Irwin v. Singletary, 93-1010-CIV-T-17A.

• Decision Date: 13 April 1995
• Docket Number: No. 93-1010-CIV-T-17A.,93-1010-CIV-T-17A.
• Citation: 882 F. Supp. 1036
• Parties: Michael IRWIN, Petitioner, v. Harry K. SINGLETARY, Jr., Respondent.
• Court: U.S. District Court — Middle District of Florida

882 F. Supp. 1036

Michael IRWIN, Petitioner, v. Harry K. SINGLETARY, Jr., Respondent.

No. 93-1010-CIV-T-17A.

United States District Court, M.D. Florida, Tampa Division.

April 13, 1995.

Michael A. Irwin, Starke, FL, pro se.

Stephen Allan Baker, Atty. General's Office, Dept. of Legal Affairs, Tampa, FL, for respondent.

ORDER

KOVACHEVICH, District Judge.

This cause is before the Court on Petitioner's petition for writ of habeas corpus (Docket No. 1), and Respondent's motion to dismiss (Docket No. 8).

PROCEDURAL HISTORY

On November 17, 1983, the State Attorney for the Sixth Judicial Circuit, in and for Pinellas County, Florida, filed an indictment against Petitioner, Michael Irwin. The indictment charged Petitioner with a sexual battery on Anne Marie Irwin, his two and a half year old sister. The sexual battery allegedly occurred between March 1, 1983, and July 18, 1983 (R5-6).¹ Petitioner entered a not guilty plea (R7) and was tried before a jury from July 25, 1984, to July 28, 1984 (R441, 633, 785, 959). On July 28, 1984, the jury returned a verdict finding Petitioner guilty as charged (R76).

On August 6, 1984, Petitioner filed a Motion for New Trial. Petitioner subsequently filed an Amended Motion for New Trial on September 12, 1984. The circuit court denied the motion on October 5, 1984 (R102). On October 9, 1984, the circuit court sentenced Petitioner to life imprisonment with twenty-five (25) years minimum mandatory and credit for four hundred forty-eight (448) days time served (R103-07).

On October 18, 1984, Petitioner filed his notice of appeal (R109). Petitioner raised five grounds on appeal:

Ground One: The trial court committed reversible error when it refused to allow Petitioner to backstrike a prospective juror prior to the swearing of the jury panel.

Ground Two: The trial court erred when it denied Petitioner's motion in limine and allowed the use of hearsay of the incompetent child victim as repeated by the mother and Detective William Goatcher.

Ground Three: The trial court erred in overruling Petitioner's objections to a comment on his right to remain silent.

Ground Four: The trial court erred in not granting a mistrial based on prejudicial comments.

Ground Five: The trial court erred in denying Petitioner's motion for new trial based on newly discovered evidence.

On October 25, 1985, the Second District Court of Appeal issued a per curiam affirmance of Petitioner's conviction. Irwin v. State, 479 So.2d 122 (Fla. 2d DCA 1985). In its opinion, the district court of appeal cited to Rivers v. State, 458 So.2d 762 (Fla.1984) (holding that trial court's non-compliance with rule that provides that defendant may challenge a prospective juror before the juror is sworn was harmless error where defendant did not subsequently attempt to backstrike any prospective jurors and where evidence of defendant's guilt was overwhelming), and Jones v. State, 332 So.2d 615 (Fla. 1976) (holding that noncompliance with rule providing that defendant may challenge a prospective juror up to the time he or she is sworn to try the case was harmless error where the evidence, though circumstantial, was so clear and convincing as to leave no reasonable doubt that defendant was guilty).²

Thereafter, Petitioner alleges that he filed an application for a writ of habeas corpus with the United States District Court for the Southern District of Florida, raising the same grounds that he raised on appeal. On November 14, 1988, the court allegedly dismissed Petitioner's application for failure to prosecute.

Petitioner filed his present federal petition for writ of habeas corpus on June 21, 1993. Petitioner raises the same grounds that he raised in his appeal with the exception of ground two, regarding the trial court's denial of his motion in limine, which Petitioner has not included in the petition. Respondent does not challenge exhaustion of state court remedies.

Having reviewed the record, the Court has determined that Petitioner has failed to raise any claim that merits habeas relief for the following reasons.

DISCUSSION

Petitioner raises four grounds for federal habeas relief in his Petition:

Ground One: The trial court committed reversible error when it refused to allow Petitioner to backstrike a prospective juror prior to the swearing of the jury panel.

In support of Ground One: The trial court allowed backstriking during the selection of the initial six prospective jurors, but refused to allow backstriking during the selection of the alternate juror. Before the swearing of the jury, the trial court excused one of the prospective jurors and filled the vacant spot with the alternate juror. Over the Petitioner's objection, the trial court refused to allow Petitioner to use one of his remaining strikes on the new prospective juror.

Ground Two: The trial court erred in overruling Petitioner's objections to a comment on his right to remain silent.

In support of Ground Two: Detective William Goatcher examined Petitioner shortly after his arrest. Detective Goatcher testified at trial that he ended the examination when Petitioner became uncooperative. Petitioner alleges that this testimony amounted to a comment on his right to remain silent.

Ground Three: The trial court erred in not granting a mistrial based on prejudicial comments.

In support of Ground Three: At trial, Respondent repeatedly informed the jury that the victim would not be testifying due to her young age, referred to other sexual batteries by stating that penetration was recurrent, bolstered the credibility of a State witness, and commented about other babies being raped in the world. Petitioner submits that the combined effect of these prejudicial comments was the denial of his right to a fair trial.

Ground Four: The trial court erred in denying Petitioner's motion for new trial based on newly discovered evidence.

In support of Ground Four: Petitioner alleges that Mrs. Irwin, during her deposition, failed to disclose that she had taken the victim to see a family doctor almost three months after Petitioner's arrest. Petitioner submits that if the Irwin's family doctor had testified as to the recurring problem of redness in the victim's genital area, months after Petitioner's arrest, there would not have been enough evidence against him to result in a conviction.

Ground One

Petitioner claims that the trial court erred when it refused to allow him to backstrike a prospective juror prior to the swearing of the jury panel. During voir dire, Petitioner exercised six (6) of his ten (10) possible peremptory challenges (R585, 590, 685, 687). Six (6) prospective jurors were chosen by the end of the day of July 25, 1984. The court announced the names of the six (6) prospective jurors and subsequently selected Jose Perez as an alternate juror (R680-90). Although the court had allowed backstrikes during the selection of the initial six (6) prospective jurors (R583, 590), it refused to allow backstrikes during the selection of the alternate juror (R688-89). Neither party objected to the selection of Jose Perez as the alternate juror (R705). The court then excused the jurors without swearing them in (705-07).

The next morning, the court was advised that one of the prospective jurors had read a newspaper article regarding Petitioner's case (R743). Because the article contained information that would be inadmissible at trial, the court excused the prospective juror and seated Mr. Perez in his place (R754). At that time, Petitioner attempted to exercise a peremptory challenge on Mr. Perez (R754). Over Petitioner's objections, the court ruled that it would not allow the strike as the court had completed the jury selection process on the previous day (R754, 762, 772). The court then swore in the jury panel (R775, 780-81).

Petitioner claims that he had the right to peremptorily challenge any juror, including Mr. Perez, up until the time that the jury was sworn.³ See Jackson v. State, 464 So.2d 1181 (Fla.1985) (holding that a trial judge has no right to infringe upon a defendant's right to challenge a juror prior to the time that the jury is sworn). This Court must determine whether the trial court denied Petitioner his Sixth Amendment guarantee to an impartial jury when it refused to allow Petitioner a statutorily mandated peremptory challenge. This Court concludes that it did not.

The Seventh Circuit Court of Appeals dealt with this precise question in Watson v. Camp, 848 F.2d 89, 92 (7th Cir.1988), cert. denied, 488 U.S. 863, 109 S.Ct. 164, 102 L.Ed.2d 134 (1988).⁴ In Watson, the trial court denied the defendant a peremptory challenge in violation of an Illinois law which provided that each party should have an additional peremptory challenge for each alternate juror. Id. at 90. Since one alternate was selected, each party was entitled to one extra peremptory challenge. Id. However, the trial court denied the defendant's request for an additional challenge. Id. That error would have been of no consequence had the alternate juror not been seated. However, on the second day of trial, circumstances forced the court to dismiss a juror for cause and seat one of the alternate jurors. Id. The judge refused to let the defendant use his final peremptory challenge to dismiss the alternate juror. Id.

After the state appellate court affirmed the conviction, the defendant filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Id. at 90. The district court granted the writ, holding that "any diminution of the statutory right to peremptory challenges violates the sixth amendment, applied to the states through the fourteenth amendment's due process clause." Id.

The Seventh Circuit Court of Appeals reversed the district court's decision. The court, while recognizing that there is no general constitutional right to a particular number of peremptory challenges, held that the denial of one peremptory challenge to each side, when a number of others have been provided,...