PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 10, 2001
THOMAS K. KAHN
No. 99-13198 CLERK
________________________
D. C. Docket No. CV 93-N-1121
ANTHONY KEITH JOHNSON,
Petitioner-Appellant,
versus
STATE OF ALABAMA,
JOHN E. NAGLE,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(July 10, 2001)
Before TJOFLAT, BLACK and MARCUS, Circuit Judges.
MARCUS, Circuit Judge:
In this appeal, we consider the request for a writ of habeas corpus by
Petitioner Anthony Keith Johnson, a state prisoner in Alabama. Johnson was
indicted and convicted of capital murder in the 1984 shooting death of Kenneth
Cantrell in Morgan County, Alabama. The state trial court imposed a sentence of
death. That judgment was later upheld on direct appeal and again on collateral
attack by the Alabama Court of Criminal Appeals. In this federal habeas petition,
Johnson argues that his conviction should be set aside on a variety of grounds. He
contends, among other things, that his trial attorneys rendered him constitutionally
ineffective assistance by choosing a flawed defense strategy. The district court
conducted a hearing on Johnson’s petition and subsequently issued a lengthy and
well-reasoned order denying all relief. Johnson has now sought review from this
Court. Having carefully reviewed the record and considered the parties’
arguments, we affirm.
I.
A.
The facts presented at trial are set forth at length in the district court’s order
as well as the opinion on direct review of the Alabama Court of Criminal Appeals.
See Johnson v. Nagle, 58 F. Supp. 2d 1303, 1314-15 (N.D. Ala. 1999); Johnson v.
State, 521 So. 2d 1006, 1007-08 (Ala. Crim. App. 1986), aff’d, 521 So. 2d 1018
(Ala. 1988), cert. denied, 488 U.S. 876, 109 S. Ct. 193 (1988). On the evening of
March 11, 1984, the victim, Kenneth Cantrell, and his wife were at their home in
2
Hartselle, Alabama. The Cantrells had been in the jewelry business for 24 years
and at this time were conducting the business from their home. Mrs. Cantrell
received a phone call from a person who identified himself as Bill Spears from
Florence, Alabama, and asked to speak to Mr. Cantrell. He told Mr. Cantrell that
he would like to purchase some jewelry from him, and they arranged a meeting a
short time thereafter at the Cantrell home. Mr. Cantrell was apparently suspicious
of the caller, because he asked his wife to hide his wallet and bring him his .38
caliber pistol. When Mrs. Cantrell heard a knock at the door, which led from their
carport into the combined living room and dining room area of their home, she
went to answer it. She observed that the man already had the storm door open, but
she had to open the door to hear what he had to say.
When she opened the door she encountered a man between 45 and 50 years
of age who identified himself as Bill Spears. She noticed that he held one hand
behind his back, and she asked if he was concealing something. He said that he
was not and showed her his hand. At the same time he motioned for another man
who had been hiding in the carport to come forward. The man already at the door
then grabbed Mrs. Cantrell, and the other man, wearing a blue bandana over his
face and brandishing a “real shiny” gun in his hand, announced “This is a holdup.”
3
At that point, Mrs. Cantrell broke free from the man holding her, eluded a
second attempt by the first man to grab her, and fell at her husband’s feet between
the couch and coffee table. The first man crossed the room and positioned himself
behind a couch he had overturned. The second man then entered the house and
began shooting. During or just before the gunfight, Mr. Cantrell allegedly said,
“Freeze . . . I have got you covered,” to which one of the men replied “No, we have
got you, Cantrell.” While on the floor, Mrs. Cantrell was able to observe that one
of the men wore a pair of brown boots. She also testified that only two guns were
fired during the exchange, and that the shots fired at her husband appeared to come
from the direction of the second intruder. After several shots had been fired, there
was a pause in the gunfire. One of the men said: “Come on in, Bubba . . . we have
got him.” As the two men in the room made their way to the door, but before they
reached it, Mr. Cantrell fired one final shot and someone said “Oh.” Mrs. Cantrell
then heard the sound of shuffling feet, as if one of the intruders was being assisted
out of the house.
After the intruders left, Mrs. Cantrell waited a moment, looked up at her
husband, noticed that he had blood all over him, and that she had blood all over her
but had not been shot. She then called an ambulance and police to the scene. Mr.
Cantrell sustained six gunshot wounds in the exchange, three in the right side of his
4
chest, one in the left side of his chest, one in the back of his right arm, and one to
his right middle finger. The bullets that struck him in the chest passed through his
lungs and the large arteries from the heart, causing rapid death.
On the evening of March 12, 1984, the day after the murder, Johnson went
to the home of David Lindsey, who was a friend, in Newell, Alabama. Johnson
told Lindsey that he had been shot. When Lindsey inquired as to what had
happened, Johnson stated, “Well you know how it is when you have got the habit.”
Johnson told Lindsey that he knew Lindsey had been to Vietnam, and asked if
Lindsey knew a medic or someone who could get the bullet out. Lindsey told him
that he knew no one who could do that.
At Johnson’s request, Lindsey, on the morning of March 13, 1984, drove
Johnson to a motel in Oxford, Alabama, to meet Gene Loyd. Loyd and Johnson
were glad to see each other, and Loyd asked Johnson where he had been. Johnson
replied that he “had to get the hell out of Hartselle.” He said that he and some
friends had gone into a place to “get some gold” and that he had been shot.
According to Lindsey, Johnson stated: “I got shot, but I got off a couple of rounds,
and I believe I got that son of a bitch.” Lindsey returned home, where he heard
that a murder had occurred in Hartselle, and he contacted law enforcement.
5
Johnson was arrested on March 14, 1984, at the motel where he had been
taken by Lindsey. A pair of brown boots, which Johnson claimed to own, were
found at the scene of the arrest. A bullet wound was discovered in his back; that
wound was 50.5 inches from the ground when Johnson was standing.
A search warrant was eventually obtained, and the bullet was surgically
removed from Johnson’s back.1 The bullet that was removed from Appellant’s
back was a .38 special C.C.I. Blazer, the same kind of bullet fired by Mr. Cantrell’s
revolver. The bullet had the same characteristics as those test-fired from Mr.
Cantrell’s R.G. revolver and those found at the scene, although it was impossible to
make a definite determination that Mr. Cantrell’s revolver actually fired the bullet.
The bullet that was removed from Johnson’s back also had glass embedded in its
nose. Test comparisons of the glass removed from the bullet and the glass found in
the pane on the back door (through which the unaccounted-for bullet had passed)
revealed that all of their physical properties matched, with no measurable
1
Johnson challenged the trial court’s authorization of that procedure at the time and
thereafter (including in the district court in this habeas proceeding), but does not raise the issue
on appeal to this Court. In any event, we find no error entitling Johnson to relief.
6
discrepancies. Based upon F.B.I. statistical information, it was determined that
only 3.8 out of 100 samples could have the same physical properties.2
B.
After the petitioner was arrested as a murder suspect, two attorneys (Propst
and DiGiulian) were appointed to represent him. On March 26, 1984, Johnson was
formally charged with capital murder. In June 1984, a Morgan County grand jury
indicted Johnson for the intentional murder of Kenneth Cantrell during the course
of a robbery, in violation of Ala. Code § 13A-5-40. A year later, on June 20, 1985,
Johnson was found guilty by a jury of capital murder as charged in the indictment.
On June 21, 1985, the jury voted nine to three to recommend that Johnson be
sentenced to life imprisonment without the possibility of parole instead of death.
On November 8, 1985, the trial court -- having conducted the sentencing hearing
required by Ala. Code § 13A-5-47 -- rejected the recommendation of the jury and
sentenced Johnson to death. The court found two of the statutory aggravating
2
It was discovered that Mr. Cantrell had fired his R.G. brand revolver six times at the
intruders. Most of the shots were in an upward direction from the point where he was sitting on
his couch. The revolver was loaded with .38 special C.C.I. Blazer cartridges manufactured by
Omark Industries. Four C.C.I. Blazer bullets were recovered from objects which they had struck
at the scene. One bullet apparently passed through the ceiling and could not be found. One
bullet passed through a pane of glass on the back door 46.375 inches from the ground. A search
of cardboard boxes and the wall in this bullet’s path failed to reveal the bullet. The four C.C.I.
Blazer bullets found at the scene had the same number of lands and grooves as the bullets test
fired from Mr. Cantrell’s R.G. revolver, but again, it was impossible to determine definitively
that Mr. Cantrell’s revolver actually fired the bullets.
7
circumstances defined at Ala. Code § 13A-5-49: (1) the capital offense was
committed by a person under sentence of imprisonment, and (2) the capital offense
was committed while the defendant was engaged in the commission of a robbery.
The court acknowledged that there was some potentially mitigating evidence, but
ultimately ruled that the aggravating circumstances were substantial and
controlling.3
Johnson appealed to the Alabama Court of Criminal Appeals, where he was
represented by newly-appointed appellate counsel (Mays). On November 25,
1986, the Alabama Court of Criminal Appeals issued a written opinion affirming
the conviction and sentence. The Alabama Supreme Court affirmed the conviction
and sentence on February 5, 1988, and the United States Supreme Court denied
Johnson’s petition for the writ of certiorari on October 3, 1988.
After the direct review process was completed, Johnson’s present counsel
then undertook to represent him in post-conviction proceedings. They started by
seeking relief in the Alabama courts, filing on April 4, 1989, a petition under Rule
20 of the Alabama Rules of Criminal Procedure. The petition, as amended, raised
a large number of claims. The Circuit Court of Morgan County twice denied the
3
Johnson does not challenge the sentencing process in this petition; his objections go
instead to the underlying conviction for capital murder.
8
petition, only to have the Court of Criminal Appeals twice remand for the entry of
express findings after a hearing. On June 17, 1991, the trial court submitted a more
specific order denying the Rule 20 petition.
Johnson then appealed the denial of his petition to the Alabama Court of
Criminal Appeals, which made written findings of its own and affirmed in a
written opinion dated on September 18, 1992. See Johnson v. State, 612 So.2d
1288 (Ala. Crim. App. 1992). The Alabama Supreme Court denied Johnson’s
petition for the writ of certiorari on February 19, 1993, and there is no indication
that Johnson sought further review from the U.S. Supreme Court.
C.
On June 7, 1993, Johnson filed this petition for habeas corpus pursuant to §
2254, asserting seven principal grounds for relief (only some of which are pursued
now on appeal). In response, the State filed memoranda and introduced numerous
documents and records from the various state court proceedings. The district court
eventually conducted an in camera evidentiary hearing regarding communications
between Johnson and his trial attorneys concerning Johnson’s participation in the
9
events surrounding the robbery and murder. Johnson’s trial attorneys were also
directed to file under seal materials that contained these communications.4
According to the district court, at the hearing, Johnson’s trial lawyers “made
it clear that what Johnson had told his [trial] attorneys about his personal
participation in the robbery and murder of Mr. Cantrell completely refuted his
present attorneys’ ‘fictionalized’ account of his participation, upon which most of
their present arguments are founded.” 58 F. Supp. 2d at 1326 n.14. The district
court found that Johnson had told his trial attorneys that he had participated in the
robbery, had personally fired shots at Mr. Cantrell, and had been wounded by
4
After seeking guidance from the parties, the district court initially determined that it
could address all of the claims presented in Johnson’s petition on the basis of the state court
record without holding an evidentiary hearing. Subsequently, the court attempted to hold an
evidentiary hearing regarding “what petitioner told counsel about the crime and his role in it in
order to assess whether their strategic and tactical choices were reasonable in the light of the
information known to them.” On February 28, 1996, we stayed the district court’s order and
directed the court to conduct first an in camera hearing in order “to determine whether and to
what extent appellant’s communication presumptively protected by the attorney-client privilege
is relevant to the specific ineffective assistance of counsel claims raised by appellant in his
habeas petition.” When Johnson later sought another stay of the district court’s order directing
counsel to produce their notes, we denied his request, finding that “the district court’s decision to
order production under seal of trial counsel’s notes for purposes of the in camera relevance
hearing is reasonable and necessary.”
In his brief, Johnson asserts that the district court “abused” our rulings by relying on the
contents of these attorney-client communications in assessing the reasonableness of the strategy
pursued by trial counsel. We reject that assertion. Implicit in our rulings was the expectation
that, if the district court found the communications relevant to accurate resolution of Johnson’s
ineffectiveness arguments -- and the specific communications relied upon by the district court
plainly are -- the privilege would not apply and the district court should consider the
communications in analyzing Johnson’s claim of ineffectiveness. As discussed below, such an
approach is entirely proper in these kinds of cases.
10
Mr. Cantrell. As discussed below, these statements are indeed at odds with the
theory of defense advanced now by Johnson’s habeas counsel.
On July 23, 1999, the district court entered an exhaustive order considering
but ultimately rejecting each of Johnson’s many habeas objections. In so doing,
the court made various independent findings of fact, and determined as well that
findings of the Alabama Court of Criminal Appeals were supported by the record.
This appeal followed.
II.
Johnson filed his § 2254 petition prior to the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Therefore,
this case is governed by pre-AEDPA law. See Lindh v. Murphy, 521 U.S. 320,
336-37, 117 S. Ct. 2059, 2068 (1997). Under pre-AEDPA law, we review the
denial of Johnson’s § 2254 petition, and the district court’s subsidiary legal
conclusions, de novo. See, e.g., Yeck v. Goodwin, 985 F.2d 538, 540 (11th Cir.
1993); Oliver v. Wainwright, 782 F.2d 1521, 1524 (11th Cir. 1986). District court
findings of fact are subject to the clearly erroneous standard. See Williams v.
Turpin, 87 F.3d 1204, 1209 (11th Cir. 1996). The state court’s factual findings are
generally entitled to a presumption of correctness and may be ignored only if the
petitioner shows by clear and convincing evidence that the state court’s
11
determination was not “‘fairly supported by the record.’” Griffin v. Wainwright,
760 F.2d 1505, 1511 (11th Cir. 1985) (quoting pre-AEDPA § 2254(d)). This
presumption is equally applicable to state appellate court findings of fact. See,
e.g., Sumner v. Mata, 449 U.S. 539, 549, 101 S. Ct. 764, 770 (1981).
Johnson asserts multiple grounds for granting his § 2254 petition. His
principal arguments are the following: (1) there was insufficient evidence to
convict him of capital murder, especially on the issue of his intent to kill; (2) his
trial attorneys provided ineffective assistance of counsel (i) by adopting an
unreasonable defense strategy that failed to challenge the State’s proof of intent;
(ii) by failing to request a jury instruction on felony murder; (iii) by making
improper remarks during closing argument and also failing to object to improper
remarks by the prosecutor; and (iv) by inadequately cross-examining Lindsey and
failing to call witnesses who might have impeached Lindsey’s testimony; (3) his
appellate lawyer provided ineffective assistance of counsel; (4) the State
committed a Brady violation by suppressing material that could have been used to
impeach witnesses unfavorable to the defense; and (5) the trial court’s “reasonable
doubt” instruction impermissibly lowered the State’s burden of proof below that
12
required by the Constitution. We address these arguments in turn, and find each of
them to be without merit.5
III.
Johnson’s first argument for relief is that there was insufficient evidence to
prove him guilty of capital murder beyond a reasonable doubt. In particular,
Johnson contends that there was insufficient evidence of his specific intent to kill.
Before addressing this argument, however, we must consider whether it has been
preserved for federal court review. We agree with the district court that this claim
has been procedurally defaulted. We also agree that this argument fails on its
merits.
A.
We turn initially to the question of procedural default. To obtain a writ of
habeas corpus under § 2254, a petitioner must not have procedurally defaulted his
federal claims in the state courts. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 82-
85, 97 S. Ct. 2497, 2504-06 (1977). “Federal review of a petitioner’s claim is
barred by the procedural default doctrine if the last state court to review the claim
states clearly and expressly that its judgment rests on a procedural bar, and that bar
5
Arguments by Johnson not specifically addressed in this opinion are likewise without
merit.
13
provides an adequate and independent state ground for denying relief.” Johnson v.
Singletary, 938 F.2d 1166, 1173 (11th Cir. 1991) (en banc) (citing Harris v. Reed,
489 U.S. 255, 263, 109 S. Ct. 1038, 1043 (1989)).
The Alabama Court of Criminal Appeals, considering Johnson’s appeal from
the denial of his state post-conviction petition, expressly found that Johnson’s
sufficiency of the evidence challenge was procedurally barred as a matter of
Alabama law to the extent it “could have been but was not raised on [direct]
appeal.” Johnson v. State, 612 So. 2d at 1292. The district court found that the
particular insufficiency of the evidence claim asserted by Johnson in this
proceeding could have been, but was not, raised on direct appeal, and therefore, by
virtue of the Alabama Court of Criminal Appeals’s decision, is procedurally barred
from federal court review. We agree. See Chandler v. Moore, 240 F.3d 907, 912
(11th Cir. 2001); Singletary, 938 F.2d at 1173.
Johnson insists that he did argue insufficiency of the evidence on direct
appeal. But while state appellate counsel attacked the sufficiency of the evidence
regarding Johnson’s presence at the scene, there was no appeal on the separate and
distinct issue of whether there was sufficient evidence that Johnson had the specific
intent to kill required under Alabama’s capital murder law. Johnson does not
contend that such an argument was advanced (indeed, appellate counsel’s failure to
14
advance that argument is one of the reasons Johnson now claims ineffective
assistance of counsel), and there is no indication that the Alabama Court of
Criminal Appeals, in its ruling on Johnson’s state habeas petition, thought that
such an argument was among those raised or addressed on direct appeal. See 612
So. 2d at 1292. This is not a situation where, to use Johnson’s words, a claim was
presented fairly but “inartfully” on direct appeal; rather, the sufficiency of the
evidence argument advanced by Johnson on direct appeal was totally different
from that advanced in this federal proceeding. Insufficiency of the evidence is
simply too broad and malleable an objection to hold, in these circumstances at
least, that a direct appeal in state court challenging the sufficiency of the evidence
on one theory is enough to preserve for federal habeas review a challenge to the
adequacy of proof on a factually and legally distinct theory never fairly presented
to the state courts. Cf. Hart v. Estelle, 634 F.2d 987, 989 (5th Cir. 1981)
(exhaustion of state remedies requirement not satisfied where the petitioner
“technically asserted the same constitutional deficiency and the same facts” in the
federal proceeding, but did so “in support of a different legal theory”). We
therefore find that this claim has been procedurally defaulted.6
6
Johnson cites a treatise for the proposition that “procedural default ‘has not occurred for
purposes of federal habeas review’ where state law bars a petitioner from presenting a claim in
state post-conviction proceedings that has previously been raised on direct appeal.” Pet. Br. at
54 n.40. That is not the problem here, however, because -- as we discuss -- Johnson’s current
15
If a petitioner has procedurally defaulted a federal habeas claim, he may be
nevertheless heard on that claim if he can show “cause” for the procedural default
and “prejudice” attributable thereto. See Murray v. Carrier, 477 U.S. 478, 485, 106
S. Ct. 2639, 2644 (1986). To show cause, a petitioner must prove that “some
objective factor external to the defense impeded counsel’s efforts” to raise the
claim previously. Id. at 488, 106 S. Ct. at 2645. Once cause is proved, a petitioner
also must prove prejudice. He must show “not merely that the errors at his trial
created a possibility of prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.”
United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 1596 (1982) (emphasis
in original).
sufficiency of the evidence challenge was not raised on direct appeal, and hence it was not
among the separate group of sufficiency of the evidence claims that the Alabama Court of
Criminal Appeals ruled in the post-conviction proceeding were barred because they had already
been raised on direct appeal. See 612 So. 2d at 1292 (“We hold that to the extent this [alleged
insufficiency of proof] claim constitutes the same insufficiency-of-evidence issue asserted on
direct appeal, this claim is procedurally barred from review under [Rule 20.2(a)(4)] because it
was raised or addressed on appeal. We likewise hold that to the extent that this claim differs
from the insufficiency of the evidence issue asserted on direct appeal, this claim is procedurally
barred from review under [Rule 20.2(a)(5)] because it could have been but was not raised on
appeal.”). Johnson’s other assertion that Alabama fails to adhere to its own default rules -- see
Blount v. State, 572 So. 2d 498 (Ala. Crim. App. 1990) and Falkner v. State, 586 So. 2d 39 (Ala.
Crim. App. 1991) -- is unpersuasive. The exceptions applied in these decisions are not as broad
as Johnson claims, and do not establish that Alabama would not regularly apply its default rules
in the situation we have here.
16
If a petitioner cannot show cause, he may still survive a procedural bar by
proving that the failure to hear the merits of his claim would endorse a fundamental
miscarriage of justice. See Murray, 477 U.S. at 495, 106 S. Ct. at 2649. This
exception is exceedingly narrow in scope, as it concerns a petitioner’s “actual”
innocence rather than his “legal” innocence. See Calderon v. Thompson, 523 U.S.
538, 559, 118 S. Ct. 1489, 1502-03 (1998); Murray, 477 U.S. at 495-96, 106 S. Ct.
at 2649 (explaining that a “fundamental miscarriage of justice” occurs “in an
extraordinary case, where a constitutional violation has resulted in the conviction
of someone who is actually innocent”). To meet this standard, a petitioner must
“show that it is more likely than not that no reasonable juror would have convicted
him” of the underlying offense. Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851,
867 (1995). In addition, “‘[t]o be credible,’ a claim of actual innocence must be
based on reliable evidence not presented at trial.” Calderon, 523 U.S. at 559, 118
S. Ct. at 1502-03 (quoting Schlup, 513 U.S. at 324, 115 S. Ct. at 865) (explaining
that “[g]iven the rarity of such evidence, in virtually every case, the allegation of
actual innocence has been summarily rejected” (internal quotation marks omitted)).
Neither exception to the procedural bar rule applies in this case. Johnson’s
only “cause and prejudice” argument stems from his appellate counsel’s
purportedly ineffective assistance in failing to litigate on appeal the intent issue.
17
As discussed below, however, we do not find appellate counsel to have been
constitutionally ineffective. Nor, as discussed below, does Johnson show “actual
innocence.” Johnson bases his objection on a new theory of defense, not newly-
discovered evidence. He has not come forward with any new evidence in support
of his petition. In any event, we cannot say that it was more likely than not that no
reasonable juror would have convicted Johnson of capital murder.
B.
Indeed, on the merits, we agree with the district court that the evidence at
trial was sufficient to sustain Johnson’s capital murder conviction. The question
we ask is very limited: whether, after reviewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the
petitioner guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.
307, 313, 99 S. Ct. 2781, 2785 (1979); Martin v. Alabama, 730 F.2d 721, 724
(11th Cir. 1984). Although each element of the offense must be established
beyond a reasonable doubt, see Bishop v. Kelso, 914 F.2d 1468, 1470 (11th Cir.
1990) (citing Jackson, 443 U.S. at 316, 99 S. Ct. at 2787), the State is not required
to rule out every hypothesis except that of the guilt of the defendant, see Jackson,
443 U.S. at 326, 99 S. Ct. at 2792-93; Martin, 730 F.2d at 724. When the record
reflects facts that support conflicting inferences, there is a presumption that the
18
jury resolved those conflicts in favor of the prosecution and against the defendant.
In other words, federal courts must defer to the judgment of the jury in assigning
credibility to the witnesses and in weighing the evidence. See Jackson, 443 U.S. at
326, 99 S. Ct. at 2793; Wilcox v. Ford, 813 F.2d 1140, 1146 (11th Cir. 1987).
In this proceeding, Johnson’s sufficiency challenge revolves around a so-
called “third man” defense. Specifically, Johnson contends that the trial evidence
indicates that he was not one of the two robbers who shot at Cantrell, but rather
was a “third” man who participated in the robbery but not in Cantrell’s shooting
death. As this theory goes, Johnson entered the Cantrell house during a lull in the
shooting just in time to be caught in the back by the dying Mr. Cantrell’s last shot.
This theory -- which was not advanced by Johnson’s trial or appellate
counsel in state court -- attempts to build upon apparent confusion in the testimony
of Mrs. Cantrell, the only surviving eyewitness to the shooting, as well as a nuance
in Alabama’s capital murder scheme. Although Alabama law does identify
robbery as one of the circumstances that may elevate a murder to a capital offense,
see Ala. Code § 13A-5-40(a)(2), mere participation in a robbery that leads to a
killing is not sufficient for a capital conviction. Alabama’s capital murder statute
applies only when the defendant has specific intent to kill, and thereby is guilty of
an intentional murder. See Ex parte Murray, 455 So. 2d 72, 74 (Ala. 1984); Lewis
19
v. State, 456 So. 2d 413, 416 (Ala. Crim. App. 1984) (stating that “no defendant is
guilty of a capital offense unless he had an intent to kill, and that intent to kill
cannot be supplied by the felony murder doctrine”).
The State has acknowledged that Mr. Cantrell was actually killed by the
unidentified “first” man rather than by Johnson. That acknowledgment does not
relieve Johnson of liability, however. Johnson may still be liable for capital
murder upon proof of complicity in an intentional murder carried out by another.
This theory of liability requires more than proof of participation in a robbery; it
also requires proof that Johnson, with an intent to kill, aided another in the killing
Mr. Cantrell. See Ex parte Raines, 429 So. 2d 1111, 1112-13 (Ala. 1982).7
At trial, the state offered evidence indicating that Johnson possessed the
intent required under Alabama’s capital murder statute. First, the State put Lindsey
on the stand to testify that Johnson admitted shooting a robbery victim in Hartselle.
7
Johnson contends that the jury did not convict him under this theory. He contends that
the indictment may be read as charging him with capital murder only as a principal (rather than
an accomplice) in the killing of Mr. Cantrell. Johnson maintains that upholding his conviction
on an accomplice or “complicity” theory would invade the province of the jury, apparently
because the jury returned a verdict convicting Johnson of capital murder “as described in the
indictment.” We disagree with Johnson’s reading of the indictment as well as his understanding
of the law. There was no requirement that the State specifically allege Johnson’s liability for Mr.
Cantrell’s death as an accomplice rather than as a principal; it was enough that the State alleged
his liability for capital murder. Nor is there any requirement that the jury make a specific
“finding” that the State proved Johnson guilty as an accomplice as opposed to or in lieu of
finding him guilty as a principal. Finally, the allegations of the indictment accommodate a
“complicity” theory.
20
Second, the State attempted to identify Johnson as the second robber in the Cantrell
home through physical evidence, and then put on testimony from Mrs. Cantrell that
this robber had shot at her husband. The Alabama Court of Criminal Appeals
observed in post-conviction proceedings that “[w]hile the shots of the second
‘masked’ robber were not the shots that killed the victim, there was no reasonable
basis for the jury to doubt that the second robber had the intent to kill, attempted to
kill, and actively participated in the killing.” Johnson v. State, 612 So. 2d at 1298.
Johnson’s “third man” theory turns on the notion that the evidence at trial
could be interpreted to indicate that there were three robbers on the scene, and that
Johnson was not the second but the third man to enter the Cantrell home, and hence
was not one of the two men who allegedly shot at Mr. Cantrell. The State’s main
argument on this point was that there were two men at the scene, two men shot at
Mr. Cantrell, Johnson was at the scene, and accordingly Johnson must have been
the second man. Johnson counters that while the State may have had evidence that
he was present at the scene, it had little solid evidence pointing to him as the
second man. According to Johnson, a properly-instructed jury would have
concluded that he did not participate in the shoot-out with Cantrell, found evidence
of intentional murder lacking, and opted instead for felony murder, a non-capital
offense.
21
Johnson’s theory relies almost entirely on apparent confusion in portions of
Mrs. Cantrell’s trial testimony. As fairly described by the district court, see 58 F.
Supp. 2d at 1314-15, Mrs. Cantrell’s testimony was essentially as follows. Two
intruders pushed past her into the house. The first man turned over a couch in the
living room and took up a position behind it. Mrs. Cantrell fell to the floor at her
husband’s feet and was unable to see much of anything after that point. After a
brief verbal exchange between her husband and the intruders, the second man
opened fire. A barrage of shots was exchanged, followed by quiet. The first man
said “come on in Bubba, I have got him.” Just after that, Mr. Cantrell got off one
last shot. Mrs. Cantrell heard a man say “Oh!,” then heard shuffling as if “they
were trying to help him out.”
Mrs. Cantrell continued:
A: It didn’t take them long . . . to start moving over
further towards the door.
Q: Further towards the door?
A: That is right.
Q: So neither one of them was at the door when your
husband fired the last shot?
A: No, they wasn’t.
Q: They were not?
22
A. No.
Id. at 1331. Mrs. Cantrell speculated that the men “were probably going through
things, looking for things.” Id.
According to Johnson, this portion of Mrs. Cantrell’s testimony is critical
because she placed the two intruders away from the door at the moment when the
last shot was fired and one of the intruders was hit. This is important, Johnson
claims, because the State’s evidence that Johnson was present at the scene was
based largely on a bullet which allegedly went through the door and hit him. Thus,
says Johnson, if both Mrs. Cantrell’s testimony and the State’s physical evidence
were to be believed, there must have been three robbers rather than two, and
Johnson could not have been the second man.8 As the district court explained,
“Johnson’s story would go something like this. He and several others went to rob
the Cantrells. He waited outside while two other men went in. They shot Cantrell,
and thinking the fight was over called Johnson in. As he walked in, he was hit in
the right side of his back by Cantrell’s dying shot.” 58 F. Supp. 2d at 1331. Under
8
Johnson also insists that additional evidence could be drawn upon to support this
conclusion, including Lindsey’s testimony that Johnson had gone with “some friends” to get
money; the position of the bullet wound on the right side of Johnson’s back, a fact he says was
consistent with coming in the door, not going out; and the perceived sequence and timing of the
lull in shooting, the first man’s direction to “come on in,” and Cantrell’s last shot. This evidence
adds little to his argument, however; the “third man” theory, to the extent it is viable at all, turns
on Mrs. Cantrell’s trial testimony.
23
this scenario, Johnson was the “third man,” did not participate in the shooting, and
lacks the requisite intent to kill required for capital murder.
We agree with the district court that the balance of the trial evidence, viewed
in a light most favorable to the prosecution, was sufficient to permit a rational trier
of fact to find Johnson guilty of the essential elements of capital murder beyond a
reasonable doubt. The balance of the evidence points to two intruders rather than
three, with Johnson as the second man.
First, the evidence presented at trial was more than adequate to prove that
Johnson was present at the scene and aided his associate in the killing. Evidence at
the scene indicated that a bullet had been fired by the victim and had passed
through a pane of glass in the carport door, only to disappear. A bullet of the type
used by the victim, and with markings matching the type of gun used by the victim,
was recovered from Johnson’s back. The location of the bullet wound was
consistent with the trajectory of the missing bullet, and fragments of glass found in
the head of that bullet matched the physical characteristics of the window pane
through which the shot had passed. This evidence was sufficient to allow a
reasonable juror to infer beyond a reasonable doubt that Johnson was present
during the gunfight which led to Mr. Cantrell’s death.
24
Second, there was sufficient evidence to establish Johnson’s intent to kill --
i.e., that he was the second man. The physical evidence indicated that an active
gun battle was waged between the victim and two intruders. A number of shots
from both sides passed through the carport door, indicating that one of the
intruders must have been firing from behind the door during part of the gunfight.
The fact that Johnson was struck by a bullet passing through this door allowed the
jury to infer that he was the shooter behind the door. Johnson’s wound location in
his right mid-back was likewise consistent with the notion that he had taken up a
position behind the door during the fight and from there shot at Mr. Cantrell.
Moreover, Lindsey testified that Johnson visited his home the day after Mr.
Cantrell was murdered. According to Lindsey, Johnson had with him a “shiny”
.357 Magnum matching the description of the gun carried by one of Mr. Cantrell’s
killers.9 The next morning, Lindsey drove Johnson to a motel in Oxford, Alabama,
where they met some of Johnson’s friends. Lindsey testified that Johnson told
them that he “had to get the hell out of Hartselle,” and that he and others had gone
into a place to get some gold and that his buddy had been shot. According to
Lindsey, Johnson also stated: “I got shot, but I got off a couple of rounds, and I
9
This testimony was partially corroborated by the introduction at trial of a nickel-plated
Ruger .357 Magnum found in Johnson’s possession a few days after the killing. Johnson’s gun,
when found, had only three rounds in it, consistent with the three rounds apparently fired by the
intruder near the carport door.
25
believe I got that son of a bitch.” The jury was entitled to believe, and presumably
did believe, Lindsey’s testimony. The record therefore contains what amounts to
an admission by Johnson that he participated in an intentional killing. In light of
the other evidence, a rational jury could conclude that it was Mr. Cantrell’s murder
which Johnson was describing.
In the end, virtually the only evidence arguably supporting the “third man”
theory was the snippet of Mrs. Cantrell’s testimony highlighted now by Johnson.
But a reasonable jury could easily have downplayed any brief inconsistencies in
Mrs. Cantrell’s testimony, and based its conviction on the balance of the evidence
pointing powerfully to Johnson as one of two men who shot at the victim. On this
record, the State sufficiently proved that Johnson formed the requisite intent to kill
for capital murder, and that he intended to participate, and did participate in
Cantrell’s intentional killing. Giving the jury’s verdict the deference it is due
under Jackson, Johnson is not entitled to relief on the ground that the evidence was
insufficient to convict him of capital murder.
IV.
Johnson next argues that he is entitled to relief because his trial counsel were
constitutionally ineffective. Most of Johnson’s ineffectiveness arguments center
on trial errors that Johnson attributes to his lawyers’ lack of understanding of
26
Alabama law regarding the difference between capital and felony murder, and his
lawyers’ related failure to recognize the possibilities of a “third man” defense. His
lawyers’ purported errors include: (1) failing to argue that Johnson was not a
participant in the shooting, but was instead a “third man”; (2) failing to argue that
there was insufficient evidence of Johnson’s alleged intent to kill Mr. Cantrell; (3)
failing to request a felony murder jury instruction; (4) failing to object to the
prosecutor’s closing argument; and (5) improperly suggesting during their own
closing argument that Johnson would be guilty of capital murder if he were merely
present at the robbery and murder of Mr. Cantrell. We address these objections in
turn.
A.
The standard for ineffective assistance of counsel is well-settled. “First, the
defendant must show that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Williams v. Taylor, 529 U.S. 362,
390, 120 S. Ct. 1495, 1511 (2000) (internal quotation marks omitted) (citing
27
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984));
accord, Chandler v. United States, 218 F.3d 1305, 1312-1313 (11th Cir. 2000) (en
banc), cert. denied, 121 S. Ct. 1217 (2001). The petitioner bears the burden of
proof on the “performance” prong as well as the “prejudice” prong of a Strickland
claim, and both prongs must be proved to prevail. The Strickland test is not easily
met; as we have said, “the cases in which habeas petitioners can properly prevail
on the ground of ineffective assistance of counsel are few and far between.’”
Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (citation
omitted).
To establish ineffective performance, a “petitioner must show that ‘counsel's
representation fell below an objective standard of reasonableness.’” Darden v.
Wainwright, 477 U.S. 168, 184, 106 S. Ct. 2464, 2473 (1986) (quoting Strickland,
466 U.S. at 668, 104 S. Ct. at 2065). This Circuit reviews a lawyer’s conduct
under the “performance” prong with considerable deference, giving lawyers the
benefit of the doubt for “heat of the battle” tactical decisions. See Mills v.
Singletary, 161 F.3d 1273, 1285-6 (11th Cir. 1998) (noting that Strickland
performance review is a “deferential review of all of the circumstances from the
perspective of counsel at the time of the alleged errors”); see also Waters, 46 F.3d
at 1518 (“The test for ineffectiveness is not whether counsel could have done
28
more; perfection is not required. Nor is the test whether the best criminal defense
attorneys might have done more. Instead the test is . . . whether what they did was
within the ‘wide range of reasonable professional assistance.’” (citation omitted));
Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994) (stating that “[w]hen reviewing
whether an attorney is ineffective, courts should always presume strongly that
counsel’s performance was reasonable and adequate” (internal quotation marks
omitted)).
This Court, sitting en banc, recently discussed this inquiry at length in
Chandler:
The standard for counsel’s performance is reasonableness under
prevailing professional norms. The purpose of ineffectiveness review
is not to grade counsel’s performance. . . . To state the obvious: the
trial lawyers, in every case, could have done something more or
something different. So, omissions are inevitable. But, the issue is
not what is possible or what is prudent or appropriate, but only what is
constitutionally compelled. . . . The petitioner must establish that
particular and identified acts or omissions of counsel were outside the
wide range of professionally competent assistance.
Courts must indulge [the] strong presumption that counsel’s
performance was reasonable and that counsel made all significant
decisions in the exercise of reasonable professional judgment. Thus,
counsel cannot be adjudged incompetent for performing in a particular
way in a case, as long as the approach taken might be considered
sound trial strategy. Given the strong presumption in favor of
competence, the petitioner’s burden of persuasion -- though the
presumption is not insurmountable -- is a heavy one. . . . [B]ecause
counsel’s conduct is presumed reasonable, for a petitioner to show
that the conduct was unreasonable, a petitioner must establish that no
29
competent counsel would have taken the action that his counsel did
take. . . .
In reviewing counsel’s performance, a court must avoid using
the distorting effects of hindsight and must evaluate the
reasonableness of counsel’s performance from counsel’s perspective
at the time. [I]t is all too easy for a court, examining counsel’s
defense after it has proved unsuccessful, to conclude that a particular
act or omission of counsel was unreasonable.
218 F.3d at 1313-1316 (citations and internal quotation marks omitted).
Likewise, the “prejudice” prong is difficult to meet. To establish prejudice,
a petitioner must show “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. A “reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. A finding of
prejudice requires proof of “‘unprofessional errors’ so egregious ‘that the trial was
rendered unfair and the verdict rendered suspect.’” Eddmonds v. Peters, 93 F.3d
1307, 1313 (7th Cir. 1996) (quoting Kimmelman v. Morrison, 477 U.S. 365, 374,
106 S. Ct. 2574, 2582 (1986)). As we recently explained, “habeas petitioners must
affirmatively prove prejudice because ‘[a]ttorney errors come in an infinite variety
and are as likely to be utterly harmless in a particular case as they are to be
prejudicial.’ ‘[T]hat the error had some conceivable effect on the outcome of the
30
proceeding’ is insufficient to show prejudice.” Gilreath v. Head, 234 F.3d 547,
551 (11th Cir. 2000) (quoting Strickland).
B.
Johnson contends that his trial attorneys were ineffective by failing to attack
the State’s showing on intent and by failing to advance the “third man” theory.
Johnson’s argument starts from the premise that trial counsel did not understand
the intent element of a capital murder charge, and therefore failed to recognize the
significance of Mrs. Cantrell’s trial testimony. This factual allegation also
underlies Johnson’s broader claim that trial counsel unreasonably advanced a
flimsy defense -- that he was not present at the scene of the crime -- rather than a
stronger defense based upon the his lack of intent to kill and his non-participation
in the murder. The Alabama Court of Criminal Appeals explicitly found that
“[t]rial counsel [were] aware that intent to kill was a required element of the capital
offense.” Johnson v. State, 612 So.2d at 1298. That court also found that “counsel
made a reasoned, strategic decision not to argue . . . that Johnson was present but
did not intend that the victim be killed” based upon a desire to avoid making
alternative arguments to the jury as well as a “judgment that, as a practical matter,
31
there was little or no chance that the jury would fail to find . . . intent to kill if [it]
concluded that [Johnson] had been at the scene.” Id. at 1296.10
Johnson fails to meet his heavy burden of proving that his trial counsel
performed unreasonably by pursuing the strategy that they did. On this record, the
strategic choices made by trial counsel were reasonable and constitutionally
adequate in the circumstances.
In formulating their strategy before trial, Johnson’s lawyers were aware of
statements by Johnson himself that he was the second man involved in the robbery
and that he had shot at Mr. Cantrell.11 Johnson’s now-preferred “third man”
defense, therefore, was not compatible with the information he conveyed to his
lawyers at the time. See Williamson v. Moore, 221 F.3d 1177, 1180 (11th Cir.
2000) (counsel not ineffective in choosing particular defense strategy in capital
10
Johnson, as noted above, contends that his trial counsel did not understand the elements
of Alabama’s capital murder scheme, and in particular did not understand the intent requirement.
The district court, however, ruled that the record contains sufficient evidence to support a finding
that at least one of Johnson’s trial attorneys, DiGiulian, knew of the intent and participation
requirements of an accomplice capital murder theory. The district court did conclude that the
record would not support a finding that Johnson’s trial counsel recognized the potential
significance of Mrs. Cantrell’s unclear testimony and what that testimony might mean for the
intent requirement. But our inquiry is an objective one, see, e.g., Chandler, 218 F.3d at 1315-16,
so the primary issue is not how Johnson’s attorneys came to pursue the course that they did, but
rather whether the course they actually pursued was one that “no competent counsel would have
taken.” Id. at 1315.
11
As noted above, Johnson’s trial attorneys testified and introduced notes pertaining to
their decision to argue that Johnson was not present during the offense.
32
case where reasonable counsel would have determined that petitioner’s alternative
theory “was inconsistent with Petitioner’s own description of the killing”).
Notably, Johnson does not, and cannot, argue that these communications with his
trial counsel are protected in this context by the attorney-client privilege. As we
have explained, a party “waives its attorney-client privilege when it injects into this
litigation an issue that requires testimony from its attorneys or testimony
concerning the reasonableness of its attorneys’ conduct.” GAB Bus. Servs., Inc. v.
Syndicate 627, 809 F.2d 755, 762 (11th Cir. 1987). By alleging that his attorneys
provided ineffective assistance of counsel in their choice of a defense strategy,
Johnson put at issue -- and thereby waived -- any privilege that might apply to the
contents of his conversations with those attorneys to the extent those conversations
bore on his attorneys’ strategic choices.
In Laughner v. United States, 373 F.2d 326 (5th Cir. 1967), we rejected the
argument of a § 2255 petitioner who asserted that his trial counsel should not have
been permitted to testify regarding their confidential communications, even though
the petitioner put those conversations at issue by attacking the attorney’s
performance. The petitioner sought to vacate his conviction by arguing that his
attorney provided inadequate representation. The district court, in accordance with
this Court’s instructions, conducted a hearing at which it heard testimony from the
33
attorney who represented the petitioner at the time of his conviction. On the basis
of that testimony, the court denied the § 2255 motion. We affirmed, and rejected
the petitioner’s claim of a violation of the attorney-client privilege:
We are met with the remarkable contention that appellant’s rights
were infringed upon by reason of the fact that the attorney he charged
with failure to represent him adequately at his arraignment and
sentencing was called as a witness by the government and permitted
by the court to testify in this post-conviction proceeding with respect
to the factual issues raised by appellant’s motion. Having demanded
and obtained a factual judicial inquiry into his claim that the attorney
appointed to render him the assistance of counsel for his defense
failed to discharge his responsibilities properly, appellant now
proposes to invoke the privilege accorded confidential
communications between an attorney and his client to eliminate the
one source of evidence likely to contradict his allegations. We are
unable to subscribe to this proposition. The privilege is not an
inviolable seal upon the attorney’s lips. It may be waived by the
client; and where, as here, the client alleges a breach of duty to him by
the attorney, we have not the slightest scruple about deciding that he
thereby waives the privilege as to all communications relevant to that
issue. The rule that a client waives his privilege by attacking the
attorney’s performance of his duties seems to have been adopted
unanimously by those courts which have dealt with the question. . . .
There is no contention nor any indication in the record that the
testimony elicited from the attorney in this case exceeded the scope of
that waiver. Consequently, appellant’s claim that his privilege was
violated is baseless.
Id. at 327 & n.1 (citations omitted). Laughner is the law of this Circuit and has
been applied in subsequent decisions from this Court. See Crutchfield v.
Wainwright, 803 F.2d 1103, 1121 (11th Cir. 1986) (en banc) (Edmondson, J.,
concurring) (noting in § 2254 proceeding that “[a]lthough the attorney-client
34
privilege, in particular, and attorney-client confidentiality, in general, are important
concerns due genuine deference, courts have never treated them as inviolable.
When a defendant has challenged his conviction by asserting an issue that makes
privileged communications relevant, he waives the privilege in respect to those
communications.”); Smith v. Estelle, 527 F.2d 430, 434 n.9 (5th Cir. 1976) (stating
that “[n]otwithstanding the fact that counsel’s decision to have his client take the
stand may have involved communication with his client, [petitioner] would not be
able to invoke the attorney-client privilege on remand in a post-conviction case”
where petitioner alleged that he would not have testified at his trial but for the
admission of a constitutionally invalid confession).
Simply put, when a habeas petitioner such as Johnson launches an attack on
the reasonableness of his attorney’s strategy in conjunction with a claim of
ineffective assistance of counsel, he puts at issue his communications with counsel
relating to those strategic choices. As Strickland itself emphasizes, the
“reasonableness of counsel’s actions may be determined or substantially influenced
by the defendant’s own statements or actions. Counsel’s actions are usually based,
quite properly, . . . on information supplied by the defendant . . . [and] . . . inquiry
into counsel’s conversations with the defendant may be critical to a proper
assessment of counsel’s . . . litigation decisions.” 466 U.S. at 691, 104 S. Ct. at
35
2066; see also Chandler, 218 F.3d at 1318-19 (“Because the reasonableness of
counsel’s acts . . . depends critically upon information supplied by the [petitioner]
or the [petitioner]’s own statements or actions, evidence of a petitioner’s
statements and acts in dealing with counsel is highly relevant to ineffective
assistance claims.” (citations and internal quotation marks omitted)). Although
the precise boundaries of the waiver will vary from case to case, and in many
instances will require careful evaluation by the district court, there should be no
confusion that a habeas petitioner alleging that his counsel made unreasonable
strategic decisions waives any claim of privilege over the contents of
communications with counsel relevant to assessing the reasonableness of those
decisions in the circumstances. The importance of that rule to proper resolution of
a § 2554 proceeding is amply illustrated by this case -- the communications
between Johnson and his trial counsel clearly reveal the incompatibility between
what Johnson told his lawyers at the time and the theory of defense that his present
lawyers insist their predecessors should have advanced.
Not only would a “third man” theory have been incompatible with the
information supplied by Johnson to his counsel at the time, it would have had little
foundation in other evidence available to counsel before the start of the trial. Mrs.
Cantrell’s pretrial testimony made no suggestion of a “third man.” There was no
36
evidence from the preliminary hearing, or information gleaned from defense
counsel’s pretrial investigation, reasonably suggesting that a “third man” defense
would be successful. Indeed, the available evidence supported a two-shooter
robbery theory. Accordingly, trial counsel had little if any basis to pursue a “third
man” theory. And without the “third man” theory, no plausible challenge could be
made to the State’s proof of intent, as the second man participated in a shoot-out
and clearly displayed an intent to help his partner kill Mr. Cantrell.
Given the evidence available at the time and Johnson’s own admissions, the
strategy actually chosen by trial counsel -- a “Johnson was not there” defense --
was reasonable. Although the evidence tying Johnson to the scene of the crime
was persuasive, it still was all circumstantial and not wholly iron-clad. Counsel
knew that no eyewitness could identify Johnson as being present at the crime
scene. The .357 magnum handgun that was found with Johnson at the motel in
Oxford was not clearly matched to any of the bullets at the crime scene. The bullet
found in Johnson’s back could not itself be traced definitively to Mr. Cantrell’s
gun. A hair found in a brown cap allegedly worn by the Johnson during the
robbery and murder did not match Johnson’s hair. And boots allegedly worn by
Johnson during the shooting did not contain glass fragments from a shattered glass
37
door pane.12 In short, Johnson’s trial attorneys had a basis to argue that a sufficient
link could not be forged between Johnson and the crime. Their decision to pursue
a “Johnson was not there” defense was within the range of professionally
competent assistance.
Johnson nevertheless contends that, whatever the reasonableness of his
lawyers’ pretrial strategy, that strategy had to change once Mrs. Cantrell offered
her testimony at trial. As noted above, apparent confusion in Mrs. Cantrell’s
testimony arguably could suggest that Johnson was not one of the two shooters, but
merely a third robber. Johnson contends that Mrs. Cantrell’s testimony created an
opening to challenge the State’s evidence on intent, and argues that it was
unreasonable for his counsel not to have exploited this opportunity.
We are not persuaded that Johnson’s trial attorneys provided professionally
incompetent assistance by failing to alter their reasonable strategy in favor of
pursuing a “third man” defense. First, the relevant portion of Mrs. Cantrell’s
testimony was very brief, not altogether clear, and at odds with other portions of
her account of the incident. We cannot say that, under the circumstances, every
12
The strongest evidence linking Johnson to the crime scene, glass found in the nose of
the bullet removed from Johnson’s back which shared the same refractive index as one of the
shattered door panes at the Cantrell house, was not revealed to counsel until the eve of trial.
Even that evidence, however, did not make unreasonable a defense strategy based on Johnson’s
absence from the scene.
38
reasonably competent attorney would have realized or attempted to take advantage
of the potential significance of this portion of Mrs. Cantrell’s testimony. Second,
counsel were committed to the “Johnson was not there” defense, and to shift gears
and argue in the alternative that Johnson was there, but only as the “third man,”
would have been risky.13 The district court found that counsel had already
presented to the jury the theory Johnson was not present at the robbery. See 58 F.
Supp. 2d at 1344 (citing transcript of evidentiary hearing). That theory, as
explained above, was reasonable. As we have explained in similar circumstances,
“[a]lthough inconsistent and alternative defenses may be raised, competent trial
counsel know that reasonableness is absolutely mandatory if one hopes to achieve
credibility with the jury.” Harich v. Dugger, 844 F.2d 1464, 1470 (11th Cir. 1988).
To argue in the alternative that if Johnson was there, he was a “third man” and not
one of the two shooters, might well have undercut the credibility of Johnson’s
lawyers with the jury.
Finally, there was little meaningful evidence beyond the highlighted portion
of Mrs. Cantrell’s testimony to aid a “third man” argument. Johnson himself could
not have taken the stand, in light of his contrary admissions to his counsel. There
13
Johnson’s attorneys testified that they felt the presentation of alternative theories would
have been mistaken.
39
remained Lindsey’s testimony that Johnson had admitted to firing at Mr. Cantrell
during the robbery. In addition, the physical evidence including the bullet holes in
the carport door suggested that the second shooter was behind the door and not
where Mrs. Cantrell seemingly indicated during her trial testimony. As the district
court observed, even Mrs. Cantrell’s trial testimony indicated, with the exception
of a few inconsistencies, that two intruders were involved in the crime and that
both participated in the murder of her husband. Given all of these circumstances,
we do not find it performance error that counsel did not aggressively pursue a
“third man” theory or other intent-related defenses during trial. See Waters, 46
F.3d at 1512 (performance inquiry “has nothing to do with what the best lawyers
would have done. Nor is the test even what most good lawyers would have done.
We ask only whether some reasonable lawyer at the trial could have acted, in the
circumstances, as defense counsel acted at trial.”).
C.
Johnson next contends that his trial counsel were ineffective because they
did not request an instruction on the offense of felony murder. According to
Johnson, with the option of a felony murder conviction, the jury might have
acquitted on the capital murder charge to spare Johnson the death penalty if it had
doubts that he shot at Mr. Cantrell. The district court did not decide whether this
40
failure to request a felony murder instruction was performance error, finding
instead no prejudice because Johnson failed to show a reasonable probability that
the jury would have returned a different verdict on the capital murder charge if
they had been presented with a felony murder jury instruction.14 We agree with
that analysis.
Relevant to this legal question are two Supreme Court decisions, Beck v.
Alabama, 447 U.S. 625, 100 S. Ct. 2382 (1980), and Schad v. Arizona, 501 U.S.
624, 111 S. Ct. 2491 (1991), which address the scope of a capital defendant’s Due
Process right to lesser-included-offense jury instructions. In Beck, the Supreme
Court found that an Alabama statute violated Due Process under the facts of that
case because it prohibited lesser-included-offense instructions in capital cases. The
Court reasoned that “when the evidence unquestionably establishes that the
defendant is guilty of a serious, violent offense -- but leaves some doubt with
respect to an element that would justify conviction of a capital offense -- the failure
to give the jury the ‘third option’ of convicting on a lesser included offense would
seem inevitably to enhance the risk of an unwarranted [capital] conviction.” 447
U.S. at 637, 100 S. Ct. at 2389. The Court’s fundamental concern was that a jury
14
Johnson’s trial lawyers testified that they did not consider whether to request a felony
murder instruction.
41
convinced that the defendant had committed some violent crime, but not convinced
that he was guilty of a capital crime, might nonetheless vote for a capital
conviction if the only alternative was to set the defendant free with no punishment
at all. See also Spaziano v. Florida, 468 U.S. 447, 455, 104 S. Ct. 3154, 3159
(1984) (“[t]he absence of a lesser included offense instruction increases the risk
that the jury will convict . . . simply to avoid setting the defendant free . . . . The
goal of the Beck rule . . . is to eliminate the distortion of the factfinding process
that is created when the jury is forced into an all-or-nothing choice between capital
murder and innocence.”)
In Schad, the Court clarified that it is not per se constitutional error for a
defendant to be denied a lesser-included-offense instruction in a capital case. The
Court found no constitutional violation in the denial to a capital defendant of an
instruction on the lesser-included-offense of robbery where the trial court did give
a separate lesser-included-offense instruction for second degree murder. The Court
reached this conclusion despite the defendant’s argument that his theory of defense
(he robbed the victim but did not murder him) supported a robbery instruction, and
that, in the absence of the instruction, the jury may have convicted him of capital
murder simply because they thought him guilty only of robbery and robbery was
not available as an alternative.
42
In the words of the Court:
Petitioner makes much of the fact that the theory of his defense
at trial was not that he murdered [the victim] without premeditation
(which would have supported a second-degree murder conviction),
but that, despite his possession of some of [the victim’s] property,
someone else had committed the murder (which would have supported
a theft or robbery conviction, but not second-degree murder).
Petitioner contends that if the jurors had accepted his theory, they
would have thought him guilty of robbery and innocent of murder, but
would have been unable to return a verdict that expressed that view.
Because Beck was based on this Court’s concern about “rules that
diminish the reliability of the guilt determination” in capital cases, the
argument runs, the jurors should have been given the opportunity “to
return a verdict in conformity with their reasonable view of the
evidence.” . . .
The argument is unavailing, because the fact that the jury’s
“third option” was second-degree murder rather than robbery does not
diminish the reliability of the jury’s capital murder verdict. To accept
the contention advanced by petitioner and the dissent, we would have
to assume that a jury unconvinced that petitioner was guilty of either
capital or second-degree murder, but loath to acquit him completely
(because it was convinced he was guilty of robbery), might choose
capital murder rather than second-degree murder as its means of
keeping him off the streets. Because we can see no basis to assume
such irrationality, we are satisfied that the second-degree murder
instruction in this case sufficed to ensure the verdict’s reliability.
That is not to suggest that Beck would be satisfied by
instructing the jury on just any lesser included offense, even one
without any support in the evidence. In the present case, however,
petitioner concedes that the evidence would have supported a
second-degree murder conviction, and that is adequate to indicate that
the verdict of capital murder represented no impermissible choice.
43
501 U.S. at 647-48, 111 S. Ct. at 2505 (citations omitted). Schad, therefore, rejects
the proposition that Due Process always entitles a defendant to each lesser-
included-offense instruction which may fit the facts of his case.
Here, the question is different, in that we focus not on whether there was a
Due Process violation, but rather whether the failure of Johnson’s trial attorneys to
ask for a felony murder instruction amounted to Strickland performance error and
prejudice.15 Johnson’s argument, drawing on Beck, is that the absence of a felony
murder instruction made a capital murder conviction more likely because the other
charges presented to the jury (robbery and intentional murder) did not allow for a
conviction on an unintentional murder theory -- a theory corresponding to the
“third man” defense. Citing the 9-3 jury vote for a life rather than death penalty
recommendation, Johnson contends that the jury may have doubted the strength of
the evidence of his intent to kill, but had no alternative “lesser” offense beyond
robbery.
Having reviewed the record, we cannot say that Johnson was prejudiced by
the absence of a felony murder instruction. Like the district court, we can find no
logical basis to conclude that an additional alternative charge would have led a
15
There was no constitutional violation under Schad, because the jury in Johnson’s case
did receive lesser-included instructions on robbery and intentional murder.
44
rational jury down a different path. The jury already was presented with non-
capital alternatives (intentional murder and robbery) and still found Johnson guilty
of capital murder. A felony murder instruction would not have changed the
standard for a conviction on capital murder, and so for an objective and rational
jury -- and we must presume this was such a jury -- an instruction on that offense
should not have changed the outcome. See Kilgore v. Bowersox, 124 F.3d 985,
995 (8th Cir. 1997) (finding no prejudice where capital defendant charged his
lawyer with ineffective assistance for not requesting a lesser-included charge on
second degree murder).16 Johnson’s belief that the jury might have doubted the
evidence of his intent to kill, but then nevertheless chosen to convict him for
capital murder because it thought the only alternative was robbery and that offense
would be too minor, is pure speculation, and highly strained speculation at that.
Moreover, as discussed above, there is little evidentiary foundation for
Johnson’s belief that the jury in his case might have been inclined to convict for
felony murder in lieu of the other offenses. The weight of the evidence pointed to
only two men, not three, with Johnson as either (1) one of the two men and
therefore guilty of capital murder, or (2) not one of them and therefore not guilty
16
We have found ineffective assistance where trial counsel did not request a manslaughter
instruction in a murder case where there was evidence suggesting the defendant killed the victim
in the heat of passion and there was little evidence of premeditation. See Young v. Zant, 677
F.2d 792, 798-99 (11th Cir. 1982). That is not the situation we have here.
45
altogether. That issue was the focus of the evidence and of the parties’ arguments
before the jury. In this context, unintentional murder was not so viable an option
for the jury that the absence of an instruction on felony murder amounts to
Strickland prejudice.
D.
Johnson next claims that his trial lawyers were ineffective by misstating the
law during their closing argument and also by failing to make a key objection
during the prosecutor’s closing argument. Johnson contends that these failures
stemmed from his attorneys’ failure to understand the intent requirement of
Alabama’s capital murder scheme. This argument, like many of Johnson’s other
objections, ultimately relates to the “third man” theory. We find no error entitling
Johnson to relief.
Johnson contends that a statement by his counsel during closing argument
improperly suggested to the jury that he could be convicted for capital murder if he
were merely present during the robbery. The challenged passage is as follows:
You are going to have to go back there, and you are
going to have to find, in order to convict and find Keith
guilty, you are going to have to find that the State has
proved an intentional killing occurred, a forcible robbery
or intent to rob, and going to have to find that Keith was
one of the men that was out there. That is what you are
going to have to do in order to find each and every one of
46
those beyond a reasonable doubt and to a moral certainty.
Each one of you is going to have to do that.
In analyzing this claim, we must evaluate defense counsel’s actions in
context rather than focusing on a single isolated passage. Before beginning their
closing arguments, trial counsel asked the court to give a three-paragraph
instruction which emphasized the state’s burden to prove beyond a reasonable
doubt that Johnson was guilty of an intentional killing in order to convict him of
capital murder. The court gave the instruction as requested. Moreover, references
to finding Johnson guilty of capital murder if he were present at the scene need not
be read as concessions that the capital charge could be proved on a felony murder
theory. Rather, the closing argument fit the facts of the case and Johnson’s
primary defense -- that he was not present at the Cantrell robbery and was not one
of the two shooters.
In any event, even if we assumed performance error, any prejudice to
Johnson was cured by the trial court’s jury instructions. Prior to closing argument,
the trial judge reminded the jury that the arguments of the lawyers were not to be
taken as the law applicable to the case. Following closing argument, the judge
again instructed the jury that it was the court’s duty to decide and define the law.
During his instructions, the judge repeatedly and emphatically instructed the jury
that a necessary element of the capital offense was that the defendant had
47
committed an intentional killing, or had intentionally aided and abetted an
intentional killing and repeatedly emphasized that the jury could not convict the
defendant of capital murder unless it was convinced that these requirements had
been proved beyond a reasonable doubt. Given these instructions, which Johnson
does not contend are inaccurate, we find no prejudice from the isolated passage in
his attorneys’ closing argument that Johnson now highlights. See United States v.
Smith, 918 F.2d 1551, 1562 (11th Cir. 1990) (stating that “[b]ecause statements
and arguments of counsel are not evidence, improper statements can be rectified by
the district court’s instruction to the jury that only the evidence in the case be
considered”); Shriner v. Wainwright, 715 F.2d 1452, 1459 (11th Cir. 1983) (noting
that “with a properly instructed jury, there is nothing to show the jury relied on the
prosecutor’s remarks,” and citing Grizzell v. Wainwright, 692 F.2d 722, 726-27
(11th Cir. 1982) for proposition that “‘[a] jury is presumed to follow [the] jury’s
instructions as to evidence it may consider’”); see also United States v. Gainey,
111 F.3d 834, 836-37 (11th Cir. 1997) ( prosecutors inappropriate comment not
prejudicial where it “was mitigated by the district court’s curative instructions”);
United States v. Barshov, 733 F.2d 842, 846-47 (11th Cir. 1984) (same).
For similar reasons, we reject on prejudice grounds Johnson’s allegation that
his trial attorneys were constitutionally ineffective because of their failure to object
48
to certain comments made by the prosecutor in closing argument. In his argument,
the prosecutor said the following:
His honor will charge you in this case, ladies and
gentlemen, concerning complicity. He will charge you in
this case that if these two men went in there, and if they
went in there to rob this dear lady and her husband, the
act of one is the act of both, the act of one is the act of all,
and what one does the other one is responsible for. You
listen to his charge. When those two men busted through
that door out there that night, everything that each one of
them did the other one was responsible for under the law
of the State of Alabama, and one is just as equally guilty
for the death of this man as the other.
58 F. Supp. 2d at 1350. According to Johnson, the prosecutor invited the jury to
convict on evidence sufficient to support only a felony murder charge, a statement
both wrong on the law and wrong on the facts.
The prosecutor’s statement is surely wrong under Alabama’s capital murder
statute. Specific intent to kill is required for conviction. However, we find no
prejudice from trial counsel’s failure to object to this statement. First, the
statement did not undercut Johnson’s defense -- that he was not present and was
not one of the two robbers who shot Mr. Cantrell. Second, as discussed above, the
trial evidence was generally inconsistent with a felony murder argument, so the
likelihood that the jury would have considered the case differently in light of the
prosecutor’s comments is minimal. Third, and most importantly, any possible
49
prejudice was cured by the trial court’s correct jury instructions. Under our
caselaw, as noted above, improper statements during argument can be cured by
clear and accurate jury instructions like those given here. The trial judge plainly
instructed the jury that the lawyers’ arguments were not to be taken as descriptions
of the law, and gave the jury proper instructions on the offenses for which Johnson
was charged. We cannot say, on this record, that there was a reasonable
probability that the outcome of the trial would have been different if Johnson’s
counsel had objected to the prosecution’s remarks. Accordingly, there is no
Strickland prejudice.
E.
Johnson next alleges ineffectiveness in his trial attorneys’ incomplete cross-
examination of David Lindsey. First, Johnson claims that his counsel failed to
identify for the jury certain asserted discrepancies between statements Lindsey had
given to police -- statements that trial counsel allegedly had in their possession --
and testimony by Lindsey at the preliminary hearing and at trial. Second, Johnson
asserts that his attorneys did not adequately impeach Lindsey when they failed to
take full advantage of an alleged affair between Johnson and Lindsey’s wife; by
not further inquiring into a criminal investigator’s report which said that Lindsey
was considered by some to be a “thief”; and by not inquiring into evidence that he
50
was not well thought of when he left his employment as an oil rigger. Finally,
Johnson argues that counsel inappropriately failed to call as witnesses several
people who had shared the motel room with him in order to rebut Lindsey’s
testimony regarding Johnson’s alleged admissions.
The Alabama Court of Criminal Appeals considered and rejected these
objections in the state post-conviction proceeding. As that court explained:
Defense counsel demanded a preliminary hearing for
discovery purposes to cross-examine prosecution
witnesses before trial. One of those witnesses was David
Lindsey. Defense counsel reviewed that preliminary
hearing transcript, including Lindsey’s testimony, in
detail before trial. They also interviewed the officer in
charge of the investigation several times, and they talked
a great deal with Johnson about the facts of the case.
Their conduct of the defense was based upon what
Johnson told them, and Johnson told them “the whole
story.” In addition to all those efforts, defense counsel
employed an investigator to help them find any useful
impeachment information about Lindsey. That
investigator worked on the case for more than nine
weeks. Defense counsel effectively cross-examined
David Lindsey. Defense counsel brought out a
contradiction between Lindsey’s trial testimony and the
testimony that he had given at the preliminary hearing.
Defense counsel suggested that Lindsey was biased
against Johnson because Johnson and Lindsey’s wife had
had an affair. Trial counsel forced Lindsey to admit that
he had been convicted of illegal possession of controlled
substances, specifically methamphetamines, and that
Lindsey shot the drug into his arms. As defense counsel
argued to the jury, “Mr. Lindsey was a man who
mainlined speed, shot it up his arm.”
51
612 So. 2d at 1300.
Especially in light of these findings, we find no performance error.
Johnson’s attorneys adequately prepared for Lindsey’s testimony, even hiring an
investigator, and challenged Lindsey’s character, motives, and credibility on cross.
Absent a showing that real impeachment evidence was available and could have
been, but was not, pursued at trial, Johnson cannot establish that the cross
conducted by his attorneys fell outside the range of professionally competent
assistance. Claims that an attorney should have cross-examined further on
inconsequential matters do not establish constitutionally deficient performance.
See Mills v. Singletary, 63 F.3d 999, 1021 n.36 (11th Cir. 1995). Many of the
inconsistencies highlighted by Johnson are, on this record, inconsequential. As the
district court put it, trial counsel’s “actual cross cast a general shadow over
Lindsey’s character and veracity by bringing out his drug use and hinting at a
motive for lying in the form of an affair between the petitioner and Johnson’s wife.
The court cannot imagine that a jury unpersuaded by this information would have
rejected Lindsey’s testimony based on inconsistencies in some rather minor
details.” 58 F. Supp. 2d at 1356.
Moreover, when an attorney “substantially impeache[s]” the witness, no
claim for ineffectiveness can succeed unless the petitioner comes forward with
52
“specific information” which “would have added to the impeachment of the State’s
witnesses.” Aldrich v. Wainwright, 777 F.2d 630, 636-37 (11th Cir. 1985); see
also Card v. Dugger, 911 F.2d 1494, 1506 (11th Cir. 1990). Without that kind of
information, a petitioner cannot meet his burden of proving a Strickland violation.
Johnson’s arguments fail on this basis as well.
In particular, Johnson’s argument that the other persons at the motel would
have discredited Lindsey’s testimony regarding Johnson’s admissions is
unsubstantiated by the record. Johnson has offered no evidence that any of the
individuals who were present with him in the Oxford motel would have testified in
a way that was inconsistent with the testimony given by Lindsey. Johnson points
only to unsworn statements taken from the men which did not expressly confirm
Lindsey’s testimony about Johnson’s admissions. But none of these statements
indicates that Johnson did not admit to the crime, and none directly contradicts
Lindsey’s testimony. See Card, 911 F.2d at 1506 (finding no ineffectiveness
where “none of the evidence that petitioner claims could have been introduced
directly contradicts or undermines the testimony of” the State’s witness). Johnson
offers only speculation that the missing witnesses would have been helpful. This
kind of speculation is “insufficient to carry the burden of a habeas corpus
petitioner.” Aldrich, 777 F.2d at 636.
53
For all of the foregoing reasons, Johnson cannot establish a Strickland
violation based on the conduct of his trial counsel.17
V.
Johnson’s assertion that his appellate counsel, Mays, was constitutionally
ineffective requires little separate discussion. Johnson contends that appellate
counsel made two main errors. First, according to Johnson, counsel performed
inadequately by presenting only a few grounds for reversal when other, more
substantial objections were available. Second, Johnson contends that counsel’s
brief to the Supreme Court of Alabama was merely a copy of his brief to the Court
of Criminal Appeals, without any attempt to respond to the reasoning of the lower
17
Johnson is plainly not entitled to relief under United States v. Cronic, 466 U.S. 648, 104
S. Ct. 2039 (1984) (holding that Strickland prejudice will be presumed if: (1) counsel is
completely denied; (2) counsel is denied at a critical stage of trial; or (3) counsel “entirely” fails
to subject the prosecution’s case to meaningful adversarial testing). As best we can tell, Johnson
makes two separate arguments based on Cronic. First, he contends that his attorneys’ errors,
viewed in the aggregate, constitute prejudicial ineffective assistance of counsel even if none of
those errors, standing alone, constitutes a Strickland violation. We disagree; to the extent
Johnson’s attorneys committed performance errors, those errors in the aggregate do not warrant
setting aside his conviction. Second, Johnson asserts that his trial attorneys’ failure to challenge
the State’s evidence on the intent issue represents a “fail[ure] to subject the prosecution’s case to
meaningful adversarial testing” within the meaning of Cronic. 466 U.S. at 659, 104 S. Ct. at
2047. But Johnson cites no case providing relief under Cronic based on such a narrow attack on
his counsel’s decision-making. Cronic applies when counsel “entirely” fails to challenge the
prosecution, and that is indisputably not so here. Nor do the cases cited by Johnson have any
applicability to the facts of this proceeding. Compare Young v. Zant, 677 F.2d 792, 798 (11th
Cir. 1982) (pre-Cronic decision finding ineffective assistance where attorney conceded client’s
guilt). Finally, as discussed above, we find no performance error in the choices made by
Johnson’s trial counsel, so the question of whether we must “presume” prejudice never even
arises.
54
court or advance the arguments that (Johnson now feels) should have been
advanced. Johnson insists that, by simply submitting to the Alabama Supreme
Court his prior brief, counsel tacitly assented to the Court of Criminal Appeals’s
unpersuasive analysis, and provided no assistance whatsoever in Johnson’s effort
to obtain direct review from the state supreme court.
The standards applicable to Johnson’s claims of ineffectiveness against trial
counsel apply equally to the charges leveled against his appellate lawyer. See
Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991); Orazio v. Dugger, 876 F.2d
1508, 1513 (11th Cir. 1989). To prevail, Johnson must demonstrate both that his
appellate counsel’s performance fell below reasonable professional standards and
that he was prejudiced by his attorney’s substandard performance. See Strickland,
466 U.S. at 687, 104 S. Ct. at 2064.
Johnson cannot meet this demanding test. Appellate counsel’s choices
regarding which issues to press on appeal were adequate in the circumstances.
Johnson argues that the two guilt-related arguments raised as errors by his
appellate counsel -- that a particular juror should not have been struck for cause
and that a motion for judgment of acquittal should have been granted because the
trial evidence was insufficient to support his conviction -- were two of the less
serious errors that could have been raised. Johnson further claims that, rather than
55
the faulty and weak arguments actually raised, appellate counsel should have
asserted many of the more substantial claims presented in this petition.
It is difficult to win a Strickland claim on the grounds that appellate counsel
pressed the wrong legal arguments where the arguments actually pursued were
reasonable in the circumstances. We have emphasized that even in a death penalty
case, counsel must be “highly selective about the issues to be argued on appeal . . .
.” United States v. Battle, 163 F.3d 1, 1 (11th Cir. 1998). The district court,
having considered the record and Mays’s testimony during the state post-
conviction proceeding, found that Mays had carefully considered many of the
claims now raised in appeal, but ultimately chose to pursue the claims he felt were
most likely to prevail and winnow out the arguments he thought were less
persuasive. We agree. In any event, there was little persuasive foundation, and
little likelihood of success, for many of the arguments Johnson now suggests
should have been pressed on appeal.
Likewise, we reject Johnson’s claim that appellate counsel was ineffective
by failing to address specifically in his petition for a Writ of Certiorari to the
Supreme Court of Alabama the findings and conclusions reached by the Court of
Criminal Appeals. Counsel’s brief was sufficient to alert the Alabama Supreme
Court to the issues reasonably raised before the Court of Criminal Appeals.
56
Moreover there has been no showing regarding the effect, if any, that a different
brief would have had on the outcome of proceedings. Johnson, in short, does not
establish a Strickland violation on the part of his appellate counsel.
VI.
Johnson next asserts that the State violated the rule set forth in Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), when it failed to produce “all
information favorable to the defense” as requested in Johnson’s pre-trial discovery
motion. The items Johnson points to as Brady material are: (1) a report prepared
by the Alabama Bureau of Investigation (“ABI”), which suggested that the police
had identified suspects other than Johnson and contained statements taken from the
men present in the motel room at the time of Johnson’s arrest;18 and (2)
documentary evidence that the State was investigating two other suspects in
connection with the murder of Mr. Cantrell.19 Johnson claims that the suppressed
information could have been used to impeach the testimony of two of the state’s
witnesses, Lindsey and Sergeant Newell.
18
In the report, the chief investigator, Sergeant Newell, noted that an (unnamed)
informant had told authorities that Garland and Wayne McCulloch “did the shooting.”
19
This evidence includes: (1) an undated set of notes which indicated that a woman
named Louise Blevin told someone that Garland McCulloch would do anything for money, had
guns, and was a companion to Johnson and others; (2) a sheet of paper with “Garland #1"
scribbled on it; and (3) a page of notebook paper with the names Ray McCulloch, Garland
McCulloch, Wayne McCulloch, and Jerry, along with the words “beverages,” “Hartselle,” and
“79 Olds.”
57
The Brady legal framework is well-settled. “There are three essential
components of a true Brady violation: the evidence at issue must be favorable to
the accused, either because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully or inadvertently;
and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281, 119 S.
Ct. 1936, 1948 (1999). Thus, to prove a Brady claim, a party must show: “(1)
suppression by the prosecution (2) of exculpatory evidence (3) material to the
issues at trial or sentencing.” Kennedy v. Herring, 54 F.3d 678, 682 (11th Cir.
1995). Included in the materiality prong of Brady analysis is a requirement that the
petitioner make a showing of actual prejudice. See id. To demonstrate prejudice,
the petitioner must “convince us that there is a reasonable probability that the result
of the trial would have been different if the [allegedly suppressed items] had been
disclosed to the defense. In other words, the question is whether the favorable
evidence could reasonably be taken to put the whole case in such a different light
as to undermine confidence in the verdict.” High v. Head, 209 F.3d 1257, 1267
(11th Cir. 2000) (citations and internal quotation marks omitted); see also Strickler,
527 U.S. at 289-90, 119 S. Ct. at 1952 (“‘the question is not whether the defendant
would more likely than not have received a different verdict with the evidence, but
58
whether in its absence he received a fair trial, understood as a trial resulting in a
verdict worthy of confidence”) (citation omitted).20
Johnson does not contend that the items in question are exculpatory in the
sense that they would have been used in the defense’s case-in-chief. Nor does he
contend that, if he had access to these items, he would have used them as leads to
conduct an investigation into the identity of the “real” shooters or even the identity
of the unnamed source referenced in the ABI report. Instead, Johnson contends
only that they could have been used for impeachment during cross examination.
The duty to disclose can include impeachment evidence. See United States v.
Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380 (1985). The problem for
Johnson, however, is that he fails to show that the State’s failure to produce these
materials caused him prejudice.
Johnson contends that he could have used the ABI report to impeach
Sergeant Newell. According to Johnson, information contained in the report not
only suggests the involvement of other suspects, particularly Garland and Wayne
McCulloch, but also contains an allegation (attributed to the unnamed source) that
the McCulloch brothers “did the shooting.” Johnson argues that this evidence
20
Materiality is to be determined collectively, not item-by-item. See United States v.
Scheer, 168 F.3d 445, 452 (11th Cir. 1999).
59
tends to establish that the two McCullochs were the shooters, and that he, at best,
was the “third man.” But Johnson makes no effort to explain, let alone
demonstrate from the record, how he permissibly could have used this information
from the ABI report for the narrow purpose of discrediting specific direct
testimony by Sergeant Newell during a cross-examination of that witness. Nor
does Johnson explain how his asserted inability to “impeach” Sergeant Newell
with this allegation from an unnamed source was so devastating to the defense as
to undermine confidence in the verdict. To reiterate, Johnson does not argue that
the report as a whole or the underlying suggestion from the unnamed source that
the McCullochs “did the shooting” would have been admissible as substantive
evidence for the defense.21 Even assuming that the report, and in particular the
unnamed source’s reference to the McCullochs as doing the shooting, could
properly have been invoked at all during the cross-examination of Sergeant
Newell, its use at that point and thereafter during the trial would have been
extremely limited, and its potential persuasive value would have been
correspondingly limited.
21
At oral argument, Johnson’s present counsel conceded that the actual report would not
be admissible.
60
Of course, to the extent the ABI report or the investigative notes merely
suggested that there may have been participants other than Johnson in the
attempted robbery of the Cantrells, that information does not establish that Johnson
was not involved, or indeed that he was not the “second man.” More to the point,
we are unconvinced that evidence of that sort -- identifying additional participants
in the crime, but not directly disputing Johnson’s presence or status as the “second
man” -- could have been used to discredit in any meaningful way Sergeant
Newell’s testimony. Significantly, there was already evidence before the jury
regarding the alleged involvement of other participants.
As for the statements of the men present in the motel room with Johnson, a
similar analysis applies. Johnson asserts that these statements would have been
useful to impeach Lindsey, because they are inconsistent with Lindsey’s testimony.
But none of these witness statements directly contradicted Lindsey’s testimony
about Johnson’s admissions. These witness statements do not corroborate
Lindsay’s story, and in that sense might have be used to challenge Lindsey’s
testimony. But the statements do not actually dispute Lindsey’s testimony
regarding Johnson’s admissions, and as noted above Lindsey’s credibility was
already amply called into question during cross-examination. Johnson fails to
show that the unavailability of the statements for the limited purpose of using them
61
in cross examination was so serious as to undermine confidence in the verdict.
Accordingly, having reviewed the record, we find that the allegedly suppressed
items -- viewed individually or collectively -- were not material, and hence there
was no Brady violation entitling Johnson to relief. See Moore, 240 F.3d at 915-16
(no Brady violation entitling petitioner to habeas relief where petitioner failed to
show prejudice from the allegedly suppressed items).
VII.
Johnson’s final claim on appeal is that the jury instructions violated the
Supreme Court’s holding in Cage v. Louisiana, 498 U.S. 39, 111 S. Ct. 328 (1990)
(per curiam), overruled in part, Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475
(1991), because it lowered the government’s burden below proof beyond a
reasonable doubt. We find no error entitling Johnson to relief.22
In a criminal case, the government must prove each element of a charged
offense beyond a reasonable doubt. See, e.g., In re Winship, 397 U.S. 358, 361, 90
S. Ct. 1068, 1072 (1970). Although a court must instruct the jury that a
defendant’s guilt has to be proven beyond a reasonable doubt, the Supreme Court
has stated that “the Constitution neither prohibits trial courts from defining
22
There is no dispute that Johnson’s attorneys failed to object to the trial court’s
reasonable doubt instruction and failed to raise the issue on direct appeal. To excuse this default,
Johnson again claims ineffective assistance of counsel. We need not resolve that claim,
however, because we find the instruction constitutionally acceptable.
62
reasonable doubt nor requires them to do so as a matter of course.” Victor v.
Nebraska, 511 U.S. 1, 5, 114 S. Ct. 1239, 1243 (1994). If a trial court does attempt
to define reasonable doubt, it must explain the standard correctly, although “the
Constitution does not require that any particular form of words be used in advising
the jury of the government’s burden of proof.” Id.
When reviewing the correctness of reasonable-doubt charges, the Supreme
Court has phrased the proper constitutional inquiry as “‘whether there is a
reasonable likelihood that the jury understood the instructions to allow conviction
based on proof insufficient to meet the Winship standard.’” Harvell v. Nagle, 58
F.3d 1541, 1542-43 (11th Cir. 1995) (quoting Victor, 511 U.S. at 6, 114 S. Ct. at
1243). We consider the instruction as a whole to determine if the instruction
misleads the jury as to the government’s burden of proof. See id.; see also Victor,
511 U.S. at 5-6, 114 S. Ct. at 1243 (instructions must be “taken as a whole”); Cage,
498 U.S. at 41, 111 S. Ct. at 329 (explaining that “[i]n construing the instruction,
we consider how reasonable jurors could have understood the charge as a whole”).
At the close of the evidence at Johnson’s trial, the judge gave the jury a
lengthy instruction on reasonable doubt. Johnson contends that the instruction was
flawed because, in the course of the instruction, the trial judge (1) equated “beyond
reasonable doubt” with “moral certainty”; (2) referred to a reasonable doubt as an
63
“actual and substantial one,” or a “a doubt for which a good reason can be given or
assigned”; and (3) said that in “the final analysis” each juror would have to look
into his “own heart and mind” for the answer. Johnson asserts that these comments
effectively lowered the burden of proof below the reasonable doubt standard.
In Cage, the petitioner had been convicted of first degree murder and
sentenced to death. During the trial, the court instructed the jury as follows:
If you entertain a reasonable doubt as to any fact or
element necessary to constitute the defendant’s guilt, it is
your duty to give him the benefit of that doubt and return
a verdict of not guilty. Even where the evidence
demonstrates a probability of guilt, if it does not establish
such guilt beyond a reasonable doubt, you must acquit
the accused. This doubt, however, must be a reasonable
one; that is one that is founded upon a real tangible
substantial basis and not upon mere caprice and
conjecture. It must be such doubt as would give rise to a
grave uncertainty, raised in your mind by reasons of the
unsatisfactory character of the evidence or lack thereof.
A reasonable doubt is not a mere possible doubt. It is an
actual substantial doubt. It is a doubt that a reasonable
man can seriously entertain. What is required is not an
absolute or mathematical certainty, but a moral certainty.
498 U.S. at 40, 111 S. Ct. at 329 (emphasis in original omitted)
The Court held that this instruction ran afoul of Winship. According to the
Court, even though the charge did at one point instruct the jury that to convict the
defendant, guilt must be found beyond a reasonable doubt, it improperly went on to
equate a reasonable doubt with a “‘grave uncertainty’” and an “‘actual substantial
64
doubt.’” “It is plain to us,” said the Court, “that the words ‘substantial’ and
‘grave,’ as they are commonly understood, suggest a higher degree of doubt than is
required for acquittal under the reasonable-doubt standard. When those statements
are then considered with the reference to ‘moral certainty,’ rather than evidentiary
certainty, it becomes clear that a reasonable juror could have interpreted the
instruction to allow a finding of guilt based on a degree of proof below that
required by the Due Process Clause.” Id. at 41, 111 S. Ct. at 329-30.
Cage is limited precedent because it has been modified by subsequent
decisions. In Cage, as noted above, the Court had merely asked whether a
reasonable jury, viewing the challenged instruction as a whole, “could” have
construed it in a way that would violate Winship. In Estelle, however, the Court
explained that the appropriate standard is whether there exists a “reasonable
likelihood” that the jury read the instruction to lower the required threshold. 502
U.S. at 72, 112 S. Ct. at 482; see also Victor, 511 U.S. at 5-6, 114 S. Ct. at 1243
(“The constitutional question . . . is whether there is a reasonable likelihood that
the jury understood the instructions to allow conviction based on proof insufficient
to meet the Winship standard.”).
In Victor, the Court used that new test to find that a trial court’s use of the
term “moral certainty” did not result in a constitutional violation on the record
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before it. The Court reasoned that “[w]e do not think it reasonably likely that the
jury understood the words ‘moral certainty’ either as suggesting a standard of
proof lower than due process requires or as allowing conviction on factors other
than the government’s proof.” Id. at 16, 114 S. Ct. at 1248. In a companion case,
Sandoval v. California, 511 U.S. 1, 114 S. Ct. 1239 (1994), the Court rejected the
argument that equating a reasonable doubt with an “actual and substantial” doubt
lowered the degree of doubt permissible for a conviction. Although the Sandoval
Court found the disputed language “somewhat problematic,” it concluded that “the
context makes clear that ‘substantial’ is used in the sense of existence rather than
magnitude of the doubt.” Id. at 19-20, 114 S. Ct. at 1250.
Here, the trial judge employed “beyond a reasonable doubt” and “to a moral
certainty” interchangeably and even informed the jury that the two terms were
synonymous. But other portions of the instruction ensured that the “moral
certainty” language would not reasonably be understood to lower the State’s
burden. We have specifically recognized that the use of the term “moral certainty”
in a reasonable doubt instruction is not fatal. See Felker v. Turpin, 83 F.3d 1303,
1309 (11th Cir. 1996) (trial court’s definition of reasonable doubt as “‘doubt which
is based on the evidence, a lack of evidence or a conflict in the evidence’” and
“‘doubt which is reasonably entertained as opposed to vague or fanciful or
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farfetched doubt,’ served to erase any taint created by the term ‘moral certainty’
and to thus place it beyond the potential for constitutional harm”); Harvell, 58 F.3d
at 1543 (trial court’s statements that reasonable doubt had to be derived from the
evidence and that reasonable doubt could not be “fanciful, vague, whimsical,
capricious, conjectural or speculative” cured any potential constitutional harm
associated with the term “moral certainty”).
The instruction in this case included substantial language echoing the key
phrases in Felker and Harvell. Specifically, the trial judge in this case repeatedly
informed the jury that it could not convict Johnson unless the evidence presented to
it was inconsistent with any reasonable theory of innocence; the judge also
repeatedly instructed the jury not to go beyond the evidence and engage in
speculation in order to find Johnson guilty.23 The instruction as a whole, which
emphasized the jury’s obligation to focus on the evidence presented in court and
made abundantly clear that a conviction could not be based on speculation,
23
For example, the trial court advised the jury that “it [is] the duty of the State to show . . .
to the exclusion of every other reasonable hypothesis every circumstance necessary to show that
the Defendant is guilty.” The court added that “if, after hearing all the evidence, your mind is
left in such a state that you must resort to speculation or guesswork as to the Defendant’s guilt or
innocence, then the State has not proved to you beyond a reasonable doubt that the Defendant is
guilty, and you must acquit.” And the court emphasized that “a reasonable doubt is not a
fanciful doubt. It is not a vague or speculative or uncertain doubt . . . .” Similar language
appears throughout the court’s detailed instruction.
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convinces us that it was not reasonably likely that the jury understood the
instructions to allow conviction based on proof insufficient to satisfy Winship.
The trial judge’s references to “actual and substantial” doubt do not change
that conclusion. As we said in Harvell:
Although the use of the term “actual and substantial doubt” is
somewhat problematic and perhaps even ill-advised, the Supreme
Court made clear, subsequent to Cage, that the use of such a term in
the proper context, bolstered by adequate explanatory language, can
survive constitutional scrutiny. See Victor . . . . The instruction
challenged in Victor provided in part:
A reasonable doubt is an actual and substantial doubt
arising from the evidence, from the facts or
circumstances shown by the evidence, or from the lack of
evidence on the part of the state, as distinguished from a
doubt arising from mere possibility, from bare
imagination, or from fanciful conjecture.
The Supreme Court held that the actual and substantial doubt
language did not violate Victor’s due process rights because the rest
of the sentence made clear that substantial was being used in “the
sense of existence rather than magnitude of the doubt.” In other
words, in context, substantial meant actual or real rather than
abundant or plentiful.
The surrounding language in the trial court’s instruction in
Harvell’s case likewise established that substantial meant real and not
imaginary. The trial court accomplished this in two ways. First, as in
Victor, the instruction provided that substantial doubt arises from the
evidence itself, stating that reasonable doubt had to be derived from
the evidence, lack of evidence, or any part of the evidence. Second,
Harvell’s instruction stated that reasonable doubt cannot be fanciful,
vague, whimsical, capricious, conjectural or speculative.
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Id. at 1543 (footnote omitted).
As in Harvell, the surrounding language in the charge given the jury in the
present case, contrasting an “actual and substantial” doubt with other kinds of
doubt, makes clear that the phrase was not intended to require more than a
reasonable doubt. Specifically, the “actual and substantial” language was used to
explain that a “reasonable doubt” was not an imaginative or speculative doubt. In
addition, the trial judge further defined the requisite doubt as “a doubt the evidence
generates when the jury carefully weighing all the evidence cannot say that they
feel an abiding conviction of the defendants’ guilt.” The trial judge’s use of the
phrase “actual and substantial” doubt did not make it reasonably likely (alone or in
conjunction with the other language highlighted by Johnson) that Johnson would
be convicted under a standard of proof below that required by Due Process.24
Viewed as a whole, the trial court’s instruction was constitutionally
acceptable. Johnson’s objections, viewed individually and collectively, do not
prove a Cage violation entitling him to habeas relief; this claim, like his other
claims, is simply not established on this record. Accordingly, we affirm the district
court’s denial of Johnson’s § 2254 petition.
24
The other language in this instruction to which Johnson objects does not give rise to a
constitutional violation in these circumstances.
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AFFIRMED.
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