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Rimmer v. Secretary, Florida Department of Corrections

United States Court of Appeals, Eleventh Circuit

November 15, 2017

ROBERT RIMMER, Petitioner-Appellant,

         Appeal from the United States District Court for the Southern District of Florida

          Before HULL, MARCUS, and WILLIAM PRYOR, Circuit Judges.

          HULL, Circuit Judge:

         We withdraw our previous opinion, dated July 25, 2017, and published at 847 F.3d 1261, and issue this published opinion:

         Florida death row inmate Robert Rimmer appeals the district court's denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. At issue in this appeal is Rimmer's claim that the prosecution failed to disclose evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), and that therefore he is entitled to a new trial as to his convictions. After review and with the benefit of oral argument, we conclude that the state court's denial of Rimmer's Brady claim is entitled to deference under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and that the state court's denial was neither an unreasonable determination of the facts nor an unreasonable application of clearly established federal law. Accordingly, we affirm the district court's denial of Rimmer's § 2254 habeas petition.

         I. BACKGROUND

         To place Rimmer's Brady claim in context, we review the evidence and procedural history of this case.

         A. Armed Robbery and Murders

         On May 2, 1998, Rimmer and codefendant Kevin Parker robbed Audio Logic, a car stereo store in Wilton Manors, Florida.[1] Rimmer v. State, 825 So.2d 304, 308-09 (Fla. 2002) (per curiam) ("Rimmer I"). During the armed robbery, Rimmer, who was thirty years old at the time, used a .380 caliber semiautomatic pistol to shoot and kill two Audio Logic employees, Aaron Knight and Bradley Krause. Id. at 309. Rimmer shot both victims from point blank range in a brutal fashion. Id.

         Before the shootings, the two murder victims, Knight and Krause, and two customers, Joe Moore and Louis Rosario, were forced to lie face down on the floor of the Audio Logic installation bay area. Id. Knight's, Krause's, Moore's, and Rosario's hands were duct taped behind their backs. Id. While these four men were bound on the floor, another customer, Kimberly Davis Burke, walked into the installation bay area with her two-year-old daughter. Id. When Davis Burke saw what was happening, she immediately sat on the floor with her daughter in her lap. Id. Davis Burke watched as robbers Rimmer, Parker, and an unidentified third man then loaded stereo equipment into a Ford Probe. Id.

         At some point during the armed robbery, Rimmer asked Knight, who was face down on the floor with his hands taped behind his back, for the keys to the cash register. Id. Rimmer also asked whether anyone there owned a weapon. Id. Knight told Rimmer where he kept a Walther PPK, which Rimmer took. Id. One of the robbers also took Moore's wallet and cell phone. Id.

         Before leaving Audio Logic, Rimmer said to Knight, "You know me, " but Knight responded that he did not. Id. Rimmer replied, "You do remember me, " then placed the pistol to the back of Knight's head and shot Knight. Id. Rimmer then shot Krause in the back of the head while Krause was also face down on the floor. Id.

         Knight died instantly. Id. at 310. Krause was still alive when police arrived at Audio Logic but later died at the hospital. Id. At the scene of the armed robbery and murders, police recovered shell casings and a spent projectile fragment from a .380 caliber firearm. Id. According to the surviving victims, the entire frightening episode, including the armed robbery and the two murders, lasted fifteen to twenty minutes. Id. at 309-10.

         B. Rimmer's Arrest

         Two days later, on May 4, 1998, eyewitness Davis Burke described the shooter to a sketch artist. Id. at 310. Police sent the artist's sketch to Mike Dixon, Audio Logic's owner, who sent it to John Ercolano, the owner of a separate audio electronics shop. Id. As explained later, Rimmer had previously taken his car to both businesses for work on his car audio system. Id. Ercolano recognized Rimmer as the person depicted in the sketch. Id. Using Audio Logic's customer records, police ascertained Rimmer's identity, phone number, and address. Id.

         On May 8, 1998, police showed eyewitnesses Moore and Davis Burke a photographic lineup, and Moore and Davis Burke separately identified Rimmer as the shooter. Id. Later, Moore and Davis Burke separately identified Rimmer from a live lineup. Id. Audio Logic owner Dixon identified Rimmer as having been to Audio Logic before for car speaker installation. Id.

         On May 10, 1998, police arrested Rimmer after Rimmer led them on a highspeed car chase. Id. During the car chase, Rimmer threw several items from the Oldsmobile he was driving, including the Walther PPK pistol stolen from Audio Logic, the .380 semiautomatic pistol used in the murders, and eyewitness Moore's wallet. Id.

         Police later discovered that Rimmer owned both the Oldsmobile used in the car chase and a Ford Probe, the make and model of the car used during the armed robbery. Id. In Rimmer's Oldsmobile, police found a lease agreement for a storage facility. Id. Rimmer had rented the storage unit on May 7, 1998, just five days after the armed robbery and murders. Id. After obtaining a search warrant, police searched Rimmer's storage unit and found the stereo equipment stolen from Audio Logic. Id. Both Rimmer's and Parker's fingerprints were on the stolen stereo equipment. Id. Surveillance footage showed Rimmer renting the storage unit. Id.


         On May 27, 1998, Rimmer was indicted on eleven charges: two counts of first degree murder for the deaths of Krause and Knight, three counts of armed robbery, four counts of armed kidnapping, one count of attempted armed robbery, and one count of aggravated assault. In January 1999, Rimmer was tried before a jury in the Circuit Court of Broward County, Florida. Richard Garfield served as Rimmer's guilt phase counsel.

         A. Eyewitnesses' Descriptions of the Shooter

         The jury heard at length about the events leading to the identification of Rimmer as the shooter. After the crime took place, the eyewitnesses first gave physical descriptions of the shooter, all describing the shooter as a black male wearing a baseball cap. Davis Burke, for example, described the shooter as a black male, five feet and eight or nine inches tall, weighing 175 pounds or less, and wearing a baseball cap pulled down to his eyes. Similarly, Moore described the shooter as a black male, five feet and seven, eight, or nine inches tall, weighing around 150 or 160 pounds, and wearing a hat. Both Davis Burke and Moore testified that the shooter was not wearing glasses.

         Rosario also stated that the shooter was a black male wearing a baseball cap pulled down almost to his nose, but Rosario described the shooter as taller, between six feet and six feet and two inches tall.

         B. Composite Sketch

         As noted earlier, eyewitness Davis Burke met with Deputy John McMahon, a police forensic artist, to help make a composite sketch of the Audio Logic shooter. Rimmer I, 825 So.2d at 310.

         Sketch artist Deputy McMahon testified that, when he creates a composite sketch, he first shows the eyewitness a series of random photographs, some in color and some in black and white. According to Deputy McMahon, this allows the eyewitness to select certain facial characteristics from the random photographs so that McMahon can incorporate those features into the composite sketch. Two days after the murders, on May 4, 1998, McMahon went through this process with eyewitness Davis Burke to create a composite sketch of the Audio Logic shooter. Deputy McMahon later showed the resulting sketch to eyewitness Moore, who told Deputy McMahon that the sketch adequately resembled the shooter.

         C. Use of the Composite Sketch to Identify Rimmer

         Sometime between May 4 and May 8, 1998, the police faxed a copy of the composite sketch to Audio Logic owner Dixon. Dixon in turn faxed the composite drawing to Ercolano, who also had an audio electronics shop. When Ercolano saw the composite sketch, Ercolano believed that it resembled a man (later identified as Rimmer) who had come into Ercolano's store sometime before the Audio Logic murders. Ercolano testified that this man (later identified as Rimmer) had complained that his car audio system, which Audio Logic had installed, was not working properly.

         When Ercolano saw the composite sketch and realized that it looked like Rimmer, Ercolano contacted Dixon, Audio Logic's owner. This prompted Dixon to review his customer records, through which he learned that Rimmer came to Audio Logic in December 1997 to have a car audio system installed.

         As to his prior contact with Rimmer, Dixon testified that, during the latter part of 1997, he met with Rimmer on three occasions at a separate Audio Logic location in Davie, Florida, where the two discussed installing an audio system in Rimmer's Oldsmobile. Because the Davie store was too busy, Dixon sent Rimmer to the Audio Logic location in Wilton Manors to have the system installed. Wilton Manors was the site of the robbery and murders. Rimmer I, 825 So.2d at 308.

         After the installation was complete, Rimmer came to see Dixon again at the Davie store to complain about issues with the system. Dixon worked on Rimmer's audio system at the Davie Audio Logic location.

         D. Photographic Lineups

         On May 8, 1998, Wilton Manors Police Detective Anthony Lewis met separately with eyewitnesses Moore and Davis Burke to show them a photographic lineup, which included the pictures of six black males. Detective Lewis first showed the lineup to Moore, telling Moore that one of the men pictured in the lineup might have committed the robbery and murders at Audio Logic. Detective Lewis and Moore were the only people in the room when Moore viewed the lineup. Moore picked Rimmer and then initialed and dated the lineup document.

         Detective Lewis then separately showed Davis Burke a different, clean copy of that same photographic lineup, telling Davis Burke that one of the six men in the lineup might have committed the murders at Audio Logic. Detective Lewis and Davis Burke were the only people in the room when Davis Burke viewed the lineup. From that lineup, Davis Burke "picked two pictures that seemed to . . . resemble the person that [she] thought committed the crime." Davis Burke picked photo number six first but also said that the man pictured in photo number three could be the person who committed the murders. Davis Burke explained that she thought the individuals in both of those photos resembled the man who shot Knight and Krause. Davis Burke wrote her initials and the date by both photo number three and photo number six.

          After Davis Burke selected photos three and six, Detective Lewis told Davis Burke that Moore had picked photo number three, which was a picture of Rimmer. Detective Lewis then took a formal tape recorded statement from Davis Burke. In that statement, Davis Burke explained that, after Detective Lewis told her that Moore picked photo number three, she looked at her two selections more closely and decided that photo number three was her choice.

         Later on May 8, 1998, Detective Lewis showed Dixon a different, clean copy of the same photographic lineup that he had shown to Moore and Davis Burke. Dixon identified Rimmer as the person he had met with on various occasions at the Davie Audio Logic store. Dixon then dated and initialed the photo.

         Detective Lewis also showed the photographic lineup to Rosario, but Rosario was unable to identify the shooter from that lineup.

         On May 9, 1998, Detective Lewis sought and obtained a warrant for Rimmer's arrest.

         E. Evidence Recovered During ...

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