Opinion
Civil Action No: 97-1551, Section: D.
July 7, 2000.
ORDER AND REASONS
On remand from the United States Fifth Circuit Court of Appeals, this court has reviewed the state court record and the federal court record in their entirety, and now addresses (without the need of an evidentiary hearing) the following issues raised by Petitioner, Jerrald Wilson, in his § 2254 Petition: (1) a Brady violation; (2) insufficiency of the evidence; and (3) ineffective assistance of counsel. (Federal Court Record, Fifth Circuit Order, Doc. No. 18).
This matter was previously assigned to Judge Lansing Mitchell, Section "LLM" of the Eastern District, and has now been re-assigned to this section of the court.
The facts of the underlying offense are set forth in State v. Wilson, 538 So.2d 1124 (La.App. 5th Cir. 1989), wherein the state appellate court affirmed the jury's conviction of Petitioner on the first-degee murders of Thomas Gormin, and his mother, Joan Gormin.
In State v. Wilson, 631 So.2d 1213 (La.App. 5th Cir. 1994), the appellate court affirmed the district court's denial of Petitioners postconviction application.
In November 1994, the Louisiana Supreme Court denied Petitioner's application for supervisory and/or remedial writs, writ of mandamus and prohibition. State v. Wilson, 644 So.2d 1046 (1994).
Petitioner timely filed his § 2254 with this court on April 24, 1997. In "Order and Reasons" entered on February 18, 2000, Judge Mitchell found meritorious Petitioner's claim that the "reasonable doubt" jury instruction was unconstitutional and granted Petitioner's § 2254 application as to that claim. (Doc. No. 10). However, the Fifth Circuit reversed that decision (Doe. No. 17), and remanded the matter for consideration of the issues now before the court (Doe. No. 18).
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
(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 the State court proceeding.
AEDPA, 28 U.S.C. § 2254 (d)(1) (2).
Under this limited and rigorous standard of review, the court finds that Petitioner in not entitled to relief on any of his claims which were "adjudicated on the merits in State court proceedings".
Brady Claim
In his § 2254 Petition, Petitioner alleges a Brady violation as follows:
After trial, Petitioner obtained his DA file containing certain Police Reports by Detective Maggie Pernia. The reports contained the names of three witnesses who had given statements concerning Thomas Gormin's hostile nature and the hostility that existed between him and his step mother [Joan Gormin].
The First Witness, Jennifer A. Braud (Tom's Girlfriend). Her statement reveals that:
"[Tom's mother] was touched [mentally]. She just was, she would blow off at the handle. And they would get into a lot of just really bad arguments . . . for no reason, and she was constantly nagging at him because of his [narcotic] dealings, but she knew what he did and she was constantly on his back . . . she always kept trying to change him and this really bothered him so he got back, he tried to but they lived in the same residence and they would get along. Sometimes they'd be so cheerful but then sometimes, sometimes it would be bad."JPSO Item No. C 22618-87 .
The Second Witness, Joyce Hadley (Joan's Employer). Her statement revealed that Tom and his mother had relationship problems that were escalating and that "the predominant note of discord between them" was Tom's "narcotic addiction."JPSO Item No. 22618-87, p9.
The Third Witness, Helen Hunter (Joan's Best Friend). Her statement revealed that Joan "had been complaining recently of severe problems" with Tom stemming from his "illicit narcotic activity" and "her son's somewhat hostile nature."JPSO Item No. 22618-87, p9.
The Pre-Trial Discovery Motions. Prior to trial, local newspapers reported that the investigating officers had told them that they had interviewed witnesses who knew of Tom's drug dealings, his homosexual activities, and of his hostile nature and severe problems and arguments between him and his mother. Defense counsel thereupon filed three differed discovery motions. The first motion specifically requested that the State provide him with any incidents "from those who knew" of Tom Gormin's "hostile nature, prejudice toward homosexuals or tendency to be aggressive and pugnacious." His second motion requested the names of witnesses. And his third motion requested the initial police reports, authorized by State v. Shropshire, 471 So.2d 7070 (La. 1985). In response to the first motions (sic), the State answered that it had no exculpatory evidence. In answer to the second motion the trial court sustained an argument made by the State that the defense was not entitled to the names of the witnesses. And in answer to the defense request for the Police reports, the State submitted a three-page supplemental report rather than the initial police reports containing the telltale statements given by the three witness (sic) going to Tom's hostile nature. In upholding the State's refusal to provide the Initial Reports containing these defense-critical statements, the State trial court said that it would inspect the Initial Reports in camera and provide the defense with any exculpatory material that they may contain. It never disclose (sic) to defense counsel the exculpatory statements by the three witnesses. It then denied motions for funds to help appointed counsel investigate and prepare the case.
The Brady Argument. Petitioner argues that the suppression by the State of the above-requested Brady Material undermined his sole defense and denied him due process and a fair trial. The suppression was particularly reprehensible because it presented a rebuttal witness who testified Tom was a passive person who never raised his hand to anyone. Reversal is mandated.
(Federal Court Record, Doc. No. 1, § 2254 Petition, emphasis in original).
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 216 (1963), imposes an affirmative duty on the prosecution to disclose to the defense evidence that is both favorable to the accused and material either to guilt or to punishment. In asserting a Brady violation, "a Defendant must show that the withheld evidence could reasonably be taken to put the case in a different light so as to undermine confidence in the verdict." Gibbs v. Johnson, 154 F.3d 253, 256 (5th Cir. 1998), citing Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L. Ed. 2d 490 (1995).
However, at the same time, "[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." Id. quoting United States v. Agurs, 427 U.S. 97, 109-10, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).
Evidence is material for Brady purposes "only if a reasonable probability exists that, had the evidence been disclosed, the result of the proceeding would have been different. And, if the defendant, using reasonable diligence, could have obtained the information, a Brady claim does not arise." In re Smith, 142 F.3d 832, 836 (5th Cir. 1998) (citations omitted).
Here, the court finds that the investigative reports which Petitioner claims were not provided to him prior to Trial do not constitute exculpatory material. The state court record reflects that on Defendant's motion to produce these reports, the trial court stated that it was going to review them in camera to determine whether or not they contained any exculpatory material. (State court record, Vol. 6 of 10, pp. 319-22). Subsequently on December 4, 1997, the trial court denied the Defendant's motion. (State court record, Vol. 6 of 10, pp. 382-84).
Further, as stated by the state appeals court in denying Petitioner's application for post-conviction relief, the statements given by Jennifer Braud (Thomas Gormin's girlfriend), Helen Hunter (Joan Gormin's best friend) and Joan Hadley (Joan Gormin's employer) "merely reflect that Thomas Gormin was involved in narcotics and that the relationship between he (sic) and his mother was sometimes hostile." State v. Wilson, 631 So.2d 1213, 1221 (La.App. 5th Cir. 1994). Furthermore,
The defendant had the opportunity at trial to cross examine Detective Trapani and Detective Pernia about any statements taken from these individuals. All three of these individuals were referred to in the testimony of the officers as they described their parts in the investigation of the murder. Since defendant knew about the existence of these witnesses, he could have subpoenaed them if he thought their testimony would be helpful.Id. at 1221-22.
When the state court judge denied Petitioner's application for post conviction relief, the court specifically denied Petitioner's Brady claim stating:
Petitioner alleges that the State withheld exculpatory material such as the initial police report which contained witnesses as to the victim's hostile nature. Upon review, the Court does not find that the state withheld exculpatory evidence. The record indicates that defendant had access to the initial police report and was aware of the witnesses concerning the victim's nature. Therefore, this claim is without merit.
(State Court Record, Vol. 2 of 10, inserted between pp. 228-229, Order signed by Judge Joseph Grefer on October 22, 1991).
The record also reflects that counsel for Defendant had actually subpoenaed Jennifer Braud as a witness (as did the State), but she did not appear and neither party asked for a continuance or assistance in securing her appearance. (State court record, Vol. 5 of 10, pp. 1333-34).
Further, before Trial, Defense counsel filed a Motion for Change of Venue, attaching several local newspaper articles, which appeared shortly after the double murders. One of these articles reflect that the murders were discovered by John Meek, the husband of a co-worker of Mrs. Gormin. The article also included the following excerpts:
In his Brady claim, Petitioner claims that he was not given the statement of Joyce Hadley, who was interviewed by Detective Pernia. In Detective Pernia's report, she writes that Joan Gormin was employed as a travel agent for Mrs. Hadley's company, and that on the morning of the murder, Mrs. Hadley contacted John Meek and requested that he proceed to the Gormin home when Joan Gormin failed to report to work. (State Court Record, Vol. 4 of 10, p. 180). Detective Pernia further wrote:
When questioned as to whether Mrs. Gormin had complained of any problems to her, Mrs. Hadley related that Mrs. Gormin would only complain that she and her son were having problems adjusting to each other. Apparently, Thomas Gormin had only recently moved back in with his mother and personality clashes were evident. Mrs. Hadley had been told by Mrs. Gormin that her son (Thomas) had given her several problems in the past. Hadley stated that she believed narcotics addiction had been the predominant note of discord between Joan and Thomas Gormin.
(No additional information was obtained at that time).
( Id.).
"My wife called me at work when Joan had not shown up all morning," Meek said. "Joan is so punctual, and it was very unusual for her to be late without calling."
Those close to her said Mrs. Gormin, 63, lived in fear of her 30-year-old adopted son, Thomas, who shared her home and had a history of drug arrests.
Less than week ago, Mrs. Gormin confided in a friend that she feared both her son and some of his acquaintances.
Jefferson Parish Sheriff Harry Lee said Thomas Gormin had been arrested at least twice since 1977 on drug charges. Lee also said notebooks and other papers confiscated from the home revealed that Gormin, who was unemployed, regularly sold 50 to 60 pounds of marijuana weekly.
* * *
Joan told friends that Tommy has been using drugs since he was about 14 or 15 years old, said Joe Hunter, a family friend. [emphasis added]
In 1977, Lee said Gormin was arrested by deputies in Beauregard Parish, north of Lake Charles. He was booked with possession of 2,200 pounds of marijuana.
Gormin was convicted, but the conviction was overturned by the Louisiana Supreme Court on a faulty search warrant, Lee said.
In 1984, Gormin was again arrested on drug charges in Panama City, Fla.
(State Court Record, Vol. 2 of 10, pp. 93-94).
Thus, it is clear that defense counsel knew, before Trial, not only the names of Joan Gormin's co-workers and friends, but that Joan Gormin feared her son, and that her son had a history of illicit drug involvement. Further, during Trial, defense counsel called Dr. Genevieve Arneson who was qualified as an expert in forensic psychiatry and she testified that in 1980, she had examined Thomas Gormin and diagnosed him with paranoid schizophrenia. She further testified that this condition is one of the major psychotic disorders, that it is not customarily curable, that alcohol and/or drugs would probably worsen the psychotic psychosis, and that violence is a characteristic of a paranoid schizophrenic. She also admitted to signing an emergency certificate which committed Thomas Gormin to a mental hospital, and she testified that he would "probably" have future problems if he was not compliant with medication. (State Court Record, Vol. 10 of 10, pp. 1231-44).
At Trial, defense counsel also put into evidence a copy of the Coroner's records (dated March 14, 1980), which included the Request for Custody Order made by Joan Gormin, the Physician Emergency Certificate, and the Custody Order signed by the coroner. ( See State Record, Vol. 10 of 10, p. 1244; see also copies of these documents attached to Petitioner's habeas petition filed with the state court, Vol. 4 of 10, pp. 195-200). In a hearing before Trial, defense counsel told the Trial Judge that regarding Thomas Gormin's commitments, defense counsel "had picked up the lead from the neighbors." (State court record, Vol. 6 of 10, p. 226). Thus, defense counsel obviously had talked to the Gormins' neighbors and learned information that assisted in Petitioner's defense.
The Request for Custody Order reflects that Thomas Gormin had a history of psychiatric treatment and hospitalization, and that he:
is violent at times, abusing his mother, is on probation now for marijuana. Probation officer referred mother to come to Coroner's Office. He is refusing to go to a doctor. Says they will never take him alive. Threatening to burn the house down if mother puts him out.
(State Record, Vol. 4 of 10, p. 195).
The court concludes that defense counsel had or could have obtained the information contained in the subject investigative reports with reasonable diligence, and indeed at Trial, defense counsel had shown the jury evidence of Thomas Gormin's history of hostility towards his mother and also his history of drug abuse. Even though the State called a rebuttal witness (Nicholas Fortunato, a friend of Thomas Gormin) who testified about his knowledge of the relationship between Thomas Gormin and his mother, defense counsel effectively cross-examined this witness, and it cannot be said that there is a reasonable probability that the disclosure of the investigative reports would have caused a different outcome at Trial.
See State Court Record, Vol. 5 of 10, pp. 1341-45.
Insufficiency of Evidence Claim
In his § 2254 Petition, Petitioner argues that:
This was a wholly circumstantial evidence case, and the records show that ever (sic) reasonable hypothesis of innocence was not excluded in convicting [him].
(Record, Bates Stamp No. 00130).
In State v. Wilson, 631 So.2d 1213, 1220 (La.App. 5th Cir. 1994), the state appeals court found:
After a thorough review of the entire record that there is sufficient evidence to support the jury's conclusion that the defendant was guilty of first degree murder in the deaths of both Thomas Gormin and Joan Gormin. Therefore, the district court did not err in denying defendant's application for post-conviction relief on this basis.
In making a sufficiency of the evidence assessment, this court must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime (here, two counts of first degree murder based on LSA-R.S. 14:30A(3)) beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979).
Further, the court is limited to review of the record evidence presented at Trial. Guzman v. Lensing, 934 F.2d 80, 82 (5th Cir. 1991). Having reviewed the record evidence presented at Trial, this court concludes that there was sufficient evidence to support the jury's verdict that Petitioner was guilty on both counts of first degree murder.
Ineffective Assistance of Counsel Claim
Petitioner claims that he was denied effective assistance of counsel because: (1) his counsel failed to object to the reasonable doubt charge; (2) his counsel failed to adequately investigate and prepare for Trial, including the failure to interview and present the testimony of Helen Hunter, Joyce Hadley, and Jennifer Braud; and (3) he failed to argue the sufficiency of the evidence.
Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a habeas petitioner claiming ineffective assistance of counsel has the burden to demonstrate both deficient performance and prejudice. Id. As to the former, judicial scrutiny of counsel's conduct "must be highly deferential," "the distorting effect of hindsight" is to be avoided, and courts must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." "It is not enough to show that some, or even most, defense lawyers would have handled the case differently." To establish prejudice, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding," rather, he must demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." "A reasonable probability is a probability sufficient to undermine confidence in the outcome."Nichols v. Scott, 69 F.3d 1255, 1284 (5th Cir. 1995) (internal citations omitted).
Here, Petitioner has failed to show, under the two-prong test enunciated in Strickland, that his counsel's assistance was deficient and/or that the deficiency prejudiced his defense. First, the reasonable doubt charge used in Petitioner's case was adopted prior to Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). Counsel's failure to object to the charge in light of the state of the law at the time did not constitute deficient performance. Catson v. Whitley, 67 F.3d 121, 123 (5th Cir. 1995), citing Strickland.
Second, the state court record reflects that defense counsel vigorously filed numerous pre-trial motions, (including several discovery motions, a motion to produce the initial police report and a motion to produce exculpatory evidence) and he also requested funds for investigative services. As to Petitioner's argument that his trial attorney failed to interview witnesses Hadley, Hunter and Braud, Petitioner claims that their testimony "would have revealed Tom Gormin's hostile nature and the animosity that existed between him and his mother." (Record, Bates Stamp No. 00130). However, as both the state district court and appellate court found in denying Petitioner's post-conviction relief application, counsel's decisions regarding the interviewing and examination of witnesses are considered defense and trial strategies, and they do not constitute ineffective assistance of counsel. Wilson, 631 So.2d at 1222-23.
Further, as this court previously found, defense counsel told the Trial Judge in a hearing before Trial, that regarding Thomas Gormin's commitments, defense counsel "had picked up the lead from the neighbors." (State court record, Vol. 6 of 10, p. 226). Thus, defense counsel obviously had talked to the Gormins' neighbors and learned information that assisted in Petitioner's defense.
With regard to Jennifer Braud, Thomas Gormin's girlfriend, defense counsel actually had her subpoenaed for Trial, however she did not appear to testify. Defense counsel may have elicited from her testimony consistent with her statement given to the investigative officers that:
[Tom's mother] was touched. She just was, she would blow off at the handle, and they would get into a lot of just really bad arguments between the two of them for no reason, and she was constantly nagging at him because of his dealings, but she knew what he did and she was just constantly on his back because that was her son . . . sometimes it would be bad.
( See Braud Statement, attached to Pernia Report, State Court Record, Vol. 4 of 10, 189-90).
But she would have also more than likely testified that the relationship between Tom Gormin and his mother was not all bad:
Him and his mother got along . . . they lived in the same residence and they would get along. Sometimes they'd be so cheerful . . .Id. Further, consistent with her Statement, Jennifer Braud would have likely testified that "Tom never got in any bad fights that [she] knew of" and she knew him for three and a half years. Id. at 188, 193.
Moreover, as discussed above in the Brady section, evidence of Thomas Gormin's hostile nature and ammosity between him and his mother, as well as evidence of Thomas Gormin's history of drug abuse, were introduced into evidence through the testimony of Dr. Arneson and Thomas Gormin's commitment papers. Thus, even assuming that Petitioner could show that counsel's performance was deficient, he cannot show prejudice — i.e., he cannot show that but for counsel's failure to interview Hadley, Hunter and Braud, there is a reasonable probability that the result of the Trial would have been different.
Third, Petitioner's claim that his counsel was ineffective on appeal because he failed to argue the insufficiency of evidence lacks merit. An "attorney need not advance every argument, regardless of the merit, urged by the appellant." Evitis v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). Also, counsel need not appeal every non-frivolous issue requested by the defendant. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983). It is important to "winnow out weaker arguments on appeal and focus on one central issue if possible, or at most a few key issues." Id., 103 S.Ct. at 3313. Here, Petitioner's appellate counsel cannot be faulted for his rational decision not to include an insufficiency of evidence claim.
Accordingly;
IT IS ORDERED that Petitioner's application for relief under 28 U.S.C. § 2254 be and is hereby DENIED.