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DAVID JUNIOR BROWN'S
LEGAL DOCUMENTATION:
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-22
DAVID JUNIOR BROWN,
Petitioner-Appellant,
v.
JAMES B. FRENCH, Warden, Central
Prison, Raleigh, North Carolina,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, Chief District Judge.
(CA-87-184-3-V)
Argued: March 5, 1998
Decided: June 10, 1998
Before MURNAGHAN and ERVIN, Circuit Judges, and
MOON, United States District Judge for the
Western District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Judge Ervin wrote the opinion, in
which Judge Murnaghan and Judge Moon joined.
_________________________________________________________________
COUNSEL
ARGUED: Bruce Tracy Cunningham, Jr., CUNNINGHAM, DED-
MOND, PETERSEN & SMITH, L.L.P., Southern Pines, North Caro-
lina; Henderson Hill, FERGUSON, STEIN, WALLAS, ADKINS,
GRESHAM & SUMTER, P.A., Charlotte, North Carolina, for Appel-
lant. Barry Steven McNeill, Special Deputy Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee. ON BRIEF: Michael F. Easley, Attorney
General of North Carolina, NORTH CAROLINA DEPARTMENT
OF JUSTICE, Raleigh, North Carolina, for Appellee.
_________________________________________________________________
OPINION
ERVIN, Circuit Judge:
David Junior Brown appeals the district court's denial of his peti-
tion for a writ of habeas corpus. Brown raises three issues on appeal.
First, Brown argues that the prosecutor's failure to disclose allegedly
material, exculpatory information violated his Fourteenth Amendment
right to due process, as interpreted in Brady v. Maryland, 373 U.S. 83
(1963). Second, Brown argues that the cumulative effect of prosecu-
torial misconduct during his trial deprived him of his Sixth Amend-
ment right to the effective assistance of counsel. Finally, Brown
argues that his Eighth and Fourteenth Amendment rights were vio-
lated when the trial court allowed the admission, during the penalty
phase, of Brown's purported confession to his cellmate when the
State previously had not introduced this testimony at the guilt phase
of the trial. Finding none of the claims meritorious, we affirm.
I.
David Brown worked as a chef in a hotel in Pinehurst, North Caro-
lina. On the evening of Sunday, August 24, 1980, Brown was the disc
jockey for a party at which he consumed a substantial amount of alco-
hol and took at least five amphetamines. Brown had a distinctive sil-
ver ring which he wore to this party, although he avers that he took
it off while playing records about one-half hour after arriving at the
party.
At approximately 11:30 p.m. on Sunday evening, Brown and a
group of people left the party and went to a nightclub. Police officers
later observed Brown walking on the highway near the nightclub at
approximately 2:10 a.m. (now Monday morning). Brown was walking
2
barefoot, staggering, and carrying his shoes. The police officers gave
him a ride to his workplace, the Pinehurst Hotel, and left him at the
kitchen entrance at approximately 2:45 a.m. A supervisor at the hotel
saw Brown making a phone call from the hotel's front office between
2:30 and 3:00 a.m. and Brown left the hotel at approximately 3:00
a.m. Brown testified that he arrived back at the hotel at 6:00 a.m.,
although no one can independently corroborate his whereabouts until
approximately 7:00 a.m. A co-worker testified that she saw Brown at
work at 7:00 a.m. with two band-aids on his left thumb, and that
Brown was not wearing his distinctive silver ring. Brown told his co-
worker that he was in pain and that he had cut his hand. A nurse at
a nearby hospital testified that she saw Brown at the hospital on Mon-
day night at 11:00 p.m., at which time he was recovering from sur-
gery to repair cut tendons in his left hand.
The victims in this case were Shelly Diane Chalflinch, twenty-six,
and her nine-year-old daughter, Christina. They lived in the same
apartment complex as Brown, the Married Quarters Apartments in
Pinehurst. At trial, the evidence showed that Diane Chalflinch was
last seen alive at approximately 1:00 a.m., early Monday morning,
walking toward the apartment complex's laundry room. Brown devel-
oped testimony at an evidentiary hearing below that suggested Chal-
flinch may have been seen as late as 5:00 a.m. Chalflinch did not go
to work on Monday morning and did not phone to explain her
absence. Co-workers went to her apartment and knocked but heard no
response. When Chalflinch did not arrive at work again on Tuesday
morning, her co-workers phoned the police.
Police discovered a gruesome scene when they entered the Chal-
flinches' apartment on Tuesday morning. Both Diane and Christina
had been repeatedly stabbed to death. Diane Chalflinch had approxi-
mately 100 stab and cut wounds. Christina's body also bore multiple
stab wounds, including several in the head, and a brown electrical
cord was wrapped around her neck. Blood was on the floor and the
walls.
Several pieces of physical evidence connected Brown to the mur-
ders. Luminol and phenolphthalein tests, used to determine the pres-
ence of blood undetectable to the human eye, revealed prints of bare
feet in the kitchen. Police discovered patterns of blood outside the
3
Chalflinches' front door, on the steps leading down from their apart-
ment, and on the concrete pad at the foot of the steps. A fingerprint
expert identified a latent palm print on Diane Chalflinch's bedroom
wall as that of Brown's left palm print. At the door to Brown's apart-
ment, visible bloodstains were found on the concrete stoop. The
luminol test indicated the presence of blood on Brown's doorknob
and bare footprints of blood all over his kitchen floor. There was a
drop of blood on Brown's toolbox, which contained several knives,
and on a pillow at the head of his bed. In the Chalflinches' apartment,
police found a bloody knife blade, broken at both ends, with the
inscription "R. H. Forschner" printed on it. Brown's toolbox, seized
by police from his apartment, contained a collection of knives bearing
the inscription "R. H. Forschner." According to the evidence devel-
oped at the federal evidentiary hearing, Forschner knives are rare,
imported, professional chef's knives which Brown used in his work
as a cook at the hotel. Finally, the autopsy of Diane Chalflinch
revealed Brown's distinctive silver ring underneath her liver.
In December 1980, Brown was tried and convicted of first-degree
murder in the deaths of both victims. After a separate penalty phase,
the jury returned with sentences of death for both murders. The North
Carolina Supreme Court affirmed the convictions and sentences. State
v. Brown, 293 S.E.2d 569 (N.C. 1982), cert. denied, 459 U.S. 1080
(1982). A North Carolina district court denied Brown's post-
conviction motion for appropriate relief, and both the Supreme Court
of North Carolina and the U.S. Supreme Court denied certiorari.
In April 1987, Brown filed a petition for writ of habeas corpus in
federal court for the Western District of North Carolina. The district
court denied Brown's claims of error from the guilt phase of his trial,
granted the writ on three of his penalty phase claims, and declined to
consider another ten penalty phase claims. A previous panel of this
court affirmed the portion of the order denying Brown's guilt phase
claims and reversed the portion of the order granting the writ as to his
death sentences. Brown v. Dixon, 891 F.2d 490 (4th Cir. 1989). We
remanded the case to the district court for consideration of the
remaining ten claims in Brown's petition and of new evidence that
had become available to Brown's counsel while the case was on
appeal.
4
In 1996, the case was assigned to a magistrate judge who held an
evidentiary hearing and considered the parties' summary judgment
arguments. The magistrate judge recommended that the remaining
claims in Brown's petition be denied and that judgment be entered for
the State. The district court adopted the magistrate judge's recommen-
dations and denied the writ. Brown then filed a motion to reconsider,
treated by the district court as a Rule 59(e) motion to alter or amend
the judgment, which was denied.
II.
The district court's denial of the writ, granting summary judgment
to the State, is a final judgment over which this court has jurisdiction
pursuant to 28 U.S.C. §§ 1291 & 2253 (1994). Before addressing the
merits of this case, we first decide two preliminary matters raised by
the State.
First, the State argues that the standard of review governing all
Brown's claims should be limited to instances of the district court's
abuse of discretion. The State contends that Brown's notice of appeal
appears to cover only the district court's denial of Brown's Rule 59(e)
motion to amend the judgment, rendered on July 29, 1997, and not the
underlying Order, rendered on May 2, 1997, that granted the State
summary judgment. Our review of the denial of a Rule 59(e) motion,
as opposed to the merits underlying the motion, is for an abuse of dis-
cretion. See Temkin v. Frederick County Comm'rs. , 945 F.2d 716, 724
(4th Cir. 1991). The language of the notice is the following: Brown
appeals "from the Order entered on July 29, 1997, denying Petition-
er's motion for relief from the final judgment under Rule 59(e) and
reaffirming the May 2, 1997, Order dismissing a petition for a writ
of habeas corpus filed pursuant to 28 U.S.C. § 2254, and each and
every part of that order." J.A. at 710.
Every circuit court to address the question has held that designation
of a postjudgment motion in the notice of appeal is adequate to sup-
port a review of the final judgment when the intent to do so is clear.
See Moore's Federal Practice § 303.21[3][c][vii] at n.61 (3d ed. 1998)
(citing cases). We believe that an intent to appeal the underlying final
judgment is clear from the language in Brown's notice. This is espe-
cially so considering that the courts of appeal"should be liberal in
5
passing on the sufficiency of a notice of appeal." Gunther v. E.I. du
Pont de Nemours & Co., 255 F.2d 710, 717 (4th Cir. 1958). Given
this construction of the notice requirement, we find that the language
in the notice of appeal indicates an intent to appeal the district court's
summary judgment order of May 2. Accordingly, we review Brown's
legal arguments, and mixed questions of law and fact, de novo. Savino
v. Murray, 82 F.3d 593, 598 (4th Cir. 1996).
Second, the State relies on the same "notice argument" in a motion
to dismiss Brown's claim regarding the penalty phase testimony of
Brown's cellmate. The State argues that this claim was not included
in Brown's Rule 59(e) motion and therefore we lack jurisdiction to
review it. See Gunther, 255 F.2d at 717-18 (holding that jurisdiction
of the appellate court is determined by timeliness and specific terms
of the notice of appeal). For the reasons articulated above, however,
we believe that Brown's notice evidences a clear intent to appeal the
May 2 Order, and that the State is not prejudiced by allowing Brown
to proceed with his argument. Accordingly, we deny the State's
motion to dismiss Brown's argument for lack of jurisdiction.
III.
A.
Brown claims that the prosecutor's efforts to withhold and conceal
information from the defense deprived him of his right to due process
of law. In order to succeed on this claim, Brown must meet the stan-
dard articulated by the Court in Brady v. Maryland, 373 U.S. 83
(1963), and its progeny. Under Brady, the government violates a
defendant's constitutional right to due process when it withholds
material, exculpatory evidence from the defense. See Brady, 373 U.S.
at 83; Hoke v. Netherland, 92 F.2d 1350, 1356 (4th Cir. 1996). Evi-
dence is "material" only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceed-
ing would have been different. Hoke, 92 F.3d at 1356 (quoting United
States v. Bagley, 473 U.S. 667, 682 (1985)).
Brown alleges three instances in which the prosecutor withheld or
attempted to conceal material, exculpatory information from the
defense. Our review of these contentions, however, demonstrates that
6
in none of these cases was Brown deprived of information that would
have yielded a different result at his trial. First, Brown points to Wil-
lie 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' testi-
mony at the evidentiary hearing, however, was contradicted by the
State's witness, John Henry Brown. Brown presented compelling tes-
timony that Squires could not have been correct that the Chalflinches
were in the store at 4:30 a.m. on Monday morning; rather, John Henry
Brown testified that the Chalflinches were in the store early on
Sunday morning, around 4:30 or 4:45 a.m. But even if we credit
Squires' testimony, it only reduces the time frame in which David
Brown could have killed the victims to between 5:00 and 6:00 a.m.,
a highly plausible theory because the apartments are a short walk
from the hotel where Brown worked. See J.A. at 574-75.
Second, Brown mentions David Martin, who apparently had a date
with Diane Chalflinch for Saturday, August 23, and left a "terse note"
on her door when she stood him up. Brown did not present this evi-
dence at trial and he contends that had the police conducted an inves-
tigation, it would have supported the testimony of Raymond Pate
(who did testify at trial) that he saw a blond, long-haired man jumping
from a second-floor apartment at the Marriage Quarters on Monday
afternoon, August 25. Apparently, David Martin had long, blond hair
during this time period. The State points out, however, that David
Martin was seen in Macon, Georgia, where he attended law school,
during the time the murders could have taken place, and there is no
reason to suspect that he was the perpetrator of these crimes. Also,
based on Pate's testimony at trial, the "Martin note" provides no sup-
port 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 Chal-
flinches' apartment. Pate did not claim to have seen anyone jumping
from the balcony of the Chalflinches' apartment, and the jury obvi-
ously 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
7
murder may be coincidental, but it does not undermine confidence in
the outcome of the trial.
Third, Brown points to evidence that the prosecutor deliberately
moved one witness, Clarence Harding, from one hotel to another dur-
ing trial in order to keep him away from defense counsel. Brown also
claims that the prosecutor specifically instructed Harding not to talk
to defense counsel. Brown's counsel sought to question Harding
about the defense theory that Chalflinch's car may have been moved
during the day on Monday, August 25. The State points out, however,
that the defense at trial included testimony, from Pate rather than Har-
ding, 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 other-
wise before the jury at trial, the prosecutor's conduct does not under-
mine confidence in the outcome of this trial.
Brown frequently cites to Kyles v. Whitley, 514 U.S. 419 (1995),
in support of his argument. In Kyles, the Supreme Court held that the
prosecutor's withholding of certain evidence regarding its witnesses
at trial sufficiently undermined confidence in the outcome of the trial
to find that the suppressed evidence was "material." Kyles is far dif-
ferent from Brown's case, however, since in Kyles "the essence of the
State's case was the testimony of eyewitnesses, who identified Kyles
as [the] killer." Id. at 441. The Court relied on the fact that apart from
the testimony of eyewitnesses, "the physical evidence . . . would, by
the State's own admission, hardly have amounted to overwhelming
proof that Kyles was the murderer." Id. at 451.
The evidence in this case is completely different. While Brown
argues the allegedly exculpatory value of the evidence developed at
the evidentiary hearing, he cannot account for the overwhelming
physical evidence tying him to the crime: the trail of blood leading
from the Chalflinches' apartment to his own, the distinctive knife
used in the crime, and his ring found underneath the victim's liver.
The testimony from the evidentiary hearing does not cast doubt on the
finding of guilt given that the overwhelming physical evidence incul-
pates Brown as the perpetrator of these crimes.
8
Brown is surely correct that the prosecutor in this case unethically
and improperly withheld evidence from the defense. Brown's strong-
est argument for relief is based on the premise that the prosecutor's
unethical behavior should not go unpunished, and that granting
Brown a writ of habeas corpus might serve as the prosecutor's appro-
priate punishment. But however reprehensible we may find the
actions of the prosecutor, the focus of a Brady claim is not on him,
but rather on the character of the evidence that he has withheld. The
Supreme Court made this point clear in United States v. Agurs:
Nor do we believe the constitutional obligation is measured
by the moral culpability, or the willfulness, of the prosecu-
tor. . . . If the suppression of evidence results in constitu-
tional error, it is because of the character of the evidence,
not the character of the prosecutor.
United States v. Agurs, 427 U.S. 97, 110 (1976) (footnote omitted).
Considering the evidence which Brown could have introduced at
trial, had he known of its existence, and disregarding the bad faith of
the prosecutor in denying him access to it, we believe it is not "mate-
rial" evidence -- it is not reasonably probable that had the evidence
been introduced at trial, it would have resulted in a different verdict.
Brown's Brady claim, therefore, must fail.
B.
Brown argues that several actions by the prosecutor deprived him
of his Sixth Amendment right to the effective assistance of counsel.
This is not a typical Sixth Amendment ineffective assistance of coun-
sel claim that falls under the familiar Strickland v. Washington analy-
sis. In a typical Sixth Amendment claim, a habeas petitioner must
demonstrate specific errors of his trial counsel that undermine the reli-
ability 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 mis-
conduct of the prosecutor rendered his trial so fundamentally unfair
9
that it was essentially impossible for any counsel to render effective
assistance on his behalf.
Brown relies on the framework of the Supreme Court's decision in
United States v. Cronic, 466 U.S. 648 (1984). In Cronic, the Court
observed that "there is generally no basis for finding a Sixth Amend-
ment violation unless the accused can show how specific errors of
counsel undermined the reliability of the finding of guilt." Id. at 659
n.26. An exception exists, however, "on some occasions when
although counsel is available to assist the accused during trial, the
likelihood that any lawyer, even a fully competent one, could provide
effective assistance is so small that a presumption of prejudice is
appropriate without inquiry into the actual conduct of the trial." Id. at
659-60 (citing Powell v. Alabama, 287 U.S. 45 (1932)). The Court
suggested that the complete denial of counsel and counsel that
actively represented conflicting interests would be examples of such
occasions. See Cronic, 466 U.S. at 659 & 661 n.28. This is an
extremely high showing for a criminal defendant to make and, in
Cronic itself, the Court held that although trial counsel in Cronic's
mail fraud prosecution was given only 25 days to prepare for trial,
counsel was inexperienced in criminal matters, the charges against
Cronic were complex, and that some witnesses were not easily acces-
sible, this set of events did not constitute a Sixth Amendment viola-
tion absent a showing of actual ineffectiveness.
Apart from evidence of the prosecutor's misconduct that was
developed at the evidentiary hearing on remand, we know that the
prosecutor in this case also denied defense counsel's request to have
access to, and be allowed to inspect, the crime scene. In our previous
decision, we rejected Brown's argument that the prosecutor's refusal
to allow access to the crime scene rose to the level of constitutional
error. See Brown, 891 F.2d at 495. We suggested, however, that
Brown might develop testimony at the evidentiary hearing that could
cause the district court to make a different determination as to the
prejudice occasioned by the prosecutor's misconduct. See Brown, 891
F.2d at 495 & 495 n.10 (finding no error, but "leaving out of the pic-
ture" 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.
10
It is undisputed that the prosecutor denied Brown's counsel access
to the crime scene and that had such denial carried with it a reason-
able 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 fundamen-
tal 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 testi-
mony of Squires, Pate, and Harding) does not rise to the level of a
constitutional violation, and it therefore provides no occasion for us
to reconsider our previous ruling in this case.
We previously held that the denial of access to the crime scene was
not prejudice "of a sufficient magnitude to give rise to the presump-
tion 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 physi-
cal evidence of his guilt (his ring, the palmprint on the bedroom wall,
the blood in his apartment, and the distinctive inscription of the knife)
is too overwhelming to say that introduction of the newly discovered
evidence, together with evidence that might have been obtained by
defense counsel viewing the crime scene, would have changed the
outcome of either the guilt or penalty phases of Brown's trial.
C.
At the penalty phase of the trial, the State called Brown's pre-trial
cellmate, Roy Brown, to testify that David Brown had confessed to
him in their cell that he had committed the murders. Brown, the
appellant, claims that allowing the State to introduce this confession
at the penalty phase, when it did not introduce it during the guilt
phase, violated his rights under the Eighth and Fourteenth Amend-
ments.
11
The North Carolina Supreme Court rejected this claim on direct
appeal. The court held that the confession was probative evidence to
rebut the evidence submitted by Brown at the guilt phase of the trial
that would support mitigating circumstances. See Brown, 293 S.E.2d
at 587-88. In his brief, Brown cites no case to support his argument
that allowing this testimony at the penalty phase violated his right to
due process. Indeed, precedent would suggest that admission of his
confession did not violate his right to due process:
[T]he Constitution does not prohibit consideration at the
sentencing phase of information not directly related to either
statutory aggravating or statutory mitigating factors, as long
as that information is relevant to the character of the defen-
dant or the circumstances of the crime.
Barclay v. Florida, 463 U.S. 939, 967 (Stevens, J., concurring).
The lack of precedent to support Brown's claim makes it clear that
even if we agreed with Brown that admission of his confession during
the penalty phase violated his right to due process, such a decision
would be a "new rule" that is forbidden by Teague. See Teague v.
Lane, 489 U.S. 288 (1989). Regardless of the merits of the claim, the
State is correct that the claim is barred by Teague and Brown offers
no argument, nor can he, that his proposed rule would fall within one
of the two Teague exceptions. See Teague , 489 U.S. at 307-10.
IV.
For the reasons articulated above, the district court correctly denied
Brown's petition for a writ of habeas corpus. The judgment is there-
fore affirmed.
AFFIRMED
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