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
They were found
stabbed hundreds of times in their apartment in the old employees'
quarters of the Pinehurst Hotel on Aug. 24, 1980.
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
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
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.
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
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
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
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
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
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.
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.
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.
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.''
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.
father, Wes Frye, who still works at the hotel, said he has no doubt
about Brown's guilt because he had harassed his daughter.
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.''
story was new to Brown's supporters, who have combed the court
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.
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
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
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
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."
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
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
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,
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.
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)
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
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,
Gary DIXON, Warden, Central Prison, Respondent-Appellant.
David Junior BROWN, Petitioner-Appellant,
Gary DIXON, Warden, Central Prison, Respondent-Appellee.
Nos. 88-4008, 88-4009.
United States Court of Appeals,
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.
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.
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.
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
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.
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.
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.
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. 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.
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.
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.
We turn now to the legal
claims, beginning with those challenging the propriety of
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
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
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
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.
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.
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
For these reasons, the
decision of the district court denying relief from Brown's
convictions is affirmed.
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.
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.
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
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
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.
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
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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.
States Court of Appeals
For the Fourth Circuit
Junior Brown, Petitioner-Appellant,
James B. French, Warden,
Central Prison, Raleigh,
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)
March 5, 1998
Decided: June 10, 1998
MURNAGHAN and ERVIN, Circuit
Judges, and MOON, United
States District Judge for
the Western District of
Virginia, sitting by
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,
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
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.
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.
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.
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
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.
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.
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.
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.
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
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
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
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
Forschner knives are rare,
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
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
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
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.
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.
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
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.
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[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.
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.
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
right to due process when it
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)).
alleges three instances in
which the prosecutor
withheld or attempted to
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
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.
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.
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
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.
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
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
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.
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
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
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
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
evidence inculpates Brown as
the perpetrator of these
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
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 :
do we believe the
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
States v. Agurs , 427
U.S. 97, 110 (1976) (footnote
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
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
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
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)).
suggested that the complete
denial of counsel and
counsel that actively
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.
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.
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
and it therefore provides no
occasion for us to
reconsider our previous
ruling in this case.
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
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.
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.
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
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
Constitution does not
at the sentencing phase
of information not
directly related to
aggravating or statutory
mitigating factors, as
long as that information
is relevant to the
character of the
defendant or the
circumstances of the
Barclay v. Florida , 463
U.S. 939, 967 (Stevens, J.,
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
See Teague , 489 U.S. at
reasons articulated above,
the district court correctly
denied Brown's petition for
a writ of habeas corpus. The
judgment is therefore