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09/14/89 WAYNE TOMPKINS, v. RICHARD L. DUGGER, ETC.,
[Editor's note: footnotes (if any) trail the opinion]
[1] SUPREME COURT OF FLORIDA
[2] WAYNE TOMPKINS, Petitioner,
v.
[3] RICHARD L. DUGGER, ETC., Respondent. WAYNE TOMPKINS,
[4] Appellant, v. STATE OF FLORIDA, Appellee
[5] Nos. 74,098, 74,235
[6] 549 So. 2d 1370, 14 Fla. Law W. 455
[7] September 14, 1989
[8] Two Cases: An Original Proceeding - Habeas Corpus and An Appeal from the
Circuit Court in and for Hillsborough County, Harry Lee Coe, III, Judge -
Case No. 84-10538.
[9] Rehearing Denied November 6, 1989.
BLUE BOOK CITATION FORM: 1989.FL.2074 (http://www.versuslaw.com)
[10] APPELLATE PANEL:
[11] Barkett, J., Ehrlich, C.J., and Overton, McDonald, Shaw, Grimes and
Kogan, JJ., concur
[12] DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARKETT
[13] Wayne Tompkins, a prisoner under sentence of death and active death
warrant, petitions for a writ of habeas corpus, appeals the trial court's
denial of his motion for post-conviction relief filed under Florida Rule of
Criminal Procedure 3.850, and requests a stay of execution. Our jurisdiction
is mandatory.*fn1 On June 2, 1989, this Court granted Tompkins' motion for
stay pending further order. We now vacate the stay and deny relief.
[14] Tompkins was convicted of the strangulation murder of fifteen-year-old
Lisa Lea DeCarr, whose skeletal remains were discovered in a grave located
beneath her Tampa home in June 1984. Following the jury's recommendation,
the trial judge imposed the death sentence. The Court affirmed the
conviction and sentence in Tompkins v. State, 502 So.2d 415 (Fla. 1986),
cert. denied, 483 U.S. 1033 (1987).
[15] In his habeas petition, Tompkins raises nine grounds for relief. We
deny Claims 1, 2, 4, 6, 8, and 9 because trial counsel failed to object at
trial.*fn2 Thus, we must reject Tompkins' claim of ineffective assistance of
appellate counsel. Appellate counsel could not have been ineffective for
failing to raise claims on direct appeal which were not properly preserved.
Suarez v. Dugger, 527 So.2d 190, 193 (Fla. 1988). We also reject Claim 3
that Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372
(1988), compels a reversal of the trial court's finding that the murder was
"especially, heinous, atrocious, or cruel."*fn3
[16] Likewise, Tompkins is not entitled to relief upon the asserted basis in
Claim 7 that appellate counsel failed to object to inflammatory photographs
of the victim's skeletal remains. The record shows that trial counsel
objected to the introduction of this evidence. The decision of the trial
judge to admit this evidence was within the parameters of his discretion.
Therefore, Tompkins cannot demonstrate that he was prejudiced by appellate
counsel's failure to raise this claim on direct appeal.
[17] In Claim 5, Tompkins argues that he was denied his sixth amendment
right to counsel in that he was precluded from presenting a defense. This
preclusion occurred when the trial court sustained objections to hearsay
testimony offered to show that the victim was alive subsequent to the time
Tompkins was alleged to have killed her. We find no error in the trial
court's evidentiary ruling on this question and therefore deny relief.
[18] In his rule 3.850 motion, Tompkins raises nineteen claims. After an
evidentiary hearing on May 19 and 20, 1989, the trial court denied relief.
We affirm.
[19] First, Tompkins argues that Florida Rule of Criminal Procedure 3.851
effectively operates to deny equal protection and access to the courts by
empowering the Governor to shorten the two-year filing deadline granted by
rule 3.850. This Court has previously rejected this argument in Cave v.
State, 529 So.2d 293, 298-99 (Fla. 1988).
[20] We reject as meritless Claims 3, 10, and 19 in which Tompkins contends
that his court-appointed trial counsel, Cass Castillo, withdrew to accept a
position with the prosecutor's office, thus rendering proceedings
fundamentally unfair; that the state knowingly used false and misleading
testimony; and that improper influences on the jury affected its ability to
render an impartial verdict.
[21] The remaining claims assert that the state withheld material
exculpatory evidence in violation of Brady v. Maryland*fn4 and that trial
counsel provided ineffective assistance. As to the Brady violation, Tompkins
claims that the state should have provided defense counsel with jail records
showing that Tompkins was given Sinequan while in jail; school records
indicating that Lisa had been seen by schoolmates after she allegedly was
killed; and information suggesting that Tompkins' cell mate, who had
testified that Tompkins confessed, was a state agent.
[22] The record clearly reflects that counsel knew that Lisa reportedly was
seen after the time established for her murder. Counsel attempted to
introduce this very evidence through the hearsay testimony of Lisa's mother.
We also agree that counsel's lack of knowledge that Tompkins asked for
medication while in custody had no prejudicial effect on the outcome of the
trial. Finally, we find no evidence in the record to support any theory that
Tompkins' cell mate was a state agent. Accordingly, we affirm the trial
court on the Brady issue.
[23] Tompkins' ineffective assistance of counsel argument encompasses five
claims. First, he argues that counsel should have introduced testimony of
the witness who claimed to have seen Lisa after the murder. The evidence,
however, reflects that counsel's investigator interviewed this witness. At
the time of the interview, the witness had absolutely no recollection of
ever having reported seeing Lisa. Moreover, this witness was "drying out"
from drugs and had great difficulty with her memory. It is clear that a
strategic decision was made not to call this witness and to try instead to
present this testimony, to the extent permitted by the trial judge, through
the hearsay testimony of Lisa's mother.
[24] In addition, Tompkins contends that trial counsel was ineffective for
failing adequately to argue that the prosecution violated his sixth
amendment rights when the authorities secured his confession through cell
mate Turco. As noted above, the record is devoid of any evidence of the
existence of an agency relationship between Turco and the state. Tompkins
also argues that trial counsel failed to adequately impeach the in-court
identification made by Kathy Stevens and to object to a violation of
Caldwell v. Mississippi, 472 U.S. 320 (1985).*fn5 The trial court found, and
we agree, that trial counsel was not ineffective as to any of these claims.
[25] In the second part of the ineffectiveness claim, Tompkins asserts that
counsel failed to investigate and present evidence of mitigation in the
penalty phase. The trial court found, and we again agree, that counsel was
deficient in this regard. However, the trial court also found that the
mitigating evidence overlooked by counsel would not have changed the
outcome, and therefore did not demonstrate prejudice. Strickland v.
Washington, 466 U.S. 668, 687 (1984).
[26] The trial judge, when imposing the death penalty, found three
aggravating circumstances: previous conviction of a violent felony;*fn6
murder committed during an attempt to commit a sexual battery;*fn7 and that
the murder was especially heinous, atrocious, or cruel.*fn8 The previous
felony convictions consisted of two prior rapes at knife point. Tompkins
alleges that there were extenuating circumstances which would mitigate this
aggravating factor. He further submits that additional mitigating evidence
existed and should have been presented at trial. This mitigation included an
abused childhood and an addiction to drugs and alcohol. The trial court
found that this evidence would not have affected the penalty in light of the
crime and the nature of the aggravating circumstances. We affirm the trial
court's finding that the second prong of the Strickland test has not been
satisfied. Id.
[27] Finally, in his rule 3.850 motion, Tompkins has reasserted numerous
claims advanced in his petition for habeas corpus.*fn9 We likewise affirm
the trial judge's denial of these claims.
[28] Accordingly, we deny the petition for writ of habeas corpus, affirm the
trial court's denial of Tompkins' motion for postconviction relief, and
vacate the stay of execution.
[29] It is so ordered.
***** BEGIN FOOTNOTE(S) HERE *****
[30] *fn1 Art. V, § 3(b)(1) & (9), Fla. Const.
[31] *fn2 In these claims, Tompkins argues that: the penalty phase jury
instructions impermissibly shifted to the defendant the burden of proving by
the introduction of mitigating evidence that death was inappropriate; the
trial court and prosecutor improperly asserted that sympathy towards the
defendant was an improper consideration in the jury's sentencing
recommendation; the prosecutor made an improper "golden rule" argument to
the penalty phase jury; argument and testimony was admitted in violation of
Booth v. Maryland, 482 U.S. 496 (1987); the death sentence impermissibly
rested upon an automatic aggravating factor because the sentencer was
entitled to automatically return a death sentence as a result of his
conviction for felony murder; and the jury was misled as to its proper role
for reasons expressed in Caldwell v. Mississippi, 472 U.S. 320 (1985).
[32] *fn3 § 921.141(5)(h), Fla. Stat. (1987).
[33] *fn4 Brady v. Maryland, 373 U.S. 83 (1963).
[34] *fn5 This Court has previously ruled that Caldwell is not applicable in
Florida. Combs v. State, 525 So.2d 853 (Fla. 1988).
[35] *fn6 § 921.141(5)(b), Fla. Stat. (1985).
[36] *fn7 § 921.141(5)(d), Fla. Stat. (1985).
[37] *fn8 § 921.141(5)(h), Fla. Stat. (1985).
[38] *fn9 These include Claims 2, 12, 14, and 16.
***** END FOOTNOTE(S) HERE *****
[Editor's note: Illustrations from the original opinion, if any, are
available in the print version]
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19890914
1989.FL.2074