Muhammad v. Sec'y, Fla. Dep't Of Corr.

• Citation: 733 F.3d 1065
• Decision Date: 23 September 2013
• Docket Number: No. 12–16243.,12–16243.
• Parties: Askari Abdullah MUHAMMAD, f.k.a. Thomas Knight, Petitioner–Appellee Cross Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents–Appellants Cross Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

733 F.3d 1065

Askari Abdullah MUHAMMAD, f.k.a. Thomas Knight, Petitioner–Appellee Cross Appellant,

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents–Appellants Cross Appellees.

No. 12–16243.

United States Court of Appeals,Eleventh Circuit.

Sept. 23, 2013.

Linda McDermott, McClain & McDermott, PA, Wilton Manors, FL, for Petitioner–Appellee Cross Appellant.

Sandra Jaggard, Attorney General's Office, Miami, FL, for Respondents–Appellants Cross Appellees.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:06–cv–20570–AJ.

Before MARCUS, WILSON, and PRYOR, Circuit Judges.

PRYOR, Circuit Judge:

To learn about the gridlock and inefficiency of death penalty litigation, look no further than this appeal. Askari Abdullah Muhammad kidnapped and murdered Sydney and Lillian Gans four decades ago, in 1974. A Florida jury convicted Muhammad of murder, a Florida judge sentenced him to death, and the Supreme Court of Florida affirmed his conviction and sentence on direct appeal. While he awaited state collateral review, Muhammad killed again; this time, Muhammad murdered a prison guard because he was upset that he had been denied permission to meet with a visitor. In 1988, after the Florida courts denied Muhammad postconviction relief, we granted Muhammad's petition for a writ of habeas corpus and vacated his death sentence because of impermissible comments by the trial judge and counsel for both parties. A state trial judge resentenced Muhammad to death, and the Supreme Court of Florida again affirmed his conviction on direct appeal and collateral review, but in 2012 the district court granted Muhammad a federal writ of habeas corpus on the ground that his right to confrontation had been violated at his resentencing hearing.

Now, four decades after Muhammad killed Sydney and Lillian, we reverse the grant of the writ and deny Muhammad's petition. Muhammad's claim that the admission of hearsay testimony at his resentencing hearing violated his rights under the Confrontation Clause, U.S. Const. Amend. VI, fails because hearsay is admissible at capital sentencing and Muhammad had an opportunity to rebut the hearsay. Muhammad's claim that the application of the cold, calculated, and premeditated statutory aggravating factor violated his rights under the Ex Post Facto Clause, id. Art. I, § 9, fails because the retrospective application of the factor did not disadvantage Muhammad. We reverse the judgment in favor of Muhammad and render a judgment in favor of the Secretary.

I. BACKGROUND

On July 17, 1974, Muhammad (who then was named Thomas Knight) kidnapped and murdered Sydney and Lillian Gans near Miami, Florida. When Sydney arrived at work that Wednesday morning and parked his Mercedes Benz car, Muhammad ambushed him and ordered him back into the car. Muhammad commanded Sydney to drive home and pick up his wife, Lillian, and then to drive to a bank and retrieve $50,000 in cash. Sydney went inside the bank to retrieve the money, but he also told the bank president that Muhammad was holding him and his wife hostage. The bank president alerted the police and Federal Bureau of Investigation.

Muhammad then forced Sydney and Lillian to drive toward a secluded area on the outskirts of Miami. Police officers in street clothes shadowed the Mercedes in unmarked cars. A helicopter and a small fixed-wing surveillance airplane also eventually joined the surveillance. The officers followed the vehicle, but they lost sight of the car for about four or five minutes. During that time, Muhammad killed Sydney and Lillian with gunshots to the neck that he fired from the back seat of the car. The police found the vehicle sitting in a construction area with the front passenger door, the right rear passenger door, and the trunk open. Police saw Muhammad running away from the vehicle and toward a wooded area with an automatic rifle in his hands. Police found the dead body of Lillian behind the steering wheel and the dead body of Sydney about 25 feet from the vehicle. About four hours later, police apprehended Muhammad about 2,000 feet from the vehicle. Muhammad had blood stains on his pants; buried beneath him in the dirt were an automatic rifle and a paper bag containing $50,000.

In September 1974, Muhammad escaped from prison. After a massive nationwide manhunt, police finally captured Muhammad in December 1974. In 1975, a Florida jury convicted Muhammad of the murders of Sydney and Lillian, and the trial judge sentenced him to death. The Supreme Court of Florida affirmed his conviction and sentence on direct review. See Knight v. State, 338 So.2d 201 (Fla.1976).

In 1980, while Muhammad's petition for postconviction relief was pending before Florida state courts, Muhammad killed again. This time, he fatally stabbed a prison guard, Officer James Burke. Muhammad killed Burke because he was upset that he had been denied permission to meet with a visitor. Muhammad was convicted and sentenced to death for that murder too, and Muhammad currently awaits execution for the murder of Burke.

After his convictions for the murders of Sydney and Lillian became final, Muhammad embarked on an odyssey for postconviction relief that has spanned more than three decades. The Florida state courts denied Muhammad postconviction relief. See Knight v. State, 394 So.2d 997 (Fla.1981); Muhammad v. State, 426 So.2d 533 (Fla.1982). After a federal district court denied Muhammad's petition for a writ of habeas corpus, we vacated his death sentence, but not his conviction. Knight v. Dugger, 863 F.2d 705 (11th Cir.1988). We held that comments of the trial judge, prosecutor, and defense counsel suggested that the jury was permitted to consider only statutory mitigating factors at the penalty phase, in violation of the Eighth and Fourteenth Amendments, U.S. Const. Amends. VIII, XIV, as interpreted by the Supreme Court of the United States in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Knight, 863 F.2d at 709–10. We remanded the matter for the State to either resentence Muhammad or impose a lesser sentence than death. Id. at 710. Eight years later, in 1996, a Florida trial court resentenced Muhammad to death for the murders of Sydney and Lillian. This appeal concerns whether Muhammad's rights under the Confrontation Clause and the Ex Post Facto Clause were violated at that resentencing hearing.

At Muhammad's resentencing hearing, Detective Greg Smith testified on behalf of the State about some of the evidence presented at the guilt phase of Muhammad's trial. Smith had not testified at the trial in 1975, but he had been assigned to the case after the lead investigator, Detective Julio Ojeda, retired from the police force. Smith's testimony began on January 31, 1996. When Smith first began to testify about the sworn testimony of one of Sydney's co-workers named Milton Marinek, Muhammad's lawyer objected that Smith's testimony would violate Muhammad's rights under the Confrontation Clause. Muhammad's lawyer argued that Smith was “telling the jury what other people did, what other people said, ... and the objection I raise is this violates the ... confrontation rights of the defendant.” Muhammad requested a “continuing objection” to Smith's testimony. The trial court overruled Muhammad's objection, but stated that it “will accept this objection as a continuing objection for all testimony from this witness referring to what other people told him or anything that is hearsay.” After Smith completed his summary of Marinek's trial testimony, the prosecutor asked Smith to discuss prior statements of Howard Perry, who witnessed Sydney and Muhammad arrive at the Gans home to pick up Lillian. Muhammad's lawyer objected that the State did not present evidence that “Perry is dead or deceased and cannot be here to testify.” The district court overruled the objection and told Muhammad's lawyer, “You have made your confrontation rule argument. I have accepted your objection, your object [sic] to all of it. I don't want another sidebar on the subject of hearsay. You have preserved your record.” Smith then testified about the prior statements of Perry.

Smith then testified about prior statements of Detective Ojeda, the lead investigator. Smith's summary was based on both the testimony of Ojeda during the guilt phase of Muhammad's trial and written reports that Ojeda prepared in the investigation. Muhammad did not object that the State failed to establish that Ojeda was unavailable to testify. After Smith testified at length about Ojeda's prior statements, Muhammad raised what he called a “due process” objection to Smith's testimony. Muhammad objected that, when Smith provided a summary of Ojeda's prior statements, Smith failed to distinguish between Ojeda's statements at trial and his statements in the written reports. The district court overruled that objection.

Smith's testimony established that Ojeda tracked Muhammad's vehicle based on information that the police dispatcher provided him. Ojeda then pursued the vehicle on foot and eventually discovered the vehicle and Lillian's dead body inside. Ojeda then saw, about 150 feet away, a black man running away from the vehicle. The man turned and pointed his gun in the direction of Ojeda, who took cover and lost sight of the suspect. When he took cover, Ojeda heard the surveillance helicopter overhead and motioned for the pilot to fly toward the person Ojeda saw running away from the vehicle. Ojeda later identified Muhammad as the man he saw running away from the vehicle.

At his resentencing hearing, Muhammad attempted to establish that the murders of Sydney and Lillian were not premeditated. Muhammad argued that he never intended to kill Sydney and Lillian when he ordered them to drive to the outskirts of Miami. Muhammad presented expert testimony that he suffered from schizophrenia and that he “snapped” and lost...