Taylor v. Singletary

• Decision Date: 26 September 1997
• Docket Number: No. 95-4551,95-4551
• Citation: 122 F.3d 1390
• Parties: 11 Fla. L. Weekly Fed. C 585 John Edward TAYLOR, Petitioner-Appellant, v. Harry K. SINGLETARY Jr., Secretary, Florida Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1390

122 F.3d 1390

11 Fla. L. Weekly Fed. C 585

John Edward TAYLOR, Petitioner-Appellant, v. Harry K. SINGLETARY Jr., Secretary, Florida Department of Corrections, Respondent-Appellee.

No. 95-4551.

United States Court of Appeals Eleventh Circuit.

Sept. 26, 1997.

John C. Schaible, Florida Institutional Legal Services, Inc., Gainesville, FL, for Petitioner-Appellant.

Angelica D. Zayas, Fredericka Sands, Asst. Attorneys General, Dept. of Legal Affairs, Miami, FL, for Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BARKETT, Circuit Judge, KRAVITCH, Senior Circuit Judge and HARRIS ^*, Senior District Judge.

BARKETT, Circuit Judge:

John Edward Taylor appeals the district court's denial of his petition for a writ of habeas corpus. In the petition, Taylor claims that the trial court abused its discretion when it denied his request to be tried after his codefendant Jesus Ortiz. As a result of the order of trials, Ortiz refused (on Fifth Amendment grounds) to offer material and exculpatory testimony on Taylor's behalf. We agree with the district court that the trial court violated Taylor's constitutional rights by effectively depriving him of a material witness's testimony. However, the district court then asked whether the trial court's error was harmless under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), when, given the nature of the trial court's error, no such review was necessary. Kyles v. Whitley, 514 U.S. 419, 434-37, 115 S.Ct. 1555, 1566-67, 131 L.Ed.2d 490 (1995). We conclude that Ortiz's testimony was sufficiently material and favorable to Taylor that its absence from the trial undermines confidence in the jury's verdict. Therefore, we reverse.

I. BACKGROUND

Taylor and his codefendant Ortiz were charged with the first degree murder of Andrew Sweet. After the trial court granted Ortiz's motion for severance, Taylor moved to be tried after Ortiz so that Ortiz could provide exculpatory testimony on Taylor's behalf. In support of his motion, Taylor submitted an affidavit written by Ortiz which stated that Ortiz would assert his Fifth Amendment privilege until after his trial, but that after his conviction or acquittal he would provide exculpatory testimony at Taylor's trial. The affidavit did not proffer the details of Ortiz's potential testimony, but it authorized his lawyer to make a detailed proffer in camera. The trial judge declined to hear the proffer in camera, assumed for the sake of argument that Ortiz would provide exculpatory evidence, and stated that Taylor's appellate rights would be protected in that regard. The trial court then denied Taylor's motion and scheduled Taylor's trial first. Just prior to trial, Taylor again moved to be tried after Ortiz. The trial court again denied the motion, and reassured Taylor that he did not need to make a proffer as to Ortiz's testimony at that time.

At Taylor's jury trial the government presented two pieces of evidence connecting Taylor to the murder. The government introduced a questionable identification which placed Taylor at the victim's apartment on the day of the murder and a statement which Taylor had made during custodial interrogation in which he said he had gone to the victim's apartment with an unidentified Cuban male, who stabbed the victim after purchasing cocaine from him. ¹ No physical evidence linking Taylor to the crime was presented. In his defense, Taylor called Ortiz to the stand, but Ortiz invoked his Fifth Amendment privilege. Taylor's counsel represented to the court that if Ortiz had not invoked the privilege, Ortiz would have testified that he was at the victim's house on the day of the murder with "Mark," not with Taylor.

Taylor was convicted of first degree murder on August 5, 1983. At Ortiz's subsequent trial, Ortiz testified that on the day of the murder he went to the victim's apartment with Mark. He further testified that when he left, Mark remained at the apartment and the victim was still alive. Ortiz was acquitted. On direct appeal and in a subsequent motion to vacate the judgment and sentence in state court, Taylor argued that by denying his motion to be tried after Ortiz, the trial court abused its discretion and violated his Fifth and Sixth Amendment right to present material, exculpatory testimony. Without holding an evidentiary hearing on this issue, the Florida District Court of Appeal affirmed Taylor's conviction, holding that Taylor's proffer as to Ortiz's testimony was untimely because it was made after the commencement of trial. Taylor v. State, 472 So.2d 814 (Fla.3d Dist.Ct.App.1985). Taylor's motion for state habeas relief on the same grounds also was denied, and that denial was affirmed on appeal. Taylor v. State, 509 So.2d 326 (Fla.3d Dist.Ct.App.1987).

Taylor raised the same constitutional claim in his federal petition for a writ of habeas corpus. The district court denied Taylor's petition holding that, although Taylor's constitutional right to present a material, exculpatory witness had been violated, the error was harmless because it did not have a "substantial and injurious effect or influence in determining the jury's verdict," Brecht v. Abrahamson, 507 U.S. at 637-38, 113 S.Ct. at 1722.

II. DISCUSSION

It is well-settled that it is within the trial judge's sound discretion to set the order in which codefendants will be tried. United States v. DiBernardo, 880 F.2d 1216, 1228 (11th Cir.1989); Byrd v. Wainwright, 428 F.2d 1017, 1022 (5th Cir.1970). In determining the sequence of trials, however, judicial economy must yield to a defendant's right to a fair trial, and where the sequence of trials has prejudiced a defendant's defense by infringing upon his ability to present exculpatory testimony, this court has found an abuse of discretion. See DiBernardo, 880 F.2d at 1228; Byrd, 428 F.2d at 1022. Because the sequence of trials can effectively preclude a defendant from calling a codefendant to testify on his behalf in the same way that a denial for severance can, the standards for reviewing denials of severance provide useful guidance in reviewing a denial for a particular trial order. See Byrd, 428 F.2d at 1021-22 (looking to severance analysis to analyze the sequence of trials); DiBernardo, 880 F.2d at 1229 (same); Mack v. Peters, 80 F.3d 230, 236-37 (7th Cir.1996) (same). In particular, the same prejudice standard for reviewing whether a trial court abused its discretion in denying a motion for severance generally applies for determining whether a trial court abused its discretion in scheduling the order of trials. ² Thus, to show an abuse of discretion in ordering the sequence of codefendants' trials, an appellant must prove that he suffered compelling prejudice. United States v. Van Hemelryck, 945 F.2d 1493, 1501 (11th Cir.1991) (citing United States v. Leavitt, 878 F.2d 1329, 1340 (11th Cir.1989)). Moreover, in determining whether to grant a defendant's motion for a particular trial sequence in the first instance, the trial court must consider: (1) whether the defendant has a bona fide need for a codefendant's testimony; (2) the substance of the testimony; (3) the exculpatory nature and effect of the testimony; and (4) the likelihood that the codefendant will testify for the defendant. Cf. Byrd, 428 F.2d at 1019-22 (enunciating criteria for granting a motion for severance). Because the nature, substance, and significance of the codefendant's testimony are relevant to a proper evaluation of the potential prejudice that preclusion of the testimony would have on the defendant, the defendant must make a "clear showing" as to the substance of the codefendant's testimony, and that the testimony will be exculpatory. Id. at 1020. However, "it is not necessary [ ] that the potential testimony of the codefendant bear the imprimatur of having been given previously in a judicial proceeding under oath," id.; it is enough that the defendant has made written or oral exculpatory statements in the past, or discussed the content of those statements with the court, id. Similarly, with respect to factor (4), "[t]he inquiry is not as to certainty whether the codefendants will or will not testify but the likelihood." Id. at 1022.

At the time Taylor moved to be tried first, Taylor had a bona fide need for Ortiz's testimony, the substance, nature, and effect of the testimony favored granting Taylor's motion, and it was very likely that Ortiz would have testified on Taylor's behalf. Throughout the original proceedings in this case, Taylor clearly stated his intention and desire to call Ortiz as a defense witness, and Ortiz clearly indicated his willingness, through a signed affidavit and otherwise, to provide exculpatory evidence on Taylor's behalf after the conclusion of his own trial.

But the trial court did not consider the substance, nature, or effect of Ortiz's proposed testimony contemporaneously with its denial of Taylor's motion to be tried after Ortiz. Although Ortiz offered to proffer the testimony in camera, the trial court refused to hear it. The trial court assumed for the sake of argument that Ortiz would provide exculpatory evidence and twice assured Taylor that his rights would be protected if he chose to appeal the denial. However, Taylor's trial rights were not adequately protected because Ortiz was under no compunction to give a prior sworn statement against his own interests prior to his trial, and Ortiz did in fact invoke his privilege against self-incrimination during Taylor's trial. Moreover, there was no reason even suggested, much less given, for trying Ortiz first. Thus, there was no basis whatsoever to deny Taylor the benefit of presenting his defense.

In evaluating Taylor's claims, the district court concluded that resolution of this case, and the issue of prejudice in particular, depended primarily upon the substance, nature, and effect of Ortiz's testimony, and properly held a...