Four wins are noted, three of the four are outright reversals, Graves
(Fifth Circuit), Charbonneau
(Delaware), and Terry v.
(Georgia). The fourth is a
reluctant grant of
penalty phase relief by the Fifth Circuit in Tennard
jury convicted Anthony Graves of singular incident in which six people
were killed. The only real evidence linking Graves to the crime was the
testimony of co-defendant Robert Earl Carter. On the night before the
trial, Carter told prosecutors "I did it all myself, Mr. Sebesta. I did
it all myself." Charles Sebesta was the lead prosecutor. The State
never informed counsel for Graves about the statement or other
exculpatory evidence. Granting relief in Graves
the Fifth Circuit notes the suppressed "statements are
particularly important in this case because
Graves’ conviction rests almost entirely on Carter’s testimony and
there is no direct evidence linking him with Carter or with the murder
scene other than Carter’s testimony. In addition, Carter’s statement
that he committed the crimes alone is important as the only statement
he made exculpating Graves while implicating himself." In the
moments before his being executed Carter confessed to
framing Graves. Congrats go out to his counsel Roy Greenwood & Jay
Burnett, as well as the University of Houston's Texas Innocence Network
had amassed new information in the last three years.
The Delaware Supreme Court's holding in Charbonneau
gives perhaps the week's most straightforward
trial court improperly invaded the province of the jury when it
determined the credibility of witnesses that, along with the
prosecution's arguments, substantially and unfairly undermined the
defense. "Whether the trial judge agreed with defense counsel’s
strategy or not, the defense wanted to show that the State accepted
guilty pleas from two codefendants based on different operative facts.
Defense counsels’ chosen method for doing that would have shown the
jury that [the State's witnesses] would say anything to avoid the death
penalty." Congrats go out to counsel, Craig Karsnitz and Thomas Pederson
In Georgia the state supreme court affirms a grant of habeas relief
in Terry v.
. Jenkins was categorically barred from the death
penalty after Roper v.
Simmons. Not stopping with penalty phase relief the Court went further
and held "trial counsel rendered
deficient performance by failing to investigate the [theory of the]
factual defense to the crime and failing to obtain available testimony
confirming that defense and their client's own statements to
them." Trial counsel failed to
do rudimentary investigation into the chief alternate
suspect; "'this is not a case where, after investigation, counsel for
the defendant decided to pursue one strategy rather than another' but a
case where counsel’s 'investigation into their own theory of the case
was entirely inadequate.' In light of the record evidence, we agree
with the habeas court’s conclusion that trial counsel rendered
deficient performance by failing to investigate the factual defense to
the crime and failing to obtain available testimony confirming that
defense and their client’s own statements to them."
Several new resources are noted. In
his new book, "Death by Design: Capital Punishment as a Social
Psychological System," Craig Haney relies
on his own research and
that other of other scientists in approaching the question, "How can
normal, moral people participate in a process designed to take the life
of another?" "Wounds
That Do Not Bind: Victim-based Perspectives on the Death Penalty," a
new book by James R. Acker and David Reed Karp, examines how family
members and advocates for victims address the impact of capital
a case the Supreme Court has twice remanded, relief is begrudgingly
granted by the Fifth Circuit on whether the jury instructions were
"insufficient vehicles for the jury to give mitigating effect" to the
tendered mitigation evidence. The majority opinion, as noted last
week, is unapologetic in defense of that circuit's Eighth Amendment
precedent and seeming defiance to earlier SCOTUS
holdings. For those looking at how narrowly the Fifth
Circuit interprets the SCOTUS's Tennard
need only read
the majority's dicta and the opinion in Nelson
decided the same day. Congrats go out to two of the
superstars, Rob Owen and Jordan Steiker.
has a new law review article entitled Mitigation
Capital Defendant Who Wants to Die: A Study in the Rhetoric of Autonomy
and the Hidden Discourse of Collective Responsibility
Journal, Vol. 57, No. 4, pp. 101-166, March 2006) which looks at the
all to familiar phenomena, client's who seemingly want to die.
has begun posting factual details of every
death sentence in the nation after 2004 (available here)
In the news of the week the PATRIOT Act
is now law including its changes to the federal death penalty and
designation of the Attorney General as an alternate authority to
designate opt-in, stay tuned for developments
as large chunks of the capital provisions
to be facially unconstitutional. A preliminary injunction
staying the three federal executions scheduled for May (of James
H. Roane Jr., Richard Tipton and Cory Johnson), apparently to await the
outcome of the Clarence Hill lethal challenge from Florida. pending
the Supreme Court, has been issued by federal District
Court Judge Ellen Huvelle.
ACLU has filed a new
to the California execution protocol, this time on 1st
Looking ahead to the next edition, a
remand is noted in Landrigan
on whether counsel was ineffective at sentencing where
the accused had instructed his
attorney not to present mitigating evidence. The California
Supreme Court on Monday reversed in People
as numerous "of the trial judge’s
comments should have been made at sidebar, and not in front of the
jury; in commenting in front of the jury, the trial judge often made
comments unnecessary to explain his rulings from the bench, and also
substantively undermined the defense theory of the case." A sharply divided en banc Fourth
Circuit in Walton v.
by a vote of 7-6, held that even if Percy Levar Walton is psychotic,
has difficulty grasping reality and wants to go to Burger King after he
is executed, he can still be killed by the Commonwealth of Virginia.
As always thanks
for reading. - k
In Favor of Life &
, 2006 U.S. App. LEXIS 5456 (5th Cir 3/3/2006) The
State never informed counsel for Graves
about statements by its chief witness exonerating Graves, as well as
failed to inform counsel of other exculpatory evidence.
, 2006 Del. LEXIS 104 (Del 3/1/2006) The trial judge abused
his discretion by removing from the jury the opportunity to consider
and decide which
of the two State's witnesses was more credible.
, 2006 Ga. LEXIS 158 (Ga 3/27/2006) Relief granted on Roper
Simmons as to penalty & in the guilt phase "trial counsel rendered
deficient performance by failing to investigate the [theory of the]
factual defense to the crime and failing to obtain available testimony
confirming that defense and their client's own statements to them."
2006 U.S. App. LEXIS 5271 (5th Cir. 3/1/2006) After being
by the SCOTUS to grant relief, the Fifth Circuit relents granting
relief on mitigation instructions
, 2006 U.S. App. LEXIS 5272 (5th Cir. 3/1/2006)
Nelson (which had been remanded in
light of Tennard
) denies relief narrowly construing Tennard
on required mitigation instructions
parte Laroyce Smith
, 2006 Tex. Crim. App. LEXIS 426 (Tex Crim App
3/1/2006) On remand from the SCOTUS with directions, the Texas Court of
Criminal Appeals says no to the SCOTUS finding a "procedural bar" where
none previously existed.
, 2006 Tex. Crim. App.
LEXIS 425 (Tex. Crim. App. 3/1/2006) DNA testing denied. "[E]ven if we
were to order that all the evidence be retested, and all the results
were consistent with appellant's theory (that the tests would show an
additional perpetrator was involved in the crime), appellant could not
meet his burden of establishing, by a preponderance of the evidence,
that he would not have been convicted of murder in the course of
, 2006 Tenn. LEXIS 137 (Tenn 2/28/2006) Relief denied,
holding "that: 1) the evidence was sufficient to support the first
degree murder conviction; 2) the trial court did not err in impaneling
an anonymous jury; 3) the trial court properly ruled that the victim's
statements were admissible under the "forfeiture by wrongdoing" hearsay
exception; 4) the evidence supported the jury's findings that the
two aggravating circumstances were proven beyond a reasonable doubt; 5)
the trial court erred during the sentencing phase in instructing the
jury that two of the five prior felony convictions relied on by the
prosecution involved violence to a person, but the error was harmless
beyond a reasonable doubt; 6) the trial court erred in allowing the
prosecution to introduce the defendant's prior indictment for first
degree murder in the sentencing phase of the trial where the defendant
had been convicted of second degree murder, but the error did not
affect the outcome; 7) the trial court erred in ruling that defense
counsel could not argue residual doubt as a mitigating circumstance
during the sentencing phase, but the error did not affect the outcome;
and 8) the evidence of aggravating circumstances outweighed the
evidence of mitigating circumstances beyond a reasonable doubt, and the
death sentence was not arbitrary or disproportionate."
State, 2006 Ala. Crim. App. LEXIS 31 (Ala. Crim. App. 3/3/2006)
denied on claims including: failure to develop mitigation
evidence; failure to conduct investigation of aggravators; Brady;
retardation; and exclusion of mitigation evidence at trial.
the court finds procedural default on several issues even though
counsel could not have discovered the evidence or the claim relates
directly to the failure of counsel to address the issue.
Gaddy v. State, 2006 Ala. Crim. App. LEXIS 32 (Ala.
Crim. App. 3/3/2006) Relief denied on claims including:
ineffectiveness due to his counsel's lack of statutorily required
experience; ineffectiveness in failing to challenge the
suppression of a statement; jury instruction on statement;
investigation; and failure to seek assistance of experts.
v. State, 2006 Ala. Crim. App. LEXIS 33 (Ala. Crim. App.
Relief denied in an opinion addressing: timeliness of petition;
sufficiency of pleading of claims relating to ineffective assistance of
counsel; suppression of exculpatory evidence; and the trial court
adopting verbatim the state's proposed order.
Gissendanner v. Alabama, 2006 Ala. Crim. App. LEXIS 34 (Ala. Crim. App.
3/3/2006) Relief denied on numerous claims including:
cross-section challenge to the jury venire; admission of victim impact
in the guilt and penalty phases; admission of the niece's
testimony in the guilt
phase; trial court permitting a videotape of the body; and sufficiency.
, 2006 Ark. LEXIS 157 (Ark 3/2/2006) Relief denied on
claims relating to: competency to stand trial; voir
dire being too pro-State, pro-death; admission of evidence of use
of crack cocaine by defendant before the incident; aggravators of
pecuniary gain and vulnerable victim; Caldwell argument; limitations on
the jury's ability to consider mitigation evidence by the trial court's
folksy use of the term "probably existed" to describe the level of
proof, as well as other limitations on mitigation.
, 2006 N.C. LEXIS 23 (N.C. 3/3/2006) Relief denied on
including: knowing use of false testimony, closing arguments,
ineffective assistance of counsel on the record, residual doubt, HAC,
and sufficiency of pecuniary gain aggravator
2006 Cal. LEXIS 2872 (Cal 3/2/2006) Relief denied on claims
including: (1) defendant's statements
during interrogation after he invoked his right to counsel; (2)
admission of evidence relating to the
victim's love of the Spanish language; (3) barring of mitigation
evidence as character; (4) a
penalty-phase witness who testified that defendant attacked her; (5)
hearsay as to defendant's allegedly attacking another; (6) the
prosecutor's argument as to defendant's
psychological satisfaction from pain; and (7) sufficiency of the
evidence as to the
special-circumstance finding of attempted rape, even though there was
no physical evidence of sexual assault.
2006 Ohio LEXIS 523 (Ohio 3/1/2006) Public defender's office held to
have filed this capital appeal out of time where the trial court
imposed life despite after declaring a mistrial where the jury returned
a death verdict.
ex rel Nixon v. Judge Daugherty
2006 Mo. LEXIS 36 (Mo 2/28/2006) In a procedurally complex opinion, the
Court holds that postconviction application here was filed out of time.
The Court provided squib notes that: "[a] motion under Rule 74.06(d) is
not permitted to attack a judgment entered under Rule 24.035. Rule
74.06(d) applies only to judgments or orders entered in civil actions.
The judgment from which Taylor attempted to seek relief was entered
pursuant to Rule 24.035, which pertains to criminal actions. To allow a
Rule 74.06(d) motion to apply to judgments under Rule 24.035 conflicts
with the latter rule's purposes to provide a prompt method to correct
error in criminal cases and to avoid stale claims. In a death penalty
case, once a sentence of death is affirmed on direct appeal and except
for a motion under Rule 24.035 or Rule 29.15, all matters affecting a
death sentence are to be filed in the Supreme Court of Missouri and not
in another state court. A Rule 74.06(d) motion filed in a state circuit
court also frustrates this purpose. The circuit court should have
dismissed the petition."
Hodges v. Bell,
2006 U.S. App. LEXIS 5425 (6th Cir 3/2/2006)
(unpublished) (dissent) Litigation over the conditions on Tennessee's
death row, conditions so bad that is purportedly leading some inmates
to inquire about dropping their appeals. A "habeas corpus proceeding
does not extend to the conditions of confinement, and because requiring
RMSI to videotape every instance in which its officers move Hodges is
not "necessary or appropriate in aid of the district court's
jurisdiction to determine the legality of Hodges's state-court
conviction and sentence, the district court's order lacks proper
authority and must be vacated."
Garcia v. LeMaster
, 2006 U.S.
App. LEXIS 5291 (10th Cir 3/2/2006) When an inmate is transferred out
of state a section 1983 claim relating to the receiving states
classification and recreation of the inmate (as opposed to the sending
state's classification that resulted in being sent to a facility out of
state) is appropriately heard only in the receiving state's courts
(either state or federal).
, 2006 U.S. App. LEXIS 5456 (5th Cir 3/3/2006) A jury
convicted Anthony Graves of singular
incident in which six people were killed. The only real evidence
linking Graves to the crime was the testimony of co-defendant Robert
Earl Carter. On the night before the trial, Carter told prosecutors "I
did it all myself, Mr. Sebesta. I did it all myself." Charles Sebesta
was the lead prosecutor. The State never informed counsel for Graves
about the statement or other exculpatory evidence.
We disagree with the district court's conclusion that the defense did
not exercise due diligence to discover the statement regarding Cookie's
involvement in the crimes. Graves' counsel had specifically requested
the information disclosed in the statement. We view Sebesta's statement
regarding the polygraph, his discovery responses and questioning of
Carter as misleading and a deliberate attempt to avoid disclosure of
evidence of Cookie's direct involvement. At a minimum, Sebesta's
minimal disclosure was insufficient to put the defense on notice to
inquire further, particularly in light of the state's discovery
Graves next challenges the district court's conclusion that the
statement regarding Cookie's involvement is not exculpatory
because the statement implicated Graves as well. n8 The district court
found that the statement is not exculpatory because it implicated
Graves based on the government's three person theory. It also found
that the statement would have contradicted the testimony of one of
Graves' witnesses, Tametra Ray, who testified that Cookie was home at
the time of the murders. Again, we disagree.
The statement regarding Cookie's direct involvement in the crime is
exculpatory for several reasons. First, [*23] each party's
about how many people were actively involved in the crime is just a
theory based on the number of people killed and the number of weapons
used. The defense had submitted that two people were probably involved
and had specifically requested any information related to any party,
other than Graves and Carter, who the state alleged was involved in the
crime. Although Cookie had been indicted, the defense viewed the
indictment as a tool to pressure Carter into testifying. As we noted in
our prior opinion, "if Graves had been furnished with Carter's
statement, it could have provided him with an argument that those two
persons were Carter and his wife rather than Carter and Graves." Graves
II, 351 F.3d at 159. Also, Carter's statement, placing Cookie directly
at the scene and actively involved in the murders, puts his deal with
the state to testify only on the condition that he not be questioned
about Cookie's involvement in a different light. It provides a stronger
argument to Graves that Carter was lying about Graves involvement to
The district court did not reach the issue of materiality of the
statement. That issue will be discussed in [*24] the
section regarding the effect of the two statements considered together.
c. The statements considered together?
The sole remaining issue under Graves' Brady claim is whether,
considered together, the two statements - Carter's claim that he did it
himself and Carter's statement directly implicating his wife Cookie in
the murders - are material. We conclude that they are. If both
statements had been timely furnished to Graves, he could have
persuasively argued that (1) the murders were committed by Carter alone
or by Carter and Cookie; and (2) Carter's plan from the beginning was
to exonerate Cookie, but a story that he acted alone was not
believable, so he implicated Graves so the prosecution would accept his
story and decline to prosecute Cookie.
The state argues that the combined statements are not material because
they are inconsistent and could have been damaging to Graves if the
jury believed that the most credible account of the murders involved
three killers, Carter, Cookie and Graves. The problem with the state's
argument is that it analyzes the significance of the suppressed
evidence against a backdrop of how the defense presented its case at
trial [*25] without the suppressed statements. If the two
had been revealed, the defense's approach could have been much
different (as set forth above) and probably highly effective.
Case law from the Supreme Court is supportive of a finding of
materiality on these facts - particularly because the case against
Graves rests almost entirely on Carter's testimony and because the
state presented testimony inconsistent with the two suppressed
statements. In Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31
L. Ed. 2d 104 (1972), the Supreme Court reversed the defendant's
judgment of conviction and remanded for a new trial because the
prosecutor failed to disclose a promise of leniency to a key witness.
The court concluded that the suppression affected the co-conspirator's
credibility which was an important issue in the case and therefore
In Banks v. Dretke, 540 U.S. 668, 124 S. Ct. 1256, 157 L. Ed. 2d 1166
(2004), the Supreme Court reversed this court's denial of COA to the
defendant on his Brady claim. The state withheld evidence that would
have allowed defendant to show that two essential prosecution witnesses
had been coached by police and prosecutors before they
testified and also that they were paid informants. In addition,
prosecutors allowed testimony that they were not coached to stand
uncorrected at trial. In Kyles v. Whitley, 514 U.S. 419, 115 S. Ct.
1555, 131 L. Ed. 2d 490 (1995), the defendant's conviction was reversed
and remanded for a new trial. The prosecution had suppressed statements
of key witnesses and an informant who were not called to testify
resulting in a Brady violation because their statements had significant
impeachment value. Graves' case presents a cumulation of the elements
found violative of a defendant's right to exculpatory evidence in the
Because the state suppressed two statements of Carter, its most
important witness that were inconsistent with Carter's trial testimony,
and then presented false, misleading testimony at trial that was
inconsistent with the suppressed facts, we have no trouble concluding
that the suppressed statements are material. Carter made several
inconsistent statements throughout the investigation and pre-trial
period. In some he denied all involvement, in some he implicated
himself and Graves, and then, just before he testified against Graves,
he gave the statements [*27] at issue in this appeal
responsibility as the sole murderer and another statement placing his
wife Cookie as an active participant in the murders. If the defense had
known about the statement placing Cookie at the scene and given
Carter's continuing condition that he would only testify if he were not
asked about Cookie's involvement, the defense could have explained
every statement implicating Graves as a means of protecting Cookie. As
indicated above, these statements are particularly important in this
case because Graves' conviction rests almost entirely on Carter's
testimony and there is no direct evidence linking him with Carter or
with the murder scene other than Carter's testimony. In addition,
Carter's statement that he committed the crimes alone is important as
the only statement he made exculpating Graves while implicating
himself. The combination of these facts leads us to conclude "that the
favorable evidence could reasonably be taken to put the whole case in
such a different light as to undermine confidence in the verdict."
Kyles, 314 U.S. at 435. Stated differently, disclosure of the
statements "would have resulted in a markedly weaker case
the prosecution and a markedly stronger one for the defense." Id. at
, 2006 Del. LEXIS 104 (Del 3/1/2006) The trial judge
invaded the province of the jury by denying it the opportunity to
consider and decide which
of the two State's witnesses was more credible.
Under Delaware Rule of Evidence 401,
the proffered evidence is relevant if it tends to make the existence of
the defendant's guilt more or less probable. n21 In ruling the fact
that Brown had pleaded guilty and the facts supporting Brown's proffer
logically irrelevant, the trial judge relied on Potts, a case where the
police raided the defendant's house pursuant to a search warrant.
During the course of the search, the police arrested Potts and four of
his companions, who were later indicted for the same drug charges:
Possession with Intent to Deliver Heroin; Possession with Intent to
Deliver Cocaine; Possession with Intent to Deliver Marijuana;
Possession of Hypodermic Needles and Syringes; Maintaining a Dwelling
for the Keeping of Controlled Substances; and Conspiracy Second Degree.
Before Potts's trial, two of his companions pleaded guilty to simple
possession of drugs under a plea agreement with the State. Potts
sought [*22] to admit his codefendants' pleas at his later
trial on the basis that their statements were exculpatory because they
corroborated his defense that the drugs seized did not belong to him.
In other words, Potts sought to admit his codefendants' guilty pleas to
possession of drugs to demonstrate that they - and not he - possessed
the drugs. We agreed with the trial judge's conclusion that the
relevance of the codefendants' pleas was tenuous at best. We stated:
The two codefendants
who entered guilty pleas did so only as to the charges against
themselves. Defendant did not establish that his companions' pleas
constituted confessions to exclusive possession of the drugs. Hence,
their pleas were not shown to exculpate defendant.
In this case, the trial judge relied on Potts, stating:
An accomplice being
a person being charged to the same crimes with which a codefendant is
charged, like a person in the position of Linda Charbonneau, is not
relevant evidence. As our Supreme Court observed in Potts... an
accomplice plea does not exonerate a codefendant. The innocence or
guilt of a defendant, or of a person in Ms. Charbonneau's position,
must be settled only [*23] on the evidence produced during
The trial judge's reading of Potts and his application of Potts to this
case was misplaced. The trial judge concluded that Potts announced a
categorical rule that an accomplice plea and proffered statements in
support of the plea are always irrelevant because they do not exonerate
a codefendant. We did not announce any such rule in Potts. In Potts,
the defendant was attempting to establish, through the fact that his
codefendants pleaded guilty, that he did not possess drugs. We held
that the codefendants' pleas were irrelevant because they did not
independently establish that the codefendants' exclusively possessed
the drugs. That is, in Potts, the codefendants' guilty pleas did not
make it more or less probable that the defendant also possessed drugs.
Potts is distinguishable from this case. Linda did not seek the
admission of Brown's plea and proffer to [*24] exonerate
herself by seeking to establish that Brown, and not she, committed the
murders. Rather, Linda sought to introduce Brown's plea and proffer to
"test Ms. Rucinski's credibility and to support an argument that the
State does not have confidence in the strength of its case." n22
We agree that Brown's plea to two counts of First Degree Murder for a
deal on his penalty did not, alone and without more, impeach Mellisa.
The mere fact that Brown pleaded guilty did not give Mellisa motive to
lie. But, Brown's proffered statements in support of his plea were
relevant to test Mellisa's credibility on the degree of Linda's
involvement in the crimes with which Mellisa, Brown and Linda were
The trial judge recognized that "the State had good reason to believe
Brown put too much of a finger of blame on Linda Charbonneau to get
himself out of trouble and was less than truthful." n23 What the trial
judge apparently failed to apprehend, however, is that the jury, after
hearing the inconsistencies [*25] in the State's witnesses'
versions of the events, might conclude that Mellisa had a similar
motive to implicate Linda falsely. Brown proffered that Mellisa was the
primary actor in Sproates's death. Brown's proffered statements gave
Mellisa a motive to lie and to implicate falsely her codefendants.
Defense counsel wanted to use Brown's proffer to demonstrate to the
jury that Mellisa had a motive to lie both in her proffer and in her
The trial judge's refusal to credit the relevance of Brown's proffered
statements to impeach Mellisa is best understood by focusing on the
following question the trial judge posed to the defense:
Brown has an axe to
grind with Rucinski in falsely accusing her of killing Sproates. How
does this automatically translate into some interest, bias, or
prejudice of Mellisa Rucinski to falsely accuse Charbonneau? I'm asking
the question because that's the question the defense is going to have
to answer. n24
That question illustrates that the trial judge did not understand how
Brown's proffered statements could impeach Mellisa. The reason, in our
view, is that the trial judge had unqualifiedly endorsed the State's
contention that it was Brown - and not Mellisa -who was lying. We agree
that if Brown lied, his statements would provide a motive for Mellisa
to falsely implicate him but not necessarily Linda. But, if Brown's
proffered statements created a reasonable doubt in the jurors' minds
about Mellisa's credibility generally, that doubt might also have
affected the jury's analysis of the believability of Mellisa's version
of Linda's involvement in the murders.
It was error for the trial judge to accept the State's contention (and
essentially find as fact) that Brown (not Mellisa) was lying and then
to remove that issue from the jury. The prosecutors argued two reasons
why they believed Brown was lying: (1) his statements were
substantially inconsistent with Mellisa's; and, (2) no DNA was found on
the knife that Brown claimed Mellisa used in killing Sproates. These
reasons alone could not justify the trial judge taking from the jury
the issue of the credibility of Mellisa's testimony [*27]
about Linda's involvement in the murder.
First, the fact that Brown's statements were inconsistent with
Mellisa's could not, without more, justify concluding that Brown was
lying. The State itself acknowledged that "there are always
inconsistencies in people's statements." n25 Further, the State and the
trial judge both knew Mellisa was an admitted liar. At trial she
admitted lying at every opportunity she had to speak about the case.
n26 Certainly one could not reasonably conclude that Brown's statements
were false solely because they were inconsistent with statements from
someone who openly admitted she herself was a liar.
Therefore, the trial judge was left with the argument that there was no
DNA on a knife that Brown alleged Mellisa used to stab Sproates. But,
to conclude that Brown must have been lying simply because there was no
DNA on the knife is misguided. The absence of DNA on the knife can be
explained by any number of circumstances - including the possibility
that someone cleaned the knife after the murder. n27 Thus, we hold that
the trial judge abused his discretion by accepting, as fact, the
State's contention that Brown was lying but that Mellisa was truthful
and by removing from the jury the issue of who spoke truthfully and
whether the inconsistencies resulting raised a reasonable doubt about
Mellisa provided all of the testimony necessary to convict Linda.
Because Mellisa's testimony was the linchpin of the State's case, we
cannot be confident that any evidence that could impeach Mellisa's
credibility would not create a reasonable doubt about Linda's guilt.
Because the jury might possibly believe Brown, Brown's proffered
statements would be relevant to test Mellisa's credibility. In his
proffer, Brown heavily implicated Mellisa. Brown claimed that Mellisa
assisted in John's burial, and actively participated in Sproates's
murder. The State itself, armed with Brown's statements that were
posited as truthful, leveraged a deal with Mellisa. Surely the State
suggested to Mellisa that she was facing First Degree Murder charges
and a possible death sentence if a jury believed Brown's proffered
statements. Motivated to ensure that she received a favorable plea
bargain and to avoid a possible death sentence based on Brown's
statements, Melissa had an interest in falsely implicating either or
both of her codefendants and in exculpating herself. Brown's proffered
statements were clearly relevant to challenge Mellisa's truthfulness
when she gave testimony implicating Linda. The [*30] trial
judge erred in holding otherwise.
2. Whether the Probative Value of Brown's Proffer was Substantially
Outweighed by the Danger of Unfair Prejudice.
The logical relevance of Brown's guilty plea and proffer does not
conclude the analysis. A trial judge may exclude otherwise relevant
evidence if "its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues or misleading the
jury, or by considerations of undue delay, waste of time or needless
presentation of cumulative evidence." n28 As discussed above, we review
for an abuse of discretion a trial judge's ruling under D.R.E. 403 for
an abuse of discretion. n29
Here, the trial judge found that any probative value of Brown's proffer
was substantially outweighed by the danger of unfair prejudice,
confusion of the issues, misleading the jury, or wasting time. n30 The
trial judge stated:
[*31] plea agreement would likely poison the well for Linda
Charbonneau as a jury would view the case as closed. The jury's focus
must be solely on the evidence, and there would be a great deal of time
wasted to explore matters. n31
In so holding, the trial judge abused his discretion. Brown's proffered
statements were highly probative. Mellisa was the State's primary
witness who provided the testimony that enabled the jury to find her
mother guilty of two intentional murders. Any evidence that would
operate to impeach Mellisa's credibility had probative value. If the
jury found Mellisa's testimony generally incredible, then Linda would
have had an opportunity to create a reasonable doubt in the jurors'
minds about the extent of her own involvement in the crimes charged.
The trial judge held, however, that the jury would have viewed the
"case as closed" if Brown's plea and proffered statements were
admitted. We interpret that view to mean that if the jury was told that
Brown [*32] had pleaded guilty to two counts of First
Degree Murder and if the jury had accepted the facts underlying Brown's
proffer, the jurors would have concluded that Linda was guilty of two
intentional murders. We do not agree. The State's theory, which the
jury understood, was that Linda, Mellisa, and Brown all committed the
murders. Both Brown and Mellisa's statements implicated themselves,
each other, and Linda to some degree. Admitting Brown's proffered
statements, certainly would not give the jury any indication that the
"case (against Linda) was closed." The trial judge should have admitted
the proffered statements.
Thus, we hold that the trial judge abused his discretion by holding
that the probative value of the Brown statement was outweighed by the
prejudice that evidence would occasion to Linda (on the theory it would
"close" the case against her) or that it would be a waste of time to
explore the inconsistency in the testimony of two eyewitnesses to two
intentional murders. There certainly, on the other hand, was no
cognizable prejudice to the State in admitting statements that the
State itself had procured as part of its plea bargain and that, by not
rescinding its plea [*33] bargain with Brown, continued
impliedly to endorse.
, 2006 Ga. LEXIS 158 (Ga 3/27/2006) "[T]rial counsel
deficient performance by failing to investigate the [theory of the]
factual defense to the crime and failing to obtain available testimony
confirming that defense and their client's own statements to them."
The record and transcripts in this
appeal support the habeas court's
findings describing the careless and unreasonable manner in which
defense preparations were undertaken and juxtapose the evidence
presented at trial with the evidence that trial counsel failed to
discover. As determined by the habeas court, "this is not a case where,
after investigation, counsel for the defendant decided to pursue one
strategy rather than another" but a case where counsel's "investigation
into their own theory of the case was entirely inadequate." (2) In
light of the record evidence, we agree with the habeas court's
conclusion that trial counsel rendered deficient performance by failing
to investigate the factual defense to the [*16] crime and
obtain available testimony confirming that defense and their client's
own statements to them. Furthermore, counsel's decision to end the
investigation into Woods's involvement when they did was neither
consistent with professional standards nor reasonable in light of the
evidence obtained by habeas counsel, evidence that would have caused
reasonably competent counsel to investigate further.
Having determined that trial counsel rendered constitutionally
deficient performance, we must consider the prejudice Jenkins suffered
as a result of counsel's deficient performance. As the above discussion
indicates, and as our review of the remaining evidence presented at
trial confirms, there was reason for very strong suspicion to rest on
Jenkins in the minds of the jurors. Had trial counsel performed
adequately and presented the available evidence that habeas counsel has
brought to light, reasonable jurors still may have concluded beyond a
reasonable doubt that Jenkins was not only present during the murders
but was either the actual perpetrator of the crimes or an accomplice
thereto. As recently emphasized by this Court, however, the burden in
an ineffective assistance [*17] claim "is to show only 'a
probability' of a different outcome, not that a different outcome would
have been certain or even 'more likely than not.' [Cit.]" Schofield v.
Gulley, 279 Ga. 413, 416 (I) (A) (614 SE2d 740) (2005).
Whatever our own opinions may be about the verdict in this case, we
conclude, in agreement with the habeas court, that there is a
reasonable probability that the jury would have reached a different
verdict in the guilt/innocence phase of trial if confronted with the
evidence presented by habeas counsel that trial counsel failed to
2006 U.S. App. LEXIS 5271 (5th Cir., Mar. 1, 2006) After being
by the SCOTUS to grant relief, the Fifth Circuit relents.
Penry I could certainly be read broadly
to eviscerate Jurek and Franklin, but the Court signaled in Saffle v.
Parks, 494 U.S. 484, 110 S. Ct. 1257, 108 L. Ed. 2d 415 (1990), that
its ruling did not supplant Jurek:
The Penry Court's
conclusion that Lockett and Eddings dictated the rule sought by Penry
must be understood in terms of the Court's ruling in Jurek, and its
application in later cases. We did not view Lockett and Eddings as
creating a rule different from that relied upon in Jurek; rather, we
indicated that Lockett and Eddings reaffirmed the reasoning in Jurek
and confirmed the necessity of its application to Penry's claim.
Saffle, 494 U.S. at 492 (citations omitted). This influenced our
treatment of Penry I in subsequent [*23] opinions.
Our general approach to these cases has been to discern whether the
capital defendant was able to put forth evidence that was qualitatively
like Penry's, and thus outside of the special issues' effective scope:
For ten years, this
court has [asked] . . .: Was the criminal act "due to the uniquely
severe permanent handicaps with which the defendant was burdened
through no fault of his own"? Graham v. Collins, 950 F.2d 1009, 1029
(5th Cir. 1992) (en banc), aff'd, 506 U.S 461, 113 S. Ct. 892, 122 L.
Ed. 2d 260, (1993). This formulation encompasses four principles found
in Penry I: voluntariness, permanence, severity, and attribution. Did
the defendant acquire his disability voluntarily or involuntarily? Is
the disability transient or permanent? Is the disability trivial or
severe? Were the criminal acts a consequence of this disability?
Robertson v. Cockrell, 325 F.3d 243, 251 (5th Cir. 2003). This
"constitutional relevance" test flows from the Graham opinion. n10
Judge Garwood, writing for the en banc court in Graham, addressed
whether the special issues were constitutionally adequate for
[*24] the jury to consider and give effect to federal habeas
petitioner Graham's mitigating evidence of youth, good behavior, and a
The opinion marches through the relevant precedents, discussed supra.
See Graham, 950 F.2d at 1017-1027. It then questions the constitutional
status of the special issues in the wake of Penry I: "The . . .
difficult question is whether the Texas statute can operate as written
in any case where [*25] the mitigating evidence, though all
clearly relevant to support a negative answer to one or more of the
issues, nevertheless also has any mitigating relevance whatever beyond
the scope of the special issues." Id. at 1026-27 (emphasis in
original). One reasonable understanding of Penry I is that, in such
situations, it renders the special issues constitutionally infirm.
However, Penry I can also be interpreted as handling a relatively
unique situation: "Penry can also fairly be read as addressing only a
situation where some major mitigating thrust of the evidence is
substantially beyond the scope of any of the issues." Id. at 1027
(emphasis in original). After quoting the language in Saffle and
cataloguing the many cases in which the Court cited Jurek approvingly,
n11 see id. at 1028, Judge Garwood concluded that "Penry represents . .
. a set of atypical circumstances of a kind that, quite understandably,
neither the Texas Court of Criminal Appeals nor the Supreme Court in
Jurek had in mind, namely circumstances where the defense's mitigating
evidence would have either no substantial relevance [*26]
or only adverse relevance to the second special issue." Id. at 1029.
Judge Garwood's opinion goes on to describe the difference between
common mitigating evidence (the kind that Jurek handled) and this
atypical, Penry-type evidence:
of good character, or of transitory conditions such as youth or
[*27] being under some particular emotional burden at the time,
will tend to indicate that the crime in question is not truly
representative of what the defendant's normal behavior is or may become
over time, and that the defendant may be rehabilitable so as not to be
a continuing threat to society. The core of Jurek--which we cannot
conclude has been abandoned--is that the mitigating force of this kind
of evidence is adequately accounted for by the second special issue.
But in Penry the Court was faced for the first time with a wholly
different type of mitigating evidence. Not evidence of good character,
but of bad character; not evidence of potential for rehabilitation, but
of its absence; not evidence of a transitory condition, but of a
permanent one; but nonetheless evidence which was strongly mitigating
because these characteristics were due to the uniquely severe permanent
handicaps with which the defendant was burdened through no fault of his
own, mental retardation, organic brain damage and an abused childhood.
There was no way this type of evidence could be given any mitigating
force under the second special issue. To recognize that, as Penry did,
is not necessarily [*28] to deny the validity of Jurek as
it applies to the more typical case.
Id. at 1029-30 (emphasis in original). It also noted that Penry's crime
was attributable to this mitigating evidence. Id. at 1031. From this
language, we developed the requirements that, to qualify as Penry
evidence, the condition under which the defendant was laboring must be
a uniquely severe, permanent handicap, acquired through no fault of the
defendant, and that the defendant's murderous actions must be causally
related to the mitigating condition. n12 This understanding dictated
our decision in Tennard v. Cockrell. See 284 F.3d 591, 595 (5th Cir.
The Supreme Court in Graham v. Collins, 506 U.S. 461, 113 S. Ct. 892,
122 L. Ed. 2d 260 (1993), affirmed our holding and seemed to endorse
the en banc majority's understanding of Penry I. The Graham majority
characterized the Texas procedure as satisfying the Eighth Amendment's
requirements, because it permits the defendant "to place before the
jury whatever mitigating evidence he could show, including his age,
while focusing the jury's attention upon what that evidence revealed
about the defendant's capacity for deliberation and prospects for
rehabilitation." 506 U.S. at 472. Penry I did not disturb the special
issues' general constitutionality: "We do not read Penry as effecting a
sea change in this Court's view of the constitutionality of the former
Texas death penalty statute; it does not broadly suggest the invalidity
of the special issues framework." n13 Id. at 474 (emphasis in
original). The Court concurred with our opinion because, if Penry I
were extended to evidence like Graham's, which resembles Jurek's, "a
wholesale abandonment of Jurek and perhaps also of Franklin v. Lynaugh"
would result. Id. at 476. [*30]
The Court also noted that Graham's evidence is not the type of evidence
that Penry I
discussed. It stated that "Graham's evidence of transient upbringing
and otherwise nonviolent character more closely resembles Jurek's
evidence of age, employment history, and familial ties than it does
Penry's evidence of mental retardation and harsh physical abuse." Id.
Furthermore, since any mitigating evidence could hold significance
beyond the cramped confines of the three special issues, a broad
interpretation of Penry I, requiring all evidence be given full
mitigating effect, would eviscerate Jurek--something Penry I said it
was not doing. n14 See id. This echoes Judge Garwood's reasoning.
The Court largely reiterated the logic of its Graham ruling in Johnson
v. Texas, 509 U.S. 350, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993),
which, unlike Penry I and Graham,
was heard on direct appeal. Johnson's relevant mitigating evidence
consisted entirely of his father's testimony about his son's drug use,
youthful immaturity, the effect that the recent deaths of Johnson's
mother and sister had on Johnson's psyche and religious practices, and
Johnson's remorse for the murder. See Johnson, 509 U.S. at 356-57. The
Johnson majority read Lockett and Eddings narrowly:
and its progeny stand only for the proposition that a State may not cut
off in an absolute manner the presentation of mitigating evidence,
either by statute or judicial instruction, or by limiting the inquiries
to which it is relevant so severely that the evidence could never be
part of the sentencing decision at all." Although Lockett and Eddings
prevent a State from placing relevant mitigating evidence "beyond the
effective reach of the sentencer," those cases and others in that
decisional line do not bar a State from guiding the sentencer's
consideration [*32] of mitigating evidence.
Id. at 361-62 (citations omitted). After reviewing Jurek
and its decisional line, the Court found that the jury was not
foreclosed by the special issues from giving effect to Johnson's
mitigating evidence. See id. at 368. His evidence, with its transitory
qualities, could be addressed through the second special issue. See id.
In Tennard v. Cockrell, 284 F.3d 591 (5th Cir. 2002), we applied the
"constitutional relevance" screening test, derived from Judge Garwood's
opinion, to Tennard's evidence of low IQ. Under our jurisprudence,
Tennard failed to present to the jury adequate evidence to qualify his
alleged handicap as "uniquely severe." See Tennard, 284 F.3d at 596. We
also found no nexus between Tennard's low IQ and his crime: "Tennard is
precluded from establishing a Penry claim
because he failed to introduce at trial any evidence indicating that
the capital murder was in any way attributable to his I.Q. of 67." Id.
at 597. Thus, even if Tennard's evidence was beyond the effective reach
of the jury, he did not establish that it was Penry
[*33] -type evidence. We held that reasonable jurists could
debate this issue and so Tennard failed to make a substantial showing
of the denial of a constitutional right. n15 See id.
The Supreme Court in Tennard v. Dretke, 542 U.S. at 274, reversed our
ruling. In doing so, it addressed our erroneous understanding and
application of Penry I
and [*34] the other relevant, controlling High Court
Justice O'Connor, writing for the majority, stated: "The Fifth
Circuit's test has no foundation in the decisions of this Court.
Neither Penry I
nor its progeny screened mitigating evidence for 'constitutional
relevance' before considering whether the jury instructions comported
with the Eighth Amendment." n16 Tennard, 542 U.S. at 284.
The majority expressed concern that our screening test operatively
precluded effective Penry
challenges from defendants arguing that the future dangerousness
special issue proved an insufficient vehicle for giving mitigating
effect to their evidence of good character. n17 See id. at 285-86. It
also discussed in further detail the two prongs of the test at issue in
It stated that the "uniquely severe" test is unwarranted:
say that only those features and circumstances that a panel of federal
appellate judges deems to be 'severe' (let alone 'uniquely severe')
could have such a tendency is incorrect." Id. at 286. The Court
rejected the nexus test, as well: "Nothing in [Atkins v. Virginia, 536
U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002),] suggested that a
mentally retarded individual must establish a nexus between her mental
capacity and her crime before the Eighth Amendment prohibition on
executing her is triggered." Id. at 287.
The Tennard Court stated that, rather than a test for "constitutional
relevance," the Court's ruling in McKoy v. North Carolina, 494 U.S.
433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990), taught that juries must
be permitted to give effect to any mitigating evidence that holds
meaning of relevance is no different in the context of mitigating
evidence introduced in a capital sentencing proceeding than in any
other context, and thus the general evidentiary standard--any tendency
to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence--applies.
Id. at 2570
(citations and internal quotations omitted). To that end, the Court
concluded that "impaired intellectual functioning has mitigating
dimension beyond the impact it has on the individual's ability to act
deliberately." Id. at 284.
It found that "reasonable jurists could conclude that the low IQ
evidence Tennard presented was relevant mitigating evidence," and that
"reasonable jurists also could conclude the Texas Court of Criminal
Appeals' application of Penry to the facts [*37] of
Tennard's case was unreasonable." Id. at 288