371 F.3d 458 | 8th Cir. | 2004
Lead Opinion
In 1991, a jury convicted Vernon Brown in Missouri state court for the 1985 strangulation death of Synetta Ford. He was sentenced to death. His consolidated direct appeal and post-conviction challenges in the Missouri Supreme Court were unavailing. State v. Brown, 998 S.W.2d 531(Mo.) (en banc), cert. denied, 528 U.S. 979, 120 S.Ct. 431, 145 L.Ed.2d 337 (1999). His 28 U.S.C. § 2254 petition in the District Court
The claim in question concerns a letter that Brown’s defense counsel sought to have read into evidence during the penalty phase of Brown’s trial for the Ford murder. Counsel represented to the trial court that the letter was from Darius Q. Turner, Brown’s younger brother, and had been sent to Brown’s counsel in the public defender’s office. According to the letter, Turner, a sergeant in the United States Army, was deployed in Saudi Arabia in Operation Desert Shield at the time of Brown’s sentencing. As a result, he was unable to be present in the courtroom to testify. In the letter, Turner noted the love and understanding between him and his brother and recounted how Brown had protected Turner from bigger boys when Turner was a child. As for their relationship as adults, Turner expressed regret for not staying in touch and told his brother that the telephone calls and letters from Brown meant more to him than those he received from others. Finally, he implored those who might read the letter to let God’s law decide Brown’s fate. The trial court excluded the letter as hearsay.
We now affirm the District Court’s denial of relief on all grounds. In doing so,'we adopt the holdings and reasoning of the panel opinion, except for Part VIII and the result.
I.
- Under 28 U.S.C. § 2254 as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996, a decision by a state court “with respect to any claim that was adjudicated on the merits in State court proceedings” is entitled to deference by ■ the federal courts. 28 U.S.C. § 2254(d). That is, we look only to see if such adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. § 2254(d)(1), (2). AEDPA effected a move toward greater deference in the § 2254 courts’ review of state-court decisions. See Lindh v. Murphy, 521 U.S. 320, 333 n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (noting “ § 2254(d)’s new, highly deferential standard for evaluating state-court rulings”).
But as the language of the statute makes clear, there is a condition precedent that must be satisfied before we can apply the deferential AEDPA standard to Brown’s claim. The claim must have been “adjudicated on the merits” in state court. The majority (and the dissent, for that matter) in the panel opinion for the Court concluded that Brown’s constitutional claim regarding the Turner letter had not, in fact, been adjudicated on the merits in state court.
After careful reflection upon the adjudication issue in this case, we now conclude that Brown’s constitutional claim was indeed adjudicated on the merits in state court, on two independent grounds, and that the AEDPA § 2254(d) standard of review should apply.
A.
In Brown’s consolidated appeal, the Missouri Supreme Court, at the very least, acknowledged that a federal constitutional claim was before it when it said, “Brown alleges that the letter should have been read into evidence pursuant to State v. Phillips, 940 S.W.2d 512, 517-18 (Mo. banc 1997), and Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979)” (per curiam). Brown, 998 S.W.2d at 549. Phillips, a Missouri death penalty case, concerned a Brady
In Green, also a capital case, the hearsay at issue was the testimony of a witness
It is true that the bulk of the Missouri Supreme Court’s brief discussion of Brown’s claim was devoted to the state-law evidentiary question and whether “the trial court abused its discretion” in excluding the letter. Brown, 998 S.W.2d at 549. But the “summary nature” of the discussion of the federal constitutional question does not preclude application of the AED-PA standard. James v. Bowersox, 187 F.3d.866, 869 (8th Cir.1999), cert. denied, 528 U.S. 1143, 120 S.Ct. 994, 145 L.Ed.2d 942 (2000). Here, the Missouri Supreme Court cited cases applying the relevant constitutional rule and held against Brown on the question of reliability. Under Green, absent a determination that “substantial reasons” exist to assume the reliability of the evidence in question, it will not be a due process violation for a court to decline to admit the evidence. The citation to the relevant law and the invocation of “reliability” in the opinion are enough to persuade us that the Missouri Supreme Court adjudicated the due process claim on the merits. That is not to say that citation to law and a key word from the application of that law- — or anything else— is required for us to determine that the claim was adjudicated on the merits. We only hold that they suffice in this case for us to conclude that the Missouri Supreme Court’s decision on this claim was an adjudication on the merits.
B.
We further conclude that the Missouri Supreme Court adjudicated Brown’s federal constitutional claim on the merits in an alternative holding. Following its references to Green and the reliability of the letter, the court said, ‘We ... note that even if [the trial judge] was wrong about the letter’s reliability, its exclusion does not in the context of this case seem prejudicial,” Brown, 998 S.W.2d at 549-50, a conclusion that is an application of the harmless-error standard set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
II.
Having concluded that the standard set out in § 2254(d) as amended by AEDPA applies to Brown’s claim, we now consider whether the Missouri Supreme Court’s adjudication of the claim resulted in a decision that was contrary to or an unreasonable application of clearly established federal law.
The jury was instructed on four aggravating circumstances, two statutory and two nonstatutory. The first factor that the jury considered was whether Brown was convicted in 1973 in Indiana on a charge of assault and battery with intent to gratify sexual desires. In fact, the indictment on the charge, read into evidence during the sentencing portion of Brown’s trial, accused Brown of fondling and caressing the body of a twelve-year old girl to gratify his own sexual desires. Trial Transcript at 2298. Brown pleaded guilty to the charge.
Next, the jury was instructed to consider whether Brown’s murder of Synetta Ford “involved torture and depravity of mind and whether, as a result thereof, the murder was outrageously and wantonly vile, horrible, and inhuman.” State v. Brown, Cause No. 861-03056, Legal File
The jury was further charged with deciding whether Brown was convicted of first degree murder in 1988. During sentencing, jurors heard evidence that in October 1986, Brown took nine-year-old Janet Perkins, who was at his home playing with his stepsons, into the basement where he wrapped a cord around her neck and strangled her. The boys heard her screaming as they played upstairs. The body was found' near a trash dumpster, wrapped in trash bags, with a rusty coat hanger wrapped around her ankles and one of her arms, so that her knees were drawn up to her body. After Brown was picked up in connection with the Perkins murder and confessed his guilt, he led officers to another dumpster a block from where the body was found. There they found a bag containing Janet Perkins’s missing shoe, a yellow plastic raincoat, and some of her school papers. The Ford jury also saw photographs of the little girl’s body and watched Brown’s videotaped confession to the Perkins murder. Brown was convicted of first degree murder in the Perkins case and sentenced to death.
Finally, the jury was instructed to decide whether Brown committed acts of sodomy on his stepsons Christopher Moore, Jason Moore, and Tommy Johnson, who were about seven, five, and nine years old, respectively, at the time of the abuse to which they testified. Christopher, age eleven at the time of the sentencing, testified that before Brown was arrested for the Perkins murder in October 1986, he would take Christopher alone into the bedroom Brown shared with Christopher’s mother and tell him to undress and lie on his stomach on the bed. Brown would undress, put “hair grease” on his penis, and put his penis in Christopher’s anus and then in his mouth. Id. at 2262. Brown committed these acts of sodomy on several different occasions. Christopher told no one about the incidents until Brown was in jail because Brown had said that if he told, he “would never see any of [his] brothers or [his] mother again.” Id. at 2264. Jason, nine years old when he testified, also explained to the jury how Brown had performed anal sex on him and said that Brown had threatened to “kill us” if he told anyone. Id. at 2288. Thirteen-year-old Tommy Johnson testified that Brown put his penis in Tommy’s anus and mouth and that Brown also put his mouth on Tommy’s penis. Id. at 2323. The boys said that Brown would commit the acts of sodomy when their mother was not at home, taking them one at a time from playing with their brothers and locking the
The jury found all four aggravating circumstances, unanimously, beyond a reasonable doubt.
Brown’s defense team called a number of witnesses who gave mitigating evidence. First, the jury heard from Maggie and Donald Copien who knew Brown,
Paul Sasser, a retired minister and former director of a homeless center that was affiliated with Brown’s church, became acquainted with Brown at the center. Brown began to help Sasser at the homeless center, first as a volunteer, then for a small salary, and lived with Sasser for a while. While working at the center, Brown had protected Sasser from angry or drunk clients who had threatened Sasser. Brown found his future wife and her three sons living on the streets and was concerned for them, according to Sasser, eventually taking them in. Sasser was still in contact with Brown at the time of the trial.
Forensic social worker Jill Miller testified next. She had spent hours talking with Brown, his family, and others who knew him, and she. also had reviewed his educational, medical, and correctional records. She noted that Brown had refused educational and neurological testing that she had recommended for her use in preparing her testimony for the sentencing.
From the school records, Miller gleaned that Brown had a borderline IQ, at best, and generally performed two to three grades below his grade level. She testified that he was close to his mother, brothers, and sister growing up, although his mother was strict. He was protective of his younger siblings (he was the oldest), sometimes taking the blame for things they had done so that they would not be punished. Personally, she found Brown to be “personable, pleasant, generally cooperative ... verbal, polite, but ... very guarded.” Trial Transcript at 2415.
The jury then heard the testimony of three corrections officers. The supervisor of social services at the city jail when Brown was held there said Brown had made few requests of the staff and did not get in trouble for fighting. Also testifying were corrections officers from Potosí Correctional Center, where Brown had been incarcerated for about a year and a half before his trial for the Ford murder. A recreation supervisor said that Brown, an inmate worker at the prison, was “cooperative, self-motivated and honest” in the work setting. Id. at 2423. Brown got “along exceptionally well with the staff’ but would not have much to do with other
In addition to the testimony of these live witnesses, Brown’s counsel read to the jury joint stipulations as to what the testimony of Janie Brown, Brown’s daughter, and Irvin Brimmage, who knew Brown as a teenager in Indianapolis, would be, had those witnesses been present in the courtroom to testify. Janie Brown was born when Brown was seventeen years old. She saw her father occasionally until she was ten, and she had not seen him since. She had, however, started to write to him in prison. Brown never behaved inappropriately around her. Brimmage met Brown when they were teenagers, and they became good friends. Although he was poor, Brown would share whatever money he had. Brown was helpful to older people, and Brimmage never saw him behave inappropriately around children. As a teenager, Brown did not abuse alcohol or drugs.
Finally, there was an audiotape interview with Patricia Beverly, Brown’s mother, recorded at her home in Indianapolis late in 1990. She was unable to travel to St. Louis for the trial because she was totally disabled at the time. She had last seen Brown in 1984 when he came to visit her after she was injured.
Beverly said that Brown was born at home after a problem pregnancy, two months early and following a difficult labor and delivery. He struggled in school, although he enjoyed some sports, ROTC, and wood shop. He eventually quit high school at age 16. Beverly said that she had three other sons, including one who was stationed in Saudi Arabia at the time of the interview, and one daughter. As the oldest, Brown was protective of them as they were growing up, such as when they were threatened by other children going to and from school. Brown tended to the needs of his grandmother after she had a stroke, essentially taking responsibility for her care while Beverly was at work. He was respectful of his grandparents and mother and regularly attended church where his grandfather was the minister.
He married a woman in Indianapolis who already had children, and Beverly said he always treated those children well. After he moved to St. Louis, he would write and call Beverly; he continued to call once or twice a week from prison. As the interview was drawing to a close, Beverly said that she loved Brown, and she asked the jury to spare his life.
A.
We turn first to the state court’s Green adjudication. At the outset, we decline Brown’s invitation to revisit the trial court’s conclusion that the letter was hearsay under Missouri’s law of evidence. “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). We assume the state court properly applied state law. All that concern us are issues raised under the United States Constitution.
In its review, the Missouri Supreme Court left undisturbed the trial court’s conclusion that the letter was not reliable, citing Green, which sets out the applicable federal law. Under Green, as we explained in Part I.A, the hearsay evidence in question must be “highly relevant to a critical issue in the punishment phase”
We note again the brevity of the adjudication and its emphasis on the question of state law. This does not affect our determination that the result is not contrary to federal law. The Supreme Court advises us that the state court need not cite or even be aware of the governing Supreme Court cases, “so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam). In the “contrary to” analysis of the state court’s decision, our focus is on the result and any reasoning that the court may have given; . the absence of reasoning is not a barrier to a denial of relief. Cf James, 187 F,3d at 869 (“The summary nature of the [state court] opinion does not affect this [AED-PA] standard of review.”).
We now consider whether the decision was the result of an unreasonable application of federal law. The Green standard, the applicable law here, has two parts: relevance and reliability. The Missouri Supreme Court did not specifically address relevance. Indeed, there was no reason to, given its ruling on reliability, as the evidence must be both relevant and reliable. Nevertheless, we have considered the question and have determined that it is not an objectively unreasonable application of Green and its progeny to conclude on the facts of this case that the letter did not meet the first part of the Green standard, as it was not “highly relevant to a critical issue in the punishment phase.” Green, 442 U.S. at 97, 99 S:Ct. 2150.
The issue in mitigation, to which the Turner letter would go, was Brown’s character. The letter had essentially two messages.
We have no quarrel with the general propositions that a defendant’s character may be a “critical issue” in the sentencing phase of a death penalty case and that the testimony of relatives as to character may be “highly relevant.” Here, however, the situation is different. The only real example of Brown’s character that Turner gave, acknowledging that it “might not sound like much,” was an incident that occurred years before Brown murdered Synetta Ford, when Brown protected Turner from older boys. It is clear from the letter that Turner had not spent time with his brother since they were much younger, although
On this record, we cannot say that it is an unreasonable application of clearly established law to conclude that the Turner letter was not “highly relevant to a critical issue” at Brown’s sentencing.
The Missouri Supreme Court did mention the letter’s reliability, deferring to the trial court’s uncertainty “as to the authenticity of the letter.” Brown, 998 S.W.2d at 549. Under Green, excluding otherwise inadmissible hearsay will result in a violation of due process if the evidence is not only relevant but also “substantial reasons existed to assume its reliability.” We hold that the circumstances surrounding the letter do not make it contrary to or an unreasonable application of clearly established federal law for the state courts to have concluded there were not “substantial reasons ... to assume its reliability.”
The Supreme Court opinion dealing with reliability that Brown cites in his brief is Chambers v. Mississippi 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). At issue in that case was the exclusion of the testimony of three witnesses that someone other than the petitioner had confessed to them the crime for which the petitioner was being tried. The petitioner also alleged that his constitutional right to confront a witness had been violated.
B.
As for Chapman prejudice, the Missouri Supreme Court had before it the transcript of Brown’s trial and sentencing, and noted that its decision was made “in the context of this case.” Brown, 998 S.W.2d at 550. As we have demonstrated, there was before the jury extensive evidence of aggravating circumstances, as well as mitigating character evidence to which the Turner letter was cumulative. In addition, as we have said, the jury heard from character witnesses who had more recent contact with Brown, including three correctional officers who testified to his model behavior while incarcerated. The Missouri Supreme Court might have been a bit more forceful in its conclusion, where it stated that- the letter’s exclusion did not “seem prejudicial.” Id. at 550. But we do not think the state court was expressing ambivalence or anything less than an unequivocal conclusion of law, although perhaps not in the strongest terms. In any event, that court’s use of “seem” does not make the decision contrary to any Supreme Court precedent. Likewise, we hold that the result of the Missouri Supreme Court’s application of the Chapman harmless-error standard, given the record in this case, is not objectively unreasonable.
III.
If we have misjudged congressional intent and the Supreme Court’s interpretation of “adjudicated on the merits” for purposes of § 2254, we nevertheless would hold that the District Court’s decision should be affirmed under the pre-AEDPA standard of review. See Robinson v. Crist, 278 F.3d 862, 865 (8th Cir.2002) (“Because this claim apparently was not adjudicated by the [state] court, we likely should apply the pre-AEDPA standard of review.”).
We have gone to some lengths in Part II of our opinion to describe the law applica
In any event, we are confident that the exclusion of the letter was harmless beyond a reasonable doubt. “A constitutional error is harmless when ‘it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” ’ ” Mitchell v. Esparza, - U.S. -, -, 124 S.Ct. 7, 12, 157 L.Ed.2d 263 (2004) (citations to quoted cases omitted). As we have explained, the Turner letter’s statements, to the extent they may be relevant, were cumulative to evidence as to- Brown’s character that was already before the jury. Moreover, the evidence of aggravating circumstances was devastating. This is not a case, like Chambers, where the evidence in question was highly relevant to actual guilt or innocence. The Turner letter was not offered to prove that Brown was actually innocent, either of the crime or of the death penalty. Here, Brown received the constitutionally required “individualized consideration” before the death penalty was imposed. Lockett, 438 U.S. at 605, 98 S.Ct. 2954 (plurality opinion). In these circumstances, we are convinced beyond a reasonable doubt that the admission of the letter would not have altered the jury’s decision to impose the death penalty on Brown, and thus its exclusion was harmless error at most.
The judgment of the District Court denying the writ bn any and all of Brown’s claims is affirmed.
. The Honorable Jean C. Hamilton, United States District Judge for the Eastern District of Missouri.
. This is what the Missouri Supreme Court said in deciding Brown’s claim of state-law error as well as his claim that the exclusion of the letter violated his rights under the Due Process Clause:
Brown contends that the trial court abused its discretion in the penalty phase when it*461 refused to allow his counsel to read into evidence a letter about him that was written by his brother, Darius Turner. Turner was stationed in Saudi Arabia during the Operation Desert Shield as a member of the United States Army at the time of trial. The state objected to the introduction of the letter because the letter is inadmissible hearsay that was unreliable. Brown alleges that the letter should have been read into evidence pursuant to State v. Phillips and Green v. Georgia. The determination of reliability is left to the trial court judge who was uncertain as to the authenticity of the letter. We uphold his ruling and note that even if he was wrong about the letter's reliability, its exclusion does not in the context of this case seem prejudicial.
State v. Brown, 998 S.W.2d 531, 549-50(Mo.) (en banc) (citations omitted), cert. denied, 528 U.S. 979, 120 S.Ct. 431, 145 L.Ed.2d 337 (1999).
. Brady v. Maryland, 373 U.S. 83, 83 S.Ct.1194, 10 L.Ed.2d 215 (1963) (prosecutorial suppression of evidence favorable to the accused).
. In Lockett, the petitioner challenged a state death penalty statute that "did not permit the sentencing judge to consider, as mitigating factors, [the petitioner's] character, prior record, age, lack of specific intent to cause death, and her relatively minor part in the crime." 438 U.S. at 597, 98 S.Ct. 2954 (plurality opinion). The Court concluded that' the Constitution requires "that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record ... that the defendant proffers as a basis for a sentence less than death.” Id. at 604, 98 S.Ct. 2954.
. We are assuming that the Chapman harmless-error standard applies here. See Sweet v. Delo, 125 F.3d 1144, 1158 (8th Cir.1997) (not
. Brown throws the language from § 2254(d)(2), "unreasonable determination of the facts,” into his claim, but he does not argue the facts. It appears to us that the underlying material facts are a matter of record and are not disputed.
. The witnesses who testified about relationships they had with Brown in the early 1980s knew him as Thomas Turner.
. To the extent Brown suggests that the jury would have found mitigating circumstances in Turner's service to his country in the Gulf War, that is, in deeds of Turner that have no relevance to Brown, his crime, his character, or. his relationship with Turner, we hold that is not proper mitigation evidence.
. The Supreme Court since Chambers has noted that the opinion "was an exercise in highly case-specific error correction.” Montana v. Egelhoff, 518 U.S. 37, 52, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) (plurality opinion). The Egelhoff Court went on to say that "the holding of Chambers — if one can be discerned from such a fact-intensive case — is certainly not that a defendant is denied ‘a fair opportunity to defend against the State's accusations’ whenever 'critical evidence’ favorable to him is excluded, but rather that erroneous eviden-
Concurrence Opinion
concurring.
I join the opinion of the court, but add a few points to clarify my views.
It is quite reasonable to ask, as does the dissent, whether the AEDPA-standard issue is properly before the en banc court, if the state did not assert before the three-judge panel that 28 U.S.C. § 2254(d) should apply to review of the state court’s adjudications. It must be remembered, however, that as this case first came to the en banc court on a petition for rehearing, a panel of the court already had reached and decided the question whether § 2254(d) applied in this case. Brown v. Luebbers, 344 F.3d 770, 785 (8th Cir.2003). At that point, the panel opinion established the law of the circuit on the AEDPA-standard issue, regardless what the parties had asserted in their briefs, and I believe it was properly the business of the en banc court
Harmless error analysis is sufficient to resolve this case, but with brief amplification, I also join the court’s conclusion that the state court proceedings did not result in a decision that involved an unreasonable application of Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (per curiam). With respect to reliability of the disputed letter, it is true that the Missouri Supreme Court referred to the trial court’s uncertainty as to the authenticity of the letter, while the trial court did not appear to rely on authenticity in excluding the letter. On the other hand, the trial judge did say that he rejected the letter because it was unsworn hearsay— “We’re not talking about depositions where a man is under oath, you’re talking about a letter, plain and simple,” (Tr. 2443) — and the state supreme court said more generally that “[w]e uphold his ruling,” which the court said was “about the letter’s reliability.” State v. Brown, 998 S.W.2d 531, 549 (Mo.1999) (en banc).
If we were reviewing the decision of the Missouri Supreme Court as though it were an administrative agency, then it may well be that the unclear reasoning of the state court would be inadequate to sustain its judgment on the issue of reliability without further explanation. I understand the court, however, to join our sister circuits in rejecting this model of judicial review, which would tend to “place the federal court in just the kind of tutelary relation to the state courts that the recent amendments are designed to end.” Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir.1997); see also Bell v. Jarvis, 236 F.3d 149, 159 (4th Cir.2000) (en banc); Bui v. DiPaolo, 170 F.3d 232, 243 (1st Cir.1999), •
Under AEDPA, the question for a federal habeas court is not whether the state court’s opinion is well reasoned, but whether the decision reached in state court proceedings is “objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The rule of reliability established by Green is quite general in nature, and state courts thus have a good deal of leeway in reaching reasonable outcomes. Yarborough v. Alvarado, — U.S. -, 124 S.Ct. 2140, 158 L.Ed. 2d 938 (2004). On this understanding, I agree with the court that the decision of the Missouri state courts to exclude hearsay contained in' an unsworn letter, while perhaps incorrect if reviewed de novo, does not represent an unreasonable application of federal law as determined by the Supreme Court of the United States. See Buchanan v. Angelone, 103 F.3d 344, 348-49 (4th Cir.1996), aff'd on other grounds, 522 U.S. 269, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998); Alley v. Bell, 307 F.3d 380, 398-99 (6th Cir.2002); Glenn v. Tate, 71 F.3d 1204, 1207 (6th Cir.1995).
Dissenting Opinion
dissenting.
I respectfully dissent. In my opinion, Vernon . Brown is entitled to relief on his habeas corpus petition because during the penalty phase, the trial judge excluded the letter written by Mr. Brown’s brother. I would therefore vacate Mr. Brown’s sentence. Mr. Brown’s conviction would of course stand. Unless the state sought to retry the penalty phase within a reasonable time to be set by the District Court, he would be in prison for life.
I believe the Court is mistaken in concluding that the state trial court made no
Under the amended AEDPA standard, our Court may grant habeas relief if a state court decision is either contrary to federal law or involves an unreasonable application of federal law. 28 U.S.C. § 2254(d). Mr. Brown alleges that the exclusion of the letter violated both the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 978 (1978) (plurality opinion), and later cases, the Supreme Court established that the Eighth Amendment guarantees a capital defendant the right to introduce all relevant mitigating evidence in the penalty phase. The Court noted that “the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett, 438 U.S. at 604, 98 S.Ct. 2954; see also Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). The Supreme Court has also held that the Due Process Clause requires that a state’s rules of evidence not be applied mechanically when doing so would preclude the defendant from introducing relevant evidence at the penalty phase. See Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (“[T]he hearsay rule may not be applied mechanistically to defeat the ends of justice.”). Thus, the exclusion of hearsay testimony at the penalty phase of a death penalty case violates the Due Process Clause of the Fourteenth Amendment where “[t]he excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, and substantial reasons existed to assume its reliability.” Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (per curiam) (citations omitted).
The first question is whether the AED-PA-standard issue is properly before us as a matter of judicial administration. I think the answer is no, and the procedural history of the case is instructive on the point. In briefs submitted to the three-judge panel that initially cited Mr. Brown’s case, the state did not assert that it should be governed by the AEDPA standard. In fact, this particular question was not controversial before the panel. Both the panel majority and the dissent (as the Court today acknowledges) hold, or at least assume, that the AEDPA standard does not apply, because the Missouri Supreme Court had not reached the merits. The first time the applicability of the AEDPA standard was urged was in the state’s petition for rehearing en banc. Petitioner was reduced to the last-minute expedient of placing his entire argument on this point in the response to the petition for rehearing en banc. No supplemental briefing was allowed prior to the oral argument on rehearing en banc.
I am not questioning at all the power of this Court to decide the issue. Courts often (sometimes too often, it seems) decide issues that are somewhat irregularly before them — for example, an issue not
Assuming we decide the standard-of-review question, what is the answer? The standard set out in AEDPA — that the holding of the state court cannot be set aside unless it was contrary to clearly established law as set forth in opinions of the Supreme Court of the United States, or was unreasonable in light of the facts in the state-court record — is crucial here. This standard, more difficult for habeas petitioners, comes into play, however, only if the state court decided the federal constitutional issue on its merits. In deciding this question, it is critical to examine closely the opinion of the Supreme Court of Missouri. In my view, the Missouri Supreme Court did not clearly decide the case on federal grounds.
The relevant passage from the opinion of the Missouri Supreme Court is set forth by this Court ante, at 460-61 n. 2. The Court rightly recognizes two separate legal issues: whether the letter was unreliable, and whether its exclusion was prejudicial. As to unreliability, the opinion clearly reads, with the exception of a citation to Green, like a garden-variety state-evidence-law issue. The first sentence of the quoted part of the Missouri Supreme Court opinion says: “Brown contends that the trial court abused its discretion in the penalty phase when it refused to allow his counsel to read into evidence a letter about him that was written by his brother, Darius Turner.” State v. Brown, 998 S.W.2d 631, 549 (en banc); cert. denied, 528 U.S. 979, 120 S.Ct. 431, 145 L.Ed.2d 337 (1999). The state court does not explain what it believes Green stands for, or how it helps the position taken by the State of Missouri. I believe a habeas petitioner is entitled to a more thorough answer. Indeed, it must have been with such a situation in mind that Congress included the “on the merits” language. The more attention the state court appears to have given the federal issue, the more its decision is entitled to respect. As to the prejudice holding, I do not see any “holding,” properly so called, at all in the state court’s opinion. The Missouri Supreme Court’s discussion of prejudice says only that admission of the letter did not seem prejudicial. This is not a holding, but simply an off-the-cuff observation made in passing.
So we come to the merits, applying, according to my way of thinking, pre-AEDPA law. In my opinion, regardless of whether the letter constituted hearsay, its exclusion violated Mr. Brown’s due-process rights. The Green standard involves a two-part inquiry, requiring a court to determine whether evidence relevant to a critical issue at the punishment phase is both relevant and reliable. Green, 442 U.S. at 97, 99 S.Ct. 2150. If such evidence is both relevant and reliable, -its exclusion at the punishment phase is reversible error. Ibid. Here, the letter was highly relevant to a critical issue, petitioner’s character, at the punishment phase and no substantial reasons existed not to assume its reliability.
This Court acknowledges that the Missouri Supreme Court did not specifically address relevance. This notwithstanding, this Court concludes that the letter was not relevant to a critical issue because the
The Court also intimates that the character evidence contained in the letter was repetitive of other evidence already before the jury. I disagree with this conclusion. It appears from the letter’s contents that petitioner and his brother shared a unique, although often distant, relationship that was unlike that which he shared with any other witness whose testimony was admitted. Furthermore, I am convinced that its effect on the jury would have been greater than the other mitigating evidence petitioner presented. Mr. Turner was not only a member of the armed services on active duty, he was also serving in the Gulf War, and over and over again during the trial, on the record, and in the presence of the jury, the Court praised the performance of our troops in the Gulf War. Theirs is the highest example of patriotism, the Court says. But the minute the defendant adduces evidence of this kind in his favor, the Court takes a completely different stance. I think the jury’s opinion of Mr. Brown might well have risen dramatically if it had known about the letter.
As to the reliability of the letter, this Court refers to the Missouri Supreme Court’s deference to the trial court’s uncertainty of the letter’s authenticity. I am troubled by this. The Missouri Supreme Court appears to defer to a finding that was not made by the trial judge. When the prosecution objected to the admission of the letter, the trial judge relied on state evidence law, not lack of authenticity, to exclude the letter. Specifically, the trial judge stated: “I have no problems with the authenticity of [the letter] except that it’s just not admissible even if this was an affidavit. The law is clear even an affidavit in the absence of a consent by both parties is not admissible, now that’s evi-dentiary law.” Tr. 2443. I am unpersuaded that the trial judge believed the letter was unauthentic and find no basis upon which it would be considered unauthentic. Furthermore, the letter’s return address was to “SFC Darius Q. Turner, HLM 801st MAINT BN, 101st ABN DIV (AASLT), APO NY 09309” and the letter’s postmark indicates that it was sent from the United States Army. I therefore believe that “substantial reasons existed to assume [the letter’s] reliability” and that due process required its admission because it was highly relevant to a critical issue. Green, 442 U.S. at 97, 99 S.Ct. 2150.
The exclusion of Mr. Turner’s letter was not harmless. “A constitutional error is harmless when ‘it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” ’ ” Mitchell v. Esparza, 540 U.S. 12,-, 124 S.Ct. 7, 12, 157 L.Ed.2d 263 (2004) (internal quotations omitted). The critical issue in the penalty phase of Mr. Brown’s trial was his character. The State of Missouri aimed to convince the jury that petitioner was a bad person. Petitioner’s attorneys, on the other hand, attempted to prove that although he had committed bad acts, petitioner was a man whose life was worth saving. Mr. Turner’s letter seems highly relevant in itself, and it would have been even more compelling than the other mitigating evidence because its author was a member of the armed
Concurrence Opinion
concurring in the judgment.
. I agree with the court that because Brown’s constitutional claim was adjudicated on the merits in state court, AEDPA’s § 2254(d) standard of review should apply. I also agree that any error in excluding the Turner letter was harmless beyond a reasonable doubt.
For the reasons so persuasively advanced in Judge Richard Arnold’s dissent, however, I cannot agree that the letter was properly excluded on either relevancy or reliability grounds. Accordingly, I concur in the judgment affirming the denial of the writ.