# Opposition Brief — Singletary v. Duest > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1142%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1993 - **Citation:** 507 U.S. 1048 ## Text DOCKET NO. 92-1163 ~ IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1992 a 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 . . « « «© © © © « «© © © © © © © © © © © © © © ii iii 10 10 14 —_ es y 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 12 13 13 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 é 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. LE 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. 3 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). > a 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. 10 i Neti nt et a Be me a ne ea Oe a a ee ee, eR Raa ry ey ema ae 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 11 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. 12 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. 13 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 14 APPENDIX ee 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. ii —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 iv 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, 36 87 99 44 44 18 27 568 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) 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) vi 36 90 90 67 44 43 18 28 29 ’ 520 So. 2d 260 (Fla. 1988) . ’ 555 So. 2d 849 (Fla. 1990) ’ 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 35 16 38 23 29 79 87 30 96 10 91 30 99 91 29 ’ 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) (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 Vv ’ 438 U.S. 586 824 F.2d 879 ’ (1986) (iiGh Cir. (1978) (11th Cir. 1988), 2005 (1988) 1991) 1991) 1988) 1987) viii ° 43, 30, 68 44 99 28 91 25 91 28 10 90 89 10 29 83 29 . 4 ’ . 3 . . , . " ‘ i _— “ ’ » a pasa ths Coe Je oe ii * * 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) .. . ix 44, 91 88 44 99 94 68 18 98 44 30 70 96 80 24 79 91 ’ 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) . xi 25, 80 44 96 18 93 96 44 30 72 92 41 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. ~~ : : 7 » - — " —— 7 fa ene = ; aaa a — 7 7 ers Verret crete = 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 2 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 4 - Oe eee ee | ; 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 a atte y : * : + foe : . 7 : « *? » = : E - : as . Se s ot - ca . A : 7 ~- ; al Fa — * : . : = id . « 3 . m : ; Z * . 7 ‘ : ; : ; * . a * ‘ m1 a e ° m. . - . — ’ » p 7 > : ‘ ; > r 7 4 7 * . - . td * = a - ’ oe 4 Ld ® 45 2 + . . ae, \ Ny =z 7 % aD r ae . —— e, - * ‘ tae ST re oe a, Be “ we - ‘ a ‘ - q 1 ee es . -.. al, — fi. .'? Va we ; - =~ '* : a : ~ ad - >.» > ‘\ oe « kh a? ; . ¢ €. + (ta = . = - * J +4 s ™ v a. ye, ‘ 73 ~ = * ” e . . : i > = « - - At the evidentiary hearing regarding this matter, appellant presented affidavits of family members (including those who did in fact testify at the penalty phase) and the live testimony of Dr. Fleming. Appellant asserts that a comparison of the mitigating evidence now presented with the evidence that was in fact admitted at trial, supports his claim of ineffectiveness. Appellant's argument is legally flawed. As this court has stated before, “the appropriate legal standard is not error-free representation, but ‘reasonableness in light of all _ the circumstances, applying a heavy measure of deference to counsel's judgments’. Foster v. Dugger, 823 F.2d 402, 405, f.n.10 citing to Strickland (llth Cir. 1987). The analysis is based on what the trial attorney knew at the time including those facts and circumstances which formed the basis of his decision. Foster. At the evidentiary hearing appellant's trial attorney, Mr. Baron testified that he did engage the services of a psychologist, Dr. Ceros-Livingston. He impressed upon her the need to know everything about appellant's background regarding possible mitigating evidence. (PC.R. 175). Mr. Baron made a tactical decision not to call Dr. Livingston as her report was more damaging than helpful. (PC.R. 155,157,175,178). The jury would have heard that appellant had a long and involved prison record, including several burglaries, breaking and entering convictions and robberies. In all appellant has been convicted of 28 prior felonies. Appellant told Dr. Livingston that all of the prior crimes were justified. He has escaped from prison = twice before, and he still presents a security risk as he would escape again if given the chance. He has homosexual tendencies, no real possibility of change and always takes what he wants as he is unable to delay gratification. Given this information, Mr. Baron's decision not co present this type of mitigating evidence was reasonable. Smith v. Dugger, 840 F.2d 787, 795 (llth Cir. 1988). Appellant's ‘reliance on Dr. Fleming's report does nothing to undermined Mr. Baron's actions. First of all counsel is not required to shop around for a psychologist until he finds one that will testify a certain way. Elledge v. Dugger, 823 F.2d 1439, 1447, £.nm.17 (llth Cir. 1987). Secondly Dr. Fleming's report would also have opened the door to evidence of appellant's extensive criminal past including his past felonies, his prior escapes and that he was caught in prison with a weapon. (PC. R. 157-158, 170,90). Given the negative impact of this information, appellant has failed to establish that trial counsel's performance was unreasonable. Smith, Burger v. Kemp, 483 U.S. 776, 97 L.Ed.2d 638, 107 S.Ct. 3114, reh. denied, 483 U.S. 1056, 97 L.Ed.2d 820, 108 S.Ct. 32 (1987). Finally to the extent that Dr.Fleming's report contradicts previous information concerning appellant's abusive childhood, such discrepancies or inconsistencies cannot be attributed to counsel's efforts. Whatever information was given to Mr. Baron and Dr. Livingston was provided by appellant and his family. (PC. R. 147-148). It is reasonable for trial counsel to rely on information received = oe from the defendant. Strickland, 466 U.S. at 691; Mitchell v. Kemp, 762 F.2d 886, 889 (llth Cir. 1985). Appellant also relies on various affidavits submitted by family members which detail incidents of both physical and drug abuse. Again as stated above, these same family members did testify at trial, and portrayed appellant as a loving person who never had any mental problems but just got mixed up in the wrong crowd. (R. 1577-1587). Nothing was ever said about this alleged child abuse. The remainder of the “new testimony” is simply cumulative. Consistent with their trial testimony was information regarding appellant's past drug history. (R.1578, 1620, 1623). His father also testified regarding appellant's activities in prison where he helped counsel younger defendant 's concerning drug abuse. The jury also heard how appellant assisted a prison guard with an injured inmate. (R. 1579). Although the evidence is more detailed it is still merely cumulative and does not warrant a finding that Mr. Baron's investigation or presentation was in any way deficient. Dobbs v. Kemp, 790 F.2d 1499, 1513 (lith Cir. 1986). Finally appellant cannot establish that he was in any way prejudiced by the fact that this information was not presented at trial. Accounts of isolated incidents of troubled childhood experiences at school or at home, allegations of impoverished surroundings due to a lack of financial resources, stories regarding physical ailments, behavior problems as 4 e Mie result of falling into the wrong crowd, unsuccessful teenage romances is simply not entitled to much mitigating weight, given the fact that appellant was thirty years old at the time of this crime. Francis v. Dugger, 908 F.2d 696, 703 (llth Cir. 1990). Furthermore since mitigating evidence is in the eye of the beholder, it is questionable that a jury would be sympathetic to appellant's illegal drug use or his extensive life of crime. Stanley v. Zant, 697 F.2d 955, 969-970 (lith Cir. 1983). Appellant has failed to demonstrate that trial counsel's actions were not the result of reasonable trial strategy or that any information not presented would have changed the outcome of the proceedings. Strickland. - 22 « IV. THE PROSECUTOR'S CLOSING REMARKS WERE PROPER, CONSEQUENTLY, TRIAL COUNSEL'S FAILURE TO OBJECT TO ANY OF HIS STATEMENTS DOES NOT DEMONSTRATE THAT APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL “Mppellant presents this court with various instances of alleged improper remarks made by the prosecutor during closing argument. The district court properly concluded that all of the remarks were either not improper or at best harmless error. Since resolution of this issue can be determined from the record already available, no evidentiary hearing was required. Hill v. Lockart, 731 F.2d 568, 572 (8th Cir. 1984) affirmed 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). An evidentiary hearing is not required when prejudice cannot be established. Agan v. Dugger, 835 F.2d 1337, 1338 (11th Cir. 1987). In order to succeed on a claim of ineffective assistance of counsel, appellant must demonstrate that counsel was deficient for failing to object to any of the remarks and that the deficient performance resulted in prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d . This claim was raised in appellant's motion for postconviction. The trial court found that the substance of the claim was procedurally barred for failure to raise it on direct appeal. The Florida Supreme Court determined that the claim was waived on appeal for failure to properly present the claim in appellant's initial breif. Duest v. Dugger, 555 So.2d 849, 851- 852 (Fla. 1990). The district court determined that the Florida Supreme Court's procedural bar was not independent and adequate and addressed the merits. (65-7, 42-43). aa | 674, 104 S.Ct. 2052 (1984). The district court properly denied relief. Wide latitude is permitted in closing argument. Logical inferences can be drawn and counsel is allowed to advance all legitimate arguments. In order to establish reversible error, the defendant must demonstrate that the trial court abused its discretion. Breedlove v. State, 413 So.2d 1, 8 (1982). With these principles in mind, appellant has failed to #stablish that his trial counsel was deficient in his performance. Rather than reviewing the comments in an isolated and distorted fashion, they should be reviewed in context of the entire trial. Muehlman v. State, 503 So.2d 310, 317 (Fla. 1987). The crux of this case centered on which witnesses the jury was going to believe as appellant relied on an alibi defense. The state presented evidence that the defendant was with the victim in Fort Lauderdale the weekend of the murder. The defense presented witnesses who testified that he (appellant) was in Boston that weekend. (R 1400-1496). The jury was repeatedly told that they would be the final judges of +110 was telling the truth and what weight should be given to the individual witnesses. (R 1397-1398, 1404, 1409). The specific comments being challenged are nothing more than proper comments on the shibeueh Miedehees of all the evidence presented and the permissible inferences thereof or fair reply to arguments by the defense. (R 1409-1446, 1500-1505). The prosecutor stressed that his argument was not evidence but —" = i FN ain +f ec ef pete ie: ee merely comments on the evidence presented by both sides. (R 1395, 1404, 1409, 1423, 1426, 1454). The prosecutor's argument was not improper. Craig v. State, 510 So.2d 857, 865 (Fla. 1987). To the extent that appellant claims there was an improper reliance on lack of remorse appellee would make the following argument. The prosecutor's comment regarding lack of remorse was made in reference to the applicability of a specific aggravating factor and therefore it was permissible. (R 1595- 1596, 1601). Muehlman v. State, 503 So.2d at 317 (Fla. 1987). Furthermore, there is absolutely no evidence to suggest that the judge and jury improperly relied upon lack of remorse aS an aggravating factor. The jury was properly instructed on what factors they were to consider. The judge's sentencing order does not mention lack of remorse. Furthermore on direct appeal, the Florida Supreme Court did not consider any nonstatutory mitigating factors. Duest v. State, 462 So.2d 446, 449-459 (Fla. 1985). Appellant has failed to establish that the lack of remorse was considered. Wainwright v. Goode, 464 U.S. 78, 78 L.Ed.2d 187, 104 S.Ct. 378 (1983); Barclay v. Florida, 463 U.S. 939, 77 L.Ed.2d 1134, 103 S.Ct. 3418 (1983). Even if lack of remorse was improperly considered, any error would be considered harmless given the strength of the aggravating factors. Bertolotti v. State, 476 So.2d 130 (Fla. 1985); Bush v. State, 461 So.2d 936 (Fla. 1984), cert. denied, 475 U.S. 1031 (1986); Grossman _v. state, 525 So.2d 833 (Fla. 1988); Pope v. Wainwright, 496 So.2d 798, 802-803 (Fla. 1986). — Lastly appellant claims that the prosecutor impermissibly made reference to irrelevant characteristics of the victim. The prosecutor's reference to the age of the victim along with a passing reference to the fact that he had a family does not demonstrate any reversible error under Florida law consequently, defense counsel was not deficient in his failure to object. The comments were made in reference to the existence of an aggravating factor. Mere reference to the victim or his family is of little impact and does not require reversal. Bush v. State, 461 So.2d 936, 941 (Fla. 1984); Johnson v. State, 442 So.2d 185, 188 (Fla. 1983); Bush v. Dugger, 16 F.L.W. S233 (Fla. March 28, 1991). Appellant's reliance on Taylor v. State, 16 F.L.W. S469, 471 (Fla. June 27, 1991) is unpersuasive as there was no prolonged attempt to elicit the sympathy of the jury by emphasizing the fact that the victim could not enjoy life as the defendant would be able to if sentenced to life. Taylor. Unlike the excessive focus on the characteristics of the victim that took place in Vela v. Estelle, 708 F.2d 954 (5th Cir. 1983), the prosecutor's comments in the case sub judice do not warrant relief. Facts about a victim developed during the course of a trial are not necessarily error. Brooks v. Kemp, 762 F.2d 1383, cert. granted and vacated 106 S.Ct. 3325, 478 U.S. 1016, 92 L.Ed.2d 732, affirmed on remand, 809 F.2d 700, cert. denied, 107 S.Ct. 3240, 483 U.S. 1010, 97 i.Ed.2d 744, on subsequent appeal 385 S.E.2d 81, cert. denied, 110 S.Ct. 13423, 108 L.Ed.2d 498 (Fla. 1987). — ’ ’ ; es ee ae P a P gr v rot oy f © ‘ : 4 . és , + £ safe on q * 4 . “i } 7 ‘ . - . a) ‘ ; e . 1 . . . wie ae ” i ‘ he ‘ f % vi. . . * - : . . ‘ i ; ‘ é 4 ‘ - 4 “ ren i 4 \ ‘ ’ P : . ' ' = ie : ' . ‘ 4 * ‘ ‘ . - ‘ “ " . ’ os ek eee ee en ee ee ge ee eee ae Finally reference to appellant's lack of military history were made to rebut a claim that he served in Viet Nam. They were made not as evidence of nonstatutory aggravating factor but rather to negate the existence of an alleged mitigating factor. (R 1614, 1616). Trial counsel was not required to object. Muelhman. In summary, appellant has failed to establish either deficient performance or prejudice therefrom, consequent!’ this claim must be denied. o Vv. THE DISTRICT COURT PROPERLY DENIED APPELLANT'S REQUEST FOR AN EVIDENTIARY HEARING REGARDING HIS BRADY CLAIM Appellant claims that the district court, along with the state trial court, erred in denying his request for an evidentiary hearing regarding various Brady claims. As correctly pointed out by appellant, he received an evidentiary hearing regarding one of his alleged Brady violations. See issue. I. Appellant has failed to establish that he is entitled to a hearing regarding the remainder of his claim. The district court denied appellant's request for an evidentiary because he has failed to establish that even if his allegations are true, he still would not be entitled to relief. (4-65-12-13). Agan v. Dugger, 835 F.2d 1337, 1338 (llth Cir. 1987) The district court's ruling was correct. Lindsey v. Smith, 820 F.2d 1137, 1150-1152 (llth Cir. 1987). Appellant claims that the state withheld evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). The gravamen of a true Brady claim is that 1.) the prosecution, deliberately or negligently, withheld evidence, 2.)which was favorable or exculpatory and 3.) that evidence was material. Materiality has been defined as : if there is as reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. United States v. Bagley, 473 U.S. 667, 682 - 28 - (1985). With these principles in mind it is clear that appellant cannot establish either the requisite exculpatory nature of the information or the materiality of same. An evidentiary hearing is not warranted. Smith; Kennedy v. Dugger, 5 FLW Fed. C990, 992 (llth Cir. May 31, 1991). Furthermore, the circumstances regarding how he has now come into possession of this exculpatory evidence has not been plead. Nor has appellant established how any of this information could not have been discovered with any reasonable diligence. As such this information cannot be considered Brady material. Jarrell v. Balkom, 735 F.2d 1242, 1258 (llth Cir. 1984). Appellant's first alleged instance of Brady material is that the state withheld a pretrial statement made by a state witness, Neil O'Donnell. He claims that the withheld statement was inconsistent with O'Donnell's trial testimony and therefore was material for impeachment purposes. The alleged inconsistency centers around from whom did O'Donnell hear the appellant being referred to as “Danny”. A comparison of the two statements reveals that they are consistent, consequently the pretrial statement is not favorable or exculpatory. At trial O'Donnell testified to the following; Q: By any chance did you to happen to ever hear him be referred to by name, he being the young man in the jogging suit? - 29 « A: Conversation across the bar with him talking to people, I believe I heard the name of Danny, but I mean I'm not sure. I couldn't swear to that. That name sticks out in my mind that I heard him when he was talking with the other people. (R 576). Appellee fails to see how this statement differs from the pretrial statement. Furthermore, in light of O'Donell's complete trial testimony in which he positively identifies appellant as the one seen with the victim on the day of the murder, the pretrial statement is not material.(R 596, 570, 586). Appellant next alleges that an unnamed witness told police that the defendant had bushy hair and had been in the bar on three previous nights. Appellant claims that this information was material due to its impeachment value. In light of the overwhelming evidence presented at trial which established appellant's presence in Fort Lauderdale with the victim that weekend the outcome of the proceeding would not have been different had the jury heard this unnamed witness's testimony. Duest v. State, 462 So.2d Also without merit is appellant's claim that state witness Michael DiMizio gave a pretrial statement which was .inconsistent with his trial testimony. The inconsistency involves the time that DiMizio said he saw appellant with the victim's car, i.e. between 2:00 and 2:30 or after 3:30. In both statements DiMizio stated that the time could have been later. = 4 sles ‘ At trial he stated that he was not sure of the time. (R 665). Use of this statement to impeach DiMizio would not have changed the outcome of this case as the statement does nothing to bolster appellant's alibi defense or negate the state's evidence that appellant was with the victim. Likewise without merit is the claim that Robert Harris had exculpatory information,i.e. that the victim was in excellent health and that he (the victim) cared for his roommate, David more than David cared for him. There is absolutely no evidence to even suggest that the roommate was responsible for this crime. Appellee fails to see how the victim's physical shape or his feelings for his roommate amount to material evidence. Bagley. The following statements are equally lacking in materiality. The first officer to respond to the victim's home, described the blood at the scene as "fresh". Appellant claims that this evidence implicates the guilt of the victim's roommate. At trial the medical examiner testified that death had occurred more or less within four hours of 9:30 P.M. (R. 913- 914). The jury was also aware that the roommate arrived home between 6:30-8:00. Had the jury heard the officer's description of the blood as "fresh", the outcome of the proceedings would not have changed. Appellant also claims that the state withheld Robert Harris's statement that the victim was in financial trouble and that neither the victim nor his roommate had any expensive jewelry. These statements would have contradicted appellant's statement to DiMizio that the stolen jewelry was ro * ee 7 i — > Pet oe = - Rea et ee ay atoll a 7 i a — worth $15,000. Appellee fails to see how Harris's statements are material. At best they illustrate that appellant either lied about or exaggerated the value of the property. More importantly the fact that appellant discusses the stolen property negates his alibi defense. The statement is anything but exculpatory. Lastly the fact that the pack of Marlboro cigarettes discovered at the scene was not found until two days after the murder and the fact that the state had police reports inconsistent with an alleged statement by appellant that he had never committed a murder before are not material. Whether or not the cigarettes found belonged to appellant or not does not negate the other evidence of his guilt. In other words, if the cigarettes found belonged to appellant then that strengthens the state's case. However the absence of the cigarettes does not mean that he was not there. As for the materiality of the police reports appellant has failed to even State how they are inconsistent let alone demonstrate their exculpatory value. In summation the district court correctly determined that appellant has failed to establish that he is entitled te any relief. None of the alleged instances of Brady evidence is material. “22 * - ” “a ae a? ‘. - Soe Coa eR ane VI. APPELLANT DID NOT RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL Appellant claims that he received ineffective assistance of appellate counsel for counsel's failure to raise six specific issues on «peal. Those issues are: 1) inadmissibility of flight evidence, 2) inadmissibility of collateral misconduct, 3) sentencing court's failure to consider and list nonstatutory mitigating evidence, 4) erroneous jury instruction which impermissibly shifted the burden, 5) introduction and consideration of nonstatutory aggravating evidence, 6) erroneous jury instruction regarding the number of votes required for a life recommendation. In assessing the effectiveness of appellate counsel the applicable standard is the same standard utilized to evaluate trial performance. Matire v. Wainwright, 811 F.2d 1430, i433 (kita Cis. i967). Appellant must demonstrate deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668 (1984). In order to establish deficient performance, appellant must show that counsel's failure to pursue those six claims was not reasonable. Then appellant must show that the result of the proceedings would have been different absent counsel's errors. Strickland, 466 U.S. at 687. Appellant has not meet his burden. Appellate counsel is not required to pursue every nonfrivolous point. Jones _v. Barnes, 463 U.S. 745, 751, 77 L.Ed.2d 987, 993, 103 S.Ct. 3308 (1983). Nor is counsel required = = ae 1 *» > : . . a to pursue claims that were not properly preserved for appeal. Francois v. Wainwright, 741 F.2d 1275, 1285-1286 (llth Cir. 1984). Finally, deference is owed to the Florida Supreme Court's decision regarding the viability of underlying state law claims which appellant alleges. would have been successful on appeal. Alvord v. Wainwright, 725 F.2d 1282, 1291 (llth Cir. 1984). With these principles in mind, appellant has failed to establish his claim. His argument is deficient on its face as he has not demonstrated how his six claims would entitle him to relief under Florida law. Cross v. U.S., 893 F.2d 1287, 1290 (llth Cir. 1990); Alvord, 725 F.2d at 1291. Likewise, appellant is not entitled to an evidentiary hearing on this claim since he has failed to establish prejudice. Harich v. Dugger, 844 F.2d 1464, 1471 n.7 (llth Cir. 1988). Furthermore the issue can be resolved based on the record already before this Court. Hill v. Lockart, 731 F.2d 568, 572 (8th Cir. 1984), affirmed, 474 U.S.. 52, 106 S.Ct. 366, 88 L.Ed. 2d 203 (1985). Appellant claims that appellate counsel should have challenged the admissibility of both collateral crime evidence and flight. The Florida Supreme Court found that neither issue would have been successful on appeal. Duest v. Dugger, 555 So.2d 849, 852-853 (Fla. 1990). The district court properly relied on the applicable Florida law and concluded that appellate counsel would not have been successful on appeal regarding these issues. (65- 27, 48-49). Alvord, 725 F.2d at 1291. i 20m Also without merit are appellant's claims regarding impermissible nonstatutory aggravating factors and an erroneous instruction on the number of votes required for a life recommendation. The Florida Supreme Court refused to find appellate counsel ineffective because both claims were not preserved for review. As such counsel cannot be deemed ineffective for failing to raise nonpreserved claims. Duest, 555 So.2d at 852. Francois v. Wainwright, 741 F.2d 1275, 1285-1286 (llth Cir. 1984). The district court properly concluded thatthe respective substantive claims raised as issues XI and XXV in his petition were procedurally barred for failure to raise them on direct appeal. Teague v. Lane, 489 U.S. 288, 298-299 (1989). (65- 27-28, 30-31). The final two claims that appellant Claims should have been pursued on direct appeal are, the failure of the court to consider nonstatutory mitigating evidence and a challenge to the capital sentencing instruction which allegedly shifts the burden of proof. The Florida Supreme Court determined that neither Claim was preserved for appeal, consequently, appellant counsel cannot be ineffective for failing to pursue them. Duest, 555 So.2d at 852, 853. That determination was correct. Francois. The district court reached the merits of the first claim, finding that there is no evidence to suggest that the court did not consider all the mitigating evidence presented. (65- 47). The state record clearly supports that finding. The = trial court's order stated that the mitigating presented did not outweigh the aggravating factors. (R. 1806). After hearing al! the evidence the trial court ordered a presentence investigation. All the evidence presented in the presentence report consists of nonstatutory mitigating evidence. The contents of the report were fully discussed. (R 1576-1588, 1638, 1649,1805-1831.) The trial court instructed the jury on the appropriateness of considering nonstatutory mitigating evidence. (R 1627-1628). Finally, at the hearing on appellant's collateral motion, the trial court stated that she did in fact consider all the evidence that was presented. (PC.R. 122, 680). The fact that the judge's order does not specify or outline the mitigating evidence considered does not establish that such evidence was not considered. Echols v. State, 484 So.2d 568 (Fla. 1985); Palmes v. Wainwright, 725 F.2d 1511, 1523 (llth Cir. 1984); Harich v. Wainwright, 813 F.2d 1082, 1101-1102 (llth Cir. 1987), rehearing granted on other grounds, Harich v. Dugger, 844 F.2d 1464, 1468-1469 (llth Cir. 1988). The district court also concluded that since the substantive claim regarding burden shifting was without merit, appellant cannot possibly establish prejudice under Strickland. (65-25-26, 33-34). The district court's determination was correct. The jury instructions regarding Florida's sentencing scheme correctly outlines the procedure to be followed in determining’ an appropriate sentence. The scheme and language have been approved by both this Court and the United States — - Supreme Court. Bertolotti v. Dugger, 883 F.2d 1503, 1525 (llth Cir. 1989); Kennedy v. Dugger, 5 FLW Fed.C990, 994 (llth Cir. May 31, 1991); Proffitt v. Florida, 428 U.S. 242, 248-251, 96 S.Ct. 2960, 2965-66, 49 L.Ed.2d 913 (1976); Blystone v. Pennsylvania, 494 U.S. _, 108 L.Ed.2d 255, 110 S.Ct. _ (1990); Boyde v. California, 494 U.S. __, 108 L.Ed.2d 316, 110 S.Ct. __ (1990); Walton v. Arizona, _U.S. _, 110 §.Ct. 3047, 111 L.Ed.2d 511 (1990). In summation appellant has failed to establish that he received ineffective assistance of appellate counsel because the issues he alleges should have been raised were either not preserved for appellate review or would have been unsuccessful if challenged on direct appeal. VII. THERE WAS SUFFICIENT EVIDENCE TO ESTABLISH THE CONVICTION FOR’ FIRST DEGREE MURDER Appellant claims there was insufficient evidence to establish his guilt beyond a reasonable doubt. He claims that there was insufficient evidence of premeditation to sustain the conviction. The Florida Supreme Court determined that there was sufficient evidence of premeditation. Duest v. State, 462 So.2d 446, 449 (Fla. 1985). The district court properly concurred in that finding. (65-28-29). Under the applicable standard as articulated in Jackson v. Virginia, 443 U.S. 307 (1979); “the proper inquiry is not whether the reviewing court believes that the evidence established guilt beyond a reasonable doubt but ‘whether, after the viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Jackson, 443 U.S. at 319. There was sufficient evidence to establish appellant's guilt beyond a reasonable doubt. a | VIII. THE SENTENCING JURY INSTRUCTIONS WERE CONSTITUTIONAL HOWEVER, THE DISTRICT COURT CORRECTLY FOUND THIS CLAIM TO BE PROCEDURALLY BARRED Appellant challenges the application of two aggravating factors; "heinous atrocious and cruel", and "cold calculated and premeditated". Appellant claims that both factors are unconstitutionally vague. In his post-conviction motion appellant raised both of these claims. The trial court and the Florida Supreme Court found the challenge to the "cold calculated and premeditated" factor to be barred for failure to raise it on direct appeal. Duest, 555 So.2d 849, 853 (Fla. 1990). The district court properly deferred to that adequate and independent’ state procedural bar. Wainwright v. Sykes, 433 U.S. 72 (1977). (65- 8). Appellant has failed to establish cause and prejudice to overcome his procedural bar. As such this claim should be summarily denied. Presnel v. Kemp, 835 F.2d 1567 (llth Cir. 1988). His reliance on Hitchcock v. Dugger, 481 U.S. 393 (1987) is totally misplaced. Hitchcock, deals with the presentation of nonstatutory mitigating evidence and the unconstitutionality of it's exclusion from the jury and judge. Channeling of a sentencer's discretion, including the claim that the aggravating factors are vague and overboard has been addressed by the United States Supreme Court long before appellant's direct appeal. Proffitt v. Florida, 428 U.S. 242 (1976). As such, appellant — oo cannot establish cause for his failure to bring his claim before now. Appellant's challenge to the constitutionality of the "heinous atrocious and cruel" aggravating factor is also in procedural default and without merit. The trial court found the claim to be procedurally barred for failure to raise it on direct appeal. The Florida Supreme Court found the claim to be waived for purposes of appellate review because counsel failed to properly address the issue in his appellate brief. Duest, 555 So.2d at 852. The district court did not consider the waiver to be independent and adequate. (65- 7-8). The court did however find the claim to be procedurally barred based on the fact that the Florida Supreme Court would have barred the claim if it was presented in his brief. Teague v. Lane, 489 U.S. 288, 298-299 (1989). (65,24-25). The district court properly recognized that Florida courts faithfully applies its procedural bar. Dugger v. Adams, 489 U.S. 401, 410, n.6, (1989); Lastly appellant's argument is without merit as this Court has rejected this identical claim. Francis v. Dugger, 908 F.2d 696, 705 (llth Cir. 1990). In summary the district. court correctly determined that the issue was procedurally barred. In the alternative, appellee would state that the claim is without merit. IX. THE INTRODUCTION OF APPELLANT'S ESCAPE ATTEMPT AND HIS USE OF AN ALIAS DID NOT VIOLATE ANY CONSTITUTIONAL RIGHT Appellant claims that he was denied a fair trial when the state introduced evidence of flight and evidence of his use of an alias. The Florida Supreme Court found this claim to be procedurally barred for failure to raise it on direct appeal. Duest, 555 So.2d 849, 851. The district court properly upheld that independent and adequate state procedural bar. (65- 8). Wainwright v. Sykes, 433 U.S. 72 (1977); Dugger v. Adams, 489 U.S. 401, 410 n.6 (1989). Since the district court found this claim to be procedurally barred, Appellant must establish cause and prejudice in order to overcome the procedural hurdle. Appellant has not even addressed this issue in his brief. As such this claim should be denied as a matter of law. Presnell v. Kemp, 835 F.2d 1567 (llth Cir. 1988). In the alternative appellant's claim lacks merit as well. In order for a state evidentiary ruling to rise to the level which would warrant habeas relief, the ruling must deny appellant of fundamental fairness. Smith v.Wainwright, 741 F.2d 1248, 1258 (llth Cir. 1984). Fundamental fairness means that the challenged evidence is “material in the sense of a crucial, critical, highly significant factor". Smith, (quoting Jameson v. Wainwright, 719 F.2d 1125, 1127 (llth Cir. 1983), cert. denied, 466 U.S. 975 (1984). Appellant cannot demonstrate any such error. The Florida Supreme Court has already ruled this evidence to be admissible and relevant. Duest, 555 So.2d at 852. Furthermore, the admission of such evidence cannot be deemed “crucial, critical, highly significant factor”. Appellant cannot establish any constitutional violation. Smith. =~ THE JURY INSTRUCTIONS REGARDING THE NUMBER OF VOTES REQUIRED TO IMPOSE A LIFE SENTENCE DID NOT RESULT IN ANY CONSTITUTIONAL VIOLATION, FURTHERMORE,THIS CLAIM IS PROCEDURALLY BARRED Appellant claims that he was constitutionally prejudiced by the jury instructions regarding the number of votes required for a life recommendation. The state trial court found this claim to be procedurally barred for failure to raise it on direct appeal. (PC. R. 679-680). The Florida Supreme Court found the claim waived because appellant did not properly brief the issue in his appeal. Duest, 555 So.2d at 852. The district court properly found this claim to be procedurally barred. (65-30-31). The court properly reasoned that had it been presented to the Florida Supreme Court, the procedural bar found by the trial court would have been upheld. Teague v. Lane, 489 U.S. 288, 288- 299 (1989). Since this claim is precluded from federal review, appellant must establish cause and prejudice to overcome his state default. Presnell v. Kemp, 835 F.2d 1567 (llth Cir. 1988). Appellant has failed to address this dispositive aspect of the district court's order. As such this claim should be denied as a matter of law. Presnell; Henry v. Wainwright, 743 F.2d 761 (llth Cir. 1984). In the alternative, appellant's claim lacks merit as well. Appellant has failed to establish the critical factor regarding this claim, there is no indication that the jury was ever deadlocked. (R.1634-1637). Furthermore the written instructions given to. tae jury clearly state that a recommendation of life requires only six votes (R.1800). Their recommendation was based on a majority vote. There is no constitutional violation. Henry, supra. XI. THE PENALTY PHASE JURY INSTRUCTIONS CORRECTLY DESCRIBE FLORIDA'S’ CAPITAL SENTENCING SCHEME Appellant claims that the jury instructions regarding sentence impermissibly shift the burden to him to prove that death is not the appropriate penalty. The district court correctly found this claim to be without merit. The instructions given in the instant case are identical to those previously upheld before this court. (R-1626- 1627). Bertolotti_ v. Dugger, 883 F.2d 1503, 1525 (llth Cir. 1989); Kennedy v. Dugger, 5 F.L.W. Fed. C990, 994 (llth Cir. May 31, 1991); The United States Supreme Court has also found this claim to be without merit. Walton v. Arizona, _ U.S. _, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). CONCLUSION WHEREFORE, based on the foregoing facts and relevant case law, appellee asserts that appellant is not entitled to any relief. The district court's order should be AFFIRMED in its entirety. Respectfully submitted, ROBERT A. BUTTERWORTH Attorney General Tallahassee, Florida —_—_— / ‘ / 4“, ft CELIA A. TERENZIO Assistant Attorney General Florida Bar No. 656879 111 Georgia Avenue, Suite 204 West Palm Beach, Florida 33401 (407) 837-5062 . Counsel for Appellee CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing "Answer Brief of Appe.lee" has been furnished by United States Mail to: MARTIN J. MCCLAIN, ESQ. and GAIL E. ANDERSON, ESQ., Office of the Capital Collateral Representative, 1533 South Monroe Street, Tallahassee, Florida 32301, this 7th day of — October, 1991. . / / ee oe i é Of Counsel /pas --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1142%3A2. Public record. Not legal advice.