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Woodard v. Secretary, Department of Corrections

United States District Court, N.D. Florida, Tallahassee Division

July 22, 2019

MAURICE WOODARD, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

          REPORT AND RECOMMENDATION

          MICHAEL J. FRANK UNITED STATES MAGISTRATE JUDGE.

         Petitioner Maurice Woodard has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1), with supporting memorandum (Doc. 2). Respondent (“the State”) answered, providing relevant portions of the state court record. (Doc. 17). Woodard replied. (Doc. 19). The undersigned concludes that no evidentiary hearing is required for the disposition of this matter, and that Woodard is not entitled to habeas relief.[1]

         I. Background and Procedural History [2]

         On October 27, 2004, Petitioner Woodard called Marvin Cannon mid-evening and asked Cannon if he wanted to “pull a lick with him”-a colloquialism for robbing someone. Cannon agreed. Woodard did not give Cannon any details about the robbery, but merely instructed Cannon that his role was to provide transportation. Cannon obliged, borrowed his sister's car, and drove to pick up Woodard.

         Woodard, in the meantime, called his robbery target Ephram Hagins and, claiming to be Marvin Cannon, told Hagins that he was interested in buying drugs. Hagins was acquainted with Cannon because the two previously had attended school together. Although Hagins did not recognize the caller's voice, Hagins assumed it was Cannon based on Woodard's misrepresentation of his identity. Hagins told Woodard (still believing he was Cannon), that he would make some phone calls.

         Marvin Cannon picked up Woodard and Alfred Denson around 9:00 or 9:30 p.m.[3] Woodard and Denson entered the car with a black bag. Woodard spoke to Hagins on the phone (with Hagins still believing he was speaking to Cannon), and the pair agreed to meet at a store behind Hagins's apartment complex in Tallahassee, Florida. This area had a BP gas station, a Circle K, a Jamaican Way store, and a Wing Zone restaurant.

         Woodard and Denson took ski masks out of their black bag. Cannon drove them to the Wing Zone. As he drove, he noticed that Woodard, who was sitting in the front passenger seat, also removed a gun from the black bag.

         After Cannon parked, Woodard instructed Cannon: (1) to position himself near the trash can in front of the Jamaican Way store which was next to the Circle K, (2) to wait there for the victim, (3) that the victim would approach Cannon, (4) that the victim was a large, black, bald-headed man known as “E”, and (5) that once Cannon and the intended victim made contact, Cannon should show the victim money and discuss drugs. Cannon agreed, still not knowing the intended victim's identity or that he and the intended victim were acquainted.

         Hagins arrived at the shopping plaza between 10:30 and 11:00 p.m., parked in front of the Jamaican Way store, and went into the Circle K. Woodard called Cannon and informed him that the intended victim had arrived. When Hagins came out of the store, Cannon asked Hagins if he was “E.” Hagins responded affirmatively. Cannon then recognized Hagins from school. Cannon asked Hagins if he had any drugs. Hagins replied no, but got on his cell phone and returned to his car to make phone calls. Cannon waited outside Hagins's car.

         Within minutes, Woodard and Denson ran up behind Hagins's car. Hagins looked up from inside his car and saw the pair. Woodard was wearing all black clothing including a black ski mask. Denson was wearing a sweater-looking shirt with a hood. Woodard and Denson each had a firearm.

         Hagins tried to get out of his car, but Woodard hit Hagins in the face with his gun. Woodard, Denson and Cannon then pushed Hagins back inside his car. Woodard ordered Hagins into the passenger seat and demanded Hagins's car key. Hagins complied, and Woodard got in the driver's seat. Denson got in the back seat. Cannon remained outside.

         Woodard drove Hagins's car out of the shopping plaza and onto a highway. Five to six miles later, Woodard stopped and ordered Hagins from the car at gunpoint. Woodard and Denson tied Hagins with speaker wire from the car and left him on the side of the road. Hagins eventually freed himself and flagged down a passerby. Hagins informed the police that Cannon was one of the attackers. Hagins was taken to the hospital and treated for head injuries.

         Cannon, in the meantime, drove to his sister's house and waited to hear from Woodard. Between 30 to 60 minutes after Cannon left the shopping plaza, Woodard called Cannon. Woodard initially had tried to reach Cannon by calling Cannon's mother's home. Woodard made both calls from Hagins's cell phone.

         Hagins testified at trial that the last time he used his cell phone was at the shopping plaza during his encounter with Cannon outside the Jamaican Way. During the carjacking, Hagins dropped his cell phone in the car, and he saw Woodard use it. Hagins also recalled that his cell phone remained in the car after Woodard forced him out. Hagins's cell phone records confirmed that Woodard called not only Cannon from Hagins's cell phone, but also Woodard's then-girlfriend Shontecia Murray.

         Woodard was charged in Leon County Circuit Court No. 2004-CF-3842, with three crimes: Armed Carjacking; Kidnapping to Facilitate Felony with a Firearm; and Aggravated Battery with a Firearm. (Doc. 17, Attach. 1, Ex. B1, p. 2 (third amended information), pp. 3-8 (complaint/probable cause affidavit)).[4]Woodard and co-defendant Denson's first trial ended in a mistrial due to a hung jury. (See Doc. 17, Attach. 9, Ex. F1, p. 47).

         Woodard and Denson were re-tried on June 12-14, 2006. The State presented testimony from Hagins, Cannon, law enforcement officers, the custodian of Hagins's cell phone records, and Shontecia Murray. The State also introduced records from Mr. Hagins's cell phone confirming Woodard's various calls. The State introduced inculpatory letters Woodard wrote to his sister and to a co-inmate at the Leon County Jail (Derrick Holmes) after the first trial. The letters directed them to memorize a particular story to support Woodard's defense and discredit Cannon's anticipated trial testimony. Woodard's defense theory was that the two masked carjackers were Cannon's cousins whom Cannon was trying to protect by implicating Woodard and Denson. The jury found Woodard guilty of all three crimes as charged. (Doc. 17, Attach. 2, Ex. B3, pp. 446-50 (verdict)).

         The trial court adjudicated Woodard guilty and sentenced him as a Prison Releasee Reoffender to life in prison. (Doc. 17, Attach. 2, Ex. B3, pp. 458-67 (judgment and sentence); Ex. B6 (transcript of sentencing).[5] The Florida First District Court of Appeal (“First DCA”) affirmed on August 5, 2008, per curiam and without written opinion. Woodard v. State, 995 So.2d 500 (Fla. 1st DCA 2008) (Table) (copy at Doc. 17, Attach. 5, Ex. B9). Woodard's motion for rehearing was denied on November 10, 2008. (Doc. 17, Attach. 5, Ex. B11).

         On November 9, 2009, Woodard filed a pro se motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, which he twice amended. (Doc. 17, Attach. 6, Ex. E1, pp, 1-48 (original motion); Ex. E1, pp. 49-59 (amended motion); Ex. E1, pp. 77-118 (second amended motion)). The state circuit court ordered an evidentiary hearing and appointed counsel to assist Woodard. (Doc. 17, Attach. 6, Ex. E1, pp. 139, 140-47).

         Woodard's postconviction evidentiary hearing was held on January 11, 2013. (Doc. 17, Attach. 7, Ex. E2). At the close of the hearing, the state circuit court denied relief, explaining its reasons on the record. (Doc. 17, Attach. 7, Ex. E2, pp. 266-71 (evidentiary hearing transcript)). The circuit court entered a written final order that day which stated, in relevant part: “Based on the reasons as announced on the record, the court finds that defendant has failed to show that he received ineffective assistance of counsel or that he was prejudiced by any alleged deficiency.” (Doc. 17, Attach. 6, Ex. E1, p. 180). The First DCA affirmed per curiam without written opinion on July 29, 2014. Woodard v. State, 147 So.3d 991 (Fla. 1st DCA 2014) (Table) (copy at Doc. 17, Attach. 9, Ex. E6). The mandate issued August 26, 2014. (Doc. 17, Attach. 9, Ex. E7).

         While his first postconviction appeal was pending, Woodard filed a second Rule 3.850 motion on October 24, 2013, alleging that he had “newly discovered evidence” of his innocence. Woodard explained that Marvin Cannon recanted his trial testimony. (Doc. 17, Attach. 9, Ex. F, pp. 1-19). The state circuit court ordered an evidentiary hearing and appointed counsel to assist Woodard. (Doc. 17, Attach. 9, Ex. F1, pp. 24-35). The evidentiary hearing was held on April 9, 2015. (Doc. 17, Attach. 9, Ex. F1, pp. 52-149 (evidentiary hearing transcript)). On August 12, 2015, the state circuit court denied relief by written order. (Doc. 17, Attach. 9, Ex. F1, pp. 47-50). The First DCA affirmed per curiam without written opinion on March 23, 2017. Woodard v. State, 224 So.3d 218 (Fla. 1st DCA 2017) (Table) (copy at Doc. 17, Attach. 12, Ex. F6). The mandate issued April 18, 2017. (Doc. 17, Attach. 12, Ex. F7).

         Woodard filed his pro se federal habeas petition on May 26, 2017, (Doc. 1). Woodard's petition raises five claims of ineffective assistance of trial counsel, and one claim of actual innocence. (Doc. 1, pp. 4-6 in ECF; Doc. 2). The State asserts that Woodard is not entitled to habeas relief on any claim because each claim is either procedurally defaulted, devoid of merit, or both. (Doc. 17, pp. 7-55).

         II. Governing Legal Principles

         A. Section 2254 Standard of Review

         A federal court “shall not” grant a habeas corpus petition on any claim that was adjudicated on the merits in state court unless the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362 (2000).[6] In Williams, Justice O'Connor described the appropriate test:

Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Id., 529 U.S. at 412-13 (O'Connor, J., concurring).

         Under the Williams framework, the federal court must first determine the “clearly established Federal law, ” namely, “the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). After identifying the governing legal principle, the federal court determines whether the state court's adjudication is contrary to the clearly established Supreme Court case law. The adjudication is “contrary to” federal law only if either the reasoning or the result contradicts the relevant Supreme Court cases. See Early v. Packer, 537 U.S. 3, 8 (2002) (“Avoiding th[e] pitfalls [of § 2254(d)(1)] does not require citation to our cases-indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.”).

         If the “contrary to” clause is not satisfied, the federal court determines whether the state court “unreasonably applied” the governing legal principle set forth in the Supreme Court's cases. The federal court defers to the state court's reasoning unless the state court's application of the legal principle was “objectively unreasonable” in light of the record before the state court. See Williams, 529 U.S. at 409; Holland v. Jackson, 542 U.S. 649, 652 (2004). “[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86, 102 (2011).

         Section 2254(d) also allows habeas relief for a claim adjudicated on the merits in state court where that adjudication “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)(2). The “unreasonable determination of the facts” standard is implicated only to the extent the validity of the state court's ultimate conclusion is premised on unreasonable fact finding. See Gill v. Mecusker, 633 F.3d 1272, 1292 (11th Cir. 2011). As with the “unreasonable application” clause, the federal court applies an objective test. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (holding that a state court decision based on a factual determination “will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding.”). Federal courts “may not characterize . . . state-court factual determinations as unreasonable merely because we would have reached a different conclusion in the first instance.” Brumfield v. Cain, 576 U.S. __, __, 135 S.Ct. 2269, 2277 (2015) (quotation marks omitted).

         The Supreme Court has often emphasized that a state prisoner's burden under § 2254(d) is “difficult to meet, . . . because it was meant to be.” Richter, 562 U.S. at 102. The Court elaborated:

As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's “modified res judicata rule” under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no further. Section 2254(d) reflects the view that habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems, ” not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n. 5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, 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.

Richter, 562 U.S. at 102-03 (emphasis added).

         A federal court may conduct an independent review of the merits of the petitioner's claim only if it first finds that the petitioner satisfied § 2254(d). See Panetti v. Quarterman, 551 U.S. 930, 954 (2007). Even then, the writ will not issue unless the petitioner shows that he is in custody “in violation of the Constitution or laws and treaties of the United States.” 28 U.S.C. § 2254(a).

         B. Clearly Established Federal Law Governing Claims of Ineffective Assistance of Counsel

         The Supreme Court follows a two-pronged test for evaluating claims of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984). The petitioner must show (1) his counsel's performance was constitutionally deficient, and (2) the deficient performance prejudiced him. See Id. at 687. “First, petitioner must show that ‘counsel's representation fell below an objective standard of reasonableness.' Second, petitioner must show that ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'” Darden v. Wainwright, 477 U.S. 168, 184 (1986) (quoting Strickland, 466 U.S. at 694).

         “Judicial scrutiny of counsel's performance must be highly deferential, ” and courts should make every effort to “eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 689. Trial counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. The burden to overcome that presumption and show that counsel's performance was deficient “rests squarely on the defendant.” Burt v. Titlow, 571 U.S. 12, 22-23 (2013); Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (“To overcome that presumption, a defendant must show that counsel failed to act reasonably considering all the circumstances.” (quotation marks and alterations omitted)). Strickland's prejudice prong requires a defendant to establish a “reasonable probability” of a different result. See Strickland, 466 U.S. at 694. A reasonable probability is one that sufficiently undermines confidence in the outcome. Id. “The likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 112.

         When a district court considers a habeas petition, the state court's findings of historical facts in the course of evaluating an ineffectiveness claim are subject to the presumption of correctness, while the performance and prejudice components are mixed questions of law and fact. See Strickland, 466 U.S. at 698. “Surmounting Strickland's high bar is never an easy task.” 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.” Richter, 562 U.S. at 105 (citations omitted). The Supreme Court explained:

The standards created by Strickland and § 2254(d) are both “highly deferential, ” and when the two apply in tandem, review is “doubly” so. The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.

Id. (citations omitted).

         III. Discussion

Ground One “Denial of Effective Assistance of Counsel, in Violation of Sixth and Fourteenth Amendment Right of the United States and Florida Constitution, by Counsel's Failure to Conduct an Adequate Pre-Trial Investigation, Interview and Depose Terrell Powell, Derick Holmes, and Canary Denson, and for Failure to Move to Suppress Unlawfully Seized Evidence.” (Doc. 1, p. 4)

         Woodard claims that his trial counsel, Attorney John Kenny, was ineffective for failing to interview three witnesses: Terrell Powell, Derrick Holmes, and Canary Denson. (Doc. 1, p. 4 in ECF). Woodard also claims that Attorney Kenny was ineffective for failing to move to suppress “unlawfully seized evidence, ” namely, the letters he wrote to his sister and Derrick Holmes. (Id.).

         The State asserts that Woodard's claim is partially procedurally defaulted, because although Woodard raised all of these issues in his second amended Rule 3.850 motion, he abandoned two issues (counsel's failure to investigate Canary Denson and failure to file a motion to suppress) by failing to raise them in his counseled postconviction appeal. Accordingly, these aspects of Woodard's claim are procedurally defaulted. (Doc. 17, pp. 9-11). The State argues in the alternative that even assuming to Woodard's benefit that he properly exhausted all aspects of this claim, he is not entitled to habeas relief because he fails to meet § 2254(d)'s demanding standard. (Doc. 17, pp. 26-32).

         Woodard replies that he did not abandon any aspect of this claim in his postconviction appeal; that his appellate brief “was filed pro se with sufficient facts to state a claim”, and that nothing in the First DCA's summary decision indicates that it deemed any part of the claim waived. (Doc. 19, pp. 3-4).

         A. Woodard Procedurally Defaulted His Sub-Claims Involving Canary Denson and Motion to Suppress

         Before bringing a § 2254 habeas action, the petitioner must exhaust all available state court remedies for challenging his conviction, 28 U.S.C. § 2254(b)(1), thereby giving the State the “‘opportunity to pass upon and correct' alleged violations of its prisoners' federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971) (citation omitted)). The petitioner “must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Picard, 404 U.S. at 277-78.

         A claim that was not properly exhausted in state court and can no longer be litigated under state procedural rules is considered procedurally defaulted, i.e., procedurally barred from federal review. Boerckel, 526 U.S. at 839-40, 848; Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991) (“[I]f the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred . . . there is a procedural default for purposes of federal habeas . . . .” (citations omitted)). A petitioner seeking to overcome a procedural default must “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.

         Florida's established postconviction process includes an appeal from an order denying postconviction relief. See Fla. R. App. P 9.141(b)(3); see also Leonard v. Wainwright, 601 F.2d 807, 808 (5th Cir. 1979); Rodwell v. Singletary, 114 F.Supp.2d 1308, 1312 (M.D. Fla. 2000). Where, as here, a defendant appeals from an order denying postconviction relief after an evidentiary hearing, he is required to file an initial brief. Fla. R. App. Proc. 9.141(b)(3)(C). Issues not raised and argued in the initial brief are abandoned. See Atwater v. Crosby, 451 F.3d 799, 809-10 (11th Cir. 2006) (citing Shere v. State, 742 So.2d 215, 217 n.6 (Fla. 1999) (recognizing Florida's rule that an issue raised in an appellate brief which contains no argument is abandoned)); see also Duest v. Dugger, 555 So.2d 849, 851 (Fla. 1990) (holding that issues raised on appeal from an order denying postconviction relief were procedurally barred when petitioner received an evidentiary hearing and failed to fully brief and argue the points on appeal).

         The state court record establishes that Woodard's second amended Rule 3.850 motion raised counsel's ineffectiveness concerning Terrell Powell as Ground 1-B; counsel's ineffectiveness concerning Canary Denson as Ground 1-C; counsel's ineffectiveness concerning Derrick Holmes as Ground 1-D; and counsel's ineffectiveness concerning the motion to suppress as Ground 1-E. (Doc. 17, Ex. E1, pp. 80-91). The state circuit court denied relief on all grounds after an evidentiary hearing. Woodard appealed, and his postconviction counsel filed an initial brief. (Doc. 17, Ex. E4). The initial brief, however, raised only one argument concerning Ground 1, namely, that the circuit court erred by failing to resolve Ground 1-B (concerning Powell) and Ground 1-D (concerning Holmes). (Doc. 17, Ex. E4, pp. i-iii (Table of Contents), 2-6 (Statement of the Facts), 11-13 (Points of Argument on Appeal and Summary of Argument), and 37-38 (Argument)). Woodard excluded from his brief the ineffective assistance claims concerning Canary Denson (Ground 1-C) and the motion to suppress (Ground 1-E). The First DCA summarily affirmed.

         Woodard's failure to invoke one complete round of Florida's established appellate review process-by abandoning Grounds 1-C and 1-E on appeal-renders them unexhausted. Because any further attempt by Woodard to exhaust those issues in state court would be futile, Grounds 1-C (concerning Denson) and 1-E (concerning the motion to suppress) are procedurally defaulted. See Boerckel, 526 U.S. at 848 (holding that Alabama's established appellate review process provided for discretionary review in the state supreme court, and that petitioner's filing of a discretionary review petition but leaving out three issues he later included in his federal habeas petition rendered the issues unexhausted and procedurally defaulted); Coleman, 501 U.S. at 735 n.1; Sims v. Singletary, 155 F.3d 1297, 1311 (11th Cir. 1998) (“Sims abandoned the photograph component of this claim on appeal of the denial of his motion for post-conviction relief. Therefore, this portion of the argument is procedurally barred for federal habeas purposes.” (citing Lindsey v. Smith, 820 F.2d 1137, 1143 (11th Cir.1987))); see also, e.g., Baker v. Dep't of Corr., Sec'y, 634 Fed.Appx. 689, 693 (11th Cir. 2015) (holding that the habeas petitioner's substantive double jeopardy claim-which was rejected on the merits by the postconviction trial court-was procedurally defaulted on habeas review because the petitioner abandoned the claim in his postconviction appeal by failing to argue it in his counseled initial brief or in his pro se brief).[7]

         Woodard makes none of the requisite showings to excuse his procedural default. Woodard's procedural default bars habeas review of his claims that counsel was ineffective for failing to investigate Canary Denson and failing to file a motion to suppress.

         B. Woodard Is Not Entitled To Habeas Relief On His Sub-Claims Involving Terrell Powell and Derrick Holmes

         i. Terrell Powell

         Woodard alleges that Marvin Cannon “told him that Terrell Powell was one of the perpetrators involved in the alleged crime” and that Powell was being held in the Gadsden County Jail. (Doc. 2, p. 14). Woodard claims he gave trial counsel this information and asked him to interview Powell, but counsel failed to investigate the matter. (Id., pp. 14-15). Woodard contends that “[t]he failure to investigate matters and learn the facts effectively deprived the Petitioner of the right to place evidence before the jury that could have made the difference in the verdict of guilty to not guilty.” (Id., p.p. ...


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