Smith v. Jarriel

Filing 62

ORDER adopting Report and Recommendations re 60 Report and Recommendations. Plaintiff's Objection 61 is overruled, Petitioner's 2254 federal habeas petition is dismissed, & the Court further denies a certificate of appealability. Ordered by Judge W. Louis Sands on 4/26/2012. (bcl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
WENDELL HARPER SMITH,

:
:
Petitioner,
:
:
v.
:
:
DAN JARRIEL, Warden,
:
:
Respondent.
:
____________________________________:

CASE NO.: 1:07-cv-10 (WLS)

ORDER
Before the Court is a Report and Recommendation from United States Magistrate Judge
Thomas Q. Langstaff, filed January 20, 2012. (Doc. 60). Therein, Judge Langstaff recommends
the denial of Petitioner’s federal petition for writ of habeas corpus, which argues that Petitioner’s
convictions and sentences for malice murder and for concealing the death of another1 violated his
due process rights.2 (Id. at 4). In making this recommendation, Judge Langstaff reasons that the
state trial court did not abuse its discretion in admitting certain photographs of the victim into
evidence at Petitioner’s trial. According to the Magistrate Judge, “the photographs were only a
small part of a case in which there was overwhelming evidence, including his co-defendant’s
testimony, of Petitioner’s culpability. (Id.). Judge Langstaff therefore finds that “Petitioner has
failed to show how the admission of these photographs adversely affected his trial.” (Id.). For

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In addition to these crimes for which he was convicted, Petitioner was charged with false imprisonment,
aggravated assault, and two counts of felony murder based on the following set of facts, reached by the Georgia
Supreme Court. Petitioner, along with his co-indictee, abducted the victim. Petitioner then rendered the victim
unconscious by means of a choke hold, and when the victim regained consciousness, he was again beaten and
choked into a state of unconsciousness. Upon discovering that the victim had no pulse and was not breathing,
Petitioner and his co-indictee dumped the victim’s body into a well in Ben Hill County, Georgia, and threw debris,
including bricks and cement, into the well to hide the victim’s body. (Doc. 60 at 2-3).
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This particular due process claim is before the Court for a second time, pursuant to the Eleventh Circuit’s reversal
and remand of this Court’s June 2, 2010 Order adopting the Magistrate Judge’s initial recommended denial of
Petitioner’s § 2254 Petition. (See Docs. 33, 35, 51, 60).

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this reason, he also recommends the denial of a certificate of appealability to Petitioner. (Id. at
4-5).
The Report and Recommendation provided the Parties fourteen (14) days3 from the date
of its service to file written objections to the recommendations therein. (Id. at 4-5). Petitioner
filed his Objection on February 8, 2012, two days after the February 6, 2012 deadline by which
the Parties were permitted to do so. (See Doc. 61). Despite the untimeliness of Petitioner’s
Objection, the Court still considers it in the interests of justice.
In his Objection, Petitioner argues that Judge Langstaff misconstrued the § 2254 Petition.
According to Petitioner, the introduction of the photographs, which were “erroneously admitted
into evidence at closing arguments[,] deprive[d] him of” his due process rights. (Id. at 1). More
specifically, Petitioner states that the victim’s mother’s hysteria, prompted by the prosecution’s
display of the photographs at trial, improperly affected and influenced the jury verdict. (Id. at 2).
The photographs had no relevancy to his trial and their probative value, says Petitioner, was
outweighed by their prejudicial effect.4

(Id.).

Furthermore, the Objection contends that

Petitioner’s co-defendant’s testimony as to Petitioner’s culpability was unreliable given the codefendant’s plea bargain and his own confession to the murder and to his disposal of the victim’s
body. (Doc. 61 at 3).
The Court finds that the arguments in Petitioner’s Objection are an improper attempt by
Petitioner to re-argue the allegations of his § 2254 Petition, all of which Judge Langstaff already

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The Parties were given an additional three days because service was made by mail. See Fed. R. Civ. P. 6(d)
(adding three days to specified period within which a party may act if service is made under Rule 5(b)(2)(C) by
mailing process to a party’s last known address).
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Petitioner admits that the photographs were admitted during trial and that he “is not challenging the admissibility
of the photograph used to corroborate the medical examinder’s terstimony . . . .” (Doc. 61 at 3). Rather, Petitioner’s
attack is directed towards the prosecutor’s presentation of the photgraphs during closing argument. Petitioner,
however, has failed to show how admitted photographs violate due process when they are presented to the jury by
the prosecution during closing argument. As discussed below, see infra p. 3, the photographs were relevant and
properly admitted; thus, their presentation during closing argument does not violate Petitioner’s rights.

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has reviewed and for which he has provided recommended findings. As established by the
Recommendation, the introduction of the subject photographs did not render the trial
fundamentally unfair, as they were only a small part of the evidence submitted to the jury to
establish Petitioner’s guilt.

To illustrate, the introduction of Petitioner’s co-defendant’s

testimony significantly contributed to the prosecution’s satisfaction of its burden of proof as to
Petitioner’s guilt. Thus, the photographs alone were not exceptionally significant to Petitioner’s
conviction.
And while they were not so critical or important to the outcome of the trial, the
photographs were nonetheless relevant to the crimes with which Petitioner was charged, contrary
to Petitioner’s Objection, and were not introduced solely to inflame the jury. The photographs
helped to belie Petitioner’s not-guilty plea to malice murder, felony murder (false imprisonment
and aggravated assault), and concealing the death of another, as one photograph portrayed the
victim’s body at the scene where it was disposed, and the other evidenced the victim’s bodily
injuries.
And as found by the Magistrate Judge (Doc. 60 at 2-3, 4), the photographs also helped to
corroborate the medical examiner’s testimony “that the cause of the victim’s death was the
combination of a crushed larynx and a crushed chest, and that the most likely explanation for the
trauma was the fall into the well and the impact of the debris thrown onto [the victim].” See,
e.g., Ford v. Schofield, 488 F. Supp.2d 1258, 1236 (N.D. Ga. 2007) (“The five [allegedly
gruesome] photographs, introduced mainly to corroborate the testimony of the medical
examiners, served a minor role in the state’s case . . . . ”). Thus, the alleged errors of the
admission of the photographs did not render the entire trial fundamentally unfair. See id.; see
also Jacobs v. Singletary, 952 F.2d 1282, 1296 (11th Cir. 1992) (“The introduction of graphic

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photographic evidence rarely renders a proceeding fundamentally unfair.”). Petitioner has not
otherwise demonstrated how the photographs adversely affected his trial.
For these reasons, Plaintiff’s Objection (Doc. 61) is OVERRULED, and United States
Magistrate Judge Langstaff’s January 20, 2012 Report and Recommendation (Doc. 60) is
ACCEPTED, ADOPTED and made the Order of this Court for reason of the findings made and
reasons stated therein, together with the reasons stated and conclusions reached herein.
Accordingly, Petitioner’s § 2254 federal habeas petition (Doc. 2) is DISMISSED. The Court
further DENIES Petitioner a certificate of appealability for failure to make a substantial showing
of the denial of a constitutional right, sufficient to issue a certificate of appealability. See 28
U.S.C. § 2253(c)(2).
SO ORDERED, this 26th day of April 2012.

/s/ W. Louis Sands
THE HONORABLE W. LOUIS SANDS,
UNITED STATES DISTRICT COURT

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