Rozzelle v. Sec'y, Florida Dep't of Corr.

• Decision Date: 29 February 2012
• Docket Number: No. 10–13595.,10–13595.
• Parties: Roger Allen ROZZELLE, Petitioner–Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

23 Fla. L. Weekly Fed. C 811

672 F.3d 1000

Roger Allen ROZZELLE, Petitioner–Appellant,

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent–Appellee.

No. 10–13595.

United States Court of Appeals, Eleventh Circuit.

Feb. 29, 2012.

Randolph P. Murrell, Gwendolyn Louise Spivey, Fed. Pub. Defenders, Fed. Pub. Defender's Office, Tallahassee, FL, for Petitioner–Appellant.

Christine Ann Guard, Pam Bondi, Office of the Atty. Gen., Tallahassee, FL, for Respondent–Appellee.

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

Before HULL, MARCUS and BLACK, Circuit Judges.

PER CURIAM:

Roger Allen Rozzelle appeals the district court's denial of his untimely 28 U.S.C. § 2254 petition challenging his Florida second-degree murder conviction. After review and oral argument, we affirm.

I. BACKGROUND

An information charged Petitioner Rozzelle with one count of second-degree murder, in violation of Florida Statutes § 782.04(2). This appeal centers around the “depraved mind” mens rea in § 782.04(2), which defines second-degree murder as “[t]he unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” Fla. Stat. § 782.04(2). In a 1999 trial, a jury convicted Rozzelle of second-degree murder. We review the abundant trial evidence establishing that Rozzelle brutally beat and killed the victim, Greg Leier.

A. 1999 Trial and Conviction

On July 17, 1998, Petitioner Rozzelle and his girlfriend, Andrea Barnes, checked into room 225 of a motel in Fort Walton Beach, Florida. At the motel, they met the victim, Greg Leier, who was staying next door in room 226. Leier had arrived several days earlier and had lent his car and credit cards to Tracey Feagin, who was staying at a nearby motel with her boyfriend, Corey Cox.

At 5:00 p.m., Petitioner Rozzelle went to a bar to meet his brother, Anthony Rozzelle. Barnes stayed behind at the motel. Petitioner's brother Anthony testified that Petitioner stayed with him at the bar until 6:00 p.m., when Petitioner left to check on Barnes. Around 6:00 p.m., Petitioner Rozzelle returned to the motel, where he saw Leier and Barnes in what Petitioner believed to be a sexual encounter.¹ Petitioner claimed that he “[k]nocked them out.”

Petitioner Rozzelle returned to the bar and told his brother Anthony that Petitioner had “caught” Barnes with Leier, “cold-cocked” both of them, “[k]nocked them out,” and dragged Barnes to his room and locked the door. Anthony testified that Petitioner was “[n]ot excited” when he described these events. The brothers stayed at the bar until about 9:00 p.m. Anthony drove Petitioner part of the way back to the motel, then “let him have his car and go on his way.” Anthony told Petitioner to go back to the motel and go to sleep and “don't get in trouble and don't go to jail.”

Around 9:00 p.m., Rozzelle returned to the motel and observed Leier and Barnes standing together on the motel balcony. Rozzelle then beat Leier and Barnes again. Leier died from his injuries that night.

That same evening, witnesses Adley Boudreaux and Dawn Cortie were staying in room 221. Both Boudreaux and Cortie testified that around 8:00 or 8:30 p.m., they were at the motel pool and saw Petitioner Rozzelle drive up, get out of his car quickly, run up the stairs, and beat on the door to room 226, demanding to be let in. At some point, Boudreaux left the pool and returned to room 221. On his way, he saw Petitioner Rozzelle enter room 226. Then Boudreaux heard a female voice “hollering, something about, stop, stop, you know. Don't do that. Leave him alone.” Boudreaux went into his room.

Motel employee Harish Chauhan testified that the occupant of room 226 phoned the motel front desk asking for security. Minutes later, Chauhan left the motel office and observed Leier, whose face was covered with blood, walking down the stairs. Leier asked Chauhan to call the police. Chauhan returned to the motel office and asked another motel employee to call the police.

At 9:26 p.m., police officer John Burritt responded to the call of battery-already-occurred. He arrived at the motel at 9:28 p.m. As he stepped out of the patrol car, Officer Burritt heard a voice say, “I'm over here.” The victim Leier approached Officer Burritt from the shadows of the ground floor of the motel. Burritt described Leier as having suffered a brutal beating. Leier was “staggering and hunched over,” had “blood pouring out of his mouth” and his head “almost looked twice the size of a normal human being” due to “massive swelling.” Burritt testified, “I was shocked because I'd never seen anybody beaten so badly in my life.” Burritt explained that “[y]ou could tell he was in severe pain and he was having difficulty breathing and having difficulty talking.” Leier told Officer Burritt that the person who beat him was upstairs and brought Burritt to room 225. Leier said, “he's in there.” Officer Burritt sent Leier to room 226 and knocked on the door to room 225. Petitioner Rozzelle answered. Officer Burritt saw Barnes in the room, and she was bleeding.

Officer Mary Blythe Williams arrived at the motel shortly after Officer Burritt. Officer Williams testified that Barnes “had blood all over her face, around her nose.” According to Officer Williams, Barnes's “teeth had been knocked out to just below the gumline” so that “[t]here was just a little tiny bit of white showing up underneath her gumline.”

Officer Burritt arrested Petitioner Rozzelle at the motel. Burritt testified that as he and Rozzelle walked past Leier's room, Rozzelle looked in and stated, “that's right, you motherfucker, I kicked your ass, I caught you fucking my old lady, I kicked your ass.” Officer Williams also heard Rozzelle make this statement. Officer Burritt put Rozzelle in the back of Burritt's patrol car and transported Rozzelle to the police station. Officer Burritt testified that, during the trip, Rozzelle stated, “I caught that guy fucking my old lady and I beat the hell out of him. I'm from the old school and he had it coming.”

At the police station, Petitioner Rozzelle made a taped statement that was introduced at trial. In the statement, Rozzelle said, “I love this woman,” and he “whupped [Leier's] ass” after seeing Leier and Barnes together after returning from the bar the second time and “didn't have no second thoughts about it.” Rozzelle continued:

You're lucky this [foot] wouldn't fit up his ass or it would have been there, too. That's all I can say. The guy got—he deserved an ass whupping, and I put one on him and I don't feel sorry about it. The only thing that I didn't do to that motherfucker is throw him off the balcony, and if I had probably thought about it, I would have done that, too.

In his taped statement, Rozzelle stated that he had used only his fists to beat Leier. Rozzelle struck Leier with “[a] couple of good left hooks ... probably three or four ... [and a] couple of right crosses, too.”

Rozzelle also indicated that, during or shortly after he beat Leier, Barnes went into her room and locked the door, and Rozzelle had to go downstairs to the motel office to get another key. The police “were there pretty quick,” about “two or three minutes” after Rozzelle went to the motel office.

Emergency Medical Technician (“EMT”) Brian Hughes treated the victim Leier at the motel. Hughes testified that Leier stated that he was hit with a fist and indicated that he was not hit with any other objects. Hughes testified that Leier lost consciousness at the motel.

Around 10:00 p.m., Leier arrived at the hospital. Dr. Carl Glidden, who treated Leier, testified that Leier was unconscious and neurologically unresponsive upon Leier's arrival at the emergency room. Dr. Glidden explained that Leier's brain “was more or less like jello at that time, no form or function to it.” Dr. Glidden opined that Leier's injuries “could be consistent” with a beating from a person's fists.

Dr. Bruce Witkind, a neurosurgeon, testified that Leier was brain dead when Dr. Witkind examined Leier at the hospital. According to Dr. Witkind, a CT scan showed massive bleeding on the left side of Leier's brain and under his skull, and these injuries were consistent with a beating from a man's fists.

Dr. Michael Berkland, the Associate Medical Examiner, performed Leier's autopsy. Dr. Berkland testified that Leier's injuries included bruises around the eyes, face and mouth, and on the scalp, chest, both arms and back. Leier's internal injuries included deep bruises extending to the muscle tissue. Leier's blood alcohol level was approximately 0.40. Dr. Berkland stated that Leier's injuries were consistent with a beating from a man's fists but acknowledged that some of Leier's injuries could have been caused by something else, for example, falling against a hard surface.

At trial, Petitioner Rozzelle's defense was that, several minutes after he beat Leier the second time, Corey Cox, who had visited the motel with Feagin on a different day but did not know Leier, entered the motel room and administered the final and fatal blows to Leier. Defense counsel argued to the jury that there was a reasonable doubt as to whether Rozzelle was the person responsible for Leier's death. In his closing argument, defense counsel noted that, after Leier was beaten, Rozzelle's knuckles were uninjured except for one small scratch and police found no blood on the shoes and shirt Rozzelle was wearing. Defense counsel also argued that Leier's statement, that Rozzelle beat him, was unreliable because Leier was extremely intoxicated and his brain was injured by the beating. Defense counsel attributed Rozzelle's incriminating statements after the beating to Rozzelle's anger. Rozzelle did not testify at trial.

The prosecution argued to the jury that Rozzelle administered the fatal beating and that...