Baxter v. Thomas

Decision Date09 February 1995
Docket NumberNo. 92-9200,92-9200
Citation45 F.3d 1501
PartiesNorman Darnell BAXTER, Petitioner-Appellant, v. Albert G. THOMAS, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Lynne H. Rambo, Arnall Golden & Gregory, Atlanta, GA, for appellant.

Susan V. Boleyn, Sr. Asst. Atty. Gen., Atlanta, GA, for appellee.

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

Before KRAVITCH, BIRCH and DUBINA, Circuit Judges.

KRAVITCH, Circuit Judge:

Petitioner, Norman Darnell Baxter, was convicted of the murder of Katherine June Moore and sentenced to death. He appeals from the district court's order denying his motion for a writ of habeas corpus. For the reasons set forth below, we AFFIRM the district court's denial of relief as to Baxter's conviction. Because, however, we hold that Baxter's counsel was ineffective at the sentencing phase of his trial, we REVERSE the district court's denial of relief as to Baxter's sentence.

I.

On July 5, 1980, Katherine June Moore attended a cookout at her father and stepmother's home. She left at approximately 11:00 p.m., telling her family that she was going to see Don Bussey, her ex-boyfriend. At the time, Moore was living with her friend Jane Bozeman at the Safari Inn Motel, located outside of Atlanta. Moore and her parents arranged to meet the next day at the Safari Inn in order to use the swimming pool. When Moore failed to meet them as planned, her parents became concerned. They reported her missing on July 7, 1980.

On July 13, 1980, Moore's body was found in a wooded area west of the Safari Inn. She had been strangled; her hands and feet bound. Moore's partially stripped car was found on October 14, 1980.

At the time of Moore's disappearance, Baxter was staying at the Safari Inn with his girlfriend, Kathy Walker Anderson ("Anderson"). 1 After investigating several suspects, including Bussey, the police arrested Baxter for Moore's murder. He was brought to trial in 1983.

The evidence presented by the state at trial was circumstantial, as there was no direct or physical evidence linking Baxter to Moore's murder. Marvin Moore and Opal Moore, the victim's father and stepmother, testified that Moore had left their house around 11:00 p.m. on July 5, 1980, in order to meet Bussey. They also testified that she had the following items with her that night: an "engagement-type ring," a .22 caliber pistol, a red dress, and a hair curlers' case. The police did not find these items in Moore's car or on her person.

Anderson testified that she and Baxter returned to their room at the Safari Inn between midnight and 3:00 a.m. and that as she went to the shower, Baxter said to her that he "saw a money making thing in the parking lot." After taking her car keys, Baxter left the motel room.

According to Anderson, after Baxter left the room, she unsuccessfully looked for him several times in the parking lot. She was concerned about her car and noticed that it was still in the parking lot. Anderson testified that when Baxter returned at dawn, he was "real dirty. He was sandy. And he smelled very bad." He also had a .22 caliber gun, bullets, a scarf, a diamond ring, a red shirt, and an electric curlers' container in his possession--items that he did not have when he left the room.

Anderson testified that she and Baxter left the motel shortly after Baxter's return. Baxter retained possession of the ring and put the rest of the items in the console of Anderson's car. Following a fight a few days later, Anderson left Baxter at a restaurant. She then threw the items that Baxter had placed in her car into a dumpster. These items were never recovered. The state introduced a pawn ticket dated August 10, 1980, indicating that Baxter had pawned a "white gold ring."

Three witnesses 2 testified that Baxter had taken them to a car located near the Safari Inn in order to remove parts and that the car matched a police photograph of Moore's car.

Finally, the testimony showed that while Baxter was incarcerated later on unrelated charges, he told fellow inmates of his involvement with Moore's murder: James Green testified that Baxter told him that he had strangled a girl at a motel outside Atlanta; Eugene Gadson testified that Baxter told him that he had choked a girl in Northern Georgia; and Timothy McWilliams testified that Baxter told him that he had choked a girl in order to steal her mayonnaise jar full of cocaine and that he bought Anderson a white Cadillac with the money. 3

The thrust of Baxter's defense was that someone other than Baxter killed Moore. The defense focused on Phillip Kennedy, the owner of a local gasoline station, and Bussey, Moore's ex-boyfriend. Jane Bozeman, the friend with whom Moore had been staying at the time of her murder, testified that Kennedy had told her shortly after Moore's disappearance that he had murdered someone. A detective for Henry County testified that a warrant had been issued for Kennedy in connection with Moore's murder, but that following a commitment hearing, the case against Kennedy was dismissed.

In order to implicate Bussey, the defense pointed out that Moore had told her parents that she was going to meet Bussey and that witnesses placed Bussey with Moore at approximately 11:00 p.m. on July 5, 1980, thus making him the last person to see Moore alive. 4 Additionally, Bussey was involved with another woman--Julie Cream. The defense introduced testimony concerning physical altercations between Moore and Cream, as well as heated fights between Bussey and Moore.

The jury found Baxter guilty of murder. At the sentencing phase of the trial, the judge instructed the jury on two aggravating circumstances: (1) that the murder "was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim" 5 and (2) that the murder was committed "for the purpose of receiving money or any other thing of monetary value." 6 The state presented no new evidence at sentencing. The defense called only one witness, a preacher who testified that based upon conversations with Baxter and his review of a report detailing Baxter's life, Baxter had a difficult upbringing, was physically abused, and was passed along "[f]rom one home, orphanage or school of some sort." The preacher also testified that he was opposed to the death penalty. The jury found both aggravating circumstances and sentenced Baxter to death.

On direct appeal, Baxter's conviction and sentence were affirmed. Baxter v. State, 254 Ga. 538, 331 S.E.2d 561 (1985). 7 The Supreme Court denied Baxter's petition for certiorari. Baxter v. Georgia, 474 U.S. 935, 106 S.Ct. 269, 88 L.Ed.2d 275 (1985). Baxter then filed a petition for a writ of habeas corpus in Georgia court, which writ was denied following an evidentiary hearing. The Georgia Supreme Court affirmed the denial of the writ. Baxter v. Kemp, 260 Ga. 184, 391 S.E.2d 754 (1990). Baxter filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Georgia, pursuant to 28 U.S.C. Sec. 2254 (1988), challenging his conviction and death sentence. The district court denied relief without holding an evidentiary hearing and this appeal follows.

II.

Baxter enumerates various errors at his trial which he contends merit reversal of his conviction. Because we find these contentions to be without merit, we AFFIRM the district court's denial of relief as to Baxter's conviction.

A.

Baxter first alleges that the prosecutor withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He asserts that the prosecutor withheld the following: (1) statements that Anderson previously had given to police that could have been used to impeach Anderson; (2) statements given by Opal Moore, the victim's stepmother, and Kathryn Moore, the victim's natural mother, indicating that Bussey was violent; (3) evidence that McWilliams had testified in order to garner early release from prison; 8 and (4) a 1972 Bulloch County order from a prior criminal case in which Baxter was found temporarily incompetent to stand trial. 9

To establish a Brady violation, Baxter must prove:

(1) that the government possessed evidence favorable to the defendant (including impeachment evidence); (2) that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.

United States v. Spagnoulo, 960 F.2d 990, 994 (11th Cir.1992) (citations omitted). Baxter cannot meet this burden for any of the material which he alleges to have been withheld in violation of Brady.

Anderson gave four interviews to the police. During the first interview, Anderson stated that she did not remember the events of the July 4, 1980 weekend; she did recall, however, that she had gone to the Safari Inn in order to hide from Baxter, but that he found her at the motel. In subsequent interviews, Anderson was able to recall more and more details of that weekend. Baxter contends that the differences among these statements would have enabled defense counsel to impeach Anderson's credibility. We disagree. After reviewing the four statements which Anderson gave to the police prior to her testimony, we conclude that even assuming that Baxter can prove the first three elements necessary to show a Brady violation, 10 Baxter cannot show that there is a reasonable probability that had these statements been disclosed to the defense, the outcome of his trial would have been different. Defense counsel vigorously cross-examined Anderson, commenting on her ability to remember certain things and not others. 11 Further, defense counsel...

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