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Bryant v. Stirling

United States District Court, D. South Carolina, Aiken Division

March 19, 2019

James N. Bryant, III, Petitioner,
v.
Bryan P. Stirling, Commissioner, South Carolina Department of Corrections; Warden, Kirkland Correctional Institution, Respondents.

          OPINION AND ORDER

          Bruce Howe Hendricks United States District

         Petitioner, 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.)

         Petitioner 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.[1] 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.)

         I. LEGAL STANDARD

         A. The Magistrate Judge's Report and Recommendation

         The 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).

         B. Summary Judgment Standard

         Summary 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 Cir. 1987).

         The 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).

         A party “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).

         C. Section 2254 Standard

         Because 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.

         When a § 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; or
(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)).

         The 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 fairminded disagreement.”).
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 omitted).

         D. Ineffective Assistance of Counsel

         The 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).

         The 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.

         E. Procedural Default

         A 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 (1991).

         Absent 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).

         However, “[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 Martinez:

[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, 423 (2013)).

         In the 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)).

         DISCUSSION

         Petitioner 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).

         A. Ground One

         In 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.)

         Petitioner 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”).)

         At the 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.

         1. Concerns About Juror 342's Hearing Impairment at Trial

         The 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 alia:

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?
A: Ma'am?
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 ---
A: Yeah.
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?
A: 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 case.
A: No.
Q: I'm just saying could you find them either guilty or not guilty depending on the facts, one or the other could you find that?
A: What you [sic] saying regardless if I hear the facts or not?
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?
A: No.
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.

         Next, the solicitor questioned Juror 342 about her responses on the questionnaire:

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[2] 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.)

         The 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, the jury.

(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 properly:

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 this trial?
[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 understand?
[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).)

         At the 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 jury.
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).)

         During 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.)

         The sentencing phase began on Thursday, October 7, 2004, following a twenty-four-hour statutory waiting period.[3] (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 right.
[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).)

         The 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 hear.
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 ...

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