In 1977, a jury
convicted the appellant, Timothy Charles Palmes, of
first degree murder. The appellant waived his right
to jury sentence recommendation. After a sentencing
hearing, the Florida circuit judge sentenced him to
death. The Florida Supreme Court affirmed the
conviction and sentence, and the United States
Supreme Court denied certiorari, Palmes v. State,
397 So.2d 648 (Fla.), cert. denied, 454 U.S. 882,
102 S.Ct. 369, 70 L.Ed.2d 195 (1981).
On May 18, 1982
the Governor of Florida signed a death warrant for
appellant's execution. On June 7, 1982 appellant
initiated a federal habeas corpus petition in the
United States District Court for the Middle District
of Florida. The district court stayed appellant's
execution and granted leave to amend the petition.
The petition was
amended in August 1982. The district court stayed
the proceedings and ordered appellant to exhaust
state remedies on the new claims. Appellant then
filed a motion to vacate in the state trial court
which was denied in October, 1982. In January, 1983,
the Florida Supreme Court affirmed the trial judge's
denial of the motion. Palmes v. State, 425 So.2d 4 (Fla.1983).
In January, 1983,
appellant filed a Second Amended Petition for a Writ
of Habeas Corpus in the district court for the
Middle District of Florida. The district judge
denied the petition and this appeal was taken. We
affirm the district judge's denial of relief.
eleven issues, but only seven are properly before
this court. The remaining four issues are barred
from review according to Wainwright v. Sykes, 433
U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (See
infra Part IV). The issues properly before this
I. (a) Whether the
admission into evidence of the appellant's
statements and confessions violate his
constitutional rights in that the statements were
not voluntarily made; and
(b) Whether the
admission into evidence of such statements denied
the appellant a fair trial.
appellant was denied the effective assistance of
appointed counsel failed to render any legal
assistance on behalf of the appellant at a critical
stage of his case.
appointed counsel failed to raise the issue
concerning the appellant's illegal arrest.
appointed counsel failed to object to the court's
excusing for cause jurors expressing death penalty
(d) Counsel failed
to object to comments touching upon appellant's
fifth amendment rights.
III. Whether the
trial judge's sentence of death is contrary to the
eighth and fourteenth amendments.
In August or
September 1976, the appellant and Ronald Straight
offered to collect the victim's delinquent business
accounts for him. The victim refused to employ the
appellant, prompting the appellant to say, "You
know, I am going to kill him."
On October 3, 1976
the appellant with his girlfriend, Jane Alpert, and
Ronald Straight purchased lumber, hardware, and
cement with which the appellant built a heavy box
large enough to hold a man.
The next day the
group implemented their murder plan. Jane Alpert
lured the victim into an apartment where the
appellant and Ronald Straight were waiting for him.
The appellant and Straight hit the victim on the
head three times with a blunt instrument and stabbed
him fourteen times. The victim's body was placed in
the box, cement was added and it was dumped in the
St. John's River.
Straight, and Alpert fled, taking the victim's car,
money, and personal effects with them. Appellant,
Alpert, and Straight were apprehended in California.
On October 14, 1976 Ms. Alpert was returned to
Jacksonville, Florida. She was given immunity from
prosecution in exchange for her testimony in the
prosecution of the appellant and Ronald Straight.
returned to Jacksonville on October 22, 1976. He was
advised of his constitutional rights and then
questioned by police. At appellant's first
appearance on October 23rd a public defender was
appointed to represent him.
On October 24th
appellant was again advised of his rights and
further interrogated. He did not request counsel and
answered the police questions. Appellant did,
however, refuse to sign a written waiver of rights
and refused to make any statement until he had
spoken with Jane Alpert. After speaking with Alpert,
appellant directed police officers to the place
where the victim's body was thrown into the river.
On October 28th
appellant was indicted for first degree murder. On
October 29th he asked to speak with the police. He
was again advised of his rights and specifically
stated he did not want a lawyer. Appellant then
signed a written waiver of rights and gave his
confession. Also on October 29th the public
defender's office requested and was granted
permission to withdraw as appellant's counsel due to
conflict. Between October 23rd and October 29th the
public defender's office had no contact with
appellant. He was never interviewed or advised by
any attorney during this period.
defense was largely his own testimony. He testified
that Jane Alpert, acting alone, murdered the victim.
His involvement was only to aid her after she had
committed the murder.
I. USE OF APPELLANT'S CONFESSION
(a) Was the
Confession Voluntarily Given?
that the incriminating statements and confession
were not voluntarily and freely made. This
contention belies the facts adduced at the hearing
on the Motion to Suppress. On October 22nd, upon
arrival in Jacksonville, appellant was given his
Miranda warnings and was briefly questioned.
On October 24th at
2:40 p.m. questioning resumed after appellant was
again informed of his rights. Appellant indicated
then that he was willing to speak with the officers.
The interrogation ended at 6:30 p.m., after
appellant indicated he wished to talk to his
girlfriend, Jane Alpert, before he would be willing
to give a statement.
At 7:40 p.m. that
evening police officers resumed the interrogation
while attempting to contact the state attorney's
office to obtain permission for Jane Alpert to
telephone the appellant. Before this session,
appellant was again informed of his constitutional
rights and police officers questioned him "off and
on" until midnight when Jane Alpert called.
Appellant spoke to Alpert briefly and hung up after
she told him she was getting her life in order and
she was through with him. Appellant then said he
would take the police to the location of the
At 12:30 a.m. on
October 25th appellant was again informed of his
constitutional rights before he led police officers
to the site where the victim's body had been dumped
into the St. John's River. After pointing out the
location the appellant was driven back to jail. On
the ride back to the county jail the appellant
related some of the facts of the murder to police
officers. At no time during the questioning between
October 22nd and October 25th did the appellant
state that he wanted an attorney or that he did not
want to speak to the police officers. However, he
did refuse to sign a written waiver of rights form.
the appellant to jail in the early morning hours of
October 25th, police personnel made no attempt to
contact or further question him. On October 28th he
was indicted for first degree murder. On October
29th appellant told jailhouse trustees that he
wished to speak with police officers. The officers
were not immediately contacted so appellant
prevailed upon the jail chaplain to phone the police
requesting that they meet with him.
At 4:00 p.m. on
October 29th the police met with appellant. He
indicated he wanted to make a statement. He was
again informed of his rights and exhaustively
questioned about whether he wanted an attorney. He
said he did not, and signed a written waiver of
rights form. It took an hour for appellant to relate
his statement which was transcribed and notarized by
a court reporter. During that hour appellant was
again read his Miranda rights after he had taken a
break to go to the bathroom.
The district court
found that the uncontroverted testimony indicated
that petitioner was mentally alert during all of
these interrogations. The physical circumstances of
the questioning were comfortable and the appellant
was given food and water and allowed to use the
bathroom. The physical circumstances and manner of
interrogation do not suggest coercion.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966) established that incriminating statements
made by a defendant during a custodial interrogation
are admissible into evidence if adequate measures
are taken to apprise the defendant of his privilege
against self-incrimination. The defendant must "voluntarily,
knowingly, and intelligently" waive his privilege.
The voluntariness of appellant's confession is
gauged by the totality of the circumstances. Edwards
v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1884,
68 L.Ed.2d 378 (1981).
The record is
clear that the transcribed confession taken on
October 29th was voluntary. Appellant initiated the
interview, was exhaustively made aware of his rights,
and signed the written waiver form. Perhaps most
indicative of the voluntariness is that for four
days prior to October 29th police officers had not
contacted appellant and that it was the appellant
who initiated the contact. See Edwards v. Arizona,
451 U.S. at 483, 101 S.Ct. at 1884. At each level of
review in the state and federal courts, it has been
found that the appellant's statements were voluntary.
The record fully supports this conclusion.
On October 25th
the appellant initially refused to discuss the crime
until after he spoke with Ms. Alpert. Such action is
a clear indication that he knew and understood his
right to remain silent. After learning that Ms.
Alpert had been given immunity from prosecution and
had cooperated with the law enforcement
representatives, Palmes willingly confessed all. The
totality of the circumstances supports the finding
that appellant's statements and confession were
The district court
found that the appellant had waived his right to
counsel and we agree. Appellant was repeatedly
informed of his right to counsel. There has been no
suggestion that he did not understand. To the
contrary, the record indicates that he fully
understood his rights and chose to speak with police
officers. The appellant attempts to counter the
state's showing of waiver by suggesting that his
initial refusal to sign a written waiver of rights
form should be construed as an invocation of the
right to counsel. If appellant did invoke the right
to counsel interrogation would have to stop under
indicates that on October 24th the appellant said he
would speak to police without counsel yet he refused
to sign the waiver of rights form. On Friday October
29th, before appellant gave the crucial written
statement, he did sign the waiver of rights form.
This court is asked to turn this statement, "I will
talk to you without counsel, but I won't sign a
written waiver form," into "I want an attorney." We
are unwilling to construe appellant's refusal to
sign as a request for counsel.
In Fare v. Michael
C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197
(1979) the Court decided that a juvenile suspect's
statement that he wanted to see his probation
officer was not to be construed as a request to
remain silent or for his attorney. The juvenile in
Fare, after asking to speak with his probation
officer, went on to speak freely with police and
incriminate himself. The Court's rationale was its
perception of the role of a lawyer as distinguished
from a probation officer and the Miranda doctrine.
The Court explained:
The fact that a
relationship of trust and cooperation between a
probation officer and a juvenile might exist,
however, does not indicate that the probation
officer is capable of rendering effective legal
advice sufficient to protect the juvenile's rights
during interrogation by the police, or of providing
the other services rendered by a lawyer. To find
otherwise would be "an extension of the Miranda
requirements [that] would cut this Court's holding
in that case completely loose from its own
explicitly stated rationale." Beckwith v. United
States, 425 U.S. 341, 345 [96 S.Ct. 1612, 1615, 48
L.Ed.2d 1] (1976). Such an extension would impose
the burdens associated with the rule of Miranda on
the juvenile justice system and the police without
serving the interests that rule was designed
simultaneously to protect. If it were otherwise, a
juvenile's request for almost anyone he considered
trustworthy enough to give him reliable advice would
trigger the rigid rule of Miranda.
Id. 442 U.S. at
722-23, 99 S.Ct. at 2570-71.
concern with keeping Miranda true to its purpose
leads us to decline to construe appellant's refusal
to sign the waiver form as a request for counsel.
In North Carolina
v. Butler, 441 U.S. 369, 373 n. 5, 99 S.Ct. 1755,
1758 n. 5, 60 L.Ed.2d 286 (1978), the Supreme Court
noted that the then eleven United States Courts of
Appeal had unanimously rejected the argument that
refusal to sign a waiver form precludes a finding of
waiver. Therefore, there is no independent
significance to the appellant's refusal to sign the
waiver form. The record demonstrates that appellant
knew of and understood his right to have counsel
present at the interrogations. We affirm the
district court's finding that the appellant waived
his right to counsel and voluntarily confessed.
Allowing the Confession into Evidence Deny Appellant
a Fundamentally Fair Trial?
that he was denied a fair trial for two reasons.
First, the trial judge did not find the confession
voluntary prior to allowing it into evidence. Second,
the judge erred in not allowing appellant to testify
before the jury about his state of mind when he gave
the confession. We easily dispose of the first part
of this argument. Jackson v. Denno, 378 U.S. 368, 84
S.Ct. 1774, 12 L.Ed.2d 908 (1964), requires a trial
judge to determine the voluntariness of a confession
before it is admitted into evidence.
In Sims v.
Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 643, 17
L.Ed.2d 593 (1967) the Court explained that "[a]lthough
the judge need not make formal findings of fact or
write an opinion, his conclusion that the confession
is voluntary must appear from the record with
In this case the
trial judge conducted a hearing according to Jackson
v. Denno. During the hearing counsel argued and
offered evidence on the question of voluntariness.
The judge denied the motion to suppress. Although
her order simply denied the motion without
specifically enunciating that the confession was
found voluntary, inherent in the denial of the
motion is a finding of voluntariness. The record in
this case is "unmistakably clear" and we find no
reason to require state trial judges to articulate
all the reasons why a motion to suppress is denied.
The second portion
of this issue, whether refusing to allow the
appellant to testify before the jury about the
circumstances of his confession is reversible error,
is more difficult to resolve. The trial judge did
rule that the appellant could not testify about his
state of mind when he gave the confession.
appellant was allowed to testify that his motive for
confessing was to protect Jane Alpert. (Ex.Vol. IX
at 810-818). Even though the trial judge determines
admissibility of a confession it is up to the jury
to decide the weight it will give the confession.
Trial testimony about the circumstances and
voluntariness of the confession would have aided the
jury in deciding what weight to accord appellant's
Supreme Court found that under Florida law the trial
judge erred in refusing to allow the appellant to
testify about the circumstances of the confession.
Palmes v. State, 397 So.2d at 653-56. Precedent in
this circuit agrees with the Florida Supreme Court's
decision. Calloway v. Wainwright, 409 F.2d 59, 65
(5th Cir.), cert. denied, 395 U.S. 909, 89 S.Ct.
1752, 23 L.Ed.2d 222 (1969).
phrased this issue as one of constitutional fairness
dimensions, however, the basic error is an
evidentiary question properly resolved by reference
to Florida law.
We agree with the Florida Supreme Court's conclusion
that under Florida law it was error to exclude this
testimony. See State v. Oyarzo, 274 So.2d 519 (Fla.1973);
Graham v. State, 91 So.2d 662 (Fla.1956); Bates v.
State, 78 Fla. 672, 84 So. 373 (1919).
Supreme Court and the United States district court
both went beyond the initial finding of error to
conclude, based on all the evidence at trial, that
this error was harmless.
We therefore must determine if this error is
harmless or so substantial as to deny the appellant
a fair trial. The doctrine of harmless error allows
affirmance of criminal convictions if the non-constitutional
error did not substantially influence the verdict
and there was sufficient evidence to support the
verdict apart from the error. Kotteakos v. United
States, 328 U.S. 750, 764-65, 66 S.Ct. 1239,
1247-48, 90 L.Ed. 1557 (1946); United States v.
Martinez, 700 F.2d 1358, 1367 (11th Cir.1983);
United States v. Phillips, 664 F.2d 971, 1027 & n.
84 (5th Cir.1981) (Unit B).
whether this error was harmless, the Florida Supreme
Court noted that although the trial judge improperly
sustained the state objection, the appellant in fact
did testify to the circumstances of his directing
the police to the body and the series of
conversations with police officers during the week
of October 22, 1976.
Thus the scope of the trial judge's ruling limiting
testimony about the circumstances was narrow.
Substantial testimony about the circumstances was
allowed. The jury had a good impression of
appellant's state of mind at the time he confessed.
The trial judge
had already determined the confession was voluntary.
The erroneously excluded testimony would have only
gone to the weight the jury should give the
confession, for the confession was properly admitted
into evidence. The district court and the Florida
Supreme Court found substantial other evidence aside
from the statement upon which appellant could have
been convicted. Based on all the other evidence
introduced and the fact that appellant was allowed
to testify to some of the circumstances of the
confession, we find that the trial judge's error was
II. EFFECTIVENESS OF COUNSEL
asserts he was denied effective assistance of
counsel in four ways:
a) During the week
of October 22nd-29th the public defender's office,
although appointed as appellant's counsel, never
contacted him in any way and ultimately withdrew as
counsel on October 29th due to conflict. Because of
this, appellant argues that the confessions made
during that week should have been suppressed.
b) Trial counsel
failed to argue that appellant's confession should
have been suppressed due to an illegal arrest.
c) Trial counsel
failed to object to the court's excusal for cause of
venirepersons expressing death penalty scruples in
violation of Witherspoon v. Illinois, 391 U.S. 510,
88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
d) Trial counsel
failed to object to the prosecutor's comments that
touched upon appellant's fifth amendment rights.
amendment promises criminal defendants the effective
assistance of counsel. The standard for
effectiveness is one of reasonableness: counsel must
have rendered reasonably effective assistance given
the totality of the circumstances. King v.
Strickland, 714 F.2d 1481, 1485 (11th Cir.1983);
Goodwin v. Balkcom, 684 F.2d 794, 804 (11th
Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct.
1798, 76 L.Ed.2d 364 (1983). The appellant must
carry the burden of proof that counsel was
ineffective and that actual prejudice resulted.
Washington v. Strickland, 693 F.2d 1243, 1262 (5th
Cir.1982) (Unit B, en banc), cert. granted, --- U.S.
----, 103 S.Ct. 2451, 77 L.Ed.2d 1332 (1983).
Whether appellant has been denied the effective
assistance of counsel is a mixed question of law and
fact. Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100
S.Ct. 1708, 1714-15, 64 L.Ed.2d 333 (1980);
Washington v. Watkins, 655 F.2d 1346, 1354 (5th
Cir.1981). To decide this issue we must examine the
totality of the circumstances and the entire record.
Goodwin v. Balkcom, 684 F.2d 794, 804 (11th
Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct.
1798, 76 L.Ed.2d 364 (1983).
a) The Week of
argument on this issue has two discrete components:
first, was appellant denied the effective assistance
of counsel during the police interrogations and
second, was the public defender's failure to contact
the appellant during this crucial week a violation
of appellant's sixth amendment right.
that he had a sixth amendment right to have counsel
informed of and present at the police interrogations
because the criminal process had shifted from
investigation to accusation. Massiah v. United
States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246
(1964). In United States v. Brown, 569 F.2d 236 (5th
Cir.1978) (en banc )
the court found such an interpretation of Massiah to
be too broad and refused to extend the sixth
amendment right to counsel beyond instances of
surreptitious or secret interrogation as in Massiah.
569 F.2d at 238.
Here, like Brown,
the appellant knew he was being interrogated, was
repeatedly advised of his rights, and chose not to
request counsel. The extraordinary rule in Massiah
does not apply when the police are forthright in
their interrogation. When appellant knew he was
being questioned by the police and understood the
consequences of his speech it was up to him to act
in some manner to invoke his right to counsel. We
have already concluded that the appellant waived his
right to counsel during that week. Appellant was not
denied the effective assistance of counsel during
the police interrogations because he never invoked
and voluntarily waived his right to counsel.
contends he was denied effective assistance of
counsel during the week of October 22, 1976 because
the public defender who was appointed to represent
him on October 22nd never undertook that task. No
one from the public defender's office ever contacted
the appellant. On October 29th, one day after
appellant's indictment, the public defender withdrew
from appellant's case due to conflict.
The Supreme Court
of Florida found that "the formal appointment of the
Public Defender at first appearance did not initiate
legal representation since nothing was done toward
actually providing legal counsel." Palmes v. State,
397 So.2d at 652. Since no representation was
undertaken, it could not have been ineffective. The
district court ruled that the appellant waived his
right to counsel so that there could be no issue of
standpoint it is lamentable that the Public Defender
could not represent him. We acknowledge that the
events during the first week after appellant's
return to Florida were crucial to the state's case.
If counsel had been able to represent appellant
perhaps the inculpatory statements would have never
We must, however,
determine if the public defender's inaction violates
the right to effective assistance of counsel. We
find that the district court's conclusion, that
because appellant waived his right to counsel there
could be no question of effectiveness, embodies the
wrong rationale. Waiver of counsel for a specific
interrogation does not waive effectiveness of
counsel in other instances. Here appellant claims
counsel should have interviewed him during that week
and advised him about his statements to police which
is unrelated to the presence or absence of counsel
during the custodial interrogations.
Supreme Court reached the same result as the
district court by concluding that the public
defender never undertook to represent the appellant.
This is supported by the record. Because of a
conflict the public defender could not and did not
represent the appellant. It is probable that had the
public defender undertaken to give even the most
preliminary advice to the appellant, this court
would have to decide whether appellant was denied
effective assistance of counsel during this period
due to the conflict. The public defender had no
choice but to withdraw from appellant's case. There
are no allegations that the public defender was
dilatory in seeking the court's permission to
withdraw and the appointment of other counsel.
We agree with the
Florida Supreme Court that there could be no
ineffective assistance of counsel because the public
defender never undertook to represent the appellant.
Had the appellant at any point during this five day
period asked to see an attorney perhaps new counsel
could have been appointed sooner.
suggests that the police should have inquired as to
who was representing the appellant and had the
attorney present before any interrogation or waiver
occurred. We have already concluded that the sixth
amendment right explained in Massiah does not extend
that far. In conclusion, none of the sixth amendment
doctrines that appellant relies on allow a finding
of ineffective assistance of counsel during the week
of October 22nd-29th.
b) Failure to
Argue Suppression Due to Illegal Arrest
that he was denied the effective assistance of
counsel because his trial counsel failed to argue
that the confession should be suppressed as the
fruit of an illegal arrest. The appellant contends
the arrest was illegal because there was no probable
cause. Trial counsel did argue forcefully that the
confession should be suppressed because it was not
The district court
ruled that trial counsel made an informed decision,
based on his professional expertise, to not pursue
the illegal arrest basis for suppression.
Alternatively, the district court found the argument
meritless because so much time lapsed between the
appellant's arrest and the confessions that the
taint, if any, had dissipated.
In this circuit "a
strategic decision to pursue less than all plausible
lines of defense will rarely, if ever, be deemed
ineffective if counsel first adequately investigated
the rejected alternatives." Adams v. Wainwright, 709
F.2d 1443, 1445 (11th Cir.1983), citing, Westbrook
v. Zant, 704 F.2d 1487, 1500 (11th Cir.1983). Trial
counsel testified at the state hearing on this issue
that he did not argue the confession was the product
of an illegal arrest because he thought appellant
was arrested for grand theft and that, in any event,
a gun battle occurred prior to the arrest which
alone would have constituted probable cause. Ex.Vol.
XVII at 53-54. Appellant argues that if the federal
district court had allowed an evidentiary hearing it
would have been shown that appellant was in fact
arrested in California for the Florida murder one
day before the warrant for grand theft issued and
that trial counsel's professional opinion was based
on inadequate investigation.
traveled to California to depose all the people
involved in the California arrest. Certainly such a
trip was sufficient investigation to meet the
effectiveness of counsel standard. See Washington v.
Strickland, 693 F.2d at 1255 n. 21. Further, this
was at least trial counsel's tenth murder defense. A
motion to suppress was made but for other, perhaps
more persuasive, reasons. We cannot say that trial
counsel's decision was "so patently unreasonable
that no competent attorney would have chosen it."
Adams v. Wainwright, 709 F.2d at 1445, citing,
Washington v. Strickland, 693 F.2d at 1254.
c) Failure to
Object to Excusal for Cause
that trial counsel was ineffective because he failed
to object to the court's dismissal of four
venirepersons for death penalty scruples in
violation of Witherspoon v. Illinois, 391 U.S. 510,
88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
The record shows that trial counsel agreed to
collective examination of prospective jurors and
that the trial judge adequately explained the
requirements of Witherspoon to the prospective
Trial counsel's failure to assert a Witherspoon
violation could have been the product of a
reasonable conclusion that no violation had occurred.
Given the totality of the voir dire, it is clear
that counsel was "reasonably effective" even though
he did not raise a Witherspoon violation.
d) Failure to
Raise Fifth Amendment Violation
claim of ineffective assistance of counsel stems
from trial counsel's failure to object to statements
by the prosecutor that allegedly infringed upon
appellant's fifth amendment right to remain silent.
Appellant points to two statements that he contends
violate his fifth amendment privilege. The first
occurred during defense counsel's cross-examination
of a state witness.
Q: What did she
tell you about if Mr. Stone was coming back?
PROSECUTOR: Excuse me, Your
Honor. I'm not sure what day we are referring to.
DEFENSE COUNSEL: I'm talking
about October 4th.
PROSECUTOR: I object, Your Honor.
It's beyond the scope of direct
DEFENSE COUNSEL: Your Honor, I
think that he has testified he was working there on
that date and it's extremely relevant what occurred
on that date.
PROSECUTOR: He didn't. He didn't
testify he worked there on direct examination on
I only--direct examination dealt
only with September 25th.
The Prosecutor can call him as
his own witness if he wishes.
second statement occurred at the conclusion of the
testimony of a key state witness, Pat Miles.
THE COURT: All
PROSECUTOR: Nothing further.
THE COURT: Any further questions
by the State?
PROSECUTOR: Nothing further, Your
DEFENSE COUNSEL: Nothing further
from the defense, Your Honor.
THE COURT: All right.
Do you anticipate needing this
witness for further testimony, Mr. Greene?
PROSECUTOR: It's possible, Your
Honor, the State may need him in rebuttal.
THE COURT: Sargeant Miles, you
are going to be excused. However, remain available
in the event you are needed for recall. (R.Vol. II
Only a very keen
trial attorney could have perceived that these
statements might infringe upon the appellant's fifth
amendment privilege by elliptical reference to the
appellant's future testimony. Appellant's brief
cites no authority that supports the substantive
fifth amendment claim. Quite frankly, it is
difficult for the court to see any merit in the
contention. Appellant chose to testify in his own
defense, therefore, his fifth amendment privilege
was probably waived. Trial counsel certainly cannot
be deemed to have been ineffective for failing to
raise this tenuous objection.
many legal tools to use in their discretion to
properly defend a person. The sixth amendment right
to effective assistance of counsel does not require
counsel to raise every objection without regard to
its merits. The sixth amendment standard is one of
reasonable effectiveness. We find that appellant's
trial counsel was not ineffective.
APPELLANT'S SENTENCE OF DEATH CONTRARY TO THE EIGHTH
AND FOURTEENTH AMENDMENTS
that the sentencing procedure used in his case and
the Florida Statute's aggravating factor of "heinous,
atrocious, and cruel" conduct are unconstitutional.
Fla.Stat. Sec. 921.141(5)(h) (1975). Appellant
waived the jury for the penalty phase of his trial
and was sentenced to death after a hearing before
the trial judge. At the sentencing hearing
appellant's attorney attacked perceived inaccuracies
and bias in the presentence investigation that was
presented to the court and called six character
witnesses to testify about the appellant.
counsel argued statutory and non-statutory
mitigating factors and pointed out the disparity in
treatment between the appellant and Jane Alpert, who
was granted full immunity from prosecution. A
psychiatric report that discussed the possible
effect of drugs on appellant's behavior was also
introduced. At the conclusion of the hearing the
trial judge read a prepared sentence of death.
Appellant does not
assert any flaw in the sentencing procedure. He does
not contend that there was a systemic bias or
prejudice or even that this trial judge was biased.
His argument is that the trial judge did not render
a reasoned decision based on the evidence presented
during the sentencing hearing.
In support of this
contention, appellant points out that the sentence
was meted out immediately following the conclusion
of the sentencing hearing. Appellant offers no
evidence of this contention and probably could not
produce any. The nature of this assertion is
inherently unreviewable. We cannot review the
thinking of a trial judge for such would be pure
conjecture. We may only examine the procedure and
the written order. None of the numerous cases
appellant cites to this court would have otherwise.
See Proffitt v. Florida, 428 U.S. 242, 96 S.Ct.
2960, 49 L.Ed.2d 913 (1976); Woodson v. North
Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d
that the trial judge erred in not considering non-statutory
mitigating factors that were presented during the
sentencing hearing. In her judgment and order of
death the trial judge discusses only the statutory
aggravating and mitigating factors in Fla.Stat. Sec.
921.141. Again we cannot conclude that because the
order discusses only the statutorily mandated
factors that the other evidence in mitigation was
not considered. Appellant's citation to Eddings v.
Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1
(1982), in which the Court held that a trial judge
may not as a matter of law refuse to consider
evidence of mitigation, is not persuasive. Here the
trial judge patiently heard all of the evidence
appellant had to offer. The weight the trial judge
gave to any one factor was wholly within her
discretion. See Barclay v. Florida, --- U.S. ----,
103 S.Ct. 3418, 3430 n. 2, 77 L.Ed.2d 1134 (1983) (Stevens
and Powell, JJ. concurring). Our review is completed
once it is established that a full hearing was
conducted in which appellant's counsel was given an
opportunity to present all of the mitigation
evidence. There is no indication whatsoever that the
trial judge did not conscientiously consider
contends that the statutory aggravating factor of "heinous,
atrocious, and cruel" conduct is unconstitutionally
vague in its application."
This contention was rejected in Proffitt v. Florida,
428 U.S. at 255-56, 96 S.Ct. at 2968 (Stewart,
Powell and Stevens, JJ.). See also, Barclay v.
Florida, --- U.S. ----, 103 S.Ct. 3418, 77 L.Ed.2d
1134 (1983). We find that the trial judge properly
applied this factor. We conclude based on the record
that the trial judge met the constitutional
sentencing standard of an "individualized
determination on the basis of the character of the
individual and the circumstances of the crime." 103
S.Ct. at 3428.
claims that his sentence violates the eighth and
fourteenth amendments because it is so
disproportionate to the grant of immunity to Jane
Alpert. Ronald Straight, another actor in this
murder scheme was also sentenced to death. The
Supreme Court has stated that discretionary
decisions of state prosecutors to grant immunity to
some participants of a crime and not others is not
arbitrary or cruel and unusual under the
constitution. See Gregg v. Georgia, 428 U.S. 153,
199, 96 S.Ct. 2909, 2937, 49 L.Ed.2d 859 (1976) (Justices
Stewart, Powell, and Stevens); Proffitt v. Florida,
428 U.S. at 254, 96 S.Ct. at 2967. Appellant's claim
that Jane Alpert was not similarly punished is not a
cognizable basis for relief.
BARRED FROM REVIEW DUE TO PROCEDURAL DEFAULT
four additional substantive issues:
appellant's statements and confession were the
product of an illegal arrest and detention;
prospective jurors were improperly excused for cause
because of conscientious concerns about the death
penalty in violation of Witherspoon v. Illinois;
(3) Whether the
prosecutor improperly commented upon the appellant's
fifth amendment right to remain silent; and
(4) Whether the
appellant was denied a fair trial by the conduct of
certain jurors who allegedly formed and expressed
opinions concerning guilt before hearing all of the
All of these
issues have been addressed as bases for the
ineffective assistance of counsel claim, however,
the standard of review is different if we must
review these issues on their substantive merits.
These issues were raised initially in the first
amended habeas corpus petition in the district court.
Pursuant to the district court's order to exhaust
state remedies these issues were raised in the
Florida courts in the Motion to Vacate.
Supreme Court ruled that, under Florida law, all
four of these issues should have been raised on
direct appeal and could not be raised in a
collateral proceeding. Palmes v. State, 425 So.2d 4
(Fla.1983). The district court then found that these
issues were barred from habeas corpus review under
Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53
L.Ed.2d 594 (1977) and Ford v. Strickland, 696 F.2d
804 (11th Cir.1983) (en banc).
The rule of
Wainwright v. Sykes prohibits a federal court from
entertaining a constitutional claim in a habeas
corpus petition if that claim is barred by the state
law due to a procedural default. The rule furthers
comity and helps assure that the state trial is the
primary adjudication and not just a prelude to a
federal adjudication. In this case, these issues are
barred due to default under Florida law. Relief may
be had from the rule only upon a showing of "cause
and prejudice." In this circuit "cause" to excuse a
procedural default must be avoidance of "a
miscarriage of justice," and prejudice is "actual
prejudice." Ford v. Strickland, 696 F.2d at 817.
to show cause for the failure to argue that his
arrest was illegal by asserting that trial counsel's
failure to raise this issue was the result of
ignorance of the facts and in no way was a
deliberate attempt to bypass the state procedure.
Appellant urges the court to define "cause" as any
reason other than a strategic decision to forego
state adjudication of the claim, citing, Huffman v.
Wainwright, 651 F.2d 347, 351 (5th Cir.1981) (Unit
B). Such a broad standard of "cause" would vitiate
the rule of Wainwright v. Sykes and disregard its
purposes of comity, of providing federal courts a
state court adjudication of constitutional issues,
and encouraging state courts to enforce procedural
rules strictly. Huffman did not so read the "cause"
factor and we too reject this interpretation.
The district court
found little probability that the arrest was illegal.
It further noted that because so much time lapsed
between appellant's arrest and the confessions, the
taint, if any, had dissipated. We found that the
failure to raise this issue at trial was not
ineffective assistance of counsel. In determining
whether sufficient "cause" exists to meet the
manifest injustice standard, our purpose is not to
reach the merits of the very issue barred by
procedural default. We find no ignorance by counsel
which yielded a manifest injustice, therefore, the
illegality of appellant's arrest is barred from
to show cause for trial counsel's failure to object
to the manner of jury selection by asserting that
(1) such an objection would have been futile due to
the policy of the Fourth Judicial Circuit of Florida
that excludes every juror expressing death penalty
scruples and (2) counsel believed the trial judge's
actions were proper and didn't want to make a
dubious objection that would emphasize the death
sentence potential to the jurors. These assertions
do not meet the "cause" criterion. In Engle v.
Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783
(1982) the Supreme Court noted that "the futility of
presenting an objection to the state courts cannot
alone constitute cause for failure to object at
trial." Id. at 130, 102 S.Ct. at 1572. The second
part of appellant's case for cause here suggests a
strategic decision not to raise this issue. Issues
not raised for strategic reasons are certainly
barred by the rule in Wainwright v. Sykes.
for a mistrial after learning of the juror's
discussion of the evidence. The trial judge denied
the motion and this issue was not raised on direct
appeal. The Florida Supreme Court ruled it was
barred from collateral review. Appellant's only
assertion of cause is the same as that argued in the
first issue, namely, that since the decision not to
appeal this issue was not a tactical choice to avoid
the state courts the federal courts should hear this
issue. For the already enunciated reasons we reject
this argument and hold this issue barred under
Wainwright v. Sykes.
argues that the right to remain silent free from
adverse comment is such a fundamental right that its
exalted constitutional stature alone should be
sufficient "cause" for relief from the Sykes rule.
In Engles v. Isaac, supra, the Court acknowledged
that "[w]hile the nature of a constitutional claim
may affect the calculation of cause and actual
prejudice, it does not alter the need to make that
threshold showing." 456 U.S. at 129, 102 S.Ct. at
1572. Because appellant has made no showing of cause
we hold that this issue too is barred. We do not
examine the prejudice, if any, that resulted from
the failure to raise these issues because the Sykes
standard for relief from its rule is in the
conjunctive. Having failed to show "cause,"
appellant necessarily fails the conjunctive.
For all of the
foregoing reasons the decision of the district court