Vernon Brown v. Allen Luebbers

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-1845

___________

Vernon Brown, *

*

Appellant, * Appeal from the United States

* District Court for the

v. * Eastern District of Missouri.

*

Allen D. Luebbers, *

*

Appellee. *

___________

Submitted: April 14, 2004

Filed: June 15, 2004 (Corrected June 17, 2004)

___________

Before LOKEN, Chief Judge, RICHARD S. ARNOLD, BOWMAN, WOLLMAN,

MORRIS SHEPPARD ARNOLD, MURPHY, BYE, RILEY, MELLOY,

SMITH, and COLLOTON, Circuit Judges, En Banc.

___________

BOWMAN, Circuit Judge.

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 (1999). His 28 U.S.C. § 2254 petition in the District Court1 raising thirty-one

1

The Honorable Jean C. Hamilton, United States District Judge for the Eastern

District of Missouri.

grounds for relief was denied, but the court granted a certificate of appealability on

eleven grounds. A panel of this Court affirmed the District Court in part but granted

the writ on one of Brown's claims challenging his sentence. Brown v. Luebbers, 344

F.3d 770 (8th Cir. 2003).

Both Brown and Allen D. Luebbers (representing the State) filed petitions for

rehearing with suggestions for rehearing en banc. We requested from Brown a

supplemental response addressing the appropriate standard of review to apply to the

issue upon which the writ had been granted. After receiving the response, the panel

denied both petitions for rehearing. The Court en banc rejected Brown's suggestions

for reconsideration by the full Court but granted an en banc rehearing to the State.

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.

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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 (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.2 So the first question for us to

2

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 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

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consider is: what constitutes an adjudication on the merits? From the plain language

of the statute and black-letter law, we know that the state court's decision must be a

judgment—an adjudication—on a substantive issue—the merits (as compared with

a procedural or technical point). A survey of opinions from our sister circuits

demonstrates that, beyond these two considerations, resolving the question is not so

easy. One thing is clear—no court has established bright-line rules about how much

a state court must say or the language it must use to compel a § 2254 court's

conclusion that the state court has adjudicated a claim on the merits. That is as it

should be, given one court's difficulty in divining the thought processes of another

based only on language being used in certain ways, not to mention the comity issues

that would be raised. Cf. Coleman v. Thompson, 501 U.S. 722, 739 (1991) (noting

in discussion of procedural default in state habeas cases that the Court has "no power

to tell state courts how they must write their opinions" so that reviewing "federal

courts might not be bothered with reviewing state law and the record in the case").

We must simply look at what a state court has said, case by case, and determine

whether the federal constitutional claim was considered and rejected by that 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.

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 (1999).

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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 (1979)" (per curiam). Brown, 998 S.W.2d at 549. Phillips, a Missouri death

penalty case, concerned a Brady3 issue raised in the petitioner's consolidated appeal.

The State had argued that the Brady issue was of no consequence because the

statement in question was hearsay and would not have been admitted into evidence

even if it had been disclosed. The Phillips court, in the pages cited by the Missouri

Supreme Court in Brown, analyzed the question under Green and concluded that the

testimony was highly relevant and reliable, and it should have been admitted.

In Green, also a capital case, the hearsay at issue was the testimony of a witness

given at the trial of Carzell Moore, who was indicted on the same charges of murder

and rape as Green, the petitioner. Moore and Green were tried separately. The

witness testified in Moore's trial, the first to be held, that Moore, Green's alleged

partner in crime, had confessed to him, the witness. According to the testimony,

Green was not present when the victim was murdered. The testimony was excluded

from Green's later trial as hearsay. The Supreme Court did not second-guess the state

court's evidentiary ruling that the testimony was hearsay but held that "its exclusion

constituted a violation of the Due Process Clause of the Fourteenth Amendment. The

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, 442 U.S.

3

Brady v. Maryland, 373 U.S. 83 (1963) (prosecutorial suppression of evidence

favorable to the accused).

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at 97 (citing Lockett v. Ohio, 438 U.S. 586, 604–05 (1978) (plurality opinion); id. at

613–16 (opinion of Blackmun, J.)).4

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 AEDPA standard. James v. Bowersox, 187 F.3d 866,

869 (8th Cir. 1999), cert. denied, 528 U.S. 1143 (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.

4

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 (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.

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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 (1967).5 In Chapman, the Court held that certain federal

constitutional errors made in state-court criminal trials could "be deemed harmless,

not requiring the automatic reversal of the conviction" if the errors are shown to be

harmless "beyond a reasonable doubt." 386 U.S. at 22, 24. Again, there are no

"magic words" that must be invoked before we can conclude that the Missouri

Supreme Court decided that any error was harmless beyond a reasonable doubt. But

here, the state court's use of "prejudicial" signals to us the application of the Chapman

standard, as the Supreme Court has long considered prejudice in its Chapman

harmless-error analyses. See, e.g., Brecht v. Abrahamson, 507 U.S. 619, 636 (1993)

("State courts are fully qualified to identify constitutional error and evaluate its

prejudicial effect on the trial process under Chapman . . . ."); Kimmelman v.

Morrison, 477 U.S. 365, 382 n.7 (1986) ("Furthermore, when an attorney chooses to

default a Fourth Amendment claim, he also loses the opportunity to obtain direct

review under the harmless-error standard of Chapman, which requires the State to

prove that the defendant was not prejudiced by the error.") (citation omitted); Hopper

v. Evans, 456 U.S. 605, 613–14 (1982) ("The preclusion clause did not prejudice

respondent in any way, and a new trial is not warranted.") (citing Chapman). On the

facts of this case, the state court's determination that the exclusion of the Turner letter

5

We are assuming that the Chapman harmless-error standard applies here. See

Sweet v. Delo, 125 F.3d 1144, 1158 (8th Cir. 1997) (noting Supreme Court cases

"implying that harmless-error analysis applies to Lockett errors"), cert. denied, 523

U.S. 1010 (1998).

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did not seem "prejudicial" to Brown was sufficient adjudication on the merits to

entitle this alternate holding to AEDPA deferential review.

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.6 We will consider both

grounds on which the Missouri Supreme Court decided the constitutional claim. But

before we get to the analysis, we must lay out the evidence of aggravating and

mitigating circumstances that was before the jury, as that evidence is critical to our

legal conclusions here and in Part III.

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 Components of the Record on Appeal in the

6

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.

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Missouri Supreme Court at 86. The jury could find depravity of mind only if it found

that Brown "committed repeated and excessive acts of physical abuse upon Synetta

Ford and the killing was therefore unreasonably brutal." Id. The evidence before the

jury was that nineteen-year-old Synetta Ford was found dead in her basement

apartment with a knife sticking out of her throat and the electrical cord from a curling

iron "tightly knotted around the neck." Trial Transcript at 2043, see also id. at 1662,

1684. The door to her apartment had been forced open. The evidence showed that

Brown first strangled her, taking the time to knot the electrical cord around her neck,

and then as she was dying he stabbed her in the chest and neck. The stab wound to

her neck severed her carotid artery, the major artery in the neck. The jurors saw

photographs of Ford's body as it appeared when it was discovered on the floor of her

apartment and also an autopsy photograph. In addition, the jury watched a videotape

of Brown's confession, where he claimed that Ford had accidentally stabbed herself

before and after he strangled her with the cord.

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.

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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 door so that the boys

who were not being victimized at the time could not come in.

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 Coplen who knew Brown,7

his wife, and his wife's sons (the children who testified for the State in the penalty

phase). They became acquainted in 1981 (four years before the Ford murder, ten

7

The witnesses who testified about relationships they had with Brown in the

early 1980s knew him as Thomas Turner.

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years before the trial) at Sunday school. The Coplens testified that the families spent

two Christmases together, and Donald Coplen said he and Brown delivered Christmas

baskets to the needy one year. They saw each other socially an additional time or two.

The Coplens also saw Brown regularly at church until he stopped attending in 1984

and became distant. They did not see him after that, although Maggie Coplen said

that she had visited him in the city jail and in state prison and was staying in touch

with him. Both Coplens testified that they had not seen Brown physically abuse his

wife or her sons during the time that they were in regular contact with him.

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.

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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 Potosi 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

prisoners. Id. Another Potosi officer who had substantial contact with Brown from

the time Brown arrived testified that Brown was being held in minimum custody

(although in a maximum security facility). His behavior was good, he avoided other

inmates, and in one case, he literally ran from trouble when a fight broke out.

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

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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 (1991). We assume the state court properly applied state law. All

that concern us are issues raised under the United States Constitution.

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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" and

"substantial reasons [must exist] to assume its reliability" before its exclusion will be

deemed a due process violation. Green, 442 U.S. at 97. Brown has not shown that

the state courts' conclusion is "opposite to that reached by" the Supreme Court in

Green or any other case "on a question of law." Williams v. Taylor, 529 U.S. 362,

405 (2000). Likewise, Brown has not directed us to, and we have not found, a

Supreme Court case with "materially indistinguishable" facts in which the Court

reached a different result. Id. The Missouri Supreme Court decision is therefore not

contrary to clearly established federal law.

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 (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 [AEDPA] 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

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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.

The issue in mitigation, to which the Turner letter would go, was Brown's

character. The letter had essentially two messages.8 First, Turner described how

Brown protected Turner and his friends from older boys who chased them home from

school, then taught Turner to stand on his "own two feet." The letter conveyed the

additional message that Turner loved Brown, although the brothers had been out of

touch. Turner said that Brown had "too much good in him to let go of" and that he,

Turner, found it "very hard to believe" that Brown was guilty.

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 they had reconnected through telephone calls and

letters. We think it is an objectively reasonable application of Green to conclude that

stale evidence of a convicted murderer's character, evidence that harkens back to

incidents or relationships of years past, well before the murder was committed, is not

"highly relevant" to a "critical issue." The degree of relevance is further diminished

by the fact that, as described above, the jury had before it other evidence of Brown's

character. Indeed, the "aspect of [Brown's] character" suggested by the letter—his

8

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.

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efforts to protect those less able to protect themselves—was before the jury through

the testimony of other witnesses. Lockett, 438 U.S. at 604 (plurality opinion). As we

noted above, the forensic social worker testified that she had spoken with Brown's

family, who described Brown as being "pretty protective of his younger brothers and

sister." Trial Transcript at 2413. Brown's mother stated the same thing. Likewise,

Paul Sasser testified that Brown protected him from belligerent patrons of the

homeless center. That evidence is precisely the sort of evidence that Turner offered

in his one memory of his relationship with Brown—Brown's protection of people

close to him—and is actually broadened beyond Turner's recollection to include

Brown's friend and all of Brown's siblings, not just Turner. Additional character

testimony, as recited above, came from witnesses who apparently had more recent and

frequent contact with Brown than Turner. Several of those witnesses recalled

specific, positive incidents that were more contemporaneous both to the approximate

time of the murder and to the time of sentencing. Finally, Turner's love for his

brother, his belief in Brown's innocence, and his opinion that "God's law" should

decide Brown's fate are subjective feelings that cannot be deemed "highly relevant"

under Green to the question of Brown's character, and it would not be objectively

unreasonable to so conclude.

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

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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 (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.9 The Chambers Court noted that the statements in question "were originally

made and subsequently offered at trial under circumstances that provided

considerable assurance of their reliability." Id. at 300 (noting that the statements were

spontaneous, made to several people, corroborated, and against interest, and that the

person who purportedly made the out-of-court statements was in the courtroom and

could be called to testify). Moreover, the witnesses' testimony went directly to the

question of guilt or innocence. On the facts of this case, we do not think it is contrary

to or an objectively unreasonable application of Chambers (or any other Supreme

Court case that we have identified, for that matter) for the state courts to have

concluded there were not "substantial reasons" to assume the Turner letter's

reliability, that is, that the letter's reliability could not be assured because it was not

submitted as a sworn affidavit. We may believe the state courts got it wrong, but that

is not our call to make. "[A] federal habeas court may not issue the writ simply

because that court concludes in its independent judgment that the relevant state-court

9

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 (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 evidentiary rulings can, in combination, rise to the level of a due process

violation." Id. at 53 (emphasis added).

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decision applied clearly established federal law erroneously or incorrectly. Rather,

that application must also be unreasonable." Williams, 529 U.S. at 411. We hold that

the state courts' decision on the question of reliability is not contrary to or an

unreasonable application of Green.

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)

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("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

applicable to Brown's claim and the facts related to it in order to explain why we

reject his claim that the Missouri Supreme Court's decision was contrary to or an

unreasonable application of clearly established federal law. Little more needs to be

said here. For the reasons we have already explained in some detail, we do not think

Brown has shown that the Turner letter was "highly relevant to a critical issue" in his

sentencing. While we may be less certain under the pre-AEDPA standard of review

about the state courts' decision that Brown failed to show "substantial reasons" to

conclude that the letter was reliable, we need not decide the question because the

relevance standard cannot be met.

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, 124 S. Ct. 7, 12 (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 (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.

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The judgment of the District Court denying the writ on any and all of Brown's

claims is affirmed.

WOLLMAN, Circuit Judge, with whom MURPHY, Circuit Judge, joins, 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.

COLLOTON, Circuit Judge, 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 to decide

whether the panel opinion should remain the law of the circuit on that issue. If the

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panel opinion merely had reported a concession or waiver by the state in this case,

and left the AEDPA-standard issue for another day, then the matter of judicial

administration might be resolved differently.

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 (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.

DePaolo, 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

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(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, No. 02-1684, 2004 WL 1190042, at * 8 (U.S. June 1,

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 (1998);

Alley v. Bell, 307 F.3d 380, 398-99 (6th Cir. 2002); Glenn v. Tate, 71 F.3d 1204, 1207

(6th Cir. 1995).

RICHARD S. ARNOLD, Circuit Judge, with whom BYE and MELLOY, Circuit

Judges, join, 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

constitutionally significant errors in the penalty phase of Mr. Brown's trial. In my

view, the trial court violated petitioner's rights under both the Eighth Amendment and

the Due Process Clause of the Fourteenth Amendment by excluding as hearsay a

letter written by his brother, Mr. Darius Q. Turner, who was on active duty in the

United States Army serving in the Middle East as part of Operation Desert Shield

during petitioner's trial. Petitioner wanted the jury to see the letter as mitigating

evidence. This Court discounts both the reliability and relevance of the letter, and I

respectfully disagree.

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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.A. § 2254(d). Mr. Brown alleges that the

exclusion of the letter violated both the Eighth Amendment and Due Process Clause

of the Fourteenth Amendment. In Lockett v. Ohio, 438 U.S. 586 (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; see also Eddings v.

Oklahoma, 455 U.S. 104, 110 (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 (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 (1979) (per curiam) (citations omitted).

The first question is whether the AEDPA-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 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

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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 on

this point. 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 properly raised in the court below. But that

is certainly not the normal practice. I am not saying that proceedings before three-

judge panels are analogous in every respect to proceedings in lower courts, but there

is a certain similarity. The state, like petitioner, should be required to come with all

of its guns loaded the first time. This it has not done. Instead, it has saved one bullet.

I do not think this practice should be encouraged, even though the effect of the

argument is to affirm the judgment of a district court.

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 3-4 n.2. The Court rightly recognizes two separate legal

issues: whether the letter was unreliable, and whether its exclusion was prejudicial.

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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 531, 549 (en banc), cert. denied, 528

U.S. 979 (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.

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 letter contained "stale evidence" of petitioner's

relationship with his brother. I disagree with this characterization of the contents of

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the letter, and do not join the Court in its conclusion that "evidence that harkens back

to incidents or relationships of years past, well before the murder was committed, is

not 'highly relevant' to a 'critical issue.' " Indeed, if courts were to follow this

standard, I doubt that much mitigating evidence of a defendant's character could ever

be admitted. No better method of describing a person's character likely exists than

by recounting incidents and interactions of years past.

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 evidentiary law." Tr. 2443. I am unpersuaded

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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.

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, 124 S. Ct. 7, 12

(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 services on active duty in time of war. Thus, I conclude that

the exclusion of Mr. Turner's letter violated Mr. Brown's rights under the Eighth and

Fourteenth Amendments and that, upon applying the proper prejudice standard, the

exclusion was not harmless.

______________________________

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