Mann v. Dugger

• Decision Date: 14 May 1987
• Docket Number: No. 86-3182,86-3182
• Citation: 817 F.2d 1471
• Parties: Larry Eugene MANN, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1471

817 F.2d 1471

Larry Eugene MANN, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Florida Department of

Corrections, Respondent-Appellee.

No. 86-3182.

United States Court of Appeals,

Eleventh Circuit.

May 14, 1987.

Larry H. Spalding, Office of Capital Collateral Representative, Michael A. Mello, Mark Evan Olive, Billy H. Nolas, Tallahassee, Fla., for petitioner-appellant.

Michael Kotler, Gary Welch, Asst. Attys. Gen., Office of Atty. Gen., Tampa, Fla., for respondent-appellee.

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

Before FAY, JOHNSON and CLARK, Circuit Judges.

JOHNSON, Circuit Judge:

I

BACKGROUND

This case concerns an appeal from a denial of a writ of habeas corpus. Larry Eugene Mann was convicted in 1981 in a Florida state circuit court of first degree murder and kidnapping and sentenced to death. Because the Florida Supreme Court's opinion on direct appeal adequately provides the facts of this case, we will not detail those facts here. On direct appeal, the Florida Supreme Court affirmed the convictions but reversed the imposition of the death sentence. Mann v. State, 420 So.2d 578 (Fla.1982). On resentencing, the circuit court reimposed the death penalty, and the Florida Supreme Court subsequently affirmed the resentencing. Mann v. State, 453 So.2d 784 (Fla.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 953 (1985). After failing to receive executive clemency, Mann filed a motion to vacate the judgment and sentence pursuant to Fla.R.Crim.P. 3.850. Both the circuit court and the Florida Supreme Court denied him any relief. The Florida Supreme Court denied his petition for a writ of habeas corpus as well. Mann v. State, 482 So.2d 1360 (Fla.1986).

Mann then filed a petition for a writ of habeas corpus and a stay of execution in the United States District Court for the Middle District of Florida. The district court granted a stay of execution but after oral argument denied any habeas relief. This appeal followed. In this appeal Mann challenges his conviction on the sole ground that he was involuntarily absent from the jury's presence during their viewing of the crime scene. However, he raises several claims challenging his sentence. We deny any relief as to his conviction but hold that he is entitled to resentencing.

II

DISCUSSION

A. INVOLUNTARY ABSENCE

Mann claims that his absence from the jury's presence when they viewed the scene of the crime violated his rights under the Sixth, Eighth and Fourteenth Amendments because the police officer showing the scene to the jury pointed out changes that had occurred since the crime. Although Mann raised this claim in his Rule 3.850 motion, the district court dismissed it as procedurally barred because Mann failed to raise it on direct appeal. We conclude, however, that the district court erred in finding this claim to be barred.

The failure to raise a claim on direct appeal that was required under state law to be raised on direct appeal precludes federal habeas review of that claim. Murray v. Carrier, --- U.S. ----, 106 S.Ct. 2639, 2646-48, 91 L.Ed.2d 397 (1986); Reed v. Ross, 468 U.S. 1, 10-12, 104 S.Ct. 2901, 2907-2908, 82 L.Ed.2d 1 (1984). Under Florida law, a claim that the defendant was involuntarily absent from the presence of the jury must be raised on direct appeal if the defendant objected to the trial court about his absence. Middleton v. State, 465 So.2d 1218, 1226-27 (Fla.1985); Johnson v. Wainwright, 463 So.2d 207, 212 (Fla.1985). ¹ Because defense counsel objected when the police officer began pointing out changes in the crime scene, Mann's failure to raise this claim on direct appeal ordinarily would preclude federal habeas review. However, if the state supreme court on direct appeal overlooked Mann's failure to raise his presence claim and sua sponte passed on its merits, federal habeas review would not be barred. Lefkowitz v. Newsome, 420 U.S. 283, 292 n. 9, 95 S.Ct. 886, 891 n. 9, 43 L.Ed.2d 196 (1975) (citing Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963)). See also Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 2638-39, 86 L.Ed.2d 231 (1985) (no procedural bar to direct review where state supreme court sua sponte raised claim on direct appeal).

On direct appeal Mann raised only one claim challenging his conviction--the admission of the fact that bloodstains found at the crime scene and on the seat of his truck matched the bloodtype of the victim. However, in affirming Mann's conviction, the Florida Supreme Court stated:

In addition to this claimed trial error we have independently reviewed the record to assure ourselves of the propriety of the conviction. We find the conviction supported by competent, substantial evidence, free from substantive error, and affirm it.

Mann, 420 So.2d at 580. This statement must be assessed in light of the fact that in capital cases the Florida Supreme Court exercises a special scope of review enabling it to excuse procedural defaults. See Elledge v. State, 346 So.2d 998, 1002 (Fla.1977) ("Admittedly the testimony ... was not objected to by appellant's trial counsel, but that should not be conclusive of the special scope of review by this Court in death cases."). Thus, "where the state court's opinions do not make it clear that a point is not passed on due to failure to preserve it by timely objection, the state must be presumed to have applied its own rules to reach and reject the claim on the merits." Henry v. Wainwright, 686 F.2d 311, 314 (5th Cir. Unit B 1982), vacated and remanded, 463 U.S. 1223, 103 S.Ct. 3566, 77 L.Ed.2d 1407, rev'd in part on other grounds, 721 F.2d 990 (1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 846 (1984). Consequently, we conclude that, by independently reviewing the record, the Florida Supreme Court waived Mann's failure to raise his presence claim on direct appeal. Although the state court in Caldwell discussed at length the merits of the issue it raised sua sponte, the Florida Supreme Court's opinion does not clearly rest on adequate and independent state grounds; therefore, federal habeas review is not barred. ²

Due process guarantees a defendant the right to be present during any proceeding where his presence has a reasonably substantial relationship to his ability to conduct his defense. United States v. Gagnon, 470 U.S. 522, 526-27, 105 S.Ct. 1482, 1484-85, 84 L.Ed.2d 486 (1985); Snyder v. Massachusetts, 291 U.S. 97, 105-06, 108, 54 S.Ct. 330, 332, 333, 78 L.Ed. 674 (1934). Relatedly, the Sixth Amendment's right to confrontation, as incorporated into the Fourteenth Amendment, guarantees a defendant the right to be present when a witness is testifying against him during trial. Dutton v. Evans, 400 U.S. 74, 79, 91 S.Ct. 210, 214, 27 L.Ed.2d 213 (1970); Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970).

Mann argues that the jury view violated these rights because, instead of merely showing the scene to the jury, the police officer pointed out changes in the condition of the grass and leaves. The officer also described the search the police conducted at the site. In Snyder, 291 U.S. at 118, 54 S.Ct. at 336, the Supreme Court stated that a jury's viewing of the crime scene in the defendant's absence violates the defendant's right to be present if any changes in the scene since the crime are pointed out. Consequently, the police officer's description of changes in the crime scene violated Mann's right to be present. The officer's description of the search equally impinged Mann's right to be present.

Nonetheless, Mann is not entitled to relief if his absence was harmless error. Rushen v. Spain, 464 U.S. 114, 117-20, 104 S.Ct. 453, 454-57, 78 L.Ed.2d 267 (1983); Snyder, 291 U.S. at 118, 54 S.Ct. at 336. A violation of a defendant's right to be present cannot be considered harmless error if there is any reasonable possibility of prejudice resulting from the defendant's absence. Proffitt v. Wainwright, 685 F.2d 1227, 1260 (11th Cir.1982), modified, 706 F.2d 311, cert. denied, 464 U.S. 1002, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983). Here defense counsel was present during the viewing to safeguard Mann's rights as well as to relate the officer's testimony to Mann. See United States v. Stratton, 649 F.2d 1066, 1080-81 (5th Cir. Unit A 1981) (presence of defense counsel relevant to finding harmless error). Furthermore, Mann cross-examined the officer in court as to his testimony during the viewing. Mann has not indicated that the officer's description of the changes or the search was incorrect in any way or that his ability to cross examine the officer was hindered by his absence from the jury viewing. Nor do we believe that the changes pointed out and the scope of the search were relevant to the jury's decision. See Snyder, 291 U.S. at 118, 54 S.Ct. at 336 (harmless error where changes pointed out had no bearing on verdict). Therefore, because a reasonable possibility that Mann was prejudiced in his ability to defend himself does not exist, his absence during the jury viewing constitutes harmless error.

B. COMMENT ON RIGHT TO REMAIN SILENT

During the sentencing phase, Lieutenant Judson Brooks testified that Mann did not show any remorse following his previous arrest for burglary in Mississippi. ³ Mann argues that this testimony violated his Fifth Amendment right to remain silent. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (use of defendant's post-Miranda silence to impeach defendant at trial violates Fourteenth Amendment).

The district court found this claim to be procedurally barred because Mann failed to object at trial to the testimony and because Mann failed to raise this claim on direct appeal. Mann argues, however, that this claim is not barred because, in deciding his Rule 3.850 motion, the Florida Supreme Court ignored the procedural default and addressed its merits. See, e.g., Oliver v....