Opinion
No. 3:00-CV-0286-P
April 25, 2002
FINDINGS CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS
I. NATURE OF THE CASE
Petitioner filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
II. PARTIES
Petitioner is an inmate in the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"). Respondent Janie Cockrell is Director of the TDCJ-ID.
III. PROCEDURAL BACKGROUND
On April 18, 1996, a jury found Petitioner guilty of possession of more than five pounds, but less than fifty pounds, of marijuana in the 382nd District Court of Rockwall County, Texas. During the punishment phase of the trial, the State presented evidence of Petitioner's two prior felony convictions. The jury found both enhancement paragraphs true and assessed punishment at life imprisonment.
On July 20, 1998, the Texas Fifth Court of Appeals affirmed Petitioner's conviction. ( Gooden v. State, No. 05-96-00786-CR). Petitioner did not file a petition for discretionary review. On May 21, 1999, Petitioner filed a state petition for writ of habeas corpus. ( Ex parte Gooden, Application No. 42, 816-01). On December 15, 1999, the Texas Court of Criminal Appeals denied the petition without written order. ( Id. at cover).
On February 8, 2000, Petitioner filed this federal petition for habeas corpus. Petitioner argues:
(1) the prosecutor withheld exculpatory evidence;
(2) the court abused its discretion in excluding the testimony of defense witnesses after a violation of the rule of sequestration;
(3) the trial court erred in denying the defense a motion for continuance;
(4) his conviction was unlawful because the prosecutor called him a drug runner;
(5) the evidence was factually insufficient to support the jury's finding of guilt;
(6) the court erred in denying the defense's motion for a mistrial after the prosecutor made improper arguments in closing;
(7) one of the jurors failed to tell the court he was convicted of possession of marijuana;
(8) he did not receive a Denno hearing; and
(9) he received ineffective assistance of counsel because:
(a) his attorney failed to notify him of his right to file a pro se petition for discretionary review;
(b) his attorney failed to prevent a violation of the sequestration rule;
(c) his attorney failed to obtain a continuance of the trial;
(d) his attorney failed to timely file a motion to suppress;
(e) his attorney failed to inform the court that he represented one of the jurors in a marijuana case.
The Court first examines whether the trial court abused its discretion in excluding Petitioner's defense witnesses. As that issue entitles Petitioner to relief, the Court will not consider Petitioner's remaining claims.
IV. STANDARD OF REVIEW
The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), 28 U.S.C. § 2254, provide:
(d) 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 a State court proceeding.28 U.S.C. § 2254(d) (West 1997).
The Court must defer to the state court unless its decision "was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(i). A decision is contrary to clearly established Federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). Under the "unreasonable application" language, a writ may issue "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. Factual findings are presumed to be correct, see 28 U.S.C. § 2254(e)(1), and the Court will give deference to the state court's decision unless it "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)(2).
This amendment applies to all federal habeas corpus petitions which were filed after April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997). The habeas corpus petition in this case was filed February 10, 2000. Accordingly, the petition is subject to review under the AEDPA's amendments.
V. FACTUAL BACKGROUND
Petitioner was convicted by a jury of possession of more than five pounds, but less than fifty pounds, of marijuana. At trial, Officer Spears testified that he initiated a stop of Petitioner's car because Petitioner made improper lane changes and was speeding. (Tr. Vol. 3: 77:15-20). Once Officer Spears stopped Petitioner, he determined that Petitioner appeared nervous and that the car smelled of marijuana. (Tr. Vol. 3: 80: 9; 91: 6-10). Petitioner admitted to Officer Spears that he had outstanding traffic warrants. (Tr. Vol. 3: 86: 12-24). Officer Spears testified that Petitioner stated that his girlfriend, Verita Eschor, leased the car and gave him permission to drive it. (Vol. 3: 81: 22-25). Officer Spears asked Petitioner for permission to search the car, and Petitioner refused. (Vol. 3: 84: 4-9). Officer Spears then called a canine unit to the scene. (Vol. 3: 84: 11-13).
While Officer Spears was talking with Petitioner, Officer Tigert interviewed Petitioner's passenger, Johnny Wilson, who was Petitioner's sixteen-year-old son.
Officer Hawkes then arrived at the scene with his police dog. (Vol. 3: 84:11-23). Officer Hawkes testified that his dog jumped inside the vehicle and alerted him that she detected drugs. (Vol. 3:189:12-24). Officer Hawkes also testified that he smelled marijuana in the car. (Vol. 3: 189: 25-190: 1-16). Once the dog alerted the officers of the drugs, the officers conducted a search of Petitioner's car. (Vol. 3:192:15-193:1). No drugs were found in the interior of the car, but a box of marijuana was found in the car's trunk. (Vol. 3: 116: 6-117:5; 191: 1-11).
Officer Spears also testified that Petitioner had a notebook ledger with him when he was arrested. (Vol. 3:130:10-19). Both Officer Spears and Officer Tigert testified that the ledger appeared to be a record of drug transactions. (Vol. 3:130:10-132: 13; 293: 4-296: 7).
At the close of the prosecution's case, defense counsel indicated he intended to call two witnesses: Petitioner's girlfriend, Verita Eschor, who rented the car in which the drugs were found; and Petitioner's son, Johnny Wilson, who was in the car when police stopped Petitioner and arrested him. (Vol. 4:23:1-5). The prosecutor objected, arguing that the State had invoked the rule of sequestration of witnesses, and that Petitioner's witnesses had been in the courtroom during trial. (Vol. 4: 23:9-22). It is undisputed that Johnny Wilson was present through the entire trial, and Verita Eschor was present during the testimony of Officer Tigert. (Vol. 4: 23: 17-22; 26:22-27:3). Defense counsel, however, did not hear the prosecution invoke the rule. (Vol. 4:27-4-8). Once the trial court confirmed that the rule had been invoked, defense counsel asked the court to apply equity to allow the defense witnesses to testify. In the alternative, defense counsel argued that Eschor should be allowed to testify because she was not a fact witness to the arrest, therefore her presence during Officer Tigert's testimony would have no effect on her testimony. (Vol. 4: 26:15-27:8).
The court allowed Eschor to testify outside the presence of the jury. (Vol. 4:28:24-30:25). Eschor stated she would testify that she leased the car Petitioner was driving when he was arrested and that she gave Petitioner permission to drive the car. (Vol. 4:30-1-12). Eschor also testified that earlier on the same day that Petitioner was arrested, there were other people who had her permission to drive the car. (Vol. 4: 30:18-22). Eschor also stated she would testify that the notebook ledger belonged to her and Petitioner, and that the ledger was used by them to log beer and liquor purchases for a club business they owned. (Vol. 4: 35:9-36:6). She testified that other writing in the ledger
was random writing including an address of her and Petitioner's new apartment, the frequency number of a radio station they were trying to find, and the address of a rental house she and Petitioner owned. (Vol. 4: 42:7-47:13). She also testified that she did not make all the entries in the ledger book, that she witnessed Petitioner make some of the entries, and that she did not have personal knowledge of all the entries in the book. ( Id.).
After hearing this testimony, the trial court found that the rule had been violated and he excluded the testimony of Petitioner's two witnesses. (Vol. 4:15-25). Petitioner did not testify in his own behalf. (Vol. 4: 52: 22-25). The defense therefore rested its case without calling any witnesses. (Vol. 4:52:22-24).
In closing argument, the prosecutor asked the jury, "where is [Petitioner's] girlfriend," referring to the fact that she did not testify. (Vol. 4:89:12-18). After an objection by the defense, the prosecution stated that Petitioner "does not bear a burden of putting anyone on [the stand as a witness] if he chooses not to, and apparently, he chose not to." (Vol. 4:91:15-17). There was no explanation to the jury that Petitioner's witnesses were excluded by the court.
The jury found Petitioner guilty and assessed punishment at life imprisonment. (Vol. 5:73:6-8).
On direct appeal, the Texas Fifth District Court of Appeals found that Eschor' s excluded testimony "was not crucial to Gooden's defense." ( Gooden v. State of Texas, No. 05-96-00786-CR, Slip. Op. at 4). The court stated that "Gooden had already testified that his girlfriend leased the car and allowed him to drive it." ( Id.). The Fifth District also found that because Eschor did not have personal knowledge of all the writings and figures in the notebook ledger, she could not have established the ledger was not used to record narcotics transactions. ( Id. at 4-5). Finally, the court found that because Petitioner failed to make a bill of exception regarding Johnny Wilson's testimony, the court was unable to say the son's testimony was crucial to Petitioner's defense. ( Id. at 4). The court therefore overruled Petitioner's claims and affirmed his conviction.
Petitioner also filed a state application for habeas relief raising his claims regarding the exclusion of his witnesses. On state habeas review, Petitioner submitted an affidavit from Johnny Wilson. Wilson's affidavit stated he would have testified that he and Petitioner picked up the rental car from Verita Eschor's father's business parking lot. ( In re Gooden, Application No. 42, 816-01, p. 51). Wilson stated that neither he nor Petitioner looked in the trunk before driving away in the car. ( Id.). Wilson stated there was no marijuana smell in the car, and no smell that would have alerted him to believe that marijuana might be present. ( Id.). Wilson stated the officers never questioned him regarding any smell of marijuana and he never heard the officers mention a smell of marijuana. ( Id. at 52-53). The Texas Court of Criminal Appeals denied the habeas application without written order. ( In re Gooden, Application No. 42, 814-01, at cover).
VI. DISCUSSION
The Sixth Amendment provides that in all criminal prosecutions the defendant shall "have compulsory process for obtaining witnesses in his favor." U.S. Const. VI. The compulsory process clause is not limited to providing a subpoena power, but extends to the right to present evidence to the fact finder. Taylor v. Illinois, 484 U.S. 400, 408-09 (1988). In Washington v. Texas, 388 U.S. 14 (1967), the Supreme Court held that this clause prohibits a state from arbitrarily denying a defendant "the right to put on the stand a witness . . . whose testimony would have been relevant and material to the defense." Id. at 23.
The right to call witnesses, however, is not absolute. The right to call witnesses is limited to relevant and material testimony, and a defendant is not entitled to burden the proceedings with cumulative testimony. Washington, 388 U.S. at 23; Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983).
The right to call witnesses can be limited when the witness violates the rule of sequestration. The Supreme Court has recognized three sanctions for the violation of a sequestration order: (1) holding the offending witness in contempt; (2) permitting cross-examination concerning the violation; and (3) precluding the witness from testifying. Holder v. United States, 150 U.S. 91, 92 (1893). Although the Supreme Court has recognized that a court may disqualify a witness who violates a sequestration order, it has also warned that this sanction should not be imposed lightly:
If a witness disobeys the order of withdrawal, while he may be proceeded against for contempt and his testimony is open to comment to the jury by reason of his conduct, he is not thereby disqualified, and the weight of the authority is that he cannot be excluded on that ground merely, although the right to exclude under particular circumstances may be supported as within the sound discretion of the trial court.Id. at 92 (emphasis added).
The Fifth Circuit has interpreted the "particular circumstances" which justify exclusion of a witness to be "where the defendant has been advised of his constitutional right and there has been a knowing intelligent waiver by the defendant, . . . . And perhaps the consent, procurement, or knowledge on the part of the defendant or his counsel might rise to the level of a waiver and thus render exclusion proper." Braswell v. Wainwright, 463 F.2d 1148, 1155 (5th Cir. 1972).
The exclusion of a witness is a strongly disfavored sanction because of the severe consequences it holds for the defendant. In particular, the Supreme Court has long recognized that "[t]he right to offer the testimony of witnesses . . . is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the [fact finder] so it may decide where the truth lies. . . . This right is a fundamental element of due process of law." Washington, 388 U.S. at 19 (1967).
The Fifth Circuit addressed the exclusion of defense witnesses in Braswell v. Wainwright, 463 F.2d 1148 (5th Cir. 1972). In that case, a defense witness who did not hear the invocation of the rule, remained in the courtroom throughout the trial. Defense counsel was unaware of the witness' presence. Upon a motion by the prosecution, the trial court precluded the witness from testifying. The Fifth Circuit granted habeas relief finding that the witness was Petitioner's sole corroborating witness and the trial court's exclusion of that witness "effectively denied [Petitioner] the right to present a defense in his behalf." Id. at 1157.
The Court further stated:
[Petitioner] had a right to at least present the testimony of his sole corroborating witness to the jury. That the jury might still have returned a guilty verdict is beside the point; judgment of the credibility of witnesses is for the trier of fact. The trial court arbitrarily excluded [the defense witness] upon no other basis than that he violated the rule. Such discretion cannot be permitted when it denies a defendant a fundamental constitutional right."Id. at 1156.
Likewise, in Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975), the Fifth Circuit granted habeas relief where the state court excluded the only defense witness that could have testified that the defendant had not been present at the time and place of the alleged altercation. Although the witness had violated the rule, the Court found the violation was inadvertent, and was not done with the knowledge, procurement or consent of the petitioner or his counsel. Id. at 745. See also, United States v. Davis, 639 F.2d 239, 243 (5th Cir. 1981) (stating "even though there is the possibility that the witness' testimony may be influenced by his having been exposed to the testimony of other witnesses, . . . that, in itself, is not sufficient justification for excluding that witness' testimony. The defense's knowing participation in the tainting of the testimony is required before exclusion becomes constitutionally permissible."); but see, galloway v. Blackburn, 612 F.2d 201 (5th Cir. 1980) (excluding as cumulative defense witness testimony that Petitioner had a mustache during the relevant time period where three other defense witnesses testified to same information).
In this case, exclusion of Petitioner's witnesses violated his Sixth Amendment right to present a defense. The record shows that the rule was not violated due to the knowledge, procurement or consent of the Petitioner or his counsel. Further, the testimony of Petitioner's two witnesses was vital to his defense. To prove possession of marijuana, the State was required to show that Petitioner knowingly or intentionally possessed the marijuana. See Tex. Health Safety Code Ann. § 481.121(a) (West 1994). Verita Eschor would have testified that the car was a rental vehicle, that she rented the car, and that earlier on the day that police found drugs in the car, she had given other people permission to drive the car. Johnny Wilson would have testified that he and Petitioner picked the car up from the parking lot of Eschor's father's business, that neither he nor Petitioner looked in the trunk of the car before driving it, and that there was no smell of marijuana in the car, and no odor that would have given any indication that there were drugs in the vehicle. All of this testimony goes to the issue of whether Petitioner knowingly or intentionally possessed the marijuana found in the trunk. Further, although the Fifth District Court of Appeals found that Eschor's testimony would have been cumulative., this finding is not supported by the record. The Fifth District's opinion states that Eschor's testimony that she rented the car and gave Petitioner permission to drive it was cumulative because Petitioner already testified to those issues. ( Gooden v. State of Texas, No. 05-96-00786-CR, Slip. Op. at 4). Petitioner, however, did not testify. Where the state court findings are not supported by the record, they will not be accorded deference by this Court. See 28 U.S.C. § 2254(d)(2).
Although Petitioner did not make a proffer of Johnny Wilson's testimony at trial, the Fifth Circuit has held that the lack of a proffer "cannot serve to deprive a defendant of a fundamental constitutional right." Braswell, 463 F.2d at 1155.
Further, Eschor would have testified that the ledger found in Petitioner's possession was a ledger of beer and liquor sales. The Fifth District Court of Appeals found that Eschor's testimony was properly excluded because she did not have personal knowledge of all the writing in the ledger. The trial court, however, allowed Officer Spears and Officer Tigert to testify to their belief that the ledger recorded drug transactions. After allowing the prosecution to present its characterization of the ledger to the jury, it was highly prejudicial to the defense to exclude Eschor's testimony regarding her use of the ledger for alcohol sales, and regarding the writings of which she did have personal knowledge.
Finally, Petitioner has shown the sufficient prejudice required for habeas relief. To be entitled to federal habeas relief due to trial error, Petitioner must show the error actually prejudiced him. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). The Supreme Court requires that the error have a "substantial and injurious effect or influence in determining the . . . verdict." Id. at 637-38. In this case, exclusion of Petitioner's witnesses denied Petitioner the ability to present his version of the facts to rebut the prosecution. The jury therefore determined Petitioner' guilt without hearing Petitioner's defense. Petitioner has made a sufficient showing of substantial and injurious effect in determining the verdict.
The Court therefore finds that the state court's decision to deny relief was contrary to clearly established federal law as determined by the Supreme Court. See, Washington, 388 U.S. at 14; Taylor, 484 U.S. at 400; Holder, 150 U.S. at 91. Petitioner is entitled to relief on his claim that the trial court abused its discretion in excluding his defense witnesses because of a violation of the rule of sequestration.
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge recommends that the District Court grant the petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2254. The Court should issue a writ of habeas corpus and direct Janie Cockrell, Director of TDCJ-ID, to release Petitioner from custody imposed in trial court Cause No. 2-95-192, in the 382nd District Court of Rockwall County, Texas, unless, within sixty days of the date these findings, conclusions and recommendation are adopted by the District Judge, the State of Texas affords Petitioner a new trial.