Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________
NO. 91-3214
______________________
KENNETH FOY,
Petitioner-Appellant,
versus
J. F. DONNELLY, in his official capacity
as Warden of the Washington Correctional
Institute and WILLIAM J. GUSTE, ATTORNEY
GENERAL, STATE OF LOUISIANA,
Respondents-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
(April 21, 1992)
Before POLITZ, Chief Judge, SMITH, Circuit Judge, and FITZWATER,*
District Judge.
FITZWATER, District Judge:
In this appeal from a judgment denying habeas relief, we
determine whether the content of a non-testifying accomplice's
confession was disclosed to the jury to the extent necessary to
violate petitioner's Sixth Amendment Confrontation Clause rights.
We also decide whether the evidence is sufficient to sustain a
conviction for armed robbery and whether the state prosecutor
*District Judge of the Northern District of Texas, sitting
by designation.

engaged in misconduct to the degree necessary to warrant
collateral relief.
I
Petitioner Kenneth Foy ("Foy") and John Shelbia ("Shelbia")
were charged by bill of information in Louisiana state court with
two counts of armed robbery. Shelbia pleaded guilty and Foy went
to trial.
On March 27, 1985 Shelbia entered a Church's Fried Chicken
restaurant located at Washington Avenue in New Orleans after
closing.1 He robbed the establishment between 12:00 midnight and
1:30 a.m., obtaining several hundred dollars in cash. Shelbia
put a gun to the head of a restaurant employee, warning her he
would kill her if she did not give him the money. Shelbia then
made her and two other employees lie down on the floor.
Therefore, none of the employees could see which way Shelbia went
when he departed following the robbery, or whether he left on
foot or by motor vehicle. Two of the three employees (the only
two who testified at trial) expressly stated that Shelbia -- not
Foy -- was the man who robbed the Washington Avenue restaurant.
An employee reported the robbery to the New Orleans Police
Department. Officer Mel Gerretts ("Officer Gerretts"), who was
assigned the nightwatch in robbery, responded to the report. He
1We recount the evidence in the light most favorable to the
state. See Whitmore v. Maggio, 742 F.2d 230, 232 (5th Cir. 1984)
(federal habeas court considers all evidence in the light most
favorable to prosecution when determining whether evidence
adduced in state court trial is sufficient to sustain
conviction).
- 2 -

interviewed the witnesses, obtaining a physical description of
Shelbia and learning $694.00 dollars ($674.00 in bills and $20 in
quarters) had been taken.
Officer Gerretts departed the scene and went to a Church's
restaurant at another location. This store was closed and
everyone was gone, so he proceeded to the Church's Fried Chicken
restaurant located at Earhart and Monroe streets. As it turned
out, Shelbia had gone there too, in order to rob the assistant
manager at gunpoint. There were five employees at the Earhart
location. At trial, the assistant manager positively identified
Shelbia as the lone gunman. No witness identified Foy as
entering the premises.
No employee could testify how Shelbia left the establishment
because he forced them into the store's cooler. But Officer
Gerretts saw the getaway. As he passed the Earhart Street store
he observed a green and white Ford parked directly across the
street. A subject -- whom Officer Gerretts later identified as
Foy2 -- was sitting behind the wheel. The officer went a block
down the street, parked with his lights out, and observed the
car. About two minutes later, the driver illuminated the car
lights and pulled his vehicle directly in front of the Church's
Fried Chicken restaurant. A suspect -- later identified as
Shelbia -- ran out the back of the store and jumped in the car
before it sped off.
2Officer Gerretts positively identified Foy at trial.
- 3 -

Officer Gerretts pursued the fleeing automobile, activating
his lights and siren. He also radioed the dispatcher that he was
giving chase, relaying pertinent information concerning the
suspects' vehicle. Foy eventually lost control of the
automobile. When the car came to a stop, Foy and Shelbia exited
and started running. A back-up police unit of two officers
arrived at the scene at this moment. One officer pursued Foy on
foot and the other ran after Shelbia. Officer Gerretts remained
in his squad car and chased Foy for about one-quarter block. As
he ran, Foy looked back at Officer Gerretts. Because Foy was not
watching where he was going, he ran into a fence located on a
parking lot.
When Foy hit the fence he dropped to the ground. A gun fell
by his side.3 Officer Gerretts jumped out of his squad car,
pulled his service revolver, and ordered Foy to halt and not to
move. Foy hesitated without moving for about five to ten seconds
and looked at Officer Gerretts. The officer again instructed him
not to move, then Foy suddenly bolted and ran down the highway.4
Officer Gerretts and a backup officer pursued Foy, but he was
able to escape.
Officer Gerretts then placed Shelbia under arrest and called
for a crime lab vehicle to recover and process the evidence. He
3Officer Gerretts testified at trial that he knew Foy had
the gun in his possession when he dropped it.
4Officer Gerretts testified the approximate time lapse from
the point Foy was running in front of his squad car until he got
up and ran away was approximately one minute.
- 4 -

returned Shelbia to the Earhart store where the witnesses
identified him. The officer informed Shelbia he was under arrest
for armed robbery and advised him of his rights. Shelbia told
Officer Gerretts he wanted to give a statement.
A crime scene technician collected money from the getaway
vehicle as well as the gun that Foy dropped by the fence. After
the police obtained a search warrant, another officer conducted a
search of the vehicle. From the trunk the officer removed a
large amount of U.S. currency, two rolls of quarters, and a
shirt. The currency totaled $674.00. From the floorboard of the
vehicle an officer collected $132.00 and $456.00 in currency and
coin.
Officer Gerretts applied for a warrant to arrest Foy and
presented it to a magistrate judge, who issued the warrant. The
officer also checked the serial number of the handgun and
determined it was registered to Harold Foy, petitioner Foy's
father. Officer Gerretts verified the automobile registration on
the getaway car and determined the vehicle was registered to
Thelma J. Foy, petitioner's mother.
A jury convicted Foy of two counts of armed robbery,
following which he was sentenced to concurrent 20-year terms of
imprisonment. He appealed the convictions directly, challenging
the sufficiency of the evidence and the state's use at trial of
Shelbia's confession. The Louisiana court of appeal affirmed
Foy's convictions. See State v. Foy, 529 So.2d 168 (La. Ct. App.
- 5 -

1988) (table). Foy did not seek review in the Louisiana Supreme
Court.
Foy thereafter sought collateral relief in the Louisiana
courts, presenting the same two arguments as well as a third
ground based upon prosecutorial misconduct. The trial court and
intermediate court of appeal denied relief, as did the Louisiana
Supreme Court, see State ex rel. Foy v. Donnelly, 560 So.2d 6
(La. 1990), with two justices voting to grant the writ. Having
exhausted his state remedies, Foy filed a habeas petition in U.S.
District Court seeking relief pursuant to 28 U.S.C. � 2254. The
district judge denied the application but granted a certificate
of probable cause. This appeal followed.
II
Foy first challenges his convictions on the ground that the
state violated his Sixth Amendment right of confrontation by
using Shelbia's confession.
A
It is a fair inference from the trial record that the
state's initial strategy for obtaining a conviction of Foy was to
introduce evidence establishing that Shelbia was the individual
who entered each Church's Fried Chicken location and then call
Shelbia as a witness to inculpate Foy. The state would then
corroborate Shelbia's testimony with evidence that Foy was the
getaway driver in the second robbery, that he was carrying a
handgun registered to his father and driving an automobile
registered to his mother, and that physical evidence found in the
- 6 -

abandoned vehicle -- in currency and coin -- generally matched
that taken during the two robberies. This approach went awry,
however, when Shelbia balked and refused to testify.5 The state
then shifted gears, in a manner that Foy now contends violated
his Confrontation Clause rights. After presenting as witnesses
the individuals who were robbed at gunpoint at the two locations,
others who were present during the robberies, and a crime scene
technician, the state called Shelbia as a witness. When he
refused to testify, the state called Officer Craig Rodreigue
("Rodreigue") to the stand. He testified he was assigned to the
robbery division on March 27, 1985 and was present when Shelbia
gave a "confession." Foy's counsel objected to this line of
questioning in an unreported bench conference and the trial court
gave Foy a running objection.
In a series of several questions, seven of which contained
the word "confession," the prosecutor inquired of Officer
Rodreigue whether: Shelbia had given a confession in the
officer's presence; officers present had handguns during the
taking of the confession; Shelbia was forced, threatened, or
intimidated during the taking of the confession; Shelbia was
promised anything if he gave a confession; an officer told
Shelbia "things will go easier on you" if he gave a confession;
and whether the confession was taken down and recorded or typed
out. Officer Rodreigue did not use the term "confession" in his
5Shelbia did appear in court to be identified by witnesses
as the lone robber of the two stores and as the individual who
gave a statement regarding the robberies.
- 7 -

answers to these questions or in the balance of his testimony.
The prosecutor also referred to the document in another series of
questions as a "statement." Officer Rodreigue then made an in-
court identification of Shelbia as the individual who gave the
officers the statement. The content of the "confession" or
"statement" was not disclosed to the jury.
After next calling an officer who searched the trunk of the
getaway car, and recalling the crime scene technician, the state
put on Officer Gerretts. The state first elicited testimony
concerning the officer's response to the Washington Avenue
robbery, brief stakeout at the Earhart location, pursuit of Foy
and Shelbia, individual chase of and encounter with Foy, and
apprehension of Shelbia. The state then posed the following
question that Foy contends violated his Sixth Amendment rights:
Q.
All right. Now, subsequent to your
investigation and after your taking of
this particular statement did you make
an arrest warrant out for Kenneth Foy?
A.
Yes, sir, I did.
Foy argues his right of confrontation was abridged when the state
made repeated use of the term "confession," linked the issuance
of an arrest warrant for Foy to Shelbia's statement, and
emphasized to the jury in closing argument that Foy was "just as
guilty as John Shelbia."6 He urges the state has failed to offer
6We accord little significance to this statement. The
prosecutor advanced this argument to explain that under Louisiana
law, a principal is equally guilty of an offense. It is apparent
from the record that the state intended no specific reference to
Shelbia's confession. We do not, therefore, address this
contention further.
- 8 -

a plausible basis for this trial tactic except as an
impermissible means to establish Foy's guilt from Shelbia's own
words.
B
When an accomplice does not testify at trial, the Sixth
Amendment Confrontation Clause prohibits the prosecution from
using the accomplice's confession against a defendant, unless the
prosecution successfully rebuts the weighty presumption of
unreliability that attaches to such evidence. See Lee v.
Illinois, 476 U.S. 530, 543, 546, 106 S.Ct. 2056, 2063, 2065
(1986); Douglas v. Alabama, 380 U.S. 415, 419, 85 S.Ct. 1074,
1077 (1965). A primary interest secured by the Confrontation
Clause is the right of cross-examination. Id. at 418, 85 S.Ct.
at 1076. When a confession incriminates the defendant, but the
one who has confessed is not available as a witness, the critical
right of cross-examination secured by the Confrontation Clause is
abridged. See id. at 419, 85 S.Ct. at 1077. Thus in a joint
trial, the Confrontation Clause prevents the prosecution from
introducing a codefendant's confession inculpating a defendant
when the codefendant does not testify. Bruton v. United States,
391 U.S. 123, 127-28, 88 S.Ct. 1620, 1623 (1968). Under such
circumstances the codefendant is not available for cross-
examination. The defendant against whom the confession is used
is deprived of Sixth Amendment rights. Id. at 126, 88 S.Ct. at
1622.
- 9 -

"The right to confront and cross-examine witnesses is
primarily a functional right that promotes reliability in
criminal trials." Lee, 476 U.S. at 540, 106 S.Ct. at 2062.
Confrontation ensures that witnesses will give statements under
oath, thereby impressing them with the seriousness of the matter
and guarding against the lie by the possibility of the penalty of
perjury. Confrontation also forces witnesses to submit to cross-
examination, the "greatest legal engine ever invented for the
discovery of truth," and permits the jury who decides a
defendant's fate to observe the demeanor of the witness making
the statement, thus aiding the jury in assessing credibility.
Id. (quoting California v. Green, 399 U.S. 149, 158, 90 S.Ct.
1930, 1935 (1970)). "[T]his truth-finding function of the
Confrontation Clause is uniquely threatened when an accomplice's
confession is sought to be introduced against a criminal
defendant without the benefit of cross-examination." Id. at 541,
106 S.Ct. at 2062.
Moreover, "the arrest statements of a codefendant have
traditionally been viewed with special suspicion" due to the
codefendant's "strong motivation to implicate the defendant and
to exonerate himself." Id. A codefendant's statements about
what the defendant said or did are thus considered less credible
than ordinary hearsay evidence. Id. (citing Bruton, 391 U.S. at
141, 88 S.Ct. at 1631 (White, J., dissenting)). It is a "basic
understanding that when one person accuses another of a crime
under circumstances in which the declarant stands to gain by
- 10 -

inculpating another, the accusation is presumptively suspect and
must be subjected to the scrutiny of cross-examination." Id.
Our question is whether the state's references to a
confession, without disclosing its content, and its inquiry
whether an arrest warrant followed the investigation and
statement, constitute use of the confession in violation of the
Confrontation Clause.7
We have located no cases that establish a bright line rule
for determining when the confession of a non-testifying
accomplice has been used against a defendant being tried alone.
While we recognize that Bruton-type cases do not supply a perfect
model, we find appropriate guidance from them.8
In analyzing Bruton claims, we have held it to be critical
to determine whether the out-of-court statement "clearly
implicates the co-defendant." United States v. Espinoza-Seanez,
862 F.2d 526, 534 (5th Cir. 1988) (quoting United States v.
Basey, 816 F.2d 980, 1005 (5th Cir. 1987)). If it does not, "no
7On the basis of Douglas v. Alabama, Foy urges that it "is
of no moment" that the jury did not have before it the details of
Shelbia's confession. Foy argues the confession in Douglas was
not admitted in evidence and nevertheless was held to violate the
Sixth Amendment. We reject this interpretation of Douglas. The
content of the confession was clearly disclosed to the jury, even
though not admitted in evidence, under the guise of refreshing
the witness' recollection. 380 U.S. at 416, 85 S.Ct. at 1075.
8Bruton cases do not provide a completely analogous rule
because in those instances the confession is always offered
against the codefendant. It is the extent to which the non-
testifying codefendant's confession inculpates the defendant that
makes Bruton's salutary rule relevant. In single defendant
cases, the non-testifying accomplice's confession is always used
against the one defendant on trial. There is no diffusive effect
that flows from offering the confession against a codefendant.
- 11 -

serious Bruton issue is presented." Id. (quoting Basey, 816 F.2d
at 1005). Moreover, we have "held consistently that the Bruton
rule is not violated unless a co-defendant's statement directly
alludes to the complaining defendant. This is true, even if the
evidence makes it apparent that the defendant was implicated by
some indirect references." Id. (quoting United States v.
Webster, 734 F.2d 1048, 1054 n.6 (5th Cir. 1984), cert. denied,
469 U.S. 1073, 105 S.Ct. 565 (1984) (citations omitted)). This
jurisprudence is followed in other circuits. See id. (collecting
cases).
We think the standards we have adopted in the Bruton context
appropriately guide us in the present case. Confrontation Clause
rights, including the right of cross-examination, are prompted by
testimony that inculpates a defendant. That which is neither
accusatory nor incriminatory, because it is not disclosed to the
jury, cannot seriously be thought to trigger Sixth Amendment
concerns. There is no need to test and undermine that which does
not at least clearly imply guilt. The significant rights
conferred by the Sixth Amendment never come into play.
In the present case the content of the Shelbia confession
was not disclosed to such an extent that it clearly implicated
Foy or directly alluded to him. The prosecutor used the term
"confession" on several occasions but did not reveal what Shelbia
had said. He did not suggest in this series of questions that
Shelbia had implicated Foy.
- 12 -

In the sole exchange that Foy can say directly links the
confession to him, the testifying officer stated he made an
arrest warrant out for Foy subsequent to his investigation and
after taking "this particular statement." But in the context of
Officer Gerretts' trial testimony, this did not inexorably
translate Shelbia's confession into an allusion to Foy's
complicity. By this point in the trial, Officer Gerretts had
already detailed his investigation of the Washington Avenue
robbery, the investigation and pursuit of Foy and Shelbia
following the Earhart Street robbery, the encounter with Foy (in
which the officer testified he viewed Foy's face during portions
of one minute), and the apprehension of Shelbia. The testimony
concerning the officer's investigation, when considered together
with the application for an arrest warrant, permitted the jury to
connect what Officer Gerretts found from his own detective work
-- rather than Shelbia's statement -- with the arrest warrant
application. Because of the sequence in which the officer's
testimony was developed, there were myriad reasons why Shelbia's
statement could be thought to have pertained to his participation
alone, and yet when coupled with Officer Gerretts' investigation
of Foy and Shelbia, to have served as a basis to arrest Foy.
We hold that the content of Shelbia's confession was not
disclosed so that it clearly implicated Foy or directly alluded
to him. No Sixth Amendment violation has been shown.
III
- 13 -

Foy next seeks habeas relief on the ground that the evidence
is constitutionally insufficient to prove him guilty of the first
robbery.
A
A criminal defendant has a federal due process right to be
convicted only upon evidence that is sufficient to prove beyond a
reasonable doubt the existence of every element of the offense.
Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787
(1979). "When a defendant seeking federal habeas relief contends
that the evidence is insufficient to support a state court
conviction, 'the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.'" Gibson v. Collins, 947
F.2d 780, 781 (5th Cir. 1991) (quoting Jackson, 443 U.S. at 319,
99 S.Ct. at 2789) (emphasis in original)). We apply this
standard "with explicit reference to the substantive elements of
the criminal offense as defined by state law." Jackson, 443 U.S.
at 323 n.16, 99 S.Ct. at 2792 n.16.9 And we "give great weight
9We do not, however, apply the Louisiana circumstantial
evidence standard -- to the extent it is more onerous -- that
requires the evidence to be inconsistent with every reasonable
hypothesis of innocence. See Schrader v. Whitley, 904 F.2d 282,
284 (5th Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 265 (1990).
"[O]nly Jackson need be satisfied, even if state law would impose
a more demanding standard of proof." Id. (footnote omitted).
Cf. State v. Smith, 513 So.2d 438, 444 (La. Ct. App. 1987)
(Louisiana circumstantial evidence standard set out in La. Rev.
Stat. Ann. � 15:438 (West 1981) "is not a purely separate test
from the Jackson standard to be applied instead of a sufficiency
of the evidence test whenever the state relies on circumstantial
evidence to prove an element of a crime. Ultimately, the Jackson
- 14 -

to the state court's determination." Gibson, 947 F.2d at 782,
786; Porretto v. Stalder, 834 F.2d 461, 467 (5th Cir. 1987)
(Louisiana Supreme Court's review of evidence for sufficiency to
prove guilt "entitled to great weight in a federal habeas
review").
B
In the second count of the bill of information,10 the state
charged that Foy, "while armed with a dangerous weapon, to wit:
a gun, robbed LABLANCHE RICHARD of six hundred ninety four
dollars ($694.00) in U.S. Currency." Under Louisiana law, armed
robbery is defined, in pertinent part, as "the taking of anything
of value belonging to another from the person of another or that
is in the immediate control of another, by use of force or
intimidation, while armed with a dangerous weapon." La. Rev.
Stat. Ann. � 14:64 (West 1986); see State v. Smith, 450 So.2d
714, 715 (La. Ct. App. 1984).
It is clear the state did not prove Foy actually robbed
Richard at gunpoint. Richard testified Shelbia robbed her and
stated affirmatively that Foy was not the man who entered the
standard is the objective standard for testing the overall
evidence, direct and circumstantial, for reasonable doubt"
(citations omitted)). See Knox v. Butler, 884 F.2d 849, 856 (5th
Cir. 1989) ("We are not persuaded that Louisiana [circumstantial
evidence] law truly imposes a higher standard of proof" (footnote
omitted)), cert. denied, 494 U.S. 1088, 110 S.Ct. 1828 (1990).
10In the state's brief, and even in the state habeas
district court judgment, the first robbery is referred to as
being charged in count one of the bill of information. We note
that the first robbery is charged in the second count.
- 15 -

restaurant. But Louisiana law provides that a defendant may also
be guilty of a crime under the law of principals, which provides:
All persons concerned in the commission of a
crime, whether present or absent, and whether
they directly commit the act constituting the
offense, aid and abet in its commission, or
directly or indirectly counsel or procure
another to commit a crime, are principals.
La. Rev. Stat. Ann. � 14:24 (West 1986).
Under the law of principals, a defendant can be found guilty
of armed robbery if he served as a principal of the crime by
aiding and abetting, directly or indirectly counseling, or
procuring another to commit a crime. Id.; State v. Peters, 553
So.2d 1026, 1028 (La. Ct. App. 1989); State v. Smith, 513 So.2d
438, 444-45 (La. Ct. App. 1987); Smith, 450 So.2d at 716. The
defendant need not personally have held a weapon to be guilty as
a principal of armed robbery. Peters, 553 So.2d at 1028; State
v. Wells, 522 So.2d 1163, 1164-65 (La. Ct. App.), writ denied,
523 So.2d 1336 (La. 1988); State v. Joseph, 463 So.2d 1014, 1017-
18 (La. Ct. App.), writ denied, 466 So.2d 471 (La. 1985). He
need not actually have performed the taking. Smith, 513 So.2d at
445. And he need neither have directed the commission of the
crime nor have been present at the crime scene. Whitmore v.
Maggio, 742 F.2d 230, 232 (5th Cir. 1984). But under La. Rev.
Stat. Ann. � 14:24 (West 1986), not all principals are
automatically guilty of the same grade of offense. State v.
West, 568 So.2d 1019, 1022 (La. 1990). "One who aids and abets
in the commission of a crime may be charged and convicted with a
higher or lower degree of the crime, depending upon the mental
- 16 -

element proved at trial." Id. (citation omitted); Smith, 450
So.2d at 717.
To convict Foy as a principal of armed robbery11 the state
must have proved the elements of the offense and established that
Foy intentionally aided and abetted, or directly or indirectly
counseled, or procured Shelbia to commit the crime. See Smith,
513 So.2d at 445 (evidence was sufficient to permit jury to find
11We do not understand Foy to differentiate between the
sufficiency of the evidence as it relates to the offense of armed
robbery as opposed to the lesser included offenses of attempted
armed robbery or simple robbery. The trial court instructed the
jury as to each lesser included offense. In his brief, Foy
simply argues that the record is constitutionally insufficient to
convict him of the first robbery. Nor does the state contend
that a lesser included offense conviction can be upheld even if
one for armed robbery must be set aside.
We note the distinction because the principal Louisiana case
that Foy cites in his opening and rebuttal briefs is State v.
Smith, 450 So.2d 714, in which a defendant's conviction for armed
robbery was reversed by the appellate court but, "since there
[was] no question but that [the defendant] committed simple
robbery," the case was remanded to the trial court for entry of a
guilty judgment and resentencing on the lesser included offense
of simple robbery. Id. at 716. The jury in the present case
convicted Foy under the Louisiana law of principals. As we have
noted, under Louisiana law a principal may be convicted of a
higher or lower degree of a crime, depending on the mental
element proved at trial. See West, 568 So.2d at 1022; see also
Flowers v. Blackburn, 779 F.2d 1115, 1121 (5th Cir.) (habeas
case), cert. denied, 475 U.S. 1132, 106 S.Ct. 1661 (1986). A
defendant may therefore advance the argument that the evidence is
insufficient to establish armed robbery, even if adequate to
convict on a lesser included offense. See, e.g., Wells, 522
So.2d at 1165; Joseph, 463 So.2d at 1018. While Foy's relevant
state habeas argument -- and the state courts' rulings -- treat
his evidentiary challenge to the first robbery as plenary, Foy's
federal district court habeas petition, inter alia, addresses
specifically the elements for armed robbery as well as the Smith
decision. We are nevertheless satisfied by our review of the
state habeas proceedings and the record below, and by the state's
failure to differentiate between degrees of culpability, that the
question presented by the instant appeal is whether the evidence
at the state trial is constitutionally sufficient to sustain a
conviction for armed robbery or any lesser included offense.
- 17 -

defendant intended to aid and abet armed robbery, thus defendant
could have been found guilty as a principal; uncoerced presence
at robbery amounts to very strong showing of intent). The state
contends the following evidence permitted the jury to convict Foy
of this first robbery as a principal: the currency taken in the
first robbery was discovered in the getaway car that Foy drove
from the scene of the second robbery; the automobile Foy operated
was registered to his mother; Foy's alibi witnesses could not
place him at home during the time period in which the first
robbery occurred; the gun that Foy dropped after fleeing from the
second robbery was registered to his father, who testified he
normally locked his gun in the car trunk; and both Foy and his
wife had been employees of Church's Fried Chicken outlets and Foy
had been an assistant manager and thus familiar with procedures
followed at closing time.12
The Louisiana court of appeal summarily dismissed the
insufficiency of the evidence claim on direct appeal. The state
habeas district court noted the summary dismissal of the claim on
collateral review and otherwise denied the argument as lacking
merit. The court of appeal on habeas review held the
insufficiency of the evidence claim had been "fully litigated on
appeal [and] should not be relitigated in post conviction relief
proceedings." While we confess the question is a close one, when
we evaluate the proof adduced at trial under the appropriate
12In the district court, but not before us, the state also
relied on the fact that the two robberies "occurred within
minutes of each other."
- 18 -

standard, and accord great weight to the direct and habeas review
of the Louisiana state courts, we are persuaded the evidence is
sufficient to have permitted a rational jury to find Foy was a
principal.
The witnesses to the first robbery identified Shelbia as the
sole perpetrator, and described his singular criminal conduct.
There is no suggestion by these witnesses that Shelbia fled by
automobile or had an accomplice. Cf. Little v. Butler, 848 F.2d
73, 75-76 (5th Cir. 1988) (habeas case) (conviction as principal
to attempted armed robbery was supported by evidence that
petitioner sent youths to rob store and acted as lookout); Smith,
513 So.2d at 445 (evidence sufficient to convict principal of
armed robbery or of lesser included offense who was shown to have
acted as a lookout of convenience store robberies). The state
must therefore rely on circumstantial evidence discovered after
the second robbery to link Foy to the first robbery and to
establish that his participation was intentional so that he
became a principal.
We recognize that most of these facts can be explained on
the basis of Foy's role in the second robbery. His use of his
mother's automobile as the getaway car, the possession of his
father's gun, and his experience as a Church's Fried Chicken
employee, are equally consistent with participation in only the
second robbery as opposed to both crimes. A jury could
reasonably have found that Shelbia alone committed the first
crime and thereafter met up with Foy, who then aided and abetted
- 19 -

the second offense. It also could justifiably have concluded
that Foy accompanied Shelbia while Shelbia committed the first
robbery, but did not intentionally aid and abet, directly or
indirectly counsel, or procure the robbery.
Nevertheless, "[u]nder Jackson, we may find the evidence
sufficient to support a conviction even though the facts also
support one or more reasonable hypotheses consistent with the
defendant's claim of innocence." Gibson, 947 F.2d at 783. We
must deny collateral relief if, after viewing the evidence
favorably to the prosecution, we determine that any rational
trier of fact could have found the essential elements of the
crime. And our cases require that we give great weight to
decisions of state courts that have held the evidence to be
sufficient.
A rational jury could have found Foy guilty beyond a
reasonable doubt as a principal of the first armed robbery.
Shelbia held up two Church's Fried Chicken restaurants at
gunpoint. The robberies occurred within relatively close
proximity in time. Foy, who had been a Church's employee, could
not account for his whereabouts during the first robbery. He
played an integral role in the second robbery by operating the
getaway car. The direct evidence pertaining to the first robbery
is not inconsistent with the corresponding direct evidence
regarding the second robbery. Consonant with the first robbery,
Shelbia acted as the lone gunman in the second robbery. Shelbia
somehow got from the scene of the first robbery to the scene of
- 20 -

the second. The vehicle Foy drove is the only one connected with
either crime. Following the second robbery, the currency and
coin taken from the first robbery were found in the trunk of
Foy's car. Yet the proceeds of the second robbery were still on
the floorboard, permitting the inference that Shelbia and Foy
deliberately concealed the proceeds of the first robbery after it
was committed, and that Foy did more than enter the criminal
episode after the first crime was complete or merely associate
with Shelbia in a non-criminal manner.
We conclude that a rational jury could have found Foy guilty
beyond a reasonable doubt of the first robbery. And in this
admittedly close case, we must give great weight to the state
court decisions upholding the verdict. The district court
correctly denied habeas relief with respect to Foy's conviction
for the first robbery.
IV
Foy also seeks relief on the basis of prosecutorial
misconduct. He contends the prosecutor committed acts that
denied him a fair trial, including belittling defense counsel's
objections, asking unwarranted questions that suggested Foy's
family was involved in the crime, referring to facts outside the
record, and improperly urging the jury to convict for reasons
other than upon the evidence in the case.
A
Prosecutorial misconduct implicates due process concerns. A
prosecutor's statements may violate due process in two ways.
- 21 -

They may abridge a specific right conferred by the Bill of
Rights, or may constitute a denial of due process generally, thus
constituting a "generic substantive due process" violation.
Rogers v. Lynaugh, 848 F.2d 606, 608 (5th Cir. 1988). We first
determine the type or types of misconduct alleged, because "[t]he
case law supplies a different test for each kind of due process
violation." Id.
Foy does not suggest that the prosecutor violated a specific
constitutional right. We therefore ask whether his comments "so
infected the trial with unfairness as to make the resulting
conviction a denial of due process." Darden v. Wainwright, 477
U.S. 168, 181, 106 S.Ct. 2464, 2471 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871 (1974));
Rogers, 848 F.2d at 608. Under this test, a prosecutor's
misconduct may render a defendant's trial less than perfect, but
the imperfection must have rendered the trial unfair in order to
be constitutional error. Rogers, 848 F.2d at 608-09. A trial is
fundamentally unfair if "there is a reasonable probability that
the verdict might have been different had the trial been properly
conducted." Id. at 609 (quoting Kilpatrick v. Blackburn, 777
F.2d 272, 278-79 (5th Cir. 1985) (footnote omitted), cert.
denied, 476 U.S. 1178, 106 S.Ct. 2907 (1986)). In the habeas
corpus context, our review is narrow. See Donnelly, 416 U.S. at
642, 94 S.Ct. at 1871; Smith 904 F.2d at 972.
- 22 -

We do not approve of some of the prosecutor's comments, but
we cannot say that, taken as a whole and viewed in the context of
the entire trial, they accumulate to a denial of due process.
- 23 -

B
1
Foy first contends the state belittled his counsel's
objections throughout the trial. At one point, the prosecutor
asked a witness how much money had been seized in the second
robbery. No foundation had been laid to determine the witness'
personal knowledge about the amount. Foy's counsel objected and
the court sustained the objection, telling the prosecutor to lay
the proper foundation. The prosecutor responded, "All right.
Let's cross all the T[']s and dot all the I's for [defense
counsel]." During closing argument, the prosecutor revisited
this theme, complaining in general about defense objections
throughout the trial.
We discern no impropriety that warrants habeas relief. The
prosecutor's argument was offered in response to defense
counsel's closing argument raising the issue and explaining the
reasons for his objections. Moreover, the record reflects that
each time the prosecutor complained about defense objections, the
judge immediately stepped in and corrected or warned the
prosecutor in the jury's presence. Assuming the prosecutor's
comments were improper, we cannot say they infected the trial
with unfairness.
2
Foy next complains of improper witness questioning, but this
complaint is easily dismissed. According to Foy, the prosecutor
tried to implicate Foy's family in the robberies through his
- 24 -

cross-examination of Foy's brother and father. The prosecutor
asked Foy's brother if he was at the scene of the first robbery.
Foy interprets the questioning of his brother as an attempt to
place him at the scene of the crimes and thus implicate his
brother as an accomplice. A fair reading of the record, however,
establishes the prosecutor was merely demonstrating that the
brother was not at the scenes of the crimes and therefore did not
know what had occurred.
In questioning Foy's father, the prosecutor made the
statement that he was attempting to establish "that this family
[was] all connected to the operation." Foy complains that this
statement was an attempt to link the family in a conspiracy to
commit the robberies, unsupported by any evidence in the record.
Read in context, however, the word "operation" can fairly be
understood to refer to Church's Fried Chicken, and not to the
robberies. The prosecutor was merely establishing that Foy had
special knowledge of the company's closing procedures. The
record reflects that Foy had worked at Church's Fried Chicken as
a manager or assistant manager, and that several of his family
members worked for the company. The prosecutor's questioning of
the witnesses was not improper.
While addressing the alibi defense presented by Foy's
witnesses, the prosecutor stated the family "made my case," and
"[t]hey put the hat on him." To the extent such statements
included the prosecutor's personal opinion about the merits of
his case, they were impermissible. See United States v. Cantu,
- 25 -

876 F.2d 1134, 1138 (5th Cir. 1989) (direct appeal). But a
prosecutor can indicate his opinion or knowledge if it is clear
the conclusions he is urging are to be drawn from the evidence.
Lavernia v. Lynaugh, 845 F.2d 493, 497 (5th Cir. 1988). In
making his closing argument, the prosecutor was emphasizing the
weakness of Foy's alibi defense. The argument was not improper.
3
Foy's third example of prosecutorial misconduct alleges
improper argument about information not in evidence. While
arguing about Foy's identification, the prosecutor improperly
claimed the police "ran his name through the computer" and found
"Kenneth Foy, Negro Male." Foy asserts no such testimony existed
and that the statement unfairly implied Foy had a criminal
history. The state counters that use of a computer was in
evidence and they point to Officer Gerretts' testimony about
tracing the father's gun and the automobile registration to Foy's
mother. The record contains no evidence, however, of a computer
search revealing Foy's identity. The statement mischaracterized
the evidence presented. Defense counsel immediately objected,
and argued to the jury that no such evidence had been presented.
The prosecutor then changed his argument to refer to the use of
computers to trace the gun and automobile.
Nonetheless, the prosecutor's statement did not equate to a
due process violation. The prejudice Foy alleges is that the
state implied Foy had a criminal history. Foy's criminal history
had already been introduced at trial, however, through a
- 26 -

certified copy of his previous convictions for possession of
marihuana and for battery. This evidence was adduced to impeach
the credibility of a character witness for Foy, without defense
objection.
4
Foy also challenges the following statement made by the
prosecutor in closing argument. He contends it misstated the
burden of proof and injected the prosecutor's personal belief
that Foy was guilty:
Listen, I'm not going to try to insult your
intelligence, or play games with you, or
anything like that. I produced the evidence,
I produced the testimony, it's clear and
convincing that this man is guilty. If you
want to vote not guilty, fine. But when you
vote not guilty give me enough time to move
out of New Orleans.
We divide this contention into two parts. The first is
whether the prosecutor acted improperly when he argued to the
jury that "it's clear and convincing that this man is guilty."
We do not find that the prosecutor misstated the burden of proof,
as Foy now contends. Although it was the finale, this was but a
portion of the prosecutor's argument in which he attempted to
persuade the jury of the defendant's guilt. He used a term that
judges and lawyers understand to be a different proof burden than
applies in a criminal case. But he did not tell the jury that
clear and convincing evidence is enough to return a verdict of
guilty.
This part of the closing argument was preceded, moreover, by
other instances in which the prosecutor argued there was "proof
- 27 -

positive" of Foy's guilt and that the state "proved positive"
that Foy was a principal. The prosecutor also said, "Proof
beyond a reasonable doubt. I will submit to you that we have
proved it," and elsewhere mentioned proof beyond a reasonable
doubt in his argument. We hold the single reference to clear and
convincing evidence, in the context presented, did not misstate
the burden of proof and, if it did, would not warrant federal
habeas relief.13
We next consider the portion of the argument, which we find
to be clearly improper, in which the prosecutor told the jury if
it voted to acquit Foy it should "give [the prosecutor] enough
time to move out of New Orleans." Our question on habeas review
is not whether the argument warrants our strong rebuke, but
whether the statement, in light of the entire trial, demonstrates
a due process violation. See Bradford v. Whitley, 953 F.2d 1008,
1013 (5th Cir. 1992). We conclude it does not, because the
argument did not render the trial unfair. See Rogers, 848 F.2d
at 608-9 (imperfection in prosecutor's conduct must have rendered
the trial unfair).
5
Finally, Foy argues the cumulative effect of the
prosecutor's comments deprived him of a fair trial. We reject
this contention because our review of the entire record convinces
13Foy cites, for the contention that this error is
reversible, our opinion in Cantu, 876 F.2d at 1138. Cantu, in
turn, cites United States v. Vargas, 583 F.2d 380, 386-87 (7th
Cir. 1978). Both are direct appeals.
- 28 -

us Foy was not deprived of a fair trial by the prosecutor's
conduct.
* * *
The district court correctly denied federal habeas relief.
Its judgment is in all respects
AFFIRMED.
- 29 -