Petition — Wainwright v. Proffitt

Supreme Court brief1983

Ask Donna

What actually matters in this document.

Text

Office - Sucreme Caart, U.S.

FIL

‘a 22 ws

Case No. ‘gees STEVAS,

In The pat

SUPREME COURT OF THE UNITED STATES

October Term, 1982

LOUIE L. WAINWRIGHT, Secretary, Florida

Department of Offender Rehabilitation,

Petitioner,

Vv.

CHARLES WILLIAM PROFFITT,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

AND APPENDIX

JIM SMITH

ATTORNEY GENERAL

CHARLES CORCES, JR.

Assistant Attorney General

1313 Tampa Street, Suite 804

Park Trammell Building

Tampa, Florida 33602

(813) 272-2670

COUNSEL FOR PETITIONER

QUESTIONS PRESENTED

1. Whether the precepts of Gard-

ner v. Florida, 430 U.S. 349 (1977) re-

quire the sentencing authority to allow

the cross examination of the authors of

any psychiatric reports submitted to

the sentencing authority even when those

reports are not questioned or disputed

by the prisoner or even considered by

the sentencing authority.

2. Whether a court of appeals can

prevent a district judge, sitting in ha-

beas, from considering a disclaimer by

a state trial judge via a written res-

ponse duly recorded in state court pro-

ceedings and/or a disclaimer contained

in a desposition, which deposition was

introduced in evidence, without ob-

jection, by the habeas petitioner him-

self.

3. Whether a capital defendant's

presence is so nonwaivable that his

counsel may not waive his presence even

at a post trial ad hoe hearing.

4. Whether a death sentence is,

necessarily, constitutionally infirm

simply because the sentencing authority

considers non-statutory aggravating

factors or because one or more of the

statutory factors is infirm if there

is at least one valid statutory factor,

no mitigating circumstances and where

the Supreme Court of Florida ir depend-

ently reviews and reweighs the sentence

and determines it to be proper.

5. Whether a Circuit Court of

Appeals may ignore the precedents and

findings of the Supreme Court of the

United States and substitute its judg-

ment for that of this Court regarding

aggravating and mitigating circum-

stances in the same capital case.

6. Whether a United States

Circuit Court of Appeals may reverse a

District Court's denial of habeas re-

lief in the absence of fundamental

error or manifest miscarriage of

justice.

ai%..

TABLE OF CONTENTS

QUESTIONS PRESENTED

OPINIONS BELOW

JURISDICTIONAL STATEMENT

CONSTITUTIONAL STATUTORY

AND RULE PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING WRIT

QUESTION

CONCLUSION

ONE

TWO

THREE

FOUR

FIVE

SIX

CERTIFICATE OF SERVICE

iv.

TABLE OF CILATI1ONS

CASES:

Alford v. State, 355 So. 2d 108

(Fla. 1977)

Barelay v. Florida, 74 L. Ed 2d

382 (1982)

Cyler v. Sullivan, 446 U.S. 335

(1980)

Deen v. Hiekman, 358 U.S. 57 (1958) 42

Diaz v. United States, 223 U.S.

442, (1912)

Drake v. Zant, 449 U.S. 999

(1980)

Engle v. Isaac, 71 L. Ed 2d 783

(1982)

Ex Parte Stbbold v. United States,

37 U.S. 488 (1838)

Fay v. Nota, 373 U.S. 391 (1963)

Fayerweather v. Ritch, 195 U.S.

276 (1904)

Fox v. Maroney, 385 F. 2d 839

(3rd Cir. 1967)

Frank v. Mangum, 237 U.S. 309

(1915)

Page

Gurdner v. Florida, 430 U.S. 349

(1977) ae tS 9 |

Hampt Wurtck, 588 F. 2d

32 (8th Cir. 1978) 22

Ww a

(1977) 50

Henry v. Wainwright, 661 F. 2d 56

(Sth Cir. 1981) 32

Henry v. Wainwright, 686 F. 2d 311

(5th Cir. 1982) 32

opt v. Utah, 110 U.S. 574 (1884) 29

dv. Kentucky, 200 U.S. 164

(1906) 30

v. Davie, 454 U.S. 370

(1982) 43

Illinois v. Allen, 397 U.S. 337

(1970) 30

Martin v. Louisiana, 449 U.S. 998

(1980) 32

MeAnulty v. United States, 469 F.

2d 254 (6th Gis. 797a) 24

340° (1959) ae

Peters v. Kiff, 407 U.S. 493

(1972) 50

vi.

Page

Proffitt v. Florida, 428 U.S.

913 (1976) 1,30,38,47

Proffitt v. State, 315 So. 2d

416 (Fla. 1975) ) ae

Proffitt v. Wainwright, 685 F.

2d 1227 (1982) 11,20,40,47

Snyder v. Massachusetts, 241

u.3, 97; &37 (2936) 29

Stephens v. Zant, 631 F. 2d 397

(Sth Cir. 1980) 32

Strader v. Troy, 571 F. 2d 1263

(4th Cir. 1978) 22

Townsend v. Sain, 372 U.S. 293

(1963) 46

United States v. Couch, 566 F. 2d

1311 (5th Cir. 1978) 25

United States v. Etdum, 474 F.

2d 581 (9th Cir. 1973) 25

Untted States v. Frady, 71 L. Ed.

2d 816 (1982) 49

Wainwright v. Sykes, 433 U.S. 72

(1977) 8,28

Washington v. Watkins, 655 F. 2d

1346 (5th Cir. 1981) ll

vii.

Westbrook v. Baleom, 449 U.S.

999 (1980)

Willtams v. M

381 (Sth

Willitame v. New York, 337 U.S.

241 (1949)

Zant v. Stephens, 72 L. Ed. 2d

222 (1982)

Page

viii.

TEXTS, STATUTES AND AUTHORITIES

28 U.S.C. §1254

28 U.S.C. §2245

§2246

§2247

§2254

FLORIDA STATUTE 921.141 (1973)

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals,

Eleventh Circuit, is reported as 665 F.

241227 (llth Cir. 1982) and appears in

the Appendix as A-1-217. The amended

opinion on rehearing as A-218-222. The

Report and Recommendation of the Magis-

trate appears as A-223-361. The Memo-

randum Opinion of the District Court,

which is not reported, appears as A-362-

404. The opinion of the Supreme Court

of Florida affirming Respondent's con-

viction and sentence of death is re-

ported as Proffitt v. State, 315 So. 2d

461 (Fla. 1975). The opinion of this

Court upholding Florida's death penalty

Statute is reported as Proffitt v. Florida

428 U.S. 242 (1976).

JURISDICTIONAL STATEMENT

The judgment of the Eleventh Circuit

Court of Appeals was entered on September

10, 1982. A Petition for Rehearing and

Suggestion for Rehearing En Banc was

timely filed and denied on May 31, 1983

(A-218).

This Court's jurisdiction is in-

voked pursuant to 28 U.S.C. §1254 (1).

CONSTITUTIONAL, STATUTORY AND

RULE PROVISIONS INVOLVED

The Sixth Amendment provides:

AMENDMENT VI.

In all criminal prosecutions,

the accused shall enjoy the right

to a speedy and public trial, by

an impartial jury of the State and

district wherein the crime shall

have been committed, which dis-

trict shall have been previously

ascertained by law, and to be in-

formed of the nature and cause

of the accusation; to be con-

fronted with the witnesses against

him; to have compulsory process

for obtaining witnesses in his

favor, and to have the assistance

of counsel for his defense.

The Eighth Amendment provides:

AMENDMENT VIII.

Excessive bail shall not be

required, nor excessive fines im-

posed, nor cruel and unusual punish-

ments inflicted.

The Fourteenth Amendment provides,

inter alia:

AMENDMENT XIV.

No State shall make or enforce

any law which shall abridge the

privileges or immunities of citi-

zens of the United States; nor

shall any State deprive any person

of life, liberty, or property

without due process of law; nor

deny to any person within its

jurisdiction the equal protection

of the laws.

Florida Statute 921.141 (1973)

See A-405-412.

Title 28 U.S.C. §2245, 2246 and 2247.

See A-412-414.

Rule 7 of Rules Governing Section

2254 Cases in United States District

Courts. See A-414-415.

Rule 103 (a)(1) of Rules of Evidence

for United States Courts and Magistrates.

See A-415-416.

STATEMENT OF THE CASE

Respondent burglarized decedent's

apartment at 5:00 a. m. While decedent

was lying in his bed, Respondent stabbed

him in the chest with a butcher knife.

Respondent was charged by Florida

with murder in the first degree. A jury

returned a guilty verdict and at the bi-

furcated sentencing proceeding a jail

physician (Dr. Crumbley) testified that

Respondent had told him he had an uncon-

trollable desire to kill and that, in his

opinion, Respondent was dangerous. The

jury recommended the death sentence.

After the jury returned with a re-

commendation of death, the trial judge,

with the consent of the parties, appoin-

ted two psychiatrists to examine Respon-

dent. Each psychiatrist submitted written

reports, a copy of which was re-

ceived by all. Subsequently, an ad hoe

hearing was held where both psychiatrists

were scheduled to appear. One (Dr.

Coffer) did appear and was examined by

Respondent's counsel. Respondent, how-

ever, was not present during the psychi-

atrist's testimony because his counsel

had expressly waived his presence. The

other psychiatrist (Dr. Sprehe) did not

appear. Respondent's counsel requested an

opportunity to examine Dr. Sprehe con-

cerning his report, but the court pro-

ceeded to call and sentence Respondent

indicating counsel could depose the psy-

chiatrist and make his deposition part of

the record.

The Florida Supreme Court affirmed

the death sentence. Proffitt v. Florida,

315 So. 2d 461 (Fla. 1975). This Court

granted certiorari and on July 2, 1976,

rendered its decision affirming. After

Gardner v. Florida, 430 U.S. 349 (1977)

the Florida Supreme Court entered an or-

der asking the trial judge whether he had

imposed sentence on the basis of any

information not known to the defendant.

The trial judge filed a written response

saying, inter alia:

"The Court did not consider

presentence investigation .

[or]. . . psychiatric reperts."’

(Emphasis supplied)

Subsequently, after exhausting his

state remedies, Respondent filed a Peti-

tion for Writ of Habeas Corpus in the

district court, raising, among others,

the following issues:

(a) That the trial judge's imposi-

tion of sentence without allowing Respon-

dent to examine the psychiatrist, Sprehe,

violated Respondent's right to confronta-

tion; to due process; and to be free

from cruel and unusual punishment.

(b) That the introduction of psy-

ciatrist Coffer's testimony at the ad

hoe hearing, in Respondent's absence,

violated his constitutional right to be

present during the proceedings against

him.

relied on improper aggravating circum-

stances, thus invalidating the death

sentence.

Prior to the evidentiary hearing,

the trial judge's deposition was taken

at the express behest of Proffitt's

counsel. At the hearing, the deposition

was introduced in evidence by Proffitt's

counsel. In his deposition the judge

stated essentially that he had agreed

with the jury's recommendation of death,

but appointed the two psychiatrists to

eliminate the possibility of any miti-

gating circumstances. When they could

not furnish any mitigating circumstances,

he imposed the sentence of death without

considering either their testimony or

reports.

The district court, through its

acceptance of the magistrate's recommen-

dation, rejected each of the above is-

sues. While Petitioner had raised a

Wainwright v. Sykes, 433 U.S. 72 (1977)

procedural default as a bar, the district

court deferred ruling, stating that it

would first determine whether there was

any merit to any of the issues before

determining whether Respondent's proce-

dural defaults could be excused. (A-229-

232, footnote 4). Inasmuch as the dis-

trict court rejected all issues on their

merits, the district court did not deter-

mine the Sykes procedural default issues.

As to issue (a) above, the district

court held that Respondent's consti-

tutional rights were not violated when

he was denied the opportunity to cross-

examine the absent psychiatrist (Dr.

Spehe) concerning his report". .. be-

cause the trial court did not consider

Dr. Sprehe's report in imposing sentence”

(A-346). As to issue (b) the district

court rejected Petitioner's contention

that Proffitt's state trial counsel had

the authority to waive his client's

presence at the post trial ad toe hearing,

(A- 336-341), but held this alleged con-

stitutional violation to be harmless be-

yond a reasonable doubt inasmuch as

". . , petitioner's (meaning Proffitt)

sentence was not affected by any adverse

testimony that went unrebutted due to

this absence.''(A-345).

10.

In denying issue (c) the district

court said:

"The Supreme Court indicated

in Petitioner's case. Proffitt v.

Florida, 428 U.S. 242 (1976)

(opinion of Stewart, Powell &

Stevens, J.J.) that where at least

one statutory circumstance was

established and where no miti-

gating circumstance was found,

the death penalty could be im-

posed, consistent with the Con-

stitution without considering

whether each of the stututory

aggravating factors found by the

trial court was supported by

the evidence, Id. at 256 n. 13),

or whether the trial court con-

sidered nonstatutory aggravating

factors, (Id., at 250 n. 8, 256

m. 28).”

(A- 233-234)

Consequently, the district court

concluded that since this Court had

". . ,. read the trial court's findings

as holding that no statutory mitigating

factors existed. . ."" (A-235-236) and

since there was at least one valid

aggravating circumstance" .. . an in-

quiry into a trial court's findings con-

il.

cerning aggravating circumstances would

be inappropriate .. ." (A-237).

On appeal the Eleventh Circuit

reversed as to each of the above issues.

First, it held that under authority of

Washington v. Watkins, 655 F. 2d 1346 (Sth

Cir. 1981) this Petitioner had himself

waived any Syxee procedural default

waivers by not asserting the procedural

default in the district court, footnotes

36a, 46 and 60, Proffitt v. Wainwright,

685 F. 2d 1227 (llth Cir. 1982). This is

not so. (See A-229-233, footnote 4).

As to issue (a) the court of appeals

held that the precepts of Garder v. Florida,

430 U.S. 349 (1977) require not only dis-

closure of reports, but the right to cross-

examine the authors and (presumably) any

contributors to those reports, Proffitt v.

Wainwright, 685 F. 2d 1227, 1251-1255. It

held tnat the district court improperly

12.

accepted the trial judge's disclaimer of

having considered the reports because such

evidence, said the Eleventh Circuit is in-

admissible. The Court opiied that evi-

dence of a judge's thought processes is

inadmissible in a subsequent proceeding to

challenge his decision Id., 1255-2256. It

held that,assuming arguendo, it were ad-

missible, the trial judge only disclaimed

consideration of Dr. Sprehe's report, not

its use Id., 1255; and that Gardner is

violated when a report is used even if it

is not considered in imposing sentence.

As to issue (b) the Eleventh Circuit

agreed with the district court that

Proffitt's presence at the ad hoc hearing

was not waivable by his counsel, Id.,

1257-1258. It rejected, however the dis-

trict court's findings that Proffitt's ab-

sence was harmless beyond a reasonable

doubt, stating that since this issue in-

13.

volved a mixed question of law and fact,

it could simply disagree with the dis-

trict court. Id., 1258-1261.

With respect to issue (c) the Ele-

venth Circuit held that the trial judge

had improperly based his sentencing de-

cision in part on nonstatutory aggra-

vating factors and that two of the statu-

tory aggravating factors were improperly

found to exist. Id., 1261-1269.

First, the lower court held that

the sentencing authority had improperly

found the crime to be heinous, atrocious

or cruel, rejecting the contention that

this Court had, in Proffitt's very case,

determined that statutory aggravating cir-

cumstance valid as applied. Id., 1263-

1265. It also held that the trial judge

improperly found the statutory aggra-

vating factor of great risk to many per-

sons, stating it did not meet the Florida

14,

Supreme Court's construction of that pro-

vision. Id., 1264. Then the court held

that the trial judge had improperly based

his sentencing decision partly on non-

statutory factors; viz. that Respondent

has the propensity to commit the crime

for which he was convicted and is a dan-

ger to society. Id., 1266-1267. The court

reasoned that anytime the sentencing

authority considers factors outside those

delineated in the statute it increases

the risk that tne death penalty would be

imposed in an arbitrary and capricious

manner. Id., 1267-1268.

Finally, it rejected the district

court's conclusion that since this Court

had determined, in Proffit's very case,

that no mitigating circumstances were

found to exist and since, admittedly,

there was at least one valid statutory

15.

aggravating circumstance, the sentence

was not constitutionally infirm. Id.,

1268.

In its Petition for Rehearing and

Suggestion for Rehearing En Banc, Peti-

tioner, inter alia, pointed out to the

lower court that it was ignoring Title

28 U.S.C. §2245 and Rule 103 of the

Rules of Evidence for United States

Courts and Magistrates. L/

After holding

the cause some eight months on rehearing,

the lower court on May 31, 1983 denied

rehearing with a two page opinion. (A-

218-222).

~ In view of the multitude of issues,

and collateral issues, Petitioner had re-

quested the Eleventh Circuit for per-

mission to enlarge its petition from

15-25 pages, but the request was denied.

16.

A. REASONS FOR GRANTING WRIT

1. THESE ISSUES INVOLVE IMPORTANT

FEDERAL QUESTIONS CONCERNING

CAPITAL CASES.

While’ this Court has held that the

death sentence does not per se violate

the Eighth Amendment, the procedural due

process requirements that must be ob-

served before a sentence of death can

be imposed have been subjected to close

scrutiny by this Court and the circuit

courts of appeal; so much so, that in

the six (6) years since this Court upheld

the constitutionality of death statutes,

only in one instance has a death sentence

been carried out against the defendant's

will — almost as if he, rather than the

legislatures and the courts, can decide

his fate. It would seem that the fed-

eral courts are telling us that while

we can have the death penalty we cannot

RV.

enforce SS

This case presents a multitude of

issues which, when intelligently ans-

wered by this Court, would serve to

clarify, not only the proper scope of

habeas review, but whether the death

penalty is in fact only a paper

sanction.

(a) Importance of Question One

Question number one involves an

extension of Gardner v. Florida, 430

U.S. 349 (1977) which even the Eleventh

Circuit admits has not been addressed

by this Court. The Eleventh Circuit

holds that no report may be used in the

sentencing process in a capital case

without giving the defendant the oppor-

tunity to cross-examine the author of

that report (and presumably all persons

contributing to that report). It is one

thing to say thet a capital defendant

18.

must be furnished with the contents of

any report which is to be considered in

imposing sentence in order to give the

defendant the opportunity to rebut the

information contained therein. But,

to extend the precepts of Gardner to

the point of routinely affording the

defendant the opportunity to cross-

examine the author of a report, be it

psychiatric or presentence, simply be-

cause it is used in the sentencing pro-

cess even though it may not be con-

sidered in imposing sentence is an ex-

treme extension of Gardner; more so,

where, as here, the Respondent prior

to sentencing receives a copy of the

report and does not question, refute

or rebut its contents.

It is important for this Court to

resolve this issue because the lower

court's decision will greatly affect

19.

the use of presentence reports in capital

cases. This Court has recognized that

presentence investigation reports may

provide valuable information favorable

to the defendant which the sentencing

court might not otherwise obtain.

Williams v. New York, 337 U.S. 241 (1949).

Judges would be most reluctant to order

presentence investigation reports know-

ing that the authors and probably con-

tributors to those reports would be sub-

jected to cross-examination even where

what they say is not questioned, re-

futed or rebutted.

(b) Importance of Question Two

(1) The lower court's decision

departs from the accepted and usual course

of judicial procedure.

We recognize that the Eleventh Cir-

cuit held that the district court ".

should not nave considered the trial

20.

judge's post-decision statements .. ."

wherein he disclaimed consideration

of the psychiatric reports or testimony

in imposing sentence, Proffitt v. Wain-

wright, 685 F. 2d at 1255. But this

ruling, which is the subject of question

number two, is itself of great import-

ance not only in capital cases but in the

administration of habeas corpus proceed-

ings in federal courts; and, in fact,

runs counter to Title 28 U.S.C. §2245 and

2247. Moreover, it violates Rule 103 of

the Rules of Evidence for United States

Courts and Magistrates.

The lower court held that:

"[s]uch post-decision statements

by a judge .. . about his mental

processes in reaching decisions

may not be used as evidence in a

subsequent challenge to that

decision."

Proffitt v. Watnuright at 1255

ok.

But, §2245 allows exactly what the

lower court says cannot be done. Section

2245 provides:

"On the hearing of an application

for a writ of habeas corpus to

inquire into the legality of the

detention of a person pursuant to

a judgment the certificate of the

judge who presided at the trial

resulting in the judgment, setting

forth the facts occurring at the

trial, shall be admissible in

evidence. Copies of the certi-

ficate shall be filed with the

court in which the application is

pending and in the court in which

the trial took place."

Federal habeas proceedings are re-

plete with challenges to court decisions

wherein the thought process behind those

decisions are relevant, many of which

concern factors considered in sen-

tencing. Section 2245 has been specifi-

cally utilized to allow certificates

from state trial judges disclaiming

consideration és improper factors in

sentencing. Strader v. Troy, 571 F.

ee.

2d 1263 (4th Cir. 1978). In the instant

case two disclaimers were considered: one

via a "Gardner response" and the other by

way of the judge's sworn deposition. It

would seem that if a letter from a fed-

eral district judge suffices as a dis-

claimer under §2245, Fox v. Maroney, 385

F. 2d 839 (3rd Cir. 1967), a sworn de-

position by a state judge would similarly

qualify. In fact, a state judge's de-

position is held to be a sufficient

substitute for a certificate under §2245.

Hampton v. Wyrick, 588 F. 2d 632 (8th Cir.

1978), footnote 2.

Not only did the lower court ignore

§2245, but it ignored Rule 103 of the

Rules of Evidence for United States

Courts and Magistrates which provides

that error may not be predicated on the

admission of evidence absent an ob-

jection inasmuch as Proffitt was the

r ie

one who introduced the trial judge's

deposition which contained one of the dis-

claimers. Thus, it is apparent that the

lower court has so departed from the

accepted and usual course of judicial

proceedings so as to call for an exercise

of this Court's supervisory powers.

Furthermore, since Gardner v. Florida,

the Florida Supreme Court has, as a mat-

ter of course, in capital cases, entered

orders directing the :entencing judges

to respond as to whether they considered

any material not disclosed to the defense

in imposing sentence. These "Gardner

responses" have been recognized as a

valid and responsible procedural device

to assure that the dictates of this Court

in Gardner have been met. See Alford v.

State, 355 So. 2d 108 (Fla. 1977) cert.

denied 436 U.S. 935.

The Eleventh Circuit has now invali-

24.

dated them.

We submit that unless this Court

grants Certiorari on this issue, tnis

Court's precepts in Gardner cannot be

met because, unless we can ask a judge,

it will be impossible to determine what

he did or did not consider.

(2) The decision of the lower

court on question number two is in con-

flict with decisions of other circuit

courts of appeal.

In holding that disclaimers by trial

judges denying they considered imper-

missible factors in sentencing may not

be considered, the decision of the Ele-

venth Circuit is not only in conflict with

the Third Circuit, For v. Maroney, and

the Fourth Circuit, Strader v. Troy, supra,

but also with the Eighth Circuit, McAnulty

v. United States, 469 F. 2d 254 (8th Cir.

r fo

1972), Hampton v. Wyriek, supra, and the

Ninth Circuit, United States v. Etdum,

474 F. 2d 581 (9th Cir. 1973), all of

which hold that disclaimers by trial

judges, denying they have considered.

impermissible factors in sentencing,

not only may be considered but must be

accepted.

Moreover, the lower court mis-

applies the two cases upon which it re-

lies; Fayerweather v. Riteh ,195 U.S.

276 (1904) and United States v. Couch,

566 F. 2d 1311 (5th Cir. 1978) and is

in fact in conflict with Couen. In

Jouen, a trial judge had declared a

mistrial. A dispute arose as to the

reasons for the mistrial. Im 4a

memorandum opinion issued weeks after

the mistrial was declared, the trial

judge disclaimed it was for personal

reasons. The Fifth Circuit accepted

26.

at face value this disclaimer, saying

"a judge's statement of mental

processes is absolutely unreview-

able,"

Id., at 1316

What Fayerweather holds is that a

judge's statement about his thought pro-

cesses in reacning a decision may not be

used in a subsequent proceeding to im-

peach that decision. Fayerweather does

not say it may not be used to support

that decision.

Three.

The Constitution guarantees to every

criminal defendant the assistance of

counsel. This Court has vigilantly pro-

tected that right. If counsel's assis-

tance is so sacrosanct, one has to assume

that it must be because the Constitution

and this Court considers his expertise

so vital that counsel's authority to act

27.

in the defendant's stead cannot, except

in the most limited situations, be ques-

tioned.

This issue involves the limitations

and extent of that authority. After the

jury returned its verdict of guilt and

recommendation of death, the trial judge

appointed two psychiatrists to examine

Respondent before he imposed sentence.

Prior to the ad koe hearing, where one of

the psychiatrists testified, Respondent's

counsel specifically waived Respondent's

presence during the psychiatrist's testi-

mony. Nevertheless, the Eleventh Circuit

held that ". . . presence at a capital

trial is nonwaivable," Proffitt v. Waine-

wright, at 1257; and, while recognizing

that this ad hoe proceeding was not part

of the trial, held it to be a "critical

stage"; therefore, Respondent's presence

was nonwaivable by his counsel.

28.

On more than one occasion, the Jus-

tices of this Court have commented that

once a defendant has the assistance of

counsel, the vast array of decisions,

both strategic and tactical, rests with

the attorney. Watnuright v. Sykes, 433

U.S. 72, 53 (1977), Estelle v. Williame,

425 U.S. 501 (1976).

This case serves as a further re-

finement of that authority. It is im-

portant that the bench and bar under-

stand the extent and limitations of that

authority. It is important to the bar as

attorneys must know whether they are mere

pawns in a higher game played by the

federal courts; it: is important to the

bench so that judges can determine once

and for all whether they, not lawyers,

should conduct the defense of the accused.

29.

(1) The Decision of the Lower

Court Conflicts With Prior Decisions of

This Court.

The Eleventh Circuit based its con-

clusion thet presence at a capital case

is nonwaivable on Diaz v. United States,

223 U.S. 442 (1912) and Hopt v. Utah,

110 U.S. 574 (1884), but neither of those

cases are predicated on constitutional

grounds. Diaz involved the construction

of a Phillipine statute dealing with the

defendant's right to be present and opt

dealt with a Statute of the territory of

Utah also requiring the defendant's

presence. Moreover, what this Court

said in Hopt ". . . on the subject of the

presence of the defendant was dictum,

and no more." Snyder v. Massachusetts,

291 U.S. 97, 117 (1934) footnote 2.

While the Constitution does not

30.

specifically require the presence of an

accused at his trial, we do not chal-

lenge his right to be present. But be-

cause he may have a right to be present

does not mean he cannot waive that

right. This Court has recognized that

this right may be waived either through

the defendant's actions, Illinote v.

Allen, 397 U.S. 337 (1970) or by his

attorney, Frank v. Mangum, 237 U.S. 309

(1915), Howard v. Kentucky, 200 U.S.

164 (1906) and the decision of the lower

court is in direct conflict with those

cases.

(d) The Importance of Question

Number Four.

Since the Court decided Proffitt v.

Florida, 428 U.S. 242 (1976) a vigorous

debate has arisen as to whether a sen-

tence of death is, necessarily, con-

stitutionally infirm where it is based

31.

in part on nonstatutory factors or be-

Cause one or more of the statutory

factors lacked evidentiary sufficiency.

We submit that the Court answered the

question in the negative in Proffitt ».

orida. This is manifest because this

Court was clearly aware that at least one

of the aggravating factors found to exist

was nonstatutory and that at least oneof

the statutory aggravating factors lacked

evidentiary sufficiency. Yet in foot-

note 13 of Prof;

Court indicated it was not fatal where

there were no mitigating factors to out-

weigh the remaining valid aggravating

factors.

Nevertheless, and although, as we

believe, this Court has answered the

question, the issue is a recurring one.

32.

Stephene v. Zant, 631 F. 2d 397 (Sth

Cir. 1980), cert. granted, 70 L. Ed 2d

82 (1981), question certified, Zant »v.

Stephens, 72 L. Ed 2d 222 (1982), Henry

v. Watnwright, 661 F. 2d 56 (Sth Cir.

1981), cert. granted, judgment vacated,

73 L. Ed. 2d 1326, but see Henry v. Wain-

wright, 686 F. 2d 311 (Sth Cir. 1982).

Barclay v. Florida, 74 L. Ed. 2d 382

(1982), Williams v. Maggio, 679 F. 2d

381 (5th Cir. 1982), Martin v. Loutsiana,

449 U.S. 998 (1980), Drake v. Zant,

449 U.S. 999 (1980), Westbrook v.Baleum,

449 U.S. 999 (1980). Thus it is an issue

which has plagued at least Florida,

Georgia and Louisiana.

Moreover, the lower court's reso-

lution of this issue is in direct conflict

with the decision of the Fifth Circuit

in Williams v. Maggio, supra.

33.

Because it is recognized that the

issue in the instant case is similar to

the issue raised in Zant v. Stephene,

and Barelay v. Florida, wherein this

Court granted Certiorari and since the

issue remains unresolved we urge the

Court to grant Certiorari.

(1) The decision of the Eleventh

Circuit on question numbered four con-

flicts with the decisions of this Court

in Proffitt v. Florida and Alabama v.

Evans, Case No. 8-858 decided April

22, 1983.

The Eleventh Circuit recognized

that there was at least one valid ag-

gravating factor in Proffitt's case;

viz: that the murder was committed dur-

ing the course of a burglary. Neverthe-

less, the court stated:

34.

"We cannot conclude, how-

ever, that appellant's

entry of the victim's house,

which he did for the pur-

pose of committing the mur-

der, was a circumstance

"sufficient[ly] aggravating"

in nature that the judge

necessarily would have in-

posed the death penalty on

that ground alone.

But, the Eleventh Circuit refused

to consider that the Florida Supreme

Court independently, reviewed and re-

weighed the sentence of death and found

it to be proper.

In Proffitt v. Florida, this Court

said:

"The Florida capital sen-

tencing procedures thus

seek to assure that the

death penalty will not

be imposed in an arbitrary

Or capricious manner.

Moreover, to the extent

that any risk to the con-

trary exists, it is mini-

mized by Florida's appellate

review system, under which

the evidence of the aggra-

vating and mitigating

35.

circumstances is reviewed

and reweighed by the Sup-

reme Court of Florida "to

determine independently

whether the imposition of

the ultimate penalty is

warranted."

428 U.S. 252-253 (emphasis

supplied)

Consequently, regardless what the

Eleventh Circuit could or could not

determine with respect to whether any

one aggravating circumstance would have

been sufficiently aggravating for the

sentencing trial judge court this Court

has suggested that a sentence of death

is not constitutionally infirm where the

highest state appellate court reviews

that sentence, reweighs it and independ-

ently finds it to be proper. See for

example Alabama v. Evans. This is be-

cause, we believe, appellate sentencing

is not constitutionally prohibited.

36.

Perhaps this Court did not mean to

thusly suggest. If so then this is the

forum by which it now can and should

clarify its position as to the impact

on the capital sentencing process of

a review and independent reweighing of

the sentence of death by the highest

court of a state. It should by now

be abundantly clearf. this Court that

lower federal courts are imposing such

stilted sentencing procedures that

channelled or structured discretion

is impossible. They are imposing

mechanical procedures better left to

computers and which, we submit, this

Court never intended — all in the

hopes of destroying capital punish-

ment through attrition.

Resolution of this question is a

must for a determination of the proper

application of capital procedures and

the role federal courts should play in

the process.

(e) The Importance of Question

Five.

Simply stated this question involves

the issue of whether this court's

opinions mean anything.

The victim in this case was stabbed

in the chest, with his wife at his side,

while lying in bed at night. The state

trial judge found as, aggravating cir-

cumstances among others, that the crime

was especially heinous, atrocious or

cruel and that the defendant knowingly

created a great risk of death to many

persons.

Although the Florida Supreme Court

affirmed the sentence of death and al-

though in Proffitt's very case this

Court approved the construction given

38.

these factors as not being imper-

missibly vague or broad, Proffitt v.

Florida, 428 U.S. 255-256, the Eleventh

Circuit, ignoring precedent and the law

of the case concept held these factors

to be unconstituticnally vague as

applied. First, the Court held that

this crime did not meet the construction

placed on the heinous, atrocious or

cruel factor as one being conscienceless

or pitiless in the sense that it is un-

necessarily tortorous to the victim.

Second, that the great risk of death to

many persons factor was based more on

caprice than on reason.

The Eleventh Circuit attempted to

circumvent this Court's holding by

stating that this Court in Proffitt v.

Florida, never determined the consti-

tutionality of these factors as applied.

39.

Perhaps the Justices of this Court were

speaking to themselves rather than the

nation when they wrote footnote 12 of

pyoffict. Therein this Court said:

12. The Supreme Court of

Florida has affirmed death

sentences in several cases

including the instant case

where this eignth statu-

tory aggravating factor was

found without specifically

stating that the homicide

was "pitiless" or "tortu-

rous to the victim"

* 2 °° 22] eee

(Citing Numerous Cases)

x «+ 2. #2 28 3.2

But the circumstances of all

these cases could accurately

be characterized as "piti-

less" and "unnecessarily

torturous," and it thus does

not appear that the Florida

Court has abandoned the de-

finition that it announced

in Dixon and applied in

Alford, Tedder, and Halli-

well.

(emphasis supplied)

40.

Thus in Proffitt's very case this

Court held that the murder fell within

the heinous, atrocious or cruel ag-

gravating factor.

Not satisfied with substituting

its judgment for that of this Court

with respect to statutory aggravating

circumstances the Eleventh Circuit

went further and stated that the sen-

tencing state trial judge did in fact

find mitigating circumstances to exist

and that the ". . . state's characteri-

zation . that there were none

found, was incorrect. Proffitt v. Wain-

wright, 685 F. 2d at 1268.

The problem is that this "characti-

zation’ was not made by the ''state"’.

It was made by the Supreme Court of the

United States.

41.

Thrice this Court in Proffitt's

very case stated the trial judge did

not find mitigating circumstances.

First it said that:

tie

The judge also found speci-

fically that none of the

statutory mitigating cir-

cumstances existed."

(428 U.S. at 247)

Then in footnote 13 this Court

twice made the same point. It said first

if some mitigating

circumstances had been

found to exist 5

clearly referring to the fact that none

were. Further on in the same footnote,

the Court said

each mitigating cir-

cumstance was expressly

found not to exist."

Manifestly it was essential to the

Eleventh Circuit's decision to make a

determination that the trial judge's

findings with respect to the above two

aggravating circumstances were improper

42.

and that there were in fact some miti-

gating circumstances found to exist

in order to dispel any harmless error

argument.

The decision of the Eleventh Cir-

cuit is not only in conflict with the

decision of this Court in Proffitt v.

Florida, and with its recent decision

in Alabama v. Evans, Case No. 8-858,

decided April 22, 1983, wherein this

Court held that the construction of

the aggravating factor of great risk of

death to many persons was properly

for the Alabama Courts, but also con-

flicts with the basic tenet that what-

ever was before this court and dis-

posed of is finally settled. N.A.A.C.P.

v. Alabama, 360 U.S. 240 (1959), Deen

v. Htekman, 358 U.S. 57 (1958) Ex Parte

Sitbbold v. United States, 37 U.S. 488

(1838).

43,

The question is important because

by ignoring this court's opinion in

Proffitt's very case the Eleventh

Circuit departed from the accepted

course of judicial proceedings. If the

opinions of this Court are to be ac-

corded the respect to which we believe

they are entitled and which we believe

this Court demands from the state

judiciary it should also require the

same respect from the federal judiciary.

This question falls squarely within

what this Court said in Hutto v.

Davis, 454 U.S. 370, 374-375 (1982):

More importantly, however,

the court of Appeals could

be viewed as having ignored,

consciously or unconsciously,

the hierarchy of the fed-

eral court system created

by the Constitution and

Congress. Admittedly, the

Members of this Court de-

cide cases "by virtue of

their commissions, not their

competence."’ And arguments

may be made one way or the

44,

other whether the pre-

sent case is distinguish-

able, except as to its

facts, from Rummell. But

unless we wish anarchy to

prevail within the fed-

eral judicial system, a

precedent of this Court

must be followed by the

lower federal courts no

matter how misguided the

judges of those courts

may think it to be.

(e) The Importance of Question

Six, 4/

~ This question was raised below by

way of the Petition for Rehearing

and Suggestion for Rehearing En Banc.

45,

For years now, federal courts

have been lamenting the increased

work load arising through federal

habeas petitions. Yet, while pay-

ing lip service to such statements

as "a petition for writ of habeas

corpus may not do service for an

appeal," "error that will justify

reversal on direct appeal will not

necessarily support ccllateral

review,'' or "plain error does not

necessarily suffice to justify

habeas relief,'' federal courts

have, in practice, been sitting as

super appellate courts, setting

asise state judgments simply be-

cause they do not agree.

46.

It has become fashionable to

blame Congress. But the truth of

the matter is that Title 28 U.S.C.

§2254 is not of recent vintage. Court

interpretations of §2254, expanding the

powers of federal courts with respect

to the "Great Writ" have been the true

culprits. See Fay v. Nota, 372 U.S.

391 (1963), Townsend v. Satin, 372 U.S.

293 (1963). Every time this Court has

taken one step in expanding the Writ,

the lower federal courts (by leap-

frogging) have jumped ten. Yet, when-

ever this Court has rendered a limi-

ting interpretation federal circuit

courts of appeal have strained to

minimize its impact.

The decision of the lower court is

47.

a prime example. Whenever it disagreed

with any finding, or ruling, be it of

the state court, district court, or even

of this Court, it did not hesitate to

discard it by either ignoring it, or by

simply saying "we do not have to and we

do not agree.'' Thrice this Court said

in Proffitt's very case that no miti-

gating circumstances were found to

exist. Proffitt v. Florida, 428 U.S. at

242 and footnote 13. The lower court

disagreed and simply ignored this

Court's decision. Proffitt v. wWain-

wright, 685 F. 2d at 1268. When the

district court said that the taking of

the psychiatrist's testimony, in Res-

pondent's absence, was harmless beyond

a reasonable doubt, the lower court

held that this was a mixed question of

law and fact, and thus it could disagree,

48.

Id., at 1258 - 1260 and footnote 48,

concluding it was not harmless because

there was the possibility that Respon-

dent's presence might have made a differ-

ence to the psychiatrist's opinion. Id.,

at 1260. Again, when the district court

concluded that, in the absence of miti-

gating circumstances, an inquiry into

the sufficiency of the one admittedly

valid aggravating factor to justify the

sentence of death was inappropriate, the

lower court simply disagreed and substi-

tuted its judgment. Id., at 1268.

This case vividly underscores the

need for a definitive standard by which

federal courts are permitted to review

state court judgments. Is a state judg-

nent going to be set aside simply be-

cause a federal court disagrees, under

the guise of calling it a mixed question

of law and fact; or, are federal courts

49.

going to be bound by a stricter

standard which restores some semblence

of integrity to those judgments?

We suomit that the Court's recent

decisions in Engle v. Isaac, 71 L.Ed.

2d 783 (1982) and United States v. Frady

71 L.Ed 2d 816 (1982) point the way.

While those cases are primarily con-

cerned with procedural defaults, we

believe the time has come for this

Court to announce that once a defendant

is incarcerated and sentenced pursuant

to a presumably valid judgment, habeas

relief should not be granted in the

absence of fundamental error or mani-

fest miscarriage of justice and that no

longer may a federal court grant habeas

relief simply because it disagrees or is

not in philosophical accord with the

judgment or sentence. Certain Constitu-

50.

tional errors may be so fiindamental that

prejudice is presumed, such as those

involving conflicts of interest, Cyler

v. Sullivan, 446 U.S. 335 (1980) or jury

discrimination selection procedures,

Peters v. Kiff, 407 U.S. 493 (1972).

But, in the absence of error of such

magnitude, wherein because of policy

considerations, prejudice must be pre-

sumed, we submit that constitutional

error should not, of itself, suffice

to grant habeas relief in the absence

of some showing, by the habeas petiti-

oner, of a manifest miscarriage of

justice, or fundamental error. Compare

Henderson v. Kibbie, 431 U.S. 145 (1977),

Kaufman v. United States, 394 U.S. 217

(1969), Justice Black dissenting. We

urge the Court to grant Certiorari on

this issue and limit the flagrant

abuse of the Writ.

oh.

CONCLUSION

For these reasons, Petitioner

respectfully urges this Court to grant

Certiorari and reverse the holding of

the Eleventh Circuit Court of Appeals.

Respectfully Submitted,

JIM SMITH

ATTORNEY GENERAL

C ; ;

Assistant Attorney Géheral

1313 Tampa Street, Suite 804

Park Trammell Building

Tampa, Florida 33602

(813) 272-2670

COUNSEL FOR PETITIONER

> e

I, CHARLES CORCES, JR., Counsel

for Petitioner, and a member of the

Bar of the United States Supreme Court,

hereby certify that on the £/ day of

er i983. I served three copies

of the Petition for Writ of Certiorari

on Kathryn Emmett, Esq., 8 Pheasant

Lane, Stamford, Connecticut, 06903,

Mr. David Golub, Esq., Silver, Golub &

Sandak, 733 Summer Street, Stamford,

Connectic 06905, and Debroah Fins, Esq.,

Suite 2030, 10 Columbus Circle, New

York, New York, 10019, by a duly

addressed envelope with postage pre-

Assistant Attorney General

Case No.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1982

LOUIE L. WAINWRIGHT, Secretary, Florida

Department of Offender Kehabilitation,

Petitioner,

Vv.

CHARLES WILLIAM PROFFITT,

Respondent

APPENDIX

FOR

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

JIM SMITH

ATTORNEY GENERAL

CHARLES CORCES, JR.

Assistant Attorney General

1313 Tampa Street, Suite 804

Park Trammell Building

Tampa, Florida 33602

(813) 272-2670

COUNSEL FOR PETITIONER

A-1

Charles William PROFFITT,

Petitioner-Appellant,

Vv.

Louie L. WAINWRIGHT, Secretary, Florida

Department of Offender Rehabilitation,

Respondent-Appellee.

United States Court of Appeals

Eleventh Circuit

Sept. 10, 1982

Florida prisoner, who has been

sentenced to death on conviction of first-

degree murder, sought federal habeas

corpus. The United States District Court

for the Middle District of Florida, Wm.

Terrell Hodges, J., denied relief, and

petitioner appealed. The Court of Appeals,

Kravitch, Circuit Judge, held that: (1)

district court judge's rejection, without

hearing testimony, of magistrate's recom-

mendation concerning claims of ineffective

representation was not error where

A-2

credibility choices were not dispositive;

(2) defendant was not denied effective

assistance of counsel at penalty or guilt

phases; (3) right to cross-examine adverse

witnesses applies to capital sentencing

proceedings at least where necessary to

insure reliability of the witness' testi-

mony; (4) violation of defendants right

to be present at taking of psychiatrist's

testimony at penalty stage was not harm-

less beyond a reasonable doubt; (5) re-

lying on nonstatutory aggravating factors

violated state as well as federal consti-

tutional law; and (6) unconstitutional

application of statutory aggravating fac-

tors and consideration of nonstatutory

ones entitled petitioner to resentencing.

Affirmed in part; reversed in part;

and remanded.

1. Criminal Law §986.2(1)

It is constitutionally required in

A-3

capital cases that the sentencing auth-

ority consider all mitigating evidence

proffered by defendant relating to his

character and record and to circumstances

of the particular offense. U.S.C.A. Const.

Amend. 8

2. Habeas Corpus §85.3 (1)

Magistrate's reliance on petitioner's

written proffer of mitigating evidence

that counsel could have introduced at pen-

alty phase of capital trial did not cons-

titute competent evidence on claim of in-

effective assistance of counsel and even

if it had constituted competent evidence

rejection by the district court of such

nontestimonial evidence would not have re-

quired a second evidentiary hearing in

connection with the district judge's re-

jection of magistrate's recommended ruling.

28 U.S.C.A. §636(b) (1), (b) (1) (B) ;U.S.Dist.

Ct. Rules M.D.Fla., General Rule 6.02.

3. Habeas Corpus §113 (13)

Where district judge did not dis-

believe defense counsel's testimony ,which

the magistrate had accepted, to effect

that counsel engaged in no special pre-

paration for penalty phase but simply dis-

agreed that such separate preparation

was required to meet the legal standard

of reasonably effective counsel, the

judge's rejection of magistrate's recom-

mended ruling that failure to present

mitigating evidence rendered represen-

tation adequate did not depend on a dif-

ference in credibility choices requiring

a rehearing before the district judge.

28 U.S.C.A. §636(b) (1), (b) (1) (B); U.S.Dist.

Ct. Rules M.D. Fla., General Rule 6.02.

4. Habeas Corpus §59

Although district judge's disagree-

ment with magistrate on whether counsel's

failure to request a presentence investiga-

A-5

tion constituted ineffective assistance

directly concerned counsel's testimony

at the evidentiary hearing on habeas

petition and in some sense could be viewed

as a difference of interpretation, the

difference was not a matter of credibility

requiring a hearing before district judge

rejected magistrate's conclusion of in-

effective assistance as matter was not one

where magistrate believed counsel was tel-

ling the truth and the district court dis-

believed his testimony but was only a

matter of interpretation. 28 U.S.C.A. §

636 (b)(1),(b) (1) (B); U.S.Dist.Ct. Rules

M.D.Fla., General Rule 6.02.

5. Habeas Corpus §90

Unless words spoken by a witness are

inherently ambiguous, decision whether a

second habeas hearing before the district

judge is necessary before the judge dis-

agrees with the magistrate's recommenda-

A-6

tions is left to the sound discretion of

the district judge. 28 U.S.C.A.§636 (b)

(1) (B);U.S.Dist.Ct. Rules M.D. Fla.,

General Rule 6.02.

6. Habeas Corpus §59

Additional hearing by district judge

has noc required before rejecting magis-

trate's recommendation that counsel's

failure to object co admission of testi-

mony of psychiatric consultant who had

examined petitioner for sheriff's office

following arrest was ineffective repre-

sentation where although judge disagreed

with magistrate's statement that consul-

tant's testimony was unnecessary to es-

tablish statutory mitigating factors as

regards death penalty that disagreement

did not rest on rejection of credibility

choices made by the magistrate and that

part of counsel's testimony given cre-

dence by the judge was not mentioned by

the magistrate. 28 U.S.C.A. §636 (b)(1),

(b)(1)(B); U.S. Dist. Ct. Rules M.D.

Fla., General Rule 6,02.

7. Habeas Corpus §59

No additional hearing was required

by district judge before rejecting magis-

trate's recommendation that petitioner was

denied effective assistance of counsel at

penalty stage for failure to explain a

prior conviction where neither magistrate's

nor judge's conclusions on the issue were

based on any testimony at evidentiary

hearing and opinions of each and disagree-

ment between them were based solely on

petitioner's written proffer and on re-

view of trial transcript of penalty phase.

28 U.S.C.A. §636(b) (1), (b) (1) (B);U.S.Dist.

Ct. Rules M.D.Fla., General Rule 6.02.

8. Witnesses §192

Florida law employs an objective stan-

dard of confidentiality as regards con-

fidential communications between spouses.

9. Criminal Law §641.13(6)

Counsel's failure to present evidence

in support of motion to suppress testimony

by individual who resided with defendant

and his wife did not constitute ineffective

assistance where likelihood that defendant

would have prevailed on claim of spousal

privilege was not great and situation was

such that the spouses knew or should have

known that the communication was being

overheard. U.S.C.A.Const. Amend. 6.

10. Criminal Law §1158 (1)

District court's conclusion on whether

defendant enjoyed effective assistance of

counsel is entitled to no special defer-

ence as it is a mixed question of fact and

law and appellate court must review the

record of counsel's actual performance in

determining independently whether the con-

stitutional standard was met. U.S.C.A.

Const. Amend. 6.

A-9

11. Criminal Law §641.13 (1)

Constitutional right to effective

assistance of counsel is satisfied by rea-

sonably effective assistance and a defend-

ant is not entitled to errorless counsel

and counsel's performance may not be

judged by benefit of hindsight.

U.S.C.A. Const. Amend. 6

12. Criminal Law §641.13 (1)

Constitutional standard for effective

assistance of counsel is no more stringent

in capital cases than in cases where less

severe punishments are imposed; neverthe-

less, seriousness of the charges is a fact-

or that must be considered in assessing coun-

sel's performance, U.S.C.A. Const.Amend.6.

13. Criminal Law §641.13(6)

Petitioner was not denied effective

assistance of counsel by failure to call

character witnesses at 1974 capital sen-

tencing hearing at counsel's belief that

A-10

under Florida law he could not introduce

evidence of nonstatutory mitigating factors

was entirely reasonable and the 1978

Lockett decision, i.e., that sentencer must

be free to consider all relevant mitigating

circumstances, was not clearly fore-

shadowed. U.S.C.A.Const. Amend. 6.

14. Criminal Law §641.13(7)

Failure to request presentencing

investigative report did not work a denial

of effective assistance of counsel at

penalty stage of capital punishment case

where, under then existing law, counsel

reasonably understood the rule as limiting

mitigating evidence to statutory factors

and there was no showing that investigation

at time of trial would have revealed

evidence substantiating any statutory miti-

gating factor or repeating any of the

aggravating factors asserted by the prose-

cution and, at time of 1974 trial, Florida

A-11

law did not provide for presentence

investigations in capital cases. West's

F.S.A. §§ 921.141, 921.231; U.S.C.A.

Const.Amend. 6.

15. Criminal Law §641.13(2, 6)

Under law as it existed in 1974, it

could not be said that counsel's decision

to raise psychiatric mitigating factors in

capital penalty case without first

obtaining expert assistance or undertaking

further investigation rendered his assist-

ance constitutionally defective, notwith-

standing that he relied solely on a

prosecution witness who, while acting as

psychiatric consultant for sheriff had

examined defendant shortly following arrest

to establish a mitigation defense and

representation was not ineffective merely

because counsel, who learned of the conver-

sations the night before trial, did not

seek a continuance. West's F.S.A. §

A-12

921.141; U.S.C.A.Const.Amend. 6.

16. Criminal Law §641.13(2)

Brevity of sentencing argument and

failure to object to various arguments and

evidence presented by the prosecution at

capital penalty phase was not shown to have

constituted ineffective assistance of

counsel. West's F.S.A. § 921.141; U.S.C.A.

Const.Amend. 6

17. Criminal Law §662(1)

Right to cross-examine adverse wit-

nesses is guaranteed to criminal defendants

by the confrontation clause of the Sixth

Amendment. U.S.C.A.Const.Amend. 6.

18. Witnesses §266

Rights guaranteed by the Sixth

Amendment, including right to cross-

examination, are only applicable to pro-

ceedings that constitute critical stages of

trial. U.S.C.A.Const.Amend. 6.

19. Criminal Law §1208(1)

A-13

Because the death penalty, unlike other

punishments, is permanent and irrevocable,

the procedures Sy which the decision to

impose a capital sentence is made bring

into play constitutional limitations not

present in other sentencing decisions.

West's F.S.A. § 921.141.

20. Criminal Law §986.2(3)

Florida capital penalty defendant had a

constitutional right to cross-examine

court-appointed psychiatrist before

psychiatrist's report could be used by the

trial judge in determining sentence.

West's F.S.A. § 921.141; U.S.C.A.Const.

Amend. 6.

21. Witnesses §266

Right to cross-examine adverse wit-

nesses applies to capital sentencing

proceedings, at least where necessary to

insure reliability of the witnesses'

testimony. West's F.S.A. § 921.141;

A-14

U.S.C.A.Const.Amend. 6.

22. Habeas Corpus §113(12)

District court's fact findings in a

habeas proceeding are binding on the

reviewing court unless clearly erroneous.

23. Habeas Corpus §92(1)

District court on habeas petition

should not have considered state trial

judge's post-decision statements concerning

the influence that various facts had on his

decision to impose capital penalty as the

the trial judge's testimony was not limited

to matters of basic, historical fact but

directly addressed the effect of the chal-

lenged psychiatric evidence on his sen-

tencing decision.

24. Criminal Law §956(1), 957(1)

Postdecision statements by a judge or

juror about his mental process in reaching

decision may not be used as evidence in a

subsequent challenge to the decision.

A-15

25. Habeas Corpus §113(12)

Finding at capital penalty phase that

state trial court did not consider, report

of psychiatrist whom petitioner was not

permitted to cross-examine was clearly

erroneous in view of trial judge's testi-

mony that he received and read the report

and considered it for limited purpose of

ascertaining whether it supported the

psychiatric mitigating circumstance and

that after determining that the report did

not support such mitigating factors he did

not consider it further. U.S.C.A.Const.

Amend. 6.

26. Constitutional Law §268 (6)

Criminal Law §636(1)

Defendant's right to be present at all

stages of a criminal trial derives from the

confrontation clause of the Sixth Amend-

ment and due process clause of the Four-

teenth Amendment. U.S.C.A.Const.Amends. 6,

A-16

14.

27. Criminal Law §636(3)

Defendant's right to be present at all

stages of trial extends to all hearings

that are an essential part of the trial,

i.e., to all proceedings at which

defendant's presence has a relation,

reasonably substantial, to the fullness of

his opportunity to defendant against the

charge. U.S.C.A.Const.Amends. 6, 14.

28. Criminal Law §636(1)

A defendant's constitutional right to

be present at trial extends to the sen-

tencing as well as the guilt portions of

the capital trial. West's F.S.A. §

921.141; U.S.C.A.Const.Amends. 6, 14.

29. Criminal Law §636(4)

Ad hoc proceeding scheduled by Florida

trial judge after completion of formal sen-

tencing hearing to allow cross-examination

concerning court-ordered psychiatric re-

A-17

ports was a "critical stage” of trial at

which the capital penalty defendant had a

constitutional right to be present, in that

under Florida law the judge is the ultimate

decision maker as regards c-pital punish-

ment. West's F.S.A. §921.141;

U.S.C.A.Const.Amends. 6, 14

See publication Words and Phrases for

other judicial constructions and defini-

tions.

30. Criminal Law §636(2)

A defendant's presence at a capital

trial is nonwaivable. U.S.C.A.Const.

Amends. 6, 14.

31. Criminal Law §636(2)

Even if a defendant may waive his right

to be present at a capital trial, defendant

did not Knowingly or voluntarily waive his

right to presence at hearing to allow

cross-examination concerning court-ordered

psychiatric reports where it was not dis-

A-18

puted that defendant was neither apprised

of hearing at which one psychiatrist testi-

fied or afforded an opportunity to assert

his right to attend. U.S.C.A.Const.Amends.

6, 14.

32. Habeas Corpus §30(1)

Where the state did not argue that

failure to raise on direct appeal issue of

counsel's waiver of capital defendant's

presence during portion of sentencing phase

the federal court would not consider such

waiver as a hasis for denying the claim on

habeas corpus.

33. Habeas Corpus §113(12)

In reviewing questions of law and mixed

questions of facts and law, the Court of

Appeals is free to substitute its own

judgment for that of the district court in

a habeas corpus proceeding.

34. Habeas Corpus §113(12)

Determination whether constitutional

A-19

error is harmless presents a mixed ques-

tion of fact and law and is a matter on

which reviewing court, in a habeas

proceeding is free to substitute its own

judgment, although it will defer to the

district court's subsidiary findings absent

clear error.

35. Criminal Law §1166.14

Error in denying defendant his right to

hear testimony of psychiatrist who con-

ducted court-ordered examination at penalty

phase of capital case was harmless where

only aggravating circumstance to which the

report and testimony were relevant was

amply substantiated by defendant's own

statements to another medical witness, who

related them at sentencing, and defendant

did not indicate that his presence would

have enabled him to rebut the psychi-

atrist's testimony on the issue.

U.S.C.A.Const.Amends. 6, 14.

A-20

36. Habeas Corpus §45.2(4)

Whether or not petitioner's absence at

hearing concerning court-ordered psychi-

atric reports likely prejudiced him was not

the applicable standard in determining a

constitutional error but rather, if there

was any reasonable possibility that the

Capital defendant's absence and inability

to respond to the testimony affected the

capital sentencing decision, the habeas

court would not engage in speculation as to

the probability that petitioner's presence

would have made a difference. U.S.C.A.

Const.Amends. 6, 14.

37. Criminal Law §1166.14

Florida defendant's absence from

hearing at which the trial judge considered

court-ordered psychiatric report was not

harmless error where neither counsel nor

the examining doctors were aware of fact

that petitioner was then receiving anti-

A-21

psychotic medication and evaluation of

mental state at time of offense was based

in part on observation that, at time of

examination, petitioner exhibited no

psychotic tendencies and petitioner

presented additional evidence, such as

repeated suicide attempts, of which his

attorneys and the doctors had not been

informed at time of capital sentencing

hearing. U.S.C.A.Const.Amends. 6, 14.

38. Habeas Corpus §30(3)

Florida petitioner's claim that two of

the aggravating factors relied on in im-

posing capital punishment were unsupported

by any evidence was cognizable on habeas

corpus. West's F.S.A. § 921.141.

39. Habeas Corpus §30 (3)

Although two aggravating factors chal-

lenged by Fiorida petitioner were upheld by

the Supreme Court as facially valid on

direct appeal in the capital penalty case,

A-22

where the Court did not rule on the con-

stitutionality of those provisions as

applied, the issue was properly before the

federal court in subequent habeas proceed-

ing. West's F.S.A. §921.141; U.S.C.A.

Const.Amend.8.

40 Homicide §354

The heinous, atrocious and cruel ag-

gravating factor of Florida death penalty

statute requires acts of physical harm or

torture to the murder victim prior to or

accompanying the act resulting in death.

West's F.S.A. § 921.141(5) (c).

41. Homicide §354

The heinous, atrocious and cruel

aggravating factor of Florida's capital

penalty scheme was not applicable absent

evidence that defendant perpetrated any

physical act on victim other than single

stab in the chest that resulted in death.

West's F.S.A. § 921.141(5)(c).

42. Homicide §354

Aggravating factor of Florida's death

penalty scheme for knowingly creating a

great risk of death to many persons was not

applicable as the killing, which consisted

of infliction of single knife wound in

chest of victim, endangered only the victim

and, although facts indicated that

defendant struck victim's wife with his

fists when she was awakened by her hus-

band's moans, there was no evidence that

the blows were of such force that they were

likely to kill the wife and, in any event,

sum of acts surrounding killing at most

could be said to have risked death to two

persons. West's F.S.A. §921.141(5)(c).

43. Habeas Corpus §30 (3)

Although on direct appeal to Florida

Supreme Court the petitioner objected to

findings concerning at least two of the

aggravating circumstances and asserted

A-24

generally that the judge had exercised

unfettered discretion in imposing death

sentence, considering that the state did

not argue tha petitioner had waived his

objections to the aggravating circumstances

the state had waived any argument that

petitioner had waived his right to com-

Plain of consideration of nonstatutory

aggravating factors. West's F.S.A. §

921.141; U.S.C.A.Const.Amends. 8, 14.

44. Criminal Law §1208 (1)

In transcending list of aggravating

factors set forth in Florida capital

penalty statute and in basing death sen-

tence in part on finding that petitioner

had propensity to commit the crime for

which he was convicted and was a danger and

menace to society the trial judge not only

committed error under state law but

exceeded federal constitutional limitations

on capital sentencing, thereby rendering

A-25

the sentence unconstitutional. West's

F.S.A. § 921.141(5); U.S.C.A.Const.Amends.

8,14.

45. Criminal Law §1177

Constitutional error in considering

non-statutory eggravating factors in

imposing death penalty was not harmless on

ground that the trial judge found no

mitigating circumstances where application

of two of the three statutory aggravating

factors was unconstitutional and it could

not be said that death penalty would have

been imposed in light of remaining

statutory factor, i.e., murder in

conjunction with burglary, and findings did

not unqualifiedly state that there were not

mitigating circumstances as trial court

indicated that mitigating factors were

"primarily" negated by the aggravating

factors. West's F.S.A. § 921. 141;

U.S.C.A.Const.Amends. 8, 14.

A-26

46. Criminal Law §1147

The rational appellate review of

capital sentencing decisions contemplated

by the Furman decision and its progeny

requires more than mere speculation or

conjecture as to what the sentencing tri-

bunal would have decided had it correctly

applied the law and post hoc justifications

of the sentencing decision, which depends

on a rationale for imposing death distinct

from that relied on by the sentencer,

cannot fulfill the appellate court's con-

stitutional responsibilities and only where

the factors supporting the death sentence

are so clear that proper application of the

statute by reasonable persons could produce

no other result should a sentence be

affirmed despite constitutional error.

West's F.S.A. §921.141; U.S.C.A.

Const. Amends. 8,14.

47. Criminal Law §996 (1.1)

A-27

Florida trial court's unconstitu-tional

application of statutory aggravating

factors and consideration of nonstatutory

ones in imposing death sentence entitled

petitioner to resentencing. West's F.S.A.

§ 921.141; U.S.C.A.Const.Amends. 8, 14.

Appeal from the United States District

Court for the Middle District o Florida.

Before VANCE, KRAVITCH and CLARK,

Circuit Judges.

KRAVITCH, Circuit Judge:

A-28

I. Case History!

On March 21, 1974 appellant Charles

Proffitt was tried and convicted of first

degree murder by a jury in the Circuit

Court of Hillsborough County, Florida. In

the second phase of the bifurcated proceed-

ing the jury issued an advisory sentence

recommending the death penalty, and the

judge, in agreement with that recommenda-

tion, sentenced appellant to death.

Pursuant to Florida's capital sentencing

Statute, Pub.L.No. 72-724, § 9, 1972 Fla.

Laws (current version at Fla.Stat. Ann.

l-. The facts of this case have been

summarized twice already in the published

opinions of the Florida Supreme Court,

Proffitt v. State, 315 So.2d 461, 463-64

(Fla.1975), and the United States Supreme

Court, Proffitt v. Florida, 428 U.S. 242,

244-47, 96 S.Ct. 2960, 2963-64, 49 L.Ed.2d

913 (1976). We therefore deem it

sufficient for purposes of this opinion to

set forth only a brief description of the

procedural history of this case and such

additional facts as are relevant to the

specific issues raised in this appeal.

A-29

§921.141 (West Supp.1982)), appellant was

afforded an automatic appeal to the Florida

Supreme Court, which upheld his conviction

and sentence. Proffitt v. State, 315 So.2d

461 (Fla. 1975). Appellant then sought re-

view by the United States Supreme Court,

which granted certiorari to consider the

constitutionality of the Florida death-

penalty statute. 423 U.S. 1082, 96 S.Ct.

1090, 47 L. Ed 2d 94 (1976). Seven members

of the Court, in three separate opinions,

held that the statute did not violate the

eighth or fourteenth amendments, Proffitt

v. Florida, 424 U.S.242, 244-60, 96S.Ct.

2960, 2963-70, 49 L.Ed.é2d 913 (1976).

(opinion of Powell,Stevens & Stewart, JJ);

id at 260-61, 96 S.Ct. at 2970 (opinion

of White and Rehnquist, JJ. and Burger,

C.J.); id. at 261, 96 S.Ct. at 2970

(opinion of Blackmun, Jr.), and hence

A-30

affirmed appellant's sentence.

Having exhausted his direct remedies,

appellant sought collateral relief -- first

in the state courts, which denied relief

summarily without an evidentiary hearing,

see Proffitt v. State, 360 So. 2d 771

(Fla. 1978), cert dismissed on appellant's

motion; Proffitt v. State, 372 So. 2d 111l

The United States Supreme Court ad-

dressed only the constitutionality of the

Florida death penalty statute on its face.

Proffitt did not raise the issues of un-

constitutional application of the statute

or ineffective assistance of counsel on

direct review in the Supreme Court; and

the state does not argue that he waived

them by failing to do so.

A-31

(1979), > and finally in the federal

district court, the decision of which

denying habeas corpus is the subject of

this appeal. In the district court

appellant urged several grounds for

relief. He claimed the representation he

The state does not contend that appellant

failed to exhaust state remedies with res-

pect to any of the claims raised here.

A-32

received at the guilt phase of his trial

was ineffective rendering his conviction

unconstitutional under the sixth

amendment. He also raised several

constitutional challenges to the state

court's sentencing decision, including (1)

ineffective assistance of counsel at the

penalty hearing; (2) admission of testimony

and reports by court-appointed

psychiatrists without adequate opportunity

for confrontation; (3) limitation of the

jury's consideration of mitigating evidence

in violation of Lockett v. Ohio, 438 U.S.

586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978);

and (4) consideration of aggravating

factors not authorized by the sentencing

statute in violation of the due process

Clause and eighth amendment. 4

4. Appellant raised several other issues in

the district court concerning both the

guilt and sentencing phases of his trial,

(cont'd on next page)

A-33

The district court appointed a

magistrate 5 to conduct the evidentiary

hearing required by Townsend v. Sain, 372

U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770

(1963). The magistrate, after thorough and

probing analysis, recommended denial of

relief on all of appellant's claims except

that based on ineffective assistance of

all of which were decised against him

below. This appeal is limited to the

Claims described in the text of this

opinion.

3+ The 1976 amendments to the Federal

Magistrates Act authorize appointment of

magistrates to conduct evidentiary hearings

and submit proposed findings of fact and

recommendations for disposition in federal

habeas cases. See 28 U.S.C.A. §636(b)

(1) (B) (West Supp. 1982). These amendments

were intended to overrule Wingo v. Wedding,

418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879

(1974), which had held that the Magistrates

Act did not authorize magistrates to hold

evidentiary hearings on habeas cases.

H.Rep.No. 1609, 94th Cong., 2d Sess. 5-6

(1976), reprinted in [1976] U.S.Code Cong.

& Ad.News 6162, 6164-65. See United States

v. Raddatz, 447 U.S. 667, 674, 100 S.Ct.

2406, 2411, 65 L.Ed.2d 424 (1980); Nettles

v. Wainwright, 677 F.27 404, 406-407 (Sth

Cir. 1982) (en banc).

A-34

counsel at the sentencing stage of the

trial.© As to the latter, he found defense

counsel's representation constitutionally

deficient and recommended remand to the

state court with instructions either to

conduct a new sentencing hearing or,

alternatively, to resentence appellant to

life imprisonment. The district court

adopted the magistrate's findings and

recommendations on all issues except the

last. It rejected the claim of ineffective

counsel at sentencing and the magistrate's

conclusion on that ground and thus

dismissed appellant's habeas petition.

Appellant challenges the district court's

substantive conclusions and further argues

6- Both parties filed objections to the

magistrate's report as required by 28

U.S.C. § 636(b) (1) and Rule 6.02, Local

Rules of the United States District Court,

Middle District of Florida. See Nettles v.

Wainwright, supra.

A-35

that the district court committed

procedural error in rejecting the

magistrate's recommendation on his

ineffective counsel claim without

conducting a new hearing on that issue. We

address the procedural question first

because its resolution, if favorable to

appellant, would require a remand to the

district court obviating the need for us to

decide most of appellant's substantive

claims at this juncture. Since an under-

standing of the operation of the Florida

capital sentencing statute under which

appellant was sentenced is necessary for

informed evaluation of both the procedural

and substantive issues, we preliminarily

set forth a brief description of that act

and of the sentencing proceeding in this

case.

A- 36

II. Florida's Capital Sentencing Statute

Under Fla.Stat. §921.141,’ following

the guilt phase of trial for a defenant

convicted of a capital felony, the trial

judge conducts a separate sentencing

proceeding before the jury that convicted

the defendant. At the sentencing hearing,

7+ The current version of Fiorida's capital

sentencing statute, which has been amended

four times since appellant was sentenced,

is at Fla.Stat.Ann. §921.141 (West Supp.

1982). The precise version of the statute

in effect at the time of appellant's

sentencing is no longer printed in the

Florida Statutes. The only significant

change made by the amendments is described

in note 19 infra.

A-37

the parties may introduce evidence of and

argument concerning aggravating® and

é. The aggravating circumstances that may

be considered are expressly limited to the

following:

(a) The capital felony was committed by a

person under sentence of imprisonment.

(b) The defendant was previously con-

victed of another capital felony or of a

felony involving the use or threat of

violence to the person.

reat risk of death to many persons.

(d) The capital felony was committed

while the defendant was engaged, or was an

accomplice, in the commission of, or an

attempt to commit, or flight after

committing or attempting to commit, any

robbery, rape, arson, burglary, kidnapping,

Or aircraft piracy or the unlawful

throwing, placing, or discharging of a

destructive device or bomb.

(e) The capital felony was committed for

the purpose of avoiding or preventing a

lawful arrest or effecting an escape from

custody.

(f) The capital felony was committed for

pecuniary gain.

(g) The capital felony was committed to

disrupt or hinder the lawful exercise of

any governmental function or the enforce-

ment of laws.

(h) The capital felony was especially

heinous, atrocious, or cruel. Fla.Stat.Ann.

§ 921.141(5) (West Supp.1982).

A-38

mitigating factors.2 On the basis of the

evidence presented at the sentencing

hearing together with that presented at the

9. The mitigating circumstances enumerated

in the statute include the following:

(a) The defendant has no significant

history of prior criminal activity.

(b) The capital felony was committed

while the defendant was under the influence

of extreme mental or emotional disturbance.

defendant's conduct or consented to the

act.

(d) The defendant was an accomplice in

the capital felony committed by another

person and his participation was relatively

minor.

(e) The defendant acted under extreme

duress or under the substantial domination

of another person.

(f£) The capacity of the defendant to

appreciate the criminality of his conduct

or to conform his conduct to the require-

ments of law was substantially impaired.

(g) The age of the defendant at the time

of the crime.

Id. § 921.141(6).

A-39

guilt phase of the trial,l° a majority of

the jury renders an advisory sentence.

Fla.Stat.Ann. § 921.-141(2), (3) (West

Supp.1982). The jury is instructed to

consider "[w]hether sufficient aggravating

circumstances exist"; "[w]hether sufficient

mitigating circumstances exist which

outweigh the aggravating circumstances

found to exist"; and, "[b]ased on these

considerations, whether the defendant

should be sentenced to life imprisonment or

death." Id. § 921.141(2). The trial judge

then independently evaluates the evidence,

makes the same determination as to the

existence of aggravating and mitigating

10. the judge instructed the jury that, in

determining whether aggravating or miti-

gating circumstances existed, it should

consider “the evidence which you have heard

while trying the guilt or innocence of the

defendant and evidence which has been

Presented to you in [the sentencing]

proceedings.”

factors, and decides which sentence to

impose. Id. § 921.141(3).?+

In this case, the sentencing proceeding

was brief. The prosecution called one

witness: a Dr. Crumbley who, acting as

psychiatric consultant for the County

Sheriff's Office, had examined appellant

shortly following his arrest./* In the

ll. Although the statute leaves the trial

judge free to reject the jury's recommenda-

tion, the Florida Supreme Court has

developed a strict standard of review in

cases where a judge imposes the death

penalty in the face of a jury

recommendation favoring life

imprisonment. See Tedder v. State, 322

So.2d 908, 910 (Fla. 1975).

12. Appellant apparently had asked to see

eee jail psychiatrist. See IV Trial Record

A-41

course of two interviews with the doctor,

appellant had confessed to committing the

murder. Appellant's attorney waived his

doctor-patient privilege for purposes of

sentencing only, allowing the doctor to

testify.

On direct examination, Dr. Crumbley

testified that appellant had expressed

concern about a feeling he had that was "so

overwhelming that he felt he would do

damage to people in the future." Dr.

Crumbley testified that appellant told him

his uncontrollable desire had built up an

unbearable tension, which he had "fought as

hard as he could," but that it finally

overcame him with the result that he killed

a man and was now awaiting trial.

Appellant had further expressed concern

that if he was acquitted he might kill

someone again, and he asked Dr. Crumbley

about arranging psychiatric help for him.

A-42

At a second interview, appellant again

spoke of the tension he had experienced

prior to the killing and described a sense

of relaxation he had felt afterward. He

told the doctor the tension was building up

again with his hostility directed toward a

particular inmate. He asked whether he

could be moved to a different cell or

whether something could be done to relieve

the emotional pressure he was exper-

iencing. Dr. Crumbley further testified

that appellant killed the victim (who was a

total stranger to him) solely to satisfy

his emotional tension and that in

Crumbley's opinion appellant could be

dangerous to society and to other

inmates. Dr. Crumbley stated that his two

interviews with appellant took fifteen to

twenty minutes each and that he had

performed no psychiatric or psychological

testing.

A-43

Appellant's counsel then cross-examined

the doctor, eliciting his opinion that

appellant was acting under extreme, uncon-

trollable emotional distress when he

committed the murder, that appellant

"couldn't help what he did,” that

appellant's condition was treatable, and

that if treated appellant would no longer

be dangerous. Dr. Crumbley explained that

there were confinement facilities special-

izing in treatment of individuals with the

kind of emotional disturbance suffered by

appellant.

Defense counsel called no witnesses,

and following the doctor's testimony the

attorneys argued briefly concerning the

aggravating and mitigating factors

enumerated in the Florida capital

sentencing statute. The prosecuting

attorney argued that five of the

A-44

aggravating factors!3 and none of the

mitigating factors!4 were present.

13+ the prosecuting attorney introduced

evidence of appellant's prior conviction

for breaking and entering in support of

aggravating factor (b) (prior conviction of

felony involving violence). He argued on

the basis of the evidence presented at the

guilt stage that factors (c) (great risk of

death to many persons), (da) (felony-

murder,) (f£) (felony committed for pecuniary

gain), and (h) (offense especially heinous,

atrocious, or cruel) had been established.

14. the prosecuting attorney argued that

mitigating factor (a) (no significant

history of prior criminal activity) had

been rebutted by evidence of appellant's

prior conviction for breaking and

entering. He also contended that the

defense attorney's attempt to establish

factors (b) (crime committed while

defendant was under extreme mental or

emotional distress) and (f) (defendant's

ability to appreciate criminality of

(cont'd on next page)

A-45

Appellant's counsel argued that at most the

prosecution had established only one aggra-~

vating factor 15 and that this was

conduct or to conform conduct to law sub-

stantially impaired) failed because Dr. Crumb-

ley was not a practicing psychiatrist and had

not performed any psychiatric testing of appel-

lant. He argued that the other statutory miti-

gating factors were not present because no

evidence had been presented in their favor.

15. «Initially appellant's counsel argued

that the felony-murder circumstance was

inapplicable because appellant had entered

the victim's house with the sole purpose of

killing and not intending to commit any

other crime. After the judge sustained the

prosecution's objection to this argument on

the ground that breaking and entering for

any purpose constituted a burglary within

the felony-murder circumstance, the defense

attorney conceded that this factor might be

established.

A-46

outweighed by the mitigating evidence. 16

III. Procedural Issue

In 1976, Congress expanded district

courts' delegatory authority by permitting

appointment of magistrates to conduct

16. pefense counsel argued that the

following mitigating circumstances were

present: (a) (no significant history of

prior criminal activity), (b) (crime

committed while defendant was under

influence of extreme emotional

disturbance), (e) (defendant acted under

extreme duress), and (f) (defendant's

capacity to conform his conduct to the

requirements of law was substantially

impaired). Counsel also reminded the jury

of the doctor's statement that there were

institutions where appellant could be

treated and emphasized that a life sentence

would require appellant to serve a minimum

jail term of 25 years.

A-47

evidentiary hearings in federal habeas

cases. See note 5 supra. In United States

v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406,

65 L.Ed.2d 424 (1980), the Supreme Court,

interpreting the Federal Magistrates Act,

held that a district court judge need not

rehear the testimony on which the

magistrate relied in accepting the

magistrate's findings or recommendation.

Rather, the Court held, the statutory

command to district court judges to "make a

de novo determination" of those portions of

the magistrate's findings and recommenda-

tions to which the parties object is

satisfied as long as the judge, rather than

the magistrate, exercises "ultimate

adjudicatory power." Id. at 674-76, 100

S.Ct. at 2411-12. The Court also held that

this arrangement does not violate the due

process clause or article III of the

Constitution. Id. at 677-84, 100 S.Ct. at

A-46

2413-16. The Court left open the question

whether a district court judge may

constitutionally "reject a magistrate's

proposed findings on credibility when those

findings are dispositive and substitute the

judge's own appraisal ... without seeing

and hearing the witness or witnesses whose

credibility is in question." Id. at 681

n.7, 100 S.Ct. at 2415 n.7. The Fifth

Circuit addressed the latter issue in Louis

v. Blackburn, 630 F.2d 1105 (5th Cir.

1980).27 It held that in cases involving

17. In the en banc decision of Bonner v.

City of Prichard, 661 F.2d 1206 (llth Cir.

1981), the Eleventh Circuit adopted as

precedent the decisions of the former Fifth

Circuit

A-49

the constitutional rights of a criminal

defendant due process requires that be-

fore entering an order inconsistent with

the credibility choices made by a magis-

trate, a district court judge must himself

hear the testimony of witnesses whose

testimony is determinative. Id. at 1109.

Appellant argues that the district

court judge's rejection, without hearing

testimony, of the magistrate's

recommendation concerning his ineffective

counsel claim was erroneous under Luis v.

A-50

Blackburn. Determining whether the judge's

order is "inconsistent with credibility

choices made by the magistrate" is a two-

step process. First, we must review the

magistrate's recommendation and decide

whether credibility choices he made in

assessing appellant's ineffective counsel

Claim were dispositive. If the answer is

affirmative, we must then scrutinize the

district court's order to ascertain if the

judge's rejection of the magistrate's

recommendation was also a rejection,

whether express or implicit, of the

magistrate's credibility chocies. See id.

at 1107-08.

In support of his ineffective counsel

claim, appellant presented to the

magistrate numerous detailed allegations

concerning the defense attorney's actions

before trial, at the guilt stage of the

trial, and at the sentencing phase. The

A-51

magistrate rejected all of appellant's

ineffective counsel arguments except that

based on the sentencing phase, and the

district court adopted the magistrate's

findings with respect to the pre-sentencing

claims. Hence, appellant's Louis v.

Blackburn due-process challenge is limited

to his claim of ineffective counsel at

sentencing, on which the magistrate and

judge disagreed.

The magistrate concluded appellant had

received ineffective assistance at the

penalty hearing due to five flaws in

defense counsel's representation: (1) the

attorney's failure to present any

mitigating evidence, (2) his consent to the

admission of Dr. Crumbley's testimony, (3)

his failure to request a presentence

investigation report, (4) his failure to

explain the circumstances of appellant's

prior conviction, and (5) the brevity of

A-52

his argument. The magistrate's conclusion

that these omissions, viewed cumulatively,

amounted to ineffective assistance of

counsel was based partly on his analysis of

the constitutional requirements for

sentencing in capital cases and partly on

his assessment of the reasons for the

attorney's failure to ensure those

requirements were met at Proffitt's trial.

The district court addressed each of the

bases for the magistrate's conclusion that

appellant received ineffective assistance

of counsel and rejected all five. We now

consider whether the magistrate's

conclusions on these issues were based on

credibility choices concerning testimony

at the evidentiary hearing and, if so, whether

the district court's disagreement with the

magistrate involved a rejection of such

credibility choices.

A-53

A. Failure to Present Mitigating

Character Evidence.

1. The Evidence

[1] Lockett v. Ohio, 438 U.S. 586, 98

S.Ct. 2954, 57 L.Ed.2d 973 (1978),

established a constitutional requirement in

Capital cases that the sentencing authority

consider all mitigating evidence proffered

by the defendant relating to his character

and record and to the circumstances of the

Particular offense. Appellant's trial took

place in 1974, some four years prior to the

Supreme Court's decision in Lockett. At

that time, the rule had not yet been

established that the Constitution compels

consideration of all relevant mitigating

character evidence. Moreover, although the

Supreme Court subsequently interpreted the

Florida statute as not limiting sentencer

A-54

consideration of mitigating evidence, +8 the

18. Despite a contrary interpretation of

the statute by the Florida Supreme Court in

Cooper v. State, 336 So.2d 1133, 1139 (Fla.

1976), cert. denied, 431 U.S. 925, 97 S.Ct.

2200, 53 L.Ed.2d 239 (1977), the U.S.

Supreme Court stated in Lockett v. Ohio,

438 U.S. 586, 606-07 & n.15, 98 S.Ct. 2954,

2965-66 & n.15, 57 L.Ed.2d 973 (1978) and

the Fifth Circuit held in Spinkellink v.

Wainwirght, 578 F.2d 582, 620-21 (5th Cir.

1978) that the Florida death penalty

Statute did not, at the time Proffitt was

decided by the Supreme Court, "“operate[)

++. tO prevent the sentencer from

considering any aspect of the defendant's

character and record or any circumstances

of his offense as an independently

mitigating factor." Id. at 621 (quoting

Lockett v. Ohio, 438 U.S. at 607, 98 S.Ct.

at 2966).

A-55

ambiguous wording of the statute left open

the question whether that act allowed

consideration of mitigating character

evidence other than that falling within the

statutorily enumerated factors.29

19. The statute prefaces the list of

aggravating circumstances with the

Statement that they "shall be limited to

the following: .. ." Fla.Stat.Ann. §

921.141(5) (West Supp.1982). The list of

mitigating factors is preceded by the

words" "Mitigating circumstances shall be

the following: ..." Id. § 921.141(6).

After Lockett, the Florida Legislature

amended the statute so that it now

expressly allows presentation of evidence

at the sentencing hearing "as to any matter

that the court deems relevant to the nature

of the crime and the character of the

defendant." 1979 Fla.Laws, c. 79-353. See

Fla.Stat.Ann. § 921.141(1) & note (West

Supp. 1982).

A-56

At the sentencing phase of appellant's

trial his counsel presented no evidence of

his character or personal history. 29 The

attorney's testimony at the magistrate's

evidentiary hearing indicates that, at the

time of appellant's trial, he understood

the Florida statute as limiting the

mitigating evidence that could be

introduced to that falling within the

statutory mitigating circumstances.

Transcript of Evidentiary Hearing 190-91,

20. The attorney relied almost entirely on

Dr. Crumbley's testimony, which was

introduced by the prosecution, arguing that

it established several of the statutory

mitigating factors. See note 16 supra.

A-57

218-20. In a pre-trial motion to dismiss

the indictment the defense attorney

asserted inter alia that the Florida death-

penalty statute unconstitutionally limited

presentation of mitigating evidence.*1 The

trial judge denied the motion, however, and

defense counsel made no further attempt to

21. During the evidentiary hearing,

defense counsel described the portion of

the pre-trial motion pertaining to

mitigating evidence as "a rather lengthy

paragraph, [] basically [saying] that the

matters ought to be dismissed because the

circumstances to be considered in

mitigation are inadequate, discretionary,

arbitrary, insufficient and vague, in

violation of certain provisions of the

Constitution of the United States and the

State of Florida." Transcript of

Evidentiary Hearing 218-20.

A-58

introduce nonstatutory evidence. Although

the attorney testified that his interpreta-

tion of the statute influenced his decision

as to what evidence to present at the

sentencing hearing, he suggested that other

reasons were important as well. In

particular, he stated that.he believed that

he could fit any mitigating evidence within

the statutory mitigating factors, id. at

191-92, and that, in any event, the

defendant had instructed him not to

introduce any mitigating evidence. Id. at

220-21.

2. The Magistrate's Findings.

In assessing whether defense counsel's

failure to present mitigating evidence

constituted ineffective assistance, the

magistrate recognized that Proffitt was one

of the first capital cases tried under the

then newly-enacted Florida death-penalty

Statute and that Proffitt's trial preceded

A-59

the Lockett decision by several years.

The magistrate did not believe the

attorney's "misperception of the law'’

was excused, however, by the indefinite-

ness of that constitutional rule at that

time. The magistrate accepted defense

counsel's testimony ‘that he went into

the trial assuming that he could not

put on any evidence in mitigation ex-

cept as set forth in the statute.”

Nonetheless, the magistrate concluded

that the subsequent Supreme Court hold-

ing against limiting mitigation evidence

was reasonably foreseeable and that the

attorney had in fact anticipated it.

The magistrate rejected defense counsel's

statement that he introduced no miti-

gating evidence pursuant to an in-

struction from appellant based on his

not wanting to spend twenty-five years

A-60

in jail. 2? The magistrate also rejected

respondent's assertion that defense counsel

failed to present mitigating evidence

because no such evidence was available.

The magistrate relied on a written proffer

of evidence submitted by appellant in

finding that the attorney could have

22. In the magistrate's view, counsel was

"confusing his client's disinterest ina

plea bargain and the matter of adducing

mitigating evidence." The magistrate

found, moreover, that the attorney's

attempt to introduce mitigating evidence

through Dr. Crumbley's testimony and

argument against the death penalty at the

time of sentencing were inconsistent with

his claim that he was operating under

instructions from appellant not to seek

mitigation of the sentence.

A-61

procured favorable character evidence to

present at the penalty phase. In addition

to the proffer, defense counsel's testimony

that he did not call appellant's mother

because he could not think of any reason to

do so except for "the possible sympathy

that it might have evoked from the jury,"

instead of supporting counsel's decision,

in the magistrate's view bolstered

appellant's claim that she should have been

called as a witness to testify concerning

appellant's character and personal

history. The magistrate attributed defense

counsel's failure to present mitigation

evidence to a "lack of preparation" as well

A-62

as to a mistake of law.23

In summary, the evidence considered by

the magistrate on the issue of defense

23. The magistrate noted:

Levinson testified that he went into the

trial assuming that he could not put on any

evidence in mitigation except as set forth

in the statute (H.T.220). Levinson stated

further that he did not engage in any

separate and distinct preparation for the

penalty phase, but prepared for that part

of the trial in conjunction with his

preparation of the case as a whole (H.T.

186). He also said that he had no strategy

for the penalty stage, but that his

approach to that stage was to depend upon

what occurred during the guilt phase (H.T.

187). Since there was only a thirty-five

minute recess between the first and second

stages of the trial, Levinson had no

additional opportunity to prepare for the

sentencing hearing after the guilty verdict

was rendered (IV R.492, 493).

A-63

counsel's assistance inadequate. The

magistrate disbelieved defense counsel's

statement that he was following counsel's

failure to present mitigating evidence in-

cluded (1) the trial record (including

pre-trial motions filed by defense coun-

sel), (2) defense counsel's testimony at

the evidentiary hearing, and (3) a written

proffer of evidence submitted by appellant.

The testimonial evidence he referred to

in his memorandum included the defense

attorney's statements concerning his un-

derstanding of the law respecting the

Florida death penalty statute, his des-

cription of his preparation for the pen-

alty stage of trial, and his statement

that his failure to introduce mitigating

evidence was in response to appellant's

instructions. The magistrate accepted

the attorney's testimony as to his inter-

pretation of the statute and his prepar-

A-64

ation for the penalty stage of trial;

indeed, the magistrate relied on this

testimony in finding counsel's assistance

inadequate. The magistrate disbelieved

defense counsel's statement that he was

following Proffitt's instructions in not

introducing mitigating evidence, however,

and the rejection of this testimony was

critical to the magistrate's decision.

3. The District Court's Opinion

The district court disagreed with the

magistrate's conclusions concerning defense

counsel's failure to introduce mitigating

evidence at the penalty stage. The judge's

disagreement stemmed primarily from a dif-

ference in his interpretation of the stan-

dard for judging ineffective assistance of

counsel claims rather than from differences

in view of the evidence.

The judge agreed with the magistrate

that defense counsel had labored under the

A-65

impression that evidence in mitigation was

limited to the specific mitigating circum-

stances enumerated in the statute. He dis-

agreed, however, with the magistrate's con-

clusion that defense counsel had erroneous-

ly interpreted the law as it existed at the

time of trial. The attorney's 'misappre-

hension of the law,'' the judge found,

could "only be characterized as a misap-

prehension through hindsight which has

the advantage of Lockett v. Ohio decided

four years later.'' The attorney's belief

that evidence in mitigation was limited to

the statutory circumstances was, in the

judge's view, "understandable," and his

inclusion in a "comprehensive" pre-trial

motion of the contention that, as such,

the statute was unconstitutional did not

undermine that conclusion.

The judge disagreed with the magis-

trate's assessment of the evidence inso-

A-66

far as the magistrate attributed coun-

sel's omission to insufficient prepar-

ation rather than unavailability of miti-

gating evidence. The judge cited the de-

fense attorney's testimony concerning his

general preparation for trial --testimony

not referred to in the magistrate's memo-

randum. The judge relied on the attorney's

statements that he had met with appellant

weekly to discuss the case, that he had

engaged the assistance of an investigator,

that he had talked to witnesses in Tampa

who knew and worked with

A-67

appellant, and that he had personally

traveled to Connecticut to interview

memoers Of appellant's family. Moreover,

the judge found convincing the attorney's

testimony that he had not called

appellant's sister as a mitigating witness

because she had a criminal record; that he

hag not called appellant's half-brother

because he and appellant "had not had a

relationship for some time"; that ne had

not callea appellant's mother because she

was ill and therefore unable to travel from

Connecticut to Florida for the trial,

because appellant did not want to get his

family involved, and vcecause tne attorney

felt appellant's mother had nothing of

substance to contribute in any event; and

that he had not called appellant's wife

because ne did not feel sne would make a

good witness since she was unhappy with

appellant's lifestyle and because he was

A-68

concerned that calling her to testify might

constitute waiver of the marital privilege,

which appellant hag asserted to prevent her

from testifying at the guilt phase of

trial.

[2,3] In accepting the above-described

testimony, the judge did not reject any

Credibility aeterminations implicitly made

by the magistrate in violation of Louis v.

Blackburn, supra. Although the magistrate

ultimately concludea tha. the attorney's

failure was the product of his

"misperception of the law" and "not the

result of tactical considerations," nothing

in the magistrate's findings indicates he

did not credit the above testimony. First,

the magistrate's acceptance of appellant's

proffer describing mitigating evidence that

could have been introduced does not

indicate that he rejected the defense

attorney's testimony concerning why he did

A-69

not present certain witnesses. In addition

to appellant's relatives, whom the defense

attorney declined to call, the proffer

lists as possible witnesses several other

persons, including one of appellant's

supervisors and a psychiatrist who ex-

amined appellant after trial. The magis-

trate without accepting ''all the details

in the proffer as true," simply found that

information is contained generally indi-

cated that the defense attorney could

have called character witnesses on

appellant's behalf. Since the magistrate

did not expressly reject the defense

attorney's testimony as to why he did not

call certain of the enumerated witnesses,

the only conclusion one can draw from his

partial reliance on the proffer is that he

felt it probable the attorney could have

called some of the witnesses listed by

appellant in the proffer and not that the

A-70

reasons the attorney gave for rejecting

particular witnesses were not believable.

The district court judge, on the other

hand, rejected appellant's written proffer

of evidence, correctly concluding that the

magistrate's reliance on the proffer was

improper. Even if the proffer had

constituted competent evidence, however,

rejection by the judge of such

nontestimonial evidence would not require a

second evidentiary hearing under Louis v.

Blackburn. Second, the magistrate's

memorandum does not evince disbelief of the

defense attorney's description of his

general preparatory efforts. Rather, the

magistrate thought the attorney's failure

to plan a separate strategy for the

sentencing phase rendered his assistance

inadequate irrespective of whatever other

preparatory efforts the attorney undertook

before and during trial. Nor does the

district court's contrary conciusion

indicate tnat the judge aisbelieved the

defense attorney's testimony, which the

magistrate accepted, to the effect that tne

attorney engaged in no special preparation

for the penalty phase; the judge simply

disagreed that such separate preparation

was required to meet the legal standard of

reasonably effective counsel. We conclude

that the judge's rejection of the

magistrate's recommended ruling that

defense counsel's failure to present

mitigating evidence rendered his

representation inadequate aid not aepend on

differences in credibility choices

requiring a rehearing uncer Louis v.

Blackburn.

B. Absence of Presentence Investigation

The magistrate concluded that defense

counsel erred by failing to request a

A-72

presentence investigation report. Such

investigation he found was necessary to

provide information on appellant's

character and background, on wnich no other

information in the record had shed any

lignt. Moreover, because "the only view

the jury and the judge had of the

petitioner was the impersonal picture drawn

by Dr. Crumbley of an obsessed killer;"

presentation to the sentencers of

information about appellant's personality

and characteristics could be critical.

The defense attorney's testimony at the

evidentiary hearing on this point was as

follows:

Q Do you believe there was a pre-

sentence investigation?

A Should have been.

Q If there was not one, should you

have asked for one?

A Should have been automatic.

Q Why would it be automatic?

A Well, let me put it this way. I

Know it's automatic now unless

waived by statutory authority.

Whether the statute was in effect

at the time of Proffitt's trial, 1

can't tell you. But I ao recall a

pre-sentence investigation being

run.

Q Dia you recall that tnere was a

pre-sentence investigation?

A I think so.

Q Ana if there nadn't been one,

should you have asked for one?

* * + * * *

A If there were such things as

pre-sentence investigations then,

and I think there were, I snoula

nave askea for one.

Transcript of Evidentiary Hearing 275-76.

As the magistrate noted, the record

indicates that no presentence investigation

was condauctea for Proffitt's trial. The

magistrate's conclusion that counsel's

failure to demand such an investigation

constituted ineffective assistance rested

partly on the magistrate's opinion that the

Crumbley testimony, which presented a very

negative picture of appellant's chacacter,

created a strong need for "humanizing

information" about appellant. The

A-74

magistrate also viewed the statement by the

attorney at the evidentiary nearing that he

"should have asked for" a presentence

investigation as an admission that he errea

in not doing so.

The district court judge, noting that

the attorney's testimony "was given from

unaided memory more than five years after

the trial,” found it "noteworthy that

counsel in his testimony talked about 'now'

as aistinguished from 'then.'" The judge

observed that the Florida rule governing

presentence investigation reports in

Criminal cases was amended shortly before

appellant's trial to extend authorization

for trial courts to order presentence

investigations from only "cases in which

probation is authorized by law" to "all

cases in which the court has discretion as

to what sentence may be imposed." Compare

Rule 1.790, Fla.R.Crim.P. [adopted by

A-75

Floriaa Supreme Court, 196 So.2d 124 (1967)

(etfective Jan. 1, 1968), as amended by 211

So.2a 203 (Fla. 1968) and 253 So.2qa 421

(Fla. 1971)] with Rule 3.710, Fla.R.Crim.P.

{adopted by Florida Supreme Court, 272

So.2d 65 (Fla. 1972); codified at 34 Fla.

Stat. Ann. §3.710 (West 1975)]. Although

the language of the new rule seems to

encompass capital cases (as compared with

the old rule, which was expressly limited

to cases in which probation could be

grantea,) the Committee Note indicates it

was not intended to cover capital

cases.*4 The district court judge

¢4nhe Note states:

The rule provides for the utilization of

a presentence report as part of the

sentencing process. While use of the

report is discretionary in all cases, it is

mandatory in two instances, the sentencing

of a first felony offender and of a

defendant under 18 years of age. Of

course, no report is necessary where the

specific sentence is mandatory, e.g., the

sentence of death or life imprisonment in a

(cont'd on next page)

A-76

recognized that later cases have held Rule

3.710 neither requires nor precludes

presentence investigaitons in capital

cases, see Thompson v. State, 328 So.2d l

(Fla. 1976); Songer v. State, 322 So.2d 481

(Fla. 1975); Swan v. State, 322 So.2d 465

(Fla. 1975). Nonetheless, he found that

"at the time of Petitioner's trial in 1974,

both historical as well as contemporary

verdict of first degree murder (emphasis

added).

At the time of appellant's trial, some

Florida judges were ordering presentence

reports in capital cases under Rule 3.710

notwithstanding the Committee Note's

suggestion that the rule does not encompass

such cases. See, e.g., Gardner v. State,

313 So.2d 675, 677 (Fla. 1975) (opinion of

Ervin, J.), rev'd, 430 U.S. 349, 97 S.Ct.

1197, 51 L.Ed.2d 393 (1977). Although the

Florida Supreme Court upheld the sentence

in Gardner, that case indicates the

doubtful status of presentence

investigations in capital cases at the

time. The defendant argued to the Florida

Supreme Court that the trial judge had

erred in considering the presentence report

because it contained detrimental facts

about him that did not fit within the

aggravating circumstances enumerated in the

capital sentencing statute. Id. at 677-78.

A-77

legal opinion and authority was to the

effect that presentence investigation

repocts were not customary or necessary in

Capital cases; and, in fact, there was a

serious question at the time that the use

of a presentence report might even be

error."42

2Scomplicating the question of presentence

investigation reports even further, the

Florida Legislature in 1974 enacted a

Statute purporting to make preparation of

such reports mandatory in all felony cases

in which a guilty verdict has been rendered

and discretionary in misdemeanor cases.

See Fla. Stat. Ann. §921.231 (West Supp.

1982). This statute did not become

effective until July 1, 1974, and hence it

had no effect on the law at the time of

appellant's trial. As the district court

noted, however, this later statute explains

defense counsel's statement that

presentence investigations are "automatic

now ... by statutory authority." That the

statute was enacted at a point in time so

Close to appellant's trial also tends to

explain the attorney's inability to

remember whetner it was in effect at the

time of the trial. (The Florida Supreme

Court has held that, to the extent it

conflicts with Rule 3.710 poy making

Presentence investigations mandatory rather

than discretionary in most felony cases,

(cont'd on next page)

[4,5] The district judge's disagreement

with the magistrate on whether counsel's

failure to request a presentence

investigation constituted ineffective

assistance directly concerns the attorney's

testimony at the evidentiary hearing. In

some sense, the disagreement can be viewed

as a difference in interpretation of that

testimony. The difference was not a matter

of credibility, however. This is not a

Situation in which the magistrate believed

the attorney was telling the truth but the

Gistrict court disbelieved his testimony.

Rather, the magistrate interpreted the

attorney's statement as a simple admission

the statute unconstitutionally invades the

rulemaking province of that court, and thus

is to be construed as directory only. See

Huntley v. State, 339 So.2d 194 (Fla.

1976). It may be that trial courts in

Florida have nonetheless continued to

comply with the statute's directive by

making presentence investigations

"automatic.")

A-79

that he should nave requested a presentence

investigation, while the district judge

interpreted it as a conditional admission

that ne should have requested one if the

law autnorizea such investigations at the

time of Proffitt's trial. These

circumstances thus present us with an issue

we have not previously faced: whether the

reasoning of Louis v. Blackburn, Supra,

requires that a district court judge

conduct a new evidentiary nearing when the

judge's interpretation of a witness's

testimony differs from that of the

magistrate on a point critical to decision

of the issue to which the testimony is

relevant.

The rationale for requiring district

judges to rehear testimony before rejecting

Credibility choices made by a magistrate

lies in the recognition that credibility

choices frequently depend on the trier of

A-80

fact's assessment of the witness's

demeanor. Obviously, observation of sucn

factors as witnesse's facial expressions

and tone of voice cannot be observed by

reading a "cold and impersonal written

transcript." See Louis v. Blackburn, 630

F.2qa at 1110. These factors not only

reflect on the witness's credibility (i.e.,

on his sincerity and the degree of

certainty with which he asserts matters

about which he testifies) but may also

reflect on the meaning the witness intends

by the words he uses when such meaning is

unclear from the words alone. We thus do

not hold that a judge need never rehear

testimony when he attributes a different

meaning to words uttered by a witness than

the meaning ascribed to them by the

magistrate. Unless the words spoken by the

witness are inherently ambiguous, however,

the decision whether a second hearing is

A-81

necessary must be left to the sound

Giscretion of the district judge.

In the case before us, the witness's

testimony was not inherently unclear. The

attorney's remark that "if there were sucn

things as pre-sentence investigations then,

»»+ I should have asked for one," itself

suggests that at some point relevant to the

period in question there was a change

either in the law or in practice with

respect to conducting presentence

investigations. The mayistrate made no

apparent attempt to aecipnher the attorney's

ambiguous reference to change and

interpreted the attorney's testimony

without the benefit of such

understanding. The district judge, on the

other hand, determined what cnanges had

occurred and took them into consideration

in interpreting the attorney's testimony.

When viewed in the context of the changes

A-82

in Florida's law governing presentence

investigations that occurred shortly after

Proffitt's trial, the import of the defense

attorney's statement becomes clear: if

Proffitt's trial took place after the

Statute requiring presentence

investigations in felony cases was enacted,

see note 25 supra, then he should have

requested such an investigation; if the

trial took place before it became clear

that such investigations were proper in

capital cases, however, he was admitting to

no such obligation. Since the defense

counsel's testimony was not inherently

vague, and since any uncertainty it

presented was resolvable by reference to

matters within the judicial notice of the

court, J. M. Blythe Motor Lines Corp. v.

Blalock, 310 F.2d 77 (5th Cir. 1972)

(federal courts will take judicial notice

of state laws without requiring proof

A-83

thereof), the district judge aid not abuse

his discretion in rejecting the

magistrate's interpretation of that

testimony without rehearing the witness.

C. Failure to Object to Admission of

Crumbley Testimony

At the penalty stage of appellant's

trial, the defense attorney waived

appellant's doctor-patient privilege and

allowed the prosecutor to introduce Dr.

Crumbley's testimony. After cross-

examining the doctor, he argued that the

testimony established two mitigating

circumstances: that the crime was committed

while appellant was under extreme mental or

emotional stress and that appellant's

Capacity to appreciate the criminality of

his conduct and to conform his conduct to

the requirements of law was substantially

impaired, 46 The prosecutor countered these

arguments by contending that the doctor's

opinions concerning appellant's mental

state were not reliable because the doctor

had no psychiatric credentials and had

performed no psychiatric tests on

appellant. The prosecutor argued further

that the doctor's testimony showed

appellant was likely to kill other people

in the future and was therefore a danger to

society--an argument not justified by any

of the statutorily enumerated aggravating

Circumstances but nonetheless likely to

appeal to the emotions of the jurors.

26nefense counsel also argued that

Crumbley's testimony established the

statutory mitigating circumstance that

"(t]he defendant acted under extreme duress

Or under the substantial domination of

another person," see Fla. Stat. Ann.

§921.141(6) (e) (West Supp. 1982), but the

trial judge sustained the prosecution's

objection to this argument.

A-85

At the evidentiary nearing, the

attorney testified that he allowed the

introduction of the doctor's testimony

because he thought it would establish

mitigating circumstances. He also stated

that he had hoped the trial judge, who

under the Florida statute renders the final

decision on sentencing, "would be able to

cut through the emotional imoact of that

information, recognize it as a mitigating

Circumstance, and rule in accordance with

that recognition.”

The magistrate concluded that defense

counsel's failure to object to the

admission of Dr. Crumbley's testimony was

sO grievous an error that "a substantial

contention can be made that this failure

alone constitutes ineffective assistance of

counsel." In the magistrate's view, the

introduction of this "frightening"

testimony was unnecessary to obtain

A-86

evidence of psychiatric mitigating

circumstances because the attorney coula

have obtained other psychiatric opinions

through a privately employed

psycniatrist. Moreover the magistrate

noted that Dr. Crumbley's "opinion as to

whether the petitioner was laboring under

emotional distress or a substantial mental

impairment did not carry much force" in

light of his lack of psychiatric

credentials. At the very least, the

magistrate concluded, "the use of Dr.

Crumbley's testimony significantly

increased the need to present humanizing

information in order to counteract the

dramatic impact of that testimony."

The district court judge disagreed that

the attorney's decision to waive

appellant's privilege constituted

ineffective assistance of counsel. The

judge found that the record of the penalty

A-87

hearing, aS well as aefense counsel's

testimony at tne habeas hearing, snowed

that the attorney had nad a "cogent reason"

for his decision: "{t]ne Petitioner had

already been found guilty at that point in

the proceeding and counsel expected to

develop on cross-examination the existence

of two of the statutory mitigating

circumstances, namely, that the Petitioner

acted 'unoer the influence of extreme

mental or emotional disturbance,' and that

‘the capacity of the defendant ... to

conform his conduct to the requirements of

law was substantially impaired.'" The

judge found that defense counsel's cross-

examination of the doctor at the penalty

hearing was clearly directed toward

developing the enumerated mitigating

circumstances and that his argument at the

habeas hearing reinforced the conclusion

that development of those circumstances was

A-88

the basis for his waiving the privilege.

The judge disagreed with the magistrate's

statement that Crumbley's testimony was

unnecessary to establish the statutory

mitigating factors:

[T]he magistrate's reasoning is

further flawed on this point

because it presupposes the

contemporary availability of such

testimony from other qualified

sources. The fact is that two

other practicing psychiatrists

subsequently appointed by the

trial judge failed to support Dr.

Crumbley's view concerning the

mitigating circumstances about

which he testified. Defense

counsel used what he had, and it

may well have been all he could

get.

{o] The judge's disagreement does not

rest on rejection of credibility choices

made by the magistrate. The factors on

which the magistrate's conclusion rested

included (1) the content of appellant's

conversations with Dr. Crumbley, which the

magistrate found to be "frightening"; (2)

the doctor's "lack of psychiatric

A-89

credentials," which in the magistrate's

view rendeced his opinion "without much

torce"; and (3) a presumption that other

psychiatric opinions supportive of the

statutory mitigating circumstances coulda

have been obtained. The magistrate did not

derive any of these considerations from

testimony given at the evidentiary hearing,

nor could he nave done so. The facts

involved were all taken from the record of

the penalty hearing, with the exception of

the question of availability of alternative

favorable psychiatric testimony, which may

have been based partly on information

contained in appellant's proffer. As noted

above, the judge was not required to accept

the written proffer. Neither, of course,

was ne required to accept the magistrate's

assessment of facts contained in the trial

record.

A-90

Although the district judge's opinion

indicates that he gave credence to defense

counsel's testimony concerniny the reasons

for his decision to waive appellant's

privilege, that testimony was not mentioned

by the magistrate. The testimony

established that despite the frightening

nature of the evidence and its potential

negative emotional impact on the jury, the

defense attorney "hope[d]" that the judge

would recognize it as a mitigating

Circumstance. Not only did the magistrate

not explicitly reject this testimony, but

such rejection is not implicitly required

by his conclusion. See Louis v. Blackburn,

630 F.2d at 1106.

D. Failure to Explain Prior Conviction

{7] Under the Florida capital

sentencing statute, prior criminal conduct

by a defendant is relevant to sentencing in

A-91

two respects. First, a defendant's prior

conviction for “another capital felony or

[] a felony involving the use or threat of

violence to the person" may be considered

by the sentencer as an aggravating

Circumstance. Fla. Stat. Ann.

$921.141(5)(b) (West Supp. 1982). Second,

that "(t]he defendant has no significant

nistocy of prior criminal activity" is a

Statutory mitigating circumstance. Id

§921.141 (6) (a).

At the sentencing phase of appellant's

trial, the prosecution introduced a

certified copy of a judgment of conviction

against appellant for "Breaking and

Entering Without Permission." The defense

attorney made no attempt to explain the

Circumstances of this conviction, and

appellant claims that the facts render the

conviction insignificant either as an

aggravating circumstance or to rebut the

A-92

mitigating one.?’ The magistrate accepted

the explanation of the conviction provided

by appellant in his written proffer and

concluded that defense counsel should have

presented these facts in rebuttal. No

testimony or other evidence was presented

to the magistrate either by the state or by

appellant concerning the circumstances

Surrounding appellant's prior offense.

The district judge rejected the

magistrate's conclusion that the defense

attorney should have presented evidence to

explain or rebut the prior conviction.

Citing United States v. Gray, 565 F.2d 881,

887 (5th Cir.), cert. denied, 435 U.S. 955,

98 S.Ct. 1587, 55 L.Ed.2d 807 (1978), the

district court stated that, in its view,

27specifically, appellant claims he was

convicted after being found inside a

restaurant eating a hotdog while

intoxicated, without having done any damage

to the property.

A-93

the magistcate mistakenly accepted

"speculative and inconcrete claims of ‘what

might have been if.'" The judge's primary

basis for disagreement, however, was his

conclusion, after reviewing the record of

the penalty hearing, that "[t]he matter of

Petitioner's prior conviction was a low

profile subject which, in terms of

Petitioner's best interests at that time,

might well have been handled by his counsel

with utmost skill in choosing to leave it

that way." Neither the magistrate's nor

the judge's conclusions on this issue were

based on any testimony at the evidentiary

hearing; the opinions of each and the

aisagreement between them were based solely

On appellant's written proffer and ona

review of the trial transcript for the

penalty pnase. Hence Louis v. Blackburn,

supra, provides no basis for challenging

A-94

this portion of this district judge's

order.

E. Brevity of Argument

Similarly, the magistrate's comment

that the generality and brevity of the

defense counsel's argument at the

sentencing hearing "adds weight” to

appellant's ineffective counsel claim and

the district judge's disagreement with that

statement were based on their differing

views about facts contained in the trial

record and not on any evidence brought out

at the evidentiary hearing.

F. Conclusion

For the reasons stated above, we find

that the district court's disagreement with

the magistrate on appellant's ineffective

counsel claim did not turn on rejection of

credibility choices made by the

magistrate. Hence appellant was not

A-95

entitled, under Louis v. Blackburn, supra,

to a second evidentiary hearing.

IV. Substantive Issues

A. Ineffective Assistance of Counsel at

Guilt Phase

[8,9] Appellant contends his attorney's

representation at trial was inadequate to

meet minimum constitutional standards.

This contention involves the testimony of

the prosecution's key witness, a boarder

named Mary Bassett who resided with

appellant and his wife in their trailer.

Bassett testified at trial that she was

awakened early on the morning of the murder

and overheard a conversation Detween

appellant and his wife in which appellant

related the facts of the killing.

Appellant's attorney filed a pre-trial

motion to suppress this testimony on the

ground that the conversation was a

confidential communication between

A-96

appellant and his wife and therefore was

privileged under Florida law. The attorney

renewed the objection at the close of the

testimony and, after an adverse ruling on

that issue and appellant's ensuing

conviction, asserted it as a ground of

error on appeal. Appellant now argues that

the defense attorney's failure to present

evidence in support of the suppression

motion violated his right to effective

assistance of counsel.

The Florida Supreme Court affirmed the

trial court's rejection of appellant's

assertion of privilege. Appellant

Gescribes the court's holding as based on

an absence of evidence supporting the

alleged confidentiality of the

conversation. He attributes this lack of

evidence to his trial counsel and maintains

that had the attorney put appellant or his

wife on the stand or brought forth other

A-97

available evidence, confidentiality would

have been shown. We reject appellant's

argument for two reasons. First, in

contrast to appellant's characterization,

the Florida Supreme Court not only found an

absence of evidence that the statements

were made in confidence; it found

affirmative evidence in the record

indicating that they were not. See

Proffitt v. State, 315 So.2d 415, 465 (Fla.

1975). Thus, even had the attorney

Presented contrary evidence the evidence

would have been conflicting, and the

likelihood that appellant would have

prevailed on the privilege claim is not

great. More importantly, appellant

presents no convincing evidence that his

attorney might have proffered to support

the privilege claim. Appellant contends,

for example, that he or his wife "could

have testified to their actual, subjective

A-98

expectations of privacy." Such testimony

would not have aided appellant, however,

since Florida employs an objective standard

of confidentiality. As the Florida Supreme

Court stated on appellant's direct appeal,

no privilege attaches to marital

communications where the spouses knew or

should have known that the communication

was being overheard. Proffitt v. State,

315 So.2d at 464. The Florida court

specifically found appellant and his wife

"were speaking in a manner and place where

they had a reasonable chance of being

overheard, and [] knew of that possibility

at that time." Id. at 465. To the extent

Mrs. Proffitt's testimony at the

evidentiary hearing suggested different

facts, the district court found her

testimony incredible. Hence, even if

appellant or his wife had testified and the

court had believed they were unaware that

A-99

Bassett could hear their conversation, such

conversation would not nave been privileged

under Florida law. Nor does appellant's

proffer of evidence that Bassett may have

derived some of her information from

conversations with appellant's wife oc the

police rather than by overhearing appellant

convince us that his attorney failed him.

The district court found the attorney had

investigated fairly thoroughly how Bassett

learned of the information about the

killing and had eliminated the possibility

that she had heard it from news reports,

appellant's wife, or tne police. These

findings are not clearly erroneous. We

therefore conclude that appellant received

reasonably effective assistance at the

guilt phase of his trial.

A-100

B. Ineffective Assistance of Counsel at

Penalty Phase

[10-12] Appellant's claim that he was

denied effective legal assistance at the

penalty phase of his trial rests on

arguments substantially similar to those he

made to the district court. We begin our

analysis by considering the standard

governing our review of the district

court's holding and, in turn, of the

performance rendered by appellant's trial

attorney. As to the former, the Fifth

Circuit has held that "whether a defendant

has enjoyed effective assistance of counsel

is a mixed question of fact and law" as to

which “the court of appeals must make an

independent evaluation based on [the

district court's] subsidiary findings.”

Washington v. Watkins, 655 F.2d 1346, 1354

A-101

(Sth Cir. 1981) .26 In other words, tne

district court's conclusion on this

question is entitled to no special

deference; rather this court must review

(

i the record of counsel's "actual performance

} hin] conducting the defense" and determine

independently whether the constitutional

Standard was met. Id. at 1355. Once

having reviewed the record, the sixth

amendinent standard we must apply in

assessing counsel's performance is that of

26prior to the Washington decision, the

Fifth Circuit precedents set forth

conflicting standards for review of

district courts' conclusions concerning

ineffective counsel claims. The Washington

panel resolved this issue by adopting the

independent-evaluation standard of review

ana rejecting the line of cases that had

treated the determination of effectiveness

as a purely factual finding to which the

"clearly erroneous" standard applies. The

court foung the cases that applied an

independent-judgment standard more

persuasive and better supported than those

applying the clearly-erroneous test. See

Washington v. Watkins, 655 F.2d at 1351-56.

A-102

"reasonably effective assistance." This

standard is not to be viewed as a guarantee

of “errorless counsel"; nor may counsel's

performance be judged by benefit of

hindsight. Id. Rather, the assistance

rendered must be evaluated "from the

perspective of counsel, taking into account

all of the circumstances of the case, Dut

only as those circumstances were known to

him at the time in question." Id. at

1356. We note further that the

constitutional standard for effective

counsel is no more stringent in capital

cases than in cases where les. severe

Punishments are imposed. Nonetheless, the

seriousness of the charges against the

defendant is a factor that must be

considered in assessing counsel's

performance. Id. at 1357. With this

standard in mind, we now consider the

alleged defects that appellant claims

A-103

rendered his trial counsel's representation

inadequate.

l. Failure to Present Character

Witnesses

[13] Appellant argues that his attorney

should nave called character witnesses to

testify on his behalf at the sentencing

hearing. The magistrate agreed that the

attorney erred by not presenting

"humanizing information [][] to counteract

the dramatic impact of [Dr. Crumbley's]

testimony." We do not dispute that the

jury's impression of appellant, based on

the evidence introduced by the prosecution

at the guilt and penalty stages of his

trial, was possibly unbalanced. We further

agree that a cogent presentation of

Character evidence could have influenced

the jury to recommend a life sentence.29

29see note ll supra.

A-104

We do not agree, however, with the

magistrate's conclusion that the attorney's

failure to introduce such nonstatutory

mitigating evidence rendered his assistance

ineffective. Even accepting arguendo

appellant's allegation that character

witnesses willing to testify in his favor

were available at the time of his trial, we

Cannot say that the attorney's performance,

evaluated "from the perspective of counsel,

taking into account the circumstances ...

known to him at the time," Washington v.

Watkins, 655 F.2d at 1356, was not

reasonably effective.

At the time of appellant's trial in

1974, the law concerning capital sentencing

was in a state of reformation. The Supreme

Court's holding in Lockett v. Ohio, 438

U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973

(1978), that the sentencer in a capital

case must be free to consider all relevant

A-105

mitigating evidence hac not yet been

decided; nor was that result clearly

foreshadowed by Furman v. Georgia, 408 U.S.

238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)--

the only contemporary death-penalty case

decided by the United States Supreme Court

prior to appellant's trial. Moreover,

Florida's capital sentencing statute was

barely a year old at the time of

appellant's trial, and the only Florida

Supreme Court case addressing its

constitutionality supported an

interpretation of the statute as limiting

the mitigating evidence that could be

considered to that falling within the seven

statutory factors.29 In view of these

30the first case considering the

constitutionality of the new Florida

statute was decided prior to Proffitt's

trial. That case--State v. Dixon, 283

So.2d 1 (Fla. 1973), cert. denied, 416 U.S.

943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974),

includes a discussion of the statute's

(cont'd on next page)

A-106

facts, the defense attorney's belief that

operation and the methods incorporated by

the legislature for controlling sentencer

discretion, see id. at 7-10, but does not

decide the scope of admissible mitigating

evidence. The majority and dissenting

opinions in State v. Dixon, supra, reflect

the two divergent interpretations of Furman

prevailing at that time. The majority

interpreted the rule of Furman as not

abolishing discretion in capital sentencing

entirely but rather as concerned with "the

quality of discretion and the manner in

which it [is] applied." State v. Dixon,

283 So.2aq at 6. The majority read Furman

as requiring that the discretion exercised

in capital sentencing be “reasonable and

controlled rather than capricious and

discriminatory." id. at 7, but did not

expressly state whether the state's

mitigating circumstances provision was

intended to be an exclusive list of the

factors juries may consider in

mitigation. The opinion's focus on the

issue of control over sentencer discretion,

coupled with its statement that "the

Propounding of aggravating and mitigating

circumstances" is the "most important

safeguard" the statute employs to restrain

and guide such discretion, id. at 8-9,

would have supported an interpretation of

§921.141 as limiting sentencer

consideration of both aggravating and

mitigating circumstances to the factors

expressly described in the statute. The

dissenting opinion of Justice Ervin, which

leans toward a reading of Furman as

condemning all discretion in capital

sentencing, see id. at 13-14 (Ervin, J.,

(cont'd on next page)

A-107

he could not, under the Florida statute,

introduce evidence of mitigating factors

not listed in Fla. Stat. §921.141(6) was

entirely reasonable. His decision not to

call witnesses at tne penalty stage to

testify about appellant's general character

and background was therefore jusitifiable

and fully within the sixth amendinent

standard of reasonably effective

assistance.

2. Failure to Request Presentence

Investigation Report

(14] Appellant claims that his trial

attorney's failure to request a presentence

dissenting), and concludes that §921.141

allows more discretion than permissible

under Furman, id. at 14, expressly

interprets the statute as limiting the

aggravating ana mitigating circumstances

judges and juries may consider to those

enumerated in the statute. Id. at 17.

The earliest case listed in Fla. Stat.

Ann. §921.141, Notes of Decisions (West

1973 & Supp. 1982) specifically discussing

the mitigating circumstances provision is a

1975 case.

A-108

investigation report prior to sentencing

"left the court completely in the dark

concerning petitioner's individual

circumstances and constituted gross

ineffectiveness of counsel." As noted

above, the magistrate agreed with appellant

but the district court did not. We agree

with the conclusion reached by the district

court for two reasons. First, appellant's

argument and the magistrate's

recommendation are predicated largely on

the assumption that a presentence

investigation, had it been conducted, would

have revealed favorable evidence concerning

appellant's character and background?1 that

3lpresentence reports typically contain

information concerning the defendant's

education, employment, and familial and

medical history; the circumstances

surrounding the offense; the environment to

which the defendant will return after

incarceration and the resources available

to assist him; the defendant's prior

Criminal record; and the probation

(cont'd on next page)

A-109

in turn could have served as the basis for

a Claim of mitigating circumstances. To

the extent such investigation might have

provided evidence of nonstatutory

mitigating circumstances, appellant's

argument must fail for the same reason as

his claim concerning the attorney's failure

to present character witnesses; the

attorney reasonably understood the law as

limiting mitigating evidence to the

Statutory mitigating factors. Second, any

Claim that 4 presentence investigation

would have revealed evidence of statutory

mitigating factors, or evidence that would

have rebutted the statutory aggravating

factors, must also fail. Appellant has

submitted no evidence demonstrating that a

Presentence investigation conducted at the

officer's view of his motivations. Black's

Law Dictionary (5th ed. 1979). See, e.g.,

Fla. Stat. Ann. §921.231 (West Supp. 1982).

A-110

time of his trial would have revealed

evidence substantiating any statutory

mitigating factors or repudiating any of

the aggravating factors asserted by the

prosecution. Moreover, having reviewed the

testimony of defense counsel at the

evidentiary hearing and the rules and cases

relied on by the district court, we concur

in the court's finding that at the time of

appellant's trial Florida law did not

provide for presentence investigations in

capital cases.2* under these

Circumstances, the attorney's failure to

request such investigation cannot be viewed

as falling below the level of reasonably

effective assistance.

32506 Part III.B supra.

A-1ll

3. Mishandling of Psychiatric Evidence

(15) Appellant discusses at length his

attorney's handling of the psychiatric

evidence at the sentencing phase of his

trial. At the core of his argument is the

fact that the attorney learned of the

conversations between appellant and Dr.

Crumbley by a telephone call from the

doctor the night before the trial and,

without requesting a continuance or further

investigating this matter, relied solely on

Crumbley's testimony to establish a

mitigation defense at appellant's

sentencing hearing. Appellant enumerates

many ways in which the attorney failed him,

arguing that he should have requested a

continuance, 34 obtained expert psychiatric

33he magistrate specifically rejected

appellant's contention that the attorney's

failure to request a continuance after

hearing from Dr. Crumbley, in order to

determine whether appellant was incompetent

(cont'd on next page)

A-112

assistance, 24 and perhaps should not have

to stand trial, constituted ineffective

assistance of counsel. The magistrate

found that neither the facts known to the

attorney prior to Crumbley's call nor the

information relayed by the doctor provided

him with reason to believe appellant was

incompetent. The magistrate also credited

the attorney's later testimony that he had

"wanted the trial to begin without delay

because on the morning of the trial a

newspaper reportec had heard Dr. Crumbley's

information and the attorney was concerned

that newspaper puolicity would prejudice

the potential jurors. See Magistrate's

Report and Recommendation 26; Transcript of

Evidentiary Hearing 269-70, 301.

34We reject appellant's argument that his

attorney should have requested expert

assistance to aid him in preparing the

mitigation defense. At the time of

appellant's trial the law governing capital

sentencing was undergoing significant

change and the extent of capital

defendants' procedural rights had not yet

been clearly delineated. Now that cases

such as Lockett v. Ohio, 438 U.S. 586, 98

S.Ct. 2954, 57 L.Ed.2d 973 (1978) and

Gardner v. Florida, 430 U.S. 349, 97 S.Ct.

1197, 51 L.Ed.2d 393 (1977) have set forth

specific constitutional procedural

requicements for death penalty cases, the

Fifth Circuit cases holding psychiatric

assistance and investigation essential to

effective legal assistance where a

psychiatric defense is raised at the guilt

phase of a criminal trial, e.g., Beavers Vv.

Balkcom, 636 F.2d. 114 (5th Cir. 1981);

(cont'd on next page)

A-113

allowed admission of Dr. Crumbley's

testimony at all. While having reviewed

the transcript of the evidentiary hearing

and the record of appellant's sentencing

proceeding we may in hindsight agree that

the attorney's performance was less than

stellar, we cannot conclude that it fell

below the standard of reasonably effective

assistance.

Davis v. Alabama, 596 F. 2d 1214 (5th Cir.

1979); vacated as moot, 446 U.S. 903,100

S.Ct. 1827, 64 L. Ed2d 256 (1980) United

States v. Fessel, 531 F. 2d 1275 (5th Cir.

1976); Hintz v. Beto, 379 F. 2d 937 (5th

Cir. 1967); Greer v. Beto, 379 F. 2d 923

5th Cir. 1967); see also United States v.

Edwards, 488 F. 2d 1154 (5th Cir. 1974,may

be applied to psychiatric mitigation de-

fenses raised at the sentencing phase of

a capital trial. No case has yet addressed

this issue, however, and in 1974 it could

hardly have been said that such a rule was

foreshadowed. Under the circumstances ,we

cannot say the defendant attorney's

decision to raise the psychiatric

mitigating factors without first obtaining

expert assistance or undertaking further

investigation rendered his assistance

constitutionally defective.

A-114

4. Other Ineffective Assistance

Arguments

[16] Appellant details a long list of

other shortcomings in his trial counsel's

performance to buttress his ineffective

assistance claim, including the brevity of

the attorney's sentencing argument and his

failure to object to various arguments and

evidence presented by the prosecution. As

we have noted, the constitutional right to

effective legal assistance is not a

guarantee of errorless counsel, Herring v.

Estelle, 491 F.2d 125, 127 (5th Cir. 1974)

(quoting MacKenna v. Ellis, 280 F.2d 592,

599 (Sth Cir. 1960), modified, 289 F.2d 928

(5th Cir.) (en banc), cert. denied, 368

U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78

(1961)); nor will we assess counsel's

effectiveness "through the finely ground

lenses of 20/20 hindsight." Washington v.

A-115

Watkins, 655 F.2d at 1356. We therefore

find appellant's contentions without merit.

C. Denial of Confrontation Rights in

Using Information from Court-

Appointed Psychiatrists

After the jury rendered its advisory

sentence of death the trial judge, in the

presence of appellant and his counsel,

suggestea that appellant pe examined by two

court-appointed psychiatrists prior to the

final sentence determination. Appellant's

attorney agreed to the examinations, 2° and

appellant was subsequently seen by Drs.

Coffer and Sprehe. Both doctors submitted

reports to the court, which stated that

appellant was competent at the time of the

35a though the attorney qualified his

agreement by stating that he had not

discussed the matter with appellant,

appellant was present in the courtroom at

the time the judge suggested the

examinations, and no objection was raised

to the examinations at that time or at any

later date.

A-116

examination and had been capable of

distinguishing right from wrong when he

committed the offense. Dr. Sprehe's report

additionally opined that appellant's "long

standing compulsion to kill someone ... did

not involve a break in reality testing and

did not involve psychosis...." Dr. Sprehe

Gescribed appellant as having

a long standing sociopathic

personality characterized by

resort to violence as a solution

to his life problems and [][] a

rather chaotic life history with a

lot of anti-social behavior

including an Undesirable Discharge

from the Armed Forces and numerous

minor Criminal convictions and

other charges where he was not

convicted. He had three rather

chaotic marriages and has

generally lived his life outside

the usual standards of society.

Following submission of the reports the

judge ordered a hearing, at which the

defense attorney waived appellant's right

of presence. Dr. Coffer appeared and

testified that he did not believe appellant

A-117

committed the murder while under the

influence of extreme emotional or mental

pressure nor that appellant's capacity to

conform his conduct to law was

substantially impaired at the time of the

offense, 26 Dr. Sprehe was unable to

attend, and defense counsel requested an

opportunity to cross-examine him about the

report. The judge indicated he would allow

Sprehe's testimony to be taken and made

part of the record at a later date but

proceedea to sentence petitioner without

it.

Appellant raises two arguments with

36pr, Coffer further testified that he

believed appellant suffered from a

“personality disorder" and that people with

this type of disorder tended to "get []

into repeated difficulties with the law.”

He stated that such difficulties reflected

"a lack of motivation," rather than an

inability, to conform one's conduct to

legal standards, however. IV Trial Record

547-49.

A-118

respect to the osychiatrists' reports and

testimony. First, he claims the court's

consideration of Dr. Sprehe's report

without affording him an opportunity to

confront and cross-examine Dr. Sprehe

violated his rights to confrontation, due

process, and freedom from cruel and unusual

punishment. Second, appellant contends his

constitutional right to be present at trial

was violated by Dr. Cofer's testifying

outside his presence and without his

knowledge. This district court rejected

these claims. The court held that

appellant's rights were not violated by his

not being afforded an opportunity to cross-

examine Dr. Sprehe because the trial judge

"did not consider [Dr. Sprehe's]) report in

imposing sentence." Moreover, while

accepting appellant's argument that his

attorney's waiver of his right to be

present during Dr. Coffer's testimony was

A-119

ineffectual because not authorized by

appellant personally, the court held that

appellant's nonconsensual adsence was

harmless error.

l. Use of Dr. Sprehe's Report Without

Affording Appellant Opportunity for

Cross-Examination

[17] The right to cross-examine adverse

witnesses is guaranteed to criminal

defendants by the confrontation clause of

the sixth amendment. Douglas v. Alabama,

380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13

L.Ed.2d 934 (1965); Pointer v. Texas, 380

U.S. 400, 404, 85 S.Ct. 1065, 1068, 13

L.Ed.2d 923 (1965). Indeed, it has been

364a1 though appellant's attorney asserted

the right to cross-examine Dr. Sprehe at

the hearing, the trial court's failure to

afford appellant that opportunity was not

raised as error on direct appeal. The

state has not contended that appellant

waived this issue, however, and we

therefore will not decide the claim on that

ground. See Washington v. Watkins, 655

F.2d at 1368.

A-120

said that

[t]he primary object of the

[confrontation clause] was to

prevent depositions or ex parte

affidavits ... being used against

the prisoner in lieu of a personal

examination and cross-examination

of the witness in which the

accused has an opportunity, not

only 2f testing the recollection

and « f£ting the conscience of the

witness, but of compelling him to

stand face to face with the jury

in order that they may look at

him, and judge by his demeanor

upon the stand and the manner in

which he gives his testimony

whether he is worthy of belief.

Douglas v. Alabama, 380 U.S. at 418-19, 85

S.Ct. at 1076-77 (quoting Mattox v. United

States, 156 U.S. 237, 242-43, 15 S.Ct. 337,

339-40, 39 L.Ed. 409 (1895)). Accord Davis

v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct.

1105, 1109-10, 39 L.Ed.2d 347 (1974).

Cross-examination has been placed on a par

with the right to notice and an opporutnity

to be heard and the right to counsel, which

are considered fundamental minimum

requirements of a fair trial comporting

A-121

with the due process clause. Chambers v.

Mississippi, 410 U.S. 284, 294-95, 93 S.Ct.

1038, 1045, 35 L.Ed.2d 297 (1973); Pointer

v. Texas, 380 U.S. at 405, 85 S.Ct. at 1068

(both guoting In re Oliver, 333 U.S. 257,

273, 68 S.Ct. 499, 507, 92 L.Ed. 682

(1948)). So basic is the right that the

Supreme Court has held that its denial,

"without waiver ... would be constitutional

error of the first magnitude and no amount

of showing of want of prejudice would cure

it." Smith v. Illinois, 390 U.S. 129, 131,

88 S.Ct. 748, 749, 19 L.Ed.2d 956 (1968);

Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct.

1245, 1246, 16 L.Ed.2d 314 (1966).2?

37 The reasoning for this rule is set forth

in Alford v. United States, 282 U.S. 687,

692, 51 S.Ct. 218, 219, 75 L.Ed. 624

(1931):

Counsel often cannot know in

advance what pertinent facts may

be elicited on cross-

examination. For that reason it

(cont'd on next page)

A-122

[18] The rights guaranteed by the sixth

amendment, including the right to cross-

examination, are only applicable to

proceedings that constitute critical stages

is necessarily exploratory; and

the rule that the examiner must

indicate the purpose of his

inquiry does not, in general,

apply. It is the essence of a

fair trial that reasonable

latitude be given the cross-

examiner, even though he is unable

to state to the court what facts a

reasonable cross-examination might

develop. Prejudice ensues from a

denial of the opportunity to place

the witness in his proper setting

and put the weight of his

testimony and his credibility to a

test, without which the jury

cannot fairly appraise them. To

say that prejudice can be

established only by showing that

the cross-examination, if pursued,

would necessarily have brought out

facts tending to discredit the

testimony in chief, is to deny a

substantial right and withdraw one

of the safeguards essential to a

fair trial. In this respect a

summary denial of the right of

cross-examination is

distinguishable from the erroneous

admission of harmless testimony.

(citations omitted).

A-123

of the trial. See, e.g., United States v.

Harris, 458 F.2d 670, 677-78 (5th Cir.),

cert. denied, 409 U.S. 888, 93 S.Ct. 195,

34 L.Ed.2d 145 (1972) (preliminary

hearing); Ryan v. State of Montana, 580

F.2d 988, 992 (9th Cir. 1978), cert.

denied, 440 U.S. 977, 99 S.Ct. 1548, 59

L.Ed.2d 796 (1979) (probation revocation

and deferred sentencing hearing); Polizzi

v. United States, 550 F.2d 1133, 1138 (9th

Cir. 1976) (judge's in camera questioning

of jurors re possible improper influence) ;

United States v. Mitchell, 540 F.2d 1163,

1165 n.1 (3a Cir. 1976), cert. denied, 429

U.S. 1099, 97 S.Ct. 1119, 51 L.Ed.2d 547

(1977) (preliminary hearing). But cf.

Gagnon v. Scarpelli, 411 U.S. 778, 790, 93

S.Ct. 1756, 1763, 36 L.Ed.2d 656 (1973)

(due process guarantees right of cross-

examination in probation revocation

hearing); Morrissey v. Brewer, 408 U.S.

A-124

471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d

484 (1972) (limited right of cross-

examination applies to probation revocation

proceedings). Traditionally, sentencing

hearings have not been accorded the

significance of the guilt-determination

portion of trial; by and large, sentencing

has been left to the broad discretion of

the judge or jury, United States v. Tucker,

404 U.S. 443, 447, 92 S.Ct. 589, 591, 30

L.Ed.2d 592 (1972); McGautha v. California,

402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711

(1971), and courts have declined to apply

to sentencing most of the procedural rights

guaranteed by the sixth amendment. E.G.,

Williams v. New York, 337 U.S. 241, 69

S.Ct. 1079, 93 L.Ed. 1337 (1949)

(confrontation and cross-examination) ;

United States v. Glick, 463 F.2d 491, 494

(2d Cir. 1972) (factfinding by jury). See

also Hill v. United States, 368 U.S. 424,

A-125

82 S.Ct. 468, 7 L.Ed.2a 417 (1962) (right

of allocution at sentencing not of

constitutional dimension). But see Mempa

v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 s

L.Ed.2d 336 (1967) (right to assistance of

counsel applies at sentencing); Specht v.

Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18

L.Ed.2d 326 (1967) (due process guarantees

hearing and confrontation in separate post-

trial proceeding for indeterminate

commitment of convicted sex offenders).

See generally Note, The Constitutionality

of Statutes Permitting Increased Sentences

for Habitual or Dangerous Criminals, 89

Harv.L.Rev. 356, 359-73 (1975). The

justification for the refusal to extend the

procedural limitations of the trial to the

sentencing hearing was in part historical

and in part rested on tine belief that

modern penological policies, which favor

sentencing based on the maximum amount of

A-126

information about the defendant, would be

thwarted by restrictive procedural and

evidentiary rules. Williams v. New York,

357 U.S. at 246-50, 69 S.Ct. at 1082-84,

The possibilities of delay in criminal

administration and retrial of issues not

relevant to the determination of guilt are

additional considerations underlying the

result in these cases. Id. at 250, 69

S.Ct. at 1084,

[19] Although the absence of procedural

requirements designed to ensure fairness in

sentencing has been widely criticized,

Note, supra at 360; see, e.g., Kadish,

Legal Norm and Discretion in the Police and

Sentencing Processes, 75 Harv.L.Rev. 904,

926-29 (1962), such has remained the

constitutional rule with respect to

sentencing in noncapital cases. E.g.,

Farrow v. United States, 580 F.2d 1339,

1353-54 n.25 (9th Cir. 1978) (en banc);

A-127

United States v. Fatico, 579 F.2d 707, 71l-

712 n.10 (2d Cir. 1978), appeal after

remand, 603 F.2d 1053 (2d Cir. 1979), cert.

deniea, 444 U.S. 1073, 100 S.Ct. 1018, 62

L.Ed.2d 755 (1980). The constitutional

requirements governing capital sentencing,

by contrast, have undergone substantial

evolution in the wake of Furman v.

Georgia. The thrust of Furman and its

progeny is that the risk of arbitrary

imposition of the death penalty inherent in

sentencing determinations made without

substantive and procedural standards

conflicts with the eighth amendment

prohibition on cruel ana unusual

punishment. Because the death penalty,

unlike other punishments, is permanent and

irrevocable, the procedures by which the

decision to impose a capital sentence is

made bring into play constitutional

limitations not present in other sentencing

A-128

decisions. See Enmund v. Florida,

U.S. ’ , 102 §.Ct. 3368, 3375-76,

73 L.Ed.2d ss (1982); Lockett v. Ohio,

438 U.S. at 605, 98 S.Ct. at 2965; Gardner

v. Florida, 430 U.S. 349, 357-58, 97 S.Ct.

1197, 1204, 51 L.Ed.2d 393 (1977); Woodson

v. North Carolina, 428 U.S. 280, 303-04,

305, 96 S.Ct. 2978, 2990-91, 49 L.Ed.2d 944

(1976) (opinion of Stewart, Powell, and

Stevens, JJ.); Gregg v. Georgia, 428 U.S.

153, 181-88, 96 S.Ct. 2909, 2928-32, 49

L.Ed.2d 859 (opinion of Stewart, Powell,

and Stevens, JJ.); Furman v. Georgia, 408

U.S. at 286-91, 92 S.Ct. at 2750-53

(Brennan, J. concurring); id. at 306, 92

S.Ct. at 2760 (Stewart, J. concurring); id.

at 314-71, 92 S.Ct. at 2764-2793 (Marshall,

J. concurring). The Supreme Court has

adhered to the traditional concept of

individualized sentencing, see Lockett v.

Ohio, 438 U.S. 586, 93 S.Ct. 2954, 57

A-129

S.Ct. at 1204 n.9. Whether the right to

cross-examine adverse witnesses extends to

capital sentencing proceedings has not been

specifically addressea by the Supreme Court

and is an issue of first impression in this

Circuit. We must therefore decide this

question in accord with the general

principles articulated by the Supreme Court

in its recent death penalty decisions.

The focus of the Court's current

capital sentencing decisions has been

toward minimizing the risk of arbitrary

decisionmaking. See, e.g., Eddings v.

Oklahoma, 0.8. ’ » 102 S.Ct.

869, 874-76, 71 L.Ed.2d 1, 8-9 (1982); id.

U.S. at ___—_—_, 102 S.Ct. at 878, 71

L.Ed.2d at 13 (O'Connor, J., concurring);

Godfrey v. Georgia, 446 U.S. 420, 427-28,

100 S.Ct. 1759, 1764-65, 64 L.Ed.2d 398;

Lockett v. Ohio, 438 U.S. at 605, 98 S.Ct.

at 2965; Gardner v. Florida, 430 U.S. at

A-130

358, 97 S.Ct. at 1204; Gregg v. Georgia,

428 U.S. at 188, 96 S.Ct. at 2932 (opinion

of Stewart, Powell, and Stevens, JJ.); id.

at 189, 96 S.Ct. at 2932 (opinion of White,

J., concurring); Furman v. Georgia, 408

U.S. at 248-49 & n.ll, 92 S.Ct. at 2731 &

n.ll (opinion of Douglas, J.); id. at 309-

20, 92 S.Ct. at 2762-67 (opinion of

Stewart, J.); id. at 313, 92 S.Ct. at 2764

(opinion of White, J.). Whereas earlier

cases had focused on the quantity of

information before the sentencing tribunal,

recently the Court has shown greater

concern for the quality of such

information. Gardner v. Florida, 430 U.S.

at 359, 97 S.Ct. at 1205. Thus, it has

recognized the defendant's interest both in

presenting evidence in his favor, Eddings

v. Oklahoma, __—_—sdUU-S- es 102 SCH. 869,

71 L.Ed.2d 1 (1982); Lockett v. Ohio,

supra, and in being afforded the

A-131

opportunity to explain or rebut evidence

offered against him. Gardner v. Florida,

430 U.S. at 362, 97 S.Ct. at 1207.

Reliability in the factfinding aspect of

sentencing has been a cornerstone of these

decisions. Id. at 359-60, 362, 97 S.Ct. at

1205; Woodson v. North Carolina, 428 U.S.

at 305, 96 S.Ct. at 2991.

In Gardner v. Florida, supra, the

Supreme Court held that a judge's reliance,

in imposing the death penalty, on

information not disclosed to the defendant

or his attorney violated the defendant's

rights to due process and freedom from

cruel and unusual punishment. Gardner is

premised on the principle that death

sentences may not constitutionally be

imposed on the basis of information that

the capital defendant has been afforded no

opportunity to rebut. See id. at 362, 97

S.Ct. at 1206. The holdiag in Gardner,

A-132

narrowly viewed, simply prohibits the

use of "secret information"; the Court

did not in that case address the scope

of the capital defendant's procedural

rights in attempting to rebut information

that has openly been presented to the

sentencing tribunal. In reaching its

decision in Gardner, however, the Court

emphasized the unacceptability of the

"risk that some information accepted in

confidence may be erroneous, or may

be misinterpreted, by the

sentencing judge."’ Id at 359, 97 S. Ct.

at 1205. Meteowar the Court expressly

recognized the importance of partici-

pation by counsel and adversarial de-

bate to eliciting the truth and "evalu-

ating the relevance and significance

A-133

of aggravating and m

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.