*1 is proposed, it was exactly as ified, is rule. final
a valid judgment final constitutes
This Ordеr this Court. in chambers AND ORDERED DONE day of Florida, 19th Lauderdale,
Fort
March, 1984. Gonzalez, Jr. A. Jose
/s/ DISTRICT STATES
UNITED
JUDGE BUSBY,
Marie Lancaster
Petitioner-Appellant, HOLT, Warden; A. B. Charles
Kathleen
Graddick, Attorney General Alabama, Respondents-Appel-
State
lees.
No. 84-7110. Appeals,
United States Court of
Eleventh Circuit.
Sept. *2 Hughes, Jerry Gregory Pilgrim, W. J. I. FACTS Mobile, Ala., petitioner-appellant. for at trial showed that the deceased awas violent man and sever- Gen., Hampton, Sp. Atty. Asst. James F. people al could have had a motive for kill- Ala., Montgomery, respondents-appel- for ing him.1 lees. Tonya Busby
Donna and
testified about
day
the occurrences on the
of the murder.
Busby,
petitioner’s
Donna
thirteen-
year-old daughter, stated that she was dat-
ing Dennis Cross at the time of her father’s
death. The Alabama court described her
GODBOLD,
Judge,
Before
Chief
testimony as follows:
CLARK,
Judge,
*,
Circuit
and THOMAS
theOn
afternoon of his death Houston
Judge.
District
Busby
stepdaughter Tonya
and his
had a
disagreement during which Houston
PER CURIAM:
Tonya
called
a “whore.” The deceased
petitioner,
Busby,
Lancaster
wife,
also cursed his
[petitioner],
was convicted and sentenced in an Alabama
Dоnna testified
during
the after-
imprisonment
state court to life
for the
evening
Tonya
noon and
Busby
both
murder of her husband. Her conviction
Terry
angry
Lewis were
at the deceased.
appeal by
was affirmed on
the Alabama
Busby
After dinner Donna
had a conver-
Appeals,
Criminal Court of
Terry Lewis he had an idea body?” kill going weeks, It a month or six A. was about after When Ladner returned home something like that. I don’t remem- 14, 1980, midnight on March he did exactly. ber his Busby, see Houston but he fоund Appeals R. 372. The Court of of Alabama mother, Tonya Busby, Terry Lewis and summarized the of a witness cleaning up bloody bedding previously married to Hous- who had been in the master bedroom. Petitioner] [The Jr., Busby, but at that time was divorc- ton from the window to told Ladner to watch ed, summary is as follows: According anyone coming. if see Busby, appellant’s daugh- Lynn former Ladner, [petitioner] instructed the ter-in-law, six weeks testified that about garbage bags put others to bricks into appellant prior to Houston death bedding. Ladner with the blood-stained a man he, told her that she had talked with and Lewis then drove said care Mississippi having line her “taken bridge to a near the State about husband Later, garbage bags night and rifle the mur- and threw the of.” on the before der, the water. if appellant into told Ms. hand on her” it would be cross-examination, Houston “laid a Ladner said On have.” Ac- “the last chance hе would seriously he did not take mother witness, appellant telling Lynn Busby stated denied cording plan about a price pay for her having was a her husband's murder. there willing and she would be killed husband Id. at 840. cross-examination, Ms. pay it. On Two character witnesses as to testified acknowledged that she had seen petitioner’s good reputation for truth- and swollen on several appellant bruised peacefulness fulness and and one recalled appellant She also stated occasions. that he had seen her come work Busby were in the habit of and Houston eyes black and bruises at times. various carrying large sums of cash and she had Another witness testified that he had lived previously appellant seen with a black Busbys years during with the for five pouch money. which “he [pe- saw the deceased abuse the and her children and he himself titioner] So.2d had also been beaten the deceased.” Id. Busby testified her own be- at 840. half that she had lived with Houston *4 years they for fourteen and had A. The Colloquy Between the Court child, Her physical- one Donna. husband and Counsel ly her at least three times a abused week trial, During the insisted kill her if she and threatened to ever left Lewis, Terry Dennis Cross and who him. stated that had She she never permitted were both co-indictees be to take money anyone made an offer of Terry witness stand. Dennis Cross and have her husband killed. She admitted charged degree Lewis been with first that, beating, may after a have said neither but had been tried. The dead, she wished he were or she would prose- defense had no advance notice of the killed, give to have him but she cutor’s intent call them to the stand. anyone did not intend for to take her The state called Cross to the stand seriously. not call Lewis. [petitioner] testified that on the аdamantly objected Defense counsel night of her husband’s death she cleaned requested the court to instruct the state up in the kitchen and her husband retired (1) not to call the witnesses because: there evening. for the Then she went to take expectation they was a reasonable would a shower and while she was in the bath- assert Fifth Amendment as wit- both gun- room she heard what sounded like a charged nesses were degree with first mur- put shot. She on her robe and started der; (2) their rights exercise of out of the bathroom when Lewis testify highly prejudicial. would be appeared gun at the door with a in his' alternative, argued defense counsel hand said “You don’t want to come out that the court should allow witnesses to stayed now.” She was scared and she in take the presence stand out of the of the crying the bathroom until Lewis returned jury.2 and told her to come out. Lewis then maintained that the state informed her that was dead. right had an absolute call the witnesses petitioner] stated that she was [The First, presence jury. in the he ar- daughter Tonya helped afraid her gued jurors, lay people, that the would Lewis kill Busby and all of her ... fur- “legal not understand the ramifications” ther night following actions that and the involved, i.e., witnesses day protect were done in an effort to her charged with murder and that could daughter. petitioner] admitted rights assert their Fifth [The under the Amend- cleaning up plan- the bedroom but denied testify. urged ment if called to It was ning jurors to have her husband killed. She had “a to know that the 2. Record Volume III at 482-83. Interrogation least call good to at B. The sense State [had] Second, de- it was asserted
them.”3 Dennis Cross was called to the stand in failure on the could comment fense counsel presence jury. being Prior to during his to call the witnesses the state interrogated by prosecutor, Cross was were not argument if the witnesses closing by judge the trial examined counseled Last, the state jury. called before respect him Fifth Amend- his eyewitnesses that as maintained right not to questions ment answer could of the witnesses crime the would tend to incriminate him. Cross was highly relevant. prosecutor: follows examined as sir, Q. you say, your name is Did Next, from arguments the court heard Cross, Brinson Jr.? He advised Dennis Cross’s counsel. Yes, from the that Cross’s case had arisen A. sir. court his trial was transaction and that same you, Q. How old are sir? pending. He also stated that Cross just I turned in December. A. if called the Fifth Amendment assert Cross, Q. presently Mr. are under testify.4 indictment in for the of- this Court Thereafter, occurred another discussion fense of Murder? in which court counsel between repeated objections. counsel discussion, prosecutor ad- During this Yes, A. sir. subject of miscon- рrosecutorial dressed *5 Q. charge stem Does of murder presented case duct and conceded that this Houston E. from homicide of question.”5 “a close Busby? the court ruling objections, In on I to A. refuse answer.
stated: Q. by know a the name you Do woman is question that the Court The bothers Busby? of Marie ... right of the State Government A. I refuse to answer. Attorney’s duty of the District [sic] Q. you live in of Houston Did the home present to all of the evidence office Busby during ap- period E. ... available, anyone might testify or who is 1, period January proximate testi- give probative lead ... who would 1,May 1980? might who mony, who would be someone A. I refuse to answer. enlighten- evidence that would be present 1980, May you the 14th Q. jury. On ing to Busby at the and employed sand ruled III at The court Volume 507. Record pit Theodore area? gravel right to interro- prosecutor had the I refuse ... A. presence witnesses in the gate the money Q. you a stand- ever granted counsel Have been offered jury but Busby either murder Houston ing objection.6 Because, A., prosecuto- take the Fifth. will at 486. 3. Id. misconduct, B., and no inferences rial 486, Id. at 506. 4. a refusal to answer drawn from witness’ By weight. infer- add critical which would stated: 5. there, talking are about a we ence concededly very question is The law on ranting closing argument getting up and ain close. about, stand, raving he took he took the Fifth. at 503-05. Id. line, close Judge, it is a The bottom is law, says, that question____ it as I read at 511. Terry put Cross and we are allowed stand, if we know Lewis on even help hire, wit, mur- yourself, agreement or someone else contract for or Busby? promise pay Terry Lewis der Houston and Dennis approximate Cross sum of A. I to answer. refuse kill said Houston The said Q. by know a man the name of youDo Cross, pursuant Lewis and Dennis Terry Lewis? to said contract agreement ... did ... A. I to аnswer. refuse Busby shooting kill Houston by him with Q. weapon? ever seen you Have a rifle violation ... Code of I answer. Alabama. A. refuse to
Q. you Supplemental at at 4. approximately Transcript pros- Where were ecutor also read May on the indictment to the the afternoon of
five o’clock during opening addition, statement. 13, 1980? case, he theory discussed the i.e. A. I answer. refuse to that Mrs. by induced Q. you approximately at Where were offering money.7 pointed He out that he 13, May on p.m. night or 10:30 expected (1) the evidence to show that: on 1980? occasion, one more than of- A. I refuse to answer. money Lewis and fered to kill Hous- Q. early During morning hours of Busby; (2) May ton Lewis and Cross May you occasion a pit by went to dirt Houston Busby owned pickup in a truck an area ride acquired Mrs. Busby's rifle from son Airport? west of the Mobile (3) previous marriage; Lewis and proceеded home with IA. refuse to answer. stayed the rifle and until there bed; (4) went to while Houston Bus- asleep, Lewis and Cross went to his Q. Cross, are going Mr. to refuse him; (5) bedroom and shot after the mur- any question to answer additional committed, der was Lewis Cross trans- might you? that I ask ported body Houston Busby’s to another Yes, A. sir. area; (6) Cross and Lewis returned to *6 513-15. Busby home and assistance of prosecutor After the Busby disposed asked these Mrs. up cleaned and of the questions, interrogation interrupt- was evidence the crime.8 by objection. ed defense counsel’s Defense Defense counsel also discussed the a counsel moved for mistrial motion but the theory state’s opening his statement and was denied. questions No further boyfriend a explained Cross was subject asked of Dennis Cross. The Busby’s daughter Mrs. and that he had being interrogated again was not out shortly moved the shooting. before addressed or during mentioned the trial. expected Defense counsel stated he the evi- dence to show that was at the house
C. Jury day Information Busby Before Houston was killed.9 panel While assem- being was previously, As mentioned heard bled, the indictment was read. The indict- testimony on approximately three or four provided ment petitioner Marie occasions that dated Cross had Mrs. Bus- Busby had: house, by’s daughter, lived in the worked [Cjaused pit Houston to be killed gravel by Busby, at the owned Houston pursuant with a agreement rifle to an charge and had murder that stemmed theory 7. The stated: of the "The 8. Id. at 70-71. Cross, prosecution is offer was made Lewis, offer, pursuant to that two these 9. Id. at 75-78. Busby.” kids ... then went killed Houston Supplemental Transcript at 69-70. rights implicated: Two Houston constitutional are homicide of
from the (1) right fundamentally to a testimony that he had seen Petitioner’s also was There clause; process due at the fair trial under the weapon and was (2) right Petitioner’s under the Sixth murder. night of the house the by Amendment to confront witnesses called son, Ladner, Busby’s af- Mrs. Kenneth the state cross examine them. he had heard his firmatively testified that attor- Lewis that she would Petitioner contends the state tell Cross and mother ney guilty prosecutorial killed. was misconduct Houston give intentionally put he these occasions when that on each of He stated knowing the stand that he not an- just previously beaten moth- Busby had bruises, him, er, questions swer the asked of and that by was evidenced facial deprived dental such misconduct her of a funda- plate and one time her eye, black mentally “fit fair trial. She further contends so that it her being bent did deprived that she opportunity was He last of these then.” said the after dispel cross-examine Cross and to two was six weeks months conversations against adverse сreated her inferences Busby was killed.10 He stated that before questions propounded. seriously take he did not his mother having her husband killed she mentioned Turning prosecutorial first to the miscon “he did not think Lewis or Cross be- claim, duct we call attention to our recent Lynn either.”11 lieved she serious opinion Kemp, v. Brooks 762 F.2d previously been married to Busby, who (11th Cir.1985) (en bane), petition for re son, also testified that Houston Brooks, ac In we hearing en banc denied. her petitioner having had discussed fair knowledged while fundamental killed.12 Donna nor Ton- husband Neither prosecu in a standard relevant ness is the Busby affirmatively testified that ya case, are tests further torial misconduct paying their mother discuss had heard particu resolving inus necessary guide anyone money to to have Brooks, we In Id. at lar cases. defendant, Busby, tes- killed.13 requirement which prejudice adopted the her that shе intended state- tified never Washington, v. set out Strickland — taken an offer to have her ments to be L.Ed.2d U.S. ---, killed.14 husband counsel assistance of (1984), an ineffective prejudice standard quoted case. We nor defense coun- Neither follows: Washington as from Strickland pros- referred Cross’s answers sel closing questions argu- in their ecutor’s there is a must show that defendant addition, counsel ment. that, for coun- probability reasonable (and give) did not a cura- request court errors, the result unprofessional sel’s concerning the inferences tive instruction differ- proceeding would have been *7 from Dennis Cross’s invocation to be drawn proba- probability A is a ent. reasonable privilege. bility to undermine confidence sufficient in the outcome. INQUIRY II. THE Brooks, from petitioner’s (quoting at 1401 supra is to if Our task determine Strickland). page on rights abridged a Further that same as constitutional inquiry is opinion in our we stated that the prosecutor’s the actions interro- of result of improper argu- of “whether absence just Dennis described. the gating 412, 371, at 13. Id. Record Volume II-III at 415. 595. 10. State, at 412 So.2d 839.
11. at 643-44. 14. Record Volume IV Volume She also ac- 12. Record III at 491-93. petitioner knowledged that had seen the and swollen on several occasions. bruised
1468
have,
probability,
Warning
in
ment would
reasonable
answer.
that reversible error is
result____”
changed
invariably
Id.
a
the
committed whenever wit
answer,
privilege
ness claims his
not to
the
problem
determining
of
We have the
Supreme
pointed
Court
out that there are
in
opinion
our
this
whether Brooks controls
principles
suggest
two
that a witness’
prosecu-
alleged
case. Brooks involved an
of
privilege
invocation
the
er
constituted
argument
upon
improper
an
torial
based
or
First,
ror.
“may
upon
error
be based
a
argument
impermissible
the
prosecutorial misconduct,
of
concept
sentencing phase of
death case.
In
a
the Government makes a
conscious
Brooks,
permissible
we
that “a
ar-
stated
flagrant attempt
to build its
out
case
of
gument
‘prejudicial’
‘per-
or
matter how
inferences
from
arising
the use of the testi
suasive’ can never be unconstitutional.”
Id.,
privilege.”
monial
1469
204,
2308,
Zeigler v.
408 U.S.
92 S.Ct.
33 L.Ed.2d
See
gives a curative instruction.
Cir.1981);
254,
(1st
(1972).
Callahan,
272
significant
293
But its denial or
659 F.2d
F,2d
581;
Connecticut,
question
607
at
diminution calls into
the ulti-
v.
Rado
Ritz,
510,
F.2d
518-20
v.
548
fact
“integrity
finding pro-
States
mate
of the
United
Cir.1977).
(5th
requires
competing
cess” and
clоsely
Burger
interest be
examined.
v.
Douglas
in
v. Ala-
Supreme Court
314, 315,
California, 393 U.S.
89 S.Ct.
1074,
415,
13
bama,
85 S.Ct.
380 U.S.
540, 541,
(1969).
1471 simply error test of asked them whether ex- the harmless paraphrase of Chapman, supra.2 rights ercise their Fifth Amendment if Busby’s questioned Houston about murdеr. applied in which test is
Regardless of
case,
corpus should Defense counsel had no solution
di-
the writ of habeas
to his
this
possibili-
a
granted. There is
reasonable
lemma.
case could have
that
outcome
the
ty
the
question
that
prose
There is no
but
the
trial court had
different if the state
been
the
prejudice
cutor intended
defendant
interrogation of Cross.
permitted the
when he asked Cross “Have
ever been
Certainly,
that the interro-
it cannot be said
money to
offered
either
no
on the deci-
gation of
“had
effect
yourself,
help someone else mur
sion,”
impossible
and it is
to conclude
Busby?”
In Shockley
der Houston
v.
the
possibility
is
there
no reasonable
State,
(Ala.Ct.Crim.App.1975),
Appeals
in Busby, supra,
statement
one in which either alternative
results
find,
at 843:
So.2d
“... we do not
first that
other;
prejudice to one side or the
and it
prosecution
made ‘a conscious and fla-
impossible,
see,
lay
is
so far we
can
grant attempt to build its case out of infer-
any general
down
rule
will cover all
arising
ences’
from Dennis Cross’ refusal
instances.
prose-
In the case at bar the
to testify.” The
rely-
Alabama court was
cution knew that Parkhurst and Mascali
ing
Namet, supra.
agree
I
with the
answer,
would refuse to
and it
seems
Alabama court that the
was not
us that the
interest of
accused should
trying to build his case based on the
prevail
prosecution,
refus-
over that of the
testify.
al of
time,
Cross to
stand,
At
same
I
judgment
that the
should not
am
trying
questions
convinced that he
preju-
touched vital elements of
dice the defendant’s sole defense.
charge.”
Prichard,
City
Under Bonner v.
661 F.2d
October
will
be followed
the Eleventh
of
(11th Cir.1981) (en banc)
all decisions Circuit.
the former Fifth Circuit handed down before
prior
about six weeks
actions of band killed
that the
I conclude
at 537.
allegedly
to her husband’s death she had
prosecutori-
attorney amounted
state
“taking
man
care
with a
about
prisoner
talked
deprived the
misconduct
al
her husband.”
rights as
process
due
her constitutional
right to con-
Amendment
as her Sixth
well
indirect
There is no direct or
evidence
testify
presented
witnesses
frontation
Busby participatеd in the murder
that Mrs.
against her.
her husband. She was
the house on
and after the mur-
night
of the murder
Issue
The Confrontation
up
to clean
the house. Her
helped
der
re-
error a court
assessing
harmless
was that she was
uncontradicted
guilt of
pointing
gun
heard a
fire.
taking
the evidence
a shower and
views
*12
defendant, excluding from
convicted
the
hand,
the other
the evidence showed
On
that
the evidence or factors
consideration
during
were conversations
the
that
there
in the
If a
erroneously injected
case.
Busby’s murder dur-
late afternoon before
jury’s verdict
that
the
court concludes
ing
night
Terry
the
that
Lewis and Dennis
same, and under
have been the
would
Busby. Tonya Busby
kill
planned
Cross
to
error could
Chapman the constitutional
testified that Lewis and Cross had had a
to the convic-
possibly
have
contributed
Tonya:
after which he told
“It
conversation
weight of the evidence
tion because of the
Op.,
going
happen tonight.” (Majority
is
corpus
writ of habeas
pointing
guilt,
1462).
Busby
Donna
testified that
also
n
Harrington
denied. In
will be
Califor-
had a conversation with
she
Dennis Cross
nia,
23 L.Ed.2d
U.S.
during
plan
she learned of the
to kill
(1969),
discussed
Supreme
the
Court
Busby
night.
that
Kenneth
Houston
Lad-
constitutional
application
Chapman
Terry
ner testified that
Lewis borrowed his
error test as follows:
harmless
evening of the murder and that he
gun the
nor
depart
Chapman;
from
We do not
going
had an
that Lewis was
to kill
idea
reaf-
byit
inference. We
do we dilute
Busby. The evidence is clear that
Houston
that,
suggest
if evi-
firm it. We do not
Terry Lewis and Dennis Cross had reason
ingredients
the
of
bearing
dence
on all
kill
Houston
tendered, the use of cumula-
the crime is
Busby’s defense was based on
Mrs.
evidence,
tainted,
harmless
though
is
tive
anger
and Lewis’
towards
Cross’
on the evi-
error. Our decision is based
during
the incidents
growing out of
against
in
recоrd. The case
dence
killing. Additionally,
afternoon before
from circum-
Harrington was not woven
killing
that the
defended on the basis
overwhelming
evidence. It is so
stantial
any
offer
any way
not in
related
of
say
unless we
that no violation
that
It
clear
her husband killed.
is
her to have
error,
harmless
Bruton can constitute
prosecuting Mrs.
that the state was
conviction undis-
we must leave this state
killing
in
theory
her role
on the
that
turbed.
As
a hirer of the killers.
was that of
Id.
stand the failure of Mrs.
attorney’s to cross-examine Dennis Cross
must,
Recognizing
ques-
we
that the
*13
he had
jury
as
other witnesses.5 The
had
tions asked of Mr. Ritz were “superflu-
way
knowing
of
that defense counsel
ous” because there was other evidence
not
exculpatory testimony
could
elicit such
available to the effect that the father did
from Cross as counsel had previously
operate
body shop
at
house and
brought out on
of
cross-examination
Lad
he
give
that
did
note to Robert
$50
Lynn Busby.
ner and
Jr., we are
any purpose
loss to see
having
played
for
drama
out before
Although may
it
be that
Busby
Marie
jury
having
other than
of
that
employed Cross or
to kill her
Lewis
hus-
jury
Ritz,
draw inferences from Robert
murder,
band
participated
and/or
in the
I
questions.
Sr.’s refusal
to answer the
cannot conclude that there was no reason-
are,
course,
per-
Such inferences
of
not
possibility
interrogation
able
that
of
they exist,
mitted but
recognized by
as
did
Cross
contribute
her conviction.
cases
Maloney,
such
v.
United States
is similar
This case
to United States v.
(2d Cir.1959).
F.2d
Ritz,
(5th Cir.1977).
jury, Darryl Plaintiff-Appellee, money.” by the offer induced “And argued: further MONTGOMERY, ALA- The CITY OF evidence, find we ask based BAMA, al., Defendants-Appellants. et in- charged in the guilty as the defendant No. 84-7571. capital murder. dictment, say which is force, motivating was the Because Appeals, States Court of United a cold blooded behind on the evidence based Eleventh Circuit. Transcript Supplemental assassination.” Sept. Busby was of Marie The defense at 94. that there proven the state had Rehearing Rehearing En Banc Marie agreement between 28, 1985. Denied Oct. kill Terry Lewis to $10,000. at 100. Busby for had to be law Under Alabama of- return a lesser that it could
instructed indictment, charged in the
fense than man- murder and
including offenses verdict of murder jury’s
slaughter. not mean capital murder does
instead of killing not convict on theory. no other theory. There was
hire guilt on whether turned the mur- Busby was killed
night Houston by Dennis Cross was committed
der *14 of Marie consequence as a
Terry Lewis $10,000. The misconduct
Busby’s offer of calling Dennis Cross judge in of the trial and the error
the stand of Dennis cross-examination
permitting the infer that Ma- permitted $10,000 to offered
rie had indeed De- crime. to commit the to cross- was denied
fense counsel any inferenc- dispel such
examine Cross to the writ so that grant I would
es. without the have a fair trial
Busby could proceeding prejudicial
taint of such contributory effect it what
leaves unknown jury. upon the decision