Opinion
No. 3-01-CV-1383-M
April 2, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a habeas case brought under 28 U.S.C. § 2254. Petitioner Rodney Earl Jones was convicted of unlawful possession of less than 28 grams of cocaine. Punishment, enhanced by two prior felony convictions, was assessed at 25 years confinement. His conviction and sentence were affirmed on direct appeal. Jones v. State, No. 05-96-00839-CR (Tex.App. — Dallas, Oct. 11, 1999, pet. ref'd). Petitioner also filed an application for state post-conviction relief. The Texas Court of Criminal Appeals denied the application without written order. Ex parte Jones, No. 48,812-01 (Tex.Crim.App. Apr. 18, 2001). Petitioner then filed this action in federal court.
II.
In four grounds for relief, petitioner contends that: (1) the prosecutor failed to disclose exculpatory evidence; (2) the trial judge improperly commented on the testimony of a defense witness; (3) there was a fatal variance between the indictment and the proof at trial; and (4) he received ineffective assistance of counsel.
A.
The standard of review in federal habeas cases is governed by the Antiterrorism and Effective Death Penalty Act of 1996. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996) ("AEDPA"). Under the AEDPA, a habeas petitioner may not obtain relief with respect to any claim that was adjudicated on the merits in a state court proceeding unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. 28 U.S.C. § 2254(d). A state court decision is contrary to clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court of the United States] on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). An unreasonable application of clearly established federal law is one in which "the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoners case." Id., 120 S.Ct. at 1523. A state court decision is entitled to deference unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). cert. denied, 121 S.Ct 2001 (2001). A presumption of correctness attaches to factual determinations made by a state court. 28 U.S.C. § 2254(e)(1). A habeas petitioner must rebut this presumption by clear and convincing evidence. Id.; Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998), cert. denied, 119 S.Ct. 1339 (1999).
B.
Petitioner alleges that the prosecutor failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The evidence at issue consists of "a key, a marked twenty dollar bill and clothes that were taken from [my] person."
1.
The due process clause requires the prosecutor to disclose all evidence favorable to the defendant in a criminal case. See Brady, 83 S.Ct. at 1196; Edmond v. Collins, 8 F.3d 290, 293 (5th Cir. 1993). In order to establish a Brady violation, the defendant must prove that the evidence suppressed by the prosecutor is favorable to him and material to either guilt or punishment. Edmond, 8 F.3d at 293; United States v. Jackson, 978 F.2d 903, 912 (5th Cir. 1992), cert. denied, 113 S.Ct. 2429 (1993). Evidence is "material" only if there is a reasonable probability that the outcome of the trial would have been different had the exculpatory material been disclosed. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985); Andrews v. Collins, 21 F.3d 612, 626 (5th Cir. 1994), cert. denied, 115 S.Ct. 908 (1995).
2.
Petitioner's claim fails for at least two reasons. First, as petitioner acknowledges, the evidence was seized from his person. Clearly, it was not withheld from him. See Williams v. Scott, 35 F.3d 159, 163 (5th Cir. 1994), cert. denied, 115 S.Ct. 959 (1995) ( Brady does not apply if reasonably diligent defendant could have obtained the exculpatory information).
Second, the evidence was not exculpatory in nature. The key found in petitioner's pocket opened a deadbolt lock in the apartment where the contraband drugs were found. (SF-II 139, SF-III 191, 224). The $20 bill was marked by the police and given to a confidential informant to buy crack cocaine. ( Id. at 121-24, 139). Rather than exculpate petitioner, this evidence supports his guilt. Consequently, there is no Brady violation. See United States v. Nixon, 881 F.2d 1305, 1308 (5th Cir. 1989) ( Brady rule does not apply to neutral or inculpatory evidence).
Petitioner speculates that expert testimony, fingerprints, and a size comparison would have established ownership of these items. Regardless of what this evidence may or may not have shown, petitioner wholly fails to explain his possession of the marked $20 bill and a key to the apartment where the drugs and clothes were found.
C.
Petitioner further contends that the trial judge improperly commented on the evidence and intimidated a key defense witness into changing his testimony. After the state rested its case-in-chief, petitioner called his uncle, Willie Glenn Franklin, to testify. Franklin acknowledged that he had a prior conviction for possession of a controlled substance. (SF-III 264). Anticipating that the witness might be about to incriminate himself, the trial judge excused the jury and questioned Franklin about the subject matter of his expected testimony:
Let me ask you something, Mr. Franklin. Mr. Franklin, I'm not sure what you're going to testify to in this matter, and I don't want to know at this time what you're going to testify to.
But, I'm going to tell you that if you're going to testify that you had care, custody and control of this apartment, that that's your apartment or that what was found in that apartment belongs to you, you could be subjecting yourself to criminal prosecution in that regard and testifying against yourself and giving up any Fifth Amendment rights you have to remain silent. And if that is the situation, I feel like it's my duty to appoint you an attorney or let you consult an attorney before you take this stand.
If you're not going to testify to any of those things, then that's not a problem. But if you're going to testify to anything that would incriminate you and could subject you to criminal prosecution, I want you to understand you have a right not to testify; you have a right to take the Fifth Amendment, so to speak, and not give any testimony that would incriminate you. Do you understand that?
( Id. at 266-67). Franklin said that he wanted a lawyer and the trial judge appointed counsel to advise him of his rights. ( Id. at 267). Following the lunch recess, this colloquy occurred outside the presence of the jury:
THE COURT: All right. For the record, then, Mr. Franklin, prior to lunch, I appointed you an attorney to discuss whether you ought to testify in this matter. Have you talked to your attorney?
[FRANKLIN]: Yes, sir.
THE COURT: And have you made up your mind what you want to do?
[FRANKLIN]: Yes, sir.
THE COURT: And what do you want to do?
[FRANKLIN]: Testify.
THE COURT: Okay. You're going to have to speak up.
[FRANKLIN]: I'll testify.
THE COURT: All right. Counsel, go ahead.
( Id. at 268). Franklin proceeded to testify that he used to live in the apartment complex that was raided by the police. ( Id. at 272). Just prior to the raid, Franklin returned to the complex to visit friends. He and several other bystanders, including petitioner, were detained and searched. ( Id. at 273-74). However, only petitioner was arrested. ( Id. at 274-75). On re-direct, Franklin testified that his former girlfriend lived in the apartment where the contraband drugs were found. ( Id. at 289).
Contrary to petitioner's characterization, there was nothing improper about the conduct of the trial judge. The discussion between Franklin and the judge occurred outside the presence of the jury. Thus, there was no comment on the evidence. (St. Hab. Tr. 75). Moreover, the trial judge prudently stopped the trial and excused the jury when he thought that Franklin might incriminate himself. The witness was given an opportunity to consult with an attorney about the consequences of his testimony. These actions were imminently proper and reasonable under the circumstances. See Moore v. United States, 598 F.2d 439, 444 (5th Cir. 1979) (judge properly expressed reservations outside presence of jury regarding propriety of calling witness in light of perjury concerns). Petitioner is not entitled to habeas relief on this ground.
D.
Next, petitioner complains that the "the trial proof went beyond the parameters of the indictment [and] established an offense different from, and in addition to, the charge by the grand jury, thus causing a constructive amendment in the indictment."
1.
The sufficiency of an indictment is a matter of state law. Johnson v. Puckett, 930 F.2d 445, 447 (5th Cir.), cert. denied, 112 S.Ct. 252 (1991); Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir. 1980). An indictment is sufficient if it sets forth the elements of the offense in language clear enough to enable the defendant to plead a bar in jeopardy. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974); United States v. Massey, 827 F.2d 995, 1003 (5th Cir. 1987). The allegations of the indictment and proof at trial must coincide to protect the accused from surprise and multiple prosecutions for the same crime. Massey, 827 F.2d at 1003. A petitioner is entitled to federal habeas relief only when the indictment and proof varies to such an extent that it prejudices his "substantial rights." Id., citing Berger v. United States, 295 U.S. 78, 81, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935).
2.
Petitioner was charged with unlawful possession of a controlled substance. Under Texas law, a person commits this offense if: (1) he exercised care, control, and management over a contraband drug; and (2) he knew the matter possessed was contraband. TEX. HEALTH SAFETY CODE ANN. §§ 481.102(3)(D) 481.115(a) (b) (Vernon 1992); see also Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App. 1988).
The indictment alleges that petitioner:
did unlawfully, knowingly and intentionally possess a controlled substance namely: COCAINE in an amount by aggregate weight including any adulterants or dilutants of less than 28 grams
(St. App. Tr. 004). Despite the fact that the indictment tracks the language of the statute, petitioner argues that the charging instrument was constitutionally defective because there was no evidence linking him to the drugs found in the apartment.
At trial, Dallas Police Officer Karen Willhoit testified that she observed petitioner sitting on a step outside the doorway to an apartment. (SF-II 120-21). Approximately 10-15 people approached petitioner over a 30 minute period. Each time petitioner would enter the apartment with the person and exit a short time later. When the police returned with a search warrant, petitioner was still sitting outside the apartment door. The police found cocaine in the apartment and a key to the door in petitioner's pocket. This evidence establishes an affirmative link between petitioner and the contraband drugs. The fact that the evidence may also support a different charge does not constitute a "constructive amendment" of the indictment. Cf. United States v. Holley, 23 F.3d 902, 912 (5th Cir. 1994) (indictment constructively amended when jury permitted to convict defendant on factual basis that modifies essential element of the charged offense). This ground for relief is without merit and should be overruled.
Petitioner suggests that the evidence supports a charge of delivery, rather than possession, of a controlled substance.
E.
Petitioner also claims that his legal representation was constitutionally deficient in numerous respects. Specifically, petitioner contends that his attorney: (1) failed to object to the admission of evidence which was not disclosed prior to trial; (2) did not object when the trial court admonished Willie Glenn Franklin or when the prosecutor implied that the witness had committed perjury; (3) failed to object to the admission of extraneous offense evidence; (4) bolstered the state's case against him; (5) failed to object to the prosecutor's closing argument; and (6) improperly asked the jury to put themselves in his shoes.
1.
The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case reasonably effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). In order to obtain federal habeas relief due to ineffective assistance of counsel, a petitioner must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner must first demonstrate that counsel's performance fell below an objective standard of reasonableness. Id., 104 S. Ct. at 2064. He then must show how this deficiency prejudiced the defense. Id. at 2067. Prejudice results when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 2068. See also Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (habeas petitioner must show that trial result was unreliable or proceeding fundamentally unfair due to deficient performance of counsel). There is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. Romero v. Lynaugh, 884 F.2d 871, 876 (5th Cir. 1989), cert. denied, 110 S.Ct. 1311 (1990). In order to obtain federal habeas relief, a petitioner must affirmatively show how the actions of his attorney deprived him of a fair trial. Czere v. Butler, 833 F.2d 59, 63-64 (5th Cir. 1987).
2.
Petitioner complains that his attorney failed to object to the admission of evidence not disclosed by the prosecutor prior to trial. The Court has previously determined that the prosecutor was under no duty to disclose the existence of the apartment key, money, and clothes seized by the police at the time of petitioner's arrest. This evidence was taken from petitioner and was not exculpatory in nature. Moreover, counsel filed a motion to suppress any evidence obtained as the result of an illegal arrest. (St. App. Tr. 13-14) The motion was denied. (SF-II 8). Petitioner has failed to articulate a valid objection that would have resulted in the exclusion of this evidence.
In two related grounds, petitioner argues that defense counsel should have objected when the trial court admonished Willie Glenn Franklin or when the prosecutor implied that the witness had committed perjury. As previously discussed, there was nothing improper about the trial court's admonishment. Nor did the prosecutor accuse Franklin of giving perjured testimony. Rather, he suggested that this witness might not be credible because of his criminal record. (SF-III 280). This type of impeachment evidence is permissible under Texas law and any objection by defense counsel would have been futile. See TEX. R. EVID. 609.
Rule 609 of the Texas Rules of Evidence provides, in relevant part:
For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to a party.
TEX. R. EVID. 609(a).
Petitioner also criticizes his attorney for failing to object when Officer Willhoit testified that she observed him selling drugs to a confidential informant. To the contrary, defense counsel moved to suppress this testimony prior to trial. (SF-II 5-8). The objection was overruled. ( Id. at 89). Counsel was not ineffective for failing to convince the trial court to sustain his objection.
Next, petitioner argues that defense counsel bolstered the state's case against him. On cross-examination, counsel asked Officer Willhoite:
Q. And so, it wasn't you that found — I thought you testified it looked like there was [sic] clothes found that fit Mr. Jones.
A. Yes, sir, Officer Corr found me and told me that there were clothes that would fit Mr. Jones.
Q. Oh. So, you didn't personally observe these clothes?
A. I saw the clothes in there, but I did not pick them up.
* * * *
Q. When the confidential informant — did you ask the confiden — confidential informant, when he purchased the drugs, where the drugs were located in the apart — in the apartment?
A. The confidential informant told me that he had gotten the drugs from Mr. Jones.
Q. Did he say where Mr. Jones — I mean, if he had them in — stashed, I guess, in the apartment unit, where he went to pick the — the drugs up —
A. No, sir.
Q. — or did he just get them from his pocket?
A. The drugs were on him; on Mr. Jones.
Q. Now, when Mr. Jones was arrested, no drugs were found on his person, were there?
A. No, sir.
(SF-II 155-56, 158). The state appellate court found that counsel's decision to pursue this cross-examination was a "plausible defense strategy." Jones, No. 05-96-00839-CR, op. at 7-8. Specifically, Officer Willhoit acknowledged that she never asked the confidential informant if cocaine was stashed in the apartment. Rather, the informant told the officer that the drugs came from petitioner's pocket. Since petitioner was not charged with possession of a controlled substance on his person, defense counsel could argue that the state failed to prove the offense charged in the indictment. As for the clothing found in the apartment, Officer Pamela Corr later testified on direct examination that the clothes looked like they fit petitioner. ( See SF-III 228). Counsel was not ineffective for questioning Officer Willhoit regarding these matters. See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001), cert. denied, 70 U.S.L.W. 3533 (2002) (strong presumption that counsel's conduct falls within wide range of reasonable assistance or sound trial strategy).
In his closing argument, defense counsel told the jury:
I mean, if you really want to think about it, the police officers testified that Mr. Jones, who dealt with the CI, went in his pocket — and — found he had contraband there, not that he had it stashed anywhere in this apartment unit. On this particular occasion, he supposedly had it on his person. Again, he — he's not on trial for that offense.
(SF-III 310).
Petitioner further argues that his attorney should have objected to several improper statements made by the prosecutor. In his closing argument, the prosecutor asked the jury:
Is it a coincidence that this guy had on a purple shorts and a white tank top, and they watched that purple shorts and white tank top go in and out of there fifteen times, and is it a coincidence that's what he was wearing when they hit him and took him down?
(SF-III 319). Petitioner complains that the reference to "fifteen times" assumed facts not in evidence. However, Officer Willhoit testified that she observed "ten to fifteen" people approach petitioner while he sat in front of the apartment. (SF-II 124). This argument was a fair comment on the evidence.
The prosecutor also stated:
And then, over here, is it a coincidence that after going out and standing around in the hall with a bunch of people talking about the case, his uncle, a convicted felon that you can't believe a word he says because he has no credibility — he lost that when he became a thief and when he went to the penitentiary; he loses his credibility in Court, and you can consider that — and he comes in here and tries to change the style or the way he was dressed after talking to this — these people that were sitting in the courtroom and heard —
(SF-III 318-19). Although defense counsel objected to this statement and foreclosed further argument by the prosecutor on this subject, petitioner maintains that his attorney should have specifically objected on the grounds that the prosecutor's comments were misleading. The Court disagrees. The prosecutor was permitted to argue that Franklin was not a credible witness because of his prior criminal record. An attack on the credibility of a witness is an appropriate basis for jury argument. See United States. v. Machuca-Barrera, 261 F.3d 425, 436 (5th Cir. 2001).
The prosecutor continued his argument by asking if it was "a coincidence that the [confidential informant] said he bought the drugs from [petitioner]?" (SF-III 319). Petitioner claims that defense counsel should have objected to this statement as an improper reference to hearsay testimony. However, this testimony came in without objection during the state's case-in-chief. ( See SF-II 158). The prosecutor was permitted to comment on this evidence during closing.
Petitioner also maintains that the prosecutor implied that defense counsel had fabricated evidence by arguing:
I'm going to tell you something. [Defense counsel's] done a good job. His job is to come in here and try to draw your attention to things you didn't hear and get you to speculate back there in the Jury Room about what might have been instead of what really was.
(SF-III 313). This comment merely refers to the fact that counsel's job was to create reasonable doubt in the minds of the jurors. As such, it was proper argument.
Finally, petitioner complains that his attorney should not have asked the jury to put themselves in his shoes. (SF-III 306). Assuming arguendo that this improper remark rises to the level of ineffective assistance of counsel, the trial court instructed the jury to disregard the comment. This curative instruction rendered any error harmless. See United States v. Rodriguez, 43 F.3d 117, 124 (5th Cir.), cert. denied, 115 S.Ct. 2260 (1995) (improper jury argument rendered harmless by instruction to disregard). This ground for relief is without merit and should be overruled.
Defense counsel argued:
Now, during your deliberations, I'm asking you to almost put yourself in Mr. Jones' shoes, even though you may not do some of things he did or believe that he did.
(SF-III 306). Under Texas law, it is improper for counsel to invite the jury to place themselves in the shoes of the defendant or the victim. See, e.g Brandley v. State, 691 S.W.2d 699, 712 (Tex.Crim.App. 1985).
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.