Filed: Jun. 19, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS June 19, 2007 FOR THE FIFTH CIRCUIT _ Charles R. Fulbruge III Clerk No. 06-70037 _ LARRY DONNELL DAVIS, Petitioner - Appellant, versus NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CORRECTIONS, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee. Appeal from the United States District Court for the Northern District of Texas, Amarillo USDC No. 2:03-CV-00001 Before JOLLY, DENNIS, and CLEMENT,
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS June 19, 2007 FOR THE FIFTH CIRCUIT _ Charles R. Fulbruge III Clerk No. 06-70037 _ LARRY DONNELL DAVIS, Petitioner - Appellant, versus NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CORRECTIONS, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee. Appeal from the United States District Court for the Northern District of Texas, Amarillo USDC No. 2:03-CV-00001 Before JOLLY, DENNIS, and CLEMENT, C..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 19, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 06-70037
_____________________
LARRY DONNELL DAVIS,
Petitioner - Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR,
TEXAS DEPARTMENT OF CORRECTIONS,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of Texas, Amarillo
USDC No. 2:03-CV-00001
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
Larry Donnell Davis was convicted of capital murder and
sentenced to death in March 1999 for the August 1995 murder of
Michael Barrow during the course of a robbery. The district court
denied federal habeas relief, but granted a certificate of
appealability (“COA”) authorizing Davis to appeal his claim that
the prosecutor violated his Fifth and Fourteenth Amendment rights
by commenting, during closing argument at the guilt-innocence phase
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
of trial, on Davis’s failure to testify. We AFFIRM the district
court’s denial of habeas relief.
I.
On August 28, 1995, Michael Barrow’s parents found him dead
inside his house in Amarillo, Texas. He had suffered blunt force
trauma to his face and head, as well as puncture and laceration
wounds on his head, neck, and chest. Bloody footprints were found
on his upper torso. An autopsy revealed that while Barrow was
still alive, his sternum had been broken and his heart wall had
been ruptured. According to the medical examiner, it was likely
that the rupture was caused by a stomp or kick to Barrow’s chest.
The State introduced into evidence Davis’s confession, in
which he admitted his involvement in a gang plot to murder Barrow
and steal his property. In his confession, Davis stated that he
was approached by Raydon (“Ray-Ray”) Drew, and his brother, Donald
Drew. The Drew brothers needed money, and Ray-Ray wanted to earn
a “teardrop” tattoo as a member of the Crips street gang. They
planned to kill Barrow, who was an acquaintance of theirs, and they
offered Davis Barrow’s stereo and chrome wheels from Barrow’s car
in exchange for his help.
Davis confessed that on the night of the murder he, Ray-Ray,
and Donald Drew went to Barrow’s house, along with two “look-outs”.
Davis, Ray-Ray, and Donald Drew went inside Barrow’s house and
visited with him, then Ray-Ray hit Barrow on the head with a
weight. They tied his feet and moved him toward the bathroom.
2
Donald Drew left. Ray-Ray asked Davis for his knife, and Davis
gave it to him. Ray-Ray then repeatedly stabbed Barrow with the
knife. When the knife handle broke, Ray-Ray continued stabbing
Barrow with the blade. Davis handed Ray-Ray an ice pick, and Ray-
Ray then attacked Barrow with the ice pick. While Davis and Ray-
Ray were gathering Barrow’s property to steal, they heard Barrow
cough. They discovered that he had untied his feet. Davis hit
Barrow in the mouth and held him down while Ray-Ray hit Barrow with
a pipe. Davis then got a butcher knife from Barrow’s kitchen and
gave it to Ray-Ray, who began to stab Barrow with it. Despite all
of these efforts, they still were not sure Barrow was dead, so
Davis instructed Ray-Ray to stand on Barrow’s neck. Davis said
that both he and Ray-Ray got blood on their shoes.
In his confession, Davis said that Ray-Ray acted alone in
inflicting Barrow’s fatal injuries. He admitted, however, that he
tied Barrow’s hands with a bandanna, supplied Ray-Ray with each of
the weapons he used to attack Barrow, and held Barrow down while
Ray-Ray attacked him. He further admitted that he encouraged Ray-
Ray and gave him instructions on how to accomplish the killing. He
also admitted that he took some of Barrow’s property and pawned it.
Acting on information provided by Davis, the police found the
bloody shoes and clothing Davis had worn on the night of the murder
in the attic of his girlfriend, Cynthia Green. Green testified
that on the night of the murder, she observed scratches on Davis’s
face, arms, and legs, and a bruise on his forehead. She testified
3
further that she pawned jewelry, a television, a VCR, and a tape
rewinder that Davis gave to her. She testified that he told her
those items belonged to Ray-Ray. The items were identified as
having been stolen from Barrow’s home. Barrow’s bank card was
found in Davis’s wallet, along with a pawn ticket that had belonged
to Barrow.
Davis’s former wife, Katherine Davis, testified that Davis
confessed his involvement in the murder to her when she visited him
in jail shortly after his arrest.
The State introduced photographs of a shoe print on Barrow’s
chest, in the spot where Barrow’s sternum was broken. It also
presented testimony that the shoe print on Barrow’s chest matched
the pattern on the bottom of the shoes worn by Davis on the night
of the murder.
The defense strategy was to attempt to convince the jury that
Davis was guilty of aggravated robbery or murder, but not capital
murder, because he was only a passive participant. The
prosecution, however, argued that the jury could convict Davis of
capital murder, either by finding him to be a party to a felony
murder, or by finding that Davis personally delivered the blow to
Barrow’s chest that ruptured his heart.
The jury found Davis guilty of capital murder. His conviction
and sentence were affirmed on direct appeal. Davis v. State, No.
73,458 (Tex. Crim. App. October 23, 2002) (unpublished), cert.
denied, 538 U.S. 1004 (2003). The Texas Court of Criminal Appeals
4
adopted the state court’s findings of fact and conclusions of law
and denied state habeas relief in December 2002. Ex parte Davis,
No. 54,457-01 (Tex. Crim. App. December 18, 2002).
Davis filed an application for federal habeas relief in July
2003. The district court denied relief, Davis v. Quarterman, No.
2:03-CV-001 (N.D. Tex. July 31, 2006). It granted a COA
authorizing Davis to appeal its holding that the state court did
not unreasonably apply federal law in holding that the prosecutor’s
improper, unconstitutional comment on Davis’s silence was harmless
error.
II.
Davis is not entitled to habeas relief unless the state
court’s adjudication of his prosecutorial misconduct claim “(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).
A.
Davis’s claim is based on the following argument made by the
prosecutor during rebuttal closing argument in the guilt-innocence
phase of trial:
And what you will determine is Larry Donell
Davis’ shoes stepped on that boy three times.
Maybe more. There was even one of his prints
5
on the pants. Let me tell you, when this man
with the teardrop on his eye, who sits here
silently --
MR. CLARK: Your Honor --
MR. MURPHY: -- and sits there and
watches while --
MR. CLARK: That is a direct comment on
his failure to testify, and we object.
THE COURT: I will sustain the objection.
MR. CLARK: Please instruct the jury to
disregard that last comment.
THE COURT: Ladies and gentlemen, please
disregard the last statement.
MR. CLARK: Move for a mistrial.
THE COURT: and the Motion to --
MR. CLARK: For mistrial is denied?
THE COURT: Is denied.
MR. MURPHY: -- watches while his
attorneys get up here, and say: What’s going
on here? Has the state caused you to tell you
this lie? No. The physical evidence brings
you here. And let me tell you what he did.
He instructed him. He provided him with three
weapons, according to his own mind, and they
talked about earning a teardrop just like he
wears on his eye, before they ever got there.
He provides him three weapons, as a party to
this crime, and then he stoops down and he
bursts the heart of this boy. That’s what the
physical evidence shows you. You want to get
theatric? I’m going to win the Oscar for the
Best Actor or Best Attorney in a Prosecuting
Role. Because I am right.
Davis filed a motion for new trial claiming, inter alia, that
the prosecutor’s comment on his failure to testify violated his
6
Fifth and Fourteenth Amendment rights. The trial court conducted
an evidentiary hearing, at which three witnesses testified for the
defense. According to these witnesses, the prosecutor pointed his
finger directly at Davis while making the challenged comments, his
face was very red, he was speaking in a loud voice, and he was
trembling and shaking when he finished his argument. The only
witness for the state was the jury foreman, who testified that the
jury was instructed not to consider Davis’s failure to testify as
evidence against him; that the court instructed the jury to
disregard what the prosecutor said; and that, to his knowledge, the
jury followed the trial court’s instructions. The trial court
denied the motion for new trial.
Davis raised the claim again on direct appeal. The Texas
Court of Criminal Appeals held that the prosecutor made a direct
comment on Davis’s failure to testify and emphasized the comment
when he raised his voice, walked toward Davis, and pointed directly
at Davis. The court assumed, arguendo, that the trial court’s
instruction to disregard the improper comment did not cure the
error. However, the court concluded that the comment amounted to
harmless error because none of the criteria set forth in Anderson
v. Nelson, 390 U.S. 523, 524 (1968) were met: The comment on
Davis’s failure to testify “entailed a single comment, the emphasis
of the State’s argument was the evidence, and there was no evidence
that supported acquittal.” Davis v. State, No. 73,458, at 5.
7
Davis presented this claim again in his state habeas
application. The state habeas trial court concluded that the claim
was not cognizable in the state habeas proceeding because it had
been raised and rejected by the Court of Criminal Appeals on direct
appeal. The Texas Court of Criminal Appeals held that the state
habeas trial court’s findings and conclusions were supported by the
record, and denied state habeas relief.
Davis raised the claim again in his federal habeas
application. The district court accepted the conclusion of the
Texas Court of Criminal Appeals that the prosecutor’s comment
violated Davis’s Fifth and Fourteenth Amendment rights, but held
that the Texas court’s decision that the prosecutor’s error did not
substantially and injuriously affect the verdict of guilt was not
an unreasonable application of federal law. The district court
reasoned:
Given the brevity of the comment, the
lack of evidence to support an acquittal and
the overwhelming evidence of guilt in this
case, it is not likely that the prejudicial
effect of the prosecution’s comment was
significant. It was merely a single comment
by the prosecution, and the trial court
promptly ordered the jury to disregard the
comment. The emphasis of the State’s case, as
well as the emphasis of the comment itself,
was on the strength of the evidence. The
prosecution did not rely on an inference of
guilt from Davis’s silence. To the contrary,
the great thrust of the prosecution’s case was
the strength of the evidence, including
evidence given by Davis himself in his
confession. There is virtually no evidence
that would have supported acquittal.
8
Davis v. Quarterman, No. 2:03-CV-001, at 15-16.
The district court held that Davis had failed to exhaust the
issue of the effect of the improper comment on the punishment phase
of his trial and, therefore, any claim regarding the punishment
phase was procedurally defaulted.1 The district court stated
further that, even if it were to consider the merits of the claim,
the prosecutor’s comment did not have a substantial and injurious
effect on the punishment phase. We now turn to consider the
clearly established federal law governing claims such as this, and
then consider whether the Texas courts’ resolution of Davis’s claim
is contrary to, or an unreasonable application of, that law.
B.
In Griffin v. California, the Supreme Court held “that the
Fifth Amendment, in its direct application to the Federal
Government and in its bearing on the States by reason of the
Fourteenth Amendment, forbids either comment by the prosecution on
the accused’s silence or instructions by the court that such
silence is evidence of guilt.” 380 U.S. 609, 615 (1965). In
Chapman v. California,
386 U.S. 18 (1967), the Court held that
Griffin error is subject to harmless-error analysis.
Id. at 25;
1
On appeal, Davis persists in asserting that the error also
affected the outcome of the punishment phase of his trial. The
district court’s grant of a COA is limited to the guilt-innocence
phase of trial. Accordingly, we will not consider Davis’s argument
that the prosecutor’s improper comment during closing argument at
the guilt-innocence phase affected the verdict at the punishment
phase. See Goodwin v. Johnson, 224 F.3d 450, 459 & n.6 (5th Cir.
2000).
9
see also United States v. Hasting, 461 U.S. 499, 505 (1983)
(holding that the court of appeals erred by asserting its
supervisory powers, and by not applying the harmless error
doctrine, in reviewing claim of Griffin error). In 1968, the Court
held that “comment on a defendant’s failure to testify cannot be
labeled harmless error in a case where such comment is extensive,
where an inference of guilt from silence is stressed to the jury as
a basis of conviction, and where there is evidence that could have
supported acquittal.” Anderson v.
Nelson, 390 U.S. at 523-24. In
Brecht v. Abrahamson,
507 U.S. 619 (1993), the Court held that in
habeas proceedings, the test for harmless error is “whether the
error ‘had substantial and injurious effect or influence in
determining the jury’s verdict.’”
Id. at 623 (quoting Kotteakos v.
United States,
328 U.S. 750, 776 (1946)).
The error of which Davis complains falls into the category of
trial error, which “‘occur[s] during the presentation of the case
to the jury,’ and is amenable to harmless-error analysis because it
‘may ... be quantitatively assessed in the context of other
evidence presented in order to determine [the effect it had on the
trial].’” Id. at 629 (quoting Arizona v. Fulminante,
499 U.S. 279,
307-08 (1991)). Accordingly, Griffin errors, such as the one
claimed by Davis, are reviewed for harmless error in the context of
the entire record. See United States v. Robinson,
485 U.S. 25, 33
(1988).
C.
10
As we have noted, the Texas Court of Criminal Appeals applied
Anderson v. Nelson, and concluded that the Griffin error in this
case was harmless, because the comment was not extensive, an
inference of guilt from silence was not stressed to the jury as a
basis of conviction, and there was no evidence that could have
supported acquittal. Based on our review of the entire record, we
are satisfied that the state court’s conclusion is neither contrary
to, nor an unreasonable application of, clearly established federal
law as determined by the Supreme Court of the United States.
During individual voir dire, each person who was selected to
serve on the jury was advised by the prosecutors that Davis had a
constitutional right not to testify and that his failure to testify
could not be considered as evidence of his guilt. All but one of
those jurors was questioned on voir dire by the prosecutor who made
the comments at issue.
At the close of all the evidence in the guilt-innocence phase,
the trial court instructed the jury, orally and in writing, that:
Our law provides that a defendant may testify
in his own behalf if he elects to do so.
This, however, is a privilege accorded a
defendant, and in the event he elects not to
testify, that fact cannot be taken as a
circumstance against him. In this case, the
defendant has elected not to testify, and you
are instructed that you cannot and you must
not refer or allude to that fact throughout
your deliberations, or take into consideration
for any purpose whatsoever as a circumstance
against the defendant.
11
The improper comment was an incidental statement in an
argument by the prosecution that focused on the strength of the
evidence against Davis.2 The trial court promptly sustained
defense counsel’s objection to the improper comment and instructed
the jury to disregard it. The prosecution did not urge the jury to
infer that Davis was guilty because he failed to testify. Instead,
the prosecution argued that Davis should be found guilty of capital
murder based on the strength of the evidence against him, which
included his confession. As the district court observed, and as we
have confirmed based on our review of the record, there is
virtually no evidence that would have supported acquittal. We
fully agree with the district court that, considering the brevity
of the comment, the very strong evidence of guilt, and the absence
of evidence that would have supported an acquittal, the improper
comment did not have a substantial and injurious effect or
influence in determining the jury’s verdict. Accordingly, the
state court did not unreasonably apply clearly established federal
law when it concluded that the error was harmless.
2
The State argues that the prosecutor’s comment was an invited
reply to the defense closing argument and therefore did not violate
the Fifth and Fourteenth Amendments. The Texas Court of Criminal
Appeals held, however, that the comment was improper, and that
“[t]he prosecutor’s statement in conjunction with his physical
actions was of such character that the jury would naturally and
necessarily take it as such.” Davis v. State, No. 73,458, at 4.
That conclusion is neither contrary to, nor an unreasonable
application of, clearly established federal law. Accordingly, we
defer to the state court’s conclusion that the challenged comment
violated the rule established in Griffin.
12
III.
For the foregoing reasons, the judgment of the district court
denying federal habeas relief is
AFFIRMED.
13
