Adams v. Wainwright

• Decision Date: 18 July 1983
• Docket Number: No. 82-5595,82-5595
• Citation: 709 F.2d 1443
• Parties: James ADAMS, Petitioner, v. Louie L. WAINWRIGHT, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1443

709 F.2d 1443

James ADAMS, Petitioner, v. Louie L. WAINWRIGHT, Respondent.

No. 82-5595.

United States Court of Appeals Eleventh Circuit.

July 18, 1983.

Rehearing and Rehearing En Banc Denied Sept. 12, 1983.

Craig S. Barnard, Chief Asst. Public Defender, Jerry L. Schwarz, Tatjana Ostapoff, Asst. Public Defenders, West Palm Beach, Fla., for petitioner.

Robert L. Bogen, Sharon Lee Stedman, Asst. Attys. Gen., West Palm Beach, Fla., for respondent.

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

Before RONEY and CLARK, Circuit Judges, and GIBSON ^*, Senior Circuit Judge.

PER CURIAM:

Convicted of first degree murder and sentenced to death, James Adams appeals the denial of his petition for a writ of habeas corpus. All of Adams' arguments on appeal concern the imposition of the death penalty. We affirm essentially on the basis of the district court's extensive opinion. We briefly review the case and address Adams' contentions seriatim as presented to us.

In the course of a robbery at the victim's home, Adams beat Edgar Brown senseless with a firepoker. Brown died the following day. A Florida jury found Adams guilty of murder and recommended the death penalty, which the trial judge imposed. The Florida Supreme Court affirmed the conviction and sentence. Adams v. State, 341 So.2d 765 (Fla.1976). The United States Supreme Court denied certiorari. Adams v. Florida, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 158 (1977). The Florida Supreme Court later denied an application for relief based on the trial court's alleged reliance on confidential and erroneous information during the penalty phase of the trial, Adams v. State, 355 So.2d 1205 (Fla.1978), and the United States Supreme Court again denied certiorari. Adams v. Florida, 439 U.S. 947, 99 S.Ct. 340, 58 L.Ed.2d 338 (1978). When the Florida state courts denied any collateral relief, Adams v. State, 380 So.2d 423 (Fla.1980), Adams filed his petition for habeas corpus relief in federal district court. The district court denied the writ in an unpublished opinion, but granted a certificate of probable cause and a stay of judgment pending appeal.

Ineffective Assistance of Counsel

Adams argues his counsel was ineffective during the penalty phase of the trial because he failed to present any mitigating evidence. Counsel's closing argument consisted exclusively of a plea for mercy.

The crucial question is whether counsel's decision to make a plea for mercy, in lieu of presenting any mitigating evidence, was one of strategy taken after he reasonably investigated other plausible options. In Washington v. Strickland, 693 F.2d 1243, 1253-54 (5th Cir. Unit B 1982) (en banc), cert. granted, --- U.S. ----, 103 S.Ct. 2451, 77 L.Ed.2d 1332 (1983), we observed that a strategic decision to pursue less than all plausible lines of defense will rarely, if ever, be deemed ineffective if counsel first adequately investigated the rejected alternatives. Cf. Westbrook v. Zant, 704 F.2d 1487, 1500 (11th Cir.1983) (strategic decisions generally do not render counsel ineffective). Even if in retrospect the strategy appears to have been wrong, the decision will be held ineffective only if it was so patently unreasonable that no competent attorney would have chosen it. Washington v. Strickland, 693 F.2d at 1254; see also Ford v. Strickland, 696 F.2d 804, 820 (11th Cir.1983) (en banc); Baldwin v. Blackburn, 653 F.2d 942, 946 (5th Cir.1981), cert. denied, 456 U.S. 950, 102 S.Ct. 2021, 72 L.Ed.2d 475 (1982); Beckham v. Wainwright, 639 F.2d 262, 265 (5th Cir.1981). The burden of proof to establish ineffectiveness and prejudice is on the petitioner. Washington v. Strickland, 693 F.2d at 1258, 1262; Adams v. Balkcom, 688 F.2d 734, 738 (11th Cir.1982).

Adams has failed to establish that the decision to ask the jury for mercy reflected less than reasoned professional judgment. Adams did not call trial counsel to testify at the state hearing and gave no indication to the district court as to how trial counsel would testify at any district court hearing. Support counsel did testify before the state court that the trial file revealed no specific investigation into certain matters, such as Adams' work record, church activity and lack of education, but acknowledged that the file showed counsel had interviewed Adams' wife, neighbors and former employers. Notes in the file indicated the wife knew Adams' background completely. In short, there is no basis in this record for finding that counsel did not sufficiently investigate Adams' background.

Assuming counsel's decision to forego presenting evidence of Adams' background was one of tactics, it does not appear to have been patently unreasonable. As the district court noted, counsel may have feared that if he presented evidence about defendant's background, the state could have refuted it by calling attention to damaging evidence in the record. For example, if counsel had offered evidence of Adams' family life, the state could have emphasized that Adams was separated from his wife at the time of the murder because of his relationship with a sixteen-year old girl. Similarly, if counsel had presented evidence of Adams' religious devotion, the state could have noted that he spent the Sunday before the Monday murder gambling. Counsel could have reasonably decided that raising Adams' background might do more harm than good, and that the best strategy was to ask for mercy. See Stanley v. Zant, 697 F.2d 955, 965 (11th Cir.1983).

The other actions for which Adams faults his counsel do not amount to ineffectiveness. Adams argues his attorney should have objected first when, during the penalty phase, the state brought out that the victim of a prior rape committed by Adams was white, and second when, during argument thereafter, the state's attorney mentioned that the murder victim was a prominent, long-time local resident and Adams was from Tennessee. Defense counsel probably should have objected on both occasions. Effective counsel, however, does not mean errorless counsel. Adams v. Balkcom, 688 F.2d at 738; Goodwin v. Balkcom, 684 F.2d 794, 804 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1798, 76 L.Ed.2d 364 (1983); Young v. Zant, 677 F.2d 792, 798 (11th Cir.1982); Mylar v. Alabama, 671 F.2d 1299, 1300 (11th Cir.1982), petition for cert. filed, 50 U.S.L.W. 3984 (U.S. June 15, 1982) (No. 81-2240). In any event, Adams has not shown the failure to object worked to his "actual and substantial disadvantage." Washington v. Strickland, 693 F.2d at 1242. Put another way, it does not appear that objections by counsel would have worked to Adams' advantage in any material way.

Adams complains about the failure to "clarify" his criminal record which had been brought out at trial. Adams contends that when he testified at trial on cross that he had five or more previous convictions, he was mistaken. According to Adams, counsel should not only have realized this mistake, but also should have discovered the allegedly questionable constitutionality of three convictions. By calling attention to Adams' prior record, however, counsel might have hurt his client. The record does not establish the number of prior convictions, but there is no doubt that Adams had at least three previous convictions, including one for rape. Adams failed to establish prejudice. The government raised only the rape conviction during the sentencing proceeding, the judge properly instructed the jury to consider only statutory aggravating circumstances, and the trial court found numerous statutory aggravating circumstances to warrant the death sentence.

Imposition of the Death Penalty for Felony Murder

As the murder occurred during the course of a robbery, Adams was indicted for and convicted of felony murder. Florida law classifies as first degree murder, punishable by death, a homicide committed without premeditation during the commission of certain felonies, including robbery. Fla.Stat.Ann. Sec. 782.04(1)(a). Relying principally on Enmund v. Florida, --- U.S. ----, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), Adams argues the death sentence in this case is disproportionate and excessive because it is based on felony murder without a specific finding of intent to kill.

Although Enmund did hold that the death sentence could not be imposed where no intent is shown and the killing occurs during the perpetration of a felony, that case is readily distinguishable. Defendant Earl Enmund in that case was waiting in the getaway car during a planned robbery when one or both of his two co-felons shot and killed two victims who resisted the robbery. The Supreme Court held the death penalty disproportionate to Enmund's culpability, reasoning that he personally "did not kill or attempt to kill" or have "any intention of participating in or facilitating a murder." --- U.S. at ----, 102 S.Ct. at 3377, 73 L.Ed.2d at 1152. Here Adams personally killed his victim, savagely beating him to death. Adams acted alone. He is fully culpable for the murder. Under these circumstances, the death penalty is not "grossly disproportionate and excessive." Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977) (plurality opinion).

Adams also argues that Florida has impermissibly made the death penalty the "automatically preferred sentence" in any felony murder case because one of the statutory aggravating factors is the murder taking place during the course of a felony. The short answer is that the United States Supreme Court has upheld the Florida death penalty statute, including necessarily the use of this statutory aggravating factor. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Florida does not mandate the death penalty in all felony murder cases. The defendant is not precluded under Florida law from presenting any mitigating factors. See id. at 250 n. 8, 96 S.Ct. 1 at 2965 n. 8; Ford v. Strickland, 696 F.2d at 812.

Aggravating...