684 F.3d 1066 (11th Cir. 2012), 11-10240, Hardy v. Commissioner, Alabama Dept. of Corrections

Docket Nº:11-10240, 11-10761.
Citation:684 F.3d 1066
Opinion Judge:TJOFLAT, Circuit Judge:
Party Name:John Milton HARDY, Petitioner-Appellant, v. COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, Respondent-Appellee.
Attorney:John Anthony Palombi, Christine A. Freeman, Leslie S. Smith, Fed. Pub. Defenders, Fed. Def. Program, Inc., Montgomery, AL, for Petitioner-Appellant. Beth Jackson Hughes, Pamela L. Casey, James Clayton Crenshaw, Montgomery, AL, for Respondent-Appellee.
Judge Panel:Before DUBINA, Chief Judge, and TJOFLAT and MARCUS, Circuit Judges.
Case Date:June 18, 2012
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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684 F.3d 1066 (11th Cir. 2012)

John Milton HARDY, Petitioner-Appellant,



Nos. 11-10240, 11-10761.

United States Court of Appeals, Eleventh Circuit.

June 18, 2012

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John Anthony Palombi, Christine A. Freeman, Leslie S. Smith, Fed. Pub. Defenders, Fed. Def. Program, Inc., Montgomery, AL, for Petitioner-Appellant.

Beth Jackson Hughes, Pamela L. Casey, James Clayton Crenshaw, Montgomery, AL, for Respondent-Appellee.

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

Before DUBINA, Chief Judge, and TJOFLAT and MARCUS, Circuit Judges.

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TJOFLAT, Circuit Judge:

John Milton Hardy is an Alabama prison inmate awaiting execution for a capital murder he committed with Charles Sneed, who likewise is awaiting execution. He has exhausted his state remedies, and a Federal District Court has denied his petition for a writ of habeas corpus. See 28 U.S.C. § 2254. He is here on appeal. His principal claims are that in requiring him to stand trial jointly with Sneed, the Alabama courts denied him due process of law, as guaranteed by the Fourteenth Amendment, and an individualized sentencing proceeding, as guaranteed by the Eighth Amendment. He also argues that the prosecutor commented on his post- Miranda silence in violation of the Fourteenth Amendment. We find no error in the District Court's denial of the writ, and therefore affirm.



On October 22, 1993, a Morgan County grand jury indicted Hardy and Sneed for the capital offense of murder committed, in the first degree,1 during the robbery of a convenience store clerk in Decatur, Alabama on September 7, 1993. Prior to trial, Hardy moved the Morgan County Circuit Court for severance on the ground that his and Sneed's defenses were " antagonistic to the point of being irreconcilable and mutually exclusive." His defense would be alibi; Sneed's defense would be that Hardy shot the victim. Sneed had given the police a written statement in which he confessed that he and Hardy had robbed the convenience store, but that he did not know, and did not intend, that Hardy would shoot the clerk. The court denied Hardy's motion. As for Sneed's confession, it could address its admissibility at trial.

The joint trial began on September 8, 1995. The Alabama Court of Criminal Appeals, in its opinion affirming Hardy's conviction and death sentence, details the evidence presented to the jury.

The state's evidence showed the following. In the early morning hours of September 7, 1993, Clarence Nugene Terry, the clerk at a Bud's Convenience Store located in Decatur, was murdered and robbed. A surveillance camera captured the entire robbery-murder on videotape, and the videotape was recovered at the scene. The videotape showed that Hardy and Sneed entered the store and that Hardy was armed with a gun. Immediately upon entering the store, Hardy began shooting at Terry. As Hardy fired the initial shot, Sneed walked past Hardy toward the cash registers. The first shot missed Terry, and he ran behind the counter, trying to hide. Sneed, by this time also behind the counter, tried to open the cash registers as Terry lay on the floor near Sneed's feet. As Sneed attempted to open the cash registers, Hardy, who was still in front of the counter, leaned over the counter and shot Terry in the chest. Terry tried to protect and hide himself after this shot. Hardy walked around the counter, and while standing over Terry, fired five shots into Terry's face and head. Forensic evidence showed that Terry was still conscious when Hardy began shooting him in the head. Terry suffered gunshot wounds to the left cheek, left upper cheek, center of his forehead, left ear, left eye socket, right side of his chest, and the palm of his right hand. Any of the wounds to the head or the one to the chest would have proved fatal. As Terry lay dying on the

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floor, Sneed and Hardy continued their attempts to open the cash registers. Sneed, at one point, kicked Terry's foot to move it out of his way. The attempts to open the cash registers were unsuccessful, so Hardy and Sneed unplugged one of the cash registers and took it with them when they ran out of the store.

The state's evidence further showed that on August 29, 1993, a few days before the robbery-murder, Sneed and Christopher Hines drove in Hines's blue 1978 Ford automobile from Louisville, Kentucky, to Tanner, Alabama, to visit Hines's relatives. Sometime after arriving in Tanner, Hines introduced Sneed to Hardy. On the evening of September 6, 1993 (the evening before the early-morning crime), Hardy, Sneed, and Hines rode in someone else's automobile to Tennessee to purchase fireworks and beer. They returned to Alabama, where they spent the remainder of the evening drinking. Around 10:30 p.m., Hines let Hardy borrow his automobile; Sneed left with Hardy. Hines did not see either Hardy or Sneed until around 3:00 or 4:00 a.m. the next morning, when he accompanied them to a location near Hardy's father's house, where, using a sledgehammer, the three men attempted to get money out of a cash register. Subsequently, the cash register was identified as the one taken during the robbery-murder, and Hines's fingerprint was later found on a piece of the cash register that was recovered. Sometime later that day Hardy, Sneed, and Hines returned to Hardy's father's house, where Hardy and his father had an argument about a gun; Hardy's father accused him of stealing the gun.

The state's evidence also showed that police officers showed the surveillance videotape of the robbery-murder to several persons, including Hines, in an effort to identify the gunman and his accomplice. Hines and three others positively identified Hardy as the shooter. Sneed was identified as the accomplice appearing on the videotape.

On Wednesday, September 8, 1993, Hardy, Sneed, and Hines traveled to Louisville, Kentucky. Hardy was arrested in Kentucky the same day. At the time of his arrest, he was carrying a 9mm semiautomatic handgun. While in custody in Kentucky, Hardy gave an oral statement to the Decatur, Alabama officers, [Sergeants Dwight Hale and John Boyd,] denying his involvement in the crime; however, he admitted borrowing Hines's automobile on September 6. Also, when asked how much money he " got," he replied that he did not get any because he could not get the cash register open. He further stated the he had hidden the gun, wrapped in plastic, in the attic at his father's house in Alabama; that the clothes, presumably those worn during the crime, had been burned; and that the cash register had been thrown away. He stated that when he was returned to Alabama, he would consent to a search and would show the officers where the gun was located.

Hardy v. State, 804 So.2d 247, 255-56 (Ala.Crim.App.1999).

At some point as it was presenting its case in chief, the State informed the court out of the jury's presence that it intended to introduce the written statement Sneed had given the police. Hardy objected because the statement implicated him by name. The court overruled the objection after the State produced a redacted statement that omitted all references to Hardy. See Ex parte Sneed, 783 So.2d 863, 865 (Ala.2000) (" [I]n places where Sneed had

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actually said ‘ we’ or ‘ he,’ the prosecution had substituted ‘ I [.]’ " )2

After the State rested, the court asked defense counsel whether they intended to put on any evidence. Hardy's counsel informed the court that Hardy would present a defense, but would not be taking the stand. Sneed's counsel had nothing to present.

Hardy's defense consisted of the testimony of " two alibi witnesses: his brother, who testified that Hardy was home on the night of the crime and that it was not Hardy on the videotape; and his sister, who also testified that it was not Hardy on the videotape." Hardy v. State, 804 So.2d at 256.

The jury found both defendants guilty, and following a recess, the sentencing phase of the jury trial began. Before the State presented its case, the court instructed the jury that it was in effect conducting two sentencing proceedings; it had to give separate consideration to the case of each defendant and realize that any evidence admitted against only one defendant should not be considered as to the other defendant. The State went first. It relied on the evidence produced during the guilt phase of the trial and presented, in addition, an unredacted version of Sneed's statement of confession. After the State rested, Hardy presented his case, calling several character witnesses in mitigation, but he did not take the stand. Sneed, in his case, called character witnesses in mitigation but did not testify.

On October 30, 1995, after deliberating, the jury, by a vote of 10 to 2, recommended

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a death sentence in both cases. On December 21, 1995, the court accepted the jury's recommendation for both defendants and sentenced them to death.


Hardy appealed his conviction and sentence to the Alabama Court of Criminal Appeals. His brief presented several grounds for the reversal of his conviction and death sentence, including the three grounds presented in the instant appeal: (1) " that the ‘ joinder of [his] trial with his codefendant's violated [his constitutional] rights, and the trial court's refusal to grant a severance was reversible error," Hardy v. State, 804 So.2d at 257; (2) " that the trial court denied his constitutional right to an individualized sentencing by refusing to sever his penalty phase hearing from that of Sneed," id. at 263; and (3) " that the trial court erred by allowing a state witness [, Sergeant Dwight Hale,] to impermissibly comment on [his] post- Miranda silence," id. at 264. The Court of Criminal Appeals...

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