Cabberiza v. Moore

• Decision Date: 11 July 2000
• Docket Number: No. 97-4592,97-4592
• Citation: 217 F.3d 1329
• Parties: (11th Cir. 2000) David CABBERIZA, Petitioner-Appellant, v. Michael W. MOORE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1329

217 F.3d 1329 (11th Cir. 2000)

David CABBERIZA, Petitioner-Appellant, v. Michael W. MOORE, Respondent-Appellee.

No. 97-4592.

United States Court of Appeals,

Eleventh Circuit.

July 11, 2000.

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

(No. 95-01142-CV-JAL), Joan A. Lenard, Judge.

Before TJOFLAT, MARCUS and CUDAHY^*, Circuit Judges.

TJOFLAT, Circuit Judge:

In Florida, most felonies are tried before a six-person jury. A person charged with the capital crime of first degree murder is entitled to a twelve-person jury, although he may waive that right and accept a jury of six. In this case, petitioner David Cabberiza ("petitioner") was indicted for first degree murder and thus was entitled to a twelve-person jury. Prior to trial, his attorney agreed (with the prosecutor) to a trial before a six-person jury. That jury convicted petitioner of first degree murder, robbery, and burglary. After exhausting his state court remedies, he petitioned the United States District Court for the Southern District of Florida for a writ of habeas corpus, claiming that his convictions were invalid because (1) the Sixth Amendment¹ required that he be tried of first degree murder by a jury of twelve, and that he did not knowingly and voluntarily waive that requirement (2) if the Sixth Amendment did not require a jury of twelve, Florida law required one, and the trial court denied him due process of law when it accepted counsel's waiver of that requirement; (3) his attorney denied him his Sixth Amendment right to effective assistance of counsel in agreeing to a trial before a six-person jury; and (4) if trial before a six-person jury was appropriate, the trial court denied him his Sixth Amendment right when, on a poll of the jury, it accepted a verdict of guilty executed by only five of the jurors.

The district court concluded that the record of petitioner's criminal prosecution foreclosed each of his claims as a matter of law and therefore denied them without an evidentiary hearing. We affirm.

I.

A.

On November 30, 1983, Severino Gomez returned to his home in Miami, Florida, to find his home ransacked and his wife Amada murdered. Within two months, Dade County police arrested petitioner and another man, Jose Enriquez, on suspicion of robbery, burglary, and murder.²

While in custody, petitioner gave the police a statement (and signed a transcript of that statement) admitting that he and Enriquez had committed the crime. Petitioner claimed, however, that Enriquez was the one who had killed Amada Gomez. Enriquez's fingerprints were found in the home, on a mirror, however, Enriquez, in his statement to the police, denied that he had ever been in the Gomezes' home.

A grand jury returned a three-count indictment against both men, charging them with first degree murder, robbery, and burglary. At arraignment, the court appointed the public defender to represent Enriquez and a private attorney to represent petitioner.³ Because the murder took place during the commission of two felonies, the defendants were eligible for the death penalty. Shortly after the indictment was handed down, however, the prosecutor announced, at the court's first pre-trial conference, that the State would not seek death sentences.

The defendants subsequently moved the court for a severance of their cases. The court denied their motion, and scheduled their joint trial for September 10, 1985.

B.

The case came to trial on September 10, as scheduled. Before jury selection began, both defense attorneys informed the court that their clients wished to exercise their right to be tried by a jury of twelve, rather than six, as provided by Florida law for those charged with a capital felony, such as first degree murder.⁴ The prosecutor then told the court that if it was going to empanel twelve jurors, then it should death qualify them, in case "evidence [came] to light which would suggest to the court that ... this is a death penalty case."⁵ The court denied his request to death qualify the jury.⁶ The court acceded, however, to the defendants' request that the court empanel twelve jurors, and jury selection began. The selection process did not conclude on September 10. When it resumed the next day, defense counsel announced (in the presence of the defendants) that their clients would accept a six-person jury. Enriquez's attorney told the court that after conferring with his colleagues in the Public Defenders office, he advised his client that a jury of six would be preferable and his client agreed. Petitioner's attorney, on the other hand, made no explanation on the record for petitioner's decision to go with a jury of six. After defense counsel announced their decisions to proceed with a six-person jury, the prosecutor stated that a jury of six would be acceptable to the State.

On September 12, a jury of six (plus one alternate) was selected. The jury was not sworn, however, because the court adjourned the proceedings until September 18. On September 18, while the jurors were in the hallway outside of the courtroom waiting for the trial to begin, they engaged in a number of improper discussions; when counsel informed the court of what had happened, the court dismissed the entire panel and set a new trial date, November 5, 1985.

On November 5, jury selection began before a different trial judge. During the selection process, he asked counsel: "Am I correct that there has been a stipulation that this would be a six member jury?" The prosecutor and both defense attorneys answered in the affirmative. A jury of six (plus one alternate) was chosen, and the trial began that morning.

The jury convicted petitioner and Enriquez on all three counts.⁷ The court sentenced petitioner to life on the first degree murder count, and consecutive twelve-year concurrent sentences on the burglary and robbery counts; the record does not indicate the sentences Enriquez received.

II.

We now consider in order petitioner's claims, as set out in the first paragraph of this opinion. The Florida courts entertained them on the merits and have found no error. We likewise find no error.

A.

The Sixth Amendment to the Constitution states that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." In Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968), the Supreme Court held that the "Fourteenth Amendment guarantees a right of jury trial in all criminal cases which-were they to be tried in a federal court-would come within the Sixth Amendment's guarantee" of a trial by jury.

Two years later, the Court had occasion to address whether the Sixth Amendment requires a jury of a particular number. In Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), the Court rejected a challenge to Florida's jury statute, which provides a six-person jury in all non-capital cases. After reviewing the characteristics of the jury at common law, and the debate and adoption of the Sixth Amendment, the Court held that "the 12-man requirement [at common law] cannot be regarded as an indispensable component of the Sixth Amendment." Id. at 100, 90 S.Ct. at 1905. This holding disposes of petitioner's first claim: that the Sixth Amendment required that twelve persons try petitioner's case (because the indictment charged petitioner with the capital felony of first degree murder).

B.

As noted above, Florida statutory law provides that a defendant charged with a capital crime is entitled to a twelve-person jury (whether or not the death penalty is sought), and may be tried by a jury of six only when the defendant waives that right. See State v. Griffith, 561 So.2d 528, 529 (Fla.1990) ("A defendant charged with first-degree murder[, a crime punishable by death,] has a statutory right to trial by a twelve-person jury.").⁸

The writ of habeas corpus, 28 U.S.C. § 2254 (1994 & Supp. II 1996), was not enacted to enforce State-created rights. See Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir.1988). Thus, whether or not petitioner waived his right to a twelve-person jury is a matter of Florida law, not federal constitutional law. Petitioner acknowledges this point and attempts to get around it by contending, although rather obliquely, that the trial court denied him due process of law, under the Fourteenth Amendment, when it accepted his attorney's statement that petitioner had agreed to a trial before a jury of six persons instead of twelve. In other words, the court's acceptance of counsel's statement rendered the trial proceeding fundamentally unfair. Petitioner cites no authority for his position, and we find none.

Rule 23(a) of the Federal Rules of Criminal Procedure requires that a defendant in a federal court be tried by a jury "unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government." In addition to a written waiver, some circuits require a trial judge to conduct a colloquy with the defendant on the record to ensure that his waiver is made voluntarily, knowingly and intelligently. See, e.g., United States v. Scott, 583 F.2d 362, 364 (7th Cir.1978). But see United States v. Tobias, 662 F.2d 381, 387 (5th Cir. Unit B 1981)⁹ (refusing to adopt per se rule mandating reversal whenever defendant signs written waiver, but trial court fails "to examine him orally on the record in order to determine whether his waiver of trial by jury was made intelligently and understandingly"); United States v. Robertson, 45 F.3d 1423, 1432 (10th Cir.1995) ("strongly urg[ing]," but declining to require, that district courts "personally ... inform each defendant of the nature of jury trials on the record before accepting a proffered waiver"); United States v. Cochran, 770 F.2d 850, 851-52 (9th Cir.1985) (same). Rule 23(a) and the "colloquy rule,"...