Brown v. Head

• Decision Date: 15 November 2001
• Docket Number: No. 00-15886,00-15886
• Citation: 272 F.3d 1308
• Parties: (11th Cir. 2001) JAMES WILLIE BROWN, Petitioner-Appellant, v. FREDERICK HEAD, Warden, Georgia Diagnostic and Classification Prison, Respondent-Appellee
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1308

272 F.3d 1308 (11th Cir. 2001)

JAMES WILLIE BROWN, Petitioner-Appellant, v. FREDERICK HEAD, Warden, Georgia Diagnostic and Classification Prison, Respondent-Appellee.

No. 00-15886

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

November 15, 2001

[Copyrighted Material Omitted] Appeal from the United States District Court for the Northern District of Georgia

Before CARNES, BARKETT and HULL, Circuit Judges.

CARNES, Circuit Judge:

Just over a quarter of a century ago, in 1975, James Willie Brown and Brenda Watson went on a date to the Mark Inn Lounge in Stone Mountain, Georgia. They ate a steak and potato dinner and spent several hours drinking and dancing. Brown v. State, 250 Ga. 66, 66, 295 S.E.2d 727, 729 (1982). Afterwards Brown took Watson to an old logging road in a heavily wooded area, tied her up with a nylon cord, raped and orally sodomized her, and suffocated her by forcing her panties so far down her throat that they were not discovered until the autopsy. Id. She was the third woman Brown had attacked, but the other two were fortunate enough to have escaped with their lives. Id. at 73, 295 S.E.2d at 734. Because Watson did not, Brown was charged with capital murder.

The trial of the case was delayed for six years because of concerns about Brown's mental competency. When the case did go to trial in 1981, a jury convicted Brown and sentenced him to death. That conviction and death sentence were affirmed by the Georgia Supreme Court, id., state collateral relief was denied, and the United States Supreme Court denied certiorari review. Brown v. Dodd, 404 U.S. 874, 108 S.Ct. 33 (1987). Brown was more successful in seeking federal habeas relief. In 1988 the United States District Court for the Northern District of Georgia issued the writ, effectively requiring a new trial, on Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836 (1966), and related Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), grounds. After conducting proceedings to ensure that Brown was competent, the State retried him in 1990. The evidence at the retrial, like that at the initial trial, was overwhelming, and the jury convicted Brown and sentenced him to death again. The Georgia Supreme Court affirmed that new conviction and sentence. Brown v. State, 261 Ga. 66, 401 S.E.2d 492, cert. denied, 502 U.S. 906, 112 S.Ct. 296, 116 L.Ed.2d 240 (1991). State collateral relief was denied as well. After the Supreme Court denied certiorari, Brown v. Turpin, 519 U.S. 1098, 117 S.Ct. 781 (1997), Brown sought federal habeas review which was denied in November 2000. This is the appeal from that denial. Brown raises a number of issues, several of which deserve discussion.¹

I. THE INEFFECTIVE ASSISTANCE CLAIMS

Brown raises ineffective assistance claims relating to two witnesses who testified at the sentence stage, Carl White and Anita Tucker. We hold that even assuming that Brown's trial counsel should have discovered and used certain impeachment evidence to attack the testimony of these witnesses, the state habeas court's conclusion that counsel's failure to do so did not prejudice Brown's sentence is objectively reasonable.

A.Witness White

During the sentence phase, White testified that he was the officer who booked Brown on the murder charge on May 15, 1975, and that he did not notice anything unusual about Brown's demeanor or ability to communicate. White also testified about something Brown said: "When I got through taking the information, as I recall, he made a statement that he wasn't worried about this charge, that he would plead insanity and be out in a few years."

Brown contends that his trial counsel should have discovered and used other evidence to impeach the testimony of White. The other evidence consists of documents in the State's files indicating that White did not report Brown's statement until six years after it was made, and that he did so then only after an investigator, at the prosecutor's direction, questioned White about whether Brown had made any statements while being booked that might shed some light on his mental state at that time. Brown argues that delay in reporting the statement could have been used to impeach White's testimony that Brown made the statement, because if such a statement really had been made, White would not have kept quiet about it for six years.

Since White had testified at Brown's competency hearing about the statement made at booking, Brown argues that his trial counsel should have anticipated that testimony would be repeated at trial and set about to find a way to impeach it. If counsel had looked, Brown says, he could have discovered the documents indicating White's six-year silence about the statement. The failure to discover and use that evidence to impeach White's testimony at trial was ineffective assistance of counsel, Brown argues. He asserts this ineffective assistance claim as to sentencing, not as to the guilt stage.

The state habeas court concluded that trial counsel performed deficiently in not discovering and using the fact that White had not reported to the prosecutor Brown's statement at booking soon after it was made. The court denied relief, however, on the ground that no reasonable probability existed that Brown's sentence would have been different had counsel discovered and used the fact of the delay in reporting to attack White's testimony.

In this federal habeas proceeding, the district court agreed with the state habeas court that Brown had not established prejudice from his trial counsel's failure to discover the information and use it to impeach White. Like the state court, the district court reasoned that even apart from White's testimony, the other evidence supporting the death sentence was overwhelming. It followed that the state habeas court's decision was not an unreasonable application of federal law, and federal habeas relief was due to be denied.

B. Witness Tucker

Anita Tucker also testified during the sentence phase. She told how she had met Brown while both of them were incarcerated in the Gwinnett County Jail. On one occasion, she and Brown were transported from that jail to the courthouse in the same car. During that trip, Brown had told her she "should play crazy and that [she] would not do any more than two years." Tucker said that Brown knew of her because he had been incarcerated with her co-defendants in an unrelated case.

Tucker also testified about another meeting with Brown which had taken place after her conviction, when she was incarcerated at Hardwick Correctional Institution. This meeting occurred when Tucker was transported to Central State Hospital for a dental evaluation. While she was there, Tucker testified, Brown had asked her "what happened to you in Gwinnett County?" Tucker told Brown she "was found guilty and given a sentence of life plus sixty years," to which Brown replied, "Well, I told you." Tucker explained to the jury that his statement referred to their earlier conversation about "playing crazy."

During her testimony, Tucker was asked whether she had received any benefit for her testimony, either for the testimony she was then giving or for her testimony at the first trial. Tucker answered by denying that she had received a benefit, explaining that she had been convicted of murder and armed robbery, and stating that she had served her sentence and was out on parole. On cross-examination, Brown's trial counsel inquired about how the prosecution had become aware of Tucker's testimony. Tucker explained that Detective Burt Blanott, the investigator who worked her case, had come to see her at Hardwick prison before Brown's first trial, and that was when she had told the detective about Brown's statement.

Brown's claim as it relates to Tucker is that his trial counsel should have discovered evidence that could have been used impeach her testimony. Specifically, in the state habeas proceedings, Brown contended that Tucker's testimony could have been impeached on three grounds, none of which trial counsel had pursued: (1) Tucker and Brown were never at the dentist's office on the same day; (2) Tucker had changed her story as to the location of her first conversation with Brown from a holding cell to the back seat of a patrol car; and (3) after the first trial, Tucker was treated favorably by the State in regard to her sentence.

The state habeas court concluded that trial counsel's performance in regard to the credibility issues involving Tucker was deficient, because counsel could and should have discovered, and used to impeach Tucker, the information about her not being at the dentist's office at the same time as Brown and about her arguably receiving favorable treatment in return for her testimony at the first trial. But the state court denied relief on the ineffective assistance claim relating to Tucker on prejudice grounds. In this federal habeas proceeding, the district court agreed with the state habeas court that trial counsel's representation was deficient, but found the state court's conclusion that trial counsel's representation did not result in prejudice to Brown's defense was objectively reasonable.

C. Discussion and Analysis

We need not address the performance deficiency component of this ineffective assistance claim, because failure to satisfy the prejudice component is dispositive. See Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069 (1984) ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."). The prejudice component requires Brown to establish that but for the deficient representation, there is a reasonable probability of a different result in the proceeding here, the sentence proceeding. See Strickland, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome the outcome...