Juluke v. Cain , 134 F. App'x 684 ( 2005 )


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  •                                                                                 United States Court of Appeals
    Fifth Circuit
    F I L E D
    REVISED JUNE 13, 2005
    June 9, 2005
    IN THE UNITED STATES COURT OF APPEALS
    Charles R. Fulbruge III
    FOR THE FIFTH CIRCUIT                                        Clerk
    __________________________
    No. 04-30213
    __________________________
    BERNELL JULUKE, JR.,
    Plaintiff - Appellant,
    versus
    BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
    Respondent - Appellee.
    ___________________________________________________
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    USDC No. 02-CV-3582
    ___________________________________________________
    Before GARWOOD, SMITH, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    Bernell J. Juluke, Jr., was convicted of second-degree murder and sentenced to life
    imprisonment. He appeals from the district court’s order denying his application for 
    28 U.S.C. § 2254
     relief, in which he challenged his state murder conviction. The district court granted Juluke a
    certificate of appealability (“COA”) on the three issues Juluke pursues before this Court: that the
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
    published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
    47.5.4.
    State withheld exculpatory evidence in the form of police communication logs and a police incident
    report; that a witness’s identification of Juluke should have been suppressed; and that the evidence
    was insufficient to support his conviction. Finding no error, we affirm the judgment of the district
    court.
    I. FACTS AND PROCEEDINGS
    On August 22, 1994, Rondell Santinac died while sitting in a car in the driveway of 3303
    Desire Parkway, New Orleans, at approximately 9:20 or 9:30 p.m., in a hail of bullets fired by two
    men wielding AK-47s from the passenger-side windows of a grey Chevrolet Baretta. Santinac’s
    cousin, Samuel Raeford, jumped out of Santinac’s car and ran into his mother-in-law’s house.
    Detective Wayne Tamborella arrived on the scene and spoke with Raeford. Raeford provided a
    description of the car, (though he called it a blue Baretta), and identified the perpetrators as Juluke
    and his two codefendants, Kunta Gable and Leroy Nelson. Raeford knew the three men from the
    Iberville Project, where Raeford’s brother lived.
    New Orleans Police Officer Tommy Felix received a dispatch containing a description of this
    car and stopped it in the Iberville Housing Project. Juluke was the driver, Gable was the front seat
    passenger, and Nelson was the rear seat passenger. Juluke, also known as Bernell Mays, nervously
    changed his last name after hearing a followup report about the Santinac shooting from the police
    dispatcher over the patrol unit’s radio. Officer Felix wrote Juluke a citation for running a red light
    and not having a driver’s license at 9:45 p.m., although he made the stop perhaps as early as 9:30 or
    9:35 p.m. All three defendants were taken into custody. A search of the vehicle failed to find any
    physical evidence linking the defendants to the shooting.
    Raeford was transported to the Homicide Office where he identified the three defendants.
    2
    The defense challenged much of Raeford’s testimony. Raeford admitted that he had no gotten a
    t
    good look at the third man in the car and had only assumed that Juluke had been at the wheel because
    he had seen the group earlier that night in the Iberville Project and the police had stopped all three
    men in the Baretta near the Project within fifteen minutes of the shooting.
    Several defense witnesses testified that Raeford had made statements exonerating Juluke,
    Gable, and Nelson. On cross-examination, Raeford admitted that the Beretta was actually grey
    instead of blue but denied telling three defense witnesses that Juluke, Gable, and Nelson were not
    guilty.
    On December 20, 1994, the three defendants were charged by grand jury indictment with first
    degree murder. The trial court denied the defendants’ motions to suppress a statement and
    identification. Following trial, the jury on March 1, 1996 found the defendants guilty of second
    degree murder and they were sentenced to life imprisonment.
    Juluke appealed his conviction, asserting a number of errors. The Louisiana Court of Appeal
    determined that the evidence was insufficient to support Juluke’s conviction and reversed the
    conviction without addressing Juluke’s remaining assignments of error. State v. Gable, No. 96-KA-
    1920, 
    704 So.2d 995
     (La. App. 4th Cir. Jan. 21 1998). The State appealed; the Supreme Court of
    Louisiana determined that the evidence was sufficient to support the conviction and reversed the
    Court of Appeal to reinstate the conviction. State v. Juluke, 
    725 So. 2d 1291
     (La. 1999) (finding that
    the Court of Appeal impermissibly “substituted its judgment for the jury’s as to what the evidence did
    or did not prove on the basis of a hypothetical set of facts not argued to jurors”). On remand, the
    Court of Appeal rejected Juluke’s remaining assignments of error and affirmed the conviction. State
    v. Juluke, 
    735 So.2d 142
     (La. Ct. App. 1999). The Louisiana Supreme Court shortly thereafter
    3
    denied Juluke’s application for rehearing. State v. Juluke, No. 98-K-0341 (La. Feb. 12, 1999).
    Juluke then filed an application for rehearing with the Louisiana Court of Appeal. The court granted
    his application and affirmed his conviction. State v. Juluke, No. 96-KA-1920 (La. Ct. App. Apr. 30,
    1999). The Louisiana Supreme Court denied writs. State v. Juluke, 
    748 So.2d 466
     (La. 1999).
    Juluke then sought postconviction relief in state court. Juluke contended, inter alia, that the
    timeline in communications logs and a police report which were unknown to him at the time of his
    trial indicated his innocence; that counsel was ineffective for failing to obtain the logs and report; and
    that the State suppressed exculpatory evidence in the form of the logs and report. The state district
    judge denied relief, State v. Juluke, No. 372-656 (Orleans Parish Crim. Dist. Ct. July 23, 2001), and
    the Louisiana Court of Appeal and Louisiana Supreme Court denied writs. Juluke v. Burl Cain, No.
    2001-K01765 (La. Ct. App. Nov. 8, 2001); State v. Juluke, 
    825 So.2d 1190
     (La. 2002).
    Juluke, represented by counsel, applied for 
    28 U.S.C. § 2254
     habeas corpus relief in the
    district court. Juluke contended, inter alia, that the State withheld exculpatory evidence; that
    Raeford’s identification of him was the result of suggestive police procedures; that impermissible
    reference was made to a police broadcast containing hearsay of Officers Davis and Williams that
    suggested that Raeford identified the color of t he car; that his counsel was not present during the
    suppression hearing; that the evidence suggested that somebody other than Raeford led police to
    target a blue car; that Juluke’s name was not broadcast during a police interview of Juluke, leading
    Juluke to change his name; and that there was insufficient evidence of guilt.
    On January 26, 2004, the district court determined that Juluke’s contentions were unavailing
    on the merits and denied Juluke habeas corpus relief. Juluke, proceeding pro se, filed a motion for
    a COA that served as a timely notice of appeal. On March 8, 2004, the district court granted Juluke’s
    4
    COA motion on the three issues discussed below.
    II. STANDARD OF REVIEW
    We review the district court’s findings of fact for clear error, and its legal conclusions de
    novo. Mosley v. Dretke, 
    370 F.3d 467
    , 472 (5th Cir. 2004). Because Juluke filed his habeas petition
    after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 
    28 U.S.C. § 2254
     (2000), this statutory scheme governs our review. Penry v. Johnson, 
    532 U.S. 782
    ,
    792 (2001). AEDPA dictates that this Court will not overturn a state court’s adjudication unless its
    resulting decision was either “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. § 2254
    (d) (2000); see also Pondexter v. Dretke,
    
    346 F.3d 142
    , 145–46 (5th Cir. 2003) (“A state court’s decision is deemed contrary to clearly
    established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the
    Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially
    indistinguishable facts.”)
    III. DISCUSSION
    A.      Brady Violation
    Juluke contends that the State violated Brady v. Maryland, 
    373 U.S. 83
    , 87 (1963), by failing
    to disclose the initial police report prepared by NOPD Officers Len Davis and Sammie Williams, who
    responded to the scene of the incident, and the logs of police communications at the time he was
    stopped. The police report indicated that Davis and Williams responded to a police dispatcher’s call
    at 9:20 p.m. and that they located a witness who was detained until homicide detectives could
    5
    interview him. Davis and Williams did not list any suspects in their report. Detective Tamborella and
    Lieutenant Bennelli arrived on the scene during the period covered by the report. The communication
    log for Davis’s and Williams’s car indicated that the shooting was reported at 9:22 p.m. and that the
    officers arrived at 9:24. At 9:25, the perpetrator was reported to be a black male in a Beretta. At
    9:27, and again at 9:30, the perpetrator was described as one Pernell Maze (as opposed to Bernell
    Mays). A Beretta was mentioned at 9:42 p.m., and was described as being occupied by three
    individuals, one of whom was armed with an AK-47. A communication log for police car no. 180
    indicated that Officer Felix, in car no. 103, was dispatched at 9:45 p.m. and that he arrived at the
    intersection of Prieur and Bienville at 9:47.
    Juluke argues that had he possessed those documents, he could have built a case against other
    possible perpetrators, including Pernell Maze, Russell Spurlock, the owner of the car, or the
    notorious Officers Davis and Williams.1 Juluke also contends that he could have impeached Detective
    Tamborella, Officer Felix, and Raeford because the logs and report would have shown that Raeford
    did not identify him as a perpetrator. Moreover, the logs and report would have shown that Officers
    Davis and Williams interviewed Raeford and that they submitted the information that Bernell Mays
    was a perpetrator over their car radio.
    The state must disclose exculpatory evidence that is material to guilt or punishment. 
    Id.
     To
    establish a Brady violation, the habeas applicant must show that the prosecution suppressed evidence
    1
    Davis and Williams gained notoriety in New Orleans as corrupt police officers. Davis
    was convicted of various offenses after orchestrating the murder of a citizen who filed a complaint
    against him with the Internal Affairs Division of the New Orleans Police Department. United
    States v. Causey, 
    185 F.3d 407
    , 411 (5th Cir. 1999). Additionally, Davis and Williams, along
    with other police officers, extorted money from a crack cocaine dealer. United States v. Duncan,
    
    191 F.3d 569
    , 571 (5th Cir. 1999).
    6
    favorable to the accused and material to either guilt or punishment. Id.; Cordova v. Collins, 
    953 F.2d 167
    , 171 (5th Cir. 1992). Suppressed evidence is material under Brady when “there is a reasonable
    probability that, had the evidence been disclosed to the defense, the result of the proceeding would
    have been different.” United States v. Bagley, 
    473 U.S. 667
    , 682 (1985).
    The State argues, and the district court so found, that the record demonstrates that it provided
    the incident report to defense counsel and notes that Juluke has the burden of establishing that the
    State failed to produce the report. However, even if it is assumed that the State suppressed the logs
    and the report, Juluke has failed to demonstrate that they were material to either guilt or punishment.
    The report indicated that Raeford did not identify Juluke to Officers Davis and Williams; however,
    the logs suggested that Raeford identified Juluke to someone by 9:27 p.m. at the latest. The logs did
    not identify the recipient of Raeford’s information, and the report indicated that other police officers
    arrived on the scene. The report and l ogs do not support the proposition that there was no radio
    broadcast to Officer Felix’s car—the log relevant to his actions came from another car and therefore
    would not have reflected all of his radio communications. Finally, the logs and the testimony at the
    suppression hearing indicated that Raeford identified Juluke as a perpetrator shortly after the
    shooting; while his testimony at trial that he could not identify Juluke as a perpetrator might have
    undermined his credibility as a witness, it did not prove that he did not previously name Juluke as a
    perpetrator. Nothing in the logs or report was material to Juluke’s guilt or innocence. The Louisiana
    Supreme Court was not unreasonable in rejecting this claim.
    B.     Suppression of Identification
    Juluke next argues that police testimony about Raeford’s identification of him and Raeford’s
    testimony that he identified Juluke should have been excluded. First, Juluke contends that Raeford’s
    7
    identification of Juluke was impermissibly suggestive because the officers informed Raeford that
    Juluke had been apprehended in the same car with Gable and Nelson.2 Second, Juluke argues that
    while testifying, Raeford did not make clear that he could not identify Juluke at the scene and only
    stated that he was in the car because the police told him he was caught with Gable and Nelson.
    Moreover, Juluke alleges, the prosecutor referred to the police broadcast during his closing argument
    to suggest that Raeford’s on-the-scene identification was the motive for Juluke to change the name
    he gave the police.
    The use at trial of unreliable identification evidence obtained by police through unnecessarily
    suggestive procedures violates a defendant’s right to due process. Neil v. Biggers, 
    409 U.S. 188
    , 198
    (1972). An identification procedure violates due process when it is “‘unnecessarily suggestive and
    conducive to irreparable mistaken identification.’” United States v. Atkins, 
    698 F.2d 711
    , 713 (5th
    Cir. 1983) (quoting Stovall v. Denno, 
    388 U.S. 293
    , 302 (1967)).
    It is not clear from the record whether Raeford was told that the suspects had been
    apprehended together before or after he identified Juluke. However, even if the identification was
    unduly suggestive, its admission would amount to a trial error rather than a structural error. Watkins
    v. Sowders, 
    449 U.S. 341
    , 348 (1981). Such trial errors are subject on habeas review to harmless
    error analysis under Brecht v. Abrahamson, which permits relief only upon a showing that a particular
    constitutional error had a “substantial and injurious effect or influence in determining the jury’s
    verdict.” 
    507 U.S. 619
    , 623 (1993).
    2
    During the suppression hearing Raeford testified that all three defendants were
    presented for identification together. At trial, however, he stated that he viewed them
    individually. Detective Anthony Small and Tamborella testified at trial that the defendants were
    led into a room one by one for Raeford to identify. On appeal, Juluke does not argue that the
    three defendants were viewed simultaneously.
    8
    Raeford’s testimony clarified for the jury that his identification of Juluke that night, both at
    the scene and during the line-up, was not based on any sighting of him in the car that night during the
    shooting. Thus, the jury was aware that Raeford identified Juluke based on circumstantial evidence
    (whether because the line-up was suggestive or because he saw the three defendants together earlier
    on the day in question) rather than an eye-witness sighting.
    Additionally, the jury’s verdict was not at all dependent on Raeford’s identification of the
    driver of the vehicle at the time of the shooting. Most notably, Juluke was sighted with Gable and
    Nelson both before and right after the incident, in a car matching the description of the vehicle in the
    question. Juluke did not assert a defense that Gable and Nelson had had another driver during the
    shooting and that he had joined them in the vehicle after the shooting. Rather, Juluke argued that
    Raeford’s failure to identify him supported a larger alibi theory that all three defendants were
    innocent. The fact that Raeford surmised, rather than saw, that Juluke was the third party in the
    Beretta with Gable and Nelson, cannot be considered as having a substantial and injurious effect on
    Juluke’s guilty verdict.
    C.     Sufficiency of Evidence
    Juluke contends that the evidence was insufficient to support his conviction. A reviewing
    court will not disturb a state court jury verdict so long as the evidence, viewed in the light most
    favorable to the verdict, is sufficient to allow a reasonable jury to find the defendant guilty beyond
    a reasonable doubt. Young v. Guste, 
    849 F.2d 970
    , 972 (5th Cir. 1988); Jackson v. Virginia, 
    442 U.S. 307
    , 318–19 (1979). It is the jury’s responsibility “to resolve conflicts in the testimony, to
    weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson,
    442 U.S. at 319. Thus, we do not “not focus on whether the trier of fact made the correct guilt or
    9
    innocence determination, but rather whether it made a rational decision to convict or acquit.”
    Herrera v. Collins, 
    506 U.S. 390
    , 402 (1993).
    Under Louisiana law, second-degree murder is defined as the killing of a human being when
    the offender has a specific intent to kill or to inflict great bodily harm. LA. REV. STAT. ANN. § 14:30.1
    (West supp. 2004). Under the law of principals, “[a]ll persons concerned in the commission of a
    crime . . . whether they directly commit the act constituting the offense, aid and abet its commission,
    or directly or indirectly counsel or procure another to commit the crime, are principals.” LA. REV.
    STAT. ANN. § 14:24 (West 1997). However, “[t]he mental state of one defendant may not be imputed
    to another defendant,” rather, “it is necessary that the principal actually be aware of the accomplice’s
    intention.” State v. Hayes, 
    806 So. 2d 816
    , 823–24 (La. Ct. App. 2001) (quotations and citations
    omitted).
    Viewing the evidence in the light most favorable to the prosecution, the Louisiana Supreme
    Court was not unreasonable to find that sufficient evidence supported the guilty verdict. The
    evidence indicated that Juluke was with Gable and Nelson during the confrontation with Carter; that
    Gable and Nelson shot Santinac with AK-47s; that a third person drove the Beretta; that Juluke,
    Gable, and Nelson were together in the Beretta when it was stopped shortly after the shooting; and
    that Juluke was driving the Beretta when it was stopped. The jury could have inferred that Juluke
    drove the Beretta when Gable and Nelson shot Santinac. The jury could have inferred that Juluke
    shared an intention to kill or cause great bodily harm because Gable and Nelson were armed with
    AK-47s, Juluke drove the car away from the scene of the shooting, and Juluke changed his name
    when he heard his name broadcast on the police radio. Finally, the jury need not have believed
    Juluke’s alibi defense.
    10
    IV. CONCLUSION
    Because the district court correctly determined that the state court’s decision is not contrary
    to, and does not involve an unreasonable application of, clearly established federal law on any of the
    issues Juluke raises on appeal, the judgment of the district court is AFFIRMED.
    11