[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 20, 2009
No. 05-16907 THOMAS K. KAHN
_______________________ CLERK
D. C. Docket No. 00-01846-CV-SLB-PWG
JOHN FORREST PARKER,
Petitioner-Appellant,
versus
RICHARD F. ALLEN,
Commissioner, Alabama Department of Corrections,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(April 20, 2009)
Before EDMONDSON, Chief Judge, BIRCH and BLACK, Circuit Judges.
BIRCH, Circuit Judge:
Petitioner-appellant John Forrest Parker appeals the district court’s judgment
dismissing his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254
and denying him relief. Parker sought a vacation of his 1988 conviction for capital
murder and his death sentence. After the district court denied Parker’s Fed. R. Civ.
P. 59 motion for reconsideration, Parker appealed and the district court issued a
certificate of appealability on five issues. We conclude that the district court
correctly denied habeas relief and AFFIRM.
I. BACKGROUND
In March 1988, Charles Sennett contracted with one of his tenants, Billy
Gray Williams, to murder his wife, Elizabeth Dorlene Sennett (“Dorlene”), for
$3000. Parker v. State, 587 So. 2d 1072, 1078 (Ala. Crim. App. 1991) (“Parker
I”).1 Williams, in turn, hired John Parker and Kenneth Eugene Smith for $1000
each to commit the murder. Williams gave Parker $100 to purchase a weapon on
17 March 1988, and promised to pay him the balance when the job was completed.
Instead of buying a weapon, Parker used the $100 for drugs and injected 3 cubic
centimeters of Talwin, a narcotic analgesic (painkiller), while en route to the
Sennetts’ residence on 18 March. Parker drove his vehicle to the Sennetts’
residence while Smith, who was in the passenger seat, sharpened Parker’s survival
1
The record in this case consists of the district court filings and the state court filings,
which were filed in this record as an exhibit to R1-17. The state court filings are compiled in
two sets of volumes, supplements and other documents. Volumes 1-14 are the record from
Parker’s direct appeal; the volumes from these are designated in this opinion as “Vol.” Volumes
1-16 are the record from Parker’s post-conviction proceedings; these volumes are designated in
this opinion as “PC Vol.” Citations to the state court exhibits will be hereafter indicated as
“Exh. Vol.” and “Exh. PC Vol.”
2
knife. Parker parked his car behind the Sennetts’ home, told Dorlene that her
husband had given them permission to look at the property as a hunting site and,
upon receiving Dorlene’s approval, walked into a wooded area with Smith. They
later returned to the house and received permission from Dorlene to use her
bathroom. While in the bathroom, Parker put cotton socks onto his hands. He then
exited the bathroom, jumped Dorlene, and began hitting her. Parker and Smith hit
Dorlene with a galvanized pipe and stabbed her while she pled with them not to
hurt her. Consistent with their plan, they broke the glass in the medicine cabinet
and took a stereo and video cassette recorder (VCR) to make the assault look like it
was done during a burglary. Parker later burned his clothes and threw the stereo
off a bridge, and he and Smith threw away the knife that they used. Parker
subsequently received the additional $900 for the murder. Parker v. State, 610 So.
2d 1171, App. II at 1178-79 (Ala. Crim. App. 1992) (“Parker II); In re Parker, 610
So. 2d 1181, 1184-85 (Ala. 1992) (“Parker III”).
When Sennett arrived home, he found his house ransacked and Dorlene
close to death, and called Colbert County Sheriff’s Investigator Ronnie May at
11:44 A.M. May dispatched a rescue squad and sheriff’s deputies to the Sennetts’
home. May and another deputy arrived at the Sennetts’ home about 12:05 P.M.,
and the rescue squad arrived soon thereafter. Dorlene was transported to the
3
hospital, and seen by Dr. David Parks McKinley. Resuscitation efforts failed and
Dorlene was declared dead as a result of cardiac arrest and exsanguination. An
examination of her body revealed multiple stab wounds to the right side of her
chest, the right side of her neck, the base of her neck, forehead, nose, and scalp,
and contusions on her nose and forehead. Hairs found at the crime scene in a cap
located near Dorlene’s body were consistent with Smith’s known hair sample, and
on an afghan that had been wrapped around Dorlene’s body were consistent with
fibers later taken from Parker’s knife. Parker I, 587 So. 2d at 1089. The VCR
taken from the Sennetts’ house was found inside Smith’s residence. Parker I, 587
So. 2d at 1090.
In April 1988, Parker was indicted for the capital murder of Dorlene by
beating and stabbing her with a knife for the pecuniary consideration of $1000 in
violation Ala. Code 13A-5-40.2 At trial, he was found guilty by a jury; the jury
recommended a sentence of life imprisonment without parole. The sentencing
2
The offense of capital murder includes “Murder done for a pecuniary or other valuable
consideration or pursuant to a contract or for hire.” Ala. Code § 13A-5-40.
Charles Sennett, a Church of Christ minister, committed suicide on 25 March 1988,
seven days after Dorlene died. Parker I, 587 So. 2d at 1078. Williams was convicted of capital
murder and sentenced to life imprisonment without the possibility of parole. Williams v. State,
565 So. 2d 1233 (Ala. Crim. App.), cert. denied (Ala. 1990) (No. 89-1184). Smith was
convicted of capital murder and sentenced to death. Smith v. State, 908 So. 2d 273 (Ala. Crim.
App. 2000), cert. denied, 546 U.S. 928, 126 S. Ct. 148 (2005).
4
judge, however, overrode the jury and sentenced Parker to death on 21 June 1989.3
See Parker I, 587 So. 2d at 1076, 1100. On appeal, the case was remanded for an
evidentiary hearing on Parker’s Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712
(1986) claim and for the district court to reweigh and make new findings regarding
the mitigating and aggravating circumstances.4 Parker I, 587 So. 2d at 1100.
Following an evidentiary hearing on remand, the trial judge found that the
prosecution had not violated Batson by using its peremptory strikes to remove
eight black venire members. Parker II, 610 So. 2d at 1172, 1177. The trial judge
also found that the aggravating circumstance of murder for pecuniary gain
outweighed the mitigating circumstances, including Parker’s lack of a prior
significant criminal history, age at the time of the offense, demonstration of
remorse, and the jury’s recommendation of life without parole. Id. at 1172, 1179-
81. Parker’s conviction and sentence were affirmed by the appellate court and the
Alabama Supreme Court. See id. at 1173; In re Parker, 610 So. 2d 1181, 1187
3
Under Ala. Code § 13A-5-47(e), the jury’s sentencing recommendation is to be given
consideration but “is not binding upon the court.”
4
On appeal, Parker raised twenty-four issues, including: (1) the prosecutor’s use of his
peremptory strikes in violation of Batson; (2) the prosecutor’s failure to disclose a witness’s
other convictions and the favorable treatment he received in exchange for his testimony in
violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); (3) the illegality of the
warrantless search of his home; (4) the involuntariness of his post-arrest statement; (5) improper
prosecutorial closing arguments; and (6) his court-appointed counsel’s lack of required
experience. Parker I, 587 So. 2d at 1076, 1078, 1082-85, l087-93, 1095-98, 1100.
5
(1992) (“Parker III”). Parker’s petition for writ of certiorari was denied. See
Parker v. Alabama, 509 U.S. 929, 113 S. Ct. 3053 (1993) (“Parker IV”).
Parker moved for post-conviction relief under Alabama Rule of Criminal
Procedure 32 in 1994, and filed an amended petition in 1996.5 Following an
evidentiary hearing, the state trial court denied the petition. The denial was
affirmed on appeal, Parker v. State, 768 So. 2d 1020 (Ala. Crim. App. 1999)
(“Parker V”), and Parker’s petition for writ of certiorari was denied, Ex Parte
Parker, 780 So. 2d 811 (Ala. 1999) (“Parker VI”).
Parker filed a timely petition for writ of habeas corpus, pursuant to 28
U.S.C. § 2254, in 2000 and amended the petition in 2001.6 The district court
5
In his initial and amended Rule 32 petitions, Parker raised the eighteen issues,
including: (1) ineffective assistance of counsel during the pretrial investigation and proceedings,
jury selection, trial, post-trial motions, sentencing, and on appeal; (2) the inadmissibility of
Parker’s statements made during and after his arrest; (3) unconstitutionality of Parker’s
statements taken while he was under the influence of alcohol and drugs; (4) the trial court’s
failure to suppress Parker’s statements and to allow their admission as trial evidence; (5) the trial
court’s erroneous rulings on his objections during the suppression hearing and the trial; and (6)
prosecutorial misconduct.
6
In both his original and amended habeas petitions, Parker raised the following issues:
(1) unconstitutional exclusion of jurors on the basis of race and gender in violation of Batson; (2)
improper prosecutorial closing argument; (3) trial court’s erroneous jury instruction on
reasonable doubt; (4) prosecutor’s Brady violation concerning a witness; (5) ineffective
assistance of trial counsel during the suppression hearing, pretrial investigation, jury selection,
trial, closing argument, jury charge, sentencing phase, and in their motions to withdraw; (6)
denial of due process because of medication; (7) trial court’s failure to strike prejudiced jurors;
(8) trial court’s override of the jury verdict; (9) trial court’s admission of Parker’s statement
made at the time of his illegal arrest; (10) trial court’s denial of Parker’s motion for change of
venue; (11) trial court’s failure to recuse; (12) trial court’s unconstitutional admission of
Parker’s statement; (13) trial court’s failure to instruct on lesser included offenses including
intentional and reckless murder; and (14) trial court’s unconstitutional testimony. In his
6
denied the petition and denied reconsideration. Following Parker’s notice of
appeal, the district court granted a certificate of appealability on the following
issues: (1) whether jurors were excluded by the prosecutor on the basis of race,
contrary to clearly established federal law and in violation of the Sixth, Eighth, and
Fourteenth Amendments; (2) whether the prosecutor’s improper closing arguments
denied Parker due process, a fair trial, and a reliable sentencing proceeding in
violation of the Sixth, Eighth and Fourteenth Amendments; (3) whether the state’s
failure to disclose information relevant to a witness’s testimony was a violation of
Brady and the Sixth, Eighth, and Fourteenth Amendments; (4) whether Parker
received ineffective assistance of counsel at trial in violation of his rights under
the Sixth, Eighth, and Fourteenth Amendments; and (5) whether Parker’s statement
and other evidence were obtained in violation of the Fourth Amendment.
II. DISCUSSION
We review the denial of a petition for writ of habeas corpus de novo, but are
limited in our review of every issue decided in the state courts by a “‘general
framework of substantial deference.’” Crowe v. Hall, 490 F.3d 840, 844 (11th Cir.
amended petition, Parker raised the following additional issues: (15) the trial court erred on
remand for sentencing by failing to provide Parker with an opportunity to present evidence,
argue, or speak; (16) his arrest was illegal based on the officers’ lack of jurisdiction; (17) his
statements were the result of illegal and unconstitutional duress; and (18) the indicting grand
jury was selected in a discriminatory and unconstitutional manner.
7
2007) (quoting Diaz v. Sec’y of the Dep’t of Corr., 402 F.3d 1136, 1141 (11th Cir.
2005)). We will not, therefore, disturb the decisions of the Alabama courts unless
those decisions are “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court,” or were “based on
an unreasonable determination of the facts.” 28 U.S.C. § 2254(d).
Under § 2254(d)(1), a state court decision is “contrary to” clearly established
federal law if the state court either (1) applied a rule that contradicts the governing
law as set forth by the Supreme Court or (2) arrived at a different result from the
Supreme Court when presented with “materially indistinguishable facts.” Putman
v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). A state court decision involves an
“unreasonable application” of clearly established Supreme Court law if the law is
“applied . . . to the facts . . . in an objectively unreasonable manner.” Woodford v.
Visciotti, 537 U.S. 19, 25, 123 S. Ct. 357, 360 (2002).
A. Juror Exclusion Based on Race
Parker argues that, over his objection, the prosecution struck eight of nine
qualified black venire members. He contends that the trial court’s finding on
remand that the prosecutor struck the jurors on facially-neutral grounds is not
supported by the record because eight of the seated jurors had exactly the same
characteristics that the prosecution identified as the bases for excluding four black
8
venire members. He contends that the prosecution’s explanations for striking the
venire members and for failing to strike other similarly situated white venire
members are inconsistent with its failure to question the white venire members
about their traffic violations and personal and family criminal histories.
The prosecution exercised peremptory strikes against eight of the nine black
venire members. The stricken black venire members included Juror 3, Sheila
Armstead; Juror 21, Thykle L. Coman; Juror 25, Jeffrey S. Davis; Juror 67, Willie
M. Mayes; Juror 77, Cynthia Montgomery; Juror 83, Annie O. Owes; Juror 120,
Eugene L. Watkins; and Juror 121, Mary A. Webb. Black venire member Carter
Triplett, Juror 113, was selected for the jury.
During voir dire, none of the black jurors responded positively when asked
whether they believed that the death penalty should be applied in the case of a
murder. The prosecution then used 26 of its 28 strikes to strike individuals who
did not answer favorably toward the death penalty. The reasons provided by the
prosecution for exercising these strikes included (1) Coman’s general opposition to
the death penalty;7 (2) the belief that Coman 8 and Webb,9 who had taken
7
Coman indicated that she was opposed to the death penalty under any circumstance and
would always prefer a sentence of life without parole to death.
8
Coman also knew Sennett’s girlfriend and possible defense witness, Doris Tidwell.
9
Webb had taken a psychology course during college.
9
psychology classes or training, would give “undue emphasis” to a defense
psychologist’s testimony, R1-17, Exh. Vol. 3 at 402-04; (3) the belief that
Armstead,10 Coman,11 Montgomery,12 and Owes,13 who each were related to
someone who had been charged with a crime, might be “prejudice[d] against the
State,” Exh. Evid. HR at id. at 17-18, 20-24, 32-36, 38-40; and (4) the belief that
Watkins,14 who had a “series of traffic offenses” and “arrests,” might think “that
the State . . . [was] picking on him,” “not be open minded . . . to the testimony of
law enforcement officers,” and have an inability “to follow the law.” Id. at 24-25,
40-41. Davis indicated that, if the jury was sequestered, he would have problems
staying overnight.15 Mayes worked with members of co-defendant Williams’
family and had overheard conversations regarding the case. [Id. at 21-22.]
10
Armstead’s mother, Elsie Armstead, was under prosecution in Colbert County for theft
of property.
11
Coman’s relative, Robert Coman, had a drug conviction in Colbert County.
12
Montgomery’s cousins were prosecuted on drug charges “factually related” to Parker’s
case. The prosecutor also thought that Montgomery had an out-of-wedlock child and might be
sympathetic to Parker, who also had an out-of-wedlock child.
13
Owe’s brother-in-law, Williams Owes, had a Colbert County arrest warrant pending
for a drug charge at the time of the trial. Owes’s husband, Thomas Owes, was a defendant in a
civil forfeiture case filed by Alabama and the prosecution believed that this would prejudice her
against them. She also knew defense attorney Gene Hamby.
14
Although the prosecution conceded that Watkins’s five traffic offenses were “minor”
and insufficient to justify a strike, they argued that the offenses indicated a pattern. The
prosecutor did not strike anyone with a single speeding offense.
15
Davis said that he did not want to serve on the jury.
10
White venire members were stricken for some of the same reasons. Juror
92, Betty Rickard, was stricken for her general opposition to the death penalty;
Jurors 9, Rebecca Barr; 58, Sharon Landers; 63, Rebecca Livingston; 82, Marshal
Newman; Rickard; and 129, Marty Willingham, were stricken because they had
prior training or course-work in psychology; and Willingham had a record of
minor traffic offenses. Jurors 40, Pamela Hendon; 53, Jenaine Johnson; and
Jennifer Razor said that it would be difficult for them to stay overnight. Juror 68,
Birdie McCarley was stricken because she knew members of Parker’s family.
Eight of the eleven white seated jurors were, however, related to someone
who had been convicted of a felony, had taken a psychology course, knew one of
the defense attorneys, or had been convicted of more than one traffic offense.
Seated white juror Joni Simpson admitted that she had taken a course in
psychology. The prosecutor admitted that he erred in not striking Simpson because
he intended to strike all of the venire members who had taken psychology classes
and his note indicated that he had. Simpson and seated juror Gary Highfield knew
defense attorney, Gene Hamby, and seated juror Teddy Roe Mansell knew defense
attorney H. Thomas Heflin, Jr.’s law partner, who had represented Mansell’s ex-
wife during child support contempt proceedings. Seated jurors Highfield,16
16
Highfield said that, at the time of the trial, he had at least two speeding convictions.
11
Mansell,17 Mike Quillen,18 Williams Glenn Pettus,19 Simpson,20 and alternate juror
Johnny O. Miller, all had traffic offense records.21 Many of the seated jurors’
traffic offenses occurred outside of Colbert County, and Quillen’s traffic offenses
occurred in Tennessee. Highfield, Mansell, Pettus and Simpson had only one
traffic ticket each from Colbert County. Mansell had been prosecuted for child
support contempt proceedings. Seated jurors James Ayers, Highfield, LaDecca
Holt, Lucy Lowry, Noel Gene Morris, and Quillen were related to someone who
had a felony conviction. The convictions of the family members of Ayers, Lowry,
and Morris were outside of the five year scope of the prosecutor’s investigation.22
The convictions of the family members of Highfield, Lowry, Morris, and Quillen
occurred outside of Colbert County, Alabama.23 LeDecca Holt’s “uncle by
17
At the time of the trial, Mansell had two speeding convictions.
18
Quillen only remembered having had one traffic ticket before the trial.
19
Pettus had at least two prior tickets for driving while intoxicated.
20
Simpson testified that, at the time of the trial, she had received three speeding tickets
and one reckless driving ticket.
21
White venire members Wiley K. Arnold, Beyersdorf, Freeman, Goskey, and
Murphrey had traffic offense records but were excused.
22
Ayers’ uncle’s conviction occurred at least 12 years earlier, Lowry’s uncle’s
conviction about 9 years earlier, and Morris’s brother’s conviction about 25 years earlier.
23
Highfield’s relative’s conviction was in Madison County, Alabama; Lowry’s uncle’s
conviction was in Florida; Morris’s brother’s conviction was in Lawrence County, Alabama;
and Quillen’s cousin’s conviction was in Franklin County, Alabama.
12
marriage,” Curtis Sheffield, had a felony conviction in Colbert County.24 Exh.
Evid. HR at 64.
The prosecution used 28 percent of its total strikes to strike black venire
members, who composed about seven percent of the total venire and eight percent
of the seated jury. Acknowledging that black jurors were struck, the prosecution
argued that “race had nothing to do” with the strikes because they were not “paying
attention to race.” Id. at 27. During its first twelve strikes, the prosecution used
eight strikes against blacks. In making the strikes, the prosecution relied on
information regarding repeat traffic violations and criminal prosecutions of the
jurors or their families that its investigator had obtained and did not question the
jurors if that information indicated a potential problem that might lead to bias. The
investigator’s search spanned five years, which was the amount of time that the
prosecuting district attorney had been in office and that the records were retained
in the county clerk’s office. Traffic investigations were performed on any venire
members who were “thought” to have a history of traffic offenses based on the
prosecution’s investigator’s interviews with law enforcement officers. Id. at 41.
The prosecutor explained that he did not question the venire members regarding
information that he had obtained from their individual voir dire questionnaires or
24
The record does not indicate when Sheffield’s conviction occurred.
13
his investigator because he did not want to embarrass them in front of the other
venire members. He acknowledged that, although individual voir dires were
available, he did not use them. He said that he had no knowledge of Holt’s family
member’s crime and “missed” it during the investigation. Id. at 90.
On direct appeal, the state appellate court affirmed the trial judge’s
“commendable thoroughness and . . . conscientiousness” in making findings and
concluding that Batson was not violated. Parker II, 610 So. 2d at 1172. The state
trial court compared each of the reasons for the prosecutor’s strikes, noted the
prosecution’s practice regarding its investigatory methods, and commented that,
even if the prosecution had done a state-wide investigation of the venire members’
traffic records, it would only have been able to get records for five years. Id. at
1173-76. Based on the analysis of the strikes and investigatory methods, the trial
court “d[id] not find that there was a significant disparate treatment of [the venire-
members] with the same characteristics.” Id. at 1176.
The district court found that the prosecution’s failure to strike the white
jurors with traffic convictions or family member convictions that occurred outside
of Colbert County or more than five years earlier was not inconsistent with its
striking of black jurors who had traffic convictions and family member convictions
that occurred within Colbert County within the last five years. It found that the
14
trial court’s conclusion satisfied Batson and that its decision was neither contrary
to nor involved an unreasonable application of the law.
Because it is constitutionally permissible for the prosecutor to retain jurors
who are “death qualified” and to strike jurors who state that they could not impose
the death penalty under any circumstance, Lockhart v. McCree, 476 U.S. 162, 165-
67, 175-77, 106 S. Ct. 1758, 1760-62, 1766-67 (1986), the prosecution legitimately
struck Coman.
In Batson, the Supreme Court held it unconstitutional for the prosecution to
challenge potential jurors based solely on their race or on the assumption that
because of their race they will be unable to consider the case impartially. 476 U.S.
at 89, 106 S. Ct. at 1719. A defendant may raise the necessary inference of
“purposeful discrimination in selection of the petit jury” based “solely on evidence
concerning the prosecutor’s exercise of peremptory challenges” during the trial.
Id. at 96, 106 S. Ct. at 1723.
[T]he defendant first must show that he is a member of a cognizable
racial group, and that the prosecutor has exercised peremptory
challenges to remove from the venire members of the defendant’s
race. Second, the defendant is entitled to rely on the [undisputed] fact
. . . that peremptory challenges constitute a jury selection practice that
permits those to discriminate who are of a mind to discriminate.
Finally, the defendant must show that these facts and any other
relevant circumstances raise an inference that the prosecutor used that
practice to exclude the veniremen from the petit jury on account of
their race.
15
Id., 106 S. Ct. at 1723 (internal citations and quotation marks omitted). It is not
necessary to show that all or even a majority of the prosecutor’s strikes were
discriminatory; any single strike demonstrated to result from purposeful
discrimination is sufficient. See McNair v. Campbell, 416 F.3d 1291, 1311 (11th
Cir. 2005). In Powers v. Ohio, 499 U.S. 400, 402, 111 S. Ct. 1364, 1366 (1991),
Batson claims were extended to defendants regardless of whether they share the
same race as the struck jurors.
Once the defendant makes a prima facie showing, the burden shifts to the
prosecution to explain, in clearly and reasonably specific terms, the legitimate
race-neutral reasons for striking the jurors in question. Batson, 476 U.S. at 97, 98
n.20, 106 S. Ct. at 1723, 1724 n.20. The court must then confront the “decisive
question” and evaluate the credibility of the prosecution’s explanation, Hernandez
v. New York, 500 U.S. 352, 365, 111 S. Ct. 1859, 1869 (1991), “in light of all
evidence with a bearing on it.” Miller-El v. Dretke, 545 U.S. 231, 252, 125 S. Ct.
2317, 2331 (2005). Finally, the court must determine whether the defendant has
established purposeful discrimination. Batson, 476 U.S. at 98, 106 S. Ct. at 1724.
The reasons stated by the prosecutor provide the only reasons on which the
prosecutor’s credibility is to be judged. United States v. Houston, 456 F.3d 1328,
1335 (11th Cir. 2006). The credibility of the prosecution’s explanation is to be
16
evaluated considering the “totality of the relevant facts,” including whether
members of a race were disproportionately excluded. Hernandez, 500 U.S. at 363,
111 S. Ct. at 1868 (quotation marks and citation omitted). Questions arise
regarding the credibility of the explanation and the possibility that the explanation
is pretextual (1) when the prosecutor’s explanation for a strike is equally applicable
to jurors of a different race who have not been stricken, Caldwell v. Maloney, 159
F.3d 639, 651 (1st Cir. 1998); (2) upon a comparative analysis of the jurors struck
and those who remained, Turner v. Marshall, 121 F.3d 1248, 1251-52 (9th Cir.
1997), including the attributes of the white and black venire members, Houston,
456 F.3d at 1338; (3) or when the prosecution fails to engage in a meaningful voir
dire examination on a subject that it alleges it is concerned, Miller-El, 545 U.S. at
246, 125 S. Ct. at 2328. Evidence of purposeful discrimination may be shown
through side-by-side comparisons confirming that the reasons for striking a black
panelist also apply to similar non-black panelists who were permitted to serve. See
id. at 241, 125 S. Ct. at 2325. A prosecutor’s reasonable explanation for objecting
to a black panelist based on his or her opinions or comments may be undercut by
the prosecution’s failure to object to other white panelists who expressed similar
views, and may be evidence of pretext. Id. at 248, 125 S. Ct. at 2329-30. The
prosecutor’s failure to strike similarly situated jurors is not pretextual, however,
17
“where there are relevant differences between the struck jurors and the comparator
jurors.” United States v. Novaton, 271 F.3d 968, 1004 (11th Cir. 2001). The
prosecutor’s explanation “does not demand an explanation that is persuasive, or
even plausible; so long as the reason is not inherently discriminatory, it suffices.”
Rice v. Collins, 546 U.S. 333, 338, 126 S. Ct. 969, 973-74 (2006) (quotation marks
and citation omitted). Neither a prosecutor’s mistaken belief about a juror nor
failure to ask a voir dire question provides “clear and convincing” evidence of
pretext. McNair, 416 F.3d at 1311-12.
If the fact-finder determines that the prosecutor’s race-neutral explanations
are true, the petitioner may obtain relief only by showing that the state court’s
conclusion was an unreasonable determination of the facts in light of the evidence
presented during the state proceedings. Miller El, 545 U.S. at 240, 125 S. Ct. at
2325. Consistent with § 2254(e)(1), we presume the state court’s factual findings
to be correct unless the petitioner rebuts that presumption with clear and
convincing evidence. Id. “The standard is demanding but not insatiable; . . .
deference does not by definition preclude relief.” Id. (citation and internal
punctuation omitted). We cannot, however, substitute our evaluation of the record
for that of the state trial court, as we presume the state court’s factual findings to be
correct, and cannot grant a habeas petition unless the state court’s credibility
18
findings regarding the prosecutor’s race-neutral explanations for the Batson
challenge are “unreasonable . . . in light of the evidence presented in the state
court.” Rice, 546 U.S. at 337-39, 126 S. Ct. at 973-74.
Based on the Alabama Court of Criminal Appeals’ remand for the
prosecution to offer race-neutral reasons for striking the jurors, we assume that a
prima facie showing under Batson was made. See Parker I, 587 So. 2d at 1077;
Novaton, 271 F.3d at 1003 (assuming a prima facie showing when the district court
required the prosecution to offer race-neutral reasons for its strikes).
Based on the state court’s application of the law, acceptance of the
prosecutor’s stated reasons for his strikes, and consideration of the differences in
the situations of the stricken and seated jurors, the district court did not err in
finding that the state court reasonably applied Batson and that Parker failed to
prove “purposeful discrimination” under Batson.
B. Improper Closing Arguments
Parker argues that the Alabama Court of Criminal Appeals’ decision
regarding the prosecutor’s vouching for witnesses during the guilt-phase closing
argument and arguing that the death penalty should be applied because of
uncharged criminal behavior is an unreasonable application of the law and an
unreasonable application of the facts. Alabama concedes that the prosecutor’s
19
arguments regarding two of the witnesses were improper, but maintains that the
other statements were not improper and that none of the statements rise to the level
of a violation of due process.
During the guilt-phase closing argument, the prosecutor summarized the
evidence against Parker and commented about the testimony of three of Alabama’s
witnesses, Donald Buckman, Investigator May, and Dr. McKinley. Regarding
Buckman’s testimony, the prosecutor “assure[d]” the jury that Buckman “did not
have anything against John Parker.” Exh. Vol. 8 at 1576. Regarding May’s
testimony, the prosecutor stated:
I’ve known Ronnie May for a long time and worked with him and, of
course, when we put a witness on the witness stand we vouch for their
credibility just as the defense does when they call a witness. But I can
assure you right now that what Ronnie May testified to you about
–about anything, but particularly about the statement that I’m, talking
about right now that was given to him on March the 31st by Mr.
Parker. I can assure you he told you the truth, what was told him by
Mr. Parker. And I don’t for any one minute think that any of y’all
think he would get up and make it up or fabricate it or anything like
that. But I can assure you, ladies and gentlemen, what he told you is
the truth with regard to that statement.
Id. at 1575. Regarding McKinley, the prosecutor asked the jury to consider:
Who is best qualified to make the judgment about the potential
murder weapon? . . . [T]he forensic pathologist who did the autopsy
who made exacting measurements about the wounds and examined
those wounds? Whose job it was to determine specifically what the
cause of death was and to determine, if possible, what type of weapon
might have been used and some possible characteristics for that
20
weapon? . . . [O]r is it the doctor who worked on the person in the
emergency room and was primarily trying to save her life. . . . I’m not
try[ing] to in anyway run down Dr. McKinley. I know Dr. McKinley.
He’s a personal acquaintance of mine and I can assure he’s . . . giving
you his opinion, his best opinion, but again I say to you; who is best
qualified to give that opinion?
Id. at 1581-82.
In his final closing argument, the prosecutor explained to the jury that they
were “the most important part of this whole case” because their function was to
listen to the evidence and decide what the truth is. You decide who
that has testified to you is telling the truth, who is not telling the truth,
who is being evasive with you and you ultimately decide the true facts
in the case upon which your verdict is to be based . . . .
Exh. Vol. 9 at 1608.
The prosecutor, however, then continued:
There is no such thing as a case that you couldn’t look at long
enough and hard enough and find some kind of little inconsistency in
the testimony and the reason for that is, I submit to you at least from
the State’s witnesses they were trying very hard to tell you the truth
and the truth as they saw it. . . . [W]e vouch for the credibility of those
witnesses by putting them on the stand and I submit to you that
they’ve told the truth . . . .
Id. at 1611.
During the jury instructions, the trial judge instructed the jury
that they were:
the sole judges as to the weight that should be give to all of the
testimony in the case . . . [t]he jury’s role is to determine the facts.
21
You ladies and gentlemen of the jury[] take the testimony of the
witnesses, together with all proper and reasonable inferences
therefrom, apply your common sense, and in an impartial and honest
way[,] determine what you believe to be the truth. You should weigh
all of the evidence and . . . give it just such weight as you think it is
entitled to receive. In doing so[,] you may take into consideration any
interest which any witness might have shown to have in the outcome
of this case.
If you believe that any material part of the evidence of any
witness was willfully false, you may disregard all of the testimony of
such witness.
Id. at 1655-56.
In determining what the true facts are in the case, you are
limited to the evidence that has been presented from the witness stand
as opposed to matters that have been stated by the attorneys in the
course of the trial. What the attorneys have said . . . is not evidence in
the case. What they have argued to you . . . is not evidence.
Id. at 1641-42.
The Alabama Court of Criminal Appeals found that the prosecutor’s
statements were “improper attempts to bolster witnesses by vouching for their
credibility.” Parker I, 587 So. 2d at 1094. It concluded, however, that the
comments, “although clearly erroneous, do not undermine the fundamental fairness
of the trial and contribute to a miscarriage of justice.” Id. (citation and internal
quotations omitted). In reaching that conclusion, it viewed the prosecutor’s
comments in the context of the entire trial and noted that (1) during the defense
closing argument, Parker’s attorney did not contend that Parker’s confession was
22
false, but conceded that Parker admitted that he was at the crime scene and had
gone there to commit a burglary, and (2) any prejudice was cured by the trial
judge’s extensive cautionary instructions to the jury that they were only to consider
the evidence and not the attorneys’ comments. Id. at 1094-95.
During a trial, counsel have a duty to refrain from commenting on their
personal views on a defendant’s guilt and the evidence. United States v. Young,
470 U.S. 1, 7, 9, 105 S. Ct. 1038, 1042-43 (1985). A prosecutor’s comments
during a closing argument are evaluated to determine whether the comments so
unfairly affected the trial as to deny the defendant due process, Darden v.
Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2474-71 (1986), when considered
“in the context of the entire trial in light of any curative instructions.” United
States v. Abraham, 386 F.3d 1033, 1036 (11th Cir. 2004) (per curiam) (quotation
marks and citation omitted). Due process is denied “when there is a reasonable
probability,” or “a probability sufficient to undermine confidence in the outcome,”
that, but for the improper remarks, “the outcome of the proceeding would have
been different.” United States v. Eyster, 948 F.2d 1196, 1206-07 (11th Cir. 1991)
(citations and internal punctuation omitted). The prosecutor’s comments must
both (1) be improper and (2) “prejudicially affect the substantial rights of the
defendant.” United States v. Thompson, 422 F.3d 1285, 1297 (11th Cir. 2005). A
23
prosecutor’s comments constitute improper “vouching” if they are “based on the
government’s reputation or allude to evidence not formally before the jury.”
Eyster, 948 F.2d at 1206. Although improper vouching is grounds for reversal, it
may be cured if the remarks are not “substantially prejudicial” and any lingering
prejudice is remedied by a careful cautionary instruction. United States v.
Sarmiento, 744 F.2d 755, 762-65 (11th Cir. 1984).
As the Supreme Court of Alabama correctly noted, Parker’s strategy was to
argue that he assaulted but did not murder Dorlene. Parker III, 610 So. 2d at 1184.
During his closing arguments, Parker’s attorney used Parker’s statement to support
that strategy. He was thus not prejudiced by any enhanced credibility given to the
testimony of Buckman or May since their testimony that Parker had gone to the
Sennetts’ residence was consistent with this strategy and would not have adversely
affected the jury verdict. He was also not prejudiced by the prosecutor’s reference
to his personal acquaintance with McKinley; the prosecutor based his comments on
a comparison of McKinley’s and the forensic pathologist’s qualifications regarding
their thoughts on the murder weapon and was based on facts in evidence. Further,
any enhanced credibility given to McKinley’s testimony was consistent with
Parker’s witness’s testimony that he did not believe that Parker’s knife was the
murder weapon.
24
Buckman testified that Parker and Smith drove to his house in Parker’s car
on the morning of the murder and that Smith asked where he could find a gun.
May testified that Parker admitted in his statement that, on the day of the murder,
he and Smith drove to the Sennetts’ home in his car, jumped Dorlene, held her
down with a chair, and hit her with a galvanized pipe; Smith did all of the stabbing;
and they stole the Sennetts’ VCR and stereo and broke some glassware to provide
the appearance of a robbery. May also testified that Parker did not know who
covered Dorlene, did not know the number of times she was stabbed or the location
of the wounds, never stated that she was dead when they left, and denied turning
over a china cabinet that the police found turned over in the room where Dorlene
was found.
McKinley, Dorlene’s emergency room physician, did not think Parker’s
knife was the instrument that caused her injuries based on his examinations of
Dorlene’s knife wounds, the knife, and the autopsy photographs and report. He
admitted that he had not measured the depth of the wounds but noted that he
determined that the wounds extended “from the skin all the way into the chest
cavity” or at least two inches or more. Exh. Vol. 6 at 1056-57. He also explained
that, although the knife had a serrated edge, he did not observe any “sawing effect”
on the wounds, which were described in the autopsy report as having a “sharp” and
25
“fairly smooth rounded edge.” Id. at 1059. He conceded that the forensic
pathologist who performed the autopsy had more specialized training and would
have probably made more specific detailed observations about the knife wounds.
During his closing argument, Parker’s attorney stipulated twice that Parker
was at the Sennett home on the day of the murder and that Parker and Smith
assaulted Dorlene. He argued that, consistent with May’s testimony, Parker and
Smith merely assaulted, cut, stabbed, and robbed Dorlene leaving her unconscious
but alive. He maintained that, when Sennett returned to his home and found
Dorlene, he murdered her to prevent her from divorcing him over the affair that he
was having. He explained that, although only one knife had been admitted into
evidence, there were two sets of knife wounds on Dorlene’s body. He reminded
the jury that Dorlene was alive when the paramedics arrived about 20 minutes
after Sennett’s emergency call and that the testimony indicated that she would not
have survived long after being stabbed. He also reviewed with the jury that the
exhibit knife was six inches long, one and one-quarter to one and one-half inches
wide, and one-eighth inch thick, but that some of the knife wounds appeared to be
two inches long, three-quarters inch wide, and one half inch thick.
In arguing for the death penalty, the prosecutor noted that:
certainly we have had some evidence of criminal activity on the part
of [Parker]. It came out in the form of [] previous criminal activities,
26
about drugs, selling and using drugs. I believe there was some
mention of stealing gasoline on one occasion. So again, there is
evidence of prior criminal activity.
Exh. Vol. 9 at 1770.
He maintained that the jury should “do the right thing” by imposing a
“proper verdict” of death, and asked “how many times, how many times does a
person have to do something like this before . . . [being classified] basically as a
bad person.” Id. at 1777, 1780.
Despite the prosecutor’s argument, the jury returned a verdict
recommending, by a ten to two vote, that Parker be sentenced to life without
parole. The Alabama Court of Criminal Appeals found that any error caused by
the prosecutor’s sentencing-phase comments was harmless “because the jury, by a
vote of ten to two, recommended life without parole.” Parker I, 587 So. 2d at
1095.
A petitioner cannot show sentencing phase prejudice when the jury
recommends a sentence of life instead of death. Routly v. Singletary, 33 F.3d
1279, 1297 (11th Cir. 1994) (per curiam). Parker cannot, therefore, demonstrate
that, but for the prosecutor’s death penalty argument the outcome of the sentencing
phase would have been different. The district court did not err in finding that the
Alabama courts’ decisions were neither contrary to nor an unreasonable application
27
of the law, and were not based on an unreasonable determination of the facts.
C. Failure to disclose information in violation of Brady v. Maryland
Parker contends that, despite his motions and requests for all favorable and
exculpatory evidence, the prosecution failed to reveal that one of its witnesses,
Teddy Lynn White, had more convictions than it initially disclosed. He maintains
that the facts of White’s additional convictions, his eligibility for release, the
withdrawal of his initial release date, and his subsequent release were discoverable
and highly prejudicial. He argues that the Alabama courts incorrectly interpreted
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963) by finding that the
prosecutor’s lack of knowledge of White’s convictions or early release excused the
prosecution from complying with Brady.
Parker moved for favorable and exculpatory discovery in May 1988 and in
March and May 1989. In response to these requests, Alabama produced a
statement of White dated 19 May 1989. In this statement, White explained that he
was serving a sentence for burglary. White stated that, about one to two weeks
before the murder, Parker had asked him to sell him a gun and had told White that
he and “Kenny” planned to murder someone for money. Exh. Vol. 14 at 2672-76.
At a pre-trial motions hearing, in response to Parker’s Brady claims, the prosecutor
explained that he had provided Parker’s attorney with “a complete copy of [his]
28
file.” Exh. Vol.1, R5 at 105.
During the trial, the judge overruled Parker’s objection to White’s
testimony. Parker argued that the statement that the prosecution had provided to
him did not indicate any exculpatory evidence, including White’s criminal record.
White then testified, consistent with his prior statement, about his conversation
with Parker before the murder. White answered “Yes” when asked whether he had
been convicted of a felony “on more than one occasion,” and stated that all of his
felonies were burglaries. Exh. Vol. 8 at 1483-84. He also responded that he had
not been promised anything, including that there would be no objections to his
release, in exchange for his testimony.
During the motion for new trial hearing, however, Parker’s counsel learned
that, at the time of White’s testimony on 6 June 1989, White had been convicted of
theft, receiving stolen property, burglary, and unlawful breaking and entering.
White also had an earlier burglary conviction in 1985. Parker’s counsel also
learned that, although White was originally scheduled to be released on 24 May
1989, his release was delayed on 19 May 1989 (the same day that he provided his
statement). White had submitted a request for the Supervised Intensive Restitution
Program (SIR) in March 1989. His application was approved and he was
scheduled for SIR release on 24 May 1989. On 10 May 1989, however, the
29
Lauderdale County District Attorney filed a “protest” to White’s placement in SIR.
Exh. Vol. 10 at 1845-46, 1850-51. On 26 May 1989, the prison’s Director of
Classification disapproved of the protest and advised that White was to be placed
into SIR on 26 May 1989 “regardless of the protest.” Id. at 1851, 1863-64. On 12
June 1989 (one week after his testimony in Parker’s trial in Colbert County),
White’s release into SIR was approved and, on 14 June 1999, he was released from
confinement and put into the SIR program.
On 18 May 1989, while White’s SIR application was being reviewed, May
was advised that White might have a connection with Parker’s case. May
attempted to have White interviewed immediately, but was unable to have the
interview conducted until 19 May 1989.
On appeal, the Alabama Court of Criminal Appeals found that there was “no
evidence that the prosecution suppressed any evidence whatsover.” Parker I, 587
So. 2d at 1086. It noted that (1) the contention that White’s testimony was secured
in exchange for his release was “supported only by a coincidence of facts,” (2)
Parker was aware that White would testify before the trial, and (3) there was no
evidence that the prosecution had obtained or had possession of White’s arrest
history or knowledge of his prior convictions. Id. at 1086-87.
The district court held that the Alabama court did not unreasonably apply the
30
Brady suppression element and that the decision was not based on an unreasonable
determination of the facts. It also held that Parker failed to prove prejudice with
regard to either claim.
Once a defendant requests the discovery of any favorable evidence material
to either guilt or sentence, the prosecution’s suppression of such evidence, whether
in good or bad faith, violates due process. Brady, 373 U.S. at 87, 83 S. Ct at 1196-
97. The prosecutor has a duty not only to disclose such favorable evidence but
also “to learn of any favorable evidence known to others acting on the
government’s behalf . . . .” Kyles v. Whitley, 514 U.S. 419, 432, 437, 115 S. Ct.
1555, 1565, 1567 (1995). The duty exists whether or not the prosecutor knew of
the existence of the evidence if the evidence was in the possession of the
government arm or generally provided only to governmental entities. Martinez v.
Wainwright, 621 F.2d 184, 186-87 (5th Cir. 1980). The prosecution does not,
however, have an obligation to seek evidence of which it has no knowledge or
which is not in its possession. United States v. Luis-Gonzalez, 719 F.2d 1539,
1548 (11th Cir. 1983). Further, there is no suppression if the defendant knew of
the information or had equal access to obtaining it. Maharaj v. Sec’y of the Dep’t
of Corr., 432 F.3d 1292, 1315 n.4 (11th Cir. 2005). In Alabama, a defendant has
access to convictions records which are “matters of public record” and “available
31
through counsel’s own efforts.” Ex parte Perkins, 920 So. 2d 599, 606 (Ala. Crim.
App. 2005) (per curiam).
To demonstrate a Brady violation, a defendant must show that: (1) the
cumulative effect of evidence was favorable because it was exculpatory or
impeaching; (2) the evidence was willfully or inadvertently suppressed by the
prosecution; and (3) the evidence was material; and (4) that the failure to disclose
the evidence was prejudicial. Bradley v. Nagle, 212 F.3d 559, 566 (11th Cir. 2000)
(citation omitted). The prosecution is not required to provide its entire file to the
defense, but must disclose “material” evidence. Stephens v. Hall, 407 F.3d 1195,
1203 (11th Cir. 2005) (citing United States v. Bagley, 473 U.S. 667, 675, 105 S.
Ct. 3375, 3380 (1985)). Excluded evidence is material “only if there is a
reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different. A ‘reasonable probability’ is a
probability sufficient to undermine confidence in the outcome.” Bagley, 473 U.S.
at 682, 105 S. Ct. at 3383.
The Alabama Court of Criminal Appeals reasonably applied Brady in
finding that the prosecutor did not suppress evidence of White’s convictions. The
prosecutor provided Parker with all of the information that he had and there was no
showing that the prosecutor had knowledge of White’s other convictions. White’s
32
conviction record was available to Parker’s attorneys and used by them in support
of the motion for new trial. Further, Parker did not show prejudice. The jury heard
White’s testimony that he had multiple convictions for burglary; his convictions
for theft and breaking and entering were not materially different enough to provide
additional bases for discrediting his testimony. Further, even if White’s testimony
was discredited, same or similar testimony was presented that Parker was looking
for a gun on the morning of the murder and that Parker admitted to participating in
a murder for hire scheme.25 Parker is, therefore, also unable to show materiality for
White’s arrest record.
There was also no showing that the Colbert County prosecutor had any
knowledge related to White’s release or of the delay of his release due to the
protest filed by the Lauderdale County prosecutor. White’s application for the
SIR program was filed months before May learned of his connection with Parker,
and was approved before White’s interview or testimony. White testified that no
one had promised him anything in exchange for his testimony, and May testified
25
Donald Larry Buckman testified that, on the morning of the murder, Parker and Smith
visited Buckman’s home but stayed in Parker’s car. Buckman said that Smith asked him if he
knew where they could find a gun. After Buckman responded that he did not know, Smith asked
if Buckman wanted to take a ride with them, but Buckman declined.
May testified that Parker said initially that he was given $1000 to allow Williams and
Smith to use his car to kill Dorlene. Later, while testifying regarding Parker’s admission to his
participation in the crime, May said that Parker told him that after leaving the Sennett’s
residence, he and Smith drove to Williams’ house where he collected $900 and that he had
received $100 the day before to buy a handgun.
33
that no one had promised White a SIR release in exchange for his testimony.
White’s SIR supervisor also stated that no one in the Board of Corrections’ chain
of command, except possibly the Prison Commissioner or the prison’s Director of
Classification, could move a prisoner to SIR in exchange for his testimony in a
case and that he knew of no one who had been so moved.
Parker has not shown that the Alabama Court of Criminal Appeals
unreasonably determined the facts regarding his Brady claim as to White’s release
when it held that the claim was “supported only by a coincidence of facts” or
unreasonably applied Brady in holding that he failed to prove that the prosecution
suppressed knowledge of a release agreement. Parker I, 587 So. 2d at 1086-87.
D. Ineffective Assistance of Counsel
Parker argues that there were multiple deficiencies that resulted in
ineffective assistance of counsel during the trial and sentencing. He explains that,
although his attorneys recognized that they were not qualified or prepared to
competently handle a capital trial, their motions for removal from the case were
denied.
In order to present a claim of ineffective assistance of counsel, the defendant
must show that (1) counsel’s performance was deficient and (2) the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687,
34
104 S. Ct. 2052, 2064 (1984). The defendant must make both showings in order to
establish that the conviction or sentence was caused by “a breakdown in the
adversary process that renders the result unreliable.” Id. at 687, 104 S. Ct. at 2064.
The deficient performance inquiry focuses on “whether counsel’s assistance was
reasonable considering all of the circumstances,” and is judged under an “objective
standard of reasonableness.” Id. at 687-88, 104 S. Ct. at 2064-65. The petitioner
bears the heavy burden of proving that “no competent counsel would have taken
the action” taken by his counsel. Callahan v. Campbell, 427 F.3d 897, 933 (11th
Cir. 2005) (quotation marks and citation omitted). “Because of the difficulties
inherent in making the evaluation [of reasonable assistance], a court must indulge a
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance” and “the defendant must overcome the
presumption that, under the circumstances, the challenged action” could be
considered trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
Although the Strickland presumption is demanding, it is not insurmountable.
Chatom v. White, 858 F.2d 1479, 1485 (11th Cir. 1988). It can be met when the
deficient actions center on a single sufficiently egregious and prejudicial incident.
Id. And it may be assessed against the seriousness of the charges filed against the
defendant. Magill v. Dugger, 824 F.2d 879, 886 (11th Cir. 1987). Additional, but
35
cumulative, evidence which could have been presented does not, however,
establish ineffective assistance. Van Poyck v. Fla. Dep’t of Corr., 290 F.3d 1318,
1324 n.7 (11th Cir. 2002) (per curiam).
1. Parker’s Intoxication and Impairment at the Time of Statement
Parker maintains that his attorneys were ineffective because they failed to
address his impairment at the time of his statement and failed to hire expert
witnesses who could specifically address this impairment in testimony at the
suppression hearing.
During the suppression hearing, Fountain testified that she had been with
Parker the entire day of the arrest and that he had begun drinking beer and smoking
marijuana early in the day. Fountain said that Parker drank at least “six to eight”
beers and had smoked at least “[f]ive to six joints” of marijuana that day. Exh.
Vol. 2 at 238-239, 248. She commented that he had also been “shooting up”
Talwin, but she did not recall seeing him do so on the day of the arrest. Id. at 238-
39, 248.
May testified that Parker asked to speak with him sometime after 5:45 in the
afternoon on 31 March 1988. May met with Parker and, after advising Parker of
his Miranda rights, Parker made his statement. May explained that he was trained
to look for evidence of drug or alcohol use during interrogations but that he did not
36
detect any signs of drug or alcohol impairment on Parker and that Parker appeared
to understand what he was saying. May testified at trial that, after Parker began his
initial statement, he asked Parker whether he was telling the truth and Parker
changed his story.
Dr. James Edward Crowder, a local clinical psychologist, testified. Based
on the evidence of Parker’s alcohol and drug use at the time of his arrest, Crowder
opined that Parker would “have had a reduction in his ability to withstand pressure
[and] frustration and . . . would have had to some extent an impairment in his
judgment.” Exh. Vol. 2 at 259-60. On cross-examination, he conceded that an
experienced drinker could develop a tolerance to alcohol that would permit him to
function with a higher level of alcohol. Crowder explained that, if Parker’s
judgment was impaired by alcohol or drugs, he might be inclined to act in a
manner “not in his best interest.” Id. at 262. He conceded that evidence of Parker’s
requests for visits with investigators in the days following his first interview might
indicate that his judgment had not changed much between his first and subsequent
visits.
During the post-conviction hearing, Dr. Peter Breggin testified as an expert
in psychiatry, forensic psychiatry, and drug abuse, and Dr. Emanuel Hriso as an
expert of neuropsychiatristry and addiction. Based on the evidence of Parker’s
37
alcohol and drug use on the day of his arrest26, Breggin opined that by the time of
his statement at 5:30 P.M., Parker would have been in a mixed state of alcohol and
marijuana intoxication and alcohol withdrawal. He explained that Parker would
have been suffering from anguish, desperation, discomfort, and pain as a result of
alcohol withdrawal compounded by his inability to inject Talwin. Breggin stated
that the combination of withdrawal, brain damage, and neuropsychological deficits
would have altered Parker’s judgment and made it more difficult for him to control
his impulses. He explained that, “driven by a combination of intoxication[,]
addiction withdrawal[,] and memory problems” “more than his will,” he may have
understood the basic questions but would have felt “an extreme amount of urgency
to say yes to anything that he thought would get him . . . home.” Exh. PC Vol. 11
at 202-03. He noted that the sedative drugs that Parker was using, alcohol and
marijuana, would have acted as a truth serum to “loosen his control over his own
willful processes.” Id. at 203-06.
Hriso commented that Parker’s alcohol and marijuana use could sedate and
impair Parker’s judgment so that he could not control his normal defenses and
would not be unable “to make correct declarations.” Exh. PC Vol. 14 at 717-18.
26
Although Breggin also explained that Parker was addicted to intravenous injections of
Talwin and the problems associated with such, the trial judge reminded him that there was no
evidence of Parker’s use of Talwin on the day of his statement.
38
He also noted that Parker would have been vulnerable to Talwin withdrawal, to an
impaired judgment, and to an inability to understand the exact meaning of words
spoken to him. Hriso explained that, because erratic behavior was expected in
such a state, it was understandable that Parker would have asked to speak to May
and had confessed to the crime.
The determination of a confession’s voluntariness requires an examination
of the totality of the circumstances and ultimately requires an inquiry into whether
the statement was “the product of an essentially free and unconstrained choice.”
Hubbard v. Haley, 317 F.3d 1245, 1252-53 (11th Cir. 2003) (citation and quotation
marks omitted). We consider a number of factors, and the presence of one alone is
not determinative. Id. at 1253. A confession that was not the product of free will
and rationale intellect or that was made when the individual’s will was “overborne”
by physical, psychological, or drug-induced means, is inadmissable. Townsend v.
Sain, 372 U.S. 293, 307, 83 S. Ct. 745, 754 (1963), overruled on other grounds by
Kenney v. Tamayo-Reyes, 504 U.S. 1, 5, 112 S. Ct. 1715, 1717 (1992). In
determining whether or not a confession is constitutionally voluntary, the truth or
lack thereof of the statement is irrelevant. See Rogers v. Richmond, 365 U.S. 534,
544, 81 S. Ct. 735, 741 (1961).
In Alabama, although a confession will be deemed inadmissable if the
39
defendant’s mind was “substantially impaired” at the time of the confession,
“[i]ntoxication, short of . . . impairment of the will and mind as to make the
individual unconscious of the meaning of his words, will not render a statement or
confession inadmissable.” Free v. State, 495 So. 2d 1147, 1156 (Ala. Crim. App.
1986) (citation and quotation marks omitted). The voluntariness determination is a
matter of law for the trial court, and that court’s decision will not be reversed
unless it is manifestly wrong or contrary to the great weight of the evidence. Id.
The state courts rejected this claim because there was not a reasonable
probability that the outcome of the suppression hearing would have been different
with the experts’ testimony or that the exclusion of Parker’s statement would have
changed the jury determination of guilt. The state trial judge found that “[n]othing
presented at the [post-conviction] hearing is of such nature that this Court would
have ruled differently on [Parker’s] suppression motion if this Court had been
presented with this evidence at trial.” Exh. PC Vol. 3 at 527. The state appellate
court held that Parker failed to show that he was prejudiced by his attorneys’
failure to call expert witnesses at the suppression hearing and therefore failed to
show that his attorneys were ineffective. The district court correctly held that this
conclusion was objectively reasonable. None of Parker’s post-conviction experts
examined Parker on the day of his statement; their testimony was based on his
40
medical history and their opinions that Parker would have been suffering
withdrawal or impairment. May did not detect any signs of impairment when
Parker made his statement, and Crowder indicated that Parker’s subsequent contact
with the officers might indicate that he was no more impaired than he had been
during his first statement. Parker was cognizant of his situation when he began his
statement, and drove himself, Fountain, and a law enforcement officer to the
courthouse.27
The state court’s factual determination that Parker exercised his free choice
was not objectively unreasonable or disproved by clear and convincing evidence.
The district court correctly held that the state court reasonably applied Strickland in
finding no prejudice. Parker also failed to prove deficient performance. His trial
attorneys did present evidence regarding the effects of his drug use at the
suppression hearing. Any additional evidence would have been merely
cumulative.
2. Experts Regarding the Murder and Weapon
Parker contends that his trial counsel failed to make proper use of the
evidence which showed that Parker, who was in Florence at 11:30 A.M., could not
27
Despite conflicting testimony regarding who drove the car to the courthouse, the trial
court accepted the testimony that Parker was the driver. There was no clear and convincing
evidence presented to rebut this.
41
have inflicted the fatal stab wounds, which were inflicted no earlier than 11:42
A.M. He maintains that Veasey’s testimony during the post-conviction hearing
regarding the time of the fatal attacks bolstered Parker’s theory of the crime and
was actually consistent with the testimony of prosecution witnesses at trial. Parker
also maintains that his attorneys were ineffective for (1) failing to present available
evidence that Charles Sennett killed his wife after Parker and Smith left the Sennett
residence, and (2) failing to call a qualified expert to address the prosecution’s
allegations that Parker’s survival knife was the murder weapon. He maintains that
none of the experts who testified at the trial were qualified to meaningfully address
the relationship between Dorlene’s wounds and the size and shape of the knife.
At trial, all three doctors who testified regarding the pathology of Dorlene’s
death indicated that the fatal stab wounds appeared to have been inflicted within
minutes of the law enforcement officials’ arrival at the Sennetts’ home at 12:09
P.M. It is uncontested that Parker was not at the residence at that time. Dr. Emily
Ward, the forensic pathologist who performed Dorlene’s autopsy, described the
wounds as “rapidly fatal” because they would cause death in no more than five
minutes from blood loss and the accumulation of air in the chest cavity. Exh. Vol.
6 at 1012-13. Dr. McKinley believed that the primary fatal wounds were made to
Dorlene’s chest within 30 minutes of the emergency medical team’s detection of a
42
pulse.28 Board certified forensic pathologist Dr. James Allen Barksdale opined that
the wounds were inflicted “[w]ithin a very few minutes” of the emergency medical
team’s detection of a heartbeat.29 Exh. Vol. 8 at 1537. May testified that his
investigation confirmed that Parker was in Florence at 11:30 A.M. on the morning
of the murder, and that it normally took about 30 minutes to drive from the
Sennetts’ home to Florence.
During the trial, there was conflicting testimony presented as to whether
Parker’s survival knife was the murder weapon. Dr. McKinley did not believe that
Parker’s knife was the murder weapon. He did not, however, examine the length
and widths of the stab wounds to determine whether or not the knife matched the
wounds. Dr. Barksdale also reviewed the evidence and did not believe that
Parker’s knife was the murder weapon. He admitted that he did not participate in
the autopsy and that it was hard to make a judgment based solely on the pictures
unless the view was “straight on.” Exh. Vol. 8 at 1540-41, 1544-45.
Dr. Ward testified that the size and irregularity of Dorlene’s stab wounds
matched the irregular, jagged back-side of Parker’s survival knife. She testified
28
The emergency medical team arrived at the Sennetts’ residence at 12:09 P.M. The
team’s report reflected a pulse rate “approximately 2 minutes or so after 12:09." Exh. Vol. 6 at
1049.
29
During his questioning of Dr. Barksdale, Parker’s attorney stated the evidence showed
the time of the emergency medical team’s detection as “approximately 12:15 P.M.” Exh. Vol. 8
at 1537.
43
that Dorlene sustained defensive wounds and did not likely survive more than five
minutes after being stabbed. Alabama forensic supervisor John Kilborn testified
that Parker’s knife contained “one colorless wool fiber at the hilt” that was
“similar” to the fiber on the afghan found at the Sennetts’ home. Exh. Vol. 7 at
1348.
At the post-conviction hearing, Parker presented the testimony of board
certified forensic pathologist Dr. Sparks P. Veasey. Veasey explained that, in
examining a stab wound, a pathologist measures the length of the wound across the
skin and the approximate depth of penetration. He said that the approximation of
the wound depth could be the same size as the knife that inflicted the wound or
vary from shorter to longer based on tissue differences, lung deflation, abdominal
and skin flexibility, abdominal or chest wall compression, and the amount of force
used. He rejected for lack of medical certainty Ward’s statements regarding the
correlation between th e wound and the knife and the “unusual” characteristics of
the wound as necessarily being caused by a jagged or serrated edge. Exh. PC Vol.
14 at 809-12, 817, 819. Veasey noted that certain characteristics of the knife
should have correlated with the wounds but did not. He pointed out that the knife
admitted into evidence had a hilt or guard that separated the blade from the handle
and that, if thrust forcefully into a victim, it would leave patterned abrasions or
44
contusion injuries around the wound which were not found on Dorlene’s wounds.
Veasey also explained that the width, or distance between the sharp and dull sides,
of the admitted knife was inconsistent with the width of the wounds. Veasey
opined that Dorlene’s wounds, which consisted of both blunt trauma and cutting
injuries, occurred at two separate times: the earlier blunt trauma episode in which
she attempted to defend herself and was thus “cognizant” of the attack, and the
later cutting episode, which showed no evidence of defensive actions and occurred
within thirty minutes of the emergency medical team arrival. Id. at 835-41. On
cross-examination, Veasey admitted that he had trouble seeing “certain details”
from the wound pictures and that Dr. Ward would have been in a better position to
see the wound details. Id. at 846-47. He conceded that Parker’s knife could have
been the murder weapon.
The state court noted that Veasey’s testimony would not have changed the
outcome of the trial but would have supported the prosecution’s theory of the
crime, and went to the weight of the evidence the jury placed on Ward’s testimony.
The state appellate court held that Parker was not prejudiced because the additional
expert witness’s additional testimony was cumulative. Parker’s attorneys
presented witnesses during the trial who testified that Parker’s knife was not the
murder weapon. Because Veasley’s testimony would have been cumulative, the
45
district court correctly held that the state court reasonably applied Strickland.
3. Expert testimony regarding Parker’s brain damage and alcohol use
Parker argues that his trial counsel failed to present evidence regarding the
full extent and impact of Parker’s drug addiction and brain damage. He maintains
that the post-conviction testimony of Doctors Breggin, Hriso, and Marson
established the availability of substantial mitigating evidence that was neither
cumulative nor substantially similar to other evidence.
At sentencing, Parker presented three witnesses: Joan Parker (“Joan”),
Parker’s mother; Dr. James Crowder, the clinical psychologist; and Charlotte
Dean, Parker’s eighth grade teacher. Joan testified that Parker was a very active
child and suffered a head injury that left him unconscious for about two days when
he was two years old. While Parker was in kindergarten and first grade, he was
observed intensely shaking and vomiting in response to any kind of pressure, and
had a short attention span. Joan took him to a doctor who diagnosed Parker with
hyperactivity, put Parker on Ritalin so that he could sit still and listen, and advised
her to place Parker in a school atmosphere that would permit him to learn at his
own speed. The Ritalin calmed Parker but Joan did not give Parker the prescribed
dosage because it interfered with his ability to sleep. When Parker was about 10 to
12 years old, he was taken off Ritalin. About the same time, Parker fell behind his
46
classmates scholastically and began to hang out with some older boys who
supplied him with marijuana and alcohol. About six weeks after being removed
from Ritalin, Parker began showing severe physical reactions. He did not adjust
well to middle school and, despite Joan’s pleas, was never placed into special
education classes. When Parker was in middle school, he was placed in a six-week
drug treatment program because of his parents’ concerns about his marijuana and
pill use. About four months after leaving the program, however, Parker slipped
back into using drugs and alcohol. When Parker was 18, he returned to a drug
treatment program. By 23 March 1988, however, Parker was using drugs
intravenously. Joan explained that the only violent acts she observed from Parker
were directed toward himself or inanimate objects.
Dr. Crowder saw Parker for evaluations in 1983 and in 1990 for emotional
problems and treatment. He tested Parker using the Minnesota Multiphasic
Personality Inventory for personality characteristics and mental illness diagnostics,
the Wechsler Adult Intelligent scale, and a Wide Range [Academic] Achievement
test to measure his scholastic achievements. The tests revealed that Parker had an
intelligence quotient of 83, read and performed arithmetic at a seventh grade level,
and felt that he was “not a very good person” and “inadequate when compared to
other people.” Exh. Vol. 9 at 1739-41. Crowder explained that the intelligence
47
and achievement tests indicated that Parker was not good at making decisions or
judgments or retaining information for a long period of time, and was better at
working with his hands than with words. Crowder noted that the personality
inventory indicated that Parker felt “a great deal of guilt and remorse for his
actions,” had “trouble controlling his impulses,” and was “anxious” and “restless.”
Id. at 1741-42. Crowder said that he knew of no significant Ritalin withdrawal
symptoms.
Dean testified that Parker was a quiet, easy going student, but that she never
felt that she was able to reach, inspire, or motivate him. She said that he “chose to
run around with the wrong kind of people,” became involved in drugs, and
“seemed sad and melancholy most of the time.” Id. at 1756-57. She commented
that he had not matured emotionally, intellectually, or socially after the 7 th grade
but was never a discipline problem or violent and was accepting of authority.
During the post-conviction hearing, Parker’s attorneys, H. Thomas Heflin
and Gene Hamby, testified. Heflin said that he attempted to explain Parker’s drug
problem to the jury through Crowder’s testimony and by introducing Parker’s past
medical records. He said that he and Hamby had discussed using Crowder as the
expert and that they had also unsuccessfully attempted to contact Dr. Nyland, a
neuropsychiatrist or psychologist, who had treated Parker. Heflin did not recall
48
any efforts to find a toxicologist or another psychiatrist, and used Crowder to
discuss Parker’s drug use because “he was the witness we had.” Exh. PC Vol. 10
at 46; PC Vol. 11 at 135-36. Heflin did not discuss Crowder’s qualifications with
him and did not know if Crowder had testified in other criminal proceedings.
Hamby recognized that Parker’s mental abilities were “limited” due to his drug
problems and head injury but was unaware of what an expert could do to explain
those problems to the jury. Exh. PC Vol 13 at 528-59. Hamby explained that he
called Crowder to testify because he was unable to find a psychiatrist who had
treated Parker. Hamby did not remember considering hiring a toxicologist for the
suppression hearing.
Clinical psychologist Glen David King testified for Alabama as an expert
witness in clinical psychology and forensic examinations. After reviewing the trial
record, including Parker’s mental health records, King opined that Parker “well
understood [and appreciated] the difference between right and wrong” at the time
of the offense. Exh. PC Vol. 15 at 881-82, 886. He noted that Parker had
evidenced his understanding of his actions by engaging in a series of goal-directed
behaviors over a fairly lengthy period of time. He observed that Parker’s actions
included: (1) making a contract for pecuniary gain, (2) driving to the Sennetts’
home, (3) committing the murder, and (4) attempting to cover the murder by
49
making it appear as a robbery, all of which evidenced a “consciousness of guilt.”
Id. at 888-89. He believed that the combined effect of Parker’s intelligence
quotient and mental impairments from long-term poly-substance abuse and
intelligence quotient was outweighed by his goal-directed sequence-patterned
behaviors in the crime. King commented that
individuals who commit crimes as a result of . . . serious mental
illness or mental defect, usually commit crimes that are random in
nature; they will often stay around the crime scene. It is fairly clear to
people who observe them that they are operating under some delusion
or hallucinatory compulsion, and none of these behaviors have been
reported for Mr. Parker.
...
When somebody commits a crime under mental illness or
mental defect . . . usually their behavior is random. It may not make
sense to those who observe . . . from the outside. There doesn’t
appear to be much of an obvious motive behind it.
[T]hey often engage in these kinds of random[,] unusual or
peculiar behaviors on regular basis. It’s not something that occurs
once and doesn’t occur again, or it doesn’t occur for months at a time.
Id. at 889-90.
Parker’s mitigation strategy was effective. The jury recommended a
sentence of life without parole. The trial court, however, overrode the jury
recommendation and sentenced Parker to death, finding that the aggravating
circumstance of “[k]illing a human being, intentionally and deliberately, for
money, evidence[d] a total and complete disregard for the value and uniqueness of
human life” and outweighed the mitigating circumstances. Parker II, 610 So. 2d at
50
1181. It considered the mitigating circumstances of Parker’s age, remorse, lack of
prior criminal history, and the jury’s recommendation, but rejected the mitigating
circumstance regarding Parker’s drug use. Id. at 1179-81. It found that Parker’s
“capacity . . . to appreciate the criminality of his conduct or to conform his conduct
to the requirements of law” was not “substantially impaired.” Id. at 1180.
Although it acknowledged Crowder’s testimony regarding the impairments to
Parker’s judgment caused by his drug use, it recognized evidence of Parker’s
“actual actions during and after” Dorlene’s murder which demonstrated the lack of
his impairment. Id. It noted that evidence of Parker’s appreciation for the
criminality of his conduct and the possibility of his apprehension included his
placing cotton socks over his hands before the murder, throwing away the weapon
after the murder, making the scene look like a burglary, throwing away the stereo,
and burning his clothes. It found that there was “no proof” that Parker’s drug
addition was based on his childhood medication for hyperactivity and that Parker’s
childhood problems were “appropriately treated.” Id.
During the post-conviction proceedings, the state judge ruled that the expert
testimony regarding Parker’s drug addition and brain damage was “substantially
similar” to the testimony offered at sentencing and that the other testimony of
Parker’s drug use and mental problems was “cumulative, repetitive and
51
redundant.” Exh. PC Vol. 16, R-60 at 530-32. Based on King’s post-conviction
hearing testimony, which was consistent with Bryant and Nagi’s expert trial
testimony, the state judge was not convinced that Parker had any appreciable brain
damage relevant to the murder . The state judge concluded that “even if all of the
expert testimony had been presented at the sentencing hearing, [she] would have
still imposed the death penalty.” Id. at 518; see also id. at 519 (“[Parker] would
have received the death penalty even if the [post-conviction] testimony had been
presented at sentencing.”). The state appellate court noted that Parker failed to
show prejudice as a result of his attorneys’ failure to call additional expert
witnesses because the evidence was cumulative and the experts did not establish
that he had a mental defect, disease, or intoxication severe enough to provide a
defense for his actions or was incapable of discriminating between right and
wrong.
To show prejudice, Parker must prove that there is a reasonable probability
that the sentencing judge would have arrived at a different conclusion after being
presented with the additional evidence and reweighing the aggravating and
mitigating circumstances. In Alabama, the trial judge is the ultimate sentencer in
capital cases. Ala. Code § 13A-5-47 (1994). In this case, the sentencing judge was
the same as the post-conviction judge and clearly stated that the sentence would
52
not have been different even with additional testimony. The district court did not
err in finding that the state courts reasonably applied Strickland in rejecting his
ineffective assistance of counsel claim.
E. Probable Cause for Parker’s Arrest
Parker argues that there were no circumstances related to his detention on 31
March 1988 which justified his arrest without a warrant. He maintains that the
actions and activities of the law enforcement officers at his residence and at the
Sheriff’s Office indicate that he was not free to leave and was under the custody
and control of the Sheriff’s Department. Alabama responds that, because the state
court’s decision regarding the use of Parker’s statement was based on its
application of New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640 (1990), we need
only address whether the Alabama Court of Criminal Appeals unreasonably
applied Harris in finding that Parker’s statements were admissible.
1. Veracity of the Informant
Parker maintains that his attorneys should have established that much of the
information provided by the female confidential informant was available to anyone
acquainted with him. He claims that his attorneys should have addressed the
inconsistencies between May’s affidavit and his testimony regarding the basis for
the informant’s information.
53
In March 1988, May executed an affidavit in support of a warrant to search a
residence where he believed he would to find the VCR stolen from the Sennetts’
residence. In the affidavit, May related that an unidentified person (“the Source”)
provided information that was not publicly available regarding Dorlene’s murder,
named the persons involved, and described a VCR stolen from the Sennetts’
residence. May said that the Source claimed that “‘the preacher’ had paid Fifteen
Thousand Dollars ($15,000) to have his wife killed.” Exh. Vol. 13 at 2423. May
explained that some of the information was corroborated by another unidentified
person and by investigators who confirmed the location and description of the
identified residences of the named individuals. May recounted that the Source said
that the provided information was based on “personal observation and overhear[d]
conversations involving one or more of the individuals named.” Id. at 2428.
Parker’s attorney moved to suppress Parker’s statement, and argued that the
police lacked probable cause for the arrest. At the suppression hearing, May
testified that he obtained information regarding the crime from an anonymous
informant on 28 March 1988. The informant provided: (1) the names of three
individuals; (2) their roles in the murder; (3) their addresses and descriptions of
their residences; (4) a description of their vehicles; and (5) the location as of 18 or
19 March 1988, and identifying information regarding the VCR stolen from the
54
Sennett home. May testified that the informant had advised that she had personally
seen the VCR at Smith’s residence. May explained that the information was
verified by other investigators who confirmed the locations and descriptions of the
named individuals’ residences, the connection between the three named
individuals, and the information regarding their vehicles. The investigators
verified that John Forrest Parker existed, that he had a criminal record, and that he
lived at 2613 Huntsville Road, Apartment B, Florence, Alabama. They also
verified the information regarding his car, his physical description, his girlfriend,
and his relationship with the other named individuals. Although a search warrant
was issued regarding the VCR, no arrest warrants were to be issued until it was
executed. Law enforcement teams were dispatched to each suspect’s residence and
instructed to do nothing else until further notice. The information regarding the
VCR was then verified.
During the post-conviction hearing, May explained the inconsistencies in his
affidavit and testimony. May explained that the informant obtained her
information by being a “friend of [Smith’s] family” and confirmed that, in the
search warrant affidavit, he had indicated that her information was based on her
personal observations or the conversations involving the named individuals that
she had overheard. Exh. PC Vol. 15 at 1031-34. Although he agreed that
55
“reliability is . . . important,” when asked why the basis of the informant’s
information was not shown anywhere in his notes, May responded that, “[a]t that . .
. time[,] what she was telling me about who was involved in the murder was more
important to me than how she was getting the information.” Id. at 1033-35. May
was questioned as to whether his affidavit was correct as to the amount of money
paid for the murder, and responded that the information regarding the $15,000 was
never corroborated or revealed by the investigation. May was also asked about his
contact with a second anonymous informant. The second informant identified
himself as “calling for a girl who knew all this but did not want to get involved”
and corroborated some of the information provided by the Source. Id. at 1038.
The second informant also identified Smith as a black male and said that he knew
that the note found in Charles Sennett’s pocket after his death read “I didn’t kill my
wife. I hired someone to.” Id. at 1038-39. May responded that the Smith involved
in the case was white and that Sennett’s note did not say that he had not killed his
wife or hired someone else to kill her.
The information provided by the informant established her basis of
knowledge, reliability, and veracity. She provided numerous details about the
crime, the defendants’ actions after the crime, and the property taken during the
crime. Her information was corroborated by independent law enforcement
56
investigations and her basis of knowledge was enhanced when the VCR was
located where she indicated. Even though some of the information was publicly
available, the informant’s disclosure of it and law enforcement’s confirmation of it
supported the informant’s credibility. Her credibility, however, was firmly
established by her knowledge of the stolen VCR and the non-publicly disclosed
details that connect Parker and his co-defendants to the crime. See Parker I, 587
So. 2d at 1088; Williams v. State, 565 So. 2d 1233, 1234-36 (Ala. Crim. App.
1990).
Under a totality of the circumstances review, the informant was a credible
source for information regarding the crime and provided the police with
information that Parker was involved in the murder-for-hire scheme that led to
Dorlene’s death. They knew that the VCR stolen from the Sennetts’ home was
located in one of the named suspects’ homes. Thus, they had sufficient probable
cause to believe that one of the named suspects had committed the murder.
In Williams, the court found that “the details of the informant’s tip as
corroborated [were] sufficient both in number and specificity to establish [her]
credibility.” 565 So. 2d at 1236. It also found that the details indicating that she
had either personally observed the facts or learned them from a crime participant
supported an inference that she had an adequate basis of knowledge. Id. It noted
57
that, although the publicly-available information was entitled to little weight, the
VCR information was significant and “the cumulative effect of all information
gathered” met the standard of probable cause. Id. (quotation marks and citation
omitted). On the issue of ineffective assistance, the state appellate court held that
“in light of the fact that the informant described in . . . detail the VCR stolen during
the murder and accurately stated where it could be found, the additional
information [that Parker argued his attorneys should have introduced] was not
likely to affect the trial court’s finding” and that, therefore, Parker failed to
demonstrate prejudice. Exh. Vol. Tab 61 at 2.
Parker’s arguments fail. The accuracy as to the amount of money paid for
the murder did not enter into the probable cause determination which was based on
the totality of the confidential informant’s verified information. The fact of her
personal observation of the information was proven when the VCR was found
where the informant said that she had seen it. The district court correctly found
that the state court’s determination was a reasonable application of Strickland.
2. Lack of Probable Cause for Parker’s Arrest
Parker maintains that his attorneys failed to: (1) question the prosecution’s
witnesses concerning the inaccuracies in the informant’s statements or the affidavit
executed in support of the search warrant; (2) provide for an adequate foundation
58
for suppression of Parker’s statement, and (3) adequately demonstrate that the law
enforcement officers lacked probable cause for his arrest. He argues that evidence
that the police approached his residence with their guns drawn and patted him
down inside his home indicates that he was arrested inside his home. He contends
that no intervening circumstances extinguished the taint of his illegal arrest and
thus made his statement inadmissable. He asserts that his attorneys should have
called Colbert County Sheriff’s Office Investigator Doug Hargett who conceded
that probable cause did not exist when Parker was taken into custody.
At the suppression hearing, Hargett testified that he and three other officers
arrived at Parker’s residence on 31 March 1988, observed the residence for 30 to
45 minutes, and were advised by May “to move in” after the VCR information was
verified. Exh. Vol. 1 at 199-200; Exh. Vol. 2 at 214; Exh. PC Vol. 15 at 1059.
They then knocked on the door and asked Parker to come out. As the officers
approached the residence, they observed Parker looking out of a window and heard
“what sounded [like] someone . . . running through the apartment.” Exh. Vol. 2 at
213-14. Angela Fountain, who was in the residence, began screaming, and she and
Tony Lakey were ordered out of the apartment. The police again ordered Parker
out of the apartment and, after he stepped out, the officers patted him down and
advised him of his rights. Fountain and Lakey both remembered seeing the
59
officers’ guns drawn as they approached. The officers then asked Parker and
Fountain to go downtown to be questioned. Parker and Fountain, accompanied by
an officer, drove to the Colbert County Sheriff’s Department.30 At the Sheriff’s
Office, Parker was given Miranda31 warnings by Hargett and May before he made
any statements. The warrant for Parker’s arrest was issued the next day, 1 April
1988.
During the post-conviction hearing, Hargett admitted that the officers had
their guns drawn when they approached Parker’s residence at 2613 Huntsville
Road in Florence, Alabama to “follow up on information” that they had received
from a confidential informant but stated that they did not plan to arrest Parker.32
Exh. PC Vol. 15 at 978-79, 983-84, 986, 992, 1007, 1059. As they approached the
residence, Hargett said that they heard screams and saw Fountain in the doorway.
Hargett explained that they then ordered Fountain and Lakey out of the residence.
30
It is unclear exactly who drove the car. May testified that, to the best of his
knowledge, Parker “voluntarily drove” himself to Colbert County and was accompanied by
Fountain, Fountain’s baby, and Lauderdale County Sheriff’s Officer Charles Perkins. Exh. Vol.
1 at 192; Exh. Vol. 2 at 201-02. Fountain said that she drove their car and that she was
accompanied by Parker and one of the law enforcement officers. Hargett testified that Parker
and Fountain voluntarily agreed to return to Colbert County, and permitted Perkins accompany
them.
31
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
32
Alabama City Police Investigator Robert Wilhite corroborated Hargett’s testimony
that the officers had their guns drawn and explained that he was requested to assist the Colbert
County officers when they went to “pick up” Parker. Exh. Vol. 13 at 578, 588.
60
Hargett said that, once Parker appeared in the foyer, the officers asked him if they
could speak with him and put away their weapons. Parker was patted down for
weapons inside his living room and then ordered out of the residence. At the
officers’ request, Parker and Fountain agreed to accompany the officers to the
Colbert County Sheriff’s Office and to allow Lauderdale County Sheriff’s
Investigator Charles Perkins to ride with them. Hargett explained that Perkins
rode with Parker and Fountain to prevent them from discussing the murder.
Although Parker was not arrested until after he was interviewed at the
Colbert County Sheriff’s Office, Hargett opined that Parker was subjected to a
warrantless arrest at his residence. May stated that he was told by the district
attorney that Parker had been subjected to a warrantless arrest at his residence, and
said that the arrest report also showed that Parker was arrested at his residence.
Hargett was asked whether, after receiving confirmation from the other
investigators about their search for the VCR, he had probable cause to arrest
Parker. He responded that such information would “have given us more probable
cause” but said he did not make a decision as to whether they would have had
probable cause to arrest Parker at that time. Id. at 985.
Because of concerns for public safety and the expeditious apprehension of
criminals charged with heinous crimes, law enforcement officers with reasonable
61
cause to believe that an individual has engaged in a felony may arrest without a
warrant. Carroll v. United States, 267 U.S. 132, 156-57, 645 S. Ct. 280, 286
(1925). Probable cause exists where the facts and totality of the circumstances, as
collectively known to the law enforcement officers and based on reasonably
trustworthy information, are “sufficient to cause a person of reasonably caution to
believe an offense has been or is being committed.” United States v. Jimenez, 780
F.2d 975, 978 (11th Cir. 1986) (per curiam) (quotation marks and citation omitted);
see United States v. Roy, 869 F.2d 1427, 1433 (11th Cir. 1989). In determining
probable cause based in part on confidential informant information, a court should
consider not only the totality of the circumstances but also the “closely intertwined
issues” of the informant’s basis for knowledge, reliability, and veracity. Illinois v.
Gates, 462 U.S. 213, 230, 103 S. Ct. 2317, 2328 (1983).
Under the Fourth Amendment, police are prohibited from making a
warrantless arrest and nonconsensual entry into a suspect’s home to make a routine
felony arrest. See Payton v. New York, 445 U.S. 573, 588-90, 100 S. Ct. 1371,
1381 (1980). Such an arrest may be made, however, if the officer has probable
cause to believe that the suspect has committed an offense and where exigent
circumstances exist which make obtaining a warrant imprudent, see Payton, 445
U.S. at 589, 100 S. Ct. at 1381. Such exigent circumstances may include (1) the
62
“violent nature of the offense with which the suspect is to be charged;” (2) “a
reasonable belief that the suspect is armed;” (3) “probable cause to believe that
suspect committed the crime;” (4) firm reasons to believe that the suspect is in the
home; (5) a reasonable belief the delay could allow for the destruction of essential
evidence; (6) a reasonable belief that delay could jeopardize the safety of the law
enforcement officers or the public; and (7) a peaceful state of the entry. Bush v.
State, 523 So. 2d 538, 546 (Ala. Crim. App. 1988).
Evidence, including verbal statements, obtained as a result of an unlawful
search are subject to exclusion. See Wong Sun v. United States, 371 U.S. 471,
485, 83 S. Ct. 407, 416 (1963). Although its purpose is to prevent lawless
conduct by law enforcement officials, the exclusionary rule is not to be
“interpreted to proscribe the use of illegally seized evidence in all proceedings or
against all persons.” Brown v. Illinois, 422 U.S. 590, 600, 95 S. Ct. 2254, 2260
(1975) (quotation marks and citation omitted). An inquiry as to the applicability of
the exclusionary rule must address whether the evidence or “fruit of the poisonous
tree” was obtained by the “exploitation of that illegality or instead by means
sufficiently distinguishable [from the illegal action] as to be purged of the primary
taint.” Wong Sun, 371 U.S. at 488, 83 S. Ct. at 417 (internal quotations and
citation omitted). Where, however, the police have probable cause to arrest a
63
suspect, the exclusionary rule does not bar the prosecution’s use of the defendant’s
statement made outside of his home, even if the statement was taken after an illegal
arrest made in the home. Harris, 495 U.S. at 21, 110 S. Ct. at 1644-45.
In this case, the question is whether the information known to the law
enforcement officers at the moment of Parker’s courthouse confession was
sufficient to establish probable cause for his arrest. Probable cause was based on
corroborated information from a female confidential informant and not from
verifiable false information from a male informant. Probable cause was based on
both the detailed public information provided by the informant and the specific
information regarding the VCR. Parker is unable to show prejudice or
unreasonable performance by his counsel because the evidence of the male
informant had no bearing on the court’s admissibility of his statement. Parker is
also unable to show prejudice or deficient performance as a result of Hargett’s
statement during the post-conviction hearing that Parker was subjected to a
warrantless arrest at his residence. Hargett did not possess all of the information
regarding probable cause, did not make the decision about probable cause, and did
not ultimately make a determination about the admissibility of Parker’s statement.
On direct appeal, the state appellate court noted that the facts supplying
probable cause for Parker’s arrest were “virtually identical” to those identified in
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Williams, 565 So. 2d at 1236. Parker I, 587 So. 2d at 1088. In addressing
ineffective assistance of counsel, the Alabama Court of Criminal Appeals held that
Parker had failed to demonstrate prejudice because his “claims concerning arrest at
home and intervening events are irrelevant because the trial court found that the tip
of an anonymous informant was sufficiently corroborated to supply probable cause
for [Parker’s] arrest.” Exh. PC Vol. 16, Tab 61 at 2. Further, at the time of
Parker’s statement, he was outside of his home and the police had probable cause
for his arrest. His statement was, therefore, admissible. See Harris, 495 U.S. at 21,
110 S. Ct. at 1644-45. The district court correctly held that the state court
reasonably applied Strickland’s prejudice element because further evidence of an
in-home arrest would not have affected the admissibility of Parker’s statement.
Parker is also unable to prove deficient performance because this evidence
was cumulative. The trial court heard Fountain and Lakey’s testimony that Parker
did not go out of his house when called by the officers and that the officers went
into the house looking for him with their guns drawn and still admitted his
statement.
Because the police had probable cause to arrest Parker when he made his
statement, his statement was admissible regardless of whether or not he was
arrested in his home. The district court correctly held that the state court’s decision
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was neither contrary to nor involved an unreasonable application of law.
3. Questions Regarding Parker’s Statement
Parker maintains that his attorneys failed to address either the temporal
proximity between his first contact with the officers and his statement, or the effect
of his intervening meeting with Fountain, who was very upset at that time. He also
contends that his attorneys failed to address his impairment at the time of his
statement.
Parker arrived at the Sheriff’s Department at 3:35 P.M. “[A] few minutes”
after his arrival, he was interviewed by Hargett and began making a statement at
4:38 P.M. Exh. Vol. 2 at 203, 205. The interview stopped at 5:30 P.M. and
Hargett left the room. Parker was then permitted to visit with Fountain for about
three minutes. She had been interviewed by law enforcement officers and advised
that she needed to cooperate if she wanted to see her baby again. During her visit
with Parker, she had the baby with her and told Parker that the officers had advised
her to tell him that they believed that she and Parker were involved in a murder,
and that Smith and Williams were “blaming everything on [Parker].” Id. at 236-
37, 242-43. At 5:45 P.M., Parker was interviewed by May and, shortly thereafter,
he made his second and inculpatory statement.
During the suppression hearing, the prosecutor referenced Fountain’s
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meeting with Parker in his summation and Parker’s attorney responded by citing
Taylor v. Alabama, 457 U.S. 687, 691-92, 102 S. Ct. 2664, 2667-68 (1982).
Although this issue was not specifically addressed on direct appeal, the
Alabama Court of Criminal Appeals did state that it had “reviewed the testimony”
from the suppression hearing and found no error in the trial judge’s admission of
his statement. Parker I, 587 So. 2d at 1088.
The question of whether a defendant’s statement, given after an illegal arrest
and Miranda warnings, “is the product of a free will . . . must be answered on the
facts of each case. No single fact is dispositive.” Brown, 422 U.S. at 603, 95 S.
Ct. at 2261. The relevant factors in making the threshold determination of
voluntariness include the Miranda warnings, “[t]he temporal proximity of the arrest
and the confession, the presence of intervening circumstances, and, particularly,
the purpose and flagrancy of the official misconduct.” Id. at 603-04, 95 S. Ct. at
2261-62 (internal citation and footnote omitted). The prosecution bears the burden
of showing admissibility. Id. at 604, 95 S. Ct. at 2262.
The temporal proximity factor is evaluated based on, inter alia, the length of
time between the arrest and the confession and any intervening significant events.
A statement made “several days” after an illegal arrest is too temporally distant to
warrant admission. Id. at 605 n.11, 95 S. Ct. at 2262 n.11. Intervening significant
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events may include a lawful arraignment and the release from custody. See id.
The admission of Miranda warnings alone; a short five to ten minute visitation
with friends, one of whom was emotionally upset; or the issuance of an arrest
warrant are not, individually or collectively, considered significant intervening
events. See id. at 602, 95 S. Ct. at 2261 (Miranda warnings alone); Taylor v.
Alabama, 457 U.S. 687, 691-92, 102 S. Ct. 2664, 2667-68 (1982) (Miranda
warnings, short visitation, arrest warrant).33 Absent intervening significant events,
statements given within two hours to six hours of an arrest have been suppressed.
See Brown, 422 U.S. at 604-05, 95 S. Ct. at 2262 (two hours with no intervening
significant events); Dunaway v. New York, 442 U.S. 200, 203 n.2, 218-19, 99 S.
Ct. 2248, 2252 n.2, 2260 (1979) (less than an hour and no intervening significant
events); Taylor, 457 U.S. at 691, 102 S. Ct. at 2667 (six hours and defendant “was
in police custody, unrepresented by counsel, . . . questioned on several occasions,
fingerprinted, and subjected to a lineup”). Exclusionary purpose and misconduct is
demonstrated when the arrest was for “investigatory” reasons and was effected “to
33
In Taylor, the petitioner was permitted to have a short visit with his girlfriend and a
friend, after he had signed a waiver-of-rights form and before he confessed. 457 U.S. at 691,
102 S. Ct. at 2667. The girlfriend was, however, “emotionally upset” after “hearing the officer
advise the petitioner to cooperate.” Id. at 692 n.1, 102 S. Ct. at 2668 n.1. The Court noted that
the visit was not only “[in]sufficient to break the connection between the illegal arrest and
petitioner’s confession” but may have had the “opposite effect” on the petitioner’s ability to
consider carefully and objectively his options and to exercise his free will.” Id. at 691-92, 102 S.
Ct. at 2667-68.
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cause surprise, fright, and confusion.” Brown, 422 U.S. at 605, 95 S. Ct. at 2262
(“investigatory” arrest); Dunaway, 442 U.S. at 218-19, 99 S. Ct. at 2260
(“investigatory” arrest not cured by police’s lack of threats, and abuse, or
“protecti[on] of defendant’s Fifth and Sixth Amendment rights”); Taylor 457 U.S.
at 693, 102 S. Ct. at 2668-69 (“investigatory” arrest not cured by police’s lack of
physical abuse or defendant’s “voluntary” confession).
The state appellate court found that Parker’s claims regarding his arrest at
home and the intervening events between his arrest and his statement were
“irrelevant” because probable cause was established by corroboration of the
confidential informant’s information. Exh. PC Vol. 16, Tab 61 at 2. It concluded
that he failed to show prejudice arising out of his counsel’s failure to challenge the
temporal proximity or the impact of his meeting with Fountain and did not show
that his attorney was ineffective. Id. The district court did not err in finding that
state courts reasonably applied the law and that its determinations were not based
on an unreasonable interpretation of the facts.
III. CONCLUSION
Parker filed this appeal seeking federal habeas relief from his conviction and
death sentence for the murder of Dorlene Sennett. We hold that Parker received
effective assistance of counsel because Parker is unable to show prejudice from his
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attorneys’ representation during his motion to suppress, at trial, and at sentencing.
The jurors who were stricken from Parker’s trial were not similarly situated with
those who were seated. The prosecutor’s comments during his closing arguments,
though improper, did not prejudice Parker and were cured by the trial court’s
extensive cautionary jury instructions. There was no evidence that the prosecution
suppressed any evidence regarding their witness, and Parker was aware that the
witness would testify before trial. Probable cause for Parker’s arrest was
established when the confidential informant’s information was corroborated by law
enforcement officials. Because Parker is not entitled to relief on any of his claims,
the judgment of the district court is
AFFIRMED.
EDMONDSON, Chief Judge, concurs in the result.
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