Murderpedia



 

Juan Ignacio Blanco

  MALE murderers

index by country

index by name   A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

  FEMALE murderers

index by country

index by name   A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

 

 

 

David Junior BROWN

 
 
 
 
 

 

 

 

 


New name: Dawud Abdullah Muhammad
 
Classification: Murderer
Characteristics: Mutilator
Number of victims: 2
Date of murder: August 24, 1980
Date of birth: June 12, 1948
Victims profile: Shelly Diane Chalflinch, 26, and her daughter, Christine, 9
Method of murder: Stabbing with knife more than 100 times
Location: Moore County, North Carolina, USA
Status: Executed by lethal injection in North Carolina on November 19, 1999
 
 
 
 
 
 

David Junior Brown, who has since changed his name to Dawud Muhammad, stabbed a Moore County, NC woman and her daughter to death in 1980. 

Brown was convicted of killing Shelly Diane Chalflinch, who was 26, and her 9-year-old daughter, Christine.

They were found stabbed hundreds of times in their apartment in the old employees' quarters of the Pinehurst Hotel on Aug. 24, 1980. 

The evidence against Brown was overwhelming; his bloody palm print on Diane Chalflinch's bedroom wall, the trail of bloody foot prints leading from the Chalflinch's apartment to his, and his silver signet ring being found underneath Diane Chalflinch's liver.  

Brown said he may have run into Chalflinch, a secretary at the Pinehurst Resort and Country Club -- site of this year's U.S. Open -- in the community laundry room at the apartment house shortly before she was murdered.  "I could have in passing, I'm not sure," he said. "That question was put to me by Pinehurst police." 

Also, according to prosecutors, the murder weapon was a distinctive R.H. Forschner culinary knife similar to those Muhammad used in the hotel kitchen. 

A Union County jury convicted Brown of the murders and sentenced him to die in December 1980. 

Wes and Swannie Frye, the father and mother of Diane and grandparents of Christina, said they believe that Brown murdered their loved ones and they plan to witness the execution.  "You can't feel good about a death but I feel like it's fair in this case," Wes Frye said.  Frye said he thinks Brown was infatuated with his daughter -- a suggestion that was never developed during the trial. 

In a clemency hearing, prosecutors with the state Attorney General's Office showed the governor pieces of evidence, including photos of the crime scene and the victims who had been mutilated, a section of wall with blood on it, a partial bloody palm print later identified as Brown's and a ring belonging to Brown, which was discovered inside Diane Chalflinch's body, apparently slipping off his finger as he stabbed her. 

The print shows the faint partial whorls of a hand in blood.  Muhammad's lawyers have argued that the print could have been placed on the wall before the blood.  Nothing could have prepared James Wise for what he would encounter the morning he walked into the blood-soaked apartment where the murders occurred.

He was the Pinehurst police chief and was supposed to be on vacation that week. He remembers getting the call from his investigator.  "He told me this was a bad one," Wise said. "It was the most horrible crime scene I have ever seen in my 40 years of law enforcement. I will never forget it." 

The building where the murders occurred is now an apartment complex.  Wise remembers tracing the trail of bloody, bare foot prints from Chalflinch's apartment to Brown's ground floor apartment at the opposite end of the building. He saw blood on the door frame of Brown's apartment.

He said that large amounts of blood had been cleaned up in Brown's apartment, although investigators never proved it was the victim's blood. 

The next day, a medical examiner found a silver ring under Chalflinch's liver while doing an autopsy.  Wise said several witnesses identified it as Brown's ring.  A neighbor in the apartment building where Brown and the victims lived said he saw Brown wearing the ring hours before police said the killings occurred. 

Investigators found Brown's bloody palm print on the wall in Christine's bedroom.  "I just don't see how anyone, after looking at all of the evidence, can say that he is not guilty," Wise said, lowering his head, his voice dropping. "I know he did it. He knew what he was doing. He should pay the price for what he did. It is time for this to end." 

 
 

David Junior Brown, 51, 99-11-19, North Carolina

A prison guard wheeled a gurney carrying David Junior Brown into the death chamber at Central Prison Friday at 1:51 a.m.

As the gurney was lifted over a metal strip at the door into the chamber, Brown glanced into the small, darkened witness room and then closed his eyes as the gurney was placed in front of the old wooden chair used for executions by gas.

Among those watching were 4 family members of the woman and daughter he was convicted of killing 19 years ago, the former prosecutor who sought his death, Brown's daughter and her husband, Brown's 2 lawyers and 5 reporters.

The clock on the wall in the witness room ticked as the witnesses sat nearly motionless. The only light came from a single bulb on the back wall of the death chamber, a small room with 6 sides.

A beige curtain was pulled behind the gurney. 3 intravenous saline bags hung to Brown's right. 3 lines snaked through a slit in the curtain.

3 executioners stepped in behind the curtain awaiting Warden R.C. Lees order to proceed. A line went into each of Brown's arms. The 3rd went into an empty IV bag. None of the executioners would know which one was administering the lethal drug.

Brown was covered by a powder-blue hospital sheet. His head was propped on a pillow with a blue pillowcase. He wore his glasses and a black skullcap. He looked calm.

He began to say what seemed to be a prayer, repeating something over and over. The sound could not penetrate the double-paned window separating him from the 2 rows of witnesses. His mouth opened a little wider, his neck muscles straining a little more each time he spoke.

For a second, the faint hum of his chanting could be heard. He stopped. Inside the witness room, the clock ticked.

Brown opened his eyes for a few seconds, looking up at the ceiling. He closed them again and continued to pray and chant. He never opened his eyes again.

Brown was defiant to the end, maintaining that he was innocent of the stabbing deaths of 26-year-old Shelly Diane Chalflinch and her 9-year-old daughter, Christine, in Pinehurst in 1980. In the moments before he was rolled into the death chamber, Brown made a final statement to Lee.

"O Allah, OAllah, condemn and lay curse upon the killers of Dawud Abdullah Muhammed. Cursed be the people who did injustice to me and cursed be the people who heard this and were pleased with it."

Brown, who was 51, changed his name in prison after his conversion to Islam.

Lee entered the door at the back of the small witness room at 2 a.m., the scheduled time of execution. He announced in a steady, calm voice that he was going to check with state Correction Secretary Theodis Black, who was in Lee's office one floor below. A special phone on Lee's desk was connected to a small control room behind the death chamber.

If there were no further instructions, Lee said, he would order the execution to proceed.

At 2:01 a.m., Brown was injected with thiopental sodium to put him to sleep, followed by Pavulon, a strong muscle relaxer that causes the breathing to stop.

For several minutes, Brown's head swayed. He appeared to be singing, defying the effect of the 1st drug. He stopped. He was still as he fell asleep.

It was 2:07.

Browns breathing became labored. His body convulsed. His head rose off the pillow, rocking forward several times as if he were choking. Then he was still.

Brown's daughter, 24-year-old Toswayia Mosley of Fayetteville, began to cry. Sitting in the second row, she leaned to the right, peering between Larry Frye and Wes Frye on the front row, relatives of the Chalflinches.

At 2:09, Brown gasped, his muscles constricting. His body relaxed, and a tear rolled down his left cheek. His mouth gaped.

His breathing slowed. The clock ticked.

Mosley wept quietly. She leaned forward, putting her head into her hands. Her husband, Herbert, put his arm around her.

Joel Morris, a former State Bureau of Investigation agent, was seated on the other side of Mosley. He glanced at the clock. It was 2:12.

The muscles in Brown's neck began to spasm, the motion rippling down into his chest and stomach. It was 2:13. Brown lay still, his mouth open.

Mosley asked one of the 2 guards in the witness room to take her and her husband out. The room was quiet again except for the ticking of the clock.

Larry Frye of Norfolk, Va., the brother of Shelly Chalflinch, sat on the front row, flanked by former District Attorney Carroll Lowder and Frye's father, Wes Frye of Aberdeen. The Fryes and 2 other family members, Johnny Frye and Jimmy Chalflinch, stared straight ahead the entire time.

Around 2:16, Brown's heart stopped. His face turned blue.

A heart monitor, hidden from view in another room, had to show a flat line for 5 minutes before he could be pronounced dead.

The witnesses sat quietly, watching Brown. The clock ticked.

Bruce Cunningham of Southern Pines sat with his hands folded in his lap. Next to him, Henderson Hill of Charlotte, chewing on a toothpick, looked down. They were Brown's lawyers.

Jimmy Chalflinch of Carthage, former brother-in-law of Shelly Chalflinch, checked the clock at 2:18. 3 minutes later, Morris looked up at the clock.

The door off the left side of the chamber where Brown was brought in opened at 2:23. Lee stepped in and pulled a curtain over the window. The lights came on in the witness room.

Hill and Cunningham got up and left the room abruptly. The others stayed seated. No one spoke. Cunningham looked tired, his eyes bloodshot, as he got into the elevator outside the room. Hill looked disgusted.

In the witness room, Larry Frye put a hand on his father's shoulders and then shook hands with Johnny Frye and Jimmy Chalflinch.

At 2:25, Lee came back into the witness room and announced that the orders of the state for the execution of David Junior Brown had been carried out. Brown had been pronounced dead at 2:21 a.m. The witnesses left the room in silence.

 
 


 

Brown Waits for Execution While Governor Considers Clemency

By Estes Thompson, Associated Press Writer

Tuesday, November 16, 1999

RALEIGH (AP) -- David Junior Brown sat on North Carolina's death row Tuesday, awaiting execution later this week, while his friends and enemies met Gov. Jim Hunt to argue over clemency and whether Brown might be innocent.

Brown, 51, was sentenced to die for the 1980 stabbing deaths of Shelly Diane Chalflinch, 26, and her 9-year-old daughter, Christina, in their employee's apartment at Pinehurst Hotel. The victims were stabbed more than 100 times and Brown's silver signet ring was discovered under Ms. Chalflinch's liver.

Hunt met with prosecutors and the victims' relatives first, then saw lawyers representing Brown and religious leaders opposed to the execution. Those meetings are routine during executions.

Death penalty opponents have applied extra energy because they say evidence shows Brown might be innocent. The protesters have waved signs at Hunt, paraded in front of the executive mansion and held rallies and news conferences. His lawyers scheduled a rare prison news conference for Brown on Wednesday afternoon.

"It's because this is a question of innocence,'' said Chris Fitzsimon, a death penalty opponent and executive director of the Common Sense Foundation. "This is the first case since the death penalty has been reinstated that there is a question that the wrong man may be about to be executed.''

The U.S. Supreme Court has considered Brown's case three times, and it was reviewed by lower federal courts and a state court. Before the meetings with the governor Wednesday, the 4th U.S. Circuit Court of Appeals denied a request for a stay of execution and a new hearing.

"There is no new evidence,'' said the victim's brother, Larry Frye of Norfolk, Va. "There is no doubt in my mind whatsoever David Junior Brown did this murder and that it was premeditated.''

Evidence against Brown, who has changed his name to Dawud Abdullah Muhamed, includes the ring, a bloody palm print found on a wall in the Chalflinch apartment and a knife blade like the one Brown owned.

Ms. Chalflinch's father, Wes Frye, who still works at the hotel, said he has no doubt about Brown's guilt because he had harassed his daughter.

"David was infatuated with her,'' Frye said after meeting with Hunt. "I think he went there to the apartment that night to have his way and it backfired on him.''

The infatuation story was new to Brown's supporters, who have combed the court records.

Defense lawyers say another person killed Ms. Chalflinch and her daughter and point to evidence that someone else was in the apartment. They said there was no concrete proof that Brown was in the vicinity at the time of the murders. In addition, they said there's evidence that Ms. Chalflinch was seen alive at a time when police say she was dead. Lawyers also said Brown was too intoxicated to be capable of the killings.

"We believe this is the first time in North Carolina history when a person is this close to execution where a jury hasn't heard evidence of innocence,'' said one of his attorneys, Henderson Hill of Charlotte.

"This is a one-time event as far we can tell. The governor has the final opportunity for relief.''

 
 

Gov. Hunt denies clemency in Brown case

RALEIGH -- Gov. Jim Hunt has denied clemency in the death sentence of David Junior Brown, also known as Dawud Abdullah Muhammed, who is scheduled for execution on November 19.

Brown is on death row for the murders of Shelly Diane Chalflinch, and her nine-year-old daughter Christina S. Chalflinch, who were brutally and horribly stabbed to death in their Pinehurst apartment in August 1980.

The Governor gave careful consideration to all the facts surrounding Brown's case. Earlier this week, he met with those involved in the case, including family members of the victims, concerned citizens against the death penalty, and legal counsel for the defendant. State Sen. Larry Shaw and Sen. Frank Ballance and friends of Brown also met with Hunt regarding the case. Hunt also has extensively reviewed case files and studied appellate opinions in his review of the case.

"I have given careful and deliberate consideration to all of the facts in the case of David Junior Brown," Hunt said tonight. "A jury convicted Mr. Brown of these brutal crimes on the basis of the evidence. As the North Carolina Supreme Court wrote, the 'evidence of [Brown's] guilt was overwhelming. A ring identified as one previously worn by [Brown] was found in the body of Ms. Chalflinch. A bloody palm print lifted from the bedroom wall of the apartment was unquestionably identified as being that of [Brown]. A bloody and broken knife blade similar to ones owned by [Brown] and used by him in his work was found at the crime scene. In addition to the blood at the crime scene, blood was located at the entrance of [Brown's] apartment and throughout the apartment.'"

Hunt continued, "I would also point out in regard to issues concerning Brown's guilt and regarding the prosecution's conduct that this case has been reviewed by more than 80 judges and justices representing every state and federal court with jurisdiction, including the U.S. Supreme Court on several occasions. In almost two decades of appeals and judicial review, the courts consistently have upheld the verdict in this case. I, too, have thoroughly reviewed this case, and I find no reason to grant clemency."

 
 

David Junior Brown execution carried out Nov. 19, 1999

Death row inmate David Junior Brown was executed Friday, Nov. 19, 1999, shortly after 2 a.m. at Central Prison in Raleigh.

Brown entered the execution chamber at 1:50 a.m. on Nov. 19. Lethal drugs were administered at 2:01 a.m. Warden Robey Lee pronounced Brown dead at 2:21 a.m.

The body was transported to Wake Medical Center.

Brown was convicted Dec. 20, 1980, in Union County Superior Court for the murders of Shelly Diane Chalflinch and Christina Chalflinch. The crimes occurred in the Marriage Quarters (apartments) behind the Pinehurst Hotel in Pinehurst, North Carolina.

Final Statement of David Junior Brown (Dawud Abdullah Muhammad)

"'Oh Allah, O Allah, condemn and lay a curse upon the killers of Dawud Abdullah Muhammad. Cursed be the people who did this injustice to me and cursed be the people who heard this and were pleased with it.'

Every true believer is a a Hussain, Everywhere we go is Karbala, Everyday we live is Ash-Shura."

 
 

Victims: Shelly Chalflinch, Christina Chalflinch

Brown and Chalflinch were co-workers at the Pinehurst Resort and Country Club and lived in the same apartment complex behind the hotel. He said she was a friend, but her family said he was infatuated with her.

In the early morning of Aug. 25, 1980, prosecutors said, Brown followed Chalflinch up to her apartment and repeatedly stabbed her and her daughter. A latent palm print belonging to Brown was found on the wall of the apartment. Additionally, a distinctive signet ring of Brown and a knife from his kitchen were found near the bodies of the victims.

Diane Chalflinch's partially nude body had been stabbed more than 100 times, mutilated and partly disemboweled. An electrical cord was wrapped around the neck of Christina Chalflinch, her throat had been cut and her body had been stabbed and mutilated.

The bodies were found Aug. 26 after Diane Chalflinch didn't show up for work for two straight days, and co-workers called police.

 
 

David Junior BROWN (also known as Dawud Abdullah MUHAMMAD)

USA (NORTH CAROLINA) 

CCADP.org

December 1998

David Junior Brown, black, is scheduled to be executed by the state of North Carolina on 22 January 1999. He was sentenced to death in 1980 for the murder of Diane Chalflinch, white, and her nine-year-old daughter.

Amnesty International is not in a position to know whether Brown (who has no previous record of violent behavior is innocent or guilty of the murders. However, the police investigation appears to have been conducted solely on the basis that Brown was guilty and to have ignored all other possible suspects, including David Ray Martin (see below). While there is other evidence against Brown, most of it appears to be circumstantial and could be plausibly explained in other ways.

The trial was moved from the county where the crime took place because of inflammatory media coverage of the crime and public outrage at the brutal murders. Prior to the start of the trial, the defense attorneys requested funds to hire an investigator, and a delay in the start of the trial to allow them more time to prepare. The trial judge denied both requests. The trial took place before an all white jury.

Brown's defense lawyers requested to inspect the crime scene on four separate occasions before and during the trial but were denied access.

The time frame that Brown had to commit the murders appears totally unrealistic. The prosecution contended that Brown committed the murders on Monday 25 August 1980, sometime between 3 am, after he was observed in a hotel lobby, and 6 am, when he was recorded at his place of work.

At all other times, Brown was in the company of witnesses who could provide him with an alibi. However, the prosecution withheld evidence that a witness spoke to both the victims at 4:45am on the day of their murders, six miles from the crime scene. This would have left Brown with a mere one hour 'window' in which to commit the crime, clean himself of the victims' blood (the victims were stabbed over 100 times) and get to his place of work.

At trial, the defense presented evidence from two witnesses who at 11 pm on the Monday night drove near to the apartment building where the murders occurred (the bodies were discovered on the Tuesday morning). Both testified that they heard 'hollering' from the apartments, and one also heard a young girl's voice say 'leave her alone'. Shortly after, one of the witnesses saw a white male with shoulder length blond hair jump from the balcony adjacent to the Chalflinch apartment. Both witnesses reported this testimony to the police upon hearing of the murders.

The District Attorney (DA) prosecuting the case appears to have obstructed the defense attorneys finding any evidence that could have exonerated their client both before and during the trial. The trial judge found 'as a fact' that the DA instructed law enforcement investigators not to discuss evidence with the defense attorneys.

Another witness stated he had seen Diane Chalflinch park her car near her apartment at 11 pm on the Sunday. When he went to work at 5:15am the following day he noticed the car had been moved. The DA instructed the witness not to discuss this observation with the defense attorneys. The DA acknowledged during the trial that he repeatedly moved this witness to different hotels for the purpose of hiding the witness from defense counsel.

After the trial, defense lawyers located David Ray Martin, who admitted that he had arranged to go out with Diane Chalflinch on the weekend she was killed, but that she 'stood him up' and that he left a 'terse note' on her door. Martin, white, further acknowledged that he had shoulder length blond hair at that time. Martin has subsequently been convicted of another murder.

Successive appeal courts have refused to grant legal relief to David Brown, while continually acknowledging the faults in his trial. The Court  of Appeals for the 4th Circuit found that the DA's denial of pre-trial access to the crime scene and to witnesses was an error of a constitutional nature, but determined the error was 'harmless'. A judge for the District Court concluded that the conduct of the DA was  'inexcusable', 'based on personal animosity' (towards the defense attorney) and that the DA's gamesmanship was 'especially abhorrent when a person's life is at stake', but that it was also harmless (in that it would not have affected the outcome of the trial).

Amnesty International is alarmed at the attitudes of the appeal courts. To acknowledge that there was misconduct by the prosecuting authorities but that this somehow was 'harmless' is an absurd and deeply flawed judgment. It allows the prosecutor to 'win' the case by breaking the legal rules (thereby setting a dangerous precedent) and begs the question whether other  prosecutorial misconduct went undiscovered.

The execution of David Brown would clearly be in contravention of numerous international laws and standards, including Article 4 of the United Nations Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, which states: 'Capital punishment may be imposed only when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts.'

In North Carolina the governor has sole authority to grant clemency.

 
 

891 F.2d 490

58 USLW 2391

David Junior BROWN, Petitioner-Appellee,
v.
Gary DIXON, Warden, Central Prison, Respondent-Appellant.

David Junior BROWN, Petitioner-Appellant,
v.
Gary DIXON, Warden, Central Prison, Respondent-Appellee.

Nos. 88-4008, 88-4009.

United States Court of Appeals,
Fourth Circuit.

Argued April 12, 1989.
Decided Dec. 11, 1989.

Before ERVIN, Chief Judge, and RUSSELL and CHAPMAN, Circuit Judges.

ERVIN, Chief Judge:

David Junior Brown is a prisoner of the State of North Carolina under two sentences of death for first-degree murder. Brown advanced thirty challenges to his conviction and sentence in his 28 U.S.C. 2254 petition for a writ of habeas corpus. The district court denied relief from the conviction on seventeen grounds. The court ordered relief from sentence on three claims and left the remaining ten, all bearing on the penalty phase of Brown's bifurcated trial, unaddressed. Brown v. Rice, 693 F.Supp. 381 (W.D.N.C.1988). We reverse the portion of the order granting relief from sentence, affirm the portion denying relief from the conviction, and remand to allow the district court to consider the ten unaddressed arguments bearing on the sentence.

I.

A.

A jury of the North Carolina Superior Court for Union County found Brown guilty of the murders of Shelly Diane Chalflinch and her nine-year-old daughter, Christina. The same jury, after hearing testimony from several additional witnesses, returned sentences of death. The North Carolina Supreme Court found no merit to any of Brown's numerous assignments of error, and affirmed. State v. Brown, 306 N.C. 151, 293 S.E.2d 569, cert. denied, 459 U.S. 1080, 103 S.Ct. 503, 74 L.Ed.2d 642 (1982).

On July 16, 1984, Judge William H. Helms of the North Carolina Superior Court for Moore County denied Brown's motion for post-conviction relief.1 The motion asserted, among other things, that the prosecutor had improperly exercised his peremptory challenges to purge the jury of all persons with scruples about imposing a death sentence. The North Carolina and U.S. Supreme Courts declined to review the denial of collateral relief.2 State v. Brown, 316 N.C. 734, 345 S.E.2d 393 (denying Brown's petition for a writ of certiorari and remanding for a hearing on a new execution date), cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986).

Brown commenced this action on April 17, 1987. On April 21, the district court stayed Brown's execution, scheduled to occur on May 8, 1987. By an order and decision dated August 15, 1988, the court granted Brown relief from his sentence and denied relief from the conviction. Brown has appealed for relief from his conviction, and North Carolina seeks through its cross-appeal the reinstatement of Brown's death sentences.

B.

The North Carolina Supreme Court opinion on Brown's direct appeal gives a full account of the Chalflinch murders. We have no reason to recapitulate the lurid details here, though we shall in succeeding passages discuss the facts necessary to place the legal issues in context.

We must, however, describe two pre- and post-trial incidents not before presented in the published opinions. The first is the jury selection process. The second occurred only shortly before the oral argument of this appeal, when, according to affidavits from some of Brown's lawyers, a man approached the lawyers with a story that could bolster Brown's defense that someone else had committed the murders and that may accordingly implicate some of the claims challenging Brown's conviction.

We attend first to the details of jury selection. In the words of the district court, "[d]uring the jury selection in this case, [North Carolina] used the voir dire to determine if prospective jurors had any feelings about the death penalty and then excused by peremptory challenge 'all jurors who indicated the slightest uncertainty about the death penalty.' " Brown, 693 F.Supp. at 389 (emphasis in original) (quoting Brown v. North Carolina, 479 U.S. 940, 944, 107 S.Ct. 423, 426, 93 L.Ed.2d 373, 376 (1986) (Brennan, J., dissenting from denial of certiorari)). The district attorney excused by peremptory challenge all nine veniremen who expressed reservations about the death penalty.3

The district court's decision reports the State's concession "that none of these nine jurors could have been excused for cause because all ... said they could put their personal feelings aside and apply the law as instructed by the judge." 693 F.Supp. at 390. North Carolina, in its argument to us, suggests that the reservations of two of those excused may have warranted exclusions for cause, but concedes that the remaining seven were not so excludible.4 We shall, for purposes of this opinion, assume what the record supports, that North Carolina peremptorily challenged all nine solely because of their reservations about the death penalty.

The second incident bears on Brown's argument that the denial of his lawyers' requests to inspect the Chalflinches' Southern Pines, N.C., apartment, where the murders occurred, violated his rights.5 In affidavits given in March, 1989, two of Brown's lawyers reported their interview of a resident of Pinehurst, N.C., a town about three miles from Southern Pines. The interview followed a January 17, 1989 "chance meeting" of the resident, unnamed in any paper before us, and one of the lawyers. The affidavits summarize the exchanges that occurred at the meeting and a subsequent interview.

The resident is a white, blond-haired man. He was born and raised in Pinehurst, where his parents, wife, and children now live. In August 1980, the man, then residing outside North Carolina, was in Pinehurst visiting his family.6 At a party thrown by his sister, the man met Diane and Christina Chalflinch, and set up a date with Diane for a night three or four days later. The man arrived at the numbered apartment Diane had said was hers about 7:30 P.M. on the appointed day. No one answered his knocks, and he saw no cars parked by the apartment. Apparently persuaded that Diane had stood him up, the man wrote what he described as a "terse" note recording his presence and her absence, signed it with his full name, and wedged it in the apartment door. He left North Carolina the next morning, and soon after learned that the Chalflinches had been stabbed to death. The man states the murders took place thirty or forty hours after he left the Chalflinch apartment.

As the interview concluded, the man showed the lawyers a photograph of himself with shoulder-length hair, remarking "That's what I looked like back then." The man had never been questioned by any law enforcement officials investigating the murders, and had never before told his story to anyone involved in Brown's case. Brown's lawyers had no inkling of the man's connection to the case before the January meeting, and were unaware of any note such as the man described.

Several witnesses for the State and Brown testified at trial to having seen or heard of a white man with long blond hair jumping from a balcony adjoining the Chalflinches' apartment on the night of the murders.7 The man's identity and whereabouts after that night remained enigmas at trial. The State did not report finding a note or anything else suggesting the presence of a suspicious visitor to the Chalflinches' apartment.8 This intriguing tale was not presented to the district court, however, since it was unknown to Brown's lawyers until shortly before they presented oral argument in this court. This information remained largely undeveloped and unsubstantiated when the case was before us, and so we elect not to try to factor it into this decision.

II.

We turn now to the legal claims, beginning with those challenging the propriety of Brown's conviction.

A.

Brown's arguments against his conviction fall under two analytical heads. Brown first asserts that both North Carolina and his defense team denied him effective assistance of counsel, the State by refusing him pretrial access to witnesses and the crime scene--conduct that Brown argues also denied him due process--and his lawyers by presenting inconsistent defenses. Brown's second argument is that we should, at a minimum, remand to the district court for an evidentiary hearing on his charges that his prosecutor and the judge who handled his motion for post-conviction relief had improper ex parte contacts that could somehow invalidate his conviction.9

We agree with the district court's disposition of these issues given the state of the facts before it, and will treat them here but briefly. The court concluded that under the two-pronged test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1983), neither the presentation of inconsistent defenses--that Brown either did not commit the murders or did so while drunk--nor the State's interference with defense investigation deprived Brown of effective assistance of counsel. See United States v. Cronic, 466 U.S. 648, 662, 104 S.Ct. 2039, 2048, 80 L.Ed.2d 657 (1983) ("Only when ... circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel's actual performance at trial.").

The district court held also that the trial court and the District Attorney had not, by inhibiting Brown's investigation, committed a due process error requiring habeas relief because there was no reasonable probability that the investigation could have turned up anything that would have changed the outcome at trial. 693 F.Supp. at 387 (observing that "[h]ad [Brown's] counsel been allowed to view the crime scene he may have become slightly better informed, but what he would have found there would have been what the North Carolina Supreme Court described as overwhelming evidence of [Brown's] guilt.") (noting, among other damning evidence, bloody handprints, matching Brown's, on the wall of the apartment) (citation omitted); see United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1981).

We affirm the district court's holding as to defense counsel's election to introduce inconsistent defenses. Filtering from our analysis the "distorting effects of hindsight" and recognizing the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," we agree that the use of inconsistent defenses was objectively reasonable "under prevailing professional norms." Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2064-65; see also Elledge v. Dugger, 823 F.2d 1439, 1442-43 (11th Cir.1987).

Leaving out of the picture the affidavits of Brown's lawyers, and viewing the case solely as it appeared to the district court at the time of its hearing in the summer of 1987, we uphold the district court's conclusions that "there is no reasonable probability that [Brown's] inspection of the crime scene would have changed the outcome of the proceedings ...," 693 F.Supp. at 387, and that "the [State's] interference was not of a sufficient magnitude to give rise to the presumption that the adversarial process broke down," id. at 398.10

Our adoption of the district court's reasoning on the significance of the ex parte communication between Judge Helms and Assistant District Attorney James Webb concludes our review of the issues bearing on Brown's conviction.11 The court found real impropriety in a letter from Webb to Judge Helms suggesting two or three points that the judge might profitably include in his proposed order denying Brown's motion for post-conviction relief.12

Based on a perusal of the substance of the ex parte communication and its effect on Judge Helms's impartialitythe latter study informed by Judge Freeman's findings, the transcript of the hearing before Judge Helms, and a comparison of the proposed and final versions of Judge Helms's order--the district court decided that Brown "received a fair consideration of his claims and all the process that he was due ... the ex parte communications were innocuous and the nondisclosure harmless beyond a reasonable doubt." 693 F.Supp. at 386; see Rushen, 464 U.S. at 120-21, 104 S.Ct. at 456-57 (citation omitted). While we, like the district court, discourage the sort of obviously provocative intercourse at issue here, we find nothing to indicate a proceeding wrongly swayed in the State's favor.

For these reasons, the decision of the district court denying relief from Brown's convictions is affirmed.

B.

We turn now to the arguments against Brown's sentence, two of which persuaded the district court to grant relief. The court held that the district attorney had illegitimately exercised his peremptory challenges to produce a jury inclined toward the death penalty, and that Brown's lawyer had, by virtue of statements he included in his closing argument, given ineffective assistance. We disagree with the views of the law that underlie both holdings, and reverse.

1.

The district court agreed with Brown that North Carolina had violated his Sixth and Fourteenth Amendment rights to a fair trial by a panel of impartial jurors. The court synthesized Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1967), and Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1987), to hold "that it is unconstitutional for prosecutors to use peremptory challenges consistently to exclude potential jurors who express reservations about capital punishment so as to produce a jury that is uncommonly willing to condemn a man to death." 693 F.Supp. at 393. While we need not declare that Batson, the only case currently recognizing a federal constitutional basis to contest the exercise of peremptory challenges, is sui generis, much less are we willing to hold that Batson opens the door to the restriction on the prosecutor's historical prerogative that the district court would add to the law.13

The particular significance of Batson was its application in the context of the petit jury of the settled principles for assessing purposeful racial discrimination in the selection of the venire, principles the Court employed to hold that a criminal defendant could establish "a prima facie case of purposeful [racial] discrimination [in the selection of the petit jury] ... solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial." 476 U.S. at 96, 106 S.Ct. at 1722. The holding removed the "crippling burden of proof" defendants had borne under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), which many courts had interpreted to require proof of repeated racial exclusions in connection with a number of cases. 476 U.S. at 92, 106 S.Ct. at 1720.

Batson did not purport to introduce to the law its lodestar, that "the State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposefully excluded". Id. at 85, 106 S.Ct. at 1716. This rule had been plain since Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). Nor, critically for our decision today, did the Court intimate that Batson expanded that century-old rule.

Indeed, Batson emphasized that "a prosecutor ordinarily is entitled to exercise permitted peremptory challenges 'for any reason at all, as long as that reason is related to his view concerning the outcome' of the case to be tried" and that the Strauder intrusion on that entitlement was the only one at issue in Batson. 476 U.S. at 89, 106 S.Ct. at 1719 (quoting United States v. Robinson, 421 F.Supp. 467, 473 (D.Conn.1976), mandamus granted sub nom. United States v. Newman, 549 F.2d 240 (2d Cir.1977)).

The district court, however, read Batson to signify the broad proposition that "[w]here a constitutional right comes into conflict with the statutory right of peremptory challenges the constitutional right prevails." 693 F.Supp. at 393 (citing Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 2053-55, 95 L.Ed.2d 622 (1987)); see also Brown, 479 U.S. at 945, 107 S.Ct. at 427, 93 L.Ed.2d at 377 (Brennan, J., dissenting from denial of certiorari) ("The State ... misses the wider significance of Batson: that the broad discretion afforded prosecutors in the exercise of peremptory challenges may not be abused to accomplish any unconstitutional end."). Mating this conclusion with its earlier interpretation of Witherspoon that a state intrudes on a defendant's Sixth Amendment rights when, whether by peremptory challenge or a challenge for cause, it culls a jury of anyone with qualms about the death penalty, the court arrived at the holding we have previously described.

We have nothing but respect for the district court's willingness to safeguard the rights of criminal defendants, and particularly of those facing a death sentence. We disagree, however, that the Sixth and Fourteenth Amendments contain the right it would extend to Brown, and therefore hold that a state may use its peremptory challenges to purge a jury of veniremen not excludible for cause under Witherspoon.

Our reading of Batson alone compels our holding, for we believe the case does not suggest, and may not even authorize, the principle that courts must scrutinize every peremptory challenge to insure that it does not tread on any right of the defendant.14 Batson states in so many words that it views the peremptory challenge as, in all but one instance, truly peremptory. 476 U.S. at 89, 106 S.Ct. at 1719; see also BLACK'S LAW DICTIONARY 1023 (5th ed. 1979) (defining the peremptory challenge as "[t]he right to challenge a juror without assigning a reason for the challenge.").

The constitutional bases for the Batson holding provide Brown no ready lever to attack the composition of his sentencing jury, for the Court expressly eschewed any Sixth Amendment analysis in arriving at its holding, and the equal protection principles informing its decision have no application to Brown's case. 476 U.S. at 84-85 n. 4, 106 S.Ct. at 1716-17 n. 4.

We are unwilling to make the momentous conceptual leap Brown urges on us, a leap that would mean the practical elimination of the peremptory challenge as such. Neither Batson nor any other binding or instructive precedent supplies a writ for the conversion of every peremptory challenge to a challenge subject to judicial approval, and we have no confidence that such a conversion would better protect the principles our system of justice seeks to advance than does the current, and historic, arrangement.15

2.

The district court identified an independent basis for the vacation of Brown's sentence in the ineffective assistance Brown's lawyer gave during the penalty phase. The court found the lawyer, James E. Griffin, to have conceded to the jury both Brown's guilt of the murders and the existence of two aggravating circumstances.16 Griffin took each step without consulting Brown and despite Brown's continuing protestations of innocence.

The court found the concession of guilt, whether or not a wise and reasonable tactic under the circumstances, an abdication of Griffin's ethical and Sixth Amendment duties to advocate Brown's position and to consult with Brown before making important decisions.17 693 F.Supp. at 396. The concession of the aggravating circumstances without prior consultation, on the other hand, was to the district court "inexcusable" and not possibly a reasonable trial strategy.18

Employing the same Strickland-based analysis as controlled its treatment of the guilt-phase claims, the court held Griffin's maneuvers clear instances of ineffective assistance. We apply the same legal rubric, but hold contrarily that Griffin's decisions were, under the circumstances, within his prerogative to make without consultation and examples of reasonable advocacy.

We first consider Griffin's concessions of guilt. Our fundamental difference with the district court on this point lies in our conception of the jury's, and hence defense counsel's, function during the penalty phase. Recalling that the same jury sat during both phases of Brown's trial, we conceive of defense counsel as approaching the penalty phase necessarily cognizant that the jury is not, as at the beginning of the guilt phase, disposed in Brown's favor.

Each juror believes beyond a reasonable doubt that Brown stabbed to death and then mutilated the Chalflinches. There can, then, be no "concessions" of guilt in any meaningful sense because, despite what Brown may wish it to believe, the jury, and therefore the law, thinks him guilty. The cases the district court cites, treating unconsented admissions of guilt by counsel during the guilt phase, simply do not apply. Recognizing a verdict of guilty at the penalty phase of Brown's trial was not the sort of ipso facto proof of ineffective assistance that conceding guilt would likely have been at the guilt phase. It was simply a sensible concession to the realities of the penalty proceeding in a capital case.

We are left, then, to consider whether Griffin's recognition of the verdict was, under the circumstances, a reasonable trial strategy consistent with the adversarial character of the proceeding. We believe it was. Griffin could not have failed to recognize that Brown was in a hard place before the jury.19 See Elledge v. Dugger, 823 F.2d 1439, 1444 (11th Cir.1987), cert. denied, 485 U.S. 1014, 108 S.Ct. 1487, 99 L.Ed.2d 715 (1988) ("A reviewing court ... must be highly deferential in scrutinizing counsel's performance [at a capital sentencing hearing]; the tendency and temptation to second-guess is high and must be avoided.") (citing Strickland, 466 U.S. at 689, 104 S.Ct. at 2065). As far as the jury was concerned, Griffin's client was no longer the presumed-innocent Brown of the guilt phase, but the guilty Brown, Brown's own views on the matter notwithstanding. For Griffin to have ignored this cardinal reality would have been to ignore the essence of the adversarial penalty proceeding, in which the only issue is the fate of a guilty defendant.

We think it unlikely, though perhaps not impossible, that the jury seized upon Griffin's remarks about Brown's guilt as proof that the defense had consistently insulted its intelligence by offering evidence of Brown's innocence during the guilt phase, or that the remarks would cause the jury to remove from its consideration all of the guilt-phase testimony favorable to Brown. Cf. 693 F.Supp. at 381 ("To the extent that any of the jurors harbored some residual doubt about ... Brown's guilt, their suspicions were dispelled by counsel's closing argument.").

We cannot see how the tack the district court would apparently require Griffin to have followed--resting a penalty argument on Brown's professions of innocence--would have insulted the jury any less or convinced it to credit Brown's witnesses any more favorably than it had at the the guilt phase. See Rushing v. Butler, 868 F.2d 800, 805 (5th Cir.1989) (trial counsel not ineffective for remarks made in closing argument at guilt phase that seem concessions of guilt because remarks, in context, accurately reflected the record); Parks v. Brown, 840 F.2d 1496, 1509-10 (10th Cir.1987) (holding counsel's decision not to call a succession of character witnesses at a capital sentencing hearing a reasonable tactical decision, and noting that the exposure of defendant's life history may well have prejudiced him further in the eyes of the jury), rev'd on other grounds en banc, 860 F.2d 1545 (1988), cert. granted, --- U.S. ----, 109 S.Ct. 1930, 104 L.Ed.2d 402 (1989).

While the jury obviously did not see fit to reward Griffin's candor by treating his client leniently, Strickland mandates that we avoid analyzing the reasonableness of Griffin's performance in view of its lack of success. We certainly do not mean to recommend Griffin's course as the ideal, but hold it reasonable and acceptable in light of his Sixth Amendment duty effectively to assist Brown's interest.20

Griffin's statements that he thought the jury would find the two aggravating circumstances are also acceptable under the prevailing law, and for similar reasons. It seems more than reasonable, and indeed almost beyond doubt, that the jury would have found the circumstances existed whatever Griffin argued.21 Strickland, 466 U.S. at 695, 104 S.Ct. at 2068; cf. Magill v. Dugger, 824 F.2d 879, 888-90 (11th Cir.1987) (a reasonable probability existed that counsels' errors at the guilt and penalty phases, which prevented the jury from considering powerful mitigating evidence, affected the outcome of the sentencing proceeding).

We observe thus not to rest our decision on a harmless error ground but to suggest that, while Griffin might have done better to avoid the subject of aggravation entirely, his statements seem a reasonable device to gain jury support before proceeding to the arguments on mitigating circumstances that were the heart of Griffin's strategy. As we have said, the remarks could not, in light of the verdict, amount to an admission of guilt. Though Griffin must have known the statements could have tremendous consequences for Brown, this knowledge alone does not mean that Griffin had to obtain Brown's consent to remain within ethical and constitutional bounds. See Parks, 840 F.2d at 1509-10. Again, though we do not recommend Griffin's arguments as a model, we hold them not to reflect errors so serious as to have deprived Brown of counsel in a Sixth Amendment sense.22

III.

For the foregoing reasons, we affirm the portion of the district court's order denying Brown relief from conviction, reverse the portion of the order granting relief from sentence, and remand for proceedings on the sentencing claims not addressed by the district court in its first visit to the case.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

*****

1

Following the U.S. Supreme Court's 1982 denial of certiorari, the North Carolina Supreme Court stayed Brown's execution and, on March 29, 1984, ordered appointment of counsel to prepare the motion for appropriate relief

2

On June 15, 1985, Brown moved before North Carolina Superior Court Judge Freeman to reopen the hearing on his motion for appropriate relief, arguing that Judge Helms had improper ex parte contacts with the District Attorney's office. Judge Freeman denied the motion on September 19, 1985

3

N.C.Gen.Stat. 15A-1217(a)(2) (1988) grants the State fourteen peremptory challenges for each defendant in a capital case. Brown was the only defendant in his case

4

North Carolina notes, as did the district court, that four of the seven veniremen not excludible for cause voiced support for the death penalty, while the other three indicated their opposition. Excerpts from the voir dire examination of three of the supporters follow

Q: Mrs. Griffin, you have been sitting there and thinking about, if you need to, I don't know whether you have or not, do you believe in capital punishment?

A: I have been thinking about it, in most cases, yes sir.

Q: Would it be fair to say--I don't want to put words in your mouth, let me rephrase that, are you apprehensive about your role as you sit there at this time knowing the issues at hand?

A: No sir, I feel I could fairly judge on the issues of the courtroom.

* * *

Q: Mr. Caudle, as you sit there, as Mrs. Griffin said she had, have you been thinking about whether or not you believe in capital punishment?

A: Yes, sir.

Q: Do you or not?

A: In some cases.

Q: In some cases?

A: No answer.

Q: Would some of those cases involve the offense of murder in the first degree?

A: Yes.

* * *

Q: [Mrs. Smith] Do you believe in capital punishment in some cases?

A: Yes, sir, I do.

Q: Have you ever believed otherwise?

A: I suppose as--when I was much younger, I probably did. I have given a lot of thought, but I do believe in capital punishment, certain consideration.

Q: If the evidence and the law requires it, your consideration of that, I should put it, if under the evidence and the law it becomes your duty to seriously give consideration to returning with a decision that means the defendant will be sentenced to death, can you seriously and conscientiously do that if the evidence and law so warrants [sic]?

A: Yes, sir.

* * *

Mr. Lowder: The State will excuse with our thanks Mrs. Griffin, Mr. Caudle and Mrs. Smith.

5

The North Carolina Supreme Court agreed that the State had denied Brown "fundamental fairness and due process" by prohibiting him from inspecting the apartment, but found the error harmless beyond a reasonable doubt based on the record before it. 306 N.C. at 163-64, 293 S.E.2d at 578-79. The district court refused to vacate Brown's conviction on this claim, concluding that "there is no reasonable probability that defendant's inspection of the crime scene would have changed the outcome of the proceedings." 693 F.Supp. at 387. The court also agreed with the North Carolina Supreme Court that the State's error had been harmless, a standard the court perceived to be different from the Bagley inquiry into the probable effect of an inspection. 693 F.Supp. at 387

6

The man was not married in 1980

7

Two policemen testified that Raymond Pate, a maintenance man at the Chalflinches' complex, had reported seeing a long-haired blond white man jump from the Chalflinches' balcony. Brown is a black man. The policemen accorded Pate's story little significance because after viewing the area again, Pate decided the man had leapt from the balcony of the apartment next to the Chalflinches'

Brown called Pate after hearing the policemen's testimony; Pate reported the same story of a man jumping from the adjacent balcony. Pate was leaving the complex shortly after 11:00 P.M. on August 25, 1980, the night of the murders, when he heard "a bunch of hollering and carrying on" from the section of the complex that included the Chalflinch unit. Pate then heard what "sounded like an awful young girl to be at a party going on like that" saying "leave her alone, leave her alone." A couple of bumping sounds, then silence, followed. Shortly afterward, as Pate was driving out of the complex, he saw the man jump from the balcony.

8

Brown argued to the district court that the trial court had violated his due process rights by refusing him a recess to investigate the policemen's testimony, which Brown characterized as "newly discovered information." The district court rejected the argument, referring to the trial court's finding on voir dire examination of the officers that Pate's tale, the information Brown asserted was news to him, was if anything more familiar to Brown than to the State and that the District Attorney had not intentionally hidden anything from Brown. The district court itself observed that in any event, Brown had later called and thoroughly examined Pate about what he saw the night of the murders

9

We understand Brown's argument on this issue to concentrate on the conduct of the District Attorney and officials under his control. Brown has not appealed each adverse conclusion reached by the district court. Among the conclusions not challenged is that the trial court, like the District Attorney, erred harmlessly in refusing to allow Brown's lawyers access to the crime scene

10

Should the issue arise in proceedings on the new evidence, we note that North Carolina waived the exhaustion requirement before the district court in the interest of expedition. 693 F.Supp. at 385; see Sweezy v. Garrison, 694 F.2d 331 (4th Cir.1982)

11

The district court labeled this the "threshold" issue in its decision because Brown's success on it alone could prompt only a remand for a second State post-conviction relief proceeding rather than, like success on the other claims, the issuance of a writ ordering retrial or resentencing

12

We, like the district court, grant a presumption of correctness to the findings of fact Judge Freeman made following the hearing on Brown's motion to reopen the proceeding for appropriate relief. See 28 U.S.C. 2254(d). Webb had reviewed the proposed order after his administrative assistant, Pam Carriker, typed it at Judge Helms's request. Webb did not know personally of any conversations between Carriker and Judge Helms. Webb's suggestion was that Judge Helms include findings on four issues not addressed in the proposed order. There is no indication that Webb suggested what these findings should be

The district court found an appearance of impropriety, but nothing of constitutional significance, in Judge Helms's use of Webb's staff and incorporation of Webb's suggestions in the final order; the impropriety arose from the judge's failure to notify defense counsel of his course. See Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983); N.C.Code of Judicial Conduct, Canon 3A(4).

13

In a dictum to its opinion in State v. Robbins, 319 N.C. 465, 356 S.E.2d 279, 296-97 (1987), the North Carolina Supreme Court suggested its agreement with Justice O'Connor's statements that "Batson does not touch, indeed, it clearly reaffirms ... the ordinary rule that a prosecutor may exercise his peremptory strikes for any reason at all" and that a prosecutor may "take into account the concerns expressed about capital punishment by prospective jurors, or any other factor, in exercising peremptory challenges...." Brown v. North Carolina, 479 U.S. at 941, 107 S.Ct. at 424, 93 L.Ed.2d at 374 (O'Connor, J., concurring in denial of certiorari). Faced with the issue squarely in State v. Allen, 323 N.C. 208, 372 S.E.2d 855, 863 (1988), the court held that "it was not error under the Constitution of the United States [or the Constitution of North Carolina] for the prosecution to use its peremptory challenges to excuse veniremen who had qualms about the death penalty but were not excludable pursuant to Witherspoon."

14

We do not mean to intimate a cavalier attitude toward defendants' rights, but rather our sense that, to the extent any sort of balancing test applies in the area outside the ambit of Batson, the balance has long ago been struck. The peremptory challenge is "one means of assuring the selection of a qualified and unbiased jury." Batson, 476 U.S. at 91, 106 S.Ct. at 1720 (citing Swain, 380 U.S. at 221-22, 85 S.Ct. at 836-37). The challenge has deep historical roots, and the Court has noted the "long and widely held belief that peremptory challenge is a necessary part of trial by jury." Swain, 380 U.S. at 219, 85 S.Ct. at 835

While we assume that prosecutors and defense counsel may advance peremptory challenges for reasons that disparage the goals of other sorts of governmental endeavor, we also assume that the goal of jury impartiality may well require such choices. In any event, neither the U.S. Supreme Court nor any other tribunal, and no state legislature of which we are aware, has declared that the peremptory challenge is so serious a threat to other exalted principles that it cannot persist.

15

As we have said, Batson simply does not address whether the use of peremptory challenge is subject to Sixth Amendment analysis. Even if we were to grant or assume that Batson allows judicial scrutiny of peremptory challenges to rectify any possible Sixth Amendment problem, we cannot conclude that the district attorney's excusal of every venireman with scruples about the death penalty created such a problem. The district court saw it as a simple step from the Witherspoon holding that Illinois could not, consistent with the Sixth Amendment, carry out a death sentence imposed by a jury purged through challenges for cause of every venireman with any sort of scruple about capital punishment, to its conclusion that North Carolina could not enforce a death sentence rendered by a jury from which the prosecution had excluded scrupled veniremen by peremptory challenge. We do not see the step as simple, or indeed as consistent with Witherspoon and other pertinent precedent

While we will grant that certain passages in Witherspoon might, read in isolation, seem to signify a broad holding prohibiting state production, by whatever device, of "a jury uncommonly willing to condemn a man to die," 391 U.S. at 521, 88 S.Ct. at 1776, we must refer to the holding as the best emblem of the law. The Witherspoon holding is "that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." Id. at 522, 88 S.Ct. at 1777 (emphasis added). The Court clearly considered it significant that "the State of Illinois ... authorized the prosecution to exclude ... all who indicated that they had conscientious scruples against inflicting [capital punishment]." Id. at 514, 88 S.Ct. at 1772; see Lockhart v. McCree, 476 U.S. 162, 179, 106 S.Ct. 1758, 1768, 90 L.Ed.2d 137 (1986) (identifying Witherspoon's subject as "the [deliberately slanted] Illinois system"); Adams v. Texas, 448 U.S. 38, 53, 100 S.Ct. 2521, 2530, 65 L.Ed.2d 581 (1980) (describing the Witherspoon rationale as that "[t]he State ... [has] no valid interest in such a broad-based rule of exclusion, since '[a] man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him ... and can thus obey the oath he takes as a juror.' [Witherspoon, 391 U.S. at 519, 88 S.Ct. at 1775]."). While the Court had no occasion to consider the implications had the prosecution used the peremptory challenge to achieve its end, neither did the Court suggest that such action had the constitutional status of a statute allowing the prosecution in every case to strike as many veniremen--at least thirty-nine in Witherspoon--as had qualms about the death penalty.

We cannot conclude that Witherspoon's holding that a state may not categorically exclude veniremen who may, despite their scruples, be able to vote a death penalty signifies that a prosecutor cannot, through the exercise of a limited number of peremptory challenges, exclude some or all such veniremen in a particular case. See Gray, 481 U.S. at 671-72, 107 S.Ct. at 2058 (Powell, J., concurring) ("This Court's precedents do not suggest that the Witherspoon line of cases restricts the traditional rights of prosecutors and defense counsel to exercise their peremptory challenges in this manner," and noting that the Batson restriction is distinct, and perhaps unique); see also id. at 679, 107 S.Ct. at 2062 (Scalia, J., dissenting with Rehnquist, C.J., and White and O'Connor, JJ.) ("Prosecutors can use peremptory challenges for many reasons, some of which might well be constitutionally insufficient to support a legislative exclusion."); Brown, 479 U.S. at 941, 107 S.Ct. at 424, 93 L.Ed.2d at 374 (O'Connor, J., concurring in denial of certiorari) ("Permitting prosecutors to take into account the concerns expressed about capital punishment by prospective jurors ... in exercising peremptory challenges simply does not implicate the concerns expressed in Witherspoon."); Kordenbrock v. Scroggy, 680 F.Supp. 867, 911-12 (E.D.Ky.1988) ("Clearly, Batson is inapplicable to petitioner's [contention that the exclusion by peremptory challenge of jurors who expressed any qualms about capital punishment denied his Sixth, Eighth, and Fourteenth Amendment rights]."). Without a principled basis for such a consequential intrusion, we are unwilling to hold that Witherspoon, any more than Batson, is a command liberally to examine the exercise of the peremptory challenge.

16

Griffin, a Union County criminal defense lawyer, came on board on a defense motion for the appointment of counsel following a change of venue from Moore to Union County. Griffin, working with lead trial counsel James R. VanCamp, was originally brought in to assist with jury selection. Griffin attended the ten-day guilt phase of the trial, during or after which the defense team decided that Griffin ought to handle the penalty proceeding

17

Examples of what the district court believed concessions of guilt are as follows:

"We are talking about what is going to happen to the man who did it, and that's all we're talking about."

"He may have committed a horrible crime and he did commit two horrible crimes, but he is still a human being with a soul despite the blackness of the crime that this man has committed." (Emphasis added.)

"We don't know why he did it, and I agree ... [that] if you brought in a psychiatrist I seriously doubt that anyone could go into his mind and tell us why he did it."

The district court's opinion recites these and other passages in which Griffin adverts to or recognizes Brown's guilt. 693 F.Supp. at 395.

18

Under N.C.Gen.Stat. 15A-2000(b), the sentencing jury in a capital case bases its sentencing recommendation on the relative weight of aggravating and mitigating circumstances. The jury had submitted to it during the penalty phase two aggravating circumstances, the only two that seem to apply in light of the evidence adduced during the guilt phase. To the first, which asks whether "[t]he capital felony was especially heinous, atrocious, or cruel," Griffin argued "I think you're going to answer that issue 'yes'." To the second, which asks whether "[t]he murder for which the defendant stands convicted was part of a course of conduct in which the defendant engaged and which included the commission by the defendant of other crimes of violence against another person or persons," Griffin argued "Once again, I don't think there is any question you're going to answer it 'yes'."

19

The North Carolina Supreme Court observed that "[t]he [trial] record before us reveals two of the most bloodthirsty and brutal crimes which have ever been reviewed by this Court ... [T]his defendant has been convicted of stabbing to death a young mother and her child, with no apparent motive, and extensively mutilating their bodies." 306 N.C. at 186, 293 S.E.2d 569

20

While intimating nothing about the Sixth Amendment implications of a contrary conclusion, we also do not believe Griffin behaved unethically in remarking on Brown's guilt. The district court believed Griffin had violated ABA Code of Professional Responsibility Canon 7 (EC 7-24), which proscribes a lawyer's expression of his personal opinion as to an accused's guilt or innocence. 693 F.Supp. at 395. As we have said, we believe Griffin was not expressing a personal opinion, but rather recognizing the guilty verdict, and hence the legal fact of guilt. Had Griffin not kept the verdict and what it suggested the jury might believe about the enormity of Brown's crimes at all times in mind during his penalty argument, Brown would no doubt have claimed ineffective assistance for this reason. We do not mean by our last observation to condemn Brown or his lawyers for doing all they can to improve his situation; we simply want to emphasize the difficult position Griffin occupied, and hence the reasonableness of his decision to proceed as he did. Moreover, we note that Canon 7, Rule 7.1(B)(1) of the Rules of Professional Conduct of the North Carolina Bar Association, allows a lawyer "[w]here permissible, [to] exercise his professional judgment to waive or fail to assert a right or position of his client...." The Comment to the rule generally consigns technical and legal tactical issues to the lawyer's discretion, with the purposes of the representation and the right to consult on means left to the client. The distinction between the lawyer's and client's realms of discretion comports with our conclusion that Griffin's decision to proceed without consulting Brown was a reasonable tactic to effect Brown's purpose of avoiding the death sentence. See also Canon 6, Rule 6, Comment ("The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interest, and the client's overall requirements as to the character of the representation.... A lawyer has professional discretion too in determining the means by which a matter should be pursued.")

21

Of course, Griffin's remarks in no way obligated the jury to conclude as Griffin thought it would

22

Having decided that Brown's ineffective assistance and peremptory challenge arguments warranted a new sentencing trial, the district court declined to consider Brown's remaining ten arguments against his sentence. We are confident that, should Brown choose to present these claims on remand, the district court will give them proper attention

 
 

United States Court of Appeals
For the Fourth Circuit

No. 9722

David Junior Brown, Petitioner-Appellant,
v.
James B. French, Warden, Central Prison, Raleigh, North Carolina,
Respondent-Appellee

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Richard L. Voorhees, Chief District Judge. (CA-87-184-3-V)

Argued:  March 5, 1998
Decided:  June 10, 1998

Before MURNAGHAN and ERVIN, Circuit Judges, and MOON, United States District Judge for the Western District of Virginia, sitting by designation.

ERVIN, Circuit Judge:

David Junior Brown appeals the district court's denial of his petition for a writ of habeas corpus. Brown raises three issues on appeal. First, Brown argues that the prosecutor's failure to disclose allegedly material, exculpatory information violated his Fourteenth Amendment right to due process, as interpreted in Brady v. Maryland , 373 U.S. 83 (1963). Second, Brown argues that the cumulative effect of prosecutorial misconduct during his trial deprived him of his Sixth Amendment right to the effective assistance of counsel. Finally, Brown argues that his Eighth and Fourteenth Amendment rights were violated when the trial court allowed the admission, during the penalty phase, of Brown's purported confession to his cellmate when the State previously had not introduced this testimony at the guilt phase of the trial. Finding none of the claims meritorious, we affirm.

I.

David Brown worked as a chef in a hotel in Pinehurst, North Carolina. On the evening of Sunday, August 24, 1980, Brown was the disc jockey for a party at which he consumed a substantial amount of alcohol and took at least five amphetamines. Brown had a distinctive silver ring which he wore to this party, although he avers that he took it off while playing records about one-half hour after arriving at the party.

At approximately 11:30 p.m. on Sunday evening, Brown and a group of people left the party and went to a nightclub. Police officers later observed Brown walking on the highway near the nightclub at approximately 2:10 a.m. (now Monday morning). Brown was walking barefoot, staggering, and carrying his shoes. The police officers gave him a ride to his workplace, the Pinehurst Hotel, and left him at the kitchen entrance at approximately 2:45 a.m.

A supervisor at the hotel saw Brown making a phone call from the hotel's front office between 2:30 and 3:00 a.m. and Brown left the hotel at approximately 3:00 a.m. Brown testified that he arrived back at the hotel at 6:00 a.m., although no one can independently corroborate his whereabouts until approximately 7:00 a.m. A co-worker testified that she saw Brown at work at 7:00 a.m. with two band-aids on his left thumb, and that Brown was not wearing his distinctive silver ring. Brown told his co-worker that he was in pain and that he had cut his hand. A nurse at a nearby hospital testified that she saw Brown at the hospital on Monday night at 11:00 p.m., at which time he was recovering from surgery to repair cut tendons in his left hand.

The victims in this case were Shelly Diane Chalflinch, twenty-six, and her nine-year-old daughter, Christina. They lived in the same apartment complex as Brown, the Married Quarters Apartments in Pinehurst. At trial, the evidence showed that Diane Chalflinch was last seen alive at approximately 1:00 a.m., early Monday morning, walking toward the apartment complex's laundry room.

Brown developed testimony at an evidentiary hearing below that suggested Chalflinch may have been seen as late as 5:00 a.m. Chalflinch did not go to work on Monday morning and did not phone to explain her absence. Co-workers went to her apartment and knocked but heard no response. When Chalflinch did not arrive at work again on Tuesday morning, her co-workers phoned the police.

Police discovered a gruesome scene when they entered the Chalflinches' apartment on Tuesday morning. Both Diane and Christina had been repeatedly stabbed to death. Diane Chalflinch had approximately 100 stab and cut wounds. Christina's body also bore multiple stab wounds, including several in the head, and a brown electrical cord was wrapped around her neck. Blood was on the floor and the walls.

Several pieces of physical evidence connected Brown to the murders. Luminol and phenolphthalein tests, used to determine the presence of blood undetectable to the human eye, revealed prints of bare feet in the kitchen. Police discovered patterns of blood outside the Chalflinches' front door, on the steps leading down from their apartment, and on the concrete pad at the foot of the steps.

A fingerprint expert identified a latent palm print on Diane Chalflinch's bedroom wall as that of Brown's left palm print. At the door to Brown's apartment, visible bloodstains were found on the concrete stoop. The luminol test indicated the presence of blood on Brown's doorknob and bare footprints of blood all over his kitchen floor. There was a drop of blood on Brown's toolbox, which contained several knives, and on a pillow at the head of his bed.

In the Chalflinches' apartment, police found a bloody knife blade, broken at both ends, with the inscription "R. H. Forschner" printed on it. Brown's toolbox, seized by police from his apartment, contained a collection of knives bearing the inscription "R. H. Forschner." According to the evidence developed at the federal evidentiary hearing, Forschner knives are rare, imported, professional chef's knives which Brown used in his work as a cook at the hotel. Finally, the autopsy of Diane Chalflinch revealed Brown's distinctive silver ring underneath her liver.

In December 1980, Brown was tried and convicted of first-degree murder in the deaths of both victims. After a separate penalty phase, the jury returned with sentences of death for both murders. The North Carolina Supreme Court affirmed the convictions and sentences. State v. Brown , 293 S.E.2d 569 (N.C. 1982), cert. denied , 459 U.S. 1080 (1982). A North Carolina district court denied Brown's post-conviction motion for appropriate relief, and both the Supreme Court of North Carolina and the U.S. Supreme Court denied certiorari.

In April 1987, Brown filed a petition for writ of habeas corpus in federal court for the Western District of North Carolina. The district court denied Brown's claims of error from the guilt phase of his trial, granted the writ on three of his penalty phase claims, and declined to consider another ten penalty phase claims. A previous panel of this court affirmed the portion of the order denying Brown's guilt phase claims and reversed the portion of the order granting the writ as to his death sentences. Brown v. Dixon , 891 F.2d 490 (4th Cir. 1989). We remanded the case to the district court for consideration of the remaining ten claims in Brown's petition and of new evidence that had become available to Brown's counsel while the case was on appeal.

In 1996, the case was assigned to a magistrate judge who held an evidentiary hearing and considered the parties' summary judgment arguments. The magistrate judge recommended that the remaining claims in Brown's petition be denied and that judgment be entered for the State. The district court adopted the magistrate judge's recommendations and denied the writ. Brown then filed a motion to reconsider, treated by the district court as a Rule 59(e) motion to alter or amend the judgment, which was denied.

II.

The district court's denial of the writ, granting summary judgment to the State, is a final judgment over which this court has jurisdiction pursuant to 28 U.S.C. 1291 & 2253 (1994). Before addressing the merits of this case, we first decide two preliminary matters raised by the State.

First, the State argues that the standard of review governing all Brown's claims should be limited to instances of the district court's abuse of discretion. The State contends that Brown's notice of appeal appears to cover only the district court's denial of Brown's Rule 59(e) motion to amend the judgment, rendered on July 29, 1997, and not the underlying Order, rendered on May 2, 1997, that granted the State summary judgment. Our review of the denial of a Rule 59(e) motion, as opposed to the merits underlying the motion, is for an abuse of discretion. See Temkin v. Frederick County Comm'rs. , 945 F.2d 716, 724 (4th Cir. 1991).

The language of the notice is the following: Brown appeals "from the Order entered on July 29, 1997, denying Petitioner's motion for relief from the final judgment under Rule 59(e) and reaffirming the May 2, 1997, Order dismissing a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. 2254, and each and every part of that order." J.A. at 710.

Every circuit court to address the question has held that designation of a postjudgment motion in the notice of appeal is adequate to support a review of the final judgment when the intent to do so is clear. See Moore's Federal Practice 303.21[3][c][vii] at n.61 (3d ed. 1998) (citing cases). We believe that an intent to appeal the underlying final judgment is clear from the language in Brown's notice. This is especially so considering that the courts of appeal "should be liberal in passing on the sufficiency of a notice of appeal." Gunther v. E.I. du Pont de Nemours & Co. , 255 F.2d 710, 717 (4th Cir. 1958). Given this construction of the notice requirement, we find that the language in the notice of appeal indicates an intent to appeal the district court's summary judgment order of May 2. Accordingly, we review Brown's legal arguments, and mixed questions of law and fact, de novo . Savino v. Murray , 82 F.3d 593, 598 (4th Cir. 1996).

Second, the State relies on the same "notice argument" in a motion to dismiss Brown's claim regarding the penalty phase testimony of Brown's cellmate. The State argues that this claim was not included in Brown's Rule 59(e) motion and therefore we lack jurisdiction to review it. See Gunther , 255 F.2d at 717-18 (holding that jurisdiction of the appellate court is determined by timeliness and specific terms of the notice of appeal). For the reasons articulated above, however, we believe that Brown's notice evidences a clear intent to appeal the May 2 Order, and that the State is not prejudiced by allowing Brown to proceed with his argument. Accordingly, we deny the State's motion to dismiss Brown's argument for lack of jurisdiction.

III.

A.

Brown claims that the prosecutor's efforts to withhold and conceal information from the defense deprived him of his right to due process of law. In order to succeed on this claim, Brown must meet the standard articulated by the Court in Brady v. Maryland , 373 U.S. 83 (1963), and its progeny. Under Brady , the government violates a defendant's constitutional right to due process when it withholds material, exculpatory evidence from the defense. See Brady , 373 U.S. at 83 ; Hoke v. Netherland , 92 F.2d 1350, 1356 (4th Cir. 1996). Evidence is "material" only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Hoke , 92 F.3d at 1356 (quoting United States v. Bagley , 473 U.S. 667, 682 (1985)).

Brown alleges three instances in which the prosecutor withheld or attempted to conceal material, exculpatory information from the defense. Our review of these contentions, however, demonstrates that in none of these cases was Brown deprived of information that would have yielded a different result at his trial. First, Brown points to Willie Squires, a store-owner for whom Diane Chalflinch had previously worked, who testified at the evidentiary hearing that Diane and her daughter were in his store, in the company of a large woman, in the early morning hours of Monday, August 25, between 4:30 and 4:45 a.m. Prior to trial, Squires had spoken to police officers, but that information was withheld from Brown's trial counsel. Squires' testimony at the evidentiary hearing, however, was contradicted by the State's witness, John Henry Brown.

Brown presented compelling testimony that Squires could not have been correct that the Chalflinches were in the store at 4:30 a.m. on Monday morning; rather, John Henry Brown testified that the Chalflinches were in the store early on Sunday morning, around 4:30 or 4:45 a.m. But even if we credit Squires' testimony, it only reduces the time frame in which David Brown could have killed the victims to between 5:00 and 6:00 a.m., a highly plausible theory because the apartments are a short walk from the hotel where Brown worked. See J.A. at 574-75.

Second, Brown mentions David Martin, who apparently had a date with Diane Chalflinch for Saturday, August 23, and left a "terse note" on her door when she stood him up. Brown did not present this evidence at trial and he contends that had the police conducted an investigation, it would have supported the testimony of Raymond Pate (who did testify at trial) that he saw a blond, long-haired man jumping from a second-floor apartment at the Marriage Quarters on Monday afternoon, August 25. Apparently, David Martin had long, blond hair during this time period.

The State points out, however, that David Martin was seen in Macon, Georgia, where he attended law school, during the time the murders could have taken place, and there is no reason to suspect that he was the perpetrator of these crimes. Also, based on Pate's testimony at trial, the "Martin note" provides no support for a theory that a blond, long-haired man was the murderer. On Monday afternoon, Pate saw a man jumping from a second-floor apartment that was at the opposite end of the complex from the Chalflinches' apartment. Pate did not claim to have seen anyone jumping from the balcony of the Chalflinches' apartment, and the jury obviously disregarded the defense's theory at trial that the blond, long-haired man was involved in the crimes. That David Martin had long, blond hair and left a note for Diane Chalflinch the day before the murder may be coincidental, but it does not undermine confidence in the outcome of the trial.

Third, Brown points to evidence that the prosecutor deliberately moved one witness, Clarence Harding, from one hotel to another during trial in order to keep him away from defense counsel. Brown also claims that the prosecutor specifically instructed Harding not to talk to defense counsel. Brown's counsel sought to question Harding about the defense theory that Chalflinch's car may have been moved during the day on Monday, August 25.

The State points out, however, that the defense at trial included testimony, from Pate rather than Harding, that Chalflinch's car may have been moved during Monday afternoon. Because the evidence which the defense would have received from having unfettered access to Harding would not have provided any additional exculpatory information that was not otherwise before the jury at trial, the prosecutor's conduct does not undermine confidence in the outcome of this trial.

Brown frequently cites to Kyles v. Whitley , 514 U.S. 419 (1995), in support of his argument. In Kyles , the Supreme Court held that the prosecutor's withholding of certain evidence regarding its witnesses at trial sufficiently undermined confidence in the outcome of the trial to find that the suppressed evidence was "material." Kyles is far different from Brown's case, however, since in Kyles "the essence of the State's case was the testimony of eyewitnesses, who identified Kyles as [the] killer." Id. at 441. The Court relied on the fact that apart from the testimony of eyewitnesses, "the physical evidence . . . would, by the State's own admission, hardly have amounted to overwhelming proof that Kyles was the murderer." Id. at 451.

The evidence in this case is completely different. While Brown argues the allegedly exculpatory value of the evidence developed at the evidentiary hearing, he cannot account for the overwhelming physical evidence tying him to the crime: the trail of blood leading from the Chalflinches' apartment to his own, the distinctive knife used in the crime, and his ring found underneath the victim's liver. The testimony from the evidentiary hearing does not cast doubt on the finding of guilt given that the overwhelming physical evidence inculpates Brown as the perpetrator of these crimes.

Brown is surely correct that the prosecutor in this case unethically and improperly withheld evidence from the defense. Brown's strongest argument for relief is based on the premise that the prosecutor's unethical behavior should not go unpunished, and that granting Brown a writ of habeas corpus might serve as the prosecutor's appropriate punishment. But however reprehensible we may find the actions of the prosecutor, the focus of a Brady claim is not on him, but rather on the character of the evidence that he has withheld. The Supreme Court made this point clear in United States v. Agurs :

Nor do we believe the constitutional obligation is measured by the moral culpability, or the willfulness, of the prosecutor. . . . If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.

United States v. Agurs , 427 U.S. 97, 110 (1976) (footnote omitted).

Considering the evidence which Brown could have introduced at trial, had he known of its existence, and disregarding the bad faith of the prosecutor in denying him access to it, we believe it is not "material" evidence -- it is not reasonably probable that had the evidence been introduced at trial, it would have resulted in a different verdict. Brown's Brady claim, therefore, must fail.

B.

Brown argues that several actions by the prosecutor deprived him of his Sixth Amendment right to the effective assistance of counsel. This is not a typical Sixth Amendment ineffective assistance of counsel claim that falls under the familiar Strickland v. Washington analysis. In a typical Sixth Amendment claim, a habeas petitioner must demonstrate specific errors of his trial counsel that undermine the reliability of a guilty verdict or a sentence of death. Brown cannot make such a claim because his trial counsel, James Van Camp, performed at an extremely high level of competence, and it is undisputed that Van Camp is the most skilled and experienced capital defense lawyer in his part of the state. J.A. at 548. Rather, Brown argues that the misconduct of the prosecutor rendered his trial so fundamentally unfair that it was essentially impossible for any counsel to render effective assistance on his behalf.

Brown relies on the framework of the Supreme Court's decision in United States v. Cronic , 466 U.S. 648 (1984). In Cronic , the Court observed that "there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt." Id. at 659 n.26. An exception exists, however, "on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial." Id. at 659-60 (citing Powell v. Alabama , 287 U.S. 45 (1932)).

The Court suggested that the complete denial of counsel and counsel that actively represented conflicting interests would be examples of such occasions. See Cronic , 466 U.S. at 659 & 661 n.28. This is an extremely high showing for a criminal defendant to make and, in Cronic itself, the Court held that although trial counsel in Cronic's mail fraud prosecution was given only 25 days to prepare for trial, counsel was inexperienced in criminal matters, the charges against Cronic were complex, and that some witnesses were not easily accessible, this set of events did not constitute a Sixth Amendment violation absent a showing of actual ineffectiveness.

Apart from evidence of the prosecutor's misconduct that was developed at the evidentiary hearing on remand, we know that the prosecutor in this case also denied defense counsel's request to have access to, and be allowed to inspect, the crime scene. In our previous decision, we rejected Brown's argument that the prosecutor's refusal to allow access to the crime scene rose to the level of constitutional error. See Brown , 891 F.2d at 495. We suggested, however, that Brown might develop testimony at the evidentiary hearing that could cause the district court to make a different determination as to the prejudice occasioned by the prosecutor's misconduct. See Brown , 891 F.2d at 495 & 495 n.10 (finding no error, but "leaving out of the picture" any new evidence that could be developed). Brown argues in this appeal that we should reconsider our previous ruling in light of the new evidence that he developed in the evidentiary hearing.

It is undisputed that the prosecutor denied Brown's counsel access to the crime scene and that had such denial carried with it a reasonable probability of a different outcome in the proceedings, it would have been error requiring a new trial. See Brown , 293 S.E.2d at 578 (finding, under the particular facts of this case, "a denial of fundamental fairness and due process for [Brown] to be denied . . . a limited inspection of the premises of the crime scene" but holding such error harmless because of the "overwhelming evidence of [Brown]'s guilt"). However, as we discussed above, see supra section III-A, the testimony developed at the evidentiary hearing (regarding the testimony of Squires, Pate, and Harding) does not rise to the level of a constitutional violation, and it therefore provides no occasion for us to reconsider our previous ruling in this case.

We previously held that the denial of access to the crime scene was not prejudice "of a sufficient magnitude to give rise to the presumption that the adversarial process broke down." Brown , 891 F.2d at 495 (quotation omitted). Even considering this issue together with the issues raised in Brown's first argument, see supra section III-A, the alleged errors must still meet the high threshold that it is "reasonably probable" that introduction of the evidence withheld by the prosecutor would have changed the result of the trial. See Kyles , 514 U.S. at 434 .

Considering all of Brown's allegations in toto , we believe the physical evidence of his guilt (his ring, the palmprint on the bedroom wall, the blood in his apartment, and the distinctive inscription of the knife) is too overwhelming to say that introduction of the newly discovered evidence, together with evidence that might have been obtained by defense counsel viewing the crime scene, would have changed the outcome of either the guilt or penalty phases of Brown's trial.

C.

At the penalty phase of the trial, the State called Brown's pre-trial cellmate, Roy Brown, to testify that David Brown had confessed to him in their cell that he had committed the murders. Brown, the appellant, claims that allowing the State to introduce this confession at the penalty phase, when it did not introduce it during the guilt phase, violated his rights under the Eighth and Fourteenth Amendments.

The North Carolina Supreme Court rejected this claim on direct appeal. The court held that the confession was probative evidence to rebut the evidence submitted by Brown at the guilt phase of the trial that would support mitigating circumstances. See Brown , 293 S.E.2d at 587-88. In his brief, Brown cites no case to support his argument that allowing this testimony at the penalty phase violated his right to due process. Indeed, precedent would suggest that admission of his confession did not violate his right to due process:

[T]he Constitution does not prohibit consideration at the sentencing phase of information not directly related to either statutory aggravating or statutory mitigating factors, as long as that information is relevant to the character of the defendant or the circumstances of the crime.

Barclay v. Florida , 463 U.S. 939, 967 (Stevens, J., concurring).

The lack of precedent to support Brown's claim makes it clear that even if we agreed with Brown that admission of his confession during the penalty phase violated his right to due process, such a decision would be a "new rule" that is forbidden by Teague . See Teague v. Lane , 489 U.S. 288 (1989). Regardless of the merits of the claim, the State is correct that the claim is barred by Teague and Brown offers no argument, nor can he, that his proposed rule would fall within one of the two Teague exceptions. See Teague , 489 U.S. at 307 -10.

IV.

For the reasons articulated above, the district court correctly denied Brown's petition for a writ of habeas corpus. The judgment is therefore affirmed.

AFFIRMED

 

 

 
 
 
 
home last updates contact