Bertolotti v. Dugger
| Decision Date | 31 August 1989 |
| Docket Number | No. 89-3104,89-3104 |
| Citation | 883 F.2d 1503 |
| Parties | Anthony BERTOLOTTI, Petitioner-Appellant, v. Richard DUGGER, Secretary, Florida Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Martin J. McClain, Billy H. Nolas, Capital Collateral Rep., Tallahassee, Fla., for petitioner-appellant.
Richard B. Martell, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for respondent-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before KRAVITCH, CLARK and EDMONDSON, Circuit Judges.
Petitioner Anthony Bertolotti, a Florida prisoner under sentence of death, appeals the district court's denial of his petition for the writ of habeas corpus. Concluding that Bertolotti's claims lack merit, we affirm the judgment of the district court.
Bertolotti was convicted of first-degree murder for the September 1983 slaying of Carol Miller Ward in Orlando, Florida. The jury returned a general verdict of guilty upon a charge of felony murder and premeditated murder, both of which are death-eligible crimes under Florida law, Fla.Stat.Ann. Sec. 782.04(1)(a); by a vote of nine to three, the jury recommended the death penalty, which the judge imposed on April 12, 1984. The Florida Supreme Court affirmed Bertolotti's conviction and sentence on direct appeal, Bertolotti v. State, 476 So.2d 130 (Fla.1985), and Bertolotti voluntarily dismissed a subsequent petition for certiorari filed in the United States Supreme Court. After the Governor of Florida signed a warrant for Bertolotti's execution, Bertolotti filed in the Florida courts two collateral attacks on his conviction. The Florida courts held an evidentiary hearing and granted a temporary stay of execution, effectively nullifying the first execution warrant, but ultimately denied Bertolotti relief. See Bertolotti v. Dugger, 514 So.2d 1095 (Fla.1987) () and Bertolotti v. State, 534 So.2d 386 (Fla.1988) ().
On January 31, 1989, the Governor of Florida signed a second warrant for Bertolotti's execution. 1 On February 14, 1989 Bertolotti filed in federal district court a motion for stay of execution and a petition for the writ of habeas corpus. The petition, Bertolotti's first in federal court, presented eleven grounds for relief:
1. Trial counsel provided Bertolotti with ineffective assistance of counsel when counsel failed to adequately investigate, develop and present defenses at the guilt and penalty phases of Bertolotti's capital trial.
2. The trial court erred by denying Bertolotti's motions for a mistrial based on the prosecutor's improper closing argument at the sentencing phase of the trial.
3. The trial court's denial of Bertolotti's requested penalty phase instruction informing the jury of its ability to exercise mercy deprived Bertolotti of a reliable and individualized capital-sentencing determination.
4. The trial court in its instructions at sentencing unconstitutionally shifted the burden of proof to Bertolotti.
5. The Florida courts have given an impermissibly broad construction to the term "especially heinous, atrocious or cruel" as that term is used in a statutory aggravating circumstance which was found to justify Bertolotti's death sentence.
6. Bertolotti's death sentence is predicated upon the finding of an automatic, non-discretionary-channeling statutory aggravating circumstance.
7. Bertolotti's right to a reliable capital-sentencing proceeding was violated when the state urged that he be sentenced to death on the basis of impermissible "victim impact" evidence.
8. Comments of the judge and the prosecutor throughout the trial impermissibly diminished the jury's sense of responsibility for the awesomeness of its sentencing task.
9. Bertolotti's conviction is void because it may have been based on a constitutionally impermissible ground, and there may not have been juror unanimity.
10. A state witness introduced impermissible evidence of Bertolotti's propensity to crime.
11. The trial judge unconstitutionally failed to grant Bertolotti's motion for a change of venue, and impermissibly limited Bertolotti's ability to voir dire the jury venire.
The district court heard oral argument the morning of February 15, 1989, but declined to hold an additional evidentiary hearing on Bertolotti's claims. Later that afternoon, the district judge denied Bertolotti relief, and refused to issue a certificate of probable cause to appeal; the district court did however enter a twenty-four hour stay of execution to allow Bertolotti time to appeal to this court. 2
Bertolotti reasserts the eleven grounds he alleged in the district court. 3 We will address first those claims that challenge the over-all validity of the state-court proceedings; second, those claims attacking specific errors during the guilt phase of the trial; and finally, those claims assigning constitutional error to the penalty phase of the trial.
Before turning to Bertolotti's specific claims, we note that the district court did not abuse its discretion by declining to hold an evidentiary hearing on the one issue that we agree presents a colorable claim for relief, the ineffectiveness claim. Although such a hearing often is necessary in a first federal habeas petition, it was not here. At the four-day hearing during the state collateral proceedings, counsel for Bertolotti presented several witnesses--including all three of his trial attorneys, a psychiatrist, and an expert on criminal defense; counsel also cross-examined the witnesses produced by the state. Bertolotti thus was afforded a full and fair opportunity to develop the basis of his ineffective-assistance claim. The district court, which was provided with the 665-page transcript of that hearing, fairly concluded that another hearing would not materially aid resolution of the ineffectiveness claim. Smith v. Dugger, 840 F.2d 787, 796 (11th Cir.1988); cf. Coleman v. Zant, 708 F.2d 541, 545 (11th Cir.1983).
Bertolotti's defense was undertaken by attorneys Joseph DuRocher, Clyde Wolfe, and Peter Kenny. DuRocher, the elected public defender for the Ninth Judicial Circuit in Florida, initially interviewed Bertolotti and assigned the case to his assistants Wolfe and Kenny. Wolfe was responsible for the guilt phase of the trial and Kenny for the penalty phase. Bertolotti argues that counsel's performance was constitutionally defective for four reasons: (1) counsel overlooked substantial evidence of Bertolotti's psychological problems; (2) counsel overlooked evidence of Bertolotti's traumatic childhood; (3) counsel overlooked evidence of voluntary intoxication; and (4) counsel failed to present a defense to felony murder. Bertolotti claims that counsel's errors prevented the presentation of an effective defense, compromising the integrity of both the guilt and penalty phases of his trial.
Our resolution of Bertolotti's ineffectiveness claims is guided by the familiar two-prong test announced by the Supreme Court in Strickland v. Washington: to prevail, Bertolotti must first show that counsel's performance was so deficient that "counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment;" second, Bertolotti must show that "counsel's errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable." 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To meet the second prong, Bertolotti must demonstrate prejudice: "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., 466 U.S. at 694, 104 S.Ct. at 2068. The Strickland standard is applicable to Bertolotti's claims of ineffectiveness both at the guilt stage and the penalty stage of his trial. Id., 466 U.S. at 687, 104 S.Ct. at 2064.
a. Insanity and diminished capacity.--Bertolotti asserts that his trial counsel overlooked clues of mental incapacity that would have caused a reasonably competent lawyer to secure a psychiatric examination of his client. With the results that such an examination would have yielded, reasonably competent counsel could have presented insanity and diminished-capacity defenses at the guilt stage of the trial, and could have offered compelling mitigating evidence at the penalty phase of the trial. Although we conclude that Bertolotti cannot show prejudice, our resolution of the prejudice issue is determined substantially by our doubt about the strength of Bertolotti's evidence of psychological impairment. This doubt also colors our conclusions in regard to the performance of Bertolotti's counsel. Because much of the evidence relevant to the prejudice component of the Strickland test is also relevant to the performance component on this issue, resolution of the performance component will not make our task appreciably more difficult, and we voluntarily address both prongs of the Strickland test. 4
(1) Attorney performance.--Nine judges already have reviewed the performance of Bertolotti's attorneys. The unanimous Florida Supreme Court decided that counsel's performance was deficient; the state trial judge and the district judge both concluded that counsel's performance was adequate. Federal courts are not bound by the state determination of ineffectiveness, however (Strickland, 466 U.S. at 698, 104 S.Ct. at 2070), and it is crucial to recognize that the role of the Florida Supreme Court in deciding questions of ineffective assistance differs fundamentally from the role of the federal court. Article Five, section fifteen of the Florida Constitution provides that "The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice...
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