Bennett v. Stirling, Civil Action No. 2:13-3191-RMG

• Citation: 170 F.Supp.3d 851
• Decision Date: 16 March 2016
• Docket Number: Civil Action No. 2:13-3191-RMG
• Court: U.S. District Court — District of South Carolina
• Parties: Johnny O'Landis Bennett, Petitioner, v. Bryan P. Stirling, Commissioner, South, Carolina Department of Corrections, and Joseph McFadden, Warden, Lieber Correctional Institution, Respondents.

170 F.Supp.3d 851

Johnny O'Landis Bennett, Petitioner,

v.Bryan P. Stirling, Commissioner, South, Carolina Department of Corrections, and Joseph McFadden, Warden, Lieber Correctional Institution, Respondents.

Civil Action No. 2:13-3191-RMG

United States District Court, D. South Carolina, Charleston Division.

Signed March 16, 2016

John H. Blume, Lindsey Sterling Vann, Blume Norris and Franklin-Best, Columbia, SC, for Petitioner.

Alphonso Simon, Jr., Donald John Zelenka, SC Attorney General's Office, Columbia, SC, for Respondents.

ORDER

Richard Mark Gergel, United States District Court Judge

This matter is before the Court on the Report and Recommendation (“R. & R.”) of the Magistrate Judge, recommending that the Court grant the Petitioner's writ of habeas corpus on the basis of Ground Two of the petition. (Dkt. No. 98.) After a careful review of the voluminous record in this matter, the decisions of the state courts, the briefs of the parties, and the relevant case law, the Court grants the Petitioner's writ of habeas corpus separately and independently on the bases of Grounds One and Two of the petition, setting aside the sentence of death and returning the matter to the Lexington County Court of General Sessions for resentencing within 180 days of this order. This decision is based upon the Court's strong conviction that the injection of race by the prosecutor into the sentencing phase of the trial and the seating of a racially biased juror “so infected the proceeding as to deny [Petitioner] due process of law.” Miller v. State of N.C. , 583 F.2d 701, 707 (4th Cir.1978)

.

I. Background

Petitioner was indicted by the Lexington County Grand Jury in September 1993 for murder, kidnapping, armed robbery, and larceny. The State served notice of intent to seek the death penalty and notice of evidence in aggravation. The State's evidence at trial included testimony that Petitioner's victim had been stabbed more than 70 times with a Phillips-head screwdriver and had died as a result of internal bleeding. State v. Bennett, 328 S.C. 251, 493 S.E.2d 845, 846 (1997)

(“Bennett I ”).

After an October 9-18, 1995 trial, Petitioner was convicted on all charges. After a separate penalty proceeding, Petitioner was sentenced to death for murder. On December 1, 1997, the South Carolina Supreme Court affirmed Petitioner's criminal convictions, reversed Petitioner's death sentence, and remanded the case to the trial court for a new sentencing proceeding. The South Carolina Supreme Court's decision in Bennett I

was based on the determination that the trial court had improperly allowed a juror to be qualified after he stated that he would “go with the majority of the jury” if he had doubts “as to whether the defendant should get the death penalty.” Under those circumstances, the South Carolina Supreme Court concluded that Petitioner was “denied an independent decision as to his punishment.” Bennett I, 493 S.E.2d at 847–48.

A second sentencing proceeding was conducted in the Lexington County Court of General Sessions on July 10-16, 2000, with Eleventh Circuit Solicitor Donald V. Myers again seeking the death penalty. Notably, the jury in the second sentencing proceeding was all-white, which had not been the case in the Petitioner's first sentencing proceeding. Both Petitioner and his victim were African-American. Unlike the first sentencing proceeding, the second sentencing proceeding involved repeated direct and indirect references to race made or elicited by Solicitor Myers and vigorous objections by defense counsel, who argued that the prosecutor was intentionally injecting race into the trial.

The first of these racial issues involved testimony elicited by the Solicitor from a witness who had been attacked and beaten by Petitioner in an incident that predated the murder for which Petitioner was then on trial. After the witness, Shannon Gilbert, who was white, testified that he had been attacked by Petitioner and was in a coma for approximately two weeks following the assault, the Solicitor asked him whether he had “any dreams or anything” while in a coma. Defense counsel immediately objected, arguing that he could not imagine how such testimony would be relevant. The Solicitor responded, “[h]e'll bring out the relevance.” The witness then recounted his dream of “Indians were chasing me trying to kill me, and the thing I thought was they were black.” (Dkt. No. 25-9 at 50-51.) Defense counsel again objected to the testimony and later moved for a mistrial. (Id. at 51, 63-64.) He observed that this type of racial reference had not occurred in the first trial where “we had a couple black jurors” but now with an all-white jury the prosecutor was “hit[ting] this jury with race, race, race.” (Id. at 63.) Defense counsel argued that “there was no relevance” to the prior victim's dream testimony “except to inflame a white jury” and called the Solicitor's actions “a gross violation of this man's rights.” (Id. at 63.) The state trial court denied defense counsel's motions regarding the “black Indian” dream testimony, erroneously finding that the State had not elicited the testimony. (Dkt. No. 25-13 at 185.)

The Solicitor further offered testimony that Petitioner had engaged in sexual relations with a female prison guard while incarcerated awaiting trial to support his argument that Petitioner continued to be engaged in misconduct after his crimes. Initially, the Solicitor did not introduce evidence regarding the race of the guard. However, while cross-examining a character witness for Petitioner, a fellow inmate, the Solicitor asked the witness about the relationship between the Petitioner and the female prison guard. The witness asked whether he was referring to “[t]he real big lady,” and the Solicitor responded, “[guard's name], you remember her, the blond-headed lady.” (Dkt. No. 25-11 at 500- 501.) Defense counsel promptly moved for a mistrial, arguing that the Solicitor had again intentionally injected race into the proceeding in front of an all-white jury by alerting the jury that the Petitioner's lover was a white woman. Calling the Solicitor's conduct “one of the most despicable performances I've ever seen a Solicitor where a Solicitor inserted race into this case,” defense counsel urged the court to declare a mistrial. (Dkt. No. 25-12 at 35-36.) The Solicitor argued that a reference to a blond-headed woman did not necessarily equate to a white women, in which defense counsel responded “[d]id anybody in this courtroom not think he was telling them that was a white woman. I think it is clear and I think the record will be clear on that.” (Id. at 37.) The trial court again overruled defense counsel's motion, observing “maybe I'm just overly naïve, but I'll be honest, maybe it just the way things are these days, but when somebody says blonde, I don't necessarily see a white woman.” (Id. at 38.)

During closing argument, Solicitor Myers made repeated references to Petitioner's size (6' 7‘, 300 pounds) and his potential dangerousness because of his violent nature. (Dkt. No. 25-12 at 102.) Responding to the defense's evidence that Petitioner had been a compliant prisoner, the Solicitor argued that if “[i]f you give him life, the real Johnny will come back. You give him life and he'll come back out. Meeting him again will be like meeting King Kong on a bad day.” (Id. ). The Solicitor also referred to the Petitioner as a “monster,” a “caveman” and a “beast of burden” during his closing argument. (Id. at 85, 91, 103.) Defense counsel did not make an objection at the time of the Solicitor's argument but later moved for a mistrial because the King Kong reference was an appeal to racial prejudice. The trial court rejected the argument, finding that the “comment did not infect the trial with unfairness, did not prejudice the Defendant, and was not a denial of due process or fundamental fairness.” (Dkt. No. 25-13 at 189.)

The jury in the second sentencing proceeding found the existence of four statutory aggravating factors, and Petitioner was again sentenced to death. On June 26, 2006, the South Carolina Supreme Court affirmed the death sentence. State v. Bennett, 369 S.C. 219, 632 S.E.2d 281 (2006)

(“Bennett II”). The United States Supreme Court denied certiorari on November 27, 2006. Bennett v. South Carolina, 549 U.S. 1061, 127 S.Ct. 681, 166 L.Ed.2d 530 (2006).

On September 7, 2006, Petitioner filed an application for post-conviction relief (“PCR”). During a 2007 interview, PCR counsel asked a juror in the second sentencing jury (identified herein as the “Juror”)¹ , “why did you think Mr. Bennett had killed the victim?” The Juror responded, “because he was just a dumb nigger.” (Dkt. No. 25-16 at 18.) Testifying at the May 28, 2008 PCR evidentiary hearing, the Juror admitted that he made that statement. The Juror further testified, “I apologize for saying that word, but after going through that thing for an entire week and all the evidence piling up against him, that was just the way I felt about it.” (Id. at 18-19.) On cross-examination by the State, the Juror testified that he was not prejudiced and Petitioner's race played no part in his decision imposing death. (Id. at 24.) The PCR trial court found that the Juror's expressed bias did not justify relief because it only came into existence sometime after the sentencing hearing and because it did not establish that the Juror “was racially biased at the time of the resentencing trial.” (Dkt. No. 25-19 at 76.) Petitioner filed a motion to alter or amend the PCR court's judgment, which was denied by an order filed October 8, 2009, and a petition for a writ of certiorari with the South Carolina Supreme Court, which was denied on November 7, 2013 (remittitur issued November 25, 2013).

Petitioner then timely filed the present petition on November 3, 2014. Petitioner raises seven grounds for relief: (1) Petitioner's second sentencing proceeding was rendered fundamentally unfair by the Solicitor's repeated racial...