Vernon Brown v. Allen D. Luebbers

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 *472 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.

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 *473 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 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 *474 letter contained “stale evidence” of petitioner’s relationship with his brother. I disagree with this characterization of the contents of 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 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 *475 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.