# Appendix — Wainwright v. Smith

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1985
- **Citation:** 470 U.S. 1087

## Text

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 dispute

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1927%3A2. Public record. Not legal advice.