Henry Perry Sireci v. Secretary, DOC, et al

Filing 920101221

Opinion

[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS F O R THE ELEVENTH CIRCUIT ________________________ N o . 09-14402 ________________________
FILED U .S . COURT OF APPEALS E L E V E N T H CIRCUIT D E C 21, 2010 J O H N LEY C LER K

D . C. Docket No. 02-01160-CV-MSS-KRS H E N R Y PERRY SIRECI,

Petitioner-Appellant, versus ATTORNEY GENERAL, STATE OF FLORIDA, SECRETARY, DEPT. OF CORRECTIONS,

Respondents-Appellees.

________________________ A p p eal from the United States District Court fo r the Middle District of Florida _________________________ (D ecem b er 21, 2010) B efo re TJOFLAT, CARNES and HULL, Circuit Judges. P E R CURIAM:

Henry Sireci is an inmate on Florida's death row for one count of firstd eg ree murder. Sireci appeals the district court's denial of his 28 U.S.C. § 2254 h ab eas corpus petition. Sireci was tried and convicted in October 1976 for the murder of Howard P o teet. The jury found Sireci guilty of first-degree murder and the trial court sen ten ced him to death. The Florida Supreme Court affirmed Sireci's conviction an d death sentence. Sireci v. State, 399 So. 2d 964, 972 (Fla. 1981). The United S tates Supreme Court denied certiorari. Sireci v. Florida, 458 U.S. 1116, 102 S. C t. 3500, 73 L. Ed. 2d 1378 (1982). During the intervening years, Sireci was h o u sed on Florida's death row. Sireci then filed successive motions for post-conviction relief under Florida R u le of Criminal Procedure 3.850. His first motion raised claims not at issue here; th e Florida Supreme Court affirmed the trial court's denial of those claims. Sireci v . State, 469 So. 2d 119, 121 (Fla. 1985). On the basis of his second Rule 3.850 m o tio n and subsequent evidentiary hearing, the trial court granted Sireci a new sen ten cin g proceeding. The Florida Supreme Court affirmed. State v. Sireci, 536 S o . 2d 231 (Fla. 1988). The trial court held a new penalty phase proceeding in April 1990. Sireci m o v ed the court to prevent the State Attorney from referring to the fact that Sireci

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had been sentenced to death or that he had been housed on death row. The trial co u rt granted the motion. This ruling came to the forefront of Sireci's sentencing proceeding during th e testimony of Dr. Dorothy Lewis, one of Sireci's mental health experts. Part of h er expertise derived from a study she performed on the mental health of adults an d juveniles on death row. Sireci was one of the death row inmates observed for th at study. On cross-examination, the State Attorney attempted to impeach her testim o n y that Sireci suffered from paranoid ideation, a condition "involving su sp icio u sn ess or the belief that one is being harassed, persecuted or unfairly treated ." The relevant testimony reads: Q. Isn't there a history of people actually saying things about [ S i r e c i] ? A . That is how a person, in part ­ it's usually with a, with a brain d am ag e or whatever, how that kind of experience can then also make so m eb o d y distort and misinterpret. B u t his is aware, he seemed to be aware of the times that he was teased , and then the times that he wasn't, and he just reacted. And th en he, at least he believed the people who said, I didn't say an yth in g . That's all I can tell you now. M ayb e they did and maybe he shouldn't have believed them, but ­ Q. Maybe it's not a paranoid ideation, is that correct? A . Maybe it's not, but I would put my reputation on the fact that it is. It is ­ I mean, it's demonstrated. It's one of the research criteria. Q . It's what you expected to find of this man on death row, isn't that c o r r e c t?
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(emphasis added). T h e trial court stopped the cross-examination and held a bench conference, w h ere Sireci's counsel moved for a mistrial. Counsel argued to the court: It's been clear that there's to be no mention that Henry Sireci ever had d eath row status. We have taken great pains to do that. And now the cat is literally out of the bag and there's no way to come back from it. There's certainly no cautionary instruction that would cure the taint. It would only draw more attention to it. And that the only recourse co u ld be, at this point, a mistrial. The court denied the motion for a mistrial, but cautioned the State Attorney. Sireci's counsel lodged a continuing objection on the grounds of the Fifth, Sixth, E ig h th and Fourteenth Amendments to the United States Constitution. The court d id not provide a curative instruction or ask the jury to disregard the State A tto rn ey's reference to death row.1 A t the close of the evidence and after counsel made their closing arguments, th e advisory jury recommended the death sentence by a vote of 11-1. On May 1, 1990--after the advisory jury rendered its verdict, but before the trial court sentenced Sireci--Sireci filed a motion for a new penalty phase hearing b efo re a different jury. The motion asked the trial court either to empanel a new

The court did not offer to provide a curative instruction presumably because Sireci's counsel stated that an instruction would cause further prejudice. The court could have instructed the jury that Sireci was not then under a sentence of death and that where Florida chose to house Sireci had nothing to do with their job in recommending Sireci's sentence. 4

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advisory jury or to give no weight to the advisory verdict because the State A tto rn ey's reference to death row had tainted the proceeding.2 The trial court d en ied Sireci's motion on May 4, 1990, stating that "[the court] do[es] not find this ju ry was tainted by knowledge or the evidence that was inadvertently presented at th e sentencing hearing." On that same day, the trial court sentenced Sireci to d e a th . S ev eral jurors attended the May 4, 1990 sentencing hearing. After Sireci w as sentenced, juror Charles Miller spoke with one of Sireci's investigators. Miller informed the investigator that the jurors discussed whether Sireci had p rev io u sly been sentenced to death and that it impacted their deliberations. Relying on this information, Sireci's attorney moved the court for leave to in terv iew the jurors.3 He submitted a supporting affidavit from Sireci's in v estig ato r recounting his conversation with juror Miller. The court heard the m o tio n on May 11, 1990. Sireci's attorney argued that juror interviews would b etter show whether the "death row" comment actually prejudiced the jurors' d elib eratio n s. Although not explicit, the motion impliedly asked the trial court to

The motion for rehearing was also grounded in (1) impermissible victim impact evidence and (2) the fact that the State Attorney elicited testimony that Sireci lacked remorse, which was not a statutory aggravating factor. Counsel did not couch the motion as a motion to reconsider the court's May 4th ruling; the motion only asked to interview the jurors. 5
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revisit its ruling that the jury had not been tainted by the death row comment. The co u rt denied Sireci's motion to interview the jury, stating O n e of the considerations this court made when I originally granted th e motion in limine was that this jury would probably figure out that M r. Sireci had, in fact, been sentenced to death and been on death ro w . I think any halfway intelligent juror was going to make that d eterm in atio n based upon the facts of this case. And I don't see that th at's going to render their verdict invalid. And I don't think you're g o in g to find that out through interviewing the jurors. T h e Florida Supreme Court affirmed Sireci's death sentence. Sireci v. State, 5 8 7 So. 2d 450, 455 (Fla. 1991) (per curiam). It first held that the trial court did n o t abuse its discretion in denying Sireci's motion for a mistrial. Id. at 453. According to the court, two portions of the record supported the trial court's statem en t that most jurors would infer that Sireci had been on death row. Id. First, D r. Lewis testified on direct examination as a defense witness regarding her study o f death row inmates, a study which included Sireci. Id. Second, the jury would lik ely suspect that Sireci had previously been sentenced to death because of the tim e-lap se between the murder and the sentencing hearing. Id. Regarding Sireci's m o tio n to interview the jurors, the court "note[d] only that the Evidence Code p ro h ib its judicial inquiry into the emotions, mental processes, or mistaken beliefs o f jurors." Id. (citing Fla. Stat. § 90.607(2)(b)). Sireci filed a petition for a writ of habeas corpus in the United States District

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Court for the Middle District of Florida on October 3, 2002. His amended petition raised twelve claims, including his claim that the trial court erred by not granting a m istrial and further erred by refusing to allow Sireci to interview the jurors to p ro v e the prejudice of the "death row" reference. The district court denied Sireci's p etitio n but granted him a Certificate of Appealability under 28 U.S.C. § 2253 on th e issue of whether the state court violated Sireci's constitutional rights by d en yin g his motion for a mistrial and denying his motion to interview the jurors. B ecau se Sireci filed his habeas petition after April 24, 1996, this case is g o v ern ed by the Antiterrorism and Effective Death Penalty Act of 1996 ("A E D P A "). See Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010). Under A E D P A , federal courts cannot grant state prisoners habeas relief unless the state co u rt adjudication of the petitioner's claim on the merits (1) resulted in a decision that was contrary to, or involved an u n reaso n ab le application of, clearly established Federal law, as d eterm in ed by the Supreme Court of the United States; or (2 ) resulted in a decision that was based on an unreasonable d eterm in atio n of the facts in light of the evidence presented in the S tate court proceeding. 2 8 U.S.C. § 2254(d). Having decided the Sireci's claims on the merits, the Florida S u p rem e Court's decision receives AEDPA deference. After reviewing the record, we find that the Florida Supreme Court's

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decision was neither an unreasonable application of federal law, nor based on an u n reaso n ab le determination of the facts. The time-lapse between Sireci's crime an d the sentencing hearing, combined with his own expert's testimony regarding h er death row study, would have alerted the jury to the fact that Sireci was being h o u sed on death row. Such an inference is not an unreasonable determination of th e facts. 28 U.S.C. § 2254(d)(2). As such, the Florida Supreme Court did not u n reaso n ab ly apply federal law when it determined that the prosecutor's reference to death row did not prejudice Sireci's sentencing hearing.4 L ik ew ise, we cannot disturb the denial of Sireci's motion to interview the ju ro rs. The Florida Supreme Court cited its rule of evidence prohibiting testimony b y jurors that "essentially inheres in the verdict or indictment." Fla. Stat. § 9 0 .6 0 7 (b )(2 ). This rule is similar to Rule 606(b) of the Federal Rules of Evidence, w h ich reads: Upon an inquiry into the validity of a verdict or indictment, a juror m ay not testify as to any matter or statement occurring during the co u rse of the jury's deliberations or to the effect of anything upon that o r any other juror's mind or emotions as influencing the juror to assen t to or dissent from the verdict or indictment or concerning the ju ro r's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was im p ro p erly brought to the jury's attention, (2) whether any outside

We also note that a curative instruction would have been sufficient to cure what taint, if any, the State Attorney's comment created. Sireci's attorney, however, rejected that option and stood firm on his motion for a mistrial. 8

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influence was improperly brought to bear upon any juror, or (3) w h eth er there was a mistake in entering the verdict onto the verdict fo rm . A juror's affidavit or evidence of any statement by the juror m ay not be received on a matter about which the juror would be p reclu d ed from testifying. Fed. R. Evid. 606(b). Under the rule, courts can inquire only as to "external" in flu en ces over the jury's deliberations. Tanner v. United States, 483 U.S. 107, 1 1 7 , 107 S. Ct. 2739, 2746, 97 L. Ed. 2d 90 (1987). "External" influences are facto rs that come to the jury's attention from outside of the proceedings in the trial co u rt. See, e.g., Parker v. Gladden, 385 U.S. 363, 363­64, 87 S. Ct. 468, 470, 17 L . Ed. 2d 420 (1966) (per curiam) (bailiff making disparaging comments about the d efen d an t to the jurors); Remmer v. United States, 347 U.S. 227, 228­230, 74 S. C t. 450, 450­451, 98 L. Ed. 654 (1954) (bribe offered to juror). "Internal" influences, on the other hand, include actions during court p ro ceed in g s and internal jury deliberations. Prohibiting testimony into these areas d o es not violate the constitution. Tanner, 483 U.S. at 126­27, 107 S. Ct. at 2751 (h o ld in g that Rule 606(b) does not violate the Sixth Amendment). This is because o th er procedural devices protect a defendant's trial rights, such as juror voir dire an d trial court oversight. Id. at 127, 107 S. Ct. at 2751. The death row comment Sireci complains of is an "internal" influence. The S tate Attorney's comment was made in open court and fully in view of the trial

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judge. Unlike Parker, where the bailiff's statements were made outside the trial p ro ceed in g s, 385 U.S. at 363­64, 87 S. Ct. at 470, the trial judge here was perfectly ab le to ascertain potential prejudice of the State Attorney's statements and provide im m ed iate remedies, such as a curative instruction. Therefore, the Florida S u p rem e Court's denial of Sireci's request for an evidentiary hearing was not an u n reaso n ab le application of federal law. For the same reasons, the district court d id not err in denying Sireci an evidentiary hearing under 28 U.S.C. § 2254(e)(2). The district court's decision denying Sireci's petition for a writ of habeas co rp u s is AFFIRMED.

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