Brownlee v. Haley

Decision Date16 September 2002
Docket NumberNo. 00-15858.,00-15858.
Citation306 F.3d 1043
PartiesVirgil Lee BROWNLEE, Petitioner-Appellant, v. Michael HALEY, Commissioner, Alabama Department of Corrections, Respondent-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Maurice R. Mitts (Court-Appointed), Frey, Petrakis, Deeb & Blum, P.C., Philadelphia, PA, for Petitioner-Appellant.

George Martin, Montgomery, AL, for Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before EDMONDSON, Chief Judge, and MARCUS and WILSON, Circuit Judges.

MARCUS, Circuit Judge:

Virgil Lee Brownlee appeals the district court's denial of his petition for a writ of habeas corpus challenging both his 1987 conviction for the murder of Lathen Aaron Dodd and the death sentence imposed as a result of that conviction by the Circuit Court for Jefferson County, Alabama. Although we agree with the district court that the underlying conviction was constitutionally firm, Brownlee plainly received ineffective assistance of counsel at sentencing in light of his attorneys' failure to investigate, obtain, or present to the jury any evidence in mitigation of the death penalty, violating the Sixth Amendment to the Constitution. Accordingly, we reverse the district court's order regarding sentencing and remand the case with instructions to issue a writ vacating Brownlee's death sentence.

I.

The facts surrounding the death of Lathen Aaron Dodd are undisputed. At approximately 8:30 or 9:00 p.m. on Monday, May 19, 1986, three gun-wielding men stormed into Jodie's Lounge in North Birmingham, Alabama, yelling obscenities, firing their pistols, and ordering the bar's fourteen to eighteen customers to get down onto the floor. One of the three perpetrators remained by the door of the bar keeping guard over a man whom he had dragged in with him.

The other two perpetrators went further into the bar. There, any patrons who were not already lying down were forced to the ground. One patron suffered a broken shoulder from being thrown to the floor. After forcing all of the customers to the ground, the perpetrators continued to abuse them physically — patrons were hit on the head, kicked in the neck, hit with a gun, and pistol whipped. Once all of the customers were secured on the ground, two of the assailants robbed them of their possessions, including billfolds, money, jewelry, watches, identification cards, keys, credit cards, wallets, a duffel bag, a knife, and a gun. As the patrons were being robbed of their possessions, one of the perpetrators, who seemed to one witness to be in charge of the operation, demanded to know who the owner of the bar was. When Dodd identified himself, the robber ordered him to go to the cash register and give him its contents. After receiving the contents, this robber demanded to know where the rest of the money was. When he was told that there was no more money, the robber jumped on the bar and fired two shots, one of which sounded to one patron like it made a "body impact." After they had been robbed, the patrons were forced to crawl to the restroom at the back of the bar. While they were on the way to the bathroom, more shots were fired, one of which grazed a customer's head.

The perpetrators then left the scene. When the patrons emerged from the restroom, they discovered that Dodd had been shot in the abdomen. Dodd was then taken to the hospital, where he died on an operating table at 10:53 p.m. The cause of death was bleeding that resulted from a gunshot wound to the chest and abdomen.

A.

Shortly after the crime, the State of Alabama charged Virgil Lee Brownlee, Willie Irving Goodgame, and Robert Harris with the capital offense of murder during the course of robbery in the first degree, a violation of Ala.Code § 13A-5-40(a)(2). Goodgame pled guilty and received a sentence of life imprisonment, and the State proceeded to trial first against Brownlee, and later against Harris.1 Initially, attorney Herbert Massie was appointed to represent Brownlee, but his representation ended when Massie was suspended from the practice of law for failing to comply with his continuing legal education requirements. In October 1986, Circuit Court Judge James H. Hard IV appointed attorneys Burton Dunn and James Kendrick to represent Brownlee.

At the three-day trial, which lasted from January 5-7, 1987, the State's witnesses included nine patrons of Jodie's Lounge, who described the robbery. None of these individuals linked Brownlee to the crime. Although four of the patrons identified Goodgame as one of the perpetrators and one identified Harris, nobody who was in the bar could identify Brownlee as being present. One customer testified that he thought he had seen Brownlee somewhere before, but he was not positive and could not say that Brownlee was at Jodie's Lounge. Notably, none of the patrons could say who shot and killed Dodd. In addition to the lack of any eyewitness testimony implicating Brownlee, the State presented no forensic evidence linking Brownlee to the crime in any way, and no bullet was recovered from Dodd's body.

The evidence implicating Brownlee consisted entirely of the testimony of co-defendant Goodgame and two uncharged individuals who claimed to be with Brownlee before and after (but not during) the crime: James "Sonny" Warren and Reavor Jones. Goodgame, who said that he had known Brownlee for about ten years at the time of the crime, testified that on the night of May 19, 1986, he was at Jones's apartment with Brownlee, Harris, Warren, Jones, and another man, Reginald Poe. According to Goodgame, Brownlee had sent Warren to pick up the other men and bring them back to Jones's, where they all used drugs. At around 7:00 or 7:30 that evening, Goodgame, Brownlee, and Harris went into a separate room of the apartment, at which time Brownlee told them that he knew of a "lick," meaning a place where they could get money. After discussing the plan, the three men equipped themselves with firearms, including a nickel-plated.357 Magnum with a brown handle for Brownlee and a silver, sawed-off .38 caliber pistol for Goodgame. Brownlee asked Warren if they could take his car, a blue Buick, but Warren declined to loan them the vehicle and instead drove them to their destination.

Goodgame testified that the men arrived in Warren's car at an alley behind Jodie's Lounge, but that Warren became nervous and drove them all back to Jones's apartment, where they talked before returning to the alley behind the lounge. Fifteen minutes before the men entered the bar to commit the robbery, Goodgame went in to look it over, at which time he bought two bags of potato chips. Once he returned outside and as the three men waited to enter the lounge, a man pulled up in a van. Goodgame testified that he, along with Brownlee and Harris, decided to take this man into the bar with them. After the man broke free from their initial grasp and tried to run away, Goodgame caught him. By this time, according to Goodgame's testimony, Brownlee and Harris were already in the bar. Therefore, Goodgame brought the man to the door of the bar and threw him onto the floor inside.

Goodgame testified that he remained at the door of the lounge throughout the course of the robbery, which lasted about ten minutes. Although he said that he saw Brownlee in the middle of the bar's floor area, Goodgame acknowledged that he did not see anybody shoot Dodd. He said that when the robbery ended, the men left the bar, with Brownlee carrying a tote bag, and returned to the car, where Warren was waiting. Upon returning to Jones's apartment, Brownlee, Goodgame, and Harris went into the bedroom and started dividing up the contents of Brownlee's bag, including clothes, billfolds, rings, watches, and $500 to $600 in cash. Goodgame said that he received a necklace and some money, and that there was a .38 caliber firearm lying on the bed.

According to Goodgame, the men then sent Jones to buy cocaine, and everyone in the apartment used cocaine, as well as "T's and blues."2 Goodgame testified that he was in the bedroom with Jones for some of this time, but that when he emerged he heard Poe saying "I didn't know you all had shot nobody." Goodgame asked, "who got shot?," and Poe explained, "Harris just told Brownlee that he didn't have to shoot," to which, according to Goodgame, Brownlee responded "I had to shoot the mother fucker cause he went for his pistol." Goodgame also testified that, on the following day, in a conversation with Warren, Jones, and Goodgame about a newspaper article, Brownlee made such statements as, "if I wouldn't have shot him, he would have shot me." Goodgame said that he and Brownlee went to the creek behind Jones's apartment and threw in the billfolds, identification cards, and other items of no value. He also said that he went with Brownlee to sell the pistols to an individual named "Big Bull."3

On cross-examination, Goodgame, who was identified by four patrons (Simon Hill, Jannie Surovec, B.A. Tidwell, and John Brown) as having been seen inside Jodie's Lounge, insisted that he did not actually go into the bar, but rather stayed outside and pushed the captive man inside. He also said that Brownlee's gun was black, after observing on direct examination that it was nickel-plated. Goodgame further testified on cross-examination that he told the police on the day of his arrest, June 5, 1986, that Brownlee had a .357, even though the police report indicated that Goodgame said Brownlee carried a short-barrel silver .38. Goodgame conceded that he was high on cocaine when he heard Brownlee admit to the shooting and that he had initially told the police that Brownlee carried stolen goods in his pocket upon leaving the crime scene, although he said at trial that Brownlee had a tote bag.

Some portions of Goodgame's testimony were corroborated by Warren and Jones, but other material portions were contradicted. Warren...

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