Daniel Anthony Lucas v. Warden, Georgia Diagnostic and Classification Prison

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11909
________________________
D.C. Docket No. 5:09-cv-00289-CAR
DANIEL ANTHONY LUCAS,
Petitioner - Appellant,
versus
WARDEN, GEORGIA DIAGNOSTIC AND CLASSIFICATION PRISON,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(November 12, 2014)
Before HULL, MARCUS, and WILLIAM PRYOR, Circuit Judges.
MARCUS, Circuit Judge:
Daniel Anthony Lucas was sentenced to death for his role in the murders of
three members of the Moss family during a botched burglary and robbery. He
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appeals the district court’s denial of his federal petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Five claims are certified to us. On none is he
entitled to relief.
First, Lucas argues that his counsel were ineffective for failing to investigate
and present evidence about the effect of intoxication on his memory when Lucas
sought to suppress his videotaped confession. Lucas has failed to establish
prejudice under Strickland v. Washington, 466 U.S. 668 (1984), because the state
court reasonably concluded that the additional expert testimony would not likely
have led to the suppression of his confession. Lucas also claims that counsel were
ineffective for failing to present all of the available evidence concerning his social
history as mitigation. A reasonable state court, however, could have rejected this
argument on performance or prejudice grounds. In fact, trial counsel presented
extensive evidence of the petitioner’s troubled background as mitigation at the
penalty phase and decided strategically to keep out certain evidence that would
have also yielded aggravating facts.
Next, Lucas says that the State violated Brady v. Maryland, 373 U.S. 83
(1963), by failing to disclose a report of an interview of an eyewitness who briefly
saw an intoxicated Lucas immediately after the killings. The state court found the
claim to be procedurally defaulted because the petitioner could not establish
prejudice. Like the district court, we agree, particularly in light of the substantial
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body of evidence of intoxication actually presented to the jury. Lucas cannot show
prejudice because there is no reasonable probability that the witness’s testimony
would have affected the outcome. Lucas also argues that he was deprived of a fair
trial when a prosecutor said during cross-examination of a defense expert that
prison escapes occurred “every day.” The Georgia Supreme Court’s determination
that the comments (improper though they may have been) were harmless in context
was not contrary to or an unreasonable application of clearly established Supreme
Court law.
Finally, Lucas claims that the jury was improperly limited in its
consideration of mitigating evidence because the trial court refused to instruct the
jurors that each mitigating factor need not be found unanimously. Like the district
court, we agree that the Georgia Supreme Court’s decision was neither contrary to
nor an unreasonable application of federal law clearly established by the Supreme
Court when it determined that no such instruction was required because the jurors
were expressly told they could impose life imprisonment “for any reason . . . or
without any reason.” Thus, we affirm.
I.
A.
The essential facts adduced at trial are these. See Lucas v. State, 555 S.E.2d
440, 443-44 (Ga. 2001). On April 23, 1998, Lucas and Brandon Joseph Rhode
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twice burglarized the home of Steven and Gerri Ann Moss. During their second
burglary, eleven-year-old Bryan Moss returned home from school. When Lucas
and Rhode saw Bryan, they confronted him and forced him to sit in a chair.
Without warning, Lucas shot Bryan with a .25 caliber handgun causing non-fatal
injuries to his upper arm and shoulder. Lucas led the wounded boy to a bedroom,
where he shot Bryan repeatedly with the .25 caliber handgun. Meanwhile, fifteen-
year-old Kristin Moss (Bryan’s sister) also arrived home from school. Rhode
placed her in a chair and shot her twice with a .357 caliber handgun. When the
children’s father, Steven Moss, came home shortly after, Rhode shot him too, four
times with the .357 caliber handgun. Upon discovering what Rhode had done,
Lucas retrieved a .22 caliber handgun from Rhode’s car and still again shot both
children, Bryan and Kristin Moss. The three members of the Moss family died
from the gunshot wounds.
Several eyewitnesses saw Lucas and Rhode flee in Rhode’s red car from the
Mosses’ home. One witness identified Lucas as the passenger. Rhode’s car was
linked to the scene by damage to the vehicle, a tire impression, and paint left at the
scene. Lucas admitted his role in the killings in a videotaped confession.
B.
On September 16, 1999, a jury in Jones County, Georgia, convicted Lucas of
three counts of malice murder, three counts of felony murder, two counts of
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burglary, and one count of kidnapping with bodily injury. 1 The next day,
following the sentencing phase, the jury found beyond a reasonable doubt that the
murder of Bryan was committed while Lucas was engaged in the murder of
Kristin, a burglary, and a kidnapping with bodily injury, O.C.G.A. § 17-10-
30(b)(2), and that it was outrageously or wantonly vile, horrible, or inhuman in that
it involved depravity of mind, id. § 17-10-30(b)(7). The jury also found beyond a
reasonable doubt that Kristin’s murder was committed while Lucas was engaged in
the murder of Steven and a burglary. Id. § 17-10-30(b)(2). Finally, the jury
concluded beyond a reasonable doubt that the murder of Steven was committed
while Lucas was engaged in the murder of Bryan and a burglary. Id. The jury
unanimously concluded that the petitioner should be sentenced to die for each of
the three murders. See id. § 17-10-31(a).2
Lucas appealed without success his conviction and sentence to the Georgia
Supreme Court. Lucas, 555 S.E.2d at 443. The Supreme Court denied a writ of
certiorari. Lucas v. Georgia, 537 U.S. 840 (2002). Lucas then filed a pro se
petition for a writ of habeas corpus in a state trial court on August 13, 2003,
followed by an amended petition on March 1, 2007. The state habeas court denied
1
Because Jones was convicted of the three counts of malice murder, the three corresponding
felony murder convictions were vacated because they merged with malice murder. Lucas, 555
S.E.2d at 443 n.1; see O.C.G.A. § 16-1-7.
2
Separately, Rhode was tried, convicted, sentenced to death, and executed by the State of
Georgia.
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Lucas’s petition. Thereafter, the Georgia Supreme Court denied Lucas’s
application for a certificate of probable cause to appeal. Again, the Supreme Court
denied certiorari review. Lucas v. Upton, 559 U.S. 979 (2010).
Lucas then filed his extensive habeas claims in the United States District
Court for the Middle District of Georgia. The district court determined that three
of the eleven claims, including his Brady claim that the prosecution withheld
exculpatory evidence, were procedurally defaulted because he had not timely
raised them in the state courts and he could not excuse the default. The court
denied the remaining claims, including his arguments: that counsel had been
ineffective in failing to adequately investigate and challenge the videotaped
confession and in failing to present available mitigation evidence; that due process
was violated by the prosecutor’s cross-examination questions asserting that
Georgia prison escapes happened “every day”; and that the penalty-phase jury
charge and instructions unconstitutionally suggested that mitigation circumstances
must be found unanimously. The district court granted Lucas a certificate of
appealability on his two ineffectiveness of counsel claims and his Brady claim. On
Lucas’s motion, we expanded the COA to include the claims challenging the
prosecutor’s questions and the jury instructions.
II.
We review de novo a district court’s denial of federal habeas relief. Peterka
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v. McNeil, 532 F.3d 1199, 1200 (11th Cir. 2008). No one disputes that the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) applies to Lucas’s
habeas petition. Under AEDPA, if a petitioner’s habeas claim “was adjudicated on
the merits in State court proceedings,” a federal court may not grant relief unless
the state decision (1) “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) “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). Under
§ 2254(d)(1)’s “contrary to” clause, we grant relief only “if the state court arrives
at a conclusion opposite to that reached by [the Supreme] Court on a question of
law or if the state court decides a case differently than [the Supreme Court] has on
a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413
(2000). Under § 2254(d)(1)’s “unreasonable application” clause, we grant relief
only “if the state court identifies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that principle to the facts of
the prisoner’s case.” Id. For § 2254(d)(1), clearly established federal law includes
only the holdings of Supreme Court decisions -- not Supreme Court dicta and not
the opinions of this Court. White v. Woodall, 134 S. Ct. 1697, 1702 (2014).
The Supreme Court has explained that, to satisfy § 2254(d), “a state prisoner
must show that the state court’s ruling on the claim being presented in federal court
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was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011). The state
court need not cite or even be aware of Supreme Court precedents “so long as
neither the reasoning nor the result of the state-court decision contradicts them.”
Early v. Packer, 537 U.S. 3, 8 (2002). “[A]n ‘unreasonable application’ of
[Supreme Court] holdings must be ‘objectively unreasonable,’ not merely wrong;
even ‘clear error’ will not suffice.” Woodall, 134 S. Ct. at 1702 (quoting Lockyer
v. Andrade, 538 U.S. 63, 75-76 (2003)). In other words, Lucas must establish that
no fairminded jurist would have reached the Georgia court’s conclusion. See
Richter, 131 S. Ct. at 786-87. And Lucas must do so based only on the “record
that was before the state court that adjudicated the claim on the merits.” Cullen v.
Pinholster, 131 S. Ct. 1388, 1398 (2011). AEDPA also requires that we give state
court factual findings great deference. “[A] determination of a factual issue made
by a State court shall be presumed to be correct. The applicant shall have the
burden of rebutting the presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1). “If [the AEDPA] standard is difficult to meet,
that is because it was meant to be.” Richter, 131 S. Ct. at 786.
On federal habeas review, a federal constitutional error is harmless unless
there is “actual prejudice,” meaning that the error had a “substantial and injurious
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effect or influence” on the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619,
637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
Harmlessness under the Brecht standard is a question of law that we review de
novo. Vining v. Sec’y, Dep’t of Corr., 610 F.3d 568, 571 (11th Cir.2010) (per
curiam); Prevatte v. French, 547 F.3d 1300, 1305 (11th Cir.2008). “[I]n § 2254
proceedings a court must assess the prejudicial impact of constitutional error in a
state-court criminal trial under the ‘substantial and injurious effect’ standard set
forth in Brecht, whether or not the state appellate court recognized the error and
reviewed it for harmlessness under the ‘harmless beyond a reasonable doubt’
standard set forth in Chapman [v. California, 386 U.S. 18 (1967)].” Fry v. Pliler,
551 U.S. 112, 120 (2007). Because of the “[s]tates’ interest in finality,” the states’
“sovereignty over criminal matters,” and the limitation of habeas relief to those
“grievously wronged,” the Supreme Court set out in Brecht a standard that is more
favorable to and “less onerous” on the state, and thus less favorable to the
defendant, than the usual harmless beyond a reasonable doubt standard. Brecht,
507 U.S. at 637; accord Fry, 551 U.S. at 117. The Supreme Court explained in
Brecht that “collateral review is different from direct review,” and, therefore, that
“an error that may justify reversal on direct appeal will not necessarily support a
collateral attack on a final judgment.” 507 U.S. at 633–34. Thus, “a federal
habeas court may deny relief based solely on a determination that a federal
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constitutional error was harmless under the Brecht standard.” Mansfield v. Sec’y,
Dep’t of Corr., 679 F.3d 1301, 1308 (11th Cir. 2012), cert. denied sub nom.
Mansfield v. Tucker, 133 S. Ct. 861 (2013) (emphasis added).
III.
Lucas first claims that trial counsel were ineffective in two distinct ways:
first, because they inadequately attempted to suppress his videotaped confession;
and, second, because they failed to make a fulsome-enough presentation of the
available mitigating evidence during the penalty phase. It is by now hornbook law
that Strickland v. Washington, 466 U.S. 668 (1984), requires that Lucas establish
both “that his counsel provided deficient assistance and that there was prejudice as
a result.” Richter, 131 S. Ct. at 787. “To establish deficient performance, a person
challenging a conviction must show that ‘counsel’s representation fell below an
objective standard of reasonableness.’” Id. (quoting Strickland, 466 U.S. at 688).
Moreover, prejudice demands “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. “The likelihood of a different result
must be substantial, not just conceivable.” Richter, 131 S. Ct. at 792. “The
standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and
when the two apply in tandem, review is ‘doubly’ so.” Id. at 788 (citations
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omitted).
“[T]he highest state court decision reaching the merits of a habeas
petitioner’s claim is the relevant state court decision” for our AEDPA review.
Newland v. Hall, 527 F.3d 1162, 1199 (11th Cir. 2008). Lucas first raised his
Strickland claims before the state habeas court, which rejected them on the merits.
The Georgia Supreme Court refused to issue a certificate of probable cause to
appeal the state habeas court’s decision. Under our precedent, the Georgia
Supreme Court’s denial of the application for a certificate of probable cause to
appeal was the final state-court determination of Lucas’s Strickland claims. See
Jones v. GDCP Warden, 753 F.3d 1171, 1182 (11th Cir. 2014) (“[T]he rejection of
petitioner’s application for a certificate of probable cause to appeal was, implicitly,
a determination that none of petitioner’s claims had arguable merit.”) (internal
quotation marks omitted). Though the Georgia Supreme Court did not offer
reasons for its decision, “[w]here a state court’s decision is unaccompanied by an
explanation, the habeas petitioner’s burden still must be met by showing there was
no reasonable basis for the state court to deny relief.” Harrington, 131 S. Ct. at
784. Lucas cannot meet his substantial burden here because the Georgia Supreme
Court had many reasonable grounds for denying the Strickland claims. Indeed, the
outcome would not have been different even if the state trial court’s habeas ruling
was the relevant decision because that court did not act contrary to nor
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unreasonably apply clearly established Supreme Court law either.
A.
Lucas first says that trial counsel were ineffective for failing to adequately
develop and present expert witness testimony concerning the claimed
involuntariness of Lucas’s confession. The essential facts are these. On April 25,
1998, two days after the murders, police questioned Rhode, who told them he was
with Lucas on the day of the crime. That night, officers questioned Lucas at the
Jones County Sheriff’s Department. Lucas signed a waiver of his Miranda rights
and first denied any involvement in the slayings. During a break after about an
hour, the officers learned Rhode had implicated his confederate, Lucas, in the
murders. When confronted with this fact, Lucas continued to deny shooting
anyone or even possessing a gun that night. After still another break, the officers
showed Lucas three firearms used in the crime that had been recovered with
Rhode’s help. One officer told Lucas that Rhode was “going to be the main
witness against” him and “end up putting [him] in the electric chair” if Lucas
didn’t tell his side of the story. Lucas said he did not know what to do and asked
to see his girlfriend. The two interrogating officers left the room and allowed him
to speak with her for about five minutes. When the officers returned around
midnight, Lucas told them he wanted to sleep. He was escorted to a cell for the
night.
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The next morning, April 26, an officer retrieved Lucas and offered him food,
drink, and a cigarette. Lucas again was read his Miranda rights and said he was
willing to answer questions. One of the officers told Lucas that Rhode had given a
videotaped confession, which Lucas asked to see. After watching the tape, Lucas
said it was “bull shit” and agreed to tell his side of the story. An officer still again
read Lucas his Miranda rights. Lucas said he understood his rights and had not
been offered anything or threatened to elicit his statement. Lucas then gave a
videotaped confession to the Jones County police around noon.
Lucas began by explaining that he took six Xanax pills before burglarizing
the Moss home. He explained that, shortly after he and Rhode broke into the home
the second time, eleven-year-old Bryan Moss arrived. Lucas walked into the living
room, found the little boy sitting in a chair, and shot the boy, though he did not kill
him. Lucas took the boy into a bedroom. Rhode then yelled to Lucas that a girl
was coming in the house. Rhode then shot her. Lucas also recounted Rhode
telling him that her father was coming into the home next. After the father
hollered, Lucas said, “we shot him. I don’t know -- I didn’t hardly remember
hearing the gunshots or nothing.” According to Lucas, “I went in the living room
and the man was on the -- on the floor and the girl was sitting in the chair and I
went back into the bedroom and the little boy was sitting there and I shot him.”
Lucas said he returned to the bedroom, shot Bryan again, and then walked out to
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Rhode’s car to get a .22 caliber handgun. Lucas told police he came back inside
and shot the girl, Kristin, who was sitting in a chair after already having been
wounded by Rhode. Lucas said he also might have shot the boy, Bryan, with the
.22 caliber handgun. Lucas admitted that he knew what he did was wrong and said
he was sorry. He offered no reason or explanation for what happened.
Lucas’s trial counsel moved to suppress the confession as being involuntary
and unreliable for at least five reasons, including because Lucas simply repeated
what the officers and Rhode had told him since his drug and alcohol consumption
kept him from having any memory of the events. The trial court considered
Lucas’s motion to suppress at a pretrial hearing on July 9, 1999. After reviewing
the videotaped confession and hearing testimony from the interrogating officers,
the trial court denied Lucas’s motion to suppress. On direct appeal the Georgia
Supreme Court affirmed, finding the confession to have been voluntarily made
after Lucas waived his Miranda rights. Lucas, 555 S.E.2d at 445-46.
Lucas later argued to the habeas state trial court that trial counsel were
ineffective because they failed to develop and present expert testimony from Dr.
Anthony Stringer, a neuropsychologist, and Dr. Randall Tackett, a pharmacology
expert, to support their claim that Lucas’s intoxication on the day of the murders
rendered his confession unreliable. Dr. Stringer testified at an evidentiary hearing
that he was hired by trial counsel in March 1999 to conduct a neuropsychological
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examination of Lucas and to evaluate Lucas’s “susceptibility to suggestion from
others and his memory and behavior.” Stringer testified about Lucas’s “horrific
family circumstances,” his “extensive drug abuse,” and “the fact that he had . . . a
number of incidents where he had suffered blows to the head.” Stringer said Lucas
tested with an IQ of 110, at the upper end of the average range, but that he suffers
from “left hemisphere brain dysfunction,” which can be associated with
“remember[ing] information in less detail.” Stringer added that Lucas, due to this
disorder, may have gaps in his memory and might “take information that someone
has provided him . . . as being accurate.” He said he reviewed Lucas’s videotaped
confession in 2002 and, had he seen it in 1999, he could have testified that the
statement contained “gaps with regards to any detail” and “it seemed to be very
much responsive to the information that was being presented to him.” Stringer
said he was not called to testify at the suppression hearing or Lucas’s trial.
Dr. Tackett also testified at the state habeas evidentiary hearing. He said
that trial counsel contacted him in September 1998 and asked him to assess the
effects of drugs and alcohol on Lucas. Tackett explained that Lucas had a family
and personal history of drug abuse, which included “everything from cocaine,
alcohol, mushrooms, LSD, [and] prescription drugs.” According to Tackett, Lucas
could not remember much of what happened inside the Moss residence on the day
of the murders. Tackett said he informed trial counsel that he “felt strongly that
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[Lucas] had experienced a blackout or blackouts during the day of the crime.” He
also testified that Lucas, because of his blackouts, was susceptible to suggestibility,
which meant that when Lucas could not recall a detail about the events of the day,
he accepted an explanation suggested by someone else. Tackett opined that the
combination of drugs and alcohol that Lucas consumed on the day of the murders
“made it impossible for Mr. Lucas to understand events as they occurred, much
less remember any details later.”
On cross-examination, Tackett acknowledged, however, that he did not
know the exact amount of substances Lucas consumed on the day of the murders.
He also explained that it was not his opinion Lucas had no memory of the crimes,
just that there were periods of time that Lucas could not recall. Tackett said he
disagreed with Dr. John Robert Cusak, another of Lucas’s experts, who found that
Lucas was not in a blackout the day of the murders. Tackett explained that he
informed trial counsel of these findings and opinions but they did not call him to
testify at the suppression hearing or at trial.
The state habeas trial court denied relief on both the performance and
prejudice prongs of Strickland. The court observed that Lucas “has never denied
involvement in the case, and has never told anyone, in the past or present, that his
confession is untrue.” To the contrary, the state habeas trial court found that
Lucas’s statements to law enforcement and others showed he had a particularized
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memory of the crimes and of shooting Bryan Moss. Indeed, Lucas had “made
statements to his Uncle Brad Lucas and Derrick Jackson prior to talking to police
saying that he ‘messed up real bad’ and ‘killed somebody,’” and told “Robbie
Hunnicutt on the afternoon of the murders . . . that ‘he was killing those
motherfuckers.’” The court concluded that, combined with the videotaped
confession, the other confessions undermined Lucas’s claim that police fed him
information about the crime and also undermined his experts’ opinions that Lucas
was in a blackout and without any memory of the crimes. The state habeas trial
court found Lucas’s story was not likely to have been suggested by Rhode because
Lucas viewed Rhode’s videotaped statement just before saying “that’s bullshit”
and specifically recounting events that contradicted some of Rhode’s version.
We hold that the Georgia Supreme Court had a reasonable basis for rejecting
Lucas’s claim because the petitioner failed to establish a reasonable probability
that the result would have been different had the additional testimony been offered
at the suppression hearing. The testimony that Lucas says should have been
presented -- suggesting the petitioner had no memory of the events of the murder
due to drug use or brain damage -- was directly refuted by a substantial body of
evidence. Lucas professed and exhibited a memory of the murders in his
videotaped confession. He claimed specific responsibility for shooting Bryan and
Kristin, but not their father, whereas Rhode claimed that Lucas was responsible for
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all three slayings. And, before talking with police, he confessed to his uncle,
Jackson, and Hunnicutt about killing the victims. The long and the short of it is
that the petitioner has failed to establish that the state court’s determination about
prejudice was contrary to or an unreasonable application of clearly established
precedent. Since this claim fails on the prejudice prong we have no occasion to
address performance. See Strickland, 466 U.S. at 697.
In a related Strickland argument, Lucas says that trial counsel also should
have argued the police fed Lucas with the information contained in his confession
because every verifiable fact in Lucas’s statement could be traced to another
source. In essence, Lucas observes that police knew most of the basic facts of the
crime by the time Lucas confessed four days after the killings. No real surprise.
The police had investigated the crime and talked extensively with Rhode, so they
already were far along in gathering the facts that could be used to confirm Lucas’s
story. Moreover, Lucas ignores the key, unverifiable facts that he confessed about,
including having shot two victims -- the brother and the sister -- not three. Thus,
Lucas has failed to establish that the state court determination about performance
was an unreasonable application of Strickland. Under our doubly deferential
review, a court could reasonably conclude that trial counsel acted reasonably.
Moreover, the Georgia Supreme Court had a reasonable basis for concluding that
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petitioner failed to establish any prejudice.3
B.
Lucas’ next Strickland claim is that his trial counsel were ineffective for
failing to fully present his life history as mitigation during the penalty phase. A
review of the extensive record suggests quite the opposite. Indeed, the penalty
phase revealed that petitioner’s counsel presented substantial testimony concerning
Lucas’s personal background, family history, and character, among other things.
We detail what was presented because it amply establishes that the Georgia
Supreme Court did not unreasonably apply Strickland to that claim.
Lucas’s counsel presented the testimony of Dr. Cusack, “an expert in
Psychiatry with a special expertise in the effects of drugs and alcohol,” who
explained the effects of Xanax, Darvocet, and alcohol -- the drugs Lucas consumed
on the day of the murders. Cusack specifically opined that Lucas’s “recollection or
reasoning, his impulsivity, everything was eroded, almost destroyed,” and “his
judgment . . . was significantly marred.” Indeed, Cusack added that he did not
think the murder would have occurred but for the substances Lucas took.
Trial counsel also called Kelly Bowden, Lucas’s aunt, who testified in detail,
averring that Lucas’s maternal grandmother had always abused drugs and alcohol,
3
For the same reasons, we are unpersuaded by Lucas’s argument that trial counsel should have
developed the suppression argument about no new, verifiable information in Lucas’s statement
by consulting with “an expert in coerced confessions.”
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so much so that her children were placed in foster care. Meanwhile, Lucas’s
maternal grandfather was in prison. Bowden also said that Lucas’s mother began
using drugs and alcohol at an early age. By eighteen, Debra was pregnant with
Lucas. After Lucas’s birth, his father and Debra drank alcohol excessively,
smoked marijuana, used crack cocaine, and took methamphetamines for much of
his childhood, often when Lucas was in the house. According to Bowden,
substance abuse made it impossible for David and Debra to care for Lucas and his
younger sister Lacey. Bowden said that, in addition to abusing drugs in the
children’s presence, Lucas’s parents often fought in front of him and his sister.
Despite these surroundings, Bowden said Lucas had been a sweet and loving child.
She asked the jury not to impose the death penalty.
Defense counsel also called Lucas’s sister Lacey, fourteen at the time of
trial. She too testified about the harrowing circumstances surrounding the
petitioner’s childhood and upbringing. Lacey observed that her brother protected
her when their parents fought and comforted her and covered her ears so she would
not hear their mother and father argue. She said she loved her brother, she
apologized for the murders, and asked the jury to spare Lucas’s life.
Lucas’s paternal grandmother, Fay Lucas, testified that Lucas’s father had
not been present one day at the trial. Fay said she spent a lot of time with Lucas
when he was young and that he was more like a child to her than a grandchild. She
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called him a “marvelous child” who was sweet and well-behaved. She said he was
a gifted artist who still sent her pictures and wrote her often. Fay explained that
she frequently visited Lucas in jail and knew he was remorseful. She pled with the
jury to spare his life. Lucas’s paternal grandfather, Charles Lucas, also testified
that Lucas was a good child. He said he loved Lucas and sees him every week on
visiting day. He begged the jury not to sentence him to death. Reverend John
Miller Brown, the pastor at Debra’s church, testified that he visited Lucas in jail
about six times and that Lucas was “[v]ery remorseful and is feeling a lot of pain
for what he’s done.”
Trial counsel also presented a series of witnesses to testify about Rhode’s
criminal history in order to establish that he, and not Lucas, was the leader of the
criminal enterprise on the night of the murder. Thus, the jurors were presented
with testimony from the defense that Rhode successfully escaped from the Jones
County Jail and attempted a second escape in which a female jail supervisor was
physically attacked. A Georgia Bureau of Investigation Special Agent testified
that a polygraph of Rhode after the murders established deception when Rhode
denied shooting the victims -- the strongest deception occurred when Rhode
claimed he had not shot “the girl.” Still another witness, Bryan Keith Hyde, Jr.,
testified that when he was fourteen Rhode talked him into burglarizing a home,
something Hyde had never done before. According to Hyde, Rhode told him what
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to steal in the home and took several firearms, including one Rhode kept to commit
three more burglaries that day.
Trial counsel also cross-examined Derrick Jackson, a State witness, in order
to establish that Rhode “had been involved in virtually dozens of burglaries”
around the time of the murders, while Lucas had been involved in “no more than
three.” Jackson also testified that Lucas drank alcohol and used drugs, including
marijuana, mushrooms, and angel dust, at a young age. Jackson stated that Lucas’s
family abused drugs and drank alcohol. Jackson told the jury that at the time of the
murder Lucas had no home and nowhere to go. His “mother had kicked him out
and his father just . . . never seemed to care. I mean, never.” Jackson explained
that Lucas often talked to him about feeling neglected and abandoned by his
family. He told the jury that Lucas “always felt like -- he felt nobody wanted
him.”
Finally, as part of the elaborate mitigation presentation by defense counsel,
James Evans Aiken, a former prison warden, was called to testify as a corrections
and prison classifications expert. Aiken told the jury that he had reviewed Lucas’s
records from the Jones and Baldwin County jails and had spoken to jail staff, who
described Lucas as someone who “stays out of trouble,” “stays to himself,” and
“avoids trouble makers.” Lucas had been a model prisoner “for an extended period
of time” and, according to jail officials, “[i]f we had everybody like Mr. Lucas, we
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wouldn’t be running up and down these hallways all the time.” Aiken opined that
Lucas could be safely confined in a maximum security facility for the remainder of
his life without harming staff, other inmates, or the community.
Aiken also testified that he spoke with Lucas’s family to learn about the
environment in which he grew up. Aiken noted that, though he had interviewed
“many people,” seen “many lives that ha[d] been destroyed due to family
dysfunction,” and had “heard some heartbreak stories,” “[t]his case and this family
history [would] always remain with [him] so long as [he] live[d].” He explained
that Lucas’s family had a history of substance abuse, sexual abuse, alcohol abuse,
and abject poverty. Lucas’s family “ha[d] no structure,” “the mother is beaten up,”
and the “father is an alcoholic.” Lucas grew up in a family setting where he didn’t
know what to expect coming home from school: “Is it going to be a boyfriend
that’s beating up the mother[?]” Aiken said, in Lucas’s case, the problems had
passed “from generation to generation.” The State objected to further family
background testimony from Aiken. The trial court sustained the objection, ruling
that Aiken was going “outside the bounds of the qualification.” Still, Aiken
explained that the way Lucas dealt with his unstable upbringing was important
from a corrections perspective. Aiken reported, “I didn’t find any incidents of
violence, no arrest record where he was violent in a domestic situation or in the
community.”
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Notwithstanding the presentation of this mitigation evidence, Lucas claimed
that counsel was ineffective for failing to put forward still more facts about his
childhood. Specifically, Lucas submitted an affidavit from Louis Pelt, who grew
up with Lucas. Pelt stated that he saw Lucas’s father beat Lucas with a belt and
that Lucas’s stepmother Ginger often yelled at Lucas, called him obscene names,
and belittled him. Pelt said that “Ginger had strange sexual habits” and on multiple
occasions had touched Pelt’s genitalia when he was about fourteen. Lucas also
submitted an affidavit from Curtis Stephens, a high-school friend of Lucas’s, who
stated he avoided Lucas’s house because of Ginger, “a ‘pill-popper’ who would
often say sexual things to [Lucas].” Stephens reported that Ginger would watch
Lucas shower and comment on his genitals. Lucas also points to material in
defense counsel’s files referencing verbal abuse from Ginger, physical violence
Lucas’s father inflicted on Lucas’s mother and her boyfriend, and abuse Lucas’s
mother endured at the hands of boyfriends.
Lucas concedes, as he must, that trial counsel adequately investigated his
background. He argues only that trial counsel did not present all of the evidence it
had discovered. But “strategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable.” Strickland,
466 U.S. at 690. The state habeas court rejected Lucas’s Strickland claim,
concluding “that trial counsel’s presentation of mitigation evidence and trial
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counsel’s arguments, which were based on strategic decisions after a thorough
investigation, were not unreasonable and Petitioner was not prejudiced by trial
counsel not submitting the additional mitigation evidence or arguments presented
to this Court.” In the face of the elaborate record presented by the defense counsel
in mitigation, we are hardpressed to conclude that the Georgia Supreme Court
unreasonably applied Strickland when it denied Lucas’s claim. Trial counsel
presented the jury with evidence of an extensive family and personal history of
drug abuse. The jurors learned that Lucas grew up amidst poverty, instability,
neglect, addiction, and abuse. The additional evidence identified by Lucas would
have added little to the mitigation case because other evidence informed the jury of
his sad social history. See Pinholster, 131 S. Ct. at 1409 (“The ‘new’ evidence
largely duplicated the mitigation evidence at trial.”).
In addition, trial counsel reasonably feared that the additional evidence now
identified by Lucas would be a “two-edged sword,” undermining the argument that
he had endured a tough life but was largely an “innocent” until people like Rhode
influenced him. Atkins v. Virginia, 536 U.S. 304, 321 (2002). Indeed, when asked
if Lucas was a leader among his peers, Pelt explained that “when I’d be around
[Lucas would] be the oldest one, so . . . we all looked up to him.” This information
would have collided with trial counsel’s attempt to paint Rhodes as the “leader” in
the triple murder. What’s more, Pelt and Stephens testified extensively about
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Lucas’s prior drug use. The Supreme Court has recognized that evidence of
previous abuse and addiction can be mitigating in that it may offset moral
culpability, but also that it can have aggravating aspects if it undermines capacity
for rehabilitation and enhances future dangerousness. See Pinholster, 131 S. Ct. at
1410; Wong v. Belmontes, 558 U.S. 15, 22-24 (2009). Thus, while Pelt described
some physical and sexual abuse of Lucas, he also recalled that, leading up to the
Moss murders, Lucas “got more wild, just . . . not caring . . . . He used to dress
real nice and all, . . . then you see him and . . . he’d be . . . barefooted and . . . drunk
half the time or messed up . . . .” Pelt said that, during his teen years, “[t]he
amount of drugs [Lucas] was doing was on a higher level than what everybody else
was doing. He was doing a lot more. . . . Crank, cocaine, acid. I don’t know,
pretty much everything that’s out there.”
Stephens described strange sexual behavior of Lucas’s stepmother, but also
told how Lucas would take pills, including Xanax, from her house. Stephens said
that Lucas got into using and selling “crank,” or methamphetamine. In his
affidavit, Stephens reported Lucas’s monumental substance abuse, which “spiraled
out of control” and included: “one gram of crank per day while drinking and
popping pills at the same time”; hallucinogenic mushrooms, which he picked
trashbags full of and “was constantly eating”; a “tremendous amount of acid,” at
times “four to seven hits of acid at a time, when everyone else around him was
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taking one to two hits” -- sometimes he took as many as fourteen acid hits; on a
number of occasions, using about an “eight ball” of crack cocaine over a two or
three day period; and eventually, Lucas devolving to smoking embalming fluid.
Stephens “seldom saw [Lucas] without an alcoholic beverage in his hand.”
Contrary to the nonviolent image of Lucas painted by trial counsel, Stephens
notably also said Lucas got into many fistfights with his cousin, including one
when they were at a restaurant that continued into a moving pickup truck and
caused a car accident.
The testimony about Lucas’s childhood from witnesses like Pelt and
Stephens amounted to a mixed mitigation bag that arguably could have opened the
door to damaging evidence and “would likely have been more harmful than
helpful.” Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1324 (11th Cir.), cert.
denied sub nom. Evans v. Crews, 133 S. Ct. 2742 (2013). On this mixed record, a
court reasonably could conclude that Lucas’s lawyers followed a reasonable
mitigation strategy, particularly because Pelt or Stephens could have damaged the
sympathetic image of Lucas that counsel sought to cultivate. Moreover, the
Georgia Supreme Court reasonably could have found no Strickland prejudice
because the additional mitigation, viewed alongside the aggravating evidence that
would have come with it, and the powerful aggravators already in the record,
would not have affected the outcome with any reasonable probability.
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The same is true for Lucas’s claim that trial counsel “mishandled” Aiken by
presenting him as a lay witness instead of as a mitigation expert opining about
Lucas’s background, although he was qualified as an expert in corrections and
prison classifications. As this record reveals, Aiken offered social history
testimony at trial touching on Lucas’s experiences with poverty, drugs, alcohol,
and abuse. Moreover, trial counsel explained at the state habeas hearing that they
made the decision to present Mr. Aiken instead of a psychologist or psychiatrist as
they believed that he would be their best witness in mitigation. As part of this
strategy, trial counsel observed that they wanted to “cherry pick” positive
mitigation evidence from Mr. Aiken so that it would fit with his purpose in
testifying. By “cherry picking” their mitigation evidence from Mr. Aiken, trial
counsel said they would have been able to elicit testimony regarding Lucas’s social
background that could not safely have been brought out through other witnesses
without also confronting a variety of negative comments too. Thus, for example,
aside from the potentially damaging evidence we’ve detailed about Lucas’s serious
substance abuse problem and his violent behavior, there was also evidence from
Lucas’s mother that he had been kicked out of her house three months prior to the
murder because he had been using drugs, arguing, and fighting with her, and,
indeed, he had even brought drugs into the home around his younger sister. His
mother further acknowledged that immediately before Lucas was thrown out of the
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home, Lucas told her that “if it wasn’t against the law, sometimes he wished that
he could kill [her].”
Moreover, trial counsel were fully aware that Lucas had been diagnosed by
Central State Hospital with antisocial personality disorder, and there were hospital
records to this effect. Indeed, counsel expressed concern over this diagnosis and
how it could be misinterpreted by a jury. And if Aiken had been qualified as a
mitigation or social history expert, the door would have been opened to far broader
cross-examination by the State. Thus, counsel could well conclude that Aiken, as a
mitigation expert, would have done more harm than good. See Evans, 703 F.3d at
1328 (describing as harmful evidence about antisocial personality disorder, and
drug and alcohol use).
In short, we are unpersuaded by Lucas’s claim that counsel was deficient in
the way it attempted to present mitigation evidence through Aiken. A court
reasonably could find that presenting Lucas’s background through Aiken was part
of a reasonable strategy to introduce mitigating evidence without opening the door
to related and damaging facts. Finally, we note that though Aiken’s testimony
was cut short by the trial judge, Lucas did not present any evidence (or any
proffer) to the state habeas court concerning what additional testimony Aiken
could have provided regarding Lucas’s past.
IV.
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Lucas next claims that he should be granted a new trial because the
prosecution violated Brady by failing to disclose a report of a state investigator’s
interview with an eyewitness, Tim Bentley. The day before jury selection began,
the State’s chief investigator interviewed Bentley, a witness who saw a red car
speeding away from the scene immediately after the crime. Bentley told the
investigator that he had nearly smashed into the passenger side of the car, but that
the passenger remained slumped in his seat and unresponsive. The investigator
prepared a four-page report of the interview that stated the passenger “had slumped
down so the driver could see.” The Bentley Report was found in the government’s
files, but the defense did not receive the report until a post-appeal Open Records
Act request.
In an affidavit submitted to the state habeas court, Bentley gave a somewhat
different account of seeing a passenger with light hair. “His head was propped
back with his eyes facing forward, and he was resting his arm out the window.”
Bentley said that the passenger “never tried to move out of the line of vision of the
driver.” “He never looked towards the truck, and did not move at all in
anticipation of an accident when my truck almost collided into the passenger side
of the car.”
Under Brady, suppression by the prosecution of evidence favorable to an
accused violates due process if the evidence is material to guilt or punishment,
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regardless of the good faith of the prosecution. Strickler v. Greene, 527 U.S. 263,
280 (1999). The materiality prong of this test is met “if 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 question is not whether the defendant would more likely than
not have received a different verdict with the evidence, but whether in its absence
he received a fair trial, understood as a trial resulting in a verdict worthy of
confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995).
Lucas first raised this Brady argument before the state habeas court. That
court said the claim was procedurally defaulted because he did not make a timely
objection or raise it on direct appeal. The habeas court recognized that the
petitioner could overcome procedural default if he shows both “adequate cause . . .
and a showing of actual prejudice.” Black v. Hardin, 336 S.E.2d 754, 755 (Ga.
1985). The Georgia rule tracks Strickler, which explained that Brady claims can
be procedurally defaulted but that the default may be “excused by an adequate
showing of cause and prejudice.” 527 U.S. at 282. Prejudice requires “a
reasonable probability that the result of the trial would have been different if the
suppressed documents had been disclosed to the defense.” Id. at 289 (internal
quotation marks omitted).
The state habeas court held that Lucas could not demonstrate prejudice and
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thus could not overcome his procedural default. Considering the other witnesses
who testified extensively about Lucas’s behavior and intoxication on the day of the
murders, the state court concluded that testimony from Bentley would have been
cumulative at best and that there was no reasonable probability it would have
changed the outcome of the suppression hearing or the trial.
We do not apply § 2254(d) AEDPA review, which is reserved for claims
adjudicated on the merits, because the state habeas court relied on a procedural bar
in rejecting Lucas’s Brady claim. When a state court denies a claim as defaulted
based on an adequate and independent state procedural rule, a petitioner may not
bring the claim in federal habeas unless he can show cause for and actual prejudice
from the default. Jones v. Campbell, 436 F.3d 1285, 1304 (11th Cir. 2006). A
federal court may also hear a defaulted claim to avoid a fundamental miscarriage
of justice. See, e.g., Mincey v. Head, 206 F.3d 1106, 1135 (11th Cir. 2000). Lucas
has not invoked that exception, nor would it apply. Lucas claims that his
procedural default should be excused because he demonstrated both cause and
actual prejudice. The district court found that Lucas failed to establish prejudice.
Upon de novo review, we agree.
For prejudice, Lucas must demonstrate a reasonable probability that his
conviction or sentence would have been different had the State disclosed the
Bentley Report and the identity of Bentley as a potential witness. Strickler, 527
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U.S. at 280. We look both to the report itself and to evidence about what Bentley
might have testified to at trial. See Downs v. Sec’y, Fla. Dep’t of Corr., 738 F.3d
240, 260 (11th Cir. 2013) (explaining that the identity of a witness is Brady
material when that “potential witness would offer or lead to exculpatory or
impeaching information favorable to the defendant”). Lucas claims he suffered
prejudice because Bentley’s story showed the extent of Lucas’s intoxication, which
prevented him from forming the requisite intent to commit malice murder. The
essential problem is that there is no reasonable probability that Bentley’s testimony
would have altered the outcome on the intoxication defense because it added little
that was new.
During the guilt phase, the jury heard an extensive presentation concerning
Lucas’s intoxication and mental state at the time of the killings. The jury learned
that Lucas had taken between six and ten Xanax pills hours before the murder, he
had been drinking red wine, and he had taken an unknown quantity of Darvocet.
Lucas’s friends testified that after the murders Lucas was completely “messed up,”
“tore down,” and was obviously intoxicated from either alcohol or drugs because
his speech was slurred and he “couldn’t walk straight” -- he was “swaying,”
rubbing his head, and moving “like he’d been drinking all day.” And, again, an
expert witness who specialized in the effects of drug and alcohol, Dr. John Cusack,
testified that, due to the effects of Xanax, Darvocet, and alcohol, on the day of the
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crime Lucas “had to be thoroughly intoxicated.” His “memory, concentration,
judgment, impulsivity, insight, . . . [and] orientation . . . had to be gravely
impaired.” With “the amount of drugs that the record showed that this boy took, if
he did not possess something called tolerance, he could have easily o.d’ed on that
or been in an emergency room or died.” According to Dr. Cusack, “it would be
difficult to be able to co-ordinate the making of a sandwich,” much less “logically
plan out thoughts.” His “thoughts were, I think, acting more like a Roman candle,
just kind of going off in undirected manners, which would be the case with this
type of intoxication.”
Moreover, even if Bentley had testified that, from his brief car-to-car
observation, a passenger in a red vehicle failed to react to the threat of a crash, it
would not have proven that Lucas lacked the requisite mental state when he shot
the victims. Indeed, Bentley’s account is consistent with the way Lucas himself
described his mental state, which was not so compromised as to negate intent: “I
know what was happening, but I was just like dazed and can’t think.” In short, we
can discern no reasonable probability that testimony from Bentley would have
made Lucas’s intoxication defense any more successful than it was.
Lucas also argues that Bentley’s testimony would have supported
suppression of the videotaped confession because it showed Lucas could not have
remembered the crime. But as we’ve explained Lucas’s trial counsel had access to
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significant evidence of Lucas’s intoxication without Bentley. Bentley’s testimony
would not have shown Lucas lacked memory of the shootings. Moreover, the
strongest signals of the knowing and voluntary nature of the videotaped confession
came from his extensive statements fully captured on tape. Quite simply, Lucas
has not shown a reasonable probability that Bentley’s testimony would have led to
suppression.
Finally, Lucas argues that Bentley would have created residual doubt in the
minds of jurors during the penalty phase, leading them to be less than certain that
Lucas had the requisite mental state or was deserving of death. Lucas does not
explain how testimony from Bentley would have fueled any more residual doubt
than had already been created by the other evidence presented about the nature and
extent of his intoxication. The fact that the defense did not have the benefit of
Bentley’s testimony does not undermine confidence in the verdict or the sentence.
See Strickler, 527 U.S. at 290.4
V.
The petitioner also seeks a new trial because the prosecutor improperly said
during cross-examination that prison escapes happen “every day.” We remain
unpersuaded. The Georgia Supreme Court’s determination, rendered on direct
4
We are equally unpersuaded that the cumulative effect from Lucas’s Strickland and Brady
claims entitles him to relief. See Conklin v. Schofield, 366 F.3d 1191, 1210 (11th Cir. 2004)
(“[W]e cannot say that [petitioner’s] trial, as a whole, was fundamentally unfair and outside of
the bounds of the Constitution.”).
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appeal, that any error was harmless was not an unreasonable application of
Supreme Court law. This is especially true since the harmless error standard we
apply as a federal habeas court -- that the error is harmless unless there is “actual
prejudice,” meaning that the error had a “substantial and injurious effect or
influence” on the jury’s verdict, Brecht, 507 U.S. at 637 -- is more difficult to meet
than the one applied by the Georgia Supreme Court.
During the penalty phase, defense expert Aiken opined that “Lucas can be
confined in a maximum security prison for the remainder of his life without
presenting a harm to staff, other inmates or the community.” On cross-
examination, prosecutor Bright attempted to highlight the risk that Lucas would
escape by asking whether Aiken would be surprised that escapes occurred at a
prison complex in Baldwin County, Georgia, “all the time, every day.” Bright
prefaced his question by explaining that he knew about the escapes because he had
prosecuted many of the cases. The trial court overruled defense counsel’s
objection. Bright then framed the question this way: “Would it surprise you if
inmates -- and when I say escape every day, I mean it’s -- it’s a very common
occurrence.” Aiken squarely rejected Bright’s question, offering that “[n]o, they
don’t oftentimes escape,” and explained that prison escapes had been substantially
curtailed over the last twenty years. Aiken also challenged the definition of escape
assumed by the prosecutor’s question, observing that the prosecutor could be
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including a number of infractions at lower-security facilities. Thus, for example,
an incident could be considered an escape when a prisoner with authorization to
leave a low-security prison returns too late, or is in a unauthorized area. Aiken
went on to observe that would not be possible at a high-security prison holding
Lucas.
To further rebut the prosecutor’s questions concerning prison escapes,
Lucas’s counsel used redirect examination to address the State’s line of
questioning, pointing out that Georgia prisons were classified in six security levels.
Lucas would only be housed in a level six facility because he had committed a
heinous crime. He then questioned Aiken about a “Georgia Department of
Corrections FY’98 Report,” which indicated that “all the prisons that Mr. Bright
talked about where they have escaped virtually every day, according to him, they
are all level three and four.” These lower level security facilities allowed prisoners
to leave for work details. Notably, Lucas would not enjoy similar freedoms if
sentenced to life imprisonment. Aiken again emphasized that there was “no
chance” and “no way” that Lucas would be housed in a reduced-security prison,
and instead would be housed in a level six prison.
On recross, the prosecutor returned to the escape theme, asking Aiken
whether he would be surprised to learn that numerous murderers had escaped from
(the level three and four security) Baldwin County prisons. Aiken pushed back,
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explaining that some prisoners who committed murder could be held in lower-
security prisons than the facilities for those like Lucas who committed “heinous
crimes.”
After the jury voted for death, Lucas’s counsel moved for a new trial based
on public records showing that escapes from the prisons referenced by the
prosecutor occurred about twice a year, not every day. The trial court denied the
motion. On direct appeal, Lucas renewed his argument that the prosecutor’s
comments about “every day” escapes from Georgia prisons had no factual basis
and no evidentiary support, and that he had instead personally vouched for them as
the District Attorney for the judicial circuit where the trial was held. The Georgia
Supreme Court explained that, though the subject matter -- escape frequency -- was
proper for cross-examination because Aiken had raised the issue of prison security,
it “[found] merit in the objection Lucas raised asserting that the district attorney
had been unclear or had exaggerated in his use of the phrase ‘every day’ in
describing the frequency of escapes.” Lucas, 555 S.E.2d at 449. “Nevertheless,”
the Georgia Supreme Court concluded, “considering the trial record, . . . the
ensuing exchange between the witness and the district attorney rendered harmless
any error in the trial court’s not addressing the district attorney’s use of hyperbole,
particularly because the district attorney himself later clarified that he was using
the phrase as an idiom and not literally.” Id. “Likewise,” the court concluded,
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“any error in the trial court’s failure to sustain a later defense objection to the
district attorney’s ‘testifying’ in his cross-examination questions was harmless in
light of the questions and testimony viewed as a whole.” Id.
A prosecutor may not “misstat[e] the facts in his cross-examination of
witnesses” or “assum[e] prejudicial facts not in evidence.” Berger v. United
States, 295 U.S. 78, 84 (1935). Because the average juror generally trusts the
prosecutor to pursue justice, “improper suggestions, insinuations, and, especially,
assertions of personal knowledge are apt to carry much weight against the accused
when they should properly carry none.” Id. at 88. Nevertheless, improper
comments only violate the Constitution if they “so infected the trial with unfairness
as to make the resulting conviction a denial of due process.’” Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974)).
We can discern nothing unreasonable in the Georgia Supreme Court’s
determination that the prosecutor’s comments were harmless. That decision was
wholly consistent with the United States Supreme Court’s refusal to grant relief in
Darden and Donnelly, two cases cited by petitioner. In Darden, the prosecutor’s
closing argument during the guilt phase was problematic in a number of ways: he
partially blamed prison officials for the crime because they had released the
Defendant on furlough; he implied that the death penalty would be the only
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guarantee against a similar act; he incorporated the defense’s description of the
perpetrator of the crime as an “animal”; and he made several offensive comments
reflecting an emotional reaction to the case, such as wishing the victim “had had a
shotgun in his hand when he walked in the back door and blown his [Darden’s]
face off. I wish that I could see him sitting here with no face, blown away by a
shotgun.” Darden, 477 U.S. at 179, 180 & n.12 (internal quotation mark omitted).
Though the Supreme Court found that the prosecutor’s argument deserved
“condemnation,” id. at 179, it held that his comments “did not deprive petitioner of
a fair trial,” id. at 181. The prosecutor did not “manipulate or misstate the
evidence, nor did it implicate other specific rights of the accused such as the right
to counsel or the right to remain silent.” Id. at 182. “Much of the objectionable
content was invited by or was responsive to the opening summation of the
defense.” Id. And “[t]he trial court instructed the jurors several times that their
decision was to be made on the basis of the evidence alone, and that the arguments
of counsel were not evidence.” Id. Finally, defense counsel “were able to use the
opportunity for rebuttal very effectively, turning much of the prosecutors’ closing
argument against them by placing many of the prosecutors’ comments and actions
in a light that was more likely to engender strong disapproval than result in
inflamed passions against petitioner.” Id. As a result, the Supreme Court found
“Darden’s trial was not perfect -- few are -- but neither was it fundamentally
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unfair.” Id. at 183 (internal quotation marks omitted). It is undeniable that the
prosecutor’s questions/comments about escape in this case were far less egregious
than what was said by the prosecutor in Darden. Moreover, counsel had every
opportunity to and did vigorously redirect the witness about the unlikelihood of
escape from the type of Georgia prison that might house Lucas. The Georgia
Supreme Court’s determination was not an unreasonable application of Darden.
The Supreme Court also denied relief in Donnelly, when a prosecutor told a
jury during closing argument that the defendant and his counsel hoped that the jury
would “find him guilty of something a little less than first-degree murder.” 416
U.S. at 640 (internal quotation mark omitted). The Supreme Court found that “the
prosecutor’s remark here, admittedly an ambiguous one, was but one moment in an
extended trial and was followed by specific disapproving instructions.” Id. at 645.
The Court concluded that, “[a]lthough the process of constitutional line drawing in
this regard is necessarily imprecise, we simply do not believe that this incident
made respondent’s trial so fundamentally unfair as to deny him due process.” Id.
(emphasis added). Again, nothing in Donnelly suggests that the Georgia Supreme
Court’s determination on this point in this case was an unreasonable one.
Moreover, the Supreme Court recently explained in Parker the meaning of
its holding in Darden. Reversing a grant of habeas relief when a prosecutor
commented during closing argument that the defendant had colluded with his
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lawyer in manufacturing a defense, the Supreme Court observed, “even if the
comment is understood as directing the jury’s attention to inappropriate
considerations, that would not establish that the [state court’s] rejection of the
Darden prosecutorial misconduct claim ‘was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.’” Parker v. Matthews, 132 S. Ct. 2148,
2155 (2012) (quoting Harrington, 131 S. Ct. at 786-87). “Particularly because the
Darden standard is a very general one, leaving courts ‘more leeway . . . in reaching
outcomes in case-by-case determinations,’ the Sixth Circuit had no warrant to set
aside the [state] Supreme Court’s conclusion.” Id. (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). 5
Quite simply, the Georgia Supreme Court’s harmless-error determination
was not contrary to or an unreasonable application of the Supreme Court’s
“necessarily imprecise” rule. Here, the factors identified in Darden and Donnelly
cut in different directions. On the one hand, the prosecutor arguably interjected
facts about escape not in evidence, albeit in the form of a series of questions. On
the other, the comments were limited to the cross-examination and recross of
5
Lucas would have us consider our own precedents, and those of other Circuits, in our analysis.
Section 2254(d) forbids this practice. See, e.g., Lopez v. Smith, __ S. Ct. __, No. 13-946, 2014
WL 4956764, *1 (Oct. 6, 2014) (“We have emphasized, time and again, that [AEDPA] prohibits
the federal courts of appeals from relying on their own precedent to conclude that a particular
constitutional principle is ‘clearly established.’”); Parker, 132 S. Ct. at 2155 (“The Sixth Circuit
also erred by consulting its own precedents, rather than those of this Court, in assessing the
reasonableness of the Kentucky Supreme Court’s decision.”).
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Aiken as a corrections expert witness. Moreover, the responses of Aiken, as well
as redirect by defense counsel, mitigated any potential prejudice by making clear
that the prisons the prosecutor said were plagued by every-day escapes had looser
restrictions than the maximum-security facilities Lucas would face. We add that
the prosecutor made no mention of the likelihood of escape from prison in his
closing argument. And the trial judge charged the jurors during the guilt phase that
facts must be proven through evidence, which includes the testimony of witnesses
but not arguments from attorneys. On this record, a reasonable jurist could fairly
conclude that the prosecutor’s questions about escape did not so taint the penalty
phase as to violate due process. And, at the very least, we cannot say that the error
had a “substantial and injurious effect or influence” on the jury’s verdict. Brecht,
507 U.S. at 637.
Lucas also argues that the Georgia Supreme Court unreasonably found that
the prosecutor had used the term “every day” as an idiom instead of literally. But
there can be little doubt that the prosecutor did not suggest that escapes happened
on every single day, especially because he explained “when I say escape every day,
I mean it’s -- it’s a very common occurrence.” If we view the Georgia Supreme
Court’s inference about this as being a finding of fact, Lucas has not met his
burden of rebutting the presumption of correctness we must afford it by “clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1). Nor has he shown that the Georgia
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Supreme Court’s decision was an “unreasonable determination of the facts in light
of the evidence presented in the State court proceeding..” 28 U.S.C. § 2254(d)(2).
VI.
Finally, Lucas complains that the trial court failed to instruct the jury that
mitigating factors need not be found unanimously. Lucas cannot prevail because
the Georgia Supreme Court’s decision on the adequacy of the instructions was not
contrary to or an unreasonable application of the Supreme Court precedents he
cites, Mills v. Maryland, 486 U.S. 367 (1988), and McKoy v. North Carolina, 494
U.S. 433 (1990).
In Mills, a prisoner sentenced to death challenged his sentence because the
jury instructions and verdict form used by the Maryland trial court had prohibited
jurors from considering mitigating evidence unless the entire jury unanimously
found that a mitigating factor existed. The verdict form stated: “Based upon the
evidence we unanimously find that each of the following mitigating circumstances
which is marked ‘yes’ has been proven to exist by a preponderance of the evidence
and each mitigating circumstance marked ‘no’ has not been proven by a
preponderance of the evidence.” Mills, 486 U.S. at 387 (emphasis omitted). The
Supreme Court held that “the sentencer must be permitted to consider all
mitigating evidence,” regardless of whether a factor was found unanimously. Id. at
384. The Court vacated the death sentence in Mills because the jury instructions
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and verdict form created “a substantial probability that reasonable jurors . . . well
may have thought they were precluded from considering any mitigating evidence
unless all 12 jurors agreed on the existence of a particular such circumstance.” Id.
Two years later in McKoy, the Supreme Court applied Mills to strike down a
North Carolina unanimity requirement that prevented a capital jury from
considering any mitigating factor it did not unanimously find. McKoy, 494 U.S. at
436. The judge had instructed the jury: “If you do not unanimously find [a]
mitigating circumstance by a preponderance of the evidence, so indicate by having
your foreman write, ‘No,’ in that space.” Id. Similarly, the verdict form read: “In
the space after each mitigating circumstance, write ‘Yes,’ if you unanimously find
that mitigating circumstance by a preponderance of the evidence. Write, ‘No,’ if
you do not unanimously find that mitigating circumstance by a preponderance of
the evidence.” Id. The Supreme Court held that, under Mills, “North Carolina’s
unanimity requirement violates the Constitution by preventing the sentencer from
considering all mitigating evidence.” Id. at 435. In fact, the Court noted, McKoy
was “an even clearer case for reversal than Mills” because in Mills “the Court
divided over the issue whether a reasonable juror could have interpreted the
instructions in that case as allowing individual jurors to consider only mitigating
circumstances that the jury unanimously found.” Id. at 444 n.8. “In this case, by
contrast, the instructions and verdict form expressly limited the jury’s
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consideration to mitigating circumstances unanimously found.” Id.
Here, the trial court’s jury instructions and verdict form contained no
statement that reasonably could be read by jurors to require unanimity on
mitigating factors. And Lucas can point us to no Supreme Court precedent clearly
establishing that an affirmative instruction must be given when the trial court has
not otherwise suggested that unanimity is mandatory. Moreover, as the Georgia
Supreme Court concluded on direct review, the trial judge in fact “charged the jury
that it could impose a life sentence for any reason or no reason.” Lucas, 555
S.E.2d at 450 (emphasis added). Any reasonable juror would have known from
these instructions that she was free to vote for life imprisonment for any reason she
chose, regardless of whether other jurors found the existence of mitigating factors.
Unlike in Mills and McKoy, there was no danger that a reasonable juror would
have felt compelled to vote for death if she were moved by a mitigating factor not
found by another juror. The Georgia Supreme Court did not contradict or
unreasonably apply these cases in denying relief.
AFFIRMED.
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