United States District Court, D. South Carolina, Aiken Division
James N. Bryant, III, Petitioner,
Bryan P. Stirling, Commissioner, South Carolina Department of Corrections; Warden, Kirkland Correctional Institution, Respondents.
OPINION AND ORDER
Howe Hendricks United States District
James N. Bryant (“Petitioner”), represented by
counsel and under a sentence of death, seeks habeas corpus
relief pursuant to 28 U.S.C. § 2254. This action is
before the Court on Petitioner's amended petition for
writ of habeas corpus and Respondents' motion for summary
judgment. (ECF Nos. 65 and 73.) In accordance with 28 U.S.C.
§ 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c),
D.S.C., this matter was referred to United States Magistrate
Judge Shiva V. Hodges, for pre-trial proceedings and a Report
and Recommendation (“Report”). On July 26, 2018,
Judge Hodges issued a Report recommending that
Respondents' motion for summary judgment be granted and
the amended petition for writ of habeas corpus be denied and
dismissed with prejudice. (ECF No. 86.)
filed objections on August 29, 2018 (ECF No. 89), and
Respondents replied on September 12, 2018 (ECF No. 90). The
Report sets forth the relevant factual and procedural
background (ECF No. 86 at 4-14), which the Court incorporates
herein without recitation. For the reasons set forth herein, the
Court overrules Petitioner's objections with respect to
Grounds Four through Nine of the amended petition,
ACCEPTS the Magistrate Judge's Report as
to Grounds Four through Nine, sustains Petitioner's
objections with respect to Grounds One and Two of the amended
petition, and REJECTS the Report as to
Grounds One and Two. (ECF No. 86.) Therefore, the Court
GRANTS Respondents' motion for summary
judgment as to Grounds Four through Nine, and
DENIES the motion as to Grounds One and Two.
(ECF No. 73.) Consequently, the Court GRANTS
Petitioner's amended petition for writ of habeas corpus
as to Grounds One and Two. (ECF No. 65.)
The Magistrate Judge's Report and
Magistrate Judge makes only a recommendation to the Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The Court is charged with making a de novo
determination of those portions of the Report to which
specific objection is made, and the Court may accept, reject,
or modify, in whole or in part, the recommendation of the
Magistrate Judge, or recommit the matter with instructions.
28 U.S.C. § 636(b)(1). However, the Court need not
conduct a de novo review when a party makes only
“general and conclusory objections that do not direct
the court to a specific error in the magistrate's
proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of a timely filed, specific objection, the Magistrate
Judge's conclusions are reviewed only for clear error.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
Summary Judgment Standard
judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).
It is well established that summary judgment should be
granted “only when it is clear that there is no dispute
concerning either the facts of the controversy or the
inferences to be drawn from those facts.” Pulliam
Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th
party moving for summary judgment has the burden of showing
the absence of a genuine issue of material fact, and the
Court must view the evidence before it and the inferences to
be drawn therefrom in the light most favorable to the
nonmoving party. United States v. Diebold, Inc., 369
U.S. 654, 655 (1962). When a respondent is the moving party
and the petitioner has the ultimate burden of proof on an
issue, the respondent must identify the parts of the record
that demonstrate the petitioner lacks sufficient evidence.
The nonmoving party must then go beyond the pleadings and
designate specific facts showing that there is a genuine
issue for trial. Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986); see Fed. R. Civ. P. 56(c).
“cannot create a genuine issue of material fact through
mere speculation or the building of one inference upon
another.” Beale v. Hardy, 769 F.2d 213, 214
(4th Cir. 1985). Therefore, “[m]ere unsupported
speculation . . . is not enough to defeat a summary judgment
motion.” At Ennis v. National Ass'n of Bus.
& Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).
Section 2254 Standard
Petitioner filed the petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), his claims are governed by 28 U.S.C.
§ 2254(d), as amended. Lindh v. Murphy, 521
U.S. 320 (1997). Section 2254 “sets several limits on
the power of a federal court to grant an application for a
writ of habeas corpus on behalf of a state prisoner.”
Cullen v. Pinholster, 563 U.S. 170, 181 (2011). For
instance, § 2254 authorizes review of only those
applications asserting a prisoner is in custody in violation
of the Constitution or federal law and only when, except in
certain circumstances, the prisoner has exhausted remedies
provided by the State. Id.
§ 2254 petition includes a claim that has been
adjudicated on the merits in a State court proceeding, §
2254 provides that the application shall not be granted with
respect to that claim, unless the State court's
adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d). “This is a ‘difficult
to meet,' and ‘highly deferential standard for
evaluating state-court rulings, which demands that
state-court decisions be given the benefit of the
doubt.'” Pinholster, 563 U.S. at 181
(internal citations omitted) (quoting Harrington v.
Richter, 562 U.S. 86, 102 (2011); Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).
Fourth Circuit Court of Appeals recently explained proper
application of these standards as follows:
Under § 2254(d)(1), such a decision is “contrary
to” Supreme Court precedent “if the state court
applied a rule that contradicts the governing law set forth
in” Supreme Court cases, or “confronted a set of
facts that are materially indistinguishable from a Supreme
Court decision and nevertheless arrive[d] at a result
different from [that] precedent.” Williams v.
Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146
L.Ed.2d 389 (2000). A decision is an “unreasonable
application” of clearly established Supreme Court
precedent if the PCR court “correctly identified the
governing legal rule but applied it unreasonably to the facts
of a particular prisoner's case.” Id. at
407-08, 120 S.Ct. 1495. “In order for a federal court
to find a state court's application of Supreme Court
precedent unreasonable, the state court's decision must
have been more than incorrect or erroneous. The state
court's application must have been objectively
unreasonable.” Wiggins, 539 U.S. at 520-21,
123 S.Ct. 2527 (internal citation and quotation marks
omitted); see also Harrington v. Richter, 562 U.S.
86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (“[A]
state prisoner must show that the state court's ruling on
the claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
Alternatively, a state prisoner may be granted relief
pursuant to § 2254(d)(2) if the PCR court['s]
decision was based on a factual determination
“sufficiently against the weight of the evidence that
it is objectively unreasonable.” Winston v.
Kelly, 592 F.3d 535, 554 (4th Cir. 2010). As with legal
conclusions, “for a state court's factual
determination to be unreasonable under § 2254(d)(2), it
must be more than merely incorrect or erroneous.”
Id. (internal citation omitted).
Williams v. Stirling, 914 F.3d 302, 311-12 (4th Cir.
2019), as amended (Feb. 5, 2019) (modifications
Ineffective Assistance of Counsel
Sixth Amendment to the United States Constitution provides
that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for
his defence.” U.S. Const. amend. VI. The United States
Supreme Court has held that this right is violated when
counsel retained by, or appointed to, a criminal defendant
fails to provide adequate or effective legal assistance.
See Strickland v. Washington, 466 U.S. 668, 686
(1984). Strickland established a two-prong test for
a claim of ineffective assistance of counsel in violation of
the Sixth Amendment, under which the criminal defendant must
show deficient performance and resulting prejudice.
Id. at 687. “The performance prong of
Strickland requires a defendant to show ‘that
counsel's representation fell below an objective standard
of reasonableness.'” Lafler v. Cooper, 566
U.S. 156, 163 (2012) (quoting Hill v. Lockhart, 474
U.S. 52, 57 (1985)). “[C]ounsel should be
‘strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of
reasonable professional judgment, '” and courts
should indulge in a “‘strong presumption that
counsel's conduct fell within the wide range of
reasonable professional assistance.'” Burt v.
Titlow, 134 S.Ct. 10, 17 (2013) (modifications omitted)
(quoting Strickland, 466 U.S. at 689-90). “To
establish Strickland prejudice a 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.'”
Lafler, 566 U.S. at 163 (quoting
Strickland, 466 U.S. at 694).
standard for an ineffective assistance claim under
Strickland in the first instance is already “a
most deferential one, ” and “‘[s]urmounting
Strickland's high bar is never an easy
task.'” Harrington v. Richter, 562 U.S.
86, 105 (2011) (quoting Padilla v. Kentucky, 559
U.S. 356, 371 (2010)). “Establishing that a state
court's application of Strickland was
unreasonable under § 2254(d) is all the more difficult,
” because the “standards created by
Strickland and § 2254(d) are both ‘highly
deferential,' and when the two apply in tandem, review is
‘doubly' so.” Id. (internal
citations omitted) (quoting Knowles v. Mirzayance,
556 U.S. 111, 123 (2009)); Lindh, 521 U.S. at 333
n.7; Strickland, 466 U.S. at 689). “When
§ 2254(d) applies, the question is not whether
counsel's actions were reasonable. . . . [but] whether
there is any reasonable argument that counsel satisfied
Strickland's deferential standard.”
Richter, 562 U.S. at 105.
petitioner's failure to raise in State court a claim
asserted in his § 2254 petition “implicates the
requirements in habeas of exhaustion and procedural
default.” Gray v. Netherland, 518 U.S. 152,
161 (1996). “The habeas statute generally requires a
state prisoner to exhaust state remedies before filing a
habeas petition in federal court.” Woodford v.
Ngo, 548 U.S. 81, 92 (2006). Thus, “[a] state
prisoner is generally barred from obtaining federal habeas
relief unless the prisoner has properly presented his or her
claims through one ‘complete round of the State's
established appellate review process.'”
Id. (quoting O'Sullivan v. Boerckel,
526 U.S. 838, 845 (1999)). In a similar vein, “a habeas
petitioner who has failed to meet the State's procedural
requirements for presenting his federal claims has deprived
the state courts of an opportunity to address those claims in
the first instance” and has procedurally defaulted
those claims. Coleman v. Thompson, 501 U.S. 722, 732
an exception, a federal court will not entertain a
procedurally defaulted claim, so long as the State procedural
requirement barring the State court's review is adequate
to support the judgment and independent of federal law.
See Martinez v. Ryan, 566 U.S. 1, 9-10 (2012);
Walker v. Martin, 562 U.S. 307, 315-16 (2011);
Beard v. Kindler, 558 U.S. 53, 55 (2009).
“Thus, if state-court remedies are no longer available
because the prisoner failed to comply with the deadline for
seeking state-court review or for taking an appeal, those
remedies are technically exhausted, but exhaustion in this
sense does not automatically entitle the habeas petitioner to
litigate his or her claims in federal court.”
Woodford, 548 U.S. at 93 (internal citation
omitted). Rather, “if the petitioner procedurally
defaulted those claims, the prisoner generally is barred from
asserting those claims in a federal habeas proceeding.”
Id. (citing Gray, 518 U.S. at 162;
Coleman, 501 U.S. at 744-51).
“[t]he doctrine barring procedurally defaulted claims
from being heard is not without exceptions. A prisoner may
obtain federal review of a defaulted claim by showing cause
for the default and prejudice from a violation of federal
law.” Martinez, 566 U.S. at 10 (citing
Coleman, 501 U.S. at 750). “In
Coleman, . . . the Supreme Court held that . . . a
federal habeas ‘petitioner cannot claim
constitutionally ineffective assistance of counsel in [State
post-conviction] proceedings to establish cause.'”
Fowler v. Joyner, 753 F.3d 446, 460 (4th Cir. 2014)
(quoting Coleman, 501 U.S. at 752). Subsequently, in
Martinez, the Supreme Court recognized a
“narrow exception” to the rule stated in
Coleman and held that, in certain situations,
“[i]nadequate assistance of counsel at initial-review
collateral proceedings may establish cause for a
prisoner's procedural default of a claim of ineffective
assistance at trial.” Martinez, 566 U.S. at 9.
The Fourth Circuit has summarized the exception recognized in
[A] federal habeas petitioner who seeks to raise an otherwise
procedurally defaulted claim of
ineffective-assistance-of-trial-counsel before the federal
court may do so only if: (1) the
ineffective-assistance-of-trial-counsel claim is a
substantial one; (2) the “cause” for default
“consists of there being no counsel or only ineffective
counsel during the state collateral review proceeding;”
(3) “the state collateral review proceeding was the
initial review proceeding in respect to the
ineffective-assistance-of-trial-counsel claim;” and (4)
state law “requires that an
ineffective-assistance-of-trial-counsel claim be raised in an
initial-review collateral proceeding.”
Fowler, 753 F.3d at 461 (internal modifications
omitted) (quoting Trevino v. Thaler, 569 U.S. 413,
alternative to showing cause and prejudice, a petitioner may
attempt to demonstrate a miscarriage of justice,
e.g., actual innocence (see Bousley v. United
States, 523 U.S. 614, 623 (1998) (stating that a
petitioner's claim may be reviewable despite procedural
default if he can establish that the constitutional error at
issue “has probably resulted in the conviction of one
who is actually innocent” (internal quotation marks and
citation omitted)); see also Schlup v. Delo, 513
U.S. 298, 327-28 (1995)), or abandonment by counsel (see
Maples v. Thomas, 565 U.S. 266, 283 (2012) (inquiring
“whether [the petitioner] ha[d] shown that his
attorneys of record abandoned him, thereby supplying the
extraordinary circumstances beyond his control, necessary to
lift the state procedural bar to his federal petition”
(internal quotation marks and citations omitted)).
filed timely objections to the Magistrate Judge's Report
on August 29, 2018. (ECF No. 89.) In his objections,
Petitioner challenges the Magistrate Judge's reasoning
and conclusions on Grounds One, Two, Four, Five, Six, Seven,
Eight, and Nine from his amended petition. He has expressly
abandoned his Third and Tenth Grounds for relief, and those
claims are not addressed herein. (See Resp. to Mot.
for Summ. J., ECF No. 78 at 16, 66; Obj., ECF No. 89 at 4,
21.) Petitioner concedes that the ineffective assistance of
trial counsel claims he raises in Grounds Five, Seven, and
Nine are subject to procedural default, as those claims were
not previously raised to and ruled upon by the State court
that adjudicated his initial post-conviction review petition
(“PCR Court”). (ECF No. 78 at 35, 46, 65.)
Accordingly, the Court will confine its analysis of the
procedurally defaulted claims to the question whether
Petitioner has made a sufficient showing to overcome the
procedural bar pursuant to Martinez v. Ryan, 566
U.S. 1 (2012).
Ground One, Petitioner alleges he was denied his right to a
fair trial before an impartial jury under the Sixth, Eighth,
and Fourteenth Amendments to the U.S. Constitution when he
was convicted and sentenced to death by a hearing-impaired
juror who did not hear portions of the trial testimony. (ECF
No. 65 at 7.) After extensive recitation of the trial record
pertaining to concerns about Juror 342's hearing
deficiency and qualification to sit on the jury, the
Magistrate Judge concluded that the PCR Court's denial of
this claim was not based on unreasonable factual findings,
nor was it contrary to, or did it reflect an unreasonable
application of, federal law. (ECF No. 86 at 23-46.)
argues that the evidence presented to the PCR Court about
Juror 342's hearing impairment introduced facts that were
unknown to the trial court at the time of trial and
illustrated just how incapacitated Juror 342 really was.
Specifically, Petitioner points to the PCR testimony of Juror
342's husband, stating that he “provided additional
information about her inability to hear.” (ECF No. 89
at 2 (citing ECF No. 69-12 at 38-40).) Petitioner objects to
the Magistrate Judge's finding that Petitioner failed to
demonstrate by clear and convincing evidence that the PCR
Court's factual findings were unreasonable in light of
the record. Petitioner argues that Juror 342 simply was not
qualified to sit on Petitioner's jury, and, particularly
in light of the “heightened reliability requirements of
capital cases, ” that her participation violated his
right to an impartial jury. (See ECF No. 89 at 2-3
(citing Zant v. Stephens, 462 U.S. 862 (1983);
Woodson v. North Carolina, 428 U.S. 280 (1976);
Thompson v. Oklahoma, 487 U.S. 815, 856 (1988)
(“Under the Eighth Amendment, the death penalty has
been treated differently from all other punishments”).)
outset, the Court would note the extraordinary level of care
and diligence exemplified by the Magistrate Judge throughout
her exhaustive and well-reasoned Report. Nonetheless, after
careful consideration, the Court sustains Petitioner's
objection and rejects the Report's conclusions and
recommendation as to Ground One.
Concerns About Juror 342's Hearing Impairment at
concerns with Juror 342's ability to hear began in voir
dire. (See ECF No. 69-4 at 48-66.) Juror 342
answered various questions posed by the trial judge in a
manner that could indicate difficulty hearing, inter
THE COURT: . . . . If you'll state your name for the
record, please. [Juror 342]: Excuse me?
Q: . . . . Did you recognize any of those potential witnesses
as being related to you by blood or marriage or being
personal or business acquaintances of yours?
A: Yes, ma'am.
Q: Who? Who is related to you by blood or marriage or who is
a personal or a business acquaintance?
A: Oh, I'm sorry, no, ma'am.
Q: . . . . If you're under oath and you're told that
you must apply the law as I instruct it whether you agree
with it or not would you, could you do that?
A: No, ma'am.
Q: Okay, you would not apply the law as instructed? Is that
what you're saying?
Q: You would not apply the law as instructed?
A: Oh, no, I wouldn't - answer to the best of ability,
you know. I wouldn't tell nothing that's not true.
Q: Could you, based on the facts and circumstances of the
case and the law that I'd instruct, at that phase of the
case could you find the Defendant either not guilty or guilty
depending on the facts and you can't guess which now ---
Q: --- but could, could you, based on the facts and
circumstances and the law instructed, could you find the
Defendant either guilty or not guilty?
Q: Okay, you're saying guilty. I'm not asking you to
guess which one because you don't know the facts of the
Q: I'm just saying could you find them either guilty or
not guilty depending on the facts, one or the other could you
A: What you [sic] saying regardless if I hear the facts or
Q: No, I'm saying, I'm asking you after you've
heard the facts, but you don't know what they are now,
can you then make a determination that he's either guilty
or not guilty? That's after you've heard the facts.
A: No, ma'am.
Q: Could you do that?
A: No, ma'am.
Q: You couldn't say that he was guilty or not guilty?
A: I could say not guilty until I hear it, yes.
Q: Right, you're right. They're presumed innocent,
they're presumed not guilty till you hear, but what
I'm asking you is at the guilt phase you and your fellow
jurors have to decide if the State met their burden of proof.
If the State did not meet its burden of proof you would have
to find the Defendant not guilty. Could you do that?
A: Yes, ma'am.
Q: Okay, if you are chosen to serve as a juror in this case
you will be housed in a motel during the course of the trial.
It may be up to ten days. I don't anticipate it'll be
that long, but I'll have you pack for ten days. Except
for the personal inconvenience that this would pose would
this pose any serious danger to the health or well-being of
yourself or those dependent upon you?
A: Yes, ma'am.
Q: It would? Would it pose a serious danger to the health or
well-being of you or someone who is dependent on you if you
were in a motel?
A: No, ma'am.
Q: It won't?
Q: Okay, now, you've answered me both ways and I need to
clarify this like I've done on some of these others.
A: I understand what you're saying.
(Id. at 49, 52, 53, 56-58, 60.) However, these and
other lapses in communication that occurred during the trial
judge's questioning of Juror 342 could have simply
resulted from Juror 342's failure to understand the trial
judge's meaning, from poorly worded questions, or from
other sources of confusion.
the solicitor questioned Juror 342 about her responses on the
Q: Okay, all right, and I notice that in the last question
there about whether you had a mental or physical condition
that might make you unable to serve you said that you had a
hearing problem with your right ear.
A: Yes, sir; yes.
Q: And I notice a couple of times when the Judge was talking
to you[, ] you kind of put your hand up there.
A: Yeah, so I can focus.
Q: All right, and can you tell us - can you hear at all out
of that ear?
A: Yeah, I can hear.
Q: Okay, can you hear me okay when I'm talking?
A: Yes, sir.
(Id. at 62-63.) At the conclusion of her voir dire,
both the solicitor and trial counsel found Juror 342 to be
qualified. (Id. at 67.) The trial judge then
informed Juror 342 that she had been qualified to serve in a
death penalty case, and needed to return to the courthouse
the following Monday at ten o'clock with a bag packed for
ten days. (Id.)
jury was selected on Monday, October 4, 2004. (Id.
at 119, 146-53, 167, 174.) Following the jury being sworn,
the trial judge provided a number of general instructions,
including the following:
Another important hand signal, because you are the judge of
the facts of the case, is this, and this means ‘Judge,
I cannot hear or I cannot see.' I'll figure out which
one it is and I'll make sure that that witness speaks up
or that attorney speaks up or I speak up or that that
document or photograph or exhibit is better displayed to you,
(Id. at 183-84.) After the parties made opening
statements and seven of the State's witnesses testified,
the trial judge sua sponte questioned the jury, and
specifically Juror 342, about whether they could hear
THE COURT: While we wait on [the next witness] to come, let
me ask you is every member of the jury able to hear? If you
are able to hear just raise your hand for me. I need to be
sure that everybody is able to hear. All right,
let me ask you once again, is every member of the jury
panel able to hear?
Is every member of the jury able to hear? All right,
I'm getting an indication that one juror is
unable to hear; is that correct? Are you having
difficulty hearing? You are?
[Juror 342]: Yes.
THE COURT: Have you been having difficulty hearing throughout
[Juror 342]: Long as I'm looking, you know, facing you I
can read your lips and understand what you're saying.
THE COURT: All right, so, you really have to read lips to
[Juror 342]: Yes, ma'am.
THE COURT: Because there's been plenty of times that
they have turned away. Have you heard all of
the evidence and testimony in this trial?
[Juror 342]: I heard.
THE COURT: Okay, I don't mean to put you on the spot
because we will work with you. I just want to make sure you
haven't missed anything thus far. Have you heard?
[Juror 342]: Yes, ma'am.
THE COURT: You can, okay. All right, we need to be very
mindful then that she is actually reading lips. That's
assisting her. So, we'll have to be - have our witnesses
actually looking that direction and facing. If at any time
you don't understand or can't hear you need to let us
know. Do you understand that?
[Juror 342]: Yes, ma'am.
(ECF No. 69-5 at 86-87 (emphasis added).)
end of the first day of trial, the trial judge gave
additional instructions to the jury, and specifically told
Juror 342 that she would be escorted to get her clothes
packed for ten days, because she had not packed clothes as
instructed, though every other juror was packed for ten days.
(Id. at 97-100.) Upon dismissing the jury for the
evening, the trial judge openly expressed her concerns about
Juror 342 to government and defense counsel:
THE COURT: All right, I want you to know that I've got
some concerns about the one juror who is lip reading. I want
to be sure - I have concerns that it was not brought to
light that she really needed to lip read when we were
doing the individual voir dire. She indicated she
had a hearing problem but said it was taken care of, that
she, in fact, could hear, but now I'm understanding that
she, in fact, lip reads. Now, that would not preclude her
from serving. My concern is it hasn't come to our
attention until recently and I've asked her about whether
she has missed anything, but I'm going to be very mindful
of that and ask that you all be very mindful of that as
well. In other words, when you're asking questions
sometimes you're going to have to be looking over at that
I'm going to periodically make sure that all are able to
hear and watch that situation as best I can. I'm also
going to hear from the SLED agents and those to see if there
is - if they get any indication that she's really having
difficulty even lip reading, and then if that is the case
then we will address that. Hopefully that will not be the
case and simply being aware of it and looking towards her and
making sure that she's able to hear everything will work
and that will be sufficient. I just wanted to raise that
issue because I want to let you know that when they went to
pick her up there was a couple of things. She didn't
hear me say that she was to pack her bags for ten days.
So, she did not pack her bags for ten days. So, she missed
that, although she did hear to be here today and to be here
at ten o'clock, and she did come, but she came with, I
think, an aunt and a niece and without bags packed. So, she
is going to have to be taken to get her bags packed. So,
we've got to watch this situation pretty closely. Be
aware that I'm aware of it. Anything that I hear that is
reported through this court you will become, you will be made
aware of it immediately if I think it's a concern about
her ability to serve. We're going to try to adapt as much
as we can to be sure that she's able to.
(Id. at 100-02 (emphasis added).)
the next day of trial, October 5, 2004, the continuation of
the guilt phase, the trial judge again questioned the jurors
about their ability to hear:
THE COURT: . . . . I have been told that lunch has arrived
and ladies and gentlemen of the jury, I will allow you to go
back to the jury room at this time with a reminder please do
not discuss the case. Before I send you back I'm going to
ask you one more time is everybody having - are there any
problems seeing or hearing anything? Are you having any
problems? If you're having any problems - let me put it
this way, if you're not having any problems seeing or
hearing raise your hand.
All right, all right, now, ma'am, you delayed.
Can you hear, are you able to hear?
[Juror 342]: (Indicates affirmatively.) Yeah.
THE COURT: Have you been able to hear all of the testimony?
[Juror 342]: I heard them all.
(ECF No. 69-6 at 4-5 (emphasis added).) The State concluded
its guilt-phase evidence later that day. (Id. at
74.) The Defense did not present any guilt-phase evidence.
(Id. at 85-86.) The jury began deliberating at 4:53
p.m., and returned a guilty verdict at 5:40 p.m.
(Id. at 123-25.)
sentencing phase began on Thursday, October 7, 2004,
following a twenty-four-hour statutory waiting
period. (ECF No. 69-6 at 126-31.) On Friday,
October 8, 2004, the trial judge briefly interrupted the
sentencing-phase proceedings and interjected the following
exercise to test whether the jurors were hearing properly:
THE COURT: While [the next witness] is coming forward let me
ask is everybody able to hear? Everybody able to hear me? All
right, if you're able to hear me raise your hand. All
[The witness is seated by the clerk of court.]
THE COURT: All right, ma'am, thank you. Please be seated.
If you have, if you're in the jury box and you have on a
yellow shirt would you stand up. You might need to look at
your shirt to decide. Would you stand up if you have on a
yellow shirt. I'm not picking on you, just whoever has on
a yellow shirt stand up.
All right, if you have, happen to have on a green shirt or
you have green in it would you stand up. I know this seems
unusual, but bear with me. Thank you. You can, you can be
seated. If you have on a blue shirt would you stand up? If
you have on a blue shirt. You might want to look at your
shirt, but if you have on a blue shirt would you stand up?
All right, thank you. We'll continue.
(ECF No. 69-8 at 100.) The solicitor subsequently moved to
have Juror 342 excused from the jury due to his belief that
she was not hearing all the testimony:
[Solicitor]: . . . . Your Honor, the final thing I would like
to bring up is that I would move at this time to excuse Juror
342[.] I don't think - I think she's
following part of the trial testimony. I don't think
she's catching all of it. Your Honor had gone
through an exercise to test her hearing ability at one point
and she did not stand up when you asked about the blue blouse
until the, I think the juror beside her to her left ---
THE COURT: I, I don't know. I watched that carefully.
[Solicitor]: --- was trying to help her, nudged her.
THE COURT: It looked like she was starting to stand up when
the juror was nudging. So, it was really hard to gauge.
I'll tell you what I will do. I will do another similar
test and I know that seemed real odd and I'm glad that
you've mentioned it. I did do a test. I have been
watching her and I just want to be assured that she's
able to hear. I will do it again tomorrow, and hopefully
we'll have nobody, hopefully she'll be sitting by
someone else and nobody nudging and I'll try that once
again. I have been asking about it. I have asked the SLED
agents who have been watching, who have been seeing them in
the evenings, too, whether she's able to hear and
they've indicated that they thought she could, but I have
had my concerns and that's the reason that I had that
unusual request of the jurors that if you have on a yellow
shirt stand or a blue shirt and it was exactly that reason,
to test her, and I am unsure whether she was beginning to
stand when she was nudged or whether she was nudged to
stand. I think the appropriate thing to do is try it
again, and I certainly note your motion and we'll take it
up, remind me tomorrow and we'll take it up again
tomorrow depending on the results that we get.
(ECF No. 69-8 at 250-51 (emphasis added).)
trial judge, prompted by the solicitor, tested the
jurors' hearing in a similar manner the following day,
Saturday, October 9, 2004:
[Solicitor]: And, Your Honor, the only other item the State
would wish to bring up at this time would pertain to the
juror since we're running towards the end of this trial,
Juror 342,  I still continue to be concerned about her
apparent deafness and inability to follow all the
testimony. THE COURT: All right, and what I said I would
do in that regard is that I would call them out and I'm
going to have to go through a type of a test as I did
yesterday either with the color of their shirt or pants or
the color of their hair, something creative to try to see
whether she's able to hear because there have been
some things that have brought or cause the Court some
concern, times when it looks like maybe she's, she's
not watching back and forth and she's not able to
THE COURT: . . . . We're going to do an exercise once
again today. So listen very carefully as I ask you these
questions. If there are any gentlemen with ...