GERALDS v. CREWS et al
Filing
39
ORDER ON PETITION FOR WRIT OF HABEAS CORPUS re denying 1 Petition for Writ of Habeas Corpus. Geralds may appeal and a certificate of appealability is issued for appeal on the following issues raised in Ground II, subclaims A an d C, and in Ground V: (1) whether Geralds was deprived of his right to the effective assistance of counsel during the guilt phase of his trial when his counsel allegedly (a) failed to present evidence from the crime scene, and (b) failed to invest igate and present witnesses; and (2) whether the trial court erred in denying defense challenges for cause to two prospective jurors who were exposed to pretrial publicity. The Clerk shall close the file. Signed by CHIEF JUDGE MARK E WALKER on 5/13/2019. (jcw)
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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
MARK ALLEN GERALDS,
Petitioner,
v.
MARK S. INCH, Secretary, Florida
Department of Corrections, 1 et. al.,
Case No.: 5:13-cv-167-MW
Capital Case
Respondents.
______________________________/
ORDER ON PETITION FOR WRIT OF HABEAS CORPUS
Before this Court is a petition for a writ of habeas corpus filed by Mark Allen
Geralds, a Florida death row inmate, pursuant to Title 28, United States Code, Section
2254. ECF No. 1. Geralds has asserted eight claims for relief. Respondents have filed
an answer, ECF No. 14, and Geralds has filed a reply, ECF No. 19. After careful
consideration of the issues raised in the pleadings and for the reasons stated below,
the petition is denied.
Mark S. Inch is the current successor to Michael D. Crews as Secretary for the Department of
Corrections and is automatically substituted as a party. See Fed. R. Civ. P. 25(d) (1).
1
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I. FACTS & PROCEDURAL HISTORY
The relevant facts are set out as follows in the Florida Supreme Court’s opinion
affirming Geralds’ convictions and sentence on direct appeal:
The convictions arise from events occurring on February 1, 1989, when
eight-year-old Bart Pettibone arrived home from school and found his
mother, Tressa Lynn Pettibone, beaten and stabbed to death on the
kitchen floor. There were two stab wounds on the right side of Tressa
Pettibone’s neck and one fatal stab wound on the left side. The wounds
were consistent with a knife found in the kitchen sink. The medical
examiner found a number of bruises and abrasions on the head, face,
chest, and abdomen of the victim caused by some form of blunt trauma.
The examiner also determined that the victim=s wrists had been bound
with a plastic tie for at least twenty minutes prior to her death.
Blythe Pettibone, the victim=s daughter, testified that several items of
jewelry were missing from the home. Among these were a herringbone
chain necklace and a pair of red-framed Bucci sunglasses. Kevin
Pettibone, the victim=s husband, testified that his wife=s Mercedes
automobile was missing. The automobile was later found in the parking
lot of a nearby school. Cash in the amount of $7,000 hidden in the house
was not taken.
Mark Geralds was a carpenter who had worked on the remodeling of the
Pettibones’s house. About one week prior to the murder, Tressa
Pettibone and her children encountered Geralds in a shopping mall.
Tressa Pettibone mentioned that her husband was out of town on
business. Later, Geralds approached Bart at the video arcade. He asked
when Bart=s father would be back in town and when Bart and his sister
left for and returned from school during the day.
Other circumstantial evidence linked Geralds to the crime: (1) at 2:00
p.m. on February 1, 1989, Geralds pawned a gold herringbone chain
necklace. Serology testing revealed a stain on the necklace to be blood
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compatible with the victim=s blood type and inconsistent with Geralds’s;
(2) Douglas Freeman, Geralds’s grandfather, testified that on occasion
Geralds would come by his house to take a shower. Freeman testified
that Geralds came by at 11:30 a.m. on February 1, 1989, and asked to
shower because he had been working on a fiberglass boat, a reason he
had given in the past. When he left, Geralds stated that he was taking a
pair of sunglasses to some friends; (3) Vickey Ward testified that
Geralds gave her a pair of red Bucci sunglasses in late January or early
February, 1989; (4) a pair of Nike shoes was seized from Geralds’s
residence. Evidence indicated that they could have made the tracks on
the floor in the Pettibone house; (5) the plastic tie recovered from the
victim’s wrist matched the ties found in Geralds’s car.
Geralds v. State, 601 So. 2d 1157, 1158-59 (Fla. 1992) (hereinafter Geralds I). The
jury found Geralds guilty of first-degree murder, armed robbery, burglary of a
dwelling, and theft of an automobile. After a penalty phase proceeding, the jury
recommended death for the homicide by a vote of eight to four. The trial court
concurred, finding no statutory or nonstatutory mitigating factors and four
aggravating circumstances: (1) the homicide occurred during a burglary; (2) the
homicide was committed to avoid arrest; (3) the homicide was especially heinous,
atrocious or cruel (“HAC”); and (4) the homicide was committed in a cold,
calculated, and premeditated manner without any pretense of moral or legal
justification (“CCP”). The trial court sentenced Geralds to death for the murder and
as a habitual felony offender for the noncapital felonies.
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On direct appeal, Geralds raised five claims, including that the prosecutor
engaged in an impermissible colloquy regarding his prior nonviolent felonies to
impeach a defense mitigation witness. See Geralds I, 601 So. 2d at 1159-64. The
Florida Supreme Court affirmed Geralds’ convictions but found Geralds’ claim
regarding the prior nonviolent felonies reversible error and remanded for a new
penalty phase proceeding. On remand, the jury recommended the death penalty by a
vote of twelve to zero. At resentencing, the trial court found the following
aggravating factors: (1) the murder was committed during the commission of a
robbery and/or burglary; (2) the murder was especially heinous, atrocious or cruel;
and (3) the murder was committed in a cold, calculated, and premeditated manner
without any pretense of moral or legal justification. The court found the statutory
mitigator of age but afforded it little weight. 2 As for nonstatutory mitigation, the trial
court found the following but gave them “very little weight”: (1) Geralds’ love and
concern for his daughter and former wife; (2) Geralds came from a divorced family
and was unloved by his mother; and (3) Geralds’ antisocial behavior and bipolar
manic personality. Geralds v. State, 674 So. 2d 96, 98 (Fla. 1996) (per curiam)
2
Geralds was twenty-two years old at the time of the offense.
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(hereinafter Geralds II). The trial court determined that the aggravating factors
outweighed the mitigating factors and sentenced Geralds to death. Geralds appealed
his sentence, raising ten claims. See id. at 99. On appeal, the Florida Supreme Court
found the application of the CCP aggravating factor was error but concluded that the
error was harmless and affirmed Geralds’ sentence of death. The United States
Supreme Court subsequently denied Geralds’ petition for writ of certiorari. See
Geralds v. Florida, 519 U.S. 891 (1996).
Thereafter, Geralds filed initial and amended motions for postconviction relief
pursuant to Fla. R. Crim. P. 3.851, raising twenty-six claims. After an evidentiary
hearing, the postconviction court denied relief. The Florida Supreme Court affirmed.
Geralds v. State, 111 So. 3d 778 (Fla. 2010) (hereinafter Geralds III). On April 29,
2013, Geralds filed the instant petition for a writ of habeas corpus. On April 21, 2016,
Geralds filed a motion to hold this proceeding in abeyance pending state court
exhaustion of a claim under Hurst v. Florida, 136 S. Ct. 616 (2016), which this Court
granted. ECF Nos. 22, 24. In October of 2018, Geralds filed a status report informing
this Court that the state court denied his Hurst-related motion and his appeals of the
denial were not successful. See ECF No. 34. Thereafter, he filed a motion to amend
his federal habeas petition to include Hurst-related claims. ECF No. 35. This Court
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denied the motion to amend finding that any amendment would be untimely and
futile. ECF No. 38. The petition is now ripe for adjudication.
II. EVIDENTIARY HEARING
Geralds requests a plenary evidentiary hearing on the claims presented in his
petition. ECF No. 1, pp. 32-35. However, 28 U.S.C. § 2254 provides for an
evidentiary hearing in federal habeas claims only under very limited circumstances
as follows:
(2) If the applicant has failed to develop the factual basis of a claim
in State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that-(A) the claim relies on-(i) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish
by clear and convincing evidence that but for constitutional error,
no reasonable factfinder would have found the applicant guilty of
the underlying offense.
28 U.S.C. § 2254(e)(2)(2002). Under this provision, a hearing is not warranted “if
such a hearing would not assist in the resolution of [the] claim.” See Breedlove v.
Moore, 279 F.3d 952, 960 (11th Cir. 2002) (citation omitted). In Schriro v.
Landrigan, 550 U.S. 465, 474-75 (2007), the Court explained:
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In deciding whether to grant an evidentiary hearing, a federal court must
consider whether such a hearing could enable an applicant to prove the
petition’s factual allegations, which, if true, would entitle the applicant
to federal habeas relief. See, e.g., Mayes v. Gibson, 210 F.3d 1284, 1287
(C.A.10 2000). Because the deferential standards prescribed by § 2254
control whether to grant habeas relief, a federal court must take into
account those standards in deciding whether an evidentiary hearing is
appropriate. See id., at 1287-1288 (“Whether [an applicant’s]
allegations, if proven, would entitle him to habeas relief is a question
governed by [AEDPA]”).
****
This principle accords with AEDPA’s acknowledged purpose of
“reduc[ing] delays in the execution of state and federal criminal
sentences.” Woodford v. Garceau, 538 U.S. 202, 206, 123 S. Ct. 1398,
155 L.Ed.2d 363 (2003) (citing Williams v. Taylor, supra, [529 U.S.
362] at 386, 120 S. Ct. 1495 (opinion of STEVENS, J.) (“Congress
wished to curb delays, to prevent >retrials’ on federal habeas, and to give
effect to state convictions to the extent possible under law”)). If district
courts were required to allow federal habeas applicants to develop even
the most insubstantial factual allegations in evidentiary hearings, district
courts would be forced to reopen factual disputes that were conclusively
resolved in the state courts.
(footnote omitted). Geralds has not presented or proffered any evidence to this Court
which would necessitate an evidentiary hearing on any of the claims he has raised.
See Ojeda v. Sec’y for Dep’t of Corr., 279 F. App=x. 953, 954 n.1 (11th Cir. 2008)
(per curiam) (evidentiary hearing is unnecessary where trial transcripts sufficiently
address an issue, and a hearing would not have added any new information). See also
Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1334-37 (11th Cir. 2004) (capital
petitioner met none of the requirements contained in 28 U.S.C. § 2254(e)(2), thus
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district court abused discretion in granting evidentiary hearing). Because Geralds has
not met the statutory requirements for an evidentiary hearing, his request for an
evidentiary hearing is denied.
III. STANDARD OF REVIEW
Federal courts may grant habeas corpus relief for persons in state custody
pursuant to 28 U.S.C. § 2254. Pub. L. 104-132, § 104, 110 Stat. 1214, 1218B19.
Section 2254(d) provides, in relevant part:
(d) An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claimC
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). The United States Supreme Court explained the framework for
§ 2254 review in Williams v. Taylor, 529 U.S. 362 (2000).3 The appropriate test was
described by Justice O=Connor as follows:
Unless otherwise noted, references to Williams are to the majority holding, written by Justice
Stevens for the Court (joined by Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer) in parts I, III,
and IV of the opinion (529 U.S. at 367-75, 390-99); and Justice O=Connor for the Court (joined by Justices
3
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Under the “contrary to” clause, a federal habeas court may grant the writ
if the state court arrives at a conclusion opposite to that reached by this
court on a question of law or if the state court decides a case differently
than this Court has on a set of materially indistinguishable facts. Under
the “unreasonable application” clause, a federal habeas court may grant
the writ if the state court identifies the correct governing legal principle
from this Court’s decisions but unreasonably applies that principle to the
facts of the prisoner=s case.
Id. at 412B13 (O=Connor, J., concurring).
Employing the Williams framework, on any issue presented in a federal habeas
petition upon which there has been an adjudication on the merits in a state court
proceeding, the federal court must first ascertain the “clearly established Federal
law,” namely, “the governing legal principle or principles set forth by the Supreme
Court at the time the state court render[ed] its decision.” Lockyer v. Andrade, 538
U.S. 63, 71B72 (2003). The law is “clearly established” only when a Supreme Court
holding at the time of the state court decision embodies the legal principle at issue.
See Thaler v. Haynes, 559 U.S. 43, 47 (2010); Woods v. Donald, 135 S. Ct. 1372,
1376 (2015) (“We have explained that clearly established Federal law for purposes
of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of this Court’s
decisions.” (internal quotation marks and citation omitted)).
Rehnquist, Kennedy, Thomas, and B except as to the footnote B Scalia) in part II (529 U.S. at 403-13). The
opinion of Justice Stevens in Part II was joined by Justices Souter, Ginsburg, and Breyer.
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After identifying the governing legal principle(s), the federal court determines
whether the state court adjudication is contrary to the clearly established Supreme
Court case law. The adjudication is not contrary to Supreme Court precedent merely
because it fails to cite to that precedent. Rather, the adjudication is “contrary” only if
either the reasoning or the result contradicts the relevant Supreme Court holdings.
Early v. Packer, 537 U.S. 3, 8 (2002) (“Avoiding th[e] pitfalls [of § 2254(d)(1)] does
not require citation to our casesCindeed, it does not even require awareness of our
cases, so long as neither the reasoning nor the result of the state-court decision
contradicts them.”). Where there is no Supreme Court precedent on point, the state
court’s conclusion cannot be contrary to clearly established federal law. See Woods,
135 S. Ct. at 1377 (holding, as to claim that counsel was per se ineffective in being
absent from the courtroom for ten minutes during testimony concerning other
defendants: “Because none of our cases confront the specific question presented by
this case, the state court’s decision could not be contrary to any holding from this
Court.” (internal quotation marks and citation omitted)). If the state court decision is
contrary to clearly established federal law, the federal habeas court must
independently consider the merits of the petitioner=s claim. See Panetti v.
Quarterman, 551 U.S. 930, 954 (2007).
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If the “contrary to” clause is not satisfied, the federal habeas court next
determines whether the state court “unreasonably applied” the governing legal
principles set forth in the Supreme Court’s holdings. The federal court defers to the
state court’s reasoning unless the state court’s application of the legal principle(s)
was “objectively unreasonable” in light of the record before the state court. Williams,
529 U.S. at 409; see Holland v. Jackson, 542 U.S. 649, 652 (2004) (per curiam). In
applying this standard, the Supreme Court has emphasized:
When reviewing state criminal convictions on collateral review, federal
judges are required to afford state courts due respect by overturning their
decisions only when there could be no reasonable dispute that they were
wrong. Federal habeas review thus exists as “a guard against extreme
malfunctions in the state criminal justice systems, not a substitute for
ordinary error correction through appeal.” Harrington, supra, at
102B103, 131 S. Ct. 770 (internal quotation marks omitted).
Woods, 135 S. Ct. at 1376 (quoting Harrington v. Richter, 562 U.S. 86 (2011)).
Section 2254(d) also allows federal habeas relief for a claim adjudicated on the
merits in state court where that adjudication “resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(2). The “unreasonable determination of
the facts” standard is implicated only to the extent the validity of the state court’s
ultimate conclusion is premised on an unreasonable fact finding. See Gill v.
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Mecusker, 633 F.3d 1272, 1292 (11th Cir. 2011). As with the “unreasonable
application” clause, the federal court applies an objective test. Miller-El v. Cockrell,
537 U.S. 322, 340 (2003) (holding that a state court decision based on a factual
determination “will not be overturned on factual grounds unless objectively
unreasonable in light of the evidence presented in the state court proceeding.”).
Federal courts “may not characterize . . . state-court factual determinations as
unreasonable merely because we would have reached a different conclusion in the
first instance.” Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015) (quotation marks
omitted).
When performing review under § 2254(d), the federal court presumes that all
factual determinations made by the state court are correct. 28 U.S.C. § 2254(e)(1).
The petitioner bears “the burden of rebutting the presumption of correctness by clear
and convincing evidence.” Id. Neither the Supreme Court nor the Eleventh Circuit has
interpreted how § 2254(d)(2) and § 2254(e)(1) interact in the context of fact-based
challenges to state court adjudications. See Cave v. Sec’y for Dep’t of Corr., 638 F.3d.
739 (11th Cir. 2011). However, the Eleventh Circuit has declined to grant habeas relief
under § 2254(d)(2) in the context of a state appellate court’s summary affirmance,
where it found that the validity of the state court decision was not premised on the trial
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court’s unreasonable fact finding, and that the petitioner failed to demonstrate “by
clear and convincing evidence that the record reflect[ed] an insufficient factual basis
for affirming the state court’s decision.” Gill, 633 F.3d at 1292.
Only if the federal habeas court finds that the petitioner satisfied § 2254(d),
does the court take the final step of conducting an independent review of the merits of
the petitioner=s claims. See Panetti, 551 U.S. at 954. Even then, the writ will not issue
unless the petitioner shows that he is in custody “in violation of the Constitution or
laws and treaties of the United States.” 28 U.S.C. § 2254(a). “If this standard is
difficult to meet, that is because it was meant to be.” Richter, 562 U.S. at 102.
Within this framework, this Court will review Geralds= claims.
IV. PETITIONER=S CLAIMS
Ground I (A): Brady claims
In his first ground for relief, Geralds argues that his due process rights were
violated when the State withheld exculpatory evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963), and as a result his case was not subjected to a full
adversarial testing. Geralds alleges that the following evidence was not disclosed to
the defense prior to trial: (1) a two-page handwritten list with descriptions of jewelry
missing from the crime scene; (2) an eight-page report dated April 3, 1989, by Shirley
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Zeigler, a crime laboratory analyst; (3) a photograph of a photograph depicting a shoe
print from the crime scene; (4) a note authored by Investigator Bob Jimmerson on
January 26, 1990, related to a jeweler named Anthony Swoboda; (5) criminal charges
brought against pawnbroker Billy Danford; (6) an exculpatory interview between
Jimmerson and witness Greg Toriac; and (7) several other pieces of evidence admitted
during the postconviction evidentiary hearing including a note by Jimmerson
regarding a pawn ticket recovered from Geralds and notes regarding the location of
finger and palm prints taken from the crime scene. ECF No. 1, pp. 38-67.4
1.
State Court Proceedings
Geralds exhausted this claim in his postconviction proceedings, and the
postconviction court denied relief. The Florida Supreme Court affirmed the denial,
addressing each Brady claim separately.
2.
Clearly Established Supreme Court Law
In Brady v. Maryland, the Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused . . . violates due process where the
evidence is material either to guilt or to punishment.” 373 U.S. at 87. Under Brady, a
Geralds alleges in the alternative that if the State did disclose the evidence at issue, then his trial
counsel was ineffective in failing to present it. ECF No. 1, p. 38 n.33. To the extent that these ineffective
assistance of counsel claims were exhausted in state court, they are addressed in Ground Two, infra.
4
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defendant’s due process rights are violated when the prosecution suppresses material
evidence favorable to the defendant, irrespective of the good faith or bad faith of the
prosecution. To establish a Brady violation, the defendant must show that: (1) the
prosecution possesses evidence, including impeachment evidence; (2) the defendant
does not possess the evidence, nor could he obtain it himself with any reasonable
diligence; (3) the prosecution suppressed the favorable evidence; and (4) had the
evidence been disclosed to the defense, a reasonable probability exists that the
outcome of the proceedings would have been different. See United States v. Hansen,
262 F.3d 1217, 1234 (11th Cir. 2001) (per curiam); Strickler v. Greene, 527 U.S. 263,
281-82 (1999). As to the suppression element, the State has an obligation to disclose
all exculpatory evidence within its constructive knowledge, including “evidence
known to others acting on the government=s behalf in the case, including the police.”
Kyles v. Whitley, 514 U.S. 419, 437 (1995). Materiality is determined by asking
whether the government=s evidentiary suppressions, viewed cumulatively, undermine
confidence in the guilty verdict. “The question is not whether the defendant would
more likely than not have received a different verdict with the evidence, but whether
in its absence he received a fair trial, understood as a trial resulting in a verdict worthy
of confidence.” Kyles, 514 U.S. at 434. The key is a reasonable probability; “[t]he
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mere possibility that an item of undisclosed information might have helped the
defense, or might have affected the outcome of the trial, does not establish
‘materiality’ in the constitutional sense.” United States v. Agurs, 427 U.S. 97, 109B10
(1976).
3.
Federal Review of Claim
The Florida Supreme Court correctly identified Brady and its progeny as the
clearly established Supreme Court law governing this claim. Geralds III, 111 So. 3d
at 786-87. Therefore, in order to prevail on habeas review, Geralds must demonstrate
that the state court’s decision was contrary to or an unreasonable application of Brady
or that the state court made an unreasonable determination in light of the facts of his
case.
The state court evidentiary hearing in this case was held in two different
proceedings over the course of five months. 5 At the first evidentiary hearing, Joe
Grammer, the Assistant State Attorney who assisted in both the original and the
resentencing trial, explained his policy on providing discovery to the defense,
excluding his handwritten notes, as “. . . I get it, I give it to the defense attorney.”
The first evidentiary hearing was held on September 23 and 24, 2003. After several continuances
necessitated by the unavailability of witnesses and one of the attorneys, the hearing was continued on
February 25, 2004.
5
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(Evidentiary Hearing (“EH”) at 2299). He said, “[a]nything that we have, that we had
in writing we gave to [defense counsel] Bob Adams. . . . But I don’t, I mean, I don’t
have independent memory of what pieces of paper we gave Bob. But I know it was a
continuing thing and any time that something came in that we gave it to Bob Adams.”
(Id. at 2258). 6 Grammer testified that on June 1, 1989, the State filed a pretrial
supplemental response to a demand for discovery which contained approximately 543
pages of investigative material; however, not every item contained in these pages was
clearly indexed. After being asked about specific pieces of evidence, Grammer
testified that he was “[p]retty confident that all of these things, that if they were in our
possession that they were shared with Bob Adams. I’m very confident that there was
nothing that was received by the state attorney=s office that was not disclosed.” (Id. at
2260). When asked if he recalled how he actually provided the discovery to the
defense, Grammer testified:
I recall how I do it now. We have had in place for probably ten years now
an open file discovery, where as soon as our reports come in we supply
them to the public defender=s office whether we have received any notice
that they are on the case or not. And then, of course, the continuing
responsibility as those things come in. Back at this time we may have,
and I would have to look at the file, we may have used the discovery form
Bob Adams was Geralds= defense counsel in both his original and resentencing trials. Mr. Adams
died prior to the evidentiary hearings held in the case, so the state court did not have the benefit of his
testimony with regard to any of the claims Geralds raised in his postconviction proceedings.
6
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where we check listed and listed things that we gave. It was never my
policy, although it is probably not the best to say, if I said reports of Carl
Woodall, I wouldn’t necessarily say 37 pages, I would say, report of Carl
Woodall. So, but, I don=t recall. I imagine in this case we probably gave
Bob Adams a check list maybe on legal size paper that said we have these
items and here are all the things that go with it. And we would, at some
point, we used to give those, give a copy of everything that we gave in
discovery to the court. But at some point we quit doing that, we would
just, even when we were using the form we would just provide the form
for the court file and keep all that other stuff out of the public record.
Q [Assistant Attorney General Cassandra Dolgin]: Do you recall if in this
case that happened orB?
A [Grammer]: No, no, I don=t. I think my recollection is that we gave Bob
the form and stacks of things. And then continued. I had quite a bit of
contact with Bob Adams during the course of these cases, on this and
other cases, but frequent contact with him.
Q: So, are you saying then that it is possible that inventory list of all the
discovery that you had provided to Mr. Adams didn’t necessarily become
part of the court file?
A: Yes. And I’m saying that even more likely there is probably not an
inventory, it is probably, seems to me the form we used just had a witness
list, then it had checks off where you said, you know, we have statements,
we have physical evidence that we would list. And we would list that by
giving copies of whatever information that we have.
Q: So your letters to Mr. Adams wouldn’t necessarily have inventoried
the reports and wouldn’t have [set] out B
A: No, and if we gave, if we handed Bob information then that might not
be reflected anywhere. I know that there was nothing that ever came up
that I recall that Bob said he didn’t know about.
Q: So, at no time during the course of trial did Mr. Adams express
surprise or B
A: Not that I recall. I don’t recall him ever saying, hey, I never heard of
that before. I do recall, you know, as I stated on direct, that he went
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through some process with Laura Rousseau in an attempt to get her
handwritten notes while she was testifying. And as I recall that’s the only
thing that Mr. Adams said that he didn’t, he hadn’t seen.
(Id. at 2299-2302). Grammer also testified that he, State Attorney Jim Appleman and
Adams “got along famously and did not keep, we didn’t keep secrets becauseBor I
didn’t, you know, I don=t think Bob was keeping secrets from us or keeping secrets
from him as far as pieces of evidence or anything like that. So, no, there wouldn’t have
been anything that we would have said we can’t show this to Bob.” (Id. at 2312).
Regarding Adams= experience and reputation, Grammer testified as follows:
I know that he had a long and generally distinguished career as a defense
attorney. I know that he was, I always referred to him as the “true
believer.” That was even when, even when what I would call tilting at
windmills, goes after it hard, used every, every aspect of his person and
of the facts to try to achieve the result that he had. . . . Bob was a
crotchety, crusty old guy who was very, very interesting. And who made
you work. I mean, you couldn’t, you couldn’t glide through a trial with
Bob Adams on the other side because he, he would press you. And he
would press you sometimes in places where you weren’t expecting it. In
fact, in this trial, and I can’t recall whether it was the first or second, there
were several times where I thought that Bob, you know, got the better of
us on something where we were not expecting it to happen. I know Bob
tried a lot of cases. I know Bob cared about the cases. . . . He was just a
tough competitor but someone that I liked him personally. I had no
qualms about what he did. . . . I found Bob to be very thorough. I
foundBwe would go take depositions, Bob wouldn’t let us take
depositions, for instance, of Dr. Lauridson by telephone because he said
I want to look him in the eye, I want to look these witnesses in the eye.
He just, he had an old school feel about him. He was a worthy opponent
and I’m sorry that he’s not with us any more.
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(Id. at 2313-14).
Jim Appleman, who was lead prosecutor in the case, testified at the evidentiary
hearing that Grammer would have handled all of the discovery in the Geralds’ case.
(Id. at 2381). Appleman explained that if handwritten law enforcement notes were in
their case files, and it was not attorney work product, it would have been given to
defense counsel. Appleman was asked about a number of reports in the case and while
he did not have a specific recollection of these reports having been provided in
discovery, he stated, “[t]hose are the types of reports that I assume the assistants that
are assisting me with the case turn over. And if they haven=t been turned over we will
be chastised by the judge when we handle those particular cases in trial. And I don=t
recall any of that taking place in this case.” (Id.). Appleman testified that his office
has a set policy and a continuing responsibility to provide evidence or items to defense
counsel when they are received by his office.
At the second evidentiary hearing, Grammer testified to the same discovery
practices he had previously testified to in the first hearing. (See EH at 2650). During
this hearing, Grammer was shown numerous exhibits which he believed were
disclosed to defense counsel in response to discovery demands. The only two items
which Grammer did not remember specifically providing to Adams were an eightCase No.: 5:13cv167/MW
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page lab report by Shirley Ziegler dated April 3, 1989, and a lab report by Larry Smith
dated January 25, 1990, whose name was disclosed on a witness list. Grammer
testified that there would have been no reason not to disclose these reports, but said,
“[m]y memory for many of these documents is based upon the written record, and
those two lab reports are the only ones that I don=t show on the written record and that
I don=t have an independent recollection of.” (Id. at 2691). His general practice,
however, was to disclose all lab reports to the defense. (Id. at 2715-16).
This Court will address Geralds’ specific Brady claims individually.
a.
Two-page handwritten list with descriptions of jewelry missing from the
crime scene
Geralds contends that this list was not disclosed to the defense. The Florida
Supreme Court held as follows with regard to this item:
As Geralds’ first Brady claim, he argues that the State suppressed a
two-page handwritten list with descriptions of jewelry that were missing
from the victim=s home.FN10 Geralds argues that this list makes clear
that the herringbone necklace described in the list was not the necklace
that was recovered from a pawn shop.FN11 The circuit court denied this
claim, holding that Geralds failed to establish that the list was not
contained in the State’s supplemental response to demand for discovery,
which references 543 pages of investigative material being provided to
Geralds on June 1, 1989. We agree.
FN10. At the evidentiary hearing, Geralds introduced a
handwritten list that describes a AHerringbone necklace
thick gold [and] comes down into a V shape but doesn’t
lay flat.@ The list also describes several other pieces of
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jewelry, including necklaces, bracelets, watches, and one
pair of Bucci sunglasses. The list is marked AReceived
02B15B89@ across the top.
FN11. Evidence linking Geralds to the crime included a
gold herringbone chain necklace, which Geralds pawned.
Serology testing of the necklace revealed a stain that was
compatible with the victim=s blood type and inconsistent
with Geralds= blood type. Geralds I, 601 So. 2d at 1158.
At the evidentiary hearing, Joe Grammer testified that he was one of the
assistant state attorneys involved in Geralds’ murder prosecution and was
responsible for providing discovery. Grammer testified that on June 1,
1989, the State filed a supplemental response to demand for discovery
containing approximately 543 pages of investigative material. Grammer
further testified that he found a copy of the two-page handwritten list in
the State’s supplemental response. Geralds does not identify any portion
of the record that contradicts Grammer=s testimony. Thus, the record
indicates that Geralds had possession of this list. “[A] Brady claim cannot
stand if a defendant knew of the evidence allegedly withheld or had
possession of it, simply because the evidence cannot then be found to
have been withheld from the defendant.” Occhicone v. State, 768 So. 2d
1037, 1042 (Fla. 2000). Accordingly, we hold that Geralds has failed to
establish that the circuit court erred in denying this Brady claim.
Geralds III, 111 So. 3d at 787.
Geralds argues that the state court’s determination that he failed to establish that
the list in question was not contained in the State’s supplemental response to the
demand for discovery is rebutted by clear and convincing evidence. See ECF No. 1,
pp. 48-49. Geralds cites Grammer’s testimony at the first evidentiary hearing and the
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fact that the list was not contained in his defense counsel’s trial file as evidence that
the state court’s determination was incorrect.
At the first evidentiary hearing held in this case, Grammer testified with respect
to this list as follows:
The handwritten notes, I don’t believe I’ve seen those before and then it
would be difficult for me to disclose them. I believe those probably came
from public records requested of the Panama City Police Department.
But, other than that, anything that we had my policy was to give it and I
believe that things would have come through me on this case even
though, documents would have come through me even though Mr.
Appleman was trying the case because I would be the one responsible for
making sure that Bob had, Bob Adams had everything that he was
supposed to have.
(EH at 2303). Grammer also testified that he believed these were “field notes, law
enforcement work product, what typically is summarized in a dictated or written
report.” (Id. at 2305). At the second evidentiary hearing, when Grammer was asked
about this list he testified that after the first evidentiary hearing he looked through the
State’s supplemental discovery response and found the two pages in question. (EH at
2677-78). Grammer explained, “[o]ur pages are not stapled together, everything is
loose in there. My belief [is] that these two pages were contained in the,
approximately, 543 pages. I do not have today a clear memory of these two documents
but they are in our file that we have kept all this time.” (Id. at 2678). Grammer testified
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that it was not his practice to list individually the documents contained in the State’s
discovery responses.
The postconviction court found that the State had not suppressed this note after
hearing testimony from the relevant witnesses. A federal habeas court cannot
redetermine the credibility of witnesses whose testimony had been observed by a state
trial court. See Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (“28 U.S.C. §
2254(d) gives federal habeas courts no license to redetermine credibility of witnesses
whose demeanor has been observed by the state trial court, but not by them.”);
Consalvo v. Sec’y, Dep’t of Corr., 664 F.3d 842, 845 (11th Cir. 2011) (“Determining
the credibility of witnesses is the province and function of the state courts, not a federal
court engaging in habeas review.”). Given Grammer’s testimony at the second
evidentiary hearing that the list was contained in the State’s supplemental discovery
response, Geralds has not rebutted the state court’s finding by clear and convincing
evidence. Further, the fact that the list was not found in defense counsel=s file is not
clear and convincing evidence that the note was not disclosed. Therefore, Geralds has
failed to demonstrate that the state court’s denial of this claim is not entitled to
deference.
Accordingly, Geralds is not entitled to habeas relief on this ground.
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b.
Eight-page report dated April 3, 1989, by Shirley Zeigler
Geralds contends that this report was not disclosed to the defense. The Florida
Supreme Court held as follows with regard to this item:
As Geralds’ second Brady claim, he argues that the State suppressed an
eight-page report, dated April 3, 1989, written by Shirley Zeigler, a crime
laboratory analyst for the Florida Department of Law Enforcement
(FDLE).FN12 Geralds argues that this report is exculpatory for two
reasons: (1) Zeigler’s test results indicated that the blood on a
handkerchief discovered at the crime scene did not belong to Geralds or
the victim, thus strengthening Geralds’ defense that someone else
committed the crime; and (2) Zeigler’s test results indicated that there
was no blood on Geralds’ sneakers, which contradicts crime scene
analyst Laura Rousseau=s testimony during Geralds’ guilt phase that the
sneakers tested positive for blood. The circuit court denied this claim,
holding that Geralds failed to establish that the report was not included
in the discovery provided by the State on April 14, 1989. We agree.
FN12. At the evidentiary hearing, Geralds introduced
Zeigler=s report, which totals eight pages and analyzed six
lab submittals. Each lab submittal contained several
different items for analysis. Zeigler found that a
handkerchief listed within lab submittal 03 demonstrated
the presence of human blood staining. Zeigler concluded
that the handkerchief was stained with blood type O, while
Geralds and the victim both have blood type A. Zeigler
tested the sneakers, which were listed within lab submittal
06, for blood staining and found none.
At best, Geralds has only demonstrated that the record is ambiguous as
to whether Zeigler=s report was disclosed. He has not, however, carried
his burden of demonstrating that the State suppressed Zeigler’s report. In
reviewing the State’s discovery produced on April 14, 1989, it is not clear
whether Zeigler=s report was included. Although Zeigler is listed as a
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person known to have information that may be relevant, Zeigler=s report
is not specifically identified. At the evidentiary hearing on September 23,
2003, Grammer testified, “I’m absolutely positive that [defense counsel]
Bob Adams had this report before he talked to Shirley Zeigler in
preparation for the trial.” However, at the evidentiary hearing on
February 25, 2004, Grammer testified that he did “not have a clear
memory” of providing the report to the defense, but believed that “if we
got it, which we did, we shared it with Bob.” In looking at his file marked
“lab reports,” Grammer found Zeigler=s report. Grammer further testified
that the report is the type of document that he would have provided to the
defense and that it was possible that if the State did not have it on April
14, 1989, it was given to the defense afterwards. James Appleman, state
attorney and Grammer’s co-counsel, testified during the evidentiary
hearing that Zeigler’s report was available to trial counsel.
Based on this record, the circuit court determined that Geralds failed to
establish “that the [Florida Department of Law Enforcement] report was
not included in the materials provided April 14, 1989.” “A trial court’s
finding after evaluating conflicting evidence that Brady material had
been disclosed is a factual finding.” Way [v. State], 760 So. 2d [903] at
911 [(Fla. 2000)]. Therefore, the reviewing court should uphold the
finding as long as it is supported by competent, substantial evidence in
the record. Accordingly, we hold that Geralds has failed to establish that
the circuit court erred in denying this Brady claim.
Geralds III, 111 So. 3d at 787-88.
Geralds argues that the state court’s finding that this report was not suppressed
is rebutted by the clear and convincing evidence that the report is not identified by
date and name on any discovery response filed by the prosecutor, and the report is not
contained in defense counsel’s file. Geralds also argues that if his counsel had had the
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Ziegler report he would not have asked Laura Rousseau if any subsequent analysis
had been done on the Nike shoes taken from Geralds. ECF No. 1, p. 50.7
Grammer’s testimony concerning this report during the two evidentiary
hearings is somewhat equivocal. At the first hearing, he was certain the report had
been provided; however, at the second evidentiary hearing, Grammer testified, “[y]ou
know, I do not have a clear memory of this one, but I believe if we got it, which we
did, we shared it with Bob.” (EH at 2683). When asked if it was possible that the
report inadvertently did not get listed in the State’s response to the defense’s discovery
demand, Grammer testified, “[i]t’s possible that we didn’t have it that day, we gave it
to him afterwards. It’s possible that it did not make it on the list. I don’tBit’s all
speculation, I don’t know.” (Id. at 2684). Grammer testified that the Zeigler report
was in his file of lab reports, marked as Exhibit 20, and that Zeigler was listed as a
possible witness in the case. Grammer reiterated that his general practice was to
During the guilt phase of the trial, Rousseau testified that an area on Geralds’ left Nike shoe
“came up positive for presumptive testing of blood.” (Trial Record (“TR”) Vol. XII at 1721). Defense
counsel asked her on cross-examination what presumptive testing was, and she explained that it was a pretest which indicates something which could be blood. (Id. at 1722). Rousseau also testified that she was
unaware if any further testing had been done, stating, “[n]ot to my knowledge, I don’t know. I have not
seen the shoes since then.” (Id. at 1723). While counsel’s examination of Rousseau on this point may tend
to show that he was unaware of the existence of the Zeigler report, it does not demonstrate by clear and
convincing evidence that the State did not provide it to him.
7
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disclose all lab reports to the defense and that it would not have made sense to disclose
Zeigler’s name as someone who had information and then withhold the document
pertaining to her connection with the case. Appleman testified that the Ziegler report
was available to defense counsel.
The Florida Supreme Court held that the postconviction court’s finding that the
report had been disclosed was supported by competent, substantial evidence in the
record. Geralds has failed to rebut this finding by clear and convincing evidence. See
Consalvo, 664 F.3d 842. Therefore, Geralds has failed to demonstrate that the state
court’s denial of this claim is not entitled to deference.
Accordingly, Geralds is not entitled to habeas relief on this ground.
c.
Photograph depicting a shoe print from the crime scene
Geralds argues that this photograph was not disclosed to the defense. The
Florida Supreme Court held as follows with regard to this item:
As Geralds’ third Brady claim, he argues that the State suppressed a
photograph of a photograph depicting a shoe print from the crime scene.
Geralds argued that this shoe print did not match his shoes, which further
supports his theory that someone else committed the murder. The circuit
court denied this claim, holding that Geralds failed to establish that the
photograph of a photograph of a shoe print was not made available to
him. We agree.
“In previous cases, this Court has broadly stated that evidence was not
‘suppressed’ where it was equally available to the State and the defense.”
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Way, 760 So. 2d at 911; see also Roberts v. State, 568 So. 2d 1255, 1260
(Fla. 1990); James v. State, 453 So. 2d 786, 790 (Fla. 1984). However,
the defendants were aware of the exculpatory information in those cases.
See Roberts, 568 So. 2d at 1260 (noting that defendant was aware of
evidence that would show he was under the influence of drugs or alcohol
during the crime); James, 453 So. 2d at 790 (stating that defendant was
aware of existence of photographs contained in confidential juvenile
records). A circuit court’s factual finding that a photograph was or was
not made available will not be overturned “as long as it is supported by
competent, substantial evidence in the record.” Way, 760 So. 2d at 911.
At the evidentiary hearing, Grammer testified that “[t]he photographs
would not necessarily be turned over but would be made available to
defense counsel.” In this case, Geralds did not present any evidence that
photographs were not made available or that photographs were made
available and this particular print was not included. Accordingly, the
circuit court’s finding that Geralds has failed to establish that the
photograph of a photograph of a shoe print was not made available to
him is supported by competent, substantial evidence and Geralds has not
established a Brady violation.
Geralds III, 111 So. 3d at 788-89.
Geralds argues that the state court’s determination is contrary to or an
unreasonable application of the Supreme Court’s holding in Strickler v. Greene, 527
U.S. 263, that if the prosecutor maintains an “open file” discovery policy, defense
counsel has a right to reasonably rely on the file to contain all materials the State is
obligated to disclose. At the evidentiary hearing, Grammer testified as follows that the
photograph was available to the defense:
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Q. [Collateral counsel Todd Doss]: If the crime scene technician took that
photograph that would have been turned over in discovery?
A. [Grammer]: Not necessarily. The photographs would not necessarily
be turned over but would be made available to defense counsel. If this,
in fact, is something that I guess Laura Rousseau would have kept, then
it would have been available for review by Mr. Adams.
Q. So, once you list it, it is pretty much Mr. Adams= responsibility to
request which photos he wants?
A. To get photographs, right.
Q. Do you have any knowledge as to whether he did that in this case?
A. No, I don=t. And I don’t recall, I know we, I believe we used
photographs and we may have used a photograph of this nature that Bob
would have seen but I don’t know.
(EH at 2286). Strickler does not require more of the State than making the photograph
available to the defense. See also High v. Head, 209 F.3d 1257, 1265 (11th Cir. 2000)
(“We do not read Strickler, however, to indicate that defense reliance on a general
government representation of compliance with Brady establishes cause for failing to
pursue available exculpatory evidence where collateral counsel had actual knowledge
or reasonably could have discovered knowledge clearly suggesting that the
prosecution may have misinterpreted that evidence as nonexculpatory.”). Geralds has
not shown that the photograph at issue was not made available to him or was not
contained in the prosecutor’s file. Therefore, Geralds has failed to demonstrate that
the state court’s denial of this claim is not entitled to deference.
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Accordingly, Geralds is not entitled to habeas relief on this ground.
d.
Note authored by Jimmerson related to jeweler Anthony Swoboda
Geralds argues that this note was not disclosed to the defense. The Florida
Supreme Court held as follows with regard to this item:
As Geralds’ fourth Brady claim, he argues that the State suppressed a
handwritten note authored by Investigator Bob Jimmerson on January 26,
1990, three days before Geralds’ first trial.FN13 Geralds argued that this
note is important because it establishes that the State confirmed Geralds’
theory that he legally bought the herringbone necklace from a jeweler
named Anthony Swoboda. The State argued, and the circuit court agreed,
that Geralds knew of Swoboda’s statement made to Jimmerson because
Swoboda was listed as a witness for the defense. Thus, the circuit court
denied relief on this claim. We agree.
FN13. At the evidentiary hearing, Geralds introduced
Jimmerson’s note, which is dated January 26, 1990. Next to
the date there is a notation that reads “Tony Swobata
[sic]CGordon=s Jewelry.” The note then provides, “It was a
thin chain[;] don’t remember the length[;] price? [;] I sold it
to him under the table[;] no records.”
Swoboda testified at the evidentiary hearing that Geralds’ trial counsel
contacted him by phone and in person to confirm the fact that he had sold
Geralds some jewelry. Furthermore, Swoboda was listed as a witness for
the defense in preparation for trial. Based on this record, the circuit
court’s finding that Geralds knew of Swoboda=s statement is supported
by competent, substantial evidence. Accordingly, Geralds could not
establish a Brady violation because the record supports the circuit court’s
finding that Geralds knew of Swoboda’s statement. See Occhicone v.
State, 768 So. 2d at 1042 (“[A] Brady claim cannot stand if a defendant
knew of the evidence allegedly withheld or had possession of it, simply
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because the evidence cannot then be found to have been withheld from
the defendant.”).
Geralds III, 111 So. 3d at 789.
While Geralds acknowledges that the defense was aware of Swoboda and his
importance to the case, he argues that the defense was unaware that Swoboda had
spoken with law enforcement and told them that the sale had been made “under the
table.” Geralds believes that this statement is important because it corroborates his
own statements that the pawned necklace was not the victim’s, thereby increasing his
credibility, and the note would have allowed defense counsel to have cross-examined
Jimmerson on this point. Geralds also argues that Swoboda=s statement provides an
explanation for why he asked the pawnbroker if the chain were real gold and had
exculpatory value because it makes more sense for him to have pawned his own
necklace, and receive a lower value, than to pawn the victim’s necklace, which would
have yielded more money if sold. (Id.). 8
8
Defense counsel made this point in his guilt phase closing argument:
But there is two sides to the pawning of that necklace. And I use the word
pawn. And you learn, I believe from questions from Mr. Appleman that
laws apply to pawn shop operators. Mr. Danford was on the stand. They
got to get identifying material. The law requires it. Ask yourselves, this
was the afternoon of February 1st. Mark Geralds pawned the necklace. Did
he try to hide his identity? His driver’s license is in evidence. You know
he’s a young man of twenty-two years of age. If you don’t remember that,
look on the driver=s license when you go back in the jury room. Height,
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Anthony Swoboda testified at the evidentiary hearing that he was an employee
of Gordon Jewelers, and in 2003, he had known Geralds for approximately twenty
years. (EH at 2545). Swoboda testified that he sold Geralds a gold herringbone chain
several months before the police contacted him in connection with Mrs. Pettibone=s
murder. Swoboda explained that occasionally he would order jewelry to sell to friends,
and he sold the necklace in question to Geralds “under the table” which meant that
Geralds paid no sales tax on the transaction. (Id. at 2549-50). Swoboda testified that
defense counsel came to the jewelry store to speak to him about the necklace and told
him “that what I had to say was important and that I would probably be subpoenaed.”
(Id. at 2548). However, Swoboda was not called as a defense witness at either of
Geralds’ trials even though the defense listed him as a possible witness at both. (See
Postconviction Record (“PCR”) Vol. I at 2322 (dated January 15, 1990); PCR Vol. II
weight, description, talked to the man. No attempt to hide his identity.
The man wanted to buy it. Do you want to sell this? No I.D. required.
Yeah, I’ll give you a quick thirty or fifty bucks for it. No, Mark wanted to
pawn it. Gave all his identification. Common sense and experience. The
day of the event, that’s probably the greatest coincidence of all. But it helps
us understand how these things could happen. To pawn something as
opposed to selling it. And to give your full identification and even sign the
slip in your own handwriting. No attempt to disguise. That’s a fact that
you can consider in determining whether this case was proven.
(TR Vol. XIV at 2006-07).
Case No.: 5:13cv167/MW
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at 301 (dated March 18, 1993)). Because defense counsel died prior to the evidentiary
hearings held in this case, there is no explanation in the record as to why Swoboda
was not called as a defense witness.
The state court found that Geralds could not establish a Brady violation because
the record supported the postconviction court’s finding that Geralds knew about
Swoboda and the information he had about the necklace. Geralds argues that it is not
enough that his counsel was aware of a potential witness’s testimony when the State
had actually obtained exculpatory information.
The Supreme Court, in considering a procedural default of Brady claims in
Strickler v. Greene, 527 U.S. 263, reserved decision as to whether cause might be
negated if the defendant had actual knowledge of the factual basis for his Brady claim
and the ability to obtain the necessary proof through the exercise of reasonable
diligence. 527 U.S. at 288 n. 33 (“We do not reach, because it is not raised in this case,
the impact of a showing by the State that the defendant was aware of the existence of
the documents in question and knew, or could reasonably discover, how to obtain
them.”). 9 The Eleventh Circuit has stated that it does not read Strickler “to indicate
The federal circuit courts of appeal have divided into two camps over this issue. The First,
Second, Third, Sixth, Seventh, Eighth, and Eleventh Circuits have interpreted the possible exception the
Court reserved in Strickler to mean that prosecutors need not disclose exculpatory or impeachment evidence
that was publicly available or could have been discovered by a diligent investigation by the defense. See
9
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that defense reliance on a general government representation of compliance with
Brady establishes cause for failing to pursue available exculpatory evidence where
collateral counsel had actual knowledge or reasonably could have discovered
knowledge clearly suggesting that the prosecution may have misinterpreted that
evidence as nonexculpatory.” High v. Head, 209 F.3d 1257, 1265 (11th Cir. 2000),
cert. denied, 532 U.S. 909 (2001). The Eleventh Circuit has also held that “[t]he
government is not obliged under Brady to furnish a defendant with information which
. . . with any reasonable diligence, he can obtain himself.” United States v. Meros, 866
F.2d 1304, 1309 (11th Cir.) (citation omitted), cert. denied, 493 U.S. 932 (1989);
Maharaj v. Sec’y for Dep’t of Corr., 432 F.3d 1292, 1315 (11th Cir. 2005) (“Our case
law is clear that ‘[w]here defendants, prior to trial, had within their knowledge the
information by which they could have ascertained the alleged Brady material, there is
no suppression by the government.’” United States v. Griggs, 713 F.2d 672, 674 (11th
United States v. Rodriguez, 162 F.3d 135, 147 (1st Cir. 1998), cert. denied, 526 U.S. 1152 (1999); United
States v. Jackson, 345 F.3d 59, 73 (2d Cir. 2003), cert. denied, 540 U.S. 1157 and 541 U.S. 956 (2004) and
546 U.S. 925 (2005); United States v. Pelullo, 399 F.3d 197, 213 (3d Cir. 2005), cert. denied, 546 U.S.
1137 (2006); Bell v. Bell, 512 F.3d 223 (6th Cir.), cert. denied, 555 U.S. 822 (2008); Boss v. Pierce, 263
F.3d 734, 740 (7th Cir. 2001), cert. denied, 535 U.S. 1078 (2002); and Zeitvogel v. Delo, 84 F.3d 276,
279-80 (8th Cir.), cert. denied, 519 U.S. 1036 (1996). By contrast, the Fourth, Fifth, Ninth, and Tenth
Circuits have held that Brady focuses on the prosecution=s misconduct, not the defendant’s diligence, and
that if exculpatory or impeachment material is suppressed by the prosecution, its availability to the
defendant through other sources is wholly irrelevant. See Walker v. Kelly, 195 F. App=x. 169, 175 (4th
Cir. 2006); Johnson v. Dretke, 394 F.3d 332, 335 (5th Cir. 2004); Gantt v. Roe, 389 F.3d 908, 912 (9th Cir.
2004); and Banks v. Reynolds, 54 F.3d 1508, 1517 (10th Cir. 1995).
Case No.: 5:13cv167/MW
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Cir. 1983) (citation omitted)); see also Jennings v. McDonough, 490 F.3d 1230,
1238-39 (11th Cir. 2007), cert. denied, 128 S. Ct. 1762 (2008) (“[T]here was no
suppression of [a] tape” where defendant had knowledge of a witness and “had within
his knowledge information by which he could have ascertained her statement.”).
Swoboda’s testimony at the evidentiary hearing establishes that defense counsel
interviewed him and was aware that Geralds purchased a necklace similar to the
victim=s sometime prior to the murder. Because there is no clearly established
Supreme Court precedent on this point, the state court’s determination that there was
no suppression cannot be an unreasonable application of or contrary to clearly
established Federal law. See Washington v. Crosby, 324 F.3d 1263, 1265 (11th Cir.
2003).
Moreover, Geralds cannot demonstrate materiality with respect to the note of
the interview because there is not a reasonable probability that the absence of its
disclosure is sufficient to undermine confidence in the outcome. At the evidentiary
hearing, Swoboda testified that he sold Geralds a herringbone necklace some months
before Mrs. Pettibone’s murder. Geralds argues that this testimony establishes that the
necklace he pawned is not the one that belonged to the victim. However, Swoboda’s
testimony did not establish this; Swoboda could not identify the necklace recovered
Case No.: 5:13cv167/MW
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from the pawn shop as the one he sold Geralds. Additionally, Geralds cannot explain
the presence of blood matching the victim=s blood type that was found on the pawned
necklace. Therefore, Geralds has failed to demonstrate that the state court’s denial of
this claim is not entitled to deference.
Accordingly, Geralds is not entitled to habeas relief on this ground.
e.
Criminal charges brought against pawnbroker Billy Danford
Geralds argues that the State did not disclose criminal charges which had been
brought against this witness. The Florida Supreme Court held as follows with regard
to this item:
As Geralds’ fifth Brady claim, he argues that the State suppressed
information regarding criminal charges brought against pawnbroker
Billy Danford while the case against Geralds was being litigated.FN14
Geralds argued that he could have used this information to impeach
Danford during the guilt phase of trial. The circuit court held that Geralds
failed to establish that there were any deals between the State and
Danford, and further, even if this evidence should have been disclosed,
there was no prejudice. We agree.
FN14. At the evidentiary hearing, Geralds introduced two
exhibits regarding Danford’s criminal charges. The first
exhibit is a case history of three separate incidents. The first
incident shows that Danford was charged with, but found
not guilty of, driving a vehicle on a sand dune in 1987. The
second and third incidents show that Danford was charged
with failure to record transactions by a pawn broker in April
1989 and October 1989; each case was dropped within the
same month that the charges were filed. The second exhibit
is a note, dated July 19, 1990, written by a state attorney to
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a detective stating that after reviewing the investigative files
on charges that Danford was dealing in stolen property, the
State could not prove the charges and declined to prosecute.
The information introduced at the evidentiary hearing regarding
Danford=s criminal charges was not admissible and had no impeachment
value. This information demonstrates that Danford was charged with a
crime, but never convicted. See § 90.610(1), Fla. Stat. (2007) (“A party
may attack the credibility of any witness, including an accused, by
evidence that the witness has been convicted of a crime....”) (emphasis
added). Geralds suggests that the charges against Danford were dropped
because of a “deal” between the State and Danford in exchange for
Danford=s testimony against Geralds. However, the only evidence
provided at the evidentiary hearing regarding this alleged “deal” is
Grammer’s testimony that none had been made. Geralds has not
identified any portion of the record that would contradict this testimony.
Thus, there is competent, substantial evidence in the record to support
the circuit court’s finding that there was no evidence of a “deal” in the
record. Furthermore, Geralds did not deny at trial that he pawned a
herringbone necklace on the day the victim was murdered. Instead, he
only argued that the necklace he pawned was sold to him by his
pawnbroker friend, Swoboda, and that Danford’s testimony did not
portray Geralds as a person who had just committed a murder. Danford’s
trial testimony is entirely consistent with Geralds’ theory. At trial,
Danford identified Geralds as the person who pawned a herringbone
necklace on the day the victim was murdered. Accordingly, even if the
information regarding Danford’s criminal charges were admissible as
impeachment evidence, Danford’s testimony does not contradict
Geralds’ theory of the case. Consequently, Geralds was not prejudiced
by not being able to impeach Danford with information regarding the
criminal charges.
Geralds III, 111 So. 3d at 789-90.
Geralds argues that the state court’s determination that he failed to establish that
any deal existed between the State and Billy Danford and that he failed to establish
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prejudice if the deal should have been disclosed is contrary to or an unreasonable
application of Brady. At trial Danford testified that on February 1, 1989, the day of
the murder, Geralds pawned a 14 karat gold triple weave herringbone necklace which
the State argued belonged to the victim. 10 During a pretrial deposition taken January
23, 1990, Danford was asked if he had a criminal record. He testified that he did not
and remarked, “Mr. Adams I’ve never had a parking ticket in my life and I’m sixtyone years of age.” (EH Exhibit List Vol. I at 88 (Defense Exhibit 9)). At the first
evidentiary hearing, postconviction counsel showed Grammer the records pertaining
to several charges brought against Danford and asked him if he knew about them
before trial.11 Grammer answered, “No. I doubt if we even ran a rap sheet on him.
But we may have. But, again, if we had been aware of that we would have seen that
he had no, didn’t have a record. But I don=t recall, I don=t recall before today ever
seeing anything about driving a vehicle on a sand dune or failure to record a
Danford also testified that Geralds presented his driver’s license, and Danford recorded
identifying information on the pawn ticket. (TR Vol. XIII at 1753-54). Danford testified that Geralds asked
if the necklace were real and stated that he wanted to pawn it. (Id. at 1756-57). Geralds pawned the necklace
for $30, although Danford estimated its price in a jewelry store to be approximately $300. (Id. at 1758-59).
On cross-examination, Danford did not recall Geralds discussing where the necklace came from and he did
not attempt to disguise his appearance or identity. (Id. at 1766-67).
10
Geralds= postconviction counsel had discovered the following criminal charges made against
Danford: driving a vehicle on a sand dune (Danford was found not guilty on August 4, 1987); failure to
record a pawn broker transaction (case dropped on April 26, 1989); and failure to record a pawn broker
transaction (case dropped October 27, 1989). (See EH Exhibit List Vol. I at 66-69 (Defense Exhibit 8)).
11
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transaction as a pawn broker or this wellBactually before today.” (EH at 2253).
Grammer testified that because the cases were dismissed, he did not believe that they
would have been admissible to impeach Danford. Grammer also testified that
Danford’s testimony was administrative in nature, explaining, “Mr. Danford, by my
recollection, was able to identify a pawn ticket that he had given to Mark Geralds on
whatever date that was, close in time to the murder, and identify what it was that was
pawned. He wasn’t able to say, for instance, that was Ms. Pettibone=s necklace. He
wasn’t able to say where it came from. He was administrative in nature. He was a
witness of happenstance, he happened to be the one that Mr. Geralds took the necklace
to.” (Id. at 2307). He testified that he “was unaware of Billy Danford=s name other
than as it was connected to Mark Geralds.” (Id.). He was not aware of any deals offered
by the State to Danford for his testimony.
Geralds has not presented clear and convincing evidence that there was any
deal between Danford and prosecutors in exchange for damaging testimony in
Geralds’ trial or for any other purpose. 12 Geralds has also failed to demonstrate how
This Court recognizes, however, that the defense has wide latitude in cross-examining a
government witness for the purpose of discrediting them by showing bias, prejudice or interest, and “[a]
well recognized area of cross examination is how pending criminal charges may have influenced a witness=
cooperation with the state and the content of in-court statements.” See Livingston v. Florida, 678 So. 2d
895, 897 (Fla. 1996) (citation omitted).
12
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he was prejudiced by Danford’s testimony. As noted by the state court, Danford’s
testimony did not contradict Geralds’ theory of the case, specifically that he did not
attempt to disguise his identity when pawning the necklace. Additionally, the State
did not elicit any testimony from Danford that Geralds was agitated or appeared to
him to have been involved in a recent altercation when he pawned the necklace on the
same day as Mrs. Pettibone’s murder. Thus, Geralds has failed to demonstrate that the
state court’s denial of this claim is not entitled to deference.
Accordingly, Geralds is not entitled to habeas relief on this ground.
f.
Exculpatory interview between Jimmerson and witness Greg Toriac
Geralds argues that this interview was not disclosed to the defense. The Florida
Supreme Court held as follows with regard to this item:
As Geralds’ sixth Brady claim, he argues that the State suppressed an
exculpatory interview that occurred between Investigator Jimmerson and
Greg Toriac two days before Geralds’ trial began. Toriac worked at Club
LaVela in Panama City Beach, the city where the murder took place.
Geralds argued that the substance of the interview contradicts the alibi of
William Pelton (Toriac’s coworker and a suspect early in the case) and
could have been used to argue that Pelton committed the murder.FN15
The circuit court denied this claim, holding that Geralds knew of Toriac
and that there was no Brady violation as to this exhibit. We agree.
FN15. At the evidentiary hearing, Geralds introduced
Investigator Jimmerson’s notes regarding an interview with
Toriac. “Gregg Toriac” is written across the top of the note
and reads in whole:
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Middlebrooks & myself were discussing William Pelton
(01B26B90) & we know he would leave work alot [sic] &
stopped at Radio Shack & would bring in a reciept [sic] to
show or cover why he was missing or gone so long.
Dave Meadows [the manager of Club LaVela] did write his
time in on Feb. 1, 1989 but he is like us wouldn’t really
know if William stayed or left that day.
First, the interview has no favorable evidentiary value to Geralds.
Geralds is attempting to establish that Pelton murdered the victim. He
argues that he can establish this by showing the jury that Pelton was not
at work at Club LaVela on the day of the murders, which was Pelton’s
alibi. In the interview, Toriac states that he, like the manager of the club,
would not know whether Pelton was at work on the day of the murder.
Indeed, Geralds candidly admits when arguing this point under his Giglio
claim below that “Jimmerson’s interview notes ... indicate that no one
was certain whether Mr. Pelton was at work on the morning of February
1, 1989.”
Second, Geralds failed to establish that information regarding this
interview was suppressed. At the evidentiary hearing, Grammer testified
that the information about Pelton being away from work was part of
discovery. Additionally, Toriac was listed as a witness for the defense
and in the defense praecipe for subpoena.
Third, Geralds has not established that he was prejudiced. Even if Toriac
would have testified to the exact information he gave at the interview, his
testimony would not discredit Pelton’s alibi. In the interview, Toriac
merely states that he does not know whether Pelton was at work on the
day of the murders. Geralds fails to establish how this testimony would
have undermined confidence in the outcome of his trial. Accordingly, the
circuit court did not err in holding that there was no Brady violation as to
this interview.
Geralds III, 111 So. 3d at 790-91.
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Geralds argues that the state court’s conclusion that this evidence had no
favorable evidentiary value and that he failed to establish both suppression and
prejudice is contrary to and an unreasonable application of Strickler. Geralds contends
that defense counsel’s knowledge of the existence of Toriac did not absolve the
prosecution of the duty to disclose this evidence because the notes show that Toriac
was not as certain about Pelton=s whereabouts on the day of the crime as Jimmerson=s
report indicated. Geralds states that he was unaware that another employee, David
Meadows, wrote in Pelton’s time at work and that no formal time keeping device was
utilized. Thus, Geralds believes that the notes were powerful exculpatory evidence
which would have allowed him the opportunity to demonstrate Pelton was responsible
for the murder.
David Meadows testified at the evidentiary hearing that at the time of the crime
he was employed at Club LaVela as a manager while renovations were being done.
(EH at 2327). The club had an external construction crew and some of their own
employees working on the renovations. The club employed Pelton who was dealing
with the acquisition of materials and the installation of sound and lighting equipment.
Meadows met Geralds because he and Pelton were friends, and Geralds was at the
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club on occasion. When asked how the club kept track of employees’ time, Meadows
testified:
Basically what we did as far asBit was not a time clock. Basically what
we did was just recorded presence in the morning. We met in the office
in the morning, this was not a formal meeting, basically coffee cinnamon
rolls, what are we going to do for the day. At that time we would log in
who was there, whether or not anyone was missing. There was not a
formal recording of hours like 8 to 11:30 or 11:45, it was not a factory
type environment where we kept rigid adherence to a schedule. During
the course of the day if someone needed to come and go, they could come
and go without it being clocked in, clocked out.
(Id. at 2327). Meadows also testified that on frequent occasions Pelton would need to
leave the club to get things for the job, often going to Radio Shack, and he had the
freedom to come and go as necessary. Meadows testified that he was never contacted
or interviewed by police about the crime.
The record reflects that in the State’s supplemental response to demand for
discovery, dated January 22, 1990, Greg Toriac was listed as a witness who was
known to have information which may be relevant. (PCR Vol. I at 2325). Defense
counsel also listed all of the State’s witnesses as possible defense witnesses for trial.
(See PCR Vol. I at 2322 (dated January 15, 1990)). Because counsel was aware that
Toriac was a possible witness for the State, the state court held correctly there was no
suppression where defense counsel knew or could have known of the alleged Brady
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material. See Maharaj, 432 F.3d at 1315; Jennings, 490 F.3d at 1238-39. Furthermore,
Jimmerson’s notes do not contain the powerful exculpatory evidence Geralds claims.
Geralds contends that had this information been known to the defense then he “could
have legitimately pointed the finger at Pelton as having committed the crimes.” ECF
No. 1, p. 61. However, at most, Toriac and Meadows would have testified that they
could not be certain if Pelton was at the club during the time of the crime. 13 Therefore,
Geralds has failed to demonstrate that the state court’s denial of this claim is not
entitled to deference.
Accordingly, Geralds is not entitled to habeas relief on this ground.
Grammer pointed out the limited value of this evidence in the evidentiary hearing. When
questioned about this exhibit, the following exchange occurred:
13
Q. [Assistant Attorney General Cassandra Dolgin]: And in reading this is it your
understanding that it says that Mr. Pelton was not present on February 1, 1989? Not present
at LaVela?
A. [Grammer]: Well, in the information here it doesn’t list any place, but I know that this
relates to Mr. Pelton working at LaVela. It doesn’t indicate to me that they’re saying that
Mr. Pelton was not there on the date of the murder. Also says Dave Meadows did write his
time in, Dave Meadows wrote his time in on February 1, 1989, but he’s, like us, he
wouldn’t really know. So somebody apparently wrote in William Pelton=s time on his time
sheet but he doesn’t know whether he was there or not.
Q. So, there is not statement that Mr. Pelton was not there present at his work?
A. No, I don’t recall that ever being the case, that anyone ever said Mr. Pelton was
definitely not there.
(EH at 2306).
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g.
Other pieces of evidence admitted during the postconviction evidentiary
hearing
Geralds alleges that several exhibits which the postconviction court failed to
address, including a note by Jimmerson regarding a pawn ticket recovered from
Geralds and notes regarding the location of finger and palm prints taken from the
crime scene, were not disclosed to him.
The Florida Supreme Court held as follows with regard to this evidence:
As Geralds’ seventh Brady claim, he argues that the circuit court failed
to address several pieces of evidence that were admitted during the
evidentiary hearing and alleged to have been suppressed. Specifically,
Geralds argues that the court ignored Exhibit 11, which is a handwritten
note by Investigator Jimmerson indicating that he recovered a pawn
ticket from Geralds six days after the herringbone necklace was
recovered. Geralds argues that this evidence is inconsistent with
Jimmerson’s testimony that he obtained the pawn ticket the day the
necklace was recovered. Geralds further argues that the court ignored
Exhibits 31, 34, and 36, which consist of notes regarding the location of
finger and palm prints lifted from the crime scene and the victim=s
automobile, the reports, and the notes of hair analysis. Finally, Geralds
argues that the court ignored evidence that the State suppressed other
handwritten notes by Jimmerson regarding his initial interview with the
victim=s husband. Geralds fails to identify which exhibits involve this
latter information. Although the trial court did not specifically address
these pieces of evidence in its order, we deny relief because the record
supports the conclusion that Geralds failed to demonstrate either that the
information was suppressed by the State or that the information was
material. Thus, Brady error has not been demonstrated.
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Geralds III, 111 So. 3d at 791. Geralds argues that the state court’s determination is
objectively unreasonable and its factual findings are rebutted by clear and convincing
evidence.
Geralds argues that Grammer testified at the evidentiary hearings that he did
not have Jimmerson’s handwritten notes and that he did not disclose any of the FDLE
analysts’ notes. While Grammer’s testimony at times is conflicting on whether he
disclosed a certain piece of evidence, Geralds has not carried his burden by clear and
convincing evidence. For instance, Grammer was asked about Exhibit 11 14 at the
February 2004 evidentiary hearing as follows:
Q. [Assistant Attorney General Cassandra Dolgin]:Bcan you that describe
[Exhibit 11]?
A. [Grammer]: It’s a handwritten note that I believe was written by Bob
Jimmerson dated 3-7-89, 9 a.m., talks about collecting a pawn ticket from
the wallet of Geralds.
Q. Turning to State’s Exhibit page 2247, do you see a description that
matches that exhibit?
A. There is handwritten notes, Geralds, dated 3-6-89, one page, that’s the
closest thing.
Q. Mr. Grammer, when you had your secretary type up this attachment,
did you review it for accuracy as to dates?
Exhibit 11 is a note by Jimmerson dated March 7, 1989, at 9 a.m. which states, “collect pawn
ticket from wallet of Geralds/ pink piece of paper dates & times/ Zales blue credit card.” (EH Exhibit List
Vol. I at 109).
14
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A. I didBI didn’t, I don’t remember going through every single document.
I can’t tell you that this is the same document but it could be. I don’t
recall in going back through the file any other document that said 3-6-89
that was one page but I don’t know. Yes, I did review it and, no, I didn’t
pull every document out and go line-by-line and make sure it was the
right number of pages or the right date, so I don=t, I just don’t know.
Q. Based upon your review of the file, um, having not found another
document marked 3-6-89 pertaining to Mr. Geralds, is it your belief to
the best of your knowledge that this document is one and the same of that
description?
A. The best I can say it probably is.
Q. And this would have been disclosed to the Defense?
A. Yes. It mentions the ZalesBif I could look back in that other file. I
don’t know if you want me to compare. Seems like there’s a picture of
the Zales card in the 71-page[s] of property evidence so it could be in
there, I don’t know.
(EH at 2672-73). Given this testimony, Geralds cannot demonstrate by clear and
convincing evidence that this note was suppressed. Furthermore, Geralds has not
demonstrated that this note is material. He does not dispute that he pawned a gold
herringbone necklace, and he does not demonstrate how this evidence undermines
confidence in the outcome of the trial. With regard to Exhibit 36, the following
evidence was taken at the February 2004 evidentiary hearing:
[Dolgin]: Turning your attention, Mr. Grammer, to Defense Exhibit 36,
if you could describe that.
[Grammer]: That’s a report that says by Larry Smith, microanalysis, four
pages, dated January 25th, 1990.
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Q. In looking at your file marked lab reports from box one, did you locate
that report?
A. Yes.
Q. Is Defense Exhibit 36 the type of report that would have been
disclosed to the Defense?
A. Yes. The one in our file looks like a faxed copy, if that makes a
difference. But, yes, that’s the type of item that would have been
disclosed as soon as we received it.
Q. Does the faxed copy indicate what time of day that it was received?
A. No, it doesn’t. It’s just the way it’s printed that makes it look like it
came from the type of fax machine we had back in the late ‘80’s, early
‘90’s. There are no dates or times.
Q. What’s the date of that report?
A. January 25th, 1990.
Q. And if you could take a look at State’s Exhibit E.
A. E?
Q. E. Do you see Larry Smith=s name listed?
A. I do. State’s Exhibit E is a supplemental response where we provided
seven witnesses= names, provided them on January 24th of 1990 to Mr.
Adams.
Q. So is it fair to say that when you disclosed Mr. Smith=s name to the
Defense, that was the day prior to receiving what has been marked and
admitted as Defense Exhibit 36?
A. I don’t think it’s fair to say it’s the day prior to receiving because we
don’t have it stamped in. It’s dated the day prior to the date on the report,
um, but I couldn’t tell you when our office received it.
Q. Would you have disclosed Mr. Smith’s name and not disclosed the
report that he provided to you?
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A. Well, when I disclosed his name we didn’t have the report, based on
the dates. So, yes, I would have disclosed his name without at the same
time providing a report, but I would not have withheld his report.
Q. Given that you had included his name to someone, who, as someone
who would have had information that may have been relevant, would you
have known that he was preparing a report?
A. No. Oh, would I have once I got his name? Yes, I would have known
it then. I am guessing we found out right here in late January that Larry
Smith, whoever he is, was involved in the case.
(Id. at 2685-86). Grammer had previously testified that it was absolutely his practice
to disclose all FDLE lab reports to the defense, and it is possible that he hand delivered
the Larry Smith report dated January 25, 1990, to defense counsel. (See EH at 271516). After conducting the evidentiary hearings, the state court resolved this claim in
favor of the State. The record can support such a finding. Thus, Geralds cannot
demonstrate by clear and convincing evidence that this evidence was suppressed.
Therefore, Geralds has failed to demonstrate that the state court’s denial of this claim
is not entitled to deference.
Geralds also argues that the state court failed to conduct a cumulative analysis
of various pieces of evidence which pointed to another perpetrator, e.g., the specific
location and number of unidentified palm and finger prints at the crime scene;
unidentified hairs found in the victim’s hand; and Jimmerson’s notes of his interview
with the victim’s husband which noted that Mr. Pettibone thought there might have
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been short plastic ties at his home. First, the state court did not find that these items
were suppressed. Thus, there is no suppression to view cumulatively. Moreover,
Geralds has failed to show that there is a reasonable probability that had this allegedly
suppressed evidence been disclosed that the result of the trial would have been
different. While some of this evidence may cast doubt as to Gerald’s guilt, most of
this evidence does not contradict the strong circumstantial evidence of guilt in this
case. Given the deference owed to the state court’s finding that the evidence against
Geralds supports the verdict of guilt, Geralds cannot prevail on this claim.
Accordingly, Geralds is not entitled to habeas relief on this ground.
Ground I (B): Giglio Claims
In this ground Geralds alleges that the prosecution employed deliberate
deception in making its case against him by the false testimony of two witnesses. ECF
No. 1, pp. 67-77.
1.
State Court Proceedings
Geralds raised this claim in his postconviction proceedings, and the claim was
denied. The Florida Supreme Court affirmed the denial, holding as follows:
a. First Giglio Claim
As Geralds’ first Giglio claim, he argues that the State allowed crime
scene analyst Rousseau to testify falsely when she stated that she tested
Geralds’ sneaker and it “came up positive for presumptive testing for
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blood.” Geralds argued that the State failed to reveal that when the
sneakers were tested by FDLE analyst Zeigler, Zeigler did not find the
presence of blood. Geralds concluded that the State violated Giglio by
allowing Rousseau to testify as she did while possessing Zeigler’s report.
We deny relief because error has not been demonstrated. Geralds has
failed to show how the Zeigler report makes Rousseau=s testimony false
or misleading. Rousseau conducted her own test on the sneakers, and she
testified concerning her results, not the results from any other testing.
b. SecondBFifth Giglio Claims
Geralds’ second through fifth Giglio claims all relate to Investigator
Jimmerson’s testimony, which was presented during the resentencing
phase. Geralds argued that the prosecutor violated Giglio during
resentencing when Investigator Jimmerson testified that (1) Pelton’s alibi
had been confirmed, (2) the shoeprints found at the crime scene were
similar to Geralds’ sneakers, (3) one of Geralds’ shoes tested positive for
blood, and (4) the lab determined that blood found on the herringbone
necklace belonged to the victim. The circuit court denied these claims,
holding that Jimmerson’s testimony at the resentencing did not constitute
a Giglio violation. We agree.
At resentencing, Jimmerson testified that he verified that Pelton was at
work on the date of the murder. There is nothing in the record indicating
that Jimmerson did not confirm Pelton’s alibi, and Geralds did not
present any evidence at the evidentiary hearing to the contrary. Geralds
relies on Jimmerson=s interview with Toriac, raised as his sixth Brady
claim, and argues that this interview indicates that no one was certain
whether Pelton was at work on the morning of the murders. This
interview only indicates that Toriac, not Jimmerson, did not confirm
Pelton=s alibi. At resentencing, Jimmerson also testified that he saw one
consistent shoe track throughout the victim’s home that came from the
same type of shoe that belonged to Geralds. Jimmerson testified to what
he observed. In his observation, he saw only one consistent shoe track.
Jimmerson also testified at resentencing that he was present when
Geralds’ shoes were tested for the presence of blood and that one of the
shoes tested positive. Again, Jimmerson testified to what he personally
observed, and Geralds failed to present any evidence indicating that this
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testimony was false. Finally, the record does not support Geralds’
argument that Jimmerson testified that the blood found on the
herringbone necklace belonged to the victim. Instead, Jimmerson
testified at resentencing that the laboratory determined that the blood type
on the necklace matched the victim’s type. Accordingly, there is
competent, substantial evidence to support the circuit court’s
determination that this testimony was not inaccurate or untrue.
Geralds III, 111 So. 3d at 792-93.
2.
Clearly Established Supreme Court Law
To succeed on a claim that the State presented false evidence, a petitioner must
establish that the prosecutor “‘knowingly used perjured testimony, or failed to correct
what he subsequently learned was false testimony,’ and that the falsehood was
material.” Tompkins v. Moore, 193 F.3d 1327, 1339 (11th Cir. 1999) (quoting United
States v. Alzate, 47 F.3d 1103, 1110 (11th Cir. 1995)); Giglio v. United States, 405
U.S. 150 (1972). For Giglio purposes, “the falsehood is deemed to be material ‘if there
is any reasonable likelihood that the false testimony could have affected the judgment
of the jury.’” Alzate, 47 F.3d at 1110 (emphasis in original) (quoting United States v.
Agurs, 427 U.S. 97, 103 (1976)).
3.
Federal Review of Claim
Geralds argues that the state court’s determination that there was no Giglio
violation with respect to the Rousseau and Jimmerson testimony was objectively
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unreasonable and that its factual findings are rebutted by clear and convincing
evidence.
a.
Rousseau testimony
Laura Rousseau, a crime lab analyst with the FDLE, testified during the guilt
phase of Geralds’ trial that she coordinated evidence collection at the crime scene.
After she identified the Nike sneakers which are the subject of this Giglio claim, the
following exchange occurred:
Q. [Appleman]: What tests did you conduct upon the shoes?
A. [Rousseau]: I examined them visually to see if there were any stained
areas that possibly could be blood. I did not detect any visible stained
areas. Then I used Luminol, which is a chemical presumptive test for
detecting trace amounts of blood. It was sprayed on the shoes, the uppers
and the soles. Any areas that luminesced were then tested with
Phenophaline, another presumptive test for blood, and on the left shoe I
found some areas that did positively with Luminol and Phenophanline,
came up positive for presumptive testing for blood, and it was on the left
shoe.
Q. In what area on the left shoe?
A. On theBall right, this is the left shoe and on the inside portion on the
outer soul area, the area that I have marked here with a sharpie, inside
this area luminesced and came up positive with Phenophaline.
Q. The area that you marked?
A. Yes, I marked it with a sharpie, but I don’t have my initials on the
shoe.
Q. Okay, you don’t have your initials on the shoe or on the bag.
A. That’s correct.
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Q. But the shoes in front of you have your mark where you tested; is that
correct?
A. That’s correct.
Q. All right. And you used two tests. Is that correct?
A. Yes, I did.
Q. And what was the results of both tests?
A. Both tests were positive for presumptive testing for blood.
(TR Vol. X at 1720-22). On cross-examination, defense counsel clarified as follows:
Q. [Adams]: Ma’am, what do you mean by presumptive tests?
A. [Rousseau]: That’s just a pre-test that it could be blood.
Q. And in your training and experience, those presumptive tests which is
a pre-test meaning it could be blood, would that differentiate between
human and fish blood?
A. No, it would not.
Q. To your knowledge was any further testing done with regard to those
items in front of you?
A. Not to my knowledge, I don’t know. I have not seen the shoes since
then.
(Id. at 1722-23). The state court held that Rousseau’s testimony was not false or
misleading because she conducted her own tests on the sneakers and did not testify
about the results from any other testing. This finding is clearly supported by the record.
Geralds has failed to demonstrate a Giglio violation with regard to this testimony.
Accordingly, Geralds is not entitled to habeas relief on this ground.
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b.
Jimmerson testimony
The record reflects that at Geralds’ resentencing trial Jimmerson testified about
the investigation of the murder and summarized the evidence that was presented in the
guilt phase of the original trial. Geralds points to four instances in Jimmerson’s
testimony which he claims violate Giglio. First, Geralds points to the following
testimony:
Q. [State Attorney Appleman]: Do you know any reason why Mr. Toriak
[sic] would lie about Mr. Pelton’s presence at work the day of this crime?
A. [Jimmerson]: No reason.
Q. As a matter of fact he provided you a document; didn’t he, saying that
I know on February 1st he, William Pelton was here from 8 a.m. to 12
and from 1 ‘til 6?
A. That’s correct.
Q. So, you verified that William Pelton was at work on the date of this
crime?
A. Yes, sir.
(Resentencing Trial (“Resentencing”), Vol. III at 443). Geralds argues that
Jimmerson’s undisclosed notes, discussed supra, indicated that no one was certain
whether Pelton was at work on the morning of February 1, 1989. The postconviction
court found that “the testimony of Detective Jimmerson at the re-sentencing was not
so inaccurate and untrue to constitute a Giglio violation.” (Final Order Denying
Defendant=s Motion for Postconviction Relief, PCR Vol. X at 1750). Geralds has not
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demonstrated that the state court’s determination is not entitled to deference. As noted
by the state supreme court in denying this claim, Jimmerson could have verified
Pelton=s whereabouts during the time of the crime independently of Toriac, and
Geralds has failed to demonstrate that this did not occur.15
Jimmerson also testified about the investigation into Pelton and other suspects who were
eliminated as follows:
15
Q. [State Attorney Appleman]: Now, if William Pelton had been involved or you could
have found something that William Pelton, to indicate that he was involved in this crime,
what would you have done?
A. [Jimmerson]: Would have arrested him.
Q. And you have found nothing to show that either he or Archie, whatever his name is,
were involved in this crime, have you?
A. Nothing.
Q. As a matter of fact, how many people did you eliminate in your investigation before you
centered on this defendant?
A. Forty, fifty people.
Q. Even going as far as going up to a murder scene in Graceville, Florida where a couple
was killed; is that true?
A. That’s correct.
Q. And going to Alabama where another couple was killed; is that true?
A. That’s correct.
Q. And checking out one in Kentucky, if I remember correctly; is that true?
A. Yes, sir.
Q. So, you have covered the gamit of every possibility that you are aware of and where
does everything point in this case?
A. Mark Geralds.
(Resentencing, Vol. III at 441-42).
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The second portion of testimony that Geralds claims violates Giglio is when
Jimmerson was asked to identify the Nike sneakers he collected from Geralds:
Q. [Appleman]: Now, in your investigative capacity, have you worked in
reviewing and looking at shoe prints and patterns like in sand or in blood
in comparing them to the tracks that you see on the bottom of shoes?
A. [Jimmerson]: Yes, sir.
Q. Did you see these particular tracks off these shoes in the Pettibone
home?
A. Yes, sir.
Q. Did you see one consistent shoe track throughout the home?
A. Correct.
Q. That would be coming from the Nike type shoe?
A. That’s correct.
Q. Indications to you as far as those particular shoe prints are concerned
as far as the Nikes and the blood track, is there is one set of footprints
inside the home, is that correct?
A. That’s correct.
(Id. at 401-02). Geralds argues that this testimony is inaccurate and misleading.
However, Jimmerson did not testify that the tracks found at the crime scene came from
Geralds’ shoes. In fact, just a little later in his testimony when asked about a chart
indicating footprints throughout the crime scene, Appleman asked him the following:
Q. Do those show the path of the single set of footprints that you saw
throughout the house that day?
A. Yes, sir.
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Q. And those were similar in characteristic as to the Nike shoes that you
obtained from the defendant=s motel room?
A. That’s correct.
(Id. at 413) (emphasis added). Jimmerson did not testify that the shoe prints found at
the crime were positively identified as being Geralds’; his testimony was that the tread
pattern was similar and seemed consistent with Geralds’ Nikes in his observation. This
conclusion is the same one reached by the FDLE expert, Kenneth Hoag, who testified
following Jimmerson about his examination of Geralds’ shoes. Hoag testified that he
compared pieces of vinyl taken from the crime scene which had visible shoe tracks
with the Nikes taken from Geralds, and he determined that “the shoe print that is
visible on both pieces of vinyl was similar in pattern and in the size of the pattern to
[Geralds’] left shoe.” (Id. at 490). Hoag testified that he could not determine if the
shoe tracks came from the Nikes because there were no individual characteristics
which were visible:
[Appleman]: Had there been some unusual mark on either of these shoes
would you have been able to go further than to say similar in tread design
and size?
[Hoag]: Yes. If there had been in the area of these markings of the lugs,
if there had been some individual cuts or say a chip out of the corner of
one of these, it would be possible that I could have said that it was a
positive identification. But in this particular case since none of that is
there I could not say that.
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(Id. at 494). Geralds has failed to demonstrate a Giglio violation with regard to this
testimony.
Third, Geralds argues that the prosecution’s deception continued when he
elicited testimony about the presence of blood found on the shoe in the following
exchange with Jimmerson:
Q. [Appleman]: Were [the Nike shoes] sprayed with what is known as
Luminol?
A. [Jimmerson]: Luminol andB
***
A. It is a chemical test to detect human blood or blood.
Q. Was those [sic] shoes sprayed?
A. Yes, sir.
Q. And did the test come positive, showing there was blood on the shoes?
A. Positive on the left shoe.
Q. Now, you couldn’t tell whether it was fish blood, animal blood or what
kind of blood it may be?
A. No, sir.
Q. You had a positive reaction for blood?
A. That’s correct.
(Id. at 413-14). As discussed supra with regard to Rousseau=s testimony, the Luminol
test done on the shoe did indicate the presence of blood. Therefore, Jimmerson did not
testify falsely. Further, while it was later determined that the stain was not blood, this
fact is not material here because Jimmerson was clear that no determination was made
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regarding whether the blood was human, and most importantly, he did not testify that
the blood on the shoe was from the victim. Geralds has failed to demonstrate a Giglio
violation with regard to this testimony.
Finally, Geralds argues that Jimmerson misled the jury about the blood analysis
of the stain found on the pawned herringbone necklace. The testimony he refers to is
as follows:
Q. [Appleman]: And you’ve testified about the herringbone necklace that
had been pawned by the defendant?
A. [Jimmerson]: That’s correct.
Q. Does this show one similar?
A. Similar.
Q. With respect to that particular necklace were there any stains found
on the necklace?
A. When it was looked at at the Miracle Strip Pawn Shop a blood stain,
or what appeared to be a blood stain was on the necklace.
Q. Did you take and send that particular necklace and sample of the blood
of both the defendant and Mrs. Pettibone to the laboratory for analysis?
A. That’s correct.
Q. And did they determine that the type was of Mrs. Pettibone?
A. Yes, sir.
(Id. at 406). Geralds argues that the blood was not matched conclusively to the victim
so Jimmerson’s testimony was false. However, the blood stain found on the necklace
was matched to Mrs. Pettibone’s blood type. Shirley Zeigler, the crime lab analyst
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with the FDLE specializing in blood and bodily fluids, testified at the resentencing
with regard to this evidence as follows:
Q. [Appleman]: What was your determination as to the presence of blood
on the chain itself?
A. [Zeigler]: Well, first of all I tested the sample for the presence of blood
and found that blood was present. Then I did a species identification test
which told me that the results was that the blood was from a human
source. I do this because blood would look the same whether it was from
human or animal. Then I did the blood typing test that I did on the liquid
blood, the results of this test matched that of Ms. Pettibone.
Q. Were you able to eliminate it as matching that of the defendant?
A. Definitely.
Q. Did it match all of the criteria as to type and the enzyme types that
you described as to Mrs. Pettibone?
A. Yes, it did.
Q. What is your conclusion as to the blood that was contained upon this
particular necklace?
A. I concluded that that blood definitely did not originate from Mr.
Geralds and that it could have, could have originated from Mrs.
Pettibone.
(Id. at 472) (emphasis added). Jimmerson’s testimony was not false or misleading on
this point, and Geralds cannot demonstrate a Giglio violation with regard to this
testimony. Geralds also argues that Jimmerson’s testimony may have been technically
correct, but it gave the jury a false impression of the evidence. However, the context
of Jimmerson’s testimony, given in a new penalty phase trial, is significant. Geralds
had already been convicted of the murder, and his conviction had been upheld on
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direct appeal. Thus, any minor misstatements of the evidence or any possible false
impression drawn from his testimony which went to Geralds’ guilt was not material
for purposes of the resentencing trial. Geralds has failed to demonstrate a Giglio
violation with regard to this testimony. Therefore, Geralds has failed to demonstrate
that the state court’s denial of this claim is not entitled to deference.
Accordingly, Geralds is not entitled to habeas relief on this ground.
Ground I (C): Denial of a Full and Fair Hearing
In this subclaim, Geralds addresses two supplemental motions he filed in his
postconviction proceedings that were based on additional records containing
investigative reports about other potential suspects in the crime that were not
originally turned over to his collateral counsel. ECF No. 1, pp. 77-86.
1.
State Court Proceedings
The postconviction court denied both of the supplemental motions. The Florida
Supreme Court affirmed, holding as follows:
Geralds argues that the postconviction court erred in summarily denying
the first and second supplement to his postconviction motion, various
claims of ineffective assistance of counsel contained in his amended
postconviction motion, and a newly discovered evidence claim in his
amended postconviction motion. We conclude that the circuit court did
not err in summarily denying these claims.
In determining whether an evidentiary hearing is required, we have held:
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[A] defendant is entitled to an evidentiary hearing on a
postconviction relief motion unless (1) the motion, files, and
records in the case conclusively show that the prisoner is
entitled to no relief, or (2) the motion or a particular claim
is legally insufficient. The defendant bears the burden of
establishing a prima facie case based upon a legally valid
claim. Mere conclusory allegations are not sufficient to
meet this burden. However, in cases where there has been
no evidentiary hearing, we must accept the factual
allegations made by the defendant to the extent that they are
not refuted by the record.
Hannon v. State, 941 So. 2d 1109, 1138 (Fla. 2006) (quoting Freeman v.
State, 761 So. 2d 1055, 1061 (Fla. 2000)). This standard must be applied
to each of Geralds= claims that summary denial was improper.
First and Second Supplements
In both supplements, Geralds argued that he had learned of other suspects
involved in the murder investigation. He alleged that either the State
violated Brady when it failed to disclose this exculpatory evidence or trial
counsel was ineffective for failing to present it to the jury. The circuit
court summarily denied this claim, holding that there were no specifics
contained in the supplement sufficient to establish that this information
should have been disclosed or, if it was required to be disclosed, that it
would have any prejudice on the defense by the failure to disclose it. The
circuit court further held that there were no allegations that this
information was available to trial counsel and that he had failed to act on
it. We agree.
In his supplements, Geralds identified other suspects in this case and the
details of why they were suspected. In addressing these suspects,
however, Geralds merely provided facts and failed to allege any of the
proper elements of a Brady or ineffective assistance of counsel claim.
Geralds bears the burden of establishing a prima facie case based upon a
legally valid claim. Freeman, 761 So. 2d at 1061. The fact that others
were suspected of committing this crime, without more, is insufficient to
establish a legally sufficient Brady claim. With respect to the ineffective
assistance of counsel aspect of this claim, Geralds also fails to allege that
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trial counsel knew of, or failed to act on, any information regarding other
suspects. Accordingly, the circuit court did not err in summarily denying
these claims because Geralds’ conclusory allegations failed to establish
a legally sufficient Brady or ineffective assistance of counsel claim.
Geralds III, 111 So. 3d at 799-800.
2.
Clearly Established Supreme Court Law
The standard for an evidentiary hearing is well established. As it relates to the
underlying issue, the law governing Brady claims is set forth supra.
3.
Federal Review of Claim
In denying Geralds’ first supplemental motion, the postconviction court noted
that “conclusory allegations without specific allegations of prejudice would make
[the] claims insufficiently pled and would not warrant an evidentiary hearing.” Order
Denying Defendant’s Supplement to Amended Motion to Vacate Judgments of
Conviction and Sentence, PCR Vol. IX at 1528 (Tab 53). With regard to the
allegations that the defense should have been provided with all information regarding
the prosecution’s investigative work, the court held that under Florida law
investigators are not required to provide all of their notes and information regarding
their investigation, and the failure to disclose this information to the defense was not
a Brady violation. See Wright v. State, 857 So. 2d 861 (Fla. 2003). 16 The
16
In Wright v. State, 857 So. 2d 861, 869-70 (Fla. 2003), the court held that investigators in a
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postconviction court also held that “[i]t would be pure conjecture at this point to see
any connection between these crimes based upon the facts provided by the defense.”
Order Denying Defendant’s Supplement to Amended Motion to Vacate Judgments of
Conviction and Sentence, PCR Vol. IX at 1529. Therefore, the court found that
Geralds failed to establish any prejudice sufficient to require a hearing. The
postconviction court denied Geralds’ second supplemental motion for the same
reasons, again holding that Geralds’ Brady claims were conclusory and that he failed
to sufficiently allege prejudice under Brady and its progeny.
In his petition, Geralds requests an evidentiary hearing to determine if he can
meet his burden to establish a Brady violation with respect to the various pieces of
evidence that he identified in his two supplemental motions in state court, most of
which involve other potential suspects in the crime. See ECF No. 1, pp. 77- 86. As
found by the state court, these allegations are conclusory and do not meet the
requirements which entitle a petitioner to an evidentiary hearing under 28 U.S.C. §
2254(e)(2). See Schriro, 550 U.S. at 475 (“If district courts were required to allow
federal habeas applicants to develop even the most insubstantial factual allegations in
capital murder case had no duty under Brady to disclose to the defendant the criminal history of another
possible suspect, neighbors’ complaints to police about that suspect, or police reports involving other
known criminals in the neighborhood in which the murder occurred.
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evidentiary hearings, district courts would be forced to reopen factual disputes that
were conclusively resolved in the state courts.”). Thus, Geralds is not entitled to an
evidentiary hearing on this subclaim.
Accordingly, Geralds is not entitled to habeas relief on this ground.
Ground II: Ineffective Assistance of Counsel/Guilt Phase
Geralds raises four categories of allegedly deficient performance by his counsel
during the guilt phase of his original trial, including his counsel’s failure to (a) present
evidence from the crime scene; (b) cross-examine witnesses; (c) investigate and
present witnesses; and (d) make objections and proper motions. ECF No. 1, pp. 86118.
1.
State Court Proceedings
Geralds exhausted these claims in his postconviction proceedings. The
postconviction court denied relief, and the Florida Supreme Court affirmed the denial.
2.
Clearly Established Supreme Court Law
The standard for evaluating claims of ineffective assistance of counsel is set
forth in Strickland v. Washington, 466 U.S. 668 (1984). To obtain relief under
Strickland, Petitioner must show (1) deficient performance by counsel, and (2) a
reasonable probability that, but for counsel’s deficient performance, the result of the
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proceeding would have been different. Id. at 687B88. If Petitioner fails to make a
showing as to either performance or prejudice, he is not entitled to relief. Id. at 697.
The focus of inquiry under the performance prong of Strickland is whether
counsel’s assistance was reasonable considering all the circumstances and under
prevailing professional norms. Strickland, 466 U.S. at 688B89, 691. “The petitioner’s
burden to prove, by a preponderance of the evidence, that counsel=s performance was
unreasonable is a heavy one.” Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir.
2006) (citing Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en
banc)). “Judicial scrutiny of counsel’s performance must be highly deferential,” and
courts should make every effort to “eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel=s challenged conduct, and to evaluate the
conduct from counsel=s perspective at the time.” Strickland, 466 U.S. at 689. “[T]here
are no ‘absolute rules’ dictating what reasonable performance is . . . .” Michael v.
Crosby, 430 F.3d 1310, 1320 (11th Cir. 2005) (quoting Chandler, 218 F.3d at 1317).
Indeed, “‘[a]bsolute rules would interfere with counsel=s independenceCwhich is also
constitutionally protectedCand would restrict the wide latitude counsel have in
making tactical decisions.’” Id. (quoting Putman v. Head, 268 F.3d 1223, 1244 (11th
Cir. 2001)).
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If the record is not complete regarding counsel’s actions, “then the courts should
presume ‘that what the particular defense lawyer did at trialCfor example, what
witnesses he presented or did not presentCwere acts that some lawyer might do.’”
Jones, 436 F.3d at 1293 (citing Chandler, 218 F.3d at 1314B15 n.15). “Even if many
reasonable lawyers would not have done as defense counsel did at trial, no relief can
be granted on ineffectiveness grounds unless it is shown that no reasonable lawyer, in
the circumstances, would have done so.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.
1994).
As to the prejudice prong of the Strickland standard, a petitioner’s burden of
demonstrating prejudice is high. See Wellington v. Moore, 314 F.3d 1256, 1260 (11th
Cir. 2002). To establish prejudice, Petitioner must show “that every fair-minded jurist
would conclude ‘that there is a reasonable probability that, but for counsel=s
unprofessional errors, the result of the proceeding would have been different.’” Jones
v. GDCP Warden, 753 F.3d 1171, 1184 (11th Cir. 2014) (quoting Strickland, 466 U.S.
at 694). “A reasonable probability is a probability sufficient to undermine confidence
in the outcome,” not that counsel=s conduct more likely than not altered the outcome
of the proceeding. Id. (citation omitted). And a petitioner must show that the likelihood
of a different result is substantial, not just conceivable. Williamson v. Fla. Dep’t of
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Corr., 805 F.3d 1009, 1016 (11th Cir. 2015) (citing Richter, 562 U.S. at 112). “When
a defendant challenges a conviction, the question is whether there is a reasonable
probability that, absent the errors, the factfinder would have had a reasonable doubt
respecting guilt.” Strickland, 466 U.S. at 695. The prejudice assessment does “not
depend on the idiosyncracies of the particular decisionmaker,” as the court should
presume that the judge or jury acted according to law. Id. at 694B95. Further, when
the claimed error of counsel occurred at the guilt stage of trial (instead of on appeal),
Strickland prejudice is gauged against the outcome of the trial, not on appeal. See
Purvis v. Crosby, 451 F.3d 734, 739 (11th Cir. 2006) (citing Strickland, 466 U.S. at
694B95).
Finally, when a district court considers a habeas petition, the state court’s
findings of historical facts in the course of evaluating an ineffectiveness claim are
subject to the presumption of correctness, while the performance and prejudice
components are mixed questions of law and fact. Strickland, 466 U.S. at 698; Collier
v. Turpin, 177 F.3d 1184, 1197 (11th Cir. 1999). “Surmounting Strickland’s high bar
is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). “Establishing
that a state court’s application of Strickland was unreasonable under § 2254(d) is all
the more difficult.” Richter, 562 U.S. at 105. As the Richter Court explained:
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The standards created by Strickland and § 2254(d) are both “highly
deferential,” and when the two apply in tandem, review is “doubly” so.
The Strickland standard is a general one, so the range of reasonable
applications is substantial. Federal habeas courts must guard against the
danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d) applies, the question
is not whether counsel=s actions were reasonable. The question is whether
there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.
Id. (citations omitted).
3.
Federal Review of Claim
The Florida Supreme Court correctly identified Strickland as the clearly
established Supreme Court law governing this claim. Geralds III, 111 So. 3d at 793.
Therefore, in order to prevail on habeas review, Geralds must demonstrate that the
state court’s decision was contrary to or an unreasonable application of Strickland or
that the state court made an unreasonable determination in light of the facts of his case.
A. Failure to Present Evidence from the Crime Scene
The Florida Supreme Court denied this claim, holding as follows:
Geralds argues that trial counsel should have presented evidence related
to the physical evidence, or lack thereof, obtained from the crime scene
and the victim’s body. After the State rested its case at trial, the defense
moved for a judgment of acquittal based on the insufficiency of the
evidence. When the motion was denied by the court, the defense rested
its case without calling any witnesses or presenting any evidence.
Because trial counsel is deceased, he was not able to testify at the
evidentiary hearing regarding his trial strategy. Nevertheless, a review of
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his closing argument during Geralds’ guilt phase suggests that trial
counsel’s strategy was to highlight all the missing pieces of evidence in
order to create a reasonable doubt. We agree with the circuit court’s
summary of trial counsel’s closing argument and hold that trial counsel’s
performance was not deficient, because his closing argument during the
guilt phase addressed the evidentiary issues Geralds raised in his
postconviction motion. In denying this claim, the circuit court noted the
following facts from the record:
On page 79 of Volume III of the guilt phase transcript (page
1982) trial counsel called the jurors’ attention to what they
did not hear in the case. He specifically argued the lack of
evidence on page 81 (page 1984) and trial counsel reminded
the jurors that the sunglasses and gold chain only looked like
the victim’s. He also argued there was no way to tell what
things were actually taken due to Carolyn Pettibone
gathering up some jewelry before the family came back
from Ohio. On page 90, [ (]page 1993) he also pointed out
that there was only presumptive tests for blood made by
Laura Russo [on Geralds’ sneakers]. He questioned the lack
of presence of blood in the car. On page 92 he argued the
stain in the back seat could mean more than one individual
was involved and the one who was bloody got in the back
seat (page 1995). He also questioned the failure to show that
a contact lens found on the victim actually belonged to the
victim. He again pointed out that a prescription check could
reveal if the lens could have belonged to another person who
lost it in the struggle. On page 95 he pointed out the lack of
testimony about the defendant’s clothes being bloody and
the lack of scratches on his face. He argued the importance
of this when compared to the fingernail torn off on the
victim’s hand. On pages 97B98, trial counsel commented on
the fact that the Thomas ties were not uncommon and that
one of the ties in Geralds’ trunk was not a Thomas tie. On
page 99, he argued about the failure to pursue other suspects
and how that was a lack of evidence (page 2002). He further
argued the lack of blood on the Nike shoes and the fact that
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the tread designs were not uncommon. He argued that the
pawning of the necklace and the giving of your
identification without any attempt to disguise yourself was
inconsistent with a guilty conscious [sic]. He also pointed
out that Bill Danford did not see any scratches, bruises or
hurt knuckles (page 2007). He pointed out to the jurors the
various samples taken from Geralds and why none were
found at the scene. He questioned the lack of evidence as to
anything under the fingernails of the victim and the fibers
on a corner of the residence in the interior. He pointed out
to the jury that the defense requested DNA testing on the
necklace and why didn’t the State do it itself. On rebuttal,
trial counsel again argued the lack of evidence. He argued
where were certain witnesses and this was really a case of
coincidence. All of these arguments by trial counsel refute
the claims of the defendant that his trial counsel was not
prepared and was deficient in his performance.
Geralds does not deny that trial counsel argued these points during
closing argument. Instead, he argues that trial counsel should have
presented evidence of this lack of evidence instead of merely arguing in
closing that there was no evidence.
Even though closing argument is not evidence, it is a powerful tool.
Through his closing argument, trial counsel was able to highlight the lack
of evidence and characterize the State’s case as a failure to properly
investigate and present the entire picture. For example, when
highlighting the lack of evidence regarding to whom the torn fingernail
belonged, trial counsel argued, “Either they [(the State)] didn’t check or
it didn’t match up with Mark Geralds. And they want you to guess a man
into a guilty verdict in a case this terrible.” Lynn Henson, a microanalyst
for FDLE, analyzed the fingernail and concluded that it belonged to the
victim. Geralds makes no argument that trial counsel was not aware of
this report. Had counsel presented Henson=s analysis, he could not have
argued that the State failed to present evidence that it had fully
investigated and tested the evidence, such as the fingernail. Other than
stating what trial counsel should have done differently, Geralds does not
establish why trial counsel’s strategy was deficient. When held up against
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the strong presumption that trial counsel’s performance was not
ineffective, Geralds has failed to carry his burden. See Strickland, 466
U.S. at 690, 104 S. Ct. 2052.
Furthermore, even if trial counsel’s performance was deficient for not
presenting this evidence, Geralds fails to establish how he was
prejudiced. Trial counsel referenced the lack of evidence in closing
argument and the jury was aware of it. Accordingly, the failure to actually
present evidence of non-evidence in this case could not have affected the
fairness and reliability of the proceeding so that confidence in the
outcome is undermined.
Geralds III, 111 So. 3d at 794-95 (footnote omitted).
Geralds primary argument in this claim is that his counsel did not present any
evidence in defense, but rather chose to make a closing argument which was
particularly damaging since the case against him was circumstantial. Geralds contends
that because the jury was specifically instructed that the attorneys’ closing arguments
were not evidence and should not be considered as such, the jury did not hear the
“irrefutable physical evidence indicating that someone other than Mr. Geralds entered
the victim’s home, struggled with her, beat and killed her, rummaged her home for
jewelry and valuables, and then stole her automobile.” ECF No. 1, p. 104. With the
benefit of time and hindsight, Geralds has identified a number of pieces of evidence
that he believes his counsel should have highlighted in defending the case.17
This evidence includes several hairs found in the victim=s hand and collected around her body
which did not match her hair or Geralds’; a handkerchief found at the scene containing blood which did
not match the victim or Geralds; several unidentified finger and palm prints found at the scene (including
17
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A review of the guilt phase record supports the state court’s determination that
Geralds’ counsel challenged the lack of evidence incriminating Geralds in his guilt
phase closing argument. The following are a few examples which illustrate counsel’s
arguments:
“[Laura Rousseau] used that luminous stuff and some other chemicals
and she made a chart with tracks and all that. But when she was recalled
she was asked, what do you mean by a presumptive test. It sounds very
definitive, doesn’t it. Well, presume it’s blood. That stuff showed up, it
must be blood. What was her answer the second time she testified. A
presumptive test that I use. Both of them are a pre test. A pre test for what
could be blood. Her precise words when asked what that presumptive test
meant. A pre test for what might be blood. But if she hadn’t been recalled,
wouldn’t you have been left with the impression without any doubt,
without any reasonable doubt that she saw blood in those tracks, in all
those things?” (TR Vol. XIV at 1993).
***
“The back of the car that was located over by the school. Did you find
anything in it, particularly did you see anything you thought might be
blood and she, I believe [Jan Johnson] had to look at her notes. Yes. She
did see something that might have been blood in the back seat of the car.
And the samples taken of it for future laboratory procedures. I want to
ask you, did you hear any results of that stain in the back of that car?
What did they do with it. Certainly Ms. Zeigler didn’t tell us, the serology
expert. Aren’t you entitled to know. Isn’t that a lack of evidence? . . . .
on the victim=s jewelry box) which did not match the victim, her family or Geralds; and a crime scene
photograph of a second shoe print dissimilar from the tread on Geralds’ shoes. Geralds also contends that
his counsel should have made various arguments about the blood evidence in the case, e.g., there were
signs of a struggle at the scene but no blood or bloody shoe prints found in the victim’s stolen car; there
was no blood on Geralds’ clothes or on his person when he got to his grandfather’s home; and Ziegler’s
report rebutted Rousseau=s testimony about the presumptive blood found on Geralds’ Nike shoe. Finally,
Geralds alleges that his counsel failed to develop evidence that illustrated the Nike shoes’ common tread
design and size and that the victim’s nail scrapings did not match Geralds.
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Was it blood, yes or no. If it was, did we type it, did we check it, things
of that nature.” (Id. at 1994-95).
***
“Interesting thing which we didn’t hear at all from Mr. Freeman who was
probably the first witness you did hear, who saw Mark Allen Geralds that
day, did you hear anything about his clothes being bloody? No. Did you
hear anything about he had scratches on his face? No. Was there any
testimony indicating that Mark had been involved in a struggle or a fight?
No, nothing. Nothing unusual about Mark being there to take a shower.”
(Id. at 1997-98).
***
“Laura Russo [sic] was called. And talked about. I only see one . . . well,
here’s another one. The Nikes. Oh, yeah, there was blood on them, I
identified a little area that might be blood. What did you do with them?
Sent them to the lab. Did you hear Ms. Zeigler say, yes, there is blood on
those shoes? No. Did you hear Ms. Zeigler say I checked those shoes in
Jacksonville laboratory? No. You didn’t hear any testimony about that.
Or did Ms. Zeigler test those shoes and find no blood? You’re left in the
realm of guessing. And even Ms. Russo at that time told us about that
presumptive test which was really a pre test which could show blood and
it couldn’t even tell whether it was human or fish blood because she was
asked that by me. The answer was she couldn’t even tell the difference
on that pre test.” (Id. at 2003-04).
***
“But [Kenneth Hoag] did say that there were no individual characteristics
on those shoes that he could tie to that print. His words were no individual
characteristics. So, the only thing we know is that Nike, Lord knows how
many thousand of them has the same tread design as they saw in the
kitchen floor or den. Nothing more.” (Id. at 2004-05).
***
“No witness said positively that was Tressa=s gold chain. None.” (Id. at
1984).
***
“But no positive identification of the sunglasses or the gold chain.” (Id.
at 1984).
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While Geralds argues that all of the evidence he highlights in his petition demonstrates
that the victim was killed by another person or persons, on direct appeal the Florida
Supreme Court held that “[a]fter a thorough review of the record, we are satisfied that
the evidence in this case was sufficient to sustain the jury verdict.” Geralds I, 601 So.
2d at 1159. In denying the ineffective assistance claim, the state court found that
defense counsel’s strategy was to highlight all of the missing pieces of evidence in
order to create reasonable double. The record demonstrates that defense counsel
consistently highlighted the deficiencies in the state’s evidence in his crossexamination of witnesses and in his opening and closing arguments, arguing that the
insufficiency of the evidence should give rise to reasonable doubt.
Because there are no absolute rules dictating what reasonable performance is,
counsel cannot be considered ineffective for performing in a particular way in a case,
as long as the approach taken “might be considered sound trial strategy.” Darden v.
Wainwright, 477 U.S. 168, 186 (1986) (citation omitted). A strong presumption of
competence must be applied to counsel’s performance, and the question is not what
the best lawyer would have done, but whether counsel’s performance were acts that
some reasonable lawyer might do. The Eleventh Circuit has explained:
To uphold a lawyer=s strategy, we need not attempt to divine the lawyer=s
mental processes underlying the strategy. “There are countless ways to
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provide effective assistance in any given case.” Strickland, 104 S. Ct. at
2065. No lawyer can be expected to have considered all of the ways. If a
defense lawyer pursued course A, it is immaterial that some other
reasonable courses of defense (that the lawyer did not think of at all)
existed and that the lawyer’s pursuit of course A was not a deliberate
choice between course A, course B, and so on. The lawyer’s strategy was
course A. And, our inquiry is limited to whether this strategy, that is,
course A, might have been a reasonable one.
Chandler, 218 F.3d 1305, 1315 n.16. The Eleventh Circuit has also defined strategy
as “trial counsel=s course of conduct, that was neither directly prohibited by law nor
directly required by law, for obtaining a favorable result for his client.” Id. at 1314,
n.14. Geralds bears the burden of persuasion on the issue of his counsel’s competence.
Because Geralds’ counsel died prior to the postconviction evidentiary hearing
held in this case, no court has had the benefit of his testimony explaining his defense
strategy or any other matters he took into consideration in defending the case.
However, “an ambiguous or silent record is not sufficient to disprove the strong and
continuing presumption of counsel=s competency. Therefore, where the record is
incomplete or unclear about counsel’s actions, we will presume that he did what he
should have done, and that he exercised reasonable professional judgment.” Williams
v. Allen, 598 F.3d 778, 794 (11th Cir. 2010) (quotation marks and brackets omitted);
Putman v. Head, 268 F.3d 1223, 1243 (11th Cir. 2001) (“If the record is incomplete
or unclear about counsel=s actions, then it is presumed that counsel exercised
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reasonable professional judgment.”). See also Holland v. Fla, Dep’t of Corr., 631 F.
App=x 726, 729 (11th Cir. 2015) (affirming denial of ineffective assistance claim
where defense decided not to present a defense case and stating, “[m]oreover, defense
counsel was able in his rebuttal closing argument to the jury to explain to the jury why
he had not presented evidence, noting the law that there was no burden on the defense
to present evidence and that the state had the burden to prove guilt beyond a reasonable
doubt. Thus, the defense was able to suggest to the jury that there was additional
evidence of Holland’s innocence, in addition to the evidence already adduced before
the jury in cross-examination of the government witnesses.”). Given these standards
and the high threshold necessary to establish ineffective assistance of counsel, Geralds
has not met his burden of persuasion that his counsel’s performance was a course that
no other counsel would have pursued in these circumstances. After a thorough review
of the guilt phase trial in this case, this Court concludes that the state court’s
determination that defense counsel challenged the lack of evidence is supported by
the record. Therefore, Geralds has failed to demonstrate that the state court’s denial
of this claim is not entitled to deference.
Accordingly, Geralds is not entitled to habeas relief on this ground.
B. Failure to CrossBExamine Witnesses
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In his petition Geralds raises several ways in which his counsel should have
impeached the Pettibone children. ECF No. 1, pp. 104-07.
The Florida Supreme Court denied this claim, holding as follows:
Geralds argues that trial counsel should have cross-examined Blyth [sic]
and Bart Pettibone, the victim=s children, to show that their testimony
evolved over a period of time. Specifically, Geralds argues that trial
counsel should have cross-examined Blyth and Bart on the fact that they
did not tell the police that they encountered Geralds until after Geralds
was arrested. Blyth was in the ninth grade when she testified. Bart was
nine years old when he testified. Through Blyth and Bart, the jury heard
evidence that one week prior to the murder, Blyth, Bart, and the victim
encountered Geralds in a shopping mall and Geralds learned that the
victim=s husband was out of town. Blyth was cross-examined while Bart
was not. Trial counsel questioned Blyth regarding Judy Lundmark, the
victim=s housekeeper, who reportedly had a key to the home. Counsel
also questioned Blyth regarding the fact that she and at least three other
family members went through the victim=s possessions after the murder.
Counsel was also able to obtain a concession from Blyth that she could
not conclusively identify the herringbone necklace. The circuit court held
that trial counsel=s performance on this point was not deficient. We agree.
First, Geralds does not identify any reason why the children should have
told police that they encountered Geralds in the mall until after he was
arrested. Second, trial counsel could have been exercising restraint in
cross-examining these witnesses because they are children. Trial counsel
could have reasonably believed that the jury would penalize Geralds for
allowing trial counsel to strenuously cross-examine the victim=s children.
In Brown v. State, 846 So. 2d 1114 (Fla. 2003), we rejected an argument
that trial counsel should have cross-examined a witness on certain issues,
or more strenuously examined him on certain issues, because such an
argument “is essentially a hindsight analysis.” Id. at 1121. “The standard
is not how present counsel would have proceeded, in hindsight, but rather
whether there was both a deficient performance and a reasonable
probability of a different result.” Id. (quoting Cherry v. State, 659 So. 2d
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1069, 1073 (Fla. 1995)). Similarly, we hold that Geralds’ argument is
essentially a hindsight analysis and that trial counsel’s performance was
not deficient in this regard.
Nevertheless, even if trial counsel was deficient for not cross-examining
these children any further, Geralds fails to establish how he was
prejudiced. Geralds does not make the connection as to how
cross-examining these witnesses any further on the point he raises would
undermine confidence in the outcome. Accordingly, Geralds fails to
establish that he was prejudiced.
Geralds III, 111 So. 3d at 795-96.
Geralds argues that defense counsel should have pointed out various
inconsistencies in the children=s testimony, including that neither told investigators
that they had encountered Geralds at the mall prior to his arrest. As noted by the state
court, Geralds does not point to any reason why the children would have remembered
this incident prior to the arrest. Bart Pettibone testified that he knew Geralds from
doing carpentry work at his home. (See TR Vol. XI at 1458-75). He testified that he
saw Geralds at the mall prior to his mother=s murder speaking with her. Bart then
encountered Geralds a short time later that same day in an arcade at the mall, and the
following occurred:
Q. [Grammer]: Okay. Did you talk to Mark Geralds while you were in
the arcade?
A. [Bart]: Yes.
Q. And what did you talk about?
A. He walked up to me and he started talking to me.
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Q. Okay. What did he say?
A. He asked me, he asked me when my dad would be back.
Q. Okay, where was your dad?
A. He was out of town someplace.
Q. Working?
A. Yes. I think it was North Carolina, I’m not positive.
Q. Okay. And so what did you tell Mark Geralds when he asked you
when your daddy would be back?
A. I said I don’t know.
Q. Okay. And did he ask you anything else or did he talk about anything
else?
A. Yes
Q. What did he say?
A. He asked me what time I went to school.
Q. What time did you tell him, Mark Geralds, that you went to school?
A. I told him I left at 8:00 and I told him my sister left at 6:00-7:00.
Q. Okay. You left at 8:00 and Blythe left at 7:00?
A. Um hum.
Q. Okay. Did you talk to him about anything else?
A. And that=s all, besides he asked me what time I got home.
Q. What time did you tell Mark Geralds you got home?
A. 3:00 and Blythe got home about 2:45.
(Id. at 1468-69). Bart then described coming home from school on the day of the
murder, finding his mother in the kitchen and calling for help. Defense counsel did
not cross-examine Bart. Given Bart=s young age and the fact that he found his mother=s
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body, defense counsel may have felt that subjecting this witness to cross-examination
may have been more detrimental to the defense than beneficial. In addition, Blythe
corroborated Bart=s testimony about their mother speaking with Geralds shortly before
her murder. She testified that exactly one week prior to the murder she heard a
conversation between Geralds and her mother, in the following exchange:
Q. [Appleman]: And did you hear any conversation that went on between
your mother or your brother and the defendant?
A. [Blythe]: Yes, sir, my mother and him. I heard them talking.
Q. And was there any questions asked about your father and his work?
A. Yes, sir, he asked how his work was doing, my mother told him fine.
And that he was doing a job out of town right at that point.
(Id. at 1486).
Geralds also argues that his counsel failed to adequately challenge Blythe=s
identification of missing jewelry and sunglasses from the crime scene. As to Blythe=s
identification of these items, the record demonstrates that defense counsel crossexamined her as follows:
Q. [Adams]: And you’ve identified them as best you can.
A. [Blythe]: Yes, sir.
Q. But, Young Lady, you’re not telling these folks positively or
unequivocally that those items are your mother=s, are you.
A. No, sir, some of them I am positive about.
Q. Which one is that?
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A. I am positive about the gold earrings, I’m positive about the
sunglasses, I’m as close to positive as I can be about the herringbone
necklace.
Q. Do you recall talking to me before and I’ll ask you substantially the
same questions. Was there anything about your mother=s herringbone
necklace that enabled you to identify it such as a particular make or carat
of gold or a bend or a kink in it or anything in particular you can say that
was Mom=s herringbone necklace?
A. Not really, it’s a very popular necklace. Lot of people have them.
Q. I understand. But certainly it looks exactly like the one your mother
had.
A. Yes, sir.
(TR Vol. XI at 1514-15). With regard to the Bucci sunglasses, Adams cross-examined
Blythe who indicated that she had seen Bucci sunglasses which were similar to her
mother=s worn by other people, although Anot very many people have them because
they’re expensive. Lot of people won’t pay that much for them.@ (Id. at 1516).
Additionally, the record indicates that during Blythe=s direct testimony when she was
identifying items of jewelry that belonged to her mother, she began weeping, and the
court took a recess. (Id. at 1499). Given that Blythe was fifteen years old and the
record reflects that she was emotional in her direct testimony, the fact that defense
counsel did not vigorously cross-examine her is not an unreasonable tactic. Most
importantly, however, counsel was able to make the point to the jury that while Blythe
believed that these recovered items were probably her mother=s, she could not provide
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any definitive proof that they were. Therefore, Geralds has failed to demonstrate that
the state court’s denial of this claim is not entitled to deference.
Accordingly, Geralds is not entitled to habeas relief on this ground.
C. Failure to Investigate and Present Witnesses
Geralds argues that the herringbone necklace he pawned on the day of the
murder was not the victim=s but was one he had purchased previously from his friend
Tony Swoboda, and he argues that the evidence that he pawned the necklace Ais
suspect at best@ because of discrepancies in when the pawn ticket was discovered.
Additionally, Geralds argues that because he had no driver=s license when the necklace
was pawned, he could not have shown it to the pawnshop owner. 18 ECF No. 1, pp.
108-09.
The Florida Supreme Court denied this claim, holding as follows:
With respect to Swoboda, Geralds has not shown that counsel acted
deficiently in failing to present his testimony. At the evidentiary hearing,
Swoboda testified that he sold Geralds a herringbone necklace. Geralds
argues that this evidence would establish that the necklace he pawned is
not the one that belonged to the victim. However, even if Swoboda had
testified at trial that he sold Geralds a herringbone necklace, Geralds fails
to explain how the victim=s blood type appeared on the necklace that he
pawned. Thus, Swoboda=s testimony would not have helped Geralds.
The pawnbroker Billy Danford testified that Geralds presented his driver=s license when he
pawned the necklace. (See TR Vol. XIII at 1753-54).
18
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Nevertheless, even if trial counsel was deficient for not presenting
Swoboda=s testimony, Geralds fails to establish prejudice. Swoboda=s
testimony does nothing to discredit the fact that Geralds pawned a
necklace that was identified as belonging to the victim and had a blood
stain matching the victim=s blood type. At best, Swoboda=s testimony
only establishes that Geralds purchased an unrelated herringbone
necklace at a time unrelated to the murder. Accordingly, Geralds fails to
establish that this evidence would undermine confidence in the outcome
of the trial.
Geralds III, 111 So. 3d at 797.
While Geralds contends that his counsel failed to properly investigate the case,
the record reflects that on January 15, 1990, counsel filed a list of witnesses who might
be called on behalf of the defense. Tony Swoboda was listed as a potential witness;
thus, counsel was aware that Swoboda had information which was potentially relevant
to the defense. (See PCR Vol. XX at 2322). Swoboda=s evidentiary hearing testimony
also confirmed that he met with defense counsel about the necklace he sold Geralds
and that counsel told him that what he had to say was important and that he would
probably be subpoenaed. (See EH at 2544-49). While the reason counsel ultimately
failed to call Swoboda is not known, this Court will not second guess counsel=s
strategic reason for not calling any witnesses in the face of a silent record under the
circumstances of this case. See Putman v. Head, 268 F.3d at 1243 (AIf the record is
incomplete or unclear about counsel=s actions, then it is presumed that counsel
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exercised reasonable professional judgment.@). Further, as to Strickland prejudice,
there is no evidence that Swoboda would or could have testified that the pawned
necklace was the same one he sold Geralds. Finally, Geralds has failed to make a
credible argument that he is not the one who pawned the necklace or explained the
presence of the blood on the necklace which was consistent with the victim=s blood
type. Therefore, Geralds has failed to demonstrate that the state court’s denial of this
claim is not entitled to deference.
Accordingly, Geralds is not entitled to habeas relief on this ground.
D. Failure to Make Objections and Proper Motions
Geralds argues that his counsel failed to object to statements made by the
prosecutor which allegedly misrepresented the evidence and attempted to inflame the
jury. 19 ECF No. 1, pp. 109-10.
These statements include telling the jury in his opening statement that the victim was found with
a towel gagging her mouth and that Geralds wore gloves in order to conceal his fingerprints during the
crime when in fact his grandfather, Douglas Freeman, testified that the gloves he saw Geralds wearing the
day of the crime did not have any material over the upper portion of his fingertips. Geralds also points to
the following argument made by the prosecutor in his guilt phase closing:
19
You know who the dummy is in this group? Right there. Right there is the dummy. Because
he took that necklace thinking that he could go far across Hathaway Bridge and not get
caught pawning it because he needed thirty bucks. He needed some money. And that’s why
he went into that house. And that’s why he tied her up. And that’s why he beat her. He beat
her to get her to tell him where’s the seven thousand dollars. And she would scream every
time he left that gag off her mouth. And he hit her again. Ten times. And the only way
he could stop her from screaming was to stick that knife in her neck to the hilt, to the
point where it cut off her windpipe and she couldn’t scream no more.
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The postconviction court summarily denied the claim that defense counsel was
deficient in failing to object to improper prosecutorial comments. The Florida
Supreme Court affirmed, holding, A[a] review of Geralds= allegations reveals that
Geralds has not met his burden of alleging a legally sufficient claim. See Freeman [v.
State], 761 So. 2d [1055] at 1061 [Fla. 2000]. Specifically, Geralds fails to establish
how any of these alleged instances of ineffective assistance of counsel prejudiced
him.@ Geralds III, 111 So. 3d at 800.
In order to demonstrate deficient performance, Geralds must show that the
prosecutor=s remarks were prejudicial. In Darden v. Wainwright, 477 U.S. 168, 181
(1986), the Court explained that the relevant question is Awhether the prosecutors=
comments so infected the trial with unfairness as to make the resulting conviction a
denial of due process.@ (citations and internal quotation marks omitted). It Ais not
enough that the prosecutors= remarks were undesirable or even universally
condemned.@ Id. at 181 (citation omitted). See Donnelly v. DeChristoforo, 416 U.S.
637, 647 (1974) (A[A] court should not lightly infer that a prosecutor intends an
ambiguous remark to have its most damaging meaning or that a jury, sitting through
lengthy exhortation, will draw that meaning from the plethora of less damaging
(TR Vol. IV at 2055) (emphasis added in petition).
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interpretations.@); United States v. Young, 470 U.S. 1 (1985) (holding that
inappropriate prosecutorial comments, standing alone, would not justify a reviewing
court in reversing a criminal conviction obtained in an otherwise fair proceeding;
instead, remarks must be examined within the context of trial to determine whether
the prosecutor=s behavior amounted to prejudicial error). In determining whether
arguments are sufficiently egregious to result in the denial of due process, the Eleventh
Circuit has considered the statements in the context of the entire proceeding, including
factors such as: (1) whether the remarks were isolated, ambiguous, or unintentional;
(2) whether there was a contemporaneous objection by defense counsel; (3) the trial
court’s instructions; and (4) the weight of aggravating and mitigating factors. Land v.
Allen, 573 F.3d 1211, 1219-20 (11th Cir. 2009) (citing Romine v. Head, 253 F.3d
1349, 1369B70 (11th Cir. 2001)). AOf primary importance is the need to examine the
entire context of the judicial proceeding. Thus, it is not our duty to ask whether a
particular remark was unfair; we are concerned with whether it rendered the entire
trial unfair. In this regard, isolated or ambiguous or unintentional remarks must be
viewed with lenity.@ Brooks v. Kemp, 762 F.2d 1383, 1403 (11th Cir. 1985) (en banc),
vacated on other grounds by 478 U.S. 1016 (1986), reinstated by 809 F.2d 700 (11th
Cir. 1987) (en banc). A[P]rosecutorial arguments will not warrant habeas corpus relief
Case No.: 5:13cv167/MW
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unless they . . . have encouraged the jury to take into account matters that are not
legitimate sentencing considerations.@ Johnson v. Wainwright, 778 F.2d 623, 630
(11th Cir. 1985). Finally, to date the Supreme Court has not granted habeas relief
based on a prosecutor=s closing argument being so unfair as to violate due process. See
Reese v. Sec=y, Fla. Dep=t of Corr., 675 F.3d 1277, 1287 (11th Cir. 2012).
In this case, the prosecutor=s remarks highlighted by Geralds fall far short of a
deprivation of due process. Compare Darden, 477 U.S. 168 (prosecutor=s closing
argument stating that death sentence would be the only way to prevent a future similar
act and referring to defendant as an Aanimal@ did not improperly mislead the jurors
into thinking that they had a reduced role in the sentencing process); Cargill v. Turpin,
120 F.3d 1366, 1381 (11th Cir. 1997) (holding that a prosecutor=s argument at
sentencing about Aa bunch of little boys@ at Christmas thinking about their dead parents
was permissible because Athe prosecutor was attempting to convey the gravity of the
crime and its consequencesCthe murder of the [boys’ parents] left four young boys
without parentsCto convince the jury that life imprisonment, i.e., allowing [the
defendant] to continue to live, would be too lenient a sentence.@); Brooks, 762 F.2d at
1396, 1416 (denying habeas relief where the prosecutor asked the jurors, AWhose
daughter will it be next time?@). Additionally, when viewed in the context of the entire
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closing argument and trial, these isolated remarks do not undermine confidence in the
outcome nor did they mislead the jury in its sentencing role.
Because Geralds has not demonstrated that the prosecutor=s comments were
improper, he cannot satisfy Strickland regarding his counsel=s failure to object to the
comments. See Chandler v. Moore, 240 F.3d 907, 914 (11th Cir. 2001) (holding that
because the prosecutor=s comments did not rise to fundamental error, counsel could
not be deemed ineffective for failing to object). The record does not support Geralds=
argument that his trial counsel=s failure to object to these comments constitutes an
error no competent counsel would have made or that there is a reasonable probability
that Abut for@ counsel=s failure to object, the result of the trial would have been
different. See also Zakrzewski v. McDonough, 455 F.3d 1254, 1259B60 (11th Cir.
2006) (per curiam) (denying an ineffective assistance claim stating A[a]n objectively
reasonable trial lawyer could@ believe that Acases must be won at trial, not on appeal,
and prefer [ ] not to make objections during closing argument unless the objection is
a strong one.@).
Geralds also argues that the prosecutor misstated the evidence regarding the
gloves he wore on the day of the crime. The Florida Supreme Court denied this claim,
holding as follows:
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Geralds argues that trial counsel failed to object to the State’s closing
argument that Geralds wore gloves to conceal his fingerprints.FN18
Geralds further argues that the gloves he wore did not have any material
over the upper portion of his fingertips, which would prevent him from
leaving prints.
FN18. At trial, Douglas Freeman, Geralds= grandfather,
testified that Geralds was wearing gloves that had the backs
and tops of the fingers cut out. At closing argument, the
State argued that Geralds wore gloves, A[t]he kind that don=t
leave fingerprints in houses.@
We deny relief because Geralds does not establish how the prosecutor=s
comment undermines confidence in the outcome of the trial. Indeed,
Geralds does not make any arguments on how this comment undermines
the evidence linking him to the crime. Accordingly, Geralds fails to
establish that this evidence undermines confidence in the outcome of the
trial.
Geralds III, 111 So. 3d at 797.
Douglas Freeman testified that on the day of the murder Geralds came by his
house and wanted to take a bath because he had been working on a boat. (TR Vol. XII
at 1673). When asked whether Geralds was wearing gloves, Freeman stated, AI
couldn’t say I noticed he was wearing anything on his hands. They talked about some
gloves, but I weren’t paying too much attention to them. I don’t know whether he had
them on his hands or what.@ (Id.). Because this testimony conflicted with a pretrial
statement, the prosecutor refreshed Freeman=s memory by showing him his statement.
After which the following exchange occurred:
Q. [Appleman]: Does that assist you, sir?
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A. [Freeman]: Well, I don’t know whether he had them on or not.
Q. Did he have gloves?
A. Yes.
Q. Can you describe the gloves?
A. Well, they had the back cut out and the top of the fingers.
Q. Okay. Driving gloves?
A. Driving gloves or something. Race car gloves or something like that.
(Id. at 1675). The state court found that this testimony did not establish prejudice under
Strickland nor undermine the evidence linking Geralds to the crime. Geralds fails to
make any arguments in support of this claim in his federal petition. Therefore, Geralds
has failed to demonstrate that the state court’s denial of this claim is not entitled to
deference.
Accordingly, Geralds is not entitled to habeas relief on this ground.
E. Cumulative Consideration
Geralds argues that this Court should evaluate his Strickland claims and his
Brady claims cumulatively. ECF No. 1, pp. 110-11. There is no Supreme Court law
requiring such an analysis. See Forrest v. Fla. Dep’t of Corr., 342 F. App=x 560, 564
(11th Cir. 2009) (per curiam) (unpublished but recognized for persuasive authority)
(AThe Supreme Court has not directly addressed the applicability of the cumulative
error doctrine in the context of an ineffective assistance of counsel claim.@). Therefore,
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this Court will decline to do such an analysis, only noting that because Geralds has
failed to raise any meritorious Strickland or Brady claims, there are no errors to
consider cumulatively.
Accordingly, Geralds is not entitled to habeas relief on this ground.
F. Denial of a Full and Fair Hearing
Finally, Geralds argues that he was unable to develop certain allegations of
ineffective assistance of counsel in an evidentiary hearing in state court because the
relevant information was contained in documents that were not obtained until after his
postconviction motion was filed. ECF No. 1, pp. 111-18. These supplemental motions
were discussed in detail in Ground One, section C, supra. The Florida Supreme Court
denied the claim as follows:
With respect to the ineffective assistance of counsel aspect of this claim,
Geralds also fails to allege that trial counsel knew of, or failed to act on,
any information regarding other suspects. Accordingly, the circuit court
did not err in summarily denying these claims because Geralds=
conclusory allegations failed to establish a legally sufficient Brady or
ineffective assistance of counsel claim.
Geralds III, 111 So. 3d at 800.
Geralds has not demonstrated that the information regarding other suspects and
the police investigation was available to counsel. Therefore, Geralds has failed to
demonstrate that the state court’s denial of this claim is not entitled to deference.
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Accordingly, Geralds is not entitled to habeas relief on this ground.
Ground III: Ineffective Assistance of Counsel/Resentencing Trial
A. Failure to Know the Law
Geralds argues that his counsel was ineffective when he argued lingering doubt
as a mitigating circumstance during his resentencing trial because it is not recognized
as a valid mitigating circumstance in Florida. 20 ECF No. 1, pp. 121-23. Geralds
contends that his counsel failed to know the law; thus, any strategic reason he had for
arguing lingering doubt was unreasonable.
1.
State Court Determination
Geralds raised this claim in his postconviction proceedings, and the
postconviction court denied the claim, holding as follows:
In his closing argument in the second penalty phase trial, defendant=s
counsel presented three alternatives for the jurors to consider: first, Mr.
Geralds killed the lady; second, Mr. Geralds participated in the burglary
and what could have happened that resulted in the death of the lady; and
third, Mr. Geralds wasn’t there. Defense counsel commented on there
being circumstantial evidence including the shoes having only a similar
tread design. Defense counsel also pointed out the fact that Dr. Sybers
did not testify and that this deprived the jurors of the opportunity to
observe him and judge his credibility. He continued to question if
someone else killed the lady and why no further investigation was done.
He also questioned whose blood it really was that was on certain objects.
See Darling v. State, 808 So. 2d 145, 162 (Fla. 2002) (AWe have repeatedly observed that residual
doubt is not an appropriate mitigating circumstance.@).
20
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All of this goes to establish defense counsel was following a trial strategy
both in the guilt phase and the re-sentencing phase that focused on the
circumstantial nature of the evidence in this case and the lack of definite
evidence to link the defendant to the crime. Defense counsel did take the
opportunity to argue there was an unknown assailant who was
responsible for this crime as evidenced by his comments on the blood
and the testimony of Archinque McGowen and William Pelton. The
record reflects there was no witness who testified the red Bucci glasses
were Apositively@ those of the victim. At a hearing held on January 12,
1990, trial counsel acknowledged the testimony of relatives about the
herringbone necklace as being the victim=s because it looked like hers.
The defendant has therefore failed to establish trial counsel=s
performance was deficient . . . .
(Final Order Denying Postconviction Relief, PCR Vol. X at 1743-44) (citations to the
record omitted). While the Florida Supreme Court did not address this claim
specifically, it noted the following in denying relief as to Geralds= guilt phase
ineffective assistance of counsel claims:
AThe purpose of closing argument is to help the jury understand the issues
in a case by >applying the evidence to the law applicable to the case.=@
Murphy v. Int’l Robotic Sys., Inc., 766 So. 2d 1010, 1028 (Fla. 2000)
(quoting Hill v. State, 515 So. 2d 176, 178 (Fla. 1987)). As the Second
District Court of Appeal noted:
Although it is axiomatic that the arguments of counsel are
not evidence, it would be naive to suppose that they do not
have a profound effect upon the jury. These summarizing
remarks often tie together for the jurors previously
unconnected or seemingly irrelevant testimony, and
highlight those phases of the evidence considered most
favorable by each of the opposing parties. In short, the
closing argument is a crucial phase of a lawsuit. . . .
Collins Fruit Co. v. Giglio, 184 So. 2d 447, 449 (Fla. 2d DCA 1966).
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Geralds III, 111 So. 3d at 795 n.3.
2.
Clearly Established Supreme Court Law
The law governing claims of ineffective assistance of counsel is set forth supra.
3.
Federal Review of Claim
While he argues that his counsel should not have argued lingering doubt,
Geralds testified in the resentencing that he did not kill Mrs. Pettibone and that he
never pawned a gold necklace. (Resentencing, Vol. V at 717, 726). 21 He also testified
that William Pelton and Archie McGowen made threats to his ex-wife allegedly telling
her that she and their child would be put in danger if Geralds Asaid anything@ to the
police, thereby implying that they or someone else was involved in the crime. These
threats were allegedly made just prior to the resentencing trial in September 1992.
(See id. at 719-20). While lingering doubt may not be a valid mitigating circumstance
21
follows:
In sentencing Geralds to death, the trial court addressed this portion of Geralds= testimony as
The defendant claims that he did not kill the victim. In light of the evidence in the case
including the fact that the shoe prints of only one adult was found in the victim=s home and
these matched those found in the defendant=s hotel room, the Court finds this circumstance
not to exist. The defendant has not offered any testimony or evidence to establish he was
only an accomplice and his participation was minor. The only evidence offered is his
testimony that he didn’t do it. In view of the other evidence in this case, the Court does not
believe his testimony.
(Resentencing, Vol. VII at 915).
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in Florida, placing doubt as to Geralds= guilt and the circumstantial nature of the crime
before the resentencing jury was not an impermissible or unreasonable strategy,
particularly given the relatively weak mitigation evidence in this case. The Florida
Supreme Court, in rejecting an ineffective assistance claim for relying on residual
doubt mitigation despite Florida law refusing to recognize lingering doubt mitigation,
stated A[i]t is certainly logical that a jury of laypersons is less likely to recommend
death if they have some lingering concerns about guilt than if there is absolute
certainty on the issue of guilt.@ Hannon v. State, 941 So. 2d 1109, 1129-30 (Fla. 2006).
See Lockhart v. McCree, 476 U.S. 162, 181 (1986) (A[J]urors who decide both guilt
and penalty are likely to form residual doubts or >whimsical= doubts . . . about the
evidence so as to bend them to decide against the death penalty. Such residual doubt
has been recognized as an extremely effective argument for defendants in capital
cases.@) (quoting Grigsby v. Mabry, 758 F. 2d 226, 247B48 (8th Cir. 1985) (Gibson,
J., dissenting)); Parker v. Sec=y, Fla. Dep=t of Corr., 331 F.3d at 787B88 (ACreating
lingering or residual doubt over a defendant=s guilt is not only a reasonable strategy,
but is perhaps the most effective strategy to employ at sentencing.@) (internal quotation
marks omitted); Chandler v. United States, 218 F. 3d 1305, 1320 (11th Cir. 2000)
(AWe have said before that focusing on acquittal at trial and then on residual doubt at
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sentencing (instead of other forms of mitigation) can be reasonable. . . . Especially
when-as in this case-the evidence of guilt was not overwhelming, we expect that
petitioners can rarely (if ever) prove a lawyer to be ineffective for relying on this
seemingly reasonable strategy to defend his client.@) (citation omitted)); See Tarver v.
Hopper, 169 F.3d 710, 715-16 (11th Cir. 1999) (citing law review study concluding
that Athe best thing a capital defendant can do to improve his chances of receiving a
life sentence . . . is to raise doubt about his guilt@). Geralds has failed to demonstrate
that the state court’s denial of this claim is not entitled to deference.
Accordingly, Geralds is not entitled to habeas relief on this ground.
B. Failure to Conduct a Reasonable Investigation
Geralds alleges that because his counsel focused on lingering doubt, he
provided scant mitigation evidence to the jury. ECF No. 1, pp. 123-35. While his
counsel presented the testimony of a mental health professional, Geralds contends that
his evaluation was incomplete and inadequate. Had counsel=s investigation been
adequate, Geralds believes that he would have been able to establish a diagnosis of
bipolar disorder, as well as evidence that he suffered from attention deficit
hyperactivity disorder (ADHD) and depression as a child. 22
To the extent that Geralds makes a claim under Ake v. Oklahoma, 470 U.S. 68 (1985), that he
was entitled to, but did not receive, competent and appropriate expert psychiatric assistance, see ECF No.
22
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1.
State Court Determination
Geralds raised this claim in his postconviction proceedings and the claim was
denied. The Florida Supreme Court affirmed the denial as follows:
Geralds argues that trial counsel was ineffective for failing to investigate
and present sufficient mitigating evidence at Geralds= resentencing. At
the postconviction hearing, Geralds presented the testimony of James E.
Beller, the psychotherapist who testified on Geralds= behalf during
resentencing. Geralds argued that Beller=s testimony at the
postconviction hearing establishes that Beller=s diagnosis was not
supported by sufficient evidence and that additional investigation
revealed that Geralds suffered from attention deficit hyperactivity
disorder (ADHD) and depression as a child. Geralds further argues that
trial counsel failed to develop or present evidence regarding Geralds=
childhood difficulties and early mental health problems, his family
dysfunction, and his life of isolation. The State argues, and the circuit
court agreed, that Beller=s testimony did not change at the evidentiary
hearing. The postconviction court further noted that trial counsel
conducted an investigation and presented mitigating evidence at the
second penalty phase. We agree and hold that trial counsel=s performance
at Geralds= resentencing does not constitute ineffective assistance of
counsel.
Beller=s testimony at Geralds= resentencing was not significantly different
from the testimony he gave at the evidentiary hearing. At resentencing,
Beller testified that he diagnosed Geralds as Aan anti-social personality
disorder and bi-polar disorder manic.@ Beller testified that he came to this
conclusion after administering five different tests and conducting an
interview. He saw Geralds once for testing and once for a two-hour
therapy session. Beller further testified that Geralds was depressed due
to family issues and suffered from anxiety. As a child, Geralds became
significantly depressed and lonely. On cross-examination, Beller testified
1, p. 129, the record reflects that he did not raise an Ake claim in state court. Thus, any such claim raised
for the first time here is procedurally defaulted. See 28 U.S.C. § 2254(b) (1).
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that he did not talk to any of the investigating officers or to Geralds=
family or friends in preparing for his testimony.
At the evidentiary hearing, Beller testified that he did not change his
opinion on whether Geralds was bipolar or antisocial. Furthermore,
Beller testified that he felt that he was prepared to testify when he
testified during Geralds= resentencing. Beller also admitted that the
testing conducted for the evidentiary hearing came out identical to the
testing conducted for the resentencing.
There were two differences between Beller=s evidentiary and
resentencing testimony. First, Beller interviewed two family members
and one friend, and these contacts led Beller to believe that Geralds
would have been diagnosed as ADHD when he was a child. Second,
Beller administered the Psychopathy Check List Revised test (PCLR).
With respect to the two family members and one friend, Geralds does not
present any evidence that he told his trial counsel about these contacts or
that trial counsel should have been aware of them. In fact, these contacts
are not even identified by name in the recordCthey are only referred to
as Atwo family members and one friend.@ Accordingly, Geralds fails to
establish that trial counsel=s performance was deficient for failing to
discover these unidentified contacts. Geralds also fails to establish
prejudice on this issue. Beller admitted that Geralds told Beller about his
background information and family history for the resentencing. Indeed,
Beller admitted that the information Geralds gave was Aremarkably
similar@ to the information learned from these two family members and
one friend.
With respect to the PCLR test, Beller admitted that this test was not
available at the time of Geralds= resentencing because it had not been
developed yet. Accordingly, even assuming that psychological tests are
something that trial counsel should investigate, trial counsel cannot be
deficient for failing to investigate a test that did not exist.
Accordingly, Geralds fails to establish how trial counsel was ineffective
during the penalty phase.FN19
FN19. We also note that the resentencing trial court entered
an order to hire an investigator on October 5, 1992. On
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November 18, 1992, trial counsel filed a motion for
continuance, arguing, in part, that the investigator Ahas been
conducting background investigation@ and that additional
time was necessary to prepare for resentencing. Geralds
does not establish how or why the postconviction trial court
should have found that this investigation was inadequate.
Geralds III, 111 So. 3d at 797-99.
2.
Clearly Established Supreme Court Law
The law governing claims of ineffective assistance of counsel is set forth supra.
3.
Federal Review of Claim
Geralds argues that the state court’s rejection of this claim is objectively
unreasonable and its factual findings are rebutted by clear and convincing evidence.
James Beller, a psychotherapist, testified at Geralds= resentencing trial that he
interviewed and tested Geralds, giving him the Minnesota Multi-phasic Personality
Inventory, the Rorschach Ink Blot test, the Thematic Apperception Test, and the Rust
Test of Schizotypical Cognition. (Resentencing, Vol. VI at 736). Beller diagnosed
Geralds as a bi-polar disorder manic with an anti-personality disorder. Beller also
determined that Geralds= I.Q. was around 120, placing him in the eighty-fifth
percentile or the top fifteen percent of intelligent people, and his ability to think
abstractly was also in the superior range which ruled out the influence of brain damage
or retardation. (Id. at 739; 754). Additional testing revealed that Geralds had an
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aggressive acting out profile. Geralds reported that as a child he was significantly
depressed starting about the age of nine or ten, that he had developed emotional
problems by that age, and was lonely and had difficulty with authority figures because
he was never really close to his father. At the age of ten, Geralds also started to show
signs of emotional withdrawal and paranoid behavior in not being able to trust or to
get close to people. Beller opined that this became the basis of an over controlled
emotionality which resulted in the explosive temper which Geralds displays,
particularly in stressful situations. However, in Beller=s opinion, Geralds is not
psychotic and knows right from wrong and cannot be diagnosed as a mental case. (Id.
at 745). Beller acknowledged that he did not speak to any of Geralds= family members
or friends in making his diagnosis. (Id. at 757). Beller testified that Geralds= primary
method of acting out was anger, although he had described some sexual episodes of
acting out as well. Beller stated that Geralds was also manipulative and a loner.
Finally, Beller testified that there was no evidence of deception in Geralds= answers.
In Geralds= postconviction hearing, Beller testified that in the resentencing
proceedings he did not have any collateral evidence, such as speaking with family
members, when he diagnosed Geralds as having a bipolar disorder. (EH at 2568).
However, Beller maintains that his diagnoses of bipolar disorder, manic, and
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antisocial personality disorder are correct. In preparation for the postconviction
hearing, Beller spoke with two family members and a friend and administered a test
called the Psychopathy Check List Revised, which did not exist in 1992 when Beller
first tested Geralds, and he administered a different personality evaluation test. Beller
explained that usually persons who are diagnosed with bipolar disorder have a
childhood history of impulsivity and hyperactivity. Beller testified that these were
corroborated in Geralds= case, explaining:
All of the people I talked to that knew him described a child and
adolescent who was very, in their words, very, very rambunctious, very
impulsive, reckless. It was easy for me to determine that he probably
would have been diagnosed as an attention deficit hyperactivity disorder,
impulsive type.
(Id. at 2569). Youngsters with these disorders need a lot of structure, and Geralds’
parents’ divorce broke the family structure down.
Beller also testified that while he found in his earlier testing that Geralds was a
psychopath, when tested a second time with the benefit of having a testing instrument
that measured that and with corroborative information, he no longer believed that
Geralds is a psychopath, but scores well within the norm for the typical prison inmate.
(Id. at 2575). Beller did acknowledge that in the DSM-IV psychopathy is listed in the
definition of antisocial personality disorder. As to his previous opinion that Geralds
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has an aggressive, acting out profile, as indicated by self-destructive behaviors and/or
violence toward others, Beller believes that acting out for Geralds was demonstrated
by his leading Aa very destructive lifestyle.@ (Id. at 2579). Beller explained:
All the testing that I did and all the people I talked to describe impulsivity
that could be extreme. Mark was always in trouble. I don’t mean legal
trouble, but, I mean, there was a report of, I think, it was Mr. Hobbs=
mother didn’t like Mark to come over to the house because toys would
get broken. On one occasion they were playing, [Geralds] accidently hit
[Hobbs] with a shovel and it wasn’t serious but it was a cut there. He was
just rambunctious and destructive, just very hyper.
(Id. at 2579). When asked what the effect of this hyperactivity had in relation to
Geralds= family structure and his parents’ divorce, Beller testified, AMark was born
with a disorder, was born with a problem that would take more than parenting can fix.
The best parents in the world are going to have problems with a child like that. But
being like that there were bound to be conflicts, conflicts certainly with one parent or
with both.@ (Id. at 2580). Beller testified that there was a family history of mental
illness involving a maternal aunt, but he did not follow up on this information. (Id. at
2580). Beller also acknowledged that his observations of Geralds were affected by the
fact that Geralds had been in prison since 1987.
Beller testified that he had felt prepared to testify at Geralds= resentencing trial,
although he thought that the case seemed a little more rushed than others he had done.
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He recalled that defense counsel provided him with Avery little, if any@ materials and
provided mostly anecdotal information. However, Beller acknowledged that he has
testified in other cases in which he did not consult other people in reaching his
diagnosis. The court clarified that Beller did take a family history from Geralds
originally, and his history was Aremarkably similar@ to the ones he gathered in
postconviction. (Id. at 2597).
A review of Beller=s testimony in both the resentencing and evidentiary
hearings supports the state court’s determination that his resentencing testimony was
not significantly different from the testimony he gave at the evidentiary hearing.
Additionally, Geralds has not demonstrated how his counsel was deficient with regard
to Beller=s preparation or testimony.
Geralds also contends that if his counsel had conducted an adequate
investigation, he would have presented a compelling life history to the jury. The record
fails to support this contention however. For example, Scott Hobbs, a childhood friend
of Geralds, testified in the resentencing trial that Geralds was very supportive when
Hobbs= parents divorced when he was a teenager, and he could not recall any examples
of violence in Geralds= past. (See Resentencing, Vol. V at 623-30). There came a point,
however, when Geralds began associating with people who were boasting about doing
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some illegal things, and Hobbs began to distance himself from Geralds. At the
evidentiary hearing, Hobbs fleshed out some of his previous statements; however, his
testimony is not substantially different from what he offered at the resentencing. (See
EH at 2526-2543). For instance, Hobbs described Geralds as Akind of pushing it to the
limit@ when playing, driving cars fast and generally being a risk taker. Hobbs reiterated
that he never saw Geralds angry or violent and stated that Ahe always seemed to be
happy-go-lucky,@ although now that he has had experience with a bipolar ex-wife
Hobbs recognized some of the same characteristics in Geralds. (Id. at 2531). Hobbs
also testified that he never saw Geralds drink or do any drugs and explained that when
he met with defense counsel prior to the resentencing, counsel asked him to relate
instances describing how he and Geralds interacted in order to humanize him before
the jury.
Donald Harlan, a building contractor who employed both Geralds and his
father, also testified at the resentencing. (See Resentencing, Vol. V at 671-78). Harlan
described Geralds as an interested, good worker until after his parents’ divorce when
his work deteriorated. Harlan also testified that he was very close to Geralds= father
and because of that relationship he learned the following about the family dynamic:
Well, it was really an unusual situation. You know, where you have an
ideal like family and then all of a sudden there is a divorce and a lot of
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hard feelings. I’m sure that this happens to a great number of people that
go through a divorce and I learnedCone of the things that I learned was
that his mother resented the fact that she had conceived a child and that,
had not treated Mark very well during all of his lifetime.
(Id. at 676).
Geralds also testified at the resentencing about the difficulty of his parents’
divorce when he was a young teenager and the period which Harlan described as his
deteriorating, in the following exchange:
A. [Geralds]: That’s a kind of difficult period of my life, really, to discuss
openly but at some point, I can’t exactly pinpoint when, but I lost a lot of
values that I had. My work ethics, you know, dropped off considerably
and I got to the point where the important things weren’t really so
important any more.
Q. [Adams]: Like?
A. Well, it’s, again it’s kind of difficult to explain. I want to work, yeah,
and I knew I needed to in order to pay the rent and keep the car payment
going and stuff. But when I woke up in the morning if I was just too tired
or something and I just, I was lazy, you know, andB
Q. Well, were you out running the roads at night and stealing and stuff?
A. Yeah, and coming through that period of time I got involved with
stealing some automobiles and generally running around with a bad
crowd. And it was a lot easier for me at that time, you know, just to
instead of trying to discuss it with people, maybe trying to find some
help, just kind of keep that thing to myself, you know, and just go about
doing my own thing. It got to the point where I was out late at night. I
would come early in the morning, then I would sleep during the day and
not worry about going to work. Then I would get up in the afternoon and
get ready to go out for the night again. And it just got to be a habit, you
know, I guess is the word. And it got easier and easier.
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(Id. at 704-05). Significantly, the record also reflects that Geralds testified that he did
not want his ex-wife or other family members called to testify on his behalf. In
addressing his counsel, Geralds explained:
When I came back in September of last year and me and you first had an
opportunity to discuss what tentatively we might do here today I made it
quite clear at that time to you that I didn’t want to call any witnesses for
the defense other than myself. At that time my way of thinking was, you
know, it’s Mark Geralds who is on trial. And I don’t need my family and
my friends in here to be on trial with me. Okay. I am the accused, my
family, my friends are not. Yet if they come in and they take part and they
participate then they are, in fact, on trial with me and when they have to
return out into the community to their work place, you know, or to the
businesses that they own, nearly everybody I know, nearly everybody I
care about, they either work with people or in some kind of business, they
own a business, they own a business where they’re involved with dealing
with a lot of people in the community. All right, and when youBthese
people watch the T.V., they read the newspaper and perhaps they’re
scouting around for somebody who wants to do something for them or
they want to go here and want to do this little bit of business and they see
a person who is associated with me and my family and everything that
has gone along with it over the last three years and it turns people away
just like my wife was fired from her two jobs, you know, it puts to me,
in my mind, an unnecessary burden and unnecessary strain on my family,
you know. And that’s something that I can do without.
(Id. at 713-14) (emphasis added).
At the evidentiary hearing, postconviction counsel presented two witnesses who
did not testify at the resentencing trial: Geralds= sister, Lisa Johnson, and Vicki
McCann, formerly Ward, the friend to whom Geralds gave the red Bucci sunglasses.
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Johnson testified that Geralds was a fun, good kid who was sort of a daredevil, but
who did not do very well in school. (See EH at 2432-2440). Johnson recalled that at
one point a teacher suggested to her parents that her brother go see a psychiatrist,
testifying, AI don=t remember what the specific thing was that he had done for that but
I do remember that he was just always, you know, cutting up in school, didn’t, didn’t
do his work.@ (Id. at 2433). Their father, however, did not send Geralds to a
psychiatrist because he did not think that he needed one, but was Ajust being a boy.@
(Id.). She testified that their parents’ divorce affected Mark the most because he did
not have as much support as she and their other brother had. She believed that Geralds
had mood swings at this point. Johnson also stated that after Geralds dropped out of
high school, she became worried about him, and there was a time when he was living
in his car. As far as any interaction with defense counsel, Johnson stated that after
Geralds= arrest she met with Adams at his office, and she explained, Ahe wanted to
know all the good things about Mark, all of the, he wanted me to bring out all of the
good stuff about him and not mention anything else. And he wasn’t very friendly. He
wasn’t, I don’t know, I just didn’t like him too much.@ (Id. at 2438). At one point she
told Adams that it looked like he wanted her to lie, and Adams was offended by her
remark. Johnson was not called to testify in either the original trial or the resentencing
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trial. When asked if she would have testified at either proceeding for her brother,
Johnson replied, AI probably would have, yes.@ (Id. at 2439).
Vicki McCann testified that she and Geralds were childhood friends, and she
described him as always fun and joking. (See id., pp. 2440-2448). She testified that
after his parents’ divorce Geralds became more withdrawn, sad and depressed, and he
told her that he did not feel like he fit in anywhere. While McCann testified in the guilt
phase of the first trial, she did not testify at the resentencing because of medical
concerns due to a pregnancy, but she stated that she would have provided a statement
if asked. McCann stated that defense counsel never discussed her providing any
evidence in the penalty phase of the trial, but if she had been asked to, she Awould
have tried my very best to have testified then.@ (Id. at 2445). On cross-examination,
McCann acknowledged that she was upset and emotional when she testified in the
guilt phase of the trial.
The record supports the state court’s finding that the mitigation evidence
presented in postconviction is essentially cumulative to that which was presented at
the resentencing trial, and that Geralds has not demonstrated that his counsel was
deficient in investigating or presenting mitigating evidence. Geralds has not presented
the type of compelling evidence of mental and psychological impairments or
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childhood history that would render his counsel=s investigation into mitigation
ineffective. Compare Wiggins v. Smith, 539 U.S. 510 (2003) (mitigating evidence trial
counsel failed to discover and present was powerful, showing that petitioner had
experienced severe privation and abuse in first six years of his life while in custody of
his alcoholic, absentee mother, and had suffered physical torment, sexual molestation,
and repeated rape during his subsequent years in foster care, and had jury been
confronted with evidence, there was reasonable probability that it would have returned
with different sentence); Rompilla v. Beard, 545 U.S. 374 (2005) (trial counsel failed
to investigate a file containing information relating to potential mitigating factors,
including the records of defendant=s imprisonment on an earlier conviction, which
pictured defendant=s childhood and mental health very differently from anything
defense counsel had seen or heard, including a statement by a corrections counselor
outlining defendant=s upbringing in a slum environment, disclosing test results that the
defense=s mental health experts would have viewed as pointing to schizophrenia and
other disorders, and test scores showing a third grade level of cognition after nine
years of schooling).
Geralds has failed to demonstrate that had the evidence presented at the
evidentiary hearing been presented at the resentencing trial, it would have changed the
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outcome. See Ponticelli v. Sec=y, Fla. Dep=t of Corr., 690 F. 3d 1271, 1296 (11th Cir.
2012) (stating A[b]oth the Supreme Court and this Court have consistently held that is
reasonable for a state court to conclude that a petitioner suffers no prejudice when the
evidence is either weak or cumulative of the testimony presented at trial.@); see also
Cullen v. Pinholster, 131 S. Ct. 1388, 1410 (2011) (AGiven what little additional
mitigating evidence Pinholster presented in state habeas, we cannot say that the
California Supreme Court’s determination was unreasonable.@); Wong v. Belmontes,
558 U.S. 15 (2009). Finally, Geralds has not addressed the impact on his counsel=s
mitigation strategy of his wish that no family members, friends or his ex-wife testify
at the resentencing trial. Counsel cannot be faulted for acceding to this wish,
particularly given the fact that this testimony when given at the evidentiary hearing
was not of a significantly compelling nature. Therefore, Geralds has failed to
demonstrate that the state court’s denial of this claim is not entitled to deference.
Accordingly, Geralds is not entitled to habeas relief on this ground.
C. Failure to Object and/or Correct Inaccurate Testimony
Geralds argues that at his resentencing trial Detective Jimmerson was allowed
to testify in a summary fashion regarding the testimony and reports presented in his
original guilt phase trial and complains that Jimmerson=s testimony was not an
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accurate reflection of what the prior witnesses said.23 Geralds alleges that his counsel
was ineffective in failing to object to this testimony. See ECF No. 1, pp. 135-38.
1.
State Court Determination
Geralds raised this claim in his postconviction proceedings, and it was
summarily denied. In its order denying relief, the postconviction court also noted that
defense counsel Astrenuously@ objected to Detective Jimmerson=s testimony at the
resentencing, but was overruled by the trial court. (Final Order Denying Motion for
Postconviction Relief, PCR Vol. X at 1745). The Florida Supreme Court affirmed,
holding that Geralds failed to establish prejudice under Strickland. See Geralds III,
111 So. 3d at 800.
2.
Clearly Established Supreme Court Law
The law governing claims of ineffective assistance of counsel is set forth supra.
3.
Federal Review of Claim
Contrary to Geralds= assertions, the record reflects that during portions of
Jimmerson=s direct examination, defense counsel made hearsay objections to
statements he made which summarized testimony by other witnesses at the first trial,
In his petition, Geralds references Jimmerson=s testimony with regard to the shoe prints found at
the crime scene; the test which detected blood on Geralds= Nike shoe; the blood found on the pawned
herringbone necklace; and the testimony of Douglas Freeman about whether Geralds was wearing gloves
on the day of the crime.
23
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including the results of some of their reports. 24 At one point during Jimmerson=s
direct examination, the record reflects that the prosecutor expressed frustration
because he felt defense counsel=s objections were getting too disruptive, and the
parties agreed that the defense would essentially have a standing objection to
previously admitted items and testimony which the court had ruled were admissible.
(Resentencing, Vol. III at 373-74). The record also reflects that during crossexamination, counsel questioned Jimmerson as to his personal knowledge about some
of his testimony and objected that Jimmerson was not qualified when he was asked on
direct examination if the Nike shoes obtained from Geralds were tested with Luminol.
The trial court overruled this objection. (Id. at 415). Finally, counsel cross-examined
Jimmerson about his knowledge of DNA testing. (Id. at 431-34). Thus, the record
reflects that defense counsel objected to Jimmerson=s testimony and attempted to make
clear to the jury that much of Jimmerson=s testimony was hearsay and gathered from
other witnesses who had direct knowledge of the evidence. Defense counsel was so
effective in making this point that on redirect, the prosecution repeatedly asked
The record also reflects that, before opening statements, defense counsel objected to the
introduction of numerous exhibits from the guilt phase trial, and his objection was overruled. (Resentencing,
Vol. III at 363). The following day, counsel again objected to the admissibility Acarte blanche of all the
items which had been introduced in the trial in the case in chief in the past.@ The court overruled these
objections as well. (Id. at 350).
24
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Jimmerson whether each of these witnesses would have a reason to lie to him, and
Jimmerson consistently answered no. (See id. at 442-44). Therefore, Geralds has failed
to demonstrate that the state court’s summary denial of this claim is not entitled to
deference.
Accordingly, Geralds is not entitled to habeas relief on this ground.
D. Failure to Subject the Penalty Phase to Adversarial Testing
Geralds alleges that his counsel failed to subject the resentencing proceeding to
an adversarial testing with respect to Dr. Syber’s trial testimony that he could not
determine whether the victim was conscious prior to the fatal stab wound, which could
have rebutted the HAC aggravator, and failed to effectively cross-examine Dr.
Lauridson, who testified at the resentencing, on this and several other points. ECF No.
1, pp. 138-41.
1.
State Court Determination
Geralds exhausted this claim in his postconviction proceedings, and the
postconviction court summarily denied the claim. The summary denial was affirmed
by the Florida Supreme Court. See Geralds III, 111 So. 3d at 800. The postconviction
court also held on a related issue:
As to the issue of Dr. Sybers= testimony, the record reflects defense
counsel did, in fact, move to continue the re-sentencing trial to allow him
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to subpoena and question Dr. Sybers. This Court denied that motion.
Counsel also commented during his closing argument on the
nonappearance of Dr. Sybers and the fact that Dr. Lauridson=s opinions
were based upon actions performed by Dr. Sybers. In his closing
argument, defense counsel did raise the issue of the possibility that Dr.
Sybers had provided incorrect information and that Dr. Lauridson=s
opinions were wrong.
(Final Order Denying Motion for Postconviction Relief, PCR Vol. X at 1746). In
addition, the postconviction court held that to the extent there were any errors by
defense counsel, the cumulative effect of those errors did not rise to the level of
ineffective assistance of counsel. (Id. at 1747).
2.
Clearly Established Supreme Court Law
The law governing claims of ineffective assistance of counsel is set forth supra.
3.
Federal Review of Claim
In Geralds= original trial, Dr. William Sybers, the medical examiner at that time,
testified as to his autopsy findings. 25 At the resentencing, Dr. James Lauridson, an
Alabama medical examiner, testified for the State as to the mode and cause of the
After Geralds= first trial, information regarding the credibility of Dr. William Sybers came to
light. Dr. Sybers was the subject of a law enforcement investigation concerning the death of his wife. While
Dr. Sybers was not indicted for the murder, during this investigation a number of problems were revealed
with the manner in which Dr. Sybers operated the medial examiner=s office and conducted autopsies,
including having unauthorized persons performing autopsies, improper handling of specimens, and Dr.
Sybers= possible drug use during the time of the homicide in this case. See ECF No. 1, p. 199; Defense
Exhibit 2, Resentencing, at 317-18).
25
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victim=s death. The record reflects that defense counsel made a motion in limine to
exclude Dr. Lauridson=s testimony, but the trial court denied the motion holding that
Dr. Lauridson was testifying to his own opinion based upon his review of the autopsy
performed by Dr. Sybers. (See Resentencing, Vol. IV at 519-25). Dr. Lauridson also
confirmed that his testimony was his independent opinion after reviewing the results
of the victim=s autopsy.
Geralds identifies a few instances of defense counsel=s failure to cross-examine
Dr. Lauridson. First, Geralds argues that Dr. Sybers testified that he could not
determine whether the victim was conscious when the fatal stab wound to her neck
was made. (See TR Vol. XIII at 1871). At the resentencing, Dr. Lauridson was not
asked about whether the victim was conscious or not. Geralds contends that this
testimony could have been used to rebut the HAC aggravating factor. However, in the
face of a silent record as to defense counsel=s resentencing trial strategy, this Court
will not assume that defense counsel did not have a strategic reason for not asking Dr.
Lauridson whether the victim was conscious prior to the fatal blow.
Second, Geralds argues that Dr. Sybers testified that the victim had ten
contusions, but when asked how many contusions he found on the victim, Dr.
Lauridson testified, A[w]hat one calls individual injuries, it gets to be a matter of
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judgment but there is certainly evidence for between ten to fifteen blunt force injuries
and then the three stab wounds to the neck.@ (Resentencing, Vol. IV at 547). Thus, Dr.
Lauridson acknowledged himself that determining the number of abrasions on a
victim is a judgment call. Additionally, defense counsel may not have wished to draw
attention to the number of contusions found on the victim since in the opinion of both
doctors, Mrs. Pettibone received a minimum of ten blunt force injuries. Finally,
Geralds argues that while Dr. Sybers testified that all of the victim=s blunt force
injuries were caused by a fist, Dr. Lauridson opined that one injury may have been
caused by a stomp:
A. [Lauridson]: Now, this is a view of the chest area. There again is a
bruise with hemorrhage on the inside medial side of the left breast and a
larger bruise and hemorrhage on the inside of the right breast.
I find this an interesting configuration because although it is not possible
to say with certainty, one can begin to see a pattern to this bruising. You
can see that there appears to be possibly a curved line here and a straight
line here and almost as if there were squares here. For example, here,
here, here and here, making me at least conjecture the possibility that this
is a stomp, that this is the imprint from a shoe of some kind.
Q. [Appleman]: Possibly a tennis shoe?
A. Very possibly. . . .
(Id. at 563-64). As the testimony indicates, Dr. Lauridson did not testify that the injury
was definitely caused by a stomp, and defense counsel may reasonably have decided
not to spend too much time focusing on this conjecture. On a brief cross-examination,
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defense counsel made the point that in forming his opinion Dr. Lauridson relied on
diagrams and other materials prepared by Dr. Sybers. Given the nature of the wounds
and the autopsy pictures shown to the jury over defense counsel=s objection, he could
reasonably have felt that he did not want to keep this witness or this type of evidence
before the jury any longer than necessary. Therefore, Geralds has failed to demonstrate
that the state court’s denial of this claim is not entitled to deference.
Accordingly, Geralds is not entitled to habeas relief on this ground.
E. Failure to Object to Improper Prosecutorial Comments and Argument
Geralds argues that the prosecutor made numerous improper comments to
which defense counsel failed to object. Geralds also argues that the prosecutor=s
closing argument caused the jurors to consider improper and unconstitutional nonstatutory aggravating factors in violation of the Eighth Amendment. ECF No. 1, pp.
142-47.
1.
State Court Determination
Geralds exhausted this claim in his postconviction proceedings and the
postconviction court summarily denied the claim. The summary denial was affirmed
by the Florida Supreme Court. See Geralds III, 111 So. 3d at 800.
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2.
Clearly Established Supreme Court Law
The law governing claims of ineffective assistance of counsel is set forth supra.
3.
Federal Review of Claim
While Geralds cites numerous statements made by the prosecutor in his
resentencing closing argument which he characterizes as impermissible, none of them
rise to the level of improper comment or argument. See ECF No. 1, pp. 142-46.26 A
26
For instance, the prosecutor made the following comments in his closing argument:
You remember Kelly Stracener’s time period of the phone call, getting ready, going by the
house, for 20 minutes that doctor said those hands had to be tied together and she was alive
for that blood to swell those hands to that extent. 20 minutes.
The last 20 minutes of Tressa Pettibone=s life her home had been invaded, her hands
had been bound with a plastic strap that made them swell and hurt. She received 10
to 15 blows of blunt trauma and three stab wounds to her body.
Before she died her left eye was blackened with something like a fist. Her right eye was
blackened with something like a fist. Before she died she received not one cut, but two cuts
over the top of her left eye, blows that opened up her skin. Her jaw was slammed so hard
that the inside of her mouth bled. And the left side of her face was struck so hard by one or
two blows or a foot that her face was almost beaten beyond recognition.
She received three blows to the chest. One of them, as the doctor indicated, had these little
squiggly marks, little squares on them. Doctor, those consistent with a tennis shoe? Yes,
Mr. Appleman.
Well, what did they do? That stomp was so hard, it just didn’t bruise the skin, it left an
impression there that lasted upon her body and caused further injury to the inside, to the
diaphragm.
And then she was stabbed. Maybe not in that order. Stabbed twice. Two times in the right
neck and a stab wound that severed her windpipe and severed her artery.
She bled to death in her own home. A woman who was a caring person. That life was taken,
Mr. Beller says, by an uncaring person. And in her own home she took the last gasps of
breath that she could and sucked blood into her lungs.
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prosecutor may not Amisstat[e] the facts in his cross-examination of witnesses@ or
Aassum[e] prejudicial facts not in evidence.@ Berger v. United States, 295 U.S. 78, 84
(1935). The law governing whether prosecutorial argument is sufficiently egregious
to result in a denial of due process is addressed in Ground II, subclaim D, supra.
Geralds has not demonstrated that the prosecutor=s comments were improper or
a deprivation of due process. A review of the prosecutor=s closing argument shows
that he did not misstate the evidence or misstate the law, nor did he make an improper
AGolden Rule@ argument or ask the jury to consider an invalid aggravating factor. (See
Resentencing, Vol. VII at 857-68).27 The prosecutor specifically told the jury, Athe
The courtroom is a place for truth. For 20 minutes I’ve stood before you. For 20 minutes
Tressa Pettibone suffered an agonizing beating and torture.
(Resentencing, Vol. VII at 866-67) (emphasis added).
27
The prosecutor stated:
Let’s think about that for just a minute. A young man walked into this courtroom the
other day, Scott Hobbs. Lifelong friend of the defendant. A young man who grew up
with him. A young man who went through the situation of divorce. And what did he say
to you? He said yes, we were friends and then there was a period of time when I really
didn’t like who he was associating with and I didn’t want to be out and about with him.
And the defense brought in Archie McGowan. And Pelton. And you know who chose to
associate with those people? Not Scott Hobbs. This defendant. Because he didn’t care. He
didn’t care and those are the things that you have to look at when you look at the
words that will be used as the Court describes them to you concerning the
aggravating circumstances.
(Resentencing, Vol. II at 861-62).
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Court’s going to say to you that you can take into consideration any other aspect of
the defendant=s character or record or any other circumstance of the offense. Take
those into consideration, all of those things.@ (Id. at 861). He then argued that the fact
that Geralds has a child and came from divorced parents do not mitigate the crime.
The prosecutor also asked if Geralds had a substantial impairment which kept him
from conforming with the law and argued:
And I submit to you there was none. Let’s look at what Dr.
Beller or Mr. Beller said, about impairment. He had an IQ
of 121 or thereabouts. Superior intelligence level. A man
Mr. Beller said if he applied himself, yes, Mr. Appleman, he
could graduate from college; yes, he could get a master=s
degree; yes, he could do those things. Yes, Mr. Appleman,
he knew right from wrong. He’s not mentally ill. He has an
uncaring attitude. He just doesn’t give a damn. He=s
manipulative. He’s a loner, and yes, Mr. Appleman, on one
of my tests he was good at making up stories. No
impairment. No substantial impairment.
(Id. at 860-61). Compare Darden, 477 U.S. 168 (prosecutor=s closing argument stating
that death sentence would be the only way to prevent a future similar act and referring
to defendant as an Aanimal@ did not improperly mislead the jurors into thinking that
they had a reduced role in the sentencing process); Cargill v. Turpin, 120 F.3d 1366,
1381 (11th Cir. 1997) (holding that a prosecutor’s argument at sentencing about Aa
bunch of little boys@ at Christmas thinking about their dead parents was permissible
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because Athe prosecutor was attempting to convey the gravity of the crime and its
consequencesCthe murder of the [boys’ parents] left four young boys without
parentsCto convince the jury that life imprisonment, i.e., allowing [the defendant] to
continue to live, would be too lenient a sentence.@); Brooks, 762 F.2d at 1396, 1416
(denying habeas relief where the prosecutor asked the jurors, AWhose daughter will it
be next time?@). Additionally, when viewed in the context of the entire closing
argument and trial, these isolated remarks do not undermine confidence in the
outcome nor did they mislead the jury in its sentencing role.
Because Geralds has not demonstrated that the prosecutor=s comments were
improper, he cannot satisfy Strickland regarding his counsel=s failure to object to the
comments. The record does not support his argument that his trial counsel=s failure to
object to these comments constitutes an error no competent counsel would have made,
or that there is a reasonable probability that Abut for@ counsel=s failure to object, the
result of the trial would have been different. See also Zakrzewski v. McDonough, 455
F.3d 1254, 1259B60 (11th Cir. 2006) (per curiam) (denying an ineffective assistance
claim stating A[a]n objectively reasonable trial lawyer could@ believe that Acases must
be won at trial, not on appeal, and prefer [ ] not to make objections during closing
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argument unless the objection is a strong one@). Therefore, Geralds has failed to
demonstrate that the state court’s denial of this claim is not entitled to deference.
Accordingly, Geralds is not entitled to habeas relief on this ground.
Ground IV: Ineffective Assistance of Appellate Counsel
Geralds asserts that he was denied effective assistance of appellate counsel
when his counsel failed to raise and/or failed to adequately raise meritorious issues
which he claims would warrant reversal of his conviction.
A. Failure to Adequately Raise the Denial of Geralds= Right to Confront
Witnesses
Geralds alleges that he was denied his right to confront witnesses during his
resentencing when the court allowed the State to present the testimony of several
witnesses who testified in his original trial through Investigator Jimmerson. ECF No.
1, pp. 150-61. Geralds asserts that Jimmerson=s testimony was often inaccurate, and
he could not be cross-examined because he was relating hearsay rather than speaking
from personal knowledge. While defense counsel objected to this testimony at trial,
Geralds= appellate counsel did not raise the issue on direct appeal.
1.
State Court Proceedings
Geralds raised this claim in his state petition for a writ of habeas corpus. The
Florida Supreme Court denied relief.
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2.
Clearly Established Supreme Court Law
a.
Ineffective Assistance of Appellate Counsel
The proper standard for evaluating a claim of ineffective assistance of appellate
counsel is that enunciated in Strickland. See Smith v. Robbins, 528 U.S. 259, 285
(2000). The Supreme Court has held that counsel need not raise every nonfrivolous
claim on appeal. See Jones v. Barnes, 463 U.S. 745 (1983). The Court in Jones
emphasized the importance of winnowing out weaker arguments in favor of stronger
ones. The Court stated:
>Most cases present only one, two, or three significant questions . . . .
Usually, . . . if you cannot win on a few major points, the others are not
likely to help, and to attempt to deal with a great many in the limited
number of pages allowed for briefs will mean that none may receive
adequate attention. The effect of adding weaker arguments will be to
dilute the force of the stronger ones.= (Citing R. Stern, Appellate Practice
in the United States 266 (1981)).
Id. at 752. The Court has also stated that while it is possible to bring a Strickland claim
based on appellate counsel=s failure to raise a particular claim in a merits brief, it will
be difficult to demonstrate incompetence. See Robbins, 528 U.S. at 288. A>Generally,
only when ignored issues are clearly stronger than those presented, will the
presumption of effective assistance of counsel be overcome.=@ Id. (citation omitted).
To demonstrate prejudice, the petitioner must show a reasonable probability that, but
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for his counsel=s unreasonable failure to brief a particular issue, the petitioner would
have prevailed on appeal. See id., 528 U.S. at 285.
b.
Confrontation Clause
The Confrontation Clause of the Sixth Amendment provides that A[i]n all
criminal prosecutions, the accused shall enjoy the right ... to be confronted with the
witnesses against him.@ U.S. Const. amend. VI. In 1993, at the time of Geralds=
resentencing trial, the standard for determining whether the admission of a testimonial
hearsay statement against a criminal defendant violated the right of confrontation was
controlled by Ohio v. Roberts, 448 U.S. 56, 66 (1980), which held that a hearsay
statement could be admitted in a criminal trial without violating the right of
confrontation if it was shown that the declarant was unavailable and the out-of-court
statement bore adequate indicia of reliability. 28 The Roberts test focused on the
reliability of the statement. As explained in Roberts, a statement had adequate indicia
of reliability if it either fell within a firmly rooted hearsay exception or if it bore
Aparticularized guarantees of trustworthiness.@ (Id.).
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court rejected Roberts’ Aindicia
of reliability@ test with respect to testimonial statementsCsuch as prior testimony and custodial
interrogationsCholding that the Confrontation Clause does not permit the introduction of such statements
unless the declarant is both unavailable at trial and the defendant had a prior opportunity to cross-examine
the declarant. The holding in Crawford is not retroactively applicable to cases on collateral review. Whorton
v. Bockting, 549 U.S. 406 (2007).
28
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The Supreme Court has also held that hearsay testimony is admissible at capital
sentencing hearings. Williams v. New York, 337 U.S. 241, 252 (1949) (AWe cannot say
that the due-process clause renders a sentence void merely because a judge gets
additional out-of-court information to assist him in the exercise of this awesome
power of imposing the death sentence.@). In Muhammad v. Sec=y, Fla. Dep=t. of Corr.,
733 F.3d 1065, 1074 (11th Cir. 2013), the Eleventh Circuit addressed the interplay
between the Confrontation Clause and a capital sentencing proceeding and observed
that A[a]lthough the law of capital sentencing has changed in some respects since
Williams, >the Supreme Court of the United States has never questioned the precise
holding of Williams v. New York.=@ (quoting Szabo v. Walls, 313 F.3d 392, 398 (7th
Cir. 2003)). 29 See Jones v. GDCP Warden, 815 F.3d 689, 723-24 (11th Cir. 2016)
(ABecause a state habeas court’s interpretation of the federal Constitution is
constrained only by clearly established Supreme Court law (i.e., Williams), we cannot
find unreasonable the state court’s determination that the contents of the Stapert file
See also United States v. Fields, 483 F.3d 313, 326 (5th Cir. 2007) (concluding, after a
comprehensive review of the law, that Athe Confrontation Clause does not operate to bar the admission of
[hearsay] testimony relevant only to a capital sentencing authority=s selection decision@); Szabo v. Walls,
313 F.3d 392, 398 (7th Cir. 2003) (explaining that Athe Supreme Court has held that the Confrontation
Clause does not apply to capital sentencing,@ and that the right to confrontation Aapplies through the finding
of guilt, but not to sentencing, even when that sentence is the death penalty@); United States v. Barrett, 496
F.3d 1079, 1100 (10th Cir. 2007) (explaining that A[i]t is far from clear that the Confrontation Clause applies
to a capital sentencing proceeding@ (quoting United States v. Higgs, 353 F.3d 281, 324 (4th Cir. 2003))).
29
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was admissible hearsay.@ (footnote omitted)). See Gardner v. Florida, 430 U.S. 349
(1977) (holding that a defendant does have a right to rebut information relevant to his
character and record that is admitted against him at the sentencing hearing); Chandler
v. Moore, 240 F.3d at 918 (confirming that hearsay is admissible at capital sentencing
and that a defendant=s rights under the Confrontation Clause are not violated if the
defendant has an opportunity to rebut the hearsay). In Chandler, during a capital
sentencing hearing a police officer summarized the testimony of several witnesses
who testified during the guilt phase trial. The Eleventh Circuit noted that the hearsay
evidence was admitted under Florida Statutes § 921.141(1), and found:
At trial, Chandler=s counsel vigorously cross-examined the State’s
witnesses to whom Officer Redstone referred at the re-sentencing when
he gave his recitation of the evidence of guilt. The State did not do
anything to prevent Chandler from rebutting this hearsay evidence. The
fact that Chandler chose not to rebut any hearsay testimony does not
make the admission of such testimony erroneous. Moreover, having
reviewed both the trial and the re-sentencing transcript, we conclude that
Officer Redstone=s synopsis was consistent with the witnesses= trial
testimony. Accordingly, we see no Confrontation Clause violation.
Chandler, 240 F.3d at 918.30 In Muhammad, the Eleventh Circuit held that hearsay
testimony from a police detective at a resentencing hearing did not violate the
defendant=s Confrontation Clause rights and explained:
30
The Florida Supreme Court held as follows in Chandler v. State, 534 So. 2d 701, 703 (Fla. 1988):
We do not find that the introduction of hearsay testimony rendered subsection 921.141(1)
unconstitutional as applied in this case. As stated before, Chandler=s counsel vigorously
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Although Muhammad did not have a prior opportunity to cross-examine
the helicopter pilot [a witness who had given an affidavit and testified at
the prior trial], he had Athe opportunity to rebut any hearsay information.@
See Chandler [v. Moore] , 240 F.3d [907] at 918 [(11th Cir. 2001)]. The
Supreme Court Ahas never said that the right to >deny or explain=
sentencing information includes the confrontation rights that Williams
rejected.@ [U.S. v.] Fields, 483 F.3d [313] at 329 [(5th Cir. 2007)]
(quotation marks omitted). And we explained in Hodges that the right to
rebut hearsay at capital sentencing does not include the right to crossexamine the hearsay declarant. Hodges, 506 F.3d [1337] at 1344 [(11th
Cir. 2007)]. In that case, we held that a defendant had a Afair opportunity
to rebut any hearsay statements@ at his capital sentencing even though the
defendant did not have an opportunity to cross-examine the hearsay
declarant herself. Id. (quotation marks omitted). Muhammad does not
argue that he was denied access to the prior statements of the helicopter
pilot, that he could not cross-examine [Detective] Smith, or that he could
not call his own witnesses. Because Muhammad had an opportunity to
rebut the hearsay, his claim under the Confrontation Clause fails.
Muhammad, 733 F.3d at 1077.
3.
Federal Review of Claim
The Florida Supreme Court denied this claim, holding as follows:
Claims of ineffective assistance of appellate counsel are appropriately
presented in a petition for writ of habeas corpus. See Freeman v. State,
761 So. 2d 1055, 1069 (Fla. 2000). Consistent with the Strickland
standard, to grant habeas relief based on ineffectiveness of appellate
counsel, this Court must determine
cross-examined the state’s witnesses. That Chandler chose not to rebut any hearsay
testimony does not make the admission of such testimony erroneous. The currently
objected-to testimony came from a police detective and concerned statements made by a
police chief, another detective, and a state expert. Those individuals had testified,
consistent with what the detective stated they said, during the guilt phase. Chandler has not
demonstrated an abuse of the trial court’s discretion regarding hearsay testimony in
allowing the recitation of this testimony by the detective.
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first, whether the alleged omissions are of such magnitude
as to constitute a serious error or substantial deficiency
falling measurably outside the range of professionally
acceptable performance and, second, whether the deficiency
in performance compromised the appellate process to such
a degree as to undermine confidence in the correctness of
the result.
Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986); see also Freeman,
761 So. 2d at 1069; Thompson v. State, 759 So. 2d 650, 660 (Fla. 2000).
In raising such a claim, A[t]he defendant has the burden of alleging a
specific, serious omission or overt act upon which the claim of ineffective
assistance of counsel can be based.@ Freeman, 761 So. 2d at 1069; see
also Knight v. State, 394 So. 2d 997, 1001 (Fla. 1981). Claims of
ineffective assistance of appellate counsel may not be used to camouflage
issues that should have been presented on direct appeal or in a
postconviction motion. See Rutherford v. Moore, 774 So. 2d 637, 643
(Fla. 2000). AIf a legal issue >would in all probability have been found to
be without merit= had counsel raised the issue on direct appeal, the failure
of appellate counsel to raise the meritless issue will not render appellate
counsel=s performance ineffective.@ Id. (quoting Williamson v. Dugger,
651 So. 2d 84, 86 (Fla. 1994)). This is also generally true as to issues that
would have been found to be procedurally barred had they been raised
on direct appeal. Id.
1. Hearsay
In his first claim of ineffective assistance of appellate counsel, Geralds
argues that certain hearsay statements admitted during the resentencing
phase of his trial violated his right to confront witnesses under the Sixth
Amendment of the United States Constitution.FN22 Geralds argues that
the circuit court erred in allowing the State to read the testimony of Billy
Danford and Vicky Ward into the record, and appellate counsel was
ineffective for failing to raise this issue on appeal. Geralds also argues
that five portions of the resentencing testimony of lead investigator Bob
Jimmerson violated his right to confrontation, and appellate counsel was
ineffective for failing to challenge this testimony on appeal.
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FN22. The Confrontation Clause of the Sixth Amendment
provides that in all criminal prosecutions the accused has the
right Ato be confronted with the witnesses against him.@ U.S.
Const. amend. VI.
At the time of Geralds= direct appeal from his resentencing, the United
States Supreme Court had held that the Confrontation Clause was not
violated if the witness was unavailable and the evidence was admitted
within a firmly rooted hearsay exception or there were particular indicia
of reliability. See Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65
L. Ed.2d 597 (1980); Idaho v. Wright, 497 U.S. 805, 816, 110 S. Ct. 3139,
111 L. Ed.2d 638 (1990).FN23
FN23. The Supreme Court overruled this approach in
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158
L. Ed.2d 177 (2004), wherein it held that a testimonial
hearsay statement is inadmissible at trial unless the
declarant is shown to be unavailable and the party against
whom the statement is admitted had an opportunity for
cross-examination. Id. at 68, 124 S. Ct. 1354. This Court has
since held that Crawford does not apply retroactively.
Chandler v. Crosby, 916 So. 2d 728 (Fla. 2005). Crawford
does not apply to Geralds because his case became final
almost eight years before Crawford was decided. See
Geralds v. Florida, 519 U.S. 891, 117 S. Ct. 230, 136 L.
Ed.2d 161 (1996) (denying certiorari).
****
The second of Geralds= allegations concerns five portions of the
testimony of lead investigator Bob Jimmerson during resentencing,
wherein Jimmerson allegedly testified to matters that he learned through
hearsay. Geralds argues that his right to confrontation was violated when
(1) Jimmerson testified that the plastic ties recovered from the scene and
the ties recovered from Geralds= trunk were Thomas Industry ties; (2)
Jimmerson testified that there was one consistent shoeprint throughout
the house; (3) Jimmerson testified that luminol testing conclusively
indicated the presence of blood and that one of Geralds= shoes tested
positive for blood; (4) Jimmerson testified that the blood on the necklace
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Awas of@ the victim; and (5) Jimmerson related the testimony of Geralds=
grandfather when he testified that Geralds was wearing gloves.
Although trial counsel objected in some instances, trial counsel never
objected on the basis of hearsay or the Confrontation Clause. Thus,
Geralds must demonstrate that error, if any, was fundamental in order to
show that appellate counsel was ineffective in failing to raise these claims
on appeal. Fundamental error is error that reaches down into the validity
of the trial itself to the extent that the jury=s verdict could not have been
obtained without the assistance of the alleged error. Anderson v. State,
841 So. 2d 390, 403 (Fla. 2003). In each instance, Geralds has failed to
argue how Jimmerson=s testimony constituted fundamental error.
Accordingly, appellate counsel cannot be deemed ineffective for failing
to raise these unpreserved claims on appeal.
Geralds III, 111 So. 3d at 803-05.
The state court held that defense counsel did not object to Jimmerson=s testimony
on the basis of hearsay or the Confrontation Clause so the issue was not preserved for
appeal. 31 The record supports this finding. The court also held that Geralds failed to
demonstrate a fundamental error with regard to this unpreserved claim. The Florida
Supreme Court has defined fundamental error in this context as Aerror that >reaches
down into the validity of the trial itself to the extent that a verdict of guilty could not
have been obtained without the assistance of the alleged error.=@ Urbin v. State, 714 So.
2d 411, 418 n. 8 (Fla. 1998) (quoting Kilgore v. State, 688 So. 2d 895, 898 (Fla. 1996)).
The record reflects that defense counsel objected to portions of Jimmerson=s testimony on the
basis that he was not qualified to render the conclusions. (See e.g., Resentencing, Vol. III at 413).
31
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Under that stringent standard, Geralds has failed to demonstrate fundamental error in
light of the fact that any misstatement of evidence made by Jimmerson occurred during
a resentencing proceeding and not in the guilt phase of his trial. Moreover, Florida law
at the time of Geralds= resentencing trial specifically authorized the use of hearsay
evidence at a capital sentencing proceeding. 32 See Teffeteller v. State, 495 So. 2d 744,
745 (Fla. 1986) (AWe hold that it is within the sound discretion of the trial court during
resentencing proceedings to allow the jury to hear or see probative evidence which will
aid it in understanding the facts of the case in order that it may render an appropriate
advisory sentence. We cannot expect jurors impaneled for capital sentencing
proceedings to make wise and reasonable decisions in a vacuum.@).
In this case, defense counsel cross-examined Jimmerson and had the opportunity
to correct any misstatements as to the evidence presented in the original trial. Geralds
also had the right to confront witnesses during his original trial. Geralds has not
32
Florida Statutes § 921.141(1) (1993) provided as to the penalty phase of a capital trial:
In the proceeding, evidence may be presented as to any matter that the court deems relevant
to the nature of the crime and the character of the defendant and shall include matters
relating to any of the aggravating or mitigating circumstances enumerated in subsections
(5) and (6). Any such evidence which the court deems to have probative value may be
received, regardless of its admissibility under the exclusionary rules of evidence, provided
the defendant is accorded a fair opportunity to rebut any hearsay statements. However, this
subsection shall not be construed to authorize the introduction of any evidence secured in
violation of the Constitution of the United States or the Constitution of the State of Florida.
Case No.: 5:13cv167/MW
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demonstrated that his counsel preserved a Confrontation Clause issue. Moreover,
Geralds has not demonstrated that any misstatements made by Jimmerson in
summarizing the evidence from the original trial resulted in a jury verdict which could
not have been obtained without the assistance of the alleged error. Therefore, Geralds
has not demonstrated that his conviction would have been reversed if a Confrontation
Clause claim had been preserved and raised on appeal. If the claim would not have been
meritorious on appeal, then appellate counsel cannot be found ineffective for failing to
raise it.33 Therefore, Geralds has failed to demonstrate that the state court’s denial of
this claim is not entitled to deference.
Accordingly, Geralds is not entitled to habeas relief on this ground.
B. Prosecutorial Comments
Geralds argues that the prosecutor made improper comments throughout his
resentencing trial which tainted the jury=s deliberations, and his appellate counsel was
deficient for failing to raise the issue on appeal. ECF No. 1, pp. 161-73.
Appellate counsel raised nine claims on appeal. See Atkins v. Singletary, 965 F.2d 952, 957 (11th
Cir. 1992) (holding appellate counsel is not constitutionally deficient for foregoing an unpreserved issue on
appeal).
33
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1.
State Court Determination
Geralds raised this claim in his state habeas petition, and the Florida Supreme
Court denied the claim, holding as follows:
Geralds argues that the State made improper comments during his
resentencing, and appellate counsel was ineffective for failing to raise them
as error on appeal. Geralds groups the comments into those that trial
counsel objected to and those to which trial counsel raised no objection.
In the first category, Geralds argues that the State made inappropriate
comments during voir dire. Specifically, he argues that the State
inappropriately listed the aggravating and mitigating circumstances
applicable to Geralds= case. During voir dire, the State noted, AI anticipate
that the Court may say something along this line about what the
aggravating circumstances are.@ Without giving any specific facts, the
State then described the aggravators of flight after a robbery or burglary
and of avoiding arrest. Defense counsel objected and the trial court held a
sidebar. At sidebar, the court instructed the State that it could only
comment on the applicable aggravating and mitigating circumstances the
evidence would show. The State then commented on three other
aggravating circumstances, pecuniary or financial gain, HAC, and CCP,
noting, AI anticipate that those possibly could be some of the aggravating
circumstances that the Court would give you.@ The State followed these
comments with a discussion of mitigating circumstances, noting that these
encompassed any aspect of the defendant or his life, including his age, and
asked a juror whether he felt that he could weigh the penalties in light of
evidence of that nature. On the following day of voir dire, the State
commented on the same aggravating circumstances in response to a juror=s
question. Trial counsel objected again and moved for a discharge of the
panel for deliberate misconduct by the State.FN26 The trial court overruled
the objection and denied the motion.
FN26 At sidebar, the State argued that the trial court
permitted it to Ago over the anticipated aggravating
circumstances that I anticipated the evidence would show.
That’s what I’m doing.@ The State also argued that even
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though the Florida Supreme Court reversed the CCP
aggravator in Geralds= initial appeal, the State still intended
on presenting evidence on the CCP aggravator in an attempt
to convince the court that there was sufficient evidence to
instruct on CCP.
AThe purpose of voir dire is to >obtain a fair and impartial jury, whose
minds are free of all interest, bias, or prejudice,= not to shock potential
jurors or to obtain a preview of their opinions of the evidence.@ Hoskins v.
State, 965 So. 2d 1, 13 (Fla. 2007) (quoting Ferreiro v. State, 936 So. 2d
1140, 1142 (Fla.3d DCA 2006)), cert. denied, 552 U.S. 1152, 128 S.Ct.
1112, 169 L.Ed.2d 827 (2008). AThe scope of voir dire questioning rests in
the sound discretion of the court and will not be interfered with unless that
discretion is clearly abused.@ Id. (quoting Vining v. State, 637 So. 2d 921,
926 (Fla. 1994)). Further, Awhere a juror=s attitude about a particular legal
doctrine ... is essential to a determination of whether challenges for cause
or peremptory challenges are to be made, it is well settled that the scope of
the voir dire properly includes questions about and references to that legal
doctrine even if stated in the form of hypothetical questions.@ Walker v.
State, 724 So. 2d 1232, 1233 (Fla.4th DCA 1999) (quoting Lavado v. State,
469 So. 2d 917, 919B20 (Fla.3d DCA 1985) (Pearson, J., dissenting),
quashed, 492 So. 2d 1322 (Fla. 1986)); see also Pait v. State, 112 So. 2d
380 (Fla. 1959) (finding no error where prosecutor propounded question
to prospective jurors on voir dire concerning their attitudes toward a
finding of guilt on a homicide charge based solely on a theory of felony
murder). However, A[t]o the extent hypothetical questions involve the facts
of the case they are not allowed.@ Blevins v. State, 766 So. 2d 401, 402
(Fla. 2d DCA 2000).
In the instant case, the State’s questions were directed toward exploring
the jurors= views regarding legal doctrines and the death penalty in the
abstract. The State did not tell the jury that these were the aggravators that
applied in this case. Instead, the State commented that these aggravators
Apossibly could be some of the aggravating circumstances that the Court
would give you.@ Furthermore, the State did not ask the jurors what they
thought about these aggravators, and the State did not identify any facts in
the case. The State followed its comments with a discussion of the
mitigating circumstances and whether the juror felt that he could weigh the
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penalties in light of evidence of that nature. As an example, the State noted
that age could be a mitigating factor. Unlike the case law prohibiting
hypotheticals involving the facts of the case, the State’s comments were
not hypotheticals and did not reference any facts in the case. When read in
context, the State’s comments served only to explain the possible
aggravating factors based on what the law permits.
Geralds does not argue how the trial court abused its discretion in limiting
the aggravating factors the State was permitted to mention to those that the
State believed the evidence would support. Indeed, Geralds makes no
argument at all that the trial court abused its discretion in this ruling. On
this record, we conclude that the State did not make inappropriate
comments during voir dire, that the trial court did not abuse its discretion
in denying defense counsel=s objections to the comments, and appellate
counsel did not render ineffective assistance for failing to raise this claim
on appeal. See Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000)
(A[T]he failure of appellate counsel to raise [a] meritless issue will not
render appellate counsel=s performance ineffective.@).
In the second category of comments, Geralds raises six instances of
prosecutorial comments that were not objected to and argues that appellate
counsel was ineffective for failing to raise them on appeal. The first five
were raised as ineffective assistance of trial counsel claims in Geralds=
postconviction motion. We have already concluded that these claims were
properly denied. Accordingly, appellate counsel cannot be deemed
ineffective for failing to raise a meritless claim. Id.
Geralds III, 111 So. 3d at 805-07.
2.
Clearly Established Supreme Court Law
The law governing ineffective assistance of appellate counsel claims in set forth
supra.
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3.
Federal Review of Claim
A review of the record supports the state court’s determination with regard to this
claim. As to the first category of alleged prosecutorial misconduct claims to which
defense counsel objected, the prosecutor discussed the possible aggravating and
mitigating factors in an effort to determine whether a juror could vote to recommend
the death penalty based on instructions given by the court, and he started to list all of
the statutory aggravators to the prospective juror. Defense counsel objected and the
court ruled that only those aggravators that the State anticipated applied to the facts of
the case be discussed. (Resentencing, Vol. I at 119-24). The following day, the
following exchange occurred during voir dire:
Q. [Appleman]: . . . . You may not hear all the evidence that went into that
particular [guilt phase] proceeding. That bother either of you in any way
like it did the first young lady?
A. [Prospective Juror Greig]: It only bothers meBI mean I’m still not clear
on how much information I will be given and whether I’ll be able to ask
questions [if] there’s part of the information that needs some clarification
on it.
Q. The procedure does not provide for you asking questions of the
witnesses.
A. No. Certainly not the witness, but if we were deliberating would there
be anyB
Q. Most certainly you’re going to have the opportunity to ask questions of
each other, discuss it in detail. Maybe I’m misunderstanding.
A. Okay. What kinds of information will we be given? I know you said
we’ll be given the aggravating circumstances and the mitigating
Case No.: 5:13cv167/MW
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circumstances. JustBare they just listed out? Certainly I would think not,
but I don=t know how much detail that I’m going to be given. I guess I’m
concerned that I might not be able to make the wisest decision in my mind
that I could make if I felt there was information gaps, I would be
uncomfortable.
Q. Let me just bounce through this to a certain extent and see. If the
information that was presented to you by the State dealt with these topics.
See if you would be comfortable with this. The crime for which the
defendant is to be sentenced was committed while he was engaged in the
commission of, attempt to commit or flight after committing or attempting
to commit the crime of robbery or burglary, and/or. Crime for which the
defendant is to be sentenced was committed for the purpose of avoiding or
preventing a lawful arrest. The crime for which the defendant is to beB
(Resentencing, Vol. II at 255-56). After which defense counsel objected and moved at
sidebar for discharge of the panel for deliberate misconduct by the prosecutor for going
into matters that the court had previously disallowed. The trial court denied the motion
and reiterated that any discussion of aggravating factors should be limited to the
evidence that was going to be presented. While Geralds argues that these exchanges
resulted in the State instructing the jurors on inapplicable aggravators, the prosecutor=s
statements taken in context were meant to provide the prospective jurors with enough
information to elicit an informed response as to whether they could serve on a capital
sentencing jury. The prosecutor did not attempt to argue facts of the case and the voir
dire as a whole makes clear that the prosecutor did not engage in any alleged
Case No.: 5:13cv167/MW
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misconduct.34 Therefore, appellate counsel was not ineffective for failing to raise this
meritless claim on appeal.
Geralds also contends that the prosecutor made comments which defense counsel
failed to object to during both the original and resentencing trials. The comments he
cites in his claim are the same comments that he cited in his ineffective assistance of
trial counsel claims in Ground III, subsection E, supra. For the reasons stated therein,
Geralds has failed to demonstrate that the prosecutor=s comments were improper or that
any of the comments amounted to fundamental error. Thus, appellate counsel=s failure
to raise this unpreserved claim on appeal is not deficient performance under Strickland,
and the state court’s determination with regard to this claim is entitled to deference.
Accordingly, Geralds is not entitled to habeas relief on this ground.
C. Weighing Mitigating Evidence
Geralds argues that the trial court failed to properly consider and weigh
mitigating evidence and that his appellate counsel was ineffective for failing to raise the
issue on appeal. ECF No. 1, pp. 173-75.
The State argued that the following aggravating factors applied to the crime: (1) during the
course of a felony; (2) to avoid arrest; (3) for financial gain; (4) HAC; and (5) CCP. (Resentencing, Vol. I
at 258). The trial court found that the evidence only supported three aggravating factors, and these were
submitted to the jury: (1) HAC; (2) during the course of a felony; and (3) CCP.
34
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1.
State Court Determination
Geralds raised this claim in his state habeas petition, and the Florida Supreme
Court denied the claim, holding:
Geralds argues that appellate counsel was ineffective for failing to argue
that the trial court did not properly consider and weigh mitigating
evidence. He argues that the trial court’s analysis was flawed because it
found that certain mitigating evidence, though it existed, was Anot relevant
to this crime@ and gave it very little weight. According to Geralds, the
reference to relevancy indicates that the trial court did not properly weigh
the mitigating evidence because mitigating evidence need not be relevant
to the crime. We reject this argument.
Section 921.141(1), Florida Statutes (1993), provides that Aevidence may
be presented as to any matter that the court deems relevant to the nature of
the crime and the character of the defendant.@ (Emphasis supplied.) While
a defendant has the right to present any mitigating circumstance to a jury
or judge for consideration as a reason to spare his life, see Smith v. Texas,
543 U.S. 37, 44, 125 S. Ct. 400, 160 L. Ed.2d 303 (2004), the evidence
must still meet a threshold of relevance, 937 So. 2d 612, 619 (Fla. 2006).
AAlthough the threshold is low, the evidence must tend >logically to prove
or disprove some fact or circumstance which a fact-finder could reasonably
deem to have mitigating value.=@ Farina, 937 So. 2d at 619 (quoting Smith
v. Texas, 543 U.S. at 44, 125 S. Ct. 400).FN27 In this case, the reference
to relevancy does not invalidate the trial court’s analysis because section
921.141(1) and case law require that mitigating evidence be relevant to the
circumstances of the offense at issue, Geralds= character, or his prior
record. Accordingly, we hold that appellate counsel cannot be deemed
ineffective for failing to raise this issue on appeal.
FN27. In Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L.
Ed.2d 973 (1978), a case Geralds cites for support, the United
States Supreme Court held that the sentencer must Anot be
precluded from considering, as a mitigating factor, any aspect
of a defendant=s character or record and any of the
circumstances of the offense that the defendant proffers as a
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basis for a sentence less than death.@ Id. at 604, 98 S. Ct. 2954
(plurality opinion). This Court has held that Lockett requires
the Aadmission of evidence that establishes facts relevant to
the defendant=s character, his prior record, and the
circumstances of the offense in issue.@ Hess v. State, 794 So.
2d 1249, 1269 (Fla. 2001) (emphasis added) (quoting Herring
v. State, 446 So. 2d 1049, 1056 (Fla. 1984), receded from on
other grounds by Rogers v. State, 511 So. 2d 526, 533 (Fla.
1987)).
Geralds also argues that because of the reference to relevancy, the trial did
not properly weigh evidence that (1) he was nonviolent; (2) he was fifteen
years old at the time his parents divorced, and he became involved with a
bad crowd; (3) he was a good worker; (4) he helped a friend deal with his
parents’ divorce; (5) a mental health professional diagnosed Geralds with
bipolar and antisocial personality disorders; and (6) the mental health
professional testified that Geralds was depressed from a young age.
However, a review of the sentencing order reveals that the trial court did
expressly consider some of these circumstances. The trial court
specifically found that Geralds was a good worker and that he was
diagnosed as having bipolar and antisocial personality disorders.
Nevertheless, the trial court failed to expressly consider the other
mitigation evidence. This Court has described the need for trial courts to
enter sentencing orders Aexpressly evaluat[ing]@ the defendant=s proposed
mitigation. Campbell v. State, 571 So. 2d 415, 419 (Fla. 1990), receded
from on other grounds by Trease v. State, 768 So. 2d 1050, 1055 (Fla.
2000); see also Rogers v. State, 783 So. 2d 980, 995 (Fla. 2001).
Accordingly, appellate counsel could have raised a claim that the trial court
erred in not giving more express consideration of this mitigation pursuant
to this Court’s mandate to expressly evaluate each mitigating
circumstance.
However, even if appellate counsel had raised this claim on appeal, it
would not have merited relief because any error by the trial court in not
treating this mitigation in greater detail was harmless beyond a reasonable
doubt. See State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986). The trial
court properly found two substantial aggravating circumstances, including
murder committed during the course of a robbery and HAC, which we have
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said is one of the weightiest aggravators. Very little weight was given to
the mitigating circumstances that the order described. Even if the trial court
had expressly considered the mitigation evidence that Geralds identifies,
there is no reasonable doubt that the trial court would have imposed the
death penalty. Indeed, the trial court noted that the Aaggravating
circumstances far out weigh [sic] the mitigating factors@ Geralds presented.
Accordingly, we conclude that Geralds cannot establish that he was
prejudiced by appellate counsel=s failure to raise this mitigation claim on
direct appeal.
Geralds III, 111 So. 3d at 807-09 (footnote omitted).
2.
Clearly Established Supreme Court Law
The law governing ineffective assistance of appellate counsel claims in set forth
supra.
3.
Federal Review of Claim
A review of the trial court’s sentencing order supports the state court’s
determination of this claim. In sentencing Geralds to death, the trial court found the
statutory mitigating circumstance of the age of the defendant to exist (he was twentytwo years of age at the time of the crime); however, the court gave the circumstance
very little weight in light of the aggravating circumstances. As to non-statutory
mitigation presented by the defense, the court found as follows:
First. The defendant has a former wife and daughter whom he loves very
much and he is very concerned for. The Court finds this circumstance does
exist, but is not relevant to this crime and gives it very little weight.
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Next. The defendant came from a divorced family and unloved by his
mother. The Court finds this circumstance does exist, but is not relevant to
this crime and gives it very little weight.
Next. According to the MMPI administered by Mr. Beller, the defendant
has antisocial behavior and a bipolar manic personality. This profile,
according to Mr. Beller, is consistent with someone who is extremely
aggressive and acting out. Also, according to Mr. Beller, the defendant=s
profile suggests he has a sudden temper when under stress. His personality
profile, as shown by his MMPI test results does exist.
However, in light of the additional evidence presented in Mr. Beller=s
testimony that the defendant is not psychotic, the defendant does know the
difference between right and wrong, the defendant is of superior
intelligence with an IQ of 121 or in the upper fifteen percent of the
brightest in the population. The defendant, according to his former boss, is
a good worker and able to follow instructions, he has no brain damage, he
has the ability to think in the abstract in the superior range; the defendant=s
MMPI is frequently seen by Mr. Beller in other individuals not charged
with murder or with any other crime. The defendant can be manipulative
and the defendant is a person who has an uncaring attitude. Together with
the facts and circumstances of the crime, the Court will give it very little
weight. The Court specifically finds this mitigating circumstance of his
MMPI profile, in view of the facts and circumstances of the crime stated
by the Court in finding the existence of the third aggravating factor does
not support any claim that the murder was not a cold, calculated murder
without any pretense of an moral or legal justification. The defendant after
having bound the victim for at least 20 minutes, with his uncaring attitude,
killed the person he knew would identify him if he let her live.
Next. The defendant claims that he did not kill the victim. In light of the
evidence in the case including the fact that the shoe prints of only one adult
was found in the victim=s home and these matched those found in the
defendant=s motel room, the Court finds this circumstance not to exist. The
defendant has not offered any testimony or evidence to establish he was
only an accomplice and his participation was minor. The only evidence
offered is his testimony that he didn’t do it. In view of the other evidence
in this case, the Court does not believe his testimony.
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(Resentencing, Vol. II at 912-14). As to the HAC aggravating circumstance, the court
found as follows:
The circumstances of this killing indicate a conscienceless and pitiless
regard for the victim=s life and was unnecessarily tortuous to the victim.
The murder was accomplished while the defendant was committing a
robbery and burglary of the victim=s home.
Due to the swollen condition of her hands the evidence establishes that the
victim was bound with plastic ties around her wrists for a least twenty
minutes prior to her death. In order for these plastic ties to be placed around
her wrists there would have to have been no struggling from the victim
because of the nature of the ties themselves and the small holes in which
the ends of the ties have to be placed through in order to tighten them.
The victim was severely beaten prior to death as evidenced by the bruises
and cuts on various parts of her face and chest area. There is evidence of
ten to fifteen blunt force injuries to these areas of her body. These bruises
indicated the blows were insufficient to knock her down and/or render her
unconscious. Several blows to her face were consistent with a human fist
as well as a foot. One of the blows to her chest appeared to be the result of
a stomp by a foot with sufficient force to cause hemorrhage to the victim=s
right diaphragm.
The victim struggled with the defendant prior to her death in at least three
separate areas of the kitchen and dining, as evidence[d] by the blood
patterns found at the crime scene. However, this was not a large area of
space where this struggle took place. The first area of attack indicates the
victim was standing when struck. The second area indicated the victim is
most likely kneeling. And the third area indicates the victim laid in her
own blood for at least several minutes before being dragged to the area
where the victim=s body was found.
A towel was wrapped around her mouth and positioned and tied in such a
manner to be used to choke the victim and control her movements. The
towel was also used to drag the victim=s body to another position.
The victim was stabbed three separate times in the neck. The last stab
wound was the fatal wound and was inflicted at least twenty minutes after
Case No.: 5:13cv167/MW
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the victim was bound with the ties, with such force as to go to the hilt of
the knife, severing the victim=s windpipe and the large carotid artery. This
was not an instantaneous or painless type of death.
In addition to the severe beating and bind of the victim, the evidence
establishes that after the fatal wound was inflicted, the victim lived long
enough to take several breaths and, due to her windpipe being severed, she
could not speak or shout for mercy or assistance while she drowned on her
own blood being sucked into her lungs.
(Id. at 906-07).
Given the foregoing, the state court’s determination that, even if the trial court
had specifically addressed the mitigation that Geralds identifies, there is not a
reasonable doubt that the court would not have imposed a death sentence, is entitled to
deference. Geralds has not identified any mitigation that arguably outweighs the weight
of the aggravating circumstances in this case, in particular he has not identified any
serious mental health deficits which mitigate the crime. Because Geralds cannot
establish error even if this claim had been raised on appeal, he cannot demonstrate
ineffective assistance of appellate counsel with regard to this claim. Therefore, Geralds
has failed to demonstrate that the state court’s denial of this claim is not entitled to
deference.
Accordingly, Geralds is not entitled to habeas relief on this ground.
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Ground V: Trial Court Erred in Denying Juror Challenges for Cause
Geralds argues that the trial court erred in denying his challenges for cause of
two prospective jurors who had been exposed to pretrial publicity. ECF No. 1, pp. 17692.
1.
State Court Determination
Geralds raised this claim in the direct appeal of his convictions and sentence. The
Florida Supreme Court denied the claim, holding as follows:
Geralds first claims that the court improperly denied two defense
challenges for cause to prospective jurors and thereby forced Geralds to
trial with jurors who were unable to fairly decide his case. The State argues
that the trial judge did not abuse his discretion in refusing to strike jurors
Moss and Farrell for cause. After reviewing the colloquy between counsel
and the jurors in question, we find that the trial court did not abuse its
discretion. Although both jurors had seen the media coverage reporting the
homicide, their responses on voir dire do not fairly suggest that these jurors
were incapable of setting aside this information and rendering a verdict
based on the evidence presented at trial. See Bundy v. State, 471 So. 2d 9,
20 (Fla. 1985), cert. denied, 479 U.S. 894, 107 S. Ct. 295, 93 L. Ed.2d 269
(1986).
Geralds I, 601 So. 2d at 1159.
2.
Clearly Established Supreme Court Law
The Sixth Amendment guarantees to a defendant the right to be tried by an
impartial jury whose verdict is Abased on evidence received in open court, not from
outside sources. @ Sheppard v. Maxwell, 384 U.S. 333, 351(1966). The failure to give
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an accused a fair hearing violates standards of due process. Irvin v. Dowd, 366 U.S. 717,
722 (1961). When pretrial publicity or an inflamed community atmosphere precludes
the seating of an impartial jury, a change of venue or a continuance is required. See
Rideau v. Louisiana, 373 U.S. 723 (1963); Sheppard, 384 U.S. 333. However, due
process does not require that qualified jurors be totally ignorant of the facts and issues
involved in a case. See Murphy v. Florida, 421 U.S. 794 (1975). As stated in Irvin, 366
U.S. at 723:
To hold that the mere existence of any preconceived notion as to the guilt
or innocence of an accused, without more, is sufficient to rebut the
presumption of a prospective juror=s impartiality would be to establish an
impossible standard. It is sufficient if the juror can lay aside his impression
or opinion and render a verdict based on evidence presented in court.
When deciding the question of whether a defendant was denied a fair trial due to
an impartial jury, a court must consider any presumed and actual prejudice to the
defendant. See Coleman v. Zant, 708 F.2d 541, 544-45 (11th Cir. 1983); Meeks v.
Moore, 216 F.3d 951, 961 (11th Cir. 2000). The Eleventh Circuit Court of Appeals has
defined presumed prejudice as follows: A>where a petitioner adduces evidence of
inflammatory, prejudicial pretrial publicity that so pervades or saturates the community
as to render virtually impossible a fair trial by an impartial jury drawn from that
community, >[jury] prejudice is presumed and there is no further duty to establish bias.=@
Coleman, 708 F. 2d at 544 (citing Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir.
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1980)). The test is whether A>an unacceptable risk is presented of impermissible factors
coming into play.=@ Woods v. Dugger, 923 F.2d 1454 (11th Cir. 1991) (quoting
Holbrook v. Flynn, 475 U. S. 560, 570 (1986)). The presumptive prejudice standard is
Ararely@ applicable and is reserved for an Aextreme situation;@ thus the petitioner=s
burden is an extremely heavy one. Coleman v. Kemp, 778 F.2d 1487, 1537 (11th Cir.
1985) (citing Nebraska Press Ass=n v. Stuart, 427 U.S. 539, 554 (1976)); Woods, 923
F.2d at 1459. The issue of presumed prejudice is a mixed one of law and fact. Irvin, 366
U.S. at 723. A reviewing court must examine the Atotality of the circumstances@ in
evaluating the fairness of a petitioner=s trial in light of pretrial publicity. See Sheppard,
384 U.S. at 352. Actual prejudice exists when two prerequisites are satisfied:
First, it must be shown that one or more jurors who decided the case
entertained an opinion, before hearing the evidence adduced at trial, that
the defendant was guilty. Second, these jurors, it must be determined,
could not have laid aside these preformed opinions and Arender[ed] a
verdict based on the evidence presented in court.@
Coleman, 708 F.2d at 544 (citing and quoting Irvin, 366 U.S. at 723). The Court in Irvin
elaborated on actual prejudice as follows:
It is not required, however, that the jurors be totally ignorant of the facts
and issues involved. In these days of swift, widespread and diverse
methods of communication, an important case can be expected to arouse
the interest of the public in the vicinity, and scarcely any of those best
qualified to serve as jurors will not have formed some impression or
opinion as to the merits of the case. This is particularly true in criminal
cases.
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Id. at 722-23.
3.
Federal Review of Claim
Geralds argues that the trial court erred in denying his challenges for cause as to
two prospective jurors. A review of the record, however, supports the state court’s
denial of this claim. Geralds alleges that prospective juror Michael Moss= voir dire
testimony demonstrated that he could not be impartial. (Moss= testimony is found in TR
Vol. III at 184-199). Moss was an Air Force officer and had been working for the
preceding four months at a local television station doing the weather reports on
weekends. While he had not heard anything about the case recently, Moss recalled
reading about the crime when it happened; however, he did not remember a lot because
he was not getting the newspaper at that time. Moss testified that he believed the victim
was a school teacher and had interrupted a burglary and been stabbed. After stating that
he could not totally set aside everything he had heard about the case, he explained:
Well, I can’t set aside the fact that I’ve heard the opinions of reporters and
things that I read in the newspaper, although I can put thatBwhat I mean by
not setting it aside is the fact that I can’t make myself not have read or
heard those things, but I can set them aside and take the evidence presented
in court as the only thing on which to base my judgment in this case.
(Id. at 188). Moss did not recall reading anything about Geralds specifically with regard
to the murder; however, he had seen some coverage of his recent jail escape on
television. Moss testified that he did not believe that the escape had any bearing on
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Geralds= guilt or innocence of the murder. When asked whether he would Agrasp back
to the opinions of reporters or grasp back to news coverage,@ if some of the things he
needs to base his decision on are not presented in court, Moss answered, AI would
attempt not to, but it’s hard to clearly say that those things wouldn’t enter in.@ (Id. at
189). Moss later testified that he could follow the court’s instructions and set aside
anything he knew about the case previously and exclusively base his decision on what
happened in the courtroom alone. (Id. at 190). Moss also testified that he would not feel
any pressure to recommend a death sentence if he felt the State had not proved its case.
On cross-examination, the following exchange occurred:
Q. [Adams]: How if you’re sitting on the jury are you going to keep out of
your mind what you heard or read from what you hear or read in the
courtroom? How are you going to do that?
A. [Moss]: Well, you simply take what you hear in the courtroom and
weight it to an overwhelming degree to anything you’ve heard previously.
Q. You would consciously try to do that?
A. Correct.
Q. And then you would just use the words you would weight it to an
overwhelming degree. Are you saying that you feel you could completely
put things from outside the courtroom out of your mind or they might come
in to some degree?
A. Maybe they would be there to a small degree, I would grant that.
(Id. at 196-97). Defense counsel then moved to challenge Moss for cause due to his
association with the news media and his answers regarding his inability to completely
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set aside what he had heard previously. The trial court reserved ruling on the challenge,
but later denied it.
Prospective juror Stephen Farrell testified that his sister-in-law lived in the
vicinity of the Pettibone home and that her children were acquainted with the Pettibone
children. (Farrell=s testimony is found in TR Vol. V at 489-98). Farrell testified that
while she and his wife discussed the murder at the time, he Areally didn’t get too
involved with it,@ but just overheard their discussions. (Id. at 492). He elaborated about
their conversations as follows:
It was just something that [his sister-in-law] was concerned with about
something like that happening so close to her house and just the proximity
to the Cove area, that’s really all the feedback that I got from the
conversations about it, how something like that could happen so close to
home and how they really felt bad about knowing the children and
everything. That’s basically the gist of the conversation that I recall.
(Id. at 493). As to what he remembered about the case, Farrell testified:
Just, you know, about them finding the body and about later finding a
vehicle, I believe, and really I really don’t remember a whole lot about it.
I never got involved with reading the case in the newspaper or anything. I
don=t get the newspaper and I very seldom get home in time to watch the
news, so I really didn’t see a lot of media coverage on it. It’s what I heard
from my wife and her sister talking. But it was sometime ago though.
(Id. at 492). He testified that he could give Geralds the presumption of innocence in
light of the information shared by his sister-in-law and that he had not reached any
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conclusion about his guilt or participation in the case. On cross-examination, Farrell
was asked if he had ever seen the Pettibone children, and he responded:
Not to my knowledge. I’ve been over there and there’s been other
children there, I couldn’t say for sure whether or not they were them or
not. Like I say, this all occurred later. The information came later, at the
time when I had seen the kids playing over there, they could very easily
have been the Pettibone children, I really don’t know.
(Id. at 495-96). Farrell explained that if the children testified in the case he Aprobably
would not recognize them it’s been such a long time ago.@ (Id. at 496). Farrell testified
that he did not reach any conclusion as to Geralds= guilt after his arrest and that he had
not seen any publicity regarding the case over the last month or so. Defense counsel
moved to challenge Farrell for cause due to Ahis personal relationship through his wife
and her sister and their children in the Cove area and their expressed concern at the
time,@ but the trial court denied the challenge. (Id. at 498). Farrell served on the jury.
(See TR Vol IX at 1393).
While both Moss= and Farrell=s voir dire testimony indicated that they had heard
some things about the case, neither suggested that they had formed opinions actually
prejudicial to the defendant. In fact, each explicitly testified that they had not formed
an opinion as to Geralds= guilt and that they could follow the trial court’s instructions
and decide the case based on the evidence presented in court. The portions of their
testimony cited by Geralds are not sufficient to rebut the presumption of either
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prospective juror=s impartiality. Moreover, a trial court’s findings of impartiality may
be overturned only for Amanifest error.@ Patton v. Yount, 467 U.S. 1025, 1031 (1984)
(citing Irvin, 366 U.S. at 723); Wainwright v. Witt, 469 U. S. 412, 428 (1985) (holding
that the judgment as to whether a venireman is biased Ais based upon determinations of
demeanor and credibility that are peculiarly within a trial judge=s province. Such
determinations [are] entitled to deference even on direct review; >[t]he respect paid such
findings in a habeas proceeding certainly should be no less.=@ (citing Patton, 467 U. S.
at 1038)); Uttech v. Brown, 551 U. S. 1, 7 (2007) (AThe Court in Witt instructed that, in
applying this standard, reviewing courts are to accord deference to the trial court.
Deference is owed regardless of whether the trial court engages in explicit analysis
regarding substantial impairment; even the granting of a motion to excuse for cause
constitutes an implicit finding of bias.@); White v. Wheeler, 136 S. Ct. 456, 460 (2015)
(noting that Awhere . . . the federal courts review a state-court ruling under the
constraints imposed by AEDPA, the federal court must accord an additional and
>independent, high standard= of deference. . . . As a result, federal habeas review of a
WitherspoonBWitt
claimCmuch
like
federal
habeas
review
of
an
ineffective-assistance-of-counsel claimCmust be Adoubly deferential.@ (citations
omitted)). Geralds has failed to demonstrate that the state court’s denial of this claim is
not entitled to deference. While this Court understands that the law does not require
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members of a jury pool to have no knowledge of the crime or the defendant and that a
habeas claim of this type is reviewed in a doubly deferential manner, having presided
over capital cases as a state court judge, this Court finds it troubling that the trial court
did not grant the defense=s challenges for cause in the two instances highlighted in this
claim. Notwithstanding this concern, given the Supreme Court law governing this
claim, Geralds he is not entitled to habeas relief on this ground.
Ground VI: Trial Court Erred in Denying Motion for Change of Venue
Geralds argues that the trial court erred in denying his motion for a change of
venue due to pretrial publicity which he believes prejudiced the community and denied
him a fair trial under both an inherent and actual prejudice analysis. ECF No. 1, pp. 19298.
1.
State Court Determination
Geralds raised this claim in the direct appeal of his convictions and sentence. The
Florida Supreme Court denied the claim, holding as follows:
Geralds also argues that the trial court erred in denying his motion for a
change of venue and/or for a continuance because pretrial publicity
prevented empaneling a fair and impartial jury. In Davis v. State, we
reiterated that A[a]n application for change of venue is addressed to a
court’s sound discretion, and a trial court’s ruling will not be reversed
absent a palpable abuse of discretion.@ 461 So. 2d 67, 69 (Fla. 1984)
(emphasis added), cert. denied, 473 U.S. 913, 105 S. Ct. 3540, 87 L. Ed.2d
663 (1985); see, e.g., Gaskin v. State, 591 So. 2d 917, 919 (Fla. 1991);
Straight v. State, 397 So. 2d 903, 906 (Fla.), cert. denied, 454 U.S. 1022,
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102 S. Ct. 556, 70 L. Ed.2d 418 (1981); Manning v. State, 378 So. 2d 274,
276 (Fla. 1979). Geralds has not demonstrated Apalpable@ abuse in the
present case. Our review of the record reveals that all the jurors who served
stated affirmatively and unequivocally that they could put aside any prior
knowledge of the crime and decide the case solely on the evidence adduced
at trial. We therefore reject Geralds=s argument that the trial court erred in
denying the motions for change of venue and for continuance.
Geralds I, 601 So. 2d at 1159.
2.
Clearly Established Supreme Court Law
In addition to the standards regarding juror impartiality discussed in Ground V,
supra, the Supreme Court has held that when pretrial publicity or an inflamed
community atmosphere precludes the seating of an impartial jury, a change of venue or
a continuance is required because the jury=s verdict must be based on evidence received
in open court, not from outside sources. There are two standards which guide analysis
of this question, the Aactual prejudice@ standard and the Apresumed prejudice@ standard.
Prejudice is presumed from pretrial publicity when the pretrial publicity is sufficiently
prejudicial and inflammatory and the prejudicial pretrial publicity saturated the
community where the trials were held. Rideau v. Louisiana, 373 U.S. 723, 726B27
(1963). However, the presumed prejudice principle is Arare[ly]@ applicable. Nebraska
Press Ass’n v. Stuart, 427 U.S. 539, 554 (1976). See Coleman v. Kemp, 778 F.2d 1487.
To find the existence of actual prejudice, two basic prerequisites must be satisfied. First,
it must be shown that one or more jurors who decided the case entertained an opinion
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that the defendant was guilty before hearing the evidence adduced at trial. Second, it
must be shown that these jurors could not have laid aside their preformed opinions and
rendered a verdict based on the evidence presented in court. Coleman v. Zant, 708 F.2d
541, 544 (11th Cir. 1983).
3.
Federal Review of Claim
Geralds argues that the inflammatory nature of the pretrial publicity in his case
saturated the community to such an extent that both actual and presumed prejudice
were established. While Geralds refers to newspaper accounts published prior to trial,
he has failed to allege with any specificity the content of these accounts other than
stating that the media coverage of his case included Aa detailed account about the
offense and [his] escape two weeks before trial.@ ECF No. 1, p. 194. Geralds has not
included any excerpts from this coverage nor has he provided any statistics with regard
to the population of Bay County and the circulation of the relevant paper and other
news media to establish that his jury pool was tainted by an atmosphere of hostility
toward him. 35 Geralds has failed to make any showing that the media accounts in his
case contained anything other than factual information; thus, he has not made the
The record indicates that a newspaper article and a tape of a news report as well as juror
questionnaires were presented in court as part of Geralds= motion for a change of venue. Other than two
affidavits, see PCR Vol. XX at 2330, the content of these exhibits is not in the record before this Court.
35
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necessary showing to establish presumed prejudice. Compare Coleman, 778 F.2d at
1538-39. 36 See also Rideau, 373 U.S. 723, wherein the defendant=s confession to
robbing a bank, kidnapping three of the bank’s employees, and killing one of them
was videotaped and broadcast three times by a local television station which were seen
respectively by 24,000, 53,000, and 29,000 people in the community.
While Geralds argues that two of the jurors who served on his case mentioned
hearing or reading about his attempted escape from jail two weeks before his original
trial and that eleven of the jurors who tried the case had heard or read something about
the crime prior to trial, the law does not require that the jury pool have no knowledge
of the crime or the defendant. Furthermore, the record reflects that all of the jurors who
served on his case stated that they could follow the court’s instructions and did not have
a preconceived notion about Geralds= guilt. ATo hold that the mere existence of any
preconceived notion as to the guilt or innocence of an accused, without more, is
The Coleman case involved a notorious murder by three escaped convicts who killed six
members of the Alday family in a small community in Georgia. In Coleman, the Eleventh Circuit noted
Athere was publicity that was either calculated to provoke hostility or reflective of an atmosphere of
hostility; including, inter alia, the >precook= and other egregious remarks by the county=s chief law
enforcement officer, Sheriff White; the newspaper description of the defendants as smirking and other
characterizations of remorselessness and other derogatory characterizations; the remarks of the
defendants= own mother suggesting that mercy was inappropriate; the efforts and statements of numerous
attorneys to avoid appointment, both reflecting their assessment of the community atmosphere and
aggravating same; and the direct testimony of several residents and newsmen, whose job included
assessment of the community atmosphere, to the effect that the community had prejudged the case.@ 778
F.2d 1487, 1538-39.
36
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sufficient to rebut the presumption of a prospective juror=s impartiality would be to
establish an impossible standard. It is sufficient if the juror can lay aside his impression
or opinion and render a verdict based on the evidence presented in court.@ Irvin v. Dowd,
366 U.S. at 723. Geralds has failed to rebut the presumption of juror impartiality in his
case. See Murphy v. Florida, 421 U.S. 794, 800-01 (1975) (affirming denial of habeas
relief based on actual prejudice claim and stating, A[t]he voir dire in this case indicates
no such hostility to petitioner by the jurors who served in his trial as to suggest a
partiality that could not be laid aside. Some of the jurors had a vague recollection of the
robbery with which petitioner was charged and each had some knowledge of petitioner=s
past crimes, but none betrayed any belief in the relevance of petitioner=s past to the
present case. Indeed, four of the six jurors volunteered their views of its irrelevance,
and one suggested that people who have been in trouble before are too often singled out
for suspicion of each new crimeCa predisposition that could only operate in petitioner=s
favor.@ (footnotes omitted)). See also Meeks v. Moore, 216 F.3d 951, 961-62 (11th Cir.
2000) (AThe fact that all except one of the jurors in both of Meeks= cases had been
exposed to some pretrial publicity concerning the Walker and Thompson murders is
unavailing because . . . >the pretrial publicity in this case was essentially factual and was
not so pervasive or insidious as to raise the presumption that any venireperson exposed
to it was rendered incapable of giving [Meeks] a fair trial.=@ (footnote and citation
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omitted)); see also Cummings v. Dugger, 862 F.2d 1504, 1510-11 (11th Cir. 1989)
(finding no actual prejudice even though eleven of twelve jurors had been exposed to
some degree of pretrial publicity); Spivey v. Head, 207 F.3d 1263, (11th Cir. 2000) (AIn
contrast to Coleman where the trial court had to strike almost one-half of the prospective
jurors who were questioned whether they had formed an opinion because they had a
fixed opinion, here many of the prospective jurors had not heard anything about the
case and most remembered very little, if anything, about it.@). Therefore, Geralds has
failed to demonstrate that the state court’s denial of this claim is not entitled to
deference.
Accordingly, Geralds is not entitled to habeas relief on this ground.
Ground VII: Rights to Confrontation and Due Process/Resentencing Trial
Geralds argues that his rights to confrontation and due process were violated
when the court allowed a pathologist who had not performed the autopsy on Mrs.
Pettibone to render an opinion about the manner and cause of her death. ECF No. 1, pp.
198-201.
1.
State Court Determination
Geralds raised this claim in his appeal of the imposition of the death penalty after
his resentencing trial. The Florida Supreme Court denied the claim, holding as follows:
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Geralds next argues the trial court abused its discretion by allowing Dr.
James Lauridson, a pathologist who had not performed the victim=s
autopsy, to offer expert testimony as to the manner and cause of death of
the victim.FN8 The determination of a witness=s qualifications to express
an expert opinion is peculiarly within the discretion of the trial judge,
whose decision will not be reversed absent a clear showing of error.
Ramirez v. State, 542 So. 2d 352, 355 (Fla. 1989). An expert is permitted
to express an opinion on matters in which the witness has expertise when
the opinion is in response to facts disclosed to the expert at or before the
trial. ‘ 90.704, Fla. Stat. (1993); see Capehart v. State, 583 So. 2d 1009
(Fla. 1991) (holding chief medical examiner, who based her opinion on
autopsy report, toxicology report, evidence receipts, photographs of body,
and all other paperwork filed in case, could testify regarding cause of death
and condition of victim=s body, although she did not perform autopsy),
cert. denied, 502 U.S. 1065, 112 S. Ct. 955, 117 L. Ed.2d 122 (1992).
FN8 Geralds also asserts the trial court erred in three other
related respects: (1) the trial court improperly denied defense
counsel the right to rebut the autopsy procedures Dr. Sybers
used and the right to present to the jury the possible
unreliability of the materials upon which Dr. Lauridson based
his opinion; (2) the trial court’s admission of certain medical
evidence constituted improper judicial notice and (3) this
same evidence amounted to hearsay evidence without
showing that Dr. Sybers was unavailable. There is no merit to
these claims.
The trial judge=s ruling in this case does not represent a Aclear showing of
error.@ Although there may be a difference of opinion regarding the weight
to be given to Dr. Lauridson=s testimony concerning the manner and cause
of the victim=s death, its admissibility was within the properly exercised
discretion of the trial judge. See Dragon v. Grant, 429 So. 2d 1329, 1330
(Fla. 5th DCA 1983).
Moreover, there was no potential taint from Dr. Lauridson basing his
opinion on the materials Dr. Sybers prepared and compiled because Dr.
Lauridson based his independent conclusions largely on the objective
evidence. Dr. Lauridson arrived at his conclusions by reviewing: (1) two
to three hundred Kodachrome slides taken at the murder scene and during
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the autopsy; (2) written records prepared by Dr. Sybers; and (3) Dr. Sybers=
previous testimony he offered in this case. Given the wealth of objective
evidence (i.e., the slides) upon which Dr. Lauridson based his opinions,
the trial court did not abuse its discretion in permitting Dr. Lauridson to
testify.
Geralds II, 674 So. 2d at 100.
2.
Clearly Established Supreme Court Law
The law governing Confrontation Clause claims is set forth in Ground IV (A) (2)
(b), supra.
3.
Federal Review of Claim
Geralds argues in this claim that he was unable to confront or question the
autopsy procedures of Dr. Sybers during his resentencing trial because the State called
another medical examiner, Dr. Lauridson, to testify as to the manner and cause of Mrs.
Pettibone=s death. Geralds also argues that the admitted materials concerning Dr.
Sybers= autopsy which had been admitted in the original guilt phase trial was hearsay
which he was unable to confront or rebut with information concerning the reliability
of Dr. Sybers= work, and that the trial court erred in refusing to grant a continuance in
order to secure Dr. Sybers as a witness. The Florida Supreme Court denied these
claims and held that the determination of a witness=s qualifications to express an expert
opinion is peculiarly within the discretion of the trial judge, and the admissibility of
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Dr. Lauridson=s testimony was within the properly exercised discretion of the trial
judge in Geralds= case.
Geralds has not demonstrated that his right to confrontation was violated with
regard to Dr. Lauridson=s testimony because his testimony was not based on hearsay,
but on his independent evaluation of the medical evidence. Also, Dr. Lauridson was
subject to cross-examination by defense counsel. Furthermore, Dr. Sybers testified at
Geralds= original trial, and defense counsel was given the opportunity to cross-examine
him, although he declined to do so. (See TR Vol. XIII at 1830-75). 37 Dr. Lauridson was
qualified as an expert in forensic pathology in Geralds= trial. In Florida, this was
sufficient to allow his testimony with regard to the victim=s cause of death. See Capehart
37
The postconviction court found as follows in reviewing this claim:
The trial record is clear that all of the prior testimony of the witnesses from the guilt
phase that was referenced during the penalty phase had been subjected to cross
examination during the guilt phase.
First, the testimony of Dr. Lauridson was based not upon hearsay testimony of Dr. Sybers
and Crawford does not apply to Dr. Lauridson=s testimony. Dr. Lauridson testified at the
re-sentencing to his own opinions and independent conclusions based primarily on the
objective evidence as to the manner and cause of death. . . . Dr. Lauridson was subject
to cross examination as to his opinions and conclusions. If there was an issue as to Dr.
Sybers= preparing the materials the defendant has failed to plead any specific facts to
show that Dr. Sybers improperly prepared those materials, including the slides.
Furthermore, Dr. Sybers did testify at the original guilt phase of the trial and was subject
to cross examination by defendant=s trial attorney at that time as to how he prepared the
materials.
Order Denying Defendant=s Supplement to Amended Motion to Vacate (PCR Vol. IX at 1532).
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v. State, 583 So. 2d 1009, 1012B13 (Fla. 1991) (holding that proper predicate was
established for medical examiner=s expert testimony regarding cause of victim=s death
and condition of bodyCeven though examiner did not perform autopsy nor was autopsy
report admitted into evidenceCwhere examiner testified as to her qualifications as a
medical examiner and that she formed her opinion based upon autopsy report,
toxicology report, evidence receipts, photographs of body, and other paperwork filed in
the case). See Calloway v. State, 210 So. 3d 1160, 1193-95 (Fla. 2017) (holding that the
testimony of a substitute medical examiner regarding causes of death and injuries to
victims did not violate Confrontation Clause in murder prosecution; substitute examiner
was available to testify and was subject to cross-examination and explained that his
independent opinion was derived from photographs taken by investigators at the scene
and from the original examiner=s autopsy reports, and this independent opinion was
subject to cross-examination). This Court’s authority to review state evidentiary rulings
in a habeas case is limited, and such rulings are entitled to deference. See, e.g., Thomas
v. Jones, 891 F.2d 1500, 1504 (11th Cir. 1989). Finally, Geralds has not presented any
evidence that there were irregularities in the manner in which Dr. Sybers performed the
autopsy in this case which would demonstrate that any materials relied on by Dr.
Lauridson in forming his opinion were unreliable. See also Williams v. Illinois, 132 S.
Ct. 2221, 2228 (2012) (plurality opinion) (AWhen an expert testifies for the prosecution
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in a criminal case, the defendant has the opportunity to cross-examine the expert about
any statements that are offered for their truth. Out-of-court statements that are related
by the expert solely for the purpose of explaining the assumptions on which that opinion
rests are not offered for their truth and thus fall outside the scope of the Confrontation
Clause.@). Geralds has not shown that he was prevented from rebutting any evidence
regarding the medical evidence in his case. Therefore, Geralds has failed to demonstrate
that the state court’s denial of this claim is not entitled to deference.
Accordingly, Geralds is not entitled to habeas relief on this ground.
Ground VIII: Actual Innocence
In his last claim, Geralds contends that he has made a colorable claim of actual
innocence and requests an evidentiary hearing to prove that no reasonable juror would
have convicted him of the murder of Mrs. Pettibone. ECF No. 1, pp. 202-06.
1.
State Court Determination
Geralds argued that he was innocent of the murder and the death penalty in his
motion for postconviction relief, arguing that under Florida law innocence of the death
penalty can be shown by demonstrating insufficient aggravating circumstances or based
on newly discovered evidence. (See PCR Vol. VII at 1173-75). The postconviction court
summarily denied the claim, holding as follows:
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Defendant claims he is innocent of first degree murder and the death
penalty. However, the Florida Supreme Court found that there is
sufficient evidence to support his conviction for first degree murder,
Geralds, 601 So. 2d at 1159, and that his death sentence was
proportionate. Geralds, 674 So. 2d at 105. Thus, Defendant=s claim is
procedurally barred and without merit. Thus counsel was not ineffective
for failing to raise this issue.
Order Denying Relief in Part, dated February 12, 2013 (PCR Vol. III at 1384). Geralds
did not raise a freestanding claim of actual innocence in state court like the one he has
raised in the instant petition.
2.
Clearly Established Supreme Court Law
In Herrera v. Collins, 506 U.S. 390, 417 (1993), the Supreme Court assumed Afor
the sake of argument in deciding [the] case, that in a capital case a truly persuasive
demonstration of >actual innocence= made after trial would render the execution of a
defendant unconstitutional, and warrant federal habeas relief if there were no state
avenue open to process such a claim.@ Without explicitly announcing a standard by
which to judge such a claim, the majority stated that the required threshold showing of
innocence Awould necessarily be extraordinarily high,@ in light of the disruptive effect
of entertaining such a claim and the enormous burden on a state court of having to retry
a case. Id. The majority then held that Herrera=s showing of innocence fell short of such
a standard. Id. at 418B19. The Eleventh Circuit has likewise recognized the possibility
of freestanding actual innocence claims. See Felker v. Turpin, 83 F.3d 1303, 1312 (11th
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Cir. 1996), cert. granted, 517 U.S. 1182 (1996) and cert. dismissed, 518 U.S. 651 (1996)
(A[Herrera] left open the difficult question of whether federal habeas courts may
entertain convincing claims of actual innocence.@). Following Herrera, the Supreme
Court held that actual innocence, if proved, can serve as a gateway through which a
petitioner may pass to have his otherwise barred constitutional claim considered on the
merits. See Schlup v. Delo, 513 U.S. 298 (1995). The test devised in Schlup is intended
to Aensure[ ] that [the] petitioner=s case is truly extraordinary, while still providing
petitioner a meaningful avenue by which to avoid a manifest injustice.@ Id. at 327
(internal quotation marks and citation omitted). Under Schlup, to establish the requisite
probability, Athe petitioner must show that it is more likely than not that no reasonable
juror would have convicted him in the light of the new evidence.@ Id. ATo be credible@
a gateway claim requires Anew reliable evidenceCwhether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidenceCthat was not
presented at trial.@ Id. at 324. See also House v. Bell, 126 S. Ct. 2064 (2006), which
involved new DNA evidence showing that semen in the raped victim=s nightgown came
from her husband, not from the petitioner-defendant House, as well as other new
testimony and blood evidence. The Court held that House had satisfied the gateway
standard in Schlup, finding that Athe central forensic proof connecting House to the
crimeCthe blood and the semenChas been called into question, and House has put
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forward substantial evidence pointing to a different suspect.@ Id. at 554. The Court
nevertheless held that House had failed to satisfy whatever burden a hypothetical
freestanding innocence claim would require.
3.
Federal Review of Claim
Assuming without deciding that a freestanding claim of actual innocence is
cognizable on federal habeas review, Geralds has failed to meet the extraordinarily high
standard contemplated by the Court in Herrera and its other cases which have discussed
a possible freestanding actual innocence claim. Geralds has not presented any new
reliable evidence that calls into doubt his conviction nor has he made any other
persuasive demonstration of actual innocence. Consequently, Geralds has failed to
make the necessary showing which would entitle him to an evidentiary hearing on this
claim.
Accordingly, Geralds is not entitled to habeas relief on this ground.
V. CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2254 Cases in the United States
District Courts provides that A[t]he district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.@ If a certificate is
issued Athe court must state the specific issue or issues that satisfy the showing required
by 28 U.S.C. § 2253(c)(2).@ 28 U.S.C. § 2254 Rule 11(a). A timely notice of appeal
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must still be filed, even if the court issues a certificate of appealability. 28 U.S.C. §
2254 Rule 11(b).
ASection 2253(c) permits the issuance of a COA only where a petitioner has made
a >substantial showing of the denial of a constitutional right.=@ Miller-El v. Cockrell, 537
U.S. 322, 336 (2003) (quoting § 2253(c)(2)). See Slack v. McDaniel, 529 U.S. 473, 48384 (2000) (explaining how to satisfy this showing); 28 U.S.C. § 2253(c)(2). AAt the
COA stage, the only question is whether the applicant has shown that >jurists of reason
could disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement to
proceed further.=@ Buck v. Davis, 137 S. Ct. 759, 773 (2017) (citing Miller-El, 537 U.S.
at 327).
This Court concludes that the following issues raised in Ground II,
subclaims A and C, and in Ground V are debatable among jurists of reason and finds
that the issues are adequate to deserve encouragement to proceed further: (1) whether
Geralds was deprived of his right to the effective assistance of counsel during the guilt
phase of his trial when his counsel allegedly (a) failed to present evidence from the
crime scene, and (b) failed to investigate and present witnesses; and (2) whether the trial
court erred in denying defense challenges for cause to two prospective jurors who were
exposed to pretrial publicity. Therefore, Geralds should be granted leave to appeal on
these two issues.
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VI. CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus, ECF No. 1, is
DENIED. Geralds may appeal and a certificate of appealability is issued for appeal on
the following issues raised in Ground II, subclaims A and C, and in Ground V: (1)
whether Geralds was deprived of his right to the effective assistance of counsel during
the guilt phase of his trial when his counsel allegedly (a) failed to present evidence from
the crime scene, and (b) failed to investigate and present witnesses; and (2) whether the
trial court erred in denying defense challenges for cause to two prospective jurors who
were exposed to pretrial publicity. The Clerk shall close the file.
SO ORDERED on May 13, 2019.
s/Mark E. Walker
____
Chief United States District Judge
Case No.: 5:13cv167/MW
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