Othlone Russ v. Department of Corrections

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-15537 APRIL 5, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK

D.C. Docket No. 1:11-cv-21212-MGC

OTHLONE RUSS,

llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,

versus

DEPARTMENT OF CORRECTIONS,

llllllllllllllllllllllllllllllllllllllll Respondent-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 5, 2012)

Before HULL, MARCUS and MARTIN, Circuit Judges.

PER CURIAM:

Othlone Russ, a pro se Florida prisoner, appeals the district court’s denial of

his 28 U.S.C. § 2254 federal habeas petition. On appeal, Russ argues that: (1) the
State’s witness, Pamela Garman, should not have been allowed to testify that based

on her experience as a forensic interviewer, child victims of sexual assault do not

always disclose everything at once; (2) the Florida trial court violated his rights by

denying him the right to present character evidence; and (3) the trial court allowed the

prosecutor to make improper comments during closing arguments. After careful

review, we affirm.1

We review de novo a district court’s grant or denial of a habeas corpus petition.

Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir.), cert. denied, 131 S.Ct. 647 (2010).

The district court’s factual findings are reviewed for clear error, while mixed

questions of law and fact are reviewed de novo. Id. As amended by the Anti-

Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,

110 Stat. 1214 (1996), 28 U.S.C. § 2254(d) forbids federal courts from granting

habeas relief on claims that were previously adjudicated on the merits in state court,

unless the adjudication

(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

1
Because we’ve concluded that oral argument is unnecessary in this appeal, Russ’s
motion to appoint counsel for the purposes of oral arguments is DENIED AS MOOT.

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 (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). “[A] federal habeas court making the ‘unreasonable

application’ inquiry should ask whether the state court’s application of clearly

established law was objectively unreasonable.” Williams v. Taylor, 529 U.S. 362,

409 (2000). Moreover, “[i]t is the objective reasonableness, not the correctness per

se, of the state court decision that we are to decide.” Brown v. Head, 272 F.3d 1308,

1313 (11th Cir. 2001).

First, we are unpersuaded by Russ’s argument that the state court’s

determination allowing the State’s witness, Ms. Garman, to testify about victim

disclosure was contrary to, or involved an unreasonable application of, clearly

established Federal law. We generally do not review a state court’s admission of

evidence in habeas corpus proceedings. See McCoy v. Newsome, 953 F.2d 1252,

1265 (11th Cir. 1992). We will not grant federal habeas corpus relief based on an

evidentiary ruling unless the ruling affects the fundamental fairness of the trial. See

Baxter v. Thomas, 45 F.3d 1501, 1509 (11th Cir. 1995). Erroneously admitted

evidence deprives a defendant of fundamental fairness only if it was a “crucial,

critical, highly significant factor” in obtaining the conviction. Williams v. Kemp, 846

F.2d 1276, 1281 (11th Cir. 1988) (quotation omitted).

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 Under Florida law, State witnesses cannot vouch or directly testify as to the

truthfulness of the victim. Tingle v. State, 536 So.2d 202, 205 (Fla. 1988). State

witnesses are also not allowed to testify in a criminal prosecution for child abuse that

the alleged victim of sexual abuse exhibits symptoms consistent with one who has

been sexually abused. See Hadden v. State, 690 So.2d 573, 577, 581 (Fla. 1997).

The record before us does not support Russ’s claim that Garman, as a lay

witness, was improperly allowed to give opinion testimony. Instead, the record

reflects that Garman was not giving her opinion, but was merely saying that based on

her experience as a forensic interviewer, children often did not disclose everything

about the abuse at once. There is nothing in the Florida evidence rules that precludes

a lay witness from testifying about her past experience. Additionally, as held by the

Florida appellate court, Garman did not testify that the victim, D.H., was telling the

truth or suggest her belief that D.H. was telling the truth. As the record shows,

Garman testified about the process used in conducting interviews with child sexual

assault victims and the video of her interview with D.H. was played for the jury.

Further, Garman never testified that D.H. exhibited symptoms consistent with sexual

abuse. Because her testimony was not erroneously admitted under Florida law, it did

not make Russ’s trial fundamentally unfair. And in any event, even if the state court

erroneously admitted Garman’s testimony, there is nothing to suggest that this was

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a “crucial, critical, highly significant factor” in obtaining Russ’s conviction. Russ

therefore has not shown that the state court’s determination was contrary to, or

involved an unreasonable application of, clearly established Federal law.

We also reject Russ’s claim that the Florida court’s denial of his right to

present character evidence was contrary to, or involved an unreasonable application

of, clearly established Federal law. Section 90.404(1)(a) of the Florida statutes

provides that “[e]vidence of a person’s character . . . is inadmissible to prove action

in conformity with it on a particular occasion, except . . . [e]vidence of a pertinent

trait of character offered by an accused.”

Here, the Florida Court of Appeals found that Russ’s character witnesses were

properly excluded because Russ’s reputation for non-violence and respect towards

females was not pertinent to the offenses charged. The record supports the state

court’s conclusion because: (1) the evidence presented at trial did not indicate that the

charged offenses involved any violence; and (2) there is nothing in the record to

suggest that Russ’s reputation for respecting women in the community was pertinent

to the charged offense. Since the evidence was properly excluded based on Fla. Stat.

§ 90.404(1)(a), Russ cannot show that this made his trial fundamentally unfair.

Moreover, contrary to Russ’s claim, the Supreme Court has never provided that a

defendant can always present character evidence. Thus, the state court’s decision was

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not contrary to, or involved an unreasonable application of, clearly established

Federal law.

Finally, we disagree with Russ that the Florida court’s decision that the

prosecutor’s comments during closing arguments (which Russ claims shifted the

burden of proof, appealed to the jurors’ social conscience, made improper epithets

and were prejudicial, referred to lesser included offenses as “misdemeanors,” and

attacked defense counsel) did not constitute fundamental error was contrary to, or an

unreasonable application of, clearly established Federal law. “To find prosecutorial

misconduct, a two-pronged test must be met: (1) the remarks must be improper, and

(2) the remarks must prejudicially affect the substantial rights of the defendant.”

United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir. 1991). “The reversal of a

conviction or a sentence is warranted when improper comments by a prosecutor have

‘so infected the trial with unfairness as to make the resulting conviction [or sentence]

a denial of due process.’” Parker v. Head, 244 F.3d 831, 838 (11th Cir. 2001)

(quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). Due process is denied

“when there is a reasonable probability,” or “a probability sufficient to undermine

confidence in the outcome,” that, but for the improper remarks, the outcome of the

proceeding would have been different. Eyster, 948 F.2d at 1206-07 (quotation

omitted). If prosecutorial misconduct renders a trial fundamentally unfair, there is a

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denial of due process. Land v. Allen, 573 F.3d 1211, 1219 (11th Cir. 2009). If it fails

to render the trial fundamentally unfair, however, habeas relief is not available. Id.

The remarks are considered under the totality of the circumstances. Hall v.

Wainwright, 733 F.2d 766, 773 (11th Cir. 1984). To determine whether arguments

are sufficiently egregious to result in the denial of due process, we consider factors

including: “(1) whether the remarks were isolated, ambiguous, or unintentional; (2)

whether there was a contemporaneous objection by defense counsel; (3) the trial

court’s instructions; and (4) the weight of aggravating and mitigating factors.” Land,

573 F.3d at 1219-20. “[T]he bar for granting habeas based on prosecutorial

misconduct is a high one.” Id. at 1220.

In a criminal proceeding, the government has the burden of proving every

element of the charged offense beyond a reasonable doubt. United States v. Simon,

964 F.2d 1082, 1086 (11th Cir. 1992). During closing arguments, “prosecutors must

refrain from making burden-shifting arguments which suggest that the defendant has

an obligation to produce any evidence or to prove innocence.” Id. However,

“prejudice from the comments of a prosecutor which may result in a shifting of the

burden of proof can be cured by a court’s instruction regarding the burden of proof.”

Id. at 1087. Furthermore, prosecutors may argue about the defense witnesses’

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credibility when the defense has attacked the State witnesses’ credibility. United

States v. Eley, 723 F.2d 1522, 1526 (11th Cir. 1984).

In this case, the record reflects that the prosecutor’s three comments, in which

he asked where the proof was that someone else sexually abused D.H., were proper

comments on Russ’s defense at trial that D.H. was lying to cover up for someone else

who molested her. Moreover, even if the prosecutor’s statements were improper, the

trial court gave a cautionary instruction regarding the burden of proof at the time the

first two comments were made. Because there was no prosecutorial misconduct with

regard to any of the allegedly burden-shifting comments made during closing

arguments, Russ’s trial was not fundamentally unfair.

The remaining comments that Russ challenges on appeal were also permissible

or harmless. The record reflects that the prosecutor did not appeal to the jury’s social

conscience, but actually reminded the jury that sympathy was not to be part of their

deliberations and acknowledged that they had a difficult decision to make. As for the

prosecutor’s comments about Russ’s family, they were not improper when viewed in

context. As the record shows, the prosecutor was arguing about the credibility of the

defense witnesses, which he was entitled to do since Russ had attacked the credibility

of the State’s witnesses. In addition, based on the evidence presented at trial, the

prosecutor’s reference to Russ as a sexual predator was a fair comment. The record

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also reflects that the prosecutor did not impermissibly attack Russ’s counsel. Indeed,

the prosecutor’s comment that Russ’s counsel did not want the jury to focus on the

detailed testimony simply was a comment on Russ’s defense that someone else

molested D.H. We thus find no prosecutorial misconduct based on any of these

comments.

We recognize that it may have been improper for the prosecutor to refer to the

lesser included offenses as “misdemeanors.” However, the record reflects that Russ’s

counsel objected, the objection was sustained, and the trial court explicitly stated that

“the degree of the charge cannot be spoken about.” In light of the record as a whole,

we cannot conclude that these comments rendered the trial fundamentally unfair.

Accordingly, the Florida court’s decision that the prosecutor’s comments during

closing arguments did not constitute fundamental error was not clearly contrary to,

or an unreasonable application of, clearly established Federal law.

We affirm the denial of Russ’s § 2254 petition.

AFFIRMED.

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