George Guy Derden, III v. Sheriff Sammie McNeel and Attorney General--State of Mississippi

EDITH H. JONES, Circuit Judge,

dissenting:

The Supreme Court has stated firmly that federal courts’ habeas corpus responsibility must be exercised with due regard for the finality of state court judgments. Coleman v. Thompson, — U.S. -, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); McCleskey v. Zant, — U.S. -, 111 S.Ct. 1454, 1468-69, 113 L.Ed.2d 517 (1991). When Derden appealed his conviction for armed robbery to the Mississippi Supreme Court, he contended that fundamental fairness was violated by the cumulative effect of many of the alleged trial errors raised here. With one exception, the State Supreme Court found all of them meritless to the point that they warranted no discussion. See Derden v. State, 522 So.2d 752, 755 (Miss.1988). The State Supreme Court did rule that the prosecutor violated Mississippi law in the conduct of voir dire on the co-conspirators’ testimony, but it held that this error was later cured by the trial court’s jury instruction.1

To reach its conclusion that “cumulative error” caused a conviction that violates due process, the panel majority have read the record diametrically differently from the State Supreme Court. The majority’s scatter-gun cumulation of “error” allows a series of unconnected events in the trial, several of which would not even be considered errors of state, much less constitutional law, to vitiate a jury verdict supported by considerable evidence. I cannot reconcile the majority’s freewheeling reading of the record with the restraint that we are to exercise under § 2254, and I must therefore respectfully dissent from their granting of the writ.

But first, I do not necessarily disagree that habeas corpus might be granted for a series of trial court errors, not individually reversible, that so poisoned the state trial court atmosphere as to cause, on the whole record, a questionable guilty verdict. The Supreme Court found such an aggregation of error in Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), where several flaws in the state trial shared the common theme of failing to inform the jury that criminal guilt must be *619proved beyond a reasonable doubt. This court also essentially relied on a “cumulative error” theory when it granted the writ to a defendant whose trial was overshadowed by an ambiguous stipulation that prevented him from arguing an insanity defense while the prosecutor repeatedly asserted, contrary to overwhelming medical evidence, that defendant could not have been insane when he murdered his wife and slashed his wrists. Guidroz v. Lynaugh, 852 F.2d 832, 837 (5th Cir.1988). See also Lundy v. Campbell, 888 F.2d 467, 481 (6th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2212, 109 L.Ed.2d 538 (1990); Bell v. Duckworth, 861 F.2d 169, 170 (7th Cir.1988), cert. denied, 489 U.S. 1088, 109 S.Ct. 1552, 103 L.Ed.2d 855 (1989); Matlock v. Rose, 731 F.2d 1236, 1242 (6th Cir.1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1747, 84 L.Ed.2d 812 (1985). Our decision in Mullen v. Blackburn, 808 F.2d 1143 (5th Cir.1987), does not reach the possibility of cumulative error as a basis for habeas relief. Mullen merely rejected the theory that “would encourage habeas petitioners to multiply claims ... even if none of these had any merit.” Id. at 1147

These cases, however, highlight obvious limitations necessary to impart some principles to the “cumulative error” theory, so that it does not encourage federal courts simply to overturn convictions they viscerally disagree with. First, the theory refers to errors in the trial court. A defendant may not just complain of unfavorable rulings or events in the effort to cumulate errors. See United States v. Rivera, 900 F.2d 1462, 1470 (10th Cir.1990) (en banc). Second, a defendant must have objected to the alleged error, not only because of procedural bar, but also because it is too easy, reviewing a cold record, to misinterpret the impact of evidence or comments at trial. See, e.g., United States v. Canales, 744 F.2d 413, 431 (5th Cir.1984). The absence of an objection powerfully suggests that defense counsel did not really find the trial court’s or opposing counsel’s action offensive. Third, as is typical in habeas review, the court must review the record as a whole to determine whether the errors more likely than not caused a suspect verdict. Kirkpatrick v. Blackburn, 777 F.2d 272, 279, 281 (5th Cir.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907, 90 L.Ed.2d 993 (1986). These limitations, while acknowledged by the majority, are nevertheless distorted by their analysis, I hope to demonstrate that there were not so many “errors” with an adverse impact upon Der-den that even though none of them would rise to constitutional significance, together they denied him a fundamentally fair trial. Further, this verdict was not so tenuously supported as the majority suggest.

I. The “Errors”

The fundamental question is whether the jury could have been so powerfully influenced by trial “errors” that their reasoning processes were fatally flawed. The majority point to three sources of “error”: comments by the trial court; two instances of prosecutorial misconduct; and a Brady violation. I question .whether any of these events, apart from the prosecutor’s voir dire about co-conspirator testimony, amounted to “error” individually or cumulatively.

A. The Judge

The panel majority devote most of their criticism to the state trial judge’s alleged intemperance toward Derden. What each event reflects to me, however, is at best ambiguity. For instance, I agree that it would have been more prudent had the judge not instructed Derden at one point not to look at the jury. Nevertheless, the court was acting within his authority to make some comment, because Derden had begun a speech, wholly unresponsive to the prosecutor’s question, directly trying to appeal to the jury.2 Repeatedly, Derden’s *620responses to questioning by the prosecutor and his own attorney had been unresponsive and narrative. The court continuously cautioned Derden about this conduct. The judge had just instructed Derden twice on the preceding page of transcript, and at other times, to answer questions directly. Can we really say in hindsight that the trial court here abused his discretion, much less that the jury became inflamed against Der-den because of the judge’s instruction?

When, during defendant’s closing argument, the court responded to the prosecutor’s objection by saying he did not hear defense counsel’s argument, this candor might have been regrettable. But in the end the court did not sustain the objection and defense counsel proceeded. The record does not provide a context for this remark; perhaps the judge was reviewing exhibits or otherwise engaged in an activity that legitimately drew his attention from the argument.

Derden also objects to the court’s having sustained four objections to his counsel’s opening argument. This, too, was raised on direct appeal as an abuse of discretion, and the State Supreme Court found no error under the particular circumstances, not even pausing to write on the matter. The prosecutor’s opening argument was extremely brief. Defense counsel could have summarized his contentions with similar brevity by saying that the co-conspirators were all lying, because their stories were completely inconsistent and each had received a deal from the prosecutor in order to “get” Derden. Instead, he embarked on a rambling preview of the likely evidence. Surely the trial judge was entitled to preserve symmetry in the length and style of opening remarks, both to maintain control of his courtroom and because attorneys’ statements, however well-motivated, are not evidence.

Finally, the majority repeat instances in which the court admonished defense counsel in various ways during trial. Juxtaposing these comments to highlight their effect is misleading; the trial court transcript, which I have fully reviewed, is 650 pages long. It is virtually impossible to say, reading a long, cold record, that these sporadic remarks so denigrated the defense counsel as to have destroyed the jury’s impartiality toward Derden. Derden’s trial counsel did not think most of them significant enough to point out specifically in his brief to the Mississippi Supreme Court.3 Nor, of course, did he object to any of them in the trial court.

Contrary to Derden’s charge of trial court bias, the record reveals other instances during trial in which the court aided defense counsel. The court insisted that the prosecutor obtain records not readily available to them of Sherrod’s criminal activities in order to assist defense counsel’s impeachment. The court also allowed hearsay questioning by defense counsel during a preliminary hearing and at trial. On *621balance, the court appears to have conducted the trial irreproachably, evenhandedly ruling on both sides’ objections.

It is one thing for us, familiar with the personalities in the federal court system, to declare that a court has effectively taken over the prosecution. See United States v. Middlebrooks, 618 F.2d 273, 277 (5th Cir.), cert. denied, 449 U.S. 984, 101 S.Ct. 401, 66 L.Ed.2d 246 (1980); United States v. Candelaria-Gonzalez, 547 F.2d 291, 297 (5th Cir.1977); United States v. Sheldon, 544 F.2d 213, 219 (5th Cir.1976); United States v. Diharce-Estrada, 526 F.2d 637, 638, 640 (5th Cir.1976). It is quite another if we, never having even met the trial judge or examined his record, condemn the “tone” of his courtroom from the abstract vantage point of an ambiguous record.4 I am not persuaded that where none of the comments individually attributed to the court is even an abuse of discretion, they acted cumulatively or in tandem with other events to poison the jury against the defendant.

B. The Prosecutor

The prosecutor admittedly overstepped his bounds according to Mississippi law when in voir dire he tried to commit the jury to evaluate the co-conspirators’ testimony like any other. This state law error, the State Supreme Court held, would have been reversible if the trial court had not properly instructed the jury at the end of trial to beware of such testimony. Derden, 522 So.2d at 754-755. This cured error was not of constitutional magnitude alone, and it is not sufficient to grant the Great Writ.

The prosecutor also erred in asking Sher-rod to reveal Derden as his accomplice in other robberies.5 But this misstep was immediately corrected by the trial court's instruction to the jury to disregard. If Der-den had been tried in federal court, a violation of Fed.R.Evid. 404(b) might have occurred — neither a constitutional error nor reversible in itself, particularly because of the trial court’s prompt curative instruction. See, e.g., Woodruff v. Lane, 818 F.2d 1369, 1373 (7th Cir.1987); Sargent v. Armontrout, 841 F.2d 220, 224 (8th Cir.1988). As it was, the prosecutor attempted to breach a Mississippi rule of evidence. A violation of state evidentiary rules, however, is irrelevant in habeas cases, where the only issue is whether the trial violated constitutional norms. Hopkinson v. Shillinger, 866 F.2d 1185, 1197 (10th Cir.1989). Yet, the majority make no effort to show that the prosecutor’s conduct was “conspicuously prejudicial” — the standard for determining whether the admission of evidence denied a defendant due process. Id.; Woodruff, 818 F.2d at 1373. Instead, the majority summarily conclude that the mere attempted violation of a state rule of evidence “contributed significantly to petitioner’s denial of due process.”

This conclusion is flawed for two reasons. First, if this error was as significant as the majority believe, certainly Derden should have requested a mistrial. Instead, Derden chose to rest on the trial court’s instruction to disregard, strongly suggesting that the prejudicial impact of this error, considered in light of the judge’s curative instruction, was minuscule. Second, as was held by our sister circuit courts, the United States Constitution is not infringed by an attempt to introduce testimony excluded only by state evidentiary rules. Such a conclusion improperly gives state rules a constitutional east.

I do not condone overzealous prosecutorial tactics. Here, however, such tactics were cabined by the trial court’s curative instructions, and no mistrial was timely sought by defense counsel. How can our *622antiseptic review of the record find a lack of fundamental fairness that defense counsel wholly overlooked during trial? The charge of prosecutorial misconduct fails as a basis for “cumulative error” habeas relief because our standard of review is “the narrow one of due process, and not the broad exercise of supervisory power.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2472, 91 L.Ed.2d 144 (1986).

C. The “Brady” Violation

The alleged Brady violation likewise furnishes no assistance to Derden. If the prosecutor had turned over evidence that no police radio call was made on the robbery until 2:00 a.m., it is not clear that such evidence would have been exculpatory. The police might have acted on their report slowly. Other witnesses placed the burglary between 12:00 and 1:00 a.m. If the co-conspirators’ and witnesses’ sense of the time was incorrect, that does not cast doubt that a burglary occurred, nor does it demonstrate in any greater degree their prevarication about Derden’s involvement. I disagree that the evidence on police call sheets was material, exculpatory, or affirmatively suppressed by the prosecution, all of which are prerequisites to a Brady claim.

D. The “Cumulative Impact”

According to my analysis, it is impossible to say that the trial judge abused his discretion except possibly in the relatively minor points of his one admonishment to Der-den not to face the jury and the observation that he did not hear a point of defense counsel’s argument. Similarly, the trial judge’s curative instructions to the jury with respect to the two instances of alleged prosecutorial misconduct significantly reduced the risk of prejudice to Derden. The combination of these events simply does not add up to a violation of due process. The majority ignore Derden’s failure to interpose objections to most of the “errors” by the judge that supposedly resulted in an unfair trial. In doing so, they have deprived the trial court of the opportunity to correct those “errors” in the first instance, and allowed Derden to “ride the verdict” and obtain a reversal on the basis of “hip-pocket” errors.6 The majority also overlook the fact that the federal courts are committed to the theory that juries can disregard errors when properly instructed. See Darden, 106 S.Ct. at 2472 & n. 15 (1986); Donnelly v. DeChristoforo, 416 U.S. 637, 644, 94 S.Ct. 1868, 1872, 40 L.Ed.2d 431 (1974); United States v. Magee, 821 F.2d 234, 241-42 (5th Cir.1987). Yet, the presence of curative instruction in each alleged instance of prosecutorial conduct plays no role in the majority’s analysis of fundamental fairness.

Finally, the majority fail to consider the length of Derden’s trial. Isolated errors weigh less heavily than repeated errors that permeate the entire trial. See, e.g., United States v. Nickerson, 669 F.2d 1016, 1020 (5th Cir.1980). Given the length and thoroughness of this trial, I find it difficult to imagine that the jurors were so influenced by the judge’s and prosecutor’s conduct that they would not appraise the evidence objectively and dispassionately. The record fairly establishes that the instances recounted by the majority were aberrations, and not cumulative evidence of a proceeding dominated by passion and prejudice.

II. The Verdict

The “errors” alleged by Derden cannot rise to constitutional significance unless it is likely that they affected the outcome of trial. The evidence does not support such an inference.

The jury was fully aware that Derden’s three co-conspirators who testified against him had each received favorable treatment *623from the prosecutors. Turner and Posey also testified that they gave the prosecutor statements about the burglary before any plea bargain was reached. The alleged inconsistencies in their testimony related only to the times at which they all arrived back in West Point during the middle of the night, following the attempted burglary. Derden contended it was impossible for Turner to have driven his van on a three-hour odyssey after the burglary was interrupted and then to have gotten back to West Point before Sherrod and Posey, who hitched a ride more directly. That timing inconsistency arose only because the farmer’s son who gave a ride to Sherrod and Posey testified that he dropped them off in West Point just after 2:00 a.m. At least two resolutions of this inconsistency could have been reached by the jury other than the exculpatory conclusion that the co-conspirators were lying: the farmer’s son read the clock wrong at those late hours; or Turner incorrectly estimated his route and delays during the rainy night.

Other incriminating evidence was in the record against Derden. His van was used in the burglary. He was stopped and ticketed at 3:45 a.m. for not having working tail lights on his van; this was an unusual hour to be on the road. The alibi, that he and Pam Smith were measuring for carpet until nearly midnight at houses in Houston, Mississippi that they could not later identify, seems strained. The prosecutor cross-examined Derden most effectively on his alibi testimony, as even defense counsel admitted at the outset of his closing argument. And, with defense counsel’s approval, the court admitted Derden’s statement which contained hearsay that the owner of the Apollo Club, a former partner of Der-den’s, had not seen him on the night of the robbery. This contradicted Derden’s alibi.7

The case against Derden thus posed a swearing match between Derden and his defense witnesses and the co-conspirators, together with some objective evidence. It was the jury’s duty to resolve the dispute, and it can hardly be argued that no rational jury could have decided against Derden on the record.

III. Conclusion

From the events recounted so vehemently by the majority in support of their conclusion, I draw a starkly different lesson. To the extent trial court errors occurred, they were either addressed during trial and were thus cured or were not thought as significant by defense counsel then as they are now portrayed. If there were no errors, there can be no “cumulative error” grant of habeas relief. Mullen, 808 F.2d at 1147. Even assuming that one or two of these events constituted error, however, the unanimous Mississippi Supreme Court and the federal district judge agreed with my view of the fundamental fairness of the proceedings, although the magistrate judge and the panel majority do not. It would seem that when reasonable minds differ about the cumulative effect of highly disparate events at trial, a finding that favors the regularity of the state court proceedings is warranted. Cf. Taylor, 436 U.S. 478, 487 & n. 15, 98 S.Ct. 1930, 1936 & n. 15, 56 L.Ed.2d 468 (errors were all related toward diminishing the standard of proof).

The majority state that this case is fact-specific in warranting habeas relief. I disagree. Its impact extends further because it suggests that an aggregation of adverse trial events may, given the right federal tribunal, garner a writ of habeas corpus. The Constitution does not guarantee a perfect trial, however, only a fair one. Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986). When we grant the writ for lack of fundamental fairness, we must delimit those cases much more carefully than, I fear, has been done here. I respectfully DISSENT.

. Derden, 522 So.2d at 754. The trial court agreed to give defense counsel’s proffered instruction that, “I charge you that Jay Posey, Willie James Sherrod and Tommy Turner have admitted being accomplices to this burglary. You are to regard this testimony with great suspicion and to consider it with caution."

. Q: That’s a receipt that you had, is that right, Mr. Derden? You testified from a gas ticket that you had, a receipt that you had put nine — so many gallons of gas in your — in your van on — on the ninth of February, is that right?

A: I certainly did, yes, sir.

*620el: Now, of course, there’s nothing on that thing to tell us when that was made out, is there, Mr. Derden?

A: Well I’ve been in jail, ladies and gentlemen, since January twenty, eighty — eighty-five—

THE COURT:

Just a minute. Face the layer and answer the lawyer’s questions, and you do not address the jury, you understand? I’m not going to caution you about this again.

. The numerous appellate points raised by Der-den in the Mississippi Supreme Court relative to the fundamental fairness of the trial were: (A) Evidence of fundamental unfairness was adduced at the pretrial hearing; (B) the prosecution’s obtaining promises by the jurors to believe the State’s co-conspirator witnesses, contributed to the denial of a fair trial; (C) the trial judge’s frustrating defense counsel's attempt to make an opening statement contributed to an unfair trial; (D) the trial judge’s commenting that neither he nor the jury "cared” about one of the accused's defenses, contributed to the denial of a fair trial; (E) the trial judge’s continuous correction of the accused, and admonitions to him in front of the jury, contributed to the denial of a fair trial; (F) the trial judge’s admission of the hearsay statement by Richard Dis-muke that Derden had not been at the Apollo Club on the night of the burglary in question contributed to the denial of a fair trial; (G) the two and one-half year delay in the trial contributed to the denial of a fair trial; (H) permitting the co-indictee, Pam Smith, to be cross-examined about her failure to come forward with a statement concerning the burglary, contributed to the denial of a fair trial; and (I) permitting the jury to hear evidence of other crimes contributed to the denial of a fair trial.

. The Mississippi Supreme Court had the opportunity to consider Derden’s fundamental fairness argument and rejected it out of hand, without discussion. Mississippi’s highest court is far more likely than we are to know personally the record of the trial judge, the prosecutor and defense counsel and to be able to draw meaningful inferences from this record.

. Although the trial court refused to permit an in camera objection to this testimony before it was given, one can hardly fault the trial court for abuse of discretion. It was not obvious from the prosecutor’s preliminary questions that error was imminently in-the-making, and the court so observed.

. It is a nice question, whether, when "cumulative error” is the proposed basis for habeas relief, and a petitioner relies upon instances of judicial bias, he procedurally defaults every individual error that he did not bring before the state courts. See Coleman v. Thompson, — U.S. -, 111 S.Ct. 2546, 115 L.Ed.2d 640. If this is so, and it seems a likelihood, Derden is confined to the three issues of judicial misbehavior that he raised in the Mississippi Supreme Court. See Note 3, supra.

. Defense counsel prominently relied on the "erroneous" admission of Dismuke’s hearsay statement in his state appeal brief and his habeas application to the district court. He erred in so doing, as the record shows.