Jones v. Dugger, No. 89-3772

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Before TJOFLAT, Chief Judge, FAY and ANDERSON; ANDERSON
• Citation: 928 F.2d 1020
• Parties: 32 Fed. R. Evid. Serv. 827 Leo Alexander JONES, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent-Appellee.
• Docket Number: No. 89-3772
• Decision Date: 03 April 1991

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928 F.2d 1020 32 Fed. R. Evid. Serv. 827 Leo Alexander JONES, Petitioner-Appellant,
v.
Richard L. DUGGER, Secretary, Florida Department of
Corrections, Respondent-Appellee. No. 89-3772. United States Court of Appeals,
Eleventh Circuit. April 3, 1991.

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Billy H. Nolas, Office of Capital Collateral Representative, Gail E. Anderson, Tallahassee, 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 Middle District of Florida.

Before TJOFLAT, Chief Judge, FAY and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

Appellant Leo Alexander Jones ("Jones"), a prisoner awaiting execution on

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Florida's death row, appeals from the district court's denial of his petition for a writ of habeas corpus. For the reasons stated below, we affirm the district court's decision to deny the writ.

I. FACTS AND PROCEDURAL HISTORY

In the early morning hours of May 23, 1981, Officer Thomas J. Szafranski, a Sheriff's Deputy in Jacksonville Florida, had concluded his police business in the vicinity of Davis and 6th Streets in Jacksonville. While attempting to leave the area, a bullet entered his patrol car and killed him. The shot was traced to a vacant apartment on the ground floor of a nearby building. A search of Jones' upstairs apartment in that building revealed a cache of weapons, one of which, a .30-.30 Winchester Marlin rifle, was marked with Jones' fingerprints and contained a spent shell casing consistent with the bullet that killed Officer Szafranski. According to testimony adduced at trial, during the same time frame that Szafranski was shot, Jones went out the back door of his apartment with rifle in hand, fired a shot, and returned to the apartment still holding the rifle. The police arrested Jones a few hours later.

After his arrest, Jones signed a statement in which he confessed to shooting Szafranski from the downstairs vacant apartment. Jones told another officer that he was tired of the police hassling him, that the police were not the only ones who had guns, and that he was going to shoot a "____ pig." ¹

A jury convicted Jones of first degree murder on October 2, 1981. After hearing the evidence relevant to sentencing, the same jury recommended that Jones be put to death. At a November 6, 1981 sentencing hearing, the trial judge followed the jury's recommendation. The conviction and sentence were affirmed on direct appeal to the Florida Supreme Court. See Jones v. State, 440 So.2d 570 (Fla.1983). That court also denied a subsequent petition for state habeas relief primarily alleging ineffectiveness of counsel. See Jones v. Wainwright, 473 So.2d 1244 (Fla.1985).

Jones next filed a motion for post-conviction relief pursuant to Fla.R.Crim.P. 3.850. The trial court denied the motion after holding an evidentiary hearing on the ineffectiveness of counsel claim. The Florida Supreme Court affirmed. See Jones v. State, 528 So.2d 1171 (Fla.1988). Yet another petition for state habeas relief was subsequently denied. See Jones v. Dugger, 533 So.2d 290 (Fla.1988). Jones then filed the instant federal habeas action pursuant to 28 U.S.C. Sec. 2254. After hearing oral argument, the district court denied relief without holding an evidentiary hearing.

II. DISCUSSION

A. The Booth Claim

Appellant's first argument is that the sentencing judge and jury improperly relied on "victim impact evidence" in reaching the decision to impose the death penalty. Information about the victim was contained in the presentence investigation report and the judge's sentencing order. In addition, Jones argues that the prosecutor presented information regarding the murder's impact on the community to the sentencing jury through argument and a witness, Sheriff Carson. Essentially, Sheriff Carson's testimony described the impact that Officer Szafranski's death had on Jacksonville law enforcement personnel. The prosecutor argued in part that the killing of a police officer was an attack on a symbol of law and order in our society. In Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), the Supreme Court held that "victim impact" evidence is inadmissible in the penalty phase of a capital case because of its propensity to inflame the jury and to shift the focus of the proceeding away from the defendant as an individual and the circumstances of the crime.

We need not address the merits of Jones' Booth argument because this claim is procedurally

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barred. ² See Jones v. Dugger, 533 So.2d 290, 292 (Fla.1988) (express statement that the Booth claim is procedurally barred). Despite the Florida Supreme Court's express statement that it considered Jones' Booth claim to be procedurally barred, Jones argues that there was no procedural default for two reasons. First, Jones argues that, contrary to the state court's conclusion, the Booth claim was fairly raised at trial and on direct appeal. Second, Jones asserts that the Florida Supreme Court's invocation of the bar in his case should not be honored by this court because the state court has not consistently applied its own procedural default rules to Booth claims. We find both of these arguments to be without merit.

To support his first argument, Jones points to a supplemental brief filed in the Florida Supreme Court on direct appeal. Jones contends that the supplemental brief raised the argument that both the jury's and the judge's decisions were tainted by improper victim impact evidence. After carefully reviewing the supplemental brief from the direct appeal and the other arguments made there, however, we cannot agree. In the supplemental brief, Jones argued that the trial court erroneously considered the victim's status as a police officer as a nonstatutory aggravating factor. The entire argument, in fact, was directed toward the issue of whether the fact that Jones killed a police officer was relevant to the statutory aggravating factor of hindering or disrupting law enforcement, see Fla.Code Sec. 921.141(5)(g), or other statutory aggravating circumstances. That argument did not fairly present the Booth issue argued on this appeal.

Jones' second argument is that the Florida Supreme Court does not consistently hold Booth claims to be procedurally defaulted. It is true that this court has held that "federal review of constitutional claims [will not be precluded] where the procedural requirement has been novel or sporadically applied." Spencer v. Kemp, 781 F.2d 1458, 1470 (11th Cir.1986). However, we do not find this to be the case here.

To support his argument, Jones relies heavily on Jackson v. Dugger, 547 So.2d 1197 (Fla.1989). In Jackson, the Florida Supreme Court heard the petitioner's Booth claim on the merits despite argument from the state that the claim was procedurally barred. However, Jackson is easily distinguished from the instant case. In Jackson, the court expressly stated that the Booth claim was raised both at trial and on direct appeal. Id. at 1199. Therefore, Jones' second argument rests on his first argument, i.e., that he raised his Booth claim despite the Florida Supreme Court's holding otherwise in Jones v. Dugger, 533 So.2d at 292. We have already rejected that argument above. Therefore, we hold that Jones' Booth claim is procedurally barred.

Jones could overcome the procedural default, however, by showing cause for the default and resulting prejudice. Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 2643-44, 91 L.Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Alternatively, Jones could overcome the procedural bar by showing that the failure of the federal courts to hear the claim on the merits would result in a fundamental miscarriage of justice. Murray v. Carrier, 477 U.S. at 496, 106 S.Ct. at 2649; Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986).

However, Jones does not argue either of the above exceptions to the procedural bar. Rather, Jones rests his argument that his Booth claim should be heard on the merits solely on the contention that we have already rejected--that there has been no procedural default. We decline to address the exceptions to the procedural default rule in the absence of any argument

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on appeal regarding their applicability. ³ Therefore, we decline to address Jones' Booth arguments on the merits because of the procedural bar. ⁴

B. The Confrontation Clause Claim

Jones next argues that the trial judge improperly restricted cross-examination during the guilt phase in violation of the Confrontation Clause. ⁵ Jones contends that the judge impermissibly precluded essential cross-examination of a prosecution witness, Bobby Lee Hammond. Hammond testified at trial that he was present in Jones' apartment the night of the murder and that, around the time of the shooting, he saw Jones leave the back door of the apartment with rifle in hand, heard a single shot, and then saw Jones return to the apartment with the rifle. Hammond had given a substantially consistent statement to the police after being arrested along with Jones. However, at the suppression hearing prior to Jones' trial, Hammond testified, inconsistently with his trial testimony, that he had not seen Jones with a gun, and explained his prior statement to the police by stating that he had initially told the police that he knew nothing about the shooting, but that after being threatened and beaten by the police, he had given the story to the police incriminating Jones.

At trial, the trial judge permitted Jones' attorney to cross-examine Hammond to bring out Hammond's testimony at the suppression hearing which was inconsistent with his trial testimony incriminating Jones. However, the trial judge refused to permit cross-examination to bring out Hammond's post-arrest statement to the police (consistent with his trial testimony) or...