Spencer v. Sec'y

• Decision Date: 22 June 2010
• Docket Number: No. 06-16503.,06-16503.
• Citation: 609 F.3d 1170
• Parties: Dusty Ray SPENCER, Petitioner-Appellant,v.SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General, State Of Florida, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

609 F.3d 1170

Dusty Ray SPENCER, Petitioner-Appellant,v.SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General, State Of Florida, Respondents-Appellees.

No. 06-16503.

United States Court of Appeals Eleventh Circuit.

June 22, 2010.

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Harry Philip Brody (Court-Appointed), Sarasota, FL, for Petitioner-Appellant.

Scott Andrew Browne, Tampa, FL, for Respondents-appellees.

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

Before EDMONDSON, MARCUS and PRYOR, Circuit Judges.

MARCUS, Circuit Judge:

In this capital case, Dusty Ray Spencer, a Florida prisoner convicted of first degree murder, aggravated assault, attempted second-degree murder, and aggravated battery, appeals the district court's denial of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. We granted Spencer a Certificate of Appealability on his claim that the state court erroneously denied him relief because of prosecutorial misconduct. Spencer alleges seven instances of misconduct. Five of them are procedurally barred, the sixth one was not included in the Certificate of Appealability (“COA”) granted by this Court, and the seventh claim is without merit. Accordingly, we affirm the judgment of the district court and deny the petition.

I.

Spencer was convicted of murdering his wife, Karen Spencer, who was also his partner in a painting business. The essential facts of the murder, as elicited from the trial testimony, and not disputed here, are these.

In early December 1991, Karen asked Spencer to move out of their home. On December 10, 1991, Spencer and Karen had an argument about money Spencer claimed that Karen had withdrawn from the bank account of their painting business. During the argument, Spencer choked Karen, hit Karen, and then threatened to kill her. Karen reported this incident to the police, which resulted in Spencer's arrest. According to another report Karen filed with the police, Spencer called her from jail the day after his arrest and threatened to kill her as soon as he was released.

Karen asked Spencer to return to their home, where her teenage son and Spencer's step-son Timothy Johnson also resided, during the December holidays for four or five days. However, she asked him to leave again, which he did, a few days after Christmas. Spencer went out drinking with his friends on New Year's day, and he told one of them that he should take Karen out on their boat and throw her overboard. Two days later Spencer spoke again with his friend. This time Spencer told him that Karen refused to go out on the boat with him.

In the early morning of January 4, 1992, Spencer again returned to Karen's home, and he began arguing with her and physically beating her in her bedroom. Timothy was awakened by his mother's screams, and, when he ran to his mother's bedroom, he saw Spencer holding Karen down on the bed and punching her in the face with his fist. When Timothy attempted to help his mother, Spencer grabbed a clothes iron and struck Timothy in the head with it repeatedly. Spencer told Timothy, “You're next; I don't want any witnesses.” Timothy fled to his bedroom and attempted to call the police, but Spencer followed him into the room and yanked the telephone out of the wall. Spencer continued to strike Timothy in the face with the clothes iron despite Timothy's pleas for him to stop. Spencer added that he was going to ruin his mother's life the way she had ruined his. Spencer then fled the house.

During the altercation between Spencer and Timothy, Karen was able to escape and took refuge in a neighbor's home. Timothy and Karen were taken to the hospital, where they were treated for their injuries. While there, Karen told her treating physician that Spencer had hit her with a clothes iron, and, at Spencer's trial, the physician testified that Karen's wounds were consistent with strikes from a clothes iron. Karen and Timothy also filed statements with the police on the day of their attack.

In the early morning of January 18, 1992, Spencer returned still again to Karen's home. Timothy was again awakened by his mother's screams. Timothy ran out of his room, and, after not finding his mother in her bedroom, he grabbed the rifle she kept there and ran out the front door and around the side of the house. Once he turned the corner of the house, he saw Karen in the backyard laying on the ground, as Spencer kneeled on top of her and repeatedly hit her in the head with a brick while she screamed. Timothy saw his mother's face covered in blood. Timothy tried to shoot Spencer with the rifle, but it misfired, and, instead, ran at him and hit Spencer in the head with the plastic butt of the rifle, which shattered on impact. Spencer then stood up, lifted Karen's nightgown, told her to “show your boy your pussy,” and then slapped her head against the concrete wall of the house, as she begged Spencer to stop. Timothy attempted to pick up his mother and carry her away, but Spencer threatened him with a knife. Timothy set his mother down, grabbed the rifle, and ran to the neighbor's house for help while yelling for someone to call 911.

When the police arrived at the scene, Karen was dead. In addition to suffering blunt force trauma to the back of her head, she had been cut on the face, the hand, and the arms, and had been stabbed four or five times in the chest with a knife. A medical examiner testified that her death was caused by blood loss from two stab wounds to the heart and to the lung, and that the cuts on her hand and arm were defensive wounds. The medical examiner also testified that all of the wounds occurred while Karen was alive and that she had probably lived for ten to fifteen minutes after being stabbed repeatedly in the chest. According to the medical examiner, Karen sustained three impacts to the back of her head consistent with her head having been hit against a concrete wall.

Spencer was charged with four counts: first-degree premeditated murder and aggravated assault for the January 18th attack of Karen and Timothy, and attempted murder and aggravated battery for the January 4th attack on Karen and Timothy. The jury convicted him of first-degree murder, aggravated assault, the lesser-included offense of attempted second-degree murder, and aggravated battery. It recommended that Spencer receive the death sentence for the first-degree murder conviction by a vote of seven-to-five. The trial judge followed the jury's recommendation and imposed the death penalty. In addition, Spencer was sentenced to five years for aggravated assault, fifteen years for attempted second-degree murder, and fifteen years for aggravated battery, all to run consecutively.

Spencer's conviction was affirmed on direct appeal. Spencer v. State, 645 So.2d 377, 385 (Fla.1994). Most notably for our purposes, the Florida Supreme Court rejected Spencer's claim that the trial court erred when it denied a motion for mistrial because the prosecutor referenced a fact not admitted into evidence in her closing argument. Id. at 383. The non-admitted fact at the center of the claim was the prosecutor's statement that “Karen answered the door with the rifle in her hand” when a friend visited her on the night before the murder. Id. at 382. During the trial, the prosecutor had attempted to elicit evidence that Karen was carrying a rifle around her house because she was afraid of Spencer; the trial court sustained Spencer's objection, finding that it was irrelevant. Id. The Florida Supreme Court explained that this comment in closing argument did not require the reversal of Spencer's conviction, because, although it was improper, a single comment about the rifle did not deprive Spencer of a “fair and impartial trial,” did not “materially contribute to the conviction,” was not “so harmful or fundamentally tainted as to require a new trial,” and was not “so inflammatory that [it] might have influenced the jury to reach a more severe verdict than that it would have otherwise.” Id. at 383. Spencer did not allege any other instance of prosecutorial misconduct on direct appeal.

The Florida Supreme Court did, however, vacate Spencer's capital sentence, because the trial court improperly found an aggravating circumstance and improperly rejected a statutory mitigating circumstance. Id. at 384-85. On remand, the trial court conducted another hearing and found two aggravating circumstances (Spencer's previous conviction of another felony involving violence based on the contemporaneous convictions, pursuant to Fla. Stat. § 921.141(5)(b); and the especially heinous, atrocious or cruel nature of the murder, pursuant to Fla. Stat. § 921.141(5)(h)), and three mitigating circumstances (the murder was committed while Spencer was under extreme mental or emotional disturbance, pursuant to Fla. Stat. § 921.141(6)(b); Spencer's capacity to appreciate the criminality of his conduct was substantially impaired, pursuant to pursuant to Fla. Stat. § 921.141(6)(f); and there were a number of non-statutory mitigating factors in Spencer's background) before again imposing a capital sentence.

Spencer appealed the sentence, and the Florida Supreme Court found no merit to that challenge. See Spencer v. State, 691 So.2d 1062 (Fla.1996). Spencer then filed a petition for writ of certiorari with the United States Supreme Court, which was denied. Spencer v. Florida, 522 U.S. 884, 118 S.Ct. 213, 139 L.Ed.2d 148 (1997).

On September 24, 1999, Spencer filed an amended motion for post-conviction relief with the state trial court pursuant to Fla. R.Crim. P. 3.850, raising fourteen claims, one of which alleged multiple instances of prosecutorial misconduct. After conducting an evidentiary hearing in March 2000, the state trial court denied all of them. In particular, it denied Spencer's prosecutorial misconduct claims as procedurally barred. In addition, the state trial court concluded that Spencer's prosecutorial...