George Guy Derden, III v. Sheriff Sammie McNeel and Attorney General--State of Mississippi
938 F.2d 605
5th Cir.
1991
Check Treatment

*3 GARZA, Before REYNALDO G. probably Sherrod had committed nine or JONES, Judges. promised POLITZ and Circuit ten armed robberies but was son, Blan- David and his Neal Blansett all sentence on year a ten he would receive farmers whom sett, they were the testified promised Turner was charges. re- approached had Posey and Sherrod promised Posey was sentence. suspended Sher- They testified a ride. both questing guilt. non-adjudication home about Posey at arrived their rod and the bur- testified burglar Each confessed Blansett, he, According to David 1:30 a.m. Forrester, Ricky planned glary had been in West back Posey and Sherrod arrived Turner Posey and charged. was not who 2:00 a.m. Blansett approximately Point at Derden, without that Sherrod testified he had correct because time was knew this apartment notice, at Turner’s arrived prior he at clock when arrived back at the looked in Der- February in West Point on trip 2:30 a.m. The it was about Pheba apartment entered van. Sherrod den’s thir- to Pheba takes about Point from West *4 “it was time.” Turner Posey and told and driving time. ty minutes they had not admitted Posey and Turner testimony, Turner’s to check In order driving person look at good gotten attempted to have Turner McNeel Sheriff Derden), they nor had (allegedly the van from the scene of the route duplicate a few words with than exchanged more and back to through burglary Houston him. McNeel, According to West Point. Derden, Der- burglars testified The three driving time of two take a route would Smith, Sherrod, Po- Pam girlfriend, den’s He added twenty-four minutes. hours and Pheba, Mississip- drove to sey, and Turner non-driving time based fifty minutes arid re- Grocery into Wade’s pi, and broke testimony they stopped had upon Turner’s process they in the As a safe. moved time to fill length van for Derden’s van, they were to the carrying the safe light. tail to fix a defective up gas and with vehicle. approaching an frightened off time the total McNeel calculated Sheriff allegedly left Turner, and Smith Derden burglary scene from the consumed in the (Mississippi) drove to Houston and Point at three and back to West to Houston van, leaving Posey and Sherrod stranded. minutes. Sheriff and fourteen hours nearby ato Posey then walked and Sherrod testified bur- further each McNeel to West caught a ride back and farmhouse ar- Posey and Sherrod him that glars told Point. approximately Point at at West rived back in West that Turner back and 2:00 a.m. burglary had burglars testified they were. Point before a.m. a.m. and 1:00 12:00 occurred between burgla- following the Turner testified testimony of the Derden contends the van he, Derden, drove and Smith ry, All of is inconsistent. witnesses State’s roads, Houston, and taking back back to burglary oc- testimony established back to from Houston drove the van then a.m. Ac- 12:30 approximately at curred Point, let off. Derden Turner West where investigation conducted cording to the testified, burglars, as did the other however, Turner McNeel, have it would Sheriff apartment in West at his he arrived back and fourteen three hours taken least at Posey and Sherrod. Point before burglary trip make the from minutes Point. to West Houston and back scene to who two called witnesses The State also fact, the three spite of this each In away burglars from Wade’s chased the had that Turner burglars told Sheriff McNeel Jerry Thomp- McKee Grocery. Steve Po- Point before West had arrived back burglary interrupted the testified son Sherrod, 2:00 around who arrived sey and scene. burglars from the had chased a.m. them and the to catch They were unable defense, on the Derden testified In his Thompson saw last time McKee Sherrod, employee an burglary, Stark- date “headed toward burglars, they were store, Der- carpet approached deputy at called the Derden’s young men ville.” These borrowing van. den morning of the about on the at 1:00 a.m. sheriff Point at in West meet Sherrod agreed to it. burglary report Apollo swap vehicles with him. TO CUMULATE Club OR NOT-THE ERRORS Apollo swap was made at the Club and IN A HABEAS CASE? Derden and Smith travelled Sherrod’s Although say some would we are to measure for car- car to Houston homes playing Captain by sailing Cook1 uncharted pet policeman Derden asked a installation. waters with the use of a cumulative error pur- for directions in Houston and then case, analysis in a disagree. habeas we gas pro- chased for Sherrod’s car. Derden The United States Constitution sets a floor gas gas duced the ticket where the had which the purchased may go state not been but could recall the below. Conse location of the houses he measured for quently, the inquiry is whether this line carpet. policeman having recalled was crossed. Our circuit has never before seen Derden’s face but could not recall recognized analysis cumulative error in the where. have, however, habeas recog context. We nized analysis cumulative error in a direct

Derden called three witnesses to corrob- appeal. Birdsell, orate his that Sherrod had See United bor- States burglary. rowed his van on the date of the Cir.1985), denied, cert. (Derden’s girlfriend) Pam Smith testified 90 L.Ed.2d she had been with Derden when Sherrod (1986); Webster, United States *5 van, present asked to borrow the had been 307, (5th Cir.1984), F.2d denied, 336 cert. swapped Derden when vehicles with Sher- States, Buhajla sub nom. v. United 471 gone rod and had with Derden to Houston 1106, 105 U.S. S.Ct. 85 L.Ed.2d night question. to measure homes on the in 855, (1985); Canales, 856 United v. States Tim Smith and Heath Russ testified both 413, (5th Cir.1984); 744 F.2d 430-31 United present and heard ask Sherrod Cochran, 600, (5th v. States 697 F.2d 608 if he could borrow the van Cir.1983). recognize We now cumulative night burglary. analysis error in a habeas case. guilty found Derden of the bur- Nothing in previous precludes our cases glary and the sentenced him to seven taking us from this route. Mullen v. Sherrod, years. Posey and Forrester were Blackburn, (5th Cir.1987), 808 F.2d 1143 burglary not indicted for and Turner re- reject did not analysis a cumulative error five-year suspended a ceived sentence with corpus a proceeding. habeas That case five-years probation.

merely petitioner-Mullen’s stated all of OUR STANDARD OF REVIEW claims were 1147. meritless. Id. at There- fore, nothing peti

Federal courts he had to cumulate. This is review habeas tions for a “constitutional infraction of the not the situation in the case at bar. process rights defendant’s due which would perform How do we a cumulative error fundamentally render the trial as a whole analysis appeal? in a habeas There is no unfair.” Lynaugh, Lavernia v. 845 F.2d indepen set formula and each case must be 493, (5th Cir.1988) (citation quota 496 dently examined. The sole dilemma for the omitted). applied tion “The test to deter reviewing court is whether the trial taken mine a trial error whether makes a trial fundamentally as a whole is unfair. Laver fundamentally unfair is whether there is a 493, (5th v. 496 Lynaugh, nia 845 probability reasonable the verdict Cir.1988). fundamentally a trial is When might have different been had the trial unfair, probability “there is a reasonable properly Kirkpatrick been conducted.” v. Cir.1985), might that the verdict have been different 272, (5th Blackburn, 777 F.2d 278-79 denied, 1178, properly had the trial been conducted.” rt. 476 U.S. 106 S.Ct. ce 2907, (1986). Blackburn, 272, Kirkpatrick 90 L.Ed.2d 993 777 F.2d v. Captain great English explorer Fiji. Cook was the lands as Tahiti and charting who sailed the South Pacific such is- 610 on a denied, granted the writ cumula 476 U.S. Walker Cir.1985), cert. (5th

278-79 ours)), cert. analysis, (emphasis 2907, error L.Ed.2d 993 tive 90 1178, 106 S.Ct. denied, 951, 367, 78 a cumulative ex rel. perform States Why (1983); do we United L.Ed.2d 327 This is appeal? (3d in a habeas Maroney, 373 F.2d analysis v. 910 Cannon error in Due Process Amendment during Fourteenth Cir.1967) committed (“[E]rrors one or several fact whether and the quiry are case state court trial of a criminal to be funda caused trial errors corpus review in a habeas subject not important. It has mentally unfair is it is court proceeding in a federal unless error one time that the law for some been conspicuous the errors were so shown that Four petitioner’s trial can violate in a of deprive the defendant ly prejudicial as to process. right to due Amendment teenth ours)); Conner (emphasis a fair trial.” Wainwright, 807 F.2d See, Cooper v. e.g., (M.D.Pa. Deramus, F.Supp. Cir.1986) (exclusion at (11th 888-89 1974) errors com (“[I]t well settled that is mitigating hearing proffered sentencing during trial of a criminal case mitted process viola cognizable as due evidence subject court are not review state probative and when the evidence tion unless it is shown that federal court Cory, Thigpen v. prejudicial); exclusion alleged errors cumulative effect Cir.1986) (admis 893, 895-98 prejudicial as to de conspicuously were so testimony cognizable as eyewitness sion (em a fair trial.” prive the defendant eyewitness when the process violation due Coiner, ours)); Bowers phasis unduly suggestive pre-identifica three had (If (S.D.W.Va.1970) F.Supp. strong petitioner and encounters with tion “is such of trial errors cumulative effect alibi), cert. supported petitioner’s evidence justice, offend a sense of magnitude as to denied, *6 (citation quo and process due is denied.” Leeke, 725 (1987); Thomas v. 683 L.Ed.2d Hence, omitted)). we are not invent tation Cir.) (4th (confusing and 246, 250-52 F.2d only ing applying We are new law. regarding jury instructions contradictory to the accused over was secured which self-defense proof of on petitioner’s burden ago. years two-hundred violation), process due constitutes claim Mullen, state, quoting contends denied, 870, 105 cert. analysis error adopting a cumulative v. Wain (1984); Osborne L.Ed.2d 148 of would have effect habeas context (11th Cir. F.2d 1238-39 wright, This is ridic- soliciting appeals. collateral 1983) (admission allegedly gruesome and of merely providing that ulous. We are which cognizable photographs unduly prejudicial be the requires. It will The Constitution when the evidence process violation as due re- warrants highly exceptional case which extremely close on the trial is adduced at analysis. The a error lief on cumulative petitioner’s guilt). question of fundamentally unfair trial which violates together can also taken errors Several rare, occur it does process due but when right process to due petitioner’s violate a petition- analysis available should be fundamentally to be cause the trial and ers. Lundy Campbell, v. 888 F.2d unfair. See Cir.1989) (cumulatively ana 467, 481 of significance constitutional lyzing “the TRIAL WAS THIS denied, errors”), cert. the trial UNFAIR? FUNDAMENTALLY

-, 109 L.Ed.2d 538 keep in mind a important It is Engle, (1990); Walker single analysis no error is error cumulative (6th Cir.) (“Errors might not be so enough grant the writ. There ground deprivation to a prejudicial as to amount re- of errors which alone, must be a cumulation may process when considered due deprivation process. of due Con- sults in a setting that is cumulatively produce a trial proceed- analyze the entire petitioner sequently, we fundamentally unfair.” The ing.2 MR. ALLGOOD: your

If please, might Honor I get the judge The conduct Court to instruct argue counsel not to point case at this in this trial. judge en The conduct of the trial THE COURT: couraged predisposition guilt by the a that, I have Counselor, instructed him jury judge improperly con because and this is the last instruction I’m judge prose fused the functions of the and give him. Davis, cutor. 752 F.2d United States (5th Cir.1985). Throughout occasions, On several defense counsel judge trial the admonished defense counsel. was rebuked in the any objec- absence of judge jury told the that one of defense by prosecution. tion During the cross- difference, points counsel's didn’t make burglar Sherrod, examination of the follow- that he didn’t care for defense counsel’s ing exchange place. took remarks,” “side that defense counsel was Q. you You told him parole were on argumentative repetitious, that he you work, get couldn’t you? didn’t didn’t care whether the state’s witnesses A. Yeah. compared recess, during *7 belief.”). worthy nesses were of scant MR. WAIDE: occasions, separate prosecutor On ob- opportunity Whether he’s had to talk jected opening to defense counsel’s state- gentlemen? with these contending arguing ment he was his case. THE COURT: objection was sustained each time and I opportunity. don’t know about You defense counsel was instructed to refrain can cross examine him about when he arguing key from his case. A defense talked to them. He said he talk—he theory was that the State’s witnesses could hadn’t talked to them. You can cross possibly telling be the truth because it examine him on that. physically impossible burglar Turn- MR. WAIDE: er to have travelled with Derden to Hous- Well I’d like to show he’s had the ton and still arrive West Point before opportunity might, your if I Honor. burglars Posey and Sherrod returned. A THE COURT: opening somewhat detailed statement was explain Further, jury. Counsel, needed to this to the what difference does it make response to prosecutor’s one of the opportunity every ob- if he had an to talk jections, judge the trial chastised defense day if he didn’t talk. Cross examine him counsel. on the times he did talk to them. given 2254(d) applies. 2. Deference is to the factual determina U.S.C. § Marshall v. Lonber 422, 432, ger, tions of the trial court unless the federal court finds one of the eight exceptions listed in L.Ed.2d your and call serving time. Go ahead Jay Po- examination During the cross place: witness. took following conversation sey, the lawyer] you [your him Q. But told examina- Immediately the direct before me, you? didn’t talk to to didn’t want Matthews, following took tion of Oleta to I need if—did—did place: I him A. asked you; he to talk to I have you,

talk to did MR. WAIDE: not, and I did not. I did said no very wit- brief I have one other brief— I offer anything could Q. have I didn’t ness, your Honor. I, Posey. Mr.

you, did THE COURT: MR. ALLGOOD: brief, going I’m to right, if it’s not All I’m to ask please, your

If Honor make it brief. finish allow the witness Court closing during defense counsel’s Finally, counsel before his answer completing made the remark fol- argument, the court one. asks him another prosecution lowing objection an THE COURT: attention; I paying any don’t just “I wasn’t Counsel, answer, complete himLet said, Counsel, may but know what side these little care about don’t dialogue recited All of the above proceed.” questions. ask remarks. Just pro- deprive petitioner of due did not itself adversely upon reflected the de- cess but Posey, examination of At the close of the and his counsel. fendant judge the ex- informed be next witness would amination stop with defense judge The trial did not he judge whether asked the lengthy. He counsel, rep- however. He admonished take the for lunch or to recess wanted time rimanded Derden several times. Each recess. At that the lunch before witness jury’s impression of the defen- lowering the exchange place: time, following took essentially weighed the tes- jury dant. against testimony of timony Derden MR. WAIDE: important re- It is the State’s witness. Honor, I move the Court would Your for the State that each witness member on; to see—let the go important it’s exchange for testimo- had struck a deal them State’s see witnesses] [the following is illustrative of ny. The one opportunity to talk to not have an petitioner: treatment I’d during the noon recess. another telling the go Q. Assuming Turner was on. move the Court truth, gone from and that van was—had you’d to Pheba after Point over West during another They don’t talk to one slight and made a up filled Columbus recess, the noon Counselor. Starkville, gone and then detour toward MR. WAIDE: would that up your opinion Houston in Honor, in the same wit- they’re Your *8 in it in Hous- any gas needed van have ness room. ton? THE COURT: gone to Mem- A. That van could have jury. talking about the I’m Tennessee, needing any phis, without MR. WAIDE: gas. witnesses, your talking I’m about MR. WAIDE: to have— important for us Honor. It’s into evi- Tender that last document MR. ALLGOOD: dence, your Honor. please— your If Honor THE COURT: MR. WAIDE: into evidence. not be received It will —have them taken— Derden, Mr. the witness. Let me caution THE COURT: gone Memphis or care if it had I don’t that, either; just jury don’t Chicago and the any of I don’t care about understand? question, you do con- answer his thing I’m concerned about is only in Yes, George’s jail records and he never sir. A. go, and I would have letters I’ve sent seemingly unimportant, Although asking to him him to look at them. the testi- critical. Under all MR. ALLGOOD: gone to Houston on the mony, Derden had inquiry your please— If night question. in The crucial Honor car, in Derden went Sherrod’s whether THE COURT: testified, in or whether he went Counsel, he’s testified he where was. burglary, in the which had been used van I you’re Now don’t trying know what testified. The vehicle that went as Turner with the you’ve got do records. If wit- gas at the Pak- to Houston was filled with nesses here that made these records and burglary. The night on the a-Pok properly peo- can validate them and the receipt showing this was introduced into ple testify he worked for here to that he evidence. Derden wanted to discredit in; day, was there that then I’ll let them testimony that the van used in the Turner’s otherwise, I going am not let these gassed up in in- burglary had Houston records in. He can testify where he was troducing receipt showing that he had and what he did. day and gas filled the van with earlier that MR. DERDEN: gas in not have needed Houston. would Sir, can I make a statement? judge’s important This is because the trial THE COURT: he not care comment seemed to indicate did lawyer adequately rep- No. Your can any needed whether the van would have you. resent gas in Houston. following examples are other judge’s comments to Derden: Q. Derden, long you Mr. how did it take Q. you any have invoices or busi- up yonder Do to measure that house showing you ness records where Houston? carpet you

when installed the the next A. I I measured two houses. would—I day? say ap- would I was at the first house Yes, sir, A. I hour, do. proximately maybe an and then I I was at the second house like said I Q. you produce Do—could those for people talked to the because the man was me? selling carpet interested in some MR. ALLGOOD: area he indicated. Houston your please, If Honor I—I’m THE COURT: basis; object to on the same those these Witness, you he asked discovery; Just a minute. provided to us it’s .were simple question, long how did it take the first time I’ve ever heard of such He didn’t you to measure the houses. receipts. you ask who talked to or what MR. WAIDE: ques- conversation was. Just answer the Actually— tion, long did it take to measure how MR. ALLGOOD: the two houses. any relevancy have don’t think whatsoever— Q. receipt or the for the The ticket Houston, get through, him Counselor. gasoline up

Let check for *9 that correct? MR. ALLGOOD: sir, got laying I whatsoever, get A. If I can I’m —Any relevancy and —that there; you like for me right over would going object to them on that basis. you?. get it for MR. WAIDE: Q. over there to Mr. Gra- You took that false, Honor, absolutely that’s Your office, correct, Mr. Derden? ham’s is that produce kept I and I’ll the records where you, sir? asking go get A. I that for them to over and look at Can THE COURT: den. A. you don’t ask material rect? Q. Q. I’m Mr. # Yes, sir, I’m Derden, asking you sure it is. there [*] I— you questions. in [*] Columbus, is that cor- answer the a You unloaded question, [*] [*] questions; Mr. Der- [*] petitioner. previous body with plaining family; I have might commit ments do cated At explain sentencing, the trial person that does “I have felony conviction.” not validate the an education his contempt for Derden burglary to no compassion for an unedu- compassion for some- such as not have a judge treatment get food for his yours Such com- attempted job by and given that ex- a Columbus, in carpet store At the A. judge The conduct yes, sir. by forth set violated the standard this case full, a van load was Q. And the amount neu did not exhibit judge circuit. This our that correct? trial and his con trality conducting the records) through (Witness looks A. Derden was a impression duct left the rolls; them one of nineteen There was v. Candelaria- guilty man. United States forty-eight feet and two hundred (5th Cir.1977). Gonzalez, F.2d Oh, sorry, long. I’m nine inches and found, a magistrate there was “hos As the total. the that’s accumulated by judge’s atmosphere created the trial tile THE COURT: The instruction remarks and attitudes.” Derden, you just answer can’t Mr. jury at the end of by judge to the given the or a van load full or it was whether not cast over not dissolve the cloud the trial did full. quarter or a half full ruling merely con either. This full, load sir. It was van not con A. was—it “You must the evidence. cerned nineteen rolls. had reasons for the yourself with the cern they are controlled rulings since Court’s You by rules law. should governed and you. he right, asked All that’s what however, infer, any of the from Court’s however, compari- pale, These remarks any opinion has that the Court rulings petition- judge the addressed son to what favoring one side or case merits In re- cross-examination. during his er ours) (emphasis From our the other.” by question to a sponse if the proceeding, even instruc view the jail, “Well I’ve been responded Derden repri concerned comments tion had January twen- gentlemen, since ladies and “some com judge, made mands To ty, eighty eighty-five—.” which prejudicial are so or remarks ments a minute. Face court declared “Just jury to the strongest instructions even the lawyer’s ques- lawyer and answer questions or com disregard judge’s jury, tions, not address the you do United States will not suffice.” ments I’m not to cau- you understand? (5th 1291, 1296 Cir. Carpenter, 776 F.2d a re- again.” Such you about tion 1985). Moreover, many of the remarks could leave no mark was inexcusable defendant, Derden. were directed at Derden impression with the other stand in takes the a defendant “When remark, Shortly after this still guilty. unnecessary comments behalf, any own by de- during of Derden cross-examination likely to have a detrimen the court are too counsel, judge asked the fense ability to decide the jury’s tal effect on question he asked I not “Could answer especially This is true impartially.... case me, sir, to it?” To if I the answer know directed are judge’s remarks where the snapped you back “When which the v. Middle United States no, the defendant.” yes or question answer answer Cir.), cert. brooks, explanation it needs an understand? If denied, reason, explain your I’ll let but first *10 (1980). of the trial actions L.Ed.2d 246 The yes answer or no.” substantially petition- MR. contributed to ALLGOOD: process. of due deprivation er’s any you Do feel that such testimony from such inherently witnesses is un- prosecutorial misconduct The (No truthful? response) The conduct dur MR. ALLGOOD: ing trial also to a denial of contributed you any If have reservations about process. prosecutor’s The conduct due that, now your would be the time to raise process amounts to a denial of due when hand. his comments “so infected the trial with MR. WAIDE: resulting unfairness as to make the convic Darden v. Honor, process.” tion a denial of due Your if please, the Court for 168, 181, Wainwright, object S.Ct. record I do to that. I think it’s (1986) (quotation 91 L.Ed.2d 144 an improper question, incorrect accord- omitted). must and citation conduct be ing to law. persistent pronounced “either or ... THE COURT: proba the evidence so insubstantial that [in right, All your the record will reflect bility] but for the remarks no conviction objection. may proceed. You I believe Kirkpatrick would have occurred.” they’ve question answered the Counselor

Blackburn, Cir.1985) 111 MR. ALLGOOD: omitted), cert. de (quotation and citation you Thank your Honor. nied, L.Ed.2d 998 Now would anybody anybody simply disregard testimony of those witness- dire, During prosecutor sought voir simply es plea bargain because of a ar- jurors commitments that the would believe rangement with them? testimony burglars. of the admitted prosecutor, Allgood, Mr. ju- told the MR. WAIDE: people rors testify three for If please, object the Court I to that the State and all three had cut “deals” with now; jury may entirely disregard it if testify. the State in order for them to they find from the evidence it should be following place: then took disregarded, improper and that’s an MR. ALLGOOD: question. my questions you Now in this re- THE COURT: all, gard simply any this: First of do that, The Court will instruct them on you feel testimony, that such such ar- Counselor, proper at the time. will, rangements, you inherently if are MR. ALLGOOD: untruthful, inherently would cause the witness not to tell the truth? anybody simply disregard Would their testimony plea simply of that WAIDE; because MR. (No bargain arrangement? response) Honor, Court, if please, Your I that; object question that’s a MR. ALLGOOD: jury to determine as to whether it would. second, right, point: All would I think proper don’t he’s —this is the time you automatically disbelieve it arguing to be about that. just in this context? because it was made MR. ALLGOOD: (No response) Honor, arguing, your I’m not I’m ask- MR. ALLGOOD: ing question. Okay, basically try- what I’m there is— THE COURT: ing get to and I—and—and as under- All right, just questions. ask it, telling you all me that stand are MR. ALLGOOD: testimony weigh will their as would you, your Thank Honor. anybody anybody says else’s. If that, they they cannot do could not argue your weigh any- Don’t case. would their *11 why the explain defense and does not dire please indicate it you would body else’s Consequently, were overruled. objections hand? raising you now any on bearing little if had the instruction MR. WAIDE: light what had jurors of minds of the the Honor, object because to which Your place. taken earlier law matter of as a they’re not entitled anybody weighed as testimony their have similar to the prosecutor, The statement of an incorrect That’s else’s. improper conduct did not limit judge, the law. trial, instance, During the however. one THE COURT: bring in evi improperly managed to he them properly instruct will The court allegedly committed of other crimes dence the—on co- cross-examination by petitioner. On Sherrod, ad counsel conspirator MR. ALLGOOD: defense had committed evidence Sherrod duced you, your Honor. Thank he was for which of other crimes number THE COURT: to show that punished to be not credibility of wit- —Believability or testifying. had a Sherrod motive Let’s move proper time. at the nesses however, advantage of took prosecutor, on. as shown solicitation of evidence this MR. ALLGOOD: following: the your Honor. you, Thank MR. ALLGOOD: prob- any have you Is that —if charged awith Q. you you Now you would statement lem with that armed robberies number of—of any- testimony would weigh their of rob- County and a number Lowndes your else’s, you please raise would body matter, in, I think Ala- for that beries (No response) hand? bama, is that correct? above, prosecutor the As illustrated right. That’s A. promises from the permitted obtain Q. Mr. cross examined And Waide co-conspir they consider did not jurors those, correct? on is that “inherently untruth testimony to be ator ful,” Right. not disbelieve the A. would bargain plea the because of witnesses MR. WAIDE: weigh the co- they would agreements, that Honor, please, I ob- the Court Your if “anybody testimony just as conspirators make a and I’d like to record ject to this prob “no the saw jurors and that else’s” presence the probably it outside on testimony. co-conspirators’ with lem” indirect; grossly improper it’s jury. It’s improper under dire was line of voir This Allgood knows and as Mr.—Mr. improper testi The uncorroborated Mississippi law. a record on this because I’d like to make accomplice must “be viewed mony of an fixing try I know he’s I think what suspicion and great caution and with do. improbable not or reasonable and be must substantially im self-contradictory or him you asked I don’t and Well he— State, 340 So.2d Thomas v. peached.” robberies; at this time these about ignored that not to be at (Miss.1976). It is objection is overruled. judge trial, the trial did end of the MR. ALLGOOD: ques point.3 this instruct robberies, Mr. Sher- Q. In all of these however, al remains, why judge tion you? rod, with who was involved improper pursue lowed George A. Derden. at instruction dire. This miniscule voir Q. And— possibly have the trial could end MR. WAIDE: done at voir damage that was overcome great suspicion it with caution.” regard consider jury they were "to told the co-conspirators] with [of

617 specifically object Your Honor on the sters our conclusion that a violation of the trying prove Due grounds that now he’s to Process Clause occurred. other crimes that Mr. Derden has not The radio log charged today, prej-

been with and it’s all udicial— general defense made a request for prosecution the produce exculpatory all evidence. A log radio which could have right, objection All the is now sus- key been to the defense produced, was not tained, jury and the will be admonished Clay however. The entries on County the disregard that remark. log 9,1983 Sheriff’s radio for February Despite defense counsel’s efforts to draw 10, February prove 1983 the testimony of this matter to the court’s attention before Hugh State’s witnesses Stevenson and happened, by objection means of an or Sheriff Sammie McNeel possibly incor- presence jury, prose- outside the of the the rect. Both Stevenson and McNeel testi- managed improper cutor to elicit this testi- fied, according log, to the radio Stevenson course, mony. Of the curative instruction called the Sheriff’s Office at 1:00 in a.m. forgotten. should not be did order to run an identification check on a jury disregard instruct the the testimo- Mississippi plate. log, license The radio time, however, ny. By that the skunk was however, shows Stevenson did not make in already the box and the stench the call until 2:05 a.m. Donnelly could not be removed. See In Brady Maryland, 373 U.S. 637, 416 DeChristoforo, 94 S.Ct. 83, 87, 1194, 1197, 83 S.Ct. 10 L.Ed.2d 215 (1974). Moreover, 40 L.Ed.2d 431 pros- the (1963), suppression the Court held “the blatantly disregarded ecutor the law of prosecution the of evidence favorable to an Mississippi and introduced evidence of an- upon request process accused violates due separate charged other crime from that in where the evidence is material either to the indictment and for the which accused is guilt punishment, irrespective or to being State, tried. Bolin v. 489 See So.2d good prosecution.” faith or bad faith of the (Miss.1986). improper con- A prove defendant following must the corpus duct alone does not warrant habeas (1) Brady prose establish a violation: relief significantly peti- but contributed evidence, suppressed (2) cution sup deprivation process.

tioner’s of due pressed evidence was favorable to the de (3) suppressed

fense and evidence was The weak evidence material to the defense. United States v. Lanford, 838 F.2d Cir. co-conspirators testified for Three 1988). materiality The test is whether State to the events which occurred that, there is a probability “reasonable had night question. on the According to defense, the evidence been disclosed to the independent testimony, burglary oc proceeding the result of the would have approximately curred at 12:30a.m. and that been different.” Bagley, United States v. Sherrod, Posey burglars who were 3375, 3383, 105 S.Ct. burglars left at the scene the other when (1985). reviewing L.Ed.2d A may court vehicle, fled in the arrived back West prosecu consider adverse effects the Point, Mississippi at 2:00 a.m. or 2:05 a.m. might tor’s failure to release information According of Sheriff preparation have had the defendant’s Turner, McNeel and the drive from the presentation of the case. United Point, along scene of the crime to West McKellar, States v. he, route Turner claims Derden and Pam (1986). took, Smith would have taken over three Consequently, log hours. it is clearly difficult to see The radio an im co-conspirators telling peachment how the for all device of the State’s wit This, itself, regards Sherrod, truth Posey with to this. nesses. and Turner would process impeached by log is not a violation of due but bol- have been because it finality judgments. for the of state court discredited their stories would have — U.S. -, ques- Thompson, Coleman v. night occurred on the events which (1991); 115 L.Ed.2d 640 make the call McCles If did not tion. Stevenson Zant, U.S. -, by key v. a.m., given the time frames until 2:05 1468-69, 113 L.Ed.2d 517 When deserve lit- co-conspirators would the three *13 appealed armed his conviction for the defense was credence. The crux of tle Court, State, robbery Mississippi Supreme to the events, by as described that the he contended that fundamental fairness impossible. log The chronologically by violated effect of cumulative testimony of Stevenson and impeaches the alleged many of the trial errors raised contradicting testimony. their by McNeel exception, here. With one the State Su log another Failure to disclose the found all preme Court of them meritless contributing process to the due viola- error point warranted no discus tion. State, sion. See Derden v. 522 So.2d ADD IT ALL AND DO YOU UP WHAT (Miss.1988). Supreme The State Court A OF

GET? VIOLATION did rule that the violated Missis PROCESS DUE sippi law the conduct of voir dire on the testimony, co-conspirators’ but it held that trial, had an beginning At the we later this error was cured progressed entire cloth sheet. As jury court’s instruction.1 prose- judge the conduct from the and the worsened, developed down the cutor a tear To reach its conclusion that “cumulative improper middle of the sheet. With each error” caused a convictionthat violates due lengthened remark the tear until at the end process, panel majority have read the is now two. It of trial what was one sheet diametrically differently record from takes two sheets to obtain relief a habe- Supreme majority’s State Court. The scat- symbolic sheets are as context. The two ter-gun cumulation of “error” allows ser- process a due violation. trial, ies of unconnected events in the sev- eral of which would considered not even be and the When the conduct of state, errors of much less constitutional light prosecutor are examined law, jury supported by to vitiate a verdict trial, testimony testified in adduced at who I cannot considerable evidence. reconcile (people who order obtain conviction majority’s freewheeling reading State) had cut deals with the and the im- record with the restraint that we are to peachment evidence the defense was denied I exercise under and must there- glaring process. due § have a violation of respectfully grant- fore dissent from their a violation habeas relief. Such warrants ing of the writ. CONCLUSION first, necessarily disagree But I do not judgment Accordingly, the of the district corpus might granted that habeas be for a petitioner’s court is writ REVERSED errors, individually series of trial court not corpus of habeas is GRANTED. State reversible, poisoned the state trial so ninety days in Mississippi has which to cause, atmosphere court as to on the whole

retry Derden or set him free. record, questionable guilty verdict. aggregation Supreme Court found such an JONES, Judge, EDITH H. Circuit Taylor Kentucky, error v. dissenting: (1978), 98 S.Ct. L.Ed.2d Supreme firmly Court has stated where several flaws in the state trial corpus responsi- failing that federal the common theme of courts’ habeas shared bility regard guilt must be exercised with due inform the that criminal must be Derden, being accomplices burglary. 522 So.2d at 754. The trial court admitted this agreed give proffered regard great defense counsel’s in- with You are to that, charge you Jay Posey, struction “I suspicion and to consider it with caution." Tommy Willie James Sherrod and Turner have really find the trial This defense counsel did doubt. beyond a reasonable proved opposing counsel’s action offen court’s or on a “cumula- essentially relied court also review, Third, typical in sive. as is habeas granted the writ theory when tive error” must review the record as a the court trial was overshad- defendant whose to a the errors whole to determine whether stipulation pre- ambiguous by an owed likely suspect than not caused a more ver insanity de- arguing an him from vented Blackburn, Kirkpatrick dict. as- prosecutor repeatedly while the fense Cir.1985), denied, cert. serted, overwhelming medical contrary to 90 L.Ed.2d evidence, could not have that defendant limitations, ac These while his wife and when he murdered insane been knowledged by majority, are neverthe Lynaugh, slashed his wrists. Guidroz analysis, hope less distorted their *14 Cir.1988). 832, (5th also See F.2d 837 852 many demonstrate that there were not so 467, (6th F.2d 481 Campbell, 888 Lundy v. upon impact “errors” with an adverse Der- U.S. -, denied, 110 Cir.1989), cert. though den that even none of them would 2212, (1990); v. 538 Bell 109 L.Ed.2d S.Ct. Cir.1988), together significance, rise to constitutional 169, (7th 170 Duckworth, 861 F.2d fundamentally denied him a fair trial. denied, 109 489 rt. ce 1552, Further, tenuously this verdict was not so (1989); Matlock v. L.Ed.2d 855 103 supported majority suggest. the Cir.1984), (6th Rose, 1242 denied, cert. I. The “Errors” 812 Our decision L.Ed.2d (5th Blackburn, 808 F.2d 1143 v.

Mullen question is whether the The fundamental Cir.1987), possibility of does not reach powerfully have so influ- jury could been for habeas error as a basis cumulative reasoning enced trial “errors” that their rejected theory merely relief. Mullen fatally majori- The processes were flawed. petitioners encourage habeas that “would point three sources of “error”: com- ty to multiply even if none these to claims ... court; of by the trial two instances ments Id. at any merit.” had misconduct; 11 Brady and a vio- prosecutorial question I of these lation. .whether events, apart prosecutor’s from the voir however, cases, highlight obvious These testimony, co-conspirator dire about princi- necessary impart to some limitations individually cumu- to or amounted “error” theory, error” so ples the “cumulative to latively. encourage federal courts that it does not they viscer- simply to overturn convictions Judge A. The First, theory refers ally disagree with. A in the trial court. defendant

to errors most of their panel majority devote rul- complain of unfavorable may just alleged not judge’s to the state criticism to cumulate in the effort each ings or events Derden. What intemperance toward Rivera, me, however, is at best errors. See United States reflects to event Cir.1990) (en banc). instance, agree that it F.2d ambiguity. For Second, objected prudent had the a defendant have more must have been would error, pro- point alleged only because of Derden at one judge not instructed Nevertheless, bar, easy, jury. it is too cedural but also because not to look at authority to record, misinterpret acting within reviewing a cold court was comment, Derden had at trial. because evidence or comments make some impact of unresponsive to the Canales, wholly begun speech, a See, e.g., United States ap- directly trying (5th Cir.1984). question, prosecutor’s The absence Repeatedly, Derden’s jury.2 suggests peal to the objection powerfully of an had, February, is that right, your the ninth of receipt you van on—on Q: is that That’s a gas right? You testified from a ticket Mr. Derden? had, put did, receipt had yes, a certainly sir. A: I gas your many gallons nine —so —in prosecutor a deal from the in order responses questioning ceived Instead, attorney “get” had been unre- on and his own Derden. he embarked court continu- sponsive rambling and narrative. The preview likely evidence. this conduct. ously cautioned Derden about Surely judge pre- was entitled to just instructed Derden twice had symmetry length style in the serve transcript, and at preceding page remarks, opening to maintain control both times, directly. questions other to answer attorneys’ of his courtroom and because say hindsight that the trial really Can we well-motivated, statements, however are discretion, much less court here abused his not evidence. against inflamed Der- that the became repeat Finally, majority instances judge’s instruction? den because of the which the court admonished defense coun- When, closing argu- during defendant’s ways during Juxtapos- sel in various trial. ment, prosecu- responded to the the court ing highlight these comments to their ef- hear objection by saying he did not tor’s misleading; fect the trial court tran- candor argument, defense counsel’s reviewed, script, fully which I have is 650 regrettable. But in the might have been long. pages virtually impossible It is objection did not sustain the end the court record, say, reading long, cold that these proceeded. counsel and defense denigrated sporadic remarks so the defense *15 provide a context for this record does not destroyed jury’s counsel as to have the remark; reviewing perhaps the impartiality toward Derden. Derden’s trial activity in engaged or otherwise an exhibits signifi- think most them counsel did not of legitimately his from drew attention enough point specifically cant to out in his argument. the Mississippi Supreme brief to the Court.3 objects having the court’s Derden also to Nor, course, object of did he of them objections to his counsel’s sustained four in the trial court. This, too, argument. raised opening Contrary charge Derden’s of trial discretion, appeal on direct as an abuse of bias, court the record reveals other instanc- Supreme and the found no State Court during in es trial which the court aided circumstances, particular error under the defense counsel. The court insisted that pausing not even to write on the matter. readily the obtain records not prosecutor’s opening argument was ex- to them of criminal ac- available Sherrod’s tremely could have brief. Defense counsel tivities in order to assist defense counsel’s summarized his contentions with similar impeachment. The court also allowed hear- brevity by saying co-conspirators that the say questioning by during defense counsel lying, were all because their stories were completely preliminary hearing inconsistent and each had re- a and at trial. On Now, course, trial; (D) el: nothing judge’s commenting there’s unfair the trial out, thing there, made is jury to tell us when that was "cared” about one of that neither he nor the defenses, Mr. Derden? to the denial the accused's contributed jail, gentle- A: Well I’ve been in ladies and trial; (E) judge’s continuous of a fair the men, twenty, January eighty eighty- since accused, and admonitions to correction of the five— jury, contributed to the him in front of the trial; (F) judge’s the trial admis- denial of a fair layer Just a minute. Face the and answer hearsay by Richard Dis- sion of the statement lawyer’s questions, the do not ad- Apollo not been at the muke that Derden had jury, you dress the understand? I’m not night burglary question the Club on the again. to caution about this trial; (G) denial of a fair the contributed to the appellate points 3. The numerous raised Der- year delay in the trial contrib- two and one-half Mississippi Supreme den in the Court relative to trial; (H) permitting a fair uted to the denial of (A) the fundamental fairness of the trial were: Smith, co-indictee, Pam to be cross-exam- the Evidence of fundamental unfairness was ad- failure to come forward with a ined about her (B) hearing; pretrial prosecu- duced at the the concerning burglary, the contributed statement obtaining promises by jurors tion’s the to be- trial; (I) permitting a fair to the denial of witnesses, co-conspirator lieve the State’s con- jury evidence of crimes con- the to hear other trial; (C) tributed to the denial of a fair the trial denial of a fair trial. tributed to the judge’s frustrating attempt defense counsel's opening make an statement contributed to an

621 court, den had been tried federal a viola balance, to have conduct- appears court 404(b) evenhandedly might tion of Fed.R.Evid. have oc irreproachably, ed error nor curred—neither constitutional objections. ruling on both sides’ itself, particularly because of reversible us, familiar with thing for It is one trial court’s prompt curative instruc system, court in the personalities federal See, Lane, e.g., v. 818 F.2d tion. Woodruff effectively taken has that a court declare 1369, (7th Cir.1987); Sargent 1373 Ar v. v. United States prosecution. over See montrout, 220, (8th Cir.1988). 841 F.2d 224 Cir.), 273, (5th Middlebrooks, 618 F.2d was, prosecutor attempted As 984, 101 denied, cert. Mississippi A rule evidence. breach (1980); v. States United L.Ed.2d rules, evidentiary of state how violation Candelaria-Gonzalez, 547 F.2d ever, cases, is irrelevant where habeas Sheldon, Cir.1977); (5th United States only issue whether the trial violated Cir.1976); (5th United 544 F.2d norms. Hopkinson v. Shil constitutional Diharce-Estrada, States (10th Cir.1989). linger, 866 F.2d Cir.1976). quite another It is Yet, majority make no effort to show we, met the trial having even if never prosecutor’s “conspic conduct was record, condemn the judge or examined uously prejudicial” standard for deter —the the abstract courtroom from “tone” of his mining whether the admission of evidence ambiguous record.4 vantage point of an Id.; process. a defendant denied due none of the persuaded where am not Instead, Woodruff, 818 F.2d at 1373. to the individually attributed comments mere majority summarily conclude that the discretion, they an court is even abuse rule of attempted violation of a state evi other cumulatively tandem with or in acted significantly petition “contributed dence against the defen poison events to process.” denial of due er’s dant. *16 for two rea- This conclusion is flawed Prosecutor B. The First, significant if was as this error sons. believe, majority certainly Derden the as admittedly overstepped prosecutor The Instead, requested mistrial. have should according Mississippi to law his bounds the trial court’s chose to rest on Derden to commit the in dire he tried when voir disregard, strongly suggest- to instruction co-conspirators’ testi- the jury to evaluate error, prejudicial impact of this ing that the error, law mony any like other. This state light judge’s curative in considered held, have Supreme would the State Court Second, instruction, as was minuscule. had not if the trial court reversible been courts, the circuit by held our sister was end of jury at the properly instructed the infringed is not Constitution States United Derden, testimony. to of such trial beware testimony ex- attempt to introduce by an This cured error at 754-755. 522 So.2d evidentiary rules. only by state cluded alone, magnitude not of constitutional was improperly gives state a conclusion Such grant the Great it is not sufficient to and east. rules constitutional Writ. prosecutori- overzealous asking I do not condone in Sher- prosecutor also erred The however, Here, such tactics accomplice in tactics. al rod to reveal as curative by the court’s im- misstep was cabined But this other robberies.5 timely instructions, was no mistrial in- and by the trial court's mediately corrected can our How counsel. disregard. sought If Der- defense the struction to permit an Although refused to oppor- the trial court Mississippi Supreme the Court had 4. The objection fair- tunity consider fundamental Derden’s in camera before hand, rejected argument hardly and it out of with- court ness fault the trial given, can one highest Mississippi’s court is far discussion. out not obvious It was abuse of discretion. for personally likely know the than we are to more questions prosecutor’s preliminary from the prosecutor and judge, the of the trial record in-the-making, imminently and that error was to draw mean- and to be able defense counsel ingful observed. the court so record. inferences from this ignore Derden’s failure majority lack The find a of the record antiseptic review of the “errors” objections to most interpose coun that defense fairness fundamental of in an supposedly resulted judge that during trial? The wholly overlooked sel so, they de doing In have trial. unfair fails misconduct charge prosecutorial of opportunity to court of the prived the trial re error” habeas “cumulative a basis instance, first “errors” correct those review is “the our standard lief because to “ride the verdict” allowed Derden not the process, and of due one narrow “hip- a reversal on basis and obtain power.” supervisory exercise broad majority also over The pocket” errors.6 168, 181, Wainwright, 477 U.S. Darden courts are fact the federal look the 91 L.Ed.2d 106 S.Ct. juries can theory that to the committed properly instructed. disregard errors when “Brady” Violation C. Darden, n. 15 at 2472 & See Brady violation likewise fur- alleged DeChristoforo, Donnelly v. (1986); If the Derden. no assistance nishes over evidence had turned Ma States v. (1974); United L.Ed.2d 431 the rob- call was made on police radio no Cir.1987). 241-42 gee, a.m., it not clear that such 2:00 bery until Yet, curative instruction presence exculpatory. would have been evidence prosecutorial con alleged instance of each report on their police might have acted analysis majority’s plays no role duct burgla- placed the slowly. witnesses Other fairness. of fundamental a.m. If the 12:00 and 1:00 ry between Finally, majority fail to consider sense co-conspirators’ and witnesses’ errors length of Derden’s trial. Isolated incorrect, not cast that does time was errors heavily repeated than weigh less occurred, nor does it burglary doubt that a See, e.g., entire trial. permeate greater degree their demonstrate Nickerson, States United Derden’s involvement. prevarication about (5th Cir.1980). length Given police call disagree that the evidence trial, I difficult thoroughness of this find it material, af- exculpatory, or sheets influ- jurors were so imagine prosecution, firmatively suppressed by the judge’s prosecutor’s con- by the enced Brady to a prerequisites are all of which the evi- appraise would not duct that claim. *17 dispassionately. The objectively and dence fairly establishes that the instances record Impact” The D. “Cumulative by majority the were aberra- recounted tions, a cumulative evidence of and not impossible According my analysis, it is passion preju- dominated and proceeding judge abused his dis- say that the trial dice. relatively mi- except possibly in the cretion to Der- points of his one admonishment nor II. The Verdict and the observa- jury not to face the den by Derden cannot alleged “errors” The point a of defense that he did not hear tion it significance unless rise to constitutional Similarly, argument. counsel’s they the outcome of likely that affected jury to the curative instructions judge’s support does not such The evidence trial. alleged instances of respect to the two with inference. an significantly re- prosecutorial misconduct fully Derden’s jury was aware that prejudice to Derden. The duced the risk of against co-conspirators who testified simply does three of these events combination treatment received favorable process. him had each up violation of due not add to a -, whether, L.Ed.2d 640. If 111 S.Ct. question, "cumula- U.S. when It is a nice likelihood, so, proposed Derden is basis for habeas it seems a tive error” is the this is relief, petitioner upon judicial relies instances and a misbe- the three issues of confined to bias, every procedurally in- judicial defaults he Mississippi Supreme he raised in the havior that bring before the error that he did not dividual supra. Note Court. See Thompson, state courts. See Coleman against Posey could have decided Derden on prosecutors. Turner from the gave prosecutor the they the record. also testified burglary statements about before in- alleged plea bargain was reached. III. Conclusion in their related consistencies From the events recounted so vehement- they all arrived the times at which only to ly by majority support of their con- during the middle of the in West Point back clusion, I starkly draw a different lesson. burglary. following attempted night, occurred, To the extent trial court errors impossible for contended it was they during were either addressed trial and his van on a three- Turner to have driven thought were thus or cured were not burglary inter- odyssey after the hour significant by they defense counsel then as gotten back to rupted and then to have portrayed. are now If there were no er- Posey, who Point Sherrod and West before rors, there can be no “cumulative error” timing directly. That a ride more hitched Mullen, grant of habeas relief. the farm- inconsistency only arose because assuming at 1147. Even that one or two of gave son a ride to Sherrod er’s who error, however, these events constituted Posey dropped that he them off testified Mississippi Supreme the unanimous Court just 2:00 a.m. At least West Point after agreed and the federal district with inconsistency could two resolutions of this my view of the fundamental fairness of the jury other than have been reached proceedings, although magistrate judge co-con- exculpatory conclusion that the panel majority and the do not. It would son read spirators lying: the farmer’s seem that differ when reasonable minds hours; wrong or

the clock at those late highly about the cumulative effect of dis- incorrectly his route and Turner estimated trial, parate finding events at a that favors delays during rainy night. regularity proceed- of the state court incriminating evidence was Other Taylor, ings is warranted. Cf. used against record Derden. His van was 487 & n. 1936 & n. burglary. stopped He and tick- in the (errors 56 L.Ed.2d 468 were all related having working eted at 3:45 a.m. for diminishing proof). the standard of toward van; lights on his this was an unusual tail majority state that this case is fact- alibi, he hour to be on the road. The specific warranting relief. I dis habeas measuring carpet and Pam Smith were Houston, agree. impact Its extends further because nearly midnight at houses in until suggests aggregation that an of adverse Mississippi not later iden- could may, given right federal tify, seems strained. The cross- trial events tribunal, effectively garner corpus. Derden most on his examined writ habeas testimony, defense counsel guarantee per alibi as even The Constitution does not closing argu- of his only a fair one. Dela trial, however, admitted at the outset fect And, Arsdall, approv- with defense counsel’s ment. ware Van *18 al, Derden’s statement the court admitted 89 L.Ed.2d 674 hearsay which contained that the owner funda grant When we the writ for lack of Club, partner Apollo a former of Der- fairness, those mental we must delimit den’s, night him had not seen on the than, fear, carefully I has cases much more robbery. This contradicted Derden’s alibi.7 respectfully DISSENT. been done here. against posed thus The case

swearing and his match between Derden co-conspirators,

defense witnesses and the objective It

together with some evidence. dispute, jury’s duty to resolve the hardly argued no rational

and it can be in so application court. He erred prominently the "er- to the district Defense counsel relied on hearsay doing, of Dismuke’s state- roneous" admission the record shows. appeal brief and his habeas ment in his state notes a that defen Q. sorry He gave felt dant’s evidence was immaterial and irrele job, is that true? paying any vant and that he wasn’t atten THE COURT: closing tion to defense counsel’s statement minute, Just a Counselor. I don’t and didn’t know what had been said. This think this witness would know whether intervention was uncalled for and tended to sorry he felt for him or not. Just ask jury lead the to believe that Derden and his gave him if he him job. counsel were not to be believed. See Unit jjt Sheldon,

Notes

[*] ed States v.

[*]

[*]

[*]

[*] (5th Cir.1976) (“We cannot but conclude MR. WAIDE: quoted that the remarks above must neces permit I move the court to me to re- sarily have been understood the mem briefly cross pros- based what he [the bers to indicate a belief went into. ecutor] that the defense was without merit or that the defendants and their wit Solely point, on that Counselor.