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Joseph E. Whitfield, Cross-Appellant/appellee v. Michael Bowersox, Superintendent, Potosi Correctional Center Jeremiah Nixon, Attorney General, State of Missouri, Appellants/cross-Appellees
Citations: 324 F.3d 1009; 2003 U.S. App. LEXIS 6528Docket: 01-1537
Court: Court of Appeals for the Eighth Circuit; April 7, 2003; Federal Appellate Court
Joseph Whitfield was sentenced to death for first degree murder and armed criminal action, with the Missouri Supreme Court affirming his conviction. Whitfield filed a timely habeas corpus petition under 28 U.S.C. § 2254, which led the federal district court to vacate his death sentence, ruling that the state court erred in finding that Whitfield voluntarily waived his right to testify during the penalty phase of his trial. The State of Missouri appeals this ruling, while Whitfield cross-appeals, contesting the denial of parts of his habeas petition related to ineffective assistance of counsel and trial court error regarding newly discovered evidence. The Eighth Circuit Court, comprising Judges Morris Sheppard Arnold, Heaney, and Riley, affirmed the district court's denial of habeas relief for Whitfield’s claims but reversed the district court's decision concerning his right to testify. The factual background indicates that on January 20, 1988, Ronald Chester, a paraplegic, was assisted by Maria Evans when they picked up Whitfield and his daughter. After a brief stop, Whitfield directed Chester to wait while he attempted to buy heroin. Instead, he returned with a handgun, struck Chester and Evans, and shot Chester, leading to Chester’s death. Evans was injured but survived by pretending to be dead. Whitfield claimed he was framed and that another individual, Varney Bolden, was responsible for the shooting. Whitfield was initially convicted but had the conviction reversed due to prosecutorial misconduct and surprise evidence, resulting in a retrial. On retrial, Whitfield was convicted of first-degree murder and armed criminal action but the jury was unable to reach a unanimous decision on his penalty, deadlocking 11-1 in favor of a life sentence. The state trial court subsequently sentenced him to death for the murder and life imprisonment for the armed criminal action after denying post-trial motions. Whitfield filed a post-conviction relief motion, which was denied, and the Missouri Supreme Court affirmed his conviction and sentence. Whitfield then petitioned for a federal writ of habeas corpus, which was granted regarding his right to testify during the penalty phase, leading to the vacating of his death sentence. The federal court denied the writ on other issues but certified three for appeal: (1) whether the state court erred in finding that Whitfield voluntarily waived his right to testify; (2) the effectiveness of his counsel concerning the cross-examination of two witnesses; and (3) whether the state court erred in denying a new trial based on newly discovered evidence. The standard of review for the habeas petition under 28 U.S.C. § 2254 involves examining the district court's factual findings for clear error and its legal conclusions de novo. A petitioner may receive relief only if the state court's adjudication was contrary to or an unreasonable application of established federal law or based on an unreasonable determination of facts. Whitfield argued that the state trial court failed to obtain an explicit waiver of his right to testify. While the federal district court found insufficient support for the state court's waiver determination, the government contended the record justified it. The Supreme Court has affirmed the constitutional right of a defendant to testify, emphasizing that a waiver of such rights cannot be presumed from a silent record. However, a defendant may knowingly waive the right through silence if it is deemed voluntary. The trial court is responsible for determining whether conduct indicating waiver exists, while the legal implications of that conduct resulting in a waiver are determined by law. Key factual findings include whether the defendant was informed of his right to testify and whether he accepted counsel's advice not to testify. A knowing and voluntary waiver may be inferred if the defendant remains silent after counsel rests. In Frey v. Schuetzle, evidence indicated that the defendant was informed of his right to testify, advised against it, accepted the advice, and remained silent after counsel rested, suggesting a waiver. Defendants must actively exercise their right to testify; failure to do so results in a deemed waiver. In various cases, defendants who indicated a desire to testify only after evidence concluded were found to have waived their rights due to inaction. A defendant's right to testify is not absolute, as shown in Bernloehr, where a defendant's apparent acquiescence to counsel's advice not to testify constituted a waiver. In a post-trial hearing regarding a motion, Whitfield's attorney testified that Whitfield decided not to testify, having discussed the right to do so and advised against it for trial strategy reasons, which Whitfield disputes. The state argues this advice was reasonable, citing concerns about Whitfield's demeanor and potential for damaging prior criminal history to emerge. Before the penalty phase, Whitfield expressed a desire to provide an explanation, but the trial court reaffirmed that the decision to testify was ultimately his, denying him the opportunity to speak without cross-examination and emphasizing that it was a matter between him and his attorney. At the conclusion of the State's evidence, Whitfield's counsel presented seven witnesses and rested without objection from Whitfield. When asked by the trial court if all evidence was presented, defense counsel indicated that Whitfield reserved the right to testify at allocution but had no further evidence for the jury. Whitfield did not comment or object during this process. After jury instructions and closing arguments, Whitfield requested to speak on his own behalf, making a loud outburst directed at his counsel. The trial court instructed him to maintain order, and the jury deliberated without hearing his statement. Whitfield later made a statement to the court before sentencing. On direct appeal, the Missouri Supreme Court rejected Whitfield's claim of waiver, stating that he could have testified alongside his witnesses but could not speak extemporaneously to the jury. The court noted Whitfield's failure to testify at the Rule 29.15 hearing, which related to the guilt stage rather than the penalty stage. The federal district court agreed, finding no evidence that Whitfield waived his right to testify during the penalty phase. Whitfield claimed the trial court ignored his request to testify at the beginning of the penalty phase and misled him regarding the decision being his or his attorney's. The State argued he waived his right to testify due to the timing of his requests. Whitfield later provided a narrative during a post-trial hearing, expressing his life history, prior convictions, his views on the police's motivations, and professing his innocence regarding the charges. The State contended that this narrative did not create a reasonable probability of a different penalty phase outcome, especially since the trial judge, who sentenced Whitfield to death, considered this narrative. The record lacks explicit evidence of waiver by Whitfield regarding testifying in the penalty phase, as he had requested to testify both before and after this phase. However, he did not object when his attorney stated there was no further evidence for the jury. Whitfield's trial counsel indicated that they discussed his right to testify, but her testimony was ambiguous regarding whether this discussion included both trial phases or just the guilt phase. Whitfield agreed with his trial counsel not to testify after being informed of his right to do so, a finding supported by the record and not overturned by clear evidence. His waiver of the right to testify is corroborated by his silence during the penalty phase, his counsel's statement regarding an allocution before sentencing, and his experience with criminal proceedings. The state court concluded that Whitfield voluntarily waived his constitutional right to testify, a determination consistent with federal law, leading to the reversal of the district court's habeas corpus relief. Whitfield's claim of ineffective assistance of counsel during the penalty phase hinges on two criteria from Strickland v. Washington: the performance must be deficient and must have prejudiced his defense. The record indicates that his counsel acted competently in advising against testimony, aligning with case precedents where similar counsel decisions were deemed strategic rather than ineffective. Regarding prejudice, the State argues that Whitfield's lack of testimony at the post-conviction hearing undermines any claim of Strickland prejudice, as he did not specify what his testimony would entail. Whitfield contends that he does not need to demonstrate prejudice due to trial court error and suggests that his testimony could have influenced a juror to favor a life sentence. No evidence supports Whitfield's claim that his testimony would have influenced the jury's decision. His counsel had valid strategic reasons for advising him not to testify. Whitfield did make an allocution statement to the judge, maintaining his innocence, blaming the prosecuting attorney for a vendetta, and failing to express sympathy for the victims. He did not demonstrate that his counsel's performance was deficient or that he suffered any prejudice, thus affirming that he received effective assistance regarding his right to testify at the penalty stage. In terms of cross-examination during the guilt phase, Whitfield asserts his counsel was ineffective in handling witnesses Evans and Scott. Specific shortcomings cited include not impeaching Evans with prior inconsistent statements, failing to clarify the state of the rear window or door during the incident, and neglecting to question about pathological and physical evidence. Evans provided three varying statements to police shortly after the shooting. Initially, she mentioned her eyes were closed when she heard the shot but later indicated they were open. She also claimed that Bolden directed Whitfield to shoot but that Whitfield refused, a statement that Whitfield's counsel attempted to use for impeachment but misidentified the officer involved. Counsel read the correct statement into evidence instead of playing the audio recording. During trial, Evans testified that Whitfield shot Chester while seated behind him, using his right hand, which contradicted scientific evidence indicating bullets entered from the left side of Chester's head. Whitfield's defense argued that the shooter must have been outside the vehicle. The Eighth Circuit has recognized ineffective assistance of counsel when failure to cross-examine leads to the introduction of damaging evidence or when a witness's prior inconsistent statement goes unchallenged, particularly if such failures could have created reasonable doubt regarding the defendant's guilt. Whitfield's claims of ineffective assistance of counsel are deemed insufficient to meet constitutional standards. Counsel adequately managed evidence, preventing the introduction of harmful inadmissible material and addressing prior inconsistent statements. Evidence supporting the theory of another shooter was presented, and closing arguments aligned with the defense strategy. The state court's assessment of counsel's performance regarding Evans was not an unreasonable application of federal law. Concerning the witness Scott, Whitfield alleged that counsel failed to confront Scott about a prior statement and did not depose her. Despite this, Scott's testimony, while containing inconsistencies, ultimately identified Whitfield as the shooter, diminishing the impact of the alleged errors. The state court's finding that counsel's actions regarding Scott did not constitute ineffective assistance was also upheld. Whitfield failed to demonstrate that his counsel's performance was deficient or that he suffered any prejudice as a result. Thus, the court concluded that the state court correctly applied federal law in assessing effective counsel. Regarding Whitfield's motion for a new trial based on newly discovered evidence from Willie Gream, the court noted that to succeed, a Missouri defendant must establish that the evidence was newly acquired, could not have been discovered earlier through due diligence, is materially significant enough to likely alter the trial outcome, and is not merely cumulative or impeaching. The court emphasized that new trials based on such evidence are rarely granted, and the trial court has broad discretion in these matters. Furthermore, the Constitution does not specifically address the issue of new trials. Whitfield's case references Chambers v. Mississippi, emphasizing the due process right to a fair defense in criminal trials. The state court denied his motion for a new trial based on new evidence, primarily Gream's testimony, concluding it would not likely alter the trial outcome. The court found Gream's credibility compromised due to his status as a convicted felon and the timing of his testimony, which conflicted with other defense accounts and was deemed partly cumulative. The federal district court upheld the state court's decision, asserting it was reasonable in its factual determinations and legal applications. Whitfield had a fair chance to present his defense both during the trial and the post-trial hearing. Despite claims of actual innocence based on Gream's testimony, the court noted that this claim did not establish an independent constitutional violation and failed to meet the high standard required for a Herrera-type actual innocence claim. The testimony did not incontrovertibly prove innocence, as it contradicted other witnesses and did not change the overall evidence supporting Whitfield’s conviction. Thus, the state court's denial of a new trial was consistent with established federal law and factual determinations. Whitfield's application for a writ of habeas corpus is denied, affirming the district court's decision regarding claims of ineffective assistance of counsel related to witness cross-examination and the denial of a new trial based on newly discovered evidence. However, the district court's ruling concerning Whitfield's right to testify during the penalty phase is reversed, with the case remanded for further proceedings. The court chose not to address the implications of the Supreme Court's decision in Ring v. Arizona regarding the retroactive application of the death penalty. During the trial, Whitfield expressed a strong desire to testify, emphasizing the importance of sharing his perspective, but the court limited his ability to address the jury directly. Dissenting, Judge Heaney argued that Whitfield's repeated requests to testify were not honored, indicating ineffective assistance of counsel and a constitutional error in the sentencing process. A criminal defendant's right to testify in their defense is a fundamental constitutional right supported by the Fifth, Sixth, and Fourteenth Amendments, and, in penalty phases, the Eighth Amendment as well. This principle emphasizes that only the defendant can waive this right, and such a waiver cannot be assumed from a silent record. In the specific case of Whitfield, there was no clear waiver of the right to testify. Instead, Whitfield expressed a strong desire to testify during a colloquy just before the penalty phase, stating the importance of explaining his situation personally. The court acknowledged Whitfield's right to testify but clarified that he would only be allowed to do so if called as a witness and subject to cross-examination. The court did not permit him to address the jury in a narrative form without being called to the stand. Ms. Murphy was informed that, regardless of the jury's assessment, the final sentencing decision rests with the judge, who assured Mr. Whitfield he would have an opportunity to address the court before sentencing. Whitfield expressed frustration about not being able to speak during the proceedings. The court acknowledged his concerns but indicated the discussion would be revisited after the State's case concluded. Whitfield's request to speak to the jury was viewed as an assertion of his right to testify, a point reinforced by the case law indicating defendants may articulate their own defense more compellingly than counsel. However, the trial judge dismissed Whitfield's request to speak directly to the jury, stating he could only do so if called as a witness. The judge shifted the focus to Whitfield's right of allocution, assuring him that he would be allowed to address the judge later, despite misrepresenting the constraints on sentencing in capital cases. Notably, if the jury voted unanimously for life imprisonment, the judge could not impose a death sentence, a relevant detail given the jury's split of eleven to one favoring life imprisonment without Whitfield's testimony. After the State's case, the court did not discuss Whitfield's right to testify, nor did it prompt him or his counsel about this right after the defense case was presented, ultimately leading to Whitfield not testifying at all. The court reviewed the case of Whitfield, focusing on his requests to speak on his own behalf during the penalty phase of his trial. Whitfield's attorney indicated that he was reserving the right to allocution, but the trial court failed to personally question Whitfield about his desire to testify, which is a fundamental right in death penalty cases. The court noted that Whitfield made two clear requests to address the jury, which were ignored, leading to a claim that his right to testify was not honored. The majority's conclusion that Whitfield waived this right through silence was viewed as unreasonable. The discussion also addressed ineffective assistance of counsel, with Whitfield asserting that his attorney failed to adequately assert his right to testify, and that there was no reasonable strategy for counsel's inaction. The author agreed with this assessment, emphasizing the absence of any strategic reasoning in the record for Whitfield's silence during the trial. The recommendation was to affirm the district court's grant of habeas corpus relief based on these claims. Speculation regarding tactical reasons for not testifying during the guilt phase does not apply to the penalty phase, where the state can introduce the defendant's criminal history. Testifying would have allowed Joseph Whitfield to humanize himself before the jury, as he expressed that only he could convey his story effectively. The absence of strategic reasoning for not allowing Whitfield to testify at the penalty stage indicates ineffective assistance from his counsel. The jury's deadlock of eleven to one in favor of life suggests that Whitfield's personal testimony could have influenced the hold-out juror. Unlike cases where there is no indication of a defendant's potential testimony, Whitfield had previously addressed the court, highlighting his difficult life, community reputation, and the impact of his execution on his daughter. His emotional statements could have positively swayed the jury. The failure to allow him to testify constituted a violation of his constitutional rights and ineffective counsel. Whitfield's repeated requests to testify were disregarded, leading to a dissenting opinion that he was denied his right to speak at the penalty phase. The conclusion emphasizes the need for the court to recognize Whitfield's right to testify and the ineffectiveness of his legal representation.