Booth-El v. Nuth, CIV.A. CCB-97-1252.
| Decision Date | 20 April 2001 |
| Docket Number | No. CIV.A. CCB-97-1252.,CIV.A. CCB-97-1252. |
| Parties | John BOOTH-EL, Petitioner v. Eugene M. NUTH, et al., Respondents |
| Court | U.S. District Court — District of Maryland |
Nevett Steele, Jr., Glyndon, MD, Michael A. Millermann, Baltimore, MD, David Walsh-Little, Law Office, Baltimore, MD, for Petitioner.
Annabelle L. Lisic, Office of the Attorney General, Baltimore, MD, for Respondents.
On August 17, 1990, petitioner John Booth-El was sentenced to death for his role in the murders of Irvin and Rose Bronstein. Currently before the court is Booth-El's Petition for Writ of Habeas Corpus. After considering the parties' briefs and arguments, the court concludes that the removal of diminished capacity as a result of intoxication as a statutory mitigating factor at Booth-El's 1990 re-sentencing violated the Ex Post Facto Clause. Accordingly, it will grant relief as to that claim.1 Booth-El's remaining claims either were procedurally defaulted or do not provide a basis for relief. For the reasons that follow, therefore, the court will grant in part the Petition for Writ of Habeas Corpus.
On May 20, 1983, the bodies of Irvin and Rose Bronstein were found in the living room of their West Baltimore home. Both were bound and gagged. Each had been stabbed twelve times. Their home had been ransacked. Property, including televisions, jewelry, and a 1972 Chevrolet Impala, was missing. Petitioner, John Booth-El, ("Booth-El"), and William "Sweetsie" Reid, ("Reid"), were charged with the murders.
Booth-El's first trial in 1984 ended in a mistrial because the prosecution had failed to turn over certain information prior to trial. Booth v. State, 301 Md. 1, 481 A.2d 505 (1984) ("Booth I").
In a second trial2 held in the fall of 1984, Booth-El was convicted of first degree murder of Mr. and Mrs. Bronstein as well as two counts of robbery and one count of conspiracy. He was sentenced to death for the murder of Mr. Bronstein.
On direct appeal Booth-El argued that:
1. The trial judge erred in refusing to strike for cause a juror who had heard that a prior guilty verdict had been reversed and who stated that he would give greater weight to the testimony of a police officer.
2. The trial judge erred by refusing to order a psychiatric evaluation of Veronda Mazyck, a state's witness.
3. The trial judge erred in admitting testimony by Eddie Smith that Reid admitted to killing some white people.
4. The trial judge gave an incorrect jury instruction on premeditation.
5. There was insufficient evidence to support the conspiracy to commit robbery conviction.
6. The trial judge improperly excluded potential jurors who opposed the death penalty.
7. The trial judge gave an erroneous instruction regarding the inferences that could be drawn from the possession of stolen property.3
His conviction and sentence were affirmed by the Maryland Court of Appeals. Booth v. State, 306 Md. 172, 507 A.2d 1098, 1103 (1986) ("Booth II"). The United States Supreme Court reversed the death sentence, finding the requirement of victim impact statements at sentencing violated the Eighth Amendment. Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), overruled by Payne v. Tennessee, 501 U.S. 808, 828-830, 111 S.Ct. 2597, 2610-11, 115 L.Ed.2d 720 (1991).
A new sentencing proceeding was held in 1988, and Booth-El again was sentenced to death. The sentence was vacated by the Maryland Court of Appeals because the trial judge had refused to admit evidence relating to parole eligibility. Booth v. State, 316 Md. 363, 558 A.2d 1205 (1989) ("Booth III").
A third sentencing proceeding was conducted in the summer of 1990. Again, a death sentence was imposed.
On direct appeal, Booth-El argued that:
1. The trial judge erred in giving an Allen-type4 instruction.
2. The trial judge erred by not bifurcating the sentencing proceeding.
3. His right to present mitigating evidence was violated by the trial judge's refusal to list non-statutory mitigating factors on the sentencing form and by the judge's refusal to allow him to testify under oath as to mitigating factors only.
4. The trial judge erred by not allowing the jury to consider imposition of a sentence of life without parole.
5. The trial judge erred in refusing to list on the sentencing sheet as a mitigating factor that the murder was committed while his capacity was substantially impaired by intoxication.
6. His right to allocution was unfairly denigrated by the trial judge's instruction and the prosecutor's closing argument.
7. The trial judge erred by allowing the prosecution to reveal remarks Booth-El made during allocution in the 1984 sentencing proceedings.
8. There was insufficient evidence to support the finding that he was a principal in the first degree.
9. There was plain error in the jury instruction on joint principals in the first degree.
10. The trial judge erred by refusing to allow three defense witnesses to testify as experts.
11. The trial judge erred by striking testimony that Booth-El has been raped while at Boys' Village.
12. The trial judge erred by not allowing Veronda Mazyck's probation officer to offer an opinion as to Ms. Mazyck's credibility.
13. Remarks by the prosecutor during rebuttal deprived him of a fair sentencing hearing.
14. The trial judge erred by refusing to recuse himself.5
The sentence was affirmed by the Maryland Court of Appeals. Booth v. State, 327 Md. 142, 608 A.2d 162 (1992) ("Booth IV"). Certiorari was denied by the United States Supreme Court in the fall of 1992. Booth v. Maryland, 506 U.S. 988, 113 S.Ct. 500, 121 L.Ed.2d 437 (1992).
On July 12, 1993, Booth-El, through counsel, filed a petition for post-conviction relief in the Circuit Court for Baltimore City. In it he asserted:
1. Ineffective assistance of counsel during the guilt/innocence trial for:
a. Failing to present forensic evidence to rebut the State's theory of premeditation.
b. Failing to impeach the testimony of Eddie Smith, Veronda Mazyck, and Jewell Edwards Booth c. Failing to investigate and develop the alternative theory of the case that the Bronsteins were killed by three men observed jumping a fence on the evening of the murders.
d. Failing to object to a jury pool which contained a biased and prejudiced panel.
e. Failing to ensure he received the maximum number of peremptory challenges then permitted by Maryland law.
f. Failing to request the removal of a juror — Gail Graves — who during the trial indicated she was afraid of being on the jury.
g. Failing to preserve any objections to the voir dire other than Witherspoon6 issues and bifurcation.
h. Committing errors which, collectively, deprived him of a fair trial and amounted to ineffective assistance.
2. Ineffective assistance of guilt/innocence appellate counsel for:
a. Failing to order a complete transcript of the 1984 voir dire proceedings.
b. Failing to raise on appeal the issue of bias by the second jury panel.
c. Failing to raise on appeal the issue of the number of peremptory strikes.
d. Failing to raise on appeal the fact that, while two members of the second jury panel stated they had heard other panel members speaking about the case, no one on the panel admitted to having the conversations.
e. Committing errors which, collectively, prejudiced the outcome of the appeal and amounted to ineffective assistance.
3. Ineffective assistance of sentencing counsel for:
a. Failing to use the proper death qualification standard during voir dire.
b. Failing to preserve voir dire objections by using all peremptory strikes and objecting to the jury panel.
c. Failing to object to the prosecutor's reference to Booth-El as a "serial killer."
d. Committing errors which, collectively, deprived him of a fair hearing and amounted to ineffective assistance.
4. Ineffective assistance of sentencing appellate counsel for:
a. Failing to raise as an issue the striking of a juror, Laurel Gilbert, who indicated she had changed her mind about the death penalty.
b. Failing to raise the issue of the availability of Veronda Mazyck.
c. Failing to fully argue Judge Angeletti's refusal to recuse himself.
d. Failing to raise as an issue the prosecutor's use of the term "serial killer."
e. Failing to raise as an issue Judge Angeletti's ex parte communication with Ms. Gilbert.
f. Committing errors which, collectively, prejudiced the outcome of the appeal and amounted to ineffective assistance.
5. The prosecution withheld evidence, i.e., statements and an affidavit by Darryl Brooks and information concerning possible involvement by Charles Westry, in violation of the Brady rule.7
6. Violation of his due process right to a fair trial because:
a. The second jury panel was contaminated with extrinsic information by their discussions of the case.
b. Ms. Graves was allowed to remain on the jury after she indicated a predisposition to find Booth-El guilty by voicing fear.
c. The failure of appellate counsel to raise issues concerning jury selection amounted to a constructive denial of the right to counsel.
d. The prosecution committed misconduct by: i) coaching Veronda Mazyck's 1984 trial testimony and failing to make a good faith effort to find her in 1990 for the re-sentencing, ii) manipulating the testimony of Eddie Smith, a witness at the 1990 re-sentencing, to incriminate Booth-El, iii) coaching and threatening Jewell Edwards Booth in order to obtain inaccurate testimony at both the 1984 trial and 1990 resentencing, iv) engaging in conduct which, cumulatively, biased the outcomes of the 1984 trial and 1990 re-sentencing.
7. Violation of his Miranda rights in connection with a statement given to police on May 18, 1983.
8. Judge Angeletti's phone conversation with a juror, Laurel Gilbert, and subsequent striking of her without allowing counsel an...
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