688 F.3d 1244 (11th Cir. 2012), 11-15001, Kormondy v. Secretary, Florida Dept. of Corrections

Docket Nº:11-15001.
Citation:688 F.3d 1244
Opinion Judge:TJOFLAT, Circuit Judge:
Party Name:Johnny Shane KORMONDY, Plaintiff-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Defendant-Appellees.
Attorney:Michael Paul Reiter (Court-Appointed), Michael P. Reiter, Ocala, FL, for Petitioner-Appellant. Meredith Charbula, Atty. General's Office, Tallahassee, FL, for Respondent-Appellee.
Judge Panel:Before TJOFLAT, HULL and WILSON, Circuit Judges.
Case Date:July 31, 2012
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1244

688 F.3d 1244 (11th Cir. 2012)

Johnny Shane KORMONDY, Plaintiff-Appellant,

v.

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Defendant-Appellees.

No. 11-15001.

United States Court of Appeals, Eleventh Circuit.

July 31, 2012

Page 1245

[Copyrighted Material Omitted]

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Michael Paul Reiter (Court-Appointed), Michael P. Reiter, Ocala, FL, for Petitioner-Appellant.

Meredith Charbula, Atty. General's Office, Tallahassee, FL, for Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before TJOFLAT, HULL and WILSON, Circuit Judges.

TJOFLAT, Circuit Judge:

Johnny Shane Kormondy, a Florida death row inmate convicted of murder, appeals the decision of the United States District Court for the Northern District of Florida denying his petition for a writ of habeas corpus. Two state court trial proceedings were before the District Court when it ruled. The first proceeding was the guilt phase of Kormondy's bifurcated trial in July 1994.1 The second proceeding was the penalty phase of Kormondy's trial held in May 1999. The District Court denied the writ with respect to both phases of the trial. After briefing and oral argument, we affirm the District Court's decision.2

I.

On July 11, 1993, Gary McAdams was murdered in his Pensacola, Florida residence. Sixteen days later, an Escambia County grand jury indicted three men for the murder, Johnny Shane Kormondy, Curtis Buffkin, and James Hazen. 3 The State sought the death penalty against all three because the murder had occurred while they were burglarizing the McAdams residence, committing armed robbery, and committing sexual battery on Cecilia McAdams, the victim's wife.4

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On arraignment in the Escambia County Circuit Court, before Circuit Judge John Kuder, the defendants entered pleas of not guilty and stood trial. Buffkin was tried first. The jury reached a verdict, but before the verdict was published, Buffkin and the State entered into a plea agreement that called for Buffkin to plead guilty to first-degree murder, receive a life sentence, and testify for the State in the cases against Kormondy and Hazen if requested. The Circuit Court approved the agreement, accepted Buffkin's plea of guilty to the murder charge, and discharged the jury. Kormondy's trial followed Buffkin's.

The guilt phase of Kormondy's trial began on July 5, 1994. Russell Edgar, an Assistant State Attorney for the First Judicial Circuit of Florida, represented the State. Antoinette Stitt and Ronald Davis, Assistant Public Defenders for the First Judicial Circuit, represented Kormondy; Stitt handled the guilt phase and Davis handled the penalty phase.

A.

The following facts were established in the guilt phase of the trial during the State's case in chief.

On Saturday, July 10, 1993, Johnny Shane Kormondy, Curtis Buffkin, and James Hazen gathered at Kormondy's residence in Pensacola, Florida. Buffkin, who had recently escaped from prison, was staying with Kormondy and his wife, Valerie. Hazen was in town from Oklahoma.5 The day before, Hazen and Kormondy had gotten together and had cased a Pensacola subdivision, Thousand Oaks, looking for a home to burglarize. They failed to spot a promising target, but nevertheless decided to case the subdivision again, the next day, with Buffkin.

The three men left the Kormondy residence Saturday evening, July 10, at about 9:00 p.m., in Kormondy's Camaro.6 They drove around for three hours until, shortly after midnight, they arrived at the Thousand Oaks subdivision. They parked the Camaro there and waited; they were looking for a house that appeared to be occupied. Shortly after 12:30 a.m., now the morning of July 11, Gary and Cecilia McAdams pulled into their garage. The McAdamses were returning from Cecilia's twenty-year high school reunion at a local country club. They left the garage door open (so Gary could take their dog for a short walk), and entered the house through a door in the garage. At this point, Kormondy and Hazen covered their faces with masks and their hands with socks while Buffkin, who was armed with a .44-caliber pistol,7 entered the garage and knocked on the McAdamses' door. The McAdamses hardly had time to take off their shoes before they heard Buffkin's knock. Gary McAdams asked who was there; Buffkin responded, " It's me." Unable to recognize the voice, Gary asked again, only to be met with, " It's me." Assuming that a neighbor was knocking, he opened the door and found Buffkin standing there with a gun.

Buffkin forced his way into the house and ordered the McAdamses to kneel on the kitchen floor with their heads down. Hazen and Kormondy then entered, and, while Buffkin stood over the McAdamses, they closed the blinds, pulled the telephone cords out of the wall, and began rummaging through the dresser drawers and closets

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in the master bedroom. Hazen found a .38-caliber handgun Gary McAdams kept in his dresser, and on returning to the kitchen, rubbed the gun across Cecilia's McAdams's hip. Hazen then took Mrs. McAdams, at gunpoint, into the master bedroom and the adjoining vanity, where he ordered her to undress, sit on the toilet seat, and perform oral sex. Mrs. McAdams had difficulty performing. She " kept gagging and thinking [she] was going to throw up, and he told [her] that if [she] let it come out of [her] mouth one more time, he would shoot [her]." While this was occurring, Kormondy was standing beside Cecilia's bed going through one of her purses. He had long " stringy, mousy brown" hair that came to his collarbone. Kormondy then entered the vanity and raped Mrs. McAdams while Hazen continued to force Mrs. McAdams to engage in oral sex.

When Hazen and Kormondy were finished, they took Cecilia, still naked, to the kitchen and made her kneel down in front of her husband. They then forced Mr. McAdams, at gunpoint, to drink a beer from the refrigerator and, as he drank the beer, Buffkin said to Mrs. McAdams, " I don't know what the other two did to you, but I think you're going to like what I'm going to do." With his .44-caliber pistol in hand, he took Cecilia into the bedroom, made her lie down in the vanity area and began to rape her. Moments later, a loud noise— the sound of gunfire— suddenly emanated from the front of the house, and Mrs. McAdams heard someone call for " Bubba" or " Buff." Buffkin quickly threw a towel over her face and ran from the bedroom. As he did, he fired a shot from his .44-caliber pistol. The bullet went through the bedroom carpet and lodged in the floor beneath.

Cecilia McAdams ran to the kitchen. The intruders were gone, and she found her husband lying on his back and bleeding from the back of his head. She tried calling 911, but the phone did not work, so she ran out the front door screaming until the neighbors responded.

Gary McAdams died on the kitchen floor from a shot fired from his .38 caliber handgun. According to the medical examiner, the gun was pressed firmly against his skull when the trigger was pulled.8

Kormondy, Buffkin, and Hazen returned to the Kormondy residence. At 5:00 a.m., Valerie Kormondy awoke, found the three men sitting quietly in the living room, and went back to bed. At 7:00 a.m., the phone rang, and Valerie answered it. Kormondy's mother, Elaine Barnett, was calling. She and Hazen were supposed to go fishing, and she wanted Valerie to drive Hazen to the place where they were to meet. Valerie awakened Hazen and drove him there in Kormondy's Camaro. After dropping Hazen off, Valerie returned to her residence. Before exiting the car, she saw a bag of jewelry in the back seat; it contained items she had not seen before. On entering the house, she observed Kormondy and Buffkin sleeping. She awakened them and ordered them out of the house. They left, and she went to her mother's house.

Kormondy went to stay with one of Valerie's cousins, William Long, who was living alone. Long had been convicted of felony possession of marijuana and placed on probation. His probation was about to be revoked, however, because he had failed five drug tests. He was " on the run," lying low. One night, while at a Junior Food Store buying gas, he and Kormondy saw a bulletin offering a $50,000 reward

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for the arrest and conviction of the persons involved in the McAdams murder. Kormondy remarked that " the only way they would catch the guy that shot Mr. McAdams was if they were walking right behind us." A day or so later, after a night of drinking, Kormondy told Long " how everything took place" — about forcing their way into the McAdamses' residence, the sexual assaults, and " how he shot him in the back of the head." 9 Long told a friend of his, Chris Robarts, what Kormondy had said, and they decided that Robarts would contact the police and they would split the reward. Long did not want to get involved because he might be arrested for violating the conditions of his probation. He was running the risk of an arrest, though, because Robarts would have to tell the police where he got his information. Robarts did, and two homicide investigators from the Escambia County Sheriff's Office, Allen Cotton and Wendell Hall, came to see Long and persuaded him to meet Kormondy under police surveillance.

Kormondy was working at local cabinet shop, and Long suggested that he meet Kormondy there. The inspectors agreed, and on Monday afternoon, July 19, Long entered the cabinet shop wearing a wire; the inspectors filmed the scene from a van across the street. When Kormondy saw Long, he took him aside. Long got straight to the point. He told Kormondy that the police had been to see him about the murder, and he asked Kormondy whether he had told anyone else about " him killing the dude."...

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