Hall v. Warden

• Court: U.S. Court of Appeals — Eleventh Circuit
• Writing for the Court: PER CURIAM
• Decision Date: 20 April 2017
• Docket Number: No. 14-14619,14-14619
• Citation: Hall v. Warden, No. 14-14619 (11th Cir. Apr 20, 2017)
• Parties: MICHELLE GARNER HALL, Petitioner-Appellant, v. WARDEN, LEE ARRENDALE STATE PRISON, Respondent-Appellee.

MICHELLE GARNER HALL, Petitioner-Appellant, v. WARDEN, LEE ARRENDALE STATE PRISON, Respondent-Appellee.

No. 14-14619

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

April 20, 2017

[DO NOT PUBLISH]

D.C. Docket No. 3:13-cv-00097-WBH

Appeal from the United States District Court for the Northern District of Georgia

Before TJOFLAT and MARTIN, Circuit Judges, and ROSENTHAL,^* District Judge.

PER CURIAM:

Michelle Hall is serving a life sentence in Georgia state prison for shootingher husband to death during an argument in their home. The only other person in the house at the time was Ms. Hall's eight-year-old daughter, Alyssa, who was in another room and heard but did not see the argument and the shooting.

At her trial approximately a year later, Ms. Hall used the audio recording of the statement she made when she called the 911 operator and the video recording of her statements to law enforcement to raise the defenses of justification and accident. Her defenses were that she and her husband had struggled because she was trying to prevent him from killing her and then himself, and that he was fatally wounded when the gun accidentally discharged in the struggle. Alyssa, testifying for the State, told the jury that from her bedroom over the room where the couple argued and struggled, she heard her stepfather say "put the gun down," and "Michelle, don't do this," followed by gunshots.

The trial judge had Alyssa testify through a closed-circuit video feed, separated from the jury and the defendant. Alyssa testified in the judge's conference room, with the trial judge, the prosecutor, and Ms. Hall's defense counsel present. The jury and Ms. Hall were in the courtroom and watched the testimony on a television screen displaying the video feed. Ms. Hall could not talk with or send to, or receive written notes from, her lawyer, or communicate with him in any way, during Alyssa's testimony. Although Ms. Hall and her lawyer knew that Alyssa would be testifying via closed-circuit television, they had noprior notice that during her testimony, they would be in separate rooms with no way to communicate with each other.

The jury convicted Ms. Hall of malice murder, felony murder, and aggravated assault. She was sentenced to life in prison. After an unsuccessful direct appeal and collateral proceedings in the Georgia state courts, she petitioned for a writ of habeas corpus under 28 U.S.C. § 2254. The federal district court denied the petition but granted a certificate of appealability limited to her "claim of ineffective assistance of appellate counsel."

Our review of the record shows that the Georgia Supreme Court's denial of Ms. Hall's claim was contrary to clearly established Supreme Court precedent. Ms. Hall received constitutionally ineffective assistance when her appellate counsel failed to raise any claim based on Ms. Hall's inability to communicate with her trial counsel during the testimony of the State's star witness. The failure to do so was deficient, and there is a reasonable probability that the claim would have changed the outcome of the direct appeal. We therefore reverse and remand with instructions that the district court order the State to grant Ms. Hall a new direct appeal.

I. BACKGROUND

A. Trial and Direct Appeal

Ms. Hall was tried in September 2009. After jury selection, the judge asked the lawyers on the record if they were "in agreement" about "the procedure in the event the child testifies live." The prosecutor responded, "I believe so." The judge then stated, "It will be done by closed circuit," and the prosecutor interrupted, "Yes, yes, yes. We addressed that in the back." The prosecutor told the court that he and Ms. Hall's attorney had agreed to have Alyssa testify over closed-circuit television, rather than in front of the jury and the defendant. The prosecutor identified Georgia Code § 17-8-55 as authority for this procedure.

The Georgia statute in effect at the time stated that "sex offense victims under 10 years of age" could have their testimony "taken outside the courtroom and shown in the courtroom by means of a two-way closed circuit television" if "[t]he judge determines that testimony by the child victim in the courtroom will result in the child's suffering serious emotional distress such that the child cannot reasonably communicate." Ga. Code Ann. § 17-8-55(a)(2) (2009).¹ Under the statute, the judge, the prosecutor, and the defense attorney would be the only ones allowed in the room where the child was testifying. Id. § 17-8-55(d).² But the statute also stated that "[t]he defendant shall be allowed to communicate with thepersons in the room where the child is testifying by any appropriate electronic method." Id. § 17-8-55(f).

This statute did not apply to authorize the procedure the court used in Ms. Hall's trial. Alyssa was not a sex-offense victim, the judge made no determination of serious emotional distress if she testified in court, and no provision was made for Ms. Hall to communicate with those in the room where Alyssa testified.

The next morning, the judge confirmed that Alyssa would testify "by close-circuit." Ms. Hall's lawyer replied, "Yes. I have no problem with that." There was no mention that Ms. Hall would be separated from her lawyer during Alyssa's testimony and unable to communicate with him. Ms. Hall's attorney testified that he consented to the closed-circuit-television procedure only to prevent the State from admitting two prior statements Alyssa had made, an audio statement recorded the night of the murder and a videotaped statement taken several days later. In both statements, Alyssa told police what she heard the night of the murder. Ms. Hall's attorney objected on the basis of hearsay. The trial judge agreed that neither recorded statement would be admitted, but he did not want to "deprive the State of [its] only witness." The compromise was that Alyssa would testify in-person but via a video feed to prevent her from "freez[ing] up in front of the jury," and her prior statements would not be played.

Before Alyssa began testifying, the court explained to the jury that she would "be testifying via closed circuit so that she is not in front of . . . the defendant when she testifies." The court took a 15-minute recess. When the jury reentered the courtroom, the judge told them that "we're going to give the IT department the lunch hour to work out some technical difficulties," and another witness testified. The jury then left the courtroom for an hour-long lunch. When the jurors returned, the court explained:

Ladies and gentlemen, there's a provision under Georgia law that allows a child witness like Alyssa in circumstances like these to be questioned outside the presence of the audience and the jurors and defendant. So what we're going to do is [the prosecutor, Ms. Hall's trial attorney], and I, and Alyssa, will [be] going to go into my conference room in the back, and you will be viewing and listening to her testimony through a closed-circuit video connection to this screen. So we're going to adjourn to my chambers, and you'll be hearing from Alyssa . . . .

Again, this arrangement did not allow communication between Ms. Hall and her lawyer.

Alyssa testified on direct that she was watching television when she heard her mother and stepfather "talking real loud" in the kitchen. She ran to her upstairs bedroom and heard Ms. Hall yell at her to stay there. Some minutes later, Alyssa heard her stepfather say, "Put the gun down," and then, "Michelle, don't do this." She then heard gunshots. Ms. Hall's attorney cross-examined without any ability to communicate with his client, the witness's mother.

Matters got worse. The courtroom lost the audio feed from the judge's conference room several times. The judge described the situation to the jury as an "electronic fiasco" and took a recess for court personnel to try to fix the problem. When Alyssa's testimony ended, Ms. Hall's attorney returned to the courtroom. He found Ms. Hall "in tears" because "she couldn't hear half the audio."

In addition to Alyssa's testimony, the jury also heard the audio recording of the 911 call from Ms. Hall and watched the video recording of Ms. Hall's statements to the police. In the recordings, Ms. Hall first said that her husband had shot at her and then shot himself. In a later statement, she told the police that her husband was fatally shot when the gun accidentally discharged as they struggled and as she tried to keep him from killing her and then himself.

Despite defense counsel's efforts, the trial judge found that defense counsel's cross-examination of Alyssa opened the door for admitting the audio-recorded statement she had given to the police. This audio recording was played before the jury, for the stated purpose of bolstering Alyssa's credibility.

The jury convicted Ms. Hall of malice murder, felony murder, and aggravated assault. Ms. Hall's direct appeal brief (signed by the same lawyer who represented her at trial) did not raise a claim based on the loss of her right to communicate with her lawyer during the testimony of the only witness to the shooting.

B. State Habeas

Ms. Hall's state habeas petition asserted that both her trial counsel and appellate counsel were ineffective. The trial court held an evidentiary hearing. Both Ms. Hall and her defense counsel testified that Ms. Hall had actively helped her attorney examine witnesses during the trial, except during Alyssa's testimony. Ms. Hall's assistance extended to proposing specific questions that her lawyer used to examine witnesses at trial. Ms. Hall told the court that had she been able to communicate with her lawyer when Alyssa testified, she would have provided him specific information about Alyssa to guide his cross-examination and suggested specific questions for him to ask. Ms. Hall confirmed that she was told that Alyssa would testify outside her presence, but she was not asked whether she agreed. Ms. Hall testified that she...