Othlone Russ v. Department of Corrections

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-15537 APRIL 5, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 1:11-cv-21212-MGC
OTHLONE RUSS,
llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,
versus
DEPARTMENT OF CORRECTIONS,
llllllllllllllllllllllllllllllllllllllll Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 5, 2012)
Before HULL, MARCUS and MARTIN, Circuit Judges.
PER CURIAM:
Othlone Russ, a pro se Florida prisoner, appeals the district court’s denial of
his 28 U.S.C. § 2254 federal habeas petition. On appeal, Russ argues that: (1) the
State’s witness, Pamela Garman, should not have been allowed to testify that based
on her experience as a forensic interviewer, child victims of sexual assault do not
always disclose everything at once; (2) the Florida trial court violated his rights by
denying him the right to present character evidence; and (3) the trial court allowed the
prosecutor to make improper comments during closing arguments. After careful
review, we affirm.1
We review de novo a district court’s grant or denial of a habeas corpus petition.
Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir.), cert. denied, 131 S.Ct. 647 (2010).
The district court’s factual findings are reviewed for clear error, while mixed
questions of law and fact are reviewed de novo. Id. As amended by the Anti-
Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214 (1996), 28 U.S.C. § 2254(d) forbids federal courts from granting
habeas relief on claims that were previously adjudicated on the merits in state court,
unless the adjudication
(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
1
Because we’ve concluded that oral argument is unnecessary in this appeal, Russ’s
motion to appoint counsel for the purposes of oral arguments is DENIED AS MOOT.
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(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] federal habeas court making the ‘unreasonable
application’ inquiry should ask whether the state court’s application of clearly
established law was objectively unreasonable.” Williams v. Taylor, 529 U.S. 362,
409 (2000). Moreover, “[i]t is the objective reasonableness, not the correctness per
se, of the state court decision that we are to decide.” Brown v. Head, 272 F.3d 1308,
1313 (11th Cir. 2001).
First, we are unpersuaded by Russ’s argument that the state court’s
determination allowing the State’s witness, Ms. Garman, to testify about victim
disclosure was contrary to, or involved an unreasonable application of, clearly
established Federal law. We generally do not review a state court’s admission of
evidence in habeas corpus proceedings. See McCoy v. Newsome, 953 F.2d 1252,
1265 (11th Cir. 1992). We will not grant federal habeas corpus relief based on an
evidentiary ruling unless the ruling affects the fundamental fairness of the trial. See
Baxter v. Thomas, 45 F.3d 1501, 1509 (11th Cir. 1995). Erroneously admitted
evidence deprives a defendant of fundamental fairness only if it was a “crucial,
critical, highly significant factor” in obtaining the conviction. Williams v. Kemp, 846
F.2d 1276, 1281 (11th Cir. 1988) (quotation omitted).
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Under Florida law, State witnesses cannot vouch or directly testify as to the
truthfulness of the victim. Tingle v. State, 536 So.2d 202, 205 (Fla. 1988). State
witnesses are also not allowed to testify in a criminal prosecution for child abuse that
the alleged victim of sexual abuse exhibits symptoms consistent with one who has
been sexually abused. See Hadden v. State, 690 So.2d 573, 577, 581 (Fla. 1997).
The record before us does not support Russ’s claim that Garman, as a lay
witness, was improperly allowed to give opinion testimony. Instead, the record
reflects that Garman was not giving her opinion, but was merely saying that based on
her experience as a forensic interviewer, children often did not disclose everything
about the abuse at once. There is nothing in the Florida evidence rules that precludes
a lay witness from testifying about her past experience. Additionally, as held by the
Florida appellate court, Garman did not testify that the victim, D.H., was telling the
truth or suggest her belief that D.H. was telling the truth. As the record shows,
Garman testified about the process used in conducting interviews with child sexual
assault victims and the video of her interview with D.H. was played for the jury.
Further, Garman never testified that D.H. exhibited symptoms consistent with sexual
abuse. Because her testimony was not erroneously admitted under Florida law, it did
not make Russ’s trial fundamentally unfair. And in any event, even if the state court
erroneously admitted Garman’s testimony, there is nothing to suggest that this was
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a “crucial, critical, highly significant factor” in obtaining Russ’s conviction. Russ
therefore has not shown that the state court’s determination was contrary to, or
involved an unreasonable application of, clearly established Federal law.
We also reject Russ’s claim that the Florida court’s denial of his right to
present character evidence was contrary to, or involved an unreasonable application
of, clearly established Federal law. Section 90.404(1)(a) of the Florida statutes
provides that “[e]vidence of a person’s character . . . is inadmissible to prove action
in conformity with it on a particular occasion, except . . . [e]vidence of a pertinent
trait of character offered by an accused.”
Here, the Florida Court of Appeals found that Russ’s character witnesses were
properly excluded because Russ’s reputation for non-violence and respect towards
females was not pertinent to the offenses charged. The record supports the state
court’s conclusion because: (1) the evidence presented at trial did not indicate that the
charged offenses involved any violence; and (2) there is nothing in the record to
suggest that Russ’s reputation for respecting women in the community was pertinent
to the charged offense. Since the evidence was properly excluded based on Fla. Stat.
§ 90.404(1)(a), Russ cannot show that this made his trial fundamentally unfair.
Moreover, contrary to Russ’s claim, the Supreme Court has never provided that a
defendant can always present character evidence. Thus, the state court’s decision was
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not contrary to, or involved an unreasonable application of, clearly established
Federal law.
Finally, we disagree with Russ that the Florida court’s decision that the
prosecutor’s comments during closing arguments (which Russ claims shifted the
burden of proof, appealed to the jurors’ social conscience, made improper epithets
and were prejudicial, referred to lesser included offenses as “misdemeanors,” and
attacked defense counsel) did not constitute fundamental error was contrary to, or an
unreasonable application of, clearly established Federal law. “To find prosecutorial
misconduct, a two-pronged test must be met: (1) the remarks must be improper, and
(2) the remarks must prejudicially affect the substantial rights of the defendant.”
United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir. 1991). “The reversal of a
conviction or a sentence is warranted when improper comments by a prosecutor have
‘so infected the trial with unfairness as to make the resulting conviction [or sentence]
a denial of due process.’” Parker v. Head, 244 F.3d 831, 838 (11th Cir. 2001)
(quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). Due process is denied
“when there is a reasonable probability,” or “a probability sufficient to undermine
confidence in the outcome,” that, but for the improper remarks, the outcome of the
proceeding would have been different. Eyster, 948 F.2d at 1206-07 (quotation
omitted). If prosecutorial misconduct renders a trial fundamentally unfair, there is a
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denial of due process. Land v. Allen, 573 F.3d 1211, 1219 (11th Cir. 2009). If it fails
to render the trial fundamentally unfair, however, habeas relief is not available. Id.The remarks are considered under the totality of the circumstances. Hall v.
Wainwright, 733 F.2d 766, 773 (11th Cir. 1984). To determine whether arguments
are sufficiently egregious to result in the denial of due process, we consider factors
including: “(1) whether the remarks were isolated, ambiguous, or unintentional; (2)
whether there was a contemporaneous objection by defense counsel; (3) the trial
court’s instructions; and (4) the weight of aggravating and mitigating factors.” Land,
573 F.3d at 1219-20. “[T]he bar for granting habeas based on prosecutorial
misconduct is a high one.” Id. at 1220.
In a criminal proceeding, the government has the burden of proving every
element of the charged offense beyond a reasonable doubt. United States v. Simon,
964 F.2d 1082, 1086 (11th Cir. 1992). During closing arguments, “prosecutors must
refrain from making burden-shifting arguments which suggest that the defendant has
an obligation to produce any evidence or to prove innocence.” Id. However,
“prejudice from the comments of a prosecutor which may result in a shifting of the
burden of proof can be cured by a court’s instruction regarding the burden of proof.”
Id. at 1087. Furthermore, prosecutors may argue about the defense witnesses’
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credibility when the defense has attacked the State witnesses’ credibility. United
States v. Eley, 723 F.2d 1522, 1526 (11th Cir. 1984).
In this case, the record reflects that the prosecutor’s three comments, in which
he asked where the proof was that someone else sexually abused D.H., were proper
comments on Russ’s defense at trial that D.H. was lying to cover up for someone else
who molested her. Moreover, even if the prosecutor’s statements were improper, the
trial court gave a cautionary instruction regarding the burden of proof at the time the
first two comments were made. Because there was no prosecutorial misconduct with
regard to any of the allegedly burden-shifting comments made during closing
arguments, Russ’s trial was not fundamentally unfair.
The remaining comments that Russ challenges on appeal were also permissible
or harmless. The record reflects that the prosecutor did not appeal to the jury’s social
conscience, but actually reminded the jury that sympathy was not to be part of their
deliberations and acknowledged that they had a difficult decision to make. As for the
prosecutor’s comments about Russ’s family, they were not improper when viewed in
context. As the record shows, the prosecutor was arguing about the credibility of the
defense witnesses, which he was entitled to do since Russ had attacked the credibility
of the State’s witnesses. In addition, based on the evidence presented at trial, the
prosecutor’s reference to Russ as a sexual predator was a fair comment. The record
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also reflects that the prosecutor did not impermissibly attack Russ’s counsel. Indeed,
the prosecutor’s comment that Russ’s counsel did not want the jury to focus on the
detailed testimony simply was a comment on Russ’s defense that someone else
molested D.H. We thus find no prosecutorial misconduct based on any of these
comments.
We recognize that it may have been improper for the prosecutor to refer to the
lesser included offenses as “misdemeanors.” However, the record reflects that Russ’s
counsel objected, the objection was sustained, and the trial court explicitly stated that
“the degree of the charge cannot be spoken about.” In light of the record as a whole,
we cannot conclude that these comments rendered the trial fundamentally unfair.
Accordingly, the Florida court’s decision that the prosecutor’s comments during
closing arguments did not constitute fundamental error was not clearly contrary to,
or an unreasonable application of, clearly established Federal law.
We affirm the denial of Russ’s § 2254 petition.
AFFIRMED.
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