Downs v. Sec'y
| Decision Date | 05 December 2013 |
| Docket Number | No. 12–14248.,12–14248. |
| Citation | 738 F.3d 240 |
| Parties | Ernest Charles DOWNS, Petitioner–Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents–Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
OPINION TEXT STARTS HERE
Scott Balber, Herbert, Smith, Freehills New York, LLP, New York City, Abbe David Lowell, Chadbourne & Parke, LLP, Washington, DC, Benjamin Bleiberg, Chadbourne & Parke LLP, New York City, Robert M. Kline, McDermott Will & Emery, LLP, Miami, FL, Justin B. Uhlemann, McDermott Will & Emery, LLP, Miami, FL, for Petitioner–Appellant.
Carol Marie Dittmar, Tampa, FL, Charmaine Mary Millsaps, Tallahassee, FL, for Respondents–Appellees.
Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 3:01–cv–01399–HES–JRK.
Before HULL, MARCUS and WILSON, Circuit Judges.
Ernest Downs, a Florida death row inmate, appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. This appeal involves only the guilt phase of Downs's trial. Downs argues that his convictions for first degree murder and conspiracy to commit first degree murder were obtained in violation of the Constitution because (1) the State withheld exculpatory evidence prior to his trial, (2) his trial counsel labored under a conflict of interest due to a contingency fee agreement, and (3) his trial counsel rendered ineffective assistance by failing to call certain witnesses during the guilt phase. After review and oral argument, we conclude that Downs has not shown that the Florida state courts' decisions are contrary to or an unreasonable application of clearly established federal law. We thus affirm the district court's denial of Downs's § 2254 petition.
On August 4, 1977, a Florida grand jury indicted Ernest Downs on two counts: (1) first-degree murder of Forrest J. (“Jerry”) Harris, Jr., and (2) conspiracy to commit first degree murder of Harris. The State charged that John Barfield hired Downs to kill Harris for $5,000, and that Downs recruited Larry Johnson to help with the murder. Downs retained attorney Richard Brown to represent him.
Downs proceeded to a jury trial on the murder and conspiracy charges. The guilt and innocence phase of this trial lasted from Wednesday, December 14 through Friday, December16, 1977. In this murder-for-hire case, Downs's co-conspirator Johnson was the State's main witness.
Johnson testified that, in April 1977, he met with Downs, Barfield, and a man named Gerry Sapp to discuss killing Harris. On the day of the murder, April 23, 1977, Downs told Johnson that Harris was expecting a call from someone named Joe Green to discuss transporting some contraband. That afternoon, Johnson and Downs drove in Downs's pickup truck to the Baymeadows area in Jacksonville, Florida, where the killing was supposed to occur. They went to a phone booth to call Harris for the purpose of luring him out. At that point, Johnson told Downs to “forget killing” Harris, but Downs insisted that Johnson make the call. Johnson complied and called Harris, identifying himself as Joseph Green. A woman answered the phone and said that Harris would be back shortly.
Downs and Johnson then drove by Harris's apartment, and when they saw Harris arrive, they went back to the phone booth. Johnson testified that he again expressed his unwillingness to proceed with the murder, but Downs became “edgy” and insisted that Johnson call Harris. Johnson once more called Harris, and this time Harris answered the phone. Johnson identified himself as Joe Green and told Harris that he wanted to meet him at a nearby lounge to “talk some business.”
Johnson testified that, after the call, he told Downs that he was not going to proceed with the murder, and, if Downs wanted to kill Harris, he (Downs) would have to do it alone. Downs became “really angry” and insisted that Johnson get in the truck with him. Johnson complied and got in the truck because he feared that Downs might shoot him, but again told Downs that he was not going to kill Harris. Downs “got really mad at that point, jerked the truck in gear,” and instead of going to the lounge, drove down to the end of a nearby dirt road. Downs then told Johnson to get out of the truck, threw him a .45 caliber machine gun, told him to stay put, and drove off.
Johnson testified that, when left alone, he hid the machine gun under “some boards” because he had no intention of using it. Then he waited. After some time, Downs came back in the truck with Harris. Harris stepped out of the truck, walked up to Johnson, and introduced himself. Johnson, who was “kind of numb at this point,” introduced himself as Johnson, not Joe Green. Harris stepped back and looked at Johnson “kind of funny.” As Johnson began to explain that he used an alias, Downs took out a .25 caliber pistol and fired four shots at Harris.
Johnson described the shooting as follows:
[Downs] brought up the .25 automatic and fired at him.... [After the first shot, Downs] kind of jumped up in the air and come down backwards a few feet and almost stumbled and fell down. He righted himself and fired three more times still stumbling backwards. [Downs] fell into the side of the truck ... and fired three more times at him, and then he stumbled backwards and went completely around behind the truck out of my sight.
Harris staggered back and fell down in front of Johnson. Downs then “came out from behind the truck and ran around front and leaped over Jerry Harris, and Harris's head was off the ground.” Downs “stuck the gun up to the right side of [Harris's] head and fired again point-blank,” at which point “Harris laid down.”
Johnson testified that he and Downs dragged Harris's body into the woods behind the dirt road. They removed car keys, identification, and some cash from Harris's pockets. Downs took the identification, Johnson pocketed the money, and they threw away the car keys. Downs then fired one more bullet into Harris's chest.
Downs and Johnson drove away from the scene, but returned to pick up the machine gun and to drag Harris's body further into the woods. Afterwards, on the way home, Johnson threw the .25 pistol off a bridge into a river.
Johnson testified that the day after the murder, he and Downs visited Barfield. Downs showed Harris's driver's license to Barfield, told Barfield that the job was completed, and demanded payment. Barfield assured Johnson and Downs that he would have their money within several days. Barfield eventually gave cash to Downs in payment for the killing, and Downs gave Johnson a Corvette.
Having received payment, Johnson and Downs traveled to the Florida Keys, Mexico, Texas, and Alabama for several weeks. Johnson testified that he did not inform the authorities about the murder at this time because he “was afraid that [Downs] may get revenge on me or my family or something,” and “was afraid of being arrested for the murder myself.”
Downs stayed in Alabama, but Johnson returned to Jacksonville in late July of 1977, more than three months after the Harris murder. Johnson talked about the murder to Downs's sister, Darlene Perry, who was also Johnson's girlfriend. Johnson also talked to Downs's grandfather. Johnson then contacted Detective Jim Spaulding, told him about the murder, and led law enforcement to Harris's body. In exchange, Johnson obtained full immunity from prosecution.
On cross-examination, Johnson admitted that his immunity would be revoked if he testified that he had killed Harris. His immunity would also be revoked if he did not tell the truth.
Another witness, Gerry Sapp, described how Barfield hired Downs to kill Harris. Sapp testified that, when he was riding with Barfield to Downs's house, Barfield told Sapp that he (Barfield) was going to ask Downs to kill Harris. Barfield told Sapp that he “didn't know Larry Johnson too good,” did not trust Johnson, and would not ask Johnson to kill Harris.
When Sapp and Barfield arrived at Downs's house, Downs and Johnson were inside the garage working on a truck. Barfield called Downs outside, and they walked behind the house and talked for a few minutes. When Barfield and Downs returned, Downs told Johnson that he was going to kill a man for $5,000. Downs also said that he wanted to be paid immediately after the murder, “with no questions asked.” When Barfield asked how he would know that Harris was killed, Downs said that he would bring back proof of the killing, like a driver's license.
Detective Spaulding testified that he met Johnson in August 1977, and Johnson directed him to Harris's body. Spaulding eventually arrested Downs in Alabama. In a post-arrest interview, Downs told Spaulding that he (Downs) “had contacted the Mobile, Alabama F.B.I. office and asked them to contact the Jacksonville F.B.I. office in reference to the Jerry Harris case.” Before Downs made this statement, Spaulding did not tell Downs why he (Spaulding) was in Alabama, did not tell Downs that Harris's body was found, and did not even mention Harris's name.
In another post-arrest interview, Downs told Spaulding that he would tell Spaulding “all [he] needed to know about the case” when they came back to Jacksonville. Spaulding asked Downs if he was going to confess to Harris's murder, and Downs replied: “More than likely.” However, on cross-examination, Spaulding admitted that Downs also denied murdering Harris on multiple occasions during his post-arrest interviews.
When the State rested, the trial court asked attorney Brown if he was ready to proceed with Downs's defense. Brown responded: At this point, the trial transcript reflects a “[b]rief pause.” After the pause, Brown announced that the defense rested, and no more witnesses were presented.
The jury convicted Downs on both counts: (1) first...
To continue reading
Request your trial
-
Jones v. Chatman
...that his attorney's conflict of interest had an effect upon the representation that he received." Downs v. Sec'y, Fla. Dep't of Corrs., 738 F.3d 240, 265 (11th Cir. 2013) (citing Reynolds v. Chapman, 253 F.3d 1337, 1347 (11th Cir. 2001)). 2. Attorney Martin Eaves's prior representation of A......
-
Biles v. United States, s. 11–CM–612
...it referred to the subject matter of Brady 's duty to disclose as ‘evidence highly probative of innocence.’ ”); Downs v. Fla. Dep't of Corr., 738 F.3d 240, 260 (11th Cir.2013) (“[T]he existence of informants ... constitutes Brady material only when the informant ... would offer or lead to e......
-
Freeman v. Dunn, CASE NO. 2:06-CV-122-WKW [WO]
...that adversely affected the performance of petitioner's counsel. Cuyler v. Sullivan, 446 U. S. at 348; Downs v. Sec'y, Fla, Dep't of Corr., 738 F.3d 240, 265 (11th Cir. 2013), cert. denied, 135 S. Ct. 70 (2014); A conflict of interest claimant cannot prevail unless he can point to specific ......
-
Jones v. GDCP Warden
...of Supreme Court jurisprudence into a specific legal rule that [the Supreme Court] has not announced." Downs v. Sec'y Fla. Dep't of Corr.,738 F.3d 240, 256–57 (11th Cir.2013) (alteration in original) (internal quotation marks and citation ...
-
Trials
...to prosecutor because defendant failed to allege any instances where representation compromised); Downs v. Sec’y, Fla. Dep’t of Corr., 738 F.3d 240, 265-66 (11th Cir. 2013) (no adverse effect created by contingency fee agreement with defense counsel because counsel did not make strategic de......