Lead Opinion
Jоhn Troy, a Florida prisoner sentenced to die for the murder of Bonnie Carroll, seeks a writ of habeas corpus. During the penalty phase of trial, the state court excluded testimony from corrections officer Michael Galemore about general conditions in Florida prisons for those serving life sentences, including the nature of custody and the availability of illegal drugs. Gale-more had never met Troy and had no firsthand knowledge of his character, record, or conduct. Still, Troy argues that this exclusion violated his Eighth and Fourteenth Amendment right to present mitigation evidence bearing on his capacity for rehabilitation and his ability to contribute in prison, see Eddings v. Oklahoma,
We affirm the district court’s denial of habeas relief. Though a cаpital sentencer must be allowed to consider relevant mitigating evidence, the Supreme Court has refused to limit “the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense.” Lockett v. Ohio,
Moreover, evеn if the decision to exclude Galemore’s testimony had been error, it would have been harmless because Troy has not established that keeping out Gale-more’s testimony “had substantial and injurious effect or influence” on the jury’s death recommendation. Brecht v. Abrahamson,
I.
When it rejected on direct appeal Troy’s arguments about the exclusion of Gale-more’s testimony, the Florida Supreme Court found the following essential facts. See Troy v. State,
Evidence presented at the guilt phase of the trial established that John Troy had lived with his mother and girlfriend in the same apartment complex as Bonnie Carroll since his release from prison on July 25, 2001. Troy, who had been serving a sentence for armed robbery, was placed on conditional release that required regular drug testing. After Troy told his probation officer that he had smoked marijuana in prison, his first scheduled drug test was delayed until September 11, 2001. When Troy tested positive for cocaine that day, his probation officer told him that he would be re-incarcerated. That night, as the nation mourned an unspeakable tragedy, John Troy committed murder.
Upon failing the drug test, Troy returned to his apartment and began to argue with his girlfriend. He left with a kitchen knife and did not return. He visitеd Melanie Kozak, with whom he used cocaine a total of four times on September 11 and 12 — three times before the murder and once after. At approximately 12:30 a.m. on September 12, Troy pounded on the sliding glass door of a neighbor, Karen Curry, who called police and did not let him in. Between his 12:30 a.m. encounter with Curry and a 2:00 a.m. visit to Kozak, Troy killed Bonnie Carroll.
Carroll’s naked body was found in her Sarasota, Florida, apartment in the late afternoon of September 12, 2001. She had numerous stab wounds to the front of her body, large neck incisions, and blunt force injuries around her face. An electrical cord was tied around her thigh and a cloth was slung around her neck. An autopsy revealed a bloody, folded piece of cloth had been wedged in the back of her throat when she was still alive. The cloth around her neck and petechial hemorrhages in her eyes possibly indicated strangulation. Carroll showed small, fresh injuries to her external genitalia and thighs, though there were no internal injuries and no identified semen. A medical examiner testified that the evidence was consistent with an assailant attempting to sexually batter the victim before she was killed. An X-ray showed a knife blade broken off inside Carroll’s body. A matching, bladeless knife handle recovered from the counter-top in her bathroom contained the blood of Carroll and Troy. Carroll’s blood was also present on a steak knife found near her body. Tests showed no drugs in Carroll’s system. Her blood alcohol level, 0.037, was consistent with having a glass of wine. In total, Carroll suffered at least fifty-four injuries, including forty-four stab wounds, three incise wounds to the neck, seven impact injuries to the face, and multiple defense wounds on her hands.
After killing Carroll, Troy visited Kozak, again used cocaine, and left to drive around in Carroll’s car. He showed up at the home of Traci Burchette, a friend of Troy’s mother, at approximately 6:30 a.m. Troy picked up a two-by-four board in her backyard before knocking оn Burchette’s door. He told her his car had broken down and pretended to call a friend. She made him coffee and, at Troy’s request,
When arrested, Troy was wearing tennis shoes that contained Carroll’s blood, blue jeans with blood from both Carroll and Burchette, and a T-shirt with Burchette’s blood. Tests of Carroll’s fingernails showed Troy’s DNA. A shard of broken glass found next to Carroll in her bedroom tested positive for Troy’s blood. A drinking glass on Carroll’s kitchen counter contained Trоy’s fingerprint. Police found the two-by-four board with Burchette’s blood along the highway near Fort Myers.
At trial, Troy’s counsel acknowledged that Troy had killed Carroll and attacked Burchette. He argued for second-degree murder on the ground that the killing was not premeditated or done during the commission of a felony. The defense put on evidence that Carroll had invited Troy in, that the two had been socializing before their argument, and that Troy used drugs in her apartment. Despite Troy’s defense, the jury found him guilty of first-degree murder and all other charges.
During the penalty phase, the prosecution highlighted Troy’s four prior felony convictions (three for armed robbery and one for aggravated assault with a weapon) and his contemporaneous convictions for the attack on Burchette. The State established that Troy was on probation in both Florida and Tennessee. Prosecutors also presented three victim impact statements.
Troy offered extensive penalty-рhase mitigation evidence, stressing his childhood and background, his behavior in and adaptation to prison, his potential for rehabilitation if given a life sentence, and the effect of the terrorist attacks of September 11, 2001, on Troy’s explosion of violence. In all, he called twenty-nine mitigation witnesses. Numerous family members and character witnesses testified for Troy, as did Dr. Michael Maher, a clinical and forensic psychiatrist. Dr. Maher testified about Troy’s unstable, abusive childhood; the sexual molestation of Troy at age thirteen by a male teacher, including the isolation endured by Troy after he testified at the teacher’s trial; Troy’s arrested psychological development; his lifelong depression; his chronic drug addiction; Troy’s response to the September 11 attacks; and his acute intoxication during Carroll’s murder.
As part of the defense’s mitigation case during the penalty phase, Troy proffered testimony from Michael Galemore, an assistant warden at the Polk County Correctional Institution. Troy’s counsel admitted to the court that Galemore had no personal contact with the defendant and knew none of the facts of his particular case. Still, Troy intended to call Galemore to testify that a prisoner serving a life sentence without possibility of parole would be held in “close custody,” where he “would be supervised in a particular fashion,” “would work in prison,” and “would have to follow the rules of the prison.” Troy’s counsel also stated that Galemore would testify about drugs in prison and inmate leadership. Finally, Galemore would testify about the conditions of confinement on death row: “that you are basically locked into your cell and you don’t work.”
The State objected to the presentation of Galemore’s testimony on the grounds that it was irrelevant to any statutory or
By a vote of eleven to one, the jury recommended Troy be put to death. At the Spencer hearing,
Troy offered allocutions of remorse at the Spencer hearing to the court and to Burchette. Though he had prepared one for Carroll’s family, they requested he not give it. The trial court adopted the jury’s recommendation and sentenced Troy to death. The court found four statutory aggravating factors: (1) the murder was especially heinous, atrocious, or cruel (great weight); (2) Troy was previously convicted of felonies involving the use or threat of violence (considerable weight); (3) Troy committed the murder while on felony probation (considerable weight); and (4) Troy committed the murder during the commission or the attempt to commit a robbery or sexual battery (considerable weight). The trial court also found that the murder was committed for pecuniary gain, but noted that considering this aggravator alongside the robbery factor would amount to double-counting.
The trial court found two statutory mitigating circumstances: impaired capacity (great weight) and extreme mental or emotional disturbance (moderate weight). The court found fifteen nonstatutory mitigating factors, including: Troy’s dysfunctional family background; his positive personal characteristics and actions, as shown when he protected a correctional officer who had been a childhood friend during a prison incident; Troy’s sexual molestation; his “triple addiction” to alcohol, cocaine, and marijuana; his lifelong mental and emotional problems; his potential for positive contributions if sentenced to life in prison; his expressions of remorse; the fact that
After he was convicted, Troy raised seven claims on direct appeal to the Florida Supreme Court, including a claim that the trial court had erred in excluding Gale-more’s testimony. As he does now, Troy alleged that his Eighth and Fourteenth Amendment right to present mitigation evidence had been violated because Gale-more’s testimony was relevant to Troy’s potential for rehabilitation and his ability to contribute in a structured prison environment. The Florida Supreme Court rejected the claim, explaining:
The trial judge made clear that defense counsel still had the right to argue potential parole ineligibility to the jury as a mitigating factor, to present evidence as to whether Troy would pose a threat to prison personnel or other inmates, and to argue whether he was well-suited to imprisonment. Defense counsel made use of all of these options, presenting witnesses in mitigation regarding Troy’s behavior in prison,9 and arguing during closing that, if the jury chose life imprisonment, “John Troy will be in prison until the day he dies.”
A trial court’s ruling on the admission of evidence is reviewed by an appellate court under an abuse of discretion standard. Randolph v. State,
We conclude that the trial court did not abuse its discretion in excluding Ga-lemore’s testimony. First, it should be noted that Galemore’s testimony was offered during the penalty phase of Troy’s trial, which lasted over four and a half days. Defense counsel called twenty-nine witnesses during this phase, indicating that the judge was not cаtegorically excluding mitigation evidence or the presentation of defense witnesses. Furthermore, Galemore had never met Troy, nor had he ever witnessed Troy during one of his periods of incarceration, making his potential assessment regarding Troy’s possible prison experience entirely speculative. When considered in context of the entire penalty phase, the other witnesses called, and the arguments defense counsel nevertheless made regarding a possible life sentence, the exclusion of Galemore as a witness was not an abuse of discretion.
Troy,
On June 10, 2008, Troy filed a state court motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851 arguing, inter alia, that counsel failed to prepare Galemore. The state postconviction court summarily denied relief. Troy appealed to the Florida Supreme Court, again pressing his argument that counsel did not adequately prepare Galemore. The Florida Supreme Court affirmed because Troy had not demonstrated Strickland prejudice: “Viewed in the context of this case, we conclude that the absence of further testimony presented to the jury discussing Troy’s possible prison experience does not establish a probability sufficient to undermine our confidence in his sentence of death.” Troy v. State,
On April 12, 2011, Troy filed a federal habeas petition in the United States District Court for the Middle District of Flor
When Troy аppealed to this Court, we originally refused to grant a COA. Upon Troy’s motion for reconsideration, we issued a COA as to one question:
Whether the trial court violated Troy’s Eighth and Fourteenth Amendment rights at the penalty phase of his trial by excluding the proferred testimony of the Department of Corrections official, Michael Galemore, an assistant warden at the Polk County Correctional Institution, on the ground that Galemore’s testimony was relevant to the mitigating factor of Troy’s potential for rehabilitation and positive contribution in a structured prison environment.
II.
A.
We review de novo a district court grant or denial of a petition for habeas corpus. McNair v. Campbell,
Troy filed his federal habeas petition in 2011, after the effective date of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, Title 28 U.S.C. § 2254 guides our review. Under § 2254(d), federal courts cannot grant аn application for a habeas writ with respect to any claim adjudicated on the merits in state court unless the state decision (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” In this case, the relevant state court decision came on direct appeal, when the Florida Supreme Court denied on the merits Troy’s claim that the exclusion of Gale-more’s testimony violated the Eighth and Fourteenth Amendments. Troy,
Troy does not argue that the Florida Supreme Court made an unreasonable determination of facts in denying his claim. And Troy comes nowhere close to satisfying the stringent requirements of § 2254(d)(1). “Under § 2254(d)(l)’s ‘contrary to’ clause, we grant relief only ‘if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.’ ” Jones v. GDCP Warden,
B.
Troy argues that the trial court violated his Eighth and Fourteenth Amendment right to present mitigation evidence by keeping out Galemore’s testimony. In Lockett, Chief Justice Burger’s plurality opinion pronounced that the Eighth and Fourteenth amendments require that a sentencer be allowed to consider “any aspect of a defendant’s character or record and any of the circumstances of the offense” that a defendant proffers as a mitigating factor in support of a sentence less than death.
While it made personalized death sentencing a priority, the Lockett rule in no way “limit[ed] the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense.”
Troy also invokes Skipper, in which the Supreme Court drew from Lockett the “rule that the sentencer may not refuse to consider or be precluded from considering
Nevertheless, Troy asks this Court to extend Skipper by requiring the presentation of any evidence — personalized or not — that might bear on a capital defendant’s prospects in prison. But AEDPA prohibits us from applying any law not clearly established in Supreme Court hоldings. Though Skipper referred to “any relevant mitigating evidence,” • it did not suggest, much less clearly establish, that this category included testimony from witnesses who lacked particularized knowledge of the defendant and who could only speculate about the future penal conditions he might face. Instead, the Lockett rule protects a defendant’s right to present mitigating evidence particular to his person. See Eddings,
C.
Troy also argues that the Florida trial court violated his Fourteenth Amendment right to “a meaningful opportunity to present a complete defense” because the exclusion of Galemore’s testimony prevented Troy from rebutting arguments made against him. Crane v. Kentucky,
Troy’s alternative argument fails as well. Even if the State’s cross-examination suggested to the jury that Troy might use drugs while serving life in prison, Gale-more could only speculate about possible incarceration outcomes. The Supreme Court “[has] never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability — even if the defendant would prefer to see that evidence admitted.” Crane,
None of the cases cited by Troy convince us otherwise. In Gardner, the sentencing judge had considered a confidential pre-sentencing report without allowing the defendant to see it. See
D.
Even if Troy could clear the § 2254(d) hurdle, he still would not be entitled to relief because the error would have been harmless when measured against the habeas “actual prejudice” standard of review — it would not have “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht,
The trial court found four potent statutory aggravating factors. First and foremost, the murder of Carroll was “especially heinous, atrocious, or cruel.” Fla.
Second, Troy had been convicted of other felonies involving the use or threat of violence. Id. § 921.141(5)(b). In fact, Troy had eight qualifying convictions: three for Armed Robbery, рart of a crime spree in the Florida Panhandle; one for Aggravated Assault with a Weapon, when he stabbed a fellow inmate in Tennessee; and, as to Trade Burchette, Burglary of a Dwelling While Armed with a Dangerous Weapon, Aggravated Battery, Armed Kidnapping, and .Robbery with a Deadly Weapon. Third, Troy had murdered Carroll while on probation for a felony. Id. § 921.141(5)(a). At the time of the attack, Troy was both on parole from Tennessee and on conditional release from the Florida Department of Corrections.
Fourth and finally, Troy murdered Carroll during the commission of or attempt to commit robbery and sexual battery. Id. § 921.141(5)(d). Troy needed transportation to flee the state and avoid arrest for violating his conditional release. He needed money for the trip and to feed his drug addiction. By murdering Carroll, Troy got a ear and a pitifully small amount of cash. The jury also heard substantial evidence of sexual assault: Carroll was found nude and gagged, with her clothing cut off and her underwear on the bedroom floor. She had fresh minor injuries to external genitalia consistent with contact from a penis or fingers. Her inner thighs had small contusions consistent with fingers attempting to pry open closed legs. The trial court also found that the murder was committed for pecuniary gain, id. § 921.141(5)(f), though the court noted that this factor merged with the robbery aggravator.
The mitigating factors presented at length to the jury were considerably less significant, even though Troy called twenty-nine witnesses during the four-and-a-half-day penalty phase. Troy,
Prominently, Troy argued during the penalty phase that hе could rehabilitate and contribute substantially if sentenced to life imprisonment. The jury heard extensive testimony from eight mitigation witnesses who had supervised Troy during previous periods of incarceration. Corrections officers detailed how Troy had been rewarded with plum job assignments for being a trustworthy inmate. To guards, he was “quiet” and “respectful.” A Florida prison official who led a construction work crew testified that, out of hundreds, Troy was the best inmate he had ever had: “a hard worker, ... courteous, respectful.” A female corrections officer testified that John, unlike almost all other inmates, never engaged in lewd behavior toward her. “He would do anything you asked him to do without disrespecting you in any way.” He worked hard, was not manipulative, and helped de-escalate problems with other inmates. Yet another corrections officer, from Lincoln County, Tennessee, testified that he could rely on John to protect him from other inmates: “I didn’t worry about any problеm in the cell block he was in.” A final Florida officer explained how Troy intermediated between guards and prisoners by telling other inmates to follow directions “so we don’t have no problems.” A fellow inmate testified that at one facility Troy was the head library clerk, was solely responsible for organizing the prisoners’ recreational activities, and was positive and supportive in group therapy sessions for drug addiction.
Family and friends testified that Troy benefited from the rigid structure and guidance of prison. His father explained that Troy “prospered in that environment,” where he could help other inmates. “Because of his terrible drug addiction ... he’s best placed in a situation” where he could not get his hands on drugs. His grandfather testified that prison allowed Troy to develop his talents through training as a welder, a roofer, and a mason, and by working with computers. His uncle predicted that Troy could educate other inmates and could warn children about the dangers of drug addiction. According to Troy’s penalty-phase mental-health expert, “[fit’s really pretty simple. You put him in a drug free environment for a long enough period of time, and he can become reasonable.” The prosecution countered by pointing to Troy’s history of drug use while incarcerated. He committed an aggravated assault with a deadly weapon in a Tennessee prison as part of a dispute related to his payment for drugs. Troy also admitted that he tested positive for drugs while on controlled release because he had used marijuana in prison.
Balancing these aggravating and mitigating factors, the jury voted eleven to one to recommend the death penalty. In accepting the jury’s recommendation, the tri
Section 2254(d)(1) bars habeas relief for Troy because the Florida Supreme Court’s rejection of his claim was not contrary to or an unreasonable application of clearly established Supreme Court law. Moreover, harmless error would also preclude relief because the exclusion of Galemore’s testimony had no “substantial and injurious effect” on the jury’s recommendаtion of death. Brecht,
AFFIRMED.
Notes
. Under Florida law, a Spencer hearing gives the defendant, his counsel, and the State the opportunity to be heard and to present additional evidence to the sentencing judge after the jury has offered its recommendation. See Spencer v. State,
. Troy called eight witnesses during the penalty phase to testify as to his general good behavior in prison, stretching back to his first periods of incarceration in Tennessee beginning at age eighteen.
. The concurring opinion suggests that it is " 'unclear' whether AEDPA deference should apply to the Florida Supreme Court's determination that the state trial court properly excluded Mr. Galemore's testimony.'' As we see it, there is little doubt that we are required by the statutory command of Congress to review the state court's decision through the deferential lens of § 2254(d). Under that law and controlling Supreme Court precedent, it is abundantly clear that a federal habeas writ could issue only if the Florida Supreme Court’s decision was contrary to, or involved an unreasоnable application of, clearly established federal law as determined by the Supreme Court of the United States. 28 U.S.C. § 2254(d)(1); Williams v. Taylor,
Concurrence Opinion
concurring in result only:
I agree with the Majority that Mr. Troy is not entitled to habeas relief because any constitutional error committed at his trial was harmless under the test established in Brecht v. Abrahamson,
We need not decide here whether the Florida Supreme Court’s decision is entitled to deference under the Antiterrorism and Effective Death Penalty Act (AED-PA). That is because “even if AEDPA deference does not apply, [Mr. Troy] cannot show prejudice under de novo review, the more favorable standard of review for [him].” Berghuis v. Thompkins,
And for me it is “unclear” whether AEDPA deference should apply to the Florida Supreme Court’s determination that the state trial court properly excluded Mr. Galemore’s testimony. See Troy v. State,
It surely means something that when the Supreme Court has “addressed directly the relevance standard applicable to mitigating evidence in capital cases ... [the Court] spoke in the most expansive terms.” Tennard v. Dretke,
[T]he meaning of relevance is no different in the context of mitigating evidence introduced in a capital sentencing proceeding than in any other context, and thus the general evidentiary standard— any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence' — applies.... Relevant mitigating evidence is evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value. Thus, a State cannot bar the consideration of .... evidence if the sentencer could reasonably find that it warrants a sentence less than death.
Once this low threshold for relevance is met, thе Eighth Amendment requires that the jury be able to consider and give effect to a capital defendant’s mitigating evidence.
Id. at 284-85,
Beyond Eighth Amendment mitigation concerns, the excluding Mr. Galemore’s testimony also implicates serious due pro
Specifically, during cross examination of defense witnesses, the state raised questions about Mr. Troy’s future dangerousness in prison; invited the jury to speculate about his access to drugs while in prison; and highlighted the effect his possible drug use might have on his prospects for adjusting well and not posing a threat to inmates and staff. Once the state undertook to raise these issues, Mr. Troy was constitutionally entitled to rebut the state’s evidence and inferences. See Kelly v. South Carolina,
As I mentioned, I have analyzed all of this without the deference ordinarily required by AEDPA. That is because even under the de novo review I have used, a habeas petition can only be granted if the constitutional violation at the trial level resulted in “actual prejudice” to the petitioner. Brecht,