| [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. |