Appendix — Wainwright v. Smith

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

Louie L. Wainwright, Secretary

Department of Corrections

State of Florida

Petitioner,

vs.

Dennis Wayne Smith,

Respondent.

On Petition for Writ of Certiorari

to the United States

Court of Appeals for the

Eleventh Circuit

APPENDIX OF PETITIONER ON JURISDICTION

JIM SMITH

ATTORNEY GENERAL

THEDA JAMES DAVIS

Assistant Attorney General

1313 Tampa Street, Suite 804

Park Trammell Building

Tampa, Florida 33602

(813) 272-2670

Dennis Wayne SMITH,

Petitioner-Appellant,

Vv.

Louie L. WAINWRIGHT, Secretary of

Florida Department of Offender Reha-

bilitation, et al., Respondents-Appellees.

No. 83-3690

United States Court of Appeals,

Eleventh Circuit.

August 23, 1984

Habeas petitioner appealed from an

order of the United States District Court

for the Middle District of Florida, Wn.

Terrell Hodges, Chief Judge, denying his

petition for writ of habeas corpus. The

Court of Appeals, James C. Hill, Circuit

Judge, held that: (1) habeas petitioner

was entitled to evidentiary hearing on

claim of ineffective assistance of counsel

for failure to use prior conflicting

statements to impeach prosecution

witneses; (2) posttrial recantations of

accomplice did not warrant habeas relief;

(3) claim that accomplice confessed and

agreed to testify for the state only

because of fear of death penalty was

barred by procedural default; (4)

admission of testimony concerning facts of

second murder for which petitioner was not

on trial did not deprive petitioner of

fundamental fairness so as to warrant

habeas relief; (5) alleged error in

admitting testimony of accomplice's wife

did not render trial fundamentally unfair

so as to warrant habeas relief; (6) fact

that psychiatrist retained by petitioner

did not read petitioner Miranda warnings

before conducting examination did not

render testimony based on petitioner's

statements inadmissible; (7) alleged

disparity in sentencing between petitioner

and acomplice did not warrant habeas

relief; and (8) appellate counsel rendered

constitutonally effective assistance.

Affirmed in part, and remanded.

1. Habeas Corpus 59

Habeas petitioner was entitled to

evidentiary hearing on claim of ineffec-

tive assistance of counsel for failure to

use conflicting statements to impeach pro-

secution witnesses.

y Criminal Law 641.13(1)

To demonstrate ineffective assistance

of counsel, a defendant must show both

that attorney failed to render reasonably

effective assistance and that there is a

reasonable probability that, but for coun-

sel's unprofessional errors, result of

proceeding would have been different.

3 Habeas Corpus 25.1(8)

Posttrial recantations of prosecution

witness did not warrant habeas cornus re-

lief since such evidence, absent showing

that it bore directly on constitutionality

of conviction, went to merits of convic-

tion, not its legality.

4. Habeas Corpus 25.1(8)

Habeas petitioner's failure to pro-

perly raise under Florida procedure issue

that accomplice confessed and agreed to

testify for state only because of accom-

plice's fear of death penalty, in absence

of showing of cause for failure to pre-

serve issue and resulting prejudice, bar-

red issue from review in federal courts on

petition for habeas corpus.

5. Habeas Corpus 45.2(4)

In order for an evidentiary ruling to

be ‘cognizable in habeas corpus, it must

deprive state court defendant of fundamen-

tal fairness.

nana ee

A-5

6. A denial of fundamental fairness to

a state court defendant sufficient to ren-

der evidentiary ruling cognizable in ha-

beas corpus occurs when evidence is mater-

ial in sense of a crucial, critical,

highly significant factor.

Ve Habeas Corpus 45.2(4)

Although admissiblity of testimony

concerning second murder for which habeas

petitioner had not been on trial presented

a close and difficult question under

Florida law, admission of such testimony

did not result in a denial of fundamental

fairness sufficient to render Florida

court's evidentiary ruling cognizable in

habeas corpus.

8. Habeas Corpus 45.2(4)

Omission of accomplice's wife from

witness list and presence of accomplice's

wife during portion of trial that preceded

her testimony in violation of sequestra-

tion rule, if violation of Florida state

law, did not render trial fundamentally

unfair so as to warrant federal habeas

relief.

9. Criminal Law 412.1(2)

Testimony of psychiatrist retained by

defendant through his trial counsel to

conduct examination regarding possible

claim of insanity was not rendred inadmis-

sible because psychiatrist did not read

defendant Miranda warnings before conduct-

ing psychiatric examination.

10. Habeas Corpus 45.2(4)

Alleged disparity in sentencing of

defendant, who received death penalty for

his part in murder, and accomplice, who

received sentence of 25 years in prison in

accordance with plea bargain, did not vio-

late Federal Constitution so as to warrant

habeas relief.

11. Criminal Law 641.13(7)

Appellate counsel rendered constitu-

tionally effective asistnce to defendant

who had been sentenced to death for his

part in murder, despite contentions that

counsel should have challenged on appeal

admissiblity of photographs of victim's

body during penalty phase of trial, coun-

sel should have argued that Florida proce-

dure providing for bifurcated sentencing

hearing was unconstitutional, counsel

should have challenged at penalty phase

admissiblity of testimony of psychiatrist

retained by defendant, appellate counsel

wrongly failed to challenge trial court's

finding of heinous, atrocious, or cruel

aggravating circumstances, appellate coun-

sel should have challenged jury instruc-

tions, and appellate counsel should have

requested transcription of entire voir

dire proceedings.

12. Habeas Corpus 59

District court properly refused to

grant evidentiary hearing on habeas peti-

tioner's contention that death penalty in

Florida had been discriminatorily applied

on basis of race of victim in view of fact

that such issue had been conclusively re-

solved adversely to petitioner.

13. Habeas Corpus 59

District court properly refused to

grant evidentiary hearing to habeas peti-

tioner on challenged use of nonrecord

material by Florida Supreme Court in re-

viewing his death penalty case in view of

fact that such issue had been conciusively

resolved adversely to petitioner.

14. Habeas Corpus 30(1)

Habeas petitioner's claim that

sentence of death was unconstitutional

because of state trial judge's faulty in-

structions to jury concerning aggravating

and mitigating circumstances and because

trial judge misapplied law concerning use

of circumstances by relying on unconstitu-

tional circumstance was barred by proce-

dural default.

Appeal from the United States Dis-

trict Court for the Middle District of

Florida.

Before RONEY and HILL, Circuit Jud-

ges, and TUTTLE, Senior Circuit Judge.

JAMES C. HILL, Circuit Judge:

Dennis Wayne Smith appeals to this

court from the order of the distict court

denying his petition for a writ of habeas

corpus. We affirm the district court's

judgment in part; however, concluding that

A-10

Smith should have received a hearing on

some of his claims of constitutional error

we vacate in part and remand.

Smith was tried and convicted in a

Florida court on one count of first de-

gree murder in late March, 1976. After a

sentencing hearing, the trial judge sen-

tenced Smith to death. Smith appealed to

the Florida Supreme Court, which affirmed

his conviction in Smith v. State, 365

So.2d 704 (Fa. 1978), cert. denied, 444

US. 885, 100 S.Ct. 177, 62 L.Ed.2d 115

(1979). In 1981, Smith filed a motion to

vacate his conviction and sentence pur-

suant to Florida Rule of Criminal Proce-

dure 3.850. The trial court denied this

motion without a hearing, and Smith ap-

pealed. The Florida Supreme Court affirn-

ed the trial court's order in part, but

remanded for an evidentiary hearing

A-11

concerning an alleged violation of the

rule in Brady v. Maryland, 373 U.S. 83, 83

S.Ct. 1194, 10 L.Ed.2d 215 (1963). See

Smith v. State, 400 So.2d 956 (Fla. 1982).

After holding a hearing, the trial court

again denied Smith's motion, and the

Florida Supreme Court affirmed in Smith v.

State, 421 So.2d 146 (Fla. 1982). On Feb-

ruary 9, 1983, Smith filed his petition

for a writ of habeas corpus in the dis-

trict court pursuant to 28 U.S.C. §2254.

The factual background of this case

is relevant to several of the issues

raised by Smith. The primary evidence at

trial against Smith was the testimony of

Wesley Johnson, which the Florida Supreme

Court summarized as follows:

After taking part in the

murder of John Mitchell Arns-

dorff, Wesley Johnson turned

himself into the police.

A-12

Eventually he was charged with

two other murders, as well. In

the meantime he implicated Smith

in the Arnsdorff murder and ac-

cordingly, Smith was indicted

for first degree murder. Smith

pleaded not guilty and the cause

was set for trial. Before its

start, Johnson pleaded nolo con-

dendere to the three murders and

was to be given concurrent life

sentences in return for testi-

mony against Smith, the senten-

ces to be imposed after the

testimony.

Johnson testified to the

following: He, Smith and a man

named Wagner met at a bar and

decided to rob a homosexual in

order to obtain money for beer.

The three then went to another

bar where they met Arnsdorff.

On the pretext of giving a

party, they invited him “© a

shack Johnson was staying in.

Arnsdorff and Johnson drove in

Arnsdorff's car, Smith and Wag-

ner in Smith's car. Johnson and

Arnsdorff reached the shack

first. Smith and Wagner had

taken a wrong turn and were

late, but Johnson kept Arnsdorff

from leaving by showing him some

silver casting equipment. When

the former two arrived the men

drank beer for a short while and

then Johnson grabbed Arnsdorff

while Wagner threatened him with

an ice pick. While Arnsdorff

was restrained Smith took

A-13

Arnsdorff's wallet, in which

there was $600 from his car and

one of the three removed his

wrist watch. They then forced

Arnsdorff into the trunk of his

own car. Their intention was to

abandon him in a remote spot.

Wagner and Johnson, in Arns-

dorff's car, were following

Smith in his car when they ran

into a bridge abutment, flatten-

ing a tire. (Throughout the

night the three had been drink-

ing heavily.) After an unsuc-

cessful attempt to fix it, the

two cars proceeded until the

wheel with the flat tire came

loose. One of the three opened

the trunk and Smith hit Arns-

dorff with a tire tool. Wagner

then began to stab him with the

ice pick. Believing Arnsdorff

to be dead they shut the trunk

with him in it and went to a gas

station. Smith told Wagner to

get some gas, which he did.

They returned to Arnsdorff's car

and at Smith's direction, John-

son doused it with gas and set

it afire. (Expert opinion that

Arnsdorff died from incineration

or asphyxiation from smoke

caused by the fire had been in-

troduced into evidence

earlier.)

At this point in Johnson's

narration the court excused the

jury to allow the defense to re-

new a pre-trial motion that tes-

timony by Johnson as to a second

A-14

murder by him and Smith be sup-

pressed. The court denied the

motion, as it had previously

done, on the ground that the se-

cond murder, though separate

from the first, was part, just

as Arnsdorff's of a single

transaction, the robbery, and

therefore, relevant to the Arns-

dorff murder.

Johnson then testified that

after burning the car he, Smith

and Wagner immediately went to a

swimming hole. An argument over

division of the $6.00 and watch

ensued between Smith and Wagner.

Smith yelled to Johnson to grab

Wagner, and while Johnson held

him Smith stabbed him with the

ice pick. At Smith's direction

Johnson pulled Wagner into the

swimming hole and held him under

water to ensure his death. They

transported his body elsewhere

and buried it.

Smith took the stand in his

own defense He admitted that he

was in the company of Wagner and

Johnson on the night of the mur-

der, but claimed that the rob--

bery was their idea. Although he

accompanied them to the second

bar and left it with them and

the victim, he testified that

they drove him straight from the

bar to his apartment, because he

was too intoxicated by beer and

drugs to do anything but sleep.

That was the last, according to

Smith, he saw of them that

A-15

night. No evidence was intro-

duced by the defense to corro-

borate the alibi.

365 So.2d at 705 - 06 (footnoted

omitted). We will develop other facts as

they become relevant to our opinion.

I. NEED FOR AN EVIDENTIARY HEARING

[1] Smith contends that the district

court erred in refusing to grant him an

evidentiary hearing concerning three of

his claims for relief -- that his counsel

rendered ineffective assistance, that the

state Rule 3.850 hearing concerning the

alleged Brady violation was not full and

fair, and that his execution in light of

recantations by Wesley Johnson would vio-

late due process.! Although the legal

analysis of Swith's right to a hearing

1 smith also asked for an evidentiary

hearing on other issues. We will address

chose claims separately.

A-16

differs greatly for each claim, we dis-

cuss them together because each claim has

a common factual basis -- the numerous

statements of Wesley Johnson. We conclude

that, under Thomas v. Zant, 697 F.2d 977

(11th Cir. 1983), the district court

should have granted Smith an evidentiary

hearing on his claim of ineffective assis-

tance of counsel. Given the interrela-

tionship of this issue with the Brady

issue, the hearing that must be held will

necessarily concern both issues. The dis-

trict court did not err in refusing a

hearing concerning Johnson's recanta-

tions.

As the quoted excerpt from the opin-

ion of the Florida Supreme Court indica-

tes, Wesley Johnson was the primary

A-17

witness against Smith. The record2

shows that in early September, 1975, John-

son presented himself to the Polk County

Sheriff's Department and confesed to three

murders. He claimed to have killed Caleb

McDowell, John Mitchell Arnsdorff (whom

Smith is convicted of murdering), and

James Wagner. The transcript of Johnson's

statement and the report of the Polk

County Sheriff's Office, dated September

6, 1975, indicate that Johnson told the

following story concerning the second and

third victims.

2 Our record is somewhat unclear con-

cerning some events. For example, it is

doubtful that we now have before us all

the statements of Wesley Johnson and

Patricia Johiison, his wife. See Smith v.

State, 400 So.2d 956, 953 n. 1 (Fla. 1981)

(listing statements). Although we beleive

our construction of the events to be sub-

stantially accurate, on remand the dis-

trict court may expand the record and cor-

rect any misconceptions in our opinion.

A-18

Johnson met Wagner in a bar in Lake-

land, Florida. Johnson and Wagner went to

another bar, the Green Parrot, where they

met Arnsdorff. The three journeyed first

to Johnson's apartment and then to Arns-

dorff's where Johnson and Wagner robed

Arnsdorff of eleven dollars, tied him hand

and foot, and put him into the trunk of

his car. Johnson and Wagner promised

Arnsdorff that they would drive him into

the woods and leave him so that, "if he

[had] enough energy," he could kick out

the back seat of the car.

Johnson and Wagner drove away, but,

after leaving Lakeland, they wrecked and

the car became stuck in a ditch. Johnson

stated that he then opened the trunk and

hit Arnsdorff with a jack handle as Arns-

dorff begged for mercy. Johnson stated

that he stabbed Arnsdorff with the sharp

eR OR oni ta Seg An

a: ON AI ae oA an Ne Me Be he

SEE wr cigewted wh se

A-19

end of the jack and with a knife, while

forcing Wagner to watch. Jonson and Wag-

ner then climbed into a second car and

drove away. Johnson refuesed to explain

why a second car was with them, although

the police asked him to do so. The two

drove to a gas station and bought some

gas. They then returned to the wrecked

vehicle, doused it with gasoline, and set

it afire with Arnsdorff in the trunk.

This was the extent of what Johnson rela-

ted concerning Arnsdorff's murder; he did

not mention Smith.3

On September 8, an officer interview-

ed Wesley Johnson's wife, Patricia

3 The September 6 statement is relevant

to this case for one reason in addition to

Johnson's omission of Smith. In describ-

ing his murder of McDowell, which occurred

two years before the other murders, John-

son indicated that he also locked the vic-

tim in the trunk of a car and set the car

on fire after dousing it with gasoline.

A-20

Johnson. In this interview, she stated

that Wesley had told her that both he and

Smith had murdered Arnsdorff. Although

Smith submitted this statmeent to us after

argument, it is not in our record. Our

record indicates that Patricia Johnson

had, however, made a previous statement

that omitted any reference to Smith.

On September 10, Patricia Johnson no-

tified the officers that Wesley “wanted to

tell the whole story about the three mur-

ders." Polk County Sheriff's Report at 6.

She asked to meet Wesley. After talking

with his wife, Johnson informed the police

that he would prefer not to give a state-

ment until his attorney could discuss a

plea bargain. He indicated, however, that

Smith had been with him on the night Arns-

dorff was murdered and "did take part in

the same." Id. Sometime subsequent to

ee eee eee

A-21

this, Johnson apparently came to the

agreement he desired4 with the pro-

secutor and gave a statement implic.ting

Smith. He stated that Smith had actually

struck Arnsdorff with the tire jack.

Johnson stated that Wagner stabbed Arns-

dorff with an ice pick while Smith used

the jack handle. Johnson then stated that

he could not remember "exactly what hap-

pened right at the moment ... we all

looked around [and] I stepped up and slan-

med the [trunk]." Johnson also testified

that, after returning with the gas, "[we]

got out of the car and Slick's [Smith] got

the gas can. So I poured the gas all over

it. And Slick gets back in the car, and

what's his name throwed a match on it."

4 Johnson testified at Smith's trial

that he agreed to plead no contest to the

three murders and testify against Smith in

exchange for concurrent life sentences.

Johnson was sentenced after Smith's trial.

A-22

In response to a clarifying question,

Johnson indicated Wagner to be the person

referred to as “what's-his-name." He al-

so indicated in detail how he (Johnson)

doused the car with gasoline.

As far as we can determine, Johnson

made one other pretrial statement relevant

to our decision. The trial transcript

shows that Johnson sent a note to Smith

while both were incarcerated before trial.

The note read as follows:

Hey, Slick, how are you doing?

Okay? Well, the next time they

say court, it's for real. Just

keep cool. You can have Parks

called because I made sure he

heard me talking about how I

done it by myself and it's like

that. Just heard on the news

that they, they are going to

bring back the chair. Hope I

miss it. Well, just stay cool.

Jake.

Apparently, this note indicates that

Johnson confessed to another inmate named

Parks so that Smith could call Parks at

ee ee ee eee Re

A-23

trial to impeach Johnson.

At trial, Johnson testified that

Smith murdered Arnsdorfft. Smith's counsel

impeached Johnson with only the note writ-

ten concerning Parks. The state then

called Patricia Johnson in rebuttal to

testify that Wesley had made prior state-

ments consistent with his story implica-

ting Smith. Since the trial, Johnson has

made numerous sworn recantations of his

trial testimony, stating that he lied at

trial when implicating Smith and that he

committed the crime himself.

A. Effective Assistance Claim

In his brief, Smith argues that his

trial counsel was ineffective. He lists

the following “errors and omissions" at

the guilt/innocence phase of the trial:

1. Failure to seek a Richard-

son hearing and challenge the

admissibility of the testimony

of Patricia Jonson under the

A-24

rule of sequestration;

2. Failure to use Paricia or

Wesley Johnson's pretrial

statements for impeachment;

de Failure to interview Smith

adequately; and

4. Failure to depose Wesley

Johnson before trial.

Smith also contends that his attorney,

during the penalty phase:

1. Failed to adduce appropri-

ate mitiagating evidence or pro-

perly use that evidence in clos-

ing argument;

2. Failed to seek jury in-

structions on reasonable doubt

or object to other instructions;

3. Failed to understand the

bifurcated proceeding; and

4. Failed to challenge the use

of the heinous, atrocious, and

cruel aggravating circumstances.

[2] In Strickland v. Washington, _

U.S. __, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984), the Supreme Court set forth the

test under which we review claims of

A-25

ineffective assistance. See also Jarrell

v. Balkcom, 735 F.2d 1242, 1261 (11th Cir.

1984). The petitioner must show both that

his attorney faied to render “reasonably

effective assistance,” id. at 2064, and

that there is "a reasonable probability

that, but for counsel's unprofessional er-

rors, the result of the proceeding would

have been different,” id. at 2068. With

some exceptions not applicable here, see

id. at 2067; see also United States v.

Cronic, __U.S. __, 104 S.Ct. 2039, 80

L.Ed.2d 657 (1984), the inquiry is two-

pronged. The petitioner must show both

ineffective assistance and resulting pre-

judice.

In this case, only one of Smith's

claims -- that counsel should have more

effectively impeached the Johnsons --

merits discussion and possible relief.

A-26

The claimed failure of his attorney to

understand the bifurcated proceeding and

act as an advocate is related to the fail-

ure to impeach issue. The other claims

are either unsupported by the record or

simply do not merit relief.?

Counsel's failure to depose Johnson

does not warrant relief or a hearing;

given the numerous inconsistent statements

made by Johnson and his wife, counsel pro-

bably had no need to conduct such a depo-

sition. Had a deposition produced testi-

mony detrimental to Smith, it would have

5 For a discussion of the claims re-

garding erroneous jury instructions and

the application of the heinous, atrocious

and cruel ag epeeens factor, see infra

section VII (discussing claims in context

of ineffective assistance of appellate

counsel). Our conclusion concerning these

issues does not change in light of the

different test for appraising the effec-

tiveness of trial counsel.

A-27

been available to the state as evidence

to disprove recent fabrication. (The

state Rule 3.850 court held that Smith's

counsel had available all the statements

we have set forth above.) We are unable,

without an evidentiary hearing, to reach a

conclusion concerning ineffectiveness in

light of counsel's failure to cross-

examine Wesley or Patricia Johnson by

using their pretrial statements, how-

ever.© The District court concluded

that the attorney failed to use the state-

ments for a valid strategic reason: he

preferred to emphasize Johnson's plea bar-

gain for impeachment purposes. Without a

hearing, ’ we cannot hold this to be a

6 The entire transcript of the cross

examination is attached to this opinion as

Appendix A.

7 A hearing will also be helpful to

clarify the record. See supra note 2.

A-28

valid reason for counsel's failure to use

the Johnsons’ statements not implicating

Smith. Use of these statements would have

been totally consistent with counsel's as-

sumed strategy of showing that Johnson im-

plicated Smith only to save himself from

the electric chair.

We also hold that counsel's failure

to use the statements may well have resul-

ted in prejudice under the test in Strick-

land v. Washington. The entire case of

the state, with the exception of plaster

casts of a tire track and a shoe print,8

was based on the testimony of Wesley John-

son as buttressed by Patricia Johnson's

testimony during the state's rebuttal

8 The tire track matched Smith's car's

tires; the shoe print matched a pair of

shoes Smith owned. Smith explained that

he had loaned the car, with the shoes in

the back, to Johnson.

A-29

case. When first questioned, however,

neither witness implicated Smith: the

September 6 statements? of both witnes-

ses omit any reference to Smith. Only af-

ter Patricia Johnson conferred with Wesley

on September 10 did Wesley implicate Smith

-- stating that Smith was involved, but

that a plea bargain discussion must occur

before he would provide any further infor-

mation.

Two conclusions may be drawn from

these facts. The first is that Wesley and

Patricia Johnson "framed" Smith, as Wes-

ley's recantations would indicate. This

conclusion is supported by the timing and

order of the statements, and, to some

9 Other, more minor, inconsistencies

appear among Johnson's statements. For

nap Supe Johnson's trial testimony cast

Smith more as the ringleader than did his

statement made after September 10.

A-30

extent, by Johnson's admission on Septen-

ber 6 that he locked his first victim in

the car trunk and set the car on fire.

Smith's attorney might well have argued

that Johnson -- who had a history of sim-

ilar murders -- implicated Smith to avoid

"the chair,” as Johnson stated in his

note. The second, contradictory conclu-

sion is that Wesley simply omitted any re-

ference to Smith for some unknown reason

-- and later told the truth. This inter-

pretation is supported by Johnson's suspi-

cious reference to a second car in his

September 6 statement without elaborating

concerning its source or its dirver.

Nevertheless, the choice between the two

interpretations would have been one the

jury could have made either way had they

heard the facts. The jury's choice could

well have affected the outcome of the

—

fh Pat aoa

A-31

trial.

The failure of counsel to use these

statements to impeach the Jonhsons may not

only have affected the outcome of the

guilt/innocence phase, it may have changed

the outcome of the penalty trial. As we

have previously noted, jurors may well

vote against the imposition of the death

penalty due to the existence of "whimsical

doubt." In rejecting the contention that

the Constitution requires different juries

at the penalty and guilt phases of capital

trial, we stated:

The fact that jurors have

determined ie beyond a rea-

sonable doubt does not necessar-

ily mean that no juror enter-

tained any doubt whatsoever.

There may be no reasonable doubt

-- doubt based upon reason --

and yet some genuine doubt

exists. It may reflect a mere

possiblity; it may be but the

whimsy of one juror or several.

Yet this whimsical doubt -- this

absence of absolute certainty --

can be real.

A-32

The ca-ital defendant whose

guilt seems abundantly demon-

strated may be neither obstruct-

ing justice nor engaged in an

exercise in futiltity when his

counsel mounts a vigorous de-

fense on the merits. It may be

proffered in the slight hope of

unanticipated success; it might

seek to persuade one or more to

prevent unanimity for convic-

tion; it is more likely to pro-

duce only whimsical doubt. Even

the latter serves the defendant,

for the juror entertaining doubt

which does not rise to reason-

able doubt can be expected to

resist those who would impose

the irremedial penalty of death.

Smith v. Balkcom, 660 F.2d 573, 580 - 81

(5th Cir. Unit B 1981), modified, 677 F.2d

20, cert. denied, 459 U.S. 882, 103 S.Ct.

181, 74 L.Ed.2d 148 (1982). in this case,

use of Wesley and Patricia Johnson's prior

inconsistent statements might have created

a whimsical doubt that would discourage

the court and advisory jury from

recommending the death penalty.

Of course, counsel may have elected

A-33

to choose another strategy at the penalty

portion of Smith's trial. If he did so,

however, the record does not reveal the

content of the strategy. For example, in

counsel's closing statement at the penalty

phase, !9 he evidenced no reasonable

strategy. Counsel stated (in full):

MR. HADDOCK: May it please the

Court? Ladies and gentlemen,

this is the last time we will be

beore you. The most trying cir-

cumstances, the fact that will

be sent back to you will be cum-

ulative of what you have already

decide, that the defendant is

guilty. Now, with little help

except from you -- and you are

not here to help me, you are

here to do the right thing -- 1

have to ask that you take into

consideration all of the things

10 We note that counsel was somewhat

confused by the bifurcated proceeding in

any event. He repeatedly requested tnat

the judge abandon the bifurcated procedure

and use the procedure declared unconsti-

tional in Furman v. Georgia, 408 U.S. 238,

92 S.cT. 2726, 33 L.Ed.2d 346 (1972).

A-34

that have been said, all of the

things that have been admitted

into evidence. In particular,

consideration to the statements

of Dr. Kaplan pertaining to Mr.

Smith.

Weigh those, because they weigh

heavily upon everybcdy in this

room. Add them up. If they

indicate to you that this man,

who has made a statement that

you can take or leave -- because

you have taken and left some of

his statements --- that he would

spend the rest of his life in a

penitentiary. Whether this man

should die or be given the right

to live until, God willing,

someday this state will provide

a place for him.

If the state desires to do so, on

remand it is free to introduce evidence

before the district court showing that

trial counsel's failure to utilize the

Johnsons' statements at either the

guilt/innocence or penalty phases of the

trial was prompted by reasonable trial

strategy.

A-35

B. The Brady Issue

Smith contended before the state Rule

3.850 court that he did not receive mater-

ial evidence from the state before trial

pursuant to his request under Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963). The state court held

a hearing and concluded that the requested

material was available to Smith's counsel.

Smith now contends that this finding of

fact by the state court is incorrect and

mot entitled to a persumption of correct-

ness under 28 U.S.C. §2254(d) because his

trial counsel never testified at the hear-

ing. He notes that the testimony at the

hearing indicated that the prosecutor, al-

though he maintained an "open file" pol-

icy, could not recall whether the various

statements were in the file at any parti-

cular time. Smith himself testified that

A-36

he could not recall seeing or hearing

about the statements, except for the

statement made after September 10 by

Wesley Johnson.

We do not hold that these circum-

stances support a finding that the hearing

was not full and fair;!! indeed, we see

no need to pass on this question. When

the district court conducts its hearing on

the effectiveness of Smith's counsel, the

inquiry will by necessity involve the

availability of the statements. For exam-

ple, the state might produce Smith's coun-

sel and introduce his testimony that he

did not use the statements because he did

11 For example, Smith does not explain

why he could not have deposed his attor-

ney, even if he was unable to subpoena

him. Cf. Birt v. Montgomery, 725 F.2d

587, 590 n.5 (11th Cir. 1984) (en banc)

(noting possiblity that petitioner could

depose witness without passing on suffi-

ciency of state hearing).

A-37

not have them. If he did not have them

because he dia not check the prosecutor's

file, this would constitute ineffective

assistance given the content of the state-

ments. But, if the statements were not

available, counsel could not use them.

If the district court should conclude

after an evidentiary hearing that the

statements were not available to trial

counsel, Smith will be confronted with a

variation of Catch-22 created in part by

28 U.S.C. §2254(d). The state could pre-

sumably argue that state court's finding

that the statements were available iu a

historical fact eititled to a presumption

of correctness, but that counsel rendered

effective assistance under the circumstan-

ces because the statements were, in fact,

unavailable. Such a situation no doubt

results from the difficulties inherent in

A-38

the administration of justice by means of

the writ of habeas corpus. Nevertheless,

if this situation arises, the district

court should conclude that, under 28

U.S.C. §2254(d)(3), “the material facts

were not adequately developed at the state

court hearing,” see Thomas v. Zant, 697

F.2d 977, 980 (11th Cir. 1983), and issue

the writ under Brady v. Maryland.12 We

have no doubt that statements were “mater-

ial either to guilt or to punishment”

under Brady. 737 U.S. at 87, 83 S.Ct. 15

1196.

C. Recantations of Wesley Johnson

Finally, Smith contends that the

12 smith correctly notes that the state

court's finding was supported by somewhat

weak evidence. In addition, the state

court did not hold an evidentiary hearing

on Smith's effective assistance of counsel

ew although he requested a hear-

ng.

A-39

district court should also receive evi-

dence concerning the post-trial recanta-

tions of Wesley Johnson. A panel of this

court recently addressed a similar claim

in Drake v. Francis, 727 F.2d 990 (11th

Cir. 1984). This court vacated the opin-

ion in Drake for en banc consideration,

and we recently received briefs and heard

oral argument on several issues raised in

Drake. We see no need to hold this case

pending the decision in Drake, however.

We perceive that the panel in Drake accur-

ately stated the law in this circuit con-

cerning claims of newly discovered evi-

dence in habeas corpus proceedings.

As long ago as 1958, the former Fifth

Circuit Court of Appeals summarized the

law in this area: “Newly discovered evi-

dence in the form of a confession by an-

other does not render the conviction void

A-40

and subject to collateral attack by ha-

beas corpus because it goes to the merits

of the conviction, not its legality."

Shaver v. Ellis, 255 F.2d 509, 511 (5th

Cir. 1958), cert. denied, 355 US. 864, 78

S.Ct. 98, 2 L.Ed.2d 70 (1957). To be dis-

tinguished are situations in which the new

evidence bears directly on the constitu-

tionality of the conviction. For example,

in Schneider v. Estelle, 552 F.2d 593 (5th

Cir. 19877), the petitioner claiued new

evidence would show that the state had su-

borned perjury in obtaining a conviction

against the petitioner. The court re-

manded for an evidentiary hearing, holding

that the writ should issue if the peti-

tioner proved the allegations of his com-

plaint. Id. at 596; see also Smith v.

Florida, 410 F.2d 1349 (5th Cir. 1969).

[3] In this case, we seriously

A-41

doubt that Smith has alleged subornation

of perjury by the state. To prove such a

claim, Smith would have to show that the

prosecutor or the police officers knew

that the testimony of one of the Johnsons

was false. Schneider, 552 F.2d at 595;

Smith, 410 F.2d at 1350 - 51. Smith has

made no proffer of any evidence supporting

such a contention. Absent such evidence,

this claim does not warrant habeas corpus

relief.

II. COERCION OF TESTIMONY

Smith next contends that Johnson con-

fessed and agreed to testify for the state

only because of Johnson's fear of the

death penalty. Smith notes that one of

the terms of Johnson's plea bargain re-

quired him to testify before he received

his sentence. Smith argues that he should

have received an evidentiary hearing on

A-42

the issue in the district court.

We have little difficulty accepting

the validity of the argument that Johnson

entered into his plea bargain agreement

with the state and testified against Smith

because of the possible imposition of the

death penalty. Nevertheless, the district

court properly held that this claim af-

fords Smith no basis for relief.

[4] We have substantial doubt that

this claim is one that warrants relief.

Cf. United States v. Ballard, 586 F.2d

1060 (5th Cir. 1978); Chaney v. Wain-

wright, 561 F.2d 1129 (5th Cir. 1977), 443

U.S. 904, 99 S.Ct. 3095, 61 L.Ed.2d 871

(1979). It is clear that Smith's attorney

cross-examined Johnson and revealed the

facts underlying Johnson's testimony to

the jury, which decided whether or not to

believe Johnson. We need not consider this

A-43

issue on its meritS, however, because

Smith failed properly to raise it under

Florida procedure. The Florida courts

have refused to address the issue, see

Smith v. State, 400 So.2d 956, 959 (Fla.

1981); and, absent a showing of cause for

failure properly to preserve the isssue

and resulting prejudice, the issue is bar-

red from review in the federal courts,

Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct

2497, 53 L.Ed.2d 594 (1967) Smith has

shown neither cause nor prejudice.

III. ADMISSION OF EVIDENCE OF SECOND

DEGREE MURDER

At Smith's trial, the judge allowed

Wesley Johnson to testify concerning the

facts of a second murder for which Smith

was not on trial. (The circumstances and

content of this testimony are set forth in

the portion of the Florida Supreme Court's

opinion quoted in the introductory portion

A-44

of this opinion.) The Florida court ap-

parently admitted this testimony on the

theory that it constituted part of the res

gestae. See Smith v. State, 365 So.2d

704, 706 n.2 (Fla. 1978). Smith contends

that the evidence was irrelevant, inflam-

matory, prejudicial, and inadmissible as a

matter of constitutional law.

[5 - 7] In reviewing the disposition

of this claim by the district court, we

note that "[i]Jn order for an evidentiary

ruling to be cognizable in habeas corpus,

it must deprive the state court defendant

of fundamental fairness." Jameson v.

Wainwright, 719 F.2d 1125, 1126 (11th Cir

1983), cert. denied, _U.S. _, 104 S.Ct.

2355, 80 L.Ed.2d 827 (1984); see also

Hills v. Henderson, 529 F.2d-397 (1976).

A denial of fundamental fairness occurs

when the evidence is “material in the

in he

A-45

sense of a crucial, critical, highly sig-

nificant factor." id. at 1127. Under

this test, the admission of the evidence

did not violate the Constitition, although

its admissiblity under state law presents

a close and difficult question. See 365

So.2d at 708 (three Justices dissenting).

IV. TESTIMONY OF PATRICIA JOHNSON

[8] At Smith's trial, the state in-

troduced the testimony of Patricia John-

son, Wesley Johnson's wife. (Wesley John-

son was the prosecutor's essential wit-

ness. See supra $I.) The prosecutor

called Patricia Johnson to testify concer-

ning prior consistent statements made by

her husband in response to Smith's im-

peachment. The witness list submitted to

Smith before trial by the prosecutor did

not include Patricia Johnson's name, as

Florida law requires. In addition, the

A-46

record shows that Patricia Johnson was

present during a portion of the trial that

preceded her testimony and was thus in

violation of the sequestration rule.

Smith argues that the omission of Patricia

Johnson's name from the witness list and

the sequestration rule violation compels

the issuance of the writ. Smith, however,

cites no authority to the effect that

these violations are of constitutional di-

mension. See, e.g., Bronstein v. Wain-

wright, 646 F.2d 1048 (5th Cir. 1981)

(state law violations do not usually war-

rant habeas relief). Assuming that the

claim is simply one rooted in the concept

of "fundamental fairness," see Donnely v.

DeChristoforo, 416 U.S. 637, 94 S.Ct.

1868, 40 L.Ed.2d 432 (1974), we conclude

that these violations (if they were

A-47

violations)!3 did not render Smith's

trial fundamentally unfair.

V. TESTIMONY OF DR. NISWONGER

[9] Dr. Joseph K. Niswonger, a psy-

chiatrist, examined Smith before trial.

Niswonger testified that, during the exam-

inaion, Smith claimed amnesia concerning

the event of the murder. The state argued

to the jury that this testimony contra-

dicted Smith's alibi that he did not com-

mit the murder, but was at home "sleeping

off a drunk." Smith now contends that,

under the rule of Estelle v. Smith, 451

U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359

(1981), Niswonger's testimony was inadmis-

sible because Niswonger did not read Smith

13 The prosecutor explained the omission

of Patricia Johnson's name from the list

and her presence in the courtroom by con-

tending that he had not forseen that he

would call her as a witness.

A-48

Miranda warnings before conducting the

psychiatric examination. See also Battie

v. Estelle, 655 F.2d 692 (5th Cir. 1981).

The state contends that this claim is bar-

red from consideration by Wainwright v.

Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53

L.Ed.2d 594 (1976), and that the claim

also fails on the merits. The state's

argument concerning the merits of this

claim is correct; we therefore chose not

to address the Wainwright issue, which

presents a question of law not yet square-

ly addressed by this court.

The record in this case shows that

the trial court did not appoint Niswonger

to examine Smith, as was the case in Es-

telle v. Smith. On the contrary, Smith

retained Niswonger (through his trial

counsel) to conduct an examination regard-

ing a possible claim of insanity. In such

A-49

a case, Estelle v. Smith does not require

that the psychiatrist give Miranda warn-

ings.!14 The protections of Estelle do

not apply unless the psychiatist is

"essentially .. . an agent of the State

~ + « " 451 US. at 467, 101 S.Ct. at

1875.15 thus, the district court pro-

perly denied the writ on this issue.

VI. DISPARITY IN SENTENCING

[10] After the penalty hearing, the

14 smith apparently does not contend

that all psychiatrists examining all de-

fendants must give Miranda warnings to

remind the defendant not to make a state-

ment he later may regret.

15 Smith contends that the trial judge's

post-trial order adding Niswonger to the

list of state psychiatrists made Niswonger

an agent of the state. This contention is

without merit. The judge's revision of

the list did not change Niswonger's de

facto status during the examination or at

trial.

A-50

trial judge sentenced Smith to death.

Wesley Johnson, in accordance with his

plea bargain, received a sentence of only

twenty-five yea 3; in prison. Smith con-

tends that this disproportionate punish-~

ment violates the Constitution given his

“lesser culpability" than Johnson. He re-

quests this court to conduct an indepen-

dent review of the record and grant relief

on this issue, citing as support Barclay

v. Florida, U.S. _, 103 S.Ct. 3418, 77

L.Ed.2d 1134 (1983). This contention

lacks merit. See generally Pulley v.

Harris, U.S. 104 S.Ct. 871, 79

L.Ed.2d 29 (1984); Collings v. Francis,

728 F.2d 1322 (11th Cir. 1984): Moore v.

Balkcom, 716 F.2d 1511 (11th Cir. 1983),

cert. denied, — U.S. _, 104 S.Ct. 1456,

79 L.Ed.2d 773 (1984); Henry v. Wain-

wright, 721 F.2d 990 (5th Cir. Unit B

A-51

1983), cert. denied, U.S. _, 104

S.Ct. 2374, 80 L.Ed.2d 846 (1984).

VII. INEFFECTIVE ASSISTANCE OF

APPELLATE COUNSEL

[11] Smith next contends that the

district court should have granted him an

evidentiary hearing on his claim that his

appellate counsel rendered constitution-

ally ineffective assistance. We recently

described the legal basis for this type of

claim in Alvord v. Wainwright, 725 F.2d

1282 (iith Cir. 1984), as follows:

Although we address claims of

ineffective assistance of coun-

sel on appeal much less frequen-

tly than claims of ineffective

assistance at trial, it is well

established that a defendant has

the right to effective counsel

on appeal. See Anders v. Cali-

fornia, 386 U.S. 738, 741 - 42,

744, 87 S.Ct. 1396, 1398 - 99,

1400, 18 L.Ed.2d 493 (1966)

(counsel must function as advo-

cate on behalf of client). In

order to prevail, Alvord must

prove that he did not receive

""reasonably effective

A-52

representacion,'” Mylar v. Ala-

bama, 671 F.2d 1299, 1300 (11th

Cir. 1982) (citing previous

cases), cert. denied, { U.S.

] 103 S.Ct. 3570, 77 L.Ed.2d

T411 (1983); however, counsel

need not provide perfect assis-

tance, id. From the reported

cases, it appears that counsel's

failure to file a brief is in

most cases ineffective, see An-

ders; Mylar; however, counsel's

failure to advance erors on ap-

peal later gaining "judicial re-

cognition" does not contittute

unconstitutional aid. Sullivan

v. Wainwright, 695 F.2d 1306,

1309 (11th Cir), cert. denied,

[ U.S. ] 104 S.Ct. 290, 78

L.Ed.2d 266 (1983), and counsel

need not brief issues reasonably

considered to be without merit,

Mendiola v. Estelle, 635 F.2d

487, 491 (5th Cir. Unit A.

1981); Hooks v. Roberts, 480

F.2d 1196, 1197 - 98 (5th Cir.

1973), cert. denied, 414 U.S.

1163, 94 S.Ct. 926, 39 L.Ed.2d

116 (1974). Alvord contends

that the issues not raised by

his counsel were of substantial

merit As we stated in Hooks,

the best way to evaluate "this

question. . . is to examine the

alleged trial errors to see if

they contain sufficient merit

. . . that his appellate counsel

can be faulted for not having

raised the." 480 F.2d at 1197.

ie

A-53

Id. at 1291. Under the applicable stan-

dards, we conclude that Smith's counsel

rendered constituionally effective assis-

tance and that no evidentiary hearing is

required.

Smith tirst contends that his counsel

should have challenged on appeal the ad-

missibility of photographs of the victim's

body during the penalty phase of the

trial. We cannot fault Smith's attorney

for omitting this claim. Tue photographs

were clearly relevant to the case because

the state relied on the "heinous, atro-

cious, or cruel” aggravating circumstance

enumerated in the Florida statute. See

Fla. Stat. §921.141(5)(h). The circum-

stances of the crime as evidenced by the

condition of the victim's body are mater-

ial to consideration of this aggravating

circumstance. In addition, under Florida

A-54

law, it appears to be settled that such

photographs are admissible. See Calloway

v. State, 189 So.2d 617 (Fla. 1966); Mar-

dorff v. State, 143 Fla. 64, 196 So. 625

(1940).

Smith next contends that his counsel

should have argued that the Florida pro-

cedure providing for a bifurcated senten-

cing hearing is unconstitutional. This

contention lacks merit. The Supreme Court

specifically upheld this statute in Prof-

fitt v. Florida, 428 US. 242, 96 S.Ct.

1960, 49 L.Ed.2d 913 (1976), and we recen-

tly rejected this claim in Smith v.

Balkcom, 660 F.2d 573, 580 - 81 (5th Cir.

Unit B 1981), modified, 677 F.2d 20, cert.

denied, 459 U.S. 882, 103 S.Ct. 181, 74

L.Ed.2d 148 (1982).

Smith argues that his counsel should

have challenged the trial court's decision

A-55

to admit Dr. Niswonger's testimony at the

penalty phase of his trial. Counsel need

not have raised this claim on the basis of

the fifth amendment; we have decided above

that such a challenge lacks merit. See

supra $V. In addition, counsel could rea-

sonably have concluded that Smith had

waived the psychiatrist-patient privilege

by introducing Dr. Niswonger's report as

to Smith's sanity into evidence at the

competency hearing. See Fla. Stat.

§$90.242(b) (providing for waiver of privi-

lege).

Smith also argues that his appellate

attorney wrongly failed to challenge the

trial court's finding of the "heinous,

atrocious, or cruel” aggravating circum-

stance. See Fla. Stat. §921.141(5) (h).

Smith contends that Johnson's testimony at

trial demonstrated that the "participants"

A-56

thought the victim to be dead after they

kidnapped him, transported him a consider-

able distance in a car trunk, struck him

with a tire tool (while he pleaded for

mercy), stabbed him with an ice pick, and

locked him back in the car trunk. Thus,

although the medical reports later showed

that the victim died when the participants

poured gasoline on the car and burned it,

the murderer(s) could not have known they

had done anything except destroy evidence.

Under Godfrey v. Georgia, 446 U.S. 420,

100 S.Ct. 1759, 64 L.Ed.2d 398 (1980),

Smith contends that this was not a proper

case for application for the subsection

(5) (h) circumstance. We believe Smith's

counsel could reasonable decide not to

raise this issue on appeal. .

Smith next contends that his appel-

late counsel should have challenged the

rn

2 Aa

A-57

trial court's jury instructions, which

did not explain that the state must prove

the existence of aggravating circumstances

beyond a reaonable doubt. See Williams v.

State, 386 So.2d 538 (Fla. 1980). The

district court noted: (1) that trial

counsel never requested such a charge, and

(2) that the jury never was charged

concerning any burden of proof except that

of beyond a reasonable doubt. We hold

that, under the circumstances, counsel

need not have raised this issue on appeal.

See Alvord, 725 F.2d at 1292 (instruction

never requested); Henry v. Wainwright, 721

F.2d 990, 995 (5th Cir. Unit B 1983) (jury

never heard instruction on any other bur-

den of proof), cert. denied, ie 4

104 S.Ct. 2374, 80 L.Ed.2d 846 (1984).

Finally, Smith contends that his at-

torney should have requested the court

A-58

reporter to transcribe the entire voir

dire proceedings to determine whether a

violation of Witherspoon v Illinois, 391

U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776

(1968), occurred. This contention is

purely speculative; Smith has not shown

that, in fact, a violation occurred.

Thus, Smith has neither alleged nor proven

that the failure of his attorney to raise

this issue made any difference whatsoever.

VIII. MISCELLANEOUS ISSUES

[12] Smith contends that the death

penalty in Florida has been discriminator-

ily applied on the basis of the race of

the victim; he argues that the district

court erred in refusing to grant an evi-

dentiary hearing on this issue. The dis-

trict court acted properly; as the state

notes, this issue has been conclusively

resolved adversely to Smith. See Sullivan

A-59

v. Wainwright, 721 F.2d 316 (11th Cir.

1983), application for stay denied, Sul-

livan v. Wainwright, _U.S. =~, 104 S.Ct.

450, 78 L.Ed.2d 210 (1983); Wainwright v.

Ford, _U.S. _, 104 S.Ct. 3498, 81

L.Ed.2d _—s (1984); Adams v. Wainwright,

709 F.2d 1443, 1449 (11th Cir. 1983),

cert. denied, _U.S. _, 104 S.Ct. 745,

79 L.Ed.2d 203 (1984); Washington v. Wain-

wright, 737 F.2d 922, 923 (11th Cir.

1984).

[13] In this section of his brief,

Smith also challenges the use of non-

record material by the Florida Supreme

Court in reviewing his case. This issue

has also been resolved adversely to Smith.

See Ford v . Strickland, 696 F.2d 804

(11th Cir. 1983) (en banc), cert. denied,

U.S. _, 104 S.Ct. 201, 78 L.Ed.2d 176

(1983).

A-60

[14] Smith also argues that his sen-

tence is unconstitutional because of the

trial judge's faulty instruction to the

jury concerning aggravating and mitigating

circumstances and because the trial judge

misapplied the law concerning the use of

the circumstances by relying on an uncon-

stitutional circumstance. Without bela-

boring this point, we hold that the dis-

trict judge correctly decided that this

claim is barred by a procedural default

under Wainwright v. Sykes. Smith contends

that he has proffered facts entitling him

to an evidentiary hearing on the issue of

cause and prejudice, but we disagree. As

to the claims concerning restrictions of

mitigating evidence, Smith has failed to

show prejudice for exactly the reasons

enumerated in Ford v. Strickland, 696 F.2d

at 812 - 13. And, as to the claim of

A-61

reliance on an unconstitutional aggravat-

ing circumsantce, Smith has failed to

proffer any evidence or explanation con-

stituting cause for his failure timely to

raise this issue in the state court.

The judgment of the district court is

AFFIRMED IN PART, VACATED IN PART, and RE-

MANDED for proceedings not inconsistent

with this opinion.

APPENDIX A

CROSS-EXAMINATION OF

WESLEY JOHNSON

EXAMINATION BY MR. HADDOCK:

Q. Mr. Johnson, you are putting me in

the unique position of asking you a direct

question, which I doubt I will get a

straight answer from you about it.

MR. CAMPBELL: Now, Your Honor,--

Q. When are you lying, then or now?

THE COURT: Mr. Haddock, I don't want any

dialogue of that sort.

A-62 .

MR. HADDOCK: That was a proper question,

Your Honor.

So Nn at ORT ce eh Oe

THE COURT: Ask a question, but I don't

want dialogue. I don't want editoraliz-

ing. )

MR. HADDOCK: Prior to asking any ques- |

tion, Your Honor, I would like at this

time to move for a mistrial in this case

because of the unnecessary presentation of

am hele Tun

evidence over my prior objection out of

meee

the absence of the jury pertaining to a

separate crime for which this defendant

has been individually indicted and upon

which there is a separate case before the

Court, and upon which the defendant stands

SSMS. Be es a

the possibility of subsequent trial.

THE COURT: Motion denied.

MR. HADDOCK: This is so horrendous, it's

so prejudicial --

MR. CAMPBELL: How many times do we have

A-63

to go through the same thing, Your Honor?

THE COURT: Just a moment, Mr. Campbell.

Go ahead.

MR. HADDOCK: May I finish, Your Honor?

This is so horrendous and prejudicial to

the defendant's cause before the jury that

I see virtually no way of ever getting it

straightened out. 2,

THE COURT: Motion denied.

Q. Answer my question, Mr. Johnson.

MR. CAMPBELL: I thought that question was

objected to.

THE COURT: You will have to reask the

question.

Q. Are you telling the truth now or when

you testified to the police officers?

A. I am telling the truth now.

Q. Let me ask you something. Have you

ever seen this before [indicating]?

A. Yes.

A-64

Q. What is it?

A. That is a confession, I suppose, it's

a note I sent [indicating].

Q. Was it written by you?

A. Yeah.

Q. Signed by you as Jake?

A. Yeah

Q. Is that a name you are known by from

time to time?

A. Yeah.

Q. How was it, what was disposed--what

was the disposition of this note, if you

know?

A. It was at a time when I was thinking

about cutting him loose.

Q. Speak up.

A. At a time when I was thinking about

cutting him loose.

Q. Was it addressed to--did. you have it

sent to Smitty?

i a al AR REM eta LEN A tee B I

ee

aha

A-65

A. Yes.

MR. HADDOCK: Your Honor, I would like to

introduce this into evidence.

MR. CAMPBELL: No sir, not--

THE COURT: It would be proper to identify

it now and introduce it later.

MR. HADDOCK: I think I can introduce it

since he is the State's witness.

MR. CAMPBELL: No sir, you can't introduce

it in the State's portion of the case.

THE COURT: That's right. You mean the

Court's witness?

MR. HADDOCK: The Court's witness.

THE COURT: It will be identified as De-

fendant's Exhibit 1. [The purported con-

fession was marked as Defense Exhibit 1

for identification. ]

Q. Does this note say, can you read that

note?

A. Do you want me to read it out loud?

A-66

Q. Read it to the jury, yes.

A. "Hey, Slick, how are you doing?

Okay? Well, the next time they say court,

it's for real. Just keep cool. You can

have Parks called because I made sure he

heard me talking about how I done it by

myself and it's like that. Just heard on

the news that they, they are going to

bring back the chair, I hope I miss it.

Well, just stay cool, Jake.”

Q. And Jake is you?

A. Part-time.

Q. That's right? You are Jake?

A. Sometimes.

Q. What is you deal with the state?

A. 25 to life.

Q. How many crimes did you confess to?

MR. CAMPBELL: Judge, that--

A. Three.

MR. CAMPBELL: -- Your Honor, I don't have

A-67

any objection to those related to--no. I

withdraw the objection I believe the ans-

wer was three.

THE COURT: That's correct.

Q. And you say what, 25 to life?

A. [Nods head. ]

Q. Were there any stipulations pertain-

ing to that?

A. What do you mean, to the sentence?

Q. Yes.

A. That I testify.

Q. Testify to what?

A. To the murders.

Q. Did it have anything to do with the

implication of the defendant here, Mr.

Smith?

A. Yes.

Q. And that was part of the deal?

A. That I testify to the murders for the

State, yeah.

A-68

Q. And have you been sentenced yet?

A. No, not that I know of.

Q. Is it your understanding that you

will not be sentenced until after you give

your testimony?

A. Right.

Q. Therefore your testimony is based up-

on your not going to the electric chair,

is that right?

A. Well, I'm talking, uh, yeah, I sup-

pose so

Q. Your are frightened of going to the

electric chair, aren't you?

A. Scared to death.

Q. Jake, how long had you been drinking

before you got involved in this thing?

A. Um, off and on during the day.

Q. Had you had any narcotics?

A. No.

Q. Any sort of marijuana or anything

A-69

other than alcoholic beverages?

A. No.

Q. How much alcoholic beverages had you

drunk?

A. That's hard to say.

Q. Well, kind of work on it a little

bit, see what you can come up with. It

hasn't been too hard for you to say a lot

of other things.

MR. CAMPBELL: Your Honor--

A. I’m thinking.

THE COURT: Mr. Haddock, don't do that.

A. Maybe a case before I met up with

hin.

Q. A case of what?

A. Maybe three or four six-packs.

Q. Four would be twenty, twenty-four

beers, is that correct?

A. I suppose.

Q. Were your drinking short beers of

A-70

long ones?

A. Short.

Q. Were you drunk?

A. I was feeling all right.

Q. How come you said in your deposition

you were trying to decide whether you were

going to get out and puke if you were

feeling all right?

A. Well, you know, pretty gross scene is

. going on.

Q. The alcohol didn't have anything to

do with it?

A. Not very much.

Q. Did you drink, you said something

about you may have had some whiskey during

this time, I believe, whatever kind of

testimony it was you gave to the state?

A. Right.

Q. So you mixed whiskey with possibly 24

beers in the course of the day?

ee rey a

A-71

A. Yes.

Q. You are just clear-headed as you can

be, you remember everything that went on?

A. Pretty much so.

. Are you an alcoholic?

° I don't know.

° You drink 24 beers everyday?

Q

A

Q

A. Sometimes more.

Q. Sometimes more?

A. Yeah.

Q. How much do you weigh?

A. How much do I weigh?

° Yes sir.

. About 150.

‘ 150?

Q

A

Q

A. I guess about.

Q. You don't know?

A. Not really, sir.

Q. So you are in F position now-- let me

see if I have got this straight--of having

A-72

given testimony against Mr. Smith with

the promise from the state that if you did

so you, who admit that you were involved

in crimes, will get sentence of from 25

years to life?

MR. CAMPBELL: Your Honor, I don't think

that is the correct statement of the sit-

vation. 1 don't think the state promised

him a thing.

THE COURT: You will have the opportunity

to ask questions on redirect.

MR. HADDOCK: Thank you, Your Honor.

MR. CAMPBELL: All right.

MR. HADDOCK: Will you reread him the

question to make sure he got it?

[The reporter read back the previous

question. ]

A. It's not 25 to life. It's a life

sentence, whereas on first degree murder I

have to do at least 25 years before I am

a eh sewn

A-73

eligible for parole is the type of life

sentence I will be receiving. And if I

don't get off then, between now and then,

the next 25 years I plan on making parole.

Q. Was there additional promises that

these sentences would be together instead

of one after the othr?

A. Concurrently, yes.

Q. In other words, you would get a con-

current sentence, only one life sentence?

A. Yes sir.

Q. Any other witnesses other than you

and Birdman and Smith?

A. Not that I know of, no.

Q. So there is just you now and Smith?

A. Right.

Q. That's the way it is, isn't it?

A. Right.

Q. And you got 25 years if you behaved

yourself, and we don't know what Smith has

A-74

got, is that right?

A. Right.

MR. HADDOCK: That's all, Your Honor. No

further inquiry.

EXAMINATION BY MR. CAMPBELL:

Q. Mr. Johnson, you have, have pled no

defense to--Mr. Haddock asked you how many

crimes you have confessed to and you said

three. You have pled no defense to each

of those three crimes?

THE COURT: Mr. Campbell, may I see you

and Mr. Haddock:? [The following confer-

ence was held at the bench outside the

hearing of the jury:]

nt on neal te 32 .

Pe Ried A, re a Oe ee EO Oo

A-75

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DENNIS WAYNE SMITH,

Plaintiff,

Vv. CASE NO. 83-136 CIV-T-10

LOUIE L. WAINWKIGHT,

Defendant.

MEMORANDUM OPINION

This is a habeas corpus proceeding

pursuant to 28 USC §2254 brought by a

state prisoner under sentence of death.

Execution was most recently scheduled to

be carried out on February 15, 1983. This

petition was filed on February 9 and, of

necessity, I granted a stay on February 14

in order that the Petitioner's many claims

might be considered. The complete record

has now been compiled and the parties have

fully briefed their respective positions.

A-76

FACTS SURROUNDING THE OFFENSE

John Mitchell Arnsdorff was murdered

in Polk County, Florida, on July 29, 1975.

According to the testimony of Wesley John-

son the murder was perpetrated by the Pe-

titioner, Dennis Wayne Smith, aided and

abetted by Johnson and a third accomplice

named Wagner.

Smith was indicted on August 29,

1975, and charged with first degree mur-

der. He entered a plea of not guilty and

the case proceeded to trial on March 23-

26, 1976. Prior to the start of petition-

er's trial, Johnson pled nolo contendere

to the Arnsdorff murder as well as two

other homicides. He was later given con-

current life sentences in each case in ex-

change for his testimony against Smith.

Johnson testified that he, Smith and

Wagner met at a bar and decided to rob a

eta A> eae NB Ao

Aniatas ene’ CTI

tba eB nN RIE NRE TE eas. Md rem ane we

ee ee ee ee

A-77

homosexual in order to obtain money for

beer. The three then went to another bar

where they met the victim, Mitchell Arns-

dorff. On the pretext of giving a party,

they invited Arnsdorff to the place where

Johnson was living. The four men drank

beer for a short while and then Johnson

grabbed the victim while Wagner threatened

him with an ice pick. While Arnsdorff was

restrained Smith took Arnsdorff's wallet,

in which there was $6.00, and one of the

three removed his wrist watch. They then

forced Arnsdorff into the trunk of his own

car, intending to abandon him in a remote

spot. Wagner and Johnson, in Arnsdorff's

car, were following Smith in his car when

they ran into a bridge abutment, flatten-

ing a tire. After an unsuccesful attempt

to repair the tire, the two cars proceeded

until the disabled Arnsdorff vehicle

A-78

became stuck in the sand. One of the

three men then opened the trunk of the car

and Smith hit Arnsdorff with a tire tool

while Wagner began to stab him with the

ice pick. Believing Arnsdorff to be dead,

they closed the “ae and left the scene

to go to a gas station. Smith told Wagner

to get some gas, which he did. They then

returned to Arnsdorff's car and, at

Smith's direction, Johnson doused it with

gas and set it afire.*

At this point in Johnson's narration,

the court excused the jury to allow the

defense to renew a pre-trial motion to ex-

clude testimony of a second murder commit-

ted by Petitioner and Johnson. The court

denied the motion, as it had

* Dr. James L. Holoman, a pathologist

and medical examiner testified earlier

that Arnsdorff died from incineraton or

ee from smoke caused Ly the

re.

cana: Wk REAP HA NM DIO tik ash Ge oe

A-79

previously, on the ground that the second

murder was part of a single transaction

and therefcre, relevant to the Arnsdorff

murder.

Johnson then testified that after

burning the Arnsdorff car he, Smith and

Wagner immediately went to a swimming

hole. An argumment about the division of

the $6.00 and the watch ensued between

Smith and Wagner. Smith told Johnson to

grab Wagner, and while Johnson held hin,

Smith stabbed Wagner with the ice pick.

At Smith's direction Johnson pulled Wagner

into the swimming hole and held him under

water to ensure his death. Afterward they

transported Wagner's body elsewhere and

buried it.

Smith testified in his own defense.

He admitted that he was in the company of

Wagner and Johnson on the night of the

A-80

murder, but claimed that the robbery was

their idea. Although he acknowledged ac-

companying them to the second bar and that

he left it with them and the victim, he

testified that they drove him straight

from the bar to his apartment because he

was too intoxicated by beer and drugs to

do anything but sleep. According to

Smith, that was the last he saw of them

that night. No evidence was introduced by

the defense to corroborate the alibi.”

HISTORY OF THE CASE

Petitioner was found guilty as char-

ged and a sentence of death was imposed by

the Court in accordance with the jury's

recommendation. On appeal to the Florida

Supreme Court Petitioner raised two

* It should also be noted that the

state had earlier introduced evidence of

Petitioner's footprints being found at the

scene of the crime.

A-81

issues: (1) the admissibility of John-

son's testimony during the guilt phase of

the trial concerning the second homicide

(the murder of Wagner) committed subse-

quent to the Arnsdorff murder; and (2) the

imposition of the death penalty upon the

Petitioner when an accomplice (Johnson)

who had pleaded nolo contendere to three

murders, received concurrent life senten-

ces in return for his testimony. The

Florida Supreme Court affirmed Petition-

er's conviction and sentence of death on

November 9, 1978. Smith v. State, 365

So.2d 704 (Fla. 1978). Petitioner then

sought review by certiorari from the

Supreme Court of the United States, but

the petition was denied on October as

1979. Smith v. Florida, 444 US. 885, 100

S.Ct. 177 (1979).

After the Florida Cabinet denied his

A-82

request for clemency, and after he was

originally scheduled to be executed on

June 3, 1981, Smith filed in the state

trial court a motion to vacate his judg-

ment and sentence pursuant to Florida Rule

of Criminal Procedure 3.850. He asserted,

as he does in this proceeding, a large

number of claims including an alleged

Brady violation.”

The trial court concluded that the

majority of Smith's claims were not appro~

priate in a post-conviction proceeding

brought under Florida Rule of Criminal

Procedure 3.850 and it denied the motion

without an evidentiary hearing.

Smith appealed to the Supreme Court

of Florida, and also filed a petition for

habeas corpus and a petition for leave to

* Brady v. Maryland, 373 U.S. 83, 83

5.Ce Toe 10 LEG. : “Ed. 2d 215 (1963).

A-83

apply for a writ of error coram nobis. A

stay of execution was granted pending dis-

position of those proceedings. Except for

the alleged Brady violation, the Supreme

Court affirmed the trial court's denial of

post-conviction relief, denied habeas cor-

pus and denied the petition for writ of

error coram nobis. The case was then re-

manded to the trial court to hold an evi-

dentiary hearing on the claimed Brady vio-

lation. Smith v. State, 400 So.2d 956

(Fla. 1981)

After the remand and following an

evidentiary hearing, the trial court again

denied Smith's motion for post-conviction

relief and the Supreme Court affirmed on

appeal. Smith v. State, 421 So.2d 146

(Fla. 1982).

On January 20, 1983, the Governor

signed a second death warrant ordering the

A-84

execution of the Petitioner between noon

on February 11, 1983 and noon on February

18, 1983. Execution was scheduled for

February 15, 1983. On February 9, 1983,

Smith filed the present petition for fed-

eral habeas corpus relief, and a motion

for stay of execution; and a stay was

granted on February 14 pending considera-

tion of the Petitioner's many claims. The

Petition asserts nineteen separate conten-

tions, each of which will be considered in

turn*

I

The Petitioner's first claim is that

his conviction violates his right to due

process under the Fifth and Fourteenth

* The state does not suggest that any

of Petitioner's claims are unexhausted

insofar as available state remedies are

concerned.

A-85

Amendment ;* his right to the effective

assistance of counsel under the Sixth

Amendment; and his right to regularity in

the imposition of capital punishment under

the Eighth Amendment, all because the

principal witness against him (Wesley

Johnson) has since recanted his testimony

and the recantation constitutes "newly

discoverd evidence" requiring a new trial.

It appears, factually and more speci-

fically, that since the Petitioner's trial

Wesley Johnson has signed an affidavit and

has authored other written statements and

letters explicitly recanting his trial

testimony and exculpating the Petitioner

by assuming to himself sole responsibility

for the Arnsdorff and Wagner murders.

Since all of petitioner's claims are

derived through the Fourteenth Amendment,

repetitious citation of that Amendment

will be avoided.

A-86

Under the law of Florida the proce-

dural mechanism to be pursued in seeking a

new trial on the ground of newly discover-

ed evidence, after a conviction has been

affirmed on appeal, is to apply to the ap-

pellate court for leave to petition the

trial court for a writ of error coram

nobis. Hallman v. State, 371 So.2d 482

(Fla. 1979). It must be shown, among

other things, that the new evidence con-

cerns facts not previously known and that,

had they been known at trial, they conc lu-

sively would have prevented the entry of

judgment. Ibid.

Thus, in this instance, as a part of

his post-conviction proceedings in the

state courts, Petitioner has previously

sought permission from the Supreme Court

of Florida to pursue this claim by writ of

error coram nobis, but permission was

A-87

denied. Smith v. State, 400 So.2d 956,

960 - 962 (Fla. 19881). In essence, the

Florida court held that the facts (1.@.,

Johnson's exculpation of the Petitioner)

were not new in the sense that Johnson had

made a similar statement exculpating the

Petitioner before the trial; that the re-

sulting inconsistency between his pretrial

statement and his testimony at trial was

made known to the jury during Petitioner's

trial; and, accordingly, the Court deter-

mined that it could not be conclusively

stated that the result of the trial would

have been precluded by the "newly discov-

ered evidence” in the form of a post trial

recantation.

In his Petition and supporting brief

in this Court the Petitioner argues only

that Johnson's pretrial statements excul-

pating the Petitioner were unsworn while

A-88

his post trial recantation was under

oath; but no authority is cited to

demonstrate that this is a meaningful

difference in the context of evaluating

"newly discovered evidence" as an asserted

basis for a new trial. Neither does the

Petitioner cite any authority for his

ultimate claim that Johnson's post trial

recantation somehow implicated his federal

constitutional rights; and it should be

noted in that respect that the approach

taken by the Supreme Court of Florida in

evaluating a witness's recantation as

newly discovered evidence is perfectly

consistent with the law of the Eleventh

Circuit in passing upon similar claims in

the federal system. It is clearly

established federal law that recantations

are "looked upon with the utmost

suspicion" and that a new trial should be

granted only when the Court is

A-89

satisfied both that the trial testimony

was false and that a different result

might have been reached without it.

United States v. Smith, 433 F.2d 149 (5th

Cir. 1970).

The Petitioner's first claim fails to

demonstrate any deprivation of rights hav-

ing constitutional significance.

II

Petitioner's second claim is that he

was denied his right to due process of law

under the Fifth Amendment because the pro-

secution used coerced testimony at his

trial. The contention is that Wesley

Johnson's trial testimony was coerced be-

cause he confessed and agreed to testify

against the Petitioner only because of his

own fear of the death penalty.

No authority is cited for the propo-

sition that the threat of a death penalty,

A-90

and an agreement to testify in order to

avoid it, is somehow coercive as a matter

of law with the result that such testimony

is incompetent or unusuable. Indeed, ana-

logous authority is to the contrary. See

Chaney v. Wainwright, 561 F.2d 1129 (5th

Cir. 1977), and United States v. Ballard,

586 F.2d 1060 (5th Cir. 1978), holding

that confessions are not rendered involun-

tary and inadmissible because of fear of

the maximum legal sanction and a desire to

secure more lenient treatment.

Wesley Johnson's plea bargain, and

his other motivations for testifying

against the Petitioner, were fully explor-

ed during his cross examination and were

available for the jury's consideration in

assessing his credibility as-a witness.

There was no violation of Petitioner's

constitutional rights in the admission of

:

A-91

Johnson's testimony at trial.

Alternatively, as to this claim (and

a number of others), the state also

asserts that it was waived under the rule

of Wainwright v. Sykes, 433 U.S. 72, 97

S.Ct. 2497 (1977), due to a lack of objec-

tion at trial, a present failure to show

any “cause" and "prejudice" relating to

the failure to object, and the refusal of

the Florida Supreme Court to consider the

issue precisely because of its contempor-

aneous objection and procedural default

rule. The Florida Court held (Smith v.

State, 400 So.2d 956, 958 (Fla. 1981)):

Initially, we hold that with the

exception of the alleged Brady

violation and the challenge o

ineffective assistance of trial

counsel, Smith's claims are in-

appropriate to a proceeding un-

der rule 3.850. The remaining

allegations, except his claims

of ineffective assistance of ap-

pellate counsel and alleged im-

proper consideration by use of a

A-92

psychological report, were mat-

ters which were or could have

been raised and disposed of on

direct appeal and are not proper

subject matters for a post-con-

viction motion. Hargrave v.

State, 396 So.2d TZ (Fla.

; Witt v. State, 387 So.2d

922 (Fla.), cert. denied, _

U.S. , 101 S.Ct. 796, 66

L.Ed.2d 612 (1980). The trial

court, therefore, properly re-

fused to consider these allega-

tions.

Thus, even if it had been determined

that the Petitioner's constitutional

rights had been infringed, the state cor-

rectly contends that the claim could’ not

be considered.

The Petitioner's third claim is that

he was denied his right to due process of

law under the Fifth Amendment; his right

to effective assistance of counsel under

the Sixth Amendment; and his right to reg-

ularity in the imposition ot -eanbtal pun-

ishment under the Eighth Amendment when

the Supreme Court of Florida refused to

A-93

consider the newly discovered evidence in

the form of Johnson's post trial recanta-

tions.

This claim is intertwined with, and

dependent upon, the Petitioner's first

claim. Having already decided that claim

adversely to the Petitioner's position, it

follows that this claim is also without

merit for the same reasons previously

stated.

IV

The Petitioner's fourth claim is that

he was denied his right to due process of

law under the Fifth Amendment; his right

to the effective assistance of counsel un-

der the Sixth Amendment; and his right to

regularity in the imposition of capital

punishment under the Eighth Amendment be-

cause the prosecution withheld exculpatory

evidence at trial contrary to its

A-94

obligations under Brady v. Maryland, 373

U.S. 83 S.Ct. 1194 (1963).

The essence of this contention is

that the prosecution did not disclose or

produce certain pretrial statements made

by Johnson and his wife to investigating

police officers, and that those statements

were exculpatory because they made no re-

ference to the Petitioner or were other-

wise inconsistent and could have been use-

ful for purposes of impeachment at

trial.”

When this claim was initially asser-

ted in the state trial court as a part of

the Petitioner's post conviction proceed-

ing under Rule 3.850 of the Florida Rules

of Criminal Procedure, that court refused

* These statements are more specifical-

ly described in the opinion of the Florida

Supreme Court, 400 So.2d 963, f.n.1.

A-95

to consider the claim as inappropriately

raised in that context. On appeal, the

Supreme Court of Florida reversed that

holding and remanded for an evidentiary

hearing on the Brady issues. Smith v.

State, 400 So.2d 956 (Fla. 1981).

On remand, an evidentiary hearing was

held before the trial court on August 4,

1981. The Petitioner was in attendance

and was represented by counsel. His at-

torney at trial was not present, having

moved out of the state; but the record of

the hearing reveals that Petitioner's new

lawyers had previously conferred with

trial counsel by telephone. The hearing

proceeded and the state offered testimony

by the prosecutor at trial that he had

practiced open file discovery in preparing

for the Smith trial; that he had disclosed

his entire file to defense counsel (even

A-96

to the point of making a duplicate file

for his use); and that each of the dispu-

ted statements had been in that file. No

contrary evidence was offered by the Peti-

tioner.

After the hearing the trial judge en-

tered a written order denying relief and

stating in part as follow:

The conclusion is inescap-

able that the State provided all

of the exhibits to the defen-

dant, or made the defense aware

of the existence of these exhib-

its. There is absolutely no ba-

sis for finding otherwise.

Since the undersigned judge is

convinced that these exhibits

were either made available to

the defendant, or the defendant

was made aware of their exis-

tence, it is not necessary to

determine the value to his de-

fense.

In any event, it is the be-

lief of this court that none of

the statements were favorable to

the defendant. Even the first

statement by Wesley Irving John-

son was a clear indication that

some ened person participated

A-97

in the subject crimes. It was

“childs play" police work to

make the association which in-

plicated the Defendant, Dennis

Wayne Smith.

This conclusion was thoroughly re-

viewed on appeal by the Supreme Court of

Florida and was affirmed. Smith v. State,

421 So.2d 146 (Fla. 1982).

Accordingly, the state now contends

that the Petitioner has received a full

and fair hearing of these issues in the

state courts and that this Court is bound

to give a presumption of correctness to

the state court's findings under those

circumstances pursuant to 28 US’ §2254(d)

and Sumner v. Mata, 449 U.S. 539, 101

S.Ct. 764 (1981).

The Petitioner responds by narrowing

the claims made in his petition and now

asserts that, although he was afforded a

hearing, “said hearing did not comply with

A-98

the requirements of 28 USC §2254[d](2),

(3), (6), (7), and (8)." Petitioner's

Supplemental Memorandum, p. 8. Three ar-

guments are advanced: first, that the

trial court's findings are not supported

by the record; second, that the failure of

his counsel at that hearing to secure the

presence of his trial counsel as a witness

prevented adequate development of the

material facts; and, third, that the trial

court may have prejudged the issues.

The first and third of these conten-

tions are simply without merit. The re-

cord does support the findings of the

trial judge, and the suggestion that the

court prejudged the issue is, at best,

frivolous speculation. Indeed, the record

of the evidentiary hearing reveals pain-

staking consideration. The second argu-

ment also fails because, among other

A-99

things, there is simply no current alle-

gation or showing that the presence of Pe-

titioner's trial counsel at the hearing

would have contributed anything of value.

In fact, Petitioner's then counsel report-

ed to the Court during the hearing that he

had spoken to trial counsel by telephone,

and trial counsel simply had no recollec-

tion of the matters in the issue.

A full and fair hearing was conduct-

ed, the trial Court's findings are amply

supported by the record and are presump-

tively correct. No further praceedings

are warranted in this Court on that issue.

Sumner v. Mata, supra.

The Petitioner's fifth claim is that

he was denied his right to due process of

law under the Fifth Amendment because of

the use of "inflammatory inadmissible

A-100

evidence of separate murder" at his

trial.”

This contention relates to Johnson's

testimony concerning the murder of Wagner,

and it restates the issue which became the

focal point of Petitioner's direct appeal

to the Supreme Court of Florida following

his conviction. See Smith v. State, 365

So.2d 704, 706 - 707 (1978). The Florida

Court held, applying its own pertinent

precedents in Williams v. State, 110 So.2d

654 (Fla. 1959) and Ashley v. State, 265

So.2d 685 (Fla. 1972), that the evidence

of the Wagner homicide was properly admit-

ted as part of a single transaction which

spanned the night of, and included, Arns-

dorff's murder. As such, the Court, con-

cluded, the evidence concerning the second

* Petitioner's brief expands this claim

to assert an Eighth Amendment violation as

well.

A-101

murder was relevant to place Smith at the

scene of the first since it established

that he was with the people involved in

the first homicide just an hour after it

took place.

Whether this evidentiary determina-

tion was correct or incorrect is a fairly

debatable question. Indeed, the Supreme

Court of Florida divided four to three on

the issue with the three dissenting justi-

ces expressing the view that the probative

value of the evidence was outweighed by

its prejudice. If the issue had arisen in

the federal system, governed by Rules 403

and 404(b), F.R.E., it would be an equally

troublesome point as to which this Court

or the Court of Appeals might (or might

not) reach a result contrary to that

reached by the state courts. See United

States v. Beechum, 582 F.2d 898, 909 - 916

A-102

(5th Cir. 1978) (en banc).

The important point here, however, is

the principle that the federal courts can-

not be concerned with the mere propriety

or impropriety of state evidentiary rules

or their applicaton in individual cases.

A state's interpretation and application

of its own law or rules is no basis for

habeas corpus relief since no federal con-

stitutional issue is presented. See e.g.,

Bronstein v. Wainwright, 646 F.2d 1048

(5th Cir. 1981); Monk v. Blackburn, 605

F.2d 837 (5th Cir. 1979); Davis v. Wain-

wright, 547 F.2d 261 (5th Cir. 1977);

Hall v. Wainwright, 493 F.2d 37 (5th Cir.

1974). Absent a showing of fundamental

unfairness amounting to a denial of sub-

stantive due process of law, even a misap-

plicaton of a state rule or law is not re-

viewable by way of federal habeas corpus.

A-103

Forbes v. Estelle, 559 F.2d 967 (5th Cir.

1977); Starling v. Estelle, 651 F.2d 1082

(5th Cir. 1981).

The Petitioner argues that the evi-

dentiary ruling of which he complains in

this instance amounted to a deprivation of

due procezs, but neither a reading of the

record or the citation of any established

authority supports that conclusion. No

issue of constitutional dimension is pre-

sented by this claim.

VI.

The Petitioner's sixth claim is that

the prosecution during his trial commented

upon his custodial silence in violation of

his Fifth Amendment rights.

It appears that, following his

arrest, the Petitioner made a statement to

interrogating officers but did not tell

them (as he testified at trial) that he

A-104

had loaned his car to Johnson on the

night of the Arnsdorff murder. The pro-

secutor cross examined him concerning that

inconsistency or omission.

The disposition of the claim of a

Fifth Amendment violation on these facts

is squarely governed by Lofton v. Wain-

wright, 620 F.2d 74 (5th Cir. 1980), dis-

tinguishing Doyle v. Ohio, 426 U.S. 610,

96 S.Ct. 2240 (1976). There is no merit

to Petitioner's contention.*

VII.

The Petitioner's seventh claim is

that he was denied his right to due pro-

cess of law under the Fifth Amendment and

his right to confront the witnesses and

have effective assistance of counsel under

* The State also contends that there

was a Wainwright v. Sykes waiver regarding

this claim (see page 10, supra), and the

State is correct.

A-105

the Sixth Amendment because a witness for

the state, not shown on the state's pre-

trial list of witnesses,* was permitted

to testify; and further, that this circun-

stance also violated the rule of seques-

tration because the disputed witness had

previously been in the courtroom for a

portion of the trial proceedings.

During the state's rebuttal case at

trial the prosecutor announced his inten-

tion to call as a witness Patricia John-

son, the wife of Wesley Johnson. His

stated purpose, in view of the cross exan-

ination of Wesley Johnson, was to have her

testify concerning prior consistent state-

ments made by Johnson. Compare Rule 801

(d)(1)(B), F.R.E. The prosecutor explained

* Rule 3.220(a)(1)(i) of the Florida

Rules of Criminal Procedure, unlike Rule

16, F. R. Crim. P., requires the state to

furnish on demand a list of witnesses.

A-106

that he had not listed her as a witness

because he had not anticipated that her

testimony would become admissible or nec-

essary. He also drew attention to the

fact that she had been in the courtroom

during an earlier portion of the trial,

but argued that she was not in violation

of the rule of sequestration precisely be-

cause she was not then a contemplated wit-

ness. The trial judge entertained a prof-

fer of her testimony in question and an-

swer form out of the presence of the jury,

and then overruled the defense objections,

permitting her to testify.

There was simply no error in this

procedure, much less error of constitu-

tional magnitude; and, even if there had

been some mistake in the interpretation or

application of state procedural or eviden-

tiary rules, no relief is available in

A-107

this Court in a collateral proceeding un-

der 28 USC §2254. See authorities cited,

supra, page 16. Furthermore, as to this

claim also, the State correctly asserts a

Wainwright v. Sykes waiver because the

point was not preserved on appeal to the

Supreme Court of Florida. See, Ford v.

Strickland, 696 F.2d 804, 816 - 817 (11th

Cir. 1983) (en banc).

VIII

The petitioner's eighth claim is that

he was denied his right to due process of

law and a fair and impartial trial under

the Fifth Amendment because the trial

judge gave an informal "Allen Charge" to

the jury.

The petition alleges, more specifi-

cally that as the jury was about to retire

at .:55 p.m. to commence deliberations the

trial judge remarked that "if we approach

A-108

the hour of 7:00 o'clock it's going to be

my conclusion you will have to be seques-

tered for the night.” The jury subse-

quently returned with its verdict at 6:45

p.m., and from this sequence of events it

is argued that the verdict was coerced.

A review of the record reveals that

the remark of the trial judge as quoted in

the petition was taken entirely out of

context.

The trial began on March 23, 1976.

At the end of the day's proceedings an un-

reported bench conference was held during

which, obviously, one or perhaps both of

the parties orally moved the court to se-

quester the jury. (R 170) The judge then

addressed the jury, informing them that a

request for an order of sequestration had

been made, and stating further (R 171):

A-109

"Now, I have never sequestered a

jury during the presentation of

testimony. I have often done it

when the jury has retired to de-

liberate, and that might become

necessar ere, but you have

this Seles. You may go to your

homes for this evening and re-

turn in the morning individually

if you will do as you are told,

or you can be housed together at

local accommodations under se-

curity.”

(emphasis supplied)

The judge then proceeded to instruct

the jury in forceful terms concerning

their duty to avoid improper communica-

tions, and extracted individual pledges of

fidelity in lieu of sequestration. (R

173)

The following day, March 24, lunch

was provided for the jury in the jury room

(R 728); but the judge said (R 279):

“However, because of the mono-

tony, it is anticipate [sic]

that should we be together at

the noon hour tomorrow we will

make arrangements for you to

have lunch together in seques-

tration at the restaurant.

A-110

The next and last day of the guilt

phase of the trial, March 25, the Court

explained to the jury at some length that

a “sequestered lunch” would be provided at

a local restaurant (R 486 - 487); and he

concluded his explanation with the decla-

ration and order: "You are sequestered,

which means you will remain apart from

everyone.” (R 487) Later that afternoon,

after the summations of counsel and the

delivery of his charge, the judge said (R

629 - 630):

THE COURT: All right. You wil’

also take the instructions just

read.

You may retire, elect your fore-

man who will preside over your

deliberations and sign a single

form of verdict after you have

arrived at your verdict.

Informally, I have advised --

what did you find, Sergeant

Moor?

THE BAILIFF: I have two blocks

of rooms.

A-111

THE COURT: All right, we will

see how it goes. If we haven't

gotten a verdict -- understand,

your deliberations are what you

want to do. No one controls

you, but arrangements have to be

made, and I think you would be

more comfortable knowing what

our plans are so that you might

communicate with your family;

but if we approach the hour of

7:00 o'clock it's going to be my

conclusion you will have to be

sequestered for the night.

You will be permitted to use the

telephone and, and assuming that

you need help that you can't sy

from a family member, the bail-

iff will assist you.

Clearly, given the total context in

which it was made, the judge's remark --

"if we approach the hour of 7:00 o'clock

it's going to be my conclusion you will

have to be sequestered for the night" --

was merely intended to inform the jury of

his plans and their status in order that

they might communicate with their fami-

lies; and the suggestion that such remark

A-112

was coercive or otherwise rendered the

trial so fundamentally unfair as to de-

prive the Petitioner of constitutional due

process is utterly without merit.”

IX

The Petitioner's ninth claim is that

his Fifth Amendment privilege against self

incrimination was infringed, and his Sixth

Amendment right to effective assistance of

counsel was denied, because a court ap-

pointed psychiatrist was permitted to tes-

tify concerning his interview with the Pe-

titioner and statements made by the Peti-

tioner during that interview.

During the pretrial stages of the

case Petitioner's trial counsel, pursuant

to Rule 3.210(a), (b) and (c), Florida

i Alternatively, the state's assertion

of a Wainwright v. Sykes, waiver as to

this claim is also correct.

A-113

Rules of Criminal Procedure, filed a for-

mal notice of intent to rely upon the de-

fense of insanity. (R 5)* Subsequent-

ly, he also filed pursuant to the same

rule (as did the state) a written motion

suggesting insanity and requesting that

the court appoint not more than three dis-

interested experts to conduct an examina-

tion and determine the Petitioner's compe-

tency both at the time of the offense as

well as the time of trial. (R18; 20) In

response to those motions, by order enter-

ed October 27, 1975 (R 21), the court ap-

pointed the staff of the Mental Health

Center of Polk County; and, in accordance

with that order, the Petitioner was ex-

amined on two occasions in November by Dr.

Compare Rule 12.2, F. R. Cr. P. re-

quiring the filing of a similar notice in

the federal systen.

A-114

Bert Kaplan, a clinical psychologist who

was the Director of the Forensic Unit of

Mental Health Center. (R 719 - 721)

In the meantime, the Petitioner's

trial counsel also engaged a psychiatrist,

Dr. Joseph K. Niswonger. (R 480; 495) who

examined the Petitioner on December 29,

1975, and January 7, 1976. (R 507)”

Then, on March 22, 1976, immediately prior

to the scheduled trial date, the court

conducted a sanity hearing at the request

of Petitioner's counsel; and, during that

hearing, the Petitioner filed and offered

in evidence the written reports that had

been made by both Dr. Kaplan and Dr. Nis-

wonger. (R 31; 489 - 505). The court

* It will be assumed, as asserted in

the petition, that the Petitioner was not

given any Miranda warnings during any of

his psychological or psychiatric

examinations.

A-115

found the Petitioner competent to stand

trial and the ease proceeded.

At trial, during the rebuttal phase

of the state's case, the prosecutor called

Dr. Niswonger as a fact witness (R 478 et.

seq.) to have him testify (in accordance

with his written report) that the Peti-

tioner had claimed amnesia during his in-

terviews with him, the claim of amnesia or

lack of memory being inconsistent with

Petitioner's testimony given in his own

defense at the trial.

Accordingly, the assertion now made

in the petition in this court that the

state was permitted to call a “court ap-

pointed" psychiatrist, and that Petition-

er's Fifth Amendment rights were compromi-

sed in the process, is a gross distortion

of the record. Dr. Niswonger was not

court appointed; he was privately engaged

A-116

by the Petitioner through his trial coun-

se.. and was listed as a witness for the

defense. (R 480) There were no Fifth

Amendment implications; and the question

whether the communications between Peti-

tioner and the doctor were privileged in

nature under state law was carefully sort-

ed out by the trial judge who correctly

ruled that the privilege, if any, had been

waived when the Petitioner offered Dr.

Niswonger's report in evidence at the san-

ity hearing. (R 595)

If the state had called as a wit-

ness Dr. Kaplan,* the court appointed

expert, when the Petitioner had not

* The Petitioner called Dr. Kaplan as a

witness during the penalty phase of the

trial (R 719); and the petition also com-

plains that his cross examination by the

state offended Estelle v. Smith, but that

decision is clearly inapposite to any case

in which the witness is called by the

defendant himself.

A-117

offered evidence in support of his in-

sanity defense at trial, relief might well

be warranted on the basis of Battie v. Es-

telle, 655 F.2d 692, 702 - 703 (5th Cir.

1981), extending the holding of Estelle

v. Smith, 451 U.S. 454, 101 S.Ct. 1866

(1981), even to situations in which ap-

pointment of the court appointed examiner

is initially sought by the defendant hin-

self. But those authorities obviously

have no application to conversations be-

tween a defendant and a privately retained

expert as to which no element of state

compulsion is involved. The Petitioner's

ninth claim is wholly without merit.

Alternatively, the State correctly

contends that this claim was also waived

under Wainwright v. Sykes, due to a fail-

ure to present and preserve the point on

direct appeal.

A-118

X

The Petitioner's tenth claim is that

he was denied due process of law under the

Fifth Amendment and his right to regular-

ity in the imposition of capital punish-

ment under the Eighth Amendment because he

" . . « was sentenced pursuant to a

statute which allows unbridled prosecutor-

ial discretion in making the decision to

prosecute for capital offenses or to enter

plea arrangements for non-capital offen-

ses" (Petition, page 26).

Any otherwise colorable arguments

which might be advanced in support of this

claim are foreclosed by the Supreme

Court's decision in Proffitt v. Florida,

428 U.S. 242, 96 S.Ct. 2960 (1976).

XI

The Petitioner's eleventh claim is

that he was denied due process of law and

equal protection of the law under the

een

A-119

Fifth Amendment, and his right to regu-

larity of capital sentencing under the

Eighth Amendment, because the death pen-

alty has historically been discriminator-

ily applied.

This claim is also foreclosed by

Proffitt v. Florida, supra, and Spinkel-

link v. Wainwright, 578 F.2d 592 (5th Cir.

1978).

XII

The Petitioner's twelfth claim is

that he was denied due process and equal

protection of the law under the Fifth

Amendment, and regularity of capital sen-

tencing under the Eighth Amendment,

because his co-offender, Wesley Johnson,

was allowed to plead guilty in exchange

for a life sentence.

The petition and supporting brief ar-

gue at length that Johnson was even more

A-120

culpable in the Arnsdorff murder than was

Smith, and that the Petitioner's sentence

of death was therefore disparate and arbi-

trary. In urging this contention, how-

ever, the Petitioner does nothing more

than challenge factual findings made by

the Supreme Court of Florida. On Peti-

tioner's direct appeal (Smith v. State,

365 So.2d 704, 708 (Fla. 1978)), the Court

held:

Since Johnson did not receive a

death sentence, Smith argues

that the death sentence was im-

properly imposed upon him. He

relies upon this Court's deci-

sion in Slater v. State, 316

So.2d 539 (Fla. 1975), in sup-

port of his position.

We find that this case is not

controlled by Slater, wherein

the 'trigger man’ received a

life sentence while Slater, an

accomplice who did not have the

murder weapon in his hand, re-

ceived the death penalty. We

reduced Slater's sentence to

life. As evidenced by the re-

cord and the express findings of

the trial judge, Smith's

A-121

culpability in the murder of

Arnsdorff was much greater than

that of Johnson. Smith origina-

ted the idea and directed John-

son to pour gasoline on the ve-

hicle containing Arnsdorff and

to ignite the vehicle. The re-

cord in no way suggests that

Smith was acting under Johnson's

domination. To the contrary,

Johnson was dominated by Smith

on this particular evening. We

find that, under the peculiar

circumstances of this case, the

disparity in sentences between

Smith and Johnson is justifiable

and is neither unreasonable nor

capricious.

These findings by both the trial

court and the Supreme Court of Florida

were not "so unprincipled or arbitrary as

to somehow violate the United States Con-

stitution." Barclay v. Florida, | Deis

__, 103 S.Ct. 3418, 3423 (1983). On the

contrary, they are supported by the record

and are not now subject to relitigation

under 28 U.S.C. §2254(d). Sumner v. Mata,

supra.

A-122

XIII

The Petitioner's thirteenth claim is

that he was denied due process of law un-

der the Fifth Amendment, his right to ef-

fective assistance of counsel under the

Sixth Amendment, and his right to regular-

ity in capital sentencing under the Eighth

Amendment because evidence of non-statu-

tory aggravating circumstances was admit-

ted during the penalty phase of his

trial.

Florida Statute 921.141(1)(1975), as

it existed at the time of Petitioner's

trial, previously determined to be consti-

tutional in Proffitt v. Florida, 428 U.S.

242, 96 S.Ct. 2960 (1976), provided in

part as follows:

In the [penalty phase of a capi-

tal felony trial] evidence may

be presented as to any matter

that the court deems relevant to

sentence, and shall include mat-

ters relating to any of the

—- |

ta ie ani ei i las tr

A-123

aggravating or mitigating cir-

cumstances enumerated in subsec-

tions (6) and (7). Any such

evidence which the court deems

to have probative value may be

received regardless of its ad-

missiblity under the exclusion-

ary rules of evidence, provided

the defendant is accorded a fair

opportunity to rebut any hearsay

statements. However, this sub-

section shall not be construed

to authorize the introduction of

any evidence secured in viola-

tion of the constitutions of the

United States or of the State of

Florida.

Pursuant to that provision, and dur-

ing the penalty stage of the trial after

the Petitioner had been found guilty by

the jury, the state offered the testimony

of two probation officers and a police de-

tective. Petitioner's trial counsel ob-

jected (R 685 - 686) on the ground that

the testimony did not relate to any of the

statutory aggravating circumstances enun-

erated in Florida Statute 921.141(5)

(1975). The trial court overruled the

A-124

objection in view of the liberality of

the statute regarding the admission of

evidence (R 686 - 687), and the testimony

was presented.

The essence of the testimony of the

two probation officers was that the Peti-

tioner was on probation for an offense in-

volving the sale of marijuana; that he had

not been a satisfactory probationer in se-

veral respects; and that, in fact, he had

violated the terms and condition of his

probation. The police detective testified

to hearsay information that the Petitioner

was involved in the practice of santanisn.

Despite the admission of this testi-

mony, none of which was directly germane

to any of the statutory aggravating cir-

cumstances ,* the trial court

* As to aggravating circumstances,

Florida Statute 921.141 (5) (1975)

provided:

A-125

properly instructed the jury that "aggra-

vating circumstances are limited by

statute to the following” etc. (R 755,

emphasis supplied).

(5) AGGRAVATING CIRCUMSTANCES--

Aggravating circumstances shall

be limited to the following:

(a) The capital felony was com-

mitted by a person under sen-

tence of imprisonment.

(b) The defendant was previous-

ly convicted of another capital

felony or of a felony involving

the use or threat of violence to

the person.

(c) The defendant knowingly

created a great risk of death to

many persons.

(d) The capital felony was con-

mitted while the defendant was

engaged, or was an accomplice in

the commission of, or an attempt

to commit, or flight after con-

mitting or attempting to commit,

any robbery, rape, arson, burg-

lary, kidnapping, or aircraft

piracy or the unlawful throwing,

placing, or discharging of a de-

structive device or bomb.

A-126

The jury returned its advisory ver- .

dict recommending the death penalty. (R |

761 - 762). Om the next day the trial

judge, as the ultimate sentencer under the

Florida statutory scheme, entered his

written findings required by Section

a

921.141(3) “weighing the aggravating and

mitigating circumstances." (R 788 - 790)

(e) The capital felony was com-

mitted for the purpose of avoid-

ing or preventing a lawful ar-

rest or effecting an escape from

custody.

charwestioinlicas <* =

(f) The capital felony was con-

mitted for pecuniary gain.

(g) The capital felony was com- 7

mitted to disrupt or hinder the |

lawful exercise of any govern-

mental function or the enforce-

ment of laws.

(h) The capital felony was es-

pecially heinous, atrocious, or

cruel.

A-127

Although the judge remarked in the pre-

amble to his statutorily structured find-

ings that "the defendant is a dangerous

person” (R 788), he actually found only

one statutory aggravating circumstance --

that the Petitioner's offense was espec-

ially heinous, atrocious and cruel. He

explicitly found that "no mitigating cir-

cumstance of any substance was produced"

(R 789) ;* and he therefore concluded

*As to mitigating circumstances, Florida

Statute 921.141(6) (1975) provided:

(6) MITIGATING CIRCUMSTANCES --

Mitigating circumstances shall

be the following:

(a) The defendant has no signi-

ficant history of prior criminal

activity.

(b) The capital felony was com-

mitted while the defendant was

under the influence of extreme

mental or emotional disturbance.

(c) The victim was a partici-

pant in the defendant's conduct

A-128

that the statutory aggravating circum-

stance outweighed any mitigating circum-

stances, statutory or otherwise, thus re-

quiring that the death penalty be imposed.

(R 789 - 790).

The Petitioner's argument concerning

the admission of the disputed testimony is

based upon Proffitt v. Wainwright, 685

or consented to the act.

(d) The defendant was an accon-

plice in the capital felony com-

mitted by another person and his

participation was relatively

minor.

(e) The defendant acted under

extreme duress or under the sub-

stantial domination of another

person.

(f) The capacity of the defen-

dant to appreciate the criminal-

ity of his conduct or to conform

his conduct to the requirements

of the law was substantially in-

paired.

(g) The age of the defendant

at the time of the crime.

a ee os ehowtel

+ ON aia

A-129

F.2d 1227, 1266 (11th Cir. 1982). See

also Goode v. Wainwright, 704 F.2d 593,

603 (11th Cir. 1983). In Proffitt and in

Goode, both involving the Florida senten-

cing scheme, the Court held that reliance

upon a non-statutory aggravating circum-

stance by the sentencing judge violated

the Eighth and Fourteenth Amendments even

though other, valid aggravating factors

were found to exist and no mitigating cir-

cumstances were present so as to require

the balancing of exercise contemplated by

the Florida Statute. This holding has

since been undermined, however, by the

more recent Supreme Court decision to the

contrary in Barclay v. Florida, U.S.

__, 103 S.Ct. 2733 (1983). See also, Zant

v. Stephens, __—*U.S. __, «103 S.Ct. 2733

(1983).

In Barclay and Zant the Supreme Court

A-130

held that consideration of non-statutory

or invalid aggravating factors by the ul-

timate sentencing authority (the Georgia

jury in Zant and the Florida judge in Bar-

clay) did not render the sentence uncon-

stitutional so long as (1) a valid aggra-

vating circumstance was found to exist;

(2) the improper factor which was also

considered did not itself consist of con-

stitutionally protected activity such as

the expression of unpopular political

views or the practice of a religion; and

(3) there was, in the case of the Florida

Statute, no finding of a mitigating cir-

cumstance which would require a balancing

of aggravating against mitigating factors.

While Proffitt, Goode, Barclay and

Zant are instructive with respect to the

proper analysis to be made of this case,

all are distinguishable. In each of those

Brattice —

O aebene.

A-131

cases the sentencing authority expressly

articulated and demonstrably relied upon

an invalid or non-statutory aggravating

circumstance in imposing sentence. Here

the trial court merely admitted some dis-

puted testimony, much of which (consisting

of the testimony of the probation offi-

cers) was aamissible for another purpose

anyway, namely, to negate the existence of

a mitigating circumstance, i.e., that the

defendant had no significant history of

prior criminal activity. See Barclay, 103

S.Ct. 3427.

The more troublesome point involves

the admission of the testimony concerning

Petitioner's alleged indulgence in the

practice of satanism which could arguably

be a form of protected activity within the

First Amendment.* If that testimony was

*See Kennedy v Meacham, 540 F.2d 1057

(10th Cir. 19/76).

A-132

relied upon by the sentencing authority

as an aggravating circumstance, then even

Barclay and Zant would probably require

that relief be granted.

Citing Stromberg v. California, 283

U.S. 359, 51 S.Ct. 532 (1931), the Peti-

tioner argues that when a verdict could

have been based upon either a constitu-

tional ground or an unconstitutional

ground, and the verdict is silent as to

its foundation, it must be set aside be-

cause the jury "must have” considered the

tainted evidence (Petitioner's brief, page

32). This argument fails, however, be-

cause the jury was expressly instructed by

the trial judge that in making its deci-

sion to recommend or not recommend imposi-

tion of the death penalty, the jury was

specifically limited to a consideration of

the statutory aggravating circumstances

A-133

and no others. (R 755) In Zant the

Court said (103 S.Ct. at 2745):

One rule derived from the Stronm-

berg case requires that a gener-

al verdict must be set aside if

the jury was instructed it could

rely on any of two or more in-

dependent grounds, and one of

those grounds is insufficient,

because the verdict may have

rested exclusively on the insuf-

ficient ground. The cases in

which this rule has been applied

all involved general verdicts

based on a record that left the

reviewing court uncertain as to

the actual ground on which the

jury's decision rested. [Cita-

tions omitted] This rule does

not require that respondent's

death sentence be vacated, be-

cause the jury did not merely

return a general verdict stating

that it had found at least one

aggravating circumstance. The

jury expressly found aggravat-

ing circumstances that were

valid and legally sufficient to

support the death penalty. (Em-

phasis supplied)

Accordingly, even though the jury in

this case returned a general verdict (R

761), it had been instructed to consider

A-134

only the statutory aggravating circum-

stances and it must be presumed that the

jury followed those instructions and found

the existence of one of the statutory fac-

tors and no others* Stromberg has no

application; and to the extent that admis-

sion of the evidence of satanism was error

because it did not relate | a statutory

*Indeed, the form of the jury verdict

made specific mention-of the limitation in

the Court's charge:

"We, the jury, having heard the

evidence under the sentencing

procedure in the above cause as

to whether aggravating circun-

stances which were so defined in

the Court's charge existed in

"the capital offense here invol-

ved, and whether sufficient mi-

tigating circumstances as de-

fined in the Court's charge to

outweigh such aggravating cir-

cumstances, do find the advise

that the aggravating circun-

stances do outweigh the mitigat-

ing circumstances." (Emphasis

supplied.) "

i

4

y

|

;

A-135

- aggravating or mitigating circumstance,

Zant teaches that such error simply does

not rise to the level of constitutional

magnitude. This is especially true in

Florida, as distinguished from Georgia,

because the jury's verdict was advisory

only.

It is equally clear that the trial

judge as the ultimate sentencing authority

did not consider the evidence of satanism

in imposing the death penalty. One of the

principal thrusts of the Florida Statute,

drawn in the wake of Furman v. Georgia,**

was to require the trial court to "set

Forth in writing its findings upon which

the sentence of death is based."*** This

requirement, in turn, also "requires the

**408 U.S. 238, 92 S.Ct. 2736 (1972).

***Plorida Statute 921.141 (1977).

A-136

trial judge to focus on the circumstances

of the crime and the character of the in-

dividual defendant." Proffitt v. Florida,

428 U.S. at 251, 96 S.Ct. at 2966 (1976).

Thus, in his findings in this case, the

trial judge restricted himself to the pre-

scribed statutory consideration; he found

that the offense was especially heinous,

atrocious and cruel, a statutory aggravat-

ing circumstance not counterbalanced by

any mitigating consideration, statutory or

otherwise. No mention was made, and no

reliance placed upon, Petitioner's alleged

practice of satanism. Accordingly, under

Barclay, the sentence was valid even if

the admission of the disputed evidence was

error. Its mere admission does not rise

to the level of constitutional signifi-

cance,

A-137

This claim is without merit; and,

here again, the State correctly and alter-

natively asserts a waiver of the claim in

any event under Wainwright v. Sykes, be-

cause the point was not preserved on di-

rect appeal and was not thereafter consid-

ered to be appropriately raised in the

Rule 3.850 proceedings in the state

courts.

XIV

The Petitioner's fourteenth claim is

that he was denied his Sixth Amendment

right to the effective assistance of coun-

sel at his trial.*

*No evidentiary hearing was held on this

issue in the state court although the

claim was said to be properly raised, from

a procedural standpoint, in a Rule 3.850

proceeding. The Florida Supreme Court af-

firmed the denial of relief without a

hearing after applying the standards it

adopted in Knight v. State, 394 So.2d 997

(Fla. 1981), for judging claims of inef-

fective assistance. Smith v. State, 400

So.2d 956, 959 (Fla. 1981). See also Arm-

strong v. State, 429 So.2d 287 (Fla.

A-138

The petition, as supplemented by the

brief, points to the following specific

claims of deficiency on the part of his

oa ?

Ay eet. as

retained lawyer at trial: p

(1) Failure to megs mvt d

assert an insanity defense;

(2) Failure to depose Wesley

Johnson before trial;

(3) Failure to depose the

state's other witnesses before

trial;

(4) Failure to adduce mitigat-

ing evidence during the penalty

phase;

(5) Mishandling of the psychia-

tric testimony during the pen-

alty phase;

(6) Presentation of a meaning-

less closing argument;

1983), in which the Florida Court adhered

to its decision in Knight notwithstanding

the Eleventh Circuit’s decision in Wash-

ington v. Strickland. Knight seeer the

“Decoster standard -- proof that the

error of counsel affected the outcome --

which was considered and rejected as too

harsh in Washington.

A-139

(7) General indecisiveness,

presentation of rambling argu-

ments and failure to object to

jury instructions.

Each of these assertions will be dis-

cussed in the order just stated.

A.

Although his counsel filed a pre-

trial notice of reliance upon insanity as

a defense, the Petitioner's brief conm-

plains (at page 34) that " .. . no real

insanity defense was in fact mounted on

Petitioner's behalf by his privately-

cetained counsel. Rather, some poorly

prepared and ineffective ‘stabs’ at such a

defense may have been made by [counsel] --

but those were totally inadequate."

It is clear from the record that

Petitioner's counsel filed the pretrial

notice, required by the Florida rule, as a

precautionary measure before the Petition-

er was actually examined by Drs. Kaplan

A-140

and Niswonger. When neither expert was

prepared to support the defense after

their examination (see R 722), the issue

was dropped. Moreover, there is no cur-

rent allegation or showing that Petitioner

was in fact insane; and, accordingly, no

showing that he was prejudiced when the

defense was abandoned. Besides, Petition-

er testified at the trial, under oath,

that he was not present at the scene of

the murder and did not commit the

crime.* There is no merit to this

claim.

B.

The Florida Rules of Criminal

*In Washington v. Strickland, 693 F.2d

1243, 1253 (11th Cir. 1983) Cen banc), the

Court aptly observed that some "lines of

defense may be contradictory and thus in-

capable of being presented persuasively in

tandem. For instance, an attorney might

not present an alibi defense in conjunc-

tion with a justifiable homicide defense."

A-141

Procedure, Rule 3.220, unlike the Federal

Rules, expressly provide for disclosure of

the state's witnesses and the taking of

pretrial depositions in criminal cases.

Petitioner complains that his counsel

did not depose Wesley Johnson.

At first impression any lawyer would

likely suppose that the most rudimentary

preparation for a criminal trial would in-

clude deposing the state's star witness,

given the procedural right to do so, and

the fact that it wasn't done in this case

presents the petitioner's most serious

claim for relief. Upon full consideration

of the record, however, I am persuaded

that counsel's "failure" may well have

been a matter of strategic choice and, in

any event, Petitioner has not pointed to

any "actual and substantial disadvantage

to the course of his defense." Washington

A-142

v. Strickland, 693 F.2d 1243, 1262 (11th

Cir. 1982) (en banc).

Wesley Johnson was the key witness.

On the issue of Petitioner's guilt the

other witnesses established or corrobora-

ted only so much as the Petitioner was

prepared to admit in his own testimony*

-- that he was with Johnson and Wagner on

the night in question, and that the three

of them left the Green Parrot in the conm-

pany of Arnsdorff. Only Johnson could and

did testify that Petitioner remained in

their company and, in fact, became the

principal actor in Arnsdorff's murder.

These circumstances were as obvious

before the trial as they are now, and it

was easy to anticipate what Johnson was

*Except, perhaps, the testimony of FBI

Agent Hegvold concerning the footprints

found at the scene of the crime.

A-143

going to say; he was going to place the

Petitioner at the scene and implicate him

directly in the act of murder. In fact,

defense counsel knew that would be John-

son's testimony because he had a copy of a

lengthy statement taken from Johnson in

question and answer form after Johnson had

plead guilty and had agreed to testify.

(Exhibit I to Petition; R 162). The only

purpose in deposing Johnson, therefore,

would lie in the hope of tying him to a

detailed recitation which might later be

useful for impeachment at trial as a prior

inconsistent statement. But that approach

would also entail a substantial risk,

namely, the opportunity it would afford

the witness to make a prior consistent

statement in relation to his anticipated

A-144

testimony at trial.* In evaluating

that risk cautious trial counsel would

necessarily consider in the first instance

whether he already had impeachment mater-

ial in the form of an inconsistent state-

ment or confession; and, if he did, he

might well decide, and deliberately so, to

forego the opportunity of a deposition be-

cause the prospect of profit would be slim

and the potential cost great.

That was precisely the position of

defense counsel in this case. He was al-

ready armed with Johnson's pretrial note

to the Petitioner in which Johnson related

*It is significant that the prosecution

at trial successfully offered other prior

consistent statements made by Johnson to

his wife (see Part VII, pages 18 - 19,

supra), and it is easy to imagine the glee

with which the prosecution would have of-

fered Johnson's sworn deposition, taken by

the defense itself, if it had been sought

and proved to be consistent.

A-145

that "I made sure he heard me talking

about how I done it by myself... ," and

he used that weapon during cross examina-

tion and closing argument at trial. (R

148; 152; 575) Counsel also had access to

the inconsistent statements made by John-

son to the investigating police officers

(see Part IV, pages 11 - 14, supra), and

he had and used the question-and-answer

statement or deposition Johnson had given

after entering his plea. (see R. 155)

It was defense counsel's manifest

strategy during trial to attack Johnson's

credibility primarily on the basis of his

plea bargain with the state under which he

escaped the death penalty himself in ex-

change for his plea and his testimony

against Smith, with actual imposition of

sentence to be withheld until after he had

testified. Counsel made that point during

A-146

his cross examination, together with the

fact that Johnson had taken sole responsi-

bility for the crime on another occasion,

and he stopped. Other lawyers might have

proceeded differently; and, because it has

since become known that the jury elected

to credit Johnson's testimony anyway, it

is easy to suggest through hindsight that

perhaps consel should have proceeded dif-

ferently. That is not enough, however, to

warrant a finding of constitutional insuf-

ficiency in the defense.

Under the circumstances of this case

it cannot be said, in the language of

Washington v Strickland, that counsel

failed to investigate a plausible line of

defense merely because he elected not to

depose Johnson. He had other statements,

even a confession by Johnson;. and, as pre-

viously demonstrated, there was a rational

A-147

albeit debatable strategic reason for

foregoing a deposition in those condi-

tions. Moreover, although Petitioner ar-

gues in conclusory terms that “the lack of

a defense deposition of that witness in

and of itself must constitute ineffective

assistance of counsel--or the very term

has no meaning" (Petitioner's brief, page

34, emphasis in original), the fact re-

mains that no articulable, "actual and

substantial disadvantage" (Washington v.

Strickland, 693 F.2d at 1262) is ever

stated or demonstrated.

C.

The petition asserts (at pages 37 -

38) that not only did his counsel eschew

the taking of Johnson's deposition, he did

not depose any of the other witnesses

either. Again, however, it is never arti-

culated as to precisely how this failure

A-148

later worked to the Petitioner's "actual

and substantial disadvantage." Indeed, as

stated earlier, the Petitioner's own test-

imony at -rial disputed only the critical

testimony of Johnson concerning the Peti-

tioner's presence and direct participation

in Arnsdorff's murder. There was no con-

stitional deprivation here.

D.

The petition asserts that defense coun-

sel failed to develop and present evidence

during the penalty phase of the trial con-

cerning four possible statutory mitigating

circumstances. (See Petition, pages 38

and 42; Petitioner's brief, page 34).

They are: (1) that the capacity of the

Petitioner to appreciate the criminality

of his conduct or to conform his conduct

to the requirements of law was substan-

tially impaired; (2) that the capital

— ee

A-149

felony was committed while the Petitioner

was undec the influence of extreme mental

or emotional disturbance; (3) that the

Petitioner had no significant history of

prior criminal activity; and (4) that the

Petitioner was an accomplice in the capi-

tal felony committed by another person and

his participation was relatively minor.

The last of these assertions -- that

Petitioner was a mere, less culpable ac-

complice -- is nothing more than a dispu-

tation of Johnson's testimony and is not

supported by the record. The Petitioner,

after all, had testified that he was not

present and did not participate at all.

With respect to the other three areas

of mitigation, and despite the assertions

to the contrary, the record reveals that

defense counsel did in fact present testi-

wony concerning each of them. There was

A-150

testimony, for example, from both the

Petitioner (R 369 - 370; 389 - 391; 397;

412; 419 - 422) and Dr. Kaplan (R 719 -

735) relating to Petitioner's inability to

conform his behavior due to use of alcohol

and drugs, as well as his mental or emo-

tional disturbance; and, insofar as his

limited history of prior criminal activity

was concerned, Petitioner had testified (R

373 - 376) to two arrests involving mari-

juana (one in Illinois and one in Flor-

ida), and one extension of probation for

fighting.

E.

The petition refers in passing to

“mishandling of crucial psychiatric testi-

mony” (Petition, page 38), presumably re-

ferring to the calling and examination of

Dr. Kaplan by defense counsel during the

penalty phase of the trial. Clearly,

NO et ——

A-151

however, the appropriate object of coun-

sel was to attempt to develop (contrary to

Petitioner's preceding claim of ineffec-

tive assistance) one of the statutory

mitigating circumstances, and it is never

demonstrated in any of Petitioner's papers

how this aspect of the defense was "mis-

handled."

The Petitioner asserts that his coun-

sel made a meaningless closing argument at

the conclusion of the penalty phase of the

trial (Petition, page 39).

Although the argument was brief, con-

sisting of less than two pages in the re-

cord (R 753 - 754), and was also somewhat

disjointed as reported, it says too much

to characterize counsel's allocution as

"meaningless." The effect of the presen-

tation was to call attention to the testi-

mony of Dr. Kaplan concerning the

A-152

Petitioner's drug abuse and his "signifi-

cant psychological problems” (R. 722), and

to commit him to the mercy of the jury.

The approach did not succeed, but it would

require the application of purely subjec-

tive judgment aided by hindsight to now

conclude that it was so poorly conceived

and presented as to fall below minimal

constitutional requirements. A similar

claim was made and rejected in Profitt v.

Wainwright, 685 F.2d 1227, 1250 (lith Cir.

1982).

G.

Lastly, the petitioner makes a gen-

eralized claim that his counsel was inde-

cisive and, for example, made no relevant

objections to jury instructions. (Peti-

tion, page 40). No argument is advanced,

however, as to which instructions were ob-

jectionable or on what grounds; and there

A-153

is simply no articulation of any "actual

and substantial disadvantage" to the de-

fense.

In asserting his various claims of

ineffecitve assistance of counsel the

Petitioner repeatedly emphasizes that no

evidentiary hearing was held in the state

courts, and he exhorts the court to con-

duct one in order to explore the undefined

prejudice he claims to have suffered. No

useful purpose would be served by doing

so. An evidentiary hearing, even in a

capital habeas case, is justified and

should be conducted only when necessary to

resolve sharply defined issues of fact; it

should not be conducted merely as a fish-

ing expedition to satisfy the desperate

hope of new counsel that something might

evolve - something that counsel cannot

presently articulate except in the most

general and conclusory terms.

A-154

No evidentiary hearing is justfied and no

relief is warranted with regard to the

Petitioner's claim of ineffective assis-

tance of counsel at trial.

XV

In his fifteenth claim the Petitioner

asserts that he was denied procedural due

process and his right to a fair and impar-

tial trial under the Fifth Amendment, and

his right to regular capital sentencing

under the Eighth Amendment because the

trial judge's instructions to the jury

limited the jury's consideration to statu-

tory mitigating factors. In his instruc-

tions to the jury on mitigating circum-

stances the trial judge stated "(m)itiga-

ting circumstances by statute are:" and he

then read the appropriate statutory lan-

guage. (R. 756) The court later told the

jury:

A-155

When one or more of the ag-

gravating circumstances is

found, death is presumed to be

the proper sentence unless it or

they are overridden by one or

more of the mitigating circum-

stances provided in Florida

Statute 921.141(7) of the

Florida Statutes. (R. 757, 758).

Significantly, however, the judge then

elaborated upon that instruction by making \

the following statement: "(a)1l evidence

of mitigating circumstances may be consid-

ered by the judge or jury." (R. 758) In

Ford v. Strickland, 696 F.2d 804 (11th

Cir. 1983), the Court reviewed a nearly

identical jury instruction and determined

"that the jury did not perceive a restric-

tion on the use of any mitigating evi-

dence." Id. at 813.

The record reveals that the judge

A-156

read the statute as written™ and did

not expressly limit the jury's considera-

tion to those mitigating factors enumera-

ted in the statute. The Supreme Court de-

termined in Proffitt v. Florida, 428 U.S.

242, 96 S.Ct. 2960, 2965 - 2966, n.8

(1976), that the Florida Statute does not

limit a jury's consideration of mitigating

circumstances to only those listed in the

statute.

In addition, a review of the record

reflects that the Petitioner was not lin-

ited in the introduction of evidence which

might be considered mitigating.**

*Florida Statute 921.141(5) (1975) pro-

vided that "aggravating circumstances

shall be limited to the following:" By

contrast, subsection (6) began with the

declaration “mitigating circumstances

shall be the folilowing:"

**Petitioner does not specify what non-

statutory mitigating factors the jury

should have considered.

A-157

The jury heard testimony during the trial

concerning Smith's family background, edu-

cation, work history, social relation-

ships, and psychological history. (R. 370

- 373, 376 - 382, 388, 400)

Furthermore, the trial judge's sen-

tencing order reflects his belief that

neither he nor the jury was restricted to

a consideration of only statutory mitigat-

ing circumstances. The judge stated:

This Court does not find mitiga-

ting circumstances of any sub-

stance was produced. This Court

can only conclude that suffi-

cient aggravating circumstances

exists and that there are not

mitigating circumstances to out-

weigh the aggravating circum-

stances. (R. 789, 770)

The trial judge's instructions simply

did not preclude the jury from considering

nonstatutory mitigating factors. Accord-

ingly, the claim is without merit.

Even assuming the jury instructions

A-158

were erroneous, the claim would be barred

from consideration pursuant to Wainwright

v. Sykes, 433 U.S. 72, 97 S.Ct 2497

(1977). The Petitioner failed to make any

specific objection at trial or to raise

the issue on direct appeal.

In determining whether a procedural

default on appeal bars federal habeas re-

view of this issue, the Court in Ford v.

Strickland applied the standard of preju-

dice enunciated in United States v. Frady,

456 U.S. 152, 102 S.Ct. 1584 (1982). Un-

der the Frady test a petitioner must etab-

lish that the error worked to his "actual

and substantial disadvantage." Id. at

171.

A review of the evidence proffered at

trial which could be construed as nonstat-

utory mitigating circumstances fails to

establish that there was a substantial

A-159

likelihood that Smith was actually and

substantially prejudiced by the judge's

instructions to the jury. In the absence

of any showing of prejudice to the Peti-

tioner, his failure to assert the issue on

direct appeal results in a waiver under

Wainwright v. Sykes and Ford v. Strick-

land.

XVI

Petitioner asserts as his sixteenth

claim that he was denied procedural due

process under the Fifth Amendment by the

failure of the judge or jury to find miti-

gating circumstances.

After considering all of the evidence

presented at trial and during the penalty

phase of the proceedings, the trial judge

determined that no mitigating circumstan-

ces were present, statutory or otherwise.

(R. 789) Smith challenges this conclusion

A-160

contends that several statutory mitigat-

ing circumstances are supported by the

evidence.

Specifically, he asserts that the

following statutory mitigating factors

were established:

(1) The Defendant has no signi-

ficant history of prior criminal

activity.

(2) The captial felony was com-

mitted while the Defendant was

under the influence of extreme

mental or emotional disturbance.

(3) The Defendant was an accom-

plice in the capital felony com-

mitted by another person and his

participation was relatively

minor.

(4) The capacity of the Defen-

dant to appreciate the criminal-

ity of his conduct or to conform

his conduct to the requirements

of law was substantially impair-

ed.

With regard to the Petitioner's as-

sertion that the evidence supported a

finding that he had no significant history

A-161

of criminal activity, the record reflects

otherwise. The Petitioner testified to

two arrests involving marijuana. The

first arrest was for posession of mari-

juana and resulted in incarceration for

one year. (R. 374) The second arrest was

for the sale of marijuana and the Peti-

tioner was placed on probation for three

years. (R. 374) Before the three year

term of probation expired, the Petitioner

was arrested for fighting and his proba-

tion was extended for another year. (R.

375) Petitioner also testified that he

was "picked up three or four times for

violation of probation." (R. 376)

At the penalty phase, the State of-

fered the testimony of two probation offi-

cers who testified that Smith was on pro-

bation for the sale of marijuana; that he

had not been a satisfacty probationer; and

A-162

that he had violated the terms and con-

ditions of his probation. (R. 677 - 681,

689, 690)

Taken together, the testimony of

Smith and the probation officers would

appear to negate rather than support the

es ae

finding that the Petitioner had no signi-

ficant history of prior criminal activity

wh a

The "significance" of that criminal his-

tory may be an issue as to which reason-

able persons could disagree; but the judge

ee ae © ae

and jury were free to conclude that this

mitigating consideration was not supported )

by the evidence.

The record also fails to support the

Petitioner's claim that the judge and jury

should have determined that he was merely

an accomplice in the crime and that his

participation was relatively minor. Wes-

ley Johnson testified that Smith hit

A-163

Arnsdorff with a tire tool several times

(R. 132), directed Wagner to buy some gas,

and told Johnson to set the car containing

Arnsdorff on fire. (R. 134) When the

Petitioner took the stand he testified

that he was not even present when Arns-

dorff was killed. (R. 391, 418)

Such evidence either establishes

Smith as the ringleader or as a nonparti-

cipant; it fails to support a finding that

he was a mere accomplice and only played a

minor role in the crime.

Finally, in an effort to establish

that at the time of the offense Smith was

under the influence of extreme mental or

emotional distubance and/or his capacity

to appreciate the criminality of his

conduct or conform his conduct to the

requirements of law was substantially inm-

paired, the defense presented the

tescimony of Smith and a court appointed

psychologist, Dr. Kaplan.

During the guilt phase of the trial,

Smith testified that on the night in ques-

tion he was under the influence of drugs

and alcohol. (R. 369, 370, 389 - 391,

397, 412, 419 - 422).*

At the penalty phase, Dr. Kaplan tes-

tified to the Petitioner's emotional and

psychological problems (R. 719 - 739) and

the Petitioner took the stand for a second

time to testify to his mental condition.

(R. 740, 741)

The judge and jury considered the

evidence and were not persuaded that the

testimony was sufficiently credible to

*wesley Johnson had testified earlier in

the trial that he and Smith consumed a

considerable amount of liquor’on the even-

ing Arnsdorff was killed. (R. 118, 122,

130, 143).

A-165

establish the statutory mitigating cir-

cumstances. Dr. Kaplan also testified

that the Petitioner knew the difference

between right and wrong; and, crediting

the testimony of Johnson, as the jury ob-

viously did, there was evidence that Peti-

tioner was in full possession of his phy-

sical and mental faculties at the time of

the offense. The Petitioner does not

assert that the judge or jury considered

evidence they should not have considered

nor does he allege that they failed to

consider matters they should have consid-

ered. Petitioner merely disputes the

weight given to the testimony.

Consideration of all mitigating cir-

cumstances is required by the United

States Constitution, Lockett v. Ohio, 438

U.S. 586, 98 S.Ct. 2954 (1978), but the

A-166

decision of whether a particular mitigat-

ing circumstance in sentencing is proved

and the weight to be given it rests with

the judge and jury.

Petitioner was given ample opportun-

ity to present evidence in mitigation at

the trial. The jury and judge considered

the evidence and determined that no miti-

gating factors, statutory or otherwise,

were present. Such a decision was well

within the domain of the judge and jury

and the record fails to reveal any basis

to disturb the trial court's findings.

The claim is without merit.

XVII

In his seventeenth claim the Peti-

tioner asserts that the Florida Supreme

Court received and considered non-record

psychiatric reports in reviewing his case

in violation of his Fifth Amendment rights

A-167

to due process of law and to refrain from

self incrimination, his Sixth Amendment

rignt to confront witnesses against him

and his Eighth Amendment right to regular-

ity in the imposition of the death penal-

ty.

The Florida Supreme Court rejected

Smith's argument in Brown v. Wainwright,

392 So.2d 1327 (Fla. 1981), cert. denied,

454 U.S. 1000, 102 S.Ct. 542 (1981); and,

more recently, the Eleventh Circuit rejec-

ted the same argument in Ford v. Strick-

land, 696 F.2d 804 (11th Cir. 1983). Ford

controls this issue and in accordance with

that en banc decision this claim has no

merit.

XVIII

Petitioner asserts as his eighteenth

claim that he was denied effective assis-

tance of appellate counsel under the Sixth

Amendment. Specifically, Petitioner

A-168

contends that his appellate counsel erred

in not raising the following issues on

direct appeal:

(1) Failure by the trial court to

instruct the jury that aggravating circum-

stances must be found beyond a reasonable

doubt;

(2) The trial court's instruction to

the jury that the death penalty is presun-

ed to be appropriate where the jury finds

aggravating circumstances and no mitigat-

ing circumstances;

(3) Admission into evidence of two

photographs of the decedent's body;

(4) A claim that Section 921.141,

Florida Statute (1975), is unconstitution-

al because it does not require adherence

to the Florida Rules of Evidence, particu-

larly as to hearsay and denial of confron-

tation;

A-169

(5) Admission into evidence of the

testimony of Dr. Niswonger, which was pro-

tected by the psychiatrist-patient privi-

lege;

(6) Admission into evidence of non-

Statutory aggravating factors during the

penalty phase;

(7) Restriction by the trial court

of the jury's consideration of non-

statutory mitigating circumstances;

(8) Failure to have the jury voir

dire transcribed and reviewed by the

Florida Supreme Court.

Each of these assertions will be dis-

cussed in the order just stated.

To the Petitioner's claim that the

appellate counsel failed to assert on ap-

peal the lack of a specific jury instruc-

tion that aggravating circumstances must

be found beyond a reasonable doubt, the

A-170

State responds (1) that no authority is

cited in support of the contention that

such an instruction is required in the

first place;”* and (2) that appellate

counsel could not have raised the point

anyway because the issue was not preserved

by trial counsel. Without pausing over

those arguments, a review of the trial

court's instructions to the jury belie the

claim in any event. At the conclusion of

the trial, and as a part of his final

charge, the trial judge instructed the

jury no less than twenty four separate

times in various contexts that the State

*The Supreme Court of Florida has held,

nevertheless, that aggravating circumstan-

ces must be proved beyond a reasonable

doubt. Williams v. State, 386 So.2d 538

(Fla. 1980). This is a “settled principle

of Florida law." Ford v. Strickland, 696

F.2d 804, 819 (11th Cir. 1983) en banc.

A-171

must prove its case beyond a reasonable

doubt. (R. 599, 600, 604 - 606, 615, 617,

619, 621, 624, 625, 627). The detailed

definition of the “reasonable doubt" con-

cept was stated in the most favorable

terms. (R. 613 - 614)

At the conclusion of the penalty

phase the judge again instructed the jury.

He was not requested and did not rein-

struct the jury concerning the state's

burden of proof, but did instruct concern-

ing the statutory provisions pertaining to

the jury's function to weigh aggravating

and mitigating circumstances and to make a

sentencing recommendation to the judge.

All of the jury instructions were

given on the same day, within a relatively

short time of one another. Given the re-

peated instruction at the close of the

guilt phase that the state must prove its

A-172

case beyond a reasonable doubt and the

brief interval between instructions, it is

clear that the jury was properly instruct-

ed that anything the State contended, in-

cluding aggravating circumstances, must be

proved beyond a reasonable doubt. Appel-

late counsel cannot be faulted for not

raising this issue.

Petitioner's next assertion of inef-

fective assistance of appellate counsel

refers to the Court's instruction to the

jury that the death penalty is presumed to

be appropriate where the jury finds aggra-

vating circumstances and no mitigating

circumstances. The court instructed the

jury that:

When one or more of the

aggravating circumstances is

found, death is presumed to be

the proper sentence unless it or

they are overidden by one or

more of the mitigating circum-

stances .. . (R. 757 - 758)

A-173

The jury instruction properly states

the effect of the Florida Statute as up-

held in Proffitt v. Florida, 428 U.S. 242,

96 S.Ct. 2960 (1976). There was no error

by the Court and no mistake by counsel.

The Petitioner next complains that

his appellate counsel did not assert as

error the admission into evidence of the

photographs of the decedent's body. It

would have been futile to do so (and, for

that reason, a bad appellate tactic also)

because the law of Florida is well settled

that photographs taken at the scene of the

crime of the body of the deceased, and ob-

jects near or around it, may be admitted

in evidence. Mardorff v. State, 143 Fla.

64, 196 So. 625 (1940). If otherwise com-

petent and material, photographs of a

corpse are admissible in evidence though

they portray a gruesome spectacle and may

A-174

tend to arouse passion and resentment

against the defendant in the minds of the

jury. Calloway v. State, 189 So.2d 617

(Fla. 1966); Wilkins v. State, 155 So.2d

129 (Fla. 1963); Savage v. State, 38 So.2d

47 (Fla. 1948); Mardorff v. State, supra.

The Petitioner says his appellate

counsel should have challenged the consti-

tutionality of Florida Statute 921.141 be-

cause of its express departure from the

exclusionary rules of evidence and alleged

denial of the right of confrontation, but

he does not presently demonstrate by per-

suasive argument or citation of authority

that such a contention would have had any

hope of success especially in light of

Proffitt v. Florida, 428 U.S. 242, 96

S.Ct. 2960 (1976) declaring the statute to

be constitutionally valid.

A-175

The Petitioner says his appellate

counsel should have challenged the admis-

sion into evidence of the testimony of Dr.

Niswoger because of the psychiatrist-

patient privilege, but the basis for that

contention has already been considered and

rejected (see the discussion concerning

claim IX, supra, pages 22 - 25).

The Petitioner says his appellate

counsel should have challenged the admis-

sion into evidence of non-statutory aggra-

vating factors during the penalty phase of

his trial, but the basis for that conten-

tion has already been considered and re-

jected (see the discussion concerning

claim XIII, supra, pages 28 - 36).

The Petitioner says his appellate

counsel should have challenged the trial

court's alleged restriction of the jury's

consideration of non-statutory mitigating

circumstances, but the basis for that

A-176

contention has already been considered

and rejected. (see the discussion con-

cerning claim XV, supra, pages 46 - 49)

The Petitioner says, lastly, that his

apellate counsel should have had the voir

dire proceedings transcribed and reviewed

by the Florida Supreme Court, but no sug-

gestion or representation is made that any

Witherspoon* or other error actually oc-

curred; and, even if it had, it was not

preserved for review in the Supreme Court

of Florida (see Sullivan v. State, 372

So.2d 938 (Fla. 1979)) or in this Court

(see Sullivan v. Wainwright, 695 F.2d

1306, 1311 (11th Cir. 1983).

XIX

The Petitioner's nineteenth and final

claim is that he was denied his right to

*Witherspoon v. Ellinoise, 391 U.S. 510,

88 S.Ct. 17/0 (1968).

A-177

due process under the Fifth Amendment;

his right to effective assistance of coun-

sel under the Sixth Amendment; and his

right to regularity on the imposition of

capital punishment under the eighth Amend-

ment, all because the state courts never

conducted an evidentiary hearing or hear-

ings concerning his many claims other than

the hearing held with respect to the

claimed Brady violation. There is, how-

ever, no constitutional right to an evi-

dentiary hearing when none is necessary to

resolve the contentions advanced, i.e.,

when the claims asserted are fully capable

of resolution by reference to, and reli-

ance upon, the record already made in ear-

lier judicial proceedings. Indeed, in

most habeas cases that is the only appro-

priate manner of resolving the issues

raised. Thus, in this instance, just as

this Court has been able to resolve the

Petitioner's contentions by a review of

the record and without further evidentiary

hearing, so also were the state courts

justified in proceeding in the same

manner.

The Petition for a writ of habeas

corpus is DENIED. The death warrant out-

standing against the Petitioner having ex-

pired, the stay of execution granted by

this Court on February 14, 1983, is MOOT

and is therefore DISSOLVED.

The Clerk is directed to enter judg-

ment dismissing the petition with preju-

dice.

IT IS SO ORDERED.

DONE AND ORDERED at Tampa, Florida,

this 18th day of November, 1983.

NIT ATES DISTRI DGE

i

A-179

SUPREME COURT OF FLORIDA

STATE OF FLORIDA

DENNIS WAYNE SMITH,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

APPEAL CASE NO. 49,245

APPEAL VOLUME III

TRANSCRIPT OF RECORD ON

APPEAL FROM THE CIRCUIT COURT

OF POLK COUNTY, FLORIDA

HONORABLE OLIVER L. GREEN, JR.

PRESIDING JUDGE

ROBERT E. PYLE OFFICE OF THE

145 East Haines Blvd. ATTORNEY GENERAL

Lake Alfred, Capitol Building

Florida 33850 salihbaeoes.

Florida 32304

ATTORNEY FOR ATTORNEY FOR

APPELLANT APPELLEE

A-180

It's serious, sure, the defendant is on

trial for his life; but the state did not

create the circumstances that put him

there. The state has only brought this

charge to you to consider. The state did

not create the circumstances, and I ask

for your guilty verdict.

MR. HADDOCK: Ladies and gentlemen

of the jury, this is indeed a time for

trial for a lawyer in any case on either

side, regardless of whether it's a crim-

inal or civil case. In this particular

type of case, the lawyer who is respons-

ible for the outcome pretaining to the de-

fendant has more responsibility than he

will ever have at any time when he is

practicing law. Again, I say to you, as

has already been said, anything I say if

it is in conflict with your recollection,

if it is in error, it’s an honest error.

A-181

If it helps you recall something that

perhaps you were in error about -- because

we're all human -- maybe we can straighten

it out.

I do not feel the closing arguments

as such are burdensome and are archaic as

do many lawyers. I don't think it's a

time, as it was when we were seating the

jury, for visiting and for any type of

humor. It's a time of great seriousness.

It's the strongest thing we do. It be-

hooves us to have, those of us who defend,

to have our thoughts together. It is the

highest point that there can be. If we do

miss something, we hope that somehow we

have skirted the issue so well that you

will pick it up, good or bad. We are here

for the truth, the ultimate turth, and I

have explained my position. There is no

need to dwell on that.

A-182

The Court is going to instruct you

and you will, you will base your verdict

on this thing. The Court is going to in-

struct you on reasonable doubt. If you

find any reasonable doubt, anyone of you

individually in your own minds that you do

not resolve, then you cannot convict the

defendant. You individually nor this jury

collectively. That's the burden; that's

your burden. It will soon be handed to

you.

His Honor will read you because of

the magnitude of this case a rather large

volume of law. It behooves you to listen

to him well because you will have to apply

this law in coming to your ultimate con-

clusion as to the guilt or innocence of

Dennis Wayne Smith in this case as he is

charged with first degree murder of Mr.

Arnsdorff by the method which you will

tlt i i Be ie

A-183

have as a result of the indictment re-

turned.

During the course of my arguments,

and I've done this for years and I think

the courthouse personnel becomes a little

tired of it but it is effective, I have

behind me on this wall a large neon sign.

It's red. 1 somehow control the switch in

my discussion with you, but I can't see it

because my back will be turned to it; and

it spells reasonable doubt. Ladies and

gentlemen of the jury, if at any time in

your individual mind I turn that sign on,

Dennis Wayne Smith is not guilty. Now,

let's get away from the, "I turned it on."

If the facts I convey to you turn it on or

the facts that I recollect with you turn

it on, Dennis Wayne Smith is not guilty.

That's the promise you made; that's why we

took so long in examining you. Not

A-184

nearly as long as' we anticipated. This

trial has gone much faster than we figured

it would go, but you promised to use your

mind to the best of your capacity to come

to an ultimate conclusion of the guilt or

innocence of this defendant based upon the

facts which you will take into the court-

room and apply to the law which His Honor

will give you. P

It's that simple, and it's that con-

plicated. Just as is my duty up here com-

plicated, so will yours be when you retire

to that jury room. I do not envy you; I

would not trade places with you, because

you have as I have already explained to

you the greatest responsibility beginning

to devolve on you that you will ever have

in the upholding of the American way of

life--to come to a fair and just conclu-

sion pertaining to the guilt or innocence

i

A-185

of a man on trial for his life.

Now, this case could really be called

a slot machine case, couldn't it? You

have got several people involved; in a

slot machine you have several rollers.

Let's make it a quarter slot machine so it

won't be real cheap and it won't be real

wasteful. You put a quarter in it and you

pull the handle. The only thing you are

certain of, ladies and gentlemen, is that

you might not get your money back or any

other money. That's the truth in a slot

machine, and we have a slot machine case.

Now, right there, the idea that you might

not get your money back is the beginning

of a reasonable doubt. As you watch these

things go and they fall in line if you get

so many cherries you get maybe a jackpot;

a bunch of lemons, you're out of business.

I'm playing that game with you only it's

A-186

no game. It's for real. Like nothing

you will ever find in a casino, nor is it

like anything else you will ever run

across in life as such except under these

circumstances.

The burden of proof as indicated to

you at the beginning of this trial is a

tremendous responsibility; and it is on

the state, because you agreed with me when

we started this case that Mr. Smith was an

innocent man. Now, our problem, which is

yours because we are transferring it to

you, is has this state carried that great

burden on a first degree murder charge?

Have they carried that burden beyond and

to the exclusion of every reasonable

doubt. That doesn't mean every doubt. His

Honor is going to teli you what a reason-

able doubt is and I'm not going to tress-

pass too much on his reading of the law

A-187

because there is too much of it as it is.

There will be too much of everything; but

you, you are the ones who are here, and

you are the ones who will have to know and

understand.

Now, in order to discuss this matter

with you, and, ladies and gentlemen of the

jury, let me explain this. Under our

rules of procedure Mr. Smith took the

stand and testified and was subject to

cross-examination. He brought in witness-

es; and I therefore will not be back be-

fore you, which means neither will Dennis

Wayne Smith, bcause I'm speaking for him

in his place as his counsel.

And I must go over with you in more

detail than has been done previously con-

cerning the witnesses that appeared in

this case in order to refresh your minds,

and I hope not to bore you. I can't

A-188

guarantee that this sort of thing isn‘t

repetitious and boring, but it's somewhat

necessary in order that we can do as has

already -- feel as has already been men-

tioned to you when we go home. Oh, my

goodness, I forgot one important point,

and that one point might have tipped these

scales on that reasonable doubt. So let

me start with our witnesses and I will

lace through this discussion personal

things which I am allowed to say within

reason.

Dr. Thorpe, my recollection, was the

first witness. Obviously a competent den-

tist from Jacksonville, Florida. The last

time he had seen the decedent was November

8, 1971. As a result of his testimony

there was introuced into evidence, and you

will have with you, small photographs

which in truth and fact show the teeth in

A-189

practically the same size as the larger

photograph ultimately introduced, but do

not show them in the same fashion. That's

all Dr. Thorpe had to give to us.

Then Dr. Cardman, who is a dentist

here in town, gave us the information that

he made an X-ray examination of a rather--

and we use this word because it's a good

word--he made an examination of a rather

exotic type. He did not do as would nor-

mally be done, and at least he did not

testify that it would normally be done,

and took the photograph of the mouth from

a rather odd angle that would show all the

teeth whereas this shows individual sec-

tions of the teeth. You will have an op-

portunity to study this. It will be part

of the evidence which I assume will go in-

to the courtroom--into the jury room with

you. You be sure, you be sure, because

A-190

that's it. Without an identification of

Mr. Arnsdorff we have no, we have no

crime.

These pictures are weather reports.

I don't know what they show. I don't see

any point in their being introduced, but

if you want to see a certain portion of

Polk County from the area and places mark-

ed out, that's fine. They were marked out

and shown to you for whatever value they

have. And frequently the Court is caught

in a bind, so are the attorneys, in

feeling that matters should go to the jury

when they really don't have any business

there; they are just that much extra.

We get to Dr. Holoman, who was the

medical examiner, a medical examiner of

the county. He is one of your employees.

There has been pretty bad testimony about

the circumstances surrounding the murder

A-191

of Arnsdorff. Icepick, jabbing with tire

irons. The only thing he says is that the

man died from a suffocation in his trachea

down into his bronchial tubes. I don't

feel it's my duty to prove the state's

case and I don't know whac medical examin-

ers do. Nor do I know what can be done,

but it was not said negatively that there

were no marks found on the decedent that

indicated that he had been hit or struck

with either an icepick in the bones or in

the chest cavity anywhere. There was no

evidence of that, albeit he had been badly

burned in that automobile. There is no

question about that. But there was no

testimony from Dr. Holoman, and I wonder

if there is no technique that can be used.

I have wondered through this entire trial,

gentlemen, ladies and gentlemen, about the

rather lax techniques in the lacing up,

A-192

the fast lacing up we have had to do--or

that the state has had to do--to get this

thing put together, if it is put together.

And if they do, by their loopholes and

openings and gaps like this, leave in your

minds some reasonable doubt.

Now, Lieutenant Keeney testified only

that there was a cause--he had something

to do with the body as such and he was out

of town. We did not need him. They read

his testimony and it was agreed to by both

the state and myself since he was going to

a very important conference for police of-

ficers, that he should go and not be kept

here. His testimony was not that impor-

tant. You have heard it. You will give

it whatever value it's worth.

Now, I will talk about some other

people and we will come back to the man

that apparently has been said to be on

A-193

trial here, because he is on trial here a

little bit. He is on trial about as much

as anybody ever saw, and we are going to

put some pieces together about him if we

can,

Mr. Toney testified only that he was

a paper route man, he saw the fire burn-

ing, he saw a corpse in the trunk. This

is conclusive testimony and unrebutted.

Deputy Wood, who is also somewhat of

a weather report type situation, said that

he went out to Lake Luther Road and saw

the burning skull; and Sergeant Boydston

and Lieutenant Keeney, Al Lang and Mr.

Toney all came out, and the photographic

section of the Sheriff's Department began

to function and do its duty as it should

have done in regard to this matter.

Sergeant Charles Duke, who has had a

good bit of experience in police work,

A-194

poured these plaster casts. He said that

he had taken a lot of photographs. He took

the photographs of the area and he took

the plaster casts. They are in evidence;

we will get back to them and talk about

them. There is no argument with his work.

Some argument with the necessity of all

the pictures, but they are there and if

you want to look at all of them they are

there. He showed just about everything

that can be shown.

Now, we had out shoes question situa-

tion that was after the, after the alleged

crime; the shoes were taken for identifi-

cation voluntarily given by--they didn't

have to snatch them off him or anything.

He gave them to them for identifying the

defendant, Dennis Wayne Smith. And Ser-

geant Al Lang then made a print, he said,

out at the place of these tennis shoes.

He could not find an adequate--or pla

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