720 F.3d 1296 (11th Cir. 2013), 11-14148, Burns v. Secretary, Florida Dept. of Corrections

Docket Nº:11-14148.
Citation:720 F.3d 1296
Opinion Judge:MARCUS, Circuit Judge.
Party Name:Daniel BURNS, Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.
Attorney:Mark Stephen Gruber (Court-Appointed), Capital Collateral Regional Counsel, Tampa, FL, for Petitioner-Appellant. Carol Marie Dittmar, Atty. General's Office, Tampa, FL, for Respondents-Appellees.
Judge Panel:Before CARNES, HULL and MARCUS, Circuit Judges.
Case Date:July 08, 2013
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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720 F.3d 1296 (11th Cir. 2013)

Daniel BURNS, Petitioner-Appellant,


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

No. 11-14148.

United States Court of Appeals, Eleventh Circuit.

July 8, 2013

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[Copyrighted Material Omitted]

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         Mark Stephen Gruber (Court-Appointed), Capital Collateral Regional Counsel, Tampa, FL, for Petitioner-Appellant.

          Carol Marie Dittmar, Atty. General's Office, Tampa, FL, for Respondents-Appellees.

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

          Before CARNES, HULL and MARCUS, Circuit Judges.

          MARCUS, Circuit Judge.

         In this capital case, Daniel Burns appeals the district court's denial of his petition for a writ of habeas corpus. At the sentencing phase of his state court trial, Burns asked that the jury be instructed to draw no inference from his failure to testify. But the trial court refused to do so. On direct appeal, while the Florida Supreme Court concluded that the refusal violated Burns's Fifth Amendment privilege against self-incrimination, it also determined that any error was harmless. Burns collaterally attacked the Florida Supreme Court's harmless-error conclusion in federal court, again without success, and now appeals from that judgment.

         After thorough review, we affirm. The Florida Supreme Court's determination is neither contrary to nor an unreasonable application of clearly established federal law. In fact, the Supreme Court has never held that the error Burns cites is immune from harmless-error review. Nor can we find that the failure to give a no-adverse-inference instruction had a substantial and injurious effect on the jury's recommendation.



          The basic facts are these. In 1987, Daniel Burns and Samuel Williams traveled up Interstate 75, heading to Detroit from Fort Myers, Florida, when Jeff Young, a Florida Highway Patrol Trooper, pulled their car over. Burns v. State (Burns I), 609 So.2d 600, 602 (Fla.1992) (per curiam). Young asked Burns and Williams for identification, returned to his police car, and asked the radio dispatcher to check the identifications and the car's registration. Burns v. State (Burns II), 699 So.2d 646, 647-48 (Fla.1997) (per curiam). Young then asked Burns if he could check the car's trunk; Burns consented.

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Burns v. State (Burns III), 944 So.2d 234, 237 (Fla.2006) (per curiam).

         Burns, as it turned out, was trafficking crack cocaine worth $10,000, some of which he hid in a bank bag in the car's trunk. Burns I, 609 So.2d at 602. Young found the cocaine and walked to his police car to report his discovery. Burns, however, rushed Young. A struggle ensued. Being far heavier than Trooper Young, Burns grabbed Young, wrestled him to the ground, and enveloped Young with his body. As Young sought to escape, Burns put him in a reverse bear hug, picked him off the ground, and flung him around. The two men struggled and eventually fell into a ditch by the side of the road. Burns choked and repeatedly punched Young. Burns then clawed Young's gun off its holster. Burns v. Dep't of Corr. (Burns IV), No. 07-cv-1275, 2011 WL 3563102, at *2 (M.D.Fla. Aug. 10, 2011). Bystanders gathered around the fight and almost intervened on Young's behalf, but Young instructed them to stay back because Burns had his firearm. Burns I, 609 So.2d at 602. Burns stood in front of Young with the gun aimed directly at the Trooper. On his knees, Young put his hands in front of his face to shield himself and told Burns that he did not have to do this, that Burns could just walk away. Id. at 602-03. Burns did not walk away. He fatally shot Young in the head. Burns then instructed Williams to drive off and hide the drugs. Williams sped off, and Burns " walked casually" into a nearby marshy area. Despite Burns's attempt to hide in the marshes, the police found and arrested him later that day. Burns IV, 2011 WL 3563102, at *2.


         On May 3, 1998, Burns's trial began. The jury found Burns guilty of first-degree murder and drug trafficking. Burns I, 609 So.2d at 603. The state sought the death penalty, and, by a vote of ten to two, the jury recommended a sentence of death. The trial court followed the jury's recommendation and sentenced Burns to death. Id. The court found that one statutory mitigator (a lack of criminal history) and five nonstatutory mitigators applied to Burns, but the nonstatutory mitigators deserved little weight. Id. at 603 & nn. 3-4. It also found two compelling statutory aggravators— that Burns murdered to avoid arrest and that the murder was heinous, atrocious, and cruel. Burns appealed this decision to the Florida Supreme Court.

         Florida's high court unanimously affirmed the conviction but found error in the sentencing proceeding. The murder was not heinous, atrocious, or cruel, the Florida Supreme Court reasoned, because the struggle between Burns and Young " was short" and the gunshot wound " caused rapid unconsciousness followed within a few minutes by death." Id. at 606. Since it could not determine what weight the trial court accorded the various aggravators and mitigators, the Florida Supreme Court vacated the sentence and remanded for a new proceeding. Id. at 607.

          The second sentencing proceeding began in April 1994. At pre-trial conference, the state asked if it could introduce evidence of Burns's lack of remorse in its case in chief. The sentencing court answered that the state could not, characterizing the effort as " improper." That said, the sentencing court ruled that the state could discuss Burns's remorse in rebuttal if Burns introduced any remorse-related evidence. The state did not mention remorse in its case in chief. Instead, it presented witnesses who described the egregious nature of the

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murder and Burns's capture by the police. The witnesses included police officers who responded to Young's radio signals for help, bystanders who saw Burns shoot Young, forensic experts who testified about the shooting, and police officers who later arrested the defendant.

         Burns presented thirty-five witnesses in his defense. At least four of them— the defendant's aunt, one of his sisters, one of his brothers, and a family pastor— testified that Burns evinced genuine remorse for Trooper Young's death. However, none of them remembered Burns describing the facts surrounding the shooting or that he was transporting crack cocaine when the fatal shots were fired. The defendant's aunt specifically recounted that Burns " had receive[d] the Lord," that he was now a different person, that he was sorry for killing Young, and that he knew life was precious in God's sight. But Burns never spoke of his attempt to transport cocaine.

         Burns's sister likewise said her brother was unable to understand how the murder happened, was " so sad," and was " extremely sorry for [Young's] family." On cross-examination, however, she conceded Burns never told her about crack cocaine or explained how he killed the Trooper. And like some of the other defense witnesses, the sister explained that Burns considered the murder an " accident." Another sibling, the defendant's brother, explained, when asked about remorse, that Burns was filled with sorrow and the Trooper's death was a " tragedy, mistake, accident." He too conceded that Burns never told him about crack cocaine. The defendant also called a family friend and pastor who visited Burns regularly in prison. He explained that Burns had grown spiritually, he had sorrow in his heart, and the sorrow grew out of the defendant's remorse. But like the others, the pastor recounted that Burns had not confessed to the facts surrounding the murder.

         Several witnesses (including his friends and a former girlfriend) testified that Burns had an impoverished childhood, that he regularly sacrificed himself for the good of his family, and that he was a " very nice person." One witness observed that the defendant was depressed, and several others described him as a religious, caring, and spiritual person. None of the defendant's witnesses ever recalled the defendant explaining the circumstances surrounding the shooting and none recalled Burns ever mentioning that he was transporting crack cocaine in his trunk when he was stopped.

         Burns never testified at sentencing, and at the charge conference, he requested a no-adverse-inference instruction that the jurors should not draw any negative inference from his failure to testify. Although the law was by then clear that, if a criminal defendant sought a no-adverse-inference instruction at trial, the judge was obliged to give one, the state objected because this was a sentencing proceeding. The sentencing court agreed that the instruction was unnecessary. During closing argument, the state sought to counter Burns's claim that he felt true remorse, underscoring that the defendant had refused to share the basic facts about the murder with his family, his friends, or his pastor. " [O]ne cannot truly show remorse," the state argued, " unless one is honest with oneself, unless one is honest with one's family, unless one is honest with others and telling them what you have truly done."

          This time the jury returned a unanimous recommendation of death, and the court followed the jury's recommendation. In

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its sentencing order, the trial court found three statutory aggravators: Burns murdered Young while Young was engaged in his official duties as a police officer; Burns killed to avoid or prevent lawful arrest; and Burns murdered to disrupt law enforcement. The court merged these aggravators into one. The sentencing court determined...

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