Johnson v. Wainwright

• Decision Date: 02 December 1985
• Docket Number: No. 85-3057,85-3057
• Citation: 778 F.2d 623
• Parties: Larry J. JOHNSON, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections, Respondent- Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 623

778 F.2d 623

Larry J. JOHNSON, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections, Respondent- Appellee.

No. 85-3057.

United States Court of Appeals Eleventh Circuit.

Dec. 2, 1985.

Baya Harrison, Tallahassee, Fla., Steven L. Seliger, Quincy, Fla., for petitioner-appellant.

Mark Menser, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before VANCE, HENDERSON and CLARK, Circuit Judges.

VANCE, Circuit Judge:

The petitioner, Larry Joe Johnson, is a Florida inmate who was sentenced to death and to a consecutive life sentence for robbing and murdering a service station operator. He now appeals the district court's denial of his motion for habeas corpus relief, contending that his conviction and/or sentence were invalid on six constitutional grounds. We affirm.

I

Johnson was charged with robbing and fatally shooting James Maxwell Hadden on March 16, 1979. The state's case in the guilt phase ¹ was based primarily on the testimony of Patty Burks, a seventeen year old girl who had accompanied Johnson for two weeks on a trip from Kentucky to Florida. According to her testimony, she and Johnson had decided earlier in the day to leave Florida and go to Minnesota where she had relatives. As they drove west on Interstate 10, Johnson stopped at a Shell service station in Lee, Florida, and told Burks to go inside to buy some cigarettes. While she was inside, Johnson entered carrying a sawed-off 12 gauge shotgun and told Hadden, the attendant, to open the cash register. At Johnson's direction Burks removed the money and started out the door. As she looked back she saw Johnson shoot Hadden. In the car afterward, Johnson told Burks that the attendant had a gun, and "it was us or him." He also told Burks that "dead witnesses don't talk."

After the shooting, Johnson and Burks drove to Burks' hometown of Beaver Dam, Kentucky. While Johnson waited down the road in his car, Burks telephoned her mother from a friend's home and told her about the shooting. Police arrived, arrested Johnson, and confiscated the gun and shells from his car. Fingerprints taken from the service station and testimony by a firearms expert were consistent with Burks' testimony. Based on this and other evidence, the jury found Johnson guilty of first degree murder and robbery with a firearm.

In the penalty phase, the state supported its request for the death penalty with evidence that Johnson was on parole for second degree assault at the time of the killing. Johnson introduced mitigating evidence in the form of testimony by family members, along with testimony and documentary evidence from psychologists that Johnson's actions were the result of "post-traumatic stress disorder" (PTSD), an emotional disorder resulting from his experiences in Vietnam. The state countered the psychological evidence with its own psychiatric testimony that Johnson was not suffering from PTSD. At the conclusion of the penalty proceeding, the jury recommended death for the murder and a consecutive life sentence for the robbery. The trial court then issued an opinion in which it adopted the jury's recommendation and set out findings that the crime was committed under three statutory aggravating circumstances and no mitigating circumstances. ²

On November 17, 1983 the Florida Supreme Court affirmed both of the convictions and sentences, and on January 16, 1984 it denied rehearing. Johnson v. State, 442 So.2d 185 (Fla.1983). The United States Supreme Court denied Johnson's petition for certiorari. Johnson v. Florida, 466 U.S. 963, 104 S.Ct. 2182, 80 L.Ed.2d 563 (1984). On January 23, 1985 the Circuit Court of the Third Judicial Circuit of Florida denied Johnson's Rule 3.850 motion for post-conviction relief without hearing. The Florida Supreme Court affirmed the denial on January 28, also denying Johnson's petition for a writ of habeas corpus. Johnson v. Wainwright, 463 So.2d 207 (Fla.1985). The same day, Johnson filed a federal habeas corpus petition and a motion for stay of execution in the United States District Court for the Northern District of Florida. On January 29, the district court denied the writ but granted a certificate of probable cause. This court stayed the execution pending further order.

II

A. DUAL ROLE OF THE SHERIFF

Johnson's first argument for reversal is that he was denied his right to a fair trial and reliable sentence when the Madison County Sheriff both acted as bailiff and assisted the prosecution by investigating the crimes and aiding counsel during jury selection. According to petitioner, a number of Supreme Court cases establish that such a dual role violated his due process rights by improperly blending the neutral and adversarial functions of the criminal justice system. Johnson argues further that a showing of actual prejudice need not be made because the sheriff's dual role constituted a per se constitutional violation under Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965).

In Turner, two deputy sheriffs served dual roles as principal prosecution witnesses and jury custodians. Concluding that "it would be blinking reality not to recognize the extreme prejudice inherent in this continual association throughout the trial between the jurors and these two key witnesses for the prosecution," 379 U.S. at 473, 85 S.Ct. at 550, the Court reversed judgment without requiring a showing of actual prejudice. The Court was concerned that the witnesses' roles as officers of the court was so likely to make the jury give particular credence to their testimony that the defendant was deprived of his right to a fair weighing of the evidence. Similarly, in Gonzales v. Beto, 405 U.S. 1052, 92 S.Ct. 1503, 31 L.Ed.2d 787 (1972), the Court found inherent prejudice when the county sheriff served both as key prosecution witness and as bailiff.

We agree that the concerns that motivated the Court to find constitutional violations in Turner and Gonzales are relevant here. Because a bailiff's exercise of his official duties is likely to give him added legitimacy in the eyes of a jury, see Parker v. Gladden, 385 U.S. 363, 365, 87 S.Ct. 468, 470, 17 L.Ed.2d 420 (1966), any participation he may have in the prosecution of the case carries at least the potential for prejudice. Whether that potential is so great as to warrant a per se rule of reversal depends, however, on how central a role he plays in the proceedings. See Gonzales, 405 U.S. at 1056, 92 S.Ct. at 1505 (Stewart, J., joined by Marshall & Douglas, JJ., concurring in the judgment). When either the individual's official contact with the jury or his participation in the prosecution is so minimal in the jurors' eyes as to have a de minimis impact on the jury's deliberations for all apparent purposes, some showing of actual prejudice must be made. See id. at 1054-55, 92 S.Ct. at 1504-05.

This, we believe, was such a case. Petitioner points out that the sheriff directly participated in the pretrial investigation, that his name came up during the testimony of several prosecution witnesses, and that he aided in the process of selecting the jury. Yet the sheriff never took the witness stand, and there has been no allegation that the jury even knew of his participation in the jury selection process. Given that the sheriff's participation in the state's actual presentation of its case was at most peripheral as far as the jury could tell, petitioner presents no more than a speculative possibility that the sheriff's dual role influenced its deliberations. Since a per se rule of reversal is therefore inapposite, and since the petitioner has made no showing of actual prejudice, we reject his first argument.

B. PETITIONER'S ABSENCE DURING SENTENCING PHASE

Petitioner's second ground for reversal has to do with his absence from the courtroom during a portion of the sentencing phase of the trial. Petitioner's absence occurred at the request of his own lawyer because one of the psychologists called by the defense asked that he not be present while she testified as to the results of her evaluation. ³ Johnson now alleges that his removal amounted to a violation of his fifth, sixth, eighth and fourteenth amendment rights.

We refrain from considering this issue because the petitioner waived his right to assert it on habeas corpus by failing to comply with Florida's procedural rule requiring assertion of such a claim on direct appeal. See Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Johnson offers two rationales for holding that procedural default should not be found in this case. First, he asserts that the Florida Supreme Court waived the procedural bar by ruling on the merits of the issue in his state habeas corpus proceeding. Second, he claims that he has demonstrated cause for and prejudice from the failure to press his claim in the state proceeding, thereby excepting this claim from the Sykes/Isaac procedural default rules. We cannot find merit in either of these contentions.

According to our reading of the Florida Supreme Court's opinion, that court made clear that it was not considering petitioner's claim on its merits, but rather was only considering whether his appellate counsel's failure to assert it on direct appeal amounted to ineffective assistance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984). The court noted, for example, that "although the petitioner argues that relief should be granted because the omitted point of appeal, had it been argued, would have been found meritorious ..., the merits of that legal point" were not before the court. Johnson v. Wainwright, 463 So.2d 207, 209-10 (Fla.1985). Later, the court reiterated that it would "not reach the question of whether petitioner's...