Petition for Writ of Certiorari — Dugger v. Thompson

Q7 ee 11 hy 4 (\) ___ Suprema Court, 7

FILED

JAN Av }9Q8

JOSEPH F. SPANIOL, UR.

NO. CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1987

RICHARD L. DUGGER, Secretary,

Florida Department of Corrections, and

ROBERT A. BUTTERWORTH, Attorney General,

State of Florida,

Petitioners,

vs.

WILLIAM LEE THOMPSON,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

CAROLYN M. SNURKOWSKI

ASST. ATTORNEY GENERAL

The Capitol

Tallahassee, Florida

32399-1050

(904) 488-1778

COUNSEL FOR PETITIONERS

QUESTIONS PRESENTED

1. Whether the Florida Supreme Court

has miscontrued the decision in Hitchcock

v. Dugger, 95 L.Ed.2d 347 (1987), in failing

to acknowledge and consider the applicability

of Chapman v. California, 386 U.S. 18 (1967),

as specifically stated in Hitchcock, to

similarly postured cases, and_ therefore

summary reversal for consideration by the

Florida Supreme Court should obtain?

TABLE OF CONTENTS

PAGES

QUESTION PRESENTED... 2... cc cccccccccscccscces i

ogi Ee kt re a a ie 2

Mii at ley lt re i i i a 3

CONSTITUTIONAL PROVISIONS INVOLVED.......... 3

STATEMENT OF THE CASE... ...ccccccccccnececes 4

REASONS FOR GRANTING THE WRIT.............. 12

I. The Florida Supreme Court has misconstrued

the decision in Hitchcock v. Dugger,

95 L.Ed.2d 347 ( n failing to

acknowledge and consider the applicability

of Chapman v. California, 386 U.S. 18

(1967), as specifically stated in

Hitchcock to similarly postured cases,

and therefore summary reversal for

consideration by the Florida Supreme

Court should obtain.

DEEN: +o 5 cb eS CUS@N RS Cree cee ec ager eeeees 20

APPENDIX

Order and judgment of the Circuit

Ses te ree eee ee ee eee eee eee A-1

Sentence of Circuit Court................ A-36

Opinion of Florida Supreme Court

Decided September 9, 1987............. A-41

nite

Order of Florida Supreme Court

Denying Motion for Rehearing

Opinion of the Eleventh Circuit

Court of Appeals

-iii-

A-53

A-55

TABLE OF AUTHORITIES

CASES PAGES

a v. California,

OE 12,14

Clark v. Dugger,

F.2d (Decided December 15,

EE ee 15

Eddings v. Oklahoma,

Es 15

Francois v. Wainwright,

763 F.2d 1188 (llth Cir. 1985).......... 18

Hitchcock v. Dugger,

95 L.Ed.2d 347 (1987)....... 11,12,14,16,19

Lockett v. Ohio,

NOE , De bdaue

Penry v. Lynaugh,

Sees Cem ClO. BOBT).ccccccccess 15

Pope v. Illinois,

es = 8. Bé.. 1) rrr 14

Rose v. Clark,

er re MED. occ cosscsecsesecesd 14

Sandstrom v. Montana,

RE, ee 14

Skipper v. South Carolina,

476 U.S. , 90 L.Ed.2d 1 (1986)...... 15

-iv-

TABLE OF AUTHORITIES, CONTINUED

Thompson v. State,

_ ee gS ee ie Pee EERE REE EEE 5

Thompson v. State,

ee ome Bee GPEO. 1980). wwe cccccccces 3,6

Thompson v. Wainwright,

747 F.2d 1447 (llth Cir. 1986)....2, 11-12

16-18

Thompson v. Dugger,

So.2d (Fla. 1987),

ER EEL 2,6-10

OTHER AUTHORITIES

Amendment XIV, United States

PL LSI EI 3-4

Amendment VII, United States

mee kee wee. ff te ee ees eeseee é 4

Amendment X, United States

ee el ts cece ees e6eees 4

i a ep eka beeeenene bes 3

ee ee eee a eae eben eh aee en 13

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1987

RICHARD L. DUGGER, Secretary,

Florida Department of Corrections, and

ROBERT A. BUTTERWORTH, Attorney General,

State of Florida,

Petitioners,

vs.

WILLIAM LEE THOMPSON,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

The petitioners, Richard L. Dugger and

Robert A. Butterworth, respectfully pray

that a writ of certiorari issue to review

the judgment and opinion of the Florida

Supreme Court entered in Thompson v. Dugger,

September 9, 1987, rehearing denied December

7, 1987, and a summary’ reversal obtain

instructing the Florida Supreme Court to

~

review the instant case in light of this

court's recognition of the harmless error

doctrine as enunciated in Hitchcock v.

Dugger, 107 S.Ct. 1821 (1987).

OPINIONS BELOW

The opinion of the Florida Supreme Court

is reported at So. 2d (Fla.

1987), 12 F.L.W. 469, decided September

9, 1987, and is reprinted in the appendix

hereto, pages A-41-52. Rehearing was denied

by order dated December 7, 1987, and is

not yet reported. It is reprinted in the

appendix hereto, pages A-53-54.

The decision of the Court of Appeals,

Eleventh Circuit, in Thompson v. Wainwright,

is reported at 787 F.2d 1447 (llth Cir.

1986), and is reprinted in the appendix

hereto, pages A-55-124.

ae

The decision of the Florida Supreme

Court on direct appeal, upholding the judg-

ment and sentence, is reported in Thompson

v. State, 389 So.2d 197 (Fla. 1980).

JURISDICTION

The decision of the Florida . Supreme

Court was entered on September 9, 1987.

Rehearing was denied December 6, 1987.

This court's jurisdiction is invoked pursuant

to 28 U.S.C. §1254 (1).

CONSTITUTIONAL

PROVISIONS INVOLVED

Amendment XIV of the Constitution of

the United States provides, inter alia,

that:

All persons born or naturalized

in the United States, and subject

to the jurisdiction thereof,

are citizens of the United

States and of the State wherein

si.

they reside. No State shall

make or enforce any law which

shall abridge the privileges

or immunities of citizens of

the United States; nor. shall

any State deprive any person

of life, liberty or property,

without due process of law;

nor deny to any person within

its jurisdiction the equal

protection of the laws.

Amendment VIII provides that:

Excessive bail shall not be

required, nor excessive fines

imposed, nor cruel and unusual

punishments inflicted.

Amendment X provides that:

The powers not delegated to

the United States by the Consti-

tution, nor prohibited by it

to the States, are reserved

to the States respectively,

or to the people.

STATEMENT OF THE CASE

William Lee Thompson pled guilty in

June, 1976, of the first degree murder

of Sally Ivester. The trial court : ene

the death sentence for said crime on June

LS, i996 On direct appeal, the Florida

Supreme Court reversed that judgment and

ll

sentence, and remanded the cause’ with

instructions to grant Thompson's’ motion

for withdrawal of the guilty plea. Thompson

v. State, 351 So.2d 701 (Fla. 1977).

On September 18, 1977, William Lee Thompson

entered his second guilty plea to the first

degree murder of Sally Ivester. The trial

court accepted the plea and convened an

advisory jury for the purpose of determining

the appropriate sentence to be _ imposed.

Following the penalty phase _ procedures,

the jury recommended the imposition of

the death sentence. On September 20, 1977,

the trial court sentenced Thompson to death

for the murder of Sally Ivester, and imposed

two life sentences to run_ concurrently

for the guilty pleas of kidnapping and

involuntary sexual battery of Miss Sally

Ivester. The Florida Supreme Court affirmed

-5-

the plea and imposition of death penalty

in Thompson v. State, 389 So.2d 197 (Fla.

1980)1

The path of litigation taken in this

case was summarized in detail in Thompson

v. Dugger, So.2d | , oles

1987), 12 F.L.W. 469, appendix page A-41.

Therein, the Florida Supreme Court provided:

William Lee Thompson’ appeals

the denial of his Florida Rules

of Criminal Procedure 3.850

motion to vacate judgment and

sentence of death. He also

petitions this Court for a

writ of habeas corpus and a

stay of execution from his

second death warrant. We have

jurisdiction. Art. V, §

3(b)(1), Fla. Const. We conclude

that the recent United States

Supreme Court decision in Hitch-

cock v. Dugger, i, ee Seyi - 3p

1821 (1587) requires this

1 The particular facts of the crime

were originally reported in great detail

in Thompson v. State, 389 So.2d 197 (Fla.

1980). They were repeated most recently

in Thompson v. Wainwright, 7/787 F.2d 1447

(llth Cir. 1986), found in appendix pages

A-55-124.

ee

Court to reverse the denial

of his 3.850 motion and remand

this cause for new sentencing

proceedings. In light of our

ruling on Thompson's 3.850

motion, the petition for habeas

corpus is moot. We continue

the stay of execution previously

entered.

This is Thompson's fourth appear-

ance before us.

k***

We address Thompson's’ claim

in the present rule 3.850 post-

conviction proceeding that

involves the failure of _ the

sentencing judge to allow presen-

tation and jury consideration

of nonstatutory mitigating

circumstances in the sentencing

phase. It directly concerns

the principles of law set forth

by the United States Supreme

Court in its recent decision

in Hitchcock v. Dugger. The

Supreme Court had granted certio-

rari to determine whether Hitch-

cock was correct in contending

that his sentence of death

under a Florida statute was

inconsistent with the requirement

that any relevant mitigating

evidence may be considered.

The United States Supreme Court's

unanimous opinion noted that

“other Florida judges conducting

sentencing proceedings during

roughly the same period believed

-]-

that Florida law precluded

consideration of nonstatutory

mitigating circumstances."

Id. at 1823. As in the instant

case, the trial judge in Hitch-

cock instructed the jury on

the statutory mitigating circum-

stances, without mentioning

nonstatutory evidence of mitiga-

tion that had been introduced.

The Supreme Court concluded

“that the advisory jury was

instructed not to consider,

and the sentencing judge refused

to consider, evidence of nonstat-

utory mitigating circumstances,

and that the proceedings there-

fore did not comport with the

requirements of Skipper v.

South Carolina, Eddings v.

Oklahoma, and Lockett v. Ohio.”

Id. at 1824 (citations omitted).

e Court concluded that, in

light of the fact that no showing

of harmless error was made,

the exclusion of the nonstatutory

mitigating evidence rendered

the death sentence invalid.

We note that Hitchcock did

present some nonstatutory miti-

gating evidence to the jury

and defense counsel commented

on it in closing argument.

kK*kEX*

Thompson's sentencing occurred

in September of 1978. The

United States Supreme Court,

in June of 1978, had released

Lockett iv. Ohio, S36 B.S.

|

586 (1978), which held unconsti-

tutional Ohio's capital sentenc-

ing statute limiting mitigating

circumstnaces to those enumerated

in the statute itself. In

December of that year, three

months after Thompson's sentenc-

sae: this Court directly

addressed the issue in Songer

Vv. State, 365 So. 2d <1

(Fla. 1978), cert. denied,

441 U.S. 956 (1979), construing

our statute as allowing

nonstatutory mitigating

circumstances to be considered

by both the jury and the judge

in the sentencing proceeding.

We subsequently held in Harvard

v. State, 486 So.2d 536 (Fla.),

cert. denied, 107 S. Ct. 215

); that "an appellant

seeking post-conviction relief

is entitled to a new sentencing

proceeding when it is apparent

from the record that the sentenc-

ing judge believed that consider-

ation was limited to the mitigat-

ing circumstances set out in

the capital sentencing statute

in determining whether to impose

a sentence of death or life

imprisonment without parole

for twenty-five years." Id.

at 539.

Our review of the trial court

record in the instant cause

reveals, first, that the state,

in its closing arguments’ to

the advisory sentencing jury

listed the statutory mitigating

circumstances as those which

a

the jury could consider in

its deliberations. Second,

Mr. Thompson's defense counsel,

in his closing arguments,

attempted to advise the jury

that, although the statute

limited aggravating circumstances

to those explicitly set out,

it did not so limit the

mitigating circumstances.

The state objected to this

statement and the trial court

sustained the objection. The

trial judge instructed the

jury as to mitigating

circumstances in the same manner

as the trial judge did in

Hitchcock. Under these

circumstances, we have no

alternative but to conclude

Mr. Thompson's death sentence

was imposed in violation of

Lockett, and in violation of

the United States Supreme Court's

Hitchcock decision. We find

he is entitled to a new

sentencing hearing. .. .

12 F.L.W. at 469, 470 (Emphasis Added)

The Florida Supreme Court in its opinion

of September 9, 1987, at 12 F.L.W. 469,

neither acknowledges nor entertains a harm-

less error analysis of this Lockett viola-

tion, nor does the court visit a harmless

error analysis in denying -rehearing on

December 7, 1987, appendix pages A-53-54.

-10-

- cme lt lit AF tL

:

=m

Both opinions resulted in the face of unchal-

lenged conclusions by the Eleventh Circuit

Court of Appeals in Thompson v. Wainwright,

787 F.2d at 1457-1458, that under no set

of mitigating circumstances would the jury

or judge have recommended or _ sentenced

Thompson to life. The Eleventh Circuit,

speaking through Circuit Judge Kravitch

in addressing the Hitchcock issue, and

reviewing the facts of the case as_ they

relate to the restricted, nonstatutory

mitigating evidence, opined:

; ‘ .We conclude, therefore

that Thompson has not_ shown

any excluded evidence that

could have affected the sentence.

The testimony introduced at

the sentencing hearing indicated

that at the time of the crime,

Thompson was’ well able to

communicate, and that he_ and

Surace concocted an alibi story.

Accordingly, we find that

additional evidence regarding

intoxication would have _ been

cumulative and would not have

made 4 difference to the

sentencing jury.

ite

In sum, with respect to

nonstatutory mitigating

circumstances, we conclude

that Thompson did not proffer

any significant nonstatutory

mitigating circumstances either

at sentencing or at the district

court's evidentiary hearing,

and that his claim must therefore

be denied.

787 F.2d at 1457. (Emphasis added)

REASONS FOR GRANTING THE WRIT

I.

THE FLORIDA SUPREME COURT HAS

MISCONSTRUED THE DECISION IN HITCHCOCK

V. DUGGER, 95 L.ED.2D 347 (1987),

IN FAILING TO ACKNOWLEDGE AND CONSIDER

THE APPLICABILITY OF CHAPMAN V.

CALIFORNIA, 386 U.S. 18 (1967), AS

SPECIFICALLY STATED IN HITCHCOCK,

TO SIMILARLY POSTURED CASES, AND

THEREFORE SUMMARY REVERSAL FOR

CONSIDERATION BY THE FLORIDA SUPREME

COURT SHOULD OBTAIN.

The Florida Supreme Court blinded by

the unanimity of Hitchcock v. Dugger, supra,

wite

:

q

-

:

3

:

abrogated its duty to review the instant

case in light of a harmless error analysis. 2

This court readily acknowledged’ the

plausibility of the harmless error analysis

in a Hitchcock violation. In the instant

case, petitioner has not questioned whether

the Florida Supreme Court properly concluded

a Lockett/Hitchcock violation occurred,

rather it is contended that, oblivious

to the suggestion that a harmless’ error

argument might have prevailed in Hitchcock,

2 See Hitchcock v. Dugger, 95 L.Ed.at

353, and §59.041, F.S., “Harmless error;

effect.--No -judgment shall be set aside

or reversed, or new trial granted by any

court of the state in any cause, civil

or criminal, on the ground of misdirection

ef the jury or the improper administration

or rejection of evidence, or for error

as to any matter of pleading or procedure,

unless in the opinion of the court to which

application is made, after an examination

of the entire case, it shall appear that

the error complained of has resulted in

a miscarriage of justice. ..."

atte

the Florida Supreme Court has read Hitchcock

v. Dugger, to require reversal regardless

of the case history or circumstances of

the crime. This unwillingness to consider

harmless error in the instant case mandates

reversal and remand to the Florida Supreme

Court for further consideration of the

facts in light of a Chapman v. California,

supra, analysis. See Pope v. Illinois,

95 L.Ed.2d 439 (1987) [constitutional error,

but harmless, in instructions regarding

state community standards in consideration

of the value question], Rose v. Clark,

92 L.Ed.2d 460 (1986) [impermissible shifting

of the burden of proof on an element of

the crime in violation of Sandstrom v.

Montana, 442 U.S. 510 (1979), found to

be constitutional error, but harmless error

based on the overwhelming evidence of guilt. ]

In Pope v. Illinois, 95 L.Ed.2d at 446,

the court explained that "in the absence

tien

OS Naan

sin

ee es

of error that renders a trial fundamentally

unfair, such as denial of a right to counsel

or trial before a financially interested

judge, a conviction should be affirmed

'where a reviewing court can find that

the record developed at trial established

guilt beyond a reasonable doubt. :

Id, at » 92 L.Ed. 2d 460, 106 S.Ct.

1361L..<-

While necessarily a constitutional viola-

tion to restrict consideration of nonstatu-

tory mitigating evidence, Lockett v. Ohio,

438 U.S. 586 (1978); Skipper v. South

Carolina, 476 U.S. » 90 L.Ed.2¢d

1 (1986), and Eddings v. Oklahoma, 455

U.S. 104 (1982), said violation does not

constitute fundamental error. See: Penry

v. Lynaugh, 832 F.2d 915 (5th Cir. 1987),

and Clark v. Dugger, ._—Ss ¥F.2d~———“‘é eid

ed December 15, 1987, llth Cir., slip opinion

p. 1112). (Hitchcock error evident, however

harmless error applied.)

si%.

In failing to apply a harmless- error

analysis herein, the Florida Supreme Court

has misconstrued Hitchcock v. Dugger to

mean that a Lockett violation is fundamental

error, requiring automatic reversal .3

A panel of the Eleventh Circuit Court

of Appeal, after reviewing the grizzly

and torturous death of Sally Ivester at

the hands of Thompson and his co-defendant,

Rocco Surace, concluded that although Thomp-

son's trial counsel “failed to conduct

any investigation of Thompson's background"

which fell outside the scope of reasonably

3 Morgan v. State, So.2d

(Fla. Aug. 27, 1987, 12 F.L.W. 433; Downs

v. Dugger, So. 2d (Fla. Sept.

9, 1987), 12 F.L.W. 473; Riley v. Wainwright,

So.2d (Fla. Sept. 3, 1987), 12

F.L.W. 457; Foster v. Dugger, So.2d

()Fla. Dec. 3, 1987), 12 F.L.W. 598;

But see Delap v. Dugger, So. 2d

(Fla. 1987), 12 F.L.W. 517; and Demps v.

Dugger, So.2d (Fae. Zeeers ba

Bubs 347.

-16-

professional assistance, relief would

obtain. The court stated:

Even had the jury heard this

evidence, however, we are

confident that Thompson's

sentence would have been. the

same. The jury's determination

was strongly supported by the

aggravating circumstances

introduced in the record.

Nothing Soloman [defense counsel ]

could have presented would

have rebutted the testimony

concerning Thompson's

participation in the brutal

torture murder. The testimony

indicated that although Surace

initiated the beatings, Thompson

took over, beating the victim

with a chain, his fists, a

chair leg, and a billy club.

The testimony also indicated

that. it was Thompson who actually

raped the victim with a chair

leg and billy club. After

hearing testimony that Thompson

committed these atrocities,

the jury heard nothing from

Thompson himself in reply.

As noted above, Thompson, and

not Soloman, was’ responsible

for his failure to testify.

We do not believe that there

is a reasonable probability

that evidence of a difficult

youth, an unsavory co-defendant,

and a limited mental capacity

would have altered this jury's

decision.

=| =

not

nT

Furthermore, the evidence offered

in the district court would

not be particularly persuasive

even had the crime been less

egregious. Barbara Savage

testified at the trial as to

Surace's connection with

motorcycle gangs and that

Thompson was following Surace's

lead throughout the incident,

and Soloman argued this point

to the jury. With respect

to Thompson's mental condition,

which was not’ touched’ upon

at the sentencing hearing,

although the psychiatric report

suggested a personality disorder,

and the school records indicated

low intelligence, none of the

material indicated that Thompson

was suffering any specific

disturbance at the time of

the crime which would _ have

mitigated his participation.

Finally, although Thompson's

difficulties in his early years

were ignored at the sentencing

hearing, he has’ produced _ no

witnesses, and we doubt’ that

the jury would have found mere

copies of school records

particularly pursuasive.

747 F.2d at 1453-1454. See also: Francois

v. Wainwright, 763 F.2d 1188 (llth Cir.

1985).

-18-

Based on this accounting, it cannot

be reasonably assumed that the Lockett/Hitch-

cock error was so egregious as to totally

eliminate the possibility of the harmless

error analysis. The only answer can be

that the Florida Supreme Court totally

misconstrued the case-by-case principal

for which Hitchcock stands. Reversal is

mandated in order to allow the Florida

Supreme Court to assess the harmless error

doctrine in light of the facts as herein

set forth.

“he-

CONCLUSION

For these various reasons, the petition

for writ of certiorari should be granted

and the case reversed and remanded to the

Florida Supreme Court for further analysis

in light of Hitchcock v. Dugger, and Chapman

v. California, supra.

ROBERT A. BUTTERWORTH

Attorney General

Carolyn M. Snurkowski

Assistant Attorney

General

The Capitol

Tallahassee, Florida

32399-1050

(904) 488-1778

«Sis

I 5} So a et fA Ta it A

AS lS By Mepis dessin 3s

APPENDIX

A-1

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT IN AND

FOR DADE COUNTY, FLORIDA

CASE NO: 76-3350 B

THE STATE OF FLORIDA, )

Plaintiff, )

vs. )

WILLIAM THOMPSON, )

Defendant. )

Ee ee a ee eT

The above-entitled cause came on

for sentencing hearing before the /Honor-

able John A. Tanksley, Judge of the

‘

:

| above-styled Court;-at,the Metropolitan

;

Justice Building, 1351 Northwest 12th

a.m., pursuant to adjournment.

Street, Miami, Florida, on Wednesday,

September 20, 1978, at 8:00 o'clock

A-2

MR. MCHALE: Thank you, Your

Honor. May it please the Court,

ladies and gentlemen, you heard

a tape recording played yester-

day in which this defendant

called the North Miami Beach

Police Department and said some-

one just did a number on his old

lady. I have never heard an

understatement to that effect in

my entire life, and I don't

think that you have.

There are lots of reasons to

kill someone in our society. It

is done for money. It is done

for hatred. It is done for

love. And sometimes to achieve

power. But to call this crime

murder is, again, an incredible

understatement, because it is

not murder. What occurred in

that motel room was a perverted

type of human sacrifice that

only the mind of this defendant

can understand completely.

She was not murdered. She was

tortured. She was terrorized,

and she was humiliated, and for

anyone to consider this a murder

or a homicide is to have no

understanding, whatsoever, of

what this case is all about.

My great fear is that after the

long day we put in yesterday,

and the rapidity that we went

through it, that you do not

A-3

understand what happened in that

motel room.

His Honor will instruct you on

the law which must be the basis

for your decision, and I believe

he'll tell you that it is your

duty to follow the law which

will be given to you by the

Court, and to render him an

advisory sentence based upon

your determination of whether

there is sufficient aggravating

circumstances which existed to

justify the imposition of the

death penalty; and, on the other

hand, whether there are suffi-

cient mitigating circumstances

which outweigh the aggravation,

which will justify a recommen-

dation of life imprisonment.

Your verdict, I believe he'll

tell you, must be based on the

evidence in this case and the

law that he gives you. The

aggravating circumstances which

you may consider are eight in

number, and you'll see _ that

there are a wide variety, not

all of them will . cover one

crime, but they will cover a

number of different types of

crimes.

The first thing he'll tell you

is an aggravating circumstance

is that the crime was committed

while the defendant was. sen-

tenced under a sentence of

A-4

imprisonment. It is not the

case here. William Thompson was

a free man when he committed

these acts with his own free

will.

The second aggravating circum-

stance is that at the time of

the crime for which he is to be

sentenced, the defendant had

previously been convicted of

another capital offense or

another offense involving the

use, or threat of use, of vio-

lence to another person. There

has been no testimony, and the

defendant has not been pre-

viously convicted of a capital

crime or of a crime involving

violence to another person.

That aggravating circumstance

does not exist here.

The third aggravating circum-

stance is that the defendant, in

committing the crime for which

he is charged, knowingly created

a great risk to a great number

of persons. You can see, in a

bombing type of situation, that

that would be an aggravating

circumstance, but in this case,

it doesn't apply.

The fourth aggravating circum-

stance which you'll hear is that

the crime for which the defen-

dant is to be sentenced was com-

mitted while the defendant was

engaged in or was an accomplice

OE AE. SET Me

A-5

in the commission of or _ the

attempt to commit any robbery,

arson, burglary, involuntary

sexual battery, kidnapping, air-

craft piracy, or the unlawful

throwing or discharging of a

destructive device. By an

Indictment returned by the Grand

Jury, the defendant was charged

with first-degree murder, kid-

napping and involuntary sexual

battery. Two of the crimes

which are mentioned in that

aggravating circumstance have

been committed. It was not

necessary for the purpose of

this proceeding to go into all

the elements of involuntary

sexual battery and kidnapping,

but you know that this defendant

has pled guilty to these crimes,

and they are an aggravating cir-

cumstance, twice -- involuntary

sexual battery and kidnapping.

You should consider those in

your sentence and recommendation

to this Court.

It is a most aggravating circun-

stance, the fifth aggravating

circumstance, that the crime for

which the defendant is to be

sentenced was committed for the

purpose of avoiding or preven-

ting a lawful arrest or effec-

ting an escape from custody. It

involves a different type of

situation. It is not applicable

in this case.

A-6

The next one is that the crime

for which the defendant is to be

sentenced was committed for

pecuniary gain, and you heard

again and again the reason why

this girl was beaten was for

money.

Number two aggravating cir-

cumstance, done for money, but

it was done for another reason,

ladies and gentlemen, because of

the wickedness that was in his

mind, as well as the other indi-

vidual -- perversion -- as I say

to you, only the type that he

can understand.

The next aggravating circum-

stance is that the crime was

committed in order to disrupt or

hinder the lawful execution of

government. Obviously, it is

not that type of a crime.

The last aggravating circum-

stance which the Court will

instruct you on is that this

crime for which the defendant is

to be sentenced was especially

heinous, atrocious, or cruel.

Do you think that that applies

in this case? Aggravating

circumstance number three.

His Honor will instruct you as

to what those words mean.

Heinous means extremely wicked

or shockingly evil. Extremely

wicked or shockingly evil. It

is an understatement.

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A-7

Atrocious means outrageously

wicked and vile. it. is an

understatement.

Cruel means designed to inflict

a high degree of pain. Utter

indifference to or enjoyment of

the suffering of others and

pitiless. It is an under-

statement, ladies and gentlemen.

You heard from Dr. Lardizabal

who told you that the kind of

pain that was experienced was

the severest kind of pain that

can be experienced by a human

being. The severest type. In

fact, one of the reasons that

she died was because of shock --

pain-shock. It caused her heart

to stop beating, the pain was so

great. Eighty percent of her

body was covered with trauma,

and there is some _ pictures

admitted in evidence -- you are

not able to see every angle and

every side -- but Dr. Lardiza-

bal, who performed the autopsy,

told you that eighty percent of

her body was covered with

trauma.

What type of trauma? Black and

blue down each arm, from the

head -- he said from the head to

the feet, she was covered with

trauma, but not only beatings.

There were burns on her nip-

ples. Her vaginal area was

burned. Her teeth were knocked

A-8

out. Lacerations about the

head. Her buttocks and part of

her back were black.

She was beaten so much -- chain

marks on her torso... You heard

Det. Ojeda. They were a foot

long -- chain marks. Her vagina

was punctured, as you recall

last night, by a blow of the

severest force from a blunt

object, of severe force designed

to inflict a high degree of

pain, utter indifference to or

enjoyment of the suffering of

the others, pitiless.

I hope that you understand, in

this brief proceeding -- I hope

and pray that you understand

what happened that afternoon

when that girl was mercilessly

tortured and terrorized for over

two hours. |

The Court will instruct you as

to mitigating circumstances, and

I would point out to you, at

this very moment, that there is

no evidence of any mitigating

circumstances. I believe His

Honor will tell you that the

mitigating circumstances you

should consider, if established

by the evidence, if established

by the evidence are these:

first, that the defendant has no

significant history of prior

criminal activity. I mentioned

an aggravating circumstance, a

—" a en

telat gpd re en

A-9

minute ago, being proof that the

Gefendant has at another time

been convicted of a crime

involving the use or threat of

violence to another’ person.

Don't confuse the absence of

that aggravating circumstance

with the existence of a miti-

gating circumstance, that the

defendant has no- significant

history of prior criminal

activity.

Those are two different things,

and there is no evidence that

this is a mitigating circum-

stance which exists, and it is

wrong for you to consider it as

existing.

The second mitigating circum-

stance is that the crime for

which the defendant is to be

sentenced was committed while

the defendant was under. the

influence of extreme mental or

emotional disturbance. There is

no question whatsoever about

that. He has entered a plea of

guilty. There is no evidence

whatsoever of mental distur-

bance, although, obviously, the

acts that he committed are

incomprehensible to decent human

beings, but don't confuse it

with this, because it is a legal

term, and there is no evidence

whatsoever to establish it.

A-10

The third mitigating circum-

stance is that the victim was a

participant in the defendant's

conduct or consented to the

act. I won't even speak about

1€. ‘

The fourth mitigating circum-

stance, again, none of these

have been established by any

testimony, that the defendant

was an accomplice in the

offense, and that the partici-

pation was relatively minor.

The next mitigating circumstance

is that the defendant acted

under extreme duress or sub-

stantial domination of another

person.

While Mr. Solomon took care to

ask Barbara Savage Garritz if

Rocky was the leader, and he

was, but she told you that no

. one made him put the chair leg

in the vagina or the billy

club. No one made him beat

her. No one made hm burn her,

and all the other incredible,

shocking acts that she des-

cribed. This does not exist.

The next one is that the capa-

city of the defendant to appre-

ciate the wrongfulness of his

act was substantially im-

paired. Again, he has entered

his plea of guilty. There is no

evidence as to any type of men-

A-11

tal aberration and insanity.

You cannot consider it.

Finally, that the age of the

defendant at the time of the

crime -- a mitigating circum-

stance is that the age of the

defendant at the time of the

crime -- he is a 24-year-old

individual. He is not a

child. He is not a juvenile. He

is an adult, and it is not a

mitigating circumstance.

His Honor will tell you that

aggravating circumstances must

be established beyond a reason-

able doubt. They have been

established not only beyond a

reasonable doubt, but beyond any

and all doubt, beyond a shadow

of a doubt, each and every one

of the things that the witnesses

told you about. Mr. Solomon

admitted them. He cross-exam-

ined no one. There is no ques-

tion about it.

His Honor, I believe, will con-

tinue and tell you that your

verdict must be based upon find-

ings of whether sufficient

aggravating circumstances

exist. Three of them exist.

Three of them, and whether miti-

gating circumstances outweigh

any aggravating circumstances --

there are no mitigating circum-

stances in this case, ladies and

gentlemen. There are none.

A-12

Based on these considerations,

based on these circumstances,

you should advise the Court as

to the sentence.

Mr. Solomon will have an oppor-

tunity to address you after I

conclude my remarks. I am sure

he is going to tell you that the

sentence of life imprisonment is

a terrifying sentence, but I

want you to remember that the

sentence of life imprisonment

means that there will be eli-

gibility for parole at the end

of the 25 years. So, when

William Thompson is a 49-year-

old man, he will be ae free

man. I ask you to consider that

when you consider the aggrava-

ting circumstances. 49 years

old.

In considering the sentence

which you advise the Court, I

ask you to consider what hap-

pened in the motel room and

consider the actions of this

defendant when he walked into

the bedroom and told Barbara

Savage Garritz, "I'm so mad I

could kill her." We.l, he did

just that, but he didn't kill

her. He tortured her, terro-

rized her, humiliated that

woman. Chain beatings. First

Rocco Surace and then from

him. Chain beatings.

s A-13

He took this chair and broke it

stomping on it and took the

chair leg and rammed it into her

vagina and then twisted it and

kicked it with such force that

it flew out of her vagina and

then he got back and put it in

again. After that, he wasn't

finished, because he used it to

beat her with it. Eighty per-

cent of her body was beaten.

Then, he hit it with the palm of

his hand, the second time it was

in. It was forced with the

force that Barbara Garritz cha-

racterized as hard force, and

the doctor, Dr. Lardizabal, told

you it was severe force.

After that, he takes his fist

and hits her in the _ mouth,

knocking out her two front

teeth. Billy club comes next.

It is rammed again into her

vagina. The chair leg is not

enough in this case. It is not

enough for Mr. Thompson.

Then he hits’ that. Then he

beats her with that, and while

the billy club is in her vagina,

he takes a lighter. First he

has the red one, but then the

flame ‘isn't high enough, so he

has to find another lighter and

burn her.

Remember that all during this

time, Rocco Surace has told her

A-14

that he would kill her if she

screamed, and he had a foot on

her throat during these times

when these objects were being

put in her vagina from Rocky

Surace's statement, .but it is

no. enough, because more beat-

ings are called for, and she's

beat with the billy club, and

she's beat, again, with the

chain.

But, there is a reason for this

incredible perversion, and the

reason is money. One time did

they take any care of her, and

it was not out of any human con-

cern. It was for one reason, to

clean her up so she would walk

outside without attracting so

much attention, to go to the

phone booth. They got the hy-

drogen peroxide so they could

Cleanse off her wounds, her

blood, and Barbara Garritz

combed her hair, _brushed her

hair back. William Thompson

walked her to the phone booth so

she could get money for then,

and Mrs. Ivester told you what

the conversation was.

"You have got to send that

money." Det. Ojeda told you

that in William Thompson's

statement to him he told him his

reasons for the beatings was

because he wanted to get the

money. Barbara Garritz told you

earlier that William Thompson

A-15

told the victim to have the

money wired down in his name --

his name.

It was not enough for William

Thompson to beat her, to put

these objects in her vagina. it

was not enough. Physical humil-

iation was not enough. Mental

humiliation had to follow. "Eat

the tampax." "Lick up the

beer," off the floor, like a

dog.

"Don't get water for her. She's

going to have to get it for her-

self.”

"You got blood on ~*me. Take

that.” "You got blood on my

feet. Take that."

Don't stop with physical torture

and terrorization, but continue

on to mentally humiliate her.

It was pure, living hell. For

money and for perversion,

coupled with sexual battery and

kidnapping.

Ladies and gentlemen, Mr. Solo-

mon has an opportunity to ad-

dress you at this time, but I

hope and I pray that you will,

under your obligation as jurors

in this case, and you have taken

the sworn oath to return a re-

commendation of sentence to this

Court based upon the evidence

and based upon the law, you --

A-16

you, as jurors, have the very

special responsibility in this

case because you -have an oppor-

tunity to tell Judge Tanksley

what you, as representatives of

this community, think life

should be like in this conm-

munity. You have an opportunity

to tell him, to tell him and to

tell William Thompson that when

you commit this act of savage

brutality and viciousness, you

forfeit your life under the law.

I urge you to do that. I urge

you to make your decision not

from your hearts and not from

your emotions, but from your

head. It must be a decision

based on the evidence and based

on the law, and, ladies and

gentlemen, I say to you on

behalf of every member of this

community that as its represen-

tatives you have ae solemn

responsibility and obligation.

It is one you cannot shirk and

one which you cannot delay. You

have an obligation under the

evidence in this case, and under

the law which the Court will

instruct you, to do one and only

one thing, to advise Judge

Tanksley that there is only one

just sentence in this case and

that is the sentence of death

for William Thompson. I urge

you to do your duty, ladies and

gentlemen.

A-17

THE COURT: Mr. Solomon.

MR. SOLOMON : Your Honor,

members of the jury: what I

said to you yesterday was

right. I asked you ae key

question, didn't I? Can you

leave your minds open even if

you hear horrendous evidence?

Can you keep your minds open and

not put in there the old Bibli-

cal term, "An eye for an eye and

a tooth for a tooth," before

you hear it all.

You know something here -- do

you know that the Court-

appointed lawyer, me, is the

only person in this room with

William Thompson? There is no

mother. There is no father.

There are no cousins or aunts or

uncles or pastors. This man is

an absolute total loser, and we

might shrug our shoulders and

say, “Well, after all, look what

he did to this poor girl. Let's

do it to him."

Is there one shred -- is there

some evidence to back up the law

the Judge is going to read to

you? Is there some evidence

that you could consider that

might say, “Let us give him 25

years in prison."

He'll come out 49 years of age,

if he comes out at that time.

If some future parole commission

A-18

reads all of the evidence that

you heard, seeing everything in

this case and lets him out -- I

doubt it.

When he made the decision to ask

for mercy by pleading guilty --

MR. MCHALE: I must object.

That is not part of the evidence

and it is not part of the law as

to sentencing.

THE COURT: It is argument.

Overruled.

MR. SOLOMON: Thank you.

The facts of life are that you

ask a jury, when you plead

guilty, to please consider

mercy. Obviously, things pop

into your mind. We're not

children here. Mercy. How do

you show this girl mercy?

There was no mercy shown this

girl.

Again, I come back to that

question I asked you: can you

take an eye for an eye and a

tooth for a tooth and set it

aside and accept what you hear.

Now, pecuniary gain? Well,

maybe not so. What we're

talking about there in that

statute is robbery, the 7-11

killings -- they will go in,

A-19

take twelve dollars and shoot

him dead. Pecuniary gain? That

is not what that statute read

for, but it was ae heinous

crime. There is no question

about it, not at all.

So, the question is, then, what

thread is there upon which he

hangs? What did he do and what

occurrences happened to, say,

well, let's put him in prison

for 25 years and hopefully, some

parole commission, after that,

when they read through all this

-- they will not -- don't under-

estimate the power of a Rocco

Surace. He is it. He did it.

He did it with him. He followed

him. Rocco Surace terrorized

not just the poor girl that

died, but terrorized two other

people. He terrorized then.

Yes, he did. He was the leader;

I bet he was.

Rocco Surace says, "Take this

chain. She's your old lady. Do

it to her," and he picked up on

the theme and he started in.

God forbid, it would have been

maybe not the best thing for him

to say, “I'll not pick up that

chain, and I'm not going to go

get a board to do that," or “I'm

not going to try to emulate you,

even if you take it out on my

hide, Mr. Rocco Surace," and he

would have -- to think that this

next jury that has got to sit in

A-20

here and try Rocco Surace --

THE COURT: No comment.

MR. SOLOMON: All right, sir.

Did this man do something upon

which you can say, maybe, we'll

consider something in his

behalf? Yes. The evidence from

the lady was that there was one

thing that Rocco Surace didn't

tell him to do, that he did on

his own, and that was the perox-

ide, and that was the wiping it

down. Turned mind, perverted

mind that it might be over her,

he got that peroxide to wipe her

down and care for her wounds.

There was testimony that she

went out and got some sugar and

water and brought it back. That

was his, not Rocco Surace's

instruction. That isn't much of

a thread to hang things on, is

it, that after this horrendous

beating you administer -- after

copying and emulating the great

Rocco Surace, that you went out

and you got peroxide and you got

some water and sugar because she

was a diabetic, without his

direction, on your own, without

the direction of Rocco Surace.

MR. MCHALE: I object. There is

no such testimony in the record.

MR. SOLOMON: Yes, Judge. He

A-21

sent her out there --

THE COURT: It is in the

testimony.

MR. SOLOMON: I am going to

review with you, just for a

moment, certain worse, damaging,

aggravating circumstances shall

be limited to the following and

that's what you heard from Mr.

McHale. It says, "Limited to

the following."

Although it says, "mitigating

circumstances shall be the

following," it doesn't say,

"Limited to." So, you can

consider other elements.

MR. MCHALE: Objection.

THE COURT: Sustained.

MR. SOLOMON: You will, then,

have to consider these elements

and weigh then. The defendant

has no significant history of

prior criminal activity. Now,

you can let your minds figure

that one out. Never before has

this man ever done _ anything

violent.

MR. MCHALE: Objection. This is

not evidence.

THE COURT: Sustained.

MR. SOLOMON: The State, Your

A-22

Honor, has admitted that he has

not been convicted of anything.

THE COURT: No, that is not

their testimony, sir. That is

not his statement.

MR. SOLOMON: The defendant

acted under extreme duress or

under the substantial domination

of another person -- £4Rocco

Surace.

The capacity of the defendant to

appreciate the criminality of

this conduct and to conform his

conduct to the requirements of

the law were substantially

impaired. I couldn't § say

that. There is no proof of

that, and I say to you that any

person that would do what he did

has to be not in this world.

Prior to the State, three psy-

chiatrists have ruled that he

was sane.

MR. MCHALE: Objection, Your

Honor.

THE COURT: Sustained.

Mr. Solomon, you are confined,

sir, to what hes been brought

out in the evidence.

MR. SOLOMON: The question

arises, then, what thread can

you hang it on? What can you

A-23

give him? Can you give him the

fact that he pled guilty to you

and he seeks mercy?

You can give him the fact that

after this two-hour stint, or

Whatever period of time passed

by, it must have dawned on his

head, the enormity of what he

aid, and he started to take care

of her with the peroxide and get

some water and sugar into her.

MR. McHALE: I object. There is

no evidence.

THE COURT: Yes, there is. The

testimony is that there was

sugar set out for her.

MR. MCHALE: Not that this

defendant did anything.

THE COURT: Well, it was at

their directions. Overruled.

MR. SOLOMON: The question that

arises, shall we take the man's

life, or shall we put him in

prison until he's 49 years

old? I think if the State

Gesired to put everybody to

Geath, they would say so. 25

years wouldn't be there. The

life sentence here is a 25-year

minimum -- minimum. However you

are right now, whatever age you

are, add 25 years to it. He

will go nowhere. He will be

punished.

A-24

Now the question is, what shall

you do? Is there a thread there

upon which to hang any hope for

this man, or at least let him

live someplace in prison, and I

say there is. The fact that he

came in here and asked for mercy

-- the fact that he came in here

and that he went out and he did

these things to her to relieve

her and to wipe her down and to

get her sugar and water, that

might be very very thin to you,

but that is a spark, and if

there is a spark, there is a

Place for hope. It may be, at

some future time during this 25-

year period of time, if you put

him in prison, that the whole

system, our state and the rest

of these states, will wise up

and then say, “Now, we have this

man in our custody. Let us see

what makes him tick." .

Richard Speck -- Richard Speck

and six nurses, was it? Life

imprisonment.

MR. MCHALE: Judge, I object.

THE COURT: Sustained.

MR. SOLOMON: We feel that it is

a greater punishment, much

greater punishment to see that

he spends his life in prison,

A-25

and there is no hope of ever

getting out, at least for 25

years, and we leave it in your

hands. Thank you.

THE COURT: Ladies and gentlemen

of the jury, it is now your duty

to advise the Court as to what

punishment should be _ imposed

upon the defendant for his crime

of first-degree murder.

As you have been told, the final

decision as to what punishment

shall be imposed is the respon-

sibility of the Judge; however,

it is your duty to follow the

law which will now be given you

by the Court and render to the

Court an advisory sentence based

upon your determination as to

whether sufficient aggravating

circumstances exist to justify

the imposition of the death

penalty, and whether sufficient

mitigating circumstances exist

to outweigh any aggravating

circumstances found to exist.

Your verdict should be based

upon the evidence which has been

presented to you in these pro-

ceedings.

The aggravating circumstances

which you may consider are

limited to such of the following

as may be established by the

evidence:

A-26

"A: that the crime for

which the defendant was to

be sentenced was committed

while the defendant was

under the sentence of

imprisonment; 4

B: that at the time of the

crime for which he is to

be sentenced, the

defendant had been pre-

viously convicted of

another capital offense or

of a felony involving the

use (threat) of violence

to some person;

C: that the defendant, in

committing the crime for

which he is to be sen-

tenced, knowingly created

a great risk of death to

many persons;

D: that the crime for

which the defendant is to

be sentenced was committed

While the defendant was

engaged, was an accom-

plice, in the commission

of or attempt to commit

any robbery, arson, bur-

glary, involuntary sexual

battery, kidnapping, air-

craft piracy, or the

unlawful throwing, pla-

cing, or discharging of a

destructive device or

bomb;

A-27

E: that the crime for

which the defendant is to

be sentenced was committed

for the purpose of avoid-

ing or preventing a lawful

arrest or effecting an

escape from custody;

F: that the crime for

which the defendant is to

be sentenced was committed

for pecuniary gain;

G: that the crime for

which the defendant is to

be sentenced was committed

to disrupt or hinder the

lawful exercise of any

governmental function of

the enforcement of laws;

H: that the crime for

which the defendant is to

be sentenced was espe-

cially heinous, atrocious,

or cruel.”

Heinous means extremely

wicked or shockingly evil.

Atrocious means outrageously

wicked and vile.

Cruel means designed to inflict

a high degree of pain; utter

indifference to, or enjoyment

of, the suffering of others;

pitiless.

A-28

If you do not find that there

existed sufficient of the aggra-

vating circumstances which have

been described to you, it will

be your duty to recommend a

sentence to life imprisonment.

Should you find sufficient of

these aggravating circumstances

to exist, it will then be your

duty to determine whether or not

sufficient mitigating circunm-

stances exist to outweigh the

aggravating circumstances found

to exist. The mitigating

circumstances which you may

consider, if established by the

evidence, are these:

"A: that the defendant has

no significant history of

prior criminal activity;

B: that the crime for

which the defendant is to

be sentenced was committed

while the defendant was

under the influence of

extreme mental or emo-

tional disturbance;

C: that the victim was a

participant in the defen-

dant's conduct or con-

sented to the act;

D: that the defendant was

an accomplice in the

offense for which he is to

be sentenced, but the

A-29

offense was committed by

another person, and the

defendant's participation

was relatively minor;

E: that the defendant

acted under extreme duress

or under the substantial

domination of another

person;

F: the capacity of the.

defendant to appreciate

the criminality of his

conduct or to conform his

conduct to the require-

ments of law was substan

tially impaired;

G: age of the defendant at

the time of the crime."

Aggravating circumstances must

be established beyond a reason-

able doubt before they may be

considered by you in arriving at

your decision.

Proof of an aggravating circum-

stance beyond a reasonable doubt

is evidenced by which’ the

understanding, judgment, and

reason of the jury are well-

satisfied and convinced to the

extent of having a full, firn,

and abiding conviction that the

circumstance has been proved to

the exclusion of and beyond a

reasonable doubt.

A-30

Evidence tending to establish an

aggravating circumstance which

does not convince you beyond a

reasonable doubt of the exis-

tence of such circumstance at

the time of the offense should

be wholly disregarded.

If one or more aggravating

circumstances are established,

you should consider all the

evidence tending to establish

one or more mitigating circum-

stances and give that evidence

such weight as you feel it

should receive in reaching your

conclusion as to the sentence

which should be imposed.

The sentence which you recommend

to the Court must be based on

the facts as you find them from

the evidence and the law as

given you by the Court. Your

verdict must be based upon your

finding of whether sufficient

aggravating circumstances exist

and whether sufficient mitiga-

ting circumstances exist which

outweigh any aggravating circunm-

stances found to exist.

Based on these considerations,

you should advise the Court

whether the defendant should be

sentenced to life imprisonment

or to death.

In these proceedings, it is not

necessary that the verdict of

A-31

the jury be unanimous, but a

verdict may be rendered upon the

finding of a majority of the

jury.

The fact that the determination

of whether or not a majority of

you recommend ae sentence of

death or sentence of life impri-

sonment in this case can be

reached by aie single ballot

should not influence you to act

hastily or without due regard to

the gravity oof these pro-

ceedings.

Before you ballot, you should

carefully weigh, sift, and

consider the evidence, and all

of it, realizing that human life

is at stake, and bring to bear

your best judgment upon the sole

issue which is submitted to you

at this time: whether a majority

of your number recommends that

the defendant be sentenced to

death or to life in prison.

Should a majority of the jury

determine that the defendant

should be sentenced to death,

you should recommend an advisory

sentence as follows:

"A majority of the jury

advise and recommend to

the Court that it impose

the death penalty upon the

defendant, William Thomp-

son."

A-32

On the other hand, if, after

considering all the law and the

evidence touching upon the issue

of punishment, a majority of the

jury determines that the defen-

dant should not be sentenced to

death, then you should render an

advisory sentence as follows:

"A majority of the jury

advise and recommend to

the Court that it impose a

sentence of life imprison-

ment upon the defendant,

William Thompson."

The law requires that seven or

more members of the jury agree

upon any recommendation advising

either the death penalty or life

imprisonment.

You will now retire to consider

your recommendation, and when

seven or more are in agreement

as to what sentence should be

recommended to the Court, that

form of recommendation should be

signed by your foreman and

returned into Court.

* * w

THE COURT: Anything else?

MR. SOLOMON; Again, we move for

a Pre-Sentence Investigation.

THE COURT: The motion is

denied.

A-33

William Thompson, you having

previously entered a plea of

guilty to first-degree murder,

kidnapping, and involuntary

sexual battery, as to the charge

of kidnapping, it is the sen-

tence of this Court that you be

confined for life imprisonment

in the State Penitentiary.

As to involuntary sexual

battery, it is the sentence of

this Court that you be sentenced

to life imprisonment in this

State Penitentiary.

As to the charge of first-degree

murder, the Court has heard the

testimony of the witnesses and

has been impressed by the

heinousness of this crime. I

have been involved in the cri-

minal side of the court as a

prosecutor, as a judge, for --

since 1959, and I've been in

this county since about 1940 or

‘41, and I can't recall in my

recollection of cases that have

happened in this county anyone,

any case that has ever been any

more heinous and heartless and

violent than this case. To

brutalize a fellow human being,

as such, by beating them with a

chair leg, by jamming a chair

leg into the vagina of a fellow

human being, and twisting it and

kicking it and striking it with

your hand, and then beating,

again, the victim again on all

A-34

parts of her body, so much so

that eighty percent of her body

was traumatized; to then go out

and get a billy club out of an

automobile and come back inside

and again jam that: billy club

into the vagina of this victim

to the point where you tore the

inner inside of her body -- the

pain is excruciating -- the

nature of the acts that you have

committed in this case -- I

don't think that if I were you

that I could ever have a night

in which I could sleep. It is

one of the more vicious, heart-

less crimes, and I'm satisfied,

sir, that you did every bit,

those chain marks on this

woman's body, her nose -- you

could see through the nostril

from where her nose was torn --

her buttocks and her back, com-

pletely black-and-blue -- it is

just to me such aé_e shocking,

heartless act. The jury has

also seen the necessity, sir, in

this case to recommend the

extreme penalty.

The Court having heard the tes-

timony, having accepted the

recommendation of the jury in

this case, and you having been

convicted of the charge of

first-degree murder, you are

hereby sentenced to death by

electrocution.

A-35

The Court wants to advise you

that in cases where there is the

death penalty that there is an

automatic review by the appel-

late court. You have already

been appointed a Public Defender

in this matter to represent you

because of your indigency, and

it is the intention of this

Court to make sure that you have

proper representation so that

you may exercise every right

that you have under the law of

this country and this state.

ee

A-36

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT OF

FLORIDA, IN AND FOR DADE COUNTY

CRIMINAL DIVISION

CASE NO. 76-3350

STATE OF FLORIDA, )

Plaintiff, )

vs. ) SENTENCE

ROCCO JAMES SURACE and )

WILLIAM LEE THOMPSON,

Defendants. )

)

THIS CAUSE is now before the Court

for sentencing. WILLIAM LEE THOMPSON,

defendant, pled guilty and was adjudi-

cated guilty of First Degree Murder,

Involuntary Sexual Battery, and Kid-

napping. Under the provisions of

Section 921.141, Florida Statutes, a

jury was impaneled and sworn for the

purpose of recommending whether the

defendant should be sentenced to life

A-37

imprisonment or death for the crime of

First Degree Murder. After hearing

extensive testimony relating to the

aggravating circumstances and the

mitigating circumstances, that § jury

returned an advisory recommendation that

the Court sentence the defendant to

death.

The mitigating circumstances’ in

this case are as follows:

(1) The defendant in this case has

no significant history of prior criminal

activities.

(2) The defendant in this case is

twenty-six (26) years old.

These mitigating circumstances are

insufficient to outweigh the aggravating

circumstances which are as follows:

(1) The capital felony was conm-

mitted while the defendant was engaged

A-38

in involuntary sexual battery and

kidnapping.

(2) The facts in this case show

this to be an extremely violent and

heinous crime. The victim was beaten

with a chain and a billy club; struck

with a chair leg, and burned with a

cigarette lighter in the area of her

vagina. The chair leg was forced into

the vagina of the victim, and was then

twisted inside and struck with the hand

to force it far up into the vaginal

area. The billy club was forced into

the vagina of the victim that it ripped

the entire portion of the vagina tearing

the wall, causing such extreme pain,

that the shock contributed in great part

to the death of the victim, as stated by

the medical examiner in his testimony.

The beating of the victim resulted in

malegeh vb

A-39

80% of the victim's body being covered

with deep bruises, cuts and perfora-

tions, in addition to some of her front

teeth being broken by blows from the

defendant. In addition, the defendant

burned the victim with lit cigarettes on

various parts of her body. 3

Based on the foregoing aggravating

circumstances, it is the opinion of this

Court that the defendant has lost his

right to have rights, including the most

precious right of all - the right to

life. It is therefore,

CONSIDERED, ORDERED AND ADJUDGED

that the defendant, WILLIAM LEE THOMP-

SON, having been convicted of First

Degree Murder, is hereby sentenced 66

death by electrocution.

For the crime of Involuntary Sexual

Battery, the defendant, WILLIAM LEE

A-40

THOMPSON, is sentenced to life

imprisonment.

For the crime of Kidnapping, the

defendant, WILLIAM LEE THOMPSON, is

sentenced to life imprisonment.

DONE AND ORDERED in open court at

Miami, Florida, this 20th day of

September, 1978.

/s/

JOHN A. T

Circuit Judge

A-41

SUPREME COURT OF FLORIDA

WILLIAM LEE THOMPSON, Petitioner, vs.

RICHARD DUGGER, Respondent. WILLIAM LEE

FLORIDA, Appellee. Supreme Court of

Florida. Case Nos. 70,739 & 70,781.

September 9, 1987.

(PER CURIAM.) William Lee Thompson

appeals the denial of his Florida Rule

of Criminal Procedure 3.850 motion to

vacate judgment and sentence of death.

He also petitions this Court for a writ

of habeas corpus and a stay of execution

from his second death warrant. We have

jurisdiction. Art.V, § 3(b)(1) Fla.

Const. We conclude that the recent

United States Supreme Court decision in

Hitchcock v. Dugger, 107 S.Ct. 1821

(1987), requires this Court to reverse

the denial of his 3.850 motion and

remand this cause for new sentencing

proceedings. In light of our ruling on

A-42

Thompson's 3.850 motion, the petition

for habeas corpus is moot. We continue

the stay of execution previously

entered. .

This now Thompson's fourth appear-

ance before us. Thompson initially pled

guilty to first-degree murder, kidnap-

ping, and involuntary sexual battery.

We allowed him to withdraw his plea on

voluntariness grounds and remanded the

case for further proceedings. Thompson

v. State, 351 So.2d 701 (Fla. 1977). He

then entered a second plea of guilty to

these offenses. An advisory jury was

empaneled in the sentencing phase and

recommended the death sentence, which

the judge imposed. We affirmed the

conviction and sentence in Thompson v.

State, 389 So.2d 197 (Fla. 1980).

Thompson filed a 3.850 motion and we

A-43

affirmed denial of relief in Thompson v.

State, 410 So.2d 500 (Fla. 1982).

Thompson then petitioned for federal

habeas corpus relief, and the state

waived any claim that Thompson had

failed to exhaust state remedies.

Multiple claims were raised and relief

was denied by the United States District

Court, and the Eleventh Circuit Court of

Appeals affirmed. See Thompson v.

Wainwright, 787 F.2d 1447 (llth Cir.

1986), cert. denied, 107 S.Ct. 1986

(1987).

We address Thompson's claim in the

present rule 3.850 post-conviction

proceeding that involves the failure of

the sentencing judge to allow presenta-

tion and jury consideration of nonsta-

tutory mitigating circumstances in the

sentencing phase. It directly concerns

A-44 |

the principles of law set forth by the

United States Supreme Court in its

recent decision in Hitchcock Vv.

Dugger. The Supreme Court had granted |

certiorari to determine whether Hitch- |

cock was correct in contending that his

sentence of death under a Florida sta-

tute was inconsistent with the require-

ment that any relevant mitigating evi-

dence may be considered. The United

States Supreme Court's unanimous opinion

noted that "other Florida judges conduc-

ae ee mL

ting sentencing proceedings during |

roughly the same period believed that

Florida law precluded consideration of

nonstatutory mitigating circumstances."

Id. at 1823. As in the instant case,

the trial judge in Hitchcock instructed

the jury on the statutory mitigating

circumstances, without mentioning non-

hesaeeeceatiminepeeaiiniaiieaiaaammaasaaaammaaaiaiel

A-45

statutory evidence of mitigation that

had been introduced. The Supreme Court

concluded “that the advisory jury was

instructed not to consider, and the sen-

tencing judge refused to consider, evi-

dence of nonstatutory mitigating cir-

cumstances, and that the proceedings

therefore did not comport with the

requirements of Skipper v. South

Carolina, Eddings v. Oklahoma, and

Lockett v. Ohio." Id. at 1824 (citations

omitted). The Court concluded that in

light of the fact that no showing of

harmless error was made, the exclusion

of the nonstatutory mitigating evidence

rendered the death sentence invalid. We

note that Hitchcock did present some

nonstatutory mitigating evidence to the

jury and defense counsel commented on it

in closing argument.

A-46

We hold we are required by this

Hitchcock decision to re-examine this

matter as a new issue of law. The

Eleventh Circuit in Thompson v.

Wainwright, 787 F.2d 1447 (llth Cir.

1986), cert. denied, 107 S.Ct. 1986

(1987), considered multiple issues

including the same mitigating evidence

issue presented to the United States

Supreme Court. Because the Eleventh

Circuit denied relief on this issue, the

state argues that even though the United

States Supreme Court ruling is contrary

to the holding of the Eleventh Circuit,

the procedural default rule applies. We

reject this argument. In Witt v. State,

387 So.2d 922 (Fla.), cert. denied, 449

U.S. 1067 (1980), we held that only a

state supreme court or the United States

Supreme Court can effect a sufficient

iii

A-47

change of law to merit a subsequent

post-conviction challenge to aée final

conviction and sentence. Id. at 931.

We had previously ruled in a similar

fashion as the Eleventh Circuit.

Hitchcock v. State, 432 So.2d 42 (Fla.

1983). We find that the United States

Supreme Court's consideration of

Florida's capital sentencing statute in

its Hitchcock opinion represents a

sufficient change in the law that

potentially affects a class of peti-

tioners, including Thompson, to defeat

the claim of a procedural default.

Thompson's sentencing occurred in

September of 1978. The United States

Supreme Court, in June of 1978, had

released Lockett v. Ohio, 438 U.S. 586

(1978), which held unconstitutional

Ohio's capital sentencing statute

A-48

limiting mitigating circumstances’ to

those enumerated in the _ statute it-

self. In December of that year, three

months after Thompson's sentencing, this

Court directly addressed the issue in

Songer v. State, 365 So.2d 696 (Fla.

1978), cert. denied, 441 U.S. 956

(1979), construing our’ statute as

allowing nonstatutory mitigating circunm-

stances to be considered by both the

jury and the judge in the sentencing

proceeding. We subsequently held in

Harvard v. State, 486 So.2d 537 (Fla.),

cert. denied, 107 S.Ct. 215 (1986), that

"an appellant seeking post-conviction

relief is entitled to a new sentencing

proceeding when it is apparent from the

record that the sentencing judge

believed that consideration was limited

to the mitigating circumstances set out

A-49

in the capital sentencing statute in

determining whether to impose a sentence

of death or life imprisonment without

parole for twenty-five years." Id. at

539.

Our review of the trial court

record in the instant cause reveals,

first, that the state, in its closing

arguments to the advisory sentencing

jury listed the statutory mitigating

circumstances as those which the jury

could consider in its deliberations.

Second, Mr. Thompson's defense counsel,

in his closing arguments, attempted to

advise the jury that, although the

statute limited aggravating circun-

stances to those explicitly set out, it

did not so limit the mitigating circum-

stances. The state objected to this

statement and the trial court sustained

- sO

the objection. The trial judge

instructed the jury as to mitigating

circumstances in the same manner as the

trial judge did in Hitchcock. Under

these circumstances, we have no alterna-

tive but to conclude Mr. Thompson's

death sentence was imposed in violation

of Lockett, and in violation of the

United States Supreme Court's Hitchcock

decision. We find he is entitled to a

* me record reveals the following

exchange:

[DEFENSE COUNSEL]: I am going to

review with you, just for a mo-

ment, certain worse, damaging,

aggravating circumstances shall be

limited to the following and

that's what you heard from [the

prosecutor]. It says, “Limited to

the following." Although it says,

“mitigating circumstances shall be

the following,” it doesn't say,

“limited to." So, you can con-

sider other elements.

[PROSECUTOR]: Objection.

THE COURT: Sustained

A-51

new sentencing hearing. On Mr. Thomp-

son's remaining contentions, we find

that procedural default operates to bar

any challenge here; these issues have

been presented and have been previously

resolved in the federal courts when the

state waived exhaustion of state

remedies.

Accordingly, we remand this cause

for a new sentencing hearing by a new

jury at-which time Mr. Thompson shall be

allowed to present all appropriate

nonstatutory mitigating evidence. we

direct that this sentencing hearing be

completed and the sentence imposed

within ninety days from the date this

opinion is final. We find the habeas

corpus petition moot and continue the

stay of execution pending final disposi-

tion of this case.

o A-52

It is so ordered. (McDONALD, C.J.,

and OVERTON, EHRLICH, SHAW, BARKETT,

GRIMES and KOGAN, JJ., Concur.)

A-53

SUPREME COURT OF FLORIDA

Monday, December 7, 1987

WILLIAM LEE THOMPSON, ) CASE NO.

70,739

Petitioner,

' )

vs. )

RICHARD DUGGER, )

)

Respondent.

WILLIAM LEE THOMPSON, ) CASE NO.

70,781

Appellant, )

vs. | )

STATE OF FLORIDA, ) Circuit Case

(Dade )

Appellee.

)

Upon consideration of the Motion

for Rehearing filed in the above cause

by attorney for Respondent/Appellee,

} IT IS ORDERED that said Motion be

and the same is hereby denied.

A-54

The Motion to Stay the Mandate

filed in the above cause by attorney for

Respondent/Appellee is granted and

proceedings in this Court and in the

Circuit Court of the Eleventh Judicial

Circuit, in and for Dade County, Florida

are hereby stayed to and including

January 6, 1988, to allow Respon-

dent/Appellee to seek review in the

Supreme Court of the United.States and

obtain any further stay from that Court.

OVERTON, EHRLICH, SHAW AND GRIMES, JJ.,

concur McDONALD, C.J., BARKETT and

KOGAN, JJ., dissent

A True Copy

TEST

ea

Clerk Supreme Court

TC

cc:

Hon. Richard P. Brinker, Clerk

Hon. Edward D. Cowart, Judge

Mark Evan Olive, Esquire

Michael L. Von Zamft, Esquire

Richard L. Kaplan, Esquire

A-55

William Lee THOMPSON,

Petitioner-Appellant,

Cross-—Appellee,

Vv.

Louie L. WAINWRIGHT, Secretary,

Florida Department of Corrections,

Respondent-Appellee, Cross-Appellant.

No. 84-5815.

United States Court of Appeals,

Eleventh Circuit.

April 10, 1986.

Rehearing and Rehearing En Banc

Denied May 30, 1986.

After remand, 714 F.2d 1495, the United

States District Court for the Southern

District of Florida, James C. Paine, J.,

denied relief on petition for writ of

habeas corpus, and the petitioner

appealed. The Court of Appeals,

Kravitch, Circuit Judge, held that

although defense counsel's failure to

conduct an investigation of the peti-

tioner's background fell outside the

A-56

scope of reasonably professional

assistance, the petition was not

entitled to relief as the jury still

would have concluded that the balance of

aggravating and mitigating circumstances

warranted death.

Affirmed.

Michael L. Von Zamft, Talburt,

Kubicki, Bradley & Draper, Miami, Fla.

(court-appointed), Diane E. Marger, Ft.

Lauderdale, Fla., for petitioner-

appellant, cross-appellee.

Jim Smith, Atty. Gen. of Fla.,

Calvin L. Fox, Asst. Atty Gen. of Fla.

Dept. of Legal Affairs, Miami, Fla., for

respondent-appelilee, cross-appellant.

Appeals from the United States

District Court for the Southern District

of Florida.

ina tht dL eis aks ei Sie cial lean te

A-57

Before GODBOLD, Chief Judge,

KRAVITCH and HATCHETT, Circuit Judges.

KRAVITCH, Circuit Judge:

William Thompson, a prisoner of

Florida, filed a petition for a writ of

habeas corpus in the federal district

court asking that his murder conviction

and death sentence be set aside. After

an evidentiary hearing the'~district

court denied relief. We affirm.

BACKGROUND

The Florida Supreme Court

summarized the facts of the crime in

deciding Thompson's direct appeal):

The appellant Thompson, Rocco

Surace, Barbara Savage, and the

victim Sally Ivester were

staying in a motel room. The

girls were instructed to contact

their homes to obtain money.

The victim received only $25

after telling the others that

she thought she could get $200

A-58

or $300. Both men became

furious. Surace ordered the

victim into the bedroom, where

he took off his chain belt and

begin hitting her in the face.

Surace then forced her to un-

dress, after which the appellant

Thompson began to strike her

with the chain. Both men con-

tinued to beat and torture the

victim. They rammed a chair leg

into the victim's vagina,

tearing the inner wall and cau-

sing internal bleeding. They

repeated the process with a

night stick. The victim was

tortured with lit cigaretes and

lighters, and was forced to eat

her sanitary napkin and lick

spilt beer off the floor. This

was followed by further severe

beatings with the chain, club

and chair leg. The beatings

were interrupted only when the

victim was taken to a phone

booth, where she was instructed

to call her mother and request

additional funds. After the

call, the men resumed battering

the victim in the motel room.

The victim died as a result of

internal bleeding and multiple

injuries. The murder had been

witnessed by Barbara Savage, who

apparently feared equivalent

treatment had she tried to leave

the motel room.

Thompson v. State, 389 So.2d 197, 198

(1980).

Can. Best! Ban”, dae Ah eal ge

be RE CER mgs ea ed

A-59

Thompson and Surace both pled

guilty and were sentenced to death, but

these pleas and sentences were set aside

by the Florida Supreme Court. Thompson

v. State, 351 So.2d 701 (1977); Surace

v. State, 351 So.2d 702 (1977). Upon

iithideadaihee ai .t en an ate Rate ae ae ee ae ee eee

remand, Thompson again pled guilty, and

again was sentenced to death. The

Florida Supreme Court affirmed, 389

So.2d 197 (1980); the state courts also

denied collateral relief. 410 So.2d 500

(1982). Thompson then filed a petition

for habeas relief in the federal dis-

trict court raising numerous grounds.

He subsequently sought to amend his

petition to add claims based on ineffec-

tive assistance of counsel. Because

these additional claims had not been

presented to the Florida courts, the

district court granted a continuance to

A-60

allow Thompson to exhaust the claims in

state court and the state appealed.

This court affirmed the district court's

continuance, but also stated that the

district court, in its discretion, could

have accepted the state's offer to waive

exhaustion with respect to the new

claims. Thompson _v. Wainwright, 714

F.2d 1495 (llth Cir.1983), cert. denied,

466 U.S. 962, 104 S.Ct. 2180, 80 L.Ed.2d

562 (1984). On remand, the district

court accepted the waiver, and, after an

evidentiary hearing, found all of

Thompson's claims without merit.

I. INEFFECTIVE

ASSISTANCE CLAIMS

Thompson contends that his counsel,

Harold Solomon, was ineffective during

entry of his second guilty plea and the

sentencing proceeding. Solomon's repre-

A-61

sentation of Thompson began after the

first plea was set aside and continued

through the state proceedings for

collateral relief.

In Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2c 674

(1984), the Supreme Court articulated

the standards for reviewing claims of

ineffective assistance of counsel. The

petitioner can prevail only if counsel's

“acts or omissions were outside the wide

range of professionally competent

assistance," Id., 104 S.Ct. at 2066, and

"there is a reasonable probability that,

but for counsel's unprofessional errors,

the result of the proceeding would have

been different.” Id. at 2068. The ques-

tions of whether counsel's performance

was deficient, and whether the defendant

was prejudiced by any deficiency are

A-62

mixed questions of fact and law. 104

S.Ct. at 2070. The district court ruled

that Solomon was not ineffective, and

found that numerous of the alleged

errors by Solomon resulted from Thomp-

son's own actions.

A. Entry of the Guilty Plea

[1]In Hill v. Lockhart, U.S. _,106

S.Ct. 366, 370, 88 L.84.2a 203 (1985),

the Court made clear that the Strickland

standards apply to _ the assistance of

counsel in entering a pjJea. The record

here indicates that after the Florida

Supreme Court vacated Thompson's fhoet

guilty plea, Thompson again decided to

plead guilty, although Solomon discussed

the ramifications of the plea with Thomp-

son and told him that he was prepared to

try the case. Nevertheless, Thompson

A-63

contends that Solomon's assistance before

and during the plea proceeding fell

outside the wide range of professionally

competent assistance, and that but for

Solomon's ineffective assistance there is

a reasonable probability that Thompson

would have been found incompetent’ to

enter a plea.

In Strickland, the Court noted that

"Cilf it is easier to dispose of an

ineffectiveness claim on the ground of

lack of sufficient prejudice, which we

expect will often be so, that course

should be followed." 104 S.Ct. at 2070.

With -respect to the plea _ proceeding,

petitioner's ineffective claim falls into

this category. Thompson contends that

Solomon was aware that Thompson had

mental difficulties, and yet allowed the

plea proceeding to go forward. Although

A-65

the record does indicate that Solomon

believed his client had mental problems,

such problems do not necessarily mean a

defendant is incompetent to enter a plea;

moreover Thompson has not identified

anything Solomon could have done that

would have changed the outcome of the

plea proceedings. —At-the time Thompson

was first charged in 1976, four psychia-

trists examined him and all four found

him competent to stand trial.

Nevertheless, Solomon petitioned the

court for a-new- examination to determine

Thompson's competence, which request was

denied. At the plea proceeding, Thompson

brought the possibility of Thompson's

incompetence to the trial judge's atten-

tion. After interrogating Thompson, the

trial judge was satisfied with Thompson's

competence to enter a plea. Because we

A-66

are unaware of any further steps Solomon

could have taken to prevent the guilty

plea, or to convince the court that

Thompson was incompetent, we hold that

Thompson's claim of ineffective assis-

tance of counsel at his plea proceeding

fails under the prejudice prong of the

Strickland test.

B. The Sentencing Hearing

Thompson's claim of ineffective

assistance at his sentencing hearing is

more difficult. At this hearing the

state called police officers, the medical

examiner, the victim's mother, and most

importantly, Barbara Savage, who related

the details of the crime. Solomon did

not call any witnesses. Thompson

Challenges many of Solomon's acts and

A-67

omissions as falling “outside the wide

range of professionally competent

assistance." Strickland, 104 S.Ct. at

2066. The district court ruled, however,

that Solomon was greatly hindered by

Thompson's own actions; specifically,

Thompson directed Solomon not to investi-

gate certain matters and refused to

testify at the sentencing hearing.

Thompson's actions affect both our

analysis of whether Solomon was defi-

cient, and whether any deficiencies meet

the prejudice standard of Strickland.

ke Failure to Investigate and Present

Mitigating Evidence

Thompson's significant allegations

that Solomon was ineffective in the

ee ye eee ee

A-68

sentencing proceeding fall into three

categories:1 failure to investigate and

present possible mitigating circumstan-

ces; failure to move for a continuance

when Thompson refused to testify; the

closing argument, which Thompson contends

did more harm than good.

[2] A criminal defense attorney has

a duty to investigate, but his duty is

limited to reasonable investigation.

Strickland, 104 S.Ct. at 2066. Thompson

alleged several areas of investigation

ignored by counsel: among others, Solomon

did not investigate the background of the

co-defendant Surace, and Solomon neither

contacted the psychiatrists who had

examined Thompson in 1976 nor considered

offering the psychiatric reports into

evidence. In these two respects, we

agree that Solomon's’ performance was

A-69

insufficient. In a capital case, where a

defendant's life may well depend on the

extent and nature of his participation,

the background of a codefendant could be

critical. Here, one of Solomon's goals

was to affix blame for the crime on

Surace, and his failure to investigate

Surace's background is, therefore, not

understandable. Under the Florida

capital statute, psychiatric expertise is

relevant to certain statutory mitigating

factors. See Fla.Stat.Ann.

§921.141(6). Moreover, Solomon testified

in the district court that he thought

Thompson was retarded; hence his failure

to contact the examining psychiatrists or

make any other effort to present

Thompson's limited mental capacity to the

jury is inexplicable.

[3] Thompson also contends’ that

A-70

Solomon was ineffective for failing to

investigate Thompson's own background,

including childhood and early family

life, school records and service

records. Solomon, however, testified in

the district court that Thompson directed

him not to investigate his past. In

Strickland, the Supreme Court noted the

importance of the defendant's communi-

cations with his attorney in scrutinizing

the attorney's decision whether’ to

investigate. 104 S.Ct. at 2066. The

Court stated that “when a defendant has

given counsel reason to believe that

pursuing certain investigations would be

fruitless or even harmful, counsel's

failure to pursue those investigations

may not later be challenged as unreason-

able." Id. Nonetheless, Thompson con-

tends that Solomon should not have heeded

A-71

his request because Solomon was aware

that Thompson was experiencing mental

difficulties.

This court addressed a similar issue

in Mitchell v. Kemp, 762 F.2d 886, 889-90

(llth Cir.1985). In Mitchell, counsel

did not investigate a capital defendant's

background, in part because the defendant

directed him to leave his family “out of

it." 762 F.2d at 889. Although the court

found that counsel was not ineffective,

it noted that the attorney did not

blindly follow Mitchell's instructions:

the attorney did not probe deeply into

Mitchell's reasons for not wishing to

involve his family, but did make an

independent evaluation of character

witnesses by an in-depth conversation

with Mitchell. Id. at 890. The new Fifth

Circuit also has held that although a

A-72

capital defendant's stated desire not to

use character witnesses does not negate

the counsel's duty to investigate, it

limits the scope of the investigation

required. Gray v. Lucas, 677 F.2d 1086,

1093-94 (5th Cir.1982), cert. denied, 461

U.S. 910, 103 S.Ct. 1886, 76 L.Ed.2d 815

(1983); see also Martin v. Maggio, 711

F.2d 1273, 1280 (5th Cir.1983) (defen-

dant's “instruction that his lawyers

obtain an acquittal or the death penalty

did not justify his lawyer's failure to

investigate the intoxication defense. ..

. Uncounselled jailhouse’ bravado,

without more, should not deprive a defen-

dant of his right to counsel's better-

informed advice."), cert. denied,

U.S. , 105 S.Ct. 447, 83 L.Ed.2d 373

The reason lawyers may not "blindly

A-73

follow" such commands is that although

the decision whether to use such evidence

in court is for the client, Foster v.

Strickland, 707 F.2d 1339, 1343 (llth

Cir. 1983) (lawyer bound by client's

counselled decision to not rely on

insanity defense), cert. denied, 466 U.S.

993, 104 S.Ct. 2375, 80 L.Ed.2d 847

(1984) the lawyer first must evaluate

potential avenues and advise the client

of those offering possible merit. Here,

Solomon did not evaluate potential

evidence concerning Thompson's back-

ground. Thompson had not suggested that

investigation would be fruitless or

harmful; rather, Solomon's testimony

indicates that he decided not to

investigate Thompson's background only as

a matter of deference to Thompson's wish.

Although Thompson's directions may have

A-74

limited the scope of Solomon's duty to

investigate, they cannot excuse Solomon's

failure to conduct any investigation of

Thompson's background for possible

mitigating evidence. Solomon's explana-

tion that he did not investigate poten-

tial mitigating evidence because of

Thompson's request is especially distur-

bing in this case where Solomon himself

believed that Thompson had mental

difficulties. An attorney has expanded

duties when representing a client whose

condition prevents him from exercising

proper judgment. See Code of

Professional Responsibility EC 7-12

(Fla.Stat.Ann. 1983).2 We conclude that

Solomon's failure to conduct any

investigation of Thompson's background

fell outside the scope of reasonably

professional assistance.

A-75

[4] Solomon's plan at the hearing

was to elicit certain mitigating circum-

stances through cross-examination, call

Thompson, who would express his remorse,

and in closing, plead to the jury for

mercy. Solomon testified, however, that

when the time came for Thompson to take

the stand, Thompson refused, stating that

he was afraid of making a fool of himself

before the jury. Solomon urged Thompson

to testify, but Thompson was adamant.

Two days later, Thompson did take the

stand, at Surace's trial. There Thompson

took the majority of the blame for the

torture-murder himself, deflecting blame

from Surace.

The petitioner contends that when he

refused to testify, Solomon should have

moved for a continuance to determine the

basis of his refusal. Although Thompson

A-76

now claims that he refused to testify

because of threats from Surace, according

to Solomon, Thompson did not mention

these threats until after the sentencing

was complete; Thompson's explanation at

the time was that he did not want to make

a fool of himself. Solomon had prepared

Thompson to testify, and he urged Thomp-

son to do so. The ultimate decision

whether to testify is for the defendant,

and a defendant who rejects his lawyer's

advice on such a matter may not later

challenge the lawyer's effectiveness.

Foster v. Strickland, 707 F.2d 1339, 1343.

(llth Cir.1983). Faced with Thompson's

sudden refusal to testify, Solomon

apparently made a decision to carry on

with the remainder of his presentation.

In light of Thompson's adamant position,

Solomon's decision to go forward as best

A-77

he could under the circumstances was not

outside the bounds of reasonably

professional assistance.

[5] Our conclusion that aspects of

Solomon's representation fell outside the

range of reasonably professional

assistance requires addressing the

prejudice prong of the Strickland test.

In discussing the showing a petitioner

must make to obtain a new trial on the

ground of errors by counsel, the Supreme

Court specifically rejected an “outcome-

determinative standard," 104 S.Ct. at

2068, under which the petitioner would

have to prove by a preponderance of the

evidence that the result would have been

different had the petitioner been

provided reasonably effective

representation. Instead the Court set

forth a standard under which:

a A-78

The defendant must show that

there is a reasonable proba-

bility that, but for counsel's

unprofessional errors, the

result of the proceeding would

have been different. A reason-

able probability is a proba-

bility sufficient to undermine

confidence in the outcome.

Id. Thompson presented considerable

evidence at the district court hear-

ing. We must first consider what por-

tion of this evidence could have been

presented and argued at the sentencing

hearing by a reasonably effective coun-

sel, and then whether such evidence may

have been persuasive to a jury. We also

must review the evidence actually pre-

sented to the sentencing jury, because a

“conclusion only weakly supported by the

record is more likely to have been

affected by errors than one with over-

whelming record support." Id. at

A-79

2069. If we are confident that the jury

still would have concluded that the

balance of aggravating and mitigating

circumstances warranted death, then the

petitioner cannot obtain relief. Id.

The evidence of Thompson's back-

ground presented to the district court

consisted mostly of his Marine Corps and

school records. The Marine Corps

records indicate that Thompson was

dishonorably discharged for a misre-

presentation on his enlistment papers:

he stated that he had not committed

homosexual acts when in actuality he had

a significant history of homosexual

conduct. Thompson's elementary school

records include grades, teacher conm-

ments, evaluations by the school

psychologist, and intelligence’ test

scores. They indicate that he was

A-80

mildly retarded, had poor motor skills,

had great difficulty in basic subjects

of reading, writing and arithmetic, was

hyperactive, and difficult.

Thompson also proffered the psy-

chiatric evaluations prepared in 1976

and ignored by Solomon; these exhibits

further document Thompson's’ troubled

early years. They indicate Thompson

left school in the ninth grade at the

age of eighteen, that he had had diffi-

culty getting along with his parents,

and that he had been a drug abuser. All

four psychiatrists who examined Thompson

in 1976 concluded that he was sane at

the time of the offense and that he was

capable of assisting in his defense.

This does not mean, however, that no

psychiatric mitigating factors, statu-

tory or nonstatutory, were indicated in

A-81

the reports. Three of the psychiatrists

diagnosed Thompson as having a person-

ality disorder; the fourth questioned

the extent of Thompson's participation

in the crime due to possible intoxica-

tion and drug use.

Finally, Thompson contends’ that

reasonable investigation of Surace would

have revealed that Surace was involved

with violent motorcycle gangs, had been

convicted of intimidating a government

witness, and at age fourteen had killed

a playmate. In sum, reasonable investi-

gation would have yielded evidence of

Thompson's low intelligence and troubled

past and the violent reputation of his

codefendant .4

Even had the jury heard this evi-

dence, however, we are confident that

Thompson's sentence would have been the

A-82

same. The jury's determination was

strongly supported by the aggravating

circumstances introduced in the

record. Nothing Solomon could have

presented would have rebutted the

testimony concerning Thompson's partici-

pation in the brutal torture murder.

The testimony indicated that although

Surace initiated the beatings, Thompson

took over, beating the victim with a

chain, his fist, a chair leg, and a

billy club. The testimony also indi-

cated that it was Thompson who actually

raped the victim with the chair leg and

billy club. After hearing testimony

that Thompson committed these atro-

cities, the jury heard nothing from

Thompson himself in reply. As noted

above, Thompson, and not Solomon, was

responsible for his failure to tes-

A-83

tify. We do not believe that there is a

reasonable probability that evidence of

a difficult youth, an unsavory codefen-

dant, and limited mental capacity would

have altered this jury's decision.

Furthermore, the evidence offered

in the district court would not be par-

ticularly persuasive even had the crime

been less egregious. Barbara Savage

testified at the trial as to Surace's

connection with motorcycle gangs and

that Thompson was following Surace's

lead throughout~ the incident, and

Solomon argued this point to the jury.

With respect to Thompson's mental condi-

tion, which was not touched upon at the

sentencing hearing, although the psy-

chiatric reports suggested a personality

disorder, and the school records indi-

cated low intelligence, none of the

A-84

material. indicated that Thompson was

suffering any specific disturbance at

the time of the crime which would have

mitigated his participation. Finally,

although Thompson's difficulties in his

early years were ignored at the senten-

cing hearing, he has produced no wit-

nesses, and we doubt that the jury would

have found mere copies of school records

particularly persuasive.

2. Closing Argument

[6] Thompson also attacks

Solomon's closing argument, set forth in

the margin. Thompson contends that

Solomon unnecessarily stressed the

horror of the crime, and that he should

not have referred to his court appointed

status. This court has previously con-

demned references to court-appointed

status, arguing that such references

A-85

“effectively stack the odds against the

accused." Goodwin v. Balkcom, 684 F.2d

794, 805-06 (llth cCir.1982), cert.

denied, 460 U.S. 1098, 103 S.Ct. 1798,

76 L.Ed.2ad 364 (1983). In King v.

Strickland, 714 F.2d 1481, 1491 (1983),

reinstated, 748 F.2d 1462 (llth Cir.

1984), cert. denied, U.S. _—,_:~*:105

S.Ct. 2020, 85 L.Ed.2d 301 (1985), this

court granted relief on a claim of inef-

fective assistance of counsel based in

part. on a closing argument which "did

more harm than good." 748 F.2d at 1464.

Counsel representing a defendant in

a death case is in a difficult position,

and Solomon's failure to present any

mitigating evidence made the task even

more difficult. Where, as here, the

defendant has pleaded guilty, counsel

can hardly make a credible closing

A-86

argument asking for mercy without

acknowledging the crime; nor can he

ignore the defendant. Thompson argues

that Solomon's discussion of Thompson as

a “loser" and of the heinous nature of

the crime went far beyond the need to

maintain credibility. In this case,

Solomon may have gone beyond what was

necessary. We decline, however, to

further critique the closing; reviewing

courts must not unnecessarily “grade

counsel's performance," Strickland v.

Washington, 104 S.Ct. at 2070, and this

admonition seems particularly compelling

in the case of closing argument, an

inherently subjective task. Here, in

light of the overwhelming evidence of

aggravating circumstances, we believe

that Thompson has failed to show a rea-

sonable probability that the closing

A-87

argument, even considered together with

Solomon's failure to present mitigating

evidence, changed the outcome. We

therefore need not determine whether the

argument met the standard of reasonably

professional assistance. 104 S.Ct. at

2070.

In only one case, King v. Strick-

land, have we relied on counsel's clo-

sing argument to grant relief under the

Strickland v. Washington standard. The

closing argument in King is in one

respect similar to the argument in this

case; both counsel referred to their

court-appointed status. In King,

however, counsel in effect apologized to

the jury for representing such a hor-

rible person, 714 F.2d 1491, and totally

disassociated himself from his client.

Solomon's reference to his status was in

“ee =

"<P

A-88

an attempt to evoke sympathy for his

client, and Solomon did not attempt to

disassociate himself from Thompson.

More important, King's conviction,

unlike Thompson's was based on circunm-

stantial evidence, and such convictions

always present a better case for mercy

to the sentencing jury. 748 F.2d at

1464.

In sum, the overwhelming evidence

of aggravating circumstances convinces

us that there is not a_e reasonable

probability that the jury would have

changed its sentencing conclusion had

Solomon presented and argued the

mitigating evidence now offered, and

Thompson's claim of ineffective assis-

tance at his sentencing hearing

therefore must fail under the prejudice

prong of Strickland v. Washington.

A-89

II. RESTRICTION ON

MITIGATING EVIDENCE

A. Nonstatutory Evidence

Thompson contends that the trial

court restricted consideration of non-

statutory mitigating factors in viola-

tion of Lockett v. Ohio, 438 U.S. 586,

606-08, 98 S.Ct. 2954, 2965-67, 57

L.Ed.2d 973 (1978). He argues that the

jury instuctions, coupled with objec-

tions the judge sustained when Solomon

attempted to advise the jury that they

were not limited to statutory mitigating

circumstances and when he sought to

elicit testimony that Thompson was

taking drugs at the time of the crime,

all indicate that evidence of non-

statutory nivbgutias circumstances was

restricted.

The district court found that

LOE ct cn athe SN i i

A-90

Thompson had presented this claim to the

Florida courts on direct appeal and

therefore considered it on the merits

and denied relief. Based on the briefs

and opinions in Thompson's state appeal,

the state contends that the seen was

not presented on Thompson's state appeal

and asks that we apply procedural de-

fault to the claim. See Ford v.

Strickland, 696 F.2d 804, 816-17 (11th

Cir. 1983) (en banc) (Florida rule that

all grounds must be raised on direct

appeal adequate reason to bar federal

review). The state argues that although

it has waived exhaustion of the clain,

it has not and does not waive procedural

default. This argument raises difficult

questions. First, we note that the

Lockett claim was one of the original

Claims in Thompson's petition, filed on

A-91

February 24, 1982. Not until July 9,

1984, the day of the evidentiary hear-

ing, did the state first assert that the

claim had not been presented to the

state courts. Moreover, at no time did

the state file a motion to dismiss the

claim. In the meantime, the district

court had held a hearing on whether to

continue its consideration of the

petition, this court had entertained an

interlocutory appeal, the state had

offered an unconditional waiver of

exhaustion, and the district court had

exercised its discretion to accept that

waiver. Throughout this time (February

24, 1982-July 9,1984), the parties acted

under the assumption that the claims in

the original petition had been presented

to the Florida courts. See, e.9.,

Jenkins v. Andersen, 447 U.S. 231, 100

A-92

S.Ct. 2124, 2127 n.1, 65 L.Ed.2d 86

(state may waive procedural default by

not asserting it in a timely manner).

Second, the state's offer of a waiver of

exhaustion was unconditional. Now the

state requests that the federal courts

apply procedural default, a state law

ground of decision, to a claim in the

petition. The district court's accep-

tance of the waiver was discretionary,

and had the court been told that the

state wished the court to apply a state

law ground of decision, the district

court may well have chosen to decline

the state's waiver. See Thompson v.

Wainwright, 714 F.2d 1495, 1508-09

(district court should decline waiver of

exhaustion if undecided questions of

state law exist). Accordingly, it seems

quite possible that the state has waived

A-93

procedural default. We need not decide

this question, however, because the

district court was clearly correct in

declining Thompson relief on the merits

of his Lockett claim.

[7] This court recently has

described the method for analyzing

Lockett claims such as the one advanced

by Thompson. Hitchcock v. Wainwright,

770 #+*F.2d = #1514 (llth cCir.1985) (en

banc). A court should consider all the

circumstances, including the status of

Florida law at the time of sentencing,

the trial record, and proffers of

nonstatutory mitigating evidence claimed

to be available. 770 F.2d at 1517.

Here, at the time of sentencing, the

confusion in Florida law had partially

been alleviated by Lockett, but the

Florida Supreme Court had not yet issued

A-94

its clarifying opinion in Songer v.

State, 365 So.2d 696, 699 (Fla.

1978) .© Solomon, however, did not

proffer any nonstatutory mitigating

evidence at the sentencing hearing.

Solomon also testified in the district

court that in preparing for the sen-

tencing hearing he did not feel

constrained by Florida law in investi-

gating nonstatutory mitigating

circumstances.

Solomon did testify that he felt

constrained when the trial court sus-

tained objections to nT about

alcohol and drug use by Thompson and

Surace, and the record of the sentencing

proceeding indicates that the court did

limit cross-examination on this point.

For example, Savage was not allowed to

answer Solomon's question whether they

A-95

were taking any pills. Thompson how-

ever, did not proffer, either at trial

or in the district court hearing, what

the witness would have answered.

Furthermore, in her pretrial deposition

Savage did not state that Thompson was

taking drugs, although she did indicate

that Thompson and Surace were drinking

heavily on the day of the crime, and

this fact came out in other testimony.

We conclude therefore that Thompson has

not shown any excluded evidence that

could have affected the sentence. The

testimony introduced at the sentencing

hearing indicated that at the time of

the crime Thompson was well able to

communicate, and that he and Surace

concocted an alibi story. Accordingly,

we find that additional evidence regard-

ing intoxication would have been cumula-

A-96

tive and would not have made a dif-

ference to the sentencing jury.

In sum, with respect to nonstatu-

tory mitigating circumstances, we con-

clude that Thompson did not proffer any

significant nonstatutory mitigating

circumstances either at sentencing or at

the district court's evidentiary hearing

and that his claim must therefore be

denied.

B. Statutory Mitigating Evidence

[8] Thompson also contends that

the trial court excluded evidence of

statutory mitigating circumstances;

specifically he argues that the court

limited cross-examination intended to

show that he was under the influence of

an extreme emotional disturbance.

Fla.Stat.Ann. §921.141(6)(b). The only

A-937

testimony Thompson claims was excluded,

however, was Savage's response to ques-

tions concerning whether Thompson inten-

ded the beating to kill the victim. The

trial judge did not rule that the testi-

mony was irrelevant; rather he ruled

that the witness could not testify to

the subjective intentions of another

person, and Thompson does not argue that

this ruling was improper under the

Florida rules of evidence. Lockett

entitles a capital defendant to intro-

duce all relevant mitigating evidence at

sentencing, but does not require a state

to abandon its rules of evidence con-

cerning what is competent testimony.

Cf. Martin v. Wainwright, 770 F.2d 918,

938 (llth Cir. 1985) {Lockett does not

abrogate Florida evidentiary rule which

prevented defendant from admitting

Ph ce Aah a i HP cn en MS A088

F

~y

Fs

A-98

selected portions of documents without

admitting entire document).

III. WHETHER THE COURT SHOULD

HAVE FURTHER INQUIRED INTO

THOMPSON'S COMPETENCY TO

STAND TRIAL

[9,10] Thompson contends that the

trial court should have conducted a

hearing into his competency to stand

trial. A court that has a bona fide

doubt of the defendant's competency to

stand trial must sua sponte conduct a

hearing to consider that issue. Pate v.

Robinson, 383 U.S. 375, 385, 387, 86

S.Ct. 836, 842, 843, 15 L.Ed.2d 815

(1966); Hance v. Zant, 696 F.2d 940, 948

(llth Cir.), cert. denied, 463 U.S.

1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393

(1983). The test for competency to

stand trial is: whether the defendant

A-99

"has sufficient present ability to

consult with his lawyer with a reason-

able degree of rational understanding --

and whether he has a rational as well as

factual understanding of the proceedings

against him." Dusky v. United States,

362 U.S. 402, 402, 80 S.Ct. 788, 789, 4

L.Ed.2d 824 (1960). The district court

found that no doubt had been raised of

Thompson's competency.

[11] Three factors should be

considered in determining whether the

trial court violated Pate by not

conducting a hearing on competency: (1)

evidence of the defendant's irrational

behavior; (2) his demeanor at trial; and

(3) any prior medical opinion on his

competency to stand trial. Drope v.

Missouri, 420 U.S. 162, 180, 95 S.Ct.

896, 908, 43 L.Ed.2d 103 (1975). Before

:

|

3

3

‘

A-100

the first plea proceeding in 1976,

Thompson was examined by four psychia-

trists, and all four found him competent

to stand trial. Thompson filed a new

motion for examination in Deinaiteet fein:

with the 1978 plea proceeding, but as

the Supreme Court of Florida noted,

nothing in the motion indicated any

“circumstances that had caused the

mental condition of the appellant to

change since those prior examinations."

389 So.2d at 199.

Thompson contends that his

responses during the trial judge's

interrogation at the plea proceeding

raised a doubt as to his competency.

The trial judge interrogated Thompson

regarding any past mental problems, and

whether he understood the proceedings

and the ramifications of pleading

A-101

guilty. Thompson points to one response

as raising a doubt: when the court asked

Thompson if he had been employed in the

past two years, Thompson answered yes;

in fact, Thompson had spent the prior

two years in either the county jail or

on death row. This. one incorrect

response, however, hardly indicates that

Thompson was’ incompetent. Thompson

correctly answered numerous questions

from the judge, and we conclude that

there was no need for the judge to

further inquire into Thompson '‘s

competency.

IV. AKE CLAIM

[12] Before the sentencing

proceeding, Solomon requested that the

court appoint experts to conduct psy-

chiatric and neurological examinations

‘

>

:

|

A-102

of Thompson. The trial court denied

these requests and the Florida Supreme

Court affirmed. 389 So.2d at 199. In

his habeas petition, Thompson contends

that the denial of psychiatric assis-

tance unconstitutionally restricted the

presentation of mitigating circun-

stances. Subsequent to the district

court's ruling on the petition, the

Supreme Court decided Ake v. Okla-

homa, U.S. , 105 S.Ct. 1087, 84

L.Ed.2d 53 (1985), in which it esta-

blished a limited right to court-

appointed psychiatric assistance in

presenting a defense. We now evaluate

Thompson's claim in light of Ake.

In Ake, the Supreme Court con-

sidered an indigent defendant's need for

psychiatric assistance both at trial and

at the death penalty sentencing hear-

A-103

ing. With respect to guilt or inno-

cence, the Court held

that when a defendant demon-

strates to the trial judge that

his sanity at the time of the

offense is to be a significant

factor at trial, the State must,

at a minimum, assure the defen-

dant access to a competent

psychiatrist who will conduct an

appropriate examination and

assist in evaluation, prepara-

tion, and presentation of the

defense.

Id., 105 S.Ct. at 1097.

Thompson's claim on appeal, how-

ever, is limited to the sentencing phase

and the Court‘’s discussion in Ake of the

need for psychiatric assistance in capi-

tal sentencing proceedings was somewhat

different. The Court focused on the

fact that certain states place before

the jury psychiatric evidence of a

defendant's future dangerousness, and

that the Court had approved such a

A-104

practice. Id. at 1097 (quoting Barefoot

v. Estelle, 463 U.S. 880, 896-905, 103

S.Ct. 3383, 3395-3400, 77 L.Ed.2d 1090

(1983). The Court held:

In such a circumstance, where

the consequence of error is so

great, the relevance of respon-

sive psychiatric testimony so

evident, and the burden on the

State so slim, due process re-

quires access to a psychiatric

examination on relevant issues,

to the testimony of the psychia-

trist, and to assistance in pre-

paration at the sentencing

hearing.

Id., 105 S.Ct. at 1097.

The motion filed with the trial

court stated that counsel believed

Thompson suffered from a mental defect

“which would render him incapable of

assisting in his defense, and may have

precluded the Defendant from knowing

right from wrong at the time of the

alleged criminal acts.” The trial

court heard the motion, and again no

A-105

mention was made of mitigating circum-

stances. Because Thompson did not

request psychiatric assistance to aid

in presenting mitiating circumstances,

Ake does not apply. Bowden v. Kemp,

767 F.2d 761, 764; Bowden Vv.

Francis, U.S. _, 105 S.Ct. 1834,

1834-35, 85 L.E4.2a@ 135 (1985)

(O'Connor, J., dissenting from remand

to court of appeals in light of

Ake) ./ We hold therefore that Ake did

not require appointment of a psychia-

trist at the sentencing phase.

Thompson did argue in his motion

for a new trial and his brief on

direct appeal to the Florida Supreme

Court that the denial of psychiatric

assistance limited the development of

mitigating circumstances. Ake,

however, requires appointment of

A-106

showing of need is made _ 0pbefore

trial. 105 s.ct. at 1097.8

V. COERCION OF THOMPSON'S PLEA

Finally Thompson contends that

his decision to plead guilty, and to

testify on behalf of Surace was not

voluntary, but was coerced by threats

from Surace. Thompson presented this

Claim to the Florida courts in a

motion for collateral relief. The

state trial court found Thompson's

affidavit not credible, and refused to

hold a hearing. The Florida Supreme

Court affirmed. 410 So.2d 500 (1982).

At the district court hearing,

Thompson testified that he was coerced

into pleading guilty and testifying

for Surace. He explained that while

he and Surace were being held together

in 1978, Surace told Thompson to take

A-107

credit for the killing or Surace would

have him killed, and Thompson

testified that he believed Surace

could do this based on Surace's

membership in motorcycle gangs and

Surace's comrades in prison. Thompson

introduced no evidence to corroborate

this testimony, other than a stipula-

tion by the state that at the time of

Thompson's second plea, Thompson and

Surace were transported to the county

courthouse together and held in the

same cell while in the courthouse, and

testimony of Thompson's trial lawyers

that Surace used Thompson as his

"tool" and before the second plea

proceeding Surace's counsel was

attempting to convince Thompson to

commit perjury. Surace testified in

the district court and denied Thomp-

A-108

son‘s allegations. After hearing the

testimony, the district court found

that Thompson had not met his burden

of proof, in effect finding that

Thompson's testimony was not credible.

[13] Although Thompson chal-

lenges the voluntariness of his plea

as a ground on appeal, he provides no

legal arguments in his brief. As

stated above, based upon Thompson's

affidavit attached to his pleadings in

the collateral proceeding, the state

courts found his claim incredible and

held no hearing. The district court

received evidence on the claim at the

evidentiary hearing, but in its order

denying relief ruled that Thompson had

not met his burden under section 2254

of proving that the conclusion of the

state court on collateral review was

A-109

erroneous.” The effect of the section

2254 presumption was that Thompson was

required to present convincing evi-

dence that his plea was not voluntary;

normally, a habeas petitioner need

only demonstrate by a preponderance of

the evidence that he is entitled to

relief. 28 U.S.C. $2254(c); Thomas v.

Zant, 697 F.2d 977, 986 (llth Cir.

1983). The district court's -under-

standing of section 2254 was mis-

taken. Section 2254(d) does provide

that a federal court considering a

habeas petition must afford a pre-

sumption of correctness to state court

factual findings, but only if the

findings were made "after a hearing on

the merits of a factual issue," and

that hearing must meet the require-

ments set forth in section 2254(d)(1)-

A-110

(8). Here the state court refused to

hold such a hearing, and thus the

findings of the state courts in the

collateral proceeding are not entitled

to a presumption of correctness.

[14] Nevertheless, we do not

believe that a remand is necessary.

Although the state courts did not hold

a hearing on collateral review, the

state trial court held an adequate

hearing on Thompson's plea at the time

it was entered. The trancript of that

proceeding is part of the record. The

trial court placed Thompson under oath

and specifically inquired:

THE COURT: Has any persons

[sic] used any threat, force,

pressure, intimidation, or pro-

mised anything to you for the

purpose of getting you to plead

guilty to these charges?

THE DEFENDANT: No, Sir.

A-111

THE COURT: Are you doing it

voluntarily?

THE DEFENDANT: Voluntarily,

sir. i

The state trial court then announced

that it found that Thompson's "decision

to plead guilty has been made freely,

voluntarily, and intelligently.”

In Blackledge v. Allison, 431 U.S.

63, 97 @.€t. 2623, S32 t.08.268 i136

(1977), the Supreme Court stated that

"the representations of the defendant

[at a plea hearing] as well as any

findings made by the judge accepting the

plea, constitute a formidable barrier in

any subsequent collateral proceedings."

97 8.Ct. at 1629. The Court further

ruled that the petitioner's “declara-

tions in open court carry a strong pre-

sumption of verity." Id. In Moya v.

Estelle, 696 F.2d 329 (5th Cir.1983),

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the habeas petitioner contended that his

Own attorney had intimidated him into

Pleading guilty. The new Fifth Circuit

held that in light of the petitioner's

sworn statement at the plea proceeding

that he had not been threatened and that

he was satisfied with counsel, no

evidentiary hearing was necessary on his

claim in a federal habeas proceeding.

696 F.2d at 332-33. See also, Rogers v.

Maggion, 714 F.2d 35, 38 n. 5 (5th

Cir.1983).

Here, Thompson testified under oath

that his plea was not coerced, and the

state trial court so concluded. The

district court in effect gave these

findings a presumnption of

correctness. We see little difference

between the presumption of correctness

under section 2254 and the "strong

A-113

presumption of verity” identified by the

Supreme Court in Blackledge.

Accordingly, the district court was

correct in requiring Thompson to present

convincing evidence that his plea was

not voluntary and the district court's

conclusion that Thompson failed to meet

this burden is not clearly erroneous.

CONCLUSION

For the foregoing reasons, the

order of the district court denying

Thompson's petition for a writ of habeas

corpus is AFFIRMED.

Bm

2

5

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1 Thompson complains of other as-

pects of Solomon's representation at the

sentencing hearing, including his fail-

ure to object to admission of Surace's

confession and his failure to object to

comments the prosecutor made during

closing which implied Thompson had the

burden of proof of mitigating circun-

stances. We do not believe that any of

the alleged errors of counsel played a

role in the jury's consideration of

aggravating and mitigating circunm-

stances. Accordingly, we need not

furthgr consider these alleged errors.

Although Solomon was ineffective

for not contacting psychiatrists who had

already examined Thompson, in the course

of our discussion of Thompson's Ake v.

Oklahoma claim, see note 8, infra, we

consider and reject the possibility that

Thompson was ineffective for not reques-

ting court-appointed psychiatric assis-

tance in developing mitigating evidence.

3 Ethical Consideration 7-12 pro-

vides that:

Any mental or physical condition

of a client that renders him

incapable of making a considered

judgment on his own behalf casts

additional responsibilities upon

his lawyer. Where an incompetent

is acting through a guardian or

other legal representative, a law-

yer must look to such representa-

tive for those decisions which are

normally the prerogative of the

client to make. If a client under

a disability has no legal repre-

A-115

sentative, his lawyer may be com-

pelled in court proceedings to

make decisions on behalf of the

client. If the client is capable

of understanding the matter in

question or of contributing to the

advancement of his interests,

regardless of whether he is

legally disqualified from per-

forming certain acts, the lawyer

should obtain from him all pos-

sible aid.

If the disability of a client and

the lack of a legal representative

compel the lawyer to make deci-

sions for his client, the lawyer

should consider all circumstances

then prevailing and act with care

to safeguard and advance the in-

terests of his client. But ob-

viously a lawyer cannot perform

any act or make any decision which

the law requires his client to

perform or make, either acting for

himself if competent, or by a duly

constituted representative if

legally incompetent.

4 In the district court,

Thompson also presented testimony

of a psychiatrist that certain of

the statutory mitigating circum-

stances were present. We have

determined, however, that Solomon

was not ineffective in failing to

obtain psychiatric evidence.

Accordingly, we do not consider

the psychiatric testimony in

determining whether Thompson has

A-116

met the prejudice prong of Strick-

land v. Washington.

5

Your Honor, members of the jury:

what I said to you yesterday was

right. I asked you a key ques-

tion, didn't I? Can you leave

your minds open even if you hear

horrendous evidence? Can you keep

your minds open and not put in

there the old Biblical term, "An

eye for an eye and a tooth for a

tooth," before you hear it all.

You know something here -- do you

know that the Court-appointed law-

yer, me, is the only person in

this room with William Thompson?

There is no mother. There is no

father. There are no cousins or

aunts or uncles or pastors. This

man is an absolute total loser,

and we might shrug our shoulders

and say, "Well, after all, look

what he did to this poor girl.

Let's do it to hin."

Is there one shred -- is there

some evidence to back up the law

the Judge is going to read to

you? Is there some evidence that

you could consider that might say,

"Let us give him 25 years in

prison."

He'll come out 49 years of age, if

he comes out at that time. If

some future parole commission

reads all of the evidence that you

heard, seeing everything in this

A-117

case and lets him out -- I doubt

ae.

When he made the decision to ask

for mercy by pleading guilty --

MR. MCHALE: I must object. That

is not part of the evidence and it

is not part of the law as to sen-

tencing.

THE COURT: It is argument. Over-

ruled.

MR. SOLOMON: Thank you.

The facts of life are that you ask

a jury, when you plead guilty, to

please consider mercy. Obviously,

things pop into your mind. We're

not children here. Mercy. How do

you show this girl mercy?

There was no mercy shown this

girl. Again, I come back to that

question I asked you: can you take

an eye for an eye and a tooth for

a tooth and set it aside and

accept what you hear.

Now, pecuniary gain? Well, maybe

not so. What we're talking about

there in that statute is robbery,

the 7-11 killings -- they will go

in, take twelve dollars and shoot

him dead. Pecuniary gain? That

is not what that statute read for,

but it was a heinous crime. There

is no question about it, not at

all.

verre

A-118

So, the question is, then, what

thread is there upon which he

hangs? What did he do and what

occurrences happened _ to, say,

well, let's put him in prison for

25 years and hopefully, some pa-

role commission, after that, when

they read through all this -- they

will not -- don't underestimate

the power of a Rocco Surace. He

is it. He did it. He did it with

him. He followed him. Rocco Su-

race terrorized not just the poor

girl that died, but terrorized two

other people. He terrorized

them. Yes, he did. He was the

leader; I bet he was.

Rocco Surace says, "Take this

chain. She's your old lady. Do

it to her,” and he picked up on

the theme and he started in. God

forbid, it would have been maybe

not the best thing for him to say,

“I'll not pick up that chain, and

I'm not going to go get a board to

do that," or "I'm not going to try

to emulate you, even if you take

it out on my hide, Mr. Rocco Su-

race," and he would have -- to

think that this next jury that has

got to sit in here and try Rocco

Surace --

THE COURT: No comment.

MR. SOLOMON: All right, sir.

Did this man do something upon

which you can say, maybe, we'll

A-119

consider something in his be-

half? Yes. The evidence from the

lady was that there was one thing

that Rocco Surace didn't tell him

to do, that he did on his own, and

that was the peroxide, and that

was the wiping it down. Turned

mind, perverted mind that it might

be over here, he got that peroxide

to wipe her down and care for the

wounds.

There was testimony that she went

out and got some sugar water and

brought it back. That was his,

not Rocco Surace's, instruction.

That isn't much of a thread to

hang things on, is it, that after

this horrendous beating you admin-

ister -- after copying and emula-

ting the great Rocco Surace, that

you went out and you got peroxide

and you got some water and sugar

because she was a diabetic, with-

out his direction, on your own,

without the direction of Rocco

Surace.

MR. MCHALE: I object. There is no

such testimony in the record.

MR. SOLOMON: Yes, Judge. He sent

her out there --

THE COURT: It is in the testi-

mony.

MR. SOLOMON: I am going to review

with you, just for a moment, cer-

tain worse, damaging, aggravating

A-120

circumstances shall be limited to

the following and that's what you

heard from Mr. McHale. It says,

“Limited to the following."

Although it says, “mitigating

circumstances shall be the follow-

ing," it doesn't say, “Limited

to." So, you can consider other

elements.

MR. MCHALE: Objection.

THE COURT: Sustained.

MR. SOLOMON: You will then, have

to consider these elements and

weigh them. The defendant has no

significant history of prior cri-

minal actitivy. Now, you can let

your minds figure that one out.

Never before has this man done

anything violent.

MR. MCHALE: Objection. This is

not evidence.

THE COURT: Sustained.

MR. SOLOMON: The State, Your

Honor, has admitted that he has

not been convicted of anything.

THE COURT: No that is not their

testimony, sir. That is not his

statement.

MR. SOLOMON: The defendant acted

under extreme duress or under the

substantial domination of another

A-121

person - Rocco Surace.

The capacity of the defendant to

appreciate the criminality of this

conduct to the requirements of the

law are substantially impaired.

I couldn't say that. There is no

proof of that, and I say to you

that any person that would do what

he did has to be not in this

world.

Prior to the State, three psychia-

trists have ruled that he was

sane.

MR. MCHALE: Objection, Your

Honor.

THE COURT: Sustained.

Mr. Solomon you are confined sir,

to what has been brought out in

the evidence.

MR. SOLOMON: The question arises,

then, what thread can you hang it

on? What can you give him? Can

you give him the fact that he pled

guilty to you and seeks mercy?

You can give him the fact that

after this two-hour stint, or

whatever period of time passed by,

it must have dawned on his herd,

the enormity of what he did, and

he started to take care of her

with the peroxide and get some

water and sugar -into her.

A-122

MR. MCHALE: I object. There is

no evidence.

THE COURT: Yes, there is. The

testimony is that there was sugar

set out for her.

MR. MCHALE: Not that this

defendant did anything.

THE COURT: Well, it was at their

directions. Overruled.

The question that arises, shall we

take the man's life,or shall we

put him in prison until he's 49

years old? I think if the State

desired to put everybody to death,

they would say § s0. 25-year

minimum-minimum. However you are

right now, whatever age you are

add 25 years to it. He will go

nowhere. He will be punished.

Now the question is, what shall

you do? Is there a thread there

upon which to hang any hope for

this man, or at least let him live

someplace in prison, and I say

there is. The fact that he came

in here and asked for mercy -- the

fact that he came in here and that

he went out and he did these

things to her to relieve her and

to wipe her down and to get her

sugar and water, that might be

very, very thin to you, but that

is a spark, and if there is a

spark, there is a place _ for

hope. It may be, at some future

: A-123

time during this 25-year period of

time, if you put him in prison,

that the whole system, our state

and the rest of these states, will

wise up and then say, "Now, we

have this man in our custody. Let

us see what makes him tick."

Richard Speck -- Richard Speck and

six nurses, was it? Life

imprisonment.

MR. MCHALE: Judge, I object.

THE COURT: Sustained.

MR. SOLOMON: We feel that it is a

greater punishment, much greater

punishment to see that he spends

his life in prison, and there is

no hope of ever getting out, at

least for 25 years, and we leave

it in your hands. Thank you.

6 Thompson's sentencing hearing

occured on September 19-20, 1978. The

Supreme Court decided Lockett on July 3,

1978. The Florida Supreme Court issued

its opinion on rehearing in Songer on

December 21, 1978.

7 We do not consider whether

Thompson would have a valid Ake claim

had he made a proper request.

8 Solomon's failure to request

psychiatric assistance with respect to

mitigating circumstances was not inef-

fective assistance of counsel. The

Supreme Court's decision in Ake was a