Filed: Jan. 13, 2012
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7417 CLINTON SMITH, Petitioner - Appellant, v. GERALD J. BRANKER, Administrator, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:09-hc-02082-D) Submitted: October 20, 2011 Decided: January 13, 2012 Before KING, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Malcolm Ray Hunter, Jr
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7417 CLINTON SMITH, Petitioner - Appellant, v. GERALD J. BRANKER, Administrator, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:09-hc-02082-D) Submitted: October 20, 2011 Decided: January 13, 2012 Before KING, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Malcolm Ray Hunter, Jr...
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7417
CLINTON SMITH,
Petitioner - Appellant,
v.
GERALD J. BRANKER, Administrator,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:09-hc-02082-D)
Submitted: October 20, 2011 Decided: January 13, 2012
Before KING, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Malcolm Ray Hunter, Jr., David Weiss, CENTER FOR DEATH PENALTY
LITIGATION, Durham, North Carolina, for Appellant. Clarence Joe
DelForge, III, Assistant Attorney General, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clinton Cebert Smith appeals the district court’s
dismissal of his petition for a writ of habeas corpus under 28
U.S.C. § 2254 (2006). The facts underlying Smith’s convictions
have been exhaustively recounted in the North Carolina courts.
See, e.g., State v. Smith, 524 S.E.2d 28, 33-36 (N.C. 2000). In
brief, Smith’s ex-girlfriend, Sylvia Cotton, and their three
children were poisoned with Di-Syston, a lethal organophosphate
pesticide, in January 1996. One of the children, Britteny,
died; Cotton and the other two children were hospitalized but
eventually recovered. Smith was later convicted by a North
Carolina jury of one count of first-degree murder and three
counts of attempted first-degree murder. Although Smith
initially received a capital sentence, it was reduced to life
imprisonment after a state court determined that he is mentally
retarded.
Following his convictions, Smith filed a motion for
appropriate relief (“MAR”) in state court, alleging, in
pertinent part, that the State had violated Brady v. Maryland,
373 U.S. 83 (1963), and its progeny by failing to disclose the
existence of a letter written by Dr. Darrell Sumner, a
toxicologist whom the prosecution had consulted during its
investigation of the case against Smith. The state MAR court
rejected Smith’s Brady claim, and the Court of Appeals of North
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Carolina denied certiorari. Smith then filed his § 2254
petition for federal habeas corpus relief, which the district
court dismissed. We granted a certificate of appealability,
directing briefing on the issue of whether the State violated
Brady and Giglio v. United States, 405 U.S. 150 (1972), in
failing to disclose Dr. Sumner’s letter to the defense. We now
affirm.
This court reviews de novo a district court’s denial
of habeas corpus relief on the basis of a state court record.
See Tucker v. Ozmint, 350 F.3d 433, 438 (4th Cir. 2003).
Nevertheless, where the state court has adjudicated a
petitioner’s claim on the merits, the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) provides that a
federal court may grant a habeas petition only if the state
court’s adjudication “(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) (2006).
In addressing Smith’s Brady claim, the state MAR court
correctly recognized:
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“There are three components of a true Brady violation:
The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because
it is impeaching; that evidence must have been
suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.”
State v. Smith, No. 96-CRS-948 to -51, slip op. at 3 (N.C.
Super. Ct. June 19, 2002) (the “MAR Decision”) (quoting
Strickler v. Greene, 527 U.S. 263, 281 (1999)). That is,
evidence is favorable not only when it would tend to exculpate
the accused, but also when it can be used to impeach the
prosecution’s witnesses. See United States v. Bagley,
473 U.S.
667, 676 (1985); United States v. Trevino,
89 F.3d 187, 189 (4th
Cir. 1996). Evidence tending to impeach a witness for the State
must be disclosed to the defendant if known to the prosecution.
See
Giglio, 405 U.S. at 153-55. Favorable evidence is material
when “there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding
would have been different.” Kyles v. Whitley,
514 U.S. 419,
433-34 (1995) (internal quotation marks omitted). A reasonable
probability is one sufficient “to undermine confidence in the
verdict.”
Id. at 435.
The letter that is the genesis of Smith’s Brady claim
was addressed to the manufacturer of Di-Syston, and a copy was
sent to the prosecutor’s office. In it, Dr. Sumner identified
four areas of concern with the prosecution’s theory that Smith
4
had introduced the pesticide to his victims by dissolving it in
some Kool-Aid that they later drank. Dr. Sumner first observed
that “[t]he time lapsed between ingestion and onset of symptoms
seems unusually long.” Second, he queried whether Di-Syston is
soluble enough in water to produce a lethal dose in only “a
couple of swallows.” Third, he questioned whether the “tissue
levels” recorded in Britteny’s autopsy were sufficient to cause
her death. And fourth, he wondered why the autopsy report
omitted certain data pertaining to “acetylcholinesterase
determinations.”
In this appeal, Smith declines to pursue any argument
with respect to the third and fourth concerns outlined in Dr.
Sumner’s letter. In fact, Smith concedes that Britteny’s death
was caused by Di-Syston poisoning. Nevertheless, Smith contends
that, if he had known of Dr. Sumner’s hesitations with respect
to the time lapse and solubility issues identified in his
letter, Smith would have pursued those issues more assiduously
and hired an additional expert to further scrutinize them. In
essence, Smith contends that he would have been able to raise
enough uncertainty about precisely how the pesticide was
introduced to the victims to support a theory that the
poisonings were accidental. As a result, claims Smith, there is
a reasonable probability that, had Dr. Sumner’s letter been
5
disclosed to the defense, the jury would have returned verdicts
of not guilty.
Having thoroughly reviewed the record and the parties’
briefs, however, we cannot say that the state MAR court’s
adjudication of Smith’s Brady claim resulted in a decision that
was contrary to, or involved an unreasonable application of,
Supreme Court precedent, or that was based on an unreasonable
determination of the facts. At bottom, the State was under no
obligation to prove that Smith sprinkled Di-Syston into Kool-Aid
as opposed to some other medium. On the contrary, the State
needed only to prove that Smith acted with malice and with
premeditation and deliberation. See State v. Coble, 527 S.E.2d
45, 46 (N.C. 2000). Given that Smith concedes that Di-Syston
killed Britteny, Dr. Sumner’s letter is material for Brady
purposes only if further specificity about the particular
carrier for the pesticide could implicate a third party or show
that the victims were poisoned accidentally. Smith argues the
latter, contending that, if the State failed to prove
definitively the precise medium by which the Di-Syston was
introduced to the victims, the jury could have concluded that
the pesticide may have been introduced accidentally.
Nevertheless, Smith never identifies precisely what type of
accident he envisions as plausible. Indeed, we agree with the
state MAR court that the evidence that Smith introduced the
6
pesticide into Cotton’s home for the express purpose of
perpetrating lethal harm is “overwhelming,” see MAR Decision 19,
regardless of any residual lack of clarity regarding the
particular medium by which the pesticide was introduced to the
victims.
At the very least, it was certainly within the bounds
of reason for the state MAR court to conclude that the
nondisclosure of Dr. Sumner’s letter did not deprive Smith of a
verdict that is worthy of confidence. See Kyles, 514 U.S. at
435. Accordingly, we affirm the district court. We deny
Smith’s pending motion to appoint counsel. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument will not aid the decisional process.
AFFIRMED
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