Blanco v. Singletary
| Decision Date | 30 September 1991 |
| Docket Number | No. 88-5758,88-5758 |
| Citation | 943 F.2d 1477 |
| Parties | Omar BLANCO, Petitioner-Appellee, Cross-Appellant, v. Harry K. SINGLETARY, as Secretary, Department of Corrections, State of Florida, Respondent-Appellant, Cross-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Carolyn V. McCann, State Attorney's Office, Fort Lauderdale, Fla., for respondent-appellant, cross-appellee.
Larry H. Spalding, Billy H. Nolas, Tom Dunn, Capital Collateral Representative, Tallahassee, Fla., for petitioner-appellee, cross-appellant.
Appeals from the United States District Court for the Southern District of Florida.
Before TJOFLAT, Chief Judge, EDMONDSON, Circuit Judge, and CLARK, Senior Circuit Judge.
The state of Florida appeals the district court's grant of habeas relief to petitioner-appellee/cross-appellant Omar Blanco as to the sentencing phase of his death penalty trial. Blanco cross-appeals the district court's refusal to grant habeas relief as to the guilt/innocence phase of his trial. We affirm.
Blanco was sentenced to death for murder in Florida in 1982. The circumstances of the crime are set out in the Florida Supreme Court's opinion on direct appeal, which we quote in relevant part:
Fourteen-year-old Thalia Vezos testified that at approximately 11 p.m. on January 14, 1982, she was in her bed reading at her home in Ft. Lauderdale when she saw a man standing in the hallway holding a gun and carrying a brown wallet-type object under his arm. The intruder indicated that Thalia was to keep quiet. He then cut the wires to her telephone and left the room. Thalia's uncle, John Ryan, appeared in the hall and tried to take the gun from the intruder. Ryan was shot in the scuffle and landed on top of his niece on the bed. The intruder shot Ryan six more times. The intruder then fled. Thalia ran next door to the home of the Wengatzes, where the police were called.
The police arrived at the crime scene at 11:14 p.m. Officer Bull went next door and spoke to Thalia, who described the intruder as a Latin male, between 5'8" to 5'10", 180 to 190 pounds, wearing a gray or light green jogging suit, with dark curly hair. Officer Bull sent the description to a dispatcher at approximately 11:24 p.m. A man who lived across the street, George Abdeni, came forward with a report that he had heard shots and screaming and had seen the profile of a person in a gray jogging suit heading east from the Vezos property. This information was contained in a police BOLO that included the fact that the suspect was proceeding eastward.
The BOLO as dispatched described the suspect as a Latin male about 5'10" in height with dark complexion, black curly hair, some kind of mustache, wearing a gray or light green jogging suit, and running in an eastwardly direction. Officer Price, who was in the area, positioned his car approximately one and a half miles from the scene in a driving lane facing east on 30th Street next to North A1A to watch for someone fitting the BOLO description. At approximately 11:57 p.m. he saw appellant riding a white bicycle on the sidewalk southbound on A1A and determined that appellant fit the description on the BOLO except for his pants, which at first appeared to be heavy corduroy. He also had full facial hair. Officer Price requested more information. He then followed appellant for approximately one-tenth of a mile before stopping him. The first thing the officer noticed when he got within three to four yards of appellant was that the gray pants were the same material as the top of the sweatsuit. Officer Price requested a backup unit. He asked appellant if he possessed a gun. Appellant replied, "No Ingles." The officer frisked appellant, but found nothing but a necklace and watch which appellant was wearing. When the backup unit arrived, the officers handcuffed appellant and took him to the murder scene. Mr. Abdeni identified appellant as having the same profile and jogging suit as the figure he had seen earlier. Appellant was then formally arrested.
A man's purse containing appellant's ID papers and a watch belonging to Thalia Vezos was found near the door to Thalia's bedroom.
On the day following the murder, Thalia Vezos identified appellant in a line-up as the perpetrator. The Broward County Grand Jury indicted appellant on February 2, 1982, for first-degree premeditated murder and for armed burglary. Trial began on June 1, 1982, and the jury found appellant guilty on both counts. In compliance with the jury's recommended verdict, the trial judge sentenced appellant to death for the murder. He was sentenced to 75 years for the armed burglary. 1
One additional piece of evidence linked Blanco to the crime: The state introduced evidence that Blanco's hands were covered with gunpowder residue at the time of his arrest, which was consistent with Blanco having recently fired a weapon. 2
The Florida Supreme Court affirmed Blanco's conviction and sentence. 3 The Florida courts also denied Blanco's petitions for post-conviction relief and for habeas corpus relief. 4
Blanco petitioned for a writ of habeas corpus in the district court, raising fifteen claims. The district court granted Blanco a new sentencing hearing because it determined that: (1) Blanco's trial counsel were ineffective during the sentencing phase because they allowed the trial court improperly to interrogate Blanco and because they revealed negative information about Blanco in response to the trial court's inquiries; (2) counsel were ineffective during sentencing because they revealed the defense strategy; and (3) the trial court improperly diminished the jury's sense of responsibility in the Florida death penalty sentencing process. 5
We will first address the state's and Blanco's contentions that the district court erred in analyzing the facts and law surrounding the principal issue in this appeal. This unique issue simultaneously pertains to the trial court's interference with the conduct of Blanco's defense, defense counsels' ineffectiveness in response to the trial court's interference, and defense counsels' failure to present any mitigating evidence during sentencing. We will then proceed to address the state's argument that the district court erred in granting Blanco an evidentiary hearing, as well as Blanco's other arguments that the district court should have granted relief as to the guilt phase of his trial. Because we find that the district court correctly granted Blanco a new sentencing trial due to the ineffectiveness of Blanco's counsel, we do not address any other issues relating to sentencing.
Several of Blanco's fifteen claims before the district court related to the alleged ineffectiveness of his trial counsel resulting from the actions of the trial court in questioning him, in directing his attorneys to call witnesses, and in generally controlling the conduct of the defense during portions of the guilt and sentencing phases of the trial. 6 The facts underlying these claims are lengthy and complex but are necessary to a complete understanding of the interwoven issues they entail.
The defense theory expressed in the opening statement was simple: Thalia Vezos was mistaken, the purse was planted by some mystery killer, and Blanco had lost his purse (which contained his identification) at least a week before the offense. After presenting two defense witnesses who testified that Blanco had lost his purse shortly before the murder, defense counsel informed the court that two other witnesses (Romero and Gonzalez) would not be called on this issue and that Blanco disagreed with the decision not to call the two witnesses. Attorney Tenbrook informed the court:
I explained to him, or tried to explain to him through Mr. Rodriguez and the interpreter that as far as any witnesses--of course, with the exception of the defendant--it's up to the defense counsel to decide which witnesses to call and which witnesses not to call; that in my mind that is a tactical decision, and I don't have my clients telling me who to call and who not to call, with of course the exception of themselves they have an absolute right to make that decision.
He's asked me to bring this to your attention. I'm not quite sure why, but I'm bringing it to your attention at this time.
I'm not going to call them as long as I'm the attorney trying this case, and apparently there is a disagreement about that. 7
The trial court thought the disputed testimony should be proffered so Blanco "can't raise it at a later time and indicate you were incompetent counsel for not calling these people...." 8
The court asked counsel if further discussion with Blanco might be fruitful. Tenbrook responded: "Considering I can't talk directly with him, it's hard." 9 Rather than resolving the issue immediately, the trial judge told defense counsel to call other witnesses while the pertinent question was mulled over. The judge's preliminary decision was to side with counsel and not the defendant:
I think you are right in what to do but I mean--not factually--I mean as far as your right and his right, but I may even want to double check that. 10
After another witness briefly testified, Blanco took the stand. His testimony was difficult to follow, and there were evident translation problems. After this testimony, the court and counsel held a bench conference off the record.
Following a recess, counsel returned and told the trial court in the presence of Blanco that during the recess the attorney told another lawyer in an elevator that "I had already received some condolences about the case...." 11 He was afraid jurors had heard the comments, and he wished to place the matter on the record.
The state's attorney, Satz, then raised the issue again of whether Blanco should be allowed to call witnesses. Tenbrook stated that there were only two other possible defense...
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