German v. Inch
| Decision Date | 27 August 2020 |
| Docket Number | CASE NO. 17-62010-CIV-ALTMAN/Reid |
| Parties | DARYL GERMAN, Plaintiff, v. MARK S. INCH, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Before the Hon. Roy K. Altman:
The Petitioner, Daryl German ("German"), killed a man and stole his drugs. A state jury convicted him of armed robbery and felony-murder, and a state judge sentenced him to prison for the rest of his life. After years of appeals and collateral attacks, he filed this pro se petition under 28 U.S.C. § 2254 for a writ of habeas corpus (the "Petition") [ECF No. 1].1
This Court referred the Petition to United States Magistrate Judge Lisette M. Reid who recommended that German's Petition be denied. See Report and Recommendation (the "Report") [ECF No. 19]. German filed timely objections to certain portions of Judge Reid's Report("Objections") [ECF No. 20], which this Court reviews de novo. See FED. R. CIV. P. 72(b)(3). The rest of the Report this Court inspects only for clear error. Id.
German was indicted—along with two co-defendants, Brenda Babrow and Eric Anderson—on charges of First-Degree Murder and Armed Robbery with a Firearm. See Indictment [ECF No. 12-1] at 14. German moved for—and received—a severance. See German's Memorandum of Law (the "Memo") [ECF No. 5] at 18.
Before trial, German moved to suppress the statement he gave to Detectives Chris Murray and James Carr. See Pretrial and Trial Transcript (the "Transcript") [ECF No. 13-1] at 36. The state court held a suppression hearing, at which Detective Murray testified that (1) he read German his Miranda rights; (2) German voluntarily signed a Miranda waiver form; and (3) German agreed to speak with the Detectives without a lawyer. Id. at 39, 46, 47. As relevant here, the Miranda waiver form German signed—which was introduced into evidence—informed German that he had () the right to an attorney, the right to remain silent, and the right to stop questioning at any time. Id. at 42-46. German signed the form in the Detectives' presence and thereby affirmed that he was knowingly and voluntarily waiving his Miranda rights. Id. at 46.
When the Detectives asked German if he would mind having the interview recorded, he demurred. Id. at 47. Although Detective Murray admitted that, given the passage of two years, he did not remember precisely what German had said, he told the court that he had taken down some notes during the interview—and that his secretary ("Denise") had typed them into a report. Id. at51, 63. The court then allowed Detective Murray to read from Denise's report of his notes, id. at 51-57, after which the court took a two-month recess, id. at 69.
When the hearing resumed, German testified that he did not remember signing the Miranda waiver. Id. at 102. Nevertheless, German conceded both that the police had read him the rights set out in that form and that his signature was at the bottom. Id. at 102:14 (). According to German, he told the Detectives that he would not sign the form. Id. at 102. At that point, he claimed, Deputy Carr "started getting, like violent, hitting on the table and stuff and Deputy Murray - Deputy Murray calmed him down." Id. at 104:24-05:2. According to German, the Detectives told him that he could "save himself," and that if "I talked to them." Id. at 105-06. The Detectives allowed German to speak with his grandmother—who asked him to cooperate—but German still refused to talk. Id. at 107.
Eventually, though, Id. at 108-09. So, German led the Detectives to Babrow's house, where he pointed out the canal—which ran behind the house—into which he had tossed the gun. Id. at 112.
Noting both that German signed the waiver form after the Detectives read it to him and that he had been arrested on fifteen prior occasions—and thus was likely familiar with both the form's contents and his rights—the court denied German's motion to suppress. Id. at 131.
German's trial began on July 26, 1995. See Transcript at 134. The court brought in a venire panel of fifty jurors. See Pet. at 19. German's lawyer exercised only nine of the ten peremptory strikes he was allotted—even though the court gave him an extra opportunity to use one more. Id.
In its case-in-chief, the State called Don Allie, the victim's neighbor, who testified that, on the night of the murder, he saw the victim standing outside of his apartment with what appeared to be a large blood stain in the front and center of his shirt. See Transcript at 163-70. Allie added that he heard the victim tell Ann—another neighbor—that two black males and a redheaded girl had attacked him. Id. at 166. According to Allie, the victim said that the redheaded girl had come to the door first. Id. When the victim opened the door, the victim's story went, the two men rushed in. Id. The State also called Antoinette Neal—a third neighbor—who corroborated Allie's account that the girl, in the victim's recollection, had red hair. Id. at 228.
The State also brought in a medical examiner, a crime scene investigator, and a firearms expert—whose collective testimony established that the victim died of a bullet wound to his abdomen from a .38 caliber weapon. Id. at 262, 280, 326. The State then called the first deputy to reach the scene and a paramedic—both of whom spoke with the victim and relayed a similar story to the one Allie and Neal had told: that a red-headed woman had knocked on the victim's door; that two black men had rushed him as soon as he opened the door; that the men held him at gunpoint; that they ordered him to open the safe; and that, when he refused, they beat him and shot him once in the stomach. Id. at 405, 414.
Finally, the State called Detective Chris Murray. Id. at 420. As it had done at the suppression hearing, the court allowed Detective Murray to read from Denise's report of his interview notes—though, citing the contours of Florida's recorded-recollection exception to thehearsay rule, FLA. STAT. § 80.803(5), the court did not allow the State to introduce the report itself into evidence, id at. 485-518. With help from Denise's report, Detective Murray testified that German had confessed to planning and committing the robbery. Id. at 533-35. According to Detective Murray's recollection, German had selected the victim because he (the victim) had "drugs and money in his apartment." Id. at 533-35. As Detective Murray recalled things, German admitted that his co-defendant had pistol-whipped the victim during the robbery because the victim had refused to open the safe. Id. at 535. And—German told Detective Murray—when the victim went for German's gun, his co-defendant took the gun, pistol-whipped the victim again, and shot the victim in the stomach. Id. at 535-37. As Detective Murray remembered the conversation, German said that, with the victim down, he (German) took the victim's drugs and money and, after fleeing, tossed the gun into a canal behind Babrow's house. Id. at 537.
German called no witnesses. Id. at 624.
Before closing arguments, German moved for a judgement of acquittal. Id. at 631-43. In this motion, German's trial counsel argued that—aside from the alleged confession—the State had presented no evidence tying German to the crime. Id. And, turning to that confession, trial counsel asked the court not to consider it because—he said—it had been involuntarily coerced. Id. Counsel also contended that German could not be guilty as a principal—or, at least, that the State had failed to carry its burden that he could be—because "the intent necessary to convict a person of guilty [sic] of a crime committed by another is specific intent to participate in criminal acts of the actual perpetrator with respect to the crime under consideration." Id. at 639. The State countered that "a reasonable mind could differ"—and, therefore, that the question of German's intent should go to the jury. Id. at 642. The Court denied the motion. Id. at 643.
After the State's closing argument, German reversed course and told the court that he wanted to testify. Id. at 737. His lawyer conceded that German had likely waived his right to testify—and that, even if he had not, the lawyer had advised him against it. Id. The Court warned German that he would be cross-examined, id. at 738-39, and added: id. at 740:13-18. When German insisted, the court agreed to allow him to testify. Id. at 743.
But, when the jury returned from a short recess, German had changed his mind again: now, he said, he wished to remain silent. Id. at 749. The court allowed German to discuss the decision further with his lawyer—after which German told the court that he had decided not to testify after all, that remaining silent was "without question . . . the correct decision," and that he fully understood his lawyer's advice. Id. The court warned German that, "if you want the trier of fact to know something, the only way you can do that is by testifying." Id. at 750:19-21. Despite this admonition, German reiterated his decision not to testify. Id. at 751. German's lawyer then gave the second half of his bifurcated closing argument. Id. at 756.2
After closings, the court instructed the jury on the elements of first-degree murder and its lesser-included offenses: second-degree murder with a firearm; second-degree murder; third-degree murder with a firearm;...
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