Sellers v. King et al (INMATE3)

Filing 16

ORDER; that 1. Mr. Sellers's objection 15 is OVERRULED. 2. The Recommendation 14 is ADOPTED. 3. The Petition for Writ of Habeas Corpus 1 filed by Mr. Sellers is DENIED. 4. This action is DISMISSED with prejudice. An appropriate judgment will be entered. Signed by Honorable Truman M. Hobbs on 10/5/2010. (jg, )

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S e l l e r s v. King et al (INMATE3) D o c . 16 IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION T O M M Y LEE SELLERS, #195181, P e t i t io n e r , v. T R O Y KING, et al., R e s p o n d e n ts . ) ) ) ) ) ) ) ) ) C A S E NO. 3:08-CV-553-TMH [WO] ORDER O n July 23, 2010, the Magistrate Judge filed a Recommendation in this case. (Doc. # 14.) Petitioner Tommy Lee Sellers filed a timely objection, which was received and d o ck eted on August 5, 2010. (Doc. # 15.) Mr. Sellers objects to the Magistrate Judge's re c o m m e n d a tio n that relief be denied on his 28 U.S.C. 2254 petition challenging his state ju ry-tria l conviction for reckless manslaughter. Based upon an independent and de novo re v ie w of those portions of the Recommendation to which objection is made, 28 U.S.C. 636(b)(1), the objection is due to be overruled and the Recommendation adopted. The Recommendation addresses Mr. Sellers's claims (1) that the state failed to prove th a t the victim's head injuries resulting from Mr. Sellers's attack were the proximate cause o f the victim's death, given the intervening time that elapsed between the attack and the d e a th , and Mr. Sellers's theory that the victim suffered a subsequent attack by a third party b e f o re dying, and (2) that the trial court erred in denying a motion for a mistrial based upon a state witness's testimony that Mr. Sellers previously had been in prison. Applying the c o rre c t standard of review (see Doc. # 14, at 3-5), the Magistrate Judge rejected both claims. F irs t, the Magistrate Judge concluded that "a rational trier of fact could have found, beyond a reasonable doubt, that Sellers's attack on the victim was the proximate cause of the victim's d e a th and that Sellers `recklessly cause[d] the death of another person,' in violation of 13A6 -3 ( a ) ( 1 ) , Ala. Code 1975." (Doc. # 14, at 9.) That conclusion was based upon the M a g is tra te Judge's review of the record regarding the specifics of the attack, the medical tre a tm e n t received by the victim, and the pathologist's report that the victim died of "blunt fo rce trauma to the head," as well as the absence of evidence to support Mr. Sellers's theory o f a subsequent third-party attack. (Doc. # 14, at 5-9.) Second, the Magistrate Judge ruled th a t the fundamental fairness of the trial was not jeopardized when the state trial court denied th e motion for a mistrial: The offending testimony neither was intentionally elicited nor e x te n siv e , and was followed by a curative instruction and polling of the jury. There also was o ther substantial evidence supporting the conviction. (Doc. # 14, at 11-12.) Objecting to the Recommendation, Mr. Sellers makes four arguments. First, he c o n te n d s that, after the trial judge received the verdict of not guilty on the murder charge, the p ro s e c u to r "whispered in [the trial judge's] ear," and the trial judge then sent the jury "back to the jury room to come up with a verdict on manslaughter not named in the indictment." (D o c . # 15, at 1-2.) Mr. Sellers argues that "[m]anslaughter could not be a lesser included o f f e n se of murder after the jury came back from deliberation and the verdict was not guilty o f murder." (Doc. # 15, at 2.) Second, Mr. Sellers argues that the jury was not advised of 2 m a n sla u g h ter , nor was the lesser included offense of manslaughter "ever mention[ed] until a f te r the verdict was in." (Doc. # 15, at 2.) Third, Mr. Sellers contends that "there was no r o o m for a lesser included offense mention before the jury verdict to charge a new offense th a t was not mention[ed] in the indictment." (Doc. # 15, at 2.) Fourth, Mr. Sellers restates h is contention that he was entitled to a mistrial based upon the jury hearing testimony that h e previously had been in prison. (Doc. # 15, at 3.) For the reasons to follow, the objections lac k merit.1 M r. Sellers's first and second objections are not supported by the transcript of the state c o u rt trial proceedings. The transcript reflects that, prior to jury deliberations, the trial judge in s tru c te d the jury on the elements of murder and on the elements of the lesser included o ff en se of manslaughter. (Trial Tr. 309-11 (Doc. # 9-6).) Also, prior to the jury's d e lib e ra tio n s , the trial judge explained the verdict forms to the jurors. (Trial Tr. 315, 317.) In particular, he told the jurors that if they found Mr. Sellers not guilty of murder, then they s h o u ld "go on to consider the charge of manslaughter." (Trial Tr. 317.) After deliberations, th e jury foreperson announced that the jury had found Mr. Sellers not guilty of murder, but g u ilty of manslaughter, and each member of the jury was polled. (Trial Tr. 325-27; see also V e r d ic t (Doc. # 9-1).) It is clear from the transcript that the jury was not sent back to While the objections fail on their merits, Mr. Sellers's claim that a lesser included offense on manslaughter was not proper, as embodied in his first three objections, also fails because it was not raised in his 2254 habeas petition. (See Pet. 3-4); see, e.g., Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) ("A plaintiff may not amend her complaint through argument in a brief opposing summary judgment."). 1 3 d e lib e ra te on the manslaughter offense after it had rendered its verdict of not guilty on the m u r d e r charge.2 Based upon the record of the state court trial proceedings, Mr. Sellers's first a n d second objections are due to be overruled. A s to the third objection, it "has long been the law that a person indicted for a specific o f f en s e can be convicted of a lesser included offense," and, "[t]herefore, the defendant is on n o tic e as to all the elements of the included offense that he must defend against." Ex parte W a s h in g to n , 448 So. 2d 404, 407 (Ala. 1984). To the extent that Mr. Sellers argues that he c a n n o t be convicted on a lesser included offense that is not explicitly charged in the in d ic tm e n t, that objection lacks merit. In fact, Mr. Sellers specifically requested and was g r a n t e d a charge on the lesser included offense of assault, which also was not expressly c o n ta in e d in the indictment. (Trial Tr. 268-72.) Moreover, an instruction on a lesser in c l u d e d charge is not improper simply because a defendant objects to it, as did Mr. Sellers. (T rial Tr. 268-69.) See Harbin v. State, 14 So. 3d 898, 908 (Ala Crim. App. 2008) (holding th a t "a trial court may, either sua sponte or at the request of the State, instruct the jury on a 2 The transcript provides: THE COURT: If you would, please stand and read the jury's verdict as to the charge of murder first, please? THE FOREMAN: Your Honor, we, the jury, find the Defendant, Tommy Lee Sellers, Senior, not guilty of the offense of murder as charged in the indictment. THE COURT: If you'll read the verdict form then as to the charge of manslaughter? THE FOREMAN: Your Honor, we, the jury, find the Defendant, Tommy Lee Sellers, Senior, guilty of the offense of manslaughter as a lesser included offense of murder as charged in the indictment. (Trial Tr. 325-26.) After the verdict was read, and the jury polled, the jury was excused from service in Mr. Sellers's case. (Trial Tr. 326-27.) 4 le ss e r-in c lu d e d offense that is supported by the evidence, even over the objection of one or b o th of the parties"). As to the fourth objection, the arguments mirror those previously raised and addressed in the Recommendation. That objection lacks merit for substantially the same reasons set f o rth in the Magistrate Judge's Recommendation. Accordingly, it is ORDERED that 1. 2. 3. D E N IE D . 4. T h is action is DISMISSED with prejudice. M r. Sellers's objection (Doc. # 15) is OVERRULED. T h e Recommendation (Doc. # 14) is ADOPTED. T h e Petition for Writ of Habeas Corpus (Doc. # 1) filed by Mr. Sellers is A n appropriate judgment will be entered. D O N E this 5th day of October, 2010. /s/ Truman M. Hobbs SENIOR UNITED STATES DISTRICT JUDGE 5

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