Donnie James Smith v. Ira Kelso, Warden

EDMONDSON, Before TJOFLAT *, Judges, and WISDOM Senior Circuit Judge. Circuit * Wisdom, Minor Senior U.S. Cir- nation. Honorable John Circuit, desig- sitting by Judge for the Fifth cuit

WISDOM, Judge: developed. Holly Frictions Senior Circuit and Johnson Florida, honeymooned trip their end- primary question this habeas case abruptly argument. an Holly ed after left petitioner’s trial in presents is whether to Atlanta alone. went While fundamentally court unfair the state Atlanta, stayed in she with Jim the conflict because between after, her ex-husband. Soon Henderson and his co-defendants was so substantial Holly Bill in and Johnson decided to find granted that the trial court should have Florida, allegedly Holly so that could re- 20, September motion for a severance. On belongings They turn his to him. rode to 1983, by murdered Jim Henderson was two Smith, Florida with Donnie Henderson’s lay to the head as he in the rifle shots back nephew employee carpet and an Donnie automobile. seat of cleaning days business. After several in Johnson, Holly her Henderson’s ex-wife Florida, they failed to find Johnson. Smith, Johnson, husband Bill and Henderson was first to return to Atlan- nephew, jointly Henderson’s were tried in a ta, pistol taking luggage. the stolen in his Georgia state court in for murder and for Holly Johnson and Donnie Smith followed other criminal offenses. Bill Johnson was days few later. murder, aggravated of malice as- convicted Bill in sault, Johnson arrived Atlanta within a kidnapping, concealing and the death another; days Holly few of their return. He Holly and Johnson was convicted of apartment lived in murder, assault, by an rented felony aggravated kidnap- another; company equip- Henderson’s to store its concealing ping, and the death of They ment. worked for Henderson. Rela- felony Donnie Smith was convicted of mur- among tions them soon soured. der, assault, One wit- imprisonment, felony false ness testified that Donnie Smith threatened concealing and the death of anoth- kill Henderson after Henderson chased er; plus a sentence of life he received weapon. him Another witness testi- defendants, months.1 Of the twelve Holly fied that asked Donnie Smith’s broth- appears alone now before this Court. He er, employee who also an of the busi- application appeals the denial of his for a ness, to kill Henderson. Henderson re- corpus. of habeas We affirm. writ pistol Holly fused to return the stolen allegedly and threatened to turn her over I. police. grew The Johnsons tired of delays receiving their franchise. requires nature case a de- existing group tensions statement of the facts. tailed Jim and Hol- augmented by ongoing Henderson’s court- ly Holly Henderson were divorced in 1980. Glass, ship of Umeiko a local florist. Illinois, moved where she met Bill John- there, Holly, pa- son. While who was on September Matters came to a head on role, roommate, pistol stole a from her an day, 1983. On that the Johnsons learned placed being act which her at risk of re- carpet Henderson did not own the prison. turned to Henderson cleaning guarantee business and could not her to return to asked Atlanta —with John- them a day, franchise. same family business, work for the Car- son—to engaged Henderson became to Umeiko Georgia. managed He pet Cleaners presented ring. Glass and her Holly with a represented and company himself as the ring, given Johnson had owned the to her promised owner. Henderson that after a Johnsons, Henderson. The infuriated short time he would let them have their personal slights, this and various moving, Holly franchise, own franchise. Before mar- their failure to receive resolved so, ried Bill Johnson. doing to leave Atlanta. Before how- affirmed, Georgia Supreme except 1. The Court convictions for murders. Their convic- Holly charges that it found that Johnson’s conviction for tions and sentences on those were ac- State, aggravated cordingly 591, assault and Donnie Smith’s convic- vacated. Johnson v. Ga. imprisonment merged (1985). for false tion into their 331 S.E.2d disclosing coerce Henderson into where the retrieve stolen ever, they decided to her Moreover, Holly ring. again gun driving. wanted was. Smith was John- pistol. seat with son was the front him. Smith September morning of Early on Johnson, in testified an to add effort up take picked Smith to the Johnsons fear, fired to Henderson’s two shots into they way, went work. On the him to car, near head. back Henderson’s home, where Jim Glass’s Umeiko Eventually, Bill fired two into night. John- Johnson bullets spent Henderson proceeded then Jim Henderson Henderson’s head. The forensic evidence son and car, in one apartment while any the Johnsons’ beyond establishes doubt reasonable Holly drove another. all four shots came from the front arrival, asked sit out- Upon Smith was passenger of the car. Smith and Bill seat side; role when business this was his usual body in a Johnson left the wooded area and Several minutes were discussed. matters that evening, returned home. Later Bill apart- Holly ran from Johnson later dispose Johnson demanded that Smith from a .22 caliber rifle ment and removed body. her of her car. Smith followed the trunk Holly day, Bill and left next Johnson fighting Henderson. to find Johnson inside body, placing it town. Smith retrieved three-way led to a Holly’s intervention in the trunk car in which of the Henderson Johnsons struggle gun between arrange- had been killed. He then made Eventually, Johnson Henderson. and attorney to through ments his surrender to began hit- rifle and control of the gained evening police, September and on the joined Smith in the ting Henderson with it. days after the two “kidney-punching” Henderson onto fray, body and turned over Ful- car to the him there. testi- holding He the floor County police. Holly ton Bill and Johnson discourage he did more fied days in a small were arrested several later testified that fighting, Holly but Johnson Mississippi. in town actively beating participated Smith into Henderson was beaten Henderson. The Johnsons and Smith were tried to- began then unconsciousness. Johnson gether, represented a different at- each thought Smith Henderson’s hands. tie Smith, torney. Bill Johnson accused testi- arms, so would break Henderson’s and Smith had kid- fying Henderson least, tie At so he offered to Henderson. napped voluntarily go let him him but he testified. denied in the middle of the afternoon. He regained conscious- Henderson When knowledge of any the events additional agreed Holly’s ring from ness, he to obtain up There leading to Henderson’s death. pistol stolen He had Ms. Glass. buried physical little or other evidence to cor- was house, he parents’ Smith’s said. under testimony. Smith’s roborate his gun. for the then went to look Smith substantially in accordance with the apart- remained Henderson bound as have stated them. The facts morning with the ment for rest of convicted all three defendants. him, standing guard over while Johnsons made unsuccessful searches three Smith II. gun parents’ house. After for the and the Johnsons trip, third he A. Severance go a final time house decided car, gun. drove one search Smith A has certain broad dis trial court passenger seat and Bill Johnson in the cretionary appellate and an court powers seat; tied, in the back Hol- still powers, in this supervisory has certain Again, car. separate ly Johnson drove a peti court’s denial of a review a district gun. they did not find the corpus the Court tion for writ of habeas may grant relief Appeals to a with Johnson group separated, then town, prejudice from only if we find trying driving around and Smith (2) amounting to fundamental jury reasonably unfairness.2 Could the construct a sequence of events that accomodates the long persons together As indicted are essence of both defendants’ defenses? together, tried tension between co-defend- may proceedings. ants taint (3) subject Did the appellant conflict compelling prejudice? determine whether a co-defend

To (4) ant has suffered actual from de Could the trial ameliorate the sever, nial of his motion to this Circuit has prejudice? in United States v. holding followed the The Balkanized defenses of the Johnsons that “the essence of one defend certainly present colorable ant’s defense” must be “contradicted prejudice. claims of Johnson testified that justify co-defendant’s defense” severa he had kidnapped Smith and nce.3 The Court elaborated: Henderson, and that he had left Henderson “... we hold that the defense of a de- alive, Smith, alone with in the car which antagonism fendant reaches a level of killed, Henderson was on the road into the (with respect to the defense of a co-de- park body where the was found. fendant) compels severance of the testified kidnapped Johnsons defendant, jury, if the in order to believe pre- that fear of the Johnsons testimony the core of offered on behalf them, stopping vented Smith from and that defendant, necessarily of that Bill Johnson killed Jim Henderson. On the testimony

disbelieve the offered on be- day pretrial hearings, first of Mrs. John- half of his co-defendant.”4 accurately predicted son's trial counsel proper application We that believe typified internecine conflict that the de- requires step- of this test that courts move fense: by-step through following four-step analysis. [Wjhat is, going this whole case is to be pointing Mr. Smith

(1) finger my at alleged Do the conflicts with co-de- Johnson, go client and Mr. fendants’ defenses to the essence of and I will state appellant’s candidly defense? going point am 2.Although was, fact, possible grounds there are several tablishes that his trial fundamental- finding prejudice, only problem antag ly of unfair. appeal. onistic defenses is relevant to Smith’s See, 1127, (5th 1981). Newsome, 3. 662 F.2d Cir. e.g., 1132-34 Unit B Stevenson v. 774 F.2d 1558 Cir.1985), denied, (11th 1089, rt. 475 U.S. ce (1986); Demps 89 L.Ed.2d Although 4. 662 F.2d at 1134. con- Berkowitz (5th Wainwright, conviction, Cir. Unit B appeal cerns a direct from a federal 1981), denied, cert. 459 U.S. provides 103 S.Ct. helpful guidance determining its test (1982). L.Ed.2d 89 whether Smith should receive habeas relief. Demps, applying 666 F.2d at the Ber- difficulty determining of when severance By appeals kowitz case. our reliance on direct required prompted pre- is has criticism of the cases we See, Dawson, do not mean to treat this Court’s role sumption against e.g., severance. reviewing petitions habeas as identical with Joint Trials in Criminal Cases: An of Defendants reviewing appeals its role in direct from federal Analysis Prejudices, 77 Mich. of Efficiencies Although opinion (1979). trials. in this we discuss the problems L.Rev. 1450-54 detail, great recognize joint facts of the case in presump- we with trials have made the federal degree joint most often in habeas cases the tion for trials of unusual. The Uniform deference owed to the state courts and the re- Rules of Criminal Procedure make severance a viewing weigh against right, judge federal district court will matter of unless the trial finds that sifting Compare, such intensive of the facts. allowing be material evidence would lost Berkowitz, e.g., (conducting 662 F.2d at 1132-34 severance. Rules of Criminal Procedure (U.L.A.) appeal) require detailed review of facts in direct rule 472. Some states that the Demps, joinder (applying 666 F.2d at prosecution establish the need for but conducting facts). grounds "economy impor- brief review of of time or ex- It is other than 17.03, however, See, recognize, pense”. e.g., analytical tant to dis- that the Minn.R.Crim.P. Dawson, steps Georgia determining n. 318. is involved in cussed in at 1453 whether actual criticisms, Despite these sever- resulted from a are not such a state. trial identical discretionary judge, appeals with the trial appeals ance in direct and in remains from denied only petitions. when a es- can habeas reverse applied doubt.9 This conclusion has been I feel Mr. finger at Mr. Smith. And directly even when a defendant contradicts will, too.5 key portion of co-defendant’s testimo- disagreement not- strength of Stephenson, Stephenson ny. U.S. hold that the withstanding, we he and admitted that his co-defendant had motion denying err in not robbery argued of a the scene severance.6 participated that he not in or known of (1) alleged Do conflicts with co-de- his co-defendant’s actions. His co-defend- go to the essence of fendants’ defenses said not ant he was at the scene of appellant’s defense? crime and had been misidentified. This still Court held that could adjust The need for defendants accepted the co-defendant’s contention that co-defendants’ their cases in reaction to misidentified, though he had been even Ste- fact inevitably of choices flows from phenson’s of contradicted that being together. tried Severance their his co-defendant. Court then affirmed has compelled only when co-defendant denial judge’s of severance.10 portions a co-defendant’s refuted those necessary to find the defend case are time, recognizes At the court the same particular charged guilty ant not defendant’s case is essence Thus, refused this Court has offense. straightforward denials of limited of a motion for severance overturn denial may complicity. The success of a defense argued each where defendant has hinge the jury on whether believes the de- in the crime did not rise involvement own events, and a defend- fendant’s account culpability.7 Although justifying a level credibility may many ant’s be undercut presenting this defense often a defendant directly points tied to that defendant’s not attempts depicting to it a co-de bolster crime. denial that he committed a When a crime, as in the fendant the central actor co-defendant so undermines defendant’s consistently to find that have refused jury difficulty credibility that a would of the defense goes this conflict to heart evaluating the defendant’s account of jury possibili- objectively, great s.8 We concluded that the could events there is ty proceedings that neither defendant’s involvement that are infected with decide exactly are beyond the kind rules a reasonable been established following well-present- magistrate's judge, reason- is district 5. Smith’s motion for severance trial, ing, conflict Smith’s affirmative ed. He moved for severance before dur- found no over selection, coercion, during pretrial hearings, ing jury ground that coer- defense of point during reasoning was At each there suffi- trial. to cion is not a defense murder. judge predict the trial to felony cient evidence for for apply to which does not instance, antagonism. For soon felony level of after underlying Smith convicted. The was during moved for severance Smith's counsel felony im- Smith’s murder conviction false selection, predict- law, for Johnson counsel Mrs. prisonment; Georgia is a under coercion antagonistic ed that the case would involve de- imprisonment. If Smith's af- defense to false judge replied, don’t think there is fenses. The “I succeeds, murder firmative defense any doubt that.” about guilty of the then he be found not under- attorney did not move severance lying felony not be and hence could found Johnson, of Bill whose testi- after mony guilty felony murder. primary Smith creates the conflict com- plains of before this Court. This omission does 1085, See, Puig, e.g., States 810 F.2d 7. United v. motion, waive The trial however. (11th Cir.1987); Caporale, 1087 United States proceedings insure no must monitor the Cir.1987); (11th United 806 F.2d 1510 rights appear prejudiced defendant’s to be Magdaniel-Mora, 719-20 States v. appro- joint trial order if and should severance Berkowitz, (11th Cir.1984); F.2d 662 at 1134. priate, is even if no motion made. Schaffer 511, 516, U.S., 362 U.S. 4 8. Id. Berkowitz, (1960); L.Ed.2d F.2d at 1132. 9. Id. one, ground dispose We must incorrect 6. first Cir.1983). (11th request rejecting F.2d Smith's for severance. designed prevent. Hence, party U.S. v. co-defendant’s tale of a third rested Johnson,11 the Fifth Circuit credibility ordered sever- on his as a By witness. under- very ance in a situation in mining credibility, similar to that his his co-defendant had case, Stephenson. In that Johnson’s co-de- subverted his case.16 accompanied fendant testified that he John- Most conflicts between Smith and during

son the commission of the crime for his co-defendants do not concern the es they charged which but advanced the sence of Smith’s A category defense. first acting police defense he was as a of conflicts that do not establish actual seeking informant to catch Johnson in the prejudice arises when a co-defendant un present act. Johnson denied that he was credibility dermines a defendant’s pe the scene. This Court noted the conflict matters, ripheral credibility when that defenses,12 opinion between the but its em- unlikely significantly decrease his credi phasized damage done to Johnson bility as a witness testifying to the main allegations: his co-defendant’s his co-de- Hence, facts of the case. conflicts over depicted fendant good guy himself as “the admission of establishing evidence —only along ride”,13 for the spent psychiatric time in a institution major culprit”.14 “the The court did not after justify Henderson’s murder do not simply order severance because of the con- severance; nor does the evidence weakly flict, however, emphasized as well that tending implicate attempt an damage credibility played to Johnson’s destroy prosecution justify evidence sever major judgment, finding role in its ance. his co-defendant’s assertion worked a “defi- hardship” nite on Johnson as he tried to Second, aspects conflicts over of a prove he was not involved.15 subsidiary defense corollary or to the cen Similarly, Gonzalez, in United States v. Thus, tral issues justify do not severance. floating two men were found in a disabled conflicts over establishing evidence marijuana. boat that contained One denied fought Smith had with Henderson in the knowledge shipment. support murder; months before the over evidence defense, argued he that his co-defend- arguably impeaching prosecution wit boat; ant had control making over the ness; labelling prosecution over exhibits as contention, this he testified that his co-de- exhibits; “Donnie Smith” and over admit attempted fendant had to conceal evidence. ting Johnson, evidence impeaching Mrs. do Crawford, Unlike the co-defendant did not go not to the heart of Smith’s case reciprocate, a party blamed third who way required by the actual stan jury was not a defendant. The could have dard. defenses, defendants’ believed both find- ing nothing that one knew and that Finally, conflicts over matters operated unknowingly prompted by other impact speculative whose on the outcome is party. an unindicted third This Court Hence, do not meet this standard. con nevertheless found that the defenses jury selection; were flicts over over which de antagonistic so that severance should have marginally important fendant a witness granted. been Underlying the testify for; court’s rea- would and over which trial soning simple proposition was the that the closing counsel would make argument do (5th Cir.1973). Stephenson’s 478 F.2d 1129 presence co-defendant’s at Stephenson say scene. Because did not he had (discussing 12. See Section IIA2 standard for crime, seen his co-defendant commit the he conflict). could not contradict his co-defendant on that Conversely, score. Johnson’s co-defendant testi- 13. 478 F.2d at 1132. fied that he had seen Johnson commit 14. Id. at 1133. crime. Stephenson 15. Johnson and are not inconsistent. (11th Cir.1986). 16. 804 F.2d 695-96 Stephenson, In the factual conflict arose over p.m. Second, of evening severance.17 the murder. justify not jail cellmate testified for Johnson (2) reasonably jury construct Could alleged that Smith confessed to mur- sequence of accomodates events dering said that he of defendants’ defenses? essence both hall”, guy would blame “some down the in interpret has some conflict There Johnson, presumably Bill and that he requirement ing jury that a Berkowitz’s crazy”. “play necessarily one defendant’s disbelieve de in order believe the other’s story testimony directly Bill Johnson’s contra- Some have read the fense. courts Berkow dicts Smith’s defense and would create covering only as the situation itz test conflict even under the interpre- restrictive jury must find one defendant where tation of Berkowitz. Smith’s cellmate also guilty when it chooses to another. believe refutes Smith’s contention that he acted Crawford, example, people In were two addition, In testimony under duress. this illegal in a an arrested car contained depicts leading Smith as times the John- firearm. Each contended other sons; although portrait this does not direct- Lacking other evi owned firearm. duress, ly rebut Smith’s defense of it casts ownership, jury determine was dence to credibility his Bill doubt of fear of compelled to convict defendant it did Johnson. This thus conflicts telling the Magdan not believe was truth. interpreta- with Smith’s defense under both interpreted and thus iel-Mora tions Berkowitz. Crawford applying only as when the “sole Berkowitz (3) Has the defendant established com- guilt of each the othe defense was pelling prejudice? Gonzales, however, In pan r”.18 another essentially requirement el of the Court ordered severance when the prove defendant the conflict was not harm- jury’s options so constrained. 1558; Stevenson, less. interpret We as accom Demps, 666 F.2d 227. Smith has not modating A both extremes. defendant requirement. reaching met this may establish a conflict either of two conclusion, rely primarily on the fact (i) jury when circumstances: could not that evidence other than Bill Johnson’s tes- logically “have believed both defendants’ By timony was sufficient to convict Smith. defense”;19 (ii) theories or where the admission, Smith aided in the own false reasonably could not have accommo imprisonment That crime of Henderson. both, example, dated where defend underlying felony was the in Smith’s upon testimony aby ant’s defense rests primary de- murder conviction. Smith’s impeached key part who is witness imprisonment charge fense the false a co-defendant’s defense. he had under acted duress. case, pass believed, In jury this two conflicts have on this The could based testimony establishing animosity test. The first from second arises the testi between Henderson, mony of that Smith Smith and Smith and that was together, acting kidnapped willing participant, pas- even if a somewhat him; fought that Smith and might Henderson sive one. It also have found that briefly forcing advantage another him of ample one while Smith not take accompany to on day opportunities help police. them the the mur to from the obtain der; he the that last saw Henderson alive in The fit between the other evidence and car; him; that, jury even if jury’s suggests Smith’s that Smith had blood on verdict he to it testimony, and that talked Henderson after had not heard Bill Johnson’s addition, nearly Crawford). (quoting 17.In all 18. 746 F.2d at 720 See also these issues were re- Gonzalez, (Hoffman, ways 804 F.2d at 698 Senior Dis- compatible solved with Smith’s inter- Judge, dissenting) (limiting trict difficulty would ests. He therefore have estab- Crawford). facts prejudice. lishing See Section IIA3. Stephenson, F.2d at 582. felony recharge mur- Any wish on as it did.20 have convicted Smith could allowing conflicting I everybody from the and possible error der we can assemble harmless. is therefore recharge you felony defenses murder that will on protect (4) judge against charged said you they the trial before.” And Could prejudice? yes, they would like that. when a defendant suffers Even judge’s the The recollection confirmed trial, he need prejudice from a some Upon accompanied him. the bailiff who unless the granted separate trial

not be verifying jury the been judge’s that prejudice.21 cure the judge trial could not murder, juror charged felony one said on compelling preju no risk of We found “There, I told something to the effect Nevertheless, noting it is worth that dice. you jurors with a ver- so”. The returned prejudicial effect judge the trial limited approximately dict ten minutes after and which under of the evidence exchange, they recharged on before in allegations through careful lie Smith’s felony murder. to witnesses and counsel. structions relayed this judge conversation by Smith’s counsel Cross-examination he trial counsel as soon as returned to mitigated counsel also other court not in ses- courtroom. Because Finally, flowing any testimony. from time, did not sion at that Smith’s counsel the three defendants whenever counsel for object object immediately. Nor did he clashed, every almost conflict was resolved short, jury’s reconvened to hear the favor. extent when court in Smith’s conflicts, by verdict, was favored waiting there were instead until sentenc- rulings. the court’s Monday. ing hearing following Georgia delay Supreme Court held that this B. Ex Parte Communication ex objection parte waived Smith next asks for reversal and, citing communication Williams judge parte ex ground that the trial talked (Ga.1983), State, 312 S.E.2d 40 that jurors during their deliberations. with the jury “were not so court’s statements to communication, improper, did while prejudicial deny as to a fair trial”. prejudice Smith’s defense. weekend, Over the after the verdict Friday afternoon, counsel for Late on a sentencing, tele- counsel received a before agreed judge parties all juror, explained phone call from a who they jurors should ask the when jury require- confused on the had been informed with a verdict. return attorney felony murder. Smith’s ments following events took trial counsel that the inferred from this conversation place: only of a lesser jury meant to convict Smith ques- if me a They they asked could ask felony, felony murder. included but not no, they responded and I tion judge, by contends that couldn’t, they if needed ask already in- telling jury it had question would have to assemble discouraged it structed on question formally everybody and ask the ex seeking parte clarification. His from They proceeded then on the record. thereby conversation with the forced question anyway, which was ask notes, jurors rely on their the own which felony get charge a on mur- “Did question the already failed to settle “Yes, you I responded, der?” And on they had even been instructed whether felony Then get charge a murder.” much less to illuminate they talking about what it was started said, you “I If what the instructions were. I cannot answer that. and 1058; See, (consisten- See, Dorsey, e.g., Dorsey, e.g., F.2d at United at 21. 819 819 F.2d 1058 20. 1408, Watkins, (11th cy of verdict with evidence establishes absence v. F.2d 1410 States 811 compelling Caporale, prejudice); Cir.1987). 806 F.2d (same). 1511

1573 reversal, beyond however. duress ground We find no reasonable doubt.26 First, put by Mitchell, however, forth Smith’s only the scenario establishes a feder- nothing speculation. more than rule, counsel is al criminal not a right. constitutional clearly could not Smith’s counsel articulate Supreme Court has not held states to short, judge’s of the truth- impact what the the standard announced the federal jury’s the response simple question ful government in Georgia, Mitchell.27 In the Second, might as we noted have been. state does not have the of disprov- burden above, the is consistent verdict with ing the elements of a coercion defense.28 facts does not mani- and therefore itself Because there is no provision state analo- any part jury. fest confusion gous to the federal rule in validated Mitch- other situation here contrasts with ell, argument is meritless. prejudiced cases of ex where the effect parte communications was clear.22 III. Brady Jury C. Instructions The district court’s peti- denial of Smith’s First, Two other issues remain. tion corpus for a writ of habeas is AF- the State failed to contends FIRMED. by Holly disclose a made John statement son that afraid of her husband she was TJOFLAT, Judge, specially Circuit argues Bill. this statement concurring: his affirmative bolster defense in judgment concur the court’s that the coercion. He State’s concludes petitioner did fundamentally not receive failure to disclose the statement violated unfair process trial violation of the due process rights, his due articulated clause. I write separately I dis- because A

Brady Maryland.23 v. new trial not agree majority’s approach with the warranted unless the evidence creates a petitioner’s process due claim—that the tri- reasonable that would not otherwise doubt petitioner al a fair denied Because existed.24 other evidence him granting from severance his co- provided ample jury basis for con defendants. cluding that Bill Johnson could Smith, Holly coerced Johnson’s statement petitioner’s To decide the merits of a is cumulative. Smith has thus failed to claim that state trial court denied him prosecution’s establish that the failure to refusing process grant due of law Holly disclose under Johnson’s statement severance, him a a federal habeas court mines of his confidence outcome begin by examining must record of

trial.25 proceedings place that took before the instance, jury. trier If of fact—in argues Smith also the trial record, whole, considered as a does not judge improperly failed to instruct the demonstrate that the received a disproving State had burden of trial, fundamentally unfair beyond habeas his affirmative defense of coercion ends, inquiry petitioner’s court’s and the upon reasonable doubt. Smith relies U.S. If, however, Mitchell, claim be denied. which declared that in federal must contrary, criminal the Government bur record the ha- trials has the demonstrates disproving proceed den of further step least one element beas court 667, 678, See, Howard, 25. e.g., Bagley, States v. F.2d 105 S.Ct. United 506 U.S. 473 U.S. (5th Cir.1985) (ex 3381-82, parte (1985). communication 87 L.Ed.2d report trouble that defendant had “been in defendant). against before” created Cir.1983). (2d 26. 23. 373 U.S. 10 L.Ed.2d 215 197, 210, York, 27. See Patterson v. New U.S. (1963). 2319, 2327, (1977). 97 S.Ct. 53 L.Ed.2d 24. United States v. Agurs, 427 U.S. 96 2392, 2398, State, (1976). 28. 49 L.Ed.2d 342 588-89. S.E.2d ground that the of a judge, whether the trial rather than defense codefendant decide own, agent antagonistic failed was to his did not other causative as some —such incompetent following for strategy or counsel—ren- renew his motion severance trial which, fundamentally The the trial unfair. the of the codefendant for dered peti- time, judge brought alleg- can be held to have denied the the actually the first reviewing if court process edly antagonistic jury. due the the tioner defense before reasonably judge ap- conclude that the can I is the correct Under what submit granted petitioner’s motion problem, the proach should trial severance/fair deny- in severance and that his action judge conclude that the trial the motion rendered the trial unfair. ing petitioner process the due be- deny cause, denied his at the time the court determining the conduct of whether motion, no had occurred severance events trial, we judge produced trial the unfair the upon him. that an undue worked portion of the record that was look sug- by majority’s I am the novel troubled the time the defendant judge the before petitioner a gestion that because the made his for severance and motion presented severance, pretrial the trial motion the ask, judge, the on the basis of “Should duty imposed by pro- due judge had the him, have concluded record then before — progress cess clause—to monitor the of his the movant’s trial must be aborted grant sponte trial and him severance sua funda- the trial has been rendered because judge perceived petitioner if the mentally If answer to this unfair?” the irreparably prejudiced by his co- been negative, in the movant’s question is the majority testimony.2 defendant’s though process claim must fail—even due jeopardy to overlook that the seems double events, subsequent during the course grants right trial, clause3 a defendant the “Monday morning may prompt a the the hands that has verdict at to conclude that the defend- quarterback” try case. If the turned out to unfair. sworn to trial ant’s trial be been judge right declaring him this denies oper- rejection of a severance motion having mistrial —without defendant re- only deny the a fair defendant trial ates judge quested one at that time—the will rejection preju- occurs after the when likely acquitted the defendant of the described the motion have dicial events charge for which he is on trial. place.1 rejection When occurs taken trial, the defendant cannot have prior prejudiced ruling by the the sense To support rationale, its majority —in he received an unfair trial —because cites Supreme dicta from the opin- Court’s yet trial has not occurred and ion in States, v. United 362 U.S. Schaffer is, ruling definition, provisional; court’s 511, 516, 945, 948, 80 S.Ct. 4 L.Ed.2d 921 is, inherently ruling subject is (1960), opinion and our in United States v. proceedings reconsideration as Berkowitz, (5th Cir. progress. 1981).4 Unit B Dec. See ante at 1569 n. 5. Upon reading, careful I conclude that these us,

In the case before made a cases not support do majority’s position. motion for pretrial severance on ject put example, prejudicial For if the event described for the same offense to be twice 1. concerns the of evi- jeopardy provision motion admission of life or is limb.” dence, a denied is fair is after evidence applicable binding upon to and the states undue either admitted or excluded through the fourteenth amendment. Ben- thereby harm caused cannot be alleviated. Maryland, ton 395 U.S. 89 S.Ct. (1969). L.Ed.2d majority 2. states "[t]he proceedings to no de- monitor the insure that Securities, Reynolds 4. In Stein v. Inc. 667 F.2d rights appear prejudiced fendant’s be (11th Cir.1982), adopted binding this court appro- trial and should order severance if precedent B all decisions of Unit of the former priate, no even motion made." Ante at 1569 if September Fifth Circuit handed after down added). (emphasis n. 5 1981. The fifth amendment to the United Con- States person provides no stitution shall "be sub-

1575 petitioners granted upon four proper preju- In were motion when Schaffer, count indictment. The dice is shown to have charged in a three arisen. petitioners charged the first three counts and Berkowitz therefore do not Schaffer shipment interstate of sto- separately with proposition stand for the once a de- charged them goods; len the fourth count fendant for moves severance the court has conspiracy to commit these substan- continuing duty grant to a severance sua tive At the offenses. conclusion sponte prejudice appear whenever seems to case, government’s the court dismissed the during Rather, the course of the trial. count, conspiracy petitioners and the the Ninth explained: Circuit has ground moved for severance timely Motions' to must sever be made counts so unrelated substantive maintained, right or the properly further work an un- proceed that to would will be waived. severance deemed To “spill prejudice respective fair over” preserve point, the motion sever petitioners that could not be overcome must be renewed at the of all evi- close jury. The curative instructions dence.... Premature to sever motions motions, petitioners’ court denied the pursued not diligently prejudicial as the them of the substantive convicted evidence unfolds cannot serve as insur- appeals court of affirmed. offenses. The against ance an adverse verdict. Supreme granted The Court certiorari to Kaplan, United v. F.2d States petitioners joinder consider whether of (9th Cir.1977) (citations omitted) 965-66 in one Fed.R.Crim. indictment violated added). (emphasis See also States United 8(b). P. Court their concluded Benz, (11th Cir.1984). joinder improper. had not been The Court ease, petitioner In the instant renew also that their trial had not concluded his motion allegedly for severance after the prejudice caused them the sort of undue prejudicial testimony given. Were I that should a Fed. remedied writing majority, for the con- reaching In R.Crim.P. severance. whether, my inquiry fined at time conclusion, say, majori- the Court did as the severance, his motion made for ty notes, that “the trial has a con- prejudice permit sufficient existed to us to tinuing duty stages all the trial to at conclude that the court’s denial grant prejudice ap- if does severance motion must deemed a be denial due pear,” 948; U.S. process. say, however, Court did not that the trial duty grant court has a severance sua

sponte. similarly provides no support

Berkowitz majority’s

for the rationale. defend-

ants in moved for severance at America, UNITED STATES of conclusion of a eodefendant’s Plaintiff-Appellee, antagonistic

which was to their defense. The Berkowitz court F.2d at 1132. held necessary that severance was not be- HILL, Raymond Eugene prejudice cause insufficient had been Defendant-Appellant. dicta, shown. the court stated: “The No. 88-5092. trial, failure to before move severance course, appellants’ is not fatal to claims. Appeals, United States Court of continuing duty district court has a Eleventh Circuit. monitor the prejudice entire and to Jan. order if severance such does procedural

arise.” Id. Schaffer, As

background of Berkowitz reveals only

court meant severance be

Case Details

Case Name: Donnie James Smith v. Ira Kelso, Warden

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jan 25, 1989

Citation: 863 F.2d 1564

Docket Number: 87-8658

Court Abbreviation: 11th Cir.