Taylor v. Singletary

United States Court of Appeals,

Eleventh Circuit.

No. 95-4551.

John Edward TAYLOR, Petitioner-Appellant,

v.

Harry K. SINGLETARY, Secretary, Florida Department of Corrections, Respondent-Appellee.

Sept. 26, 1997.

Appeal from the United States District Court for the Southern District of Florida. (No. 92-2689-CIV-
EBD), Edward B. Davis, Judge.

Before KRAVITCH and BARKETT, Circuit Judges, and HARRIS*, Senior District Judge.

BARKETT, Circuit Judge:

John Edward Taylor appeals the district court's denial of his petition for a writ of habeas

corpus. In the petition, Taylor claims that the trial court abused its discretion when it denied his

request to be tried after his codefendant Jesus Ortiz. As a result of the order of trials, Ortiz refused

(on Fifth Amendment grounds) to offer material and exculpatory testimony on Taylor's behalf. We

agree with the district court that the trial court violated Taylor's constitutional rights by effectively

depriving him of a material witness's testimony. However, the district court then asked whether the

trial court's error was harmless under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123

L.Ed.2d 353 (1993), when, given the nature of the trial court's error, no such review was necessary.
Kyles v. Whitley, 514 U.S. 419, 434-37, 115 S.Ct. 1555, 1566-67, 131 L.Ed.2d 490 (1995). We

conclude that Ortiz's testimony was sufficiently material and favorable to Taylor that its absence

from the trial undermines confidence in the jury's verdict. Therefore, we reverse.

I. BACKGROUND

Taylor and his codefendant Ortiz were charged with the first degree murder of Andrew

Sweet. After the trial court granted Ortiz's motion for severance, Taylor moved to be tried after

Ortiz so that Ortiz could provide exculpatory testimony on Taylor's behalf. In support of his motion,

*
Honorable Stanley S. Harris, Senior U.S. District Judge for the District of Columbia, sitting
by designation.
Taylor submitted an affidavit written by Ortiz which stated that Ortiz would assert his Fifth

Amendment privilege until after his trial, but that after his conviction or acquittal he would provide

exculpatory testimony at Taylor's trial. The affidavit did not proffer the details of Ortiz's potential

testimony, but it authorized his lawyer to make a detailed proffer in camera. The trial judge

declined to hear the proffer in camera, assumed for the sake of argument that Ortiz would provide

exculpatory evidence, and stated that Taylor's appellate rights would be protected in that regard.

The trial court then denied Taylor's motion and scheduled Taylor's trial first. Just prior to trial,

Taylor again moved to be tried after Ortiz. The trial court again denied the motion, and reassured

Taylor that he did not need to make a proffer as to Ortiz's testimony at that time.

At Taylor's jury trial the government presented two pieces of evidence connecting Taylor

to the murder. The government introduced a questionable identification which placed Taylor at the

victim's apartment on the day of the murder and a statement which Taylor had made during custodial

interrogation in which he said he had gone to the victim's apartment with an unidentified Cuban

male, who stabbed the victim after purchasing cocaine from him.1 No physical evidence linking

Taylor to the crime was presented. In his defense, Taylor called Ortiz to the stand, but Ortiz invoked

his Fifth Amendment privilege. Taylor's counsel represented to the court that if Ortiz had not

invoked the privilege, Ortiz would have testified that he was at the victim's house on the day of the

murder with "Mark," not with Taylor.
Taylor was convicted of first degree murder on August 5, 1983. At Ortiz's subsequent trial,

Ortiz testified that on the day of the murder he went to the victim's apartment with Mark. He further

testified that when he left, Mark remained at the apartment and the victim was still alive. Ortiz was

acquitted. On direct appeal and in a subsequent motion to vacate the judgment and sentence in state

court, Taylor argued that by denying his motion to be tried after Ortiz, the trial court abused its

1
Prior to trial, the trial court held a suppression hearing on the admissibility of Taylor's
statement and the identification made by the two witnesses. The trial court denied Taylor's
motion to suppress. The trial court also denied Taylor's motion to suppress the in-court and
out-of-court identifications, finding that any discrepancies should be dealt with during
cross-examination. Taylor does not appeal these rulings.

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discretion and violated his Fifth and Sixth Amendment right to present material, exculpatory

testimony. Without holding an evidentiary hearing on this issue, the Florida District Court of

Appeal affirmed Taylor's conviction, holding that Taylor's proffer as to Ortiz's testimony was

untimely because it was made after the commencement of trial. Taylor v. State, 472 So.2d 814

(Fla.3d Dist.Ct.App.1985). Taylor's motion for state habeas relief on the same grounds also was

denied, and that denial was affirmed on appeal. Taylor v. State, 509 So.2d 326 (Fla.3d

Dist.Ct.App.1987).

Taylor raised the same constitutional claim in his federal petition for a writ of habeas corpus.

The district court denied Taylor's petition holding that, although Taylor's constitutional right to

present a material, exculpatory witness had been violated, the error was harmless because it did not

have a "substantial and injurious effect or influence in determining the jury's verdict," Brecht v.

Abrahamson, 507 U.S. at 637-38, 113 S.Ct. at 1722.

II. DISCUSSION

It is well-settled that it is within the trial judge's sound discretion to set the order in which

codefendants will be tried. United States v. DiBernardo, 880 F.2d 1216, 1228 (11th Cir.1989);

Byrd v. Wainwright, 428 F.2d 1017, 1022 (5th Cir.1970). In determining the sequence of trials,

however, judicial economy must yield to a defendant's right to a fair trial, and where the sequence

of trials has prejudiced a defendant's defense by infringing upon his ability to present exculpatory
testimony, this court has found an abuse of discretion. See DiBernardo, 880 F.2d at 1228; Byrd,

428 F.2d at 1022. Because the sequence of trials can effectively preclude a defendant from calling

a codefendant to testify on his behalf in the same way that a denial for severance can, the standards

for reviewing denials of severance provide useful guidance in reviewing a denial for a particular trial

order. See Byrd, 428 F.2d at 1021-22 (looking to severance analysis to analyze the sequence of

trials); DiBernardo, 880 F.2d at 1229 (same); Mack v. Peters, 80 F.3d 230, 236-7 (7th Cir.1996)

(same). In particular, the same prejudice standard for reviewing whether a trial court abused its

discretion in denying a motion for severance generally applies for determining whether a trial court

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abused its discretion in scheduling the order of trials.2 Thus, to show an abuse of discretion in

ordering the sequence of codefendants' trials, an appellant must prove that he suffered compelling

prejudice. United States v. Van Hemelryck, 945 F.2d 1493, 1501 (11th Cir.1991) (citing United

States v. Leavitt, 878 F.2d 1329, 1340 (11th Cir.1989)). Moreover, in determining whether to grant

a defendant's motion for a particular trial sequence in the first instance, the trial court must consider:

(1) whether the defendant has a bona fide need for a codefendant's testimony; (2) the substance of

the testimony; (3) the exculpatory nature and effect of the testimony; and (4) the likelihood that the

codefendant will testify for the defendant. Cf. Byrd, 428 F.2d at 1019-22 (enunciating criteria for

granting a motion for severance). Because the nature, substance, and significance of the

codefendant's testimony are relevant to a proper evaluation of the potential prejudice that preclusion

of the testimony would have on the defendant, the defendant must make a "clear showing" as to the

substance of the codefendant's testimony, and that the testimony will be exculpatory. Id. at 1020.

However, "it is not necessary [ ] that the potential testimony of the codefendant bear the imprimatur

of having been given previously in a judicial proceeding under oath," id.; it is enough that the

defendant has made written or oral exculpatory statements in the past, or discussed the content of

those statements with the court, id. Similarly, with respect to factor (4), "[t]he inquiry is not as to

certainty whether the codefendants will or will not testify but the likelihood." Id. at 1022.

At the time Taylor moved to be tried first, Taylor had a bona fide need for Ortiz's testimony,

the substance, nature, and effect of the testimony favored granting Taylor's motion, and it was very

likely that Ortiz would have testified on Taylor's behalf. Throughout the original proceedings in this

case, Taylor clearly stated his intention and desire to call Ortiz as a defense witness, and Ortiz

clearly indicated his willingness, through a signed affidavit and otherwise, to provide exculpatory

evidence on Taylor's behalf after the conclusion of his own trial.

2
With respect to motions for severance, Fed.R.Crim.P. 14 provides: "If it appears that a
defendant or the government is prejudiced by a joinder of offenses or of defendants in an
indictment or information or by such joinder for trial together, the court may order an election or
separate trials of counts, grant a severance of defendants or provide whatever other relief justice
requires."

4
 But the trial court did not consider the substance, nature, or effect of Ortiz's proposed

testimony contemporaneously with its denial of Taylor's motion to be tried after Ortiz. Although

Ortiz offered to proffer the testimony in camera, the trial court refused to hear it. The trial court

assumed for the sake of argument that Ortiz would provide exculpatory evidence and twice assured

Taylor that his rights would be protected if he chose to appeal the denial. However, Taylor's trial

rights were not adequately protected because Ortiz was under no compunction to give a prior sworn

statement against his own interests prior to his trial, and Ortiz did in fact invoke his privilege against

self-incrimination during Taylor's trial. Moreover, there was no reason even suggested, much less

given, for trying Ortiz first. Thus, there was no basis whatsoever to deny Taylor the benefit of

presenting his defense.

In evaluating Taylor's claims, the district court concluded that resolution of this case, and

the issue of prejudice in particular, depended primarily upon the substance, nature, and effect of

Ortiz's testimony, and properly held a hearing to make findings as to that testimony. Based upon

those findings, the district court essentially concluded that the importance of Ortiz's testimony was

such that its effective preclusion caused Taylor to suffer prejudice. We believe that the district

court's ruling in that regard correctly found that the trial court abused its discretion in denying

Taylor's motion to be tried after Ortiz.

After finding constitutional error in the denial of Taylor's motion to be tried after Ortiz, the
district court then conducted a harmless-error review. The court ruled that the error did not warrant

habeas relief because it did not have a "substantial and injurious effect or influence in determining

the jury's verdict," Brecht, 507 U.S. at 637-38, 113 S.Ct. at 1722. However, the district court

incorrectly applied the harmless error test to this claim of a denial of the right to present a material

witness and to mount a defense. The favorable testimony of Ortiz, rendered unavailable by the trial

court, meets the materiality standard articulated in United States v. Bagley, 473 U.S. 667, 105 S.Ct.

3375, 87 L.Ed.2d 481 (1985). Since the constitutional standard for materiality under Bagley

imposes a higher burden on the petitioner than the harmless-error standard of Brecht v. Abrahamson,

5
there is no need for further harmless-error review of the trial court's error. Kyles v. Whitley, 514

U.S. 419, 434-37, 115 S.Ct. 1555, 1566-67, 131 L.Ed.2d 490 (1995). Although Kyles was decided

after the district court issued its order denying Taylor's petition for a writ of habeas corpus, Kyles

does not announce a new constitutional rule, but simply articulates the proper interplay between the

Brecht harmless error standard and the Fifth and Sixth Amendment materiality standard. Thus,

Kyles 's rationale informs our analysis in this case.

It is well-established that defendants have a Fifth and Sixth Amendment right to present

witnesses that are "both material and favorable" to their defense. See United States v. Valenzuela-

Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982) (defendant has Sixth Amendment

right to compulsory process in order to call a witness whose testimony is "both material and

favorable to the defense"); Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297

(1973) (accused has fundamental right to present witnesses in his own defense and that right is

essential to due process); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)

(Sixth Amendment right to present witnesses in one's own defense applies to state proceedings

through the due process clause of the Fourteenth Amendment). Moreover, trial court decisions can

infringe upon a defendant's Fifth and Sixth Amendment trial rights. See, e.g., Pennsylvania v.

Ritchie, 480 U.S. 39, 57-58, 107 S.Ct. 989, 1000-01, 94 L.Ed.2d 40 (1987) (trial court's decision to

deny access to files to the defendant implicates Confrontation and Compulsory Process Clauses);
United States v. Elliott, 571 F.2d 880, 908 (5th Cir.1978) ("while the scope of cross-examination

is within the discretion of the trial judge, this discretionary authority to limit cross-examination

comes into play only after there has been permitted as a matter of right sufficient cross-examination

to satisfy the Sixth Amendment").

In Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), the Court

imported the materiality requirement from the line of cases beginning with Brady v. Maryland, 373

U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), into compulsory process clause analysis.

Valenzuela-Bernal, 458 U.S. at 872-74, 102 S.Ct. at 3449-50; see also Ritchie, 480 U.S. at 56-58,

6
107 S.Ct. at 1000-1. Following this line of cases, the Court concluded that evidence is material

"only if there is a reasonable likelihood that the testimony could have affected the judgement of the

trier of fact." Valenzuela-Bernal, 458 U.S. at 874, 102 S.Ct. at 3450. In United States v. Bagley,

473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the Court adopted a "reasonable probability"

test of materiality, defining it as "a probability sufficient to undermine confidence in the outcome."

Bagley, 473 U.S. at 682, 105 S.Ct. at 3383. To meet the "reasonable probability" standard, the

defendant does not need to demonstrate that, after discounting the inculpatory evidence in light of

the evidence in question, there would not have been enough evidence to convict him. Kyles v.

Whitley, 514 U.S. 419, 434-35, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). He need only show

that the "evidence [unavailable at trial] could reasonably be taken to put the whole case in such a

different light as to undermine confidence in the verdict." Id. Taylor has met this burden.

In his opening statement to the jury, the prosecutor read the grand jury indictment in the case

which stated that Taylor and Ortiz together murdered Andrew Sweet. The prosecutor then added:

"It is my burden of proof to convince you beyond a reasonable doubt that we proved up that

indictment." (R32-7). In support of its case, the state offered the testimony of two witnesses which

placed Taylor at Sweet's apartment on the day of the murder and self-incriminating statements by

Taylor to the police. Ortiz's testimony, had it been offered, could have substantially impacted the

judgment of the jury with respect to both the identification testimony and the inculpatory statements.
The state first presented the testimony of Ratner and Orenstein, two security alarm installers

who identified Taylor as one of the men who arrived at Andrew Sweet's apartment on the day of his

murder. On October 16, they installed an alarm in Sweet's apartment. At about 4:30 p.m., as they

prepared to leave, two men, a white man and a Latino, knocked on Sweet's door. In exiting the

apartment, Ratner and Orenstein walked directly by the white man, whom they described as five feet

ten inches to six feet tall. They also testified that the Latino man was leaning against the wall,

holding a brown paper bag. Ratner and Orenstein were not able to identify Taylor during the first

photographic line-up in which they participated. However, they did identify him during a second

7
photographic line-up and in court. On cross-examination, the defense elicited that Taylor was six

feet four inches tall (four to six inches taller than Ratner and Orenstein described), and that there was

a discrepancy between the clothing worn by the white man and the bloody clothing left at the crime

scene (and allegedly worn by the murderer). The witnesses also acknowledged that they made their

first positive identification of Taylor after his picture appeared in the newspaper.

The state also presented Taylor's statement in which he stated he went to Andrew Sweet's

apartment on October 16 with an otherwise unidentified Cuban man "at night time." Taylor stated

that they did not run into anyone in the apartment building's hallway as they entered Sweet's

apartment. According to Taylor, after buying twenty dollars worth of cocaine from Sweet, Taylor

started walking towards the door to leave, and while they were still in the living room, the Cuban

man stabbed Sweet in the stomach. Taylor further stated that he and the Cuban man moved Sweet

to the bedroom and laid him down in or near the closet, where the Cuban man continued to stab him

in the chest. Before leaving the apartment, Taylor changed into Sweet's clothes and left behind the

bloody surfing shirt and jeans he had been wearing. Taylor also stated that he took a couple of rocks

of cocaine and a bag of cocaine from Sweet's apartment and put them in his jacket pocket. Upon

cross-examination of the detective who took Taylor's statement, the defense elicited a number of

inconsistencies between Taylor's statement and the physical evidence at the crime scene, including

that most, but not all, of Sweet's wounds were on his neck, shoulders and face; blood was found
only in the bedroom, and not in the living room; there was no evidence of either cocaine or blood

on the jacket Taylor had been wearing; and, at the time he made his statement, Taylor did not

mention that Sweet had been stabbed with a screwdriver or tied up with an electrical cord. (Indeed,

in his statement, Taylor maintained that the killer used a large butcher knife to stab Sweet.)

Had Ortiz testified, presumably his testimony would have correlated with that offered at his

own trial. At that trial, Ortiz testified that, on the day of the murder, he went with someone named

Mark to Andrew Sweet's apartment because Sweet owed Mark money. Ortiz stated that he was

holding a beer in a brown paper bag, and that the security alarm installers were leaving as he and

8
Mark arrived. According to Ortiz, he waited in Sweet's living room while Mark and Sweet were in

the bedroom, but eventually left without Mark because he wanted to make it to Fort Lauderdale by

6:30 p.m.

Ortiz's testimony certainly would have called into question the witnesses' identification of

Taylor. Ratner's and Orenstein's version of events correlates almost exactly with Ortiz's hallway

encounter with the security alarm installers. Taylor, on the other hand, stated that he did not see

anyone in the hallway. Coupled with the discrepancies between Ratner's and Orenstein's description

of the white man and Taylor's physical characteristics, and their failure to identify Taylor in the first

photo line-up, Ortiz's testimony would have substantially reduced or destroyed the value of those

witnesses.

With respect to Taylor's inculpatory statement, defense counsel claims that, because Ortiz

did not testify, counsel made strategic decisions that severely impaired its ability to impeach Taylor's

statement. Ortiz's credible testimony, by underscoring the discrepancies between Taylor's version

of events and the physical evidence in the case, would have offered the jury some basis (beyond

Taylor's recanting of his statement) for discounting Taylor's statement. Defense counsel would have

then presented or highlighted other factors tending to weaken the credibility of the statement: 1) the

police questioned Taylor seven times over the course of ten days; he denied any involvement in the

crime until the seventh interrogation; 2) only one officer was present, and no tape recording was
made, when Taylor first admitted that he was present during the murder. (After their conversation,

Taylor gave a statement that was recorded and witnessed by another officer.); 3) at various points

in their conversations with Taylor, the police offered factual details to Taylor concerning the

physical circumstances of the murder. Without Ortiz's testimony, defense counsel determined that

their best strategy was to forego presenting its weak defense in lieu of preserving counsel's right to

argue first and last to the jury pursuant to Fla.R.Crim.P. 3.250. In short, Taylor's inability to call

Ortiz essentially precluded him from putting on a defense.

9
 After a thorough review of the record, we are not confident that the jury's verdict would have

been the same if Ortiz had testified. In other words, in the absence of Ortiz's testimony, Taylor did

not receive "a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles, 514

U.S. at 434, 115 S.Ct. at 1566. Accordingly, we reverse and remand for a new trial.

REVERSED and REMANDED.

HARRIS, Senior District Judge: I respectfully dissent.

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