1

_____________________________/

COMES NOW, Respondent, JAMES V. CROSBY, JR., by and through

the undersigned Assistant Attorney General, and hereby responds

to the Petition for Writ of Habeas Corpus filed in the abovestyled

case. Respondent respectfully submits that the petition

should be denied, and states as grounds therefor:

As the Court is probably cognizant, Tompkins has had an

extended appellate history. This Court affirmed the judgment

and sentence of death imposed in its decision of December 30,

1986, rehearing denied March 9, 1987. Tompkins v. State, 502

So. 2d 415 (Fla. 1986). The United States Supreme Court denied

certiorari review on June 26, 1987. Tompkins v. Florida, 483

2

U.S. 1033, 97 L.Ed.2d 781 (1987). On this latter date the

direct appeal became final for purposes of any retroactivity

analysis under Teague v. Lane, 489 U.S. 288 (1989) and its

progeny.

Thereafter, Tompkins sought and was denied collateral relief

via Rule 3.850 motion and appeal and habeas corpus petition to

this Court. Tompkins v. Dugger, 549 So. 2d 1370 (Fla. 1989),

cert. den., 493 U.S. 1093, 107 L.Ed.2d 1073 (1990). Tompkins

sought federal habeas relief which was denied. Tompkins v.

Moore, 193 F.3d 1327 (11th Cir. 1999), reh. en banc den., 207

F.3d 666 (11th Cir. 2000), cert. den., 531 U.S. 861 (2000), reh.

den., 531 U.S. 1030 (2000).

More recently, this Court affirmed the trial court’s denial

of some claims in a successive postconviction motion and

reversed the trial court’s order granting sentencing relief,

Tompkins v. State, --- So. 2d ---, 28 Fla. L. Weekly S767 (Fla.

October 9, 2003) and issued a revised opinion on April 22, 2004,

Tompkins v. State, --- So. 2d ---, 29 Fla. L. Weekly S--- (Fla.

SC01-1619).

Tompkins’ claim for relief pursuant to Ring v. Arizona,

procedurally barred for the failure to timely present the claim

in earlier proceedings including direct appeal and the prior

motions for postconviction relief; (2) Ring is not retroactive

3

to cases that became final in 1987; (3) Ring is inapplicable

since in Florida death is the maximum penalty for first degree

murder; (4) relief is unavailable under Ring since the unanimous

death recommendation is supported by the aggravating factors of

previous violent felony convictions and homicide committed while

defendant was engaged in an attempt to commit sexual battery,

which satisfies the exemption of Apprendi v. New Jersey, 530

U.S. 466 (2000).

Petitioner did not present his current Ring contention

previously on direct appeal or the prior rounds of collateral

litigation, and the claim should be deemed procedurally barred.

See McGregor v. State, 789 So. 2d 976 (Fla. 2001)(Apprendi claim

procedurally barred for failure to raise in trial court); Barnes

v. State, 794 So. 2d 590 (Fla. 2001)(Apprendi error not

preserved for appellate review).

While petitioner might contend that Ring v. Arizona had not

been decided at the time of trial, that fact does not suffice to

avoid the procedural default. What is important is not the

existence of a particular decision but whether the tools were

available to construct the argument. Engle v. Isaac, 456 U.S.

107, 133 (1982); Pitts v. Cook, 923 F.2d 1568, 1571-1572 (11th

Cir. 1991). The Sixth Amendment right to jury trial has always

been known and the tools have been available for the defense to

4

construct the argument. See Proffitt v. Florida, 428 U.S. 242,

252 (1976)(holding Constitution does not require jury

sentencing); Hildwin v. Florida, 490 U.S. 638 (1989)("This case

presents us once again with the question whether the Sixth

Amendment requires a jury to specify the aggravating factors

that permit the imposition of capital punishment in Florida.");

Spaziano v. Florida, 468 U.S. 447 (1984). See also Turner v.

Crosby, 339 F.3d 1247, 1281-82 (11th Cir. 2003)("Indeed, despite

their apparent futility, there have been numerous unsuccessful

Sixth Amendment challenges to Florida’s capital sentencing

structure in the last twenty years." citing Hildwin v. State,

531 So. 2d 124, 129 (Fla. 1988); Spaziano v. State, 433 So. 2d

508, 511 (Fla. 1983); and Barclay v. Florida, 463 U.S. 939

(1983)). Obviously, the decision in Ring was not required as a

predicate for counsel for Ring to assert his Sixth Amendment

claim in a timely and appropriate fashion in the Arizona trial

court.

Tompkins’ Ring claim is barred for yet another reason.

Tompkins may not permissibly present his Ring claim now to the

circuit court pursuant to Rule 3.851 because subsection (d)(1)

provides a one-year time limitation to present the claim and

under (d)(2)(B) Tompkins would have to allege that the

fundamental constitutional right asserted was not established

within the period provided for in subdivision (d)(1) "and has

5

been held to apply retroactively." See also Adams v. State, 543

So. 2d 1244, 1247 (Fla. 1989); Mills v. State, 684 So. 2d 801,

804-805 (Fla. 1996) ("...Mills must show in his motion for

relief both that this evidence could not have been discovered

with the exercise of reasonable diligence and that the motion

was filed within one year of the discovery of evidence upon

which avoidance of the time limit was based."). Ring has not

can be presented in a Rule 3.851 motion, Tompkins had at most

one year after June 24, 2002 -- the day the Ring decision issued

-- to present his claim. It is now almost ten months after that

deadline has passed.

This Court has repeatedly recognized that a petitioner may

not use the habeas corpus vehicle as a substitute for the

postconviction Rule 3.850 or 3.851. See Randolph v. State, 853

So. 2d 1051 (Fla. 2003)("Thus, to the extent Randolph is

attempting to use this habeas petition as a substitute or an

additional appeal of his postconviction motion, Randolph’s claim

is denied."); Hardwick v. Dugger, 648 So. 2d 100, 105 (Fla.

1994)("habeas corpus petitions are not to be used for additional

appeals on questions which could have been, should have been, or

were raised on appeal or in a rule 3.850 motion, or on matters

that were not objected to at trial."); Parker v. Dugger, 550 So.

2d 459 (Fla. 1989). Since Tompkins may not permissibly urge a

6

Ring claim post conviction in the lower court due to the time

limitation requirement, this Court should also determine that

the improper attempt to do so via habeas petition in this Court

is also procedurally barred.

7

In Teague v. Lane, 489 U.S. 288 (1989), the United States

Supreme Court announced that new constitutional rules of

criminal procedure will not be applicable to cases which have

become final before the new rules are announced, unless they

fall within an exception to the general rule. 489 U.S. at 310.

A case announces a new rule when it breaks new ground or imposes

a new obligation on the state or the federal government. To put

it differently, a case announces a new rule if the result was

conviction became final. Id. at 301. A case is final when the

judgment of conviction has been rendered, the availability of

appeal exhausted and the time for petition for certiorari has

elapsed. Tompkins’ case became final with this Court’s

affirmance of the judgment and sentence on direct appeal and the

denial of certiorari on June 26, 1987. Tompkins v. State, 502

So. 2d 415 (Fla. 1986), cert. den., 483 U.S. 1033 (1987). The

Teague Court announced two exceptions to the general rule on

non-retroactivity. First, a new rule should be applied

retroactively if it places a certain kind of primary, private

individual conduct beyond the power of the criminal law-making

authority to proscribe. Id. at 311. The second exception,

derived from an earlier view by Justice Harlan, requires that

could not receive the benefit of Batson v. Kentucky, 476 U.S.

79 (1986), decided subsequently to petitioner’s conviction

since the absence of a fair cross section on the jury venire

does not undermine the fundamental fairness that must underlie

a conviction or seriously diminish the likelihood of obtaining

an accurate conviction. The rule requiring petit juries be

composed of a fair cross section of the community was not a

bedrock procedural element. Id. at 315.

8

of a particular conviction." Thus, this exception is limited in

scope to "those new procedures without which the likelihood of

an accurate conviction is seriously diminished." 489 U.S. at

this standard. In Sawyer v. Smith, 497 U.S. 227 (1990), the

Court rejected a defense argument that the second Teague

exception should be read only to include new rules of capital

sentencing that "preserve the accuracy and fairness of capital

sentencing judgments":

It is thus not enough under Teague to say

that a new rule is aimed at improving the

accuracy of trial. More is required. A

rule that qualifies under this exception

must not only improve accuracy, but also

fairness of a proceeding. (497 U.S. at

242.)

The Sawyer Court echoed Teague that the second exception is

directed only at new rules essential to the accuracy and

fairness of the trial and it is "unlikely that many such

components of basic due process have yet to emerge. 489 U.S. at

9

313." 497 U.S. at 243. Consequently, the petitioner was not

entitled to habeas relief by reliance on Caldwell v.

Mississippi, 472 U.S. 320 (1985), decided subsequently to when

his murder conviction became final. While Caldwell announced a

new rule, it did not come within the Teague exception for

"watershed rules fundamental to the integrity of the criminal

proceeding." 497 U.S. at 229. In Graham v. Collins, 506 U.S.

461 (1993), the Court held that a claim that the Texas capital

sentencing procedures barred the jury from giving effect to

particular mitigating evidence was held to propose a new rule.

Prior case law did not "dictate" the result requested. The new

rule sought by Graham did not decriminalize a class of conduct

nor did Graham’s special jury instructions concerning his

mitigating evidence of youth, family background and positive

character traits seriously diminish the likelihood of obtaining

an accurate determination in his sentencing proceeding. 506

U.S. at 477-478.

In Tyler v. Cain, 533 U.S. 656, 150 L.Ed.2d 632 (2001), a

petitioner argued in a second federal habeas petition that he

was entitled to the retroactive benefit of the jury instruction

rule in Cage v. Louisiana, 498 U.S. 39 (1990), that a jury

instruction is unconstitutional if there is a reasonable

likelihood that the jury understood the instruction to allow

conviction without proof beyond a reasonable doubt. The Court

10

denied relief noting that it had not made Cage retroactive.

Moreover, in footnote 7 of the opinion, the Court explained that

the second Teague exception is available only if the new rule

"alters our understanding of the bedrock procedural elements"

essential to the fairness of a proceeding. Even classifying an

error as structural does not necessarily alter our understanding

of these bedrock procedural elements. Nor can it be said that

all new rules relating to due process alter such understanding.

The second Teague exception is reserved only for truly

"watershed" rules, a small core of rules which not only

seriously enhance accuracy but also require observance of those

procedures that are implicit in the concept of ordered liberty.

See also Butler v. McKellar, 494 U.S. 407 (1990)(rejecting

collateral attack under the Teague retroactivity standard and

holding that Arizona v. Roberson, 486 U.S. 675 (1988) announced

a new rule even though the Court had said Roberson was directly

controlled by Edwards v. Arizona, 451 U.S. 477 (1981)):

But the fact that a court says that its

decision is within the "logical compass" of

an earlier decision, or indeed that it is

"controlled" by a prior decision, is not

conclusive for purposes of deciding whether

the current decision is a "new rule" under

Teague. Courts frequently view their

decisions as being "controlled" or

"governed" by prior opinions even when aware

of reasonable contrary conclusions reached

by other courts. . . That the outcome in

Roberson was susceptible to debate among

reasonable minds is evidenced further by the

differing positions taken by the judges of

11

the Courts of Appeals for the Fourth and

Seventh Circuits noted previously. It would

not have been an illogical or even a

grudging application of Edwards to decide

that it did not extend to the facts of

Roberson. (Id. at 415.)

Saffle v. Parks, 494 U.S. 484 (1990)(rejecting defense claim

that rule should be announced as to how the jury must consider

the mitigating evidence and even if declared such a new rule

would not be a watershed rule of criminal procedure implicating

the fundamental fairness and accuracy of the criminal

proceeding); Lambrix v. Singletary, 520 U.S. 518, 539-40

(1997)(holding that Espinosa v. Florida, 505 U.S. 1079 (1992)

announced a new rule under Teague but that neither of the two

exceptions were applicable: neither a class of private conduct

was placed beyond the power of the state to proscribe nor was it

a watershed rule implicating the fundamental fairness and

accuracy of the criminal proceeding).

Ring arises from application of Apprendi v. New Jersey, 530

U.S. 466 (2000) to Arizona’s capital scheme. Every federal

circuit court to address the issue has found that Apprendi is

not retroactive. E.g., United States v. Sanders, 247 F.3d 139,

146-51 (4th Cir. 2001)(finding that Apprendi’s requirements of

jury finding beyond a reasonable doubt of fact that increases

statutory maximum for an offense "are not the types of watershed

rules implicating fundamental fairness that require retroactive

application."); United States v. Brown, 305 F.3d 304 (5th Cir.

12

2002); Goode v. United States, 305 F.3d 378 (6th Cir. 2002)

("Apprendi does not create a new ‘watershed rule.’"); Curtis v.

United States, 294 F.3d 841 (7th Cir. 2002); United States v.

Moss, 252 F.3d 993, 996-1001 (8th Cir. 2001)("Apprendi is not of

watershed magnitude."); United States v. Sanchez-Cervantes, 282

F.3d 664 (9th Cir. 2002); United States v. Mora, 293 F.3d 1213

(10th Cir. 2002); McCoy v. United States, 266 F.3d 1245 (11th

Cir. 2001); Coleman v. United States, 329 F.3d 77 (2d Cir.

2003); Sepulveda v. United States, 330 F.3d 55 (1st Cir. 2003).

Several state courts have similarly held that Apprendi (and

therefore Ring) does not apply retroactively. E.g., Sanders v.

State, 815 So. 2d 590 (Ala. Crim. App. 2001); Whisler v. State,

36 P.3d 290 (Kan. 2001); State v. Sprick, 59 S.W.3d 515 (Mo.

2001); State v. Tallard, 816 A.2d 977 (NH 2003)(applying Teague

test to deny Apprendi claim collaterally in New Hampshire);

People v. DeLaPaz, 791 N.E.2d 489 (Ill. 2003). In fact, the

United States Supreme Court is clearly not of the opinion that

its holding in Apprendi is retroactive. It has itself

procedurally barred an Apprendi claim. See United States v.

Cotton, 535 U.S. 625 (2002)(finding that Apprendi error did not

qualify as plain error, the federal equivalent of fundamental

error). See also In Re Johnson, 334 F.3d 403 n.1 (5th Cir.

2003)(noting that while the Court need not reach the issue,

"since the rule in Ring is essentially an application of

13

Apprendi, logical consistency suggests that the rule announced

in Ring is not retroactively available"); Moore v. Kinney, 320

F.3d 767, 771 n.3 (8th Cir. 2003)("Absent an express

pronouncement on retroactivity from the Supreme Court, the rule

from Ring is not retroactive"); Turner v. Crosby, 339 F.3d 1247,

1282 (11th Cir. 2003)(Turner is procedurally barred from bring

a Ring claim . . . and alternatively, Ring does not apply

retroactively to Turner); Colwell v. State, 59 P.3d 463 (Nev.

2002)(retroactive application of Ring on collateral review is

not warranted); State v. Towery, 64 P.3d 828 (Ariz. 2003)(Ring

does not apply retroactively); Cannon v. Mullin, 297 F.3d 989

(10th Cir. 2002)(Cannon has failed to make a prima facie showing

that the Supreme Court has made Ring retroactively applicable to

cases on collateral review); Sibley v. Culliver, 243 F.Supp.2d

1278 (U.S.D.C., M.D. Ala., N.D. 2003)("...the Court concludes

that Ring may not be applied retroactively to Sibley’s case

which is on collateral review"); State v. Lotter, 664 N.W.2d 892

(Neb. 2003)(holding that Ring announced a new rule of criminal

procedure which does not fall within either Teague exception to

rule of nonretroactivity, and thus denying relief on collateral

challenge to conviction); contra, State v. Whitfield, 107 S.W.3d

253 (Mo. 2003); Summerlin v. Stewart, 341 F.3d 1082 (9th Cir.

2003).

14

The constitutionality of judge-imposed death

sentences was accepted in state and federal

courts. Thus, under Teague, because Ring’s

new rule had not been announced at the time

Turner’s convictions and sentences became

final, Ring does not apply retroactively to

his § 2254 petition unless it meets one of

the two narrow exceptions in Teague. (339

F.3d at 1285)

The Court further explained that the first exception was

inapplicable since it did not decriminalize any class of conduct

or prohibit a certain category of punishment for a class of

defendants. Additionally,

To fall under this second Teague

exception, a new rule "must meet two

requirements: Infringement of the rule must

seriously diminish the likelihood of

obtaining an accurate conviction, and the

rule must alter our understanding of the

fairness of a proceeding." Tyler v. Cain,

533 U.S. 656, 665, 121 S.Ct. 2478, 2484, 150

L.Ed.2d 632 (2001) (quotation marks and

Swindall, 107 F.3d 831, 835 (11th Cir. 1997)

(noting that a new rule must "not only

improve accuracy [of trial], but also alter

proceeding" to meet Teague’s second

exception) (quotation marks and citation

omitted). The United States Supreme Court

repeatedly has emphasized the narrowness of

Teague’s second exception. Sawyer v. Smith,

497 U.S. 227, 243, 110 S.Ct. 2822, 2832, 111

L.Ed.2d 193 (1990) ("[I]t is ‘unlikely that

many such components of basic due process

have yet to emerge.’") (quoting Teague, 489

McCoy, 266 F.3d at 1257 (stating that the

"Supreme Court has underscored the

narrowness of this second [Teague]

exception"); Spaziano v. Singletary, 36 F.3d

15

1028, 1042-43 (11th Cir. 1994) (stating that

a new rule fitting the second exception

"must be so fundamentally important that its

announcement is a ‘groundbreaking

occurrence’") (citation omitted).

We conclude that Ring, like Apprendi,

"is not sufficiently fundamental to fall

within Teague’s second exception." McCoy,

266 F.3d at 1257 (listing other circuits

concluding Apprendi does not fall under

Teague’s second exception); Towery, 64 P.3d

at 835 (concluding that Ring is not a

watershed rule that implicates the

fundamental fairness of the trial and that

Ring "does not meet either of the

exceptions" in Teague); Colwell, 59 P.3d at

473 (concluding "the likelihood of an

accurate sentence was not seriously

diminished simply because a three-judge

panel, rather than a jury, found the

aggravating circumstances that supported

sentencing procedure does not diminish the

likelihood of a fair sentencing hearing;

instead, Ring’s new rule, at most, would

shift the fact-finding duties during

Turner’s penalty phase from (a) an impartial

judge after an advisory verdict by a jury to

on the Sixth Amendment right to a jury trial

and not on a perceived, much less

documented, need to enhance accuracy or

fairness of the fact-finding in a capital

sentencing context. Ring simply does not

fall within the ambit of the second Teague

exception.

Accordingly, the new constitutional rule

announced by the United States Supreme Court

in Ring does not fall within either

exception to Teague’s non-retroactivity

standard. Therefore, Ring, like Apprendi,

does not apply retroactively on collateral

review in federal court in Turner’s case

because his convictions and sentences became

final before the Supreme Court announced

Ring. Thus, Turner cannot collaterally

16

challenge his convictions and sentences on

(footnotes omitted)(Id. at 1285-86)

Petitioner cannot prevail on his claim for entitlement to

relief by retroactive application of Ring in this postconviction

challenge. Ring announced a change in procedural law. In

Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court held that

a fact, other than a prior conviction, that increases the

statutory maximum for a crime must be presented to the jury and

proven beyond a reasonable doubt. Ring applied Apprendi to

Arizona’s sentencing scheme. As explained below, the maximum

sentence for first degree murder is death in Florida, unlike the

situation in Arizona. In any event, Ring only involves a

procedural question -- who decides a given question, the judge

or jury. The courts have recognized that jury involvement in

capital sentencing does not enhance accuracy. Not only is the

requirement of improving the accuracy of a trial unsatisfied by

application of Ring to the instant case, but also it is not a

bedrock procedural element essential to the fairness of a

proceeding, i.e., one that is implicit in the concept of ordered

Teague is inapplicable since prosecution for first degree murder

is not proscribed due to primary, private, individual conduct

beyond the power of the criminal law-making authority to

17

proscribe.

Similarly, Tompkins cannot prevail under this Court’s

standard of retroactivity under the principles of Witt v. State,

387 So. 2d 922 (Fla. 1980), which requires a decision of

fundamental significance which so drastically alters the

underpinnings of Tompkins’ death sentence that "obvious

injustice" exists. See New v. State, 807 So. 2d 52 (Fla. 2001);

Ferguson v. State, 789 So. 2d 306, 311 (Fla. 2001)(The Court

must consider three factors: the purpose served by the new case,

the extent of reliance on the old law; and the effect on the

administration of justice from retroactive application).

Petitioner cannot show that adoption of Ring satisfies these

criteria.

In Florida, unlike Arizona, the maximum sentence for first

degree murder in Florida is death. See Mills v. Moore, 786 So.

2d 532, 538 (Fla. 2001) ("Mills argues that the statute allowing

the judge to override the jury’s recommendation makes it clear

that the maximum possible penalty is life imprisonment unless

and until the judge holds a separate hearing and finds that the

defendant is death eligible. . . . The maximum possible penalty

described in the capital sentencing scheme is clearly

death.")(emphasis supplied); Mann v. Moore, 794 So. 2d 595, 599

(Fla. 2001)(same); Porter v. Crosby, 840 So. 2d 981, 986 (Fla.

18

2003)("Contrary to Porter’s claims, we have repeatedly held that

the maximum penalty under the statute is death and have rejected

the other Apprendi arguments."); Shere v. Moore, 830 So. 2d 56,

62 (Fla. 2002)("This Court has defined a capital felony to be

one where the maximum possible punishment is death. [citation

omitted] The only such crime in the State of Florida is

first-degree murder, premeditated or felony.")

Since this Court decided Bottoson v. Moore, 833 So. 2d 693

(Fla. 2002), and King v. Moore, 831 So. 2d 143 (Fla. 2002), it

has repeatedly and consistently denied relief requested under

Ring, both on direct review cases and on collateral challenges.

See, e.g., Marquard v. State/Moore, 850 So. 2d 417, 431 n.12

(Fla. 2002); Chavez v. State, 832 So. 2d 730, 767 (Fla. 2002);

Bruno v. Moore, 838 So. 2d 485 (Fla. 2002); Fotopoulos v. State,

838 So. 2d 1122 (Fla. 2002); Lucas v. State/Moore, 841 So. 2d

380 (Fla. 2003); Porter v. Crosby, 840 So. 2d 981 (Fla. 2003);

Spencer v. State, 842 So. 2d 52 (Fla. 2003); Conahan v. State,

844 So. 2d 629 (Fla. 2003); Anderson v. State, 841 So. 2d 390

(Fla. 2003); Cole v. State, 841 So. 2d 409 (Fla. 2003); Doorbal

v. State, 837 So. 2d 940 (Fla. 2003); Kormondy v. State, 845 So.

2d 41 (Fla. 2003)("Ring does not require either notice of the

aggravating factors that the State will present at sentencing or

a special verdict form indicating the aggravating factors found

by the jury."); R. S. Jones v. State/Crosby, 845 So. 2d 55 (Fla.

19

2003); Lugo v. State, 845 So. 2d 74 (Fla. 2003); Lawrence v.

State, 846 So. 2d 440 (Fla. 2003); Banks v. State/Crosby, 842

So. 2d 788 (Fla. 2003); Grim v. State, 841 So. 2d 455 (Fla.

2003); Butler v. State, 842 So. 2d 817 (Fla. 2003)(relying on

Bottoson v. Moore, 833 So. 2d 693 and King v. Moore, 831 So. 2d

143 to a Ring claim in a single aggravator (HAC) case); Chandler

v. State, 848 So. 2d 1031, 1034 n.4 (Fla. 2003); Pace v.

State/Crosby, 854 So. 2d 167 (Fla. 2003); Cooper v.

State/Crosby, 856 So. 2d 969 (Fla. 2003); Duest v. State, 855

So. 2d 33 (Fla. 2003); Blackwelder v. State, 851 So. 2d 650

(Fla. 2003); Wright v. State/Crosby, 857 So. 2d 861 (Fla. 2003).

See also Nelson v. State, 850 So. 2d 514 (Fla. 2003); Caballero

v. State, 851 So. 2d 655 (Fla. 2003); Belcher v. State, 851 So.

2d 678 (Fla. 2003); Allen v. State/Crosby, 854 So. 2d 1255 (Fla.

2003); Fennie v. State/Crosby, 855 So. 2d 597 n.10 (Fla. 2003);

Owen v. Crosby/State, 854 So. 2d 182 (Fla. 2003); McCoy v.

State, 853 So. 2d 396 (Fla. 2003); Conde v. State, 860 So. 2d

930 (Fla. 2003); Stewart v. State, --- So. 2d ---, 28 Fla. L.

Weekly S700 (Fla., Sept. 11, 2003); Jones v. State/Crosby, 855

So. 2d 611 (Fla. 2003); Rivera v. State/Crosby, 859 So. 2d 495

(Fla. 2003); Davis v. State, 859 So. 2d 465 (Fla. 2003);

Anderson v. State, 863 So. 2d 169 (Fla. 2003); Henry v. State,

862 So. 2d 679 (Fla. 2003); Cummings-El v. State, 863 So. 2d 246

(Fla. 2003); Johnston v. State, 863 So. 2d 271, 286 (Fla. 2003);

20

Owen v. State, 862 So. 2d 687, 703-704 (Fla. 2003); Zakrzewski

v. State, 866 So. 2d 688 (Fla. 2003); Guzman v. State, --- So.

2d ---, 28 Fla. L. Weekly S829 (Fla., Nov. 20, 2003); E. W.

Davis v. State, --- So. 2d ---, 28 Fla. L. Weekly S835 (Fla.,

Nov. 20, 2003); Globe v. State, --- So. 2d ---, 29 Fla. L.

Weekly S119 (Fla., March 18, 2004).

Ring relief is unavailable since the unanimous jury death

recommendation satisfies the Apprendi exception with the

presence of the prior violent felony convictions and the instant

jury was aware of Tompkins committing the instant homicide in

the attempt to commit a sexual battery.

The United States Supreme Court made it abundantly clear

that Ring was asserting a very limited claim. The Court stated,

536 U.S. 584, at 597 n.4:

n4 Ring’s claim is tightly delineated: He

contends only that the Sixth Amendment

required jury findings on the aggravating

circumstances asserted against him. No

aggravating circumstance related to past

convictions in his case; Ring therefore does

not challenge Almendarez-Torres v. United

States, 523 U.S. 224, 140 L. Ed. 2d 350, 118

S. Ct. 1219 (1998), which held that the fact

of prior conviction may be found by the

judge even if it increases the statutory

maximum sentence. He makes no Sixth

Amendment claim with respect to mitigating

circumstances. See Apprendi v. New Jersey,

530 U.S. 466, 490-491, n. 16, 147 L. Ed. 2d

435, 120 S. Ct. 2348 (2000) (noting "the

21

distinction the Court has often recognized

between facts in aggravation of punishment

and facts in mitigation" (citation

omitted)). Nor does he argue that the Sixth

Amendment required the jury to make the

ultimate determination whether to impose the

death penalty. See Proffitt v. Florida, 428

U.S. 242, 252, 49 L. Ed. 2d 913, 96 S. Ct.

2960 (1976) (plurality opinion) ("It has

never [been] suggested that jury sentencing

is constitutionally required."). He does

not question the Arizona Supreme Court’s

authority to reweigh the aggravating and

mitigating circumstances after that court

struck one aggravator. See Clemons v.

Mississippi, 494 U.S. 738, 745, 108 L. Ed.

2d 725, 110 S. Ct. 1441 (1990). Finally,

Ring does not contend that his indictment

was constitutionally defective. See

Apprendi, 530 U.S. at 477, n. 3 (Fourteenth

Amendment "has not . . . been construed to

include the Fifth Amendment right to

‘presentment or indictment of a Grand

Jury’").

The Court concluded that "Because Arizona’s enumerated

aggravating factors operate as ‘the functional equivalent of an

element of a greater offense,’ Apprendi, 530 U.S. at 494, n. 19,

the Sixth Amendment requires that they be found by a jury." 536

U.S. at 609.

Concurring Justice Scalia explained that:

. . . the unfortunate fact is that today’s

judgment has nothing to do with jury

sentencing. What today’s decision says is

that the jury must find the existence of the

Those States that leave the ultimate

life-or-death decision to the judge may

continue to do so -- by requiring a prior

jury finding of aggravating factor in the

sentencing phase or, more simply, by placing

the aggravating-factor determination (where

22

it logically belongs anyway) in the guilt

phase. (emphasis

supplied)

This Court has acknowledged that the presence of the prior

violent felony conviction aggravator or the contemporaneous

conviction of a felony during the course of the murder which is

used as an aggravator suffices to render the defendant death

eligible and exempt from the rigid rule of Ring/Apprendi. See,

generally Doorbal v. State, 837 So. 2d 940, 963 (Fla. 2003);

Lugo v. State, 845 So. 2d 74, 119, n.79 (Fla. 2003); Duest v.

State, 855 So. 2d 33 (Fla. 2003); Blackwelder v. State, 851 So.

2d 650 (Fla. 2003); Henry v. State, 862 So. 2d 679, 687 (Fla.

2003); Owen v. State, 862 So. 2d 687, 703-704 (Fla. 2003);

Rivera v. State, 859 So. 2d 495 (Fla. 2003); Jones v.

State/Crosby, 855 So. 2d 611 (Fla. 2003); Fennie v. State, 855

So. 2d 597, n.10 (Fla. 2003); Owen v. Crosby, 854 So. 2d 182

(Fla. 2003); McCoy v. State, 853 So. 2d 396, 409 (Fla. 2003);

Johnston v. State, 863 So. 2d 271, 286 (Fla. 2003); Anderson v.

State, 863 So. 2d 169 (Fla. 2003); Zakrzewski v. State, 866 So.

2d 688 (Fla. 2003); Davis v. State, --- So. 2d ---, 28 Fla. L.

Weekly S835, 839 (Fla., Nov. 20, 2003); Globe v. State, --- So.

2d ---, 29 Fla. L. Weekly S119 (Fla., March 18, 2004); Kormondy

v. State, 845 So. 2d 41 (Fla. 2003).

In the present case, the jury’s unanimous death

recommendation (DAR 659) was supported by the aggravating factor

23

of prior violent felony conviction (which included a November

1984 Pasco County conviction of robbery, kidnapping and sexual

battery of a female convenience store clerk and another November

1984 conviction of kidnapping and sexual battery of another

female convenience store clerk)(DAR 678). Additionally, the

trial court found that the instant homicide occurred while

Tompkins was engaged in the attempt to commit rape on Lisa

DeCarr (DAR 679). See also Tompkins v. State, 502 So. 2d 415,

418 (Fla. 1986)

The prior violent felony aggravator exempts capital

defendants from Ring/Apprendi. See Doorbal v. State, 837 So. 2d

940, 963 (Fla. 2003); Lugo v. State, 845 So. 2d 74, 119 (Fla.

2003); Blackwelder v. State, 851 So. 2d 650, 653-654 (Fla.

2003); Duest v. State, 855 So. 2d 33, 49 (Fla. 2003); Henry v.

State, 862 So. 2d 679, 686-687 (Fla. 2003); Kormondy v. State,

845 So. 2d 41, 54 n.3 (Fla. 2003); Globe v. State, --- So. 2d --

-, 29 Fla. L. Weekly S119 (Fla., March 18, 2004).

24

In Wiggins v. Smith, 539 U.S. 510, 156 L. Ed. 2d 471 (2003),

the Court reviewed a claim of ineffective assistance of trial

counsel under the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA) and reversed the Fourth Circuit Court of

Appeals. The Court concluded that the state court’s application

of the governing legal principles of Strickland v. Washington,

466 U.S. 668 (1984) was objectively unreasonable. The Court of

Appeals merely assumed that trial counsel’s decision to abandon

the investigation was reasonable and that reflected an

unreasonable application of Strickland. 156 L.Ed.2d at 489. The

Court reiterated that Strickland constituted the correct

controlling legal principles in considering a Sixth Amendment

ineffective assistance of counsel claim. Wiggins did not change

Strickland or create any new legal standard:

We established the legal principles that

govern claims of ineffective assistance of

counsel in Strickland v. Washington, 466

U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052

(1984). An ineffective assistance claim has

two components: A petitioner must show that

counsel’s performance was deficient, and

that the deficiency prejudiced the defense.

Id., at 687, 80 L.Ed.2d 674, 104 S.Ct. 2052.

To establish deficient performance, a

petitioner must demonstrate that counsel’s

representation "fell below an objective

standard of reasonableness." Id., at 688,

25

80 L.Ed.2d 674, 104 S.Ct. 2052. We have

declined to articulate specific guidelines

for appropriate attorney conduct and instead

have emphasized that "the proper measure of

attorney performance remains simply

reasonableness under prevailing professional

norms." Ibid.

(156 L.Ed.2d at 484)

* * * *

In highlighting counsel’s duty to

investigate, and in referring to the ABA

Standards for Criminal Justice as guides, we

applied the same "clearly established"

precedent of Strickland we apply today.

(Id. at 485)

After noting that the scope of trial counsel’s investigation

was unreasonable (Id. at 487) and that the state court did not

"conduct an assessment of whether the decision to cease all

investigation upon obtaining the PSI and the DSS records

actually demonstrated reasonable professional judgment" (156

L.Ed.2d at 488-489), the Court then turned its attention to the

prejudice prong:

In order for counsel’s inadequate

performance to constitute a Sixth Amendment

violation, petitioner must show that

counsel’s failures prejudiced his defense.

Strickland, 466 U.S., at 692, 80 L.Ed.2d

674, 104 S.Ct. 2052. In Strickland, we made

clear that, to establish prejudice, a

"defendant must show that there is a

reasonable probability that, but for

counsel’s unprofessional errors, the result

of the proceeding would have been different.

A reasonable probability is a probability

sufficient to undermine confidence in the

outcome." Id., at 694, 80 L.Ed.2d 674, 104

S.Ct. 2052. In assessing prejudice, we

reweigh the evidence in aggravation against

whether or not trial counsel’s performance had been outside

the wide range of reasonable professional assistance -- since

it concluded prejudice was not established. Tompkins v.

Moore, 193 F.3d 1327, 1336 (11th Cir. 1999).

26

the totality of available mitigating

evidence. In this case, our review is not

circumscribed by a state court conclusion

with respect to prejudice, as neither of the

state courts below reached this prong of the

Strickland analysis.

(Id. at 493)

It is abundantly clear that this Court need not revisit the

prior disposition of the ineffective assistance of counsel claim

after Wiggins. As stated above, Wiggins is not new law, but

merely an application of Strickland.

The instant case is totally dissimilar to Wiggins and there

is no basis to reconsider this Court’s prior rulings. In

Wiggins, the lower courts had misapplied the Strickland

deficiency prong and failed to reach the prejudice prong,

necessitating the Supreme Court’s conducting an analysis

determining that the prejudice prong of Strickland was also

satisfied. In the instant case, this Court on Tompkins’

previous postconviction appeal determined that trial counsel was

deficient in failing to investigate and present evidence of

mitigation in the penalty phase. Tompkins v. Dugger, 549 So. 2d

1370, 1373 (Fla. 1989)("The trial court found, and we again

prejudice prong, this Court cited the appropriate precedent,

27

Strickland, and determined:

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.

The Court of Appeals was more expansive in its discussion

and rejection of Tompkins’ challenge on the ineffective penalty

phase counsel claim. Tompkins v. Moore, 193 F.3d 1327, 1336-

1339 (11th Cir. 1999). This Court most recently reiterated and

re-confirmed that it performed its responsibility under

Strickland by considering all the mitigation submitted in the

postconviction proceeding as well as at penalty phase, along

with the aggravation. Tompkins v. State, --- So. 2d ---, 29

Fla. L. Weekly S--- (Fla. SC01-1619, April 22, 2004):

This Court approved Judge Coe’s

conclusion based on his weighing of the

aggravating and mitigating circumstances

following an evidentiary hearing. See

Tompkins, 549 So. 2d at 1373. Furthermore,

this Court affirmed the death sentence after

additional mitigating evidence, which had

not been presented at trial, was presented

and weighed at the evidentiary hearing. On

review of the denial of Tompkins’ federal

habeas petition, the Eleventh Circuit Court

of Appeals similarly "considered all of the

mitigating circumstance evidence Tompkins

says should have been presented at the

28

sentence stage, along with that which was

actually presented," and concluded that the

weight of the "multiple, strong aggravating

circumstances . . . overwhelm[ed] the

mitigating circumstance evidence that was

and could have been presented." Tompkins v.

Moore, 193 F.3d 1327, 1339 (11th Cir. 1999).

(slip opinion, pp. 33-

34).

The Eleventh Circuit Court of Appeals articulated in great

detail the mitigation presented at the penalty phase as well as

that presented subsequently in the state postconviction hearing:

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.

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.

(193 F.2d at 1335)

29

* * * *

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. n5

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. n6

n5 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.

n6 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.

(193 F.2d

at 1336-1337)

The Court noted that in several cases where there are

significant aggravating circumstances and the petitioner was not

30

young at the time of the capital offense, evidence of a deprived

and abusive childhood is entitled to little, if any, mitigating

weight, citing Francis v. Dugger, 908 F.2d 696, 703 (11th Cir.

1990); Mills v. Singletary, 63 F.3d 999, 1025 (11th Cir. 1995);

Bolender v. Singletary, 16 F.3d 1547, 1561 (11th Cir.1994). Id.

at 1337.

The Court then commented on the claim that counsel should

have presented evidence of substance abuse, consisting almost

entirely of his own statements to Dr. Pat Fleming, an expert

called to testify at the postconviction hearing:

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.

n7 Their sworn accounts provide a detailed

description of Tompkins’ personality and

behavior, and although there is some

reference in those accounts to 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

31

alcoholic or drug abuser, and foreclose any

realistic possibility that he suffered from

a serious substance abuse problem.

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, n8 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).

n7 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.

n8 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.

(Id. at

1337-1338)

The Court concluded that a third category of mitigating

circumstance evidence claimed that should have been presented

32

was that of Dr. Pat Fleming. The Court earlier had noted her

factually unsupported conclusion Tompkins had a serious alcohol

or other substance abuse problem and determined:

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. n10

n10 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

33

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.

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

1339-42, infra.

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.

We have considered all of the mitigating

circumstance evidence Tompkins says should

have been presented at the sentence stage,

34

along with that which actually was

presented. n11 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.

n11 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 times during his

career as a roofer. Dr. Fleming considered

those events as corroborating her diagnosis

of brain damage.

(emphasis supplied)

Petitioner alludes in some detail to some of the exhibits

and testimony submitted in his first motion for postconviction

evidentiary hearing. A perusal of the briefs filed in Tompkins’

prior postconviction appeal, Florida Supreme Court case number

74,235, demonstrates that Tompkins previously urged that he grew

up under appalling conditions and suffered abuse, rejection and

abandonment and cited Defense Exhibits 10, 12-14, and 16-18 as

well as the testimony of Dr. Pat Fleming. This Court considered

35

all that had been presented and like the Eleventh Circuit Court

of Appeals subsequently found it wanting. This Court considered

in its analysis not only the assertion that the aggravating

factor of prior violent felonies had extenuating circumstances

to lessen its impact but also that there was additional

mitigation not presented at the penalty phase that should be

considered. This Court addressed these matters:

The trial judge, when imposing the death

penalty, found three aggravating

circumstances: previous conviction of a

violent felony; n6 murder committed during

an attempt to commit a sexual battery; n7

and that the murder was especially heinous,

atrocious, or cruel. n8 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.

(549 So. 2d 1370, at 1373)

Clearly, this Court did a complete analysis required by

Strickland v. Washington -- as the Court of Appeals amply

performed years later -- and there is no need to revisit the

claim on the pretext that a later, distinguishable case requires

the finding of a Sixth Amendment violation, over the unanimous

36

views of state and federal jurists who have carefully considered

the matters presented. This Court should decline the invitation

to revisit this case since no new or valid basis for challenging

the prior rulings has been presented.

Tompkins’ assertion that the Court should revisit the

previously-decided ineffective counsel at penalty phase claim in

light of Wiggins must be rejected. Both this Court and the

Court of Appeals applied the correct Strickland standard and the

vice of Wiggins, i.e., the state courts’ objectively

unreasonable application of the Strickland deficiency prong is

not present here. Since both this Court and the Court of

Appeals have both determined that Tompkins fails to satisfy the

prejudice prong of Strickland, there is no basis to revisit that

prior determination.

In the penalty phase, the prosecution called Hillsborough

County Sheriff’s Officer Donald E. Cooper, who fingerprinted

Tompkins on September 19, 1985 and testified they matched the

prints of petitioner on two prior convictions. The witness

identified Exhibits 21-23 (DAR 410-418). Pasco County Deputy

Sheriff Curt A. Gell testified that he arrested Tompkins for

37

armed robbery, kidnapping and sexual battery; the case involved

a convenience store robbery in which a female clerk was abducted

and taken to another county and raped. The clerk subsequently

identified Tompkins in a line-up (DAR 419-421). Defense counsel

objected to any hearsay statements on details given by the

witnesses and the court ruled that the witness could testify

about his presence at the line-up. Gell added that on November

7, 1984 a guilty plea was entered on the three charges and

Tompkins was sentenced to twenty years (DAR 421-423).

On cross-examination by defense counsel, Gell testified that

Tompkins pled guilty in court to the offenses and admitted that

the victim had not been brutalized or beaten (DAR 423-424).

Pasco County Sheriff’s Detective Karen Collins also testified

that she had arrested Tompkins on the charge of sexual battery

(DAR 425). At a bench colloquy, the prosecutor argued the jury

needed to know what a sexual battery was and the court indicated

"that is something the victim would have to say." (DAR 426).

The court stated that it would allow testimony that Tompkins

"was accused of and pled guilty to kidnapping and rape of a

convenience store clerk, period." (DAR 427). When the

prosecutor argued that he could permissibly use hearsay in the

penalty phase, the judge answered "Well, that is my call." When

told there was no injury to this second victim, the court

inquired what the argument was about; the court indicated the

38

prosecutor could show Tompkins was convicted of a kidnap and

rape at a second convenience store and informed the prosecutor

"Don’t go beyond that." (DAR 428). Witness Collins then

testified that the offense she was testifying about occurred on

May 30, 1984, that this incident involved a convenience store

clerk in which she was abducted from the store and raped.

Tompkins entered a plea of no contest and received an eight-year

sentence (DAR 428-429). Collins indicated she did not

personally know the date of the offense investigated by Gell

(DAR 430). Defense counsel elicited from Collins on crossexamination

that the victim sustained a bruise when abducted at

knife-point. Deputy Gell was recalled and testified the date of

the offense he investigated was April 7, 1984 (DAR 431).

In closing argument, defense counsel pointed out that there

was "absolutely no question" Tompkins has a prior record, but

that he had pled guilty and "fessed up to those crimes" and that

those cases were not of a particularly aggravating nature "where

someone was bruised to a great extent, someone killed, someone

mangled." (DAR 450).

On direct appeal, Tompkins argued that the testimony of Gell

and Collins constituted hearsay and that he had no opportunity

to rebut it. Speaking for a unanimous Court, Justice Barkett

opined in Tompkins v. State, 502 So. 2d 415, 419-420 (Fla.

39

1986):

We turn now to appellant’s six claims of

error in the penalty phase of the

proceeding. First, appellant argues that the

trial court erred in allowing two police

officers to testify as to details of

previous crimes he had committed. Appellant

acknowledges that details of prior felonies

involving the use or threat of violence to

the person are properly admitted in the

penalty phase of a capital trial and that

hearsay testimony is admissible provided the

defendant has a fair opportunity to rebut

it. § 921.141(1), Fla. Stat. (1985); Perri

v. State, 441 So.2d 606, 608 (Fla. 1983).

He contends, however, that he had no

opportunity to rebut or confront the

officers’ testimony in this case, and that

his death sentence must therefore be

reversed. We disagree.

We note, first of all, that appellant

did not argue at trial, as he does here,

that he was denied the opportunity to

confront witnesses testifying against him.

The record shows that Detective Gell

identified Tompkins as the person he had

arrested for a kidnapping and rape in Pasco

County. When defense counsel objected to

"any hearsay testimony" regarding the prior

offenses, the trial court sustained the

objection, in part, and limited the officer

to saying that the victim of that crime was

a white female convenience store clerk and

that she had identified Tompkins in a

lineup. The trial court stated that it

would permit the lineup testimony because

the officer was present at the lineup. The

trial court similarly limited the other

officer’s testimony to the statement that

Tompkins had pleaded guilty to another

kidnapping and rape of a convenience store

clerk.

Although appellant did not argue a

constitutional error at trial, we recognize

that the admission of hearsay in criminal

40

proceedings may constitute a violation of

the accused’s sixth amendment right to

confront witnesses testifying against him.

See Engle v. State, 438 So.2d 803 (Fla.

1983), cert. denied, 465 U.S. 1074, 104 S.

Ct. 1430, 79 L. Ed. 2d 753 (1984). We also

recognize that the right of confrontation

protected by cross-examination is a right

that has been applied to the sentencing

process. Engle, 438 So.2d at 813 (citing

Specht v. Patterson, 386 U.S. 605, 87 S. Ct.

1209, 18 L. Ed. 2d 326 (1967)). However,

even if we assume that the victims of the

prior offenses were unavailable for

appellant to confront, the officers’

testimony was clearly harmless under the

facts of this case. The state introduced

certified copies of appellant’s prior

convictions, establishing two separate

instances of kidnapping and sexual battery.

The certified copies disclosed that

appellant had pleaded guilty to the kidnap

and rape charges in one case and had entered

a plea of no contest to the charges filed in

the other incident. This evidence alone is

sufficient to establish the aggravating

circumstance under section 921.141(5)(b),

Florida Statutes (1985) (prior convictions

for felonies involving use or threat of

violence to the person). We find no

prejudice to Tompkins resulting from the

officers’ testimony.

Petitioner asserts that no procedural bar can be enforced

since this Court on direct appeal addressed and rejected the

contention that harmful reversible error had occurred. However,

in Hodges v. State, 619 So. 2d 272, 273 (Fla. 1993), on remand

from the United States Supreme Court, this Court explained:

The contemporaneous objection rule

applies to Espinosa error, i.e., a specific

objection on the form of the instruction

must be made to the trial court to preserve

the issue for appeal. E.g., Thompson v.

41

State, 619 So.2d 261 (Fla. 1993); Burns v.

State, 609 So.2d 600 (Fla. 1992); Melendez

v. State, 612 So.2d 1366 (Fla. 1992); see

Sochor v. Florida, --- U.S. ---, 112 S.Ct.

2114, 119 L.Ed.2d 326 (1992). Despite the

failure to object at trial, Hodges

challenged the constitutionality of the

cold, calculated instruction on appeal. We

summarily found the issue meritless, but we

should have held it procedurally barred

because Hodges did not preserve it for

review by objecting at trial. Therefore, we

now hold that the sufficiency of the cold,

calculated instruction has not been

preserved for review.

This Court should now also similarly enforce the bar, at

least as an alternative ruling.

Petitioner seeks relief following the decision by the United

States Supreme Court in Crawford v. Washington, 514 U.S. ---,

124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, the Court

held that the Sixth Amendment Confrontation Clause was violated

by admission of the petitioner’s non-testifying wife’s out-ofcourt

statements to the police that were tape-recorded; the

statement had been allowed under a state exception to the

hearsay rule. The Court opined that the Framers would not have

allowed admission of testimonial statements of a witness who did

not appear at trial unless he was unavailable to testify and the

defendant had had a prior opportunity for cross-examination.

158 L.Ed.2d at 194.

The Court in Crawford did not announce that its decision was

retroactively applicable to all cases that had become final

42

prior to the date of decision, March 8, 2004. Under the

retroactivity principles of Teague v. Lane, 489 U.S. 288 (1989)

and its progeny it is clear that petitioner whose conviction

became final on June 26, 1987, for Teague purposes cannot obtain

relief -- even if factually his case came within the parameters

of Crawford.

In deciding Crawford, the Court overruled the principle it

had announced in Ohio v. Roberts, 448 U.S. 56 (1980):

The Roberts test allows a jury to hear

evidence, untested by the adversary process,

based on a mere judicial determination of

reliability. It thus replaces the

constitutionally prescribed method of

assessing reliability with a wholly foreign

one. (158 L.Ed.2d at

199)

* * * *

The legacy of Roberts in other courts

vindicates the Framers wisdom in rejecting a

general reliability exception. The

framework is so unpredictable that it fails

to provide meaningful protection from even

core confrontation violations. (Id.

at 200)

* * * *

The unpardonable vice of the Roberts

test, however, is not its unpredictability,

but its demonstrated capacity to admit core

testimonial statements that the

exclude. (Id. at 200)

* * * *

Where nontestimonial hearsay is at

issue, it is wholly consistent with the

43

Framers’ design to afford the States

flexibility in their development of hearsay

law -- as does Roberts, and as would an

approach that exempted such statements from

Where testimonial evidence is at issue,

the common law required: unavailability and

a prior opportunity for cross-examination.

(Id.

at 203)

The Court has now replaced the Roberts rule of judicial

determination of reliability with the Crawford rule that the

Sixth Amendment requires confrontation (or unavailability and a

prior opportunity for cross-examination).

Obviously, the new rule announced by the Court was not in

effect when Tompkins’ case became final in June 26, 1987. This

rule was not dictated by precedent existing at that time. Under

nonretroactivity. The first exception is clearly inapplicable

-- the new rule does not place a certain kind of primary,

private individual conduct beyond the power of the criminal lawmaking

authority to proscribe. Teague, 489 U.S. at 311. The

second exception is available only if it alters our

understanding of the bedrock procedural elements essential to

the fairness of a proceeding; it is reserved only for truly

watershed rules, a small core of rules which not only seriously

enhance accuracy, but also require observance of those

procedures that are implicit in the concept of ordered liberty.

44

merely by the change in this ruling on evidentiary admissibility

-- especially in a case like the present one where there has

been no improper testimonial hearsay introduced over defense

complaint that his confrontation rights have been compromised,

the testimony amounts to a basic recitation of what Tompkins had

pled to in open court (after having had the opportunity to

confront the prior victims prior to his pleas to those

offenses), and the judgments and sentences were introduced

demonstrating the same facts.

But even if this Court were to revisit the issue after the

decision in Crawford v. Washington, the claim must be rejected

as meritless. As noted above, while trial counsel did

occasionally interpose a hearsay objection during the testimony

of Gell and Collins, he did not assert that his Sixth Amendment

right of confrontation was being abridged and thus did not

preserve the claim. But even more significantly -- and even if

the claim were deemed preserved -- there was no impermissible

testimony introduced that is condemned by Crawford. There was

no inadmissible hearsay.

The state had introduced without objection the testimony of

Sergeant Cooper and the exhibits establishing Tompkins’ prior

violent felony convictions (DAR 410-418). Officer Gell could

45

permissibly testify to the victim identifying petitioner at a

line-up since he was present and the officer could certainly

state the crime he was investigating (DAR 420-423). The court

apparently agreed the details should not be pursued (DAR 422).

Defense counsel, of course, on cross-examination wanted to, and

did, elicit that petitioner admitted his guilt by plea in court

and that the victim had not been brutalized or beaten (DAR 424).

As to Collins’ testimony, the trial court sustained a

defense objection, indicating the witness could only permissibly

testify about matters of which she had personal knowledge (DAR

426). The trial court indicated it would allow testimony that

petitioner was accused of and pled guilty to kidnapping and rape

of a convenience store clerk, but not the details of the offense

through hearsay (DAR 427-428).

It is clear that Gell and Collins did not testify regarding

impermissible hearsay; they would have known the victim’s race,

sex, and occupation through the course of the investigation.

Gell could testify about the line-up identification since he was

present. Trial counsel had a fair opportunity to rebut and

cross-examine both witnesses on the absence of serious injury.

The judgments of conviction were previously introduced without

objection, establishing the statutory aggravator. Petitioner

was not precluded from compelling the victims to appear and

46

testify, if that was desired.

This Court was eminently correct in determining on direct

appeal that "We find no prejudice to Tompkins resulting from the

officers’ testimony." 502 So. 2d at 420.

Finally, the Courts have held that Confrontation Clause

errors are subject to harmless error treatment and can be found

to be harmless. See, e.g., Harrington v. California, 395 U.S.

250 (1969); Schneble v. Florida, 405 U.S. 427 (1972); Brown v.

United States, 411 U.S. 223 (1973); Puiatti v. State, 521 So. 2d

1106 (Fla. 1988). The alleged error is harmless for the reasons

previously stated -- Petitioner did not challenge the testimony

on grounds of a violation of the Confrontation Clause, the trial

court largely sustained defense counsel’s hearsay objections and

limited the prosecution in presenting statements of the victims

themselves, the accuracy of Gell’s and Collins’ testimony cannot

be seriously disputed since Tompkins had plead guilty or nolo

contendere to the offenses in open court (at a time before which

he would have had the opportunity to confront the victims in his

pre-plea discovery), the defense was not precluded from calling

the witnesses as his witnesses if he chose, and the defense was

able to elicit from the officer-witnesses on cross-examination

that the victims had not been brutalized.

In a moment of irony, petitioner alludes to the

postconviction testimony of Dr. Pat Fleming who provided her own

were involved, April Grorich and Cindy Slingerland. Fleming’s

description relates only to one victim’s alleged response.

47

hearsay testimony of what the police account recites about what

one of the victims reported to the police. Notably, Fleming

appears to be recounting only what one victim said and it is

clear from the judgments of convictions that were introduced as

State’s Exhibits 22 and 23 at the penalty phase that there were

copies of the Informations to this Response which list the two

different victims. Thus, whatever Fleming or Tompkins may

believe about petitioner’s gentle qualities, it does not pertain

to the other kidnapping and rape offense. Further, as noted,

biased" witness whose testimony would have been either rejected

or given little weight. Tompkins, 193 F.3d at 1339.

48

Honorable Court DENY Tompkins’ Petition for Writ of Habeas

Corpus.

foregoing has been furnished by U.S. Regular Mail to Martin J.

McClain, Special Assistant CCRC-South, 141 N.E. 30th Street,

Wilton Manors, Florida 33334, this 30th day of April, 2004.

this response is 12-point Courier New, in compliance with Fla.

R. App. P. 9.210(a)(2).

Respectfully submitted,

Assistant Attorney General

Florida Bar I.D. No.: 0134101

Concourse Center 4

3507 E. Frontage Road, Ste. 200

Tampa, Florida 33607

(813) 287-7910

(813) 281-5501 Facsimile