Derden v. McNeel

978 F.3d 1453
CourtCourt of Appeals for the Fifth Circuit
DecidedDecember 16, 1992
Docket90-1230
StatusPublished

This text of 978 F.3d 1453 (Derden v. McNeel) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Derden v. McNeel, 978 F.3d 1453 (5th Cir. 1992).

Opinions

EDITH H. JONES, Circuit Judge:

On initially hearing this case, the majority of a panel of our court concluded that an accumulation of actions prejudicial to petitioner George Guy Derden deprived him of a fundamentally fair trial for burglary in Mississippi state court. Derden v. McNeel, 938 F.2d 605 (5th Cir.1991). After en banc rehearing, we now hold that federal habeas corpus relief may only be granted for cumulative errors in the conduct of a state trial where (1) the individual errors involved matters of constitutional dimension ráther than mere violations of state law; (2) the errors were not procedurally defaulted for habeas purposes; and (3) the errors “so infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973). This case fails to satisfy those standards.

I. BACKGROUND

A rational jury could have convicted Der-den of participating in the burglary of Wade’s Grocery in Pheba, Mississippi [1455]*1455shortly after midnight on February 10, 1983.1 The burglars unsuccessfully attempted to remove a safe, then fled in mid-crime at the sight of an approaching vehicle. Three of the burglars, each of whom had reached a very favorable deal with the prosecution, testified to Derden’s involvement. The co-conspirators were Willie Sherrod, who worked at Derden’s carpet store in Columbus, Mississippi and had a string of armed robberies in his past, and Jay Posey and Tommy Turner, young men who first met Derden the night of the burglary and barely recognized him later. They all testified that Derden drove them in his van with his girlfriend Pam Smith to Wade's Grocery and was participating in the crime until it aborted. Derden, Turner and Smith escaped in the van, leaving Po-sey and Sherrod to hitchhike through the darkness and rain. At a nearby farmhouse, Posey and Sherrod found a ride back to Turner’s West Point, Mississippi apartment. According to Turner, the group in Derden’s van experienced car trouble and drove along back roads, finally dropping Turner off in West Point before Posey and Sherrod arrived. Derden was stopped in his van and ticketed at 3:45 a.m. for having broken tail lights.

In his defense, Derden tendered an alibi and challenged the credibility of the other burglars. His alibi was supported principally by his own testimony and that of Pam Smith. According to this tale, Derden had lent his van to Sherrod that night while he and Smith went to Houston, Mississippi in Sherrod’s car and measured two houses for carpet until midnight. Neither Smith nor Derden, however, had been able to identify the houses or their occupants. The alibi was subjected to devastating cross-examination.. For instance, Derden. produced receipts and business records of minutiae such as three-year old gasoline purchases, yet he had mysteriously lost the receipt for the carpet he sold in Houston that night. Further, Derden’s counsel agreed with the prosecutor to introduce in evidence Der-den’s statement to the sheriff, made during investigation of the crime. As luck would have it, some hearsay information on that statement directly contradicted Derden’s testimony that he switched vehicles with Sherrod at the Apollo Club the night of the burglary.

Derden sought to undermine the confessed burglars’ testimony by emphasizing the favorable treatment they received from the prosecutors. He also tried to show that their chronologies of events were hopelessly inconsistent, hence untrustworthy. The farmer’s son who agreed to give Sherrod and Posey a ride when they showed up on his father’s doorstep after midnight testified that he dropped them off in West Point by about 2:00 a.m. All three burglars testi--fled that Turner had returned to his West Point apartment before Sherrod and Posey. But according to the sheriff who investigated the crime, the route of Turner’s odyssey in Derden’s van, which included a stop to work on the tail light, could not have landed Turner at home until well after 3:00 a.m.

The jury found Derden’s defense unpersuasive. He was sentenced to seven years in Mississippi state prison. Qn appeal to the Mississippi Supreme Court, Derden raised numerous points of error similar to those he later argued in federal court: prosecutorial misconduct during voir dire, judicial bias, withholding of exculpatory evidence, and lack of fundamental fairness.2 [1456]*1456With one exception, the Mississippi Supreme Court found Derden's arguments so meritless that" they warranted no discussion. See Derden v. State, 522 So.2d 752, 755 (Miss.1988). The state supreme court did rule that the prosecutor violated Mississippi law in the conduct of voir dire on the co-conspirators’ testimony, but it held that this error was later cured by the trial court’s jury instruction.3

Unsuccessful on direct appeal, Derden sought habeas corpus relief. He persuaded the magistrate that “the trial judge’s demeanor coupled with the prosecutor’s over-zealous actions” impugned Derden’s credibility in a case that hinged on credibility choices and produced a pervasively prejudicial trial atmosphere. The district court rejected the magistrate’s conclusion and held that the cumulative effect of the events at trial did not fatally undermine its fundamental fairness or the accuracy of the verdict. The panel majority in this court read the record and held that the challenged events at trial were so unfair to Derden that while not individually meriting the grant of the Great Writ, they cumulatively violated his constitutional right to due process. We reverse course again, and, disagreeing with the panel majority’s application of the cumulative error theory, we affirm the district court’s denial of relief.

II. DISCUSSION

That the constitutionality of a state criminal trial can be compromised by a series of events none of which individually violated a defendant’s constitutional rights seems a difficult theoretical proposition and is one to which the Supreme Court has not directly spoken.4 With one exception, however, our sister circuits have held in dicta that federal habeas relief may issue if a defendant was denied fourteenth amendment due process by the cumulative effect of errors committed in a state trial, which together deny fundamental fairness.5 We join the majority “rule” subject to the following discussion.

Several of the circuit court decisions drew an analogy with cases on direct criminal appeal in which the possibility of cumulative error is often acknowledged but practically never found persuasive.6 Such rote [1457]*1457analogy is misleading. The standard for reversal on direct appeal of a criminal conviction, whatever it may be, should logically be more flexible than that available on collateral review. We are not here considering the basis for cumulative error review on direct appeal of federal convictions. However, because the habeas cases have also rejected cumulative error theories on the facts presented, their definitions of it are perfunctory. As an example, the Sixth Circuit describes cumulative errors as those that do not individually deny due process “but, when considered together, leave ‘no doubt that the jury was too tainted and influenced to be able to give the petitioner a fair trial.’ ” Lundy, 888 F.2d at 481.

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Bluebook (online)
978 F.3d 1453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/derden-v-mcneel-ca5-1992.