Armstrong v. Dugger

• Decision Date: 23 November 1987
• Docket Number: No. 86-3642,86-3642
• Citation: 833 F.2d 1430
• Parties: Sampson ARMSTRONG, Petitioner-Appellee, Cross-Appellant, v. Richard L. DUGGER, Secretary, Florida Department of Offender Rehabilitation, and Tom Barton, Superintendent, Florida State Prison at Starke, Florida, Respondents-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1430

833 F.2d 1430

Sampson ARMSTRONG, Petitioner-Appellee, Cross-Appellant, v. Richard L. DUGGER, Secretary, Florida Department of Offender

Rehabilitation, and Tom Barton, Superintendent,

Florida State Prison at Starke, Florida,

Respondents-Appellants, Cross-Appellees.

No. 86-3642.

United States Court of Appeals, Eleventh Circuit.

Nov. 23, 1987.

Rehearings Denied Jan. 14, 1988.

Robert Krauss, Asst. Atty. Gen., Tampa, Fla., for respondents-appellants, cross-appellees.

Peter Buscemi, Morgan, Lewis, & Bockius, Washington, D.C., Larry H. Spalding, Office of Capital Collateral Representative, Tallahassee, Fla., for petitioner-appellee, cross-appellant.

Appeals from the United States District Court for the Middle District of Florida.

Before VANCE, JOHNSON and CLARK, Circuit Judges.

VANCE, Circuit Judge:

Respondents appeal an order by the United States District Court for the Middle District of Florida, conditionally granting Sampson Armstrong's petition for federal habeas relief with respect to the sentencing phase of his trial. The district court conditionally granted the writ on two grounds: (1) counsel was ineffective at the sentencing proceeding for failing to investigate and present mitigating evidence; and (2) the sentencing phase of the trial violated the requirements of due process. We affirm the district court's judgment on the first ground, but reverse on the second.

Armstrong also claims that the jury instructions at the sentencing hearing were unconstitutional under Hitchcock v. Dugger, --- U.S. ----, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The district court ruled that this claim was procedurally barred. We reverse this ruling and hold that the trial court's instructions violated Hitchcock and Lockett. Because we decline to reach the issue of whether the violation was harmless, however, we do not make this an alternative ground for granting the writ.

I.

Armstrong was convicted on September 30, 1975 in the Circuit Court of Hardee County, Florida on two counts of first degree murder and one count of robbery. The jury had deliberated for about four hours after a full day of testimony, and had returned a guilty verdict against Armstrong and his co-defendant at about 8:40 p.m. The trial judge gave the jury the option of beginning the penalty phase at 9:00 p.m. or returning the next day. The jury decided to proceed that night. There was no objection by Armstrong's trial counsel. Armstrong's parol officer, Betty Fine, was the sole mitigating witness called by Armstrong's counsel during the sentencing phase. The entire sentencing proceeding, including evidence, arguments, instructions, deliberation, and sentencing lasted a little more than one hour. Armstrong was sentenced to death for the two murder counts and to life imprisonment for the robbery.

After exhausting his state remedies, ¹ Armstrong filed the present petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. The district court conducted an evidentiary hearing on Armstrong's claim that he was denied effective assistance of counsel. The district court granted the writ on two grounds. First, the court found that defense counsel's failure to investigate and present mitigating evidence rendered his assistance constitutionally ineffective. Second, the court found that the length of the sentencing proceeding combined with the lateness of the hour violated due process standards. The state appeals both rulings.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court articulated a two-prong test for determining when a defendant has been denied effective assistance of counsel. In order to obtain the reversal of a conviction or a death sentence, a defendant must show that (1) counsel's performance was deficient and (2) the deficiency prejudiced the defense. See id. at 687, 104 S.Ct. at 2064; Magill v. Dugger, 824 F.2d 879, 885 (11th Cir.1987). At the evidentiary hearing in district court Armstrong's habeas counsel presented the testimony of Armstrong's trial counsel, an expert witness, seventeen other witnesses and documentary evidence. The availability of a substantial amount of mitigating evidence was established.

The district court concluded that trial counsel's performance was deficient for three reasons. First, trial counsel failed to prepare for the sentencing proceeding by conducting a meaningful investigation. Armstrong's trial counsel testified at the evidentiary hearing that he spoke with Armstrong's parol officer and arranged for her to testify at the sentencing trial. The only other preparation between the conclusion of the trial and the beginning of the penalty phase was a single conversation with the petitioner, his mother and stepfather. Second, several mitigating aspects of petitioner's character could have been proved by witnesses who were available at the time of the trial. Finally, several of the witnesses obtained by habeas counsel would have testified at the sentencing proceeding had they been asked.

Under some circumstances an attorney may make a strategic choice not to conduct a particular investigation. See Lightbourne v. Dugger, 829 F.2d 1012, 1025-26 (11th Cir.1987); Foster v. Dugger, 823 F.2d 402, 407-08 (11th Cir.1987). "A criminal defense attorney has a duty to investigate, but this duty is limited to reasonable investigation." Thompson v. Wainwright, 787 F.2d 1447, 1450 (11th Cir.1986) (citing Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066), cert. denied, --- U.S. ----, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987). An "attorney's decision not to investigate must not be evaluated with the benefit of hindsight but accorded a strong presumption of reasonableness." Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985); see Porter v. Wainwright, 805 F.2d 930, 935 (11th Cir.1986).

The decision not to investigate, however, must be reasonable. See Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066; Elledge v. Dugger, 823 F.2d 1439, 1444 & n. 9 (11th Cir.1987); Tafero v. Wainwright, 796 F.2d 1314, 1320 (11th Cir.1986); Mitchell, 762 F.2d at 889; cf. Magill, 824 F.2d at 889 (failure to present evidence at sentencing may not be strategic). The testimony by Armstrong's trial counsel at the evidentiary hearing revealed that his investigation and preparation for the penalty phase of Armstrong's trial was negligible. ² The attorney had been a member of the bar for only eight weeks, and this was the first serious criminal trial he had ever handled. When asked why his preparation for the penalty phase was so limited, the attorney said: "I think it was my inexperience coupled with the fact that it was a new procedure." He explicitly testified that it was not in any way a strategic or tactical decision. The district court correctly found that trial counsel's failure to investigate and present mitigating evidence fell below the objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065; see also Elledge, 823 F.2d at 1445 (failure to interrogate petitioner's relatives and to seek an expert witness was outside range of competent assistance); Thomas v. Kemp, 796 F.2d 1322, 1324 (11th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 602, 93 L.Ed.2d 601 (1986).

The state argues that the district court failed to properly apply the prejudice prong of the Strickland test, because the mitigating character evidence obtained at the evidentiary hearing was either brought out at some point during the guilt or sentencing phase of the trial or the jury would have viewed the evidence as aggravating. We disagree. The major requirement of the penalty phase of a trial is that the sentence be individualized by focusing on the particularized characteristics of the individual. See Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 875, 71 L.Ed.2d 1 (1982); Gregg v. Georgia, 428 U.S. 153, 199, 96 S.Ct. 2909, 2937, 49 L.Ed.2d 859 (1976). The evidence before the district court plainly established that Armstrong's trial counsel failed to provide the jury with the information needed to properly focus on the particularized characteristics of this petitioner.

Armstrong and various family members testified about his poverty and the poor living conditions of his childhood. Armstrong's grandmother testified that Armstrong did not have adequate adult supervision as a child. She further testified that his work as a fruit picker during his early years supplemented his grandmother's income, but resulted in irregular school attendance. Armstrong's mother testified about his reputation as a hardworking child. Several witnesses testified about Armstrong's history of nonviolence and his religious activities. Both Armstrong and his mother testified about his epileptic seizures, and an expert, although he did not have any contact with petitioner at the time of the trial, testified that petitioner was mentally retarded and had organic brain damage. The demonstrated availability of undiscovered mitigating evidence clearly met the prejudice requirement. See Strickland, 466 U.S. at 696, 104 S.Ct. at 2069.

III. DUE PROCESS

The district court concluded that the sentencing proceeding fell below "minimum constitutional standards" because the proceeding began late in the evening after a full day of trial and lasted less than one hour. The Constitution requires neither that a capital sentencing proceeding be a certain length nor that the sentencing hearing begin at certain hours. Rather, a proceeding is consistent with the requirements of due process provided it is not fundamentally unfair. See Peek v. Kemp, 784 F.2d 1479, 1508 (11th Cir.) (en banc) (Johnson, J. dissenting), (citing Wainwright v. Greenfield, 474 U.S. 284, 293-94, 106 S.Ct. 634, 639-40, 88 L.Ed.2d 623 (1986)), cert. denied, --- U.S. ----, 107 S.Ct. 421, 93 L.Ed.2d 371 (1986).

A defendant's right to due process is not...