| [1] | U.S. Court of Appeals, Eleventh Circuit |
| [2] | No. 98-3367 |
| [3] | 193 F.3d 1327, 1999.C11.0042744 <http://www.versuslaw.com> |
| [4] | October 29, 1999 |
| [5] | WAYNE TOMPKINS,
PETITIONER-APPELLANT, v. MICHAEL W. MOORE, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, RESPONDENT-APPELLEE. |
| [6] | Appeal from the United States District Court for the Middle District
of Florida.(No. 89-1638-CIV-t-21B), Ralph L. Nimmons, Jr.,
Judge. |
| [7] | Before Cox, Carnes and Hull, Circuit Judges. |
| [8] | The opinion of the court was delivered by: Carnes, Circuit
Judge |
| [9] | Wayne Tompkins was convicted and sentenced to death for
the sexual battery and murder of Lisa DeCarr, age fifteen, who was the
daughter of Tompkins' girlfriend. The facts concerning the
crime and the evidence against Tompkins are set out in the
Florida Supreme Court's decision affirming on direct appeal his conviction
and death sentence. See Tompkins v. State, 502 So.2d 415
(Fla.1986). After conducting an evidentiary hearing, the Florida trial
court denied Tompkins' motion for post-conviction relief
under Florida Rule of Criminal Procedure 3.850. The Florida Supreme Court
affirmed that denial, and it also denied Tompkins' state
habeas petition in the same opinion. See Tompkins v. Dugger,
549 So.2d 1370 (Fla.1989). |
| [10] | After exhausting his state remedies, Tompkins filed a
petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254.
The United States District Court for the Middle District of Florida denied
that petition in a thorough, unpublished opinion. See
Tompkins v. Singletary, No. 89-1638-CIV-T-21B (M.D. Fla.
April 17, 1998). This is Tompkins' appeal from that
denial. |
| [11] | THE CERTIFICATE OF PROBABLE CAUSE |
| [12] | After the district court denied his habeas petition,
Tompkins filed an application for a certificate permitting
him to appeal. Because the federal habeas petition had been filed before
the April 24, 1996 effective date of the Anti-terrorism and Effective
Death Penalty Act ("AEDPA"), a certificate of probable cause under
pre-AEDPA law, instead of a certificate of appealability under post-AEDPA
law, see 28 U.S.C. § 2253(c), was the proper procedural route for
permission to appeal. See Hardwick v. Singletary, 122 F.3d 935 (11th
Cir.), modified on rehearing, 126 F.3d 1312 (11th Cir.1997). The district
court recognized as much, and it also recognized that in issuing a
certificate of probable cause-unlike a certificate of appealability-it
need not specify the issues for which the necessary showing to permit the
appeal had been made. Nonetheless, the court decided "in view of
Petitioner's numerous claims, [to] specify the issues so certified." The
court issued a certificate of probable cause only as to two claims in
their entirety and parts of two other claims. The remaining 25 or so other
claims Tompkins had raised in the district court were left
out of the certificate of probable cause. |
| [13] | Tompkins wants us to review the district court's denial
of relief as to far more claims than the certificate of probable cause
specifies; indeed, he wants review of most of the many claims he raised in
his habeas petition. The problem is that Tompkins did not
even attempt to broaden the certificate of probable cause to cover all
those other claims. He could have filed an application in this Court to do
that, but he did not. The reason, Tompkins explains, is that
he did not think it was necessary to do so in view of this Court's
Hardwick decision. |
| [14] | In the Hardwick case, the district court had mistakenly believed the
habeas case before it was governed by AEDPA, including the requirement
that a certificate of appealability specify the issues as to which an
appeal is being permitted. So, the district court issued a certificate of
appealability specifying some but not all of the issues the petitioner
wanted to appeal. This Court determined that the case was actually
governed by pre-AEDPA law, see Hardwick, 122 F.3d at 936, which included
provision for issuance of a certificate of probable cause to appeal that
need not-and almost never did-specify the issues as to which an appeal was
permitted; certificates of probable cause to appeal were almost always
issued as to cases considered as a whole. What we decided to do in that
particular instance was to construe the order granting a certificate of
appealability as to some but not all issues as a certificate of probable
cause as to all the issues and let the whole appeal go forward on that
basis. See Hardwick 126 F.3d at 1313. Tompkins says Hardwick
controls the present situation. |
| [15] | We do not think so. This is not a case, like Hardwick, where the
district court Judge was laboring under the mistaken belief that he was
required to grant a certificate specifying issues worthy of appeal and was
unaware he could grant a general certificate covering the whole case
without making an issue-by-issue determination. Judge Nimmons, who
presided over this case in the district court, made it clear in his order
granting a certificate of probable cause to appeal that he knew exactly
what was going on. He said in that order that this was a pre-AEDPA case
governed by the certificate of probable cause to appeal rules, and that
under those rules he was not required to specify which issues were worthy
of being reviewed on appeal. Fully aware that he was not required to
specify issues in the certificate of probable cause to appeal, Judge
Nimmons nonetheless chose to do so in order to assist this Court and the
parties in shaping up the appeal. |
| [16] | It is certainly unusual for a certificate of probable cause to appeal
to specify and limit the issues as to which the appeal is being permitted.
Indeed, that is one of the differences between the old certificate of
probable cause to appeal and the new certificate of appealability
provision in AEDPA: the new provision requires specification of issues,
see 28 U.S.C. § 2255(c)(3). But unusual does not equate with
impermissible. On at least two occasions, we have permitted district
courts to specify issues covered by certificates of probable cause to
appeal, and we have honored the resulting limitation on the scope of the
appeal. See Clisby v. Alabama, 52 F.3d 905, 906 (11th Cir.1995); Clark v.
Dugger, 901 F.2d 908, 910 (11th Cir.1990). Tompkins points
out that both of those decisions involved appeals from the denial of
relief in second petition cases, but nothing in either the Clisby or the
Clark opinion hints at such a distinction, nor is there any persuasive
reason for distinguishing first from second petition cases insofar as
certificates of probable cause to appeal are concerned. |
| [17] | But what about the more recent Hardwick case and that panel's decision
to treat a mistaken certificate of appealability on fewer than all of the
issues as a certificate of probable cause to appeal all the issues? There
are two possibilities. One is that Hardwick is distinguishable from Clisby
and Clark, and in turn from the present case, on the basis that Hardwick
involved mistaken district court action, not action taken with eyes wide
open. The second possibility is that Hardwick is not distinguishable from
Clisby and Clark on that basis (or any other we can think of), which means
that we are duty bound to follow the decisions in the earlier two cases
instead of the more recent one in Hardwick. See United States v. Steele,
147 F.3d 1316, 1318 (11th Cir.1998)(en banc)("[I]t is the firmly
established rule of this Circuit that each succeeding panel is bound by
the holding of the first panel to address an issue of law, unless and
until that holding is overruled en banc, or by the Supreme Court.")
(quoting United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir.1993));
United States v. Dailey, 24 F.3d 1323, 1327 (11th Cir.1994)("When there is
no method for reconciling an intracircuit conflict of authority, the
earliest panel opinion resolving the issue in question binds this circuit
until the court resolves the issue en banc.")(internal quotation marks and
citation omitted). Either way, the Hardwick decision cannot rescue
Tompkins from his predicament. The district court issued him
a limited certificate of probable cause to appeal, and he failed to apply
to this Court to have it broadened. |
| [18] | We would be fully justified in limiting our review to those issues
specified in the certificate issued by the district court. The only reason
we are not limiting our review in that manner is the Hardwick decision did
engender some confusion, and we cannot say Tompkins'
reliance upon it was entirely unjustified. So, we will review the issues
argued in Tompkins' brief in the same fashion and to the
same extent as if the district court had not limited the certificate of
probable cause to appeal. We will review all of them. *fn1 |
| [19] | But let this opinion serve as clear notice to any other habeas
petitioners who have been granted limited certificates of probable cause
to appeal. The limitations contained in those certificates will be honored
to the same extent that the limitations in certificates of appealability
issued in AEDPA-covered cases are. It is not enough simply to file a brief
addressing all of the issues for which review is sought. See Murray v.
United States, 145 F.3d 1249, 1250-51(11th Cir.1998). Issues not covered
in the certificate will not be considered. See id. The only way a habeas
petitioner may raise on appeal issues outside those specified by the
district court in the certificate is by having the court of appeals expand
the certificate to include those issues. See generally Hunter v. United
States, 101 F.3d 1565, 1575 (11th Cir.1996)(en banc)("Under the plain
language of the rule, an applicant for the writ gets two bites at the
appeal certificate apple: one before the district Judge, and if that one
is unsuccessful, he gets a second one before a circuit Judge."). An
application to expand the certificate must be filed promptly, well before
the opening brief is due. Arguments in a brief addressing issues not
covered in the certificate, including any expansion granted by the court
of appeals, will not be considered as a timely application for expansion
of the certificate; those issues simply will not be reviewed. In other
words, the same rules that apply to certificates of appealability will
henceforth be applied to certificates of probable cause to appeal that are
limited to specified issues. *fn2 |
| [20] | THE DENIAL OF AN EVIDENTIARY HEARING |
| [21] | Tompkins received an evidentiary hearing in state court
on his Rule 3.850 petition, which raised much the same issues as he raised
in his later federal habeas petition. The district court denied Tompkins
an evidentiary hearing so he could present additional evidence in federal
court, because he failed to show cause and prejudice for not presenting
that evidence in the state court proceeding, a showing required under
Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318
(1992). Such a showing should not have been required of him,
Tompkins argues, because in his view Keeney 's cause and
prejudice test is not applicable where the state court held an evidentiary
hearing. That view is incorrect. |
| [22] | Keeney itself involved a case in which an evidentiary hearing was
denied in federal court after one had been held in state court. See id. at
4, 112 S.Ct. at 1716 ("After a hearing, the state court dismissed
respondent's petition ...") Thus, the very decision announcing that the
cause and prejudice test is applicable where the federal petitioner had
failed to develop material facts in a state court proceeding is itself
authority for the proposition that the test applies when there has been an
evidentiary hearing in state court. The Keeney rule has been applied many
times in this context. See, e.g., Williams v. Turpin, 87 F.3d 1204, 1208
(11th Cir.1996); Mills v. Singletary, 63 F.3d 999, 1022 (11th Cir.1995);
Mathis v. Zant, 975 F.2d 1493, 1497 (11th Cir.1992). The district court
properly applied the Keeney rule with its cause and prejudice test, and
the court did not err in concluding that Tompkins had failed
to proffer adequate evidence of cause and prejudice ( or actual innocence,
which is an exception to the cause and prejudice
requirement). |
| [23] | THE GUILT STAGE INEFFECTIVE ASSISTANCE CLAIM |
| [24] | Tompkins contends that the performance of his trial
counsel, Daniel Hernandez, was ineffective at the guilt stage. To prevail
on that contention Tompkins must persuade us both that
counsel's performance at the guilt stage was "outside the wide range of
professionally competent assistance," Strickland v. Washington, 466 U.S.
668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984), and also that there
is a "reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different." Id. at
694, 104 S.Ct. at 2052. A "reasonable probability" is one "sufficient to
undermine confidence in the outcome," id., which here is the jury's
verdict convicting Tompkins of the capital offense. We are
not persuaded that either requirement has been met. |
| [25] | Tompkins' guilt stage ineffective assistance arguments
are best viewed against a background of the evidence the state presented
against him. That evidence is well summarized in the Florida Supreme
Court's opinion affirming his conviction and sentence on direct appeal,
and for the convenience of the reader we set forth that summary
here: |
| [26] | The victim, Lisa DeCarr, aged 15, disappeared from her home in Tampa
on March 24, 1983. In June 1984, the victim's skeletal remains were found
in a shallow grave under the house along with her pink bathrobe and
jewelry. Based upon a ligature (apparently the sash of her bathrobe) that
was found tied tightly around her neck bones, the medical examiner
determined that Lisa had been strangled to death. In September 1984, Wayne
Tompkins, the victim's mother's boyfriend, was charged with
the murder. |
| [27] | At trial, the state's three key witnesses testified as follows.
Barbara DeCarr, the victim's mother, testified that she left the house on
the morning of March 24, 1983, at approximately 9 a.m., leaving Lisa alone
in the house. Lisa was dressed in her pink bathrobe. Barbara met Wayne
Tompkins at his mother's house a few blocks away. Some time
that morning, she sent Tompkins back to her house to get
some newspapers for packing. When Tompkins returned, he told
Barbara that Lisa was watching television in her robe.
Tompkins then left his mother's house again, and Barbara did
not see or speak to him again until approximately 3 o'clock that
afternoon. At that time, Tompkins told Barbara that Lisa had
run away. He said the last time he saw Lisa, she was going to the store
and was wearing jeans and a blouse. Barbara returned to the Osborne Street
house where she found Lisa's pocketbook and robe missing but not the
clothes described by Tompkins. Barbara then called the
police. |
| [28] | The state's next witness, Kathy Stevens, a close friend of the victim,
testified that she had gone to Lisa DeCarr's house at approximately 9 a.m.
on the morning of March 24, 1983. After hearing a loud crash, Stevens
opened the front door and saw Lisa on the couch struggling and hitting
Tompkins who was on top of her attempting to remove her
clothing. Lisa asked her to call the police. At that point, Stevens left
the house but did not call the police. When Stevens returned later to
retrieve her purse, Tompkins answered the door and told her
that Lisa had left with her mother. Stevens also testified that
Tompkins had made sexual advances towards Lisa on two prior
occasions. |
| [29] | Kenneth Turco, the final key state's witness, testified that
Tompkins confided details of the murder to him while they
were cellmates in June 1985. Turco testified that Tompkins
told him that Lisa was on the sofa when he returned to the house to get
some newspapers for packing. When Tompkins tried to force
himself on her, Lisa kicked him in the groin. Tompkins then
strangled her and buried her under the house along with her pocketbook and
some clothing (jeans and a top) to make it appear as if she had run away.
Tompkins v. State, 502 So.2d at 417-18. |
| [30] | The thrust of Tompkins' guilt stage ineffective
assistance attack centers around his argument that trial counsel did not
do enough to show that Lisa DeCarr was alive after the morning of March
24, 1983, the morning Tompkins was seen struggling with her
on the couch in the house they shared with Lisa's mother, who was
Tompkins' girlfriend. If she was alive after that morning,
Tompkins argues, someone else must have killed her, and
besides, the State would have failed to prove he had killed her before
5:00 p.m. that day, a requirement it undertook in the bill of
particulars. |
| [31] | The main thing trial counsel could and should have done to show that
Lisa DeCarr was alive after the morning in question,
Tompkins says, is present evidence that a young woman named
Wendy Chancey had seen her alive later in the day, had seen her getting
into a vehicle, and had seen her wearing clothes similar in appearance to
those Tompkins told the police Lisa had been wearing when
she left the house unharmed that morning. Before trial, counsel learned
from a police report that Chancey had told the police those things during
an interview, and he considered using her as a witness. He decided not to
do so because he believed she would not have made a good
witness. |
| [32] | At the state court evidentiary hearing, Tompkins tried
unsuccessfully to show that Wendy Chancey would have been a useful witness
for the defense. The evidence at that hearing showed that when Chancey was
located and interviewed twice by collateral counsel's investigator, that
she had no recollection at all of having seen Lisa on the day in question,
and that she could not even identify a photograph of Lisa. The
investigator who interviewed her included in his report this observation
and recommendation: |
| [33] | This writer believes that Wendy Chancey is a troubled child who has
been through many traumatic experiences, some of which may involve
narcotics. It could well be that Wendy Chancey's past and possibly some
unknown medical condition affects her ability of recall. Further attempts
to interview this female are not recommended by this
investigator. |
| [34] | There is no evidence in the record that at the time of the trial Wendy
Chancey remembered anything about the events on the day in question, or
that she even remembered Lisa DeCarr. |
| [35] | Tompkins faults trial counsel for not calling Wendy
Chancey, anyway. He says she could have identified the statements referred
to in the police reports as ones she had made, and she could have said
that those statements were accurate when made even though she has no
recollection of the events they describe. The argument is that testimony
from Chancey-if she gave it-would have been enough to get those statements
into evidence as prior recollections recorded. No, it would not have been
enough, even assuming Chancey could have testified to the accuracy of the
statements she could no longer recall. As the district court explained,
under Florida law a prior recollection recorded is admissible only if the
recorded statement is one that was recorded by the witness herself. See
Fla. Stat. § 90.893(5) ("A memorandum or record ... shown to have been
made by the witness ..."); Hendreth v. State, 483 So.2d 768, 769 (Fla. 1st
DCA 1986)(police report's synopsis of a witness' statements to an officer
not admissible as prior recollection recorded). |
| [36] | Tompkins has not shown that there is any basis for the
admission of that part of the police report containing the statements
Wendy Chancey supposedly made but can no longer recall. Of course, we will
not hold an attorney ineffective for failing to offer inadmissible
evidence. *fn3
We also note, as did the district court, that if trial counsel had called
Wendy Chancey or any other witness to testify at the guilt stage, under
Florida law he would have forfeited his right to both open and close the
arguments before the jury. |
| [37] | THE PENALTY STAGE INEFFECTIVENESS CLAIM |
| [38] | At the penalty stage, in addition to relying upon the evidence that
had been presented during the guilt stage, the State also proved that
Tompkins had been convicted of two separate, knife-point
abductions and rapes of convenience store clerks. Both of those other
crimes occurred after Tompkins sexually assaulted and
murdered Lisa DeCarr on March 24, 1983, but before her body was found in
June of 1984. The first of those two rapes occurred on April 7, 1984, and
the second on May 30, 1984. Tompkins pled guilty to armed
robbery, kidnaping, and sexual battery in connection with the first rape,
and he pled no contest to kidnaping and sexual battery in connection with
the second rape. The prosecutor accurately argued to the jury that
Tompkins had been convicted of five violent felonies prior
to his conviction for the capital offense in the present case, saying,
"That is his violent past right there: two rapes, two kidnapings, and an
armed robbery, five previous violent felony convictions." The prosecutor
also argued that "these crimes he committed in Pasco County when he was
raping these two other women on April 7, 1984, and May 30, 1984, Lisa
DeCarr still had not been found. She was still buried under that house
when this man unleashed his violence on these two other women in Pasco
County." The crime was especially heinous, atrocious and cruel, the
prosecutor urged, because as the fifteen-year-old victim resisted
Tompkins' sexual advances and struggled against him,
Tompkins strangled her to death with the sash of her
bathrobe. He emphasized to the jury that Lisa DeCarr did not die instantly
but instead had her life strangled out of her and must have realized
before losing consciousness that she was going to die. |
| [39] | At the beginning of the penalty phase, trial counsel had informed the
court that Tompkins had just decided that no mitigating
circumstance evidence should be presented, because he did not want to
spend the rest of his life in prison. Counsel did not want to forego
presenting mitigating circumstances and asked the court for a recess so he
would have an opportunity to talk his client into changing his mind. The
trial court directed counsel to ignore his client's instructions and to
present mitigating circumstance evidence. |
| [40] | Counsel called as mitigation witnesses Tompkins' two
older sisters, and also a brother-in-law who had known him for fifteen
years. The sisters testified that Tompkins was shy, had
never displayed any violent behavior, had never hurt anyone, did not use
obscene language, and had always worked and supported himself up until the
time of his arrest. The brother-in-law testified he had known
Tompkins for fifteen years, and that Tompkins
had worked for him for four years in a roofing and construction business.
He described Tompkins as a good employee who was always on
time, good to follow orders, and eager to learn. He had not had any
complaints from any customers about Tompkins, who never got
into any arguments or fights with anyone. |
| [41] | In his closing argument, defense counsel pointed out that
Tompkins had admitted his guilt for the two other crimes for
which he had been convicted, and that no one had been seriously injured or
killed in them. He also argued Tompkins' age as a statutory
mitigating circumstance, and he discussed the non-statutory mitigating
circumstances about which the defense witnesses had testified. He urged
the jury to spare Tompkins' life. |
| [42] | The jury returned an advisory verdict unanimously recommending the
death sentence. The trial court found three statutory aggravating
circumstances: 1) previous convictions for felonies involving the use or
threat of violence to the person; 2) the murder was committed while the
defendant was engaged in an attempt to commit sexual battery; and, 3) the
murder was especially heinous, atrocious, or cruel. The court found one
statutory mitigating circumstance: the defendant's age (twenty-six years
old) at the time of the crime. *fn4
The trial court sentenced Tompkins to death. |
| [43] | Tompkins contends that trial counsel was ineffective at
the penalty phase because he failed to present additional mitigating
circumstance evidence. The state trial court conducted an evidentiary
hearing on this claim, and although concluding that counsel's performance
had been deficient, the court nonetheless rejected the claim because
Tompkins had failed to establish prejudice, as required
under the Strickland decision. On appeal, the Florida Supreme Court agreed
with both aspects of the trial court's ruling. It found that counsel had
been deficient because he failed to present some available mitigating
circumstance evidence, but it also concluded that "this evidence would not
have affected the penalty in light of the crime and the nature of the
aggravating circumstances." See 549 So.2d at 1373. After conducting a de
novo review, the district court agreed that Tompkins had
failed to establish prejudice but found it unnecessary to determine
whether or not trial counsel's performance had been outside the wide range
of reasonable professional assistance. We follow the same path as the
district court. |
| [44] | Under the prejudice prong of Strickland, "[i]t is not enough for the
defendant to show that the error had some conceivable effect on the
outcome of the proceeding." 466 U.S. at 693, 104 S.Ct. at 2067. Instead,
"the question is whether there is a reasonable probability that, absent
the errors, the sentencer ... would have concluded that the balance of
aggravating and mitigating circumstances did not warrant death." Id. at
695, 104 S.Ct. at 2069. A "reasonable probability" of a different result
here, as in regard to the guilt stage, is one sufficient to undermine our
confidence in the outcome. See id. at 694, 104 S.Ct. at 2052. That means
Tompkins must convince us that if the additional mitigating
circumstance evidence in question had been presented, "there is a
reasonable probability that the balance of aggravating and mitigating
circumstances would have been different." Horsley v. Alabama, 45 F.3d
1486, 1493 (11th Cir.1995); accord Weeks v. Jones, 26 F.3d 1030, 1042
(11th Cir.1994) ("[T]he petitioner must show ... there is a reasonable
probability that the sentencer would have weighed the balance of
aggravating and mitigating factors to find that the circumstances did not
warrant the death penalty.") (quoting Bush v. Singletary, 988 F.2d 1082,
1090 (11th Cir.1993) (per curiam)). In order to decide this issue we look
at the mitigating circumstance evidence that was not presented, along with
that which was, and consider the totality of it against the aggravating
circumstances that were found. |
| [45] | We have already set out the mitigating circumstance evidence that
trial counsel did present at the penalty stage, so we turn now to the
additional evidence which Tompkins contends should have been
presented. It is primarily of three categories. The first category
concerns physical abuse Tompkins suffered as a child. He was
not abused by his parents, but by a man in the foster family with which
Tompkins lived for several years until he was sixteen years
old. *fn5
Tompkins told a number of family members and friends that he
was treated unfairly by his foster father and was whipped and beaten by
him. *fn6 |
| [46] | Evidence of physical abuse while a youth is admissible at sentencing,
but Tompkins was twenty-six years old when he committed this
capital offense. We have previously held that at least where there are
significant aggravating circumstances and the petitioner was not young at
the time of the capital offense, "evidence of a deprived and abusive
childhood is entitled to little, if any, mitigating weight." Francis v.
Dugger, 908 F.2d 696, 703 (11th Cir.1990) (petitioner was thirty-one years
old at the time of the capital offense); accord, Mills v. Singletary, 63
F.3d 999, 1025 (11th Cir.1995) ("We note that evidence of Mills' childhood
environment likely would have carried little weight in light of the fact
that Mills was twenty-six when he committed the crime."). Bolender v.
Singletary, 16 F.3d 1547, 1561 (11th Cir.1994) (same holding where
petitioner was twenty-seven years old at the time of the capital
offense). |
| [47] | The second category of mitigating circumstance evidence
Tompkins contends his counsel should have presented is
evidence of substance abuse. The evidence that Tompkins had
a substance abuse problem is thin, consisting almost entirely of his own
statements to Dr. Patricia Fleming, the psychologist who testified as his
expert witness on mental state issues in the Rule 3.850 proceeding.
Despite a professed awareness that, in her words, "anybody that is facing
execution has every motivation to lie," Dr. Fleming believed
Tompkins when he told her that he had taken drugs in the
past and had ended up drinking beer and hard liquor in large quantities.
Indeed, she wrote in her report that Tompkins began drinking
at age seventeen and his alcohol consumption had increased until at the
time of his arrest he was drinking one-half gallon of whiskey and one-half
case of beer every day, which resulted in black outs, memory loss, and
related problems. |
| [48] | Tompkins' self-serving statements to Dr. Fleming
regarding the enormous quantity of alcohol he consumed each day, and the
results of it, were contradicted by the affidavits and evidentiary hearing
testimony on his behalf by nine family members and close friends, people
who had observed him closely at work and at home over the years. *fn7
Their sworn accounts provide a detailed description of
Tompkins' personality and behavior, and although there is
some reference in those accounts Tompkins' drinking, none of
them indicate that he had a serious substance abuse or alcohol problem, or
that he acted as though he did. Instead, with almost monotonous
consistency those who knew Tompkins best described him as an
industrious, dependable man, a good worker and provider who earned enough
money as a roofer to buy presents for others and to regularly send his
mother money. They tell how Tompkins was responsible about
all of his obligations, kind, considerate, and caring, and how he was a
stable influence on the children he was around. In short, the affidavit
and evidentiary hearing testimony of nine people close to
Tompkins indicate that he was anything but a hopeless
alcoholic or drug abuser, and foreclose any realistic possibility that he
suffered from a serious substance abuse problem. |
| [49] | The opinion of a medical expert that a defendant was intoxicated with
alcohol or drugs at the time of the capital offense is unreliable and of
little use as mitigating circumstances evidence when it is predicated
solely upon the defendant's own self-serving statements, *fn8
especially when other evidence is inconsistent with those statements. See
Duren v. Hopper, 161 F.3d 655, 662 (11th Cir.1998). A psychological
defense strategy at sentencing is unlikely to succeed where it is
inconsistent with the defendant's own behavior and conduct. See Weeks v.
Jones, 26 F.3d at 1042; Bush v. Singletary, 988 F.2d at 1093. Moreover,
even when there is a factual basis for it, a showing of alcohol and drug
abuse is a two-edged sword which can harm a capital defendant as easily as
it can help him at sentencing. See Waldrop v. Jones, 77 F.3d 1308, 1313
(11th Cir.1996). |
| [50] | The third category of mitigating circumstance evidence
Tompkins says that counsel should have presented at
sentencing is the testimony of Dr. Fleming. She submitted a report in
connection with the Rule 3.850 proceeding and testified at the evidentiary
hearing held during that proceeding. We have already discussed her
factually unsupported Conclusion that Tompkins had a serious
alcohol or other substance abuse problem. |
| [51] | Dr. Fleming also found that Tompkins was "in the
borderline of mental functioning," which is the terminology psychologists
apply to a person who is below average intelligence but not mentally
retarded. *fn9
According to the tests Dr. Fleming gave Tompkins, he had a
verbal IQ of 86, a performance IQ of 75, and a full scale IQ of 79. The
range for even mild mental retardation is an IQ of from 50-55 to
approximately 70. See American Psychiatric Ass'n, Diagnostic and
Statistical Manual of Mental Disorders 40 (4th ed.1994).
Tompkins' scores were well above that range, but Dr. Fleming
says the tests she gave him revealed signs of brain damage which "suggests
that he's significantly and seriously impaired in higher levels of brain
functioning," and "[h]e becomes confused easily." Dr. Fleming admitted
under cross-examination that a CAT scan is a better method for detecting
brain damage than the tests she used, but no CAT scan was given
Tompkins. She also said Tompkins had suffered
emotional deprivations because he was separated while growing up from his
natural parents, both of whom he loved very much. |
| [52] | Dr. Fleming insisted that Tompkins was not violent, but
was himself a victim. She clung to that opinion even though
Tompkins admitted to her that he had raped the two women in
Pasco County at knife point. Dr. Fleming refused to acknowledge that those
two crimes were actually violent, even though Tompkins told
her he had held the knife to one victim's neck. When asked on
cross-examination if she would not agree that a man who had stuck a knife
to a woman's neck and raped her is a violent individual, Dr. Fleming
paused for five seconds, and then would only say: "that was a violent act,
depending on how you define violence." Throughout her testimony she
adamantly refused to say that a man who would commit two rapes at knife
point was a violent man. Nor would she concede that Tompkins
would be especially dangerous if he was out on the street again. Asked if
Tompkins, who had admitted two rapes and had also been
convicted of sexual battery and murder of a fifteen-year old girl, could
be dangerous in the future, Dr. Fleming said: "He has that capacity, as
does everybody in this room." Dr. Fleming mischaracterized some of the
statements in the affidavits that had been presented on
Tompkins' behalf in a way that made them more supportive of
her opinions about him. *fn10 |
| [53] | Dr. Fleming also indicated in her report that she believed
Tompkins was innocent, stating: "Mr. Tompkins'
emphatic denial of involvement in the death is convincing." She claimed to
have read the trial record and even stated that the circumstances of Lisa
DeCarr's disappearance were sufficiently vague that there was some doubt
about whether she was even dead. Dr. Fleming's opinion that Lisa DeCarr
might not even be dead discredits her, because there was overwhelming
evidence that the skeletal remains found in the shallow grave beneath
Lisa' s house were those of Lisa. See pages 377 - 380,
infra. |
| [54] | There is no real possibility that a jury would have been swayed toward
a life sentence by anything she said. Dr. Fleming is palpably biased. She
accepted everything Tompkins told her as the gospel,
including the fact that the jury had wrongfully convicted him-a belief the
jury itself was unlikely to embrace. Her unwillingness to concede that the
kidnapings and rapes Tompkins admitted committing at knife
point are violent crimes shows the depth of her bias. Dr. Fleming saw
Tompkins, a man who had been convicted of a total of six
violent felonies involving sexual assaults on three different women as a
non-violent victim himself. She described him as a "perpetual victim." We
are confident the jury would have either totally rejected her testimony
and opinions or given them very little weight. |
| [55] | We have considered all of the mitigating circumstance evidence
Tompkins says should have been presented at the sentence
stage, along with that which actually was presented. *fn11
But weighing against it are multiple, strong aggravating circumstances.
The weight of those aggravating circumstances overwhelms the mitigating
circumstance evidence that was and could have been presented. We conclude
in this case, as the Supreme Court concluded in the Strickland case, that:
"Given the overwhelming aggravating factors, there is no reasonable
probability that the omitted evidence would have changed the Conclusion
that the aggravating circumstances outweighed the mitigating circumstances
and, hence, the sentence imposed." 466 U.S. at 700, 104 S.Ct. at
2071. |
| [56] | THE GIGLIO CLAIM |
| [57] | Tompkins contends that at his trial the State "allowed
the presentation of outright false testimony through the medical examiner
about identifying Lisa with dental records," in violation of Giglio v.
United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). In order
to prevail with a Giglio claim, a petitioner must establish that the
prosecutor "knowingly used perjured testimony, or failed to correct what
he subsequently learned was false testimony," and that the falsehood was
material. United States v. Alzate, 47 F.3d 1103, 1110 (11th Cir.1995). For
Giglio purposes, "the falsehood is deemed to be material 'if there is any
reasonable likelihood that the false testimony could have affected the
judgment of the jury.' " Id., (quoting United States v. Agurs, 427 U.S.
97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976)(emphasis
added)). |
| [58] | Tompkins has failed to establish his Giglio claim
concerning the medical examiner's testimony about whether dental records
were used to identify the skeleton as that of the victim. Putting aside
the absence of proof that the prosecution knew any more than defense
counsel about whether dental records were used to identify the remains,
Tompkins has failed to meet the threshold requirement that
he show false testimony was used. The context of the claim is that after
Tompkins was seen on March 24, 1983 struggling with Lisa
DeCarr on the sofa in her mother's house, where Tompkins
stayed, no body was found until June 5, 1984. On that date, after Lisa had
been missing for fourteen-and-a-half months, skeletal remains were found
under that same house. Notwithstanding overwhelming evidence that the
skeletal remains were those of Lisa DeCarr, the premise of
Tompkins' Giglio claim concerning the medical examiner's
testimony is that but for the false testimony about dental records there
could have been a reasonable doubt that the skeletal remains were those of
Lisa DeCarr. |
| [59] | The dental records testimony that Tompkins characterizes
as false was given by Dr. Diggs, the Associate Medical Examiner for
Hillsborough County. Dr. Diggs, a medical doctor and qualified
pathologist, went to the site of the shallow grave when it was discovered
on June 5, 1984, assisted in the removal of the skeletal remains, and
performed the autopsy. He was able to identify the remains as those of a
female in her midteens and Lisa DeCarr had been a fifteen-year old
female. |
| [60] | Dr. Diggs testified that the top front teeth in the skull had an
unusual formation: one tooth was recessed behind the other front teeth, an
anomaly which is called an occluded or impacted tooth. He described for
the jury the clothing found on the skeleton and the jewelry found with it.
Lisa DeCarr's mother testified that Lisa had just such an unusual occluded
tooth behind her front teeth, and she identified the jewelry found with
the skeleton as Lisa's. The skeleton was clothed in a pink robe, which a
witness testified Lisa had been wearing on the morning of March 24, 1983,
when she was struggling with Tompkins on the couch of the
house underneath which the skeletal remains were later found. Dr. Diggs
testified that the skeletal remains were of someone who had been dead for
not less than six or seven months and not more than two years. Lisa DeCarr
had been missing for between fourteen and fifteen months. Dr. Diggs filled
out and signed a death certificate indicating that the skeletal remains
were those of Lisa DeCarr. *fn12 |
| [61] | During cross-examination, the following exchange occurred between
defense counsel and Dr. Diggs: |
| [62] | Q. Doctor Diggs, you mentioned that you observed the teeth of the
deceased. |
| [63] | A. Yes. |
| [64] | Q. Were you ever provided with any dental records to compare, such as
the dental records of Lisa DeCarr to compare with the teeth that you were
actually observing? |
| [65] | A. We received-we received dental x-rays, yes, and this was-these
x-rays were-these x-rays were used in order to make an
identification. |
| [66] | Now, the identification generally is made by the dentist who is hired
by the office as a consultant, but the x-rays are taken to compare the
actual dental makeup of the mouth, and these comparisons are made to
identify the individual, yes. |
| [67] | Q. Do you have those x-rays with you? |
| [68] | A. [Displaying.] |
| [69] | Q. How did you observe or how did you obtain, excuse me, these
records? |
| [70] | A. Well, Doctor Powell is the individual who made these records and,
of course, I would have to defer to him as to how these were-as to how
these were made. All of this was done by him. |
| [71] | Q. Who is Doctor Powell? |
| [72] | A. Doctor Powell is the forensic odontologist for Hillsborough County.
He is basically responsible for making identifications of teeth of
individuals whom we-we would want a positive identification
on. |
| [73] | Q. Am I correct in saying that Doctor Powell was hired by your office
to take these x-rays? |
| [74] | A. No. He is actually hired by Hillsborough County. I don't know the
terms of the contract or anything to that extent, but he is the individual
who normally makes the determination of death and the identification of an
individual who is skeletalized or an individual who is burned badly and is
nonidentifiable. |
| [75] | There is a particular profession, a subspecialty of the dental
profession in itself in which I have no expertise. |
| [76] | Q. Doctor Diggs, were you ever provided with dental records of Lisa
DeCarr prior to your [sic] disappearing? |
| [77] | A. I was not, no. |
| [78] | The part of that testimony which Tompkins labels false
is the answer to the second question quoted above, the question about
whether Dr. Diggs had been provided with dental records of Lisa DeCarr to
compare to the teeth of the skeleton. |
| [79] | As the district court pointed out, the answer in question is at most
ambiguous, and any ambiguity was cleared up a few questions later. Dr.
Diggs displayed the dental x-rays he was talking about and said they had
been made by Dr. Powell, whom he identified as the county's forensic
odontologist, one whose job it is to help identify bodies through dental
evidence. The last question and answer quoted above shows that defense
counsel understood that Dr. Diggs was not saying that he had been provided
with "any dental records of Lisa DeCarr prior to your [sic] disappearing."
The reference to "your" is obviously a typographical error in the
manuscript or a slip of the tongue that everyone understood to be a
reference to Lisa DeCarr's disappearance, not to any disappearance of Dr.
Diggs. Whatever confusion may have been caused by his earlier answer, Dr.
Diggs cleared things up when he conceded that he had not been provided any
dental records of Lisa that had been made before she
disappeared. |
| [80] | Furthermore, after Dr. Diggs testified, Barbara DeCarr took the stand
and testified, among other things, that she had tried unsuccessfully to
locate pre-mortem dental records of her daughter, Lisa DeCarr. Neither
defense counsel nor the jury was or could have been misled by Dr. Diggs'
ambiguous testimony about the dental records. There was no false testimony
about the existence of pre-mortem dental x-rays or records. |
| [81] | Even if there had been false testimony on the subject, and even if the
State had known it was false, Tompkins' Giglio claim would
still fail on the materiality element, because he has not shown that the
testimony in question could have had an effect on the verdict. The
district court cogently summarized the overwhelming evidence that the
skeletal remains were those of Lisa DeCarr: |
| [82] | The State introduced Exhibit 10, a photograph of the skull that was
taken from the grave (R 149), for the purpose of showing a dental anomaly
of a tooth which had grown behind the subject's two front teeth in the
same manner as Lisa's. Using Exhibit 10, Dr. Diggs described this unusual
dental structure. (R 178) Subsequently, Barbara DeCarr testified that her
daughter had the identical dental anomaly as that described by Dr. Diggs.
(R 208) In addition, Stevens saw Petitioner, immediately prior to the time
of the disappearance, assaulting Lisa. The body was found in a shallow
grave beneath the house where she was assaulted and where she resided with
her mother, her siblings, and Petitioner. Her remains were identified in
several ways: the unusual dental feature; the remains being wrapped in
Lisa's robe; and Lisa's earrings and ring given to her by her boyfriend
being found adjacent to the skeletal remains in a position indicating that
they had been worn by the victim. Coupled with the unsolicited confession
Petitioner gave to Kenneth Turco, even if the medical examiner had given
misleading testimony regarding identification of Lisa's body, there is no
reasonable likelihood that such testimony could have affected the judgment
of the jury. |
| [83] | In a footnote to that summary, the district court pointed out that the
death certificate identifying the skeletal remains as Lisa DeCarr came
into evidence without objection. |
| [84] | We add to the district court's summary the additional facts that the
skeletal remains were those of a female in her midteens, and there is no
other evidence that any other female in her midteens was missing in the
area. Nor has Tompkins offered any explanation for how
anyone else came to be buried-with Lisa's jewelry-under the house he
shared with her, the same house in which he had been seen struggling with
her as she wore a pink robe, the very same pink robe found on the
skeleton. *fn13
There is simply no doubt that it was Lisa DeCarr whose skeletal remains
were found in that shallow grave. With all due respect to the advocacy
obligations of Tompkins' present counsel, their argument in
brief that "there was very little evidence of the identity of the
deceased" is preposterous. *fn14 |
| [85] | CONCLUSION |
| [86] | The district court's denial of Tompkins' amended
petition for a writ of habeas corpus is AFFIRMED. |
|
| |
| Opinion Footnotes | |
|
| |
| [87] | *fn1
To say that we will review all of the issues Tompkins has
raised in his brief is not to say that we will write to each one. All of
them were discussed at some length by the district court, except
Tompkins' contention that the district court should have
ordered the grand jury proceedings transcribed, and we find no abuse of
discretion in its declining to do so. The issues we do not write more
about merit no further Discussion here beyond the statement that we agree
with the district court that the claims to which those issues are
connected do not provide a basis for federal habeas relief in this case.
The issues on which we affirm the district court without further
elaboration are those involving the following claims: denial of right to
present defense and confront witnesses; Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963), violation; ineffective assistance of
appellate counsel; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199,
12 L.Ed.2d 246 (1964), violation; unreliable in-court identification;
misinformed jury and Judge; improper influences on the jury; improper
argument and instruction error at the sentencing stage; and failure of the
district court to order the grand jury proceedings
transcribed. |
| [88] | *fn2
We realize that as time goes on issues concerning certificates of probable
cause to appeal will fade away, because there will be fewer and fewer
appeals in which the habeas petition was filed before AEDPA's April 24,
1996 effective date. But there are now, and there will be arising on
appeal in the near future, some more certificate of probable cause cases.
We speak on the subject today for the benefit of the attorneys in those
remaining cases, whatever their diminishing numbers may be. |
| [89] | *fn3
Tompkins makes essentially the same argument about several
other pieces of evidence he contends trial counsel should have gotten in
at the guilt stage. As to each and all of that evidence, it was either not
admissible under any valid theory, or there is no reasonable probability
of a different result had it been admitted, or both. |
| [90] | *fn4
The district court observed that "the finding of mitigation because of his
age would seem extraordinarily generous." |
| [91] | *fn5
According to an affidavit from Tompkins' brother-in-law,
Tompkins lived in the foster home from age 9 to age 16. Dr.
Fleming's report said he lived there from age 7 to 16. Although
Tompkins' mother was far from an ideal parent, there is no
suggestion she or his father ever physically abused him.
Tompkins had good feelings towards both of them, and the
only physical abuse he reportedly suffered was at the hands of Mr.
Calhoun, the foster father. |
| [92] | *fn6
There is no evidence in the record that Tompkins ever said
that Mr. Calhoun, the foster father, or anyone else, had actually sexually
abused him. Two people did say Tompkins told them that
Calhoun had unsuccessfully attempted to do so, and another person said
that Tompkins had told her his foster brother had attempted
to do so, also. See also n. 10, infra. |
| [93] | *fn7
Nine family members and friends signed affidavits on
Tompkins' behalf, and five of those affiants also testified
as witnesses for him at the Rule 3.850 hearing. |
| [94] | *fn8
Tompkins did not tell Dr. Fleming, or anyone else, that he
was under the influence of drugs or alcohol at the time he murdered Lisa
DeCarr. Instead, he adamantly insisted that he was completely innocent.
Tompkins did tell Dr. Fleming, however, that he had a long
standing problem with alcohol and that "prior to his arrest"-which was
eighteen months after the crime-he was drinking a huge quantity of alcohol
each day. |
| [95] | *fn9
Dr. Fleming used the term "borderline of mental functioning," which she
did not differentiate from "borderline intellectual functioning." The
latter term is generally defined as describing someone with an IQ from
71-84. See American Psychiatric Ass'n, Diagnostic and Statistical Manual
of Mental Disorders 45 (4th ed.1994). |
| [96] | *fn10
For example, Dr. Fleming's report categorically states: "Jerry Behringer,
Wayne's brother-in-law, also reported in an affidavit that Wayne had told
him of sexual molestation by Mr. Calhoun." Mr. Calhoun was the father in
the foster family with whom Tompkins had lived for a number
of years. Although Behringer's affidavit says Tompkins had
told him that Mr. Calhoun had beaten him, it does not say
Tompkins told Behringer that Calhoun had sexually assaulted
him, only that Behringer had gotten that impression. None of the
affidavits says Tompkins reported that Calhoun or anyone
else had sexually assaulted him, and Tompkins apparently
never told Dr. Fleming that, either. |
| [97] | *fn11
Among the other mitigating circumstance evidence Tompkins
says should have been offered is the following: while a child he had to
have his stomach pumped after he accidentally drank bleach and gasoline,
respectively, on two separate occasions; he choked on a marble once and
turned blue before it was dislodged; when seventeen-years old he was
struck by lightening while using the telephone; and, he fell off of roofs
four time during his career as a roofer. Dr. Fleming considered those
events as corroborating her diagnosis of brain damage. |
| [98] | *fn12
Dr. Diggs also testified that he found a ligature which had been tightly
tied around the neck, and that in his opinion death had been caused by
strangulation and had not been instantaneous. |
| [99] | *fn13
Lisa's mother was able to identify the pink robe found on the skeleton as
Lisa's, because of the rose design or imprint it had on the
collar. |
| [100] | *fn14
Tompkins also contends that Giglio errors were committed in
connection with witnesses Stevens and Turco. We agree with the district
court that those contentions are palpably without merit, and we do not
believe they need any more Discussion than that given them by the district
court. |