Johnson v. Moore
| Decision Date | 30 March 2007 |
| Docket Number | No. 8:02-cv-1003-T-23EAJ.,8:02-cv-1003-T-23EAJ. |
| Citation | 493 F.Supp.2d 1236 |
| Parties | Derrick JOHNSON, Petitioner. v. Michael W. MOORE, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Rochelle Anne Reback, Law Office of Rochelle A. Reback, Tampa, FL, for Petitioner.
John M. Klawikofsky, Office of the Attorney General, Tampa, FL, for Respondent.
Michael W. Moore moves (Doc. 56) to alter or amend the judgment. Although Moore's motion inexcusably fails to include pertinent record citations and asserts legal principles without citation of legal authority (in both instances shifting to the court the duty to search), this order addresses each ascertainable argument advanced by Moore in his motion:
HARMLESS ERROR — FIRST PART
Moore first claims that the order fails to address "harmless error."
Ross v. United States, 289 F.3d 677, (11th Cir.2002), reh'g and reh'g en banc denied, 46 Fed.Appx. 960 (11th Cir.2002) cert. denied, 537 U.S. 1113, 123 S.Ct. 944, 154 L.Ed.2d 787 (2003), authoritatively states the standard applicable to "harmless error" analysis in federal habeas corpus review of state convictions:
The parties dispute precisely what harmless-error standard is applicable in this case. In Brecht v. Abrahamson, 507 U.S. 619, 636-38, 113 S.Ct. 1710, 1721-22, 123 L.Ed.2d 353 (1993), the Supreme Court concluded that the appropriate standard for reviewing the harmlessness of a non-structural constitutional error on collateral review of a state court judgment is the standard enunciated in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Under that standard, a defendant is entitled to habeas relief when an error results in actual prejudice because it "had substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 638, 113 S.Ct. at 1722. Ross, however, contends that the instructional error in this case should be evaluated under the harmless-beyond-a-reasonable-doubt standard of Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).
. . . .
We conclude that ... application of the Brecht standard to Richardson[ v. U.S., 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999)] error on collateral appeal is the appropriate approach. In this Circuit, we apply the Brecht harmless error standard to the habeas review of federal court convictions, as well as state court convictions. See Vines v. United States, 28 F.3d 1123, 1130 (11th Cir.1994).
289 F.3d at 682. Further, the Eleventh Circuit expounds the method by which the district court in a habeas corpus review arrives at a decision about the harmlessness of an error:
When reviewing the harmlessness of an error under the Brecht standard, "[i]f, when all is said and done, the [court's] conviction is sure that the error did not influence, or had but very slight effect, the verdict and the judgment should stand." O'Neal v. McAninch, 513 U.S. 432, 437, 115 S.Ct. 992, 995, 130 L.Ed.2d 947 (1995) (quoting Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). But if a federal court is "in grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury's verdict, that error is not harmless." Smith v. Singletary, 61 F.3d 815, 818-19 (11th Cir.1995) (quoting O'Neal, 513 U.S. at 436, 115 S.Ct. 992, 130 L.Ed.2d 947) (applying Brecht standard).
289 F.3d at 683. The Kotteakos standard applies to habeas review of all "trial errors" (but not "structural errors"), even those to which the Constitution requires a state court to apply the Chapman standard ("harmless beyond a reasonable doubt").
Did the state court's constitutional error during Derrick Johnson's trial have "a substantial and injurious effect or influence in determining the jury's verdict"? The opinion granting the writ of habeas corpus dedicates forty-three pages to a painstaking review of both fact and law, all of which is directed to answering this question with an emphatic "yes." The highlights are:
Page two of the order, which states:
[T]he sole and governing issue at trial was Johnson's claim of [the complainant's] consent [to sexual intercourse] in exchange for drugs ..
Pages three and four of the order, which state:
... (1) despite the representation that the assailant touched many items inside the home, Johnson's fingerprints were not recovered from the alleged crime scene, either inside or outside the burglarized home; (2) despite testing, the bed sheets contained no hair or bodily fluid matching Johnson's, no bodily fluid matching the complainant's (even though she claimed she was menstruating at the time of the alleged rape), and no other physical evidence to support the rape allegation; and (3) despite the claim of a burglary, the police found no point of entry (all windows were securely protected with "burglar bars") and no evidence that a door had been forced.
Pages thirty-three, thirty-four, and thirty-five of the order, which state:
At the moment that the trial judge confronted the proffered testimony of Pernell Davis, the outcome of the case was starkly contingent upon the single question of the complainant's credibility. ... [T]he only evidence placing Johnson inside the residence and in the complainant's bed is the testimony of the complainant and the shaky, equivocal testimony of the complainant's brother.
The complainant's credibility was manifestly the linchpin of the state's case. Establishing mendacity in her testimony about her sexual history and about her attitude toward drug usage would directly and crucially suggest mendacity in her testimony about her sexual encounter with Johnson. In this context, the trial judge considered Pernell Davis's proffered testimony. ...
Pages forty and forty-one, which discuss the trial judge's unaccountable ruling and explore the ruling's consequences:
The inevitable followed in due course after the exclusion of Pernell Davis's testimony. The prosecution during summation pounded into the jury the testimony about the alleged rape, the alleged sexual inexperience, and the alleged abhorrence of drugs. Not content to argue from the admitted evidence, the prosecution pounded into the jury the absence of responsive evidence from Johnson, i.e., the absence of evidence establishing a history of meretricious sexual activity or drug use by the complainant. ... The prosecutor argued audaciously and opportunistically, having procured exclusion on the basis of Florida's rape shield law of the exact evidence he boldly claimed was lacking.
Page forty-one, which concludes the analysis and characterizes the effect of this erroneous ruling:
The trial of Derrick Johnson was deeply flawed, pointedly imbalanced, and fundamentally unfair, owing principally to denial of Johnson's well-established constitutional right to present a defense and establish his innocence.
Perhaps the order ought to have included "and not harmless" after "deeply flawed, pointedly imbalanced, and fundamentally unfair." Therefore, the order is amended to include "and not harmless" at that point on page forty-one. As expounded in the order at length and as is obvious to any disinterested observer, the unconstitutional exclusion of Pernell Davis's testimony, vital corroboration scheduled to occur at the close of the defense case as the final testimonial statement by the defense to the jury, "had a substantial and an injurious effect or influence in determining the jury's verdict," and the order is amended to so state on page forty-one.
Moore argues that the trial court's exclusion of Pernell Davis's testimony is harmless because Derrick Johnson would receive a life sentence for either offense of conviction and because Pernell Davis's testimony pertains only to the rape and not to the burglary. This argument boldly ignores the obvious but intimate factual nexus between the two crimes — sexual battery and burglary with assault or battery. At pages three and four, Johnson's (supplemental) response to Moore's motion to alter or amend the judgment emphatically disposes of Moore's claim:
Here, in order for the State to convict the Petitioner of the 1st degree "burglary with assault or battery" under § 810.02(2)(a), and thereby subject him to a life sentence on this count of conviction, the State would also have had to prove the additional element that an assault or battery, or in this case, that the sexual battery as charged and identified in the Information, took place as part of the same criminal episode as the underlying burglary itself.
This makes the question of whether the sexual battery even occurred as charged to be of critical relevance to the "burglary with assault or battery" charge as well. In other words, proof of the sexual battery, or conversely, competent evidence which impeached the proof of the sexual battery, was also of critical relevance to the 1st degree "burglary with assault or battery" conviction in this case, and the erroneous exclusion of the Davis testimony which prevented Petitioner from adequately developing his theory of defense to the charge of "sexual battery with threat of violence" was as equally "not harmless" to the burglary charge as "not harmless" to the sexual battery charge.
Furthermore, if the jury had been allowed to hear the defense evidence and then determined that the State had not proved the "sexual battery with threat of violence" beyond a reasonable doubt as charged, then even if they had convicted the Petitioner of a different or lesser burglary, that burglary offense could have at most amounted only to the lesser 2d degree felony burglary with a maximum possible sentence of no more than fifteen (15) years under F.S. § 775.082(c).
Moore's second argument for "harmless error" is rejected for the reason stated by Johnson.
Citing Section 90.104(1)(b), Florida Statutes,...
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