Burr v. Jackson
| Decision Date | 30 November 2021 |
| Docket Number | No. 20-5,20-5 |
| Citation | 19 F.4th 395 |
| Parties | John Edward BURR, Petitioner - Appellant, v. Denise JACKSON, Warden, Central Prison, Raleigh, North Carolina, Respondent - Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: James P. Cooney, III, WOMBLE BOND DICKINSON (US) LLP, Charlotte, North Carolina, for Appellant. Kimberly Nicole Callahan, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Ernest Lee Conner, Jr., Greenville, North Carolina, for Appellant. Joshua H. Stein, Attorney General, L. Michael Dodd, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
Before WILKINSON, WYNN, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Wilkinson and Judge Harris joined.
Petitioner John Edward Burr was convicted after a 1993 trial for the 1991 murder of infant Tarissa Sue O'Daniel, known to her family as "Susie." He was sentenced to death. In the decades since, Burr has pursued habeas remedies before the state and federal courts, including this Court. But this appeal concerns a narrow question: whether the district court erred in declining to grant habeas relief on the basis of claims under Brady v. Maryland and Napue v. Illinois related to transcripts of interviews with two witnesses, Susie's mother and brother.
Our standard of review is highly deferential to the conclusions of the state post-conviction relief court. Under that standard of review, we agree with the district court that Burr is not entitled to habeas relief. Accordingly, we affirm.
Several courts, including this one, have previously laid out the relevant facts and procedural history of this case in some detail.1 We do not repeat that full history here, but instead report only those facts relevant to the issues before us.
Susie was born to Lisa Bridges and her then-husband on April 1, 1991. Shortly thereafter, Bridges began having an affair with Burr. In late June, Bridges and her children moved with Burr into a trailer next door to another trailer owned by Bridges's stepbrother. Burr quickly became physically abusive toward Bridges.
Around 6:00 P.M. on August 24, 1991, Bridges's eight-year-old son, Scott, tripped over a cord while carrying Susie and fell on a gravel-covered driveway. Bridges and Burr examined Susie after the fall and found her to be uninjured. But early reports about the mechanics of the fall were inconsistent. Bridges and Scott both reported in the weeks afterward that Scott fell on Susie, dropped her, or both. However, at other times during those same early weeks, Bridges and Scott each reported that Scott did not let go of Susie and instead cradled her gently as he fell. One of Scott's early reports was made to a social worker on August 27, who "assured him that nothing he had done hurt [Susie]." J.A. 1226.2
Late on the night of August 24 or in the early hours of the next morning, Bridges went next door to wash dishes at her stepbrother's home. She left Susie in her crib in Bridges's bedroom. Scott and his younger brother Tony were asleep in another bedroom. Burr also remained at Bridges's trailer.
When Bridges returned forty-five minutes later, she found Susie in her swing in the living room. Burr claimed he had moved Susie from her baby bed to the swing after she woke up. It rapidly became clear that Susie was badly injured—she was covered in bruises; her eyes were unblinking and rolling; and she was unresponsive. Bridges and Burr brought Susie to the county hospital, where they arrived just before 3:00 A.M. on August 25.
The emergency room physician found Susie to be unconscious, with a weak pulse and wandering eyes; "intermittently seizing or having seizures"; and presenting with a bulging fontanel, "indicat[ing] some swelling inside the head." J.A. 2812. In addition to the bruising all over her body, X-rays revealed that both of her arms and both of her thigh bones were broken. She also appeared to be suffering from a "closed head injury
," though X-rays did not show a skull fracture. J.A. 2819. The physician immediately formed a "high suspicion of abuse," which he asked Bridges about. J.A. 2818. He also contacted the sheriff's department and social services.
Due to the severity of her injuries, Susie was transferred to North Carolina Memorial Hospital at the University of North Carolina at Chapel Hill. There, she was examined by a trauma team that included the chief of pediatric surgery. The chief of pediatric radiology reviewed Susie's X-rays and CT scan
and concluded that Susie had a "depressed skull fracture" that was mere hours old. J.A. 2713. By contrast, the fractures in both of Susie's thigh bones showed evidence of early healing. The radiologist estimated those fractures were eight to nine days old, with a range of three days on either side of the estimate. Susie's arm fractures did not show signs of healing, and the radiologist testified that they could have happened at the same time as the head injury or up to five days previously.
A pediatric neurologist also reviewed Susie's CT scan
and agreed that she had a "depressed skull fracture." J.A. 2840. He noted that there was no external wound on the scalp. And he found that Susie exhibited symptoms, such as bilateral retinal hemorrhages, that were indicative of "shaken baby syndrome," "a specific kind of injury where the baby has a whiplash kind of injury from being shaken back and forth." Id.
Susie died from her injuries on August 27, 1991. The medical examiner concluded that Susie's cause of death was a closed head injury
, and that the manner of death was homicide. Burr was arrested the next day.
Burr was tried before a jury in a guilt phase that took place over the course of twelve trial days between March 29 and April 16, 1993. The trial evidence was extensive and included testimony from Burr, Bridges, Scott, other relatives, investigating officers, examining doctors, a social worker, and the pathologist who performed Susie's autopsy.
Scott testified at trial that he cradled Susie in his arms as he fell with her on August 24, such that she never hit the ground. Bridges and another witness who saw the fall, an eleven-year-old relative named Jonas, confirmed Scott's rendition. And Burr himself testified that Scott held onto Susie when they fell. That said, the trial evidence also included Burr's testimony that he saw Scott "laying on top of Susie." J.A. 3063. And it included testimony that, in the early hours of August 25, Bridges told a deputy sheriff that Scott "fell on" Susie, and that she similarly told a social worker on August 25 that Scott had "dropped" Susie and "fell on her." J.A. 3617, 3779. This contradicted her trial testimony that Scott "didn't drop his sister," nor did he "fall on [her]." J.A. 2013. In other words, the jury had before it competing testimony regarding the fall. In any event, Bridges, Burr, and several other witnesses testified that they examined Susie after the fall and that she was not injured at that time.
Five doctors testified at trial: the emergency room physician at the county hospital who saw Susie around 3:00 A.M. on August 25; the chief of pediatric surgery at North Carolina Memorial Hospital, who was part of the trauma team that evaluated Susie when she arrived there around 6:00 A.M. on August 25; the chief of pediatric radiology at the second hospital, who reviewed Susie's X-rays on August 25; the pediatric neurologist at the second hospital who examined Susie in the pediatric intensive care unit on August 25 and reviewed her CT scan
; and the pathologist who performed Susie's autopsy on August 28. Each doctor was qualified as an expert witness in their field of medical practice.
The pediatric neurologist also testified that retinal hemorrhages
, such as those seen in the back of both of Susie's eyes, would not be caused by a fall, but rather "would require really very violent shaking." J.A. 2876. He further testified that, while Susie's condition might have worsened in the hours following her injury, she would have been "significantly...
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