UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-11269
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ALLEN WAYNE JOHNSON,
Petitioner-Appellee,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:95-CV-562-T)
_________________________________________________________________
December 18, 1997
Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Gary L. Johnson, Director of the Texas Department of Criminal
Justice, Institutional Division, appeals a portion of the district
court’s grant of habeas relief to Allen Wayne Johnson, contending
that the court erred by concluding that the prosecutor’s remarks
during closing argument at the guilt phase of Johnson’s trial
violated due process. We REVERSE in PART and REMAND.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
I.
In 1989, a Texas jury convicted Johnson for delivery of a
controlled substance (methamphetamine). The jury found a prior
murder conviction alleged for enhancement of punishment to be true
and sentenced Johnson to 75 years’ imprisonment.
Johnson’s conviction was affirmed by the state court of
appeals in December 1990. But, the Texas Court of Criminal Appeals
granted Johnson’s petition for discretionary review; in April 1992,
it remanded the case to the court of appeals to determine whether
the prosecutor’s improper argument at the punishment phase of trial
was harmless. (At that phase, the prosecutor had suggested
repeatedly the existence of additional evidence which the State was
precluded by the rules of evidence from presenting to the jury.)
On remand, in March 1993, the court of appeals affirmed the
conviction, finding harmless error.
Johnson filed a state court habeas application in July 1993,
claiming, inter alia, that the prosecutor’s argument at the guilt
phase violated due process. The Texas Court of Criminal Appeals
denied the application without written order in January 1994. In
December 1994, Johnson filed a second state habeas application,
again claiming, inter alia, prosecutorial misconduct during closing
argument at the guilt phase. The Texas Court of Criminal Appeals
denied that application without written order in December 1994.
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In 1996, Johnson filed for federal habeas relief, asserting
that the grand jury lacked jurisdiction to indict him; that the
prosecutor made improper arguments at voir dire and during closing
arguments at the guilt and punishment phases; that the evidence was
insufficient to support his conviction; and that his conviction was
based on inadmissible hearsay. The magistrate judge concluded that
the prosecutor’s arguments during the guilt and punishment phases
violated due process, but rejected Johnson’s other contentions.
Accordingly, the magistrate judge recommended that the district
court grant Johnson habeas relief unless the State retried him.
The district court adopted the recommendation, granted habeas
relief, and ordered Johnson released from custody. The Director’s
motion for a stay of the judgment pending appeal was granted by the
district court.
II.
The Director does not challenge the district court’s
conclusion that the prosecutor’s arguments during the punishment
phase violated due process. He contends, however, that the
district court erred by granting habeas relief based on the
prosecutor’s arguments during the guilt phase.
It goes without saying that, on appeal from a grant of habeas
relief, “we review the district court’s findings of fact for clear
error, but review issues of law de novo.” Dison v. Whitley, 20
F.3d 185, 186 (5th Cir. 1994). And, because Johnson filed for
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federal habeas relief prior to the enactment of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), “we must apply the
pre-AEDPA standards of review”. Gochicoa v. Johnson, 118 F.3d 440,
444 (5th Cir. 1997).
“The standard for granting habeas relief because of
prosecutorial misconduct is the narrow one of due process, and not
the broad exercise of supervisory power.” Derden v. McNeel, 978
F.2d 1453, 1460 (5th Cir. 1992) (en banc) (internal quotation marks
and citation omitted), cert. denied, 508 U.S. 960 (1993). “To
establish that a prosecutor’s remarks are so inflammatory as to
have prejudiced the substantial rights of a defendant, a habeas
petitioner must demonstrate either persistent and pronounced
misconduct or that the evidence was so insubstantial that absent
the remarks, a conviction would probably not have occurred.” Byrne
v. Butler, 845 F.2d 501, 508 (5th Cir.), cert. denied, 487 U.S.
1242 (1988). In other words, the prosecutor’s conduct is not of
constitutional magnitude “unless it is so prejudicial that the
state court trial was rendered fundamentally unfair within the
meaning of the Due Process Clause of the Fourteenth Amendment.”
Jones v. Butler, 864 F.2d 348, 356 (5th Cir. 1988), cert. denied,
490 U.S. 1075 (1989); see also Houston v. Estelle, 569 F.2d 372,
378 n.8 (5th Cir. 1978) (“In order for a state habeas petitioner to
prevail on a claim [in federal court] that an improper jury
argument marred his trial the asserted error must be one of
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constitutional magnitude. This means that the prosecutorial
remarks must be so prejudicial that they render the trial
fundamentally unfair.”).
In sum, a prosecutor’s argument, by itself, is a
constitutional violation in only the most egregious cases. Ortega
v. McCotter, 808 F.2d 406, 410 (5th Cir. 1987); see also Houston v.
Estelle, 569 F.2d at 382 (“a defect of constitutional proportions
is not to be found in any but egregious cases”). “The
constitutional frontier stands very far indeed from the core of
good prosecutorial practice.” Id. at 384. Along that line, a
prosecutor’s statements must be viewed in the context of the entire
trial to determine if the improper statements or arguments were a
“crucial, critical, highly significant factor in the jury’s
determination of guilt.” Ortega, 808 F.2d at 410-11 (internal
quotation marks and citation omitted); see also Houston v. Estelle,
569 F.2d at 377 (“we are required to evaluate the remarks alleged
to be improper in the context of the entire trial”).
At issue are these comments by the prosecutor during closing
argument at the guilt phase. The State contends that the comments
did not violate due process. In urging that they did, Johnson also
relies upon two aspects not utilized by the district court: the
prosecutor’s references to him as a “major drug dealer” and a
“lawyer”.
We can get the kids that are possessing
it. They won’t come in here. They -- they’re
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not lawyers like Allen Wayne Johnson. They
can’t draw up documents and have their father
sign, look like a lawyer drew up then spring
them on the day, not even his lawyer knew
about it.
He knows what he’s doing, and he’s a
killer. He’s two times a killer. He
actually, literally kills people; and he also
sells the stuff that kills people. That’s --
how do you think he’s lived for two years
without a job? There’s big money in this,
ladies and gentlemen, and you can live awful
good. And you can support your habit awful
good.
....
[As for defense counsel’s] argument --
hey, he’s not a big drug dealer. Don’t you
kid yourself. Because he can’t make bond.
Don’t you kid yourself. We got the bond up so
high, he couldn’t make it. Somebody has been
watching too much television, not in this
case. He’s a killer, and he takes care of
business. He don’t -- you don’t pay him on a
drug deal, you die.
....
.... We can sit here and say all day
long, “Why don’t we get the big drug dealers?”
“Why don’t we get the guys dealing these
drugs?” What good is it going to do us to get
the people they sell it to? Well, they try.
They got a guy in here, and they got a dealer.
If it’s not enough for you, we’ll go back and
regroup, try again.
....
.... We’ve got to have rehabilitation,
but we can’t neglect the chance to get ... a
major drug dealer off our streets so we can do
something with those people that he’s selling
to with some education.
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Although he objected to other portions of the prosecutor’s
closing argument, on the ground that the remarks were “outside the
record”, Johnson did not object to the above-quoted comments.
Nevertheless, the Director does not raise the failure to object as
a procedural bar, and the state courts did not decline to review
Johnson’s claims for failure to comply with state procedural rules.
Accordingly, Johnson’s failure to object does not prevent our
consideration of the merits of his claim. See Gochicoa, 118 F.3d
at 445.
The magistrate judge’s report and recommendation, adopted by
the district court, stated that “[t]here was no evidence of any
threats of violence with reference to the delivery of
methamphetamine charge”, and concluded that Johnson was entitled to
habeas relief because the “egregiously harmful” remarks “clearly
urged the jury to convict Johnson, not upon the basis of delivery
of less than 2 grams of a controlled substance, but on the basis
that Johnson killed people in the course of drug dealing.” As
noted, and in the alternative, Johnson urges that the comments that
he was “a major drug dealer” and a “lawyer” also are bases for
upholding the habeas relief granted as to his conviction.
A.
The Director contends that, when the arguments are considered
in the light of the entire trial, they did not unfairly prejudice
Johnson. In order to so examine the comments at issue, we must
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first consider the evidence introduced during the guilt phase.
That phase was essentially a credibility contest between Johnson
and the police officer to whom he sold the methamphetamine —
Corsicana, Texas, Officer Semetco.
The Officer testified that, while working undercover in May
1989, he made it known within drug-trafficking circles that he was
in the market for methamphetamine; that he went to a house, where
he was introduced to Johnson, who stated that he could provide
Semetco with an “eight-ball” of methamphetamine; that he gave
Johnson $225; and that Johnson told Semetco that he would return
the next day. According to Semetco, Johnson did not return the
next day, and he did not see Johnson until about one month later.
Semetco testified further that he went to Johnson’s residence
on 21 June; that he was invited inside by Johnson’s father; and
that he (Semetco) went to a back bedroom and saw Johnson, who
stated that he had been in the McKinney, Texas, area for the last
month, working for some friends who had approximately five pounds
of methamphetamine to sell. According to Semetco, Johnson’s father
remained in the living area while Semetco and Johnson spoke in the
back bedroom. Semetco testified that Johnson gave him a baggie
containing a substance Semetco believed was methamphetamine; a
chemist testified that it was 1.26 grams of methamphetamine.
Johnson was the only witness presented at his case-in-chief.
His father’s affidavit was also admitted into evidence.
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Johnson testified that he had been convicted of murder in 1980
and was released from prison in 1987; that Mary Lou Larson brought
Semetco to Johnson’s apartment in May 1989; that Semetco inquired
about purchasing amphetamines; that he (Johnson) told Larson and
Semetco that he was not in the drug business and asked Larson not
to return; and that no money changed hands during the May meeting.
Johnson testified further that, during the June meeting with
Semetco, his father stood in the bedroom doorway; that Semetco
asked whether Johnson had anything for him; and that he told
Semetco that he knew Semetco was a narcotics officer and asked him
to leave. According to Johnson, Larson had told him that Semetco
was a narcotics officer. Moreover, during Johnson’s testimony on
direct examination, his father’s affidavit, supporting Johnson’s
version of the June meeting with Semetco, was admitted.
On cross-examination, Johnson admitted that he was a drug
addict; and that he received a 48-year sentence for murder, but
served only six years. The trial court sustained Johnson’s
objection to the question whether his murder conviction had
involved drugs; the jury was instructed not to consider the
question for any purpose. Johnson denied that he had written his
father’s earlier-referenced affidavit and denied selling
methamphetamine. He testified that he had been imprisoned because
he pleaded guilty to murder, but that records in the prosecutor’s
office would demonstrate that someone else committed the murder.
And, according to Johnson, he did not commit the crime for which he
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was then on trial. Johnson testified that he had been unable to
find a job for the past two years.
In rebuttal, Semetco testified that his May (first) meeting
with Johnson did not occur at Johnson’s residence; and that
Johnson’s father was not present in the same room when the
transaction took place in June. According to Semetco, Johnson
“stated that if he were busted, it would be a one-on-one situation,
that he would face the cop in court, find out who he was and would
get him or his friends, would get him, his wife, his kids, his
parents.”
Prior to closing arguments, the jury was instructed that it
could not consider Johnson’s prior conviction as evidence of guilt,
but that it could consider the conviction “in passing upon the
weight you will give his testimony, and you will not consider the
same for any other purpose”. Following the charge, the prosecutor
waived the right to open closing arguments.
In his closing argument, defense counsel attacked Semetco’s
credibility and the chemical analysis of the methamphetamine; he
also repeated Johnson’s theory that he had been framed by the
police, and urged the jury to find reasonable doubt because the
evidence consisted primarily of Semetco’s word against Johnson’s.
The prosecutor then made his closing argument. Prior to
making the above-quoted remarks at issue, the prosecutor urged the
jury “to follow your oath as a juror and base your verdict solely
on the evidence that you heard from the witness stand”. And, after
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the comments at issue, the prosecutor stressed, as had Johnson’s
counsel, that the case presented a credibility choice between
Semetco and Johnson: “[T]hat’s all we have in any drug dealing
case. We have the word of a police officer and we have the word
and testimony of the drug dealer. And now you have the case. You
decide who you are going to believe.”
As the Director concedes, the prosecutor’s statement that
Johnson killed individuals who did not pay him for drugs has no
foundation in the record and was, therefore, improper. The trial
court, as noted, had sustained Johnson’s objection to cross-
examination along that line; and no evidence was introduced linking
drug trafficking to the murder.
We do not condone the comments at issue; they obviously should
not have been made. Nevertheless, we conclude that Johnson “has
failed to carry his burden of showing that the evidence against him
was so insubstantial that but for [the challenged] remarks no
conviction would have occurred.” Felde v. Blackburn, 795 F.2d 400,
403 (5th Cir. 1986). The jury was entitled to believe Semetco’s
testimony that Johnson sold methamphetamine to him; and it had
reason to disbelieve Johnson’s testimony because of his murder
conviction and inconsistencies in his testimony. See Ortega, 808
F.2d at 411. As stated, the jury was aware, through Johnson’s
testimony on direct examination, that he had pleaded guilty to
murder. See Byrne v. Butler, 845 F.2d at 511-12 (no constitutional
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violation where information divulged in prosecutor’s allegedly
improper remarks was already before the jury and trial court
properly instructed jury). In the light of Semetco’s testimony
that Johnson had threatened to “get” any police officer who
arrested him and to “get” the officer’s family and friends, the
district court erred by concluding that “[t]here was no evidence of
any threats of violence with reference to the delivery of
methamphetamine drugs”.
As noted, the trial court instructed the jury not to consider
Johnson’s prior conviction as evidence of guilt, but only for
evaluating the weight to be given his testimony. Such limiting
instructions can ameliorate the otherwise damaging effect of a
prosecutor’s improper remarks, because “juries are presumed to
follow their instructions”. Zafiro v. United States, 506 U.S. 534,
540 (1993) (internal quotation marks and citation omitted); see
also Ward v. Whitley, 21 F.3d 1355, 1364 (5th Cir. 1994), cert.
denied, 513 U.S. 1192 (1995); Bagley v. Collins, 1 F.3d 378, 381
(5th Cir. 1993); Derden v. McNeel, 978 F.2d at 1460.
As also noted, although Johnson objected to other,
unchallenged portions of the prosecutor’s argument, he did not
object to the remarks at issue. Although, as discussed supra, the
lack of such objection is not a procedural bar to our consideration
of the merits of Johnson’s claim, it indicates, at the least, that
Johnson’s counsel did not consider them to be particularly
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egregious. Cf. Wainwright v. Witt, 469 U.S. 412, 432 n.11 (1985)
(noting that “counsel’s failure to speak in a situation later
claimed to be so rife with ambiguity as to constitute
constitutional error is a circumstance [court is] justified in
considering when assessing [habeas petitioner’s] claims”).
The guilt phase took less than two days. Considering the
strength of the evidence of Johnson’s guilt, his failure to object
to the comments at issue, and the trial court’s instruction that
Johnson’s prior conviction could be considered only when passing on
the weight of Johnson’s testimony, we conclude that the improper
arguments were not “a crucial, critical, highly significant factor
in the jury’s determination of guilt.” Ortega, 808 F.2d at 411
(internal quotation marks and citation omitted). To the extent
that the improper comments may have later influenced the jury at
the punishment phase, Johnson is going to receive a new sentencing
hearing which will not be tainted by them. See id. (noting that
“core question of unfair prejudice” related to length of
petitioner’s “sentence rather than the determination of guilt or
innocence”).
B.
As noted, Johnson presses two alternative bases for
affirmance. Both bases were presented in district court.
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1.
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The prosecutor’s characterization of Johnson as a “major drug
dealer” is claimed to have been extremely prejudicial and
unsupported by the evidence. Although, as noted, Johnson made this
contention in the district court, neither the magistrate judge nor
the district court addressed it.
In any event, this claim is without merit. Semetco testified
that Johnson told him that he had been involved for the last month
helping friends sell approximately five pounds of methamphetamine
(approximately 1800 times the amount Johnson sold to Semetco).
Because the argument was supported by the evidence, it was not
improper.
2.
Johnson asserts also that we can affirm the grant of habeas
relief on the ground that the prosecutor, in attacking the
affidavit of Johnson’s father, made the false claim that Johnson
was a lawyer who had prepared the affidavit for his father’s
signature, in an attempt to manipulate the course of the trial.
(Johnson gave the affidavit to his lawyer on the first day of
trial.)
Johnson is not a lawyer. But, on cross-examination, he
admitted that he was “a jailhouse lawyer”. In any event, we agree
with the magistrate judge that, “[r]egardless of its truth or
falsity, it is unimaginable that a prosecutor calling a defendant
a lawyer would ever give rise to a constitutional error”.
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III.
In sum, the district court erred by holding that, as a result
of the prosecutor’s improper comments during closing argument at
the guilt phase, Johnson’s “trial was rendered fundamentally unfair
within the meaning of the Due Process Clause of the Fourteenth
Amendment”. Jones, 864 F.2d at 356. Therefore, that portion of
the judgment vacating Johnson’s conviction is REVERSED, and the
case is REMANDED to the district court for such further proceedings
as may be appropriate.
REVERSED in PART and REMANDED
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