Opinion
Civil Action 97-0720-BH-L.
September 26, 2000.
REPORT AND RECOMMENDATION
This is an action under 28 U.S.C. § 2254 by an Alabama inmate which was referred for report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B), Local Rule 72.2(c)(4), and Rule 8 of the Rules Governing Section 2254 Cases. The state record is adequate to determine Petitioner's claims; no federal evidentiary hearing is required. It is recommended that the habeas petition be denied, that this action be dismissed, and that judgment be entered in favor of Respondent Gwendolyn Mosley and against Petitioner Jerry Bernard Evans on all claims.
Petitioner was convicted of first degree rape in the Circuit Court of Mobile County on February 12, 1996. On March 4, 1996 he was sentenced to twenty-five years in the state penitentiary. Petitioner appealed to the Court of Criminal Appeals of Alabama which affirmed the conviction and sentence (Doc. 8, Exhibit E). His application for rehearing was overruled on November 11, 1996 (Doc. 8, Exhibit F) and his petition for writ of certiorari to the Alabama Supreme Court was denied on April 25, 1997 (Doc. 8, Exhibit G).
The state's evidence showed that after midnight on May 6, 1995, the victim was walking home from her job at a restaurant. She was approached by the Petitioner who demanded her purse. When she refused; he forced her behind a church at gunpoint and raped her. He left and she went to a neighboring home. The police were called and a police officer took her back to the church where she found her writing pen and chapstick. A description of the Petitioner was broadcast to police in the area. An officer, investigating an unrelated crime, recalled having seen a man who met the description in the area. He returned to the location and, after driving around for a few minutes, saw Petitioner. He then asked Petitioner if he would go with him. Petitioner did so and the victim identified him at the church. Another man had previously been brought to the victim. She stated that he was not her attacker. At trial, the victim identified the Petitioner as her attacker.
The victim was taken to the hospital for an examination. DNA samples from her vagina and pubic area were taken and DNA samples were obtained from the Petitioner. The state's expert witness testified at trial that the DNA in the samples taken from the victim matched the DNA in the samples taken from Petitioner. The expert also testified that the probability of a random match was 24,866,400 to one among blacks and 23,852,500 to one among whites. Petitioner is black. (Doc. 8, Exh. A).
Petitioner filed a complaint pursuant to 28 U.S.C. § 2254 on August 4, 1997, raising the following claims: (1) the trial court erred in admitting scientific evidence relating to samples of body fluids and biological substances taken from Lashonda Sylvester (rape kit); (2) the trial court erred in admitting DNA matching and population frequency testimony; and (3) Petitioner was denied effective assistance of trial counsel (Doc. 1, 2). Respondent answers that the Petitioner raised all grounds in his direct appeal and thus are exhausted. Respondent also answers that Petitioner's second claim is procedurally defaulted and his first and third claims are without merit (Doc. 8).
Although Respondent's Answer does not list ineffective assistance of counsel as a claim raised on direct appeal, the record shows that Petitioner raised this claim on direct appeal as part of his claim that DNA testimony should not have been admitted. See, Doc. 8, Exhibit C, p. 22.
Petitioner argues that admission of the rape kit was erroneous. He argues that the chain of custody was improper because the nurse who received the rape kit from the examining doctor did not testify at trial and because the police officer who testified at trial that he obtained the rape kit from the hospital did not name the person from whom he received the kit (Doc. 2, Page 8-11) Petitioner also states that the rape kit was not identified as being taken from the alleged victim. (Doc. 2, Page 9). Petitioner argues that the admission of the evidence derived from the rape kit was erroneous and prejudicial and thus violated his constitutional right to due process of law as set forth in the Fourteenth Amendment to the U.S. Constitution (Doc. 2, Page 10). Specifically, Petitioner states that without the evidence derived from the inadmissible rape kit he would not have been found guilty of rape, and supports this argument by pointing out that he was found not guilty of the robbery charge which allegedly occurred at the time of the alleged rape. (Doc. 2, page 10). In summary, he argues that this evidence was both crucial and critical because it was evidence that a crime had been committed, and highly significant because it resulted in the deprivation of a fundamentally fair trial in violation of his right to due process.
Respondent asserts that the state evidentiary ruling admitting the evidence of the rape kit test was not error and supports this position by referring to the memorandum decision of the Alabama Court of Criminal Appeals. The Alabama Court of Criminal Appeals, interpreting Ala. Code § 12-21-13, held that the lack of testimony in regard to the handling of the kit was a weak link in the chain which created a jury question of the weight to be given the rape kit evidence, but did not affect its admissibility. (Doc. 8, Exh. E). Ala. Code § 12-21-13 provides as follows:
Physical evidence connected with or collected in the investigation of a crime shall not be excluded from consideration by a jury or court due to a failure to prove the chain of custody of the evidence. Whenever a witness in a criminal trial identifies a physical piece of evidence connected with or collected in the investigation of a crime, the evidence shall be submitted to the jury or court for whatever weight the jury or court may deem proper. The trial court in its charge to the jury shall explain any break in the chain of custody concerning the physical evidence. (Acts 1995, No. 95-741, p. 1686, S 1.)
Respondent further points out that under Ala. Code § 12-21-13, the evidence was admissible without testimony from the witnesses in question.
Petitioner next argues that the trial court's admission of the DNA expert testimony in regard to DNA population frequency statistics and matching evidence was erroneous, prejudicial and in violation of state evidentiary law. Specifically, Petitioner argues that the trial court was not presented testimony of the steps or procedure used to conduct the DNA. Petitioner also alleges that the state failed to meet the requirements for admission of the unfairly prejudicial population frequency statistics (Doc. 2, page 12-14).
Petitioner relied upon Ex parte Perry, 586 So.2d 242 (Ala. 1991) for his argument that the DNA evidence was erroneously admitted. However, the Alabama Legislature rejected the Perry test when it enacted Ala. Code § 36-18-30 in 1994. See, Thomas v. State, 1999 WL 1267801, *43-44, (Ala.Crim.App.).
Respondent asserts that Plaintiff procedurally defaulted his second ground, improper admission of the DNA testimnoy, because this claim was not properly raised on objection in the trial court and, thus, not preserved for state appellate review. (Doc. 8, Exh. E). However, Respondent points out that although procedurally barred, the Alabama Court of Criminal Appeals, in its alternative finding, considered the merits of the claim and found that the DNA testimony was admitted upon a proper predicate and was reliable evidence pursuant to the controlling Alabama Code section in effect at the time of trial. The Court of Criminal Appeals held that "[t]he prosecutor and the forensic scientist followed the necessary path to properly admit the evidence in question, and the appellant's objections are without merit." (Doc. 8, Exh. E.) Respondent argues that the federal court should decline to reach the merits of this claim absent a showing of cause for the noncompliance with state rule and a resulting prejudice (Doc. 8, page 3-4).
Petitioner's motion in limine to determine the admissibility of the DNA testimony and evidence was heard by the trial judge prior to trial (Doc. 8, Exh. A, Pages 20-21; R. 31-41). In its memorandum, the Alabama Court of Criminal Appeals cited Miles v. State, 650 So.2d 583, 586 (Ala.Crim.App. 1994) wherein the Court found that an "issue which had been raised by a motion in limine but not also raised by the defense upon its introduction at trial was not preserved for [their] review" unless it was preserved by the party suffering the adverse ruling by obtaining the "express acquiescence of the trial judge that a subsequent objection and assignment of grounds are not necessary." Miles citing Parks v. State, 587 So.2d 1012, 1015 (Ala. 1991). At trial, Petitioner's counsel did not object prior to the beginning of the DNA expert testimony. (Doc. 8, Exh. E).
Upon review, the undersigned finds that the first and second claims are matters of interpretation of state law which do not raise a constitutional claim, and, as such, are not grounds available for federal constitutional relief. Beverly v. Jones, 854 F.2d 412, 416 (11th Cir. 1988); reh. denied, 861 F.2d 727 (11th Cir. 1988); cert. denied, 490 U.S. 1082, 109 S.Ct. 2104, 104 L.Ed.2d 665 (1989). Also, a state court's "construction of state law is binding on a federal court entertaining petitions for habeas relief." Beverly v. Jones, 854 F.2d at 416, citing Tyree v. White, 796 F.2d 390, 392-93 (11th Cir. 1986); Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983). "Moreover, a state's interpretation of its own laws provides no basis for federal habeas relief since no question of a constitutional nature is involved." Beverly v. Jones, 854 F.2d at 416, citing Carrizales v. Wainwright, 699 F.2d 1053, 1054-55 (11th Cir. 1983).
Petitioner seeks to overcome the fact that the state court's construction is binding by alleging such construction was a violation of his due process rights. However, federal habeas relief shall be granted on a state evidentiary ruling only if the ruling was in error, and effectively denied Petitioner a fundamentally fair trial. Dickson v. Wainwright, 683 F.2d 348, 350 (11 Cir. 1982) ("An evidentiary error does not justify habeas relief unless the violation results in a denial of fundamental fairness." Anderson v. Maggio, 555 F.2d 447, 451 (5th Cir. 1977) ( citing Woods v. Estelle, 547 F.2d 269 (5th Cir.), cert. denied, 434 U.S. 902, 98 S.Ct. 297, 54 L.Ed.2d 188 (1977)). Dickson sets forth that "[a]s a guideline to applying the criterion of fundamental fairness, the erroneous admission of prejudicial evidence can justify habeas corpus relief only if it is `material in the sense of a crucial, critical, highly significant factor.'" Id.
As determined by the Alabama Court of Criminal Appeals, the absence of testimony in regard to the chain of custody for the rape kit constituted only a weak link rather than a missing link, which became a question of weight for the jury to determine, rather than admissibility. The undersigned finds no error in the introduction of the rape kit pursuant to Ala. Code. § 12-21-13. The admission of the DNA testing results was also not error. The appellate court pointed out that Alabama law established a clear procedure for the admission of DNA expert testimony which was in effect at the time of the Petitioner's trial. The Alabama DNA Database System, Ala. Code § 36-18-20 through 39 which governs the admissibility at trial of DNA evidence has established that "genetic identification established through DNA testing analysis should be admissible as a matter of evidence in all courts of this state." Ala. Code § 36-18-20(f). The record indicates that the statutory procedures for admission were followed and evidence of reliability was presented to the court. (Doc. 8, Exhibit A, R. 31-40; 96-105). Therefore, the admission of the rape kit and the DNA matching test results and population frequency statistics was not error. Petitioner was not denied, on this basis, a fundamentally fair trial.
Further, Respondent has argued that Petitioner procedurally defaulted his claim that the DNA testimony was improperly admitted because of trial counsel's failure to raise the objection at trial. Harris v. Reed, 489 U.S. 255 (1989), discussed procedural default and stated that "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar." Harris, 489 U.S. at 263, citing Caldwell v. Mississippi, 472 U.S. 320, 327 (1985), quoting Michigan v. Long, 463 U.S. 1032, 1041 (1983). Further, the state procedural bar must rest upon independent and adequate state law grounds. Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir. 1994). Finally, "where a state court has ruled in the alternative, addressing both the independent state procedural ground and the merits of the federal claim, the federal court should apply the state procedural bar and decline to reach the merits of the claim." Id. at 1549. See also, Coulter v. Herring, 60 F.3d 1499, 1505 (11th Cir. 1995)( per curiam), cert. denied, 116 S.Ct. 934 (1996). (If the state court's alternative holding on the merits was not the primary basis for the state court's denial of relief, then habeas review is precluded).
The Alabama Court of Criminal Appeals held that the claim that the trial court erred in admitting DNA evidence was not preserved for review, thus it was procedurally defaulted in the state court. (Doc. 8, Exh. E). Petitioner's Writ of Certiorari to the Alabama Supreme Court was denied. (Doc. Doc. 8, Exh. G). Therefore, the last state court rendering a judgment "clearly and expressly" stated that the decision rested on a procedural bar. Harris, 489 U.S. at 263.
However, if the petitioner can show both cause for his non-compliance and actual prejudice resulting, a federal court can review his claims. Alderman at 1549. Petitioner has not directly addressed the requirements of cause for the procedural default or actual prejudice resulting therefrom. However, Petitioner has argued that he received ineffective assistance of trial counsel and bases that claim upon the failure of trial counsel to timely object to the admission of the DNA evidence. Petitioner has also stated that the DNA evidence was highly prejudicial, especially the statistical evidence, as heretofore discussed. Essentially, Petitioner argues that without the DNA evidence the jury would have been left with only the testimony of the victim, thus the DNA evidence was highly prejudicial and the admission caused a denial of his right to due process and a fundamentally fair trial. The admissibility of DNA evidence has been discussed herein, and need not be reiterated. However, since the admissibility of the DNA evidence was not in error the defendant cannot establish actual prejudice. Thus, the undersigned finds that the claim is, in addition to being without merit, procedurally defaulted.
In his last issue, Petitioner claims that he was denied effective assistance of trial counsel. This allegation raises a constitutional claim pursuant to the Sixth Amendment of the U.S. Constitution. Petitioner claims that his trial counsel was ineffective for failing to make a timely objection to the admission of the DNA expert witness testimony prior to the testimony by the expert witness and thus failed to properly preserve the issue for appellate court review. (Doc. 2, page 15-17).
In Petitioner's brief to the Alabama Court of Criminal Appeals he stated that in the event that the appellate court found that the issue of the admissibility of the DNA evidence was not properly preserved for review, he asserted a claim that he was denied effective assistance of counsel for counsel's failure to make a proper objection to the DNA testimony (Doc. 8, Exh. C).
Respondent asserts that there is no merit to Petitioner's claim of ineffective assistance of counsel. (Doc. 8, page 6-7). Respondent points out that after finding that the Petitioner had procedurally defaulted his objection to the admission of the DNA testimony, the appellate court made an alternative holding that the trial court properly admitted the DNA testimony. Therefore, since the objection would have been futile, the claim for ineffective assistance of counsel is without merit because trial counsel is not required to make a meritless objection. (Doc. 8, page 5-7; Exh. E.). In summary, Respondent argues that Petitioner has not shown that counsel's performance was deficient or that he was prejudiced by counsel's performance. (Doc. 8, page 6-7).
The Petitioner included his ineffective assistance of counsel claim in his direct appeal as part of his complaint that DNA testimony was improperly admitted. Specifically, the Petitioner claimed that he received ineffective assistance of counsel because counsel failed to object to the admittance of the DNA testimony and thus preserve it for review. The Alabama Court of Criminal Appeals did not directly address the issue of ineffective assistance of counsel but rather found that the DNA testimony was properly admitted.
In Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), the Eleventh Circuit discussed ineffective assistance of counsel, as follows:
The law regarding ineffective assistance of counsel claims is well settled and well documented. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court set forth a two-part test for analyzing ineffective assistance of counsel claims. According to Strickland, first, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.
The Eleventh Circuit further stated that "[w]hen applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds." Sims, 155 F.3d at 1305, citing Oats v. Singletary, 141 F.3d 1018, 1023 (11th Cir. 1998). In Strickland the Court held that "[t]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. Furthermore, it should be noted that under the caselaw established under Strickland it is clear that, "the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)).
The undersigned finds that Petitioner has not establish that he was prejudiced by the failure of trial counsel to timely object. The appellate court reviewed the claim that the trial court erred in admitting DNA evidence and found that it was properly admitted. (Doc. 8, Exh. E). As discussed, supra, the undersigned concurs. Therefore, since counsel's objection would have been futile, Petitioner can not prove prejudice by counsel's failure to object.
Petitioner has raised three different claims in bringing this action. The undersigned finds that Petitioner's first claim, that the trial court erroneously allowed the admission of the rape kit into evidence, and second claim, that the trial court erred in admitting DNA testimony, are matters of interpretation of state law, and, as such, are not constitutional claims subject to federal habeas corpus review. Also, the petitioner's second claim is procedurally barred. Petitioner's third claim, that he was denied effective assistance of counsel is without merit. Therefore, it is recommended that this habeas petition be denied, that this action be dismissed, and that judgment be entered in favor of Respondent Gwendolyn Mosley and against Petitioner Jerry Bernard Evans on all claims.
Done this the 26th day of September, 2000.