572 F.3d 1327 (11th Cir. 2009), 07-14173, Smith v. Secretary, Dept. of Corrections

Docket Nº:07-14173.
Citation:572 F.3d 1327
Opinion Judge:CARNES, Circuit Judge:
Party Name:Derrick Tyrone SMITH, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General of the State of Florida, Respondents-Appellees.
Attorney:Martin J. McClain (Court-Appointed), Wilton Manors, FL, for Petitioner-Appellant. Katherine Vickers Blanco, Tampa, FL, for Respondents-Appellees.
Judge Panel:Before DUBINA, Chief Judge, and CARNES and HULL, Circuit Judges.
Case Date:June 30, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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572 F.3d 1327 (11th Cir. 2009)

Derrick Tyrone SMITH, Petitioner-Appellant,


SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General of the State of Florida, Respondents-Appellees.

No. 07-14173.

United States Court of Appeals, Eleventh Circuit.

June 30, 2009

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[Copyrighted Material Omitted]

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Martin J. McClain (Court-Appointed), Wilton Manors, FL, for Petitioner-Appellant.

Katherine Vickers Blanco, Tampa, FL, for Respondents-Appellees.

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

Before DUBINA, Chief Judge, and CARNES and HULL, Circuit Judges.

CARNES, Circuit Judge:

During an aborted robbery attempt cab driver Jeffrey Songer was shot in the back and died in the street in St. Petersburg, Florida. It happened after midnight on March 21, 1983. Eight months later Derrick Tyrone Smith was convicted for Songer's murder and sentenced to death. The Florida Supreme Court reversed that conviction

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and ordered a new trial because of two constitutional violations in the first trial. Smith v. State, 492 So.2d 1063, 1067 (Fla.1986); see Smith v. State, 641 So.2d 1319, 1320 n. 1 (Fla.1994) (" This Court reversed Smith's conviction and sentence at his initial trial because (1) the State elicited an improper comment on Smith's exercise of his right to remain silent and (2) the trial court admitted a statement Smith made to a detective after exercising his right to remain silent." ).

Smith was again convicted and sentenced to death in May 1990. The Florida courts affirmed his second conviction and sentence on direct appeal. Smith v. State, 641 So.2d at 1323, cert. denied, 513 U.S. 1163, 115 S.Ct. 1129, 130 L.Ed.2d 1091 (1995). Smith moved for post-conviction relief under Florida Rule of Criminal Procedure 3.850, raising twenty-seven claims against his conviction and sentence. The trial court eventually denied relief, and the Florida Supreme Court affirmed. Smith v. State, 931 So.2d 790 (Fla.2006). Smith then filed a petition for a writ of habeas corpus in federal district court, but the court rejected his claims. Smith v. Sec'y, Dep't of Corr., No. 8:06-cv-01330-T-17MAP, 2007 WL 2302207, at *32-33 (M.D.Fla. Aug. 8, 2007).

This is Smith's appeal from that denial of federal habeas relief. It brings us a car load of issues arising from three Giglio claims (discussed in Parts III and IV of this opinion), twelve Brady claims (Parts III, V, and VI), and three Strickland claims (Part VII). After working our way through all eighteen claims, our conclusion (Part VIII) is that the district court's denial of relief is due to be affirmed for twelve of them but six of the Brady claims need more work at the materiality stage, work that is to be done by the district court on remand.


At the 1990 trial, the State argued that Smith and his codefendant Derrick Johnson had planned to rob a taxi driver. The State's evidence indicated that shortly after midnight on March 21, 1983, one of them called the Yellow Cab company from the local Hogley Wogley BBQ. Fingerprint evidence connected Smith to the phone at the Hogley Wogley. David McGruder, the cook on duty, described seeing two men who looked like Johnson and Smith loitering outside. McGruder also testified that he saw Smith use the phone and that when the cab arrived, Smith got into the back seat and Johnson into the front. On cross-examination, however, McGruder became confused and admitted that he was not sure whether he actually saw Smith.

To explain how Smith acquired a gun, the State presented the 1983 testimony of his uncle, Roy Cone, who had died before the 1990 trial. Cone had testified that he purchased a blued revolver and a single box of bullets in 1972. Cone kept the gun under his mattress for many years. He saw it there in January of 1983, but it was gone two months later. He did not know what happened to it. Smith did not live at Cone's house during that time, but he did visit.

To establish that Smith was the triggerman, the State presented the testimony of Ernest Rouse, Carolyn Mathis, Priscilla Walker, and James Matthews. All of them testified that they had seen Smith with a revolver on the night of the murder. Carolyn Mathis' sister Regina also testified that Smith had told her he was planning to " hustle" some money that night. Matthews had heard Smith say a similar thing. Rouse, who knew Johnson, said that Smith and Johnson were together on the night of the murder, and both Mathis sisters saw a man matching Johnson's description

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with Smith. No one saw Johnson with a gun.

The State also presented eyewitness testimony from Melvin Jones, who lived near the crime scene. Jones said that on the night of the murder he had been walking home, watching for police cars because he had outstanding warrants, when he saw the cab arrive. He recognized Smith and Johnson " from the street" but testified that he had never talked to either of them. Jones saw Smith get out of the cab's back seat and Johnson get out of the front seat. Smith had a gun, and when the cab driver ran Jones saw Smith shoot him. After witnessing the shooting Jones hurried home, where he eventually told his wife, Mellow Jones, what he had seen. She testified that Jones had told her that night that he had seen a man get shot.

After first denying it, Jones acknowledged that had he had made a deal with the State involving his 1983 testimony. The deal gave him leniency for the seventeen unrelated felony charges that Jones had been facing at the time of Smith's first trial. Jones was never asked whether he had received any new promise or benefit from the State in 1990 for his second (current) round of testimony.

For his part, Smith's codefendant Derrick Johnson pleaded guilty to second degree murder and testified for the State. Johnson told the jury that he and Smith had agreed to rob a cab and had gone to the Hogley Wogley, where Smith had called the cab company. Johnson described Smith's gun as a black revolver with a brown handle, which was consistent with Cone's gun. Johnson said that Smith had sat in the rear of the cab. The driver had seen the gun and tried to run away but Smith fired at him. Johnson and Smith then ran off and separated. On cross-examination, it became clear that Johnson had lied to police initially about the crime, but he stated again that there had never been a plan to shoot anyone. Johnson admitted to one felony conviction but was never questioned about his plea deal with the State.1

To recount what happened after the crime, the State presented Priscilla Walker and James Matthews, who were living together at the time of the murder. They both said that Smith had come to their home that night. Walker testified that Smith had told her that he " shot a cracker in the back." The victim, Jeffrey Songer, was white. Matthews testified that Smith had said that he " might have shot someone." The State also presented Marcel DeBulle, a Canadian tourist who described how Smith had robbed him in the early afternoon of March 21, about twelve hours after the murder. DeBulle testified that Smith had carried a black or blue revolver, had entered DeBulle's hotel room, and had handled his briefcase. Fingerprints from the briefcase were matched to Smith. Smith was convicted of that robbery and is serving a life sentence for it.

The State also presented physical evidence and expert testimony linking Smith to the murder. FBI Agent Robert Sibert testified that Smith's jeans pocket contained lead residue consistent with bullets. The State put into evidence a bullet fragment taken from Songer's clothing. Two other FBI agents, Asbery and Havekost, were qualified as experts and testified that the bullet fragment, according to lead compositional analysis, " matched" bullets from the ammunition box Roy Cone had purchased in 1972 and still possessed at the

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time of the murder. The State used this evidence to argue that it was Smith who had stolen his uncle's gun and some bullets that had come from the box-bullets that were used to kill the victim. The gun itself was never found.

The only witness for the defense was Larry Martin, a prisoner who had been incarcerated with Johnson. Martin testified that Johnson told him that Smith was not the shooter, but he also conceded that Johnson did not say who was or what Johnson's own role had been. On cross-examination, the State brought out that Martin had eight felony convictions.

In its closing argument the State stressed the consistencies in the testimony given by its witnesses. It pointed out the number of witnesses who had seen Smith with a gun on the night of the murder and the fact that none had seen Johnson with one. The State emphasized that both Johnson and Jones had actually seen Smith shoot Songer. Referring to its bullet lead analysis, the State argued that it had proven the bullet that killed Songer and those in the box at Smith's uncle's house were " materially indistinguishable. They're the same." The chance of that compositional similarity occurring coincidentally " boggles the mind." The State pointed out that in order to find Smith not guilty the jury would have to believe Larry Martin and disbelieve all of the State's witnesses.

The defense's closing argument focused on reasonable doubt. Smith's counsel conceded that it " look[ed] very suspicious" for Smith, but argued the State's circumstantial evidence failed to show who shot Songer. Counsel stressed that the only two eyewitnesses against his client, Johnson and Jones, each had much to gain from the State. He argued that Johnson's only goal was to pin the murder on Smith and that Melvin Jones either was lying to save himself from unrelated charges or was involved in the murder...

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