Davis v. Branker ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2
PHILLIP ANTWAN DAVIS,
Petitioner - Appellant,
v.
GERALD J. BRANKER, Warden, Central Prison, Raleigh, North
Carolina,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Frank D. Whitney,
District Judge. (1:05-cv-00029-FDW)
Argued: October 28, 2008 Decided: January 7, 2009
Before TRAXLER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished opinion. Judge Traxler wrote the
opinion, in which Judge King and Senior Judge Hamilton joined.
ARGUED: Shelagh Rebecca Kenney, CENTER FOR DEATH PENALTY
LITIGATION, Durham, North Carolina, for Appellant. Alana
Danielle Marquis Elder, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas K.
Maher, CENTER FOR DEATH PENALTY LITIGATION, Durham, North
Carolina, for Appellant. Roy Cooper, Attorney General of North
Carolina, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
TRAXLER, Circuit Judge:
Phillip Antwan Davis pleaded guilty to the capital murder
of his aunt, Joyce Miller, and cousin, Caroline Miller.
Following a capital sentencing hearing before a North Carolina
jury, Davis was sentenced to death for the murder of Joyce and
to life imprisonment for the murder of Caroline. After
unsuccessfully challenging his death sentence on direct appeal
and in state post-conviction proceedings, Davis filed a petition
for a writ of habeas corpus in federal district court. See 28
U.S.C.A. § 2254 (West 2006). Because the North Carolina Supreme
Court’s decision was not contrary to, or an unreasonable
application of established Supreme Court precedents, nor based
on an unreasonable determination of the facts in light of the
evidence presented in the state court, we affirm.
I.
In May 1996, Phillip Davis brutally murdered his aunt,
Joyce Miller, and seventeen-year-old cousin, Caroline Miller, in
the home they shared in Asheville, North Carolina. Two foster
children, ages two and four, were present in the home when Joyce
was murdered. Davis was eighteen years old and a senior in high
school at the time. The circumstances of the crimes, and the
events leading up to them, are described in detail in the
opinion of the North Carolina Supreme Court:
2
Approximately one week before the murders,
[Joyce] told her brother, Billy Davis that she was
missing $800.00. Caroline believed that defendant had
taken the money because he had recently purchased
clothing and a gold chain. [Joyce] obtained a receipt
for the clothes and returned them. Caroline was
hiding the gold chain from defendant so that she and
[Joyce] could take it to a pawn shop. Several days
before the murders, defendant stated to Caroline,
“Well, if I don’t get my chain, it’s only going to
hurt you in the long run.”
On 24 May 1996, defendant shot and killed his
cousin Caroline. On the same day, he killed [Joyce]
by shooting her and cutting her with a meat cleaver.
[Billy] Davis visited [Joyce’s] home in the evening
and found [Joyce] lying in a pool of blood. Niconda
Briscoe, defendant's girlfriend, arrived at
approximately the same time as [Billy] and called for
emergency assistance.
A paramedic with the Buncombe County Emergency
Medical Service arrived at the Miller residence at
7:32 p.m. He noted blood smeared on the outside of
the door. He discovered severed fingers on the floor
in the foyer and [Joyce's] body in a large pool of
blood. The two foster children were in the living
room looking into the foyer. As the paramedic entered
the living room to escort the children out, he
observed Caroline in her bedroom on the bed. After
checking her pulse, he determined that she, too, was
dead.
Meanwhile, between 7:30 and 8:00 p.m., defendant
attempted to cash a check in the amount of $360.00,
bearing the name of [Joyce’s] former husband, at the
Bi Lo grocery store on Hendersonville Road. The
manager refused to cash it, as she did not believe it
was legitimate. According to the manager, defendant
appeared to be “really calm.”
At approximately 8:00 p.m., defendant went to
Dillard’s in the Asheville Mall and tried on clothing
in the men’s department. The sales receipt showed
that defendant purchased six clothing items at 8:08
p.m. for $231.61 using a credit card in [Joyce’s]
name. When questioned by the cashier, defendant told
her that the credit card belonged to his aunt and that
3
she knew he was using it. Two of the items defendant
purchased were identical to the ones [Joyce] had
returned several days prior to the murders.
At 8:21 p.m., a driver for the Blue Bird Cab
Company was dispatched to the Amoco station on
Hendersonville Highway. A person matching defendant’s
description approached the driver and said, “It’s me.
I'll be with you in a couple minutes.” He returned
with two bags and asked the driver to take him to
Pisgah View Apartments.
Defendant entered unit 29-D of Pisgah View
Apartments; showed an acquaintance, Felicia Swinton,
the clothes he had purchased; changed clothes; and
left to attend a party in West Asheville. He spent
approximately twenty minutes in Swinton’s apartment
and acted “normal.”
Kendall Brown and Ryan Mills, friends of
defendant’s, heard that [Joyce] and Caroline had been
murdered and went to the party to pick up defendant.
During the ride back to the Miller residence,
defendant asked Brown if it “was ... true about the
murders” and said he “wanted to know what all had
happened.” When they arrived at the residence,
defendant sat on the curb; started crying; and said,
“Please don't let them take me.”
Later that evening, Sergeant David Shroat took a
statement from defendant at the Asheville Police
Station. Defendant first told Sergeant Shroat that he
did not know what had happened; then blamed others;
and finally stated, “My life is over; I did it.”
Defendant described the following series of
events to the detectives. Earlier in the week,
defendant found a gun in the closet and test-fired it
in the back yard. At approximately 5:30 p.m. on 24
May 1996, he entered Caroline's bedroom with the gun
in order to get his clothes. Caroline was lying on
her bed. He went to the right side of the bed,
pointed the gun at her, and fired twice. He then
walked around to the other side of the bed and fired a
third shot at her. After killing Caroline, defendant
ate a sandwich and watched television. [Joyce]
arrived at the residence at approximately 7:00 p.m.
with the two foster children. When defendant heard
4
her entering, he hid behind the door. After she
entered, defendant shot her in the back. He shot
[Joyce] only one time because he had “[n]o more
bullets.” [Joyce] attempted to reach the telephone,
but defendant pulled the cord from the receptacle.
When she tried to leave the house, he took a meat
cleaver from the kitchen and struck her with it ten or
twelve times with his eyes closed as he stood on top
of her in the foyer.
Immediately thereafter, defendant placed his
clothes in a white plastic garbage bag along with the
meat cleaver. He took two VCRs, one from Caroline's
bedroom and one from [Joyce’s], and put them in
another plastic bag along with [Joyce’s] brown purse.
He also took [Joyce’s] black purse. At approximately
7:15 p.m., he placed the two plastic bags on the front
passenger floorboard of [Joyce’s] vehicle. Defendant
then drove to the Asheville Mall, where he used
[Joyce’s] credit cards to purchase clothing.
From the Asheville Mall, defendant drove to Oak
Knoll Apartments and placed the two plastic bags in
the Dumpster. He then drove to the Amoco station,
where he threw the black purse and the gun into a
wooded area behind the station. He told the taxi cab
driver whom he had called that he would be there in a
minute, returned to [Joyce’s] vehicle, and retrieved
the shopping bags containing the clothing he had
purchased at Dillard's.
Defendant left [Joyce’s] vehicle at the Amoco
station and traveled in the taxi to Pisgah View
Apartments, where he changed clothes. He then put the
stolen credit cards and keys to [Joyce’s] vehicle in a
garbage can near Swinton’s apartment. Defendant drove
around downtown Asheville with his friend Kelby Moore
and smoked marijuana.
At 10:30 p.m., defendant arrived at the party in
west Asheville. Defendant danced for a while at the
party before Brown and Mills took him to [the Miller]
residence. Upon completing his statement, defendant
went to sleep under the table in the interview room.
The autopsy of [Joyce] revealed that she had a
single gunshot wound to the left side of the head,
amputation of two fingers, and fifteen individual and
5
clustered injuries consistent with being inflicted by
a meat cleaver. The autopsy of Caroline revealed
three separate gunshot wounds, one to the head with
stippling around the entrance wound indicating a close
range shot; one to the chest; and one to the arm.
Investigators found that Caroline's bedroom was
in disarray and that a VCR and television were
missing. A large amount of cash and some jewelry were
discovered in a book bag in Caroline’s room. In
[Joyce’s] bedroom, drawers had been pulled out and
items had been dumped on the bed. Investigators found
an empty jewelry box, a checkbook, and a box of checks
on the floor. A second VCR was missing from the
entertainment center in Miller’s bedroom. Miller’s
truck, a red Bravada, was also missing.
Police officers recovered two VCRs, jewelry,
clothes, a bloody meat cleaver, and a brown purse
containing [Joyce’s] bank cards from a Dumpster at the
Oak Knoll Apartments. Additionally, they found
[Joyce’s] credit cards in a trash bag near Pisgah View
Apartments. [Joyce’s] Bravada truck, two gloves, a
black purse, and a Colt .32 revolver with five spent
casings in the cylinder were discovered near the Amoco
station.
State v. Davis, 539 S.E.2d 243, 251-53 (N.C. 2000).
Davis pleaded guilty to two counts of first-degree murder.
At the conclusion of the capital sentencing proceeding, the jury
recommended a sentence of death for the murder of Joyce, based
upon the following aggravating circumstances: (1) that the
murder was committed by Davis while he was engaged in the
commission of armed robbery; (2) that the murder was committed
for pecuniary gain; (3) that the murder was especially heinous,
atrocious, or cruel; and (4) that the murder was part of a
course of conduct that included the commission by Davis of other
crimes of violence against other persons. At least one juror
6
found fifteen of fifty submitted mitigating circumstances, but
no juror found the existence of the submitted mitigating
circumstance that Davis had shown remorse for his conduct and
had asked for his family’s forgiveness. 1 The jury found the
mitigating circumstances insufficient to outweigh the
aggravating circumstances, and recommended a sentence of death
for the murder of Joyce. 2
1
The mitigating circumstances found were (1) that Davis’s
age was mitigating; (2) that Davis pleaded guilty with no plea
agreement or promise of leniency; (3) that Davis cooperated and
disclosed the location of the physical evidence associated with
the crimes; (4) that Davis’s mother suffered from major
depression and drug addiction, so as to render her a neglectful
and frequently absent parent throughout Davis’s childhood and
teenage years; (5) that as a consequence of his mother’s drug
addition, Davis never received any long-term and stable
nurturance from his mother; (6) that Davis was aware of his
mother’s illegal activities, including larceny, shoplifting, and
the purchase and sale of illegal drugs; (7) that Davis’s mother
did not provide proper supervision and guidance for him during
his formative years; (8) that both of Davis’s grandparents died
within one year of each other when Davis was 16 years of age;
(9) that after the death of his grandparents, no person was ever
granted legal custody of Davis; (10) that Davis was on track to
earn his high school diploma; (11) that Davis was accepted by
North Carolina A&T University; (12) that at the end of his
senior year, Davis had applied and been accepted to become a
member of the United States Air Force; (13) that Davis never had
any permanent or even long-term relationship with an appropriate
male role model; (14) that Davis has friends and family members
who still love and support him; and (15) that Davis had a
borderline personality disorder.
2
With regard to the murder of Caroline, the jury found as
aggravating circumstances: (1) that the murder was committed by
Davis while engaged in the commission of armed robbery; and (2)
that the murder was part of a course of conduct in which Davis
engaged that included the commission by Davis of other crimes of
(Continued)
7
On appeal, the North Carolina Supreme Court affirmed the
conviction and imposition of the death sentence for the murder
of Joyce, and the United States Supreme Court denied certiorari.
Davis initiated state post-conviction proceedings in May 2002,
which were denied in December 2003, and the North Carolina
Supreme Court denied certiorari.
Davis thereafter filed his § 2254 petition for federal
habeas relief. The magistrate judge issued a report and
recommendation that the petition be denied. The district court
agreed and issued an opinion denying relief, but granted a
certificate of appealability on the issue of whether the trial
court erred in excluding evidence of various correspondence
Davis mailed to his mother while he was awaiting trial. We
granted a certificate of appealability on the issue of whether
the trial court erred in submitting, as separate aggravating
violence against other persons. As mitigating circumstances,
one or more jurors found the same fifteen circumstances found in
Joyce’s case and, additionally, that Davis had no significant
history of prior criminal activity, that Davis had signed a
waiver of his constitutional rights and that Davis had a mental
age of fifteen. The jury found that the mitigating
circumstances were insufficient to outweigh the aggravating
circumstances, but that the aggravating circumstances were not
sufficiently substantial to impose the death penalty when
considered with the mitigating circumstances, and recommended a
sentence of life imprisonment.
8
circumstances, that Joyce’s murder was committed in the course
of an armed robbery and for pecuniary gain.
II.
We review the district court’s denial of federal habeas
relief on the basis of a state court record de novo. See Tucker
v. Ozmint, 350 F.3d 433, 438 (4th Cir. 2003). However, because
the state court adjudicated Davis’s claims on the merits, we
review the matter in light of the limits on federal habeas
review of a state conviction that are imposed by 28 U.S.C.A.
§ 2254(d). When a habeas petitioner’s constitutional claim has
been “adjudicated on the merits in State court proceedings,” we
may not grant relief unless the state court’s adjudication
“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
“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.” 28 U.S.C.A. § 2254(d).
A state court’s decision is contrary to clearly established
federal law under § 2254(d) where it “applies a rule that
contradicts the governing law set forth” by the United States
Supreme Court or “confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and
9
nevertheless arrives at a result different from [that]
precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A
state court’s decision involves an unreasonable application of
clearly established federal law “if the state court identifies
the correct governing legal rule from [the Supreme] Court’s
cases but unreasonably applies it to the facts of the particular
state prisoner’s case.” Id. at 407. Factual determinations
made by the state court “shall be presumed to be correct,” and
“[t]he applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.”
28 U.S.C.A. § 2254(e)(1) (West 2006).
Finally, even if constitutional error occurs, habeas relief
will only be granted if the trial error “had substantial and
injurious effect or influence in determining the jury’s
verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
(internal quotation marks omitted). However, “[i]f we are in
‘grave doubt’ as to the harmlessness of an error, the habeas
petitioner must prevail.” Fullwood v. Lee, 290 F.3d 663, 679
(4th Cir. 2002) (quoting O’Neal v. McAninch, 513 U.S. 432, 436
(1995)). Such “‘[g]rave’ doubt exists when, in light of the
entire record, the matter is so evenly balanced that the court
feels itself in ‘virtual equipoise’ regarding the error’s
harmlessness.” Id. (quoting O’Neal, 513 U.S. at 435).
10
III.
A.
We begin with Davis’s claim that his constitutional rights
were violated by the state court’s denial of his motion to
admit, as mitigating evidence, correspondence that Davis sent to
his mother, Phyllis Davis, while he was incarcerated and
awaiting trial for the murders of Joyce and Caroline. 3
1.
Davis did not testify during the sentencing proceeding, but
he called a number of family members and friends, as well as Dr.
Jerry Noble, the clinical psychologist who evaluated Davis for
trial, to offer testimony in mitigation. The evidence included
testimony about Davis’s difficult childhood, his mother’s drug
abuse and criminal activity, her accompanying absence and
neglect during Davis’s childhood, and Davis’s efforts and
successes in overcoming this troubled childhood. There was also
testimony about the difficulties Davis had experienced while
living with Joyce and Caroline, and his remorse for having
murdered them. The North Carolina Supreme Court summarized the
mitigating evidence as follows:
3
The correspondence consisted of both letters and cards
with handwritten notes, all of which we refer to as “the
letters.”
11
Defendant’s mother was a drug addict, habitual felon,
and mental patient who could not care for him, and his
father took no responsibility for him. Since his
childhood, defendant alternated between the homes of
friends and relatives because his mother was
periodically incarcerated or incapacitated. Defendant
was a good athlete, but his parents never attended his
athletic or school events. When he was thirteen years
old, defendant sustained a closed-head injury when he
intervened in an argument between his mother and a
drug addict, who hit defendant with a baseball bat.
In the summer of 1995, defendant moved in with
[Joyce] and Caroline and obtained a job at a Food Lion
grocery store. He made the school football team and
stopped working in September when football season
began. Teammates described defendant as a leader and
a hard worker. In December of 1995, defendant began
working as a bag boy at a Bi Lo grocery store where he
was described as a good worker. Defendant’s high
school principal described him as a normal and well-
behaved student. Defendant was “on track” to graduate
from high school, was accepted into North Carolina A &
T State University, and had passed an Air Force
entrance test.
There was constant rivalry between defendant and
Caroline to the extent that Caroline packed up
defendant’s belongings on more than one occasion.
There was also tension between defendant and his aunt.
On one occasion, [Joyce] pointed a pistol at defendant
and said that when she gave him an order, “she
expected it to be done.” Witnesses described
defendant as remorseful and noted that he cried
whenever he discussed the murders.
A clinical psychologist, Dr. Jerry Noble,
testified as an expert witness. Dr. Noble performed a
postarrest valuation and determined that defendant’s
basic psychological, emotional, and nurturing needs
had been neglected. Defendant had an IQ of only 78,
but he never repeated a grade or had any special-
education classes. According to Dr. Noble, defendant
had four significant mental disorders on 24 May 1996:
(1) borderline intellectual functioning, (2)
borderline personality disorder, (3) cannabis abuse,
and (4) acute stress disorder. The borderline
personality disorder caused defendant to be
12
emotionally unstable and impulsive and to have
difficulties in interpersonal relationships. Dr.
Noble described defendant as anxious, depressed,
immature, and prone to unravel during periods of
stress. Defendant’s conduct in eating a sandwich and
watching television after he killed Caroline was
consistent with acute stress disorder, disassociation,
and derealization. According to Dr. Noble, defendant
could not fully remember, did not understand, and was
genuinely bewildered about [Joyce’s] death. Following
the homicides, defendant exhibited suicidal thoughts,
increased interest in religion, and signs of remorse.
Davis, 539 S.E.2d at 253.
Phyllis Davis was one of the witnesses called to testify on
Davis’s behalf, and she offered extensive testimony of her
neglect of Davis during his childhood, her absence from his
life, and her drug abuse and criminal history. Most recently,
Phyllis testified that she was arrested in April 1996 for
violating her probation, approximately one month prior to
Davis’s arrest for the murders of Caroline and Joyce. She was
sentenced to 300 days in a North Carolina prison.
In October 1996, five months after Davis’s arrest but
before Phyllis was released from prison, Davis wrote the first
of several letters to his mother. Some of the letters are
postmarked during the time period that Phyllis was imprisoned,
and others are postmarked after her release from prison in
January 1997. In the letters, Davis wrote that he was sorry for
what he had done and asked for forgiveness. He expressed
13
interest and concern for his mother’s well-being, as well as his
love for her.
Davis attempted to introduce the content of the letters,
both by having his mother read them and as separate exhibits, as
additional mitigating evidence “to show the relationship between
Phillip Davis and his mother,” J.A. 335, of his remorse for
having murdered Joyce and Caroline, and to “corroborate
[Phyllis’s] testimony and the testimony of Dr. Noble.” J.A.
833. The state objected to the letters as inadmissible, self-
serving hearsay. Unlike hearsay testimony of statements made by
a defendant in the presence of a testifying witness which are
often admitted in capital sentencing proceedings, the state
contended that the letters written by Davis were immune from any
type of cross-examination and were without any indicia of
reliability or trustworthiness that would counsel in favor of
their admissibility.
The trial court denied Davis’s request that Phyllis be
allowed to read the letters into evidence and to introduce them
as separate exhibits, but the court allowed Phyllis to testify
about their correspondence and her relationship with her son. 4
4
The trial court initially denied the request that Phyllis
be allowed to read the letters into evidence, but reserved final
ruling on the admissibility of the letters until the close of
the defendant’s case, at which point the trial court heard
(Continued)
14
The trial court noted that the letters were written by Davis
after the murders and to his mother, a likely witness on his
behalf, and that Phyllis “was unable to see [Davis] at the time
the statements were written, and . . . unable to make any
observation as to his demeanor or attitude or any other conduct
that he might be engaged in at the time he was writing the
letter to her.” J.A. 834.
The trial court also ruled that the letters were cumulative
to the testimony of several of the mitigation witnesses,
including Phyllis. Phyllis testified that Davis had written her
from jail, talked to her about his feelings, and “was very sorry
for what he had done to our family.” J.A. 353. Phyllis also
testified that she was able to speak with Davis by telephone
during this time period. She testified that Davis had
difficulty talking about the murders and that he cried when he
did speak of them. After her release from prison, Phyllis was
also able to visit Davis once a month and to talk to him on the
telephone between her visits. She testified that Davis was
remorseful and that he would “get[] upset if [she] sa[id]
anything about Joyce or Caroline’s name.” J.A. 356. Davis
would “get real watery-eyed, which, in turn, ma[de her] cry, so
arguments and considered the matter in light of all the evidence
presented.
15
[she] tr[ied] not to talk about it.” J.A. 356. As noted by the
trial court, Phyllis was allowed to “testif[y] without objection
that [Davis] expressed his remorse to her in the same letters,”
and “that he had expressed remorse to her in conversations with
her. She further testified that she had a loving relationship
and that he said he had loved her.” J.A. 834.
In addition to Phyllis, a number of additional witnesses,
including family members and friends, testified about Davis’s
expressions of remorse after the murders. Davis’s brother
testified that he and Davis would cry together during his visits
to the prison and that Davis had demonstrated that he was “sorry
for what he’s done.” J.A. 746. Davis’s aunt testified that
Davis wrote her and “asked [her] and the rest of the family to
please forgive him because that is something that he never meant
to happen.” J.A. 793. She also testified that Davis told her
he was sorry for what he had done and that she believed he was
remorseful. Davis’s cousin testified that she also visited
Davis and “believed [Davis] [wa]s remorseful.” J.A. 804.
Davis’s friend, Ryan Mills, testified that when he and
Davis got to the Miller home after the murders, Davis “sat down
on the curb and cried.” J.A. 223. Another friend testified
that Davis cried during their telephone call, “stated he wished
he had not done what he had done that night,” and “was very
upset about it.” J.A. 121. Colonel Roy Parker, a teacher at
16
Davis’s high school, testified that Davis “was in tears” when
they visited. J.A. 525. Parker testified that Davis “seemed to
be very saddened by what he had done and everything else
associated with it, as you would expect from somebody in that
position.” J.A. 525. Sandra Darity, whom Davis described as a
second mother to him, testified that Davis wrote her that “his
mother is sticking with him now when he needs her most,” J.A.
702, and “that he loves her for that,” J.A. 703. He also told
Darity that he was praying for her and her family, asked Darity
to pray for him, and told Darity that he was “still the same
Phillip that used to spend the night all the time. I can’t
believe I did this.” J.A. 703. He also told Darity that “‘I
made a mistake by putting myself here, but a good mother might
have helped prevent it, also.’” J.A. 705. Davis’s former
principal, Richard Green, testified that he visited Davis two or
three times and each time Davis told him that he was sorry for
what he had done and “appeared to be remorseful.” J.A. 829.
Green testified that he “sincerely th[ought] [Davis was]
remorseful over what happened to Caroline and Joyce Miller.”
J.A. 832. Reverend Carson Moseley also talked to Davis about
the murders and testified that “[w]henever [Davis] talks about
what happened, it’s with tears. He’s very emotional at that
point, so there’s not a lot of talk about it other than I
17
believe regret [is] in his heart. Very emotional whenever we’ve
spoken about it.” J.A. 810.
Finally, Dr. Noble testified that he saw “signs of remorse”
in Davis, as well as mental disorders consistent with one who
“feels guilt, anxiety, depression, remorse about his actions.”
J.A. 649. Dr. Noble testified that Davis had problems with
“suicidal thinking since the homicides” and “some trouble with
sleep, with nightmares, with instrusive detailed images about
these deaths.” J.A. 649. He saw “signs of remorse in his
increased interest in religious pursuits,” “a statement to
police of remorseful emotions,” and “indications of remorse in
some of his test results.” J.A. 649. Dr. Noble also read to
the jury the responses given by Davis that Dr. Noble believed
were indicative of remorse, as follows:
“I want to know how I got myself into such a mess.” “I
regret even being born.” “I feel that my life is
over.” “I suffer when I think or dream about what I’ve
done.” “I’ve failed in life.” “What pains me is the
thought of what I’ve done, and I regret doing it.” “I
wish I was never born.”
J.A. 650.
On appeal, the North Carolina Supreme Court affirmed the
trial court’s exclusion of the letters from evidence because
they lacked sufficient indicia of reliability and were
cumulative of other evidence introduced by the defendant at
trial. See Davis, 539 S.E.2d at 260 (noting that “while the
18
rules of evidence do not apply in a sentencing proceeding, the
trial judge still must determine the admissibility of evidence
subject to general rules excluding evidence that is repetitive
or unreliable”); see also State v. Raines, 653 S.E.2d 126, 137
(N.C. 2007) (“[W]hile the Rules of Evidence only serve as
guidelines in capital penalty proceedings, the trial court may
properly exclude hearsay statements which lack sufficient
indicia of reliability or lack a proper foundation.”). The
court noted, for example, that Davis had presented evidence of
his relationship with his mother and that a number of family and
friends had testified that Davis “constantly cried and expressed
remorse about what he had done when they visited him during his
incarceration.” 539 S.E.2d at 261. In addition, the court
noted that there was “evidence in the record that defendant
frequently cried during the capital sentencing proceeding.” Id.
(emphasis added). The court concluded
that the letters would have offered substantially the
same evidence as the testimony of defendant’s mother
and other witnesses. Defendant was allowed to present
to the jury evidence of remorse and of a loving
relationship with his mother. In any event, the
letters were unreliable in that they were written by a
defendant facing a capital sentencing proceeding to a
likely witness in the proceeding. As such, we hold
that the trial court properly excluded the letters as
cumulative and unreliable.
Id. In the alternative, the court held that, “[a]ssuming
arguendo that the trial court erred in excluding the letters
19
from evidence, such error was harmless beyond a reasonable
doubt.” Id. (citing N.C. Gen. Stat. § 15A-1443(b); State v.
Jones, 451 S.E.2d 826, 848 (N.C. 1994)).
2.
In these federal habeas proceedings, Davis asserts that the
state court’s exclusion of the letters impermissibly restricted
his constitutional right to present mitigating evidence,
contrary to the Supreme Court’s rulings in Lockett v. Ohio, 438
U.S. 586 (1978) (plurality opinion), and its progeny. Davis
also relies upon the Supreme Court’s decision in Green v.
Georgia, 442 U.S. 95 (1979) (per curiam), asserting that the
state trial court erred in applying its evidentiary rules to
exclude the letters as additional evidence of remorse. We
disagree.
Under the Eighth and Fourteenth Amendments to the United
States Constitution, in order to constitutionally impose a
capital sentence, the sentencer may “not be precluded from
considering as a mitigating factor, any aspect of a defendant’s
character or record and any of the circumstances of the offense
that the defendant proffers as a basis for a sentence less than
death.” Lockett, 438 U.S. at 604. In Lockett, the Supreme
Court declared an Ohio death penalty statute unconstitutional
because it specified only three factors that could be considered
by the sentencer in mitigation of the offense. See id. at 608.
20
In Eddings v. Oklahoma, 455 U.S. 104 (1982), the Court extended
Lockett to a case in which the state court refused to consider,
as a matter of law, any mitigating evidence of the defendant’s
violent family history and abuse. See id. at 112-13. “Just as
the State may not by statute preclude the sentencer from
considering any mitigating factor,” the Court held, “neither may
the sentencer refuse to consider, as a matter of law, any
relevant mitigating evidence.” Id. at 113-14; accord Skipper v.
South Carolina, 476 U.S. 1, 6-8 (1986) (reversing imposition of
death sentence where trial judge excluded as irrelevant evidence
of the defendant’s good behavior in jail awaiting trial).
In Green v. Georgia, the Supreme Court held that that the
Due Process Clause of the Fourteenth Amendment may require the
admission of mitigating evidence even if state law rules of
evidence would exclude it. There, the Court reversed the death
sentence based upon the trial court’s application of Georgia’s
hearsay rule to prohibit a witness’s testimony that the
defendant’s accomplice in the capital murder had confessed to
shooting and killing the victim after ordering the defendant to
run an errand. See Green, 442 U.S. at 96-97. In doing so, the
Court held that “[t]he excluded testimony was highly relevant to
a critical issue in the punishment phase of the trial” and that
“substantial reasons existed to assume its reliability.” Id. at
21
97 (citing Lockett, 438 U.S. at 604-05). In particular, the
Court noted that:
[the accomplice] made his statement spontaneously to a
close friend. The evidence corroborating the
confession was ample, and indeed sufficient to procure
a conviction of [the accomplice] and a capital
sentence. The statement was against interest, and
there was no reason to believe that [the accomplice]
had any ulterior motive in making it. Perhaps most
important, the State considered the testimony
sufficiently reliable to use it against [the
accomplice], and to base a sentence of death upon it.
Id. at 97. In light of “these unique circumstances,” the Court
held, “the hearsay rule may not be applied mechanistically to
defeat the ends of justice.” Id. (internal quotation marks
omitted); see also Fullwood, 290 F.3d at 693 (noting that “under
certain circumstances, ‘the Due Process Clause of the Fourteenth
Amendment may require the admission of mitigating evidence even
if state-law rules of evidence (e.g., hearsay) would exclude
it’” (alteration omitted) (quoting Boyd v. French, 147 F.3d 319,
326 (4th Cir. 1998)).
As we have previously held, however, neither Lockett and
its progeny nor Green compel the conclusion that a state court
is required to present a capital jury with any evidence the
defendant proffers as mitigating, no matter how irrelevant,
unreliable, or cumulative, or that a state’s normal evidentiary
rules must always yield to allow the introduction of such
evidence:
22
[T]he principles developed in Lockett and Eddings do
not eviscerate all state evidentiary rules with
respect to mitigating evidence offered in capital
sentencing proceedings. For example, the application
of the hearsay rule to exclude evidence offered in
mitigation of the death penalty is clearly not a per
se constitutional violation. It is permissible to
exclude on hearsay grounds mitigating evidence which
is “only [of] cumulative probative value.”
Fullwood, 290 F.3d at 693 (citations and alteration omitted)
(quoting Buchanan v. Angelone, 103 F.3d 344, 348-49 (4th Cir.
1996)); see also Hutchins v. Garrison, 724 F.2d 1425, 1437 (4th
Cir. (1983) (“We find no indication that Eddings and Lockett
preempt all state rules of evidence. Both cases speak about
types of evidence, not evidentiary rules.”); cf. Lockett, 438
U.S. at 604 n.12 (noting that the opinion did not “limit[] the
traditional authority of a court to exclude, as irrelevant,
evidence not bearing on the defendant’s character, prior record,
or the circumstances of his offense”). In Buchanan, we
explicitly rejected a defendant’s claim that the trial court
impermissibly excluded hearsay testimony offered by his expert
mental health witness for the purpose of providing additional
support for the conclusion that the defendant had acted under
extreme emotional stress, because the expert’s “testimony
provided ample evidence to explain his opinion” and “the
statements would have had only cumulative probative value.” 103
F.3d at 349. We also noted that the excluded testimony
“lack[ed] the inherent reliability of the statement excluded in
23
Green,” which had been “against the declarant’s penal interest,
made spontaneously to a close friend, and . . . relied [upon by
the state] to convict the declarant of capital murder.” Id.In this case, the state court, having heard the testimony,
observed the witnesses, and reviewed the letters, similarly
ruled that the letters were cumulative to the ample other
evidence of remorse. In addition, the court ruled that the
letters, having been written by Davis while awaiting trial on
the capital murder offenses and to his mother, a likely
mitigation witness on his behalf, lacked the requisite
reliability or trustworthiness to render them critical or
admissible under its rules of evidence. We cannot say that the
trial court’s decision, as affirmed by the state appellate
court, was contrary to, or an unreasonable application of the
clearly established Supreme Court precedents discussed above, or
that the state court’s factual determination was unreasonable in
light of the evidence presented to it. There was abundant
testimony regarding Davis’s remorse and his relationship with
his mother, much of which pertained to statements Davis made
directly to the testifying witnesses who were in a position to
evaluate his tone of voice and, in some cases, to observe his
demeanor. Davis was not precluded from offering any type or
category of mitigating evidence, and the letters were only of
cumulative probative value. Additionally, the content of the
24
letters, which is self-serving, does not rise to the level of
the critical relevancy of the accomplice’s confession in Green,
nor bear upon its “inherent reliability.” Buchanan, 103 F.3d at
349. Indeed, the Court in Green, in ruling that the
accomplice’s confession was improperly excluded there, placed
decided emphasis upon the fact that the confession bore the very
indicia of reliability that the state court found lacking in the
letters offered in this case. See Green, 442 U.S. at 97. While
we might have decided the question of reliability differently
were we presented with it ab initio, we cannot say that the
ruling of the state trial court was an unreasonable one.
3.
Finally, we note that the North Carolina Supreme Court held
that, even assuming error, the exclusion of the letters was
harmless beyond a reasonable doubt. See Davis, 539 S.E.2d at
261 (citing N.C. Gen. Stat. § 15A-1443(b) (“A violation of
defendant’s rights under the Constitution of the United States
is prejudicial unless the appellate court finds that it was
harmless beyond a reasonable doubt. The burden is upon the
State to demonstrate, beyond a reasonable doubt, that the error
was harmless.”)). Applying the Brecht harmlessness standard
applicable in federal habeas proceedings, the district court
ruled that Davis had failed to show that the exclusion of the
letters had a “substantial and injurious effect or influence” on
25
the outcome of Davis’s sentence. Brecht, 507 U.S. at 637(internal quotation marks omitted). We agree. 5
As pointed out by the district court, the circumstances of
Joyce’s murder were particularly gruesome and the circumstances
surrounding it, chilling. After killing Caroline, Davis ate a
sandwich and watched television for an hour, lying in wait for
Joyce to come home. When Davis heard Joyce approach, he hid
behind the door and, as she entered her home, shot her in the
back. As Joyce struggled to reach the telephone, Davis ripped
the cord from the wall. Finding himself out of bullets, Davis
then retrieved a meat cleaver from the kitchen and struck Joyce
with it fifteen times to finish the task. And he did so in the
5
In his appeal to the North Carolina Supreme Court, Davis
acknowledged that he had only specifically argued that the
letters were relevant “to show and explain his relationship with
his mother, to show remorse, and to corroborate Phyllis’[s] and
other testimony,” J.A. 934 (internal quotation marks omitted),
but attempted to argue a host of additional reasons why the
trial court should have admitted the evidence. The appellate
court obviously rejected these eleventh-hour arguments,
specifically noting that “[i]n the present case, defense counsel
[had] requested that [Phyllis] be allowed to read the letters to
the jury and proffered the exhibits as evidence tending to show
defendant’s remorse and relationship with his mother,” Davis,
539 S.E.2d at 260, and ruling “that the letters would have
offered substantially the same evidence as the testimony of
defendant’s mother and other witnesses . . . of remorse and of a
loving relationship with his mother,” id. at 261. Davis’s
similar attempts to expand his claim on federal habeas are
barred and, in any event, we too have concluded that the
exclusion of the letters, even if error, was harmless under the
Brecht standard.
26
presence of two young children whom Joyce had brought home with
her.
As also noted by the district court, “Davis’s actions in
the immediate aftermath of that murder appeared anything but
remorseful.” J.A. 1018. His first order of business was to go
shopping with Joyce’s money, checks, and credit cards, and, more
specifically, to return to Dillard’s to repurchase the items of
clothing that Joyce had just returned and which had apparently
brought about, at least in part, his murderous plan. With his
purchases in hand, Davis then went to a friend’s home to change
clothes and show off his new purchases, all the while acting
calmly and normally to those he encountered. He spent the
remainder of the evening cruising, smoking marijuana with
friends, and dancing at a nearby party until his friends found
him and returned him to the crime scene.
In contrast to this aggravating evidence, Davis’s jury was
presented with substantial evidence of Davis’s difficult
childhood, as well as his attempts to overcome this disadvantage
and the assistance he received from family members in his
attempts to do so. The jury also heard numerous accounts by
friends, family members, and clergy, as well as the mental
health professional who evaluated Davis, regarding Davis’s
personal expressions of remorse for having committed the
murders. And, the jury was able to personally observe Davis’s
27
demeanor, including his crying during the proceeding.
Ultimately, the jury found as an aggravating circumstance that
the murder of Joyce was “especially heinous, atrocious and
cruel,” an aggravating circumstance not submitted for Caroline’s
murder, and imposed the death sentence for Joyce’s murder.
Given the strength of the aggravating evidence presented in
Joyce’s case, compared to the relative weakness of the admitted
and excluded evidence of Davis’s relationship with his mother
and of his remorse for the murder of his aunt, we agree with the
district court’s determination that Davis failed to demonstrate
that the exclusion of the letters had a substantial and
injurious effect or influence on the outcome of the sentencing
proceeding. Therefore, even if we assume that the trial court’s
exclusion of the letters violated Davis’s constitutional right
to introduce mitigating evidence, he is not entitled to federal
habeas relief as a result of the error.
B.
Davis’s second argument arises from the trial court’s
decision to submit, as separate aggravating circumstances, that
the murder of Joyce was committed while Davis was engaged in the
commission of armed robbery, see N.C. Gen. Stat. § 15A-
2000(e)(5), and that the murder was committed by Davis for
pecuniary gain, see N.C. Gen. Stat. § 15A-2000(e)(6).
28
After murdering Caroline and Joyce, Davis stole two VCRs,
the keys to Joyce’s car, Joyce’s purses containing bank cards
and credit cards, and personal checks, and fled the scene with
the stolen items in Joyce’s vehicle. Within an hour, he
attempted to cash a $360 check at a grocery store and purchased
six items of clothing at a department store using Joyce’s credit
card. Some of those items of clothing were identical to those
that Joyce had returned under the apparent belief that Davis had
purchased them with money he had stolen from her. Davis then
drove to Oak Knoll Apartments, where he discarded the VCRs in a
dumpster, and to an Amoco gas station, where he abandoned the
car and discarded his aunt’s black purse.
Under North Carolina law, “it is error to submit two
aggravating circumstances when the evidence to support each is
precisely the same,” but “where the aggravating circumstances
are supported by separate evidence, it is not error to submit
both to the jury, even though the evidence supporting each may
overlap.” State v. East, 481 S.E.2d 652, 664 (N.C. 1997).
Based upon the evidence submitted in Davis’s case, the trial
court found that submission of both the armed robbery and the
pecuniary gain aggravating circumstances was appropriate because
each was supported by separate evidence. To further channel the
jury’s consideration of these aggravating circumstances, the
court instructed the jury that the evidence regarding the
29
checks, money, and credit cards could be considered for purposes
of the pecuniary gain circumstance, whereas the evidence
regarding the keys, vehicle, and VCRs could be considered for
purposes of the armed robbery circumstance. The trial court
rejected Davis’s contention that this amounted to the
impermissible submission of double or duplicative aggravating
circumstances and, thereby, skewed the process in favor of
death. The Supreme Court of North Carolina affirmed, concluding
that the two distinct aggravating circumstances presented were
based upon sufficient, independent evidence and did not violate
Davis’s constitutional rights. See Davis, 539 S.E.2d at 270.
In these proceedings, Davis does not claim that the
evidence was insufficient to support the separate aggravating
circumstances. Rather, Davis asserts that the state court
arbitrarily divided the evidence so as to support the two
separate aggravating circumstances and that this division did
not represent different aspects of Davis’s character or the
circumstances of the crimes he committed that evening.
Contending that the aggravating circumstances are duplicative,
Davis argues that their joint submission was the equivalent to
submitting an invalid aggravating circumstance that
unconstitutionally skews the weighing process in favor of death.
See Stringer v. Black, 503 U.S. 222, 232 (1992) (“[W]hen the
sentencing body is told to weigh an invalid factor in its
30
decision, a reviewing court may not assume it would have made no
difference if the thumb had been removed from death’s side of
the scale. When the weighing process itself has been skewed,
only constitutional harmless-error analysis or reweighing at the
trial or appellate level suffices to guarantee that the
defendant received an individualized sentence.”).
In Jones v. United States, 527 U.S. 373 (1999) (plurality
opinion), however, the Supreme Court declined the opportunity to
equate duplicative aggravating factors to invalid aggravating
factors. There, the defendant argued that two nonstatutory
aggravating factors found by the jury were duplicative, vague
and overbroad, in violation of the Eighth Amendment.
Specifically, the jury had unanimously found (1) victim impact
evidence (i.e., the victim’s personal characteristics and the
effect of the instant offense on her family); and (2) victim
vulnerability evidence (i.e., the victim’s young age, her slight
stature, her background, and her unfamiliarity with San Angelo,
Texas). Because personal characteristics necessarily included
those things included in the victim vulnerability charge, the
defendant argued that charging both impermissibly skewed the
process in favor of a death sentence. In rejecting the
challenge, a plurality of the Court noted that:
We have never before held that aggravating factors
could be duplicative so as to render them
constitutionally invalid, nor have we passed on the
31
“double counting” theory that the Tenth Circuit
advanced in [United States v.] McCullah[, 76 F.3d 1087(10th Cir. 1996)] and the Fifth Circuit appears to
have followed here. What we have said is that the
weighing process may be impermissibly skewed if the
sentencing jury considers an invalid factor. See
Stringer v. Black, 503 U.S. 222, 232 (1992).
Petitioner’s argument (and the reasoning of the Fifth
and Tenth Circuits) would have us reach a quite
different proposition – that if two aggravating
factors are “duplicative,” then the weighing process
necessarily is skewed, and the factors are therefore
invalid.
Id. at 398 (emphasis added) (footnote omitted). However, the
plurality declined to answer the question of whether duplicative
factors, as opposed to an invalid factor, necessarily skew the
process in favor of death. Rather, it ruled that “the factors
as a whole were not duplicative – at best, certain evidence was
relevant to two different aggravating factors” and that “any
risk that the weighing process would be skewed was eliminated by
the District Court’s instruction that the jury should not simply
count the number of aggravating and mitigating factors and reach
a decision based on which number is greater but rather should
consider the weight and value of each factor.” Id. at 399-400
(internal quotation marks and alteration omitted).
Here, the trial court relied upon North Carolina law, which
allows the submission of aggravating circumstances that are
supported by separate evidence, see East, 481 S.E.2d at 664, and
submitted both aggravating circumstances to the jury with the
appropriate explanation. In addition, the trial court
32
specifically instructed the jury not to merely add up the number
of aggravating circumstances against the number of mitigating
circumstances:
You should not merely add up the number of aggravating
circumstances and mitigating circumstances. Rather,
you must decide from all the evidence what weight to
give to each circumstance and then weigh the
aggravating circumstances so valued against the
mitigating circumstances so valued, and finally
determine whether the mitigating circumstances are
insufficient to outweigh the aggravating
circumstances.
J.A. 884-85.
Given the Supreme Court’s opinion in Jones, we cannot say
that the state trial court’s decision to submit both the
pecuniary gain circumstance and the armed robbery circumstance
was contrary to or an unreasonable application of Supreme Court
precedent. 6 In addition, we do not view the aggravating
circumstances as duplicative. Although in some cases the
evidence may only be susceptible of the conclusion that an armed
robbery was attempted or effectuated for pecuniary gain,
6
Davis’s reliance upon our decision in United States v.
Tipton, 90 F.3d 861 (4th Cir. 1996), and its reliance upon the
Tenth Circuit’s decision in McCullah are misplaced. Our
decision in Tipton predates the Supreme Court’s decision in
Jones and, in any event, we do not evaluate whether the state
court’s determination is contrary to or an unreasonable
application of our precedent in federal death penalty cases.
See Bustos v. White, 521 F.3d 321, 325 (4th Cir. 2008). Rather,
we review the ruling to determine whether the decision is
contrary to or an unreasonable application of Supreme Court
precedent. See id.; 28 U.S.C.A. § 2254(d).
33
pecuniary gain is not an element of the offense of robbery and
armed robbery is not necessarily synonymous with a goal of
achieving pecuniary gain. Indeed, there are a number of
scenarios in which material items may be taken in the course of
an armed robbery and murder for reasons wholly unrelated to the
desire for pecuniary gain, such as to escape, avoid detection,
or implicate another person in a murder. In this case, the
evidence was clearly susceptible to the conclusion that there
were, in fact, two independent aggravating circumstances: Davis
took the car and VCRs (which were quickly abandoned) not for
pecuniary gain, but rather to make the murders appear to be
related to a random armed robbery or to implicate others (which
he, in fact, attempted to do when he was questioned by the
police), whereas Davis’s immediate attempts to cash a check and
his use of Joyce’s credit card to purchase clothing were
consistent with a separate intent to benefit financially from
his crime. While there may be some overlap, the aggravating
circumstances were sufficiently independent to justify separate
submissions to the jury for its consideration. Here, the trial
court divided the evidence in accordance with state law.
However, as was the case in Jones, “at best, certain evidence
was relevant to two different aggravating factors” and “any risk
that the weighing process would be skewed was eliminated by the
District Court’s instruction that the jury should not simply
34
count the number of aggravating and mitigating factors and reach
a decision based on which number is greater but rather should
consider the weight and value of each factor.” Id. at 399-400(internal quotation marks and alteration omitted). Accordingly,
Davis is not entitled to federal habeas relief on this basis.
IV.
For the foregoing reasons, we affirm the district court’s
grant of summary judgment to the state. Because the North
Carolina Supreme Court’s decision was not contrary to, or an
unreasonable application of established Supreme Court
precedents, nor based on an unreasonable determination of the
facts in light of the evidence presented in the state court,
Davis is not entitled to federal habeas relief.
AFFIRMED
35