Executed July 22, 2007 06:17 p.m. by Lethal Injection in South Carolina
26th murderer executed in U.S. in 2007
1083rd murderer executed in U.S. since 1976
1st murderer executed in South Carolina in 2007
37th murderer executed in South Carolina since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
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Calvin Alphonso Shuler B / M / 31 - 40 |
James "J.B." Brooks W / M / 77 |
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Citations:
State v. Shuler, 344 S.C. 604, 545 S.E.2d 805 (S.C. 2001) (Direct Appeal).
Shuler v. Ozmint,209 Fed.Appx. 224 (4th Cir. 2006) (Habeas).
Final Meal:
T-bone steak, well done with A-1 Steak sauce, baked potato, french fries, grape drink and chocolate cake.
Final Words:
None.
Internet Sources:
South Carolina Department of Corrections
Inmate: Shuler, Calvin Alfonzo
SCDC ID 00005064
SID SC01036071
DOB: 12/03/1966
Race: Black
County of Conviction: Dorchester
Sentence Start Date 11/12/1998
Citizenship:Native Born
Build: Medium
Complexion: Black
Hair Color: Black
Eye Color: Brown
"S.C. man executed for killing guard," by Meg Kinnard. (Associated Press Fri, Jun. 22, 2007)
A man convicted of killing an armored car guard 10 years ago was executed Friday by lethal injection. Calvin Alphonso Shuler, 40, was declared dead at 6:17 p.m. He made no final statement. On the gurney, he kept his eyes locked on a man Corrections Department officials said was his spiritual adviser. "Amen, amen, my brother," the adviser said to Shuler, then hummed softly as the execution was carried out.
Shuler's request for clemency was denied by Gov. Mark Sanford on Friday. On Wednesday, the South Carolina Supreme Court rejected his attorney's appeals to stop the execution on the grounds that lethal injection constituted a cruel and unusual punishment, according to Lisa Kimbrough, an attorney who worked on Shuler's case.
Shuler was convicted of the murder of James "J.B." Brooks, a guard who was locked in the back of an armored car Shuler had carjacked outside a Harleyville bank in 1997. Brooks, 77, and Shuler exchanged gunfire. Authorities later found Brooks' body in the van, which was abandoned along a dirt road several miles from the bank.
Three of Brooks' family members attended the execution. None of Shuler's did.
It was South Carolina's first execution of 2007 and the 37th since reinstatement of the death penalty in 1977.
"Clemency denied for SC man set to die for killing guard," by Meg Kinnard. (Associated Press Posted on Fri, Jun. 22, 2007)
A South Carolina man sentenced to die for killing an armored van guard in 1997 was denied clemency Friday by Gov. Mark Sanford. Calvin Alphonso Shuler, 40, was scheduled to be executed at 6 p.m. Friday by lethal injection.
Corrections Department officials said Shuler was served a last meal of a T-bone steak, well done with A-1 Steak sauce, baked potato, french fries, grape drink and chocolate cake. He met with a spiritual adviser who also was on his witness list. His attorney Francis Cornely also was on his list, but no family members. Three members of the family of victim James "J.B." Brooks were expected to watch Shuler die.
Shuler was armed with a handgun and assault rifle when he ordered two guards out of an armored van that was stopped outside a Harleyville bank a decade ago. Shuler, a former co-worker of the guards, exchanged gunfire with the men before driving off in the van with Brooks, the third guard who was locked in the back of the van.
Brooks, 77, and Shuler also exchanged gunfire. Shuler was wounded in the neck before he got into another vehicle and fled. Authorities later found Brooks' body in the van, which was abandoned along a dirt road several miles from the bank.
Lethal injection execution has come under scrutiny across the nation after some botched procedures. In Ohio last month, it took 90 minutes for executioners to find a vein and the man being put to death was allowed a bathroom break. Shuler's attorneys argued to the South Carolina Supreme Court that lethal injection was cruel and unusual punishment, but the high court on Wednesday rejected their request to stop the execution, according to Lisa Kimbrough, a Columbia attorney who has worked on Shuler's case.
There were 53 executions carried out nationwide last year, the lowest annual total in the past 10 years, according to Amnesty International. South Carolina accounted for 36 of the 1,080 executions carried out since reinstatement of the death penalty in 1977, or about 3 percent.
"SC man executed for killing armored van guard." (June 22, 2007 06:46 PM EDT)
COLUMBIA, SC (AP) - A man who killed an armored car guard ten years ago was executed Friday night by lethal injection. Forty-year-old Calvin Alphonso Shuler was declared dead at 6:17pm. He made no final statement. Shuler's request for clemency was denied by Governor Mark Sanford Friday.
Shuler was arrested for murder in 1997. Investigators say he confessed to the brutal Dorchester County killing.
"My stepfather was a kind, caring, Christian man," says Brenda Lee. Lee tells us about her stepfather James Brooks of Columbia. "He had retired from the post office and started working with the armored van service to fill some of the spare time he had." Shuler was armed with a handgun and assault rifle when he ordered two guards out of an armored van that was stopped outside a Harleyville bank on December 3rd, 1997.
Shuler was a former co-worker of the guards. He exchanged gunfire with the men before driving off in the van with Brenda's stepfather, James "J.B." Brooks, the third guard who was locked in the back. Officials say Shuler gunned Brooks down in the back of the van. Brenda Lee says, "It was so brutal, so violent, knowing my stepfather had over 20 bullet wounds from an assault rifle - some three-inch in diameter. Every organ in his body had been hit."
Authorities later found the 77-year-old's body in the van, which was abandoned along a dirt road several miles from the bank. Officers captured Shuler a few days later. In 1998, he was sentenced to death.
Lee planned to watch Shuler's execution. "It won't make it better. It will not bring back the loss." But she wanted to be there for the stepfather she loved. "I think I'll think about the 20 bullet wounds in my stepfather." "I want his memory to be known today in light of what's going on with the execution."
"S.C. man executed for killing guard; Shuler shot 77-year-old man protecting armored car in Harleyville," by Meg Kinnard.
Columbia, S.C. | A man who killed an armored car guard 10 years ago was executed Friday night by lethal injection. Calvin Alphonso Shuler, 40, was declared dead at 6:17 p.m. He made no final statement.
Shuler was armed with a handgun and assault rifle when he ordered two guards out of an armored van that was stopped outside a Harleyville bank in 1997. Shuler, a former co-worker of the guards, exchanged gunfire with the men before driving off in the van with James "J.B." Brooks, the third guard who was locked in the back.
Brooks, 77, and Shuler also exchanged gunfire. Shuler was wounded in the neck before he got into another vehicle and fled. Authorities later found Brooks' body in the van, which was abandoned along a dirt road several miles from the bank.
Just after 6 p.m., prison officials pulled back a burgundy curtain, revealing the glass-encased death chamber to the 10 witnesses. Shuler, clad in a bright green jumpsuit, had already been strapped to a gurney, tubing connecting one of his outstretched arms to the lethal chemicals kept behind a brick wall. Shuler turned his head toward the glass, locking eyes with a man Corrections Department officials identify only as Shuler's spiritual adviser. Shuler never moved his gaze from the man, seated in the second row of the small brick witness room behind three members of Brooks' family. The adviser began nodding his head, saying "Amen, amen, my brother," to Shuler, then hummed softly as the execution was carried out.
About two minutes after the chemicals began flowing into his veins, Shuler took several audible breaths through his mouth before becoming still. His eyelids slid to halfway closed and his chest stopped moving up and down. A doctor entered the room several minutes later, using a stethoscope to check for a heartbeat before nodding to Corrections officials, who said at 6:17 p.m. that Shuler had been executed.
Corrections Department officials said earlier Friday that Shuler was served a last meal of a T-bone steak, well done with A-1 steak sauce, baked potato, french fries, grape drink and chocolate cake. He met with the spiritual adviser throughout the day Friday. His attorney Francis Cornely also was on Shuler's witness list, but no family members.
Three members of the Brooks' family watched Shuler die. They were not identified by prison officials and chose not to speak with reporters. Three members of the media and two law enforcement representatives also witnessed the execution. Shuler's request for clemency was denied by Gov. Mark Sanford on Friday.
Shuler's attorneys argued to the South Carolina Supreme Court that lethal injection was cruel and unusual punishment, but the high court on Wednesday rejected the request to stop the execution, according to Lisa Kimbrough, a Columbia attorney who has worked on Shuler's case.
It was South Carolina's first execution of 2007 and the 37th since reinstatement of the death penalty in 1977.
"Amen, Calvin," The last words heard as Calvin Shuler is put to death," by Brian Troutman. (Saturday, June 23, 2007)
COLUMBIA - "Amen, Calvin." These were the only words heard clearly in the midnight-blue witness room outside the execution chamber at Broad River Correctional Institution in Columbia as Calvin Shuler took his last breaths. A man who appeared to be Shuler's spiritual adviser spoke those words immediately as Shuler grunted and seemingly gasped for air after what could have been a paralyzing agent entered his body.
Among the witnesses for Shuler's execution were members of the media, law enforcement, attorneys and family members of the man Shuler murdered in 1997 -- James B. Brooks. Shuler issued no final statement prior to his execution. According to Josh Gelanis, communications director at the South Carolina Department of Corrections, that was quite unusual.
The only sounds heard at all from Shuler were the grunts at approximately 6:10 p.m. when a section of tubing -- connected to a brick wall behind Shuler -- began to shake. Shuler was breathing deep at this moment and prior, his chest and stomach seemed to rise melodiously. By 6:11, Shuler was no longer visibly breathing deeply. It was possible he was not breathing at all.
Actions spoke louder than words as Shuler lay on the execution gurney, spread out star-like. His head was uncomfortably turned staring at the witnesses, and there was a glaze in his eyes. His lips were stiffened and there were tears beating his face to be released if they hadn't already rolled down his cheeks.
Shuler was wearing green "scrubs." His lower torso and legs were covered with a white sheet, and he was secured to the execution gurney with black, soft, cloth restraints across his body and white gauze tape securing his wrists to the gurney -- "arms wide open." The room was quiet. Prior to the cranberry-colored curtains being drawn and the stage being set for Shuler's execution, the only sounds heard were the occasional scraping of someone's foot across the floor; an occasional sigh; a stomach or two growling in the witness room and most dominantly, the occasional humming of what seemed to be gospel tunes by the man who appeared to be Shuler's spiritual adviser.
Shuler was officially pronounced dead at 6:17 p.m., following a thorough examination of his vital signs by a medical examiner at 6:16 p.m.. Shuler died with his eyes open, staring blankly at the witness room. Witnesses focusing on Shuler through the barred and polycarbonate thermoplastic-covered windows of the witness room seemed full of sorrow. Facial expressions were blank. Some members of the group seemed anxious. Most sat with their cheeks hung low and their eyes behind a screen of mist.
Shuler's last meal was a meal fit for any man on a Friday evening: a T-bone steak (well-done) with A-1 steak sauce, baked potato, french fries, grape drink and chocolate cake.
Shuler spent the afternoon of his death eating this meal and meeting with his spiritual adviser, who stayed with Shuler, consulting him until the hour of his death. Shuler was calm and nonresistant prior to the hour of his death, the corrections department spokesman said.
Shuler was placed on death row on Nov. 12, 1998, upon being convicted for murder in the death of James B. Brooks on Dec. 3, 1997. Shuler had been an employee of Anderson Armored Car Service and had briefly worked with his victims -- Brooks, driver James Amick and Sherman Crozier. Officials say Shuler quietly and patiently waited under a house for the armored car to make its routine stop at a bank in Harleyville. When it did, he made his way from under the house, pointed a gun at the driver and shouted for the driver to get out of the truck.
Brooks apparently did his best to defend himself and the cargo with only a five-shot revolver versus the SKS assault rifle Shuler was toting. Investigators on the scene said Brooks fired every shot in his gun prior to his death. Following the robbery and gun battle, Shuler dumped the armored car on a back road without any money to show for his actions -- all of it was either ripped to shreds by gunfire or soaked in blood. Brooks' body was found in the armored car.
Shuler confessed to the robbery and murder when questioned by police officers and FBI agents. Following his confession, Shuler's home was searched and physical evidence was found in abundance, including items containing traces of Shuler's DNA, which matched DNA found in blood inside the armored car.
Thelma Brooks, the 88-year-old widow of James Brooks, said on Thursday she was not really looking forward to the execution. "I feel bad in a way," she said. "I hate it, but he (Shuler) deserves something. I feel so bad, but he deserves it."
Mrs. Brooks said her husband was a good man with good values and a good heart. She said her last morning with him had been "like any other morning." "It was the same as always. He got up at about 4 a.m., went through his normal routine, eating breakfast and all and headed down to work. He woke up early so he could be there by 6 a.m."
Mrs. Brooks, who was married to her husband for almost 40 years, said he was an active member of his church, and that she could not speak of how he would feel about the execution. "He was an excellent man," Mrs. Brooks said. "I never heard him say a bad word in my life. He never spoke bad about anyone either." She did not attend the execution.
"Guard's killer is executed; Shuler was denied clemency in case," by Meg Kinnard. (Associated Press Saturday, June 23, 2007)
COLUMBIA — A man who killed an armored car guard 10 years ago was executed Friday by lethal injection. Calvin Alphonso Shuler, 40, was declared dead at 6:17 p.m. He made no final statement.
Shuler was armed with a handgun and assault rifle when he ordered two guards out of an armored van that was stopped outside a Harleyville bank in 1997. Shuler, a former co-worker of the guards, exchanged gunfire with the men before driving off in the van with James "J.B." Brooks, the third guard who was locked in the back.
Brooks, 77, and Shuler also exchanged gunfire. Shuler was wounded in the neck before he got into another vehicle and fled. Authorities later found Brooks' body in the van, which was abandoned along a dirt road.
Corrections Department officials said earlier Friday that Shuler was served a last meal of a T-bone steak, well-done with A-1 Steak sauce, baked potato, french fries, grape drink and chocolate cake.
Three members of Brooks' family were expected to watch Shuler die.
Shuler's request for clemency was denied Friday by Gov. Mark Sanford. His attorneys argued to the South Carolina Supreme Court that lethal injection was cruel and unusual punishment, but on Wednesday the high court rejected the request to stop the execution, according to Lisa Kimbrough, a Columbia attorney who has worked on Shuler's case.
National Coalition to Abolish the Death Penalty
Calvin Shuler, SC, June 22
Do Not Execute Calvin Shuler!
South Carolina has scheduled the execution of Calvin Shuler for the December 1997 murder of James Brooks.
The state of South Carolina should not execute Shuler for his role in this crime. Executing Shuler would violate the right to life as declared in the Universal Declaration of Human Rights and constitute the ultimate cruel, inhuman and degrading punishment. Furthermore, Shuler claims ineffective assistance of counsel in during his trial, since the defense counsel did not investigate any possible mitigating evidence, such as his history of steroid use and suicide attempt prior to the offense.
Please write to Gov. Mark Sanford on behalf of Calvin Shuler!
South Carolina Equal Justice Initiative
State v. Shuler, 344 S.C. 604, 545 S.E.2d 805 (S.C. 2001) (Direct Appeal).
Defendant was convicted following jury trial in the Circuit Court, Dorchester County, A. Victor Rawl, J., of murder, armed robbery, and kidnapping in connection with fatal gun battle with guard during armed robbery of armored car and was sentenced to death. Defendant appealed. The Supreme Court, Toal, C.J., held that: (1) equivocation, undue hesitation, and uneasy demeanor of African-American venire member when responding to questions about ability to impose death penalty provided valid racially neutral explanation for state's peremptory strike; (2) defendant's absence from Jackson v. Denno hearing did not violate his cross-examination rights, and he voluntarily absented himself from hearing by his disruptive behavior; (3) Solicitor did not impermissibly vouch for credibility by asking state's chief witness if he was required under plea agreement to tell the truth; (4) victim's act of firing at defendant was not sufficient legal provocation for use of deadly force against victim, as necessary for a finding of voluntary manslaughter; (5) proposed instruction, that a citizen's arrest upon viewing commission of a felony or larceny must be made with use of reasonable force, was not warranted; and (6) death sentence was not result of passion, prejudice, or other arbitrary factor and was neither excessive nor disproportionate to sentences imposed in similar cases. Affirmed.
TOAL, Chief Justice:
Calvin Alphonso Shuler (“Shuler”) was sentenced to death for killing guard James B. Brooks (“Brooks”) during an armed robbery of an Anderson Armored Car. Shuler appeals his murder conviction and death sentence. This opinion consolidates Shuler's direct appeal with the mandatory review provisions of S.C.Code Ann. § 16-3-25 (1985).
Factual/procedural Background
On December 3, 1997, three Anderson Armored Car guards, Alton Amick (“Amick”), Sherman Crozier (“Crozier”), and Brooks, were collecting and delivering money to various banks in the Low County area. Amick was the driver, Crozier sat in the front passenger seat, and Brooks sat in the back of the car.
The Anderson Armored Car is a bullet resistant van with a number of security features. A metal wall topped by a steel mesh screen separated Brooks in the back from Amick and Crozier in the cab. The driver and passenger side doors had “double locks” that take two hands to open. The car's side double doors on the passenger side and double doors in the rear were kept locked. Both Amick and Brooks had keys to access the back of the car, but Brooks did not need the key to get out. Brooks also had access to “kill switches” in the rear-one switch would totally disable the car's engine and the other switch would sound a visual and audible alarm.
At 10:45 a.m., the three guards arrived at First National Bank of Harleyville. Amick looked around twice to see if the area was clear. He opened the door and turned his head to grab his clipboard. When he turned around a man wearing army fatigues, a camouflage face mask, and gloves was pointing a semi-automatic pistol in his face. The attacker also had an assault rifle slung over his shoulder. The attacker shouted three times, “Get out of the God d*mn truck.” Amick got out of the car. The attacker then climbed in the driver's seat, pointed the gun at Crozier's head, and ordered him out of the car. Crozier exited the car, but left his door open.
Inside the van, the attacker and Brooks engaged in a gun battle through the screen mesh separating the cab and the rear area. Amick stood near the doorway on the driver's side, Crozier ran around the back of the car. After the gunfire stopped, the attacker threw his semi-automatic handgun out of the car's window. The attacker hesitated for a moment as he tried to get the car into gear, and then drove off at a high rate of speed. As the van sped away, Amick fired four shots at the car's tires with his .38 revolver.
Several eye witnesses saw the attacker drive the car down Shortcut Road at a high rate of speed. Deputy Thomas Limehouse initially responded to the call from First National Bank, but was told to go to the dirt road in his four wheel drive police vehicle. Once there, he met other policemen, and they proceeded on the dirt road. After about a half mile, they saw the armored car on the road. They approached and saw Brooks laying in the back of the van. EMS responded to the scene, but Brooks was dead due to his numerous gunshot wounds. The rear compartment of the car contained $1,555,400 in currency, although much of it was shredded by gunfire and soaked in Brooks' blood.
Members of the Charleston County Sheriff's canine team responded to the dirt road location to track the attacker. One of the officers found a SKS assault rife, which fires 7.62 mm ammunition, submerged under water in a canal. The SKS's 30 round clip was found on the bank of the canal. The canine team followed the scent from the canal into the surrounding woods. The officers found a bloody ski mask hanging on a tree branch. After another 75 yards, the officers found a box of 7.62 mm ammunition on the ground. The dogs also found a folded green duffel bag before they lost the attacker's scent.
The armored car guards recovered the pink-handled, Lorcin .25 semi-automatic handgun the attacker threw out of the window at the bank. The police traced the gun and found it was registered to Shuler's mother, who is deceased. The police contacted Shuler, and he agreed to meet police at his residence that afternoon. Shuler claimed he gave the gun to his mother for protection. According to Shuler, he had not seen the gun since he gave it to his mother prior to her death.
The SKS rifle was traced to Demond Jones (“Jones”), Shuler's cousin's fiancé. Since Jones was a convicted felon, it was illegal for him to purchase a SKS, and he was arrested on federal firearm charges. Jones testified he agreed to buy the SKS from Woody's Pawn Shop for Shuler in order to satisfy a debt he owed Shuler for a Cadillac. A week after the purchase, Shuler asked Jones to stand guard while he robbed an armored car in Harleyville. Shuler offered Jones a .44 pistol and $5,000 to help in the robbery. Jones refused.
After further information implicating Shuler was discovered, FBI agents interviewed Shuler concerning the crime. The agent noticed Shuler nervously pulled on his knit hat during the interview. When Shuler's hat was removed, the agent noticed lacerations to the back of his head. A FBI agent then conducted a polygraph examination.FN1 Shuler confessed to the murder. FN1. The polygraph test was not mentioned to the jury.
Shuler was a former employee of Anderson Armored Car and had briefly worked with Amick and Brooks. According to Shuler, he knew the guards would be armed, and his .25 pistol would be insufficient firepower, so he gave Jones money to buy the SKS. Shuler's confession revealed he concocted a plan to rob the armored car two weeks prior to the crime. His plan involved hiding underneath a house adjacent to the First National Bank until the armored car made its routine stop. Prior to the murder, Shuler waited patiently underneath the house all night until the armored car arrived the following morning.
Following Shuler's confession, police procured a search warrant for his home. Inside Shuler's home, police found ammunition, Shuler's Anderson Armored Car badge, a pistol pouch, and a .44 magnum pistol in the attic. Inside Shuler's pickup truck they found a pair of camouflage hunting gloves, as well as three other camouflage knit hunting gloves.
The physical evidence overwhelmingly demonstrated Shuler was the attacker. The DNA experts testified at trial Shuler matched the blood taken from the top of the driver's seat and the passenger's sun visor. Shuler also matched blood taken from the outside passenger door handle, the double door on the passenger side of the armored car, the top of the cooler between the seats, the SKS clip found on the bank of a ditch, and the ski mask.
According to the pathologist who conducted Brooks' autopsy, there were three major pre-mortem injuries that could have been fatal. There were also a number of wounds the pathologist theorized were post-mortem. The pathologist opined many of the wounds were consistent with injury from a high-powered rifle, and stated all of the shooting happened quickly.
The ballistics expert matched a bullet fragment removed from the right front of Brooks' neck with the SKS rifle. The SKS also matched three fragments from Brooks' right thigh and buttock, and one fragment from his right lateral torso. Furthermore, a X-ray of Shuler's head wounds indicated the wounds were consistent with gunshot wounds. The ER doctor who performed the X-rays testified the X-rays reflected gunshot fragments in Shuler's head, and Shuler had shoulder bruising consistent with the recoil from a high-powered rifle.
During the January 1998 term, Shuler was indicted for murder, armed robbery, and kidnapping. On January 28, 1998, the State served a notice of intent to seek the death penalty. The jury found Shuler guilty on each count. The penalty stage commenced on November 11, 1998. The jury recommended a death sentence, and the trial judge sentenced Shuler to death.
The following issues are before this Court on appeal:
I. Did the trial judge err in failing to grant Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) relief where he ruled one of the Solicitor's reasons for striking a juror was a “subterfuge” and not race-neutral?
II. Did the trial judge err by proceeding with the Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) hearing in Shuler's absence?
III. Did the trial judge err by allowing the Solicitor to question Jones about his duty to tell the truth pursuant to a plea agreement?
IV. Did the trial judge err in refusing Shuler's Request to Charge on a citizen's use of force in arresting a felon?
* * *
III. Plea Agreement
Shuler argues the trial judge erred by allowing the Solicitor to question the State's witness, Jones, about his plea agreement, which instructed him to testify truthfully in court. Jones was the State's chief witness who testified Shuler knew Brooks would be in the back of the armored car when the robbery occurred. According to Shuler, this testimony was highly prejudicial because it was key to impugning Shuler's statement he was surprised by Brooks' presence. We disagree.
In a pre-trial motion, defense counsel attempted to prevent the Solicitor from bolstering the testimony of Jones, their key witness. The Solicitor noted Jones was testifying pursuant to a federal plea agreement to receive a lighter sentence. The plea agreement contained a provision to tell the truth. According to the Solicitor, if he did not reveal the plea agreement to the jury it would appear they were hiding something. The trial judge agreed but noted neither side could personally vouch for the veracity of the witness in their argument. The Solicitor, therefore, asked Jones if the plea agreement with the United States attorney dropped several pending charges against him. The Solicitor also asked if the plea agreement required him to testify truthfully at trial. Jones responded “yes” to both questions. Jones stated he was testifying truthfully during the current trial.
Defense counsel made two objections to the State's line of questioning regarding Jones' truthful testimony. Defense counsel made the first objection after the State questioned Jones about lying to the FBI when he was interviewed concerning his purchase of the SKS rifle for Shuler. The following occurred on direct examination by the Solicitor:
Solicitor: Was that statement to the FBI at that time was that true or a lie? Jones: A lie. Solicitor: The part about where you put the rifle was a lie? Jones: Yes. Solicitor: Why did you lie to FBI on December the 5 ? Jones: Because I was scared. Solicitor: Okay. Is what you testified to the jury here today as far as what happened to that rifle the truth? Jones: Yes. Defense Counsel: Objection, Your Honor, that's bolstering the witness. Court: Sustained.
On cross examination, defense counsel repeatedly asked Jones if he made a deal with the United States attorney for his testimony at trial. Defense counsel's cross examination was extensive and focused on Jones' legal troubles and deals with law enforcement. The cross examination effectively impeached Jones by demonstrating he had incentive to testify in order to cut time off of his sentence. Defense counsel characterized Jones' deal with law enforcement as “selling his soul” and “receiving a little carrot” from the State. However, Jones claimed neither the United States attorney nor his attorney promised any reduction in his federal sentence for his cooperation in the case. Defense counsel's cross examination successfully impugned Jones' character by: (1) eliciting Jones had repeatedly spoken with State and federal police officers, but refused to talk with defense investigators; (2) showing Jones was on probation for assault and battery with the intent to kill when he was arrested on federal charges, and he had not had a State probation revocation hearing; (3) demonstrating Jones admitted lying on his federal firearms application for the SKS rifle; and (4) demonstrating Jones had not been charged by the Solicitor in connection with this case, and had not been charged with lying to the FBI.
On re-direct examination, the Solicitor asked Jones if any law enforcement officer asked him to testify to anything that was not true. Defense counsel repeated his earlier objection to this testimony. The Solicitor responded that Jones' credibility had been challenged, and the trial judge overruled defense counsel's objection. The Solicitor then asked Jones four more times if he was telling the truth. Specifically, the Solicitor asked Jones if the plea agreement required him to testify truthfully. Jones claimed it did.
Initially, it was not error for the Solicitor to introduce the plea agreement on direct examination because the Solicitor was entitled to anticipate the inevitable cross examination of a federal inmate and to dispel any notion he was hiding something from the jury. Most courts generally recognize the prosecution can introduce evidence of a plea agreement during direct examination of a State witness.FN2 However, the Fourth Circuit Court of Appeals has found this freedom is not unlimited. United States v. Romer, 148 F.3d 359 (4 Cir.1998) cert. denied, 525 U.S. 1141, 119 S.Ct. 1032, 143 L.Ed.2d 41 (1999). The Fourth Circuit Court of Appeals allows the government to elicit testimony regarding a plea agreement on direct examination only if the prosecutor's questions do not imply the government has special knowledge of the witness' veracity, the trial court gives a cautionary instruction, and the prosecutor's closing argument contains no improper use of the witness' promise of truthful cooperation. Id. at 369.
FN2. See generally United States v. Spriggs, 996 F.2d 320 (D.C.Cir.1993) (permitting the prosecution on direct examination to introduce the witness' cooperation agreement in its entirety, and adopting majority rule that admission of plea agreements containing “truthtelling” and perjury provisions did not result in improper bolstering); Massachusetts v. Rivera, 430 Mass. 91, 712 N.E.2d 1127, 1132 (1999) (“On direct examination the prosecution may, of course, properly bring out the fact that the witness has entered into a plea agreement and the witness generally understands his obligations under it.”).
At no point during cross examination or closing argument did the Solicitor imply special knowledge or guarantee Jones' veracity. During direct examination the Solicitor merely asked if a plea agreement existed, he did not go into the details of the agreement until Jones' credibility was severely attacked on cross examination. Although no cautionary instruction was given by the trial judge, the Solicitor did not pursue the plea agreement until re-direct examination.FN3
FN3. The practice in this situation is for the Solicitor to pose general questions in direct examination to establish the witness knows and understands his obligations pursuant to his plea agreement. The Solicitor should reserve questions intending to elicit the actual nature of those obligations, specifically the obligation to testify truthfully, until the defendant has attacked the witness' credibility on cross examination on the ground his testimony is pursuant to agreements. See generally Rivera, supra (finding questions concerning a witness' obligation to tell the truth should await re-direct examination because such procedure would tend to mitigate the appearance of prosecutorial vouching that similar questions on direct might create).
The Solicitor's questions on re-direct examination do not constitute impermissible bolstering or vouching. A prosecutor cannot vouch for the credibility of a witness by expressing or implying his personal opinion concerning a witness' truthfulness. Elmer v. Maryland, 353 Md. 1, 724 A.2d 625 (1999). Improper vouching occurs when the prosecution places the government's prestige behind a witness by making explicit personal assurances of a witness' veracity, or where a prosecutor implicitly vouches for a witness' veracity by indicating information not presented to the jury supports the testimony. See State v. Kelly, 343 S.C. 350, 540 S.E.2d 851 (2001); 75A am.Jur. Trial § 700 (1991). Vouching occurs when a prosecutor implies he has facts that are not before the jury for their consideration. Missouri v. Wolfe, 13 S.W.3d 248 (Mo.2000).
In Kelly, this Court found an assistant solicitor improperly bolstered a witness' credibility through improper questioning. While the assistant solicitor in Kelly did not assert he had personal knowledge his witness was testifying truthfully, he improperly phrased his questions in the first person. Kelly, 343 S.C. at 369 n. 12, 540 S.E.2d at 861 n. 12. The solicitor asked a witness, “ What did I tell you that I absolutely required regarding your testimony to this jury today?” and “Did I tell you to tell the truth to this jury?” Id. at 368, 540 S.E.2d at 860 (emphasis added). We found the jury could have perceived the assistant solicitor held the opinion the witness was, in fact, telling the truth. Id. at 369, 540 S.E.2d at 861. The witness' testimony, therefore, carried with it the imprimatur of the government, and this bolstering may have induced the jury to trust the State's judgment about the witness. Id. The instant case is distinguishable from Kelly because the Solicitor did not comment he had personal knowledge Jones was telling the truth. The Solicitor merely asked general questions, not in the first person, about the truthtelling provision in the plea agreement.
A witness' testimony concerning a plea agreement with the prosecution does not necessarily constitute improper vouching. In a recent Missouri case, the Missouri Supreme Court found a prosecutor's questioning of his own witness in a capital murder trial concerning an agreement in which a witness received immunity in exchange for her truthful testimony did not amount to improper vouching. Wolfe, supra. The jury had all the facts about the agreement giving the witness full immunity. Furthermore, the prosecutor never elicited details of the negotiation nor stated the witness' immunity was subject to his independent judgment of whether the witness was telling the truth. Id. According to the Missouri Supreme Court, “an immunity agreement not only supports the witness' credibility by showing an interest to testify truthfully, but also impeaches the witness' credibility by showing an interest in testifying favorably for the government regardless of the truth. By the end of [the witness'] testimony, the jury could consider her credibility in light of the agreement.” Id. at 256 (citations omitted).
In this case, the Solicitor made no overt statement of his personal belief as to the truth of Jones' testimony, and made no insinuation he knew better than the jury what the truth was. “By calling a witness who testifies pursuant to an agreement requiring him to testify truthfully, the Government does not insinuate possession of information not heard by the jury and the prosecutor cannot be taken as having expressed his personal opinion on a witness' veracity.” United States v. Creamer, 555 F.2d 612, 617-618 (7 Cir.1977) (citations omitted). Moreover, the Solicitor's questions during re-direct examination which asked Jones if he was telling the truth did nothing more than reference what Jones agreed to do when he was sworn by the clerk before testifying.
Overall, we find no merit to Shuler's argument the Solicitor improperly questioned Jones concerning his plea agreement. The majority of the Solicitor's questions occurred after the defense attacked Jones' credibility. Furthermore, the Solicitor never personally vouched for the truthfulness of Jones' testimony.
IV. Jury Charge on Voluntary Manslaughter
Shuler argues the trial judge erred in failing to charge the jury on the use of deadly force in an attempt to thwart the commission of a felony, theft, or to apprehend a felon. We disagree.
First, as a matter of law, Brooks' attempt to defend himself and resist Shuler's crimes is not sufficient legal provocation and does not justify a charge on voluntary manslaughter. Second, there was neither error nor prejudice from the trial judge's refusal to charge deadly force. This case does not involve a citizen's arrest. This case concerns a guard who was trying to defend himself during an armed robbery and kidnapping. Regardless, the trial judge charged the jury that excessive force by a victim during an arrest could constitute sufficient legal provocation for voluntary manslaughter. Had the jury accepted the defense's theory the victim was attempting to arrest Shuler, the jury could have found Shuler guilty of voluntary manslaughter under the trial judge's charge.
A. Voluntary Manslaughter
The trial judge determines the law to be charged on the presentation of evidence at trial. State v. Lee, 298 S.C. 362, 380 S.E.2d 834 (1989). The trial judge must charge the correct and current law of the State. State v. Hughey, 339 S.C. 439, 529 S.E.2d 721 (2000) cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000). If there is any evidence to support a charge, the trial judge should grant the request. State v. Burriss, 334 S.C. 256, 513 S.E.2d 104 (1999).
Voluntary manslaughter is the unlawful killing of a human being in sudden heat of passion upon sufficient legal provocation. State v. Johnson, 333 S.C. 62, 508 S.E.2d 29 (1998). Both heat of passion and sufficient legal provocation must be present at the time of killing to constitute voluntary manslaughter. State v. Locklair, 341 S.C. 352, 535 S.E.2d 420 (2000) cert. denied, 531 U.S. 1093, 121 S.Ct. 817, 148 L.Ed.2d 701 (2001). Provocation necessary to support a voluntary manslaughter charge must come from some act of or related to the victim in order to constitute sufficient legal provocation. Id.
A victim's attempts to resist or defend himself from a crime cannot satisfy the sufficient legal provocation element of voluntary manslaughter. In State v. Tyson, 283 S.C. 375, 323 S.E.2d 770 (1984), this Court held evidence of a struggle between the victim and defendant during an armed robbery was not enough evidence to warrant a voluntary manslaughter charge. This Court found there was absolutely nothing to support finding sufficient legal provocation at the time of the killing because it was clear the victim was simply defending himself against an armed robber, and was killed in that attempt. See also State v. Ivey, 325 S.C. 137, 481 S.E.2d 125 (1997) (finding voluntary manslaughter charge not required when there was evidence the victim, who was a law enforcement officer, was acting lawfully and had a right to defend himself); State v. Tucker, 324 S.C. 155, 478 S.E.2d 260 (1996) (holding voluntary manslaughter charge not required if victim attempted to grab defendant's gun to resist burglary and armed robbery). Similar to the victim in Tyson, Brooks was simply defending himself from an armed robbery and kidnapping when he fired at Shuler. Consequently, there was no sufficient legal provocation, and a charge on voluntary manslaughter was not required.
Furthermore, there was no prejudice from the trial judge's refusal to charge deadly force because other examples of sufficient legal provocation where charged by the trial judge. The trial court charged the jury:
Certain acts of provocation committed by a victim are sufficient under our law to negate malice and constitute by law sufficient legal provocation. Some examples are acts which constitute legal provocation, negate malice, legally adequate to reduce the entire act of manslaughter include a threat of imminent danger-imminent deadly assault by the victim upon the defendant, an assault upon the defendant by the victim, the use of excessive force by the victim to effectuate an otherwise lawful arrest. (emphasis added). Assuming Shuler's theory is true and Brooks was attempting to arrest Shuler, the examples the trial judge provided of sufficient legal provocation would encompass this scenario and the jury could have found voluntary manslaughter.
B. Shuler's Request to Charge
At the close of the evidence, defense counsel moved for a directed verdict, arguing the evidence only established voluntary manslaughter because Brooks used excessive force and assaulted Shuler during a citizen's arrest. The trial judge denied the motion, but charged voluntary manslaughter. The trial judge reasoned the jury could find voluntary manslaughter if they determined the guard fired first. After the charge, defense counsel argued the trial judge should have charged the following:
Upon view of a felony committed or upon view of a larceny committed, any person may arrest a felon or thief and take him to a judge or magistrate to be dealt with according to law. Such arrest, however, must be made with the use of reasonable force. In making an arrest, it is unlawful to use deadly force in an attempt to thwart the commission of the felony or theft or to apprehend the felon. The trial judge stated it did not find Shuler's charge “to warrant merit under the circumstances and the facts as presented in the trial of this case.”
According to the defense, this charge was based on S.C.Code Ann. §§ 17-13-10 to -20 (1976) and State v. Cooney, 320 S.C. 107, 463 S.E.2d 597 (1995).FN4 In Cooney, this Court held it was reversible error not to charge the jury on the common law of citizen's arrest and the use of reasonable force. In that case, two defendants attempted to arrest the victim for robbing their store. The unarmed victim confessed to the robbery and began to flee the scene. The two defendants shot and killed the victim. Id. According to the Court, in order to invoke the defense of justifiable killing in apprehending a felon, the defendant, at a minimum, must show he had certain information a felony had been committed and he used reasonable means to effect the arrest. Id. at 109, 463 S.E.2d at 599. This Court found whether reasonable force was used to apprehend a fleeing felon is a factual question left to the jury, and the jury should have been charged on the common law of citizen's arrest.
FN4. Shuler also argues State v. Linder, 276 S.C. 304, 278 S.E.2d 335 (1981) in support of his proposition that excessive force in an arrest can result is sufficient legal provocation for voluntary manslaughter. Linder is distinguishable because it involved a police officer trying to effect an arrest.
Shuler's argument is without merit because Cooney is distinguishable from the instant case. In Cooney, the defendant was attempting to argue citizen's arrest as a defense to murder. Moreover, Shuler was the initiator of this crime, and his actions directly put Brooks in danger. No evidence was presented at trial indicating Brooks was attempting an arrest rather than simply trying to protect himself during a robbery and kidnapping. Because there was no evidence to support Shuler's citizens arrest defense, the trial judge did not err in refusing to charge Shuler's Request to Charge.
Conclusion
After reviewing the entire record, we conclude the death sentence was not the result of passion, prejudice, or any other arbitrary factor. Further, the death penalty is neither excessive nor disproportionate to that imposed in similar cases. See State v. Huggins, 336 S.C. 200, 519 S.E.2d 574 (1999) cert. denied, 528 U.S. 1172, 120 S.Ct. 1199, 145 L.Ed.2d 1103 (2000); State v. Ivey, 331 S.C. 118, 502 S.E.2d 92 (1998) cert. denied, 525 U.S. 1075, 119 S.Ct. 812, 142 L.Ed.2d 671 (1999); State v. Hughes, 328 S.C. 146, 493 S.E.2d 821 (1997). Based on the foregoing, we AFFIRM Shuler's convictions and death sentence.
Shuler v. Ozmint, 209 Fed.Appx. 224 (4th Cir. 2006) (Habeas).
Background: After defendant's state conviction and death sentence for capital murder were affirmed on direct appeal, 344 S.C. 604, 545 S.E.2d 805, and motion for postconviction relief was denied, defendant filed petition for writ of habeas corpus. The United States District Court for the District of South Carolina, Margaret B. Seymour, J., denied petition, but granted defendant's request for certificate of appealability, and defendant appealed.
Holdings: The Court of Appeals, Wilkins, Chief Judge, held that:
(1) trial counsels' failure to present evidence of steroid and cocaine use prior to trial was matter of reasonable trial strategy;
(2) defendant was not entitled to habeas corpus relief based on claim that trial counsel were ineffective for failing to present evidence of suicide attempt prior to offense;
(3) defendant was not entitled to habeas corpus relief based on claim that prosecutor allowed to stand uncorrected witness' false testimony regarding terms of his plea agreement with State; and
(4) defendant was not entitled to habeas corpus relief based on claim that prosecution failed to disclose purported deal regarding witness' place of incarceration.
Affirmed.
WILKINS, Chief Judge.
Calvin Alphonso Shuler appeals an order of the district court denying his petition for a writ of habeas corpus.FN1 See 28 U.S.C.A. § 2254 (West 1994 & Supp.2006). Shuler seeks relief from his conviction and sentence of death for the murder of James Brooks. For the reasons set forth below, we affirm.
FN1. Shuler named Jon Ozmint, Commissioner of the South Carolina Department of Corrections, and Henry McMaster, Attorney General of South Carolina, as Respondents. For ease of reference, we will refer to Respondents as “the State.”
At 10:45 a.m. on December 3, 1997, three employees of Anderson Armored Car-Brooks, Alton Amick, and Sherman Crozier-traveled in a company truck to the First National Bank of Harleyville, South Carolina. Amick and Crozier were in the cab of the truck, while Brooks was in the back. Upon arrival, Amick opened the driver-side door and was immediately confronted by a man wearing fatigues, a ski mask, and gloves, who was pointing a pistol at him. An assault rifle was slung over the man's shoulder.
The man ordered Amick and Crozier out of the truck. He entered the cab of the truck and engaged in a gun battle with Brooks. After the gunfire stopped, the man threw his pistol out a window and drove away at a high rate of speed. Shortly thereafter, law enforcement officers found the abandoned truck, with Brooks in the back, dead from multiple gunshot wounds. Police dogs followed a scent trail from the truck and located an SKS assault rifle, a bloody ski mask, and other items. Investigation revealed that the pistol was registered to Shuler's mother and that the rifle had been purchased by Demond Jones, the fiancé of Shuler's cousin. Jones had purchased the weapon at Shuler's request, in order to satisfy a debt.
Shuler was questioned and, during a polygraph examination, confessed to the murder. He indicated that he had previously worked for Anderson Armored Car and thus knew how many employees would be in the truck and how they would be armed. He had planned the robbery two weeks in advance and had lain in wait under a house adjacent to the bank.
Upon Shuler's indictment for murder, armed robbery, and kidnapping, Marva Hardee-Thomas was appointed as defense counsel. She contacted Dr. Donna Schwartz-Watts, a forensic psychiatrist. Dr. Schwartz-Watts conducted an evaluation, during which Shuler informed her that he had used anabolic steroids. (Dr. Schwartz-Watts had noticed Shuler's physique and recalled judging him in a previous bodybuilding competition.) Shuler also relayed that he had gotten into a fight with a coworker and had been shot, and that his parents had recently died. Shuler blamed these events on “himself and his steroid use.” J.A. 325. Shuler also told Dr. Schwartz-Watts that he had begun using cocaine base shortly before the murder.
After Dr. Schwartz-Watts had completed her evaluation, the prosecution filed a notice of intent to seek the death penalty. Because Ms. Hardee-Thomas was not qualified under South Carolina law to serve as counsel in a capital case, Shuler was appointed new counsel, Norbert Cummings and Doyle Mark Stokes. Because Cummings and Stokes were concerned about a “taint[ ]” from the involvement of unqualified counsel, id. at 875, they elected to engage a new psychiatric expert, Dr. Harold Morgan. However, counsel spoke with Dr. Schwartz-Watts and obtained her report.
Dr. Morgan examined Shuler on several occasions and subsequently testified at a pre-trial competency hearing. Dr. Morgan stated that during his examinations, Shuler claimed to be suffering from total memory loss dating from August 13, 1998, when he knocked his head on a concrete floor as prison guards attempted to subdue him for the purpose of obtaining a blood sample. Based on the symptoms and behaviors exhibited by Shuler, Dr. Morgan concluded that Shuler's memory loss was probably feigned. On cross-examination, Dr. Morgan expressed general agreement with the testimony of prosecution experts that other behaviors exhibited by Shuler-including the recitation of military cadences during examinations and claims of hallucinations-were likely attempts to feign mental illness.
Shuler was declared competent and was convicted by a jury of murder, armed robbery, and kidnapping. The jury subsequently imposed a sentence of death.
After Shuler's convictions and sentence were affirmed on appeal, see State v. Shuler, 344 S.C. 604, 545 S.E.2d 805, cert. denied, 534 U.S. 977, 122 S.Ct. 404, 151 L.Ed.2d 306 (2001), Shuler sought post-conviction relief (PCR) in state court. As is relevant here, Shuler asserted first that trial counsel were constitutionally deficient for (a) failing to investigate Shuler's history of steroid use and to present this history, along with testimony regarding the psychological effects of steroid use, as evidence in mitigation; (b) failing to investigate and present evidence in mitigation that Shuler had ingested cocaine base immediately prior to the offense; and (c) failing to inform Dr. Morgan that Shuler had attempted suicide hours before the offense. Second, Shuler maintained that the prosecution knowingly presented perjured testimony by state witness Demond Jones and failed to provide defense counsel with exculpatory information regarding benefits received by Jones in exchange for his testimony. The PCR court denied relief on the merits after an evidentiary hearing.
Shuler thereafter sought federal habeas relief, asserting the claims listed above. The district court denied relief but granted a certificate of appealability. This appeal followed.
II.
Shuler first maintains that trial counsel were ineffective in a number of respects with regard to the penalty phase of his trial. In order to establish that his constitutional right to the effective assistance of counsel was violated, Shuler must make a twofold showing. See Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). First, he must demonstrate that his attorneys' “representation fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Judicial scrutiny of counsel's performance must be highly deferential,” and “every effort [must] be made to eliminate the distorting effects of hindsight ... and to evaluate the [challenged] conduct from counsel's perspective at the time.” Id. at 689, 104 S.Ct. 2052.
Shuler must also demonstrate that he was prejudiced by his attorneys' ineffectiveness, i.e., “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. In the context of an ineffective assistance claim related to counsel's performance during the penalty phase of a capital trial, the question is whether the habeas petitioner can demonstrate a reasonable probability that at least one juror would have voted to impose a sentence of life imprisonment. See Buckner v. Polk, 453 F.3d 195, 203 (4th Cir.2006).
Review of Shuler's ineffective assistance of counsel claims is additionally constrained by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214. Pursuant to that act, we review the decision of the district court de novo, but we defer to the decision of the state court insofar as it adjudicated Shuler's claims. See Conaway v. Polk, 453 F.3d 567, 581 (4th Cir.2006). A federal court may grant habeas relief on a claim “adjudicated on the merits” by a state court only if the state court ruling “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 “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.A. § 2254(d).
A decision is “contrary to” clearly established federal law if it either applies a legal rule that contradicts prior Supreme Court holdings or reaches a conclusion different from that of the Supreme Court “on a set of materially indistinguishable facts.” A decision is an “unreasonable application” of clearly established federal law if it “unreasonably applies” a Supreme Court precedent to the facts of the petitioner's claim. Buckner, 453 F.3d at 198 (quoting Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)) (citation omitted).
With these principles in mind, we turn to an examination of Shuler's claims.
A. Steroid Use
Shuler first maintains that counsel were ineffective for failing to investigate Shuler's use of anabolic steroids. He maintains that such an investigation would have resulted in the development of evidence supporting statutory and non-statutory mitigating factors relating to the drug abuse.
At the PCR hearing, Shuler presented the testimony of Dr. Harrison G. Pope, an expert on the effects of steroid use. Dr. Pope testified that individuals who use large quantities of anabolic steroids, in the manner typical of body builders, often experience mania or hypomania characterized in part by marked irritability and aggression. Although Dr. Pope neither examined Shuler nor spoke with him, he concluded that Shuler was abusing steroids at the time of the crime based on Shuler's admission to Dr. Schwartz-Watts, reports from Dr. Schwartz-Watts and others regarding Shuler's physique, the fact that Shuler had asked his girlfriend, Aleshia Berry, to contact a pharmacist friend for help in acquiring drugs, and a “bizarre” and “aggressive” incident in 1996 in which Shuler held Berry's head under the water in a pool for “an extended period of time.” J.A. 869 (internal quotation marks omitted). Dr. Pope identified increasingly aggressive behavior by Shuler, beginning in 1995 when Shuler was involved in a drive-by shooting at his then-workplace and culminating with the robbery-murder for which he had been sentenced to death. Ultimately, Dr. Pope stated his opinion that Shuler's capacity to conform his conduct to the requirements of the law was substantially impaired at the time of the offense (a statutory mitigating factor under South Carolina law) due to steroid use.
Shuler contends, in essence, that competent counsel would have conducted a more thorough investigation of Shuler's steroid use and would have presented the testimony of an expert such as Dr. Pope in order to persuade the jury that Shuler's steroid use was a mitigating factor. In assessing this claim, the PCR court acknowledged the clearly established rule that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052; see id. at 690-91, 104 S.Ct. 2052 (“[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.”).
The PCR court found that trial counsel did conduct some investigation into Shuler's use of steroids. In particular, based on their knowledge that Shuler had used cocaine base and steroids, counsel instructed the defense investigator to conduct an investigation into drug use by Shuler (but did not specifically mention steroids). The investigation revealed some casual drug use and that the person suspected to have been Shuler's dealer was deceased. However, the primary focus of the investigation was on finding witnesses who would support counsel's theory of mitigation-that Shuler was a good man and that the crime was out of character.
At the PCR hearing, defense counsel testified regarding their strategy with respect to Shuler's steroid use. Counsel stated that they considered using the evidence but that they decided not to do so because they were concerned that a jury in the conservative county where the case was to be tried would find such evidence aggravating rather than mitigating. Cummings, for example, testified regarding his “reservations about introducing evidence that a healthy, young, grown male self abuses illegal drugs in order to bulk up.” J.A. 874 (internal quotation marks omitted). Trial counsel also believed that presenting any evidence regarding mental health issues, such as the psychological impact of steroid use, would open the door to testimony that Shuler had attempted to feign total memory loss, seizures, and hallucinations. Indeed, counsel decided not to present any mental health testimony after Dr. Morgan testified during the competency hearing that he believed Shuler was malingering.
The PCR court concluded that although counsel's investigation into Shuler's steroid use was limited, that limitation was objectively reasonable in light of counsel's strategic judgment that the jury would view such evidence as aggravating, not mitigating. We cannot conclude that this ruling was an unreasonable application of Strickland and Wiggins. Importantly, the only evidence available to counsel indicated that Shuler's steroid use was limited and remote-according to Cummings and Stokes, Shuler informed them only that he had taken some steroid pills during the summer of 1997, and he denied having used steroids near the time of the crime. Furthermore, the investigator uncovered no evidence of extensive drug use, despite speaking with numerous people who knew Shuler well. Counsel thus decided not to present evidence of past voluntary use of a drug when that evidence likely would have had a negative effect on the jury.FN2
FN2. Although its conclusion that counsel's investigation was not unreasonable was sufficient to dispose of Shuler's claim regarding his steroid use, the PCR court nevertheless continued to the issue of whether Shuler suffered prejudice, and determined that he had not. Because we hold that the ruling of the PCR court with respect to counsel's effectiveness was not unreasonable, we do not consider its decision regarding prejudice.
B. Cocaine Base
Shuler next contends that trial counsel were ineffective for failing to develop and present to the jury evidence that he used cocaine base in the hours before the offense. The PCR court found that defense counsel knew before trial that Shuler had used cocaine base and that, based on this knowledge, counsel had directed their investigator to inquire into Shuler's use of drugs. This investigation did not reveal anything more than casual use of drugs.
Stokes and Cummings discussed the possibility of introducing evidence of Shuler' s use of cocaine base as part of the case in mitigation, but elected not to do so. This decision was driven by the same strategic considerations that animated the decision not to present evidence regarding Shuler's use of steroids: fear that the jury would view casual drug use as aggravating rather than mitigating and concern that any testimony regarding the psychological effects of cocaine use would be countered with potentially devastating testimony regarding Shuler's attempts to feign mental illness.
The PCR court concluded that counsel's strategic decision not to present evidence of Shuler's cocaine use was not objectively unreasonable under the circumstances. We agree with the conclusion of the district court that this ruling by the PCR court was neither contrary to, nor an unreasonable application of, clearly established federal law.
C. Suicide Attempt
In a report filed shortly after the crime, FBI Special Agent David Espie wrote that “[a] s Shuler contemplated the robbery” while lying in bed during the early morning hours of December 3, “he held the assault rifle that Jones had purchased for [him]; at this time, this rifle was fully loaded.... Shuler placed the barrel of this rifle into his mouth and pulled the trigger.” J.A. 770. Unbeknownst to Shuler, the safety was on, and thus the rifle did not fire.
Shuler asserts that trial counsel were ineffective for failing to provide the information in Espie's report to Dr. Morgan and to present it to the jury. The PCR court rejected these claims, first finding as a fact that trial counsel did inform Dr. Morgan of the suicide attempt, although they may have done so orally rather than by providing Dr. Morgan with a copy of Espie's report. Shuler does not contend that this finding is unreasonable in light of the evidence presented during the PCR hearing, nor could he credibly do so.
Second, the PCR court concluded that it was not unreasonable for counsel to fail to present the suicide attempt to the jury. In the view of the PCR court, mere presentation of the attempt ( e.g., by seeking admission of Espie's report) would have been insufficient, standing alone, to justify a jury instruction on the statutory and nonstatutory mitigating factors that Shuler alleges are supported by the suicide attempt. Thus, presentation of psychological testimony would have been necessary, with the result that the door would be opened to evidence regarding Shuler's malingering. The PCR court therefore concluded that counsel's failure to present the suicide attempt to the jury was not objectively unreasonable “[i]n light of the obvious negative aspects of possible rebuttal evidence that [Shuler] was malingering.” Id. at 892 (internal quotation marks omitted). We conclude that the ruling of the PCR court that counsel were not ineffective regarding Shuler's suicide attempt was neither contrary to, nor an unreasonable application of, Supreme Court precedent.
The PCR court further concluded that even if the failure to present this evidence was ineffective, Shuler could not demonstrate prejudice. We hold that this ruling also was not unreasonable. Counsel's mitigation strategy was to present Shuler as a good man who had made a terrible mistake. As part of this strategy, counsel presented testimony regarding Shuler's reaction to his parents' deaths. Various witnesses testified that Shuler was deeply depressed following his parents' deaths; this testimony included a statement that “all the life went out” of him after his parents' passing. Id. at 271. His aunt testified that on one occasion she found Shuler in the cemetery, lying between his parents' graves. In short, the jury was fully aware of Shuler's depression at the time of the crime. The jury also knew that the crime took place on December 3, which was both Shuler's birthday and the anniversary of his mother's burial. While evidence of a suicide attempt would have provided an additional piece of the puzzle, we cannot say that the PCR court unreasonably applied the prejudice prong of Strickland when it concluded that Shuler had failed to demonstrate a reasonable probability that, absent counsel's failure to present the evidence, at least one juror would have voted to impose a life sentence.
III.
Finally, Shuler raises two claims related to the testimony of Demond Jones. First, he maintains that the prosecution knowingly allowed Jones to testify falsely regarding his plea agreement with the federal government. See Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Second, Shuler claims that the prosecution failed to produce evidence regarding a particular aspect of the agreement, namely, that Jones would be incarcerated in South Carolina. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We affirm the denial of relief as to both of these claims.
A. Napue Claim
A conviction acquired through the knowing use of perjured testimony by the prosecution violates due process. See Napue, 360 U.S. at 269, 79 S.Ct. 1173. This is true regardless of whether the prosecution solicited testimony it knew to be false or simply allowed such testimony to pass uncorrected. See Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue, 360 U.S. at 269, 79 S.Ct. 1173. The Supreme Court has held that a defendant is entitled to relief on such a claim when “ ‘there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’ ” Kyles v. Whitley, 514 U.S. 419, 433 n. 7, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)).
Because Jones was a convicted felon, it was illegal for him to possess the SKS rifle he purchased for Shuler. He was charged with several federal offenses in connection with his purchase of the weapon. Jones pleaded guilty to a single offense and was sentenced to 41 months imprisonment. However, the plea agreement provided that the United States would seek a sentence reduction pursuant to Rule 35 of the Federal Rules of Criminal Procedure if Jones “cooperate[d] pursuant to the provisions of this Plea Agreement, and that cooperation is deemed by Attorneys for the Government as providing substantial assistance in the investigation or prosecution of another person who has committed an offense.” J.A. 863.
During cross-examination, Shuler unsuccessfully attempted to elicit Jones' acknowledgment of this provision of the plea agreement:
Q .... they have a right to reconsider your sentence, the United States Attorney ... can go back and ask Judge Norton to give you a reduction under the rules as part of its plea agreement; isn't that correct? A. I'm not promised nothing. .... Q. You signed a plea agreement with the United States Government.... This is an original file[d] back on April 8, 1997, where you agreed to plead guilty. I want you to please take a look at it and see if you can identify it? A. Yes, sir. .... Q. They agreed to drop certain counts of the indictment, certain charges, everything else if you agreed to come to this courtroom today and testify as you're testifying, right? A. Right. Q. Okay. And I'm asking you under oath this morning: Were you not told by either the United States Attorney or your lawyer ... that if you testified here they would have the right to come back and seek a reduction under the rules of federal court for you if you testified in this hearing today? A. No. Q. They did not tell you that? A. I ain't promised nothing. Q. You['re] understanding you're under oath? A. I'm right. Q. You're as sure of that last statement as you are about ... every other piece of testimony you testified to for the State, are you not, sir? .... A. I wasn't promised anything. Id. at 202-04.
Shuler maintains that Jones' testimony was false, in that he claimed not to be aware of the possibility of a Rule 35 motion, and that the prosecution violated Napue by allowing this false testimony to pass uncorrected. The PCR court concluded, and we will accept for purposes of analyzing this issue, that Jones' testimony on this point was incorrect because the Government had promised that it would seek a reduction in Jones' sentence if he testified truthfully at Shuler's trial, although the plea agreement noted that the district court would not be bound to grant such a motion. However, the PCR court concluded that relief was not warranted because the jury was made aware, through questioning by the prosecution and Shuler, of the nature of Jones' agreement and because the inaccurate testimony was not material in light of the “vehement attack” on Jones' credibility:
[D]efense counsel's cross-examination successfully impugned Jones' character by: (1) eliciting Jones had repeatedly spoken with State and federal police officers, but refused to talk with defense investigators; (2) showing Jones was on probation for assault and battery with the intent to kill when he was arrested on federal charges, and he had not had a State probation revocation hearing; (3) demonstrating Jones admitted lying on his federal firearms application for the SKS rifle; and (4) demonstrating Jones had not been charged by the Solicitor in connection with [Shuler's] case, and had not been charged with lying to the FBI.
Id. at 901 (internal quotation marks omitted). We agree with the district court that the analysis of the PCR court was neither contrary to, nor an unreasonable application of, the principles set forth in Napue. Accordingly, we affirm the rejection of this claim by the district court.
B. Brady Violation
Shuler makes a second claim related to Jones' testimony, namely, that the prosecution failed to reveal to the defense that Jones was promised that he would be incarcerated in South Carolina in exchange for his testimony and that he would receive drug treatment. The claim regarding incarceration is based on a letter from the Assistant United States Attorney in Jones' case to Shuler's prosecutor. The letter stated, in relevant part,
Judge Norton ... indicated that he would recommend that Jones be designated to the federal prison in Estill which should be relatively convenient for trial preparation. Judge Norton said that if there are any difficulties with your having access to Jones for trial preparation, or at such time as you need him transported for trial, he will be glad to assist by issuing the appropriate orders at my request. J.A. 834-35. Shuler also notes that during Jones' sentencing hearing, Jones' counsel requested that his client be assigned to the federal penitentiary at Estill.
The PCR court found as a fact that there was no “deal” with Jones regarding his place of incarceration; rather, the letter cited by Shuler indicated an attempt to ensure that Jones, a key witness against Shuler, would be readily available for trial preparation. This finding is not unreasonable in light of the evidence presented to the PCR court.
Because the PCR court was concerned about the appearance that “Jones' counsel had a ‘say’ in Jones' penal destination,” id. at 905, the court additionally considered whether the failure to divulge the purported “deal” was material. The PCR court concluded that the evidence was not material in light of the extensive impeachment of Jones (detailed above) and the extensive evidence of Shuler's guilt, which included his confession. This conclusion was not an unreasonable one, and we affirm the denial of this claim by the district court.
IV. For the reasons set forth above, we affirm the denial of habeas relief by the district court. AFFIRMED.