Brown v. Dugger

• Decision Date: 13 November 1987
• Docket Number: No. 85-6082,85-6082
• Parties: Henry BROWN, Petitioner-Appellee, v. Richard L. DUGGER, as Secretary, Department of Corrections, State of Florida, Respondent-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1547

831 F.2d 1547

Henry BROWN, Petitioner-Appellee, v. Richard L. DUGGER, as Secretary, Department of Corrections, State of Florida, Respondent-Appellant.

No. 85-6082.

United States Court of Appeals, Eleventh Circuit.

Nov. 13, 1987.

Michael J. Neimand, Asst. Atty. Gen., Dept. of Legal Affairs, Miami, Fla., for respondent-appellant.

Karen M. Gottlieb, Office of Public Defender, State of Fla., Miami, Fla., for petitioner-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before CLARK, EDMONDSON and KEITH ^*, Circuit Judges.

KEITH, Circuit Judge:

Richard L. Dugger, Secretary of the Florida Department of Corrections (hereinafter referred to as "the state"), appeals the district court's grant of habeas corpus relief to petitioner Henry Brown ("petitioner"). We affirm.

I. PROCEDURAL HISTORY

On October 10, 1973, petitioner was charged with first degree murder. The first trial ended in mistrial after the jury was unable to reach a verdict. At the end of the second trial, the jury found petitioner guilty of first degree murder and recommended a life sentence. The trial court imposed the death sentence. The Florida Supreme Court affirmed petitioner's conviction, but ordered the sentence reduced to life imprisonment with a minimum mandatory term of 25 years.

Pursuant to 28 U.S.C. Sec. 2254, petitioner petitioned for a writ of habeas corpus in the United States District Court for the Southern Division of Florida. The magistrate recommended denial of the petition noting that the trial court only committed harmless error. Although the district court initially denied petitioner's habeas petition, it later granted the writ in response to a motion for reconsideration finding that the petitioner's claims were of constitutional magnitude. After the state appealed the grant of the writ, an initial panel of this circuit vacated the district court's order and remanded. The Honorable Walter E. Hoffman, writing for the court, stated "that a federal court, in granting a writ of habeas corpus, must explain why the statutory presumption of correctness of State Supreme Court findings does not apply in the light of the factors listed in 28 U.S.C. Sec. 2254(d)." ¹ Brown v. Wainwright, 772 F.2d 780, 781 (11th Cir.1985). On remand,

the district court again granted the writ: this time, however, the court fully explained its holding and reasoning.

II. FACTS

The Supreme Court of Florida fully sets forth the facts:

On August 3, 1973 Abraham Goldstone drove to a shopping mall to cash a social security check. When he failed to return, his wife reported him missing. That evening a police officer saw five young men pushing a car later identified as belonging to Goldstone. All fled when the officer approached, but he caught up with two and they in some manner implicated Brown [petitioner]. The car was impounded, and an examination disclosed Goldstone's bankbook in the trunk, scuff marks on the interior of the trunk, bloodstains and bloodstained towels in the car, and at least one fingerprint later identified as Brown's. In the early morning hours of August 4, officers went to Brown's home, informed his father of their purpose, told Brown his rights, and questioned him. He admitted possession of the car and said he got it from Steve Benyard. Brown was then arrested for possession of a stolen car. After Brown was released, officers developed additional data linking Brown to Goldstone's disappearance and, after again informing Brown of his rights, they questioned him further. He amplified his earlier statement by revealing that he had come across Benyard and Mack Simmons with the car in a school parking lot and that Benyard had said he obtained it at the Sky Lake shopping mall in North Miami Beach.

In the due course of investigation officers discovered Goldstone's body at a small lake near the shopping mall. Goldstone had died from drowning, but his body showed that he also had been shot in the shoulder and hit about the head.

The state's chief witness was homicide detective Dallas. He testified at trial that he had arranged for a confrontation between Mack Simmons and petitioner. Dallas stated that he told both youths about their Miranda rights and that they indicated that they understood those rights. Dallas further stated that when Simmons was asked whether petitioner was involved in Goldstone's murder, he answered "Yes." ² Dallas also testified that immediately following the accusation, he had had Simmons removed from the room approximately two minutes after Simmons made the accusation; and that during this time petitioner remained silent.

Dallas further testified about an oral inculpatory statement which petitioner made after the confrontation with Simmons. Specifically, Dallas stated that after a further period of silence, Simmons was taken from the interrogation room and petitioner was again informed of his right to remain silent. Petitioner then confessed to his role in the murder. Petitioner's admission was received into evidence over the objection of defense counsel who questioned the voluntariness of the statement.

During the closing argument, the prosecution summarized the confrontation for the jury. ³ Although defense counsel objected and moved for a mistrial, noting Simmons' absence at trial, the trial court As a basis for his federal habeas petition, petitioner argued that the introduction of inculpatory hearsay testimony at his state trial, as well as comments made by the prosecutor and the trial court regarding the testimony, violated the confrontation clause of the Sixth Amendment, the self-incrimination clause of the Fifth Amendment and the due process clause of the Fourteenth Amendment.

responded that either side could have subpoenaed any witnesses. The defense objection to this comment was overruled, as was the repeated request for a mistrial.

III. DISCUSSION

At the outset, we note that this is the second time that a panel of this circuit has analyzed the issues in this case. The initial panel found that the district court did not supply adequate reasoning for its decision. Brown v. Wainwright, 772 F.2d 780, 782 (11th Cir.1985) (citing Sumner v. Mata, 449 U.S. 539, 551-52, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981) (holding that a habeas court should include in its opinion granting the writ the reasoning which led it to conclude that any of the first seven factors were present)). Consequently, Judge Hoffman, writing for this court stated:

Brown assigned five specific errors in objecting to the magistrate's recommendation, but the court does not address these objections. We cannot determine how the district court arrived at its conclusion. Two especially critical omissions require attention. First, the district court should supply reasons supporting a determination of whether the prosecution's remarks in closing argument were invited by defense counsel's remarks. Second, the court should provide a rationale supporting its finding of no harmless error by the trial court. Finally, the court may wish to examine recent Supreme Court decisions for their potential applicability to the issues presented in this case.

Brown, 772 F.2d at 783. Although the initial panel held that the district court did not follow the clear mandate in Sumner, we believe the district court on remand correctly analyzed the issues in this case.

A. Petitioner's Assignment of Error

The initial panel in this case noted that it could not determine how the district court arrived at its conclusion to grant the writ because Judge Hastings did not, in his first opinion, address petitioner's objections. ⁴ The district court on remand once again granted the writ. The district court found that Detective Dallas' testimony concerning the Simmons accusation was hearsay and violative of the confrontation clause. The district court also held that all other claims must be viewed in light of the initial hearsay error. Upon independent review of the record, the district court found that the trial court errors were of constitutional magnitude.

The constitutional claims argued by petitioner were predicated upon five interrelated, but distinct parts. ⁵ We believe the district court correctly analyzed petitioner's constitutional claims.

The district court first held that the admission of hearsay testimony regarding the accusation of petitioner by the alleged accomplice, Mack Simmons, violated petitioner's right of confrontation. ⁶ The court ruled that the trial court's admission of the hearsay testimony of Detective Dallas, on the ground of petitioner's presence at the accusation, was untenable, for "the concept of silent adoptive admissions is contradictory to the right to remain silent guaranteed by Miranda v. Arizona, 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (1966)." The court noted that the state supreme court had also found "that the trial court had erroneously admitted the Simmons accusation in contravention of Miranda, Brown v. State, 367 So.2d 616, 624 (Fla.1979)." However, the state supreme court held that the accusation testimony was admissible under the theory of "relevant operative fact." The district court explained:

The state court's admissibility finding is a determination of law and fact as to which no statutory presumption of correctness attaches. See, Cuyler [v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980) ]. This Court found that retroactive admissibility of the evidence of a non-hearsay purpose, when the trial judge admitted the testimony for its truth was effectively unfair. United States v. Kaplan, 510 F.2d 606, 612 (2d Cir.1974).

The jury was permitted to consider the Simmons accusation for its truth, the prosecutor was permitted to argue its truth, and no limiting instruction regarding the purpose of the accusation was ever given. None of these prejudicial occurrences would have been allowed had the testimony been admitted only for the non-hearsay...