Childers v. Floyd, No. 08-15590 (11th Cir. 6/8/2010), No. 08-15590.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBarzilay
PartiesWYON DALE CHILDERS, Petitioner-Appellant, v. WILLIE L. FLOYD, Warden — Glades Correctional Institution, Respondent-Appellee.
Decision Date08 June 2010
Docket NumberNo. 08-15590.

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WYON DALE CHILDERS, Petitioner-Appellant,
WILLIE L. FLOYD, Warden — Glades Correctional Institution, Respondent-Appellee.
No. 08-15590.
United States Court of Appeals, Eleventh Circuit.
June 8, 2010.

Appeal from the United States District Court for the Northern District of Florida, D. C. Docket No. 07-00243-CV-3-LAC-EMT.

Before TJOFLAT and BARKETT, Circuit Judges, and BARZILAY,* Judge.

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Petitioner-Appellant Wyon Dale Childers ("Appellant") appeals the United States District Court for the Northern District of Florida's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Appellant contends here, as he did unsuccessfully in the district court, that a Florida state trial court impermissibly constrained his right under the Confrontation Clause of the Sixth Amendment of the United States Constitution to cross-examine the State's star witness against him. For the reasons stated below, this court reverses the district court and instructs the district court to grant Appellant's petition.

I. Background & Jurisdiction

A. Preliminary Events & Willie Junior's Plea Bargain

On June 17, 2002, the Florida Circuit Court for Escambia County handed down an indictment against Appellant for one count of money laundering, one count of bribery, and one count of unlawful compensation or reward for official behavior. Record Evidence ("R.E.") Doc. 8 Ex. A at 1-3. The State alleged that Appellant, a county commissioner, made payments to Willie Junior ("Junior"), another county commissioner, to secure Junior's vote in favor of the County's purchase of the Pensacola Soccer Complex from Joe Elliott ("Elliott"). Allegedly, Elliott in turn provided Appellant and Junior with monetary kickbacks upon the

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county's purchase of the property.

Several months before Appellant or Elliott went to trial, the State struck a plea bargain with Junior, in which he agreed to plea nolo contendere to numerous charges, including bribery, extortion, grand theft, and racketeering. In return for his cooperation with the State, which required Junior to inform the State and the grand jury of any and all criminal offenses committed by him or others of which he had knowledge, the State granted him immunity from prosecution for further related offenses and agreed to seek prison time of only 18 months rather than the 125-year maximum sentence he otherwise could have faced. The agreement also provided that

if any information Junior provides is determined to be false, this grant of immunity is withdrawn and, additionally, the State may prosecute Junior for offenses relating to the giving of false statements or perjury. . . . The parties agree that the State may revoke this agreement if, in the sole discretion of the State Attorney, any of the following circumstances have occurred:

A. Junior's refusal to cooperate as provided in this agreement. [sic]

B. Junior's statements or testimony are incomplete or untruthful;

C. Junior failed to comply with any of the terms of this agreement. . . .

R.E. Doc. 8 Ex. C at 1015.

As the State prepared for both Elliot and Appellant's separate trials, Junior met with State investigators several times and provided details of the meetings he

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had with Elliot and Appellant. In December 2002, Junior served as the State's star witness at Elliott's trial, repeating the information he had provided to the State in prior meetings implicating Elliot and the Appellant. As noted, the essence of the scheme about which Junior testified was that Appellant met with him multiple times to offer him a bribe in exchange for his voting in favor of buying the soccer complex from Elliot. The trial ended with Elliot's acquittal.

Approximately one month after Elliot's acquittal, Junior met with a State investigator and provided additional facts that implicated Appellant more directly in the soccer stadium deal, some of which conflicted with Junior's prior statements. Specifically, Junior previously had stated that when Appellant wrote "100/100" on a notepad and passed it to him, he and Appellant did not discuss the meaning of the note and that Junior assumed the note indicated that they each would receive $100,000 if the Pensacola soccer complex deal was approved. In his new statement, Junior claimed, for the first time, that Appellant actually told him, "[I]f the soccer complex goes through, it will be a hundred for you and a hundred for me," when Appellant passed him the note. Before the Elliott acquittal, Junior also maintained that the "100/100" incident occurred after the County Commission voted to appraise the soccer complex property. In his revised account, Junior stated that the incident took place before the appraisal vote and

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asserted for the first time that, after the "100/100" note episode, Appellant specifically told him that Elliott would speak with him about the matter.

In addition, Junior previously had told the state that Appellant had given him a large cooking pot filled with money, but that he and Appellant had no conversation about or during the event. After Elliot's acquittal, Junior claimed that Appellant told him that he had taken $25,000 from the pot. Junior later amended that statement to say that Appellant told him that he first took $10,000 and then took another $25,000 from the pot. In his third version of events, Junior also stated that while giving Junior the pot of money, Appellant repeatedly exclaimed that he was "sick and tired of not being able to get three votes," contrary to Junior's earlier statements that there had been no conversation during this transaction. See R.E. Doc. 8 Ex. M at 4-5, Doc. 26 at 7.

Upon hearing these new statements, the State Attorney attempted to revoke Junior's plea agreement by filing a Notice of Revocation of Terms of Plea Agreement ("Notice of Revocation" or "Notice") in Junior's criminal case. In support, the State Attorney charged, inter alia, that Junior changed his testimony and failed to give complete statements in the Elliott trial. Although the plea agreement explicitly left its revocability to the State Attorney's sole discretion, the state trial court sua sponte intervened and disallowed the revocation on the

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grounds that Junior's revised statements were "not under oath at trial or hearing," and therefore not technically a violation of the plea agreement. R.E. Doc. 8 Ex. M at 7. The State then filed an amended information against Appellant with the same offenses, but supported with the additional statements provided by Junior after Elliot's acquittal. R.E. Doc. 8 Ex. A at 6-7.

B. Appellant's State Court Trial

Prior to his own trial, Appellant filed a notice of intent to use party opponent statements, to wit, (1) the State Attorney's claims contained in the Notice of Revocation, (2) the State Attorney's statements at the Notice of Revocation hearing, and (3) the State Attorney's statements from the Elliot trial, in order to explore Junior's motivations for changing his story. Appellant hoped to use these materials for two reasons: (1) to examine whether Junior modified his testimony because he perceived that the Elliott acquittal jeopardized his plea bargain and so he wanted to assure Appellant's conviction, and (2) to explore whether the Notice of Revocation compelled Junior to stick to his new, enhanced version of events because he feared the successful revocation of his plea bargain if he changed his testimony again, returning to his prior story. Appellant concurrently filed a motion in limine to exclude evidence of the trial court's quashing of the Notice, because he believed that it was irrelevant, that its

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probative value, if any, was outweighed by its unfair prejudice, and that it constituted improper bolstering of Junior's testimony. The trial court ruled that Appellant could not discuss the Elliott case verdict because, among other reasons, under Fla. Stat. § 90.403, "the prejudice would outweigh any probative value," and excluded the Notice of Revocation and the court's ruling on it as irrelevant.1 R.E. Doc. 8 Ex. B at 2-3. The court further stated that if it were to admit the State Attorneys' Notice of Revocation, it would be obligated to admit the quashing of the Notice as well. R.E. Doc. 8 Ex. B at 3.

During Appellant's trial, Junior testified to the following, as succinctly explained by the district court:

Mr. Junior testified that on May 31, 2001, he went to [Appellant]'s office, and [Appellant] mentioned that he was "sick and tired of trying to get three votes" and would like to try to get some things done. Mr. Junior testified that he asked [Appellant] for $10,000.00, and [Appellant] wrote out a check and gave it to him. Mr. Junior identified a check dated May 31, 2001, made payable to him in the amount of $10,000.00 and authored by [Appellant]. He testified that although the memo line stated "Ruth [Appellant's wife]" and referred to six months at eight percent, there was no discussion about his paying back the funds to [Appellant]. Mr. Junior testified that he exchanged the check for a cashier's check and deposited the cashier's check.

Mr. Junior further testified that between August and September of 2001, he met [Appellant] at [Appellant]'s office. He testified that he and [Appellant] went to a conference table, and [Appellant] wrote

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"100,000/100,000" on a legal pad and stated he and Mr. Junior would each receive "a hundred." Mr. Junior testified that he believed the note represented that he would receive $100,000 and [Appellant] would receive $100,000 if the County's purchase of the Pensacola Soccer Complex was completed.

Mr. Junior also testified that he met Joe Elliott in 2001. Mr. Junior testified that Mr. Elliott came to his office for a meeting, and based upon that meeting, Mr. Junior added an item to the agenda of the County Commission meeting on October 4, 2001, for the county to obtain an appraisal for the possible purchase of...

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