Lead Opinion
On Remand from the Supreme Court of the United States
In Childers v. Floyd, 568 U.S.-,
In this case, the defendant, Wyon Child-ers, a former County Commissioner for Escambia County, Florida, was on trial for receiving a bribe from a cоdefendant, Joe Elliot, in exchange for voting to have the Commission approve the County’s purchase of a piece of land Elliot owned.
Prior to his trial, Childers moved the trial court to permit him to bring out on Junior’s cross-examination both Elliot’s acquittal and the State’s attempt to revoke Junior’s plea agreement arguing that these events were relevant to Junior’s credibility and bias as a witness. Id. at 960. The court denied his motion. Id. аt 962. Addressing the admissibility of the Elliot acquittal, the court found that the unfair prejudice that the State would suffer if the testimony were allowed outweighed any probative value it might have.
A jury convicted Childers оf one count of bribery and one count of unlawful compensation for official behavior but found him not guilty of the money laundering charge. Id. at 962-63. He appealed his convictions to the Florida District Court of Appeal. Id. at 963. Childers’s brief to the District Court of Appeal argued that the trial court abused its discretion and denied him his Sixth Amendment right of confrontation by barring him from cross-examining Junior аs- proposed in his motion.
The District Court of Appeal, sitting en banc,
In granting certiorari and remanding this case for reconsideration in light of Johnson, the Supreme Court effectively asks us to determine whether Childers has rebutted the рresumption that the District Court of Appeal adjudicated his Sixth Amendment right of confrontation claim on the merits. To determine whether the presumption has been rebutted, we look to the state court’s decision and the record in the case
The District Court of Appeal began its analysis of Childers’s claim that the trial court had abused its discretion in prohibiting Childers from eliciting during his cross-examination of Junior evidence relating to the Elliot acquittal and the State’s attempt to withdraw Junior’s plea agreement by holding that such evidence was relevant under Florida Rule of Evidence 90.401. Childers II,
It is clear to us that Childers’s Confrontation Clause claim was not “inadvertently overlooked” by the District Court of Appeal. The claim was squarely before the court.
In sum, we hold that the Florida'District Court of Appeal adjudicated Childers’s Confrontation Clause claim on the merits. We therefore reinstate our decision in Childers I, and the District Court’s decision denying Childers’s a writ of habeas corpus is
AFFIRMED.
Notes
. Childers was indicted for one count of money laundering, one count of bribery, and one count of unlawful compensation or reward for official behavior. Childers I,
. Under Fla. Evid. R. 90.403 "[rjelevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." Fla. Stat. § 90.403.
. Under Fla. Evid. R. 90.401, “[rjelevant evidence is evidence tending to prove or disprove a material fact.” Fla. Stat. § 90.401.
. The Sixth Amendment’s Confrontation Clause states: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....” U.S. Const, amend. VI. The Clause is applicable to the States through the Fourteenth Amendment's Due Process Clause. Pointer v. Texas,
. Although the appeal was initially assigned to a three judge panel, a, majority of the judges of the District Court of Appeal voted to hear the case en banc under Fla. R.App. P. 9.331(a), before the panel’s decision, was ever released. Childers I,
. In the present context, the record consists of (1) the portions of the trial court record relating to Childers’s motion to permit him to cross-examine Junior with the evidence оf Elliott's acquittal and the State’s attempt to withdraw Junior’s plea agreement and (2) the briefs the parties submitted to the District Court of Appeal in Childers’s appeal.
. Florida Evidence Rule 90.608 provides that: "[a]ny party, including the party calling the witness, may attack the credibility of a witness by:
(1) Introducing statements of the witness which are inconsistent with the witness's present testimony.
(2) Showing that the witness is biased.
(3) Attacking the character of the witness in accordance with the provisions of § 90.609 or § 90.610.
(4) Showing a defect of capacity, ability, or opportunity in the witness to observe, remember, or recount the matters about which the witness testified.
(5)Proof by other witnesses that material facts are not as testified to by the witness being impeached.”
Fla. Stat. § 90.608.
. In Van Arsdall, the Supreme Court likewise held that the right of confrontation is subject to limitation by the trial court "based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.... [T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defensе might wish.”
. As we noted in our en banc decision, although. the opinion of the Florida District Court did not expressly reference Childers’s Sixth Amendment claim, the federal claim "did not slip the court’s collective mind." Childers I,
Dissenting Opinion
dissenting:
This case was remanded back to us from the Supreme Court so that we may assess, in light of Johnson v. Williams, 568 U.S. -,
As the majority concedes, the DCA affirmed Childers’s convictions “without expressly addressing Childers’s claim that the trial court’s ruling infringed his Sixth Amendment right of confrontation.” Majority Op. at 1334. As I previously stated, the DCA did not address Childers’s Sixth Amendment claim when it exclusively discussed Florida’s substantive evidentiary rule. See Childers v. Floyd,
Rule 403 calls on the trial judge to determine whether the probative value of evidence sought to be introduced is substantially outweighed by the danger of unfair prejudice. That is an entirely different — and narrower — question than determining whether аn accused has been denied the right to confront a witness testifying against him through the demonstration of that witness’s bias, prejudice, or ulterior motive. See Davis v. Alaska,
The DCA does not even mention the words “Sixth Amendment” or “confrontation” in its оpinion. Its opinion is confined exclusively to determining whether there was a violation of a Florida substantive evidentiary rule. The tests are not the same, and our per curiam opinion is unable to cite any authority to support the proposition that such a constitutional analysis can be subsumed, by implication, within the resolution of a state substantive evi-dentiary rule. Beyond failing to mention the more protective federal claim while extensively analyzing a less protective state claim, “there is [one additional] reason to think some other explanation for the state court’s decision is more likely” than an adjudication of Childers’s Sixth Amendment claim on the merits. Harrington, 562 U.S. at-,
The majority believes it to be clear that Childers’s Confrontation Clause claim was not “inadvertently overlooked” by the DCA. I disagree. In reviewing a criminal conviction, if an appellate court is going to limit its analysis to one of several distinct as the DCA did here, the court would choose the most protective claim with the least deferential standard of review — unless the more protective claim was overlooked. Given these circumstances, Johnson’s presumption that the claim was adjudicated on the merits has been rebutted.
I dissent because I believe that we are obligated to decide Childers’s Sixth Amendment confrontation claim on the merits. As I previously indicated, however, I am not inclined to conclude ultimately that Childers’s Sixth Amendment rights were violated by the limitations placed on his counsel during his cross-examination of Willie Junior.
Dissenting Opinion
dissenting:
I dissent from the Majority’s opinion on remand, which reinstates this Court’s en banc opinion in Childers v. Floyd,
In Childers I, the en banc Majority said that “an ‘adjudication on the merits’ is best defined as any state court decision that does not rest solely on a state procedural bar.”
In Williams, the Supreme Court was called upon to “ascertain the meaning of the adjudication-on-the merits requirement” of 28 U.S.C. § 2254(d). Williams,
[t]his issue arises when a defendant convicted in state court attempts to raise a federal claim, either on direct appeal or in a collateral state proceeding, and a state court rules against the defendant and issues an opinion that аddresses some issues but does not expressly address the federal claim in question. If this defendant then raises the same claim in a federal habeas proceeding, should the federal court regard the claim as having been adjudicated on the merits by the state court and apply deference under § 2254(d)? Or may the federal court assume that the state court simply overlooked the federal claim and proceed to adjudicate the claim de novo, the course taken by the Court of Appeals in the case at hand?
Id. at 1091 (emphasis added). The answer to this question, the Supreme Court told us in Williams, “follows logically from [its] decision in Harrington v. Richter, 562 U.S. -,
By way of - background, the Supreme Court held in Richter that § 2254(d) “does not require a state court to give reasons before its decision can be deemed to have
But it is important to note that Williams also reaffirmed that the Richter presumption was rebuttable: “[w]hen a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must 'presume that the federal clаim was adjudicated on the merits — but that presumption can in some limited circumstances be rebutted.” Id. at 1096. In sustaining the principle that the presumption a claim has been adjudicated on the merits may be rebutted, the Supreme Court considered and rejected the State of California’s invitation to hold otherwise. California argued in Richter that an irre-buttable presumption should apply where “a defendant claimed in state court that something that occurred at trial violated both a provision of the Federal Constitution and a related provision of state law” and the state court, “in denying relief, made no reference' to federal law.” Id. Williams rejected California’s argument for an irrebutable presumption in this scenario because it “goes too far.” Id. The Supreme Court explained, “while the Richter рresumption is a strong one that may be rebutted only in unusual circumstances, it is not irrebuttable. Per se rules should not be applied ... in situations where the generalization is incorrect as an empirical matter, and an irrebuttable presumption that state courts never overlook federal claims would occasionally miss the mark.” Id. at 1096-97 (quotation marks, internal citation and footnote оmitted).
In light of the Supreme Court’s holding and reasoning in Williams, the Majority opinion’s per se rule from Childers I cannot stand. That is because the Majority’s per se rule in Childers I operates like an “irrebutable presumption that state courts never overlook federal claims,” id. at 1097, at least in cases where the state court did not “clearly” and “solely” rely on a procedural rule. As Justice Alito explained for the Court in Williams, “[i]f a federal claim is rejected as a result of sheer inadvertence, it has not been evaluated based оn the intrinsic right and wrong of the matter.” Id. Said another way, claims that have been overlooked cannot have been “adjudicated on the merits in State court” within the meaning of § 2254(d). See id. Thus, even in the face of the Supreme Court’s emphatic rejection of an irrebutta-ble presumption in Williams, the en banc Majority here all but ignores Williams by reinstating its opinion in Childers I. Today’s reinstated Childers I opinion leaves undisturbed an irrebutable presumption (that there was an adjudieation-on-the mеrits in all § 2254 cases involving the same claim in state and federal court) “unless the state court clearly states that its decision was based solely on a state procedural rule.” Childers I,
Although the en banc Majority’s rule may seem simpler to apply than Williams’s rebuttable presumption, the Supreme Court was not “persuaded that applying a rebuttable presumption in this context will be unduly burdensomе for fed
For these reasons, I dissent.
. For the reasons set out by Judge Barkett in her dissent in Childers I, which I joined, I maintain my view that the Florida Courts did not adjudicate Mr. Childers’s Confrontation Clause claim “on the merits” within the meaning of 28 U.S.C. § 2254(d) and Harrington v. Richter, 562 U.S. --,