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

 

 

 
 

Gary Leon BROWN

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: May 26, 1996
Date of arrest: June 5, 1996
Date of birth: July 14, 1958
Victim profile: Jack McGraw, 59 (gay man)
Method of murder: Stabbing with knife 78 times
Location: Jefferson County, Alabama, USA
Status: Executed by lethal injection in Alabama on April 24, 2003
 
 
 
 
 

United States Court of Appeals
For the Eleventh Circuit

 
opinion 99-14261
 
 
 
 
 
 

Summary:

Brown and the other men went to McGraw's home on Memorial Day to drink with him with the plan that he would pass out and they could rob his home. But McGraw said he had to work the next day and couldn't party with them.

The men then attacked him outside his trailer and dragged him back inside. Brown struck the first blows, and repeatedly stabbed McGraw with a pocketknife as Bankhead stood over him with a skillet.

McGraw was stabbed in the back 59 times, his throat and neck were slashed 16 times and his face showed three knife wounds.

After the slaying, the trio loaded some of his household appliances into their car and took $67. Neighborhood children found his body.

Brown admitted his participation in the murder. Accomplice Archie Bankhead is now serving life without parole. Also convicted in the murder was James Lynn Bynum, who was paroled from a life sentence in 1997.

Citations:

Brown v. State, 545 So.2d 106 (Ala.Crim.App.1988). (Direct Appeal)
Ex parte Brown, 545 So.2d 122 (Ala.1989).
Brown v. Alabama, 493 U.S. 900, 110 S.Ct. 257, 107 L.Ed.2d 206 (1989) (Cert. Denied).
Brown v. State, 663 So.2d 1028 (Ala.Crim.App.), cert. denied, 663 So.2d 1028 (Ala.1995).

Final Meal:

Brown requested no last meal, eating only an ice cream sandwich from a vending machine.

Final Words:

Brown made no final statement, but appeared to mouth the words "go with God" and "forgive them" to his wife, Elizabeth Anne Brown.

ClarkProsecutor.org

 
 

Brown Executed for Center Point Killing

By Carol Robinson - Birmingham News

April 25, 2003

ATMORE, Ala. -- Gary Leon Brown was put to death Thursday by lethal injection for the 1986 slashing of a 60-year-old Center Point man. After 16 years on Alabama's Death Row, the 44-year-old Brown was pronounced dead at 6:19 p.m. after a series of seven injections.

Brown made no public statement but kept his eyes locked on his wife, Elizabeth Anne Brown, who was just feet away in the witness room, separated by a glass window. For about 5 minutes they mouthed exchanges to each other, including "I love you" and "Go with God." Strapped to a gurney, he waved to her with the fingers of his left hand. "Goodbye sweetie," he mouthed. "I love you."

Brown spent his last day alive visiting with his mother and his wife, whom he met and married while on Death Row at Holman Prison near Atmore. He also visited with other friends and family for about seven hours including his son, Chris Brown, 22; spiritual adviser, Glenn Webber; sisters, Donna Jordan and Brenda Bourquard; brother, David Brown; and friend, Richard Smith.

The group sang hymns, prayed and took communion. The last hour he spent alone with his wife. Brown left his wife $109.92 from his prison account, three Bibles, and the journal he kept while on Death Row. His son received his watch and a wooden cross. The rest of his belongings, a radio, headphones, books, a dictionary and a television went to the remaining Death Row inmates. Brown declined his chance for a last meal of his choice and instead ate only an ice cream sandwich from a vending machine.

He and two other men were convicted for the murder of Jack David McGraw, a Korean War veteran who was stabbed 78 times, nearly to the point of decapitation. Also convicted in the murder were James Lynn Bynum of Trussville, who was paroled in 1997, and Archie Bankhead of Birmingham, who is serving life without parole.

Bankhead's initial death sentence was reversed on appeal and at retrial he testified he had "found the Lord." Authorities said Bankhead was the ring-leader and used a butcher knife to slice McGraw's neck. Brown was scheduled for execution last year, but it was delayed.

McGraw had no close relatives at the time of his death so no family members were there to witness Brown's execution. The attack on McGraw had been planned, prosecutors have said, by the men who had previously gone to McGraw's house to drink and participate in paid sexual acts.

Brown and the other men went to McGraw's home on Memorial Day to drink with him with the plan that he would pass out and they could rob his home. But McGraw said he had to work the next day and couldn't party with them.

The men then attacked him outside his trailer and dragged him back inside. Brown struck the first blows, prosecutors said, and repeatedly stabbed McGraw with a pocketknife as Bankhead stood over him with a skillet. McGraw was stabbed in the back 59 times, his throat and neck were slashed 16 times and his face showed three knife wounds, prosecutors said. After the slaying, the trio loaded some of his household appliances into their car and took $67. Neighborhood children found his body.

Brown, his family and his attorney made no public statements in the week leading up to his execution. However, in a letter to former Gov. Don Siegelman last year, Brown said he was remorseful and had little recollection of the incident because he was "totally obliterated" on drugs. "I know that I am the one to blame for the situation I'm in and for the situation I've put my family in. Jack McGraw didn't deserve to die it was a horrible and despicable act and (saying) I'm truly sorry is an understatement. I can't ever pay my debt to Mr. McGraw."

 
 

ProDeathPenalty.com

On May 26, 1986, Gary Leon Brown, Archie Bankhead, James Bynum, and Jimmy Davenport went fishing near Locust Fork, Alabama, about thirty miles north of Birmingham.

The men drank alcohol while they fished and then went to Chuck and Willie's Lounge in Birmingham, where they continued to drink and played pool. While at the lounge, Brown, Bankhead, and Bynum discussed the possibility of going to Jack McGraw's home in Pinson, Alabama, to obtain money.

Brown and Bynum were both familiar with McGraw. The four men then left the lounge and headed to McGraw's home. Davenport drove, and Bynum gave directions.

When they arrived at McGraw's home that night, Davenport remained in the car, while Brown, Bankhead, and Bynum went to McGraw's door and knocked.

McGraw let them in and said that he could not "party" with them that evening because he had to go to work the next morning. When the three men began to leave, McGraw walked outside with them. Bankhead then grabbed McGraw in a headlock, and Brown and Bynum began hitting McGraw.

Davenport also saw Brown make a "slashing" movement at McGraw's neck. McGraw and Bankhead fell to the ground and struggled. Bankhead, Brown, and Bynum then picked up McGraw and carried him inside his home. Brown recalled Bankhead saying that they would have to kill McGraw, because McGraw had seen Bankhead.

Brown admitted that he repeatedly stabbed McGraw in the back with a small pocket knife. He claimed that either Bankhead or Bynum caused the fatal wounds to McGraw's neck area.

After killing McGraw, Bankhead, Brown, and Bynum gathered McGraw's possessions, loaded them in Davenport's car, and drove to Bankhead's house, where they divided the stolen property and the money from McGraw's wallet and burned their clothes which were covered in blood.

According to Bankhead's wife, the men joked about the murder. She overhead Brown telling Bankhead how he "kept stabbing and stabbing and stabbing and stabbing" McGraw. She also heard Bankhead and Bynum stating that they had cut McGraw's neck.

The next afternoon McGraw's body was discovered by a neighborhood child. A few days later Jefferson County deputy sheriffs found Brown at Bankhead's house. Brown accompanied them to the Center Point substation and gave them a statement that he and the other three men had gone fishing, to the bar, and then home.

After giving this statement, Brown rode with the officers to Bynum's house, where the officers questioned Bynum while Brown remained in the squad car with one of the officers.

Bynum told the officers that Brown had inflicted all the stab wounds on McGraw and struck his head with a skillet. Brown claims that the officers returned to the squad car, arrested him, and told him that Bynum's statement reflected that Bankhead stabbed McGraw and was the ringleader.

Brown then gave a second statement to the officers to the effect that Bankhead had inflicted all of the wounds on McGraw. Later, after Brown learned that Bankhead had been arrested, Brown gave a third statement in which he admitted that he stabbed McGraw in the back repeatedly with a pocket knife and participated in the robbery along with Bynum and Bankhead.

 
 

Murder of Gay Man Nets Killer $67 and A Lethal Injection

By Robert Anthony Phillips - TheDeathHouse.com

April 24, 2003

ATMORE, AL - A man who participated in the robbery and stabbing death of a gay man was executed by lethal injection at the state prison here Thursday night.

Gary Leon Brown, 44, made no last statement from the death house, mouthing only, "Goodbye, sweetie...I love you" to his wife. Brown became the second condemned killer put to death in Alabama in 2003.

He was prouonced dead from the lethal chemcials at 6:19 p.m. Brown had spent most of the day visiting with his wife, family and friends and ate an ice cream sandwhich from a vending machine. He had requested no last meal, authorities said. Brown was put to death for the 1986 murder of Jack David McGraw, a 60-year-old gay man.

$67 And A Death Sentence

McGraw and three other men decided to rob McGraw, stabbing him dozens of times in the neck and back. About $67 in cash was taken in the robbery, court records stated. Brown was within hours of dying in the electric chair on May 5, 2002 when the U.S. Supreme Court stayed his execution.

The issue the court was considering was whether death in the electric chair was cruel or unusual punishment. Since that time, Alabama has switched to lethal injection as its means of execution.

Two other men were convicted on murder charges in connection with the slaying of McGraw. Prosecutors had sought the death penalty against both, but the men eventually received life in prison. They were Archie Bankhead and James Bynum.

Bankhead’s death sentence was overturned by the Alabama Supreme Court. He was retried and convicted again. But, the jury sentenced him to life in prison without parole instead of death. Bynum was convicted of murder, sentenced to life in prison and later paroled.

Multiple Stabbers, One Execution

The key issue among death penalty foes and defense lawyers in the Brown case was not whether he participated in the robbery or stabbing of the victim, but whether it was fair that he received a death sentence and the others prison.

He had confessed to stabbing the victim, but the two others involved also said they had stabbed the victim. Those who tried to save Brown from the execution gurney had claimed that one of the men who prosecuted him, Bob McGregor, now an Assistant U.S. Attorney in Birmingham, had stated that executing Brown would be a "gross injustice" because the others involved received prison terms.

However, McGregor told The Death House.com that he never made that statement. McGregor had stated in a telephone interview before the execution that Brown’s death sentence is "just" and that Bankhead and Bynum should also have been sent to death row. "This was viscious, cruel and all three participated one way or the other," McGregor said. "I feel sorry for (Brown’s) family. I feel sorry for Gary. But it was a just sentence and deserves to be carried out. It should have also been imposed on Bankhead and Bynum."

Needed Money

The murder occurred on May 26, 1986. Brown and three other men - Bankhead, Bynum, and Jimmy Davenport - were fishing and drinking. They later went to a bar in Birmingham. At the bar, Brown, Bankhead, and Bynum discussed the possibility of going to McGraw's home in Pinson to get more money.

McGraw was a homosexual who, on occasion, had paid several of his eventual killers for sex, prosecutors said. The four men went to McGraw’s home. Davenport remained in the car and would later testify against the others. Brown, Bankhead, and Bynum went to McGraw's door. McGraw let them in and said that he could not go with them and walked them outside, where he was attacked.

Admitted Stabbing

Bankhead reportedly grabbed McGraw in a headlock, and Brown and Bynum began hitting the victim. Davenport later testified that he saw Brown make a "slashing" movement at McGraw's neck. Bankhead, Brown, and Bynum later picked up McGraw and carried him inside his home.

Brown recalled Bankhead saying that they would have to kill McGraw, because McGraw had seen Bankhead. Brown later admitted that he repeatedly stabbed McGraw in the back with a small pocket knife.

But, he also claimed that either Bankhead or Bynum caused the fatal wounds to McGraw's neck area. A butcher knife had been used to slash the throat of McGraw, causing his head to be almost severed. After killing McGraw, the three men took some of his belongings and the money.

They also burned their blood-covered cloths. Bankhead’s wife later testified that the men joked about the murder and that she heard Brown tell Bankhead how he repeatedly stabbed McGraw. She also heard Bankhead and Bynum stated that they had cut McGraw's neck. The case featured finger pointing by all involved.

'Bloodthirsty' One Lives Brown first told lawmen that the three men had gone fishing, to a bar and then home. When police questioned Bynum, he told them that Brown had inflicted all the stab wounds and struck McGraw in the head with a skillet.

Brown later told police that Bankhead had done all the stabbing. Then, he changed his statement again, saying he repeatedly stabbed the victim in the back with a pocket knife and participated in the robbery with Bynum and Bankhead. Bynum, who was 21 at the time of the murder, was given a life sentence, but was paroled from prison in 1997.

Bankhead will serve the remainder of his life in prison. McGregor said he believes Bankhead was the most bloodthirsty of the group and that he did not believe Brown would have killed McGraw if he was alone. He described the stabbing frenzy by the three men as almost like a "wolfpack" mentality.

 
 

National Coalition to Abolish the Death Penalty

Gary Brown (AL) - April 24, 2003 - 6:00 PM CST, 7:00 PM EST

The state of Alabama is scheduled to execute Gary Leon Brown April 24 for the 1986 murder of 60-year-old Jack McGraw in Jefferson County. Brown, a white man, was just eight hours from his scheduled execution in April 2002 when the U.S. Supreme Court granted a stay based on his appeal, which in part contended that the electric chair constituted cruel and unusual punishment. Alabama has since changed its primary method of execution to lethal injection.

Brown’s death sentence is a typical result of a capital case with multiple defendants, in which prosecutors pursue the death penalty in a completely capricious manner. The other two defendants in the case, who were apparently more responsible for the McGraw murder than Brown, were sentenced to life in prison, and one of them has since been released on parole.

Aside from legal concerns, Brown has mitigating circumstances that call his mental state and culpability into question. In a letter to former Governor Seigelman requesting clemency last year, Brown gave a perceptive account of how many people end up on death row. Making a comparison with a friend, he wrote, “To demonstrate how the choices we make in our youth can affect our lives, let me give you an example: One of the members of my former band made the choice to quit drugs. He is now a Christian minister with a Masters degree in music. I chose to stay on drugs and I am now on death row.”

A long history of drug use is a common hallmark of those on death row. Brown began using drugs in junior high and never turned back from that lifestyle. The state of Alabama has a responsibility to reach out to those who suffer from the traumatic effects of substance abuse; executing them is far from a solution.

In his time spent on death row, Brown has garnered praise from friends, family members, and prison officials for his efforts at reforming his life. Several correctional officers and prison chaplains have indicated their support for Brown’s clemency petition, but have been unable to make progress with state authorities. They direct much of this praise to his religious conversion in prison, as well as his continued ministry to give spiritual guidance to others on death row in Alabama.

The death penalty ignores the possibility of honest reform and attempts to strip inmates of their humanity. Brown’s efforts at rehabilitation are commendable, and Gov. Bob Riley, who has the sole authority to grant clemency to death row inmates in Alabama, should commute this sentence to life in prison. Please contact Gov. Bob Riley and request clemency for Gary Brown.

 
 

Alabama Executes Inmate for 1986 Murder

By Harry Mitchell - Alabama Times Daily

AP April 24, 2003

A man was executed by injection Thursday for the 1986 stabbing death of a 60-year-old man during a robbery. Gary Leon Brown, 44, was executed after Gov. Bob Riley denied him clemency on Wednesday.

He made no final statement, but appeared to mouth the words "go with God" and "forgive them" to his wife, Elizabeth Anne Brown, who was in the witness room with Brown's friend. None of the victim's family attended the execution.

Brown told investigators that he and his cohorts went to the home of Jack David McGraw on Memorial Day 1986 to drink with him, hoping that McGraw would pass out so they could rob him. But McGraw said he had to work the next day and couldn't party with them.

He was tackled and dragged back inside the residence, and Brown said he repeatedly stabbed McGraw with a pocketknife. McGraw's body was left in the mobile home, where he lived alone, until it was found by neighborhood children. He had been robbed of $67 and several appliances.

At the time of the murder, Brown was out of jail on bond in an unrelated robbery. The trial judge noted that fact in upholding the jury's recommendation for death. McGraw, described in trial testimony as a homosexual, was stabbed 78 times. According to trial testimony, the killers boasted of the murder using homosexual slurs.

Prosecutors said the savageness of the attack indicated the killing may not have been simply a robbery, but it was not prosecuted as a hate crime.

Archie Bankhead, accused in court of cutting McGraw's throat with a butcher knife, is now serving life without parole. Also convicted in the murder was James Lynn Bynum, who was paroled from a life sentence in 1997.

 
 

Brown v. State, 545 So.2d 106 (Ala.Crim.App.1988). (Direct Appeal)

TYSON, Judge. Gary Leon Brown was indicted for the capital offense of the murder of Jack McGraw during a robbery in violation of § 13A-5-40(a)(2), Code of Alabama 1975 The jury found the appellant "guilty of capital murder as charged in the indictment". After the punishment phase of the trial the jury returned an advisory verdict for death by a vote of ten "for death" and two "for life without parole". At the sentencing hearing the trial judge upheld the jury's advisory verdict by sentencing the appellant to death by electrocution.

Walter James, Jr., cousin of the victim, testified that he last saw the victim in December of 1985. James at that time did not notice any physical ailments or obvious physical deformities to the victim. Chris Mitchell, a 13 year old, stated that when he knocked on the victim's door he saw the victim lying face down inside his trailer near the door. Mitchell and the three boys that he had been playing with went to Johnny Harris' house and told his parents.

James Harris, father of Johnny Harris, and two of his neighbors then went to the victim's trailer. Harris testified that they did not disturb anything but just looked through the glass door and saw the victim's body. Harris called the sheriff's department. Harris stated that the victim's trailer was located in Pinson, Alabama. Two officers of the Jefferson County Sheriff's Department testified as to securing the crime scene at the trailer and then turning it over to Ted Williams, evidence technician, without the same being disturbed except for one officer checking to make sure the victim was dead. Ted Williams photographed and sketched the scene. Williams identified numerous exhibits which he had collected from the victim's residence.

Sgt. Don Gaskey of the Jefferson County Sheriff's Department stated that on May 30, 1986, he went to the home of Blanche Bankhead. From the backyard of the Bankhead residence Gaskey collected pieces of clothing from an area that appeared to have been burned.

Witnesses who handled the chain of possession and who also tested certain items of evidence testified accordingly. Steve Dexler, a trace analyst with the Alabama Department of Forensic Sciences, examined burned materials found in the backyard of the Bankhead home. Three portions of the burned material were "consistent with material coming from clothing." (R. 499) Two metal fragments were "consistent with speed-lacing eyelets off of footwear." (R. 500)

Dr. Robert Brissie, chief coroner and medical examiner for Jefferson County, performed the autopsy on the victim. Dr. Brissie found several stab wounds to the *109 head and a contusion to the back of the victim's head. Dr. Brissie's opinion was that there were "at least fifteen or sixteen cuts" to the neck including those that "cut down through the carotid artery and the jugular venous complex." (R. 522, 523)

On examining the victim's back from the base of the neck downward to the base of the shoulder blades 59 stab wounds were found by Dr. Brissie. "Many of these stab wounds were notched, an appearance most consistent with a suspect weapon having its position altered or twisted at the time of stabbing." (R. 528) Several areas of the victim's body were bruised. In Dr. Brissie's opinion death was caused by bleeding to death from the stab wounds.

Jimmy Davenport testified that on May 26, 1986, he went fishing with his brother-in-law, James Bynum, Archie Bankhead and the appellant. While fishing, they were drinking beer and whiskey. All four men then went to Chuck and Willie's Lounge to play pool and drink. The four men left the lounge together with Davenport doing the driving. Davenport stated that he heard them say "something about going and killing a queer, or something like that." (R. 567) They (Bankhead and the appellant) both were asking Bynum:

" 'How hard can you hit?' And, you know, James was saying, 'Pretty hard.' And I guess--I think Gary asked him, 'Well, can you knock this old man out?' And James said, 'yes', he could. And then Gary said, 'Well, if you can't, I can', or something like that. And that's about it." (R. 570)

Bynum gave Davenport directions to the victim's trailer. Bynum, Bankhead and the appellant went up to the victim's trailer and knocked on the door. The victim opened the door and let them come inside. A short time later all four came back outside the trailer. Bankhead grabbed the victim around the neck in a "headlock". Bynum and the appellant were hitting the victim. (R. 571) Bankhead, Bynum and the appellant picked the victim up and carried him inside the trailer. Davenport observed this while sitting in his car.

Davenport did not see the victim after the altercation. When Bynum, Bankhead and the appellant came out of the trailer, they were carrying items. Davenport observed blood on all three men. The back seat was so full of items from the victim's trailer that the appellant rode in the trunk to Bankhead's house. The stolen items were taken into Bankhead's residence. Davenport could not remember vel non if he helped carry the items into the house.

Davenport testified that Bankhead gathered all four of their shirts, the appellant's pants and Bankhead's pants and burned them in the backyard. The reason for burning the clothing was that it had blood on it. Davenport stated that he had blood on the shoulder of his shirt because Bankhead had brushed Davenport's shirt when he got into Davenport's automobile. A wallet was seen by Davenport in Bankhead's kitchen. Davenport received some of the money which the wallet contained. On cross-examination Davenport admitted that he had not told the grand jury about seeing the wallet in question, Bankhead's burning Davenport's shirt, or statements made by the three men on the way to the victim's house.

The day before the jury for this trial was struck, Davenport talked with Mr. Anderton and Mr. McGregor, assistant district attorneys. After being asked several times, Davenport admitted overhearing statements made on the way to the victim's trailer. Davenport indicated that Anderton had told him that a case could be made against Davenport, but right now they were not going to charge Davenport with any crime. Davenport stated that no conversation took place at Bankhead's house because they did not want Bankhead's wife to overhear them.

After cross-examination the prosecution made a motion to require that the taped interview between the prosecutors and Davenport be played for the jury. The reason for this was that the tape would be played instead of rehabilitative testimony, *110 due to the fact that there had not been a typed transcript made of this taped interview. The trial judge gave instructions to the jury that the reason he was allowing the tape to be played was to let the jury determine the circumstances under which Davenport gave this changed testimony and the credibility to give to Davenport as a witness.

Blanche Bankhead stated that in May of 1986, she was married to Archie Bankhead. On the night of May 26, 1986, her husband, Davenport, Bynum and the appellant came to the Bankhead home. Her husband, Davenport, and the appellant had blood on all of their clothes and arms and Bynum had blood on his shirt.

A microwave oven, a television and a stereo with speakers were brought into her home by Bynum, Davenport, Archie Bankhead and this appellant, Brown. Blanche then went into the bedroom and overheard the following conversation: "Archie said, 'Are you sure he's dead? Are you sure you killed him, Gary?' "Response was, 'I kept stabbing and stabbing and stabbing and stabbing.' Archie again said, 'Yes, but are you sure he's dead?' and Gary said, 'No, because then when we was getting the stuff out, he began to get up.' And Bantum [sic] [Bynum] had said 'Archie handed the butcher knife to me said we have to kill him.' ... he said he [Bynum] 'sliced his throat.' " (R. 651-652) Davenport then said, "I can't believe y'all done this. I've got to get out of here. Get the stuff out of my car." (R. 652) Blanche testified that she then heard them look for money in a wallet and split the "sixty something dollars" they found in this wallet. (R. 653) Archie later said, "We've got to take all our clothes off, we've got to burn them. We'll go burn them outside, even our shoes." (R. 654)

The appellant, Brown, then went to a local store and bought some beer. When the men were in the back yard with the fire, Blanche saw Archie's pocket knife in a pan of water on the stove. Blanche later found this knife behind the stove and turned it over to Sgt. White. Later that night Blanche overheard her husband and the appellant loading stuff in a car and leaving. On cross-examination Blanche admitted that in the statement she gave the police on May 29, 1986, the only conversation which she stated she overheard was concerning the burning of something. As to several other details in her May 29 statement, Blanche testified such must have been typed incorrectly.

Sgt. Eddie White, detective for the Jefferson County Sheriff's Department, stated that a knife and an iron skillet were found in the victim's kitchen sink. The bottom of the skillet was missing. An antenna wire was hanging from the den ceiling and had been cut.

On May 29, 1986, Sgt. White first talked with this appellant. At the Center Point Sheriff's Office, Sgt. White recorded his questioning of the appellant. The appellant was advised of his constitutional rights both verbally and in writing before any questioning began. Sgt. White read most of the transcript of this taped session for the jury.

In the first statement given by the appellant on May 29, 1986, he stated that on May 16, 1986, he and Bynum went to the victim's trailer and they stole a VCR and some checks. Bynum then cashed two or three checks from the victim's checkbook. The appellant stated that this was the last time he had been to the victim's residence.

On May 26, 1986, the appellant, Brown, told Sgt. White that, together with Archie Bankhead, Davenport, and Bynum, he went to Chuck and Willie's Lounge around 6:30 p.m. and stayed approximately two hours. After leaving the lounge they went over to Bankhead's house to watch television. After making his statement, the appellant then directed the police to the place where Bynum was living. Bynum then made a statement to the police. Upon returning to the Center Point Sheriff's Office that night, the appellant gave *111 another statement. This statement was played for the jury.

In this second statement the appellant admitted going to the victim's trailer on May 26, 1986. Davenport had stayed in the car while Bynum, Bankhead and the appellant, Brown, went into the victim's residence. A short time later four men, including the victim, McGraw, came outside the trailer. As they were walking, Bankhead grabbed the victim around the neck and choked the victim until he passed out.

The appellant stated that Bynum and Bankhead then carried the victim inside the trailer. Bankhead told them they could not let the victim live because he could identify them. Bankhead took out his pocket knife and stabbed the victim a few times in the back.

The appellant, Brown, did not see Bankhead cut the victim's throat. From the victim's residence Bankhead, Bynum and the appellant then stole some beer, two television sets, two stereos, a microwave, a checkbook and a wallet. A towel was used to wipe off their fingerprints. The appellant got into the trunk of Davenport's vehicle because the back seat was full of stolen items.

At Bankhead's house all the stolen items were taken into the house. The victim's checkbook and wallet and the four men's outer clothing were then burned in Bankhead's backyard. Davenport and Bynum left after splitting up the money found in the wallet. Bankhead and the appellant, Brown, later loaded up the stolen items and stored them at someone else's house overnight. The appellant said the reason he did not remember things that clearly was because he was drunk.

A third statement from the appellant was given July 17, 1986, in the Jefferson County, Alabama Jail. The reason a third statement was taken from the appellant was that the appellant asked his mother to contact the police and have someone come talk to him concerning this case. The appellant did not request that his attorney be present. The tape recording of this statement was also played for the jury.

The appellant in this statement said that Bynum had suggested that they go to the victim's trailer and steal some things. Davenport stayed in his automobile while Bankhead, Bynum and the appellant, Brown, went into the victim's trailer. When they started to leave the trailer, Bankhead grabbed the victim from behind and choked the victim while Bynum was hitting the victim in the face.

After they dragged the victim inside the trailer, the victim made a moaning sound. Bankhead told the appellant that they had to kill the victim. Bankhead handed the appellant a brown pocket knife with a three inch blade. Bankhead went into the kitchen and returned with a large object which the appellant later found was an iron skillet. Bankhead told the appellant that he had to kill the victim. The appellant jumped on the victim's back and started stabbing him. The appellant stated that he was afraid of what Bankhead might do to him.

The appellant admitted to stabbing the victim "quite a few times". Bankhead said the pocket knife was not going to get it and hit the victim in the head with the iron skillet. Bynum then said he would get the victim and cut the victim's throat with a butcher knife from the victim's kitchen. All three men carried items from the victim's residence to Davenport's vehicle. Bankhead, Bynum and the appellant pulled off their shirts and pants and burned them in Bankhead's backyard. At this point the State rested its case.

The appellant called Archie Bankhead to testify but he refused to do so. The appellant offered no other evidence.

* * * *

At the punishment phase of this trial before the same jury as outlined above, the state was allowed to show aggravating circumstances and the defendant allowed to show mitigating circumstances.

Relative to aggravating circumstances the court finds that the state has proven beyond a reasonable doubt:

13A-5-49(4) The capital offense was committed while the defendant was engaged..... in the commission of a robbery.

The capital offense was especially heinous, atrocious or cruel compared to other capital offense. In addition to the factual findings above, the undersigned notes that the deceased was 59 years of age at his death, lived alone, was unarmed and unsuspecting of his assailants' foul purposes.

Dr. Robert Brissie, coroner/medical examiner, testified that the deceased received 16 incised wounds to the neck, 59 stab wounds in the back deep enough to allow probing, the deepest of which approximated 2.0 inches, three stab wounds to the face and an incised wound to the scalp were described by Dr. Brissie as well as extensive areas of abrasion and contusion consistent with the attack outside the mobile home.

The most extensive injuries observed by Dr. Brissie were to the neck, the carotid artery and jugular vein being severed. Dr. Brissie opined that the deceased was, in all probability, alive throughout the course of the homicidal acts--"all wounds depicted were anti mortem or prior to decedant's death."

The undersigned concludes that based on evidence and the applicable case law, this capital offense is in fact especially heinous, atrocious and cruel compared to other capital cases. The court finds no other aggravating circumstances to exist.

 
 

Brown v. State, 663 So.2d 1028 (Ala.Crim.App.), cert. denied, 663 So.2d 1028 (Ala.1995).

Petitioner applied for postconviction relief after his conviction and death sentence for capital murder were affirmed on appeal, 545 So.2d 122. The Circuit Court, Jefferson County, James Hard, J., denied petition. Petitioner appealed. The Court of Criminal Appeals, Montiel, J., held that: (1) recusal of judge who presided at trial from postconviction relief proceeding was not required; (2) trial counsel was not ineffective for failing to present evidence of petitioner's history of alcohol and drug abuse and of his antisocial personality disorder; (3) counsel's failure to identify veniremen who would automatically recommend death sentence did not prejudice petitioner at trial; (4) petitioner did not otherwise receive ineffective assistance of trial counsel; and (5) petitioner failed to establish ineffective assistance of appellate counsel. Affirmed. Bowen, P.J., concurred in the result only.

 
 

255 F.3d 1273

Gary Leon Brown, Petitioner-appellant,
v.
Charlie P. Jones, Warden, Bill Pryor, Attorney General, State of Alabama,
Respondents-appellees

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

June 29, 2001

Appeal from the United States District Court for the Northern District of Alabama, D. C. Docket No. 95-01792-CV-C-S

Before ANDERSON, Chief Judge, EDMONDSON and DUBINA, Circuit Judges.

ANDERSON, Chief Judge:

On May 26, 1986, Gary Leon Brown, Archie Bankhead, James Bynum, and Jimmy Davenport went fishing near Locust Fork, Alabama, about thirty miles north of Birmingham. The men drank alcohol while they fished and then went to Chuck and Willie's Lounge in Birmingham, where they continued to drink and played pool.

While at the lounge, Brown, Bankhead, and Bynum discussed the possibility of going to Jack McGraw's home in Pinson, Alabama, to obtain money. Brown and Bynum were both familiar with McGraw. The four men then left the lounge and headed to McGraw's home. Davenport drove, and Bynum gave directions. When they arrived at McGraw's home that night, Davenport remained in the car, while Brown, Bankhead, and Bynum went to McGraw's door and knocked. McGraw let them in and said that he could not "party" with them that evening because he had to go to work the next morning.

When the three men began to leave, McGraw walked outside with them. Bankhead then grabbed McGraw in a headlock, and Brown and Bynum began hitting McGraw. Davenport also saw Brown make a "slashing" movement at McGraw's neck. McGraw and Bankhead fell to the ground and struggled. Bankhead, Brown, and Bynum then picked up McGraw and carried him inside his home. Brown recalled Bankhead saying that they would have to kill McGraw, because McGraw had seen Bankhead. Brown admitted that he repeatedly stabbed McGraw in the back with a small pocket knife. He claimed that either Bankhead or Bynum caused the fatal wounds to McGraw's neck area.1

After killing McGraw, Bankhead, Brown, and Bynum gathered McGraw's possessions, loaded them in Davenport's car, and drove to Bankhead's house, where they divided the stolen property and the money from McGraw's wallet and burned their clothes which were covered in blood. According to Bankhead's wife, the men joked about the murder. She overhead Brown telling Bankhead how he "kept stabbing and stabbing and stabbing and stabbing" McGraw. She also heard Bankhead and Bynum stating that they had cut McGraw's neck. The next afternoon McGraw's body was discovered by a neighborhood child.

A few days later Jefferson County deputy sheriffs found Brown at Bankhead's house. Brown accompanied them to the Center Point substation and gave them a statement that he and the other three men had gone fishing, to the bar, and then home. After giving this statement, Brown rode with the officers to Bynum's house, where the officers questioned Bynum while Brown remained in the squad car with one of the officers. Bynum told the officers that Brown had inflicted all the stab wounds on McGraw and struck his head with a skillet.

Brown claims that the officers returned to the squad car, arrested him, and told him that Bynum's statement reflected that Bankhead stabbed McGraw and was the ringleader. Brown then gave a second statement to the officers to the effect that Bankhead had inflicted all of the wounds on McGraw. Later, after Brown learned that Bankhead had been arrested, Brown gave a third statement in which he admitted that he stabbed McGraw in the back repeatedly with a pocket knife and participated in the robbery along with Bynum and Bankhead.

Brown was indicted for the capital offense of the murder of Jack McGraw during a robbery in violation of § 13A-5-40(a)(2), Code of Alabama 1975. Brown's appointed counsel was Russell T. McDonald, Jr. The jury found Brown guilty of capital murder as charged in the indictment. After the penalty phase of the trial, the jury returned an advisory verdict for death by a vote of ten to two. After a sentencing hearing, the trial judge accepted the jury's recommendation and sentenced Brown to death. On direct appeal, the Alabama Court of Criminal Appeals, Brown v. State, 545 So. 2d 106 (Ala. Crim. App. 1998), and the Alabama Supreme Court, Ex parte Brown, 545 So. 2d 122 (Ala. 1989), affirmed Brown's conviction and death sentence. The United States Supreme Court denied Brown's petition for writ of certiorari. See Brown v. Alabama, 493 U.S. 900, 110 S. Ct. 257 (1989).

On February 16, 1990, Brown filed a petition for post-conviction relief under Temporary Rule 20 of the Alabama Rules of Criminal Procedure.2 Brown twice amended his Rule 20 petition. An evidentiary hearing was held on Brown's petition, and on January 21, 1990, the Rule 20 court denied the petition. The Alabama Court of Criminal Appeals affirmed the denial of the Rule 20 petition, and the Alabama Supreme Court denied Brown's petition for writ of certiorari. See Brown v. State, 663 So. 2d 1028 (Ala. Crim. App.), cert. denied, 663 So. 2d 1028 (Ala. 1995). Brown then petitioned the district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.3 On October 1, 1999, the district court denied the petition, holding that most of Brown's federal constitutional claims were procedurally barred and that his remaining claims failed on the merits.

On appeal, Brown argues that his trial counsel was ineffective at both the guilt and penalty phases of his trial because he failed to investigate and present evidence of Brown's drug and alcohol abuse and its effects upon his mental state at the time of the crime. He also argues that his trial counsel was ineffective in failing to question the jurors during voir dire to identify those who were biased in favor of the death penalty. Brown then argues that his trial was rendered fundamentally unfair because Davenport's testimony was procured through coercive prosecutorial tactics. For the reasons stated below, we affirm the district court's denial of Brown's habeas petition.4

A. Ineffective Assistance for Failure to Introduce Evidence of Brown's Alcohol and Drug Use

Brown asserts that he received ineffective assistance during the penalty phase of his trial because counsel failed to investigate and present evidence of Brown's drug and alcohol use and its effects upon his mental state. The district court denied Brown's claim, emphasizing the Rule 20 court's findings that counsel's failure to present such evidence was part of his unified guilt and punishment phase strategy. Brown argues that any such strategy was chosen without reasonable investigation or preparation.

Claims of ineffective assistance during the sentencing phase of a capital case are subject to the two-prong analysis set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). To make out a successful claim, Brown must show (1) that his counsel's performance was deficient, and (2) that the deficient performance prejudiced the defense. See id. at 687, 104 S. Ct. at 2064. Ineffective assistance is a mixed question of law and fact, and our review is de novo. See Williams v. Head, 185 F.3d 1223, 1227 (11th Cir. 1999).

Under the performance prong, the standard is "reasonableness under prevailing professional norms." See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. Trial counsel cannot be deemed "incompetent for performing in a particular way in a case, as long as the approach taken 'might be considered sound trial strategy.'" Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en banc) (quoting Darden v. Wainwright, 477 U.S. 168, 186, 106 S. Ct. 2464, 2474 (1986)).

McDonald had over thirty years of experience in the practice of criminal law and had prosecuted or defended dozens of capital cases. We have stated that the "strong reluctance to second guess strategic decisions is even greater where those decisions were made by experienced criminal defense counsel." Chandler, 218 F.3d at 1316 (quoting Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998)). "The more experienced an attorney is, the more likely it is that his decision to rely on his own experience and judgment in rejecting a defense . . . was reasonable under the circumstances." Gates v. Zant, 863 F.2d 1492, 1498 (11th Cir. 1989).

This is not a case where counsel failed to investigate with respect to Brown's drug and alcohol use. McDonald testified at the Rule 20 hearing that he was aware of Brown's background of drug and alcohol use and had discussed it with him. Based on his more than thirty years of experience in trying cases in Jefferson County, Alabama, McDonald testified that he believed that jurors are prejudiced against criminal defendants who use drugs.

McDonald testified that there was plenty of evidence of Brown's drug and alcohol abuse that he could have presented at the penalty phase of the trial, but he rejected this line of defense in favor of one he believed would be more effective: that Brown, who had a boyish appearance at the time of trial, was a "follower" who was led into an act inconsistent with his character by Bankhead, his co-Defendant, who was older and violent and had a more hardened look.

We readily conclude that McDonald's decision not to present evidence of Brown's drug and alcohol use at the penalty phase in favor of a defense that he thought would be more favorable was a reasonable tactical decision. See, e.g., Duren v. Hopper, 161 F.3d 655, 661 (11th Cir. 1998) (readily concluding that counsel's decision not to present evidence of defendant's history of substance abuse during the penalty phase of trial was reasonable).

In order to prevail on this claim, Brown would also have to establish prejudice from his counsel's unreasonable assistance. See Horton v. Zant, 941 F.2d 1449, 1463 (11th Cir. 1991). A petitioner satisfies the prejudice prong when he shows that trial counsel's deficient performance deprived him of "a trial whose result is reliable." Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068.

We conclude that, in addition to failing to establish the performance prong of his Strickland claim, Brown has also failed to establish the prejudice prong. At the Rule 20 hearing, Brown presented witnesses whom he contended McDonald should have called at trial. The Rule 20 court found that the testimony of these witnesses either would not have been helpful to Brown or that such testimony was not credible.

The Rule 20 court found that the testimony of Brown's family members and friends concerning Brown's drug use was exaggerated in an attempt to make him appear to have a greater drug problem than he actually had. The Rule 20 court also found that the amount of alcohol that Brown claimed to have consumed on the day of the robbery/murder was substantially less than he claimed to consume on a regular basis prior to the day of the crime.

The Rule 20 court found that Brown had not suffered from delirium tremors or other withdrawal symptoms, had exaggerated his drug use, and was not a credible witness. The Rule 20 court also concluded that the testimony of Dr. Kirkland, Brown's expert witness, that Brown suffered from diminished capacity at the time of the crime due to alcohol or drug use would not have outweighed the aggravating factors against Brown. Furthermore, the state's expert, Dr. Dixon, testified that Brown exaggerated his claims of drug and alcohol abuse.

Especially in light of the Rule 20 court's findings of fact, we agree with the conclusion of the Rule 20 court that the evidence of Brown's drug and alcohol abuse would not have been helpful to him; "there is no reasonable probability that the result of the penalty phase would have been different, even if the suggested evidence of alcohol and drug abuse had been explored in great detail." Duren, 161 F.3d at 662.5

B. Ineffective Assistance for Failure to Engage in "Reverse-Witherspoon"6 Inquiry During Voir Dire

Brown also argues that McDonald rendered ineffective assistance when he failed to ask potential jurors during voir dire whether they would automatically vote to impose the death penalty if Brown were convicted of capital murder - a so-called "reverse-Witherspoon" inquiry. The Rule 20 court and the district court rejected this claim.

At the Rule 20 hearing, Brown offered the testimony of two Birmingham lawyers, Dan Turberville and Roger Appell, who testified that they always engage in such "reverse-Witherspoon" questioning during voir dire. The Rule 20 court found that the testimony of these two lawyers did not establish that McDonald's failure to ask the reverse-Witherspoon question during voir dire showed that his performance was inadequate, because McDonald had as much, if not more, experience in criminal defense than either of these lawyers.

McDonald was not asked any questions during the Rule 20 hearing regarding his failure to engage in a reverse-Witherspoon inquiry. Although during voir dire the trial judge asked the potential jurors a few questions to determine whether any of them was unalterably opposed to the death penalty, this questioning was limited. Thus, McDonald may well have thought it better to avoid any focus on the death penalty. McDonald's decision not to ask potential jurors whether they would automatically vote to impose the death penalty if Brown were convicted of capital murder appears to have been a reasonable tactical decision, because it seems reasonable for trial counsel to want to focus the jury on the idea of the death penalty as little as possible. Moreover, there is a strong presumption that McDonald's actions were the result of sound trial strategy. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Nevertheless, we need not decide whether Brown failed to establish the performance prong on this claim, because we conclude that he failed to establish the prejudice prong.

In order to establish the prejudice prong, Brown would have to show that, but for McDonald's failure to engage in the reverse-Witherspoon inquiry during voir dire, the result of his trial would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. For several reasons we conclude that Brown has failed to make the required showing.

First, during the penalty phase of the trial, the trial judge instructed the jurors that their verdict should be based on the evidence and the law and that there was no room for passion, prejudice, or other arbitrary factors. Brown argues that we should presume that some of the jurors were biased in favor of the death penalty and would have refused to follow the law. We have stated in numerous cases, however, that jurors are presumed to follow the court's instructions. See e.g., Ingram v. Zant, 26 F.3d 1047, 1053 (11th Cir. 1994) ("Because we presume that jurors follow such instructions, we must assume that the jury put aside any biases it may have had, applied the legal standards as enunciated in the jury instructions, and based its sentencing decision on the facts introduced at trial and sentencing."); Raulerson v. Wainwright, 753 F.2d 869, 876 (11th Cir. 1985) ("Jurors are presumed to follow the law as they are instructed."). Because we presume that the jurors followed the court's instructions to base their sentencing decision on the evidence and the law, and not on arbitrary factors, Brown's attempt to prove prejudice is undermined. See Stamper v. Muncie, 944 F.2d 170, 177 (4th Cir. 1991) (holding that petitioner, who alleged ineffective assistance based on counsel's failure to "explore with certain members of the venire the 'reverse-Witherspoon' inquiry," failed "to demonstrate how any shortcoming on trial counsel's part constituted prejudice sufficient to satisfy the second prong of the Strickland test").7

Second, Brown failed to adduce any evidence that any juror was biased in favor of the death penalty. Third, the heinous nature of the crime and the absence of any mitigating factors make this a case in which the prosecutor had a strong case for the death penalty. For these reasons, we conclude that Brown has failed to show that McDonald's decision not to engage in the reverse-Witherspoon inquiry with the jury resulted in prejudice sufficient to satisfy the second prong of Strickland.

Brown argues that his conviction and death sentence violated his Eighth and Fourteenth Amendment rights because Davenport's testimony, which was directly related to the issue of Brown's intent, was procured through coercive prosecutorial tactics.8 Brown analogizes his conviction to one obtained through the use of perjured testimony. He argues that, where a witness's testimony has been coerced, this creates an unacceptable risk that a convictionmight be obtained based upon perjured testimony.

When Davenport was interviewed by deputies shortly after McGraw's murder, he apparently admitted much of the involvement to which he later testified at trial, including the fact that he drove Brown, Bankhead, and Bynum to McGraw's home on the fateful night, though he remained in the car. However, in his statement to the officers at the time, he indicated that he had heard nothing about any plans to kill McGraw in the car on the way to McGraw's home. Shortly before trial, Davenport was subpoenaed as a witness.

One of the prosecutors in the case, Mike Anderton, flew Davenport to Birmingham. Anderton and Mike McGregor, the other prosecutor in the case, met with Davenport the day before Brown's trial and interrogated him for two hours. The entire interview was taped. In response to a number of questions early in the interview, Davenport denied having heard any conversation about killing McGraw on the way to McGraw's home. McGregor persisted in questioning Davenport about this, insisting that he must have heard some conversation on the way to McGraw's home.

Davenport finally said, "[They] said they was going to go over to a queer's house to do a job," and then admitted having heard Brown, Bankhead, and Bynum talking about hitting McGraw. After Davenport asked whether he could be charged with this, one of the prosecutors said that he could be, but he probably would not be,9 charged, but he went on to say that one case they would make if need be was perjury if he lied on the stand. Anderton and McGregor told Davenport numerous times that he must tell the truth.

At trial, Davenport testified as to his involvement and what he saw and heard, including the fact that, on the way to McGraw's home, he heard a conversation in the car about "going and killing a queer, or something like that." He did not recall who made that statement. He also said that Brown and Bankhead both asked Bynum how hard Bynum could hit. Davenport also testified that Brown asked Bynum, "Well, can you knock this old man out?," and Bynum responded "yes." According to Davenport's testimony, Brown responded, "Well, if you can't I can."

The interrogation methods used by the prosecutors when questioning Davenport fall short of the level of egregiousness necessary to constitute a violation of Brown's constitutional rights. See Wilcox v. Ford, 813 F.2d 1140, 1148 (11th Cir. 1987). In Wilcox, the petitioner argued that testimony against him had been coerced from two witnesses and that this violated his due process rights and rendered his trial fundamentally unfair. See 813 F.2d at 1148. The two witnesses, both of whom were elderly, originally told the police that they knew nothing of the murder, but later, after extensive interrogation, signed statements attesting to their involvement, as well as the petitioner's involvement, in the crime.

The district court held that the "intimidation tactics" used by the police violated the petitioner's constitutional rights. We reversed. The transcripts of the interrogation showed that the police had "threatened to charge [one of the witnesses] with murder, threatened to lynch him, put words in his mouth, and told him he was headed for eternal damnation." Id. at 1147.

Another witness was interrogated for over eight hours without food or water and was told that he could be sent to the electric chair or would die in prison. See id. We held that, while the police misconduct was not commendable, the petitioner's due process rights were not violated and he had received a fundamentally fair trial. See id. at 1148-49.

We reached this conclusion because the petitioner had full knowledge of the nature of the two witnesses' interrogation, had access to the tapes and transcripts prior to trial, had an opportunity to use those materials when examining both witnesses, and was able to cross-examine both witnesses. See id. at 1149.

The rejection of Brown's claim that his constitutional rights were violated because Davenport's testimony was coerced follows a fortiori from Wilcox. The interrogation here falls far short of the much more egregious interrogation which survived constitutional scrutiny in Wilcox. The interrogation in the instant case was almost mild-mannered compared to that in Wilcox. It lasted only two hours and was taped in its entirety. Brown's trial counsel, McDonald, knew about Davenport's testimony on the first day of trial; and, as in Wilcox, Brown's counsel had an opportunity to review the taped interrogation before he cross-examined Davenport.

In fact, McDonald engaged in a lengthy cross-examination of Davenport concerning the interrogation and the changes in his testimony after the interrogation. The taped interrogation was also played for the jurors, which gave them an opportunity to evaluate whether the prosecutors had used improper interrogation methods and whether the interrogation had resulted in untruthful testimony, and gave them an opportunity to assess the challenged interrogation and the reliability of Davenport's testimony.

The jury obviously concluded that the interrogation did not result in untruthful testimony, but rather persuaded Davenport to abandon the few previous untruthful statements to officers and to give truthful testimony to the jury. Based on our own review of the challenged interrogation and Davenport's trial testimony, we conclude that Davenport's trial testimony was both voluntary and truthful. Therefore, we readily conclude that Brown's constitutional rights were not violated due to the introduction of Davenport's testimony.

For the foregoing reasons, the judgment of the district court denying relief is AFFIRMED.

*****

1

McGraw suffered at least fifteen cuts to his neck, including several deep wounds striking his carotid artery and jugular venous complex. He suffered fifty-nine stab wounds to his back, the deepest of which were two inches deep.

2

The rule is now Rule 32 of the Alabama Rules of Criminal Procedure, but we will refer to the state post-conviction proceedings as the Rule 20 proceedings.

3

Because Brown's habeas petition was filed on July 14, 1995, prior to the enactment of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) on April 24, 1996, which amended portions of 28 U.S.C. § 2254, we review Brown's petition under the pre-AEDPA standard. See Mincey v. Head, 206 F.3d 1106, 1130 n.58 (11th Cir. 2000).

4

Brown also argues on appeal that the state trial court's failure to instruct the jury that it did not have to be unanimous as to mitigating circumstances deprived him of a right to a constitutional sentencing hearing and that the state trial court's jury instruction on reasonable doubt impermissibly shifted the burden of proof. We agree with the district court that both of these claims are procedurally defaulted and thus we do not address these claims. Brown additionally argues that the district court erred in not affording him an evidentiary hearing. We conclude that the district court did not abuse its discretion in failing to hold an evidentiary hearing.

5

Brown also claims that he received ineffective assistance due to McDonald's failure to present evidence of his drug and alcohol use during the guilt phase of his trial. Because we conclude that McDonald made a reasonable tactical decision not to present evidence of Brown's substance abuse, given his opinion, based on years of experience, that juries are unsympathetic to drug users, especially those like Brown who also dealt drugs, we hold that Brown has failed to establish a claim of ineffective assistance with respect to the guilt phase of his trial.

6

The voir dire inquiry used to determine whether there are jurors who would vote automatically to impose the death penalty if a defendant were found guilty of a capital crime is referred to as the "reverse-Witherspoon" inquiry, because it arose from a line of death penalty voir dire cases exemplified by Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770 (1968).

7

This case is distinguished from Ex parte Yelder, 575 So. 2d 137 (Ala. 1991), where the Alabama Supreme Court presumed prejudice where trial counsel did not object, under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), to the state's use of its peremptory challenges to strike 17 out of 18 black jurors. In Yelder, there was a prima facie case of purposeful discrimination by the state in the jury selection process. See 575 So. 2d at 138-39. In this case, Brown cannot show that any juror was predisposed to impose the death penalty nor that any juror would have responded to or been excused because of a reverse-Witherspoon inquiry.

8

Respondents argue that this claim is procedurally defaulted because it was not raised at trial or on direct appeal. The Rule 20 court found that the claim was procedurally defaulted. The district disagreed, but dismissed the claim on the merits. Because we agree with the district court that this claim fails on the merits, we need not decide whether this claim is procedurally defaulted.

9

The prosecutor later explained that Davenport's involvement as the driver probably was not enough to make a case against him, because there was no apparent intent on the part of Davenport to take part in the crime.

 

 

 
 
 
 
home last updates contact