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King v. Strickland, 714 F.2d 1481 (11th Cir. 09/02/1983)
[1]
U.S. Court of
Appeals, Eleventh Circuit
[2]
No. 82-5306
[3]
714 F.2d 1481,
1983.C11.40521 <http://www.versuslaw.com>
[4]
September 02,
1983
[5]
AMOS LEE KING,
JR., PETITIONER-APPELLANT,
v.
CHARLES G. STRICKLAND,
JR., WARDEN, FLORIDA STATE
PENITENTIARY,
LOUIE L. WAINWRIGHT, AND JIM SMITH,
ATTORNEY GENERAL,
RESPONDENTS-APPELLEES
[6]
Appeal from
the United States District Court for the Middle District of Florida.
[7]
Baya Harrison,
III, Tallahassee, Florida, for Appellant.
[8]
Tim Smith, Atty.
Gen., Michael J. Kotler, AAG, Park Trammell Bldg., 1313
Tampa St., Tampa,
Florida, for Appellees.
[9]
Roney and Kravitch,
Circuit Judges, and Tuttle, Senior Circuit Judge.
[10]
Author: Roney
[11]
RONEY, Circuit
Judge:
[12]
Convicted of
first degree murder and sentenced to death, Amos Lee King, Jr.
appeals the
federal district court's denial of his petition for a writ of habeas corpus.
He raises a
number of arguments as to both conviction and sentence. Although we
affirm on all
issues raised as to the conviction, we hold that counsel was ineffective
during the penalty
phase. We discuss King's other claims going to the validity of the
sentence, as
to which we find no error. As to these latter points, we affirm.
[13]
In March of
1977, King was an inmate at Tarpon Springs Community Correctional
Center, a minimum
security work release facility, where he was serving a sentence
for larceny
of a firearm. On March 17 he worked at a Clearwater restaurant from
5:00 p.m. until
1:00 a.m. the following morning. An inmate van picked him up at
around 1:30
a.m., and he checked back into the facility at approximately 2:35 a.m.
At about 3:40
a.m., the prison counselor, James McDonough, discovered King
missing during
a routine bed check. McDonough found King outside the building
with blood on
his pants. After McDonough escorted King back into the facility, a
fight broke
out between the two in which King repeatedly stabbed McDonough
with a knife.
King then fled the facility.
[14]
In the meantime
a fire had broken out at a house approximately 1,500 feet from the
correctional
center. Police arrived at around 4:05 a.m. and discovered the dead
body of Natalie
Brady. She had received numerous injuries, including two stab
wounds, bruises,
and a ragged tear of the vagina which apparently had been caused
by blood-stained
knitting needles found at the scene. There was evidence of forced
sexual intercourse.
Arson investigators concluded the fire had been set intentionally
sometime between
3:00 and 3:30 a.m.
[15]
King voluntarily
turned himself in that afternoon. He was indicted for the first degree
murder of Natalie
Brady, arson, robbery of her home, and involuntary sexual
battery. He
also was separately charged in a direct information with the attempted
murder of McDonough
and escape from prison. Over the objection of King's
counsel, the
indictment and information offenses were consolidated into one case
for trial.
[16]
The government
presented strong circumstantial evidence of King's guilt on the
murder charge.
Joan Wood, the medical examiner who performed an autopsy on
the deceased,
for example, testified that King's blood type was present in Brady's
vaginal washings.
Woods stated that if Brady's assailant had raped Brady with his
pants on after
causing the tear to the wall of her vagina, blood would have been
present on the
clothing, as McDonough had found on the crotch area of King's
pants. She testified
the paring knife used by King to assault McDonough was
"consistent"
with the wounds found on Brady, but she admitted she could not say
this knife caused
the wound. A knife salesman testified that the paring knife was
manufactured
by the same company and was similar in design to other kitchen
knives found
in Brady's house. An old friend of the deceased testified that the
paring knife
resembled one Brady kept in her house.
[17]
The jury found
King guilty of all the offenses alleged, including the first degree
murder charge,
and recommended the death penalty, which the trial court imposed.
The Florida
Supreme Court affirmed the convictions and death sentence, King v.
State, 390 So.2d
315 (Fla.1980), cert. denied, 450 U.S. 989, 101 S. Ct. 1529,
67 L. Ed. 2d
825 (1981). The Florida courts also denied collateral relief after an
evidentiary
hearing. King v. State, 407 So.2d 904 (Fla.1981). The United States
District Court
for the Middle District of Florida then denied King's petition for
federal habeas
corpus relief in an unpublished opinion, but issued a certificate of
probable cause
to appeal. This appeal ensued.
[18]
Ineffective
Assistance of Counsel
[19]
In order to
understand the basis on which we hold counsel to have been ineffective
at the penalty
stage of the trial, it is helpful to discuss petitioner's arguments as
to
the guilt phase.
[20]
The sixth amendment
guarantees a criminal defendant the right to counsel
reasonably likely
to render, and rendering, reasonably effective assistance. Baty v.
Balkcom, 661
F.2d 391, 394 (5th Cir. Unit B 1981), cert. denied, 456 U.S. 1011,
102 S. Ct. 2307,
73 L. Ed. 2d 1308 (1982); Washington v. Estelle, 648 F.2d
276, 278-79
(5th Cir.), cert. denied, 454 U.S. 899, 102 S. Ct. 402, 70 L. Ed. 2d
216 (1981).
In judging whether this standard has been met, the totality of
circumstances
and the entire record must be considered. Goodwin v. Balkcom,
684 F.2d 794,
804 (11th Cir.1982), cert. denied, 460 U.S 1098, 103 S. Ct.
1798, 76 L.
Ed. 2d 364 (1983); Nelson v. Estelle, 642 F.2d 903, 906 (5th
Cir.1981). The
burden is on the habeas corpus petitioner to establish
ineffectiveness
and prejudice. Washington v. Strickland, 693 F.2d 1243 (5th Cir.
Unit B 1982)
(en banc), cert. granted, 462 U.S. 1105, 103 S. Ct. 2451, 77 L. Ed.
2d 1332 (1983).
[21]
Whether effective
assistance has been afforded is a mixed question of law and fact.
Cuyler v. Sullivan,
446 U.S. 335, 341-42, 100 S. Ct. 1708, 1714-15, 64 L. Ed.
2d 333 (1980);
Harris v. Oliver, 645 F.2d 327, 330, n. 3 (5th Cir.), cert. denied,
454 U.S. 1109,
102 S. Ct. 687, 70 L. Ed. 2d 650 (1981). Therefore this Court
has held that
a state court's determination of constitutionally effective assistance
is
not entitled
to a presumption of correctness under 28 U.S.C.A. § 2254(d), and
that the federal
district court's determination is not protected by the clearly
erroneous standard
of review on appeal. Goodwin v. Balkcom, 684 F.2d 794, 804
(11th Cir.1982).
Of course, the historical or primary facts found by the state courts
are entitled
to a presumption of correctness in a 28 U.S.C.A. § 2254 proceeding
in
federal court.
Sumner v. Mata, 449 U.S. 539, 101 S. Ct. 764, 66 L. Ed. 2d 722
(1981); Mason
v. Balcom, 531 F.2d 717, 721-22 (5th Cir.1976).
[22]
King was represented
by two attorneys from the local public defender's office,
Thomas Cole
and Anthony Rondolino. Cole, now deceased, was lead counsel,
with Rondolino
joining the case one week before trial. Although both attorneys
were experienced
in criminal defense work, neither had handled a death case
before.
[23]
At the outset,
we note that unlike most of the ineffectiveness cases that come
before us, in
this case two competent attorneys testified at an evidentiary hearing
before the state
trial court on the motion for collateral relief that King's counsel was
not adequate
to afford the defendant a fair trial. The state produced no testimony to
the contrary.
The two testifying attorneys were support counsel Rondolino and Pat
Doherty, a Florida
defense attorney experienced in death cases. The state judge,
who had presided
at King's trial, allowed Doherty to proffer his testimony, but
ruled it inadmissible
because Doherty's standard for judging ineffectiveness did not
comport with
that of the Florida Supreme Court, as enunciated in Knight v. State,
394 So.2d 997
(Fla.1981). The Florida Supreme Court did consider Doherty's
proffered testimony,
however, King v. State, 407 So.2d at 905, and therefore we
do also, without
relying on this Circuit's rejection of the Knight standard.
Washington v.
Strickland, 693 F.2d 1243, 1267 n. 10 (5th Cir. Unit B 1982) (en
banc), cert.
granted, 462 U.S. 1105, 103 S. Ct. 2451, 77 L. Ed. 2d 1332 (1983).
Doherty's testimony,
like Rondolino's, is part of the record on appeal.
[24]
Guilt Stage
[25]
The picture
of lead counsel Cole painted by Rondolino and Doherty is of a skilled
criminal attorney
who for a variety of reasons, some of which were beyond his
control, was
not ready to proceed to trial. Doherty, who was a friend of Cole's and
was at the time
of trial in the same Public Defender's office as Cole, testified, for
example, that
Cole was exhausted during the trial. Cole had been working on a
separate criminal
case involving a defendant named Scott. The Scott case ended in
acquittal 11
days before King's trial began. Doherty testified as to the effect of the
Scott case on
preparation for King's defense.
[26]
In other words,
what I am saying to you, at every turn in the road, Amos King's
case was being
overshadowed by the Scott case. It was a consuming interest of
Mr. Cole.
[27]
Rondolino, who
resided with Cole at the time, confirmed Doherty's account of
Cole's engulfing
involvement in the Scott case. The trial record reveals Cole's
stating on one
occasion, "Judge, I am beat, I have got to go home and get some
sleep", and
stating on another occasion, "I can't think any more." One tangible
example of how
the Scott case seems to have adversely affected Cole's
preparation
for the King case is the course of defense depositions of government
witnesses. Most
of the depositions were taken between the first Scott trial, which
resulted in
a mistrial, and the second. At least 26 were taken in one day and 11 on
another. Other
depositions were not taken until after King's trial had begun.
[28]
Rondolino described
another adverse factor in the preparation for trial. Four days
before trial,
the Florida Rules of Criminal Procedure were amended to permit the
state to move
for consolidation. On the morning of the scheduled trial in both cases,
the state made
such a motion, which the court granted over defense counsel's
objection. Rondolino
and Cole told the trial judge they were prepared to proceed
with either
case that day, but not with both together. Cole stated, "Judge, as an
officer of the
court, I cannot give Amos King a fair trial today or this week." The
defense, which
had received two previous continuances, asked for another, which
the court denied.
[29]
Rondolino indicated
at trial and at the subsequent hearing that the consolidation
without a continuance
threw defense strategy out of whack. At trial he stated:
[30]
He elaborated
at the collateral relief hearing, explaining that the defense attorneys
felt they could
present a viable defense to the indicted charges involving the Brady
incident without
presenting any affirmative defense by simply pointing out holes in
the government's
case, but that this "beyond a reasonable doubt" strategy became
unviable when
the charges involving the McDonough incident were consolidated.
[31]
There are some
indications in the record, however, that defense counsel may have
forseen the
possibility of a consolidation. In direct conflict with the statements
of
defense counsel,
a state attorney represented to the trial judge that, in his frequent
conversations
with the defense attorneys, they indicated they planned on a
consolidated
trial. The judge recalled that two weeks before trial when defense
counsel obtained
a continuance "it was represented to me . . . that all of the cases
were going to
be tried at one time." On appeal, the Florida Supreme Court found
that defense
counsel "was prepared to try all offenses on the trial date." King v.
State, 390 So.2d
at 318.
[32]
At trial, Cole
suggested another difficulty counsel experienced in preparing for trial.
Cole and Rondolino
moved to withdraw as counsel, with Cole stating:
[33]
King, who also
testified at the evidentiary hearing, stated that Cole met with him
only twice prior
to trial. Cole told the trial judge at a pretrial hearing, however, that
he had spoken
with his client four or five times.
[34]
A number of
failures by counsel during the trial raise some question as to
ineffectiveness.
Cole, for example, failed to bring up on cross-examination the
weakness in
the testimony of a key government witness. Alma Tarpley, the
deceased's long-time
friend, testified that she had seen a knife similar to that used
by King in the
attack on McDonough in Brady's kitchen on Anclote Road. Earlier
testimony revealed
that Brady had lived on a different street since around 1960.
Thus defense
counsel could have called attention to the fact that Tarpley had not
seen the knife
she claimed was similar for about fifteen years. Cole did not
cross-examine
Tarpley, but he did stress in closing argument that Tarpley could not
identify the
knife as belonging to Brady.
[35]
Similarly, Cole
failed to challenge, as scientifically significant, the statement by the
medical examiner,
Joan Wood, that the paring knife used by King to attack the
guard and allegedly
Brady was "consistent" with Brady's wounds. Cole got Wood
to acknowledge
on cross-examination, however, that she could not determine this
particular type
of knife caused the injury, and he emphasized this point in closing
argument. Testifying
at the hearing that he had never heard any witness imply a
knife could
be matched to a wound, Doherty stated Cole could have further
destroyed Wood's
testimony.
[36]
Perhaps more
significantly, counsel failed to present a piece of potentially
exculpatory
evidence. An FBI agent, Robert Neill, had examined a sample of
Brady's pubic
hair, her nightgown and the ambulance sheets within which she had
been wrapped.
He testified briefly on direct to establish a chain in the custody of
certain exhibits,
but when Cole began cross-examining him about his findings, the
court sustained
an objection to the questions as beyond the scope of direct. On
proffer, he
stated he found no hairs of negro origin in the pubic sample or in the
sheets. He found
a dark human hair fragment on the nightgown but could not
identify it
as to race. Cole did not call Neill on direct, even after learning this
information.
[37]
The lower state
court which held the evidentiary hearing did not reject, as
establishing
historical facts, any of the evidence presented by King. Since the
evidence was
uncontradicted, it can be assumed the court simply determined, as a
matter of law,
that these facts and the trial record did not demonstrate counsel was
ineffective.
The state judge, who had presided at King's trial, stated immediately
upon the close
of the evidence at the collateral attack hearing:
[38]
The motion that
has been filed by the Defendant, that being the 3.850 motion, is
denied, the
Court having found, based upon having heard the testimony, presided
over the trial,
observed counsel for the Defendant during the trial, having had the
opportunity
of Mr. Cole as part of this record here today, reasonably prior to this
trial, not immediately
prior but reasonably prior, having had the opportunity of
receiving an
acquittal for his client after a prior mistrial in a very horrendous murder
and I certainly
do not argue with the jury's verdict. But for the purposes of these
comments are
just to advise you and your client is that even based upon what I
have heard here
today, and based upon the law of this state as I understand it to
be, that there
has not been shown that your client was ineffectively represented by
counsel.
[39]
To the contrary,
again based upon not only what I heard during the trial, but what I
heard here today,
I think that the record would conclusively show that the
Defendant is
entitled to no relief.
[40]
The law of Florida
relied upon by the trial court was undoubtedly that set forth in
the leading
Florida ineffectiveness case, Knight v. State, 394 So.2d 997
(Fla.1981),
which had been decided some ten months before the state collateral
hearing.
[41]
The Supreme
Court of Florida, performing its review function, likewise did not
reject any of
the facts presented at the state hearing. Accepting all of the evidence,
including Doherty's
testimony, the court also applied the Knight standard:
[42]
The trial judge
found that Cole provided effective assistance of counsel. Our review
of the evidence
fails to disclose otherwise. We fail to find any single act of omission
or commission,
or any series or combination thereof, that was a substantial and
serious deficiency
measurably below that of competent counsel. Even if Doherty's
testimony to
the contrary is accepted, no act, or combination of acts, was
substantial
enough to demonstrate prejudice to the defendant to the extent that
there is a likelihood
that any substandard conduct affected the outcome of the court
proceedings.
See Knight v. State, 394 So.2d 997 (Fla.1981).
[43]
407 So.2d at
905.
[44]
From the district
court's opinion and order, it appears that it also analyzed specific
allegations
concerning the omissions and conduct of counsel in terms of the
likelihood that
they affected the outcome of the proceedings. The district court said:
"nowhere does
it appear that to have undertaken to act as the Petitioner now claims
his trial counsel
should have acted would have changed the verdict or the sentence."
[45]
After these
courts had decided this case, this Circuit rejected the Knight standard
so that ineffectiveness,
or more precisely the prejudice flowing from any
ineffectiveness,
must be measured under the test enunciated in Washington v.
Strickland,
693 F.2d 1243 (5th Cir. Unit B 1982) (en banc), cert. granted, 462
U.S. 1105, 103
S. Ct. 2451, 77 L. Ed. 2d 1332 (1983). Under that test, the
habeas corpus
petitioner must demonstrate that counsel's ineffectiveness "resulted in
actual and substantial
disadvantage to the course of his defense" but need not show
that this "disadvantage
determined the outcome of the entire case." 693 F.2d at
1262.
[46]
Even under this
less stringent standard, however, King is not entitled to relief. The
alleged deficiencies
in counsel's preparation are supported neither by a close
reading of the
record nor by the law. For example, the record does not substantiate
King's argument
that Cole never deposed a few key government witnesses.
Support counsel
testified that the records of the public defender's office showed no
transcribed
depositions for nine government witnesses, but he acknowledged that
depositions
are often not transcribed. He could not say for sure, and there is no
other probative
evidence, that a single government witness had not been deposed.
In fact, it
is evident from the record that depositions were taken from at least the
vast majority
of potential government witnesses. Although some of the depositions
were taken after
trial commenced, Doherty testified that he had done the same thing
in some cases
and that this practice is not a fatal defect in a murder trial.
[47]
Similarly unavailing
is King's claim that Cole's preparation suffered because of his
consuming involvement
in the Scott case. The trial in that case ended eleven days
before the King
trial began. The only tangible evidence suggesting the Scott case
adversely affected
the representation of King is that many of the depositions in the
King case were
taken during a two-day period between the first Scott trial, which
ended in a mistrial,
and the second. King does not suggest any beneficial facts Cole
would have learned
if he had taken the depositions in a less rushed manner.
[48]
Neither the
law nor the record substantiates King's claim that he met with counsel
only twice prior
to trial. Cole told the trial judge he had spoken with his client on
four or five
occasions, and, even if King's testimony is credited, counsel may be
effective even
if he spends only a short period of time with his client. Jones v.
Wainwright,
604 F.2d 414, 416-17 (5th Cir. 1979); Howard v. Beto, 466 F.2d
1356, 1357 (5th
Cir.1972), cert. denied, 410 U.S. 956, 93 S. Ct. 1428, 35 L. Ed.
2d 689 (1973).
[49]
There are two
problems with King's assertion that counsel was not prepared to try
together the
indicated charges of murder, robbery, arson and involuntary sexual
battery with
the information charges of attempted murder and escape. First, the trial
judge, who was
in a far better position to know the truth than this Court, evidently
believed defense
counsel had foreseen a consolidation. He indicated the parties had
told him the
charges would be tried together. The Florida Supreme Court viewed
the record similarly,
stating that the charges had been treated together in pretrial
proceedings.
That court's finding that defense counsel was ready to try all the
charges together
is entitled to a presumption of correctness. Sumner v. Mata, 449
U.S. 539, 101
S. Ct. 764, 66 L. Ed. 2d 722 (1981).
[50]
Second, the
Florida Supreme Court, the final arbiter of state law, stated that the
evidence of
the attempted murder and escape would have been admissible in a
separate trial
of only the indictment offenses. King v. State, 390 So.2d at 318.
Thus, even if
defense counsel did not anticipate a consolidation, it is hard to see
how this lack
of foresight prejudiced King.
[51]
The testimony
of Rondolino and Doherty that Cole was exhausted and the
statements by
Cole himself to that effect during trial certainly give us some pause.
But even if
Cole was extremely tired, this alone does not establish ineffectiveness.
There must be
some showing he committed errors because of his condition. A tired
lawyer is not
necessarily an ineffective lawyer.
[52]
King essentially
points to three supposed errors by counsel during trial: the failure to
call FBI agent
Neill on direct, and the failure to do more to refute the testimony of
two government
witnesses, Tarpley and Wood. Neill's testimony would have been
of substantial
benefit to King only if he had found a non-Negroid hair, not belonging
to the victim,
in the material he examined. Brady was undoubtedly sexually
assaulted and
murdered. The only question at trial was whether King was the
perpetrator
of the crimes. The absence of any hair of any racial origin simply would
not have been
probative of whether a black man was the guilty party.
[53]
Cole did not
ask Neill whether he had found a non-Negroid hair, perhaps because
Cole knew the
answer from the FBI report which he apparently had. King does not
represent to
us that Neill had in fact found a non-Negroid hair. Thus King has not
established
that the failure to call Neill caused King to lose any valuable testimony.
[54]
With respect
to Wood, the medical examiner who testified that the paring knife was
"consistent"
with the wounds found on the victim, it cannot be assumed that Cole
could have obtained
an expert witness to refute Wood's testimony. Even if counsel
could have found
a rebuttal witness, by presenting the testimony he would have lost
the right to
both the first and last closing arguments. Fla.R.Crim.P. 3.250. In any
event, Cole
got Wood to acknowledge on cross-examination that she could not
determine this
particular knife caused the injury, and he stressed this point in closing
argument. Especially
given these circumstance, decisions as to whether to call
witnesses to
the stand and whether to ask particular questions must be viewed as
tactical matters.
United States v. Rubin, 433 F.2d 442, 445 (5th Cir.1970), cert.
denied, 401
U.S. 945, 91 S. Ct. 961, 28 L. Ed. 2d 228 (1971).
[55]
As to Tarpley,
the deceased's friend who testified that the knife allegedly used by
King resembled
one of Brady's, Cole emphasized in closing argument that Tarpley
could not identify
the knife as belonging to Brady. Thus, once again, Cole did
remove much,
if not all, of the sting from the government witness' testimony.
[56]
In short, King
has not met his burden to establish ineffective representation at the
guilt phase
of the trial.
[57]
Penalty Stage
[58]
Counsel's duty
to his client extends beyond the guilt stage of the trial to the
sentencing proceeding.
Stanley v. Zant, 697 F.2d 955, 963 (11th Cir.1983). King
argues that
lead counsel Cole was ineffective at the penalty phase of the trial
because he failed
to present available character witnesses and made a weak closing
argument.
[59]
There are indications
in the record that counsel failed to conduct an exhaustive
investigation
for potential mitigating evidence. Prior to the penalty stage, Cole told
the trial judge
he had not discussed this part of the trial with his client and asked for
a one-day continuance
so he could speak to possible defense witnesses. The court
denied the request.
Although King apparently furnished his lawyer with a list of six
possible character
witnesses, there is no indication the lawyer contacted all of them
to determine
whether their testimony might be helpful.
[60]
Nonetheless,
Cole did present some mitigating evidence on behalf of his client.
Cole called
one character witness, a minister and former employer of King in the
gardening business,
who testified that King was a good worker whom he never
knew to be violent
during the twenty years they were acquainted. Cole also called
the jury's attention
to the testimony during the guilt phase of the trial of two
witnesses: King's
employer at the restaurant, who described the defendant as an
excellent employee,
and the head of the correctional center, who termed the
defendant a
good inmate without disciplinary problems. In addition, Cole informed
the jury of
a conversation he had had with King's former attorney, who indicated he
viewed the defendant
as unintelligent and uneducated, but not violent.
[61]
In support of
his claim that Cole should have presented additional mitigating
evidence, King
called two long-term acquaintances at the state post-conviction
relief hearing.
Both witnesses stated they had attended the trial, apparently at the
request of defense
counsel, but had not been called to testify. They indicated that if
called they
would have confirmed that King was a good, non-violent person and a
trustworthy
employee. One of the acquaintances acknowledged, however, that
King had a reputation
for burglaries. He indicated many other people would have
testified on
defendant's behalf if they had been asked. Support counsel testified at
the hearing
that additional character witnesses should have been called.
[62]
Although Cole
presented some mitigating evidence, it is clear that counsel neglected
to present other
available evidence. The record also suggests this failure cannot be
deemed a strategic
decision taken after a reasonable investigation into the
alternatives.
This Court has emphasized the importance of pretrial preparation and
investigation.
See Washington v. Strickland, 693 F.2d 1243, (5th Cir. Unit B
1982) (en banc),
cert. granted, 462 U.S. 1105, 103 S. Ct. 2451, 77 L. Ed. 2d
1332 (1983);
Goodwin v. Balkcom, 684 F.2d at 804-05, cert. denied, 460 U.S.
1098, 103 S.
Ct. 1798, 76 L. Ed. 2d 364 (1983); Rummel v. Estelle, 590 F.2d
103, 104-05
(5th Cir.1979). Here, counsel admitted he was unprepared for the
penalty stage
of the trial, because he had not adequately discussed sentencing with
his client nor
had he carefully searched for mitigating evidence.
[63]
These errors
occurred at a particularly critical point in the trial.
[64]
The sentencing
stage of any case, regardless of the potential punishment, is "the
time at which
for many defendants the most important services of the entire
proceeding can
be performed." ABA Standards on the Administration of Criminal
Justice, Sentencing
Alternatives and Procedures § 5.3(e). The special importance
of the capital
sentencing proceeding gives rise to a duty on the part of defense
counsel to be
prepared for that crucial phase of the trial.
[65]
Stanley v. Zant,
697 F.2d at 963. Although this Court apparently has never held
counsel ineffective
in a capital case solely because of failure to present mitigating
evidence, see
id. at 964, it has on a number of occasions cited this failure as one
factor suggesting
ineffectiveness. See Young v. Zant, 677 F.2d 792, 799 (11th
Cir.1982); Kemp
v. Leggett, 635 F.2d 453 (5th Cir.1981); Mason v. Balcom,
531 F.2d 717,
724 (5th Cir.1976).
[66]
As in those
cases, counsel here did not merely neglect to present available
mitigating evidence.
He made a closing argument that may have done more harm
than good. In
his argument, the main thrust of which was that the defendant if given
life would be
secured in prison for many years, King's attorney unnecessarily
stressed the
horror of the crime and counsel's status as an appointed representative:
[67]
"It is extremely
difficult for me to talk to you at this time. This is the first time that
I
have ever been
in a position like this. I have been practicing law for three years
now, Assistant
Public Defender and I have never defended a murder case before. I
think that you
all understand that the job I had to do this week and you can
appreciate what
I had to do.
[68]
You can convict
Amos of a cruel and evil crime. There is no doubt about it.
Murder upsets
me very much and I am also human, I have feelings, I have been to
Raiford which
is the State Prison.
[69]
Now you might
not think that Amos deserves to live in our society of civilized
people. You
might not consider him right now as a human being and what you
convicted him
of was an evil and gross crime but I am not asking you to put him
back out on
the streets or take a chance that he will ever be back out there
because in Florida
the legislature passed a law which means that when you
convicted a
man of first degree murder, if you don't, if he is not sent to the electric
chair, then
he automatically goes to prison for life and for twenty years he is not
eligible for
parole. He is not eligible for parole. He will be in maximum security at
Raiford, not
a work release center."
[70]
In effect, counsel
separated himself from his client, conveying to the jury that he had
reluctantly
represented a defendant who had committed a reprehensible crime.
"Reminding a
jury that the undertaking is not by choice, but in service to the public,
effectively
stacks the odds against the accused." Goodwin v. Balkcom, 684 F.2d at
806, cert. denied,
460 U.S. 1098, 103 S. Ct. 1798, 76 L. Ed. 2d 364 (1983).
Rather than
attempting to humanize King, counsel in his closing argument stressed
the inhumanity
of the crime.
[71]
We hold that
this argument in combination with counsel's failure to present available
mitigating evidence
denied King effective assistance of counsel at the penalty stage
of the trial.
[72]
Death Penalty
Based on Felony Murder
[73]
King argues
he could not be constitutionally sentenced to death because he was
convicted under
the Florida felony murder rule, which does not require a showing
of intent to
kill. Fla.Stat.Ann. § 782.04(1). King did not raise this point to
the
Florida Supreme
Court on direct appeal. Under Florida law, this procedural default
precluded consideration
of the issue on a motion for collateral relief. Hargrave v.
State, 396 So.2d
1127 (Fla.1981). Although King mentioned the point in his
motion for post-conviction
relief, he did not raise it on appeal from the denial of the
collateral relief
motion and the Florida Supreme Court did not discuss the question.
The failure
to bring up an issue on appeal, no less than at trial, may preclude federal
habeas corpus
review. Ford v. Strickland, 696 F.2d 804, 816-17 (11th Cir. 1983)
(en banc), petition
for cert. filed, [No. 82-6923] (U.S. June 14, 1983); Huffman v.
Wainwright,
651 F.2d 347 (5th Cir.1981); Evans v. Maggio, 557 F.2d 430 (5th
Cir.1977). King
has proffered no justification for not raising the point, so his
unexcused procedural
default prevents us from reaching the merits of his claim, but
it is worth
noting that in a similar set of facts we rejected this argument on its
merits.
Adams v. Wainwright,
709 F.2d 1443, 1446-47 (11th Cir.1983).
[74]
Non-Record Material
Before the Florida Supreme Court (The Brown Issue)
[75]
King was one
of the Florida death row inmates who unsuccessfully sought collateral
relief in state
court based on the Florida Supreme Court's alleged use of
non-record material
in reviewing death sentences. Brown v. Wainwright, 392
So.2d 1327 (Fla.),
cert. denied, 454 U.S. 1000, 102 S. Ct. 542, 70 L. Ed. 2d
407 (1981).
His attack in federal court on the Florida court's alleged practice is
foreclosed by
Ford v. Strickland, 696 F.2d 804 (11th Cir.1983) (en banc),
petition for
cert. filed, (U.S. June 14, 1983) [No. 82-6923]. King lacks any
specific evidence
that the Florida Supreme Court actually relied on non-record
material in
his case.
[76]
Restriction
on Jury's Consideration of Mitigating Circumstances
[77]
Because our
decision requires that King be resentenced, we do not need to
consider the
argument that the trial court's instruction limited the jury's consideration
to statutory
mitigating circumstances, in violation of Eddings v. Oklahoma, 455
U.S. 104, 102
S. Ct. 869, 71 L. Ed. 2d 1 (1982).
[78]
Removal of Prospective
Juror Who Opposed the Death Penalty: The Witherspoon
Issue
[79]
King argues
that the trial court violated Witherspoon v. Illinois, 391 U.S. 510, 88
S. Ct. 1770,
20 L. Ed. 2d 776 (1968), by excusing for cause venire member
Holenda. In
Witherspoon, the Supreme Court held that veniremen cannot be
excluded for
cause "simply because they voiced general objections to the death
penalty or expressed
conscientious or religious scruples against its infliction." Id. at
522, 88 S. Ct.
at 1777. The Court carefully admonished, however
[80]
Id. at 522 n.
21, 88 S. Ct. at 1777 n. 21 (emphasis in original); accord Adams v.
Texas, 448 U.S.
38, 44, 100 S. Ct. 2521, 2526, 65 L. Ed. 2d 581 (1980).
[81]
A careful review
of the colloquy between the trial judge and venire member
Holenda reveals
that the second basis for exclusion provided in Witherspoon and
Adams applies
here: the prospective juror could not be impartial in deciding the
defendant's
guilt. Because the questions asked of Holenda referred back to
questions asked
of the last two prospective jurors, the colloquy involving all three
must be reviewed.
[82]
THE COURT: Again
I will direct this question to each of those of you who have
just entered
the box: As you are aware, one of the charges against this defendant
carries a possible
punishment of death in the electric chair. Do any of you have any
conscientiously
held opinions as to the death penalty that would prevent you from
reaching a verdict?
[83]
THE COURT: Mr.
Farmer?
[84]
VENIREMAN FARMER:
Yes, sir.
[85]
THE COURT: In
other words, you do not feel that you could reach a verdict --
[86]
VENIREMAN FARMER:
Yes, sir. I do not believe in capital punishment.
[87]
THE COURT: Well,
that's not the -- really the question.
[88]
VENIREMAN FARMER:
Well, if I were to go on and it would be a part of the
verdict that
gave an advisory for you for death, I could not be a part of it.
[89]
THE COURT: Well,
here -- let me back up a little bit. As to the capital offense, the
only -- your
function there would be to determine whether in fact he was guilty or
innocent of
the charge. That would be number one, if it would be, and my question
then was, could
you find a verdict based upon the testimony and the law as to his
guilt or innocence.
[90]
VENIREMAN FARMER:
Not knowing that the possibility was there, sir, that it
would mean death.
[91]
THE COURT: All
right, sir. You may step down then, Mr. Farmer.
[92]
Frank Carter.
[93]
THE COURT: Okay.
Now what about possible penalty that could be imposed?
Do you have
any conscientiously held opinion with respect to capital punishment
that would prevent
you from reaching a verdict?
[94]
VENIREMAN CARTER:
No, your Honor.
[95]
THE COURT: In
other words, Mr. Farmer just candidly indicated to the Court that
he could never
vote -- that he could never reach a verdict with respect to an
offense such
as this. Do you feel that you could reach a verdict based upon the law
and evidence?
[96]
VENIREMAN CARTER:
Yes, sir.
[97]
THE COURT: Do
you have any reason at this time that you could not serve fairly
and impartially?
[98]
VENIREMAN CARTER:
Not to my knowledge.
[99]
THE COURT: Mr.
Holenda and Mrs. King, did I ask you these questions also
with respect
to the penalty?
[100]
VENIREWOMAN
HOLENDA: You didn't ask. I'm sorry, I don't believe that I
could be impartial.
I'm against capital punishment.
[101]
THE COURT: Well,
here again, as I indicated to Mr. Farmer, even though you are
against capital
punishment, the jury itself would not be imposing the same. You
would be asked
to reach a verdict based upon the testimony, the evidence, and the
law based as
to his guilt or innocence as to each of the charges, and then as to the
punishment as
it relates to capital punishment. You would then be asked to vote to
advise the Court
as to what the jury feels would be the proper punishment. I would
not be bound
by your opinion, however.
[102]
VENIREWOMAN
HOLENDA: I understand, but I do feel strongly about it. I'm
sorry, but that's
exactly how I feel.
[103]
THE COURT: Okay.
You may step down.
[104]
Venire member
Holenda specifically stated she could not be impartial, and, viewing
the colloquy
involving all three jurors, it is clear that the question related to her
verdict as to
guilt or innocence, not her recommendation as to sentence.
Accordingly,
her exclusion was proper.
[105]
Denial of an
Evidentiary Hearing on Ineffectiveness and Summary Rejection of
Issues Other
Than Ineffectiveness
[106]
King faults
the district court for deciding the ineffectiveness issue without first
affording him
an evidentiary hearing. Because of our decision as to ineffectiveness
at the penalty
phase of the trial, it is unnecessary to discuss King's argument that the
district court
should have held a hearing on ineffectiveness during the penalty stage.
[107]
As to King's
claim that an evidentiary hearing should have been held regarding
ineffectiveness
at the guilt phase of the trial, we would not reverse the district court.
In his opinion
denying the writ, the district judge noted that defense counsel had
told him a hearing
was unnecessary before he ruled on King's motion to stay the
judgment. Without
deciding whether this amounted to a waiver which extended to a
decision on
the habeas corpus petition, a habeas corpus petitioner is not entitled
to
a hearing on
ineffectiveness if the state court record is sufficient. Winfrey v. Maggio,
664 F.2d 550,
551-52 (5th Cir.1981). Here a state court had held an evidentiary
hearing on the
ineffectiveness claim at which two potential character witnesses who
were not called
at trial and two attorneys, including support counsel, had testified
for the defendant.
King did not suggest what additional evidence he hoped to
develop before
the district court. The court could properly decide the issue without
a hearing.
[108]
King also claims
the district court should have explained its reasons for rejecting
each of his
claims, rather than summarily dismissing all except ineffectiveness as
"without merit".
Although it is often advisable for the district court to provide a brief
explanation
of its disposition of each claim, this practice is not required where the
court "reject[s]
claims which it regards as frivolous or totally without merit."
Washington v.
Strickland, 693 F.2d 1243, 1264 n. 34 (5th Cir. Unit B 1982) (en
banc), cert.
granted, 462 U.S. 1105, 103 S. Ct. 2451, 77 L. Ed. 2d 1332 (1983)
(quoting Sumner
v. Mata, 449 U.S. 539, 548, 101 S. Ct. 764, 769, 66 L. Ed. 2d
722 (1981)).
We have reviewed each claim and, for the reasons set forth in this
opinion, affirm
the denial of relief based on issues other than ineffectiveness.
[109]
Admission of
Statements Made by King
[110]
Denying King's
motion to suppress, the trial court permitted a police officer to
testify about
the statements made by King after his arrest and receipt of Miranda
warnings, including
two conflicting statements concerning how he obtained the knife
used to attack
McDonough. First he told the arresting officers that the knife was his
and he had possessed
it for weeks. Later he told the officers that it was
McDonough's
knife which he had taken from McDonough after the prison official
had attacked
him. King testified at the motion to suppress that he had asked for a
lawyer before
any questioning. The police officers gave contrary testimony,
indicating that
King had not asked for a lawyer until after he had made the
statements about
the knife.
[111]
The trial court
evidently believed the police officers, not King. It excluded only
statements made
after the time the officers testified King first requested an attorney,
expressly finding
that all prior statements were freely and voluntarily given.
[112]
The federal
court must accept the findings of the state court as to the credibility
of
King and the
officers, just as any appellate court must accept the findings of a trial
court where
credibility choices are involved. See United States v. Kreczmer, 636
F.2d 108, 110
(5th Cir.1981) (credibility choices on motion to suppress are within
province of
finder of fact); United States v. Howard, 451 F.2d 1003, 1004 (5th
Cir.1971) (credibility
choice involving conflicting evidence as to whether police
agent gave defendant
Miranda warnings is for the trial judge).
[113]
Consolidation
[114]
King contends
the consolidation of the attempted murder and escape charges,
arising out
of the incident involving prison counselor McDonough, with the arson,
robbery, involuntary
sexual battery and murder charges, arising out of the incident
involving Brady,
denied him a fair trial. In concluding that consolidation was proper
under state
law, the Florida Supreme Court indicated the evidence of the prison
incident would
have been admissible at the murder trial even without consolidation.
King v. State,
390 So.2d 315, 318 (Fla. 1980), cert, denied, 450 U.S. 989, 101
S. Ct. 1529,
67 L. Ed. 2d 825 (1981). The Florida court also found that defense
counsel was
prepared to try all charges on the trial date. Id. This finding of fact
is
entitled to
a presumption of correctness under 28 U.S.C.A. § 2254(d); Sumner v.
Mata, 449 U.S.
539, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1981), and the Florida
Supreme Court
is the ultimate source of state law. Ford v. Strickland, 696 F.2d
804, 810 (11th
Cir. 1983) (en banc), petition for cert. filed, June 14, 1983, [No.
82-6923]. The
consolidation hardly caused the defendant great prejudice. It
certainly, by
itself, did not make the trial fundamentally unfair.
[115]
Restriction
on Defense Questioning During Voir Dire
[116]
Sustaining the
prosecutor's objection, the trial judge refused to permit defense
counsel to ask
prospective jurors whether they favored a mandatory death penalty
for certain
crimes. The Florida Supreme Court succinctly explained why this
question was
irrelevant:
[117]
The purpose
of voir dire examination is to obtain a fair and impartial jury to try
the
issues in the
cause . . . The subject question, however, did not address the
juror[s]'s impartial
application of existing law, but rather it concerned [their]
conception of
what laws should exist.
[118]
King v. State,
390 So.2d at 319. All of the jurors who were eventually selected
indicated they
could reach a decision based on the law and evidence. The
restriction
on voir dire questioning did not deny King a fair trial.
[119]
The denial of
the petition for habeas corpus relief is affirmed, insofar as it attacks
the constitutionality
of the conviction, but reversed as to the death penalty. The case
is remanded
to the district court for entry of an appropriate writ.
[120]
AFFIRMED IN
PART, REVERSED IN PART and REMANDED.
[121]
Disposition
[122]
AFFIRMED IN
PART, REVERSED IN PART and REMANDED.
19830902
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