this Court on a question of law or if the state court decides a case
differently than this Court has on a set of materially indistinguishable
facts. Under the “unreasonable application” clause, a federal habeas
court may grant the writ if the state court identifies the correct governing legal
principle from this Court's decisions but unreasonably applies that principle to the
facts of the prisoner's case.
Id. at 412-13, 120 S. Ct. at 1523. The phrase “clearly established Federal law,” as
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that term appears in section 2254(d)(1), “refers to the holdings, as opposed to the
dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court
decision.” Id. at 412, 120 S.Ct. at 1523. Furthermore, a habeas petitioner can
overcome a state court's “presumption of correctness” on factual determinations
only by coming forth with “clear and convincing evidence.” 28 U.S.C. §
2254(e)(1).
As a general rule, in reviewing a district court's grant or denial of a habeas
petition, we review the district court's findings of fact for clear error, and review
de novo both questions of law and mixed questions of law and fact. Nyland v.
Moore, 216 F.3d 1264, 1266 (11th Cir. 2000). In this case, because the district
court “neither held an evidentiary hearing nor made any independent findings of
fact[,]” we review its holdings de novo, mindful that “we (like the district court)
are reviewing, in essence, [the] decision[s] of the courts of [Florida].” Putman v.
Head, 268 F.3d 1223, 1240 (11th Cir. 2001).
II. Discussion
A. Deprivation of a Fair Trial Because of Jury Misconduct
Brower argues that he was deprived of a fair trial because of jury
misconduct when they were being impaneled and when the trial court denied his
motion to dismiss the entire jury pool based on the comments made by members
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of the panel. Specifically, a friend of Brower’s overheard potential jurors’
comments that suggested they already had decided he was guilty. He also points
to incidents of juror misconduct that took place during the trial: two jurors had
conversations with State witnesses, one juror was seen reading a newspaper with
coverage of the trial on the front page, and the husband of one juror was present
during all of the proceedings, even during times when the jury was not present.
Brower argues that his case is similar to United States v. Heller, 785 F.2d
1524 (11th Cir. 1986), where this Court granted a new trial because members of the
jury had made anti-Semitic remarks during the trial that suggested they were
impartial. The trial judge learned of the remarks after the jury had been
deliberating for one day. In response, the judge questioned each of the jurors
individually about what occurred and asked each individually if, in light of what
had occurred in the jury room, he or she would be able to reach a decision based
on the evidence and the law. After all had said that they could, he reconvened the
jury and asked them to confirm their earlier promises. This Court rejected the
trial judge’s handling of the matter, determining that merely asking the jurors what
the remarks were and if they were affected by prejudice, without probing into the
nature of the remarks, meant that it was not possible to know the extent of
prejudice displayed. 785 F.2d at 1527. Even though the remarks may have been
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intended as humor, the individuals making them and those laughing at them
“displayed the sort of bigotry that clearly denied the defendant Heller the fair and
impartial jury that the Constitution mandates.” Id. The Court also held that
reversal could be granted in the alternative on the basis of one juror’s remark to
another that the defendant was guilty, before the defense had even presented its
case, and on a general presumption of guilt among many of the jurors. Id. at 1528.
Again, the Court emphasized the trial court’s lack of probing investigation during
the voir dire. Id.This Court has described the amount of discretion available to the trial
judge regarding jury impropriety as being very broad.
The most salient aspect of the law in this area is the breadth of
discretion given to judges who are called upon to deal with the
possibility of juror misconduct. District court judges deal with jurors
on a regular basis, and those judges are in the trenches when
problems arise. The problems that present themselves are seldom
clearly defined and a number of variables have to be considered.
There are often no obviously right or wrong answers to the questions
that arise. For all of these reasons, a trial judge is vested with broad
discretion in responding to an allegation of jury misconduct, and that
discretion is at its broadest when the allegation involves internal
misconduct.
United States v. Dominguez, 226 F.3d 1235, 1246 (11th Cir. 2000).
We cannot conclude that the trial court abused its discretion in the manner
in which it dealt with the potential jurors. First of all, the situation is different
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here than it was in Heller. When the issue of the inappropriate comments was
raised to the trial court by Brower’s friend, the court began questioning
individually the potential jurors identified. Not only were they asked about what
they said but what was said by others. The court heard testimony from the deputy
clerk, who reported that she had not heard any remarks suggesting that the
potential jurors had already made up their minds about Brower’s guilt but had
noticed that the group did not seem to be taking the matter seriously. This
conformed with the testimony of the one potential juror whom Brower’s friend
identified as making inapproprate remarks and who remained in the jury pool; the
juror testified that the group was tired and making remarks in jest about the
proceedings. Thus, unlike the judge in Heller, the judge here ascertained the
nature of the comments made and did not just make the bald inquiry about whether
the potential jurors were prejudiced. Instead, the judge permitted extensive
inquiry into the nature of the remarks to determine their effect. Therefore, we
agree with the district court that this situation is not like the one in Heller, and that
the trial court did not permit a biased jury to proceed.
Moreover, the inappropriate remarks in this case occurred during voir dire,
not during deliberations, as in Heller. Because of that timing, Brower’s counsel
was able to have some of the potential jurors dismissed. Indeed, the state court
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found as a fact that “[n]one of the offending jurors served.” Brower v. State, 727
So.2d 1026, 1027 (Fla.App. 4 Dist. 1999). In addition, that court also found that
“[n]either side wanted to strike Rabbit.” Id. at 1026.1 There is no clear and
convincing evidence that these findings of fact are erroneous.
Likewise, the trial court’s handling of the other incidents of juror
misconduct were not an abuse of discretion. The court investigated each incident
and questioned the jurors who were implicated. In all cases, the court determined
that the incidents did not rise to the level of causing the jury to be rendered
impartial, and we agree. One juror was congratulated by the victim’s mother on
becoming a grandmother; this did not clearly relate to the case. Another juror
asked a witness a question about the location of the murder weapon; while this
was clearly related to the case, the witness did not reply. One juror was seen
reading a paper which contained extensive trial coverage; the juror denied reading
the article about the trial and the person who reported the incident did not testify
that she had seen the juror read the article. Likewise, Brower argues that one
juror’s husband was present during the entire trial. However, in both of these
incidents, Brower has not presented any evidence that anything untoward
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Rabbit was the only juror who actually served who was ever alleged to have made an
offending remark. And the state court found that he did not do so, and moreover, that neither
side wanted to strike him.
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occurred. The court admonished the jury not talk to witnesses or read any media
coverage. In light of the court’s attention to the reported improprieties, we cannot
conclude that the court abused its discretion or that Brower was denied a fair trial.
For all of these reasons, we cannot conclude that the decision of the state
court was either contrary to clearly established federal law, or an unreasonable
application thereof, or an unreasonable determination of the facts.
B. Ineffective Assistance of Counsel For Failure to Preserve Error
Next, Brower argues that he was denied effective assistance of counsel
when his attorney did not timely raise his claim under Coney v. State, 653 So.2d
1009 (Fla. 1995). Under Coney, a criminal defendant must be present at the bench
during the exercise of peremptory challenges or must expressly waive that right.
Brower’s attorney neglected to raise the issue until after the trial concluded and
Brower was found guilty. Only in a motion for new trial did Brower’s attorney
make the argument. On direct appeal, the court of appeals granted Brower a new
trial on that issue, but the Florida Supreme Court reversed that decision because
Brower had not preserved the error. Brower argues that this failure to preserve
constituted ineffective assistance of counsel and that this court should use the
analysis found in Davis v. Secretary for the Department of Corrections, 341 F.3d
1310 (11th Cir. 2003), when analyzing the prejudice prong of the Strickland
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analysis.
In order to succeed with a challenge based on ineffective assistance of
counsel, a petitioner has to satisfy a two-part test. First, the petitioner must show
that counsel’s performance was deficient. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064 (1984). This means that the petitioner must show
that the representation provided by counsel was outside the “wide range of
competent assistance” and he must also overcome the presumption of competence.
Id. at 690, 104 S.Ct. at 2066. In analyzing counsel’s competence, the court must
apply a “heavy measure of deference to counsel’s judgments.” Id. at 691, 104
S.Ct. at 2066. Second, the petitioner must show that the performance prejudiced
the defense, so that the result of the trial is not reliable. See id. To satisfy this
test, the defendant “must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694, 104 S.Ct. at 2068. Furthermore, “[a] reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id. Because
both parts of the test must be satisfied in order to show a violation of the Sixth
Amendment, the court need not address the performance prong if the defendant
cannot meet the prejudice prong, see id., or vice versa.
In Davis, this Court looked at the prejudice prong in light of the effect of
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counsel’s incompetence on the appeal. There, the attorney objected to the
prosecution’s exercise of its peremptory challenges to jurors based on Batson v.
Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), but failed to renew his objection
before the swearing in of the jury. By failing to renew the objection, the counsel
failed to preserve the error for review. 341 F.3d at 1312 n.3. This Court, looking
at the prejudice prong, determined that because the performance error only
affected his appeal, “the only effect of trial counsel’s negligence was on Davis’s
appeal.” Id. at 1315 (emphasis in original). Therefore, the Court did not employ
the standard Strickland prejudice inquiry of whether there was a reasonable
likelihood that the trial’s outcome would have been different had the error not
occurred, but rather looked at whether the appeal’s outcome would have been
different. Id. at 1316.
We agree with the district court that Davis is not applicable here. In this
case, Brower’s counsel did not raise the issue until after Brower was convicted,
thus denying the trial court the opportunity to remedy the error. Additionally,
Brower argued below that the outcome of the trial might have been different had
he been allowed to participate in the jury selection. Therefore, this is not a
deficiency that only affected Brower’s rights on appeal. For that reason, we do not
look to the effect of the error on Brower’s appeal but, rather, its effect on the
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trial’s outcome. Brower has not shown that the error had an effect on the trial’s
outcome, let alone a reasonable likelihood that the outcome would have been
different. Therefore, we reject this claim.
C. Ineffective Assistance of Counsel for Failure to Call Witnesses
Brower also argues he was denied effective assistance of counsel when his
trial counsel did not call two witnesses. One of the witnesses, a forensic expert,
would have provided testimony that, based on the trajectory of the bullets, the
shots must have been fired by a taller person. This witness would have also called
into question the veracity of the information gleaned from the crime scene
investigation. The other witness would have impeached the testimony of the
government’s star witness. Brower argues that he suffered prejudice because this
testimony would have undermined the government’s circumstantial evidence of
his guilt.
As discussed above, an appellant must show both incompetence and
prejudice in order to succeed with a claim of ineffective assistance of counsel. We
agree with the state habeas court and the district court that Brower cannot show
prejudice. “[T]he absence of exculpatory witness testimony from a defense is
more likely prejudicial when a conviction is based on little record evidence of
guilt.” Fortenberry v. Haley, 297 F.3d 1213, 1228 (11th Cir. 2002) (rejecting
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petitioner’s ineffective assistance of counsel argument on lack of prejudice
grounds despite “no conclusive forensic or eyewitness evidence” because of
petitioner’s “multiple uncoerced confessions”). As the court of appeals stated on
direct appeal, Brower’s guilt was supported by “overwhelming evidence.” Brower
v. State, 684 So.2d 1378, 1378 (Fla. 4th DCA 1996). As the state habeas court
elaborated:
The Defendant made several incriminating statements to various law
enforcement officers. At the time that he was taken into custody in
South Carolina, he volunteered statements that he killed the people in
Florida. When one of the police officers asked where the murder
weapon was located, Brower answered that the threw it on the couch,
and that it was same gun he used to kill Sandie and John Cassidy.
After his arrest, the Defendant volunteered another statement while
being transported to the jail facility, to the effect that the State of
Florida would “fire me up when they get me back for this.”
Opinion at 5. The court also recounted the testimony of two witnesses at trial to
whom Brower had confessed the crimes. In light of this overwhelming evidence,
we conclude Brower cannot show prejudice.
D. Ineffective Assistance of Counsel Because Counsel Changed Five Times
Next, Brower argues that he was denied effective assistance of counsel
because his defense counsel changed five times during the course of pretrial
proceedings. He argues that his four-week trial was more complex than that found
in the case relied upon by the district court, Trice v. Ward, 196 F.3d 1151, 1160
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(10th Cir. 1999). However, although Brower argues that Trice was less
complicated than his case, Trice also confessed. Additionally, the attorney’s
purported lack of preparation had no bearing on the pretrial juror misconduct and
juror misconduct during the trial. In sum, we agree with the district court that the
nine months that Smith served as counsel were sufficient. And, as mentioned
above, in light of the overwhelming evidence of guilt, Brower cannot show that
the outcome of the trial would have been different.
E. Due Process Rights Violated Because of Denial of Access to the Crime
Scene
Brower argues that his due process rights were violated when his defense
counsel was denied access to the crime scene for investigation. He disputes the
district court’s conclusion that the overwhelming evidence of guilt rendered his
lack of access to the crime scene irrelevant because “[t]he State relied heavily
upon the crime scene evidence to support its theory that Mr. Brower committed
first degree murder.” However, although the government did rely upon the crime
scene evidence, it also relied heavily upon the testimony about the multiple
confessions. That evidence rendered any evidence garnered from the crime scene
unable to create “a reasonable likelihood” of “affect[ing] the judgment of the trier
of fact.” United States v. Valenzuela-Bernal, 458 U.S. 858, 874, 102 S.Ct. 3440,
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3450 (1982).
F. Sufficiency of the Evidence
Finally, Brower argues that there was insufficient evidence presented for the
jury to find him guilty. “A conviction must be upheld unless the jury could not
have found the defendant guilty under any reasonable construction of the
evidence.” United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999). We
summarily reject Brower’s argument in light of the Florida Court of Appeals
statement that the evidence presented in this case was overwhelming.
For the reasons stated in the body of this opinion, the decision of the district
court is
AFFIRMED.2
2
Brower’s request for oral argument is denied.
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