Darden v. Wainwright, No. 81-5590

CourtU.S. Court of Appeals — Eleventh Circuit
Writing for the CourtBefore FAY and CLARK, Circuit Judges, and MORGAN; FAY; CLARK; Before GODBOLD, Chief Judge, and RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, ANDERSON AND CLARK
Citation699 F.2d 1031
Decision Date14 February 1983
Docket NumberNo. 81-5590
PartiesWillie Jasper DARDEN, Petitioner, Cross-Respondent, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, State of Florida, Respondent, Cross-Petitioner.

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699 F.2d 1031
Willie Jasper DARDEN, Petitioner, Cross-Respondent,
v.
Louie L. WAINWRIGHT, Secretary, Department of Corrections,
State of Florida, Respondent, Cross-Petitioner.
No. 81-5590.
United States Court of Appeals,
Eleventh Circuit.
Feb. 14, 1983.
As Corrected March 9, 1983.
Opinion on Granting of Rehearing En Banc April 6, 1983.

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Robert Augustus Harper, Jr., Tallahassee, Fla., for petitioner, cross-respondent.

Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, Fla., for respondent, cross-petitioner.

Appeals from the United States District Court for the Middle District of Florida.

Before FAY and CLARK, Circuit Judges, and MORGAN, Senior Circuit Judge.

FAY, Circuit Judge:

Willie Jasper Darden appeals the district court's denial of his habeas corpus petition challenging his conviction for first degree murder and sentence of death and raises three issues; whether the closing arguments of the state prosecuting attorneys denied him a fair trial; whether he received ineffective assistance of counsel; and whether the jury selection process violated the mandates of Witherspoon v. Illinois. After careful consideration of the issues raised on appeal, we affirm the denial of petition for the writ of habeas corpus.

Background

Based upon a series of events occurring at Carl's Furniture Store in Lakeland, Florida on September 8, 1973, 1 appellant Darden was charged with the first degree murder of Carl Turman, the robbery of Helen Turman and the assault with intent to commit murder of Philip Arnold. The trial jury found Darden guilty on all three counts.

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Pursuant to the bifurcated trial procedure mandated by Fla.Stat. Sec. 921.141 (1973), the jury recommended that Darden be sentenced to death. The trial judge subsequently entered findings and imposed the death sentence.

Darden appealed to the Supreme Court of Florida which affirmed the convictions and sentence. Darden v. State, 329 So.2d 287 (Fla.1976). The United States Supreme Court granted a petition for writ of certiorari, Darden v. Florida, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 282 (1976), and limited the issue to be considered to whether the prosecution's summation to the jury deprived Darden of due process of law. Darden v. Florida, 429 U.S. 1036, 97 S.Ct. 729, 50 L.Ed.2d 747 (1976). However, the Court subsequently dismissed the writ of certiorari as improvidently granted. Darden v. Florida, 430 U.S. 704, 98 S.Ct. 1671, 51 L.Ed.2d 751 (1977).

After the Governor signed a warrant for Darden's execution, Darden filed a petition for writ of habeas corpus in the district court. A stay of execution was entered and the case assigned to a magistrate. The magistrate held an evidentiary hearing on October 22 and 23, 1979 on Darden's claim of ineffective assistance of counsel. The magistrate filed his report and recommended that Darden's petition for writ of habeas corpus be granted on his claims of prosecutorial misconduct during the summation and of improper excusal of prospective jurors. The magistrate found that Darden's other twenty-four claims, including that of ineffective assistance of counsel, were without constitutional merit. Both Darden and the State filed objections to the magistrate's report and recommendation.

After a hearing, the district court entered its thorough and well considered Memorandum Opinion rejecting the magistrate's recommendations and denying Darden's petition for writ of habeas corpus. Darden timely appealed the order of the district court raising three issues for our consideration.

Prosecutorial Misconduct During Summation

Darden contends that remarks made by the Florida assistant state attorneys 2 during closing arguments during the guilt phase were so prejudicial as to constitute a denial of his right to due process. On cross-appeal, the state argues that the procedural default doctrine of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), bars our consideration of the merits of Darden's claim of prosecutorial misconduct. The state's position is without merit for two reasons. First, Darden's counsel did object twice during the prosecutor's final argument. 3 Second, on

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direct appeal of Darden's conviction and sentence the Florida Supreme Court considered the issue. It is well settled that where a state appellate court has adjudicated an issue on its merits, federal courts may consider it in a petition for habeas corpus. Sasson v. Stynchombe, 654 F.2d 371, 374 (5th Cir.1981); Thompson v. Estelle, 642 F.2d 996, 998 (5th Cir.1981); Moran v. Estelle, 607 F.2d 1140, 1142 (5th Cir.1979); Cannon v. State of Alabama, 558 F.2d 1211, 1216 n. 12 (5th Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978). The state's suggestion that the Florida Supreme Court did not dispose of the issue on its merits is untenable. 4 Wainwright v. Sykes is therefore not a bar to our consideration of Darden's claim that prosecutorial misconduct denied him due process.

On a habeas corpus petition, our standard of review of the prosecutor's comments at trial is "the narrow one of due process, and not the broad exercise of supervisory power that [federal appellate courts] possess in regard to [their] own trial court[s]." Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1973). "In order for a state habeas corpus petitioner to prevail on a claim that an improper jury argument marred his trial, the asserted error must be one of constitutional magnitude. This means that the prosecutorial remarks must be so prejudicial that they render the trial fundamentally unfair." Houston v. Estelle, 569 F.2d 372, n. 8 (5th Cir.1978).

There is no dispute in this case that "the prosecutor's remarks under ordinary circumstances would constitute a violation of the Code of Professional Responsibility." Darden v. State, 329 So.2d at 290. The district court noted that "anyone attempting a text-book illustration of a violation of the Code of Professional Responsibility, Canon 7, EC 7-24 and DR 7-106(C)(4), could not possibly improve" upon the example provided by the prosecutor during Darden's trial. 5 Darden v. Wainwright, 513 F.Supp. at 955. However, our inquiry must be whether the prosecutor's remarks denied Darden a fundamentally fair trial. Further, it is "well established that in reviewing prosecutorial comments for possible prejudice, a court must not consider the comments in isolation. The comments must be evaluated in the context not only of the prosecutor's entire closing argument but of the trial as a whole." Cobb v. Wainwright, 609 F.2d 754, 755 n. 7 (5th Cir.1980).

Because of a state procedural rule, 6 Darden's trial counsel had the opportunity to present the initial summation as well as rebuttal to the prosecutor's closing arguments. Thus, the prosecutors' comments must be considered in light of the defense attorney's initial summation which concentrated on the lack of evidence in the case, placing blame for this lack on the Polk County Sheriff's Office. 7 The defense argument

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also alluded to the death penalty, 8 introduced the idea of an "animal" as the perpetrator of the crimes 9 and contained personal opinion. 10

The prosecutors then delivered closing remarks which, as the district court noted, even the state has candidly asserted no one has ever even weakly suggested were anything but improper. 513 F.Supp. at 952. The prosecutors attempted to place blame for the crime on the state's Division of Corrections since Darden was on furlough at the time of the offense, often implying that the death penalty would be the only insurance against a future similar act. 11 Like the defense, one prosecutor's argument used the word "animal" 12 and contained

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personal opinions. 13 The other prosecutor resorted to some statements which can only be described as tasteless and unprofessional. 14 Darden's attorneys then had the opportunity to rebut the prosecutors' statements on the final closing argument. 15

While the prosecutors' comments would have been reversible error in an appeal from a federal criminal case, 16 this case is before us on a petition by a state prisoner for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. Our inquiry is therefore limited to whether the prosecutorial comments were so prejudicial as to render the trial fundamentally unfair as a matter of constitutional law. Houston v. Estelle, 569 F.2d at 378. The United States Supreme Court has noted that "the process of constitutional line drawing in this regard is necessarily imprecise." Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 1872, 40 L.Ed.2d 431 (1974). It is not enough that the prosecutors' remarks were undesirable or even universally condemned. Cobb v. Wainwright, 609 F.2d at 754. A defect of constitutional proportions is not to be found in any but egregious cases. Houston v. Estelle, 569 F.2d at 382.

The district court concluded that habeas corpus relief was not warranted on the basis of the prosecutorial summation reasoning:

The prosecutor's argument did not involve a manipulation or misstatement of the evidence nor did it implicate other specific rights of the accused such as the right to counsel or the right to remain silent; most of the objectional content was invited by or was responsive to the opening summation of the defense; the Court instructed the jury on two occasions that the argument of counsel was not evidence and that their decision was to be made on the basis of the evidence alone; the challenged argument was presented without objection; the defense had the "last word" through the presentation of rebuttal argument; and the weight of the evidence against the Petitioner was heavy; indeed, the Supreme Court of Florida said there "was overwhelming eyewitness and circumstantial evidence to support a finding of guilt on all charges ..." Darden's trial was not perfect--few are--but neither was it fundamentally...

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  • McNeill v. Bagley, Case No. 1:02 CV 1645
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • August 26, 2019
    ...the trial with unfairness as to make the resulting conviction a denial of due process.'" Id. at 181 (quoting Darden v. Wainwright, 699 F.2d 1031, 1036 (11th Cir. 1983), and Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). The Court emphasized that "the appropriate standard of review fo......
  • Jernigan v. Edward, Case No.: 15cv2793 BTM (RBB)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • November 7, 2017
    ...actions] were undesirable or even universally condemned.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Darden v. Wainwright, 699 F.2d 1031, 1036 (11th Cir. 1983)). Rather, a prosecutor commits misconduct when his or her actions "'so [infect] the trial with unfairness as to make ......
  • Roybal v. Davis, Case No. 99cv2152–JM (KSC)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • December 2, 2015
    ...remarks were undesirable or even universally condemned.’ ” Darden , 477 U.S. at 181, 106 S.Ct. 2464, quoting Darden v. Wainwright , 699 F.2d 1031, 1036 (11th Cir.1983). “[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not t......
  • Keeten v. Garrison, No. C-C-77-193-M
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • March 5, 1984
    ...argument was effectively rejected by the Supreme Court in Davis v. Georgia, supra. Respondents also contend, citing Darden v. Wainwright, 699 F.2d 1031, 1037-38 (11th Cir.1983), that the trial judge's decision to exclude Ms. Melton should be affirmed because the trial judge was in the best ......
  • Request a trial to view additional results
60 cases
  • McNeill v. Bagley, Case No. 1:02 CV 1645
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • August 26, 2019
    ...the trial with unfairness as to make the resulting conviction a denial of due process.'" Id. at 181 (quoting Darden v. Wainwright, 699 F.2d 1031, 1036 (11th Cir. 1983), and Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). The Court emphasized that "the appropriate standard of review fo......
  • Jernigan v. Edward, Case No.: 15cv2793 BTM (RBB)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • November 7, 2017
    ...actions] were undesirable or even universally condemned.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Darden v. Wainwright, 699 F.2d 1031, 1036 (11th Cir. 1983)). Rather, a prosecutor commits misconduct when his or her actions "'so [infect] the trial with unfairness as to make ......
  • Roybal v. Davis, Case No. 99cv2152–JM (KSC)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • December 2, 2015
    ...remarks were undesirable or even universally condemned.’ ” Darden , 477 U.S. at 181, 106 S.Ct. 2464, quoting Darden v. Wainwright , 699 F.2d 1031, 1036 (11th Cir.1983). “[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not t......
  • Keeten v. Garrison, No. C-C-77-193-M
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • March 5, 1984
    ...argument was effectively rejected by the Supreme Court in Davis v. Georgia, supra. Respondents also contend, citing Darden v. Wainwright, 699 F.2d 1031, 1037-38 (11th Cir.1983), that the trial judge's decision to exclude Ms. Melton should be affirmed because the trial judge was in the best ......
  • Request a trial to view additional results

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