Opposition Brief — Singletary v. Duest

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DOCKET NO. 92-1163 ~

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

HARRY K. SINGLETARY, JR.,

Petitioner,

vs.

LLOYD DUEST,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

LARRY HELM SPALDING

Capital Collateral Representative

~ Florida Bar No. 0125540

MARTIN J. MCCLAIN

a Chief Assistant CCR

Florida Bar No. 0754773

OFFICE OF THE CAPITAL COLLATERAL

REPRESENTATIVE

1533 Sewth Monroe street

Tallahassee, Florida 32301

(904) 487-4376

COUNSEL FOR PETITIONER

DOCKET NO. 92-1163

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

HARRY K. SINGLETARY, JR.,

Petitioner,

vs.

LLOYD DUEST,

Respondent.

ON PETITION FOR A WRIT OF- CERTIORARI TO —

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

LARRY HELM SPALDING

Capital Collateral Representative

Florida Bar No. 0125540

MARTIN J. MCCLAIN

Chief Assistant CCR

Florida Bar No. 0754773

OFFICE OF THE CAPITAL COLLATERAL

REPRESENTATIVE

1533 South Monroe street

Tallahassee, Florida 32301

(904) 487-4376

COUNSEL FOR PETITIONER

WHETHER A PANEL DECISION OF THE ELEVENTH

CIRCUIT OF APPEALS, FINDING OF HARMFUL ERROR

BASED ON A VIOLATION OF JOHNSON V.

, 486 U.S. 578, 108 8. CT. 1981,

100 L.ED.2D 575 (1988), IS CONTRARY TO THIS

COURT’S PRONOUNCEMENTS IN SOCHOR V. FLORIDA,

504 U.S. _, 119 L.ED.2D 329, 112 8. CT.

(1992), AND GRIPPIN V. UNITED STATES, 502

U.8. , 116 L.ED.2D 371, 112 8.CT. 466

(1991). ~

In light of the concession by the State of Florida below

that Johnson v. Mississippi error occurred and in light of the

State’s further stipulation below that the Eleventh Circuit

should conduct an independent review of the question of

‘harmlessness of the error, Mr. Duest restates the questions

presented as follows:

I. IS THE STATE OF FLORIDA FREE TO RAISE BEFORE THIS COURT

THE QUESTION OF WHETHER EIGHTH AMENDMENT ERROR OCCURRED

UNDER JOHNSON V. MISSISSIPPI WHEN IT DID NOT CONTEST IN

THE ELEVENTH CIRCUIT THE PRESENCE OF JOHNSON ERROR AT

MR. DUEST’S PENALTY PHASE PROCEEDINGS.

II. WHETHER THE STATE OF FLORIDA MAY ASSERT ERROR IN THE

ELEVENTH CIRCUIT’S INDEPENDENT HARMLESS ERROR ANALYSIS

WHEN IT AGREED THAT THE HARMLESS ERROR ANALYSIS WAS TO

BE CONDUCTED ON AN INDEPENDENT BASIS.

QUESTION PRESENTED

WHETHER A PANEL DECISION OF THE ELEVENTH CIRCUIT OF

APPEALS, FINDING OF HARMFUL ERROR BASED ON A VIOLATION

OF JOHNSON V. MISSISSIPPI, 486 U.S. 578, 108 S. CT.

1981, 100 L.ED.2D 575 (1988), IS CONTRARY TO THIS

COURT’S PRONOUNCEMENTS IN SOCHOR V. FLORIDA, 504 U.S.

- __, 119 L.ED.2D 329, 112 S. CT. (1992), AND GRIFFIN

V. UNITED STATES, 502 U.S. , 116 L.ED.2D 371, 112

S.€es 466 (1991) > ~ . > >. >. . . . . >. >. 7 . > > > -

TABLE OF CONTENTS . . .« © © © «© © « © © © © © © © © © © « 2

TABLE OF AUTHORITIES . 1.2 ss eo © eo ese sees eeuaess

OPINIONS BELOW ... + +2 © © «© «© «© © «© © © © © © © © «

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .....

PROCEDURAL HISTORY AND STATEMENT OF THE CASE ...... .

REASONS FOR DENYING THE WRIT . . . - «© © © © © © © © #© © «

THE ELEVENTH CIRCUIT APPLIED THE CHAPMAN V. CALIFORNIA

TEST PURSUANT TO THE PARTIES’ AGREEMENT THAT A DE NOVO

CHAPMAN REVIEW WAS REQUIRED. . . .. «© «© «© «© «© © «© « «

CONCLUSION . . « « «© © © © « «© © © © © © © © © © © © © ©

iii

—_ es

1. Kentucky,

450 U.S. 288 (1981) . «© © © = © we w «

110 S. Ct. 1441 (1990) . . « «© © «© we @

’

555 So. 2d 849 (Fla. 1990) ...+++s.

’

967 F.2d 472 (l1ith Cir. 1992) ....

’

112 S. Ct. 2926 (1992) . - «© «© «© «© «© « «

sriffi United States,

502 U.S. P

116 L.Ed.2d 371,

112 S.Ct. 466 (1991) . «© «© «© «© «© © © «

Hall _yv. State,

541 So. 24 1125 (Fla. 1989) ...

’

486 U.S. 578 (1988)

’

So. 2d , No. 81,121

(Fla. January 29, 1993) .

111 S. Ct. 731 (1991)

Sochor v. Florida,

504 U.S. P

119 L.Ed.2d 329,

112 8. Ct. (1992)

’

112 S. Ct. 1130 (1192) .

iii

DOCKET NO. 92-1163

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

HARRY K. SINGLETARY, JR.,

e, Petitioner,

vs.

LLOYD DUEST,

) Respondent.

. ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

The Respondent, Lloyd Duest, respectfully requests that this

Court deny the Petition for Writ of Certiorari, seeking review of

the opinion of the Eleventh Circuit Court of Appeals in this

case. That opinion is reported at 967 F.2d 472 (11th Cir. 1992).

OPINIONS BELOW

In Duest v. Singletary, 967 F.2d 472 (11th Cir. 1992), the

Eleventh Circuit issued an opinion ordering sentencing relief on

the basis of the violation of Johnson v. Mississippi, 486 U.S.

578 (1988), which occurred in Mr. Duest’s case. The Florida

Supreme Court had found a violation of Johnson occurred in Mr.

Duest’s penalty phase proceedings. Duest v. Dugger, 555 So. 2d

849 (Fla. 1990). Before the Eleventh Circuit, the State had

conceded that Johnson error occurred. Duest v. Singletary, 967

F.2d at 480. The only issue before the Eleventh Circuit was

whether the Johnson error was harmless beyond a reasonable doubt.

As to the standard of review to be employed by the Eleventh

Circuit on the issue of harmless error, Mr. Duest set forth in

his Initial Brief to the Eleventh Circuit: "The state court

finding that the eighth amendment error was harmless is a mixed

question of law and fact subject to independent review by this

Court." Initial Brief at 10. The Answer Brief submitted by the

State of Florida specifically agreed with this statement:

"Appellee accepts as correct appellant’s statement regarding the

standard of review for the Brady claim and the Johnson v.

Mississippi claim." Answer Brief at 4. Since the parties agreed

that the Eleventh Circuit must conduct an independent review, the

Eleventh Circuit conducted an independent review. It then

conciuded that the error was not harmless beyond a reasonable

doubt.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

In its petition, the State of Florida recited the eighth,

tenth and fourteenth amendments as the constitutional provisions

involved. Mr. Duest agrees that the eighth amendment and

fourteenth amendments are involved. Mr. Duest notes that the

State of Florida did not assert the tenth amendment’s involvement

below. Having failed to advance reliance on the tenth amendment

below, the State of Florida is precluded from raising the tenth

amendment as a limitation upon the Eleventh Circuit’s authority.

Before the Eleventh Circuit the State of Florida specifically

agreed that on independent application of a harmless-beyond-a-

reasonable-doubt standard was required.

E OF TH A8s

This is a habeas corpus action initiated by a Florida death-

sentenced inmate. The state courts found and the State conceded

eighth amendment error at Mr. Duest’s penalty phase proceeding

before his jury when the State introduced a prior conviction for

aggravated assault with intent to murder. After asking that the

prior conviction be read a second time, the jury recommended

death by a vote of seven to five.' Subsequently, that conviction

was vacated and nolle prossed because it was determined that

under the applicable law Mr. Duest had not committed the crime of

aggravated assault with intent to murder. At Mr. Duest’s penalty

phase proceeding, the only evidence presented to support this

prior conviction was the fact of conviction. Before the Eleventh

Circuit the State of Florida agreed that Johnson error had

occurred. The parties further agreed that the Eleventh Circuit

was obligated to conduct an independent review of the record to

determine whether this Johnson error was harmless beyond a

reasonable doubt. See Answer Brief at 4.

‘Under Florida law, had one juror voting for death switched

and voted for life, a life recommendation would have resulted.

In connection with this review of the record, the State

erroneously sets forth in its petition: "the trial court found

no mitigating evidence applied to the case." Petition at 6-7.’

In the findings of fact issued by the sentencing judge at the

time the sentence of death was imposed, the judge did not find

any statutory mitigating factors applied (R. 1835). However, the

order did not address non-statutory mitigation (R. 1835-36).

Instead, the judge stated: "this Court after weighing the

aggravating and mitigating circumstances, being of the additional

opinion that no mitigating circumstances exist to outweic: the

aggravating [circumstances]" (R. 1836) .’

In post-conviction proceedings, Mr. Duest raised a claim

concerning whether the sentencing judge considered the non-

statutory mitigating which had been presented by Mr. Duest at

trial. The State and the sentencing court responded that

"plenty" of mitigation had been presented to the jury and

considered by the judge at Mr. Duest’s sentencing (PC R. 121).

In the state post-conviction proceedings, the sentencing judge

stated:

THE COURT: The court was aware of the fact there

was drug abuse.

70f course under Florida law, the question is not what the

judge found but rather "whether a jury recommending life

imprisonment would have a reasonable basis for that

recommendation." Hall v. State, 541 So. 2d 1125, 1128 (Fla.

1989).

‘This language should be compared to the language of the

sentencing order at issue in Parker v. Dugger, 111 S. Ct. 731,

736 (1991) ("There are no mitigating circumstances that outweigh

the aggravating circumstances").

THE COURT: I was aware of that, where the family

testified during the trial.

MR. MCCLAIN: That was nonstatutory mitigation,

that was before’the jury as well, because the jury

heard the testimony about the drug abuse, and I believe

the father testified about taking him to Methadone

treatment and so forth.

THE COURT: Yes, he did.

* * *

THE COURT: There were also factors where the

mother was saying how physically ill he was as a baby

and whatever else. I mean I heard all of that. [I

j j , but I will go

through all the cases again. And I remember that,

because I didn’t see it anywhere, but I remembered that

the family testified to, beyond the presentence

investigation relayed because they were there at the

sentencing phase as well, and did testify at that time.

So, we are talking about physical and mental and

stress, and drug abuse, and prison time.

(PC R. 119-22) (emphasis added).

In its post-conviction answer brief to the Florida Supreme

Court, the State conceded that "evidence of [Mr. Duest’s] prior

drug history, therapeutic interventions and status as a good

father, husband, son and brother" were presented to the jury

(Answer Brief from Denial of a Motion for Post Conviction Relief

at 37). Both statutory and nonstatutory mitigating circumstances

were in fact set forth in the record. In the penalty phase

proceeding, the State conceded that Mr. — had a history of

debilitating drug abuse (R. 1607). The State conceded that he

had helped an inmate:

—

What has he done? Well, he has done a couple of

things. I stand corrected. The parents, Mr. Duest

nN uow

eee ee See ee

mentioned to you that he helped an inmate once.

Consider that. Consider anything else that was brought

out along that line.

(R. 1615). The prosecutor was referring to an incident in

Walpole prison where Mr. Duest assisted a guard who was giving

aid to an inmate who had been stabbed:

I don’t have much more to say except he has helped

people in prison when he was there. He helped a guard

with a prisoner that had been stabbed. He went out and

him and another person took him to the hospital. The

guard couldn’t go into the section. He was serving

time at that time. He just waited there at the

hospital and he didn’t escape or anything. He waited

for the prisoner to go back with the guard back to

prison.

(R. 1578-79). In regard to Lloyd’s serious drug abuse history,

his father testified:

A I brought him to a drug clinic. I believe it

was in Cambridge, Cambridge, Mass. He had another drug

problem a little later and brought him - trying to

bring him to another one. He couldn’t get into one

because they were all filled. He has got a young

daughter.

(R. 1578). The State also conceded that there was testimony that

Mr. Duest was a good father (R. 1615-16). The State conceded

that these were mitigating factors.

The State conceded that there was evidence upon which the

sentencer could find the influence of extreme mental or emotional

disturbance in that Mr. Duest had a long-standing drug problem

(R. 1607). There was also additional evidence in the record

which would have supported the impairment factor as well as

extreme disturbance in that Mr. Duest detailed a lengthy

psychiatric history:

(R.

present in the record.

MR. BARON: There were two other things he brought

to my attention.

One was concerning any psychological history. He

indicated to me that he told Miss Balazik that while in

Walpole and in -- what was the other prison?

THE DEFENDANT: Concord. I transferred from

Walpole to Concord.

MR. BARON: -- he had seen a psychiatrist and been

in some kind of therapy. One of them is mentioned in

the PSI, I believe the Walpole one, but the Concord one

is not mentioned, neither one. My understanding, none

of the doctors, from what I’m told, still work within

the prison or prison system, so whether or not they

would have added anything is unknown et this time.

THE COURT: So there is an omission of one, the

Concord one. You have the Waltham one in here, right?

MS. BALAZIK: Yes.

MR. BARON: And the one he’s been seeing within

the Broward County jail is listed in there.

THE DEFENDANT: I saw a psychiatrist of two years,

once a week, one on one, from 1971 to 1973, and I guess

three years later I was arrested for illegal possession

of a firearm. My parole was violated on account of the

arrest.

I was sent to Walpole, did 14 months, went to

trial and was found not guilty, and during that 14-

month span of time, I also saw a psychiatrist.

MR. BARON: In addition, he indicated that he gave

Miss Balazik a number of additional places that he had

worked for whatever period of time that are not

included within the PSI. I don’t know if it was

because they were not confirmed or what the situation

was.

1662-63).

Numerous additional nonstatutory mitigating factors were

Lloyd had been an excellent son, and that Lloyd got diplomas

while in prison for counseling younger drug addicts (R. 1577).

Mr. Duest’s father testified that his son

His sister testified that he had been a good brother (R. 1582).

His mother said her son, Lloyd, was lovable and compassionate,

that he was a quiet boy and never a discipline problem at school

(R. 1583-84). His wife testified that he had been a good husband

and father (R. 1587). Mr. Duest worked on his parent’s hone,

always gave Christmas gifts except for the time when he was on

escape status, and loved his family (R. 1671). During his time

in the Broward County Jail, Mr. Duest made a significant

contribution to group therapy sessions:

: “Records from Walpole State Prison indicate

that the subject was seen in 1971 by a prison

psychologist on a one to one basis. However, no

Clinical diagnosis was ever made. The subject is

currently in group therapy sessions in Broward County

Jail. According to Psychotherapist Gary B. Lane, Lloyd

contributed to the group by assisting other inmates in

problem solving, bringing numerous newspapers and

magazine articles to be shared by the group and

actively participating verbally in group interactions.

He states that his participation acted as a role model

for others to do the same. As a group therapy member,

Mr. Duest made a significant contribution to the

effectiveness of the sessions.

(R. 1811). Mr. Duest was not known for violence and to the

contrary had a reputation for respect of his family and friends,

and helping others:

Friend, Edward R. Lavache, states, "I am a Watertown

firefighter and have been a friend of Lloyd Duest for

over ten years During this time I have never known

Lloyd to do harm to anyone. I do not believe he would

ever take the life of another person. I have always

known him to be a loving father and husband, he has

always shown the greatest respect for his family and

friends. He has always helped me whenever possible and

I’ve never seen him turn down a friend."

(R. 1813). Mr. Duest-was characterized as a good worker:

Friend, James Pallone, states, "I would like to write

this Recommendation for Lloyd Duest who I have known

all my life. He has always been in good standing and

shown Character with my family and his community within

the last 25 years.

He has worked for my [sic] for 10 years and was prompt

at his job. He showed responsibility and character in

his job, and always got along with his fellow workers.

If there is anything I could do or testify to in his

behalf please do not hesitate to contact me."

(R. 1813). In fact, the probation officer, who authored a

presentence investigation that the judge considered, concluded

that Mr. Duest did satisfy mitigating factor (8) in that "he does

has [sic] a very supportive family, friends and members of the

community in Massachusetts" (R. 1816).

The State conceded in state court that "plenty" of

mitigation was presented to the jury (PC-R. 121). Under Florida

law, a jury’s recommendation of life is binding if there exists a

reasonable basis for the recommendation in the record. Hall v.

State, 541 So. 2d 1125 (Fla. 1989). A “Florida penalty phase

jury is a co-sentencer under Florida law." Johnson v.

-Singletary, So. 2a , No. 81,121 (Fla. January 29, 1993).

As a result, the Eleventh Circuit concluded that the Eighth

Amendment error which occurred before the jury that voted for

death by a slim margin was not harmless beyond a reasonable

doubt.‘

‘The Eleventh Circuit did not address Mr. Duest’s other

challenges to his death sentence because of its decision to grant

relief for the Johnson error. In the unlikely event that this

(continued...)

ll es Te te te i het el I ee od at sh.

REASONS FOR DENYING THE WRIT

THE ELEVENTH CIRCUIT APPLIED THE CHAPMAN V.

CALIFORNIA TEST PURSUANT TO THE PARTIES’

AGREEMENT THAT A DE NOVO CHAPMAN REVIEW WAS

REQUIRED.

Before the Eleventh Circuit, the State conceded eighth

amendment error occurred and that the Eleventh Circuit was

required to conduct an independent review to determine whether

the error was harmless beyond a reasonable doubt. e Vv.

Singletary, 967 F.2d at 480 ("The State does not dispute the

existence of Constitutional error in this case"). In fact, in

the Answer Brief filed in the Eleventh Circuit by the State of

Florida, it was agreed that Mr. Duest had correctly stated the

standard of review as requiring an independent review of the

record. The Eleventh Circuit conducted an independent review and

concluded that the error was not harmless beyond a reasonable

doubt:

It is apparent that the jury’s

particular focus on the vacated conviction

prior to its 7-5 recommendation of death

raises a serious possibility that such

evidence impacted the ultimate decisional

process of the jury. Under the circumstances

*(...continued)

Court were to grant certiorari review and reverse, consideration

of the these remaining issues would be required. These issues

include Mr. Duest’s claim that his jury received instructions in

violation of Espinosa v. Florida, 112 S. Ct. 2926 (1992). Mr.

Duest’s jury received the same instruction at issue in Espinosa.

The state courts applied a procedural bar which the District

Court ruled was inadequate. An analysis of the harmlessness of

the Johnson error should include consideration of the other

Eighth Amendment errors which infected the process. If

certiorari review is granted, Mr. Duest argues that consideration

of other Eighth Amendment error must be included in the harmless

error analysis.

i Neti nt et a Be me a

ne ea Oe a a ee ee, eR Raa ry ey ema

of this case, the State cannot show beyond a

reasonable doubt that the jury would have

recommended death absent consideration of the

vacated Massachusetts conviction.!!

Duest v. Singletary, 967 F.2d at 483. Footnote 11 provided:

11. It is equally apparent that, had the

sentencing jury recommended life, the trial

court would not have overridden this

recommendation and sentenced Duest to death.

As conceded by the prosecution, there was

“plenty of nonstatutory mitigating evidence

present in this case" to support a jury

determination of life imprisonment in this

case. Under Florida law, a sentencing court

may not override a jury recommendation of

life imprisonment if the jury recommendation

has a reasonable basis. Hall v. State, 541

So.2da 1125, 1128 (Fla.1989). In this case,

the -nonstatutory mitigation would have

furnished such a reasonable basis for a life

recommendation.

The State in its Petition to this Court now for the first

time challenges the Eleventh Circuit’s conclusion that Johnson

error occurred ("The Circuit Court’s characterization of the

evidence regarding aggravated assault as materially inaccurate,

is incorrect." Petition at 14). However, in its Answer Brief

before the Eleventh Circuit the State captioned its argument in

the following fashior: "THE SUBSEQUENT INADMISSIBILITY OF A PRIOR

CONVICTION USED TO SATISFY AN AGGRAVATING FACTOR DID NOT RESULT

IN AN UNCONSTITUTIONAL SENTENCE AS THERE REMAINED SUFFICIENT

EVIDENCE TO SUSTAIN THE EXISTENCE OF THAT AGGRAVATING FACTOR."

(Answer Brief at 12). Before the Eleventh Circuit, the State of

Florida agreed that the prior conviction of aggravated assault

with intent to kill was erroneously admitted at the penalty phase

proceeding in violation of Johnson v. Mississippi. Since a

challenge to whether Johnson error occurred was not presented to

the Eleventh Circuit, it cannot be presented to this Court in a

petition seeking certiorari review. Carter v. Kentucky, 450 U.S.

288, 304 (1981).

The issue before the Eleventh Circuit was simply whether the

Johnson error was harmless beyond a reasonable doubt. In the

Eleventh Circuit, the State of Florida agreed that an independent

review of the error’s harmlessness was to be conducted by that

court. The State of Florida argued that the error was harmless

beyond a reasonable doubt because the aggravating factor that the

evidence supported was also supported by other evidence;

therefore, the aggravator still applied. The Eleventh Circuit

disagreed with that analysis because the jury did not weigh

circumstances in a vacuum. Under Florida law, the evidence

supporting the circumstances affects the weight allotted to

individual aggravating circumstances by the sentencing jury.

The jury instructions supported.the Eleventh Circuit’s

analysis. The jury was told: "Before you ballot you should

carefully weigh, sift and consider the evidence, and all of it,

realizing that human life is at stake, and bring to bear your

best judgment in reaching your advisory sentence." (R. 1799).

Thereafter, while deliberating, the jury requested to hear for a

second time the prior convictions read to it. See Duest v.

Singletary, 967 F.2d at 481. Only then was a seven to five death

recommendation returned. Thus, the Eleventh Circuit could not

conclude the error was harmless beyond a reasonable doubt.

The State of Florida argued in the Eleventh Circuit that Mr.

Duest’s argument “stresses the importance of the mitigating

evidence and fails to discuss or challenge the strength of the

aggravating factors that still remain." Answer Brief at 11.

However, as explained in Stringer v. Black, 112 S. Ct. 1130

(1192), and Clemons v. Mississippi, 110 S. Ct. 1441 (1990),

Eighth Amendment error in a penalty phase proceeding conducted in

a weighing state requires consideration of the impact of the

error on the balance struck by the scales that the jury used.

The Eleventh Circuit’s analysis is a straight-forward application

of the harmless-beyond-a-reasonable-doubt standard. The Eleventh

Circuit considered the mitigation which rested on the life side

of the scale. It reached the conclusion that the removal of a

piece of the evidence placed on the death side of the scale may

have altered the balance that the jury found. This was

particularly true in light of the jury’s request to have the

erroneously admitted evidence heard a second time before

returning with a death recommendation, and in light of the

closeness of the vote. Certainly, the State of Florida had

failed to prove that the Johnson error was harmless beyond a

reasonable doubt. The Eleventh Circuit’s conclusion was proper.

The Eleventh Circuit’s straightforward application of the

harmless error standard adopted in Clemons and Stringer does not

warrant certiorari review.

CONCLUSION

For the reasons set forth, the Petition for Writ of

Certiorari should be denied.

I HEREBY CERTIFY that a true copy of the foregoing Brief in

Opposition has been furnished by United States Mail, first class

postage prepaid, to all counsel of record on February 2, 1993.

LARRY HELM SPALDING

Capital Collateral Representative

Florida Bar No. 0125540

MARTIN J. MCCLAIN

Chief Assistant CCR

Florida Bar No. 0754773

OFFICE OF THE CAPITAL COLLATERAL

REPRESENTATIVE

1533 South Monroe Street

Tallahassee, Florida 32301

(904) 487-4376

‘eo

By:

Counsel for Petitioner

Copies furnished to:

Celia Terenzio

Assistant Attorney General

Palm Beach County Regional Service Center

111 Georgia Avenue, Room 204

West Palm Beach, Florida 33401

APPENDIX

mm, 7 - ; }

’

IN THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 90-6009

LLOYD DUEST,

Petitioner-Appellant,

versus

HARRY K. SINGLETARY, Secretary,

Florida Department of Corrections,

Respondent~Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

INITIAL BRIEF OF APPELLANT

LARRY HELM SPALDING

Capital Collateral Representative

MARTIN J. MCCLAIN

Chief Assistant CCR

GAIL E. ANDERSON

Assistant CCR

OFFICE OF THE CAPITAL COLLATERAL

REPRESENTATIVE

1533 South Monroe Street

Tallahassee, Florida 32301

(904) 487-4376

COUNSEL FOR PETITIONER-APPELLANT

Preference: Habeas Corpus

Rule 11(a) (3).

CERTIFICATE OF INTERESTED PARTIES

District Court Judge:

The Honorable Kenneth L. Ryskamp

United States District Court for the Southern District of Florida

Appellate and Post-Conviction Attorneys:

Martin J. McClain, Judith J. Dougherty and Gail E. Anderson

Florida Office of the Capital Collateral Representative

Counsel for Petitioner/Appellant

Attorneys at Law

Celia Terenzio

Office of the Florida Attorney General

Counsel for Respondent/Appellee

Petitioner/Appellant: Lloyd Duest

Respondent/Appellee: Harry K. Singletary

Decedent: John Pope

PRELIMINARY STATEMENT

References to the district court record follow the procedure

authorized by this Court, i.e., "R. (Vol. #) - (Doc. #) - (Page

#)." References to the appendix to the habeas corpus petition

shall be cited as "App. __." References to the trial transcript

and the record on appeal of Mr. Duest’s state court trial and

sentencing proceedings shall be cited as "R. (Page #)."

References to the evidentiary hearing transcript and the post-

conviction record on appeal of Mr. Duest’s state court post-

conviction proceedings shall be cited as "PC R. (Page #)." Other

references to specific items in the record are self-explanatory,

or are otherwise explained. Record excerpts accompany this brief

and are submitted herewith for the Court’s review.

STATEMENT REGARDING PREFERENCE

This is an appeal from the denial of a petition for a writ

of habeas corpus, pursuant to 28 U.S.C. Section 2254, by the

United States District Court for the Middle District of Florida.

The district court issued a certificate of probable cause to

appeal. Preference in the processing and disposition of this

case is based upon Rule 11, Rules of the United States Court of

Appeals for the Eleventh Circuit, Appendix 1(a) (3).

REQUEST FOR ORAL ARGUMENT \

Mr. Duest respectfully requests the opportunity to present

oral argument pursuant to Rule 22(f)(4) of the rules of this

Court, given the facts that this is a capital case, that the

resolution of the issues presented will determine whether

petitioner will live or die, and that a complete understanding of

the complex factual, legal and procedural history of this case is

critical to the proper disposition of this appeal.

STATEMENT OF JURISDICTION

This is an appeal from a District Court’s order denying

relief on a petition for a writ of habeas corpus. Timely notice

of appeal was filed. A certificate of probable cause has been

granted. The Court’s jurisdiction rests on 28 U.S.C. 2253.

—eEeoOw el ——

: =e oe - a

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PARTIES . . .. +. «© «© © © © © © « i

PRELIMINARY STATEMENT . . -« «© © © © © © © © © © © © © © 0 tf i

STATEMENT REGARDING PREFERENCE ..... + © «© © «© «© «© «© « « ii

REQUEST FOR ORAL ARGUMENT . . . «© © © © © © © © © © © © © @ @©6 hd

STATEMENT OF JURISDICTION ...... he 4, 6 5.2 8 6 4 Se 6 ii

pe ee ee ee er ee ee ee ree |: |

TABLE OF AUTHORITIES .. + 2+ se se eevee e ee ee 2 Vv

STATEMENT OF THE CASE AND PROCEDURAL HISTORY ........ 2

STANDARD OF REVIEW .. +. +++ 2+ c« © © © © © © © © © © © 2 8

ARGUMENT I

THE WITHHOLDING OF MATERIAL EXCULPATORY EVIDENCE AND THE

INTRODUCTION OF FALSE AND MISLEADING EVIDENCE VIOLATED MR.

DUEST’S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH

eee a ee ee Se ee ee et ee ee ee ec ee ee

ARGUMENT ITI

MR. DUEST’S SENTENCE OF DEATH WAS BASED UPON AN UNCONSTITU-

TIONALLY OBTAINED PRIOR CONVICTION AND THEREFORE ALSO ON

MISINFORMATION OF CONSTITUTIONAL MAGNITUDE IN VIOLATION OF THE

EIGHTH AND FOURTEENTH AMENDMENTS .... + + © «© © © «© «© «© « 22

ARGUMENT III

MR. DUEST WAS DENIED A MEANINGFUL AND INDIVIDUALIZED CAPITAL .

SENTENCING DETERMINATION DUE TO COUNSEL’S UNREASONABLE FAILURE TO

CONDUCT INDEPENDENT INVESTIGATION, AND FAILURE TO PRESENT

COMPELLING MITIGATION, IN VIOLATION OF THE SIXTH, EIGHTH AND

FOURTEENTH AMENDMENTS. .. + + © © © © © © © © © © © © «© « « 37

ARGUMENT IV

MR. DUEST WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF

COUNSEL BY COUNSEL’S FAILURE TO OBJECT TO OR ATTEMPT TO RESTRAIN

THE PROSECUTOR FROM INJECTING HIS OWN OPINIONS AND EXPERIENCE,

REFERRING TO MATTERS NOT IN EVIDENCE, MISSTATING EVIDENCE AND

TESTIMONY, AND ARGUING NON-STATUTORY AGGRAVATING FACTORS. . . 72

iii

ARGUMENT V

THE FAILURE TO HOLD AN EVIDENTIARY HEARING ON THE ASPECTS OF mR.

DUEST’S BRADY CLAIM THAT THE STATE COURTS SUMMARILY DENIED WAS

ERROR. . . . . . . . . . . . . . . . . . . . > . . . . a 3

ARGUMENT VI

LLOYD DUEST WAS DEPRIVED OF HIS FIFTH, SIXTH, EIGHTH, AND

FOURTEENTH AMENDMENT RIGHTS BECAUSE HE WAS NOT PROVIDED WITH

EFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL. ...... 87

ARGUMENT VII

MR. DUEST’S CONVICTION VIOLATES DUE PROCESS OF LAW BECAUSE THE

EVIDENCE WAS INSUFFICIENT TO CONVINCE ANY RATIONAL TRIER OF FACT

OF HIS GUILT BEYOND REASONABLE DOUBT. . .... + + 2+ « « « « 89

ARGUMENT VIII

THE SENTENCING JURY RECEIVED INSUFFICIENT INSTRUCTIONS AT THE

PENALTY PHASE IN VIOLATION OF HITCHCOCK V. DUGGER. ..... 90

ARGUMENT IX

MR. DUEST WAS DENIED HIS RIGHT TO A FAIR TRIAL BY AN IMPARTIAL

JURY WHEN THE STATE INTRODUCED EVIDENCE OF FLIGHT AND EVIDENCE OF

MR. DUEST’S USE OF AN ALIAS, IN VIOLATION OF THE FIFTH, SIXTH,

EIGHTH AND FOURTEENTH AMENDMENTS. . . . «© «© «© © © «© © © «© «© « 93

ARGUMENT X

TRIAL COURT COMMENTS AND INSTRUCTIONS THAT A VERDICT OF LIFE

IMPRISONMENT HAD TO BE RENDERED BY A MAJORITY OF THE JURY

MATERIALLY MISLEAD THE JURY AND CREATED THE CONSTITUTIONALLY

UNACCEPTABLE RISK THAT DEATH MAY HAVE BEEN IMPOSED DESPITE

FACTORS CALLING FOR LIFE, IN VIOLATION OF THE EIGHTH AND

FOURTEENTH AMENDMENTS. . . + © © © © © © © © © © © © © © «© «© 97

ARGUMENT XI

MR. DUEST’S SENTENCE OF DEATH VIOLATES THE FIFTH, SIXTH, EIGHTH,

AND FOURTEENTH AMENDMENTS BECAUSE THE PENALTY PHASE JURY

INSTRUCTIONS SHIFTED THE BURDEN TO MR. DUEST TO PROVE THAT DEATH

WAS INAPPROPRIATE AND BECAUSE THE SENTENCING JUDGE EMPLOYED THIS

IMPROPER STANDARD. ... +++ © © © © © © © © © © © © © © © 98

CONCLUS I ON . . . . > . . . . * . . >. oe . . . . . . . . > . > 9 9

TABLE OF AUTHORITIES

487 So. 24 8 (Fla. 1986) .......

386 U.S. 738 (1967)

833 F.2d 1430 (11th Cir. 1987)...

431 U.S. 63 (1977) ....

431 U.S. 63 (1977)

758 F.2d $23 (11th Cir. 1985)

373 U.S. 83 (1963)

$31 F.2d 1547 (11th Cir. 1987)

526 So. 24 908 (Fla. 1988)

$22 So. 24 810 (Fla. 1988)

111 S. Ct. 862 (1991)

111 S. Ct. 862 (1991) .

472 U.S. 320 (1985) .

421 F.2d 636 (Sth Cir. 1970)

907 F.2d 825 (ath Cir. 1990) (en banc)

’

730 F.2d 1334 (10th Cir. 1984)

386 U.S. 18 (1967) oe ee

44,

14,

10,

98,

568 So. 24 908 (Fla. 1990)

634 F.2d 1561 (11th Cir. 1987)

479 F.2d 319 (6th Cir. 1973)

110 S. Ct. 1441 (1990)

$47 So. 2d 528 (Fla. 1989)

725 F.2d 1316 (11th Cir. 1984)

26 Mass. App. Ct. 137 (1988)

’

So. 2d » 16 F.L.W. 5375

(Fla. May 9, 1991)

682 F.2d 1373 (11th Cir. 1982)

442 U.S. 140 (1979)

929 F.2d 640, 644-45 (11th Cir. 1991

928 F.2d 1006 (1ith Cir. 1991)

596 F.2d 1214 (Sth Cir. 1979),

vacated as moot, 446 U.S. 903 (1980)

479 F.2d 446 (Sth Cir. 1973)

890 F.2d 285 (llth Cir. 1989)

’

874 F.2d 1385 (lith Cir. 1989)

’

520 So. 2d 260 (Fla. 1988) .

’

555 So. 2d 849 (Fla. 1990)

’

555 So. 2d 849 (Fla. 1990)

Ss ’

555 So. 2d 849 (Fla. 1990)

462 So. 2d 446 (Fla. 1985)

¥ ’

823 F.2d 1439 (11th Cir. 1987)

Vv ’

346 So. 2d 998 (Fla. 1977)

vi .

469 U.S. 387 (1985)

Vv ’

507 So. 2d 1373 (Fla. 1987)

Giglio v. United States,

405 U.S. 150 (1972)

Grizzel]_v. Wainwright,

692 F.2d 722 (11th Cir. 1983)

’

541 So. 2d 1125 (Fla. 1989)

’

560 So. 2d 223 (Fla. 1990) .

‘

546 So. 2d 1039 (Fla. 1989).

Hamilton v. State,

547 So. 2d 630 (Fla. 1989)

¥. ;

832 F.2d 1528 (11th Cir. 1987)

vii

’

874 F.2d 756 (11th Cir. 1989)

’

880 F.2d 1279 (11th Cir. 1989)

‘

107 S. Ct. 1821 (1987) .

481 U.S. 383

481 U.S. 393

(1987)

’

522 So. 2d 348 (Fla. 1988)

’

837 F.2d 1469 (11th Cir.

cert. denied, 108 S. Ct.

v ,

931 F.2d 712 (11th Cir.

’

931 F.2d 712 (11th Cir.

4 ,

433 U.S. 307 (1979)

~— eit

443 U.S. 307 (1979)

’

108 S. Ct. 1981 (1988)

’

867 F.2d 1277 (11th Cir. 1989)

477 U.S. 365

’

863 F.2d 705

’

438 U.S. 586

824 F.2d 879

’

(1986)

(iiGh Cir.

(1978)

(11th Cir.

1988),

2005 (1988)

1991)

1988)

1987)

viii

43,

30,

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. 3 .

. ,

. "

‘ i

_—

“

’

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* * To

ae ee, ee S a crttt

’

844 F.2d 1446 (11th Cir. 1988) (en banc),

cert. denied, 109 S. Ct. 1353 (1989)

’

760 F.2d 1244 (11th Cir. 1985)

j v. W >

811 F.2d 1430 (11th Cir. 1987)

W ’

723 F.2d 799 (11th Cir. 1984)

= ’

108 S. Ct. 1853 (1988) .

’

523 So. 24 573 (Fla. 1988) ....

Vv ’

849 F.2d 491 (11th Cir. 1988).

Miller v. Pate,

386 U.S. 1 (1967) ..

Mullaney v. Wilbur,

San ems One 14078). . 2 ek

Ni Vv w ,

888 F.2d 112 (11th Cir. 1989) ae ae ae

V. ’

109 S. Ct. 2934 (1989)

Vv ’

109 S. Ct. 2934, 2951-52 (1989)

x ’

03 ©. CEs 34 (2989) «© « « es ee ts

’

441 So. 2d 1073 (Fla. 1983)

Preston v. State,

564 So. 2d 120 (Fla. 1990) ...

Proffitt v. Florida,

een U.e. Bee (2976) =. 3

Rhodes _v

’

547 So. 2d 1201 (Fla. 1989) .. .

44,

’

829 F.2d 1501 (10th Cir. 1987) ...

’

511 So. 2d 526 (Fla. 1987)

’

474 So. 2d 1170 (Fla. 1985)

’

848 F.2d 1512 .ith Cir. 1988) ...

476 U.S. 1 (1986) .... 2 «© « « «

’

799 F.2d 1442 (11th Cir. 1986)

’

901 F.2d 898 (11th Cir. 1990) (in banc)

’

283 So. 24 1 (Fla. 1973) . . ..«e «

’

846 F.2d 642 (llth Cir. 1988).

466 U.S. 668 (1984) ....

W ’

466 U.S. 668 (1984) ....+2. «

’

287 U.S. 359 (1931) .....-s.

’

873 F.2d 249 (11th Cir. 1989)

’

No. 74,260 (Fla. June 27, 1991) ...

’

852 F.2d 424 (9th Cir. 1988) ..

’

796 F.2d 1322 (11th Cir. 1986) ...

Ww ’

Bee UeSe ‘29 (23963) «© © e es 2 oe © @

a ep ok a

’

372 U.S. 293, 315-16 (1963) ..

’

473 So.2d 1235 (Fla. 1985) ...

= ’

531 F.2d 1278 (Sth Cir. 1979) .

’

105 S. Ct. 3375 (1985) ...

’

473 U.S. 667 (1985) .....

’

700 F.2d 1310 (10th Cir. 1983)

- ’

466 U.S. 648 (1984) ..

’

878 F.2d 702 (3rd Cir. 1989)

’

502 So. 2d 1225 (Fla. 1987)

’

708 F.2d 954 (5th Cir. 1983)

’

565 So. 2d 700 (Fla. 1990)...

Vv ’

849 F.2d 1134 (8th Cir. 1988) .

25,

STATEMENT OF THE ISSUE

I. Whether the withholding of material exculpatory

evidence and the introduction of false and misleading evidence

violated Mr. Duest’s rights under the fifth, sixth, eighth and

fourteenth amendments.

II. Whether Mr. Duest’s sentence of death was based upon an

unconstitutionally obtained prior conviction and therefore also

on misinformation of constitutional magnitude in violation of the

eighth and fourteenth amendments.

III. Whether Mr. Duest was denied a meaningful and

individualized capital sentencing determination due to counsel’s

unreasonable failure to conduct independent investigation, and

failure to present compelling mitigation, in violation of the

sixth, eighth and fourteenth amendments.

IV. Whether Mr. Duest was deprived of his right to

effective assistance of counsel by counsel’s failure to object to

or attempt to restrain the prosecutor from injecting his own

opinions and experience, referring to matters not in evidence,

misstating evidence and testimony, and arguing non-statutory

aggravating factors.

Vv. Whether the failure to hold an evidentiary hearing on

the aspects of Mr. Duest’s brady claim that the state courts

summarily denied was error.

VI. Whether Lloyd Duest was deprived of his fifth, sixth,

eighth, and fourteenth amendment rights because he was not

provided with effective assistance of counsel on direct appeal

VII. Whether Mr. Duest’s conviction violates due process of

law because the evidence was insufficient to convince any

rational trier of fact of his guilt beyond reasonable doubt.

VIII. Whether the sentencing jury received insufficient

instructions at the penalty phase in violation of hitchcock v.

Dugger.

IX. Whether Mr. Duest was denied his right to a fair trial

by an impartial jury when the state introduced evidence of flight

and evidence of Mr. Duest’s use of an alias, in violation of the

fifth, sixth, eighth and fourteenth amendments.

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X. Whether trial court comments and instructions that a

verdict of life imprisonment had to be rendered by a majority of

the jury materially mislead the jury and created the

constitutionally unacceptable risk that death may have been

imposed despite factors calling for life, in violation of the

eighth and fourteenth amendments.

XI. Whether Mr. Duest’s sentence of death violates the

fifth, sixth, eighth, and fourteenth amendments because the

penalty phase jury instructions shifted the burden to Mr. Duest

to prove that death was inappropriate and because the sentencing

judge employed this improper standard.

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

On May 21, 1982, Mr. Duest was charged by indictment with

the first degree murder of John Pope in Ft. Lauderdale, Florida.

Mr. Duest was tried before a jury in March, 1983. The jury

returned a guilty verdict on March 18, 1983, after deliberating

“very late on a Friday night” (PC R. 179). The next day the

penalty phase proceeding was conducted. The jury returned a

death recommendation by a seven to five vote after asking for the

judge to reread Mr. Duest’s prior convictions (R. 1631). At the

sentencing on April 24, 1983, Mr. Duest was sentenced to death.

The central issue at trial was whether Lloyd Duest was

"Danny", the person in whose company Mr. Pope had last been seen

alive. The State called witnesses who had met and partied with

"Danny" during the Presidents’ Day weekend in 1982 when Mr. Pope

was killed. The State’s witnesses acknowledged their

considerable use of alcohol and illegal drugs during the brief

time period that they saw and were familiar with "Danny" (R.

705). The witnesses identified Mr. Duest as being "Danny"

although there were differences in his physical appearance:

Lloyd Duest wore glasses; "Danny" did not. "“Danny’s" hair was

longer than Mr. Duest’s. "Danny" may have had a moustache (R.

696, 749, 784, 958, 961).

Mr. Pope was last seen alive at about 3:00 p.m. on Monday,

February 15, 1982, which was Presidents’ Day. He was in Lefty’s,

a gay bar in Ft. Lauderdale (R. 567). He was seen leaving in the

company of "Danny". Mr. Pope was also seen in a gold Camaro with

"Danny" at about 3:00 p.m. at the apartment where "Danny" had

left his belongings (R. 940-42). At 3:30 p.m., "Danny" was seen

driving the gold Camaro alone (R. 665). At 8:00 p.m., Mr. Pope

was found dead by his roommate and a neighbor (R. 522).

In his defense, Mr. Duest called numerous witnesses who

testified that Mr. Duest was in Massachusetts during Presidents’

Day weekend of 1982. Nancy Duest, Lloyd Duest’s mother,

testified she saw Lloyd in Watertown, Massachusetts on February

13th. She again saw Lloyd on March 12, 1982. She further stated

that she and her husband took Lloyd to the bus station in Boston

on April 5, 1982, which was when Lloyd left Massachusetts bound

for Florida (R. 1192-95).

Richard Duest, Lloyd’s father, testified he saw Lloyd on

Pebruary 15th, while he was cleaning his van in Watertown,

Massachusetts. Lloyd delivered to him auto parts and a receipt

for purchases made at Suburban Auto Parts (R. 1231-36). Stephen

Fralick, owner of Suburban Auto Parts, testified he knew Lloyd

Duest. On February 15th, Lloyd purchased a fan belt from Mr.

Fralick (R. 1947-55).

Debra Duest, Lloyd’s sister, testified she saw Lloyd on

February 15th in Watertown, Massachusetts. She was having a

dinner party at her house. Present were her fiance, sister,

brother-in-law, and sister-in-law. Lloyd dropped by briefly, but

did not have dinner with them (R. 1018-20). Paul Duest, Lloyd’s

brother, testified about seeing Lloyd at Debra’s dinner party on

February 15, 1982 (R. 1073-76). Eddie Lavache, Debra’s fiance,

testified he recailed seeing Lloyd at Debra’s dinner party on

February 15, 1982 (R. 1915-18). Nancy Kerrigan, Lloyd’s other

sister, testified she was present at Debra’s house when Lloyd

stopped by on February 15, 1982 (R. 1992-98).

Matthew and Diane Turner, friends of Lloyd, both testified

that they saw Lloyd in Watertown on February i4, 1982,

Valentine’s Day (R. 1863-66, 1887-90). Frank Duest, Lloyd’s

uncle, testified he saw Lloyd on February 15, 1982, in Watertown

(R. 1095-1102). Mark Duest, Lloyd’s cousin and Frank’s son,

testified he was present with Frank when they saw Lloyd on

February 15, 1982, in Watertown, Massachusetts (R. 1116-19) .!

Deputy Feltgen, who had interrogated Mr. Duest when he was

arrested April 18, 1982, testified for the State that Mr. Duest

told him that he arrived in Ft. Lauderdale approximately a week

before via a Trailways bus (R. 877). Deputy Feltgen further

‘at the state post-conviction proceedings, Mr. Duest’s trial

counsel testified that since Mr. Duest was an escapee at the time,

police were frequently checking his family’s residence for signs of

Mr. Duest. Mr. Duest "was moving all around the area" which explained

why his witnesses "would only see Mr. Duest for five minutes here and

five minutes there on this weekend" (PC-R. 170). However, the jury

did not know that Mr. Duest was an escapee at the time, and thus the

State was able to argue that the testimony regarding Mr. Duest’s brief

"cameo" appearances was incredible. 4

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testified that law enforcement attempted to verify whether mr.

Duest had in fact arrived a week or so before via a Trailways

bus, but evidence supporting Mr. Duest’s claim could not be

located (R. 887-88, 895) .?

In his closing argument, the prosecutor argued that Mrs.

Duest had deliberately or otherwise confused dates, and that she

and her husband had taken Lloyd to the Trailways bus station on

February 12th and not April 5th. According to the prosecutor,

Lloyd travelled to Florida in early February, not on April 5th,

and killed Mr. Pope on February 15th (R. 1403-05) .?

Unbeknownst to the jury that convicted Lloyd Duest was the

State’s possession of Mr. Duest’s bus ticket issued April 5,

1982, showing travel from Boston to Ft. Lauderdale. This bus

ticket was contained in a manila envelope in the Lloyd Duest file

maintained by the Broward County Sheriff’s Office. The manila

envelope contained Lloyd Duest’s personal effects. The bus

ticket was not disclosed to Mr. Duest’s attorneys until November,

1989, six years after Mr. Duest’s trial. Duest v. Dugger, 555

So. 2d at 850.

At the penalty phase proceedings held Saturday, March 19,

*However, "({a]t the evidentiary hearing on the motion for post

conviction relief, it was developed that among Duest’s personal

effects contained in the police files was a bus ticket dated April

5, 1982, reflecting travel from Boston to Ft. Lauderdale." Duest

v. Dugger, 555 So. 2d 849, 850 (Fla. 1990). This bus ticket was

not disclosed to Mr. Duest’s trial counsel and belied Deputy

Feltgen’s testimony.

JaAgain, this argument was premised on false information. The

State had in its possession Mr. Duest’s bus ticket reflecting travel.

on April 5, 1982. Pe

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1983, the State introduced two judgments and sentences from

Massachusetts. The first one, State’s Exhibit No. 1, indicated

Mr. Duest had pled guilty to the charge of robbery. The offense

occurred in 1970 when Mr. Duest “did rob and steal from the

person of James Moore money of the property of First National

Stores, Incorporated" (R. 1574). The second one, State’s Exhibit

No. 2, indicated Mr. Duest “armed with a dangerous weapon, did

assault Herbert McSheehy and Les Iacopucci ... with intent to

murder them" (R. 1575).‘ The prosecutor argued that these

convictions together established Mr. Duest’s history of violence

(R. 1592).

The defense called Lloyd’s father, mother, sister and wife

to testify regarding Lloyd’s character and background. As the

State and the trial court conceded on January 4, 1990, at the

Rule 3.850 evidentiary hearing, a wealth of nonstatutory

mitigation was presented to the jury. The State acknowledged,

"there was plenty of nonstatutory mitigating evidence present"

(PC R. 121). The sentencing judge indicated, "I m2an I heard all

of that. I think I have to say I considered it" (PC R. 122).

The jury was instructed to "weigh the aggravating

circumstances against the mitigating circumstances, and your

advisory sentence must be based on these considerations" (R.

1628, After the jury retired to deliberate on its sentencing

recommendation, the jury sent word to the trial judge that it

‘In 1988, this conviction for attempted murder was vacated by the

Massachusetts courts and nolle prossed.

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wished to inspect State’s Exhibits Numbers 1 and 2 which had been

previously read to the jury, but not furnished to it (R. 1631).

The judge then once again read the two judgments and sentences to

the jury (R. 1631-32). The judge noted that for the armed

assault with intent to murder Mr. Duest was sentenced to Walpole

(R. 1633). This had not been disclosed previously. When the

judge had finished, the jury again retired to deliberate further.

Subsequently, a death recommendation was returned by a seven to

five vote (R. 1633-34). Thereafter, a sentence of death was

imposed.

The judgment and sentence was affirmed by the Florida

Supreme Court. Duest v. State, 462 So. 2d 446 (Fla. 1985). On

February 19, 1987, Mr. Duest, through the Office of the Capital

Collateral Representative, filed a Rule 3.850 motion, seeking

post-conviction relief. On April 16, 1987, counsel amended the

motion. On December 19, 1989, having completed an inspection of

the State’s files and records, Mr. Duest filed a supplement to

the motion. In this supplement, Mr. Duest alleged discovery

violations which occurred at trial. This included Mr. Duest’s

Claim arising from the nondisclosure of his bus ticket.

On January 4, 1990, the judge ruled that a limited

evidentiary hearing would be conducted.’ Evidence would be

‘At the time, Mr. Duest’s case was “under warrant." Less than

two weeks were left before the scheduled execution. Counsel for

Mr. Duest had no notice before the January 4th hearing as to

whether an evidentiary hearing would be held. When the circuit

court determined an evidentiary hearing would be held, counsel was

ordered to immediately begin presenting evidence.

received as to penalty phase ineffective assistance of counsel.

The judge also ruled evidence would be received as to the

nondisclosure of the bus ticket, one aspect of the discovery

violation claim. Evidence was also received establishing that

Mr. Duest’s Massachusetts conviction for armed assault with

intent to murder had been vacated and subsequently nolle prossed.

All other claims were denied summarily. At the conclusion of the

hearing, the state judge found that the evidentiary hearing

Claims lacked merit. The Florida Supreme Court affirmed. Duest

v. Dugger, 555 So. 2d 849 (Fla. 1990).

On January 19, 1990, Mr. Duest filed a federal habeas

petition in federal district court. Thereafter, a stay of Mr.

Duest’s then scheduled execution was entered. On September 19,

1990, Judge Ryskamp summarily denied Mr. Duest’s petition.

Thereafter, a certificate of probable cause was issued, and this

appeal was perfected.

The facts involved in this action are complex and are

detailed more fully in the body of this brief, as they relate to

the individual claims discussed herein.

STANDARD OF REVIEW

This is a habeas corpus proceeding in which the state court

held a limited evidentiary hearing concerning parts of three of

Mr. Duest’s claims. The remaining claims were summarily denied.

In federal court, Judge Ryskamp refused to hold an evidentiary

hearing. The state court hearing included Mr. Duest’s claim of

ineffective assistance of counsel at sentencing. However, there

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were no state court factfindings whatsoever on that claim. Under

Townsend vy. Sain, 372 U.S. 293, 315-16 (1963), “{ujnless the

district judge can be reasonably certain that the state trier

would have granted relief had he believed petitioner’s

allegations," another evidentiary hearing must be held. Thus,

this Court must accept petitioner’s allegations as true as to the

penalty phase ineffective assistance claim and order an

evidentiary hearing if the allegations "could constitute

ineffective assistance." Code v. Montgomery. 725 F.2d 1316, 1321

(llth Cir. 1984).

Factfindings were made by the Florida Supreme Court

concerning Mr. Duest’s Brady claim regarding the undisclosed bus

ticket. That Court found non-disclosure of Mr. Duest’s bus

ticket reflecting his travel from Boston to Ft. Lauderdale

commencing April 5, 1982. The factual determinations must be

presumed to be correct. Burden v. Zant, 111 S. Ct. 862 (1991).

However, the question of prejudice is not one of historical fact,

but rather a mixed question. See United States v. Bagley, 473

U.S. 667, 682 (1985); Strickland v. Washington, 466 U.S. 668, 698

(1984). “Issues which are mixed questions of law and fact are

subject to independent review by (this Court)." aay a

760 F.2d 1244, 1247 (11th Cir. 1985).

Factual findings were made by the Florida Supreme Court that

Mr. Duest’s prior conviction for assault with intent to murder

had been vacated and nolle prossed. Accordingly, eighth

amendment error was found in the jury’s consideration of that

judgment and sentence. See Johnson v. Mississippi, 108 Ss. ct.

1981 (1988). The state court finding that the eighth amendment

error was harmless is a mixed question of law and fact subject to

independent review by this Court. Jackson v. Dugger, 931 F.2d

712 (11th Cir. 1991); Brown v. Dugger, 831 F.2d 1547, 1554 (11th

Cir. 1987); Grizzell v. Wainwright, 692 F.2d 722, 725 (11th Cir.

1983).

As to the remaining claims, no evidentiary developmert has

occurred. Accordingly, the allegations in the petition must be

taken as true for purposes of this appeal on the question of

whether evidentiary resolutions should have been allowed by the

district court. Blackledge v. Allison, 431 U.S. 63 (1977).

SUMMARY OF ARGUMENT

I. The State failed to disclose its possession of Mr.

Duest’s bus ticket reflecting travel from Boston to Ft.

Lauderdale on April 5, 1982. Despite defense counsel’s repeated

efforts to uncover the existence of evidence documenting Mr.

Duest’s travel by bus on April 5, 1982, the bus ticket was not

disclosed. The bus ticket was highly relevant to Mr. Duest’s

alibi defense. Mr. Duest presented eleven (11) witnesses tc

testify that he was in Massachusetts in February of 1982 at the

time of the homicide. These witnesses testified that Mr. Duest

left Massachusetts on April 5, 1982. The State countered that

the defense witnesses were lying and that Mr. Duest boarded the

bus on February 12, 1°82, and arrived in Ft. Lauderdale in time

to commit the February 15, 1982, homicide. However, the

undisclosed bus ticket corroborated the defense witnesses’

testimony and Mr. Duest’s statement to the police when he was

arrested. The bus ticket impeached the police testimony that

there was no evidence that Mr. Duest traveled from Boston to Ft.

Lauderdale on April 5, 1982. As a result, the nondisclosure

undermines confidence in the outcome of Mr. Duest’s trial.

II. At the penalty phase of Mr. Duest’s capital trial, the

State introduced two (2) prior convictions in order to establish

the aggravating circumstances regarding previous conviction of a

crime of violence. The prior crimes were robbery and armed

assault with intent to murder. The latter identified two (2)

victims. The jury before returning a 7-5 death recommendation

asked the judge to reread the prior convictions. In 1988, the

armed assault with intent to murder was vacated and nolle

prossed. As a result, the jury heard materially inaccurate

evidence in violation of the eighth amendment. Because the jury

was required to weigh the aggravation against the mitigation, the

improper consideration of aggravation cannot be shown to be

harmless beyond a reasonable doubt where the State has conceded

“plenty” of mitigation was presented to the jury.

III. Mr. Duest was deprived of the effective assistance of

counsel at the penalty phase. Trial counsel unreasonably failed

to investigate and prepare, neglecting to obtain records

regarding Mr. Duest’s life, neglecting to explain the purpose of

penalty phase testimony to family members or to ask questions

regarding family history and the abuse Mr. Duest suffered as a

child, and neglecting to provide essential background material to

a mental health expert in order to assure a professionally

thorough evaluation on issues relevant to mitigation. Counsel’s

omissions prejudiced Mr. Duest, as the jury and judge did not

hear substantial evidence from lay and expert witnesses regarding

the abuse Mr. Duest endured as a child, his significant substance

abuse, and the effects of imprisonment at a young age. The state

circuit court held an evidentiary hearing on this claim, but make

no factfindings at all. The Florida Supreme Court also made no

factfindings. When the state courts make no factfindings on an

evidentiary issue, the district is required to hold an

evidentiary hearing. Townsend v. Sain. An evidentiary hearing

and relief are proper.

IV. The prosecutor’s arguments at both the guilt and

penalty phases injected irrelevant, misleading, inaccurate, and

inflammatory considerations into the jury’s deliberations. Trial

counsel ineffectively made no objections to any of these

arguments. In light of the jury’s difficulty in reaching a

guilty verdict and its close 7-to-5 vote for death at the penalty

phase, counsel’s f‘lure prejudiced Mr. Duest. An evidentiary

hearing and relief are proper.

¥. In addition to the Brady allegation regarding the bus

ticket, Mr. Duest alleged numerous other Brady violations.

Neither the state courts nor the district court allowed an

evidentiary hearing on these allegations. Since the allegations

are not palpably frivolous or false, an evidentiary hearing was

required in the district court.

VI. Mr. Duest was deprived of the effective assistance of

counsel on direct appeal because counsel unreasonably failed to

raise significant issues, to Mr. Duest’s substantial prejudice.

VII. Since the evidence at trial was insufficient to

establish premeditated murder, Mr. Duest’s conviction violates

due process.

VIII. The jury was not instructed on the limiting

construction of the heinous, atrocious or cruel aggravating

circumstance, and the application of this aggravator thus

violates the eighth and fourteenth amendments.

IX. The erroneous admission of evidence regarding Mr.

Duest’s flight and use of an alias when that flight and alias

were at least as likely the result of Massachusetts charges

pending against Mr. Duest as they were the result of his being

questioned about the homicide violated due process.

X. The trial court’s erroneous comments and instructions

that the jury was required to reach a majority decision at the

penalty phase misinformed and misled the jury. In light of the

jury’s 7-to-5 death vote, it cannot be said that the error had no

effect upon the outcome.

XI. The penalty phase jury instructions shifted the burden

to Mr. Duest to prove that life was the appropriate sentence.

ARGUMENT I

THE WITHHOLDING OF MATERIAL EXCULPATORY EVIDENCE AND THE

INTRODUCTION OF FALSE AND MISLEADING EVIDENCE VIOLATED MR.

DUEST’S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH

AMENDMENTS.

The State had in its possession Mr. Duest’s bus ticket

reflecting his travel from Boston to Ft. Lauderdale on April 5,

1982. This ticket corroborated the testimony of Mr. Duest’s

alibi witnesses. The ticket was not turned over to the defense.

This evidence should have been revealed to defense counsel and

presented to the jury. The failure to allow the jury to consider

this evidence prevented them from rendering a reliable

determination of Mr. Duest’s guilt and the appropriateness of a

sentence of death. Because this evidence did not reach the jury,

there was a failure of the adversarial process.

This case involves a clear violation of Brady v. Maryland,

373 U.S. 83 (1963). The Florida Supreme Court determined that

non-disclosure of Mr. Duest’s bus ticket occurred. The question

for this Court is whether a reversal of Mr. Duest’s conviction is

required. In other words, the question is whether the State’s

non-disclosure of the bus ticket prejudiced Mr. Duest.

From the moment of his arrest, Lloyd Duest maintained that

he had traveled to Florida via a Trailways bus which departed

Boston on April 5, 1982, almost two months after tlie offense. He

further maintained that at the time of his arrest, he had a bus

ticket in his possession. Throughout pretrial discovery, when

the defense attempted to ascertain the existence of such a

ticket, the State denied any knowledge of any personal property

seized from Mr. Duest (Deposition of Rene Robes, July 15, 1982:

"Q. And was anything of his personal property taken into

evidence that you felt was important? A. Just for safekeeping"

Page 18. "Q. You don’t have any other personal belongings

within your custody? A. No" Page 19.

The State’s circumstantial evidence case was premised upon

Mr. Duest being in Ft. Lauderdale on President’s Day weekend,

1982. Mr. Duest presented an alibi defense. He called eleven

(11) witnesses to testify that he was in Massachusetts in

February and March of 1982, and that he left Boston,

Massachusetts, on April 5, 1982, via a Trailways bus bound for

Florida. The State responded at trial to this evidence by

calling Deputy Feltgen. He testified that law enforcement

personnel attempted to verify Mr. Duest’s arrival via a Trailways

bus in early April of 1982, but could uncover no physical

evidence to support Mr. Duest’s claim (R. 887-88, 895).° The

prosecutor in his closing argument focused upon the absence of

physical evidence to support Mr. Duest’s claim that he left

Boston for Florida on April 5, 1982. Mr. Garfield suggested that

Mr. Duest’s mother had taken Mr. Duest to the bus station in

early February and not on April 5 (R. 1403, 1405).

The prosecutor and the police misrepresented facts known to

the State. When Mr. Duest was arrested, he did in fact have a

bus ticket in his possession documenting that he had left Boston

‘This testimony was misleading on another score. It implied that

the police had contacted the bus company and after a search, could

find no evidence confirming Mr. Duest’s claim. However, in fact, a

deputy had simply gone to the bus station but was unable to determine

which bus locker was Mr. Duest’s. The deputy was thus unable to

either confirm or deny Mr. Duest’s statement (Deposition of Rene Robes

at 17). At the post-conviction evidentiary hearing, Deputy Feltgen

testified, "I do recall there was a bus ticket" (PC R. 201).

on April 5, 1982, as he contended. This bus ticket was taken

from Mr. Duest at the time of his arrest and held by the Broward

County Sheriff’s Department. This critical evidence, which would

have corroborated his alibi and the veracity of his witnesses,

was never provided to the defense.

Further, at trial the State rebutted the alibi defense by

presenting testimony that officers had in fact investigated

whether Mr. Duest had traveled to Florida on April 5, 1982. This

testimony left the judge and jury with the clear impression that

the investigation had proved fruitless. Again, this was contrary

to the facts known to the State. The State had in its possession

the bus ticket, which established that Mr. Duest indeed had

traveled to Florida on April 5, 1982.

Mr. Duest presented this claim in state court, and an

evidentiary hearing was held. The Florida Supreme Court made

several factual findings as to this claim:

At the evidentiary hearing on the motion for

postconviction relief, it was developed that among

Duest’s personal effect contained in the police files

was a bus ticket dated April 5, 1982, reflecting travel

from Boston to Fort Lauderdale. The existence of this

ticket was unknown to the prosecutor and had not been

disclosed to the defense as part of discovery. Duest

contended that had he known of the existence of this

ticket, he could have introduced it into evidence at

the trial in order to corroborate the testimony of his

mother and father that they put him on the bus in

Boston en route to Florida on April 5, 1982.

Duest v. Dugger, 555 So. 2d 849, 850 (Fla. 1990). The facts set

forth by the Florida Supreme Court are “determination(s) of

historical fact ‘presumed to be correct’ for purposes of a

federal habeas proceeding.” Burden v. Zant, 111 S. Ct. 862, 864

(1991).

The prosecution’s suppression of evidence favorable to the

accused violated due process. The prosecutor must reveal to

defense counsel any and all information that is helpful to the

defense, whether that information relates to guilt/innocence or

punishment, and regardless of whether defense counsel requests

the specific information. The Constitution provides a broaa.y

interpreted mandate that the State reveal anything that benefits

the accused, and the State’s withholding of information such as

occurred here renders a criminal defendant’s trial fundamentally

unfair. Brady v. Maryland, 373 U.S. 83 (1963). Here, these

rights, designed to prevent miscarriages of justice and ensure

the integrity of fact-finding, were abrogated:

A Brady violation occurs where: (1) the

prosecution suppressed evidence; (2) the evidence was

favorable to the defendant; and (3) the evidence was

material to the issues at trial. See United States v.

Burroughs, 830 F.2d 1574, 1577-78 (11th Cir. 1987,

cert. denied, 485 U.S. 969, 108 S.Ct. 1243, 99 L.Ed.2d

442 (1988). Suppressed evidence is material when

"there is a reasonable probability that... the

result of the proceeding would have been different" had

the evidence been available to the defense.

, 480 U.S. 39, 57, 107 S.Ct.

Pennsylvania v. Ritchie

989, 1001, 94 L.Ed.2d 40 (1987) (quoting

, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87

L.Ed.2d 481 (1985)) (plurality opinion of Blackmun, J.).

Stano v. Dugger, 901 F.2d 898, 899 (lith Cir. 1990) (in banc).

There can be little doubt that material evidence was

withheld in Mr. Duest’s case. The Florida Supreme Court found

nondisclosure of Mr. Duest’s bus ticket. Further, trial counsel

testified he would have used the ticket at trial had it been

disclosed: "It’s certainly something I would have presented" (PC

TT eee

R. 162). The undisclosed evidence was favorable to the defense.

In fact defense counsel had tried repeatedly to discover what

evidence the police had uncovered regarding Mr. Duest’s travel by

sus on April 5, 1982, from Boston to Ft. Lauderdale. The only

question under Stano is whether the evidence was material.

Material evidence is evidence of a favorable character for the

defense which may have affected the outcome of the

guilt-innocence and/or capital sentencing trial. Smith v.

Wainwright, 799 F.2d 1442 (11th Cir. 1986); Chaney v. Brown, 730

F.2d 1334, 1339-40 (10th Cir. 1984); Brady, 373 U.S. at 87.

The withheld evidence’s materiality may derive from any

number of characteristics of the suppressed evidence, ranging

from (1) its relevance to an important issue in dispute at trial,

to (2) its refutation of a prosecutorial theory, impeachment of a

prosecutorial witness, or contradiction of inferences otherwise

emanating from prosecutorial evidence, to (3) its support for a

theory advanced by the accused. Smith, supra; Miller v. Pate,

386 U.S. 1, 6-7 (1967). E.g., Davis v. Heyd, 479 F.2d 446, 453

(Sth Cir. 1973); Clay v. Black, 479 F.2d 319, 320 (6th Cir.

1973).

Materiality is established and reversal is required once the

reviewing court concludes that there exists "a reasonable

probability that had the [withheld] evidence been disclosed to

the defense, the result of the proceeding would have been

different." United States v. Bagley, 473 U.S. 667, 680 (1985).

However, it is not the defendant’s burden to show the

nondisclosure "(mjore likely than not altered the outcome in the

case." Strickland v. Washington, 466 U.S. 668, 693 (1984). The

Supreme Court specifically rejected that standard in favor of a

showing of a reasonable probability.’ A reasonable probability

is one that undermines confidence in the outcome. Such a

probability undeniably exists here.

The bus ticket, dated April 5, 1982, would have done several

things for the defense. First, it verified Mrs. Duest’s

testimony that she took Lloyd to the Trailways bus station in

Boston on April 5, 1982, so he could catch a bus to Florida. By

corroborating this portion of Mrs. Duest’s testimony, it added

credibility to her claim that she recalled seeing Lloyd in

Massachusetts on February 13. Mrs. Duest’s credibility was

pivotal; without the bus ticket to corroborate her testimony, the

State convinced the jury she was lying. However, the bus ticket

would have established that the prosecutor was in error when he

suggested that Mrs. Duest had not taken Mr. Duest to the bus on

April 5, but instead on February 12.°

7Judge Ryskamp in his order denying relief assumed that Mr.

Duest had to prove the nondisclosure "(mjore likely than not

altered the outcome." Judge Ryskamp said, "the April ticket merely

would corroborate the testimony of Duest’s parents that they put

him on a bus to Florida in April." Memorandum Order at 12. Judge

Ryskamp required Mr. Duest to show that the "April bus ticket would

have convinced the jury that Duest was innocent of the offense with

which he was charged." Jd. However, Mr. Duest needed only to have

raised a reasonable doubt in the jury’s mind that Mr. Duest was not

guilty. Judge Ryskamp applied the wrong standard of review and

thus reached an erroneous conclusion.

Scertainly the prosecutor’s attack upon Mrs. Duest’s

credibility underscores the importance of her testimony. This

(continued...)

In the same fashion, the bus ticket would have bolstered the

testimony of Lloyd’s father who had also testified regarding

Lloyd’s April 5 departure. Lloyd’s father had also testified he

saw Lloyd in Massachusetts on February 15, the day Mr. Pope was

killed in Florida.

The bus ticket, which conclusively established Lloyd Duest’s

departure from Boston on April 5, 1982, would have greatly

enhanced the credibility of Mr. Duest’s parents, and Mr. Duest’s

original statement to the police. It constituted physical

evidence that could not be impeached which established that the

Duests were being truthful. The bus ticket was also» evidence

that Mr. Duest was in fact in Massachusetts. Though it does not

conclusively prove that Mr. Duest was there on February 15, it

does establish he was there in early April, which was exactly

what he told Deputy Feltgen. The bus ticket increases the

likelihood that Mr. Duest was in Massachusetts for the time

period preceding April 5. The bus ticket was important for both

its content and its corroboration of the defense witnesses.

At trial, the State ridiculed Mr. Duest’s statement to the

officers that he had come to Florida on a bus on April 5, 1982,

and had left some personal belongings at the bus station. When

asked about the bus ticket at trial, the State’s witness denied

any knowledge of it: "And do you recall (Mr. Duest] ever showing

you any kind of bus ticket? A. No, I don’t recall that." (R.

8’. ..continued)

attack was motivated by the prosecutor’s fear that a credible Mr.

Duest would constitute a reasonable doubt.

a pee rene

845).° The State even went so far as to present testimony that

a search of the Trailways bus records revealed that Mr. Duest had

not left any property at the Trailways bus station: "“[(T]jhe

investigation continued and we checked out the story as far as on

the Trailways bus" (R. 895); "To the best of your knowledge,

were any items found in the Trailways Bus Station? A. No. They

could not. be located." R. 888). During closing argument, the

prosecutor ridiculed Mrs. Duest’s testimony and suggested that in

fact, she had put Mr. Duest on the bus to Florida in February

1982 at the time the crime occurred (R. 1403, 1405). The bus

ticket would have completely refuted the State’s evidence and

argument that there was no corroboration of Mr. Duest’s April 5

departure from Massachusetts. The obvious energy expended by the

State trying to attack the reliability of the April 5 testimony

underscores its importance at trial. The State knew that if the

jury believed that Mr. Duest left Massachusetts on April 5 then

there would be a reasonable probability that the jury would not

convict. Under the circumstances here, more than a reasonable

probability exists that the disclosure of the bus ticket would

have resulted in a different outcome. No physical evidence

connected Mr. Duest to the murder. The jury’s decision on guilt

depended solely on its evaluation of the State’s witnesses, who

Claimed to have seen "Danny" with the victim shortly before the

victim’s death and of Mr. Duest’s alibi witnesses, who claimed

*This testimony should be compared to the evidentiary hearing

testimony of Deputy Feltgen (PC-R. 201)("I do recall there was a

bus ticket").

~ 6° rte Be

that Mr. Duest was in Massachusetts at the time of the victin’s

death. The bus ticket not only would have corroborated the

testimony of the alibi witnesses and enhanced those witnesses’

credibility, but also would have provided unimpeachable

substantive evidence on its own that Mr. Duest had not traveled

to Florida until April 5. The nondisclosure of the bus ticket

resulted in a failure of the adversarial process. Confidence in

the outcome of the guilt and penalty phases is undermined. A new

trial is required.

ARGUMENT II

MR. DUEST’S SENTENCE OF DEATH WAS BASED UPON AN UNCONSTITU-

TIONALLY OBTAINED PRIOR CONVICTION AND THEREFORE ALSO ON

MISINFORMATION OF CONSTITUTIONAL MAGNITUDE IN VIOLATION OF THE

EIGHTH AND FOURTEENTH AMENDMENTS.

There can be no dispute that the judge and jury relied on

Mr. Duest’s prior Massachusetts convictions to establish the

“prior crime of violence” aggravating circumstance upon which his

death sentence was based. Two prior convictions were submitted

in order to add weight to this aggravating circumstance. The

sentencing court found this aggravating circumstance, noting that

there were two prior convictions:

(B) That at the time of the crime for which the

defendant is to be sentenced, he had been previously

convicted of another capital offense, or of a felony

involving the use or threat of violence to some person;

(1) This aggravating circumstance does apply in this

case as the Defendant has been convicted of Armed

Robbery and Armed Assault with the Intent to Commit

Murder.

(R. 1833). The Florida Supreme Court in denying post-conviction

relief conceded that the consideration of the “armed assault with

ae Pe tae be Me hate e nth eat ents

Loeled gta . 2

intent to commit murder” was eighth amendment error. Duest v.

Dugger, 555 So. 2d 849, (Fla. 1990).

The State’s evidence in this regard consisted solely of

copies of two convictions: one for robbery and one for armed

assault with the intent to murder. As to the latter charge the

judge told the jury:

THE COURT: State’s Exhibit No. 2 is a certified copy

from the Commonwealth of Massachusetts. Superior

Court, Department of the Trial Court. This is a

conviction for armed assault to murder. The defendant

pled guilty on January 13, 1971, and was sentenced to a

term not exceeding ten years, nor less than five years.

I will read this Indictment to you, also. It says,

“Commonwealth of Massachusetts. The Superior Court.

At the City of Cambridge, within and for the County of

Middlesex, on the first Monday of April, in the year of

our Lord one thousand nine hundred and seventy, the

jurors for the Commonwealth of Massachusetts on their

oath present that Lloyd Paul Duest on the 4th day of

March in the year of Our Lord one thousand nine hundred

and seventy, at Reading, in the County of Middlesex,

aforesaid being armed with a dangerous weapon, did

assault Herbert McSheehy and Leo Iacopucci," or

something like that, I-A-C-0O-P-U-C-C-I, "with intent to

murder them against the peace of said Commonwealth and

contrary to the Statute in such case and provided--"

(R. 1574-75) (emphasis added). This indictment in fact indicates

that Mr. Duest attempted to murder two people.’

After the jury returned to deliberate regarding its e

sentencing recommendation, proceedings were reconvened in open

court when the jury requested an opportunity to view the prior

convictions:

'No additional facts were given to the jury beyond those

contained in the indictment. The jury simply knew that Mr. Duest

while armed with a dangerous weapon, did assault two people with

the intent to murder then.

an.

THE COURT: Ladies and gentlemen, I understand you

wanted to see the criminal records. They were not

published to you originally so I will read them to you

again. The first one I read to you, armed robbery,

Commonwealth versus Lloyd Paul Duest. I will read you

the Indictment.

(R. 1631). The Court thereupon read each indictment and notice

of guilty plea and sentence to the jury. Again, the jury heard

the indictment indicating Mr. Duest tried to murder two people.

Only after this second reading of this evidence did the jury

return a death recommendation.

On June 27, 1988, Mr. Duest’s conviction of armed assault

with intent to murder was vacated. Commonwealth v. Duest, 26

Mass. App. Ct. 137 (1988). On October 20, 1988, the charge was

nolle prossed:

Now comes the Commonwealth and files a nolle

prosequi on this indictment of armed assault with the

intent to murder.

(R 1-1-40).

Mr. Duest’s jury, after being instructed to weigh the

aggravating circumstances against the mitigating and determine if

the mitigating outweighed the aggravating, returned a seven to

five death recommendation. For a different outcome to have

occurred, only one of the seven jurors needed to have changed

sides because of the prior armed assault with intent to murder

which the jury specifically asked to have read a second time.

See Preston v. State, 564 So. 2d 120 (Fla. 1990) (closeness of

jury vote precluded harmlessness finding). Moreover, the State

has conceded there was "plenty" of nonstatutory mitigation

presented to the judge and jury (T. 121).'! This mitigation may

well have served as a basis for a life recommendation but for the

evidence of a prior "armed assault with intent to murder." See

Ross _v. State, 474 So. 2d 1170 (Fla. 1985) (history of drug or

alcohol abuse is mitigating even if no evidence of alcohol or

drug usage at the time of the homicide); Cheshire v. State, 568

So. 2d 908 (Fla. 1990) (succumbing to the frailties inherent in

the human condition is mitigating); Holsworth v. State, 522 So.

2d 348, 354 (Fla. 1988) ("(cjhildhood trauma nas been recognized

as a mitigating factor"); Valle v. State, 502 So. 2d 1225 (Fla.

1987) (evidence of good conduct in prison is mitigating). It was

the “possibility” that the reversed prior conviction may have

resulted in a death sentence that warranted reversal in Johnson.

The same possibility requires a reversal of Mr. Duest’s sentence

of death.

In Valle v. State, 502 So. 2d 1225 (Fla. 1987), the Florida

Supreme Court stated:

It is the jury’s task to weigh the aggravating and

mitigating evidence in arriving at a recommended

sentence. Where relevant mitigating evidence is

excluded from this balancing process, the scale is more

likely to tip in favor of a recommended sentence of

death.

502 So. 2d at 1226. Certainly, the introduction of materially

inaccurate and false aggravation is just as likely to skew the

—s

"This mitigation included Mr. Duest’s history of drug abuse, his

efforts to kick the habit through Methadone treatment, Mr. Duest’s

history of being physical frail, his history of mental stress and his

good behavior in jail where he saved a guard’s life (PC R. 118-22).

The State conceded "there was plenty of nonstatutory mitigating

evidence present" (PC R. 121).

balancing and tip the scale in favor of a recommended sentence of

death.'*. As noted in Johnson, eighth amendment error was found

because “the jury was allowed to consider evidence that has been

revealed to be materially inaccurate." Johnson, 108 S. Ct. at

1989. In Mr. Duest’s case, the identical eighth amendment

violation occurred.

In Mr. Duest’s case, the Florida Supreme Court did not

dispute that error had occurred under Johnson. As a result of

this error, improper aggravating evidence was presented to the

jury. This improperly admitted evidence indicated that Mr. Duest

had previously tried to murder two people. Certainly, this

at the post-conviction evidentiary hearing, Mr. Duest’s trial

counsel testified it would have been important to delete the

evidence of the prior armed assault with intent to murder:

Q. Right. But to the extent that there were two, one’s

better than two.

A. Oh, obviously and none’s better than one.

Q. And why is one better than two?

A. Because it’s just one less aggravating circumstance

that the jury is familiar with.

I also believe that if it’s just one, a jury may think,

well, it’s that one time but two in my opinion is more than

just a doubling of one to a jury. It might have some real

ramifications.

Q. If you were to have your preference, which one of the

two would you want to get rid of, a robbery or assault with

intent to murder?

A. Well, considering the victim, if I recall on the

assault to murder I would certainly want to get rid of that

one.

(PC-R. 188-89).

evidence added weight to the aggravation side of the scale, and

likely tipped the scale in favor of a death recommendation.

However, the Florida Supreme Court inexplicably found the error

harmless, saying, "{wje believe beyond a reasonable doubt that

Duest would still have received a sentence of death without

evidence of thie conviction." Duest v. Dugger, 555 So. 2d at

851. Judge Ryskamp agreed the error was harmless because “the

trial judge merely read both indictments to the jurors."

Memorandum Order at 19. However, Judge Ryskamp overlooked the

fact that the jury could not reach a verdict until the

indictments were read for a second time. Under these

circumstances, the State cannot demonstrate beyond a reasonable

doubt that the jury hearing that Mr. Duest had previously

attempted to murder two people did not tip the jurors’ balancing

in favor of a death recommendation.

In Clemons v. Mississippi, 110 S. Ct. 1441, 1451 (1990), the

Supreme Court noted that Johnson v. Mississippi error was subject

to the harmless error analysis set forth in Chapman v.

California, 386 U.S. 18 (1967).'% The application of the

Chapman-harmless error standard is a federal question subject to

3clemons also held that a state appellate court could conduct a

reweighing if state law so permitted. However, Florida law does not

permit the Florida Supreme Court to conduct such a reweighing. Parker

v. Dugger, 111 S. Ct. 731 (1991). Instead, the Florida Supreme Court

employs the Chapman standard, as it did here, in order to determine

whether the defendant’s right to a jury recommendation requires a

resentencing. Lucas v. State, 417 So. 2d 250, 241 (Fla. 1982) ("This

Court’s role after a death sentence has been imposed is ‘review,’ a

process qualitatively different from sentence ‘imposition’"); Bates v.

State, 465 So. 2d 490, 493 (Fla. 1985)("As a reviewing court, we do

not reweigh the evidence").

Pe a er ee Fe

federal nabeas review. Jackson v. Dugger, 931 F.2d 712, 717

(11th Cir. 1991). In Mr. Duest’s case, this means the Johnson

error must be measured against this Court’s precedent regarding

the harmless beyond a reasonable doubt standard in a Florida

capital sentencing proceeding.

In Brown v. Dugger, 831 F.2d 1547, 1554 (11th Cir. 1987),

this Court explained:

The ‘harmless beyond a reasonable doubt’ standard,

elucidated in Chapman v. California, 386 U.S. 18, 23-

24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (i967), presumes

prejudice and places the burden [] on the beneficiary

of the errors to prove beyond a reasonable doubt that

the errors did not contribute to the verdict.

(Citations) If there remains a possibility that the

constitutionally-proscribed evidence impacted on the

ultimate decisional process of the jury, if the

beneficiary of the error cannot refute that possibility

beyond all reasonable doubt, constitutional errors can

never be deemed harmless.

This Court applied this test in Delap v. Dugger, 890 F.2d

285 (llth Cir. 1989). There, the Florida Supreme Court had found

error under Hitchcock v. Dugger, 481 U.S. 383 (1987), to be

"harmless because the nonstatutory mitigating evidence was weak

in comparison to the five statutory aggravating factors." 890

F.2d at 303. This Court disagreed and concluded that the error

in Delap could not be found to be harmless beyond a reasonable

doubt. "The presence of substantial nonstatutory mitigating

evidence [{} alone" was sufficient to preclude a finding of

harmlessness beyond a reasonable doubt. 890 F.2d at 306.

This Court has employed the Chapman standard a number of

times to eighth amendment error in a Florida capital sentencing.

On only three occasions has this Court found that the State of

Florida had proven beyond a reasonable doubt that the eighth

amendment error was harmless beyond a reasonable doubt. See

Demps vy. Dugger, 874 F.2d 1385 (lith Cir. 1989) (error harmless

because no evidence of mitigating circumstances presented) ;

Tafero v. Dugger, 873 F.2d 249 (l1ith Cir. 1989) (error harmless

because defense made strategic decision to present no mitigating

evidence); Clark v. Dugger, 834 F.2d 1561 (lith Cir. .

1987) (harmless error where no nonstatutory mitigation presented

to the jury). In every other case where mitigating evidence was

before the jury and eighth amendment error occurred, this Court

has found the State of Florida could not prove harmlessness

beyond a reasonable doubt. See Delap; Jones v. Dugger, 867 F.2d

1277, 1280 (llth Cir. 1989) (record contained evidence that

defendant was a model prisoner and "a very nice person [who] got

along well with people"); Knight v. Dugger, 863 F.2d 705 (llth

Cir. 1988) (record contained mitigating evidence about defendant’s

mental state and his troubled background); Ruffin v. Dugger, 848

F.2d 1512 (llth Cir. 1988) (record contained evidence of

defendant’s mental state, his lack of an adult criminal record,

and his domination by co-defendant); Magill] v. Dugger, 824 F.2d

879 (lith Cir. 1987) (record contained evidence of defendant’s

remorse); Hargrave v. Dugger, 832 F.2d 1528 (11th Cir.

1987) (record contained evidence of steady employment history,

below-average intelligence, and history of drug abuse).

In Elledge v. Dugger, 823 F.2d 1439 (11th Cir. 1987), this

Court found error in penalty phase proceedings because the

defendant was shackled in the jury’s presence. Reversal was

required because of the potential impact the shackling may have

on a jury. The “jury might view the shackles as first hand

evidence of future dangerousness." 823 F.2d at 1450. Certainly

evidence of prior assaults with intent to murder may also tip the

scale in favor of death. Just as in Elledge, reversal is

required here.

Thus, under this Court’s preceiient applying Chapman to

eighth amendment error, consideration must be given to what

mitigating evidence was presented to the jury. If mitigation was

contained in the record, the error could not have been harmless.

The reason for this approach is twofold. First, as was noted in

Knight v. Dugger, Lockett v. Ohio, 438 U.S. 586 (1978), requires

an individualized sentencing which allows the sentencer to hear

and give effect to reasons why a sentence less than death should

be imposed. See Penry v. Lynaugh, 109 S. Ct. 2934 (1989).

Second, Florida law permits a jury to return a binding life

recommendation so long as a reasonable basis for that

recommendation exists in the record. "“(T]}he inquiry is whether

there is any reasonable explanation for the jury’s life

recommendation." Hallman v. State, 560 So. 2d 223, 226 (Fla.

1990) "(T)he fact that reasonable people could differ on what

penalty should be imposed in this case renders the override

improper." Ferry v. State, 507 So. 2d 1373 (Fla. 1987). Under

Florida law, a jury may return a binding life recommendation if

mitigation is contained in the record. See Valle v. State, 502

So. 2d 1225 (Fla. 1987). Where mitigation is in the record, a

jury is in fact free to return a life recommendation. In such

circumstances, error which possibly influenced the jury to return

a death recommendation cannot be harmless.

In Mr. Duest’s case, the State and the sentencing court have

stipulated that "plenty" of mitigation was presented to the jury

(PC R. 121). In the state post-conviction proceedings, the

sentencing judge stated:

THE COURT: The court was aware of the fact there

was drug abuse.

* * *

THE COURT: I was aware of that, where the family

testified during the trial.

MR. MCCLAIN: That was nonstatutory mitigation,

that was before the jury as well, because the jury

heard the testimony about the drug abuse, and I believe

the father testified about taking him to Methadone

treatment and so forth.

THE COURT: Yes, he did.

* * *

THE COURT: There were also factors where the

mother was saying how physically ill he was as a baby

and whatever else. I mean I heard all of that. I

think I have to say I considered it, but I will go

through all the cases again. And I remember that,

because I didn’t see it anywhere, but I remembered that

the family testified to, beyond the presentence

investigation relayed because they were there at the

sentencing phase as well, and did testify at that time.

So, we are talking about physical and mental and

stress, and drug abuse, and prison time.

(PC R. 119-22).

In its brief to the Florida Supreme Court, the State

conceded that “evidence of (Mr. Duest’s] prior drug history,

—EEE———EEEEEEE ———— eee

therapeutic interventions and status as a good father, husband,

son and brother" were presented to the jury (Answer Brief from

Denial of a Motion for Post Conviction Relief at 37). Both

statutory and nonstatutory mitigating circumstances were in fact

set forth in the record.

In the penalty phase, the State conceded that Mr. Duest had

a history of debilitating drug abuse (R. 1607). The State

conceded that he had helped an inmate:

What has he done? Well, he has done a couple of

things. I stand corrected. The parents, Mr. Duest

mentioned to you that he helped an inmate once.

Consider that. Consider anything else that was brought

out along that line.

(R. 1615). The prosecutor was referring to an incident in

Walpole prison where Mr. Duest assisted a guard who was giving

aid to an inmate who had been stabbed:

I don’t have much more to say except he has helped

people in prison when he was there. He helped a guard

with a prisoner that had been stabbed. He went out and

him and another person took him to the hospital. The

guard couldn’t go into the section. He was serving

time at that time. He just waited there at the

hospital and he didn’t escape or anything. He waited

for the prisoner to go back with the guard back to

prison.

(R. 1578-79). In regard to Lloyd’s serious drug abuse history,

his father testified:

A I brought him to a drug clinic. I believe it

was in Cambridge, Cambridge, Mass. He had another drug

problem a little later and brought him - trying to

bring him to another one. He couldn’t get into one

because they were all filled. He has got a young

daughter.

(R. 1578). The State also conceded that there was testimony that

Mr. Duest was a good father (R. 1615-16). The State conceded

that these were mitigating factors.

The State conceded that there was evidence upon which the

sentencer could find the influence of extreme mental or emotional

disturbance in that Mr. Duest had a long-standing drug problem

(R. 1607). There was also additional evidence in the record

which would have supported the impairment factor as well as

extreme disturbance in that Mr. Duest detailed a lengthy

psychiatric history:

MR. BARON: There were two other things he brought

to my attention.

One was concerning any psychological history. He

indicated to me that he told Miss Balazik that while in

Walpoie and in -- what was the other prison?

THE DEFENDANT: Concord. I transferred from

Walpole to Concord.

MR. BARON: -- he had seen a psychiatrist and been

in some kind of therapy. One of them is mentioned in

the PSI, I believe the Walpole one, but the Concord one

is not mentioned, neither one. My understanding, none

of the doctors, from what I’m told, still work within

the prison or prison system, so whether or not they

would have added anything is unknown at this time.

THE COURT: So there is an omission of one, the

Concord one. You have the Waltham one in here, right?

MS. BALAZIK: Yes.

MR. BARON: And the one he’s been seeing within

the Broward County jail is listed in there.

THE DEFENDANT: I saw a psychiatrist of two years,

once a week, one on one, from 1971 to 1973, and I guess

three years later I was arrested for illegal possession

of a firearm. My parole was violated on account of the

arrest.

I was sent to Walpole, did 14 months, went to

trial and was found not guilty, and during that 14-

month span of time, I also saw a psychiatrist.

MR. BARON: In addition, he indicated that he gave

Miss Balazik a number of additional places that he had

worked for whatever period of time that are not

included within the PSI. I don’t know if it was

because they were not confirmed or what the situation

was. * ¥

(R. 1662-63).

Numerous additional nonstatutory mitigating factors were

present in the record. Mr. Duest’s father testified that his son

Lloyd had been an excellent son, and that Lloyd got diplomas

while in prison for counseling younger drug addicts (R. 1577).

His sister testified that he had been a good brother (R. 1582).

His mother said her son Lloyd was lovable and compassionate, that

he was a quiet boy and never a discipline problem at school (R.

1583-84). His wife testified that he had been a good husband and

father (R. 1587). Mr. Duest worked on his parent’s home, always

gave Christmas gifts except for the time when he was on escape

status, and loved his family (R. 1671). During his time in the

Broward County Jail, Mr. Duest made a significant contribution to

group therapy sessions:

: Records from Walpole State Prison indicate

that the subject was seen in 1971 by a prison

psychologist on a one to one basis. However, no

Clinical diagnosis was ever made. The subject is

currently in group therapy sessions in Broward County

Jail. According to Psychotherapist Gary B. Lane, Lloyd

contributed to the group by assisting other inmates in

problem solving, bringing numerous newspapers and

magazine articles to be shared by the group and

actively participating verbally in group interactions.

He states that his participation acted as a role model

for others to do the same. As a group therapy member,

Mr. Duest made a significant contribution to the

effectiveness of the sessions.

(R. 1811). Mr. Duest was not known for violence and to the

contrary had a reputation for respect of his family and friends,

and helping others:

Friend, Edward R. Lavache, states, "I am a Watertown

firefighter and have been a friend of Lloyd Duest for

over ten years During this time I have never known

Lloyd to do harm to anyone. I do not believe he would

ever take the life of another person. I have always

known him to be a loving father and husband, he has

always shown the greatest respect for his family and

friends. He has always helped me whenever possible and

I’ve never seen him turn down a friend."

(R. 1813). Mr. Duest was characterized as a good worker:

Friend, James Pallone, states, "I would like to write

this Recommendation for Lloyd Duest who I have known

all my life. He has always been in good standing and

shown Character with my family and his community within

the last 25 years.

He has worked for my [sic] for 10 years and was prompt

at his job. He showed responsibility and character in

his job, and always got along with his fellow workers.

If there is anything I could do or testify to in his

behalf please do not hesitate to contact me."

(R. 1813). In fact, the probation officer concluded that Mr.

Duest did satisfy mitigating factor (8) in that "he does has

[sic] a very supportive family, friends and members of the

community in Massachusetts” (R. 1816).

This mitigating evidence which the sentencing judge and the

State stipulated was presented at Mr. Duest’s penalty phase

proceeding is precisely the type of evidence which constitutes a

reasonable basis for a life recommendation. DuBoise v. State,

520 So. 2d 260, 266 (Fla. 1988) (jury could have considered

“deprived family background"); Burch v. State, 522 So. 2d 810,

813 (Fla. 1988) (jury could have considered "family history of

physical and drug abuse"); Brown v. State, 526 So. 2d 908 (Fla.

1988) ("family background and personal history ... must be

considered"); Amazon vy. State, 487 So. 2d 8, 13 (Fla. 1986)

("history of drug abuse" constituted a reasonable basis for life

recommendation). In light of the mitigation present in the

record, the error in admitting the prior invalid conviction for

assault with the intent to murder cannot be deemed harmless

beyond a reasonable doubt. If just one juror would have switched

his or her vote without the evidence of prior murder attempts, a

binding life recommendation would have resulted. See Cooper v.

State, __—° So. 2d __, 16 F.L.W. 5375 (Fla. May 9, 1991) (six-six

jury vote resulted in binding life recommendation).

In Brown v. Dugger, this Court held that constitutional

error was presumed harmful until the State proved harmlessness

beyond a reasonable doubt. Where constitutional error occurs in

the penalty phase of a Florida capital trial, the error can only

be harmless beyond a reasonable doubt where the jury had before

it no mitigating evidence upon which a life recommendation could

have been based. This is because in Florida the jury

recommendation is the result of balancisg the aggravation against

the mitigation. See Delap; Jones; Knight; Ruffin; Magill;

Hargrave. Here, there was, in the words of the State, “plenty”

of mitigation (PC R. 121). The mitigation described by the

sentencing judge and the State was precisely the type of evidence

upon which binding life recommendations in other cases have been

based. The jury in Mr. Duest’s case was instructed to weigh the

aggravation against the mitigation (R. 1799). The scales may

have been balanced differently but for the introduction of an

invalid prior conviction for what amounted to attempted murder.

There must exist the possibility that the aggravating

circumstances were given more weight because of the evidence of a

prior attempt to murder two individuals. Under these

circumstances the State cannot prove the error harmless beyond a

reasonable doubt. This Court must grant habeas corpus relief.

ARGUMENT III

MR. DUEST WAS DENIED A MEANINGFUL AND INDIVIDUALIZED CAPITAL

SENTENCING DETERMINATION DUE TO COUNSEL’S UNREASONABLE FAILURE TO

CONDUCT INDEPENDENT INVESTIGATION, AND FAILURE TO PRESENT

COMPELLING MITIGATION, IN VIOLATION OF THE SIXTH, EIGHTH AND

FOURTEENTH AMENDMENTS.

Before the district court, Mr. Duest presented a claim that

trial counsel had failed to conduct the investigation and

preparation required for a capital penalty phase and thus had

failed to présent the substantial mitigating evidence which was

available in Mr. Duest’s case. Mr. Duest argued that trial

counsel’s failures were unreasonable, not the result of tactic or

strategy, and that those failures prejudiced Mr. Duest -- the

omitted mitigating evidence would have made a difference to the

jury, which voted for death by only a 7 to 5 margin. Although

the state circuit court had held an evidentiary hearing on this

Claim, neither that court nor the Florida Supreme Court made any

factfindings whatsoever regarding this claim. Both state courts

simply denied relief without explanation. Under such

circumstances, an evidentiary hearing in the district court was

required in order to resolve the factual disputes necessary to

decide the claim. Nevertheless, the district court declined to

hold an evidentiary hearing and denied relief. The district

court erred. Mr. Duest is entitled to relief on the basis of

this claim and is entitled to a proper resolution of the factual

issues involved in the clain.

A. AN EVIDENTIARY HEARING IS REQUIRED

After conducting an evidentiary hearing on Mr. Duest’s claim

that he was deprived of the effective assistance of counsel at

his capital penalty phase, the state circuit court denied relief,

writing only: "Alleged ineffective assistance of trial counsel

for failure to present compelling mitigating evidence is denied

on the merits" (PC R. 680). The court’s oral pronouncement was

Similarly brief: "I will deny Claim 10 and that portion of it

[sic] Claim 8 as it relates to this" (PC R. 228).'* On appeal,

the Florida Supreme Court affirmed the lower court, stating

simply:

We reject as without merit the following additional claims:

(7) Duest was denied effective assistance of

counsel at the sentencing phase of his trial.

Duest v. Dugger, 555 So. 2d 849, 851 (Fla. 1990). No other

references to the penalty phase ineffective assistance of counsel

Claim appear in the state court record.

In his petition for a writ of habeas corpus, his application

“mr. Duest’s penalty phase ineffective assistance of

counsel claim was Claim 8 of his Fla. R. Crim. P. 3.850 motion

(PC R. 277, 338).

for a stay of execution and in oral argument befcre the district

court, Mr. Duest argued that the state courts’ failure to make

any factfindings on the penalty phase ineffective assistance of

counsel claim required that the district court conduct an

evidentiary hearing (R1-1-215; R2-2-6, 33; R4-73-8). The

district court declined to conduct an evidentiary hearing,

without explanation, and denied relief, writing:

Duest argues that at sentencing, trial counsel

violated the rule enunciated in Strickjiand by failing

to conduct an independent investigatior *xegarding

possibly mitigating evidence that could ave been

presented at sentencing. The Florida Supreme Court

dismissed this claim as without merit. Duest, 555 So.

2d at 851.

Duest’s attorney was required to conduct a

“reasonable investigation" into possible mitigating

evidence. Smith, 840 F.2d at 795. Duest claims that

his trial attorney failed to conduct a reasonable

investigation by not obtaining his school, hospital,

and prison records, in part to present them as

background documentation to the mental health experts

who examined Duest before sentencing. Duest claims

that such investigation and presentation would have

bolstered the mitigating evidence he did present at

sentencing.

The trial court conducted an evidentiary hearing

on this claim wherein it was established that trial

counsel did conduct an adequate investigation into the

defendants’ mental health, family relationships and

educational background. Trial counsel was dependent

upon the defendant and his family for leads as to

relevant data. Trial counsel retained Dr. Patsy Ceros-

Livingston to interview the defendant and to prepare a

report. The information included in the report was not

used at the penalty phase as trial counsel made a

conscious decision to exclude it. The report would

have opened the door to considerable damaging evidence

that would have prejudiced the defendant. Transcript

at 155, 157, 175, 176. Included in the prejudicial

information was the following: the defendant committed

28 prior felonies, had prior escapes from prison, was

found with a knife in prison, had homosexual

tendencies, would probably escape again if given the

opportunity, indicated that he never acted

inappropriately in the commission of any crime, and is

inclined to take what he wants rather than being able

to delay gratification.

Collateral counsel for the defendant hired Dr.

Patricia Fleming to interview the defendant and to

examine records. She came to a somewhat different

conclusion than Dr. Ceros-Livingston, but her report

also included some of the same negative observations

that Dr. Ceros-Livingston’s report included.

This court has reviewed the entire hearing

transcript on this issue and agrees with the state

court judge that Duest has failed to establish his

ineffective assistance of counsel claim. Counsel made

strategy decisions which are protected are [sic] under

Strickland.

(R3-65-40-42). Without conducting an evidentiary hearing, the

district court denied relief by accepting certain facts regarding

whether trial counsel’s performance was deficient and by ignoring

other facts which were contrary to those relied upon by the

district court. The state circuit court had heard the disputed

facts, but had not resolved the disputes. The district court

appears to have resolved some of the disputed facts, but never

heard the evidence.

In circumstances such as those present here, where the state

courts held an evidentiary hearing but made no factfindings, the

district court is required to hold an evidentiary hearing. Code

v. Montgomery, 725 F.2d 1316, 1321-22 (11th Cir. 1984). See also

Thomas v. Kemp, 796 F.2d 1322, 1324 (11th Cir. 1986) (although

state court had held an evidentiary hearing, the district court

properly held an evidentiary hearing because "the district court

found the state record insufficient to permit a determination of

whether counsel’s decision not to present mitigating evidence was

strategic or negligent"); Terrovona v. Kincheloe, 852 F.2d 424,

429 (9th Cir. 1988) ("An evidentiary hearing [in the district

court] is mandatory if . .. the state court trier of fact has

not, after a full and fair hearing, reliably found the relevant

facts"); Williams v. Lockhart, 849 F.2d 1134, 1138 (8th Cir.

1988) (remanding for evidentiary hearing because, inter alia, "the

state court findings of fact and conclusions of law are so brief

and conclusory that it is impossible to make an independent

judgment or to determine whether the state hearing was full and

fair"). The Supreme Court has explained:

There cannot even be the semblance of a full and

fair hearing unless the state court actually reached

and decided the issues of fact tendered by the

defendant. Thus, if no express findings of fact have

been made by the state court, the District Court must

initially determine whether the state court has

impliedly found material facts. No relevant findings

have been made unless the state court decided the

constitutional claim tendered by the defendant on the

merits.

If the state court has decided the merits of the

claim but has made no express findings, it may still be

possible for the District Court to reconstruct the

findings of the state trier of fact, either because his

view of the facts is plain from his opinion or because

of other indicia. In some cases this will be

impossible, and the Federal District Court will be

compelled to hold a hearing.

Reconstruction is not possible if it is unclear

whether the state finder applied correct constitutional

standards in disposing of the claim. Under such

circumstances the District Court cannot ascertain

whether the state court found the law or the facts

adversely to the petitioner’s contentions. Since the

decision of the state trier of fact may rest upon an

error of law rather than an adverse determination of

the facts, a hearing is compelled to ascertain the

facts. Of course, the possibility of legal error may

be eliminated in many situations if the fact finder has

articulated the constitutional standards which he has

applied.

In any event, even if it is clear that the state

trier of fact utilized the proper standard, a hearing

is sometimes required if his decision presents a

situation in which the “so-called facts and their

constitutional significance [are] so blended that they

cannot be severed in consideration." Rogers v.

Richmond, supra, 365 U.S. at 546, 81 S.Ct. at 742. See

, Supra, 237 U.S. at 347, 35 S.Ct. at

595 (Holmes, J., dissenting). Unless the district

court can be reasonably certain that the state trier

would have granted relief if he had believed

petitioner’s allegations, he cannot be sure that the

state trier in denying relief disbelieved these

allegations. If any combination of the facts alleged

would prove a violation of constitutional rights and

the issue of law on those facts presents a difficult or

novel problem for decision, any hypothesis as to the

relevant factual determination of the state trier

involves the purest speculation. The federal court

cannot exclude the possibility that the trial judge

believed facts which showed a deprivation of

constitutional rights and yet (erroneously) concluded

that relief should be denied. Under these

circumstances it is impossible for the federal court to

reconstruct the facts, and a hearing must be held.

Ww Vv. in, 372 U.S. 293, 313-16 (1963).

No state court made any factfindings whatsoever regarding

Mr. Duest’s penalty phase ineffective assistance of counsel

Claim. Both the state circuit court and the Florida Supreme

Court simply denied relief in one sentence. As the Supreme Court

stated in Townsend, it is impossible to tell whether the state

courts believed Mr. Duest’s factual allegations and denied relief

on the basis of law, or whether the state courts disbelieved Mr.

Duest’s factual allegations. As explained in Townsend, "(u)nder

these circumstances it is impossible for the federal court to

reconstruct the facts, and a hearing must be held.”

In denying relief, the district court recited certain

matters which the court appears to have determined were the facts

established at the state court hearing. However, in relying upon

these matters, the district court ignored contrary evidence which

also came out at the state court hearing -- evidence which

supports Mr. Duest’s contentions and establishes that trial

counsel’s omissions resulted from a failure to investigate and

prepare and were not based upon tactic or strategy. See Section

B(1), infra, discussing trial counsel’s deficient performance.

Further, no court, including the district court, has ever

discussed the facts establishing that trial counsel’s deficient

performance was prejudicial to Mr. Duest. See Section B(2),

infra. An evidentiary hearing and proper resolution of the

factual issues involved in this claim are required.

B. MR. DUEST WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF

COUNSEL AT THE PENALTY PHASE

In Strickland v. Washington, 466 U.S. 668 (1984), the

Supreme Court held that counsel has “a duty to bring to bear such

skill and knowledge as will render the trial a reliable

adversarial testing process." 466 U.S. at 688 (citation

omitted). Courts have repeatedly pronounced that "“[a)n attorney

does not provide effective assistance if he fails to investigate

sources of evidence which may be helpful to the defense." Davis

v. Alabama, 596 F.2d 1214, 1217 (Sth Cir. 1979), vacated as moot,

446 U.S. 903 (1980). Decisions limiting investigation “must flow

from an informed judgment." Harris v. Dugger, 874 F.2d 756, 763

(1ith Cir. 1989). “An attorney has a duty to conduct a

reasonable investigation.” Middleton v. Dugger, 849 F.2d 491,

493 (11th Cir. 1988). See also Cunningham v. Zant, 9228 F.2d

1006, 1016 (lith Cir. 1991); Nixon v. Newsome, 888 F.2d 112 (lith

Cir. 1989); Chambers v. Armontrout, 907 F.2d 825 (8th Cir.

1990) (en banc); United States v. Gray, 878 F.2d 702 (3rd Cir.

1989). Courts have also recognized that reasonably effective

counsel must present “an intelligent and knowledgeable defense"

on behalf on his client. Caraway v. Beto, 421 F.2d 636, 637 (5th

Cir. 1970). An attorney is charged with knowing the law.

Harrison v. Jones, 880 F.2d 1279 (lith Cir. 1989). Moreover,

counsel has a duty to ensure that his or her client receives

appropriate mental health assistance, Blake v. Kemp, 758 F.2d 523

(llth Cir. 1985); Mauldin v. Wainwright, 723 F.2d 799 (llth Cir.

1984), especially when, as here, the client’s level of mental

functioning is at issue, Mauldin, and when the client cannot fend

for himself. See United State v. Fesse]l, 531 F.2d 1278, 1279

(Sth Cir. 1979).

Mr. Duest’s counsel failed his capital client. The wealth

of significant mitigating evidence which was available and which

should have been presented was inadequately presented. No

tactical motive can be ascribed to an attorney whose omissions

are based on lack of knowledge, or on the failure to properly

investigate and prepare. Cunningham; Harris; Middleton. Mr.

Duest’s sentence of death is the resulting prejudice.

As this Court explained in Cunningham:

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Bi Nie BTS ENNIO SIISE Naa hea SGI te paits iaca sited PM

tas Ehime.

The primary purpose of the penalty phase is to insure

that the sentence is individualized by focusing the

particularized characteristics of the defendant.

Armstrong, 833 F.2d at 1433 (citing Eddings v.

Oklahoma, 455 U.S. 104, 112, 102 S. Ct. 869, 875, 71

L.Ed.2d 1 (1982)). By failing to provide such evidence

to the jury, though readily available, trial counsel’s

deficient performance prejudiced Cunningham’s ability

to receive an indivuidualized sentence. See Stephens,

846 F.2d at 653-55; Armstrong, 833 F.2d at 1433-34.

Proper investigation and preparation would have resulted in

evidence establishing a compelling case for life on behalf of Mr.

Duest. A wealth of mitigating information was available to trial

counsel in this case. Mr. Duest, however, was sentenced to death

by a jury that did not have the benefit of the fruits of a

thorough investigation. This was far from an individualized

capital sentencing proceeding. Any~hing counsel could have done

would have swayed the 7 to 5 jury’s death recommendation to one

for life.

1. Deficient Performance.

Defense counsel’s lack of preparation for the penalty phase

is evident from his response to an inquiry from the State at the

very end of the pre-penalty phase conference:

MR. GARFIELD: Yes, Your Honor. Is there anything

else? Who is going to be on the defense side? You

said Debbie. Is she going to testify against --

MR. BARON: JI don’t know. Whoever is left in the

family, whoever wants to, if they can.

MR. GARFIELD: That is all I have.

(R. 1568) (emphasis added). Mr. Duest’s attorney called four

witnesses to testify at the penalty phase: Mr. Duest’s father,

Richard Duest; his mother, Nancy Duest; his sister, Debbie; and

his wife, Doreen. Including both direct and cross-examination,

the entire testimony of these four witnesses -- Mr. Duest’s

complete case at sentencing -- comprises eleven (11) pages of

transcript. See Cunningham, 928 F.2d at 1017 and n.17 ("trial

counsel’s minimal questioning of [a defense witness] resulted in

the jury’s being deprived of substantial mitigating evidence").

Counsel conducted no investigation prior to the penalty

phase. He did not discuss with the four sentencing phase

witnesses the purpose of the proceeding or their testimony. The

witnesses were never informed why they were testifying or what

kind of testimony would be helpful. They were never told what

"mitigation" was or how their testimony related to any sentencing

phase strategy. Had counsel talked to the witnesses before

lamely eliciting aimless testimony, he would have uncovered a

wealth of available mitigating material which could have been

presented, and which presents a reasonable probability of a

different sentencing result.

In his paltry argument at sentencing, counsel completely

neglected to explain to the jury about mitigating circumstances,

deferring to the prosecutor:

I am not going to go over all of the aggravating and

mitigating circumstances. You have heard them from Mr.

Garfield.

(R. 1619). The one mitigating circumstance counsel discussed at

all was the so-called "catch all" factor, but counsel gave the

jury little or nothing to consider or relate to the factor:

Mr. Garfield said that is a catchall. That is a

catchall and you can consider anything. Anything you

want as to mitigating factors.

(R. 1619-20). See Cunningham, 928 F.2d at 1018 ("trial counsel

never referred to Cunningham’s head injury during their closing

argument, thereby failing to place this evidence squarely in

front of the jury").

There is a great deal the jury could and should have been

given to “consider” had counsel performed the requisite

investigation prior to the sentencing phase. Mr. Duest was

sentenced to die by a jury who never knew the extent of the

abusive background in which he was raised. He suffered a

lifetime of abuse, rejection, and incarceration. Yet his counsel

failed to adequately investigate and develop the available

mitigation. Counsel did not obtain school records (PC R. 142).

Other than family members, he did not contact any individuals who

knew Mr. Duest regarding mitigation (PC R. 143). He failed to

explain the process to the family members and ask the questions

necessary to learn of the difficult and abusive childhood Mr.

Duest endured (App. 7). He failed to obtain hospital and medical

records (PC R. 143). He did not talk to Mr. Duest’s physician,

Dr. Rummerman (PC R. 145). He failed to obtain Mr. Duest’s

Massachusetts’ prison record (PC R. 143). He failed to contact

the Massachusetts probation office (PC R. 144). He did not

obtain the court file regarding Mr. Duest’s prior conviction for

robbery and armed assault with intent to murder (PC R. 144). He

did not learn of the circumstances of these offenses and that Mr.

Duest was in fact an accessory charged as a principle (PC R.

145). He did not investigate or develop the fact that Mr. Duest

at age 18 was sent to the maximum security prison at Walpole, nor

did he consider the impact such a placement had upon Mr. Duest

(See App. 8). He failed to adequately question Mr. Duest’s

family and learn of the abuse of Mr. Duest as a child (PC R.

146). Counsel also neglected to obtain records establishing Mr.

Duest’s methadone trea‘’«*:;t (PC R. 149). Furthermore, he failed

to provide a mental health expert with any background

documentation (PC R. 153). Finally, counsel failed to look at

Mr. Duest’s jail record in Broward County (R. 154).

Counsel’s preparation and investigation was inadequate.

Choices made on less than complete investigation are not

reasonable. Without a complete investigation, counsel cannot

make professionally competer: choices. Cunningham; Harris;

Middleton.

2. Prejudice.

At the state court evidentiary hearing the fruits of a

reasonable investigation were presented. The documents from Mr.

Duest’s background were presented (App. 14 contained in three

volumes: Vol. II of Exh. 1 and Vols I and [I of Exh. 3). Family

affidavits detailing Mr. Duest’s abusive background were

introduced, as well as an affidavit from a lifelong friend who

knew of the extent of Mr. Duest’s drug history (App. 7).

Finally, the testimony of a psychologist who had the benefit of

the background information revealed by an adequate investigation

was also presented (PC 46-106). As a result, substantial

prejudice from counsel’s deficient performance was shown.

The affidavits and testimony submitted in the state circuit

court compellingly demonstrate the prejudice resulting from

counsel’s deficient performance.'* These affidavits establish

that testimony presented at the penalty phase barely scratched

the surface of the evidence available in mitigation. The

affidavits also contain essential information on Mr. Duest’s and

his family history which should have been provided to a mental

health expert in order to assure a professionally thorough mental

health evaluation on issues relevant to mitigation.

For example, Mr. Duest’s parents could have provided a much

more humanizing and compelling portrait of Mr. Duest’s childhood

and youth than was presented at the penalty phase, could have

described the environment in which Mr. Duest was raised, and

could have explained the problems Mr. Duest encountered. Mr.

Duest’s mother could have testified:

My name is Nancy Duest. I reside in Watertown,

Massachusetts and I am Lloyd Duest’s mother.

I have four children: Nancy born on June 10, 1949;

Lloyd born on October 27, 1951; Debbie born on August

11, 1956; and Paul born on April 7, 1958. When Lloyd

was born his birth was a little different in that my

water bag made a loud bang when it broke. The nurses

came running in and gave me ether. Then they had to

give Lloyd a blood transfusion in his brain. Lloyd was

a sickly child and when he was a month old he had to be

operated on for projectile vomiting.

I was a very sheltered person when I married

‘Saftfidavits were introduced at the state court hearing in

lieu of live testimony from family witnesses because the state

court hearing was held during an active death warrant with no

notice and thus no opportunity to obtain live testimony.

Lloyd’s father. I didn’t even know there was a

Watertown Square in the adjoining town because I had

never been out of my small town. My husband Richard

had a very hot temper. He had a hard childhood and

joined the Marines at a very early age. Although he

received many medals for his courage, I think all the

7 a and dying all around him had a deep affect on

hin.

I think Lloyd had a difficult childhood. When

Lloyd was a baby, he used to chew on the edge of his

blanket until it was bloody. One time when he was

still in diapers, I had him tied to the clothes line

outside while I did my housework. When I checked on

him, he had come untied and had wandered down to a busy

road. Another time when he and his sister were jumping

on the bed near an open window on the second floor of

the house, I took a strap and strapped them both.

Later, I realized that they just thought they were

jumping on the bed but I was so frightened that I

overreacted.

When Paul was only two, I took my mother-in-law

into my house. She was having mental and physical

problems and no one else in the family wanted to deal

with her. She walked out of a second story window

thinking it was a door. As time went on she got much

worse. Not only did she have to use diapers, but the

doctor advised me to hide all the knives and scissors

because he was afraid she would hurt someone. She

would throw heavy things and howl like a cat. Finally,

when she put a pillow on the baby’s head and sat on it,

she had to be sent to the Metropolitan State Mental

Hospital.

When Lloyd was in second grade, he was doing very

poorly in school. The sister told me to have his eyes

examined and he had to get glasses. We called him “the

little professor" at home and the kids teased him at

school. He really hated those glasses. Lloyd was

still doing so badly that the school had him

psychoanalyzed. The child psychologist said that Lloyd

had an abnormal fear of nuns. He was so bad that even

a nun’s habit would terrify him and we had to transfer

him to public school. I have no idea what happened to

him to make him so terrified.

Lloyd was generally a respectful son but there

were a few occasions when he really did seem to lose

control. I didn’t realize it at the time, but as I

think back now it always happened when I would give

something to Paul instead of Lloyd. It was as if he

couldn’t handle any rejection. One example was when he

and a friend were playing with Paul’s basketball and I

made Ll give it back to Paul. He screamed at me and

I told his father. I remember his father grabbing his

shirt and throwing him to the floor almost as if he

were going to choke him. There was so much screaming

that the neighbor across the street came over to see

what was wrong.

Lloyd was popular with the girls, and he had one

girlfriend he was very close to named Annette. When he

was a freshman in high school, Annette became pregnant.

They came to me and I told them that if they wanted to

get married they could live with us. However, Annette

was very young and when her parents found out, they

insisted that she have an abortion. This was very

upsetting for both her and Lloyd but she was too young

to marry without permission. They loved each other

dearly and it was very upsetting for both of them. It

was shortly after that that Lloyd was arrested and sent

to prison.

Lloyd really loved animals. One time he brought

home a dog, and we kept that dog for many years. He

never was intentionally a bad boy around the house. He

never played with fire or tried to take things apart.

He did like to fix cars and draw. He drew some

pictures.

When Lloyd was thirteen, he had to be operated on

for an undescended testicle which he had since birth.

He was just beginning puberty and he was very upset.

He told everyone it was his appendix so no one would

know the truth.

Lloyd became very dependent on his older cousin

Richie. He would do whatever Richie said.

Unfortunately, Richie was ina lot of trouble and he

got Lloyd in trouble as well.

I didn’t realize that Lloyd had such a bad

drinking and drug probiem. I do remember Mr. Bannon

calling me from the high school to talk about Lloyd.

He said I want to talk to you about Lloyd’s friends.

There are a lot of drugs here in Watertown. He was

trying to tell me that Lloyd had a drug problem but I

didn’t understand because I didn’t know anything about

drugs.

When Lloyd was a young man, he got into a terrible

car accident. Some other car crossed the street and

hit them head on and he had to go to Concord Hospital.

REE EES ay We AE ie Say te oe or eS

(App.

As I think back now, we made mistakes with Lloyd.

He was a very sensitive boy and he just couldn’t handle

the hard things in his life. We didn’t know how to

help him or even that he needed special help. He was

always a boy who really tried to help others and to

please everyone.

My father was a very bad alcoholic. Back then

people didn’t know it was a disease and everyone just

thought he was a bad person. I think Lloyd was like

him and we just didn’t know how to get him the

treatment he needed.

I would have been glad to testify to any of these

things at Lloyd’s trial if I had been asked.

TF)»

Mr. Duest’s father could have given a similar account:

My name is Richard Duest and I reside in

Watertown, Massachusetts. I am Lloyd Duest’s father.

I guess you could say that I didn’t have a very

easy life. When I was a child, my father used to make

me box with him when he was mad at me for something and

it got pretty rough. Then when I went to school the

nuns slapped me around. One time I punched out a nun

for hitting me in the face for something I didn’t do.

They transferred me to the Catholic school run by the

brothers and they really did beat me. I had to learn

to fight to survive and they transferred me in with

older boys but I could hold my own there too.

Finally, I ran away and tried to join a Canadian

tank brigade to fight the Japanese when I was 15 years

old. I couldn’t get into the tank brigade so I joined

the Merchant Marines. My ship was sunk by the Japanese

and many people died. Then I joined the Marine Corps

and saw a lot of action. I saw many people die all

around me.

When I had a family, I wanted things to be better

for them. I didn’t have much education and I still

can’t spell things but I worked three jobs to support

my family. I would start the day at 3:30 AM with a job

picking up garbage and work until night. It didn’t

give me much time to spend with my family.

I was hot-headed and had a temper. I treated

Lloyd the same way my father treated me. I would back

hand him if he was mouthy and I would make him box with

me when he misbehaved. I have large strong hands and I

used to grab Lloyd a lot. I thought I was teaching him

to be tough and defend himself; but looking back at it

now, I think I was too hard on him. I just didn’t know

it at the time.

When Lloyd was born, there was some kind of

problem where they had to give him blood. They

couldn’t find a vein, so they had to do it through his

brain. I remember seeing the blood on his head and

being worried about what it might do to him. Then he

couldn’t keep anything in his stomach; and after a

whole month of that, they operated on him for

projectile vomiting.

As Lloyd grew up he started drinking and doing

drugs. We didn’t tell his mother, but I used to take

him to the methadone clinic after he got out of prison

because he had been addicted to heroin. My wife’s

father was an alcoholic. I won’t say my father was an

alcoholic but he was a regular drinker. Maybe that had

something to do with Lloyd’s problem.

Lloyd was the kind of person who would do anything

to help others. He would give you his last dime if he

thought you needed it. He was very easily swayed and

other people would take advantage of him. His older

cousin Richie used to use Lloyd and had a very bad

influence on hin.

Lloyd could never stand up to Richie and say no.

He just went along with Richie until finally he and

Richie were arrested for robbery and attempted murder.

Lloyd never had anything to do with the attempted

murder. He was the driver for the robbery and Richie

fired some shots out the window. Lloyd could have

gotten off much easier because he was a first offender.

However, Richie had a bad prison record and the

prosecutor said he would give Richie a lighter sentence

if Lloyd would plea to the same sentence. So when

Lloyd was only a seventeen year old kid, they sent him

to one of the worst prisons in the country. I can only

imagine what must have happened to him there because he

would never talk about it.

When he got out of prison, he tried to kick the

drug habit but he couldn’t make it. His habit got so

bad, he robbed a drug store just for drugs, not for

money.

One time when Lloyd and my wife were with me, I

got into a disagreement with a guy over a parking

(App.

space. The guy slammed my car door on my ankles as I

was getting out of the car so I punched him and knocked

him unconscious. Lloyd had to go to court and testify

in my behalf, and I was found not guilty by reason of

self defense because I thought the guy might have had a

weapon.

When Lloyd was quite young, he and another boy

were carving their initials in the snow with a knife.

The police arrested him for that. After that they were

always after Lloyd for every little thing. Once they

stopped him for no driver’s license when he really had

one. They threw him up against the car and took him to

jail. When I got there, he was so upset that he tore a

pillow to pieces and they charged him for that too.

Another time we moved to the house next door. Lloyd

forgot his key and climbed in the window. Several

police cruisers came and blocked off the street. They

handcuffed Lloyd and refused to believe it was his

house until the former owner told them he lived there.

Lloyd tried very hard to please me. One time the

local veterans started a boys football team. Lloyd

knew I was a big wheel with the veterans and he really

wanted to be on the team. It came down to him or one

other boy. I told the coaches to pick the other boy if

they thought he was better and they did. Lloyd felt

rejected and I have often wondered if I did the wrong

thing.

Another time some anti-war protesters were

picketing our veterans. The adults couldn’t do

anything so they got Lloyd to go rough them up. When

the police were called, they just took Lloyd down the

street and let him go because they didn’t like the

protestors either. I think Lloyd got real confused

because sometimes the police were going after him for

something he didn’t do or letting him go for something

he did do.

I think now that I made a lot of mistakes raising

Lloyd but at the time I thought I was doing the right

thing.

I went to testify at Lloyd’s trial but the

attorney didn’t ask me any of these things. If I had

been asked, I would have been glad to testify to all

the statements in this affidavit.

7).

Nancy Kerrigan, Mr. Duest’s older sister, could also have

provided her perspective on Mr. Duest’s childhood and the

difficulties he faced:

My name is Nancy Kerrigan and I reside in a suburb

of Boston, Massachusetts. I am Lloyd’s older sister.

When Lloyd and I were growing up, we lived ina

public housing project for veterans. It was a really

rough neighborhood. Lloyd was a different kind of

child. He was timid and frightened. The other kids

were always bullying him and beating up on him. He

would often come home with bruises and cuts where he

had been seriously beaten up. One boy named Buddy

Bishop made Lloyd’s life so miserable, that I beat up

on him for being so mean to Lloyd. Buddy is dead now,

from an overdose of drugs. ;

We lived in the project until I was ten years old.

They put in a jungle gym for the kids once. Lloyd took

several serious falls from the jungle gym and so did

some other kids so they finally had to take it out.

Lloyd had another serious accident when he was a

child. We were out driving in our car with my parents

in front and Lloyd and I in the back seat. Lloyd

leaned on the door and fell out and hit his head. My

mother grabbed him and ripped her fingernails out from

keeping him from falling all the way. It was such a

terrible thing that I can’t remember all of it but I

know that later we wondered if that had something to do

with Lloyd’s problems.

Lloyd suffered with a lot of emotional stress at

St. Luke’s. The nuns terrified him and he never got

over it, they were quite cruel. Public humiliacion and

corporal punishment were the norm at St. Luke’s.

Sister Mary Carla, Lloyd’s first grade teacher would

pull the boys’ hair and grab them by the ears all the

time. Once she made me and a few other girls who were

talking in class touch our toes while she lifted our

skirts and whipped our behinds with a pointer stick. I

remember Lloyd being quite upset one time when one of

the nuns beat him in the cafeteria in front of the

other children. They were laughing at him and teasing

him about it and he didn’t want to go back to school.

The ,tds at St. Luke’s teased Lioyd mercilessly about

his glasses, and the nuns would punish him severely if

he would forget to bring them to school.

My father is a fiercely proud and honest man who

has always demanded respect. -I remember one evening

te, ee

sige

when I was in the eleventh grade, I had my hair up in

those big metal curlers that had the brushes inside

getting ready to go out. I mouthed off to my father

and he came after me and beat me on the head so hard

that the curlers were flat to my head -- but I deserved

it -- you just don’t talk down to your parents.

Sometimes my father would hit Lloyd and there was a lot

of hair pulling.

Lloyd was always trying to keep up with me. I was

a serious roller skater and skated in competition.

Lloyd tried to skate as well as I did and took several

really bad falls. He never did really get into it the

way I did.

Once Lloyd and I got locked in a closet for about

two hours when he was four and a half years old. Lloyd

was really terrified. He couldn’t stand being locked

up. I didn’t like it either but I wasn’t totally

terrified like he was.

Before junior high school, Lloyd was just a

defenseless person trying to get attention. He escaped

into his fantasy world. He watched Zorro on TV and put

Z‘s on everything. He would wear a cape and jump off

chairs pretending he was Zorro. He even got into

trouble with his teacher for putting big Z’s on his

school papers.

As a child, Lloyd was timid, shy and sad. Even

when he was smiling, you could see the sadness. He was

always trying to please my father but he couldn’t live

up to my father’s expectations. Around seventh grade,

he started hanging out with our older cousin Richie.

All of us used to get together with Richie.

Richie was the ringleader and he would think up

mischief for us to get into. Once we all went into a

lady’s yard and jumped off a roof. We all tried to

jump the farthest for Richie. I hurt my foot real bad

but I couldn’t tell our folks or we would all have

gotten a beating. I outgrew wanting to please Richie

but Lloyd never did. Richie was a troublemaker but

Lloyd looked up to him as if he was God. That is how

Lloyd got involved in the robbery when he was

seventeen. Richie did the robbery and got Lloyd to

drive.

Lloyd ended up going to a bad prison when he was

only seventeen. Lloyd was immature for his age anyway.

I don’t know what all happened to Lloyd in prison, but

when he got out you could tell he was different. It

«3!

: as

changed him from a meek child trying to get recognition

to putting on a show of being tough. He learned to

survive but underneath he was the same insecure person.

You could tell it really did hurt hin.

When Lloyd married Doreen it was not good for

either of them. They used drugs together and she just

went along with his crazy life style. They fed each

other’s insecurities.

I knew Lloyd as a frightened timid boy. His basic

personality never changed. He just had to act tough to

survive. Then when the drugs took over his life, he

had no control. It makes me very said because he had

so many hard times in his life and he just couldn’t

dealt with it all. He didn’t have any role models to

help him deal with the abuse and fear. None of us knew

how to help hin.

If I had been asked, I would have been glad to

testify to all these statements at Lloyd’s trial.

(App. 7).

Finally, the jury could have heard extensive and detailed

testimony regarding the development of Mr. Duest’s drug habit and

the control which drugs had over his life. Joseph Deveau, a

childhood friend of Mr. Duest’s, could have explained:

My name is Joseph Deveau and I reside in Belmont,

Massachusetts. I went to school with Lloyd Duest and

was a childhood friend.

I first met Lloyd Duest when we both attended

seventh grade at the same school in Watertown,

Massachusetts. We were both thirteen or fourteen years

old at both.

Lloyd and I were good friends and I spent a lot of

time over at his house as well as seeing him at school.

When I first met Lloyd, he was very studious and nice.

He was a really great kid. My family liked him and

everyone liked him. He had a girlfriend named Lindsay

that he spent a lot of time with. He would carry her

books and was polite and just a nice guy. He was not

at all wild or aggressive.

Towards the end of seventh grade all of us were

drinking and started to experiment with drugs. I

‘

remember that I tried marijuana before Lloyd did. When

I told him about it, he got really mad at me and called

me a drug addict. But as time went on, we all were

using drugs. It was a lot different in the 60s than it

is now. Back then drugs were just coming in and there

was no drug education in the schools like there is now.

We just weren’t aware of the dangers.

Sometime in eighth grade, Lloyd’s older cousin,

Ritchie, got out of prison and that is when Lloyd

really did change. Ritchie had been a Golden Gloves

boxer and Lloyd used to go see him box. Lloyd really

worshipped Ritchie. If Ritchie had been a good person,

Lloyd would have been OK, but Ritchie had a drug

problem and had been in a lot of trouble with the law.

When Lloyd started going around with Ritchie, his

personality and his appearance changed. He started

wearing leather jackets and let his hair grow. Six

months after Ritchie got out of prison, Lloyd was

really acting different. He was hanging around with

older guys and driving around in their cars.

I didn’t think Ritchie would ever have had so much

influence on Lloyd if it hadn’t been for drugs. By the

time Lloyd was 16 or 17 he was just going crazy. It

was a real shock to me. I knew Lloyd as a sensitive

caring person who cared about other people’s feelings

and tried to make people happy. This was just totally

unlike him. Lloyd was drinking and smoking pot by the

end of seventh grade. By the middle of eighth grade,

he was doing a lot of downers. In ninth grade, both of

us were using LSD.

In tenth grade we went to high school. We were

still friends, but Lloyd spent most of his time with a

guy who was dealing seconals and downers. Lloyd’s dad

had taken a bad fall and was crippled for life. I’m

pretty sure Lloyd was using his dad’s dilaudids too.

We didn’t spend all our time together in high school

like we did in junior high but we would still get high

together. I know that Lloyd had needle marks on his

arm in tenth grade and at the end of that year he told

me he was using heroin.

I remember when Lloyd got arrested for driving the

car for Ritchie while Ritchie and another guy did a

robbery. Ritchie had a prior prison record and the

other guy was a three time loser. Lloyd’s family was

an oldstyle Italian family and told Lloyd he should

stick with Ritchie and take a longer sentence so

Ritchie and the other guy would get off easier. That

is how Lloyd ended up going to Walpole prison when he

was just a kid.

I saw Lloyd when he got out.

married to a girl named DeDe.

while he was still in prison.

He had gotten

She was a dope addict.

I saw Lloyd about a week later and he told me he was

strung out on junk again.

treatment programs like there are now.

Back then there were no

All they would

do for junk addicts would be to put them on methadone

and try to maintain them that way.

I think it is important to understand Lloyd’s

family to see how he could

also be so vulnerable to the

I spent a lot of time at Lloyd’s house.

and drugs.

His father and mother were

father was very dominating

be such a good person but

influence of older kids

oldstyle Italians. His

and a tough disciplinarian.

It was the sort of family where the dinner had better

be on the table when he got home or there would be

trouble. Looking back now

knowing what children need

environment, Lloyd did not

parenting. Lloyd’s father

would do anything for you,

influence on Lloyd because

as a father myself, and

to grow up in a healthy

get the right kind of

was the kind of person who

but he was also not a good

he was very explosive.

I think they got married

I can give some examples of what Mr. Duest was

like. One time when Lloyd was with him, Mr. Duest

knocked a complete stranger out cold in a dispute over

a parking place. Another time when we were in seventh

grade I was at Lloyd’s house playing basketball.

Lloyd’s younger brother Paul was teasing us so Lloyd

threw the ball at him but it missed and hit Lloyd’s

mother. Lloyd’s dad came out and punched Lloyd in the

mouth two times and was slapping him. He backhanded me

in the mouth too so I left and I don’t know what else

he did to Lloyd after I was gone. Another time when he

thought Lloyd was talking back to him, his father,

said, you s.o.b., I’1l kill you, and he threw a coffee

mug which barely missed Lloyd’s head and went right

through the wall. Like I said before, Mr. Duest has

some very good qualities, but he is not a nurturing

person and his temper gets completely out of hand.

When they put Lloyd in Walpole prison, there were

even more drugs there than there were on the street.

When I saw him after he got out of prison, his drug

habit was definitely out of control.

I knew Lloyd as well as a brother. Lloyd was

naturally a good person. It was the combination of

trying to please his father, drugs, and the bad

OO bi 4

(App.

ee TEE EASE TE er ERM 6. 4

(App.

of Mr. Duest’s drug habit:

influence of the older guys like Ritchie that got him

into trouble. Now people understand a lot more about

how to get help for somebody like Lloyd who had a bad

home life and really did want to kick the drug habit.

Back then there just weren’t the options for treatment

that we have available now and Lloyd never got the help

he needed even when he was trying to get help.

I would have said all these same things at the

time of Lloyd’s trial if I had been asked but his

attorney never contacted me.

7).

Mr. Duest’s former wife could also have discussed the extent

My name is Doreen Brady and I reside in Lawrence,

Massachusetts. I am Lloyd Duest’s exwife.

I met Lloyd Duest in 1973. We were subsequently

married and I spent time with Lloyd up until the time

he was arrested in Florida.

Since I lived with Lloyd, I was very familiar with

his habits regarding drinking and drugs. When Lloyd

was straight, he was a very nice person and tried to do

right by his family. The problem was that he just

couldn’t stay away from drugs and drinking.

During the entire time that I knew Lloyd, he had

an extremely serious drug habit. He drank heavily of

any type of alcoholic drink he could get his hands on.

He also took any kind of drugs he could get his hands

on.

Lloyd’s worst problem was his addiction to heroin.

He injected heroin every day. He was so addicted that

all he could think about was how to get drugs. When

Lloyd was himself, he was a really nice person but when

he got on drugs, he was so messed up that he didn’t

know what he was doing.

I would have been glad to testify to Lloyd’s

serious drug and alcohol abuse at the time of his trial

had I been asked to do so.

7).

These affidavits present a compelling and humanizing account

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of Mr. Duest’s life, detailing his frailties, the difficulties he

encountered in his youth, the turbulent household in which he

grew up, and his early downfall resulting from substantial drug

abuse. Testimony such as is contained in these affidavits would

have assured an individualized capital sentencing "by focusing

(the jury’s attention upon] the particularized characteristics of

(Mr. Duest})." Cunningham, 928 F.2d at 1019. -

Furthermore, on the basis of a thorough background

investigation, defense counsel also could have obtained

significant mental health mitigating evidence. In conjunction

with a review of extensive background materials (see App. 10, p.

1), Dr. Pat Fleming conducted a mental health evaluation, and

testified before the state circuit court (PC R. 46-106). Dr.

Fleming testified that in addition to conducting interviews with

Mr. Duest, she reviewed "voluminous material" for her evaluation

(PC R. 54), including affidavits and court, prison, and school

records (PC R. 55-57). Dr. Fleming explained that a review of

history was essential because the history "lays the foundation,

the framework for later behavior" (PC R. 69).

Dr. Fleming testified that two factors in family history

were significant in anderstanding what happened in Lloyd Duest’s

life: the family history of abuse and of substance addiction (PC

R. 66). These historical factors are important "because they are

the basis for the later life, and the parents usually rear their

children as they were reared, and we all know that addiction, be

it alcohol or drug, has a familial quality, genetic and

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environmental in varying degrees" (]qd.).

Dr. Fleming described the environment in which Mr. Duest was

raised and how that environment resulted from the way his parents

had been raised:

Considering all the information I had available,

including the clinical interview, I found a young man

who was reared in an abusive family. All of the

affidavits and his testimony support that. What the

earlier testimony did not really indicate was the

extent of the abuse. Mr. Duest, Sr., was reared in an

abusive family himself, in an alcoholic abusive family.

His mother was also reared in a severely alcoholic

family.

THE COURT: Mr. Duest; this Mr. Duest?

THE WITNESS: Mr. Duest, Sr.

THE COURT: Mother and father both?

THE WITNESS: That’s correct. Were both

reared in abusive alcoholic families.

Mr. Duest had a military career where he served in

the Marines, and that was brought out previously, the

damage and the trauma he saw there. What happened by

virtue -- which is often true in abusive families -- of

that Mr. Duest reared his son as he had been reared,

and his grandfather reared his father in a very, very

macho way, teaching him to be tough and to survive.

Mr. Duest Sr. was a boxer, and he believed in boxing

with his children, as he had been boxed with, even

despite the disparity in size and strength, to teach

him to be tough. The family was -- it was a tough

neighborhood. And Mr. Duest valued the macho. His

mother traditionally and typically walked, literally

two steps behind. The father “s" the ruler. She was a

very passive woman, and that was @uite typical of that

culture and that time, who never ,aterfered with the

abuse.

(PC R. 64-65).

I mentioned that the mother, Mrs. Duest, Mr.

Duest’s mother, was reared by an alcoholic father. He,

Mr. Duest, Sr., was reared in an abusive alcoholic

home. Mr. Duest, Mr. Lloyd Duest’s father, developed

an alcohol problem himself. Mrs. Duest sometimes, the

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mother, drank excessively. Mr. Richard Duest, Duest’s

brother, just recently died of cirrhosis of the liver,

this is Richie Duest which is -- what happened was, two

brothers married two sisters, so there was a close both

ne and genetic background, very tight. Very

tight.

Q In this case could you, did you, have you

concluded that Mr. Duest was an abused child?

a Yes. The evidence is really clear, and I

could give you many incidents of that abuse if you want

the type of abuse it was.

Q Can you explain -- What I am interested in is

an explanation of the type of abuse we are talking

about, because abuse is a fairly broad tern.

A The type of abuse was physical and

psychological. The first is physical. Mr. Duest at

this time, I’m talking about Sr., was a boxer. He’s a

big man, and he would throw things. At one time Mr.

Deveau stated that when he was there he became angry at

Mr. Lloyd Duest and threw a coffee cup at him and it

went into the wall. He would take his son and beat him

against his chest and then say, you know, hit it like a

man. He would drag the children by the hair, he would

throw them across the room. He was -- he was harsh.

It was -- that family was in a neighborhood where this

was not uncommon, although, one of the affidavits

states that the neighbors would come because they would

hear the screaming and come to see what was wrong.

(PC R. 66-68). Knowledge of this kind of abusive history is

important to understanding a person because the abuse "forms your

conception of who you are, how you react, and how you cope" (PC

R. 69).

Dr. Fleming then explained Mr. Duest’s reaction to the abuse

he experienced and how he tried to cope with it:

Initially he coped by being very shy and

withdrawn. Initially he was described as a good boy.

This family was a strict Catholic family, and the

sister describes how they would play church and he

would be the priest and she would be the nun. They

believed in heaven and hell. And so he was reared in

that, you know. You are abused by your parents and you

do what is told.

So he was very shy. He went to school, to a

Catholic school. And the documentation by the school

psychiatrist states that he was really traumatized by

the nuns, who evidently, in that particular era and in

that school, believed also in corporal punishment. And

Lloyd was a daydreamer, which is not atypical of abused

children.

What often -- one way of coping is by

dissociating, we call it. And the children do not

absorb; they just shut off.

When he went to school, by his report and

other documentation, he simply didn’t listen. He has

normal or above normal intelligence by the estimates,

yet he was retained in second grade, and finally the

school psychiatrist, because he was having nightmares,

and even fearful of the nuns’ habit, recommended that

he be moved to the public school.

Q In Mr. Duest’s background, one of the things

you I am sure saw was a fair amount of criminal

activity that developed?

A Yes.

Q And different charges and dicferent pleas to

different crimes. How does child abuse relate to that,

or does it? Or in Mr. Duest’s case?

o Well, we got through third grade where he was

being withdrawn and dissociating and cutting everybody

off, and this continued evidently until, you know,

through sixth grade, the early elementary grade.

However, he had a friend that had a father that

had ale in the basement and so they would go over and

nip at the ale in the elementary grade, and that was

one way of coping. And it was accepted; alcohol was

accepted in that background. His uncle would give them

alcohol to drink, but that was one way of coping was to

drink. Later, he used drugs. He was breaking and

entering to get money. It was all tied up to the

addictive process, which Mr. Duest had two main ways of

coping: One was to dissociate and not acknowledge, or

deny; and one was to use drugs, alcohol, and that was

his self medication. That’s not atypical.

Q One of the things you mentioned is an

addiction problem, how does that come about, is that a

product of the child abuse; what can you say about

that?

A That was one way of coping and it was also

available in that particular neighborhood. Because of

that early background, and other statements support

that, that he really needed approval.

He didn’t get his father’s approval. He

never quite measured up to him. And he was very prone

to, you know, to following, not leading. And he wanted

to be the kind of a tough guy, and he had a -- the

cousin, the double cousin, Richie Duest, who already

had been convicted and he used him as a role model.

It all just followed; the addiction that

developed gradually. He started early smoking

marijuana. He started as early as high school of

injecting different downers. He injected the

Methadone.

He -- then he got -- the final incident was

his charge that sent him to Walpole, which is -- we all

know the prison setting there. It was at that time he

was -- I think he was 18 when he was charged on the

robbery charge and convicted, and I think 19 when -- he

just turned 19 when he got to prison. That was a hard

prison. That’s where they sent the Boston Strangler.

And he at that time, in that prison setting, where

drugs were very available, he was a runner for drugs,

getting drugs and passing them around, because that’s

how -- and he became addicted to heroin at that time.

Q (By Mr. McClain) Can you tell me, wanting

approval from others, what’s the source of that?

m He did and does want approval from other.

The source of that is, I believe, was the failure -- he

was a shy, withdrawn child; he was by himself a lot.

The failure to please father; when he did not please

father, he was either psychologically or physically

abused. The father called him a wimp. He knew he had

to be tough to win approval. The best example was the

father was boxer. He wanted him -- his father -- to be

a boxer. He won nineteen straight matches, he lost the

twentieth and the father never had anything to do with

his boxing career again. That’s a good example of the

high expectations his father had that his son never

really reached.

In school he was shy and withdrawn. He

finally got recognition in junior high by being more

the tough one; drugs give us an omnipotence. He felt

better when he was using drugs, as do drug users.

Q Do we know in terms of the addiction, is

addiction environmental; are people subject to

addictions because of environment or is it hereditary,

or do we know?

A All of the above, actually. There is more

evidence that there is a genetic predilection to drug

abuse, however, people without that can become

addicted, it doesn’t have to have a familial

background, but there is strong indication now that

some people are more easily addicted than others. And

in Lloyd’s case he had two, he had the familial,

environmental abuse and the substance abuse in the

family, and then the background, the genetic

background.

The prison environment, and we are familiar

with that, you belong or you -- especially if you are a

young person -- you don’t make it, and so, but for his

background actually Mr. Duest was not -- I suppose no

18 year old or 19 year old is ready for prison. He was

terrified at that. He adjusted there by belonging to a

group and using heroin.

(PC R. 69-74).

Finally, Dr. Fleming summarized the significant factors in

Mr. Duest’s life:

I see first the physical and psychological

abuse of this boy as a child and as a young adult.

This is clear, and it was severe. And the second is, I

see a true lack of direction of societal intervention

at that time, a time when it would have made a

difference in this young man’s life. It was

inexcusable to place him at that prison. I don’t

understand the dynamics of that.

The other great impact is his being led by others,

his need for approval, and so he would follow,

particularly the cousin, where he had the pressure at

that time, when he and the cousin were arrested, and

both his attorney and his family said you join in with

Richie and you say you are guilty of the same crime

because he will get a lesser sentence and you have

never been sentenced. He did this. That was just

another way of his finally winning approval from his

family and from the attorney. I see him very

vulnerable for that.

The drug dependency and the whole addiction

played a significant part in the whole scenario, and I

think that those four factors, as I outlined in my

report, are significant.

(PC R. 77-78).

An account such as Dr. Fleming provided of Mr. Duest’s

character, difficult life, and drug dependency would have been

compelling mitigation. Such an account not only would have

explained Mr. Duest’s life, but also would have explained that

his life was shaped by his family’s history and by the

environment in which he was raised. Counsel simply failed to

look. Counsel failed to obtain the essential history regarding

Mr. Duest’s life and family, and failed to provide a mental

health expert with any background information. See Cowley v.

Stricklin, 929 F.2d 640, 644-45 (1lith Cir. 1991). That failure

was patently unreasonable. All of this evidence was highly

mitigating. All of it was available to trial counsel. All of it

should have been uncovered and presented to Mr. Duest’s jury and

judge. Trial counsel’s failure to do so was d

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