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.
2
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,
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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.
10