Opposition — SULLIVAN v. WAINWRIGHT (No. 83-5267)
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NO. 83-
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, NINETEEN HUNDRED AND EIGHTY-THREE
ROBERT AUSTIN
Petitioner,
-V-
RECEIVED
SULLIVAN,
' SEP 26 1983
OFFICE OF THE CLERK
SUPREME COURT, U.S.
LOUIE L. WAINWRIGHT,
Respond
ent.
On Petition for a Writ of Certiorari
To the United States
Court of Appeals
For the Eleventh Circuit
BRIEF FOR RESPONDENT IN OPPOSITION
JIM SMITH
Attorney General
WALLACE E. ALLBRITTON
Assistant Attorney General
COUNSEL FOR RESPONDENT
II.
IIl.
IV.
WHETHER PETITIONER RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL AT THE PENALTY PHASE
OF HIS CAPITAL TRIAL.
WHETHER THE UOWER COURT ERRED IN CONCLUDING
THAT IT WAS 8ARRED FROM CONSIDERING THE
MERITS OF PETITIONER'S CLAIMS REGARDING JURY
INSTRUCTIONS ON THE BASES OF (1) PROCEDURAL
DEFAULT AND (2) FPAILURE TO SATISFY THE
"CAUSE AND PREJUDICE" REQUIREMENT OF
Wainwright v. Sykes, 433 U.S. 72 (1977).
WHETHER THE “ESPECIALLY HEINOUS, ATROCIOUS,
AND CRUEL" AGGRAVATING FACTOR WAS PROPERLY
APPLIED TO PETITIONER'S CASE.
WHETHER THE LOWER COURT ERRED IN DETERMINING
THAT THE REFERENCE TO A POLYGRAPH TEST BY A
STATE WITNESS WHICH WAS DEEMED HARMLESS ERROR
UNDER STATE LAW DOES NOT PRESENT AN ISSUE OF
CONSTITUTIONAL OR FEDERAL LAW COGNIZABLE IN A
PEDERAL HABEAS CORPUS PROCEEDING.
QUESTIONS PRESENTED
TABLE OF CONTENTS
TABLE OF CITATIONS
OPINIONS BELOW
JURISDICTION
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
PRELIMINARY STATEMENT
STATEMENT OF THE CASE
REASONS WHY THE WRIT SHOULD NOT BE GRANTED
ISSUE I
WHETHER PETITIONER RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL AT THE PENALTY PHASE
OF HIS CAPITAL TRIAL.
ISSUE
II
WHETHER THE LOWER COURT ERRED IN CONCLUDING
THAT IT WAS BARRED FROM CONSIDERING THE
MERITS OF PETITIONER'S CLAIMS REGARDING JURY
INSTRUCTIONS ON THE BASES OF (1) PROCEDURAL
DEFAULT AND (2) FAILURE TO SATISFY THE “CAUSE
AND PREJUDICE" REQUIREMENT OF Wainwright v.
Sykes, 433 U.S. 72 (1977).
ISSUE
II!
WHETHER THE “ESPECIALLY HEINOUS, ATROCIOUS,
AND CRUEL" AGGRAVATING FACTOR WAS PROPERLY
APPLIED TO PETITIONER'S CASE.
ISSUE
IV
WHETHER THE LOWER COURT ERRED IN DETERMINING
THAT THE REFERENCE TO A POLYGRAPH TEST BY A
STATE WITNESS WHICH WAS DEEMED HARMLESS ERROR
UNDER STATE LAW DOES NOT PRESENT AN ISSUE OF
CONSTITUTIONAL OR FEDERAL LAW COGNIZABLE IN
A PEDERAL HABEAS CORPUS PROCEEDING.
CONCLUSION
- ii -
15
18
22
24
TABLE OF CITATIONS
Cases
Avery v. Alabama, 308 U.S. 444 (1940)
Barc? , U.S. | 103
.ct. 1983)
Brooks v. Tennessee, 406 U.S. 605 (1972)
Chambers v. Maroney, 399 U.S. 42 (1970)
Cooper _v. State, 336 So.2d 1133 (Fla. 1976)
b Vv. Vv » 220 So.2d 430
(Fla. DCA 1 )
Cuyler v. Sullivan, 446 U.S. 335 (1980)
Douglas v. State, 328 So.2d 18 (Fla. 1976)
Engle = EDEL U.S. » 102 &.Ct.
82)
Estelle v. Williams, 425 U.S. 501 (1976)
Ex Parte Bollman, 8 U.S. (4 Cranch) 75 (1807)
Paretta v. California, 422 U.S. 806 (1975)
Ferguson v. Georgia, 365 U.S. 570 (1961)
Gagnon v. State, 212 So.2d 337 (Fla.3d DCA 1968)
Geders v. United States, 425 U.S. 80 (1970)
Gideon v. Wainwright, 372 U.S. 335 (1963)
Hamilton v. Alabama, 368 U.S. 52 (1961)
Harrington v. California, 395 U.S. 250 (1969)
Henderson v. Kibbe, 431 U.S. 145 (1977)
Herring v. New York, 422 U.S. 853 (1975)
Holloway v. Arkansas, 435 U.S. 475 (1978)
Jackson v. State, 366 So.2d 752 (Fla. 1978)
Knight v. State, 338 So.2d 201 (Fla. 1976)
Knight v. State, 394 So.2d 997 (Pla. 1981)
Lynch v. New York, 293 U.S. 52 (1934)
Menendez v. State, 368 So.2d 1278 (Fla. 1979)
Vv ’ U.S. , 33
r.L.Rptr. 3317
- iii -
19,
13, 14,
18, 21,
19,
19,
15,
24
Miller v. California, 413 U.S. 15 (1973)
Milton v. Wainwright, 407 U.S. 371 (1972)
Moore v. Balkcom, 709 F.24 1353 (11th Cir. 1983)
Palmes v. State, 425 So.2d 4 (Pla. 1983)
Picard v. Conner, 404 U.S. 270 (1971)
Powell v. Alabama, 297 U.S. 45 (1932)
Proffitt v. Florida, 428 U.S. 242 (1976)
Purdy v. State, 343 So.2d 4 (Pla. 1977)
Riley v. State, 166 So.2d 19 (Pla. 1979)
hneb , 405 U.S. 427 (1972)
Scripto, Inc. v. Carson, 362 U.S. 207 (1960)
Sireci v. State, 399 So.2d 964 (Fla. 1981)
nk kv w ht, 578 F.2d 582
th Cir. , Sert.denied, 440
U.S. 976
Sullivan v da, 428 U.S. 911 (1976),
den , 429 U.S. 873 (1976)
Sullivan v. State, 303 So.24 632 (Fla. 1974)
Sullivan v. State, 372 So.2d 938 (Pla. 1979)
u van v. Wainw ht, 695 F.2d 1306
(llth Cir. 1 )
United States v. Agurs, 427 U.S. 97 (1976)
n Ss s Vv. oster, 624 F.2d 196
(D.C.Cir. )
nit s Vv dy, U.S. » 102
. Se )
n Vv a ’ U.S. ,
S.Ct. (1983)
n Ss v. V n -~Ber ° U.S.
’ Ct.
wr Vv » 414 U.S. 21 (1973)
Wainwright v. Sykes, 433 U.S. 72 (1977)
White v. Maryland, 373 U.S. 59 (1963)
16,
2,
10,
17,
17,
15,
13,
14,
21
23
21
21
16, 24
13
16
17
19
23
21
17, 18
18, 19
3, 24
19, 22
3, 8
17, 21
16
16
15, 16
14, 16
16
21
15, 18,
21, 24
13
i
Other
Rule 3.850, Fla.R.Crim.P.
§ 921.141, F.S.
Bator, w
HARV.L.REV. 741 (1963)
h n
16
14
OPINIONS BELOW
Petitioner's allegations designating the opinions below are
correct and acceptable to respondents.
JURISDICTION
Petitioner's jurisdictional allegations are acceptable to
respondents.
CONSTI IONAL STA R SIONS INVOLVED
Respondents accept the constitutional and statutory
provisions involved as set forth on p. 2 of the Petition.
PRELIMINARY STATEMENT
References to the Appendix attached to the Petition will be
made by the symbol "PA" followed by appropriate page number.
References to the appendix attached to this brief in opposition
will be made by the symbol “RA” followed by appropriate page
number. The recore references in respondents' appendix are to
the transcript of evidentiary hearing held in the federal
district court which is being submitted under separate cover to
this Court as Respondents’ Exhibit 1.
STATEMENT OF THE CASE
A. Course of Proczedings
Petitioner was convicted of first-degree murder on November
8, 1973 and sentenced to death November 12, 1973. Following his
conviction and sentence in the Circuit Court of Dade County,
Florida, petitioner appealed to the Supreme Court of Florida.
The four issues raised on this appeal were:
Point I
Whether or not the trial court erred in
denying defendant's Motion for Mistrial upon
the State's witness referring to a polygraph
test;
Point II
Whether the trial court erred in admitting
into evidence an enlarged photograph of the
victim in view of the fact that all issues
pertaining to relevancy of the photograph
had been stipulated between counsel;
Point III
Whether the arrest of Robert Sullivan was
legal and the subsequent seizure of tangible
evidence and a confession lawful;
Point IV
Whether the provisions of Chapter 72-724,
Laws of Florida, 1972, amending Florida
Statutes, Sections 775.082, 782.04 and
921.141:
1. Is cruel and unusual punishment in
violation of the Eighth and Fourteenth
Amendments to the Constitution of the
United States?
2. Is an arbitrary infliction of
punishment as to deprive the defendant
of life, liberty or property without
due process of law?
3. Is a denial of the right to a jury
trial insured by the Sixth Amendment of
the United States Constitution?
4. Is unconstitutional by embracing
more than one subject therein?
Petitioner's conviction and sentence was affirmed on November 27,
1974. Sullivan v. State, 303 So.2d 632 (Fla. 1974).
Petitioner then filed a petition for writ of certiorari in
this Court which presented two questions:
l. Whether the imposition and carrying out
of the sentence of death for the crime
of first degree murder under the law of
Plorida violates the Eighth or Fourteenth
Amendment to the Constitution of the
United States?
2. Whether a prosecutor's knowing, calcu-
lated and intentional introduction at a
criminal trial in the jury's presence of
manifestly inadmissible and prejudicial
testimony suggesting that a state's
witness has taken and passed a polygraph
test is “harmless error” under the due
process clause of the Fourteenth Amend-
ment in a capital case where petitioner
was subsequently convicted and sentenced
to death?
The petition was denied by this Court on July 6, 1976, Sullivan
vy. Plorida, 428 U.S. 911 (1976), reh.denied, 429 U.S. 873 (1976).
More than two years passed before petitioner on March 15,
1979, filed a motion to vacate, set aside or correct sentence
pursuant to Rule 3.850, Plorida Rules of Criminal Procedure. The
motion to vacate was denied by the trial court on May 15, 1979,
and affirmed on appeal to the Florida Supreme Court. Sullivan v.
State, 372 So.2d 938 (Fla. 1979).
The Governor of Florida on June 19, 1979, signed a warrant
directing that petitioner's execution take place on June 27, 1979.
The district court entered an order staying petitioner's
execution and referred the matter to a magistrate for evidentiary
hearing. Following a two-day plenary hearing the magistrate
filed a lengthy review and recommendation recommending that the
district judge deny the petition for writ of habeas corpus on the
merits. (PA-2a-120a) By order dated June 4, 1981, the district
court approved and adopted the magistrate's review and recommen-
dation and lifted the stay of execution previously entered on
June 25, 1979, effective thirty days from the date of the order.
(PA-122a-130a)
On appeal, the Eleventh Circuit rejected petitioner's claim
of ineffective assistance, specifically finding that he received
reasonably effective assistance of counsel during the penalty
phase and on direct appeal, rejecting all substantive constitu-
tional claims. However, the Eleventh Circuit by order filed June
16, 1983, granted petitioner's motion for stay of execution
"pending an application for writ of certiorari" without giving
respondent an opportunity to move in opposition thereto. The
petition for writ of certiorari was filed in this Court on August
15, 1983, thus automatically lifting the stay of execution
previously entered by the court below.
B. Statement of the Pacts
On April 10, 1973, at approximately 9:00 a.m., the body of
Donald Schmidt was found by two hunters in a remote marshy area
in the western part of Dade County, Florida. The Dade County
Public Safety Department responded to the scene and Sergeant
Arthur Pelton of that department testified that the body was face
down with the hands bound behind the back with white surgical
tape, one shoe was missing, and there was a lurge wound to the
back of the victim's head (Tr. 1240-1242, 1245).2
Frank Barden, the manager of the Howard Johnson's
restaurant in Homestead, Plorida, where Donald Schmidt was the
assistant manager, testified that he last saw Schmidt at
approximately 9:00 p.m. on April 8, 1973, at the restaurant.
Barden said that at approximately 11:15 p.m., he called the
restaurant and talked to Schmidt advising Schmidt to meet him at
a Holiday Inn when Schmidt was finished with his bookkeeping for
the night (Tr. 1215, 1216).
1 References are to the record of state trial proceedings.
At midnight, Barden went back to the restaurant and saw
Schmidt's car there; however, there were no lights on in the
building which was of some concern to him since safety lights
were always left on. Barden entered the restaurant, opened the
bottom half of a floor safe Schmidt had access to and found that
it was empty. He testified that approximately $2700 was missing
(Tr. 1217-1219).
During the course of the investigation after the discovery
of Schmidt's body, the name of Robert Sullivan came to the atten-
tion of Sergeant Felton as a person who had previously worked at
the Howard Johnson's restaurant. Sergeant Felton also received
information that a person matching Robert Sullivan's description
was using a Master Charge credit card of the victim at various
Miami stores.
Sergeant Felton obtained information that Sullivan often
hung out at Keith's Cruise Lounge in Hallendale, Broward County,
Florida. On April 17, 1973, Sergeant Felton, together with three
other Dade County Public Safety Department detectives in two
cars, went to that location. Prior to going to Keith's Cruise
Lounge, Sergeant Felton obtained knowledge about outstanding
felony warrants from New Hampshire where Sullivan had been prior
to coming to Miami (Tr. 1256).
The detectives arrived at the lounge at approximately 12:00
a.m., and shortly thereafter observed a Cadillac previously
described as having belonged to Robert Sullivan and a person whom
they believed to be Robert Sullivan exit from the car, together
with two other individuals. The three individuals remained in
the lounge for approximately three hours after which time
Sullivan and the others exited, stood talking in the parking iot
for fifteen or twenty minutes, got back in the car and headed
toward Miami (Tr. 1331-1335).
The lounge was approximately five or six blocks from the
Dade County line, and the car was stopped by Sergeant Felton four
or five blocks south of the Dade-Browerd County line. Sergeant
Felton testified that he stopped the car to arrest Robert
Sullivan on the outstanding felony warrants from New Hampshire
and so advised Sullivan upon stopping the car (Tr. 1256, 1257).
There were various items in the automobile seized which the
state introduced at the trial of Robert Sullivan, including a
shotgun, a handgun, white adhesive tape, and other items which
the state argued could have been used in the robbery and subse-
quent murder of Donald Schmidt (Tr. 1262, 1263).
Also introduced into evidence was a watch Sullivan was
wearing at the time of his arrest which had belonged to the
victim and two credit cards belonging to the victim found in
Sullivan's wallet after his arrest (Tr. 1264, 1265).
After Sullivan's arrest, Sergeant Felton advised him of his
rights and subsequently took him to the Public Safety Department
building, the result of which was a “confession” from Sullivan
(Tr. 1253, 1254, 1279). At the time of Sullivan's arrest, there
were two other individuals in the car, one being George Jackson
and the other Reid McLaughlin. George Jackson was eventually
released by the police (Tr. 1339, 1340). After being confronted
with Sullivan's "confession", McLaughlin “confessed,” implicating
Sullivan and was also charged with first-degree murder and robbery.
In petitioner's statement which was introduced at trial
(Tr. 1279, 1289), petitioner admitted that Reid McLaughlin and he
went to the Homestead Howard Johnson's on the night of April 8,
1973, with the intention of robbing it, that McLaughlin and he
counted the customers and employees as they left until they were
certain the assistant manager, Donald Schmidt, was inside
alone. Petitioner and McLaughlin entered through the back door
and held the assistant manager at gunpoint while the money was
taken from the safe. McLaughlin taped Schmidt's hands behind him
as petitioner drove to a deserted and swampy area of Dade County.
Petitioner and McLaughlin planned to “dispose” of Schmidt by
murdering him (Tr. 1288). Upon arriving at a desolate place the
victim was removed from the car. When he stumbled, petitioner
struck him twice on the head with a tire iron, and taking the
shotgun that McLaughlin was carrying, shot him four times in the
head. Petitioner and McLaughlin then took Schmidt's watch and
credit cards and used the cards several times in Dade County
McLaughlin was the state's chief witness against petitioner.
Prior to petitioner's trial, he had agreed to plead nolo contendere
to a second degree murder charge in return for a life sentence
and his testifying against petitioner. McLaughlin testified that
petitioner and he had discussed committing "(t)he perfect crime*
(Tr. 1360), and had determined to rob the Howard Johnson restau-
rant where petitioner had once served as assistant manager
(Tr. 1362). McLaughlin entered the restaurant, ordered food, and
counted the customers and employees. He and petitioner waited
until all of these persons had left except the assistant manager
and then entered and held Donald Schmidt at gunpoint. McLaughlin
took his jewelry and wallet, and petitioner took the cash from
the safe. The two then abducted Schmidt in petitioner's car.
McLaughlin taped Schmict's hands behind him, and since *(hje was
looking kind of worried, . .. I said, ‘don't worry about it, and
we will leave you in the woods and tie you up.'* (Tr. 1376)
McLaughlin then described how he and petitioner stopped the car
in a swampy area and led Schmidt away, how petitioner hit Schmidt
on the head twice with a tire iron, and how he gave petitioner
the shotgun (Tr. 1377, 1378). McLaughlin testified that he then
started to walk away and heard petitioner fire the shotgun four
——_——— ee oo
The remaining issue alleges ineffective
assistance of counsel. After an evidentiary
hearing, the trial court, in denying
Sullivan's motion said:
I have seen some frivolous motions
come down the pike, but this has got
to take the cake. On the ground of
inadequacy of counsel, the motion to
vacate is denied.
The transcript of the 3.850 hearing supports
this conclusion of the trial court.
Id. at 939. The court then went on to hold that petitioner's
Claim of ineffective assistance of counsel was without merit.
The magistrate made a thorough review of petitioner's
allegations of ineffective assistance of counsel, setting forth
in her review and recommendation each of the allegations of
ineffective assistance as to Mr. Dean and then proceeded to
refute every allegation so raised. The concluding remarks of the
magistrate on this issue merit repeating:
In support of this determination, this
Court does not rely upon the petitioner's
representation by Mr. Dean subsequent to the
petitioner's trial and appeal but must point
out, without objection or demurrer by the
petitioner, Mr. Dean represented the
petitioner, in whole or in part, for approx-
imately five years in legal proceedings
before the United States Supreme Court, in a
Class action suit, before the Parole Board
in 1976, and in 1977 clemency proceedings.
Although the five year time span is less in
the case at bar than the 17 year span in
that of Fitzgerald v. Estelle, S2E fa, the
petitioner's failure to complain for an
extended period of time to authorities with
power to act on his complaints must reduce
to some degree the credence to be given to
the petitioner's position. An exceedingly
detailed examination of the entire record
and of the testimony given at hearing by
Judge Cowart and Judge Gable convinces this
Court that Mr. Dean's representation of the
petitioner met and even exceeded the
standard of reasonably effective assistance
of counsel.
Id. at PA 55a, 56a.
The district judge agreed with the conclusions reached by
the magistrate. The following quoted from the Final Order of
Dismissal is worthy of review:
This court can add nothing to the thor-
ough, complete and exhaustive discussion of
the facts and the law contained in Judge
Kyle's review and recommendation.
It will be adopted in its entirety and
hereinafter made the Order of this Court
except as hereinabove modified with respect
to respondents' second objection to said
Review.
This court's independent de novo review of
the record of these proceedings convinces it
that petitioner's main claim that he was
denied effective assistance of counsel is
totally without merit.
(P.A. 129a)
The Eleventh Circuit reviewed petitioner's claim of
ineffective assistance, concluding that "Sullivan received
reasonably effective assistance of counsel during the penalty
phase and on direct appeal.” Sullivan v. Wainwright, 695 F.2d
1306, 1309 (llth Cir. 1983).
Petitioner's claim of ineffective assistance of counsel at
—— —-
Gas
the sentencing stage is bottomed on an alleged failure to
_adequately develop certain evidence regarding a nonstatutory
mitigating factor. Apparently petitioner is claiming that his
counsel, Mr. Dean, failed to introduce in evidence the letters of
Drs. Keichenberg and Corwin. See Petition, at pp. 6-8.
Petitioner's counsel had occasion to contemplate use of the
defense of insanity. However, after reviewing the reports of
Drs. Reichenberg and Corwin, any theory of an insanity-type
defense was discarded (RA 2). The reason behind Mr. Dean's
failure to put these reports before the jury during the
sentencing phase of the trial becomes readily apparent upon
— -_ — —
examination of Mr. Dean's testimony given at the evidentiary
hearing. As noted previously, a copy of the complete transcript
of evidentiary hearing is being submitted to this Court under
separate cover as Exhibit 1, Note the fcllowing:
Q Did you contemplate the possibility of an
insanity defense?
- 18 -
A
Q
A
Yes. There had -- I believe Mr. Windsor
had already requested the court or
previous to my appointment had requested
the court for the appointment of a
psychiatrist. There, in fact, were - I
believe one psychiatrist and one
psychologist, Doctor Corwin and Doctor
Reichenberg that were appointed to
represent Mr. Sullivan and I had the
benefit of their reports, which, in my
opinion, put an end to a thought of an
insanity-type defense, especially in view
of the fact that Mr. Sullivan took the
position he did not participate in the
crime.
What about that, was there something in
the report that would negate that?
There was a statement attributed to Mr.
Sullivan in Doctor Corwin's report --
(Exhibit 1, Vol.II, p. 309, lines 6-22) In any event, when
~~
——.
petitioner testified in his own behalf at trial, his counsel
~~
elicited most, if not all, of the pertinent data, sans psychi-
atric terminology, set forth in the doctors' reports that
petitioner now Claims should have been introduced in evidence.
Note the following quoted from the transcript of state trial
proceedings:
Q
All right. Now, while you were working
at Howard Johnson's in the Miami area,
did you have any family problems at the
time?
Yes, I did.
What were the nature of those problems?
Well, there were numerous problems. I
would say that the first one was about
four or five months after I began working
for the Howard Johnson's Company and it
is my parents are divorced. And my
father had remarried. This had been
—— that had happened. He had been
remarried for eight to 10 years and I was
closer to his -- not to my mother, but to
his second wife and she was dieing [sic]
of cancer. And his nurse called me up
and asked me if I could come up to New
Hampshire.
All right. Are you originally adopted?
Yes, I am
= 22 «
Are you a homosexual?
Yes, I am.
Now, you indicated that Reid McLaughlin
had some discussion with you in October
of last year about coming to Miami. Did
you accompany him to Miami at that time?
A No, I did not.
Q Did there come a time when you
accompanied Reid McLaughlin to Miami?
Yes, I did.
When was that?
In March of this year, late March.
How did that trip happen to come about?
> oO FF O °F
Well, I had returned to New Hampshire
because my father had suffered a paralyz-
ing heart attack in June and he was
unable to care for himself and he was
alone and I returned to be with him at
that time approximately two or three
months after it happened. And, once he
regained his composure and-was able to
take care of himself I made calls to
friends I knew, to a friend I knew here
in Miami and I placed two or more calls
to this person and arranged for employ-
ment at the University of Miami at the
Rathskeller.
(State court trial transcript, pp. 1453, 1455, 1456)
Again, petitioner’ s position is sought to be maintained on
pontenncnaesaniatinhatemnssd
the theory of what his counsel did not do; however, respondents
look to what counsel did do anc do and his overall performance in
representing petiti ender effective
assistance. Respondents' appendix sets forth a thorough review
“Of Mr. Dean's testimony as to what he did do in representing
petitioner (RA 1-15); the expert testimony of Judge Gable and
Judge Cowart (state trial judges); and all other testimony
adduced at the hearing. Further, on the reports of the doctors,
Raymond Martin Windsor testified that he too had explored ‘the
possibility of several defenses and requested a psychiatric
report. He received the reports from Drs. Corwin and Reichenberg
and stated that Dr. Corwin's report corroborated petitioner's
0 ———E——
o $9 «
~~
admitted responsibility in the matter. (RA 25) No wonder
“petitioner's counsel did not seek to introduce the reports in ae
evidence at the sentencing hearing! Had he done so, it would i
have been egregious error particularly in view of petitioner's
Claim of absolute innocence.
Respondents submit that the focus in the instant case
should be on the nature and source of the right to counsel
afforded by the Sixth Amendment. we think the proper analysis
should be based upon what counsel did and whether petitioner has
been denied "a fundamental right essential to a fair trial,” in
the context of the entire proceeding. See, Gideon v. Wainwright, |
372 U.S. 335, 339-344 (1963). As an essential premise to its
analysis, the Gideon Court noted that in any due process inquiry
the concern is whether in the totality of the circumstances the
proceeding was fundamentally unfair. 372 U.S., at 339. In an
unbroken line of decisions this Court has focused upon the
fundamental denial of due process in the complete absence of
counsel or in critical circumstances tantamount to the total
denial of counsel.2 Indeed, just recently this Court has held
that the central consideration in an ineffective counsel claim is
whether a defendant has been denied fundemental due process and a
fundamentally fair trial. See, United States v. Frady,
U.S. , 102 S.Ct. 1584 (1982); Engle v. Isaac, U.S. ’
102 S.Ct. 1558 (1982). It is submitted that the focus upon the
fundamental nature of the right to counsel rather than laboring
-S. 444 (1940) (ability to confer);
Ferguson v. rgia, 365 U.S. 570 (1961) (no direct examination of
efendant); Hamilton v. Alabama, 368 3.S. 52 (1961) (no counsel at
guilty plea); White v. Maryland, 373 U.S. 59 (1963) (same); Geders
v. United States, 425 U.S. 80 (1970) (consultation with defend-
ant); Brooks v. Tennessee, 406 U.S. 605 (1972) (defendant required
to testify as first defense witness); Herri v. New York, 422
U.S. 853 (1975) (denial of closing argumen!:); Feretta v. California,
422 U.S. 806 (1975) (no consent to counsel); Hol loway v. Arkansas,
435 U.S. 475 (1978) (conflict of interest); Cuyler v. Sullivan,
446 U.S. 335 (1980) (same).
= 313 -«
i)
Rg
over a checklist of what should have been done is consistent with
the proper application of the great writ and essential to
finality. "A criminal trial concentrates society's resources at
one ‘time and place in order to decide within the limits of human
fallibility, the question of guilt or innocence’." Engle v.
Isaac, 102 S.Ct., at 1571. “Every trial presents a myriad of
possible claims." Id. at 1574. It is inevitable that counsel
will through strategy, ignorance, mistake, or many other reasons,
choose to omit certain claims while pursuing others. Id. at
1572, n. 4; 1574-1575. The Constitution, therefore, could not
reasonably require that counsel recognize and raise every
conceivable claim. 11; Wainwright v. Sykes, 433 U.S. 72, at 91
(1977); Estelle v. Williams, 425 U.S. 501, at 512-513 (1976). In
United States v. Hasting, U.S. __, 103 S.Ct. 1974, at 1980
(1983), the Court observed that, “taking into account the reality
of the human fallibility of the participants, there can be no
such thing as an error-free, perfect trial and that the
Constitution does not guarantee such a trial." Due regard for
finality supposes that a criminal trial must not be followed by a
trial of a defendant's lawyer. See, Wainwright v. Sykes, at 114,
n. 13 (Brennan, J., dissenting); See also Bator, Finality in
Criminal Law and Federal Habeas Corpus for State Prisoners, 76
HARV.L. REV. 741 (1963). Such a practice, “degrades the
prominence of the trial itself." Isaac, 102 S.Ct., at 1571. It
is submitted that the underlying purpose of the great writ is, “a
bulwark against convictions that violate ‘fundamental fairness.'”
Isaac, 102 S.Ct., at 1570. Reasonably, any reexamination of
counsel's performance must be guided by the polar star of
fundamental fairness.°
3this analysis is also compatible with the original purpose of
the writ at common law to correct only fundamental error. See,
Ex Parte Bollman, 8 U.S. (4 Cranch) 75, at 95 (1807) (Marshall,
-)} J. Story, Commentaries on the Constitution of the United
States, 157 (1883); McFeely, The Historical Development Of Habeas
Corpus, 30 S.W.L.J. 585 (1976).
- 14 <
As stated by the Eleventh Circuit:
Each case turns on its own facts and the
effectiveness of counsel must aiso be judged
on the facts and conduct of those involved in
each case. Goodwin v. Balkcom, at 804. We
have carefully reviewed counsel's performance
during the penalty phase, in light of the
totality of the circumstances as they were
known to counsel at that time, and find that
counsel's performance did not fall below the
"reasonably effective assistance" standard.
Sullivan v. Wainwright, 695 F.2d 1306, at 1309 (llth Cir. 1983).
Respondents submit that the record demonstrates that petitioner
received a fair trial, consequently he received constitutionally
adequate representation. Tne Constitution requires no more.
ISSUE ITI
WHETHER THE LOWER COURT ERRED IN CONCLUDING THAT
IT WAS BARRED FROM CONSIDERING THE MERITS OF
PETITIONER'S CLAIMS REGARDING JURY INSTRUCTIONS ON
THE BASES OF (1) PROCEDURAL DEFAULT AND (2) FAILURE
TO SATISFY THE “CAUSE AND PREJUDICE" REQUIREMENT
OF Wainwright v. Sykes, 433 U.S. 72 (1977).
Even though the Eleventh Circuit admitted that all of
petitioner's claims relating to jury instructions were barred by
Wainwright v. Sykes, 433 U.S. 72 (1977), and Engle v. Isaac,
U.S. __, 71 L.Ed.2d 783, 102 S.Ct. 1558 (1982), and that
petitioner "“ha[d] not advanced the Sykes issue nor has he
advanced any cause for the procedural default nor proffered any
prejudice resulting therefrom,” the court nevertheless considered
whether the requirements of Sykes and Isaac had been met. 695
F.2d, at 1310. Relying on the “novelty of [the] constitutional
meas cba. tn
Claim," the court assumed that the cause prong of Sykes had been
met and then proceeded to determine the existence ye) non of
ET
prejudice. Relying on United States v. Frady, 456 U.S. 152, 167-
TS TP ee oe ae
68 (1982), quoting, Henderson v. Kibbe, 431 U.S. 145, 154 (1977),
the court concluded that “the lack of showing of actual prejudice
under Sykes bars our consideration of the merits of Sullivan's
Claims regarding the jury instructions." 695 F.2d, at 131ll.
o 15 =
‘
However, petitioner now argues that a reasonable juror
could have understood the instructions in a constitutionally
impermissible way. And, if a reasonable juror “could have
understood" the instructions ‘n such an impermissible way, then
petitioner wants this Court to assume that the jurors did
misunderstand the instructions. Not only is this precise issue
barred from consideration by Picard wv. Conner, 404 U.S. 270
(1971), the most compelling demonstration of error in the
assumption petitioner asks this Court to make is a comparison
with the seminal decision in United States v. Agurs, 427 U.S. 97
(1976). The Agurs Court in assessing the effect of new evidence
consisting of discovery material upon a claim for new trial,
Clearly delimited claims of constitutional error thusly:
The mere possibility that an item of
undisclosed information might have helped
the defense, or might have affected the
outcome of the trial, does not establish
"materiality" in the constitutional sense.
427 U.S., at 109-110. Consistent with Agurs, see Chambers v.
Maroney, 399 U.S. 42, at 53-54 (1970), and United States v.
Valenzuela-Bernal, __ U.S. ___,» 102 S.Ct. 3440 (1982).
Respondents submit that the “heavy burden" standard in Agurs and
the “outcome” analysis of the foregoing authorities are totally
consistent with the policy and underlying philosophy in
collateral proceedings noted in Frady and are the central
motivation for the rule in United States v. Decoster, (Decoster
III), 624 F.2d 196 (D.C.Cir. 1979), and Knight v. State, 394
So.2d 997 (Pla. 1981). See also, United States v. Hasting,
——_ U-S. ___ 103 S.Ct. 1974 (1983), and the Fifth Circuit's
discussion of the Florida death penalty statute in Spinkellink v.
Wainwright, 578 F.2d 582 (Sth Cir. 1978), cert.denied, 440 U.S.
SAO sree Oe
976, citing the la : n Proffitt v.
Florida, 428 U.S. 242 (1976), rejecting the contention that the
aed:
Florida statute (§ 921.141) contained limiting language with
TL
respect to mitigating circumstances that the judge and jury could
——
- 16 -
properly consider. Spinkellink, 578 F.2d, at 620, 621. Equally
Sa
informative is the magistrate's treatment of this issue in her
review and recommendation. Please see P.A. 99a-lO4a.
Petitioner's contention that the trial judge relied on a
nonstatutory aggravating circumstance was rejected by the court
below. Sullivan, 695 F.2d, at 1312. Indeed, the coup de gras to
petitioner's “lack of remorse” argument is the decision of this
Court in Barclay v. Florida, __—-U.S. ___, 103 S.Ct. 3418
(1983). Still, what petitioner fails to point out, perhaps
intentionally so, is that at the time of his trial in November,
1973, and even at the time the Florida Supreme Court affirmed his,
conviction and sentence in November 1974, the use of icine
aggravating factors had not been condemned by the Florida Suprene
Court. It was not until Purdy v. State, 343 So.2d 4 (Pla. 1977)|
was decided that the use of aggravating factors was restricted i
those enumerated in the statute. Purdy was decided March 25,
1977, more than two years subsequent to the decision of the
Florida Supreme Court in Sullivan v. State, 303 So.2d 632 (Pla.
|
1974), om November 27, 1974. 2
The decision in Sireci v. State, 399 So.2d 964 (Pla. 1981),
is informative. There, the court remarked as follows:
The defendant further argues that the
state presented evidence to the jury of a
nonstatutory aggravating factor: the
defendant's lack of remorse. The trial
judge did not find "lack of remorse" as an
aggravating factor. ile lack of remorse
cannot constitute an
1974),
cert.denied, 428 U.S. 911, 96 S.Ct. 3226, 49
L.Ed.2d 1220 ( ), the fac hat the
defendant alleged ad "I dente ft no
: erent," con d part o e edi on
whic n nto ‘ nding of “he: nous,
atrocious, and " Similarly, in
Hargrave v. State, 366 So.2d 1 (Fla. 1978),
the statements of the defendant that he had
killed before and it would not bother him to
© iJ -
eS a a en ee eee Fae oF
kill again were considered as applicable to a
consideration of whether or not the aggravat-
ing factor “heinous, atrocious, and cruel"
was present beyond a reasonable doubt. In
both of these cases the death sentence was
upheld. In the case sub judice the trial
court clearly did not consider “lack of
remorse” as a separate aggravating factor.
Id. at 971, 972. It is respondents’ position that the trial 7 \
judge never considered “lack of remorse" as an aggravating
factor. It was nothing more than an observation of Sullivan's
demeanor in the courtroom equally observable by the jury. This
conclusion is supported by the fact that Justice Overton in his
specially concurring opinion said nothing about lack of remorse
being one of the aggravating factors considered by the trial
judge. 303 So.2d 637, 638. But assuming arguendo that the trial
judge did consider petitioner's lack of remorse, he was entitled
to do so under the rationale of Sireci, supra, because it was a
factor which went into the equation of whether or not the crime
was especially heinous, atrocious, or cruel. x
As stated earlier, the issue is precluded by Sykes and
Isaac but it is interesting to note that it is also meritless.
ISSUE III
WHETHER THE “ESPECIALLY HEINOUS, ATROCIOUS,
AND CRUEL" AGGRAVATING FACTOR WAS PROPERLY
APPLIED TO PETITIONER'S CASE.
Petitioner's argument on this point is totally devoid of
merit and was deemed unworthy of comment by the lower court. In
Spinkeilink v. Wainwright, supra, the Fifth Circuit reasoned:
If the federal courts retried again and
again the aggravating and mitigating circum-
stances in each of these cases, we may at
times reach results different from those
reached in the Florida state courts, but our
conclusions would be no more, nor no less,
accurate. Such is the human condition. Cf.
Stone v. fowe 428 U.S. 465, 493 n. 35, 96
§.Ct. 3037, 3051-3052 n. 35, 49 L.Ed.2d 1067
(1976) (condemning the respondents' “basic
mistrust of the state courts as fair and
competent forums for the adjudication of
federal constitutional rights.").
- 19 <-
The Supreme Court in Proffitt, or in
Furman c ,» Jurek on, or Roberts
eee, alee eB 7
cou not ve intended these results. We
understand these decisons to hold that
capital punishment is not unconstitutional
per se, and that a state, if it chooses, can
punish murderers and seek to protect its
citizenry by imposing the death penalty--so
& long as it does so through a statute with
appropriate standards to guide discretion.
If a state has such a properly drawn
statute--and there can be no doubt that
Florida has--which the state follows in
determining which convicted defendants
receive the death penalty and which receive
life imprisonment, then the arbitrariness
and capriciousness condemned in Furman have
been conclusively removed.
Id. at 605.
Petitioner simply contends that the crime for which he was
convicted was not heinous, atrocious and cruel and attempts to
support this thesis by later case law. Respondents point out
that this identical situation has been held to be especially
heinous, atrocious, or cruel in three cases subsequent to
Sullivan v. State, 303 So.2d 632 (Fla. 1974). See Knight v.
State, 338 So.2d 201 (Fla. 1976); Douglas v. State, 328 So.2d 18
(Pla. 1976); and Jackson v. State, 366 So.2d 752 (Fla. 1978).
It is true that not all “execution-type slayings” are
heinous, atrocious, or cruel within the meaning of Florida's
death penalty statute. For example, see Riley v. State, 366
So.2d 19 (Pla. 1979); Cooper v. State, 336 So.2d 1133 (Fla.
1976), and Menendez v. State, 368 So.2d 1278 (Fla. 1979). But
there are those cases where the execution-type slaying of a
victim does come within the meaning of this aggravating circum-
stance. Petitioner's case is one of them. The cases relied upon
by petitioner are factually distinguishable, in that there was no
kidnapping and taking to a secluded area while the victims
suffered, knowing, or at least anticipating, that they were to be
executed. Indeed, this Court is invited to review the facts of
the crime in Spinkellink, 578 F.2d, at 586. Note the following:
~ 19 -
|
\
The trial jury recommended that Spenkelink
receive the death penalty. The trial court
agreed. Pursuant to Fla.Stat.Ann. § 921.141(3),
it found that the felony “was committed for
pecuniary gain, either for another person's
money or to re-coup his own,” that the crime
"was especially heinous, atrocious and
cruel," that Spenkelink “was previously
convicted of a felony involving the use, or
threat of violence to another, to-wit: armed
robbery,” and that Spenkelink committed the
crime while “under sentence of imprison-
ment." The only mitigating circumstance
found by the trial court was “that possibly
the defendant was under the influence of
extreme mental or emotional disturbance," a
consideration which, “based on the record as
a whole,” the court did not regard “as a
substantial factor." See Fla.Stat.Ann.
§§ 921.141(5), (6). The Supreme Court of
Florida affirmed both the conviction and
sentence. Spinkellink v. State, 313 So.2d
666 (Pla.19787- cert.denied, 428 U.S. 91l,
96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). With
respect to the sentence of death, the
Florida Supreme Court stated:
As more fully set out above the
record shows this crime to be premedi-
tated, especially cruel, atrocious, and
heinous and in connection with robbery
of the victim to secure return of money
Claimed by Appellant. The aggravating
circumstances justify imposition of the
death sentence. Both Appellant and his
victim were career criminals and
Appellant showed no mitigating factors
to require a more lenient sentence.
313 So.2d at 671. The United States Supreme
Court denied certiorari. Spenkelink v.
Florida, 428 U.S. 911, 96 S.Ct. 3227, 49
L.Ed.2d 1221 (1976).
Finally, in responding to the argument
that Section 921.141's eighth aggravating
circumstance was unconstitutionally vague
and overbroad, the Court in Proffitt even
mentioned the case of petitioner Spenkelink:
The Supreme Court of Florida has
affirmed death sentences in several
cases, including the instant case,
where this eighth statutory aggravating
factor was found, without specifically
stating that the homicide was “pitiless”
or “torturous to the victim." See,
@-. g-, Hallaman v. State, 305 So.2d 180
(1974) (victim's throat slit with broken
bottle); Spinkellink v. State, 313
So.2d 666 (1975) ("Career criminal" shot
- 26 <
sleeping traveling companion) ; sacdner
v. state, 313 So.2d 675 (1975) (bruta
ating and murder); Alvord v. State,
322 So.2d 533 (1975) (three women killed
by strangulation, one raped); Douglas
v. State, 328 So.2d 18 (1976) (depraved
murder); Henry v. State, 328 So.2d 430
(1976) (torture murder); Dobbert v.
State, 328 So.2d 433 (1976) (torture and
killing of two children). But the
circumstances of all of these cases
could accurately be characterized as
"pitiless" and “unnecessarily tortur-
ous," and it thus does not appear that
Florida Court has abandoned the defini-
tion that it announced in Dixon and
applied in Alford, Tedder, anc Halliwell.
428 U.S. at 255 n. 12, 96 S.Ct. at 2968
n. 12 (opinion of Stewart, Powell, and
Stevens, JJ.) (emphasis added).
Id. at 588, 589, 602. See also the discussion in Moore v.
Balkcom, 709 F.2d 1353, 1358-1360 (llth Cir. 1983). It is
submitted that the construction placed upon the aggravating
circumstance “especially heinous, atrocious, or cruel" by the
Plorida Supreme Court in Sullivan, Knight, Douglas, and Jackson
constitute an authoritative construction of a state statute which
should be binding on this Court. Wainwright v. Stone, 414 U.S.
21 (1973); Miller v. California, 413 U.S. 15 (1973); Scripto,
Inc. v. Carson, 362 U.S. 207, 210 (1960).
The foregoing can be of academic interest only because the
alleged “unconstitutional application of the ‘especially heinous,
i
atrocious and cruel factor'" (Petition, pr—3i}-wes-never_raised
atits
in the trial court and not challenged on petitioner's direct
ee
appeal. The procedural default is clear and Sykes and Isaac
———————
preclude Consideration here. Interestingly, petitioner tacitly
papitata
admits (Petition, p. 27) that this issue was only raised in state
post-conviction proceedings and in federal habeas. See Palmes v.
State, 425 So.2d 4, 6 (Pla. 1983).
e 2 «
ISSUE IV
WHETHER THE LOWER COURT ERRED IN DETERMINING
THAT THE REFERENCE TO A POLYGRAPH TEST BY A
STATE WITNESS WHICH WAS DEEMED HARMLESS ERROR
UNDER STATE LAW DOES NOT PRESENT AN ISSUE OF
CONSTITUTIONAL OR FEDERAL LAW COGNIZABLE IN A
FEDERAL HABEAS CORPUS PROCEEDING.
After reviewing what three lower courts held on this issue,
petitioner says that "[e]ach court erred." (Petition, p. 34)
More interesting is petitioner's allegation that the lower court
"could not even find the federal issue." (Prtition, p. 34)
There is a reason for this; there was none to be found!
The Florida Supreme Court in view of the overwhelming
evidence of guilt held that as a matter of state law the
polygraph reference was harmless, citing to Coral Gables v.
Levison, 220 So.2d 430 (Fla.3d DCA 1969), and Gagnon v. State,
212 So.2d 337 (Fla.3d DCA 1968). Sullivan, 303 So.2d 635,
n. 2. The court reasoned as follows: ile,
We cannot know how the jury construed his
answer, or what weight was given to it;
therefore, to assert that it was construed |
as meaning he had already passed it would be
pure speculation on our part. Reversible
error cannot be predicated on conjecture.
Singer v. State, 109 So.2d 7 (Pla. 1959).
* t *
Without passing on the issue of whether
the question on cross-examination concerning
the relationship between the outcome of
McLaughlin's testimony and his eventual
sentence opened the door to a reference to
the polygraph test condition of his plea
bargain (the State contending that this was
proper rehabilitation of the witness, in the
nature of a showing that the State had good
reason to attach credibility to his testi-
mony), we observe that the evidence of
appellant's guilt, anelud’ng both the
testimony of McLa n (a ti ip
is
peculiar circumstances presented here, the
trial court did not commit reversible error
in denying appellant's motion for mistrial.
= 33 «=
Id. at 636. (Emphasis ours.) Justice Overton (concurring
specially) cited Harrington v. California, 395 U.S. 250 (1969),
Milton v. Wain right, 407 U.S. 371 (1972), and Schneble v.
Plorida, 405 U.S. 427 (1972), for the proposition that where
independent evidence of guilt is overwhelming, a constitutional
error can be rendered harmless. Respondents point out that two
of the three state decisions cited by the Flor.da Supreme Court
as authority for its holding predates the decisions of this Court
in Harrington, Milton, and Schneble. In fact no citation to
federal authority is to be found in the opinions handed down in
the state court decisions relied upon by the Florida Supreme
Court for its holding of harmless error.
Just recently in Michigan v. Long, U.S. , 33 Cr.L.
Rptr. 3317, this Court had occasion to discuss its jurisdiction
where the decision for which review is sougit rests on an
adequate and independent state ground. The Court remarked in
pertinent part as follows:
If a state court chooses merely to rely on
federal precedents as it would on the prece-
dents of all other jurisdictions, then it
need only make clear by a plain statement in
its judgment or opinion that the federal
cases are being used only for the purpose of
guidance, and do not themselves compel the
result that the court has reached. In this
way, both justice and judicial administra-
tion will be greatly improved. If the state
court decision indicates clearly and expressly
that it is alternatively based on bona fide
separate, adequate, and independent grounds,
we, of course, will not undertake to review
the decision.
The focus of Justice Stevens' dissent was on the Court's decision
to presume that adequate state grounds are intended to be dependent
on federal law unless the record plainly shows otherwise. The
dissent points out that if the intermediate approaches are
rejected, the Court is then left with a choice between two presump-
tions: one in favor of taking jurisdiction, and one against it.
Precedent shows that the latter presumption has always prevailed.
In support of this thesis, Justice Stevens quotes from Lynch v. New
York, 293 U.S. 52 (1934):
- 23 -
"where the judgment of tne state court
rests on two grounds, one involving a
federal question and the other not, or if it
does not appear upon which of two grounds
the judgment was based, and the ground
independent of a federal question is
sufficient in itself to sustain it, this
Court will not take jurisdiction. Allen v.
Mau ma 198 U.S. 149, 154, 155; Johnson
v. Ris ’ {137 U.S. 300, 306, 307); Wood
" ’ 9; Cuya a River Power
oO. v. Northern Realty Co., 344 U.S. 300,
, . U.S., at 4-55.
dg. at 3327.
In an attempt to get a foot inside the door, petitioner in
his argument under this point presents an issue that was never
precisely presented to any of the lower courts. In all of the
courts below the issue was simply whether the polygraph reference
constituted harmless error. Now, for the first time, it is
contended that the state prosecutor's “deliberate manipulation of
the evidence” violates due process standards. (Petition, p. 36.)
This is in direct violation of Picard v. Conner, supra, and
barred from consideration by this Court by Sykes and Isaac.
In concluding under this point, it deserves mention that
this Court has already rejected petitioner's argument on the
polygraph issue. See the Petition filed in this Court in
Sullivan v. Plorida, 428 U.S. 911 (1976).
CONCLUSION
The petition for writ of certiorari should be denied.
JIM SMITH
Attorney General
. BRI
Asgistant Attorney General
COUNSEL FOR RESPONDENTS
The Capitol, 1502
Tallahassee, FL 32301-8048
(904) 488-0290
° 24 <
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 23rd day of September, 1983,
a copy of this Brief for Respondent in Opposition was mailed,
postage prepaid, to Mr. Roy E. Black, 1300 Miami Center, 100
Chopin Plaza, Miami, Florida 33131. I further certify that all
parties required to be served have bee
Vv
Assistant Attorney General
ef Counsel
- 25 -
* PR
a
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
ROBERT A. SULLIVAN,
Peticioner,
-v- CASE NO. 79-2721-Civ-JAG
LOUIE L. WAINWRIGHT,
Secretary, Department
of Corrections; and
DAVID H. BRIERTON,
Superintendent of
* Plorida State Prison at
~ Starke, Florida,
Respondents. — pocrere® —
RESPONDENTS' MEMORANDUM BRIEF
JIM SMITH
Attorney General
WALLACE E. ALLBRITTON
Assistant Attorney General
COUNSEL FOR RESPONDENTS
The Capitol
Tallahassee, Florida 32301
(904) 488-0290
flagabale' toypr dic
<
Iti THE UWITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
ROBERT A. SULLIVAN,
Petitioner,
-v- CASE WO. 79-2721-Civ-JAG
LOUIE L. WAINWRIGHT,
Secretary, Department
of Corrections; and
DAVID H. BRIERTON,
Superintendent of
Florida State Prison at
Starke, Florida,
Respondents.
RESPONDENTS' MEMORANDUM BRIEF
PRELDOSINARY STATEMENT
The record is in four volumes. However, Volumes II,
III, and IV are bound in two volumes each, making a total
of seven separately bound volumes. The record volumes are
consecutively paginated and references thereto will be made
by the symbol "R" followed by appropriate page number.
STATEMENT OF THE CASE AND FACTS
This cause was initiated by the filing of a petition
for writ of habeas corpus in this court on June 21, 1979.
Following the filing of subsequent pleadings andthe issu-
ance of an order dated February 12, 1980, this cause came
on for hearing on March 6, 1980 before the Honorable Patricia
Jean Kyle, United States Magistrate.
Dennis Allen Dean, Sr., was called as a witness for
petitioner (R 248). “Mr. Dean testified that he was appointed
to represent petitioner on October 4, 1973. tr! gan on
direct examination basically outlined the things he did do
in his representation of petitioner (R 248-282). On cross-
examination, Mr. Dean testified as to his legal education
and experience (R 298-302). The first time that Dean
saw petitioner was at a suppression hearing and he (Dean)
formed the opinion then that petitioner would be a diffi-
cult witness to present to a jury (R 303). After being
appointed to represent petitioner, the first thing Dean
did was to have a lengthy meeting with petitioner and
secure the files and depositions from Ray Windsor and Carling
Stedman (R 304, 305). i was Deans opinion that the state
had am extremely strong case against petitioner (R 306).
Part of Dean's trial strategy was to develop error and make
the most of it on a subsequent appeal (R 307). Dean testi-
fied that it was difficult to get petitioner to think in
a cohesive manner as he wanted certain things brought up
that Dean felt had no relevance to the defense theary of
the case (R304). Dean had occasion to contemplate the
use of possible affirmative defenses such as insanity. How-
ver, after reviewing the reports of Drs. Corwin and Reichen-
berg, the theory of an insanity-type defense was discarded
(R 309). Counsel for petitioner agreed that there was no
basis for an insanity defense (R 311)- ‘The defense of
intoxication was considered but was discarded because it
was believed that same was insufficient for the purpose of
attacking the voluntariness of petitioner's confession
(R 312, 313). The defense of self-defense was considered
but this would a been” inconsistent with petitioner's
te
claim that he had nothing to do with the crime and was not
-_—_—— OC -
ever at the scene (R 313, 314). An effort was made to
develop an alibi defense through the use of a court-appointed
investigator. But this met with no success because the
alibi defense could not be pinpointed with specificity and
there was no corroboration by independent witnesses (R 314).
Other matters were considered such as coercion but not dis-
cussed with petitioner (R 315).
After formulating the decision to proceed with
the basic defense of trying to create some form of
reversible error, Dean had the benefit of twenty four
depositions that had already been taken in the case
and he rescheduled many of the depositions (R 316).
In other words, Dean stated that it was his belief
that certain witnesses were crucial to the state's
case and he wanted to redepose them to get more state-
nents om record for a possible later contradiction
(R 317). Dean also had the benefit of the transcript
of the motion to suppress which was a three or four
hour hearing (R 317). ALL of the depositions were
introduced in evidence as a composite exhibit, Defen-
dant'’s (reezpondents') Exhibit 13 (R318). At alloaf .
the depositions taken by Dean, with the exception of
one, petitioner was present (R 319). Dean wanted peti-
tioner present to hear what those witnesses were to
testify and also to have him available to feed hin
any questions that petitioner thought should be asked.
Dean thennarrated other factors that he did in prepara-
tion for trial (R 320, 321). Petitioner was given an
opportunity to review his prior testimony at the motion
to suppress and other depositions were made available
to him so that he could prepare himself for trial (R 322).
Because of:extensive pretrial publicity, Dean filed a
motion for change of venue but Judge Cowart deferred
ruling or it for the purpose of seeing if a jury could
be chosen (R 323). Dean made an opening statement and
prepared for closing argument. Of course, this prepara-
tion for closing argument was modified as the trial pro-
gressed (R 324). Dean explained the jury selection process
to petitioner (R 325) and during the process of selecting
the jury petitioner never indicated any dissatisfaction
with the manner in which Dean was conducting same (R 326).
ae
At no time during the trial did petitioner ever indicate
that he was dissatisfied with the way Dean was conducting
himself in the presentation of petitioner's defense (R 327).
‘Petitioner expressed no dissatisfaction with Dean's repre-
sentation during the sentencing phase of the trial (R 328).
Dean filed a motion for new trial and then subsequently
handled the appeal to the Florida Supreme Court. At no
time during the pendency of the appeal did petitioner express
any dissatisfaction with Dean's representation of him at
the trial level (R 329). The next thing that Dean did for
petitioner was co secure am order from the United States
Supceme Court staying execution of sentence (R 329). Dean
filed a petition for writ of certiorari in the United States
Supreme Court which was subsequently denied in July of 1976.
Incidentally, petitioner was in court when Judge Cowart appoin-
ted Dean as a special public defender for purposes of appeal.
Ac this time, petitioner made no objection whatsoever to
Dean’s continuing representation of him for purposes of
appeal (R 331). Dean stated that over a period of time he
had received numerous letters from petitioner indicating
his satisfaction with his (Dean's) representation.
In January of 1977, Dean appeared on behalf of peti-
tioner at the Parole Commission hearing. This was at peci-
tioner’s request (R 337). At the time Dean appeared before
the peveie' Comnidcten in petitioner's behalf he had already
received information from various sources that petitioner
had, in fact, committed the crime (R 338). In the latter
part of March 1977, Dean appeared before the cabinet to
plead for mercy at the Clemency Board hearing (R 339).
This also was done at petitioner's request (R 340). After
having done everything that he could in enssionnn" 6 behalf,
Dean began communicating the idea to petitioner that it
would be a good idea if he got a new attorney (R 340). It
was during this period of time that Dean discussed with
petitioner the possibility of post-conviction relief
motions. As a possibility of getting back into court
and getting the appellate process started all over again,
Dean indicated the possibility of making the claim of
ineffective assistance of counsel at the motion to sup-
press hearing. During all of this time, petitioner never
indicated any dissatisfaction with Dean's representation
(R 341). Weither did petitioner directly or through any
third party indicate any dissatisfaction with Dean's
representation either at the trial or appellate level
(R 341). The first time Dean received any indication
that petitioner was dissatisfied with his representation
was when the 3.850 motion was filed in Circuit Court
before Judge Gable.
Mr. Dean stated that he had had occasion.to. review.
the allegations alleged by petitioner against him in the
3.850 motion and in the habeas before this court. Dean
then explained as best he recalled why the trial date was
changed from November 26, 1973 to the first week of Noven-
ber 1973. Dean stated that he moved for a continuance
which was denied. In explaining why this was done, Dean
frankly stated that he never wanted to try the case if he
could avoid it. Im fact, any delay that could have been
secured could have been only beneficial for the defense
(R 349). Dean stated that the motion could possibly be
characterized as frivolous and that .t was filed with the
hope of delaying the trial. Petitioner was aware that
Dean was going to make the motion for continuance and the
reasons therefor (R 350). Dean stated that he was prepared
for trial; that he iad done everything that he‘could do
(R 350, 351). Dean further stated his reasons for believing
that it was useless to try to make Frank Barden a suspect
(R 352, limes 7-17). Certain matters were stipulated for
the purpose of avoiding the use of 8 x 10 color photo-
gvaphs of the victim. Consequently, Dean stated that
if there was no contest as to the cause of death then
it would be best to avoid the state having to use grue-
some, prejudicial photographs (R 355). Desa stipulated
as to the manner, cause, date, and time of death in
order to avoid prejudicial testimony coming out before
the jury (R 354). ALL of this was discussed with peti-
ttoner who was present at the pretrial conference. Again,
the stipulations entered into by Dean were made with the
approval of petitioner (R 356). Further, Dean explained
the strategy of avoiding Dr. Beamer's testimony and peti-
tioner indicated no disagreement with Dean's tactics
(KR 357).
Dean also wanted to avoid the victim's wife from
testifying as he believed this would have been prejudicial
and petitioner agreed (R 357, 358).
As to why no plaster casts were taken of any foot-
prints, Dean testified that there were no identifiable
prints that could have been attributed to anybody (R 360).
Deen further testified that he requested no laboratory
analysis of the tire irom because same had been wiped off
or wiped clean. After all, Dean stated that the tire iron
was found in petitioner's car and he assumed that petitioner's
fingerprints would have been on it. Petitioner never denied
the ownership or existence of the tire iron.
Dean next explained concerning the alleged failure
to investigate the potential of any latent prints on the
adhesive tape with which the victim was bound (R 362) -
According to Ron Shuk, those prints appeared to be palm
prints and were on the sticky side of the tape and could
not, in Shuk's opinion, be identified to petitioner or
anyone else. Shuk, according to Dean, testified that
it was his opinion based on the position of the tape
that the prints found thereon were the victim's prints
(R 363). Dean had no information in his possession
that he could have given to anybody for the purpose of
having Shuk make a print comparison (R 364).
Wext Dean explained that he knew of a Gilbert
Jackson. This person was im the car at the time peti-
tioner was arrested om April 17, I973.. Petitioner
mever indicated that He felt that Mr. Jackson would
have anything to say that would be relevant to the
case. In fact, Jackson had only been in Miami a few
days and was not there when the murder allegedly took
place (R 365, 366). Dean stated that he did not file
@ motion for rehearing on the suppression issue because
he was satisfied from an appellate standpoint with the
trial fudge's denial of the motion (R 366). Dean reviewed
the testimonr of the suppressiom hearing and was satisfied
that Mr. Windsor and Mr. Bronis had made a proper record
for appellate purposes and there was no need to supplement
that record in any fashion whatsoever (R 367). Dean explained
the efforts made to locate a Thomas Murphy. This was an
individual that petitioner had met at Keith's Bar whom
pecitioner said was a lawyer from Boston. On the night
of the arrest, petitioner claimed that he had asked the
police to go back to the bar and contact Mr. Murphy so he
could have the benefit of counsel. Petitioner said the
police refused so to do. The police denied knowledge of
this type of conversation. Dean checked through Martindale-
Hubbell and was unable to locate a Thomas Murphy as. an attor-
nev in Coston or anywhere in Massachusetts. Petitioner had
absolutely no istinbaniosta ration this man was supposed to be
an attorney from Boston. Dean was unable to locate Mr.
Murphy and until this date no one has been successful in
finding this gentleman (R 368).
Dean next explained that he could see no rele-
vance to any testimony of a state highway patrolman
who allegedly passed by the vehicle in which the victim
was held prior to the mirder. Dean pointed out that
there was testimony in petitioner's confession that
while he and Reid McLaughlin were driving the victim
around on the Tamftami Trail, at ome point they stopped
the car. The victim was taken into the woods or an
area off the road and while they were there petitioner
saw a Florida Highway Patrol car drive by. Dean pointed
out that for him to try to corroborate what petiticner
had said in his confession didn’t make a whole lot of
sense (R 369, 370). a0
Dear again explained why he was unable to impeach
Frank Bardem because he had not been adjudicated guilty.
In spite of this, Dean stated he still attempted to per-
fect the record for purposes of appeal. In fact, Dean
kept plodding in this area wtil Judge Cowart got upset
with him and told him he had better quit (R 370, 371).
Dean stated that he did not present any legal
argument in support of judgment of acquittal made at the
conclusion of the state's case because it wasn't necessary
to do so in order to preserve the record. Dean stated
that at that point in time trying to convince the judge
that a prima facie case had not been established would
have been ludicrous. Dean pointed out that the state on
appeal was unable to say that any of the issues presented
had not been appropriately preserved for ay pellate review
(R 372). :
In answer to the accusation that he did not submit
any written jury instructions, Dean pointed out that propcsed
jury instructions were prepared and submitted to him. He
reviewed them and was satisfied with them (R 372). There
’ were proposed instructions that Dean objected to which
were not given but Dean stated that he was satisfied
with the overall instructions (RK i73).
In answer to the accusation that Dean inappropriately
emphasized that petitioner was a homosexual, Dean stated
that he did bring this to the jury's attention as early
as voir dire. This was done not only with petitioner's
: approval but pursuant to his fnstruction (KR 374). In
. fact, Dean stated that two jurors were excused for cause
because this area was explored. Again, Dean stated it
was petitioner's idea initially to bring out the fact
that he was a homosexual. One reason for this was that
petittoner might gain some sympathy from the jury because
of that fact (R 375). Defendant's Exhibit 1 for Identifi-
cation was a List of handwritten questions prepared by
petitfoner and the very first question thereon related
to petitioner’s being a homosexual (R 376). This list of
questions was introduced in evidence as Respondent's
Exhibit 1 (R 377).
Mr. Dean next described the events leading up to
a polygraph examination being administered to petitioner
by Warren Holmes (R 377-380). Dean stated that petitioner
mever at any time after the administration of the polygraph
examination claimed that Mr. Holmes was lying ond that he
had not made any of the admissions alleged in the polygraph
report (R 380, lines 9-13). Dean recited Holmes’ reputation
as a polygraph examiner (K 381) and further stated that
petitioner never indicated that there was anything wrong
with what transpired during the pretest interview (R 382).
Dean again repeated that from the time he was appointed
until the date of the trial, he had adequate time to prepare
the case for trial (R 383, 384).
On redirect examination, counsel for petitioner
quoted out of context a portion of a letter dated Febru-
ary 5, 1974 from Dean to petitioner and asked if Dean
didm't think that such statement would have a chilling
effect on petitioner expressing dissatisfaction with
him over any part of the case. Dean answered in the
negative (R 389, 390). Further, Dean dented that whether
or not there was blood on the tire iron would be of ary
significance in refuting the testimony of Reid McLaughlin
(R 392). Dear pointed out that he didm’t know that the
tire iron found in the car was attributed to being the
tire irom that petittoner supposedly used (R 392). Dean
pointed out that several things:: were admitted in evidence
by Judge Cowart for whatever relevancy the jury wanted to.
give it but that he did not recall McLaughlin saying that
it was the same tire iron. Dean explained that he was
satisfied fin utilizing the evidence, the adhesive tape
used to bind the victim, once Mr. Shuk had said he conm-
pared the palm print thereon to that of petitioner and
it wasn't petitioner’s prints nor McLaughlin's prints.
Dean explained that he used this in closing argument
that since the print om the adhesive tape was not identi-
fiable to either McLaughlin or petitioner, this was con-
sfetent with the defense theory that there was a third
person involved in the case (R 395). On recross examina-
tion, Dean explained the remarks in his letter that peti-
tioner's counsel had inquired about on redirect examination.
Please see Dean's testimony at R 398, line 16--R 399, line 6.
On direct examination, it was brought out that
in the sentencine siti of the trial Judge Cowart had
made the observation that he had observed not vig oetmaiitte
of remorse displayed by petitioner. Dean was asked if he
made any objection to Judge Cowart making a finding that
that was an aggravating circumstance. Dean answered
in the negative. Deam then explained that he did not
interpret the language of Judge Cowart as finding that
the “Lack of remorse” was an aggravating circumstance
but rather merely an observation (R 260, 261).
Further, on direct examination, Dean was asked
questions relating to his cross-examination of Frank
Barden, a former manager of the Howard Johnson's Restau-
rant from which the victim was abducted (R 262, 263).
Dean stated that he could not impeach Barden on the
basis of a prior conviction of crime because Barden
had pled guilty to the crime and adjudication was with-
held and he was placed on probation. Consequently, Dean
explained, he could not ask Barden if he had ever been
convicted of a crime because he, in fact, had not. Dear
stated that thfs notwithstanding he did try to go into
the embezzlement and the fact that Barden had fled to
Las Vegas and had beer picked up there. At this point,
Judge Cowart precluded him. from going any further into
it (R 263). Dean testified that he was satisfied based
on his own interpretation of the Law that he could not
ask Barden the question of whether he had ever been con-
victed of a crime. There was no trial strategy involved
in this; it was a matter of Dean's interpretatior® of the
law (RK 264, 265). Dean stated that he had no recollection
of filing a motion attacking the composition of the grand
jury (R 265). Dean stated that he was satisfied that he
had ample time to prepare for the penalty phase of the
trial. Subpoenas for six or seven witnesses had been
issued and he ended up presenting the testimony, of. five
witnesses (R 268). Dean testified that on the morning
of the sentencing phase of the trial, he received Hr.
Holmes' polygraph report which disturbed him (R 268, 269).
Dean emphasized that although the report may have affected
4,
him personally it did not affect his argument to the
jury (R 269, 270).
Dean stated that he was familiar with the case of
Witherspoon v. Illinois and was familiar with it in 1973.
Counsel for petitioner asked Dean why he did not object
to prospective juror Hammiel being excused by the court.
Dean explained that his fatlure to object could have been
for one of two reasons: one, he was satisfied from the
answers given that the juror met the Witherspoon criteria,
and the other was that he didn’t want the prospective juror
to serve (R 272, 273). Dean was then asked if there was any
trial strategy involved in not objecting to prospective juror
Hammiels being excused (R 273). Dean explained: "At this
time, looking solely at the cold record, I can't tell ‘you te
why I didn’t object to the Court excusing this juror. I
cam tell you that I didm'’t want her for whatever reasons. If
T wanted her, I would have objected and pursued the matter."
(R 274, Lines 1-5)
When asked if petitioner ever sent him any names
cf alibi witmesses, Dean answered that he didn't know
if you could characterize them as alibi witnesses. This
would be particularly true of the witness Thomas Murphy.
Dean stated that Mike the bartender had been contacted
by the investigator and confirmed the fact that petitioner
was in the lounge almost every night but could not pin
it down to any specific time periods such as would be
required under the alibi statute (R 274, 275). Dean
explained that petitioner was adamant about wanting to
take a polygraph test (R 276). A motion was presented
to Judge Cowart for this purpose which was granted: ;
Petitioner was transported to the office of Warren Holmes
for the purpose of the polygraph. Dean further stated
-12-
there was never any discussion with Holmes about the
, polygraph and that he had no contact at ali with Holmes
as far as he could recall (R 277).
When asked if he ever entertained the opinion
that Mr. Windsor had given petitioner ineffective assis-
tance of counsel at the motion to suppress hearing, Dean
explained as follows:
A No, sir. Now, let me explain, because [I
e know what the follow-up question is.
Near the end of the time when I had made
the decision to withdraw from further repre-
sentation of Mr. Sullivan for various reasons,
he had written me and asked if there was any
- what possible arguments or avenues were
open to him at that point in time. This was
in, L believe, 1977 or possibly 1978. This
was after I had handled the appeal to the
Florida Supreme Court, after I had handled
a motion for post-conviction relief before ~
Judge Cowart; after [I appeared before the
Probation and Parole Commission at Raiford;
after I appeared before the Governor and
Cabinet in Tallahassee and after I had filed
a lawsuit im Tallahassee against the Governor
and the Cabinet. AlI of those things had been
explored without success.
L told Bob that I would review the transcript
and see if there was any $s tions I could
give to him or to whoever mew counsel may be.
In reviewing the transcript, I went over
the whole transcript again and as [ did, IL
noticed that at the motion to suppress it
appeared that Ray Windsor, who was representing
him at the time, took the burden or accepted
the burden at the motion. There was some
Florida case law at the time that indicated the
State has the burder om a motion to suppress
hearing.
. As giving Mr. Sullivan the possibilicy of
some to argue that. had not been previously
argued, “eee that the possibility; migt.c
lie with an ffective assistance of covnsel
motion alleging that Mr. Windsor improperly
accepted the burden at the motion to suppress
hearing.
(R 279, 280) ~
* °
sell ‘-- °
.
At the beginning of Dean's cross-examination by
Mr. Adorno it was brought out that petitioner had instruc-
ted Dean to retain certain letters and the polygraph examina-
tion and not to turn those items over to new counsel that he
(petitioner) might obtain (R 282). The reason for this, so
Zz
Dean testified, was that petitioner did not want to
compromise his position with any new counsel that might
be appointed to represent him. Dean was then asked if
petitioner had ever explained to him what he meant by
compromising himself with his new attorney. At this
time, there was an objection based on the attorney-client
privilege (R 283) which was overruled by Judge Kyle (R 286,
287). Dean then answered that petitioner had indicated
_ that he wanted to avoid the possibility of a conflict
situation as had existed between himself and Mr. Windsor
which resulted in Mr. Windsor's withdrawal from the case
(R 288). When asked if petitioner ever explained what
this conflict was, Dean stated as follows:
A He indicated in the correspondence that
at one point he apologized for not heving °
been completely open with me and - I cant
ape Seek os song Pag oe oe
B games or ed - was bis
word, but he was sure that I understood why
he had done it and it was to avoid the situa-
tion that he had with Mr. Windsor.
Q That is, that he toid Mr. Windsor he had
committed the crime?
A And, then, wanted to testify denying it.
Q Mr. Windsor indicated to him that he would
mot put him on the stand and suborn perjury?
A That's my understanding, yes.
(R 289)
Dean identified Defendant's Exhibit 5 for Identifi-
cation (R 291) and stated that it was a letter received by
him from petittoner dated March 14, 1974. It was a piece
of correspondence im which petitioner referred to his prior
conflict or compromising situation with Mr. Windsor. Dean
was then asked if he interpreted a certain portion of this
letter as an admission by petitioner to Mr. Windsor that he
committed thn crime (R 292). Dean answered in the affirma-
tive (R 293). Dean was then asked how he interpreted that
portion of the letter, Defendant's Exhibit 5 for Identifi-
cation, which was underlined. Dean answered that it was
2
his interpretation of that portion of the letter that
petitioner had committed the crime but had intention-
ally not told him of this fact (R 295). Dean was then
asked if there was anything in the report submitted by
Warren Holmes that led him to develop the interpreta-
tion he had just voiced with respect to Defendant's
Exhibit 5 for Identification. Dean answered that the
statements made in the polygraph report tied into what
petitioner stated in his letter of March 14, 1974 (R 297).
Dearr then identified Defendant's Exhibit 10 and 8 for
Identification as letters received by him from petitioner
and stated that both of those letters had reference to
petitioner asking him to retain certain letters and the
polygraph examination and not turn them over to any new
counsel (R 298).
Judge Ellen Morphionios Gable was called as a wit-
ness by the respondents (R 56). Judge Gable stated her
judicial background and then in answer to questions pro-
pounded by counsel for respondents testified as to her
reasons for not having petitioner present at the state
court hearing om petitioner's 3.850 motion. She testi-
fied thac in view of the extensive affidavit filed by
petitioner and the security risk involved that she ruled
petitioner would not have to be present at the hearing.
She costified that she read the affidavit in its entirety
and took it into consideration in making the ruling
(R 58, 59). Judge Gable further testified that she had
ruled on the effective assistance of counsel issue and
held that petitioner had been supplied "completely ade-
quate assistance of counsel." (R60) Judge Gable testi-
fied that she was familiar with Mr. Dean's sepucation as
an attorney and that she would have appointed him as a
special public defender on any given case because "he's
an excellent lawyer." (R60) Further, she stated that
his reputation was excellent (R 61). Om redirect
examination, the following occurred:
Since you took the affidavit at its
value, not subject to cross examina-
tion by the State, would you have also
taken into consideration any letters
written by the Defendant that Mr. Black,
if he saw fit to introduce for you to
take into consideration?
A Sure. I thoughe I made it clear that
I would consider anything and all that
Mr. Sullivan wanted to present to me in
writing, but I wasn’t going to have him
brought back.
(R 70)
Judge Edward D. Cowart (R 71) was called as a
witness by the respondents and after stating his educa-
tional, professional, and judicial background testified
that it was his opinion that Ray Windsor was a very well
qualified, very competent young Lawyer, very studious young
lawyer (KR 76). Judge Cowart stated that there was nothing
im his recollection that would lead him to believe that
petitioner received ineffective assistance of counsel
from Mr. Windsor during the motion to suppress. To the
contrary, he stated that the matter was a "well legally
argued motion." (R78) Judge Cowart further testified
that prior to his appointment of Mr. Dean as petitioner's
counsel he had formed an opinion of his competency as a
criminal defense nneseninT tee in his opinion Dean was
a very pronising and very thorough young attorney (R 81).
Judge Cowart testified that Dean's reputation as a criminal
defense attorney was excellent. As to Dean's handling of
the pretrial hearings and trial itself, Judge Cowart testri-
fied that in his opinion Dean did an excellent job with the
material he had to work with (R 82). Judge Cowart character-
ized the strength of the state's case against petitioner as
being exceptionally strong (R 83). When Judge Cowart was _
asked if petitioner ever at any time voiced to him any dis-
satisfaction with the representation of Mr. Dean, he answered
as follows:
Zz
A No, on the contrary, [I thought thar
the concept of the Defendant at that
time, or the presentation of the Defen-
dant and his general attitude and demeanor
toward Mr. Dean was very cordial and cer-
tainly there was no representation or
allegartton of incompetency that I ever
joined issue on.
(R 84)
Robert A. Sullivan, petitioner, testified in his
own behalf and his direct examination begins at R 17-43;
100-125. Om cross-examination (R 126), petitioner testi-
fted chat he didn’t want to be executed (R 131) and would
try his hardest not to be executed. However, he stated
he would not lie under oath (R 132). When asked if he
had ever lied to his attorneys, he responded as follows:
"A Positions have been changed due to circumstances that
might have been different positions at one point of time
which, in answer to your question, yes." (R133) When
asked if he had lied to his attorneys on more than one
occasion, petitioner replied: "A In regard ~- The only
area that [ recall was a strategy on my part being as a
last resort with Mr. Dear regarding clemency well afzer
my trial.'' (R134) Petitioner as far as he could recall
stated chat he had never lied to Mr. Windsor (R 134).
Petitioner testified that he first became dissatisfied
with Mr. Dean's representation during the course of the
trial and he felt that Dean had sold him out (R 143). The
first thing that petitioner didn’t like about Mr. Dean was
the fact that he moved up the trial date (R145). During
the course of the trial petitioner became disappointed
with Mr. Dean's represertation (R 147). In fact, he was
totally disappointed with Mr. Dean's representation of him
at the crial. Petitioner was then asked to produce any
letters or motions that he filed with Judge Cowart regarding
Dean's representation during the year 1974. In answer, peti-
tioner stated that he ‘tiled no motions attacking the competency
of Mr. Dean either before Judge Cowart or before any other
é
judicial body (R 149). Petitioner stated that in the
year 1974 he did not write any letters to the Bar complain-
ing of Mr. Dean's representation and neither did he write
to anybody requesting a substitution of counsel. In 1975,
petitioner stated that he complained to David Kendall of
NAACP Legal Defense Fund concerning Dean's representation.
However, petitioner did not ask Mr. Kendall to appear before
the Supreme Court of the State of Florida and ask fora
substitution of counsel (R 150, I51). Petitioner stated
that he decided to stick with the attorney who he felt
had sold him down the river and allow him (Mr. Dean) to
argue his appeal in front of the Florida Supreme Court
(R LSL). Petitioner testified that Kendall had advised
him to put aside the issue of ineffective assistance of
counsel until the habeas corpus stage of the case had been
reached (R L51, 152). Petitioner admitted that in October
of 1973 he kmew how to raise the issue of ineffective assis-
tance cf counsel before Judge Cowart and that he did not
forget this while he was sitting om death row (R 153, line
19--R 154, line 2). Petitioner admitted that Kendall advised
him that what Mr. Dean was doing was effective (R155). In
the year 1975, no other letters or motions were filed with
any court asking for another attorney (R155). Petitioner
testified that following the denial of certiorari in the
United States Supreme Court the thought crossed his mind
that it was time to change attorneys. However, he stated
that in the year 1976 he did not file any motions for sub-
stitution of counsel or write any letters to a court asking
for another attorney (R159). Petitioner stated that he
never at any time asKed Kendall to take over his case because
Dean was incompetent and had sold him down the tiver (R 161,
162). Petitioner stated that because in his opinion Dean
did a lousy job defending him that in that context he did
not like Mr. Dean. However, he then admitted that he kept
this "lousy man" who did a "lousy job” at the trial level
<
all the way through 1976, all the way to the United
States Supreme Court (R 163). Although there were other
lawyers working on the civil litigation, petitioner stated
that he never advised any of them that he thought Mr. Dean
was incompetent and that he didn't want Mr. Dean on the
case. During the pendency of the Litigation, Sullivan v.
Askew, petitioner stated he never told Tobias Simon or
anyone else working om that particular aspect of the case
that Mr. Dean had giver him ineffective assistance at the
trial level and that he wanted to raise the issue as a
ground for reversal (R 168, Lines 6-18).. Petitioner
further testified that when Dean volunteered to represent
him before the Clemency Board that he agreed to this repre-
sentation. Petitioner admitted that even thceugh he felt
Dean had sold him down the river that because of Mr. Ken-
dall"s belief that Dean would be best suited to represent
him, he agreed to the representation. Petitioner was unhappy
with Dear's representation of him at the trial level in every
phase thereof, and yet he agreed to allow Mr. Dean to stand
up before the Parole Commission and again be his mouthpiece
(R 172, 173). Petitioner admitted chat at the hearing before
the Parole Commission he never at any time complained of
Dean's alleged ineffective representation (R173, 174).
Petitioner did state that basically he was satisfied with
Dean's representation of him before the Parole Commission
(R175). Petitioner admitted that he did not file any
documents between the date of the hearing in front of the
Parole Commission, January 17, 1977, and the date he appeared
in front of the Executive Clemency Board on March 28, 1977,
asking that ‘he be given another attorney or stating to any
judicial body that he was dissatisfied with Mr. ‘Dean's repre-
sentation (R 176). The first time petitioner filed an official
pleading before a judicial body raising tle ineffective assis-
tance of counsel issue was in the post-conviction 3.850 motion
filed before Judge Gable (R177). Petitioner then admitted
<
Se ———————EEEEOOEeeeeeeeeeeeeeeeeeeeeeEeEeEeEeEeEeEeEeEeEe—eEEEEE———EE
that he waited approximately four years since 1975 to
actually file a pleading raising the ineffective assis-
~=— tance of counsel issue (R 178).
Petitioner admitted that on the night he was
arrested he had the victim's watch and credit cards in
his possession. He had a shotgun in his trunk and he
had a tire iron in his trunk. He «admitted giving an
oral and written statement to Sgt. Felton admitting the
i kflling of Mr. Schmidt. Petitioner admitted taking Sgt.
Felton and Detective Lawrence to his hotel room where he
showed them the proceeds from the robbery, items taken
fruz Howard Johnson's (R 181, 182). Petitioner admitted
that it added up to a pretty strong case (R 182). Peti-
tioner indicated that he understood the. meaning of an’
alibi defense (R 184) and that such defense necessarily
meant that he didn't commit the crime. He stated that he
told Mr. Windsor that he did not commit the crime (R 185).
Petitioner admitted that he gave the statement to Officers
Felton and Lawrence (R 186). He again repeated that he
told Mr. Windsor that he was innocent and that somebody
else committed the murder (R 187). Petitioner denied that
he ever told anybody the reason Mr. Windsor got out of
the case was because he had admitted to Windsor that he
had committed the crime and that Windsor did not-want to
. put him on the stand to suborn perjury. Petitioner stated
that one reason he wanted to take a polygraph was to prove
the truth of his alibi defense (R190). There was no
coercion on petitioner tc take a polygraph test and the
state attorney's office had nothing to do with his going
to see Warren Holmes (R 191). Petitioner admitted thac
he was administered a polygraph examination by Warren Holmes
(R 193) Petitioner admitted that after having the polygraph
administered he had a conversation with Warren Holmes (R 200).
Petitioner denied that he admitted to Mr. Holmes that he com-
mitted the murder; denied that he admitted to Mr. Holmes that
4
he had told his previous attorney, Mr. Windsor, that he
wanted to take the stand and lie (R 200). Petitioner
denied having made any admissions of guilt whatsoever
to Mr. Holmes (R 201, 202). Petitioner again stated that
he never lied to Mr. Windsor and only lied to Mr. Dean
prior to the parole hearing (R 205, 206). Petitioner,
when asked if he changed his story about what happened
on the night of the murder would that come within his
definition of Lying, stated that ic would (R 206, 207).
Petitioner again stated that he never changed his story
to Mr. Windsor about what happened on the night Schmidt
was killed (R 207). His attention was then drawn to Plain-
tiff's Exhibit 4 which he identified as a letter he had
sent to Ray Windsor on September 24, 1973 wherein the
following was stated:
Q (By Mr. Adorno) "Chris had for his share
the credit cards, some of the traveler's
checks, not all, most of the change and the
rest of the small bills. The money taken out
of my coat pocket was mine, not from the rob-
bery. Believe me, L would not have the stomach
to kill a person in cold blood and leave the
body im a place to be found and on top of that
use those -"" and, then, you used a money sign
or the typewriter, [I guess to indicate a word
you didn’c want to put in print, "credit cards.
Can't you see that? I know it will be hard to
believe anything [I said because of the number
of times I have changed my story, but this is
ic, the truth.”
Did you write that to Mr. Windsor?
A If it's in there, I did.
(R 208)
Petitioner was then confronted with p. 2 of Defendant's
Exhibit 5 for Identification (R 213, lines 8-19) and then
asked what games he played with Mr. Windsor. Petitioner
answered that he had fteference to something he had explained
before regarding Reid McLaughlin (R 213). As to'matters he
had fibbed about (R 216), petitioner stated this had to do
with aiscrepancies between McLaughlin's participation. When
asked why he fibbed about Reid McLaughlin, petitioner answered
he was probably just confused (R 217). Petitioner testified
<
that he had admitted to Mr. Dean after the trial that
he had committed the murder (R 218).
Peter Tighe was called as a witness on behalf of
petitioner (R 403). Mr. Tighe during the month of April 1973
was a manager at Keith's Cruise Lounge in Hallandale, Florida,
and he knew the petitioner, Robert Austin Sullivan (R 403).
He stated that he also knew a person by the name of Thomas
Murphy (R 404). Mr. Tighe was familiar with the date of
April 8, 1973 because it was Billy Harlow’s 18th birthday
(R 408). Mr. Tighe recalled seeing Mr. Sullivan on April 8,
1973. He stated that petitioner was in the bar around 11:30
p.m. om the date in question (R 409). Tighe admitted that
he couldn’t tell exactly where petitioner was throughout the
night but again stated he was there at 11:30 before the show
went on and then afterwards at approximately 2:00 o'clock
he (petitioner) sat down and talked to Michael Carmack,
another bartender (R 410, 4I1). Om cross-examination, Tighe
stated he was almost positive that petitioner was in the bar
when he walked in at 7:00 p.m. (E 417, 418). Later, his
testimony changed as to the time petitioner came in the bar
(R 421). Tighe admitted that all he could really say was
that petitioner came into the bar and then left before
Carmack came on duty at 10:00 o'clock and that this could
have happened at anytime between 7:00 and 10:00 prm. (R 423).
Tighe in answer to the question, why didn't he come forward
when he knew petitioner had been sentenced to prison, "I
can't tell you why.” (R 430, 431) He said he had his own
problems ard was waiting to contact him (R 431, 432). Tighe
admitted that he couldn't see who left the bar between 12:30
and 2:00 a.m. on the morning of April 9, 1973 (RB, 449).. On
June 20, 1979, Tighe executed an affidavit and stated that
the contents thereof was .ccurate and represented his total
recollection of what happened at that time (R 467, 468).
In Paragraph 5 of the affidavit Tighe alleged that he
was presently umable to recall with certainty the hours
that Bob Sullivan was present in the lounge on that night
(R 468, lines 5-12). The affidavit mentioned nothing about
April 8th being Billy Harlow's birthday (R 469). Tighe
testified that in 1973 he knew it was impossible for peti-
tioner to have committed the murder but that he was simply
too busy with his job and everything else to do anything
abour it (R 492). Tighe'’s testimony as to the presence
in the bar im the late evening of April 8th and early morn-
ing hours of April 9, 1973 was equivocal. Note the follow-
ing:
Q Your'’re telling us that from your own
independent recollection, you specifically
remember Bob Sullivan at the lounge the
might, late evening of April 8th, and the
early morming hours of April 9th, 1973?
Yes.
That's of your own independent '‘mowledge?
Yes.
No doubt about it in your mind?
No, no.
a2 > 2 PP A PP
You don't really need anything to corroborate
your memory on that; you're pretty sure about
- that?
A Yes. [I'd say 99 percent.
Q That he was there?
A Yeah.
CR 498, 499)
Following the above series of questions and answers, Tighe
changed his testimony to being 100 percent sure as to petitioner
being present in the bar on the dates in question. Note
the following:
oa there is a chance he was not there at
all?
A No. What L'm seyine, you know, 99 percent
means - that's like 100 percent.
Q No, 99 means 99. 100 means 100.
A I'll go with a hundred percent.
Q IZ don't want you to go with anything. Do
you have an indevendent recollection?
Yes.
Without anything else helping you?
Without anyone else helping me, yes.
You don't know anything else’
> © PP © P
Ne.
(R 499)
William Paul Harlow was called as a witness on
behalf of petitioner (R 533). Mr. Harlow stated that he
remembered being at Keith's Cruise Lounge on April 8, 1973
because he was celebrating his [8th birthday (R 534). Mr.
Harlow testified that he and his party arrived at the bar
at approximately 11:30 - 12:00 p.m. om April 8th and chat
he saw petitioner come in the bar before the show started
(R 535). Om cross-examination, Harlow stated that petitioner
was not in the bar when he came in (R 542). Harlow stated
that he talked to petitioner approximately five minutes at
most (R 544) and after this he went back to his friends
(R 545). Harlow then stated that thereafter he couldn't
say exactly where petitioner went (R 545). Harlow stated
that next time he specifically remembered seeing petitioner
was sometime during the show when petitioner was standing
by the bar talking to Michael (R 546). The next time Harlow
remembered seeing petitioner was sometime after the show ended
(R 548). Mr. Harlow also testified that he did know a Thomas
Murphy (R 554) but at no time during the evening in question
did he see Murphy with petitioner (R 555). Harlow testified
that the first time he found out about Mr. Sullivan was when
a person named Barry Weaver got in touch with him (R 557).
Hie receivod some documents and newspaper articles from Mr.
Weaver and was requested to get in touch with pecitioner's
lawyer, Mr. Roy Black (R 557, 558). The documents that
Harlow received included petitioner's alibi, i.e., he was
at the lounge on the evening in questica (R 560).
373. - ee
a
-
>
.
-
-
Mr. Harlow stated that he had been requested to write
down his recollection of the events on the night of
April 8, 1973 and he did so (R 561). This was typed up
and marked as Defense Exhibit 44 for Identification (R 562).
Raymond Martin Windsor was called as a witness by
tae respondents (R 582). Mr. Windsor stated that he was
an attorney admitted to practice in the State of Florida
and before the U.S. District Court of the Southern District
of Florida. He then outlined his professional background
stating that 50 to 60-percent of his practice was in the
field of criminal law. He had served as an assistant pub-
lic defender (R 583). Mr. Windsor first met petitioner in
April of 1973 after having been appointed by Judge Cowart
to represent him (R 585). In the course of events, Windsor
learned about the state's case against petitioner and that
the crime with which he was charged was a very heinous one
and that there had been an admission by petitioner as to
his complicity (R 586, 587). When asked if he had received
any other information regarding petitioner's guilt, Windsor
answered in the affirmative, explaining that petitioner had
admitted to him his participation in the crime (R 587).
Windsor could not recall the exact dialogue when petitioner
expressed his participation but emphasized that petitioner
did acknowledge his guilt although he could not recall the
exact weeds (R 588). Windsor explored the possibility of
several defenses and requested a psychiatric report. He
did receive a report, State's Exhibits 25 and 28 from Dr.
Corwin and Psychologist Norman Reichenberg (R 589). Wind-
sor stated that Dr. Corwin's report corroborated petitioner's
admitted responsibility in the matter (R 590)... The defense
of alibi was explored and this was a defense that petitioner
wanted Windsor to utilize by manufacturing for him an alibi
defense. Petitioner wanted Windsor to go out and locate
alibi witnesses, put them on the stand, and have them perjure
themselves (R 590, line 23--R 59, Line 5). Windsor
took many depositions in preparation for trial and was
aware of the allegation that he had not been present at
the taking of certain depositions (R591). He stated
that those depositions were taken by the codefendant's
attormey, Steven Bronis (R 591, 592). Windsor had an
agreement with Bronis regarding the taking of those deposi-
tions and this involved an aspect of Windsor's trial strategy.
Note the following:
A Yes. It was my intent to have Mr. Bronis
take the depositions of those witnesses, have
them typed up, thereby giving me the opportun-
ity to read those depositions; then, have a
second bite at the apple, so to speak. I didn't
think [I would have any problem retaking deposi-
tions of witnesses whose statements I would want
to thoroughly to into, or more thoroughly to
into or more greatly clarify.
I wanted to have an opportunity to have them
down on the record as many times as I possibly
could, in order to obtain as many inconsistencies
as possibly could be obtained.
(R 592)
There came a time when Windsor wanted to withdraw as counsel
of record for petitioner (R 593). He identified Defendant's
Exhibit 23 as a transcript of the hearing on the morion to
be relieved of responsibility for handling petitioner's case.
When asked what he did not tell the court as to his reason
for wanting to withdraw, Windsor responded as follows:
A Essentially, Mr. Sullivan wanted me to
sue-an alibi defehse for him. Apparently
would have wanted to call certain sienneses
who he would be contending would be able to
place him at a scene different from the place
bf the alleged homicide at the time and it was
absurd, because prior to that time Sullivan
had commmicated to me his participation in
this matter and now he wanted me to establish
or manufacture an alibi defense for him.
I‘didn't gé to the Court and say Judge,
Mr. Sullivan wants me to suborn perjury.
and Mr. Sullivan wants to get on the stand ‘~
and perjure himself. I didn't feel it was
incumbent upon me to be an accuser. I was
still his lawyer. I felt it was still neces-
sary for me, until I was - while I was still
in this case to protect him as best I can and
not prejudice his right before this, the same
or any other judge.
So, L deliberately told the Court,
being rather vague, merely advising the
Court that he wanted me to utilize a par-
ticular defense, but [I felt it wasn't in
his best interest and as a result of that,
we had a coumunication breakdown.
(R 593, 594)
Windsor next identified the handwriting on Defendant's
Exhibit 26 as being that of petitioner and his initials,
RMW, appearing in the upper left hand corner (R 594, 595).
Windsor recalled that the name of Thomas Murphy came up
and that an effort was made to locate him (R 595). How-
ever, this was unsuccessful and Windsor stated that the
man had not been located to this day (R 596). Windsor
was aware that he had been charged with taking the burden
on the motion to suppress and stated in retrospect this
was a technical error (R 596). He explained that although ©
it was not incumbent on him to accept that burden (R 596)
he did not think it had any practical effect on the outcome
of the mottor (R 597). Windsor explained that Judge Cowart,
considering the gravity of the offense, gave himself and
Mr. Bronis all the latitude in the world to ask any ques-
tions that were believed to be relevant (R597). At the
time of the hearing on the motion to suppress, Windsor had
read the depositions of the lead investigators (R 597) and
was aware of what their testimony would be (R 595). Note
the following: -_
oe
Q Im your opinion, did your assuming the
burden of going foward on the motion to
et have any bearing on the ultimate
result
A None whatsoever.
Q In your opinion, was there any prejudice
to your case by going forward?
A Wone.
Q Have you ever in the ten years that you
have been practicing law been accused of giv-
ing ineffective assistance of counsel before?
A No. This is the first time.
(R 598)
Warren Holmes, polygraph examiner, was called as
a witness by the respondents (R515). Mr. Holmes first
stated his experience in the area of polygraph examina-
tion and said that he averaged about 1,200 cases per
year. He had been employed as a polygraph examiner for
approximately 26 years (R515). He stated that on Octo-
ber 31, 1973 petitioner was submitted to him for polygraph
examination by his attorney, Dennis Dean. He took some
background information to Learm petitioner's version of
what it was he was supposed to be tested on (KR 517). The
essence of what the polygraph examination was to be on was
whether petitioner had been involved in the murder of Donald
Schmidt. Petitioner told Holmes that he didn’t commit the
crime and stated he had an alibi tor the particular time.
Some test questions were phrased and a polygraph examination
was then administered to petitioner. At the conclusion of
the polygraph examination, Holmes had a conversation with
petitioner which was memorialized in the report submitted
to petitfoner’s attorney (R518, 519). Holmes identified
Defendant's Exhibit 12 for Identification as being a true
and accurate copy of the report submitted to Mr. Dean (R 519).
After the examination was concluded, Holmes had a conversa-
tion with petirioner and advised him that on the basis of
the polygraph charts that petitioner wasn't telling the
truth. He’ went over the graphs with petitioner queseten
by question and showed him the physiological reaction that
was indicative of deception. Petitioner then told Holmes
that he had tried to plead guilty but that the state wouldn'rc
accept his plea. Petitioner further remarked to this witness
as follows:
He told me that he had told the Assistant ‘“
Public Defender that he was guilty and that
he wanted to take the stand and to lie about
it, but that the Assistant Public Defender
didn't want him to do that, so, he made
arrangements to get another attorney, which
was Mr. Dean.
He said he didn't want to confess to Mr.
Dean, because it would put him in a compromis-
ing, position.
Then, he admitted to me that he did,
in fact, kill Donald Schmidt; that he
: had taken him out of the Howard Johnson's
Restaurant to a place where he was found;
that he hit him with a tire iron and that
he shot him with this gun he called Betsy.
Then, I asked him why he did it and he
said that for two reasons, that he had a
fascination about the act of murder and
that he wanted to see if he could Live up
to the test of killing somebody.
Then, he said the other factor was that
a revenge against Howard Johnson's for hav-
ing him prosecuted in a theft there. :
. ; That, im essence, is what he told me.
(R 520, 521)
Mr. Holmes stated that this was the first time in 26 years
that he had ever testified on a confidential report (R 522).
On redirect examination, Holmes stated as to the one encom-
passing question, were you in Keith's Cruise Lounge at the
bye time Donald Schmidt was shot, (R 530, 531) he went over
petitioner's response to this particular question and explained
that fm his opinion there was a deceptive reaction. It was at
this time that petitioner began to tell a different story (R 531).
When asked if he had an independent recollection of
this particular polygraph examination, although it was seven
years ago, Holmes responded:
A Yeah, because it was two things that he
told me in that confession that IL had not
heard before or not as a routine. One, when
he cold me that this Assistant State—
peg ng didn't want to take the stand
_ an e-- =
Q You mean Public Defender?
A Public Defender, which I thought was a
noble — on the part of the Public Defen-
der and the other was the fact that most of
the murder confessions that I have taken are
done on impulse or out of fear or hatred. It's
unusual for someone to tell me that he had a
fascination for the act of murder and also .
whether or net he could measure up to the tést
of killing a human being.
I've taken hundreds and hundreds of murder
confessions and nobody has ever told me that
they committed a murder to see whether they
ie measure up to the test of killing a human
eing.
I didn't need any notes to remember that
statement on his part.
(R 532, 533)
Robert Sullivan, petitioner, was called as a wit-
ness by the respondents (R 614). When questioned as to
Defendant's Exhibit 26 for Identification, petitioner
through his counsel invoked the Fifth Amendment, and it
was stipulated that as to any questions regarding this
particular exhibit that petitioner through his attorney
would invoke the Fifth Amendment (R 615, 616). Counsel
for respondents desired to explore several areas, particu-
larly two, with respect to this particular exhibit. The
areas that respondents desired to question petitioner on
as to this exhibit were as follows:
Number one would have been the veracity of
what [ believe has already been identified
as Mr. Sullivan's handwriting, given to Mr.
Windsor, of Defendants’ it 26 for Iden-
tification, with respect to the truth of the
actual commisston of the mirder of Donald
Schmidt, which the Plaintiff admits in this
particular exhibit and also with respect to
the setting up of am alibi defense by the
returning to Keith's Cruise after the
murder was committed between 2:30 and 3:00
o"clock A.M., im their attempts to make it
Look like they had been there earlier.
Those are the two main areas, although
there were other areas I would have examined
as to relevant issues that have been raised,
‘both in the Plainriff's case and also during
our brief portions of our case.
(R 616, 617) sf
Petitioner expressed his opinion that Mr. Black was the
—-=
first lawyer that had effectively represented him (R 619).
He stated that he was aware of the issues involved in the
Rule 3.850 filed in state court and in the instant habeas
petition filed in federal court and had had an opportunity
to fully discuss those issues with Mr. Black (R 620).
Petitioner couldn't think of anything else that had not
been covered or raised in those petitions relative to the
issue of his receiving a fair trial and fair representation
(R 621). When asked if it was his opinion that Warren Holmes
<=
lied under oath, petitioner's counsel objected and
invoked the Fifth Amendment (R 622). Respondents
objected to petitioner’s being allowed to take the
Fifth Amendment on this issue (R 624). After some
discussion, this court permitted petitioner to follow
his counsel's advice and decline to answer on the basis
of Fifth Amendment rights. Petitioner stated that he
remembered Ray Windsor saying that he (petitioner) had
cold him that he admitted hfs partictpation in the killing
of Donald Schmidt (R629). Petitioner admitted that he
had heard Mr. Windsor's testimony to the effect that
petitioner had told him (Windsor) that he wanted to take
the stand and proceed with a fabricated alibi defense
(R 629, 630). Petitioner when asked if he denied admitc-
ting the crime to Mr. Windsor invoked his Fifth Amendment
privilege. Counsel responded that on original cross
petittoner had specifically denied ever making such a
statement to Ray Windsor (R 630). The court permicted
petitioner to again invoke his Fifth Amendment privilege
(R 631, 632). Petitioner was subsequently permitted to
invoke the Fifth Amendment privilege as a bar to answer-
ing pertinent questions propounded by counsel for respon-
dents (BR 632, 633). Petitioner stated thar as best he
could recall after taking the polygraph examination there
was only one occurrence in which Mr. Dean mentioned it.
This was. just that he had received it, not what was in
the report (R 644, 645). The omly other thing petitioner
recalled was that he wrote Dean and told him to retain
the polygraph report in his files. Petitioner then stated
that through Decembet 1974 he was unaware of what Mr. Holmes
was saying had transpired at the polygraph examination (R 645).
Respondents at this time moved into evidence Defendant's
Exhibit 3 which was a letter that petitioner had invoked
the Fifth Amendment when asked to identify his handwriting.
The exhibit was admitted in evidence (R 645, 646). When
<
questioned about admissions made in this letter, respon-
dents' Exhibit 3 (R 646), petitioner again invoked his
Fifth Amendment rights (R 647). The paragraph read from
respondents’ Exhibit 3 to which petitioner invoked his
Fifth Amendment privilege was as follows:
Q (By Mr. Adorno) Reading from the last
paragraph on Page 1, "Fourth and possibly
the most important, is there way IL could
have another court-ordered psychiatric examina-
tion? There is one prime reason of this request
at this late date. Obviously, my position is
more extreme than before trial and this has,
ge been a prime motivating force. [
_ brief you on this because Been have already
seer on mage pong aph report at I do admit
the crime, ch is obvious from close examina-
tion anyway."
(R 646, 647)
As to all remaining questions relating to this exhibit,
petitioner invoked his Fifth Amendment privilege (R 648).
When asked if he committed the mrder, petitioner answered
in the negative (R651). Petitioner then admitted having
been examined by Dr. Corwim prior to trial. But when asked
if he admitted to Dr. Corwin his participation in committing
the murder, objection was made by his counsel (R 651). The
objection was sustained (R655). Petitioner again indicated
he would invoke the Fifth Amendment privilege with respect
to identifying a group of letters. Counsel for respondents
indicated that questions would be propounded to petitioner
concerning Defendant's Exhibits 2, 7, 27, 4, 5, 10, and 8.
Counsel for petitioner indicated that the privilege was
asserted (KR 656). As to the relevancy of the letters that
had been offered in evidence, counsel for respondents remarked
as follows:
MR. ADORNO: Judge, the problem here, he's
PoGidn't do eg age Rp ne Bin Fes lage “s
alibi defense and he denies Holmes and his
comments to Windsor.
How is the Court going to weigh whether
Windsor is telling the truth or whether Holmes
is telling the truth or whether Mr. Sullivan
is telling the truch, unless either through
cross examination or direct examination some-
thing is brought to light that shows that he
a that is, he being the Plain-
tiff.
These letters are not being introduced to
show whether he did or did not commit the
crime, but only to show that Mr. Windsor and
Mr. Holmes’ testimony is corroborated, that
he did make those statements.
[I didn't tell him to put it in issue. I
didn’t tell him to stand up here and say I
deny committing the crime.
He is absolutely t, he is entitled to
a habeas and he is entitled to a 3.850 and
ineffective assistance of counsel, but when
he puts at issue that he did not commit the
crime and that certain individuals didn't
do their job and one of them, for example,
was the alibi defense, I think the whole issue
as to whether he did or did not commit the |
crime is now in issue and any admissions he
makes comes in for that purpose to impeach him
and it corroborates the State's witnesses.
(R 664, 665)
The remainder of petitioner's testimony was a continual
imvocation of the Fifth Amendment privilege as to questions
propoundea by respondents” counsel (R 672-678; 682-687;
689-706)... When asked by the court if he was satisfied
with what had been done at the hearing on his behalf by
his attorney, petitioner answered, "I am, Your Honor."
(R 708) Petitioner was excused and counsel for respon-
dents them offered in evidence Defendant's Exhibits 43
and 44 which were the affidavits of Mr. Tighe and Mr.
Harlow (R 709). Counsel for petitioner had no objection
and same were admitted in evidence as Respondents’ Exhibits
43 and 44 (R710). Defendant's Exhibit 28, the psychologi-
cal evaluation of petitioner by Norman Reichenberg, was
introduced in evidence (R 710). Dr. Corwin's report,.
defense Exhibit 25 for Identification was introduced in
evidence over objection of petitioner's counsel (R 711).
Other documents were admitted in evidence and the court
then set a date for filing the transcript of this hearing
and establishing a briefing schedule (R 717).
z
The foregoing resume of testimony taken at the
hearing before this court on March 6, 7, and 10, 1980
is foc the purpose of aiding this court in its review
of the testimony presented and deciding upon the ultimate
facts upon which it will rely. Hopefully it will be of
some aid to this court in finally disposing of this cause
on the merits.
According to this court's order dated February 12,
1980, the issues om which testimony was to be presented
are stated as follows:
a.
WHETHER PETITIONER WAS DENIED DUE PROCESS
BECAUSE OF THE STATE COURT TRIAL JUDGE'S
DECISION NOT TO PERMIT HIM TO BE PRESENT
AT THE EVIDENTIARY HEARING ON HIS MOTION
a a FILED PURSUANT TO Fla.R.Cr.P.
-850.
Tr.
WHETHER THE REPRESENTATION OF COURT-APPOINTED
ATTORNEY RAYMOND WINDSOR CONSTITUTED INEFFEC-
TIVE ASSISTANCE OF COUNSEL.
Irr.
WHETHER THE REPRESENTATION AFFORDED PETITIONER
BY COURT-APPOINTED ATTORNEY DENNIS DEAN CONSTI-
TUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
ARGUMENT —
anata
I.
WHETHER PETITIONER WAS DENIED DUE PROCESS
BECAUSE OF THE STATE COURT TRIAL JUDGE'S
DECISION NOT TO PERMIT HIM TO BE PRESENT
AT THE EVIDENTIARY HEARING ON HIS MOTION
a FILED PURSUANT TO Fla.R.Cr.?P.
In the initial petition for writ of habeas “Corpus
filed June 25, 1979 in Paragraph 12 thereof, petitioner
set forth in detail the grounds upon which his claim of
illegality of conviction and death sentence were premised.
Respondents filed an Answer to the petition and discussed
. seriatim all issues raised under Paragraph 12 of the
petition. Respondents at this time reaver each and
every those arguments made in the answer just as chough
the same were set forth herein in haec verba.
Petitioner subsequently filed an Amended Petition
for Writ of Habeas Corpus and respondents filed a Supple-
mental Response (Answer) to Petition and Amended Petition
for Writ of Habeas Corpus. In this supplemental response
, the issue of the necessity for petitioner’s presence at
. the state court evidentiary hearing was discussed. Please
see pp. 1-3 of the supplemental response which by reference
is incorporated herein just as though the same were set
forth herein in haec verba.
There can be little question in anybody's mind.
but that petitioner received a full and fair hearing before
this court. That being so, it appears that the question of
whether the state court trial judge erred in refusing to
have petitioner returned for the state court hearing on
the 3.850 motion is moot. Therefore, wmless further instruc-
ted by this court so to do, respondents will rely upon the
arguments above-referenced in support of their position
that the state court trial judge did not err.
IT.
WHETHER THE REPRESENTATION OF COURT-APPOINTED
ATTORNEY RAYMOND WINDSOR CONSTITUTED INEFFEC-
TIVE ASSISTANCE OF COUNSEL.
Trt.
WHETHER THE REPRESENTATION AFFORDED PETITIONER
BY COURT-APPOINTED ATTORNEY DENNIS DEAN CONSTI-
TUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
The testimony of Ray Windsor previously .discussed
in this brief shows conclusively that he had an agreement
for Steve Bronis, counsel for petitioner's codefendanr,
to take several of the depositions. The strategy involved
in this was that after said depositions taken by Bronis
had been transcribed Windsor could review them and decide
az
if he needed to retake any of the depositions that
Bronis had taken. This, in effect, would give "two
bites of the apple” in an effort to create as much
inconsistency as possible. Windsor read all of the
depositions and nothing was made to appear at the hear-
ing before this court or anywhere else that prejudice
resulted to petitioner because Windsor was not present
at the taking of every deposition.
It is claimed also that Windsor rendered ineffec-
tive assistance of counsel because at the hearing on the
motion to suppress he along with Steve Bronis assumed the
burden of going forward with the evidence rather than hav-
ing the state do so. Windsor testified that he was in no
way hampered in the presentation of his testimony in peti-—
tioner's behalf because of having assumed this burden.
Judge Cowart granted broad discretion to the attorneys
as far as asking necessary questions. Windsor gave it as
his considered opinion that the fact of his going forward
with the evidence at the suppression hearing in no way
influenced the final ruling by Judge Cowart. Respondents
note with interest that while Judge Cowart was on the wit-
mess stand, petitioner at no time inquired of him as to
whether Windsor's assuming the burden of going forward
with the evidence at the suppression hearing influenced
his decision to deny the motion to suppress.
In contemplacing the services rendered by Dennis
Dean in behalf of petitioner, one wonders what degree of
expertise is necessary on the part of a defense counsel
in order to withstand a charge of ineffective assistance.
When this charge is viewed in the light of what Dennis
Dean actually did in representing petitioner, ict becomes
the absurdity of all absurdities. Frankly, the charge :s
so ridiculous that cto make an effort towards refuting same
lends it an undeserved dignity.
2
Ic is believed that the main thrust of peti-
tioner's assertions made in support of his claim of
ineffective assistance of counsel has to do with the
alleged failure of Dean to secure the attendance of
so-called alibi witmesses. Other matters were raised
in petitioner's effort to support his claim of ineffec-
tive assistance but all of them were thoroughly explained
by Dean in his testimony at the hearing.
To begin with, it must be emphasized that a court-
appointed attorney fis-not vulnerable to a charge of ineffec-
tive assistance because of not obtaining testimony of an
alibi witness where such testimony could not be considered
an alibi. Mays v. Estelle, 610 F.2d 296 (5th Cir. 1980).
Something else that should not be forgotten is that there is
@ presumption that counsel rendered effective assistance
and tc overcome that presumption on collateral attack the
petitioner mist shoulder a heavy burden. Catches v. United
States, 582 F.2d 453 (8th Cir. 1978); Bruce v. Estelle, 536
F.2d LOSL (Sth Cir. 1976), cert. denied 492 U.S. 1053. When
this presumption is viewed against the background of the
testimony of Judge Cowart and Judge Gable as to Mr. Dean's
reputation for excellence in the field of criminal law, then
the presumption must, indeed, become a heavy burden. A
reminder--there was no expert testimony whatsoever produced
by petitioner to the effect thac Dean's representation of
petitiorier either at the trial or appellate level constituted
as a matter of law ineffective assistance of counsel. Thus,
the testimony of Judge Cowart and Judge Gable stands wncontra-
dicted, unchallenged, and unimpeached.
We think a discussion of applicable case'law, state
and federal, is in order.
-37-
In Beckham v. State, 339.So.2d 221 (Fla.App. 3
1976), the court remarked as follows:
To successfully collaterally attack a
5 t on the grounds of ineffective
assistance of counsel, the facts alleged
must demonstrate that the trial was a
mockery or a farce. Simpson v. State,
164 So-2d 224 (Fla. xd DER LTE, Gussade
v. State, 321 So.2d 442 (Fla. 3d :
Further, pee of a trial with
regards to matters falling within the
j t or strategy of counsel does
not constitute fective assistance of
counsel. Solloa v. State, 227 So.2d 217
(Fla. 34 DOA L969). ~=—OS*
Id. at 222. See also United States v. Childs, 571 F.2d 315
(Sth Cir. 1978).
We think the remarks of the Second District in
State v. Eby, 342 So.2d 1087 (Fla.App. 2 1977), are par-
ticularly appropriate:
Secondly, a decision not to raise cer-
tain possible defenses or call certain
defense witnesses is ordinarily a matter
of personal judgment and strategy within
the army gn of defense counsel. As
such, it not a proper predicate for a
collateral attack on the competence of
counsel unless it is so irresponsibly
exercised as to constitute “inadequate”
representation. Here, the undisputed
testimony of trial counsel re eda
deliberative, well-founded decision to
pursue the ccurse taken which, on its
face, is not unreasonable nor irresponsi-
ble. No evidence was before the al
court to support a contrary finding; and
neither second-guessing nor substituting
the court's own hindsight j 7 ___-
that of trial counsel will fice to
reject as "inadequate" the role of trial
counsel.
Id. at 1089, 1090. Similarly, the remarks of the Third
District in Wingert v. State, 353 So.2d 643 (Fla.App. 3
1977), are particularly appropriate. Note the following:
Rather, it is*apparent from the record
that the decision not to move to suppress —
the recorded statement was made at the ‘* «; ~
time because trial counsel felt that the
exculpatory portions of the statement
were strong eno to serve the purpose
of getting defendant's explanation of
the killing before the jury without put-
ting the defendant on the stand. Such
a decision is not the kind that would
establish ag one! of counsel. See
. So.2d 1087 (Fla. 2d DCA
State v.
T9775 and Diem v. U.S., 377 F.2d 853
(Sth Cir. 1967). .
Id. at 645.
The Fifth Circuit has held that the governing
standard for appointed counsel is reasonably effective
assistance. Herring v. Estelle, 491 F.2d 125 (5th Cir.
1974); Mac Kenna v. Ellis, 280 F.2d 592 (Sth Cir. 1960).
However, as later stated by that court, Akridge v. Hooper,
545 F.2d 457 (Sth Cir. 1977), reasonable competency is
based om the situation, the circumstances, and the law
as‘ understood at the time. Certainly, the effectiveness
of counsel does not require an imaginative assertion of
every possible theory of defense or mitigation which might
in the unpredictable future turn out to be accepted by
some court, some day, in some case. Davis v. Wainwright,
547 F.2d 261 (Sth Cir. 1977). Simply stated, due process
of law in this context simply means that an accused must
have such assistance as will assure him of due process of
law. Pineda v. Bailey, 340 F.2d 162 (Sth Cir. 1965).
A defendant has the right to reasonably effec-
tive assistance of counsel but he does not by any stretch
of the imagination have the right to errorless counsel.
United States v. White, 524 F.2d 1249 (5th Cir. 1975).
Cf. Tollett v. Henderson, 411 U.S. 258, 36 L.Ed.2d 235,
244, 93 S.Ct. 1602 (1973). Im other words, the correct
legal standard for such “range of competence” is that of
"(NJot errorless counsel and not counsel judged ineffec-
tive by hindsight, but counsel reasonably likely to render
and rendering reasonably effective assistance."" MacKenna
v. Ellis, 280 F.2d 592, 599 (Sth Cir. 1960). If this
standard is followed, then the force of reason compels
the conclusion obviously reached by the trial judge. chat
petitioner did, indeed, receive effective assistance of
counsel. See also Fitzgerald v. Estelle, 505 F.2d 1334
(Sth Cir. 1975). It is submitted that in an area where
intuitive judgments and spontaneous decisions are often
<
required, retrospective judgment of the artistry of the
advocate is most difficult because the elements influencing
judgment usually cannot be captured on the record. Thus,
the representation afforded by any lawyer to his client
is mot readily capable of later audit like a bookkeeper's.
For example, see Arnold v. Wainwright, 516 F.2d 964 (5th
Cir. 1975). It is submitted that the adequacy of repre-
sentation which petitioner received can only be decided
om an evaluation of the services rendered in his behalf.
However, a2 retrospective examination of a lawyer's repre-
sentation for the purpose of determining whether same was
free from error would surely exact a higher measure of
competency than the prevailing standard. See McMann v.
Richardson, 397 U.S. 759, 25 L.Ed.2d 763, 90 S.Cr. 1441
(1970).
In Fitzgerald v. Estelle, 505 F.2d 334 (SthCir. 1974),
the court opined that the test in assessing the effectiveness
of counsel is whethsrc said counsel was likely to and did
render reasonably effective assistance to a defendant.
In Wainwright v. Sykes, 433 U.S. 72 (1977), the United
States Supreme Court proclaimed that it was clear that
trial counsel need not consult with his client on matters
at trial:
In Henry v. Mississippi, 379 U.S., at _
451, the note decisions of
counsel relating to trial strategy, even
when made without the consultation of the
defendant, would bar direct federal review
of claims thereby foregone, except where
"the circumstances are exceptional."’ Foot-
note 14, p. 91. :
Chief Justice Berger, concurring, held:
Once counsel is appointed, the day-to-day
conduct of the defense rests with the attorney.
He, not the client, has the immediate--and‘-
ultimate--responsibility of deciding if and
when to object, which witnesses, if any, to
call, and what defenses to develop. Not only
do these decisions rest with the attorney,
but such decisions must, as a practical matter,
be made without consulting the client. The
trial process simply does not permit the —
of frequent and protracted int tions ch
would be necessary if it were re d chat
clients give knowing and intelligent approval
to each of the myriad tactical decisions as
Id. at $3.
In Herring v. Estelle, 491 F.2d 125 (Sth Cir. 1974),
the Fifth Circuit enunciated the constitutionally required
minimm standard for assistance of counsel, stating:
The governing standard is reasonable
effective assistance. One method of
determining whether counsel has rendered
reasonable effective assistance is to ask
whether the proceedings were a farce or
mockery. The farce-mockery test is but
one criterion for determining if an accused
has received the constitutionally required
minimm representation.
Id. at 128. Further, in Herring v. Estelle, supra, at 218,
the court went on to say that it was defense counsel's job
to provide the accused with an understanding of the law in
relation to the facts. The advice defense counsel gives
need not be perfect, but it must be reasonably competent.
Effective assistance of counsel has been interpreted not
to mean errorless counsel and mot counsel judged ineffective
by hindsight, bur coumsel reasonably likely to render
and rendering reasonably effective assistance. United
States v. Gray, 565 F.2d S81 (Sth Cir. 1978), cert. denied,
435 U.S. 955; United States v. White, 524 F.2d 1249 (Sth
Cir. 1975); MacKenna v. Ellis, 280 F.2d 592 (Sth Cir.
1960), cert. denied, 366 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d
78 (1960). In White, supra, the petitioner complained that
his attorney should have_objected to the seating-of some
of the jurors, and further stated that counsel failed to
object to the introduction of suppressed evidence. White
also contended that his counsel ineffectively presented his
insanity defense. The court in this case affirmed petitioner's
conviction, stating that “the best lawyers have to take the
facts as they are and can only do cheir best ta present those
facts in any available favorable light.” Umited States v.
White, supra, at 1253. Counsel put on petitioner's alibi
defense. Comez v. Beto, 462 F.2d 596 (Sth Cir. 1972);
Pennington v. Beto, 437 F.2d 1281 (Sth Cir. 1971). A review
of the state court criail transcript, the transcript of evi-
= | Gem Ae a a eee Ak, AABA Bayi es. | OUD. eee... 6 Gee toa inl,
of the habeas hearing held in this court in March 1980
demonstrates that petitioner's claim of ineffective assis-
Camce is without merit. Again, we emphasize that petitioner's
burden to establish his claim of ineffective assistance is
heavy. Neicher hindsight nor success is the measure for
determining adequacy of legal representation. United States
ex rel. Reis v. Wainwright, 525 F.2d 1269 (5th Cir. 1976);
Ellis v. State of Oklahoma, 430 F.2d 1352 (10th Cir. 1970),
cert. denied, 401 U.S. LOIO (1971). To reiterate, petitioner
charges Windsor with ineffective assistance of counsel, not
because necessary depositions of prospective witnesses were
mot taken, but because Windsor wasn't present when all of
the depositions were taken. We point out that there is
mo constitutional right to pretrial discovery depositions
in a criminal case. United States v. Adock, 558 F.2d 397
(8th Cir. 1977), cert. denied, 434 U.S. 921; United States
v. Nichols, 534 F.2d 202 (9th Cir. 1976). In any event,
this, as previously explained, was a matter of trial strategy
om Mr. Windsor's part. To say that this constitutes ineffec-
| tive assistance of counsel is speculative at best and specu-
lative claims are not enough to support such a charge. Pack-
nett v. United States, 435 F.2d 693 (Sth Cir. 1970); Haggard
v. State of Alabama, 550 F.2d 1019 (Sth Cir. 1977).
In the recent case of United States v. Gray, 565 F.2d
861 (Sth Cir. 1978), cert. denied, 435 U.S. 955, the court
remarked as follows:
We begin with the settled principle that
the right to counsel of one's choice is
not absolute as in the Sixth Amendment
right cto the assistance of counsel. United
Scates v. Sexton, 5 Cir. 1973, 473 F.2d 512;
United States v. Harrelson, 5 Cir. 1973,
477 F.2d 383, cert. denied, 414 U.S. 847..
94 S.Ct. 133, 38 L.Ed.2d 95. Second, “
time spent in preparation is only one of
many factors to be considered in determin-
ing such claims. Herring v. Estelle, 5
Cir. 1974, 491 F.2d 125, 127; ty v.
Beto, 5 Cir. 1968, 396 F.2d 128, 130;
Loftis v. Estelle, 5 Cir., 1975, 515 F.2d
872, 875; Summers v. United States, 5 Cir.,
1976, 538 F.2d 1208, 1210 n. 3; Jones v.
<
Henderson, Sth Cir., 1977, 549 F.2d 995, 997.
The Po ge apres test to be applied is whether
counsel was reasonably likely to render and
did render reasonably effective counsel.
E.G., Herring v. Estelle, Ta; Hudson v.
3 age Alabama, 5 Cir., 1974, 493 F.2d
A review of the Fifth Circuit Law indicates
that this Court’s methodology involves an
oe into the actual ormance of
counsel in conducting the defense and a
determination whether reasonably effective
assistance was rendered based on the totality
of the circumstances and the entire record.
This Circuit does not pr many aw bs specu-
lative and inconcrete claims of ' t might
‘ have been if.” If an liant can point
to specific examples o ctiveness,
we have not hesitated to grant a new trial
or hearing. See, as examples of this
egg h United States v. Edwards, 5
Cir., 1974, 488 F.2d 1154, 1163; Doughty
v. Beto, supra; United States v. Fruge, 5
Cir., 1974, 495 F.2d 557; Hora v. State
of Louisiana, 5 Cir. 1974, 495 F.2d 1248;
Lee v. Hopper, 5 Cir., 1974, 499 F.2d 456,
462-65, cert. denied, 419 U.S. 1053, 95
S.Ct. 633, 42 L.Ed.2d 650; Fitzgerald v.
Estelle, 5 Cir. 1975, 505 F.2d 1975, 505
F.2d 1334, 1338-42 (en banc), cert. denied,
422 U.S. LOLL, 95 S.Ct. 2636, 45 L.Ed.2d
67S; Loftis v. Estelle, 5S Cir., 1975, 515
F.2d 872, 875-76; Howard v. Henderson, 5
Cir., 1975, 519 F.2d L176, 1178, cert.
denied, 423 U.S. 1036, 96 S.Ct. 573, 46
L.Ed.2d 412; Jerkins v. United States, 5 Cir.,
1976, 530 F.2d 1203, 1204 n. L; Mason v.
Balcom, 5 Cir., 1976, 531 F.2d 717, 723-25;
United States v. Fessel, 5 Cir., 1976,
53L F.2d 1275, 1278-79; Trahan v. Estelle,
5 Cir., 1977, 544 F.2d 1305, 1316-20
(Goldberg, J., specially concurring) ;
dv. State of Alabama, 5 Cir. 1977,
550 F.2d 1019, 1022-23.
Id. at 887. [It should be noted that the Fifth Circuit's
totality of circumstances test, as explicated in United
States v. Gray, supra, does not mean that a single error
can render counsel's assistance ineffective. We think the
case of Webster v. Estelle, 505 F.2d 926 (Sth Cir. 1975),
well expressed the Fifth Circuit's opinion on the issue
of ineffective assistance of counsel. Note the following:
The fundamental rules by which petitioner's‘:
claim must be judged are well settled. The
burden of proof is on the petitioner in a
habeas corpus proceeding. A judgment of
conviction must be presumed to have been
reached in accordance with due process
unless otherwise shown. "If the result
of the adjudicat process is not to be
set at naught, it is not asking too much
_
thac che burden of showing essential
unfairness be sustained hy him who claims
such injustice and seeks to have the result
set aside. and that it be sustained not as
@ matter of speculation but as a demonstrated
real -" Adams v. United States, 317 U.S.
269, 281, 67 SCE Z36 (I9SZ). Tcitres omitted]
Id. at 928.
Petitioner alleges that his court-appointed counsel,
Dennis Dean, failed to request a continuance of the trial
date and thus deprived himself of adequate time in which
to prepare. Mr. Dean denied this emphatically in his
testimony. However, the Fifth Circuit's position on this
issue is clear: shormess of preparation time alone is not
enough to establish a claim of ineffective assistance of
counsel. The petitioner mist show more than counsel's
brief preparation period. Herring v. Estelle, 491 F.2d
125, 128 (Sth Cir. 1974). Im other words, the petitioner
must show that as a result of such brief preparation that
his counsel committed other specific errors which rendered
him ineffective. In the instant case, petitioner has woe-
fully failed to carry this burden.
The Fifth Circuit has excused a wide variety of
failures and omissions om the basis that such actions or
inaction amounted to well-considered trial tactics. See
Williams v. Beto, 354 F.2d 698 (Sth Cir. 1965); Winters
vw. Cook, 489 F.2d 174 (Sth Cir. 1973); United States ex
rel. Reis v. Wainwright, supra; United States v. Garza,
563 F.2d 1164 (Sth Cir. 1977). Two opinions which have
addressed the attorney-client relationship in depth are
Williams v. Beto, supra, and the special concurrence in
Wright v. Estelle, 572 F.2d 1071 (Sth Cir. 1978). Both
conclude that the trial tactics and strategy aré particu-
larly within the province of the attorney and that a peti-
tioner would have to show more than must mistakes or faulty
judgment. In Wright v. Estelle, supra, the Fifth Circuirc
commented as follows:
2
If he decides to accept an attorney, the
defendant has necessarily delegated
important decisionmaking authority to his
attorney. The s of the delegation
does not turn on ortance of the
decision--the attorne quently makes
judgments affecting the very life of the
defendant. The question here is twofold:
who is in a better position to judge trial
strategy and who is in a better position
to ensure the best interests of the
defendant. This court's Ristory is filled
with the recognition of the value of an
attorney. No one could seriously contend
that a defendant is in a better position
to dictate trial strategy than attorney.
Id. at LO7L.
Again, respondents emphasize that counsel's efforts
need not be perfect, just reasonably competent. Herring
v. Estelle, 491 F.2d 125 (Sth Cir. 1974). Also, counsel's
performance "is not judged by a retrospective consideration .
as to whether the advice of counsel was or was not the best
that could have been given." Ballard v. Blackburn, 583 F.2d
159, 163 (Sth Cir. 1978). See also Williams v. Beto, 354 F.2d
698 (Sth Cir. 1965), where the court stated, "it is basically
umreasonable to judge an attorney by what another would have
done, or says he would have done, in the better light of
hindsight." Id. at 706.
In summary, petitioner sub judice has failed to show
that either of his court-appointed counsel, Ray Windsor or
Dennis Dean, was ineffective. He has failed to show that
he was prejudiced in any way by either counsel's conduct.
Davis v. State of Alabama, 596 F.2d 1214 (Sth Cir. 1979).
Respondents reaver each and every the matters and
things in their Motion to Strike Complaint of Ineffective
Assistance of Counsel and Memorandum of Law in support
thereof just as though the same were set forth herein in
<
CONCLUSION
The petition for writ of habeas corpus should be
denied.
JIM SMITH
Attorney General
By:
COUNSEL. FOR RESPONDENTS
The Capitol
Tallahassee, Florida 32301
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that [I have furnished a copy of the
foregoing Memorandum Brief to Roy E. Black, P.A., 150 S.E.
2nd Avenue, Ste. 1402, Miami, Florida 37131, by mail, this
5th day of May 1980.
As tant Attorney General
of Counsel
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