Professional Documents
Culture Documents
No. 12-4
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., District Judge. (1:01-cv-00393-WO-JEP)
Argued:
December 4, 2012
Decided:
PER CURIAM:
John Edward Burr (Burr) was convicted by a North Carolina
jury of the first-degree murder and felony child abuse of fourmonth-old Tarissa Sue (Susie) ODaniel, and of assault on a
female, and sentenced to death plus thirty days imprisonment.
The North Carolina Supreme Court affirmed.
461 S.E.2d 602 (N.C. 1995).
assistance
of
counsel
under
Strickland
v.
Because the
deference
that
federal
courts
must
afford
state
court
fractures
widespread
bruises
of
to
both
her
thighs
head,
2
and
face,
both
upper
arms,
and
neck,
arms,
legs,
and
torso.
North
Memorial
Hospital
in
Chapel
Hill.
Her
head
injury proved fatal, and she was pronounced dead on August 27,
1991, at approximately 6:30 p.m.
The states evidence regarding the events leading up to
Susies
hospitalization,
mother,
Lisa
Bridges,
including
was
the
summarized
testimony
by
the
of
North
Susies
Carolina
which disappeared.
Bridges further testified that
later that evening, while she was sitting on the
trailer steps with Susie and defendant was mowing the
yard, defendant hit Bridges in her lower back with his
fist.
After defendant hit her, Bridges went over to her
brothers trailer, where defendant eventually joined
her.
Defendant and Bridges began arguing again, and
Bridges left the trailer with the infant child.
Bridges testified that defendant followed her and
shoved her in the back while she was holding the
child. Bridges also told defendant that he was going
to make her hurt the child, but Bridges testified that
he just kept running his mouth and followed her
inside her trailer, still arguing.
Once inside the trailer, Bridges placed Susie in
her infant swing located in the living room. Bridges
testified that while she was still holding onto the
swing, defendant pushed her down onto the couch,
almost causing her to knock over the swing.
When
Bridges attempted to get up from the couch, defendant
pushed her down again and told her not to leave the
couch.
Bridges sat on the couch a few minutes and
then stood up and walked down the hallway into her
bedroom.
Bridges testified that defendant followed
her to the bedroom and pushed her onto the waterbed,
causing the waterbed to break. Bridges testified that
after the waterbed broke, defendant started talking
like everything was fine. Bridges and defendant then
began repairing the waterbed.
Bridges testified that as they were repairing the
waterbed, Susie began to cry and that defendant told
Bridges, go on up there and get her, thats all in
the hell she wants anyway, she is so damned spoiled.
Bridges took the child out of her swing and brought
her back to the bedroom, where she laid her on the
waterbed.
After defendant finished fixing the bed,
Bridges helped her two sons, Scott and Tony, prepare
for bed, while her youngest son, John, Jr., remained
at Donald Wades trailer.
Bridges testified that she
also got [Susie] to sleep and placed her in her
baby bed located in Bridges bedroom.
Bridges
testified that when she placed Susie in her bed, she
appeared to be physically fine and that she did not
have any marks on her. Bridges then went back to the
4
testified
Tony were
bed, and
room.
the
her
not
she
testified
in
his
defense.
He
confirmed
Bridges
He testified that he
also examined Susie after the fall and that she was fine.
of
the
bruises
witnesses
or
gravel
confirmed
prints
that
on
her
Susie
skin
had
no
after
cuts,
the
All
scrapes,
fall.
Burr,
drove
Bridges
and
Susie
to
the
Alamance
County
that
had
occurred
up
until
this
point,
there
is
no
It was grave.
examining
physician,
that
her
8-year-old
son
Scott
had
But
by
Dr.
Azizkhan,
professor
of
chief
surgery
at
of
pediatric
the
surgery
University
of
and
North
at
Medicine and
chief
University
of
the
of
section
North
of
Carolina
pediatric
School
of
radiology
at
10
Id.
Despite their efforts, the trauma team at Memorial Hospital
was unable to reduce the swelling and pressure in Susies brain.
Dr. Tennison testified that Susie died as a result of multiple
trauma to her head that resulted in contusions of the brain and
eventually brain swelling and herniation and brain death.
Id.
blunt force trauma to the head, blunt force trauma to the neck
and chest with bruising of the neck and chest, and blunt force
trauma to all four extremities.
B.
In September 1991, Burr was indicted for Susies murder and
he
was
appointed
trial
counsel.
In
mid-December
1992,
with
month continuance on the eve of trial, from both the trial court
and the North Carolina Supreme Court, based in part upon their
desire to spend additional time evaluating the medical evidence
and the need for expert assistance.
Prior
counsel
to
the
scheduled
start
an
of
the
in-person
phase,
consultation
however,
with
Dr.
trial
Desmond
Medical
Evaluation
Program
at
the
University
of
North
The record
12
Susies injuries could have occurred when Scott fell with her:
[Dr. Runyan] stated that [Susie] would have to be
dropped from about 8 feet 6 inches or more to cause
the amount of brain damage and injury th[e] child
suffered.
An 8 [year] old is not strong enough to
cause any of these injuries.
The fall with Scott
probably would have hurt the child if she hit the
ground, but it would be minor injuries.
For the
breaks in the arms and legs, it would take adult
strength blows, not a child.
[T]here are two
occaisions [sic] of injury; 7-10 days prior to
hospitalization and Saturday night.
J.A. 1436.
Given the extent and nature of Susies injuries, counsel
was clearly presented with a difficult case.
However, there
that Scotts fall with Susie could not have caused the extensive
injuries
examiner.
documented
by
the
treating
physicians
and
medical
not prove beyond a reasonable doubt that Burr -- who was only
sporadically in the home and not a primary caretaker -- was
Susies abuser either prior to or on the night in question.
13
In
support
testimony
from
of
Dr.
this
strategy,
Chancellor
trial
that
one
counsel
quick,
hard
elicited
blow
to
Susies head by a fist could have caused the fatal injury, and
presented
motive
evidence
and
and
argument
opportunity
to
that
inflict
there
the
were
fatal
others
wound.
with
In
older,
injuries.
brown
bruises
that
were
present
from
the
earlier
before she and Burr took Susie to the emergency room, Bridges
took the time to instruct her three minor children about what
they
should
say
if
the
authorities
came
to
question
them.
J.A. 2054.
out
that,
while
Bridges
J.A. 2054.
initially
Counsel also
denied
to
the
authorities that Burr was abusive to her, and Bridges and Burr
both related only the fall with Scott as a possible cause of
14
towards
authorities
Burr
unanimously
once
the
rejected
treating
the
physicians
possibility
that
and
Susies
been
propped
on
the
couch,
that the
also
cleanliness
problem
Bridges
her
smack
Id. 1
Trial
Bridges
regarding
children,
stating,
Flores
the
home
her,
fell off
impeached
of
with
baby
and
and
the
her
fact
couch.
the
children,
that
DSS
lack
the
has
of
truancy
received
sons,
psychiatric
instability.
and
history
social
and
workers
relationship
opinion
with
that
men
Bridges
suggest[ed]
15
marks
omitted).
hospitalized
There
and
was
received
evidence
that
medication
Bridges
and
had
been
treatment
for
degree
female.
murder,
felony
child
abuse,
and
assault
on
to
the
North
Carolina
Supreme
Court.
Among
other
rights
assistance of counsel.
to
confrontation
Id. at 619.
and
to
the
effective
16
See Burr v.
C.
On September 27, 1996, Burrs state post-conviction counsel
filed a Motion for Appropriate Relief (MAR) in state court,
which was followed by several amendments.
alia,
that
his
trial
counsel
were
constitutionally
deficient
Burr
should
asserted
that
presented
to
suffered
from
Imperfecta,
the
trial
jury
an
or
counsel
expert
testimony
undiagnosed
brittle
bone
have
that
condition
disease,
developed
Susie
of
(the
may
and
have
Osteogenesis
OI
evidence),
which could explain her prior fractures, and/or that her fatal
injuries occurred when her 8-year-old brother Scott tripped and
fell while carrying her that day (the short-fall evidence).
In support of this theory of accidental injury and death, Burr
submitted affidavits from three consulting experts who reviewed
the
Alamance
County
Hospital
and
North
Carolina
Memorial
Hospital records.
The
Clinical
first
affidavit
Professor
of
was
from
Pediatrics
Dr.
at
Jerry
the
C.
Bernstein,
University
of
North
that
the
raise
number
and
question
of
nature
of
the
osteogenesis
17
multiple
imperfecta
fractures
(brittle
consulting
with
Dr.
J.A. 968.
Berstein,
counsel
obtained
Dundee,
in
Scotland,
who
was
considered
to
be
leading
J.A. 909.
fell
on
top
of
her
--
version
of
the
accident
that
may
not
have
considered
this
OI/short
fall
final
affidavit
was
from
Dr.
John
J.
Plunkett,
Plunkett
stated
that
Susies
18
injuries
were
absolutely
her.
J.A.
943.
Dr.
Plunkett
did
not
address
the
state
offered
outlining
evidence
the
in
district
opposition,
attorneys
including
an
interviews
of
such
accidental
death
claim
with,
at
minimum,
these
opinions.
In two exhaustive orders, the state MAR court considered
and rejected Burrs ineffective assistance of counsel claim. 2
In
doing so, the state court made a number of factual findings and
conclusions that we summarize here. 3
With
regard
to
the
expert
opinions
that
Susie
may
have
that
her
treating
physicians
did
not
recognize
or
consider, the state court pointed out that the defendant, the
party
with
the
burden
of
proof
ha[d]
not
presented
On the contrary,
court
[were]
noted
perfectly
Dr.
J.A. 1420.
Mertens
normal
other
testimony
than
the
that
Susies
injuries,
bones
J.A.
1421
20
bone
disease,
examiner,
Dr.
J.A.
1421;
Chancellor,
and
the
that
testimony
there
was
of
no
the
medical
degenerative
the
medical
features
indicating
present in Susie.
records
the
and
possible
J.A. 1422.
noted
existence
that
of
the
OI
salient
were
not
fractures.
Having reviewed all of the medical evidence presented, and
taking note of the qualifications, experience, and training of
Susies treating physicians, the state court found no basis upon
which to conclude that the eminently qualified physicians who
21
[they]
knew
that
fractures
are
sometimes
caused
by
surfaced
while
they
were
evaluating
Susie
and
the
Defendant, who
J.A.
1422.
Turning more specifically to the claim that trial counsel
did not adequately prepare for trial, the state court made a
number of additional findings, as follows:
First, matters of record demonstrate that trial
counsel worked diligently for a reasonable amount of
time. . . .
Second, lead trial counsel had
considerable experience in the Guardian Ad Litem
program that helped him understand the dynamics of a
prosecution based on child abuse.
Third, trial
counsel had an opportunity before trial to review both
the medical evidence available and the thorough
statements of a number of witnesses and other
information in the States open files.
Fourth, trial
counsel knew before trial that a host of eminent
medical experts had reviewed available information
concerning Susie and her cause of death, and that all
experts opined that Susie died of child abuse, not an
accidental fall.
Fifth, even though trial counsel
tried diligently to delay the start of the trial,
defendants well-qualified and experienced lead trial
counsel never asserted a particularized necessity for
appointment of an expert.
Sixth, defendants pretrial motions and the transcript demonstrate that
trial counsels actions were driven by a strategy to
attempt to shift blame to a third party (e.g., Susies
mother) and the understanding, based on the review of
22
1807-08
state
MAR
(internal
court
citation
observed
omitted).
that
In
addition,
while
the
[d]efendants
J.A. 1809.
actions
[must
be
evaluated]
in
light
of
the
was
objectively
reasonable
under
the
J.A. 1809.
J.A. 1864.
D.
On April 12, 2001, Burr filed the instant petition for a
writ of habeas corpus under 28 U.S.C. 2254(d).
On December
but
subsequently
stayed
the
matter
pending
the
and
supplemental
briefing,
the
magistrate
judge
issued
May
30,
2012,
the
district
court
issued
its
order
Burr had made a sufficient showing that his trial counsel were
ineffective for failing to conduct additional investigation into
the medical evidence, and that the state courts rejection of
the claim was unreasonable.
II.
Under 28 U.S.C. 2254(d), as amended by the Antiterrorism
and Effective Death Penalty Act of 1996, our review of the state
MAR courts decision rejecting Burrs ineffective assistance of
counsel claim is highly deferential.
24
unless
decision
that
the
state
courts
was
contrary
to,
adjudication
resulted
or
an
involved
in
unreasonable
28
U.S.C.
2254(d).
See
also
Harrington
v.
standard
ineffective
for
assistance
evaluating
of
Sixth
counsel.
To
Amendment
establish
claims
of
ineffective
Unless
Id. at
687.
To
demonstrate
Strickland,
the
inadequate
defendant
representation
fell
reasonableness
measured
below
by
or
deficient
must
an
show
objective
prevailing
25
performance
that
counsels
standard
professional
under
of
norms.
Id. at 688.
to
reconstruct
the
circumstances
of
counsels
Id. at 689.
Id.
guilty.
Id.
at
694.
reasonable
probability
is
Harrington, 131 S.
to
the
state
court
judgment
granting
deference
to
the
Court
succinctly
stated,
[i]f
this
standard
is
Id. at
786.
Indeed, even a strong case for relief does not mean the
Id.
III.
We begin with Burrs argument that we should review the
state
MAR
court
decision
de
novo
instead
of
under
the
in Winston v. Kelly, 592 F.3d 535 (4th Cir. 2010) (Winston I),
and Winston v. Pearson, 683 F.3d 489 (4th Cir. 2012) (Winston
II),
Burr
argues
that
the
state
court
decision
was
not
an
deemed
an
adjudication
on
the
merits
for
purposes
of
28
Winston
Here,
while the MAR court did not hold an evidentiary hearing, Burrs
state post-conviction counsel had an unfettered opportunity to
obtain
and
present
OI/short-fall
expert
theory
of
opinions
defense,
in
and
support
the
of
state
the
MAR
new
court
The
that
state
post-conviction
counsel
could
not
have
counsel
requested
but
was
denied
an
evidentiary
like
the
adjudication
district
of
the
court,
we
Strickland
review
claim
the
under
state
the
IV.
A.
Burr contends that his trial counsel were constitutionally
deficient
because
they
failed
29
to
conduct
an
adequate
See
The heart of
any
Harrington,
possibility
131
S.
Ct.
at
for
fairminded
786-87.
[T]he
disagreement.
question
whether
there
is
any
reasonable
argument
is
not
The question
that
counsel
Id. at 788.
Burr
must
evaluate
trial
counsels
actions
in
Mindful that
light
of
the
that
reasonable.
trial
J.A.
counsels
1809.
We
performance
cannot
say
was
that
objectively
this
was
an
record,
or
an
unreasonable
application
of
Stricklands
deferential standards.
There is no question but that Burrs trial counsel were
aware of Scotts fall with Susie earlier in the day.
However,
the fall related that she had no cuts, scrapes, or gravel marks,
which was also consistent with the cradled fall description
that was given by the witnesses during the investigation and at
trial.
with
treating
records
physicians
preexisting
sustained,
and
and
from
and
acute
independent,
pediatric
specialists
non-accidental
unanimously
eminently
rejecting
injuries
the
qualified
documenting
the
that
had
notion
Susie
that
Scotts
Susies
Hospital
diffuse,
Bridges
initial
treating
immediately
severe
had
recognized
injuries,
related
physician
it
to
and
that
that
him,
the
could
at
Alamance
Susie
had
fall
with
not
account
County
sustained
Scott,
for
as
them,
investigating
severity
of
the
authorities
injuries
as
observed
well.
and
documented
Susies
treating
the
and
pediatric
and
child
abuse
experts,
were
also
of
the
unanimous opinion that Susie had been abused, and that Scotts
fall could not have caused her injuries.
When Susie was admitted to the hospital, she had sustained
an acute, blunt force head injury and was suffering from the
effects of it, including seizures, swelling of the fontanel, and
unconsciousness.
reasonably
entertained
the
notion
that
Susies
lethal
head
injury might have occurred when Scott fell with her earlier in
the day (in the face of the evidence that she had no visible
marks and seemed fine thereafter), the head injury was just the
start of the picture painted by these records.
As noted above, Susie had no visible marks or bruises when
she was checked by her mother, Burr and other family members.
But when Susie arrived at the hospital six hours later, she had
multiple bruises and swelling all over her head, scalp, ears,
32
Round bruises to
the upper chest and back indicated that a blunt object had been
utilized to inflict them.
arms
were
broken
cleanly
through.
J.A.
1436.
The
Susies
leg breaks were consistent with her knees being bent forward
with violence and significant force, hyperextending the knees
until the leg was broken.
with someone grabbing her arms, torqueing them and pulling them
backwards.
To the extent Burr continues to press OI as a possible,
contributing
cause
of
Susies
injuries
and
death,
there
was
physicians]
considered
the
demonstrating
possibility
that
either
Susie
had
that
OI
or
they
never
that
they
J.A. 1420.
physicians
failed
to
give
any
consideration
as
to
[they]
knew
that
fractures
are
sometimes
caused
by
34
surfaced
while
they
were
evaluating
Susie
and
the
J.A. 1422.
in
light
of
the
factual
investigation
and
medical
based in part upon their stated desire to evaluate the need for
expert assistance.
Dr.
Runyan
confirmed
that
Susies
death
was
non-
accidental and that Scotts fall could not have been the cause.
According to Dr. Runyan, Susie would have to be dropped from
about 8 feet 6 inches or more to cause the amount of brain
damage and injury [she] suffered.
J.A. 1436. 6
These medical
of
the
prosecutors.
They
were
from
the
treating
to
accidental
the
jury
that
fall
with
her
Susie
died
8-year-old
as
result
brother.
The
of
the
medical
nature
of
the
cause
of
death
were
unanimous,
36
2011).
As
the
state
MAR
court
observed,
trial
counsels
the
review
of
plethora
of
information
from
respected
J.A. 1807-08.
trial
unquestionably
reveals
this
to
be
the
case.
strategy
was
ridiculous
and
left
the
jury
with
no
arguing
that
by
abandoning
the
fall
without
adequate
But this is
counsel
did
reference
deranged
stranger
in
Actually,
what
the
District
Attorneys
office
would
call
the
certainly
satisfied
reasonable
Stricklands
argument
deferential
that
standard
[trial]
by
There
counsel
reviewing
the
alternative-perpetrator,
reasonable-doubt
defense
that
was
evidence
that
Susie
was
victim
of
child
abuse.
that
Burrs
evidence
failed
to
show
reasonable
We
jury
rejected
defense
strategy
aimed
at
creating
39
mortal
wound.
Indeed,
Burrs
post-conviction
counsel
argued
seemingly
ignoring
all
too
benefit
of
the
fact
that
trial
counsel
did
tempting
for
hindsight,
post-conviction
to
counsel,
second-guess
the
with
the
investigative
decisions of trial counsel and to now argue that Burr might have
fared better on the reasonable doubt argument if trial counsel
had presented the jury with the theory that Susie could have
sustained her lethal head injury when Scott tripped and fell
while carrying her.
This
argument,
however,
does
not
take
into
account
the
resulted
that
might
in
well
her
condition,
have
weakened
nor
prosecutorial
the
credible,
arguments
alternative
counsels
decision
to
risk
credibility
by
advancing
blame
Susies
contradiction
injuries
to
upon
the
her
opinions
8-year-old
of
the
brother
in
physicians,
doubt
precisely
on
what
Harrington,
omitted).
that
Strickland
131
S.
Ct.
took
and
at
place
AEDPA
789
[20]
years
seek
(internal
to
ago
is
prevent.
quotation
marks
the
state
proceedings
[that]
are
the
central
id.
of
disagreement
at
787.
counsel
among
At
claim
jurists,
minimum,
lends
id.
Burrs
itself
at
787,
to
and
ineffective
fairminded
the
double
V.
For
the
reasons
set
forth
above,
the
judgment
of
the
41