Brown v. Dixon

• Decision Date: 11 December 1989
• Docket Number: 88-4009,Nos. 88-4008,s. 88-4008
• Citation: 891 F.2d 490
• Parties: David Junior BROWN, Petitioner-Appellee, v. Gary DIXON, Warden, Central Prison, Respondent-Appellant. David Junior BROWN, Petitioner-Appellant, v. Gary DIXON, Warden, Central Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 490

891 F.2d 490

58 USLW 2391

David Junior BROWN, Petitioner-Appellee, v. Gary DIXON, Warden, Central Prison, Respondent-Appellant.

David Junior BROWN, Petitioner-Appellant, v. Gary DIXON, Warden, Central Prison, Respondent-Appellee.

Nos. 88-4008, 88-4009.

United States Court of Appeals Fourth Circuit.

Argued April 12, 1989.

Decided Dec. 11, 1989.

Richard N. League, Sp. Deputy Atty. Gen. (Lacy H. Thornburg, Atty. Gen. of North Carolina, Dept. of Justice, Raleigh, N.C., on brief), for respondent-appellant.

Robert Steven Mahler (Marshall Dayan, North Carolina Death Penalty Resource Center, Raleigh, N.C., on brief); Bruce T. Cunningham, Jr. (Pollock, Fullenwider, Cunningham & Patterson, P.A., Southern Pines, N.C., on brief), for petitioner-appellee.

Before ERVIN, Chief Judge, and RUSSELL and CHAPMAN, Circuit Judges.

ERVIN, Chief Judge:

David Junior Brown is a prisoner of the State of North Carolina under two sentences of death for first-degree murder. Brown advanced thirty challenges to his conviction and sentence in his 28 U.S.C. § 2254 petition for a writ of habeas corpus. The district court denied relief from the conviction on seventeen grounds. The court ordered relief from sentence on three claims and left the remaining ten, all bearing on the penalty phase of Brown's bifurcated trial, unaddressed. Brown v. Rice, 693 F.Supp. 381 (W.D.N.C.1988). We reverse the portion of the order granting relief from sentence, affirm the portion denying relief from the conviction, and remand to allow the district court to consider the ten unaddressed arguments bearing on the sentence.

I.

A.

A jury of the North Carolina Superior Court for Union County found Brown guilty of the murders of Shelly Diane Chalflinch and her nine-year-old daughter, Christina. The same jury, after hearing testimony from several additional witnesses, returned sentences of death. The North Carolina Supreme Court found no merit to any of Brown's numerous assignments of error, and affirmed. State v. Brown, 306 N.C. 151, 293 S.E.2d 569, cert. denied, 459 U.S. 1080, 103 S.Ct. 503, 74 L.Ed.2d 642 (1982).

On July 16, 1984, Judge William H. Helms of the North Carolina Superior Court for Moore County denied Brown's motion for post-conviction relief. ¹ The motion asserted, among other things, that the prosecutor had improperly exercised his peremptory challenges to purge the jury of all persons with scruples about imposing a death sentence. The North Carolina and U.S. Supreme Courts declined to review the denial of collateral relief. ² State v. Brown, 316 N.C. 734, 345 S.E.2d 393 (denying Brown's petition for a writ of certiorari and remanding for a hearing on a new execution date), cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986).

Brown commenced this action on April 17, 1987. On April 21, the district court stayed Brown's execution, scheduled to occur on May 8, 1987. By an order and decision dated August 15, 1988, the court granted Brown relief from his sentence and denied relief from the conviction. Brown has appealed for relief from his conviction, and North Carolina seeks through its cross-appeal the reinstatement of Brown's death sentences.

B.

The North Carolina Supreme Court opinion on Brown's direct appeal gives a full account of the Chalflinch murders. We have no reason to recapitulate the lurid details here, though we shall in succeeding passages discuss the facts necessary to place the legal issues in context.

We must, however, describe two pre- and post-trial incidents not before presented in the published opinions. The first is the jury selection process. The second occurred only shortly before the oral argument of this appeal, when, according to affidavits from some of Brown's lawyers, a man approached the lawyers with a story that could bolster Brown's defense that someone else had committed the murders and that may accordingly implicate some of the claims challenging Brown's conviction.

We attend first to the details of jury selection. In the words of the district court, "[d]uring the jury selection in this case, [North Carolina] used the voir dire to determine if prospective jurors had any feelings about the death penalty and then excused by peremptory challenge 'all jurors who indicated the slightest uncertainty about the death penalty.' " Brown, 693 F.Supp. at 389 (emphasis in original) (quoting Brown v. North Carolina, 479 U.S. 940, 944, 107 S.Ct. 423, 426, 93 L.Ed.2d 373, 376 (1986) (Brennan, J., dissenting from denial of certiorari)). The district attorney excused by peremptory challenge all nine veniremen who expressed reservations about the death penalty. ³ The district court's decision reports the State's concession "that none of these nine jurors could have been excused for cause because all ... said they could put their personal feelings aside and apply the law as instructed by the judge." 693 F.Supp. at 390. North Carolina, in its argument to us, suggests that the reservations of two of those excused may have warranted exclusions for cause, but concedes that the remaining seven were not so excludible. ⁴ We shall, for purposes of this opinion, assume what the record supports, that North Carolina peremptorily challenged all nine solely because of their reservations about the death penalty.

The second incident bears on Brown's argument that the denial of his lawyers' requests to inspect the Chalflinches' Southern Pines, N.C., apartment, where the murders occurred, violated his rights. ⁵ In affidavits given in March, 1989, two of Brown's lawyers reported their interview of a resident of Pinehurst, N.C., a town about three miles from Southern Pines. The interview followed a January 17, 1989 "chance meeting" of the resident, unnamed in any paper before us, and one of the lawyers. The affidavits summarize the exchanges that occurred at the meeting and a subsequent interview.

The resident is a white, blond-haired man. He was born and raised in Pinehurst, where his parents, wife, and children now live. In August 1980, the man, then residing outside North Carolina, was in Pinehurst visiting his family. ⁶ At a party thrown by his sister, the man met Diane and Christina Chalflinch, and set up a date with Diane for a night three or four days later. The man arrived at the numbered apartment Diane had said was hers about 7:30 P.M. on the appointed day. No one answered his knocks, and he saw no cars parked by the apartment. Apparently persuaded that Diane had stood him up, the man wrote what he described as a "terse" note recording his presence and her absence, signed it with his full name, and wedged it in the apartment door. He left North Carolina the next morning, and soon after learned that the Chalflinches had been stabbed to death. The man states the murders took place thirty or forty hours after he left the Chalflinch apartment.

As the interview concluded, the man showed the lawyers a photograph of himself with shoulder-length hair, remarking "That's what I looked like back then." The man had never been questioned by any law enforcement officials investigating the murders, and had never before told his story to anyone involved in Brown's case. Brown's lawyers had no inkling of the man's connection to the case before the January meeting, and were unaware of any note such as the man described.

Several witnesses for the State and Brown testified at trial to having seen or heard of a white man with long blond hair jumping from a balcony adjoining the Chalflinches' apartment on the night of the murders. ⁷ The man's identity and whereabouts after that night remained enigmas at trial. The State did not report finding a note or anything else suggesting the presence of a suspicious visitor to the Chalflinches' apartment. ⁸ This intriguing tale was not presented to the district court, however, since it was unknown to Brown's lawyers until shortly before they presented oral argument in this court. This information remained largely undeveloped and unsubstantiated when the case was before us, and so we elect not to try to factor it into this decision.

II.

We turn now to the legal claims, beginning with those challenging the propriety of Brown's conviction.

A.

Brown's arguments against his conviction fall under two analytical heads. Brown first asserts that both North Carolina and his defense team denied him effective assistance of counsel, the State by refusing him pretrial access to witnesses and the crime scene--conduct that Brown argues also denied him due process--and his lawyers by presenting inconsistent defenses. Brown's second argument is that we should, at a minimum, remand to the district court for an evidentiary hearing on his charges that his prosecutor and the judge who handled his motion for post-conviction relief had improper ex parte contacts that could somehow invalidate his conviction. ⁹

We agree with the district court's disposition of these issues given the state of the facts before it, and will treat them here but briefly. The court concluded that under the two-pronged test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1983), neither the presentation of inconsistent defenses--that Brown either did not commit the murders or did so while drunk--nor the State's interference with defense investigation deprived Brown of effective assistance of counsel. See United States v. Cronic, 466 U.S. 648, 662, 104 S.Ct. 2039, 2048, 80 L.Ed.2d 657 (1983) ("Only when ... circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel's actual performance at trial.").

The district court held also that the trial court and the District Attorney had not, by inhibiting Brown's investigation, committed a due process error requiring habeas relief because there was no reasonable probability that the investigation could have turned up anything that would have changed the outcome at trial. 693 F.Supp. at 387 (...