Davis v. Quarterman , 237 F. App'x 903 ( 2007 )


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  •                                                             United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    June 19, 2007
    FOR THE FIFTH CIRCUIT
    _____________________                 Charles R. Fulbruge III
    Clerk
    No. 06-70037
    _____________________
    LARRY DONNELL DAVIS,
    Petitioner - Appellant,
    versus
    NATHANIEL QUARTERMAN, DIRECTOR,
    TEXAS DEPARTMENT OF CORRECTIONS,
    CORRECTIONAL INSTITUTIONS DIVISION,
    Respondent - Appellee.
    Appeal from the United States District Court
    for the Northern District of Texas, Amarillo
    USDC No. 2:03-CV-00001
    Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
    E. GRADY JOLLY, Circuit Judge:*
    Larry Donnell Davis was convicted of capital murder and
    sentenced to death in March 1999 for the August 1995 murder of
    Michael Barrow during the course of a robbery.        The district court
    denied   federal   habeas   relief,   but   granted   a   certificate      of
    appealability (“COA”) authorizing Davis to appeal his claim that
    the prosecutor violated his Fifth and Fourteenth Amendment rights
    by commenting, during closing argument at the guilt-innocence phase
    *
    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    this opinion should not be published and is not precedent except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.
    of trial, on Davis’s failure to testify.     We AFFIRM the district
    court’s denial of habeas relief.
    I.
    On August 28, 1995, Michael Barrow’s parents found him dead
    inside his house in Amarillo, Texas.    He had suffered blunt force
    trauma to his face and head, as well as puncture and laceration
    wounds on his head, neck, and chest.   Bloody footprints were found
    on his upper torso.    An autopsy revealed that while Barrow was
    still alive, his sternum had been broken and his heart wall had
    been ruptured.   According to the medical examiner, it was likely
    that the rupture was caused by a stomp or kick to Barrow’s chest.
    The State introduced into evidence Davis’s confession, in
    which he admitted his involvement in a gang plot to murder Barrow
    and steal his property.     In his confession, Davis stated that he
    was approached by Raydon (“Ray-Ray”) Drew, and his brother, Donald
    Drew.   The Drew brothers needed money, and Ray-Ray wanted to earn
    a “teardrop” tattoo as a member of the Crips street gang.      They
    planned to kill Barrow, who was an acquaintance of theirs, and they
    offered Davis Barrow’s stereo and chrome wheels from Barrow’s car
    in exchange for his help.
    Davis confessed that on the night of the murder he, Ray-Ray,
    and Donald Drew went to Barrow’s house, along with two “look-outs”.
    Davis, Ray-Ray, and Donald Drew went inside Barrow’s house and
    visited with him, then Ray-Ray hit Barrow on the head with a
    weight.   They tied his feet and moved him toward the bathroom.
    2
    Donald Drew left.    Ray-Ray asked Davis for his knife, and Davis
    gave it to him.   Ray-Ray then repeatedly stabbed Barrow with the
    knife.    When the knife handle broke, Ray-Ray continued stabbing
    Barrow with the blade.   Davis handed Ray-Ray an ice pick, and Ray-
    Ray then attacked Barrow with the ice pick.    While Davis and Ray-
    Ray were gathering Barrow’s property to steal, they heard Barrow
    cough.    They discovered that he had untied his feet.    Davis hit
    Barrow in the mouth and held him down while Ray-Ray hit Barrow with
    a pipe.   Davis then got a butcher knife from Barrow’s kitchen and
    gave it to Ray-Ray, who began to stab Barrow with it.    Despite all
    of these efforts, they still were not sure Barrow was dead, so
    Davis instructed Ray-Ray to stand on Barrow’s neck.      Davis said
    that both he and Ray-Ray got blood on their shoes.
    In his confession, Davis said that Ray-Ray acted alone in
    inflicting Barrow’s fatal injuries.    He admitted, however, that he
    tied Barrow’s hands with a bandanna, supplied Ray-Ray with each of
    the weapons he used to attack Barrow, and held Barrow down while
    Ray-Ray attacked him.    He further admitted that he encouraged Ray-
    Ray and gave him instructions on how to accomplish the killing.   He
    also admitted that he took some of Barrow’s property and pawned it.
    Acting on information provided by Davis, the police found the
    bloody shoes and clothing Davis had worn on the night of the murder
    in the attic of his girlfriend, Cynthia Green.      Green testified
    that on the night of the murder, she observed scratches on Davis’s
    face, arms, and legs, and a bruise on his forehead.   She testified
    3
    further that she pawned jewelry, a television, a VCR, and a tape
    rewinder that Davis gave to her.          She testified that he told her
    those items belonged to Ray-Ray.              The items were identified as
    having been stolen from Barrow’s home.              Barrow’s bank card was
    found in Davis’s wallet, along with a pawn ticket that had belonged
    to Barrow.
    Davis’s former wife, Katherine Davis, testified that Davis
    confessed his involvement in the murder to her when she visited him
    in jail shortly after his arrest.
    The State introduced photographs of a shoe print on Barrow’s
    chest, in the spot where Barrow’s sternum was broken.              It also
    presented testimony that the shoe print on Barrow’s chest matched
    the pattern on the bottom of the shoes worn by Davis on the night
    of the murder.
    The defense strategy was to attempt to convince the jury that
    Davis was guilty of aggravated robbery or murder, but not capital
    murder,   because   he   was   only       a   passive   participant.   The
    prosecution, however, argued that the jury could convict Davis of
    capital murder, either by finding him to be a party to a felony
    murder, or by finding that Davis personally delivered the blow to
    Barrow’s chest that ruptured his heart.
    The jury found Davis guilty of capital murder. His conviction
    and sentence were affirmed on direct appeal.            Davis v. State, No.
    73,458 (Tex. Crim. App. October 23, 2002) (unpublished), cert.
    denied, 
    538 U.S. 1004
     (2003).     The Texas Court of Criminal Appeals
    4
    adopted the state court’s findings of fact and conclusions of law
    and denied state habeas relief in December 2002.                   Ex parte Davis,
    No. 54,457-01 (Tex. Crim. App. December 18, 2002).
    Davis filed an application for federal habeas relief in July
    2003.    The district court denied relief, Davis v. Quarterman, No.
    2:03-CV-001     (N.D.   Tex.    July    31,        2006).    It    granted   a   COA
    authorizing Davis to appeal its holding that the state court did
    not unreasonably apply federal law in holding that the prosecutor’s
    improper, unconstitutional comment on Davis’s silence was harmless
    error.
    II.
    Davis is not entitled to habeas relief unless the state
    court’s adjudication of his prosecutorial misconduct 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.”           
    28 U.S.C. § 2254
    (d).
    A.
    Davis’s claim is based on the following argument made by the
    prosecutor during rebuttal closing argument in the guilt-innocence
    phase of trial:
    And what you will determine is Larry Donell
    Davis’ shoes stepped on that boy three times.
    Maybe more. There was even one of his prints
    5
    on the pants. Let me tell you, when this man
    with the teardrop on his eye, who sits here
    silently --
    MR. CLARK:    Your Honor --
    MR. MURPHY:      --    and   sits   there   and
    watches while --
    MR. CLARK: That is a direct comment on
    his failure to testify, and we object.
    THE COURT:   I will sustain the objection.
    MR. CLARK: Please instruct the jury to
    disregard that last comment.
    THE COURT: Ladies and gentlemen, please
    disregard the last statement.
    MR. CLARK:    Move for a mistrial.
    THE COURT:    and the Motion to --
    MR. CLARK:    For mistrial is denied?
    THE COURT:    Is denied.
    MR.   MURPHY:   --  watches  while   his
    attorneys get up here, and say: What’s going
    on here? Has the state caused you to tell you
    this lie? No. The physical evidence brings
    you here. And let me tell you what he did.
    He instructed him. He provided him with three
    weapons, according to his own mind, and they
    talked about earning a teardrop just like he
    wears on his eye, before they ever got there.
    He provides him three weapons, as a party to
    this crime, and then he stoops down and he
    bursts the heart of this boy. That’s what the
    physical evidence shows you. You want to get
    theatric? I’m going to win the Oscar for the
    Best Actor or Best Attorney in a Prosecuting
    Role. Because I am right.
    Davis filed a motion for new trial claiming, inter alia, that
    the prosecutor’s comment on his failure to testify violated his
    6
    Fifth and Fourteenth Amendment rights.           The trial court conducted
    an evidentiary hearing, at which three witnesses testified for the
    defense.    According to these witnesses, the prosecutor pointed his
    finger directly at Davis while making the challenged comments, his
    face was very red, he was speaking in a loud voice, and he was
    trembling and shaking when he finished his argument.                 The only
    witness for the state was the jury foreman, who testified that the
    jury was instructed not to consider Davis’s failure to testify as
    evidence against    him;   that    the   court    instructed   the    jury   to
    disregard what the prosecutor said; and that, to his knowledge, the
    jury followed the trial court’s instructions.             The trial court
    denied the motion for new trial.
    Davis raised the claim again on direct appeal.                  The Texas
    Court of Criminal Appeals held that the prosecutor made a direct
    comment on Davis’s failure to testify and emphasized the comment
    when he raised his voice, walked toward Davis, and pointed directly
    at Davis.     The court assumed, arguendo, that the trial court’s
    instruction to disregard the improper comment did not cure the
    error.   However, the court concluded that the comment amounted to
    harmless error because none of the criteria set forth in Anderson
    v. Nelson, 
    390 U.S. 523
    , 524 (1968) were met:              The comment on
    Davis’s failure to testify “entailed a single comment, the emphasis
    of the State’s argument was the evidence, and there was no evidence
    that supported acquittal.”        Davis v. State, No. 73,458, at 5.
    7
    Davis     presented   this   claim   again    in   his   state   habeas
    application. The state habeas trial court concluded that the claim
    was not cognizable in the state habeas proceeding because it had
    been raised and rejected by the Court of Criminal Appeals on direct
    appeal.     The Texas Court of Criminal Appeals held that the state
    habeas trial court’s findings and conclusions were supported by the
    record, and denied state habeas relief.
    Davis     raised   the   claim   again   in    his    federal    habeas
    application.     The district court accepted the conclusion of the
    Texas Court of Criminal Appeals that the prosecutor’s comment
    violated Davis’s Fifth and Fourteenth Amendment rights, but held
    that the Texas court’s decision that the prosecutor’s error did not
    substantially and injuriously affect the verdict of guilt was not
    an unreasonable application of federal law.             The district court
    reasoned:
    Given the brevity of the comment, the
    lack of evidence to support an acquittal and
    the overwhelming evidence of guilt in this
    case, it is not likely that the prejudicial
    effect of the prosecution’s comment was
    significant. It was merely a single comment
    by the prosecution, and the trial court
    promptly ordered the jury to disregard the
    comment. The emphasis of the State’s case, as
    well as the emphasis of the comment itself,
    was on the strength of the evidence.       The
    prosecution did not rely on an inference of
    guilt from Davis’s silence. To the contrary,
    the great thrust of the prosecution’s case was
    the strength of the evidence, including
    evidence given by Davis himself in his
    confession.   There is virtually no evidence
    that would have supported acquittal.
    8
    Davis v. Quarterman, No. 2:03-CV-001, at 15-16.
    The district court held that Davis had failed to exhaust the
    issue of the effect of the improper comment on the punishment phase
    of his trial and, therefore, any claim regarding the punishment
    phase was procedurally defaulted.1            The district court stated
    further that, even if it were to consider the merits of the claim,
    the prosecutor’s comment did not have a substantial and injurious
    effect on the punishment phase.            We now turn to consider the
    clearly established federal law governing claims such as this, and
    then consider whether the Texas courts’ resolution of Davis’s claim
    is contrary to, or an unreasonable application of, that law.
    B.
    In Griffin v. California, the Supreme Court held “that the
    Fifth    Amendment,   in   its   direct    application   to   the   Federal
    Government and in its bearing on the States by reason of the
    Fourteenth Amendment, forbids either comment by the prosecution on
    the accused’s silence or instructions by the court that such
    silence is evidence of guilt.”            
    380 U.S. 609
    , 615 (1965).     In
    Chapman v. California, 
    386 U.S. 18
     (1967), the Court held that
    Griffin error is subject to harmless-error analysis.           
    Id. at 25
    ;
    1
    On appeal, Davis persists in asserting that the error also
    affected the outcome of the punishment phase of his trial. The
    district court’s grant of a COA is limited to the guilt-innocence
    phase of trial. Accordingly, we will not consider Davis’s argument
    that the prosecutor’s improper comment during closing argument at
    the guilt-innocence phase affected the verdict at the punishment
    phase. See Goodwin v. Johnson, 
    224 F.3d 450
    , 459 & n.6 (5th Cir.
    2000).
    9
    see also United States v. Hasting, 
    461 U.S. 499
    , 505 (1983)
    (holding    that    the    court    of    appeals    erred      by     asserting    its
    supervisory      powers,    and    by    not   applying     the      harmless    error
    doctrine, in reviewing claim of Griffin error).                 In 1968, the Court
    held that “comment on a defendant’s failure to testify cannot be
    labeled harmless error in a case where such comment is extensive,
    where an inference of guilt from silence is stressed to the jury as
    a basis of conviction, and where there is evidence that could have
    supported acquittal.”        Anderson v. Nelson, 
    390 U.S. at 523-24
    .                 In
    Brecht v. Abrahamson, 
    507 U.S. 619
     (1993), the Court held that in
    habeas proceedings, the test for harmless error is “whether the
    error   ‘had     substantial      and    injurious    effect      or    influence    in
    determining the jury’s verdict.’” 
    Id. at 623
     (quoting Kotteakos v.
    United States, 
    328 U.S. 750
    , 776 (1946)).
    The error of which Davis complains falls into the category of
    trial error, which “‘occur[s] during the presentation of the case
    to the jury,’ and is amenable to harmless-error analysis because it
    ‘may ...    be     quantitatively        assessed    in   the   context     of   other
    evidence presented in order to determine [the effect it had on the
    trial].’”   Id. at 629 (quoting Arizona v. Fulminante, 
    499 U.S. 279
    ,
    307-08 (1991)).        Accordingly, Griffin errors, such as the one
    claimed by Davis, are reviewed for harmless error in the context of
    the entire record.        See United States v. Robinson, 
    485 U.S. 25
    , 33
    (1988).
    C.
    10
    As we have noted, the Texas Court of Criminal Appeals applied
    Anderson v. Nelson, and concluded that the Griffin error in this
    case was harmless, because the comment was not extensive, an
    inference of guilt from silence was not stressed to the jury as a
    basis of conviction, and there was no evidence that could have
    supported acquittal.   Based on our review of the entire record, we
    are satisfied that the state court’s conclusion is neither contrary
    to, nor an unreasonable application of, clearly established federal
    law as determined by the Supreme Court of the United States.
    During individual voir dire, each person who was selected to
    serve on the jury was advised by the prosecutors that Davis had a
    constitutional right not to testify and that his failure to testify
    could not be considered as evidence of his guilt.   All but one of
    those jurors was questioned on voir dire by the prosecutor who made
    the comments at issue.
    At the close of all the evidence in the guilt-innocence phase,
    the trial court instructed the jury, orally and in writing, that:
    Our law provides that a defendant may testify
    in his own behalf if he elects to do so.
    This, however, is a privilege accorded a
    defendant, and in the event he elects not to
    testify, that fact cannot be taken as a
    circumstance against him. In this case, the
    defendant has elected not to testify, and you
    are instructed that you cannot and you must
    not refer or allude to that fact throughout
    your deliberations, or take into consideration
    for any purpose whatsoever as a circumstance
    against the defendant.
    11
    The     improper    comment      was    an   incidental       statement   in    an
    argument by the prosecution that focused on the strength of the
    evidence against          Davis.2       The    trial   court       promptly   sustained
    defense counsel’s objection to the improper comment and instructed
    the jury to disregard it.             The prosecution did not urge the jury to
    infer that Davis was guilty because he failed to testify.                      Instead,
    the prosecution argued that Davis should be found guilty of capital
    murder based on the strength of the evidence against him, which
    included his confession. As the district court observed, and as we
    have       confirmed   based     on   our     review   of    the    record,    there   is
    virtually no evidence that would have supported acquittal.                             We
    fully agree with the district court that, considering the brevity
    of the comment, the very strong evidence of guilt, and the absence
    of evidence that would have supported an acquittal, the improper
    comment       did   not   have   a    substantial      and    injurious       effect   or
    influence in determining the jury’s verdict.                         Accordingly, the
    state court did not unreasonably apply clearly established federal
    law when it concluded that the error was harmless.
    2
    The State argues that the prosecutor’s comment was an invited
    reply to the defense closing argument and therefore did not violate
    the Fifth and Fourteenth Amendments. The Texas Court of Criminal
    Appeals held, however, that the comment was improper, and that
    “[t]he prosecutor’s statement in conjunction with his physical
    actions was of such character that the jury would naturally and
    necessarily take it as such.” Davis v. State, No. 73,458, at 4.
    That conclusion is neither contrary to, nor an unreasonable
    application of, clearly established federal law. Accordingly, we
    defer to the state court’s conclusion that the challenged comment
    violated the rule established in Griffin.
    12
    III.
    For the foregoing reasons, the judgment of the district court
    denying federal habeas relief is
    AFFIRMED.
    13