Chandler v. Moore , 240 F.3d 907 ( 2001 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JAN 30 2001
THOMAS K. KAHN
No. 99-4342 CLERK
D. C. Docket No. 94-14125-CIV-WDF
JIM ERIC CHANDLER,
Petitioner-Appellant,
versus
MICHAEL W. MOORE, Secretary,
Florida Department of Corrections,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Florida
(January 30, 2001)
Before BIRCH, DUBINA and COX, Circuit Judges.
DUBINA, Circuit Judge:
Petitioner, Jim Eric Chandler (“Chandler”), appeals the district court’s order
denying his petition for a writ of habeas corpus brought under 28 U.S.C. § 2254.
After reviewing the entire record in this case and having the benefit of oral
argument and the parties’ briefs, we affirm the judgment of the district court.
I. BACKGROUND
A. Facts
An Indian River County, Florida, grand jury returned an eight-count
indictment charging Chandler with two counts of first degree murder, two counts
of robbery with a deadly weapon, three counts of trafficking in stolen property, and
one count of aggravated assault. These charges arose from the robbery of an
elderly couple and their death by bludgeoning. A jury recommended a death
sentence, and the trial court followed the jury’s recommendation.
Chandler reported to the authorities that he found the bodies of Harold and
Rachel Steinberger in a wooded area behind their residence. When he reported the
crime, Chandler told the officers that Mr. Steinberger had invited Chandler into his
home and asked Chandler to mow his grass. Chandler indicated to the officers that
he was in the Steinberger’s neighborhood checking on his ex-girlfriend’s house at
the time Mr. Steinberger asked him to perform yard work. The day after he
reported the crime, Chandler called Officer Redstone and inquired whether the
2
police were going to arrest him. Officer Redstone responded negatively, but asked
Chandler to accompany him to the victims’ house and point out any missing items.
Chandler acquiesced to Officer Redstone’s request.
During the “walk-through,” officers asked Chandler why anyone would go
in the woods to be killed, and Chandler replied that they [the victims] were ordered
out of the house. Chandler mentioned that the victims had been stabbed, although
the authorities had not yet released that information. When the officers queried
whether the victims might have resisted, Chandler speculated that the victims
would not have resisted if the murderer placed a knife to the wife’s throat.
Chandler further stated that the victims were probably killed for the $150,000 they
made upon the sale of their house; however, Chandler knew that the victims had
only $10,000 in their bank account. Chandler would have known this information
from an examination of the victims’ bank account record. Finally, Chandler stated
that if he were the officers, he would arrest Chandler.
After Chandler’s arrest, he again spoke to Officer Redstone and told him a
story of two hit men who were the likely murderers. He posited that the victims
were connected to the murder of a man named Gill, and their murders were a
retaliation for their involvement with Gill’s murder. An investigation revealed,
however, that Chandler attended school with a man named Gill who committed
3
suicide. The investigation further showed that the victims had no connection with
Gill’s suicide. During the interview, Chandler also stated that he thought the
murder weapon was discarded in a body of water, and the officers would never
find it.
The evidence at trial indicated that Mr. Steinberger’s hands were tied behind
his back with a dog leash. An autopsy revealed that the victims had been killed by
blows to the head administered by a blunt object, possibly a baseball bat. The
autopsy also indicated that both victims had been stabbed numerous times in the
back. Chandler’s ex-girlfriend testified at the trial that Chandler had been
checking on her house weeks prior to the Steinberger’s murders. Additionally, the
evidence showed that numerous personal items were missing from the victims’
house. Witnesses testified that Chandler sold these items to them, telling
prospective buyers that he needed money to bail his brother out of jail. Chandler’s
brother and mother testified, however, that the brother had never been in jail.
B. Procedural History
A jury convicted Chandler of two counts of first degree murder and
recommended the death penalty. The trial court followed the jury’s
recommendation and imposed a death sentence. On appeal, the Florida Supreme
Court affirmed Chandler’s convictions, but remanded for re-sentencing because the
4
trial court erroneously excused two prospective jurors. Chandler v. State, 442
So. 2d 171 (Fla. 1983). Chandler’s second jury also recommended a death
sentence, which the trial court imposed. The Florida Supreme Court affirmed.
Chandler v. State, 534 So. 2d 701 (Fla. 1988), cert. denied, 490 U.S. 1075 (1989).
Chandler then filed a Rule 3.850 motion for post-conviction relief raising thirteen
issues. Chandler also filed a state habeas petition raising eleven issues. The trial
court denied all relief without conducting an evidentiary hearing. The Florida
Supreme Court upheld the trial court’s rulings. Chandler v. Dugger, 634 So. 2d
1066 (Fla. 1994). Chandler then filed a petition for habeas relief pursuant to 28
U.S.C. § 2254, which the district court denied. Chandler then perfected this
appeal.
II. ISSUES1
1. Whether the trial court’s comments at the capital trial deprived Chandler
of the presumption of innocence and relieved the State of its burden of proof in
violation of the Due Process Clause of the Fourteenth Amendment.
1
The district court granted Chandler a Certificate of Appealability (“COA”), but failed to
enumerate the issues for our review. 28 U.S.C. § 2253(2) & (3) (“A certificate of appealability may
issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a
constitutional right. The certificate of appealability under paragraph (1) shall indicate which specific
issue or issues satisfy the showing required by paragraph (2).”). Since the district court did not
enumerate the issues for our review, we grant the COA only as to the specific issues Chandler
presents to us in his appellate brief.
5
2. Whether the prosecuting attorneys’ comments at the trial deprived
Chandler of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights.
3. Whether the State knowingly presented false or misleading evidence and
failed to disclose exculpatory evidence at Chandler’s re-sentencing.
4. Whether the prosecuting attorneys’ comments at Chandler’s re-
sentencing hearing deprived him of his Fifth, Sixth, Eighth, and Fourteenth
Amendment rights.
5. Whether Chandler’s Sixth, Eighth, and Fourteenth Amendment rights
were violated when the trial court denied his challenges for cause under Morgan v.
Illinois, 504 U.S. 719, 729, 112 S. Ct. 2222 (1992), and whether his counsel was
ineffective for failing to raise the issue on direct appeal.
6. Whether the State violated Chandler’s right of confrontation when it
presented hearsay evidence at Chandler’s re-sentencing hearing.
7. Whether Chandler’s death sentence violates Sochor v. Florida, 504 U.S.
527, 112 S. Ct. 2114 (1992).
III. STANDARD OF REVIEW
“We review the district court’s grant or denial of habeas corpus relief de
novo.” Wright v. Hopper, 169 F.3d 695, 701(11th Cir.), cert. denied, 120 S. Ct. 336
(1999).
6
IV. DISCUSSION
A. Trial court’s comments
Chandler argues that the trial court’s comments at his trial indicated a bias in
favor of the State, thus relieving the State of its burden of proof and violating his
Due Process rights. Chandler proffers two instances of alleged prejudicial court
comments. The first comment occurred during voir dire when defense counsel
asked a prospective juror if she thought Chandler was in trouble. The trial court
stated, “[i]t’s obvious he’s in trouble.” [R. Vol. 5, Exh. A, p.821]. The second
comment occurred when the trial court questioned the prospective jurors about
pretrial publicity. After the prospective juror stated that she might have an opinion
about Chandler’s guilt or innocence, the trial court asked, “is that opinion such that
it cannot be changed by the evidence and testimony that comes out and takes place
during this trial?” [R. Vol. 4, Exh. A, p. 34].
The second comment is not properly before this court for review. Chandler
raised this issue for the first time in his Rule 3.850 state post-conviction motion.
The issue was included in Chandler’s cumulative errors issue. On appeal, the
Florida Supreme Court found that issue barred because it could have been raised
on direct appeal. Chandler, 634 So. 2d at 1068. Since the last state court to
consider the issue determined that it was procedurally barred, the issue is barred
7
from federal review. Harris v. Reed, 489 U.S. 255, 263 109 S. Ct. 1038 (1989).
Since the Florida Supreme Court found the issue to be procedurally barred, we are
precluded from addressing the merits unless Chandler can demonstrate “cause and
prejudice” for his procedural default or that he is “actually innocent.” Johnson v.
Singletary, 938 F.2d 1166, 1174-75 (11th Cir. 1991). Chandler has not
demonstrated that either exception applies to his case.
The first comment is properly before this court for review. Chandler raised
this issue on direct appeal, and the Florida Supreme Court found no reversible
error. [R. Vol. 10, Exh. E]; Chandler, 442 So. 2d at 172, n.1. We agree that this
comment, when viewed in its entirety and in the proper context, did not undermine
Chandler’s presumption of innocence. The comment at issue arose in the
following context:
Mrs. Watson: Well, I distinctly remember when I read it, when it first
happened, that I had sympathy for the mother.
Mr. Maslanik: For the mother?
Mrs. Watson: For the mother, for the people, for the ones, you know –
Mr. Maslanik: When you say you had sympathy for the mother, who
were you talking about?
Mrs. Watson: Well, I was thinking of his mother. I guess, because I
had lost a son, you know, and by him getting in trouble like that, I had
compassion for her.
8
Mr. Maslanik: So when you read the articles or whatever you read or
heard, you felt that he was in trouble?
Mrs. Watson: Yes, I felt he was in trouble.
....
Mr. Maslanik: Do you feel that in any way he’s in trouble?
Mr. Stone: Well, You Honor, I’m going to object to that. I don’t think
that’s a proper question.
The Court: I’ll sustain the objection. It’s obvious he’s in trouble.
Mr. Maslanik: Your Honor, I would object to that. I don’t think he’s
in any kind of trouble. He’s been charged and the evidence may not
be sufficient and he may not be guilty –
The Court: That’s very true. But if getting charged, if that’s not being
in trouble, I think that’s –
Mr. Maslanik: . . . I would also ask The Court to please refrain from
making remarks about the fact he’s in trouble. That gives the jurors
some indication that The Court has a feeling he is in trouble or in
some way there is a problem with him being here. He starts out with
the presumption of innocence –
The Court: This is true. But anytime a jury panel laughs when you
ask that question – it was obvious to everybody in this courtroom that
any person charged with a crime this serious is in trouble. There is no
two ways about it. It’s just an improper question so I’ll sustain the
objection.
[R. Vol. 5, Exh. A, ¶. 819-822.].
We find nothing untoward in the trial court’s comment. This one comment,
standing alone, did not deprive Chandler of his presumption of innocence,
9
especially in light of the court’s several explanations regarding the concepts of
presumption of innocence and the State’s burden of proof. Moreover, the court
properly instructed the jury regarding Chandler’s presumption of innocence, the
State’s burden of proof, and the fact that anything the court or the attorneys say is
not evidence. Accordingly, we hold the comment was not erroneous and did not
deprive Chandler of his Due Process rights. See e.g., United States v. Cortez, 757
F.2d 1204, 1208 (11th Cir. 1985) (rejecting petitioner’s claim that judge’s remarks
were improper as the comments were direct responses to questions and the jury
was properly instructed not to consider the judge’s comments as evidence).
B. Prosecutor’s comments and actions at trial
Chandler argues that the prosecutor used a series of improper comments that
rendered his trial fundamentally unfair. Chandler objected to some of these
comments and did not object to other comments he challenges. He claims that the
prosecutor attempted to inflame the jury’s passions, maligned the defense,
misstated the law, misrepresented the facts, and commented on Chandler’s right to
remain silent. Additionally, he contends that the prosecutor engaged in
unprofessional theatrics when he used the alleged murder weapon, a baseball bat,
to repeatedly smash a briefcase on the defense table.
10
Chandler first raised this issue in his Rule 3.850 post-conviction motion,
along with a claim of ineffective assistance of counsel for failing to object to some
of the allegedly inflammatory comments. On appeal of the denial of his Rule
3.850, Chandler argued that his counsel were ineffective for failing to object to the
prosecutor’s improper comments. The Florida Supreme Court found that Chandler
could not meet the standard set forth in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052 (1984), to establish his claim of ineffective assistance of counsel.
The Florida Supreme Court found that if the substantive claims had been raised on
direct appeal, the court would have found no reversible error. Chandler, 634 So. 2d
at 1069.
In his state habeas petition, Chandler also raised the claim of ineffective
assistance of counsel for failing to object to the prosecutor’s comments and
actions. Chandler also argued that his appellate counsel was ineffective for failing
to challenge these comments on appeal. The Florida Supreme Court addressed the
claim as one of ineffective assistance of appellate counsel and found that if
appellate counsel had raised the issues on appeal, the court would have found them
to be without merit. Id. at 1068. The court also noted that the substantive claims
should have been raised on direct appeal and to overcome the procedural bar
Chandler included allegations of ineffective assistance of counsel. Id. at 1067.
11
Since the Florida Supreme Court found the substantive claims procedurally
barred, we will not consider them in light of Chandler’s failure to demonstrate
cause and prejudice to excuse the procedural default. We will only consider
Chandler’s claim of ineffective assistance of counsel for failing to object to the
allegedly improper comments. In order to establish a claim of ineffective
assistance of counsel, Chandler must show that counsels’ performance was
deficient and that this deficient performance prejudiced his defense. Strickland,
466 U.S. at 687, 104 S. Ct. 2052.
Chandler’s first challenge concerns the prosecutor’s comment to a
prospective juror that “if the case didn’t hold water, you would never get to hear it
and make a deliberation.” [R. Vol. 4, Exh. A, p. 377]. The prosecutor’s comment
was in response to a prospective juror’s statement that “I read pretty elaborately.
There are quite a few cases where they don’t hold water if it’s just circumstantial
evidence.” [Id.]. Chandler claims that his counsel were ineffective for failing to
object to this comment. This comment was not improper in light of the context in
which it was uttered. The prosecutor was explaining the concept of circumstantial
evidence and responding to a comment by a prospective juror. Since it was not an
erroneous comment, Chandler’s counsel cannot be deemed ineffective for failing to
object to it.
12
The next comment with which Chandler takes issue also occurred during
jury selection. The prosecutor stated that “the two defense lawyers here have said
that he’s entitled to a presumption of innocence and they asked you can you
presume or believe he is innocent.” [R. Vol. 4, Exh. A, p. 510]. In light of the trial
court’s numerous instructions that Chandler is entitled to a presumption of
innocence, there is no error in this comment. Accordingly, Chandler’s counsel
were not ineffective for failing to object to the comment.
Another comment Chandler challenges also occurred during jury selection
when the prosecutor stated to the entire jury panel, “[t]he defendant doesn’t have to
say anything, he doesn’t have to prove anything. The exceptions, or one of the
exceptions, is where the defense of alibi is raised.” [R. Vol. 5, Exh. A, p. 945].
The prosecutor made this comment after his explanation regarding the State’s
burden of proof and during his explanation regarding the alibi defense. There was
nothing improper in the statement and Chandler’s attorneys cannot be deemed
ineffective for failing to object to the comment.
Chandler challenges another comment which occurred during jury selection.
The prosecutor stated that “[n]one of us know what evidence is going to come in at
this point. We all know what we want to get in, but nobody knows what evidence
you’re going to see, observe or hear.” [R. Vol. 5, Exh. A, p. 1158]. Chandler fails
13
to acknowledge the remainder of the prosecutor’s comment which explained that
the evidence the jury could consider was evidence from the witness stand or
exhibits. The prosecutor asked if the jury would “weigh all the evidence and base
[their] verdict on the conclusion that [they] have from weighing it all?” [Id.]. The
prosecutor’s comment and accompanying explanation were not erroneous.
Therefore, Chandler’s counsel were not ineffective for failing to object to the
comment.
Chandler challenges the prosecutor’s comments during closing argument.
The first comment referred to a witness who the prosecutor stated was “the biggest
liar in Indian River County” and the State did not call her as a witness because it
could not “rely on her credibility.” [R. Vol. 8, Exh. A, p. 3604-05]. Chandler also
claims that the prosecutor referred to Chandler’s mother as a liar and erroneously
commented on the number of stab wounds each victim received as representing the
number of years Chandler had spent in jail. [R. Vol. 8, Exh. A, p. 3599-3600;
3622]. The prosecutor’s comment on the credibility of the witness was an accurate
statement because the witness told four different stories regarding Chandler’s
whereabouts during a crucial time. Contrary to Chandler’s assertion, the
prosecutor stated he was not going to call Chandler’s mother a liar. The prosecutor
asked the jury to view dubiously her testimony in light of the obvious bias of the
14
mother/child relationship. As to the number of stab wounds, the prosecutor was
correctly commenting on the evidence. His reference to Chandler’s years in prison
was not inflammatory because the jury heard testimony that Chandler previously
had been in jail.
Accordingly, we conclude none of the comments rose to the level of
fundamental error. Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S. Ct. 1868
(1974); Cargill v. Turpin, 120 F.3d 1366, 1379 (11th Cir. 1997). Therefore,
Chandler’s counsel cannot be deemed ineffective for failing to object to these
comments, and Chandler is not entitled to relief on this claim.
C. Conspiracy charge evidence
Chandler argues that the State’s use of a “bogus” conspiracy to escape from
prison charge denied him due process. He further contends that the State did not
disclose this exculpatory evidence; the State knowingly presented false or
misleading evidence that prevented him from presenting mitigating evidence; and
the State “convinced” another inmate charged in the conspiracy not to testify about
Chandler’s innocence. Chandler states that at his re-sentencing hearing, he
planned to call 12 correctional officers who would testify that Chandler had
adapted well to prison life and could remain in prison the rest of his life without
causing harm to anyone. To rebut this, the State presented evidence of a
15
conspiracy charge, which arose one week before his re-sentencing. Chandler
claims that as a result of this “bogus” conspiracy charge, he did not call the
correctional officers to testify on his behalf because the conspiracy charge nullified
the officers’ testimony. Additionally, Chandler contends that the State violated
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), by withholding the
conflicting evidence in support of the conspiracy charge. Furthermore, Chandler
claims that the State intimidated another inmate charged in the offense not to
testify on Chandler’s behalf.
Chandler raised this issue in his Rule 3.850 motion, and the trial court found
the issue to be procedurally barred because it could have been raised on direct
appeal. [R. Vol. 15, Exh. CC]. On appeal, the Florida Supreme Court did address
the merits of Chandler’s claim and found that the defense knew about the State’s
problems with the escape charge. Chandler, 634 So. 2d at 1068. The court found
meritless Chandler’s claim that the State “convinced” an inmate not to testify on
Chandler’s behalf because the record showed that the inmate’s counsel advised
him not to testify since the court had not sentenced him yet. Id.
First, the record demonstrates the State did not prevent Chandler from
presenting mitigation evidence at his re-sentencing. Chandler presented mitigating
evidence through his mother, siblings, step-father, and Dr. Rifkin, a clinical
16
psychologist. Dr. Rifkin testified that Chandler had adapted very well to prison
life and he could continue to live in a prison setting without being a threat to
others. [R. Vol. 12, Exh. M., p. 619-20]. Responding to the question whether
Chandler’s involvement in an escape would change his opinion, Dr. Rifkin stated
that he would need more information regarding Chandler’s involvement. [Id. at
643]. He also stated that he understood that there were various opinions regarding
Chandler’s involvement. “One person stating that he had nothing to do with it and
another person stating some partaking in the meetings and what have you.” [Id.].
Thus, through Chandler’s expert, the jury heard that the State’s case on the
conspiracy charge was weak. Moreover, the State did nothing to prevent Chandler
from calling the correctional officers as witnesses. The presentation of rebuttal
evidence is not a barrier to the presentation of mitigation evidence.
In order to establish a Brady violation, Chandler must demonstrate that the
State possessed evidence favorable to him; that Chandler did not possess the
evidence nor could he have obtained it himself with any reasonable diligence; that
the State suppressed the favorable evidence; and that had the evidence been
disclosed to the defense, a reasonable probability exists that the outcome of the
proceedings would have been different. Wright v. Hopper, 169 F.3d at 701-02.
Chandler cannot meet this burden. First, the allegedly withheld evidence is not
17
“material” because there is no reasonable probability that had the evidence been
disclosed to Chandler, the result of the proceeding would have been different.
United States v. Stewart, 820 F.2d 370, 374 (11th Cir. 1987). In other words, the
jury voted unanimously for the imposition of the death penalty, and there is no
reasonable probability that the jury would have imposed a life sentence in view of
the suspect nature of the State’s conspiracy charge.
Second, Chandler could have possessed the evidence through the exercise of
reasonable diligence. Since Chandler knew of the escape charge, and knew of the
suspect nature of the charge, Chandler knew what evidence to present to rebut the
charge. Chandler’s own expert commented on the fact that the evidence to prove
the escape charge was contradictory. Furthermore, Chandler presents no evidence
to support his allegation that the State “intimidated” the inmate not to testify. The
record clearly shows that the inmate consulted with his attorney and refused to
testify because he had not been sentenced yet. [R. Vol. 12, Exh. M., p. 685-95].
Accordingly, we conclude Chandler is not entitled to relief on this claim.
D. Prosecutor’s comments and actions at re-sentencing
Chandler highlights many prosecutorial comments which he contends
rendered his re-sentencing unfair. Chandler also adds claims of ineffective
assistance of counsel for failing to object to the comments and failing to challenge
18
these comments on appeal. Only one of the comments is properly preserved for
our review because Chandler challenged it on direct appeal following his re-
sentencing. Chandler, 534 So. 2d at 703. Chandler’s claim that his counsel was
ineffective for failing to object to the prosecutor’s comments is properly before us
for review because Chandler raised this claim on appeal of the denial of his Rule
3.850 motion. The Florida Supreme Court found that Chandler did not meet the
Strickland standard as to this claim. Chandler, 634 So. 2d at 1069. Chandler’s
claim of ineffective assistance of appellate counsel is also before us for review
because Chandler raised this issue in his state habeas petition. The Florida
Supreme Court found that appellate counsel could not be deemed ineffective for
failing to argue claims that had not been preserved for appeal. Id. at 1068. As to
the claims which were preserved, the court found that appellate counsel was not
ineffective for failing to challenge them on appeal because they were meritless. Id.
The one substantive prosecutorial comment which Chandler preserved for
our review is the statement, “Your Honor, Mr. Udell asked him if this was, you
know, consistent from behind, you know, what evidence is there that he was hit
from behind, I mean, no one knows at this point except Mr. Chandler.” [R. Vol. 11,
Exh. M, p. 434-35]. Chandler’s counsel objected and the trial court issued a
curative instruction telling the jury to disregard the statement. On appeal, the
19
Florida Supreme Court found the comment to be harmless since Chandler had been
convicted of the crimes, and therefore, would know how they were committed.
Chandler, 534 So. 2d at 703.
We agree. A jury found Chandler guilty of the murders, so Chandler’s guilt
had been established. Moreover, this sole comment, not repeated at any other stage
of the proceeding, cannot be construed as an invitation for the jury to take into
consideration Chandler’s silence, especially in light of the trial court’s curative
instruction. Moreover, the trial court instructed the jury numerous times regarding
Chandler’s right to remain silent and the presumption of innocence.
Chandler cannot prevail on his claims of ineffective assistance related to this
comment. The record shows that Chandler’s counsel did object to the comment,
and appellate counsel raised the issue on appeal.
In order to establish a claim of ineffective assistance of counsel with regard
to the comments to which counsel did not object, Chandler must show that his
counsel’s performance was deficient, and this deficient performance prejudiced the
outcome of his sentencing. Strickland, 466 U.S. at 687. This two-pronged test is
also applied to the sentencing phase because the capital sentencing proceeding is
similar to a trial in its adversarial format and counsel’s role is similar. Id. at 686-
87. To succeed on this claim, Chandler must show that “counsel’s conduct so
20
undermined the proper functioning of the adversarial process that the [sentence]
cannot be relied on as having produced a just result.” Mincey v. Head, 206 F.3d
1106, 1143 (11th Cir. 2000).
Chandler takes issue with the prosecutor’s comment during jury selection,
that “we feel, like, if you follow the law and listen to the Judge’s instructions
carefully and apply the facts, there’s only one possible recommendation.” [R. Vol.
13, Exh. M, p. 596]. Defense counsel did not object and had no reason to object
since the prosecutor’s statement is a correct statement of the law. Johnson v.
Lynaugh, 821 F.2d 224, 226 (5th Cir. 1987) (urging jurors to follow the law is
permissible argument). Chandler particularly takes issue with the prosecutor’s
opinion that “there’s only one possible recommendation.” In light of the trial
court’s instructions that anything the attorneys said was not evidence, we hold that
there is no error in the prosecutor’s statement.
Chandler challenges the prosecutor’s comments regarding contusions the
victims suffered. Chandler claims that there was no evidence of any contusions
and his counsel should have objected to this reference to facts not in evidence. We
conclude that the prosecutor’s statement is harmless in light of the evidence
showing that the victims suffered severe blows to the head and the victims’ injuries
included lacerations, fractures, and post-mortem stabbing. In light of this
21
evidence, an innocuous statement about contusions is irrelevant. There was no
reason for counsel to object. Chandler also challenges the prosecutor’s statement
that Chandler might be eligible for parole in less than 25 years if the jury
recommended a life sentence. This comment, too, was an accurate statement to
which counsel had no reason to object. Accordingly, Chandler is not entitled to
relief on these claims of ineffective assistance of counsel.
E. Challenges for cause and ineffective assistance
Chandler argues that at his re-sentencing, he had to use four of his allotted
peremptory challenges on prospective jurors who should have been excused for
cause. He asserts that the issue was preserved at re-sentencing and his appellate
counsel was ineffective for failing to raise this issue on appeal. Chandler did raise
this issue in his state habeas petition, and the Florida Supreme Court found the
issue to be procedurally barred because Chandler did not raise the issue on direct
appeal. Chandler, 634 So. 2d at 1067. The court noted that Chandler also asserted
an ineffective assistance of appellate counsel claim in order to overcome the
procedural bar. The court determined that Chandler’s appellate counsel was not
ineffective because if counsel had raised the issue, the court would have found it
meritless. Id. at 1068.
22
We need only consider Chandler’s claim of ineffective assistance of
appellate counsel since the Florida Supreme Court found the substantive claim to
be procedurally barred. Harris, 489 U.S. at 263. Chandler is not entitled to relief
on his claim of ineffective appellate counsel. As the Florida Supreme Court noted,
the issue had no merit. Chandler’s primary focus concerned four jurors who did
not sit on his re-sentencing jury. The record indicates that the one juror who did
sit, Ms. Dodge, was fit for jury service. Moreover, Chandler’s claim is not one of
constitutional infirmity. See e.g., Ross v. Oklahoma, 487 U.S. 81, 108 S. Ct. 2273
(1988) (reaffirming rule that defendant is not constitutionally entitled to
peremptory challenges). Chandler’s appellate counsel was not ineffective for
failing to raise a nonmeritorious issue. United States v. Nyhuis, 211 F.3d 1340,
1344 (11th Cir. 2000).
F. Confrontation Clause
Chandler argues that at his re-sentencing, the State presented hearsay
evidence to establish an aggravating circumstance and this violated his
Confrontation Clause rights. On appeal, the Florida Supreme Court did not find
any merit to this argument. The court noted that the trial court admitted this
hearsay evidence pursuant to Fla. Stat. § 921.141(1), which provides that
“evidence may be presented as to any matter that the court deems relevant to the
23
nature of the crime and the character of the defendant” and “[a]ny 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.” The court found the
statute constitutional because it does provide a defendant the opportunity to
confront the State’s witnesses. Chandler, 534 So. 2d at 702.
The Sixth Amendment guarantees a defendant an adequate opportunity to
cross-examine adverse witnesses. United States v. Owens, 484 U.S. 554, 108 S. Ct.
838 (1988). Chandler had this opportunity and capitalized on it during trial but
chose not to during his re-sentencing phase. 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.
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Moreover, we conclude that there is no Confrontation Clause violation
because we agree with the Seventh Circuit that hearsay evidence is admissible at a
capital sentencing. Del Vecchio v. Illinois Dep’t of Corrections, 31 F.3d 1363,
1387-88 (7th Cir. 1994). This proposition does contain one caveat: that the state
statute protect a defendant’s rights by giving him/her the opportunity to rebut any
hearsay information. If the statute grants this protection, then it comports with the
Sixth Amendment’s Confrontation Clause. We note, however, that if we
determined that hearsay evidence is per se inadmissible in a capital sentencing, we
would be announcing a new rule of law. Therefore, the new rule’s application to
this case would be barred by the retroactivity principles of Teague v. Lane, 489
U.S. 288, 109 S. Ct. 1060 (1989 ).
F. Sochor v. Florida claim
Chandler argues that his death sentence violates Sochor, 504 U.S. 527.
Chandler did not challenge his death sentence on direct appeal. Chandler, 534
So. 2d at 704. Chandler first challenged the Florida Supreme Court’s automatic
review of his death sentence in his state habeas petition and on appeal of the denial
of his Rule 3.850 motion. The Florida Supreme Court found the issue to be
procedurally barred. Chandler, 634 so.2d at 1068-69. Therefore, the issue is
procedurally barred from federal habeas review. Harris, 489 U.S. 255. In light of
25
Chandler’s failure to demonstrate cause and prejudice for the procedural default,
we decline to address the claim.
26
V. CONCLUSION
For the foregoing reasons, we affirm the district court’s judgment denying
habeas corpus relief to Chandler.
AFFIRMED.
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