“when a defendant takes the stand in a criminal case and exposes his demean- or to the jury, the jury may make adverse determinations about his credibility and reject his explanation as a complete fabrication.”
How later courts described this case
- “when a defendant takes the stand in a criminal case and exposes his demean- or to the jury, the jury may make adverse determinations about his credibility and reject his explanation as a complete fabrication.”
Written by the judges who cited it.
The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-15089 July 25, 2005
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 03-02702-CV-J-E
SHAEFFER M. COLEMAN,
Petitioner-Appellant,
versus
GILES, Warden,
ATTORNEY GENERAL OF STATE OF ALABAMA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(July 25, 2005)
Before BIRCH, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Shaeffer Coleman, an Alabama state prisoner, appeals pro se the denial of
his federal habeas corpus petition, 28 U.S.C. § 2254, on grounds that the district
court improperly dismissed his claim that trial counsel was ineffective for failing to
object to an outburst by the victim’s grandmother and failing to move for a
mistrial. Coleman filed his petition after the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-32, 110 Stat.
1214 (1996); therefore the provisions of that act govern his appeal. For the reasons
set forth more fully below, we affirm.
Coleman, presently serving two consecutive life sentences for first degree
rape and sodomy, filed this pro se petition for federal habeas corpus pursuant to 28
U.S.C. § 2254 alleging, inter alia, ineffective assistance of trial counsel for failing
to object to an “emotional outburst by the victim’s grandmother.”
The state responded, arguing that Alabama state courts had addressed the
merits of Coleman’s claims and those decisions were neither contrary to nor
involved an unreasonable application of federal law. With regard to his trial
counsel’s failure to object to the outburst of the victim’s grandmother, the state
argued that a state appellate court had found that Coleman failed to adequately
plead his claim and that, therefore, Coleman failed to meet his burden of proving
either ineffective assistance of counsel or prejudice, as required under Strickland v.
2
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Relevant to Coleman’s certificate of appealability (“COURT OF
APPEALS”), the state’s evidence showed that, at trial, the victim, who at the time
of the offense was Coleman’s 13-year-old step-daughter, testified that Coleman,
some time prior to July 4, promised her that if she let Coleman “do something,”
Coleman would take her somewhere with her boyfriend. Coleman then took the
victim into his bedroom and touched her breasts and her vagina. On another
occasion, Coleman used his mouth and, eventually, penetrated the victim’s vagina
with his penis. The victim also testified that Coleman took her “to the woods” in a
car and penetrated her anus with his penis. When she cried and told Coleman to
stop, he hit her in the face. On another occasion, Coleman took the victim to a
cemetery and again touched the victim’s breasts and vagina before penetrating her
anus with his penis. After this last incident, the victim told her mother that she
didn’t want to stay at home any longer, and informed her mother that Coleman was
“messing with [her].” The victim identified Coleman as the perpetrator.
Near the end of the victim’s testimony on cross-examination, the record
showed that “a hysterical woman ran toward the defendant, was apprehended, and
was escorted out of the courtroom.” The court called for a 15-minute recess, and
the trial then resumed. The court’s jury instructions included the following
3
statement: “[y]ou should not permit sympathy, emotion or prejudice to influence
your verdict one way or another in this case.” Two hours into deliberations, the
jury returned to the courtroom “deadlocked” and, after lunch, requested “the
testimonies of the doctor and defendant” as well as the testimony of the victim.
One of the reasons was that the jury was not “clear what [the witnesses] said in
context.” The court decided that “the easiest way to do that is just to replay the
tapes,” and in closed session, the jury reheard the testimony of three witnesses,
including the victim and, presumably, also reheard the “outburst” of the woman
who ran at Coleman during trial. After rehearing the testimony and deliberating
for 25 minutes, the jury was still unable to reach a unanimous verdict. The
following day, the jury convicted Coleman of sodomy and rape in the first degree.
On direct appeal, Coleman argued that “the trial court committed reversible
error by failing to grant a mistrial following an outburst by a spectator during the
course of the trial. This woman, who turned out to be the grandmother of the
victim, began shouting very loudly at the defendant: ‘That man’s a snake.’ This
spectator repeated the same outburst and continued to make loud, verbal outbursts
as a sheriff’s deputy subdued her, lifted her up in the air, and carried her out of the
courtroom.” In a memorandum opinion, the Alabama Court of Criminal Appeals
found that Coleman had failed to move for a mistrial, ask for a curative instruction,
4
or otherwise object regarding the outburst and, therefore, concluded that the issue
was not preserved for appellate review.
Coleman then filed in Alabama state court a petition for relief from his
conviction or sentence pursuant to Alabama Rule of Criminal Procedure 32,
arguing inter alia, that he was denied effective assistance of counsel because his
counsel failed to object to the outburst described supra. The state responded that
Coleman had failed to show that his trial counsel was deficient under Strickland.
The court issued a written order, finding that:
Petitioner has failed to meet the requirements of Strickland v.
Washington, 466 U.S. 668 (1984) in proving his allegations.
Furthermore, the undersigned trial judge is the judge that presided
over this Petitioner’s jury trial. Based upon this Court’s observations
of defense counsel at trial and all phases leading to trial, the Petitioner
was properly and effectively represented.
Coleman appealed the state trial court’s decision. The Alabama Court of Criminal
Appeals affirmed, finding that it (1) could not consider Coleman’s factual
assertions because they were presented in an unverified motion 1 and (2) Coleman’s
allegations were conclusory and general. Therefore, it found that the “circuit court
properly denied relief on this ineffective-counsel claim.”
The district court, upon review of the evidence, found that “[e]ach of the
1
Coleman asserted that the actual words said by the grandmother were: “he’s a snake,
I’m going to kill him, he deserves to burn in hell for what he did to my baby.”
5
claims of ineffective assistance of counsel were raised by the petitioner in his Rule
32 petition, and these claims were addressed on their merits in the state appellate
court . . . and . . . found . . . to be without merit.” Thus, it found that Coleman
could:
[O]btain relief on these claims only if he can establish that the . . .
adjudication of the claims “resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court” 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.”
The district court then concluded that Coleman had not established what was
required, and dismissed his petition. It found that the “Alabama Court of Appeals’
adjudication of [Coleman’s] claims . . . was not based on unreasonable
determinations of the facts in light of the evidence presented in the state court
proceedings.”
Coleman appealed and we granted a COA on the following issue: “Whether
trial counsel was ineffective for failing to object to an outburst by the victim’s
grandmother and move for a mistrial?”
On appeal, Coleman argues that his trial counsel was ineffective for failing
to object to the “outburst” during his trial or to request an immediate curative
instruction and polling of the jury to ensure that no member was affected by it. He
argues that his counsel’s failure to object permitted the jury to hear the outburst a
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second time after it had reported being “deadlocked” and, had counsel objected, the
outburst would have been stricken from the record and Coleman would have
received a hung jury or a verdict of not guilty. Thus, he contends that he was
denied his Sixth Amendment right to a fair trial by an impartial jury. He cites no
federal cases in support of his arguments.
“Appellate review in a § 2254 proceeding is limited to the issues specified in
the certificate of appealability.” Diaz v. Sec’y for the Dept. of Corr., 362 F.3d 698,
702 (11th Cir. 2004). We review “[de novo] issues of law presented in a certificate
of appealability.” Medberry v. Crosby, 351 F.3d 1049, 1053 (11th Cir. 2003).
Pursuant to 28 U.S.C. § 2254:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim–
(1) 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
(2) 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.
28 U.S.C. § 2254(d)(1)-(2).
The United States Supreme Court has held that “[a] state-court decision is
contrary to this Court’s clearly established precedents if it applies a rule that
7
contradicts the governing law set forth in our cases, or if it confronts a set of facts
that is materially indistinguishable from a decision of this Court but reaches a
different result.” Brown v. Payton, ___ U.S. ___, 125 S.Ct. 1432, 1438, 161
L.Ed.2d 334 (2005). “A state-court decision involves an unreasonable application
of this Court’s clearly established precedents if the state court applies this Court’s
precedents to the facts in an objectively unreasonable manner.” Id. at ___, 125
S.Ct. at 1439. An objectively unreasonable application of precedent occurs when
(1) a state court identifies the correct legal rule but unreasonably applies it to the
facts or (2) a state court either unreasonably extends a legal principle from
precedent to a new context where it should not apply or unreasonably refuses to
extend that principle to a new context where it should apply. See Diaz v. Sec’y for
the Dept. of Corr., 402 F.3d 1136, 1141 (11th Cir. 2005).
“It is past question that the rule set forth in Strickland qualifies as ‘clearly
established Federal law, as determined by the Supreme Court of the United
States.’” Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 1512, 146
L.Ed.2d 389 (2000). Under Strickland, a defendant can only succeed on an
ineffective assistance of counsel claim if he proves (1) his counsel was deficient,
i.e., made errors so serious that counsel was not functioning as guaranteed under
the Sixth Amendment, and (2) there is a reasonable probability that, but for
8
counsel’s unprofessional errors, the result of the proceeding would have been
different. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. A
reasonable probability is one sufficient to undermine confidence in the outcome.
Id. at 694, 104 S.Ct. at 2068. It is not enough for the defendant to show that the
error had some conceivable effect on the outcome of the proceeding. Id. at 693,
104 S.Ct. at 2067. Moreover, “it is not enough to convince a federal habeas court
that, in its independent judgment, the state-court decision applied Strickland
incorrectly. . . . he must show that the [state court] applied Strickland to the facts of
his case in an objectively unreasonable manner.” Bell v. Cone, 535 U.S. 685, 699,
122 S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002).
The district court found that the Alabama Court of Criminal Appeals’
adjudication of Coleman’s claims did not result in a decision contrary to, or
involving an unreasonable application of, Strickland. The Court of Criminal
Appeals had affirmed the trial court’s conclusion that Coleman had failed to
establish that his counsel was deficient under Strickland. A review of the trial
record shows that the dismissal of Coleman’s ineffective assistance claim was not
objectively unreasonable.
First, Coleman has not pointed to any Supreme Court cases reaching a
different result under indistinguishable facts. Second, in order to prevail under the
9
prejudice prong of Strickland, Coleman had to show a reasonable probability of a
different outcome if, in fact, his counsel committed error. Assuming it was error
for Coleman’s counsel not to object to the outburst, request a curative instruction
or poll the jury, or move for a mistrial, Coleman has not shown that, but for the
error, there was a reasonable probability that the jury would not have convicted
him.
Coleman’s entire argument is that:
[H]ad his counsel objected and asked for a mistrial, there is a
reasonable probability that the trial court would have granted a motion
for mistrial or at the very least, the trial court would have given
specific detailed instructions to disregard the outburst and polled the
jury to make sure that none of them were affected and the outburst
would not have been available on tape for the jury to hear that second
time because it would have been stricken from the record. . . .
[B]ecause of the jury’s deadlocked position, [Coleman] would have
gotten a hung jury or even an innocent verdict had [the jury] not been
exposed to that tape recording of the outburst during their
deliberations.
The victim testified at the trial to several occasions during which Coleman
penetrated her vagina and anus with his penis. The outburst in question appears,
from the record, to have been short and inconsequential, reading only that “a
hysterical woman ran towards, the defendant, was apprehended, and escorted out
of the courtroom.” And while it is true that no immediate instruction was given to
the jury to disregard the outburst, the jury instructions admonished the jurors to
10
avoid basing a decision of guilt on sympathy, emotion, or prejudice, and they were
well informed of a defendant’s presumed innocence. Jurors are presumed to
follow the instructions they are given. See, e.g., Raulerson v. Wainwright, 753
F.2d 869, 872 (11th Cir. 1985).
Moreover, when the jury requested to rehear the testimony that Coleman
argues contained the outburst in question, it stated that it wanted to clarify the
context of witness statements. Even assuming that the grandmother of the victim
said what Coleman asserts that she said, “he’s a snake, I’m going to kill him, he
deserves to burn in hell for what he did to my baby,” the jury would have gleaned
nothing new, nor been informed of anything other than the grandmother was
understandably upset at the man the state accused of raping her granddaughter.
See, e.g., Kinnamon v. Scott, 40 F.3d 731, 734 (5th Cir. 1994) (persuasive
authority noting that, after the jury was exposed to an outburst by the daughter of a
murder victim, the fact that “the young girl was upset and angry at the person
accused by the state as the murderer of her father communicated nothing new to
the jury.”). Notably, the trial judge in Coleman’s case, who was present
throughout the trial, found no deficiency in the counsel’s performance. As we
have held in a similar context, “because the trial judge is in the best position to
assess the prejudicial effect of an emotional outburst, the decision whether to grant
11
a mistrial lies within his sound discretion.” Griffin v. City of Opa-Locka, 261 F.3d
1295, 1302 (11th Cir. 2001).
Moreover, Coleman’s argument regarding prejudice is purely speculative, as
he argues that, but for the jury hearing the outburst a second time, there would
have been a hung jury or a verdict of not guilty. Coleman makes much of the fact
that the jury was deadlocked before hearing the tapes with the outburst. However,
the record shows that the jury had only deliberated for two hours before informing
judge that it was “deadlocked.” After breaking for lunch, the jury requested to
rehear the testimony of three witnesses, did not return to deliberations until several
hours later, deliberated for 25 minutes, and returned to the court “unable to reach a
unanimous verdict.” The jury returned at 9 a.m. the next day and returned a
unanimous verdict of guilty in 30 minutes. The fact that the jury was deadlocked
before hearing the tapes and still unable to reach a unanimous verdict immediately
after hearing the tapes runs contrary to Coleman’s argument. In any event, the fact
that it took a jury roughly three hours of total deliberation time to convict Coleman
is not evidence of a reasonable probability that the outcome would have been
different, especially in light of the fact that Coleman testified on his own behalf,
denied committing the crime, and was found guilty anyway. See, e.g., United
States v. Vazquez, 53 F.3d 1216, 1225 (11th Cir. 1995) (“when a defendant takes
12
the stand in a criminal case and exposes his demeanor to the jury, the jury may
make adverse determinations about his credibility and reject his explanation as a
complete fabrication.”).
Finally, because Coleman must prove a reasonable probability of a different
outcome, and the best that can be said about the outburst is that it may or may not
have impacted the jury and may or may not have affected the outcome, Coleman
cannot carry his burden of proof and persuasion under the prejudice prong of
Strickland. Cf. United States v. Rodriguez, 398 F.3d 1292, 1299-1301 (11th Cir.
2005) (holding that, to succeed under plain error review of a Sixth Amendment
right to a jury violation at sentencing, a defendant must show a “reasonable
probability” (citing Strickland) of a different outcome, and where the effect of the
error was uncertain, the defendant failed to meet that burden). The evidence does
not demonstrate that the outburst had any effect on the factfinder’s ultimate
determination of guilt. See Strickland, 466 U.S. at 695, 104 S.Ct. at 2068-69.
In light of the foregoing, we conclude that the state courts’ decisions
rejecting Coleman’s ineffective assistance of counsel claim for failing to object to
the outburst at trial were not an unreasonable application of the law under
Strickland. We, therefore, affirm.
AFFIRMED.
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