Bolender v. Dugger

• Decision Date: 15 February 1991
• Docket Number: No. 90-2262-CIV.,90-2262-CIV.
• Citation: 757 F. Supp. 1400
• Parties: Bernard BOLENDER, Petitioner, v. Richard DUGGER, Respondent.
• Court: U.S. District Court — Southern District of Florida

757 F. Supp. 1400

Bernard BOLENDER, Petitioner, v. Richard DUGGER, Respondent.

No. 90-2262-CIV.

United States District Court, S.D. Florida.

February 15, 1991.

COPYRIGHT MATERIAL OMITTED

Billy H. Nolas, Tallahassee, Fla., for petitioner.

Fariba Komeily, Asst. State Atty., Miami, Fla., for respondent.

MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

MORENO, District Judge.

Bernard Bolender petitions the court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting that his convictions and sentences of death were obtained in violation of the Fifth, Sixth, Eighth and Fourteenth amendments to the United States Constitution. Specifically, Bolender alleges, inter alia, that he was denied the right to have non-statutory mitigating evidence fully investigated, developed, presented and considered due to the instructions and standards then in effect, and to the effective assistance of counsel at sentencing.

Bolender was indicted on four counts of first degree murder, four counts of kidnapping and four counts of armed robbery for the torture slaying of four alleged drug dealers. On April 25, 1980, Bolender was convicted of all charges, and after a sentencing hearing on the same day, the jury unanimously recommended life imprisonment. At the sentencing hearing, defense counsel declined to present further testimony after being offered an opportunity to do so. Circuit Judge Richard Fuller overrode the jury's recommendation and on May 7, 1980, entered written findings in support of the death sentence.

FACTUAL BACKGROUND

Bolender appealed to the Florida Supreme Court which affirmed Bolender's convictions and sentences. Bolender v. State, 422 So.2d 833 (Fla.1982), cert. denied, Bolender v. Florida, 461 U.S. 939, 103 S.Ct. 2111, 77 L.Ed.2d 315 (1983). The facts leading to Bolender's conviction and sentencing, as established by the Florida Supreme Court, are summarized as follows:

On the evening of January 8, 1980, Bolender and co-defendants Paul Thompson and Joseph Macker were at Macker's residence when two of the victims, John Merino and Rudy Ayan, arrived pursuant to a previous arrangement with Bolender. An argument erupted and Bolender, armed with a gun, ordered the two unarmed victims to strip. A third victim, Scott Bennett, arrived with a kilogram of cocaine and was brought into the house at gunpoint by Thompson. Macker, searching outside for any additional persons, noticed a car driving back and forth in front of the house. After Macker made a futile attempt to persuade the driver to enter the house, Thompson ordered Merino to get dressed and assist him in luring the driver, Nicomedes Hernandez, into the house. The defendants subsequently found over $2,000 in the car.

The defendants, at Bolender's direction, ordered Bennett and Hernandez to strip and robbed all four of their jewelry. Bolender threatened to kill all four victims if they did not reveal the location of an additional twenty kilograms of cocaine. Bolender proceeded to torture and terrorize the victims in an attempt to obtain their cocaine. Bolender kicked the victims and beat them with a baseball bat. Bolender burned Hernandez' back with a hot knife and shot him in the leg in an attempt to make him talk. All of the victims were repeatedly stabbed with knives throughout their bodies. The victims continued to insist, however, that they only had one kilogram of cocaine and not the twenty that Bolender wanted.

The victims were then wrapped in sheets, rugs, bedspreads, and the material from a beanbag chair, and placed in the car Hernandez had been driving. At approximately 4:30 a.m., Bolender and Thompson abandoned the car, with the victims inside, at the side of I-95, a short distance past an entrance ramp. They poured gasoline on the vehicle and surrounding grass, igniting the gasoline as they left. Merino was still alive at this point although the others were, presumably, dead. Passing motorists noticed the flames and were able to extinguish the fire. On January 13, 1980, Bolender and Macker were arrested for the murders.

TRIAL COURT'S FINDINGS IN SUPPORT OF THE DEATH PENALTY

The Trial Judge considered as aggravating circumstances: (1) Bolender's prior record, including possession of burglary tools, sale of cocaine and gun charges; (2) Bolender's testimony that he had been a large cocaine dealer and had been involved in attempted cocaine ripoffs involving large numbers of armed participants; (3) that in committing the torture murders, Bolender knowingly created a great risk of death to many persons, including Mrs. Macker, who was seven months pregnant; (4) that Bolender exercised domination over his co-defendants in the shooting, stabbing and killing of the victims; (5) that the victims were bound and gagged and forced to lie on the floor semi-naked; (6) Mr. and Mrs. Macker's fear for their own lives and the lives of four other persons located within their home at the time of the murders; (7) that the capital felonies were committed during the perpetration of a robbery and kidnapping and were committed for pecuniary gain; (8) that the defendants put great effort in attempting to make certain that the crimes would go undetected by removing and attempting to destroy the bloodied carpeting and other damaged items in the house, discarding the guns, destroying the bodies of the victims by setting the car on fire, instructing witnesses to remain silent regarding the incident and making arrangements to install new carpeting and paint the house; (9) that the crimes were particularly heinous, atrocious and cruel, and were committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification. Specifically, Judge Richard Fuller stated that such acts reflected a complete lack of pity or conscience.

The trial court ultimately concluded, after consideration of all matters presented to it, that: (1) Bolender had a significant history of prior criminal activity; (2) at the time of the murders, Bolender was not under the influence of extreme mental or emotional disturbance and had the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law; (3) the victims neither participated in nor consented to the defendant's conduct; (4) the defendant was a principal participant in the planning and execution of the robberies, kidnappings and murders; (5) Bolender's role was major in the crimes committed and he, personally, was responsible for most of the maiming, torture and deaths of the victims; (6) there was nothing to suggest that Bolender was acting under duress or substantial domination of another person; and (7) Bolender's age could not be considered a mitigating factor.

The trial court concluded that sufficient aggravating circumstances existed to impose the death penalty, and no mitigating circumstances existed which could have outweighed the aggravating circumstances.

PROCEDURAL HISTORY

On direct appeal of the convictions and sentences, Bolender raised issues regarding the Court's alleged abuse of discretion in limiting testimony, overriding the jury's recommendation of life and considering improper aggravating circumstances.

The Florida Supreme Court found that the trial court did not abuse its discretion regarding the testimony. As to the allegedly improper jury override, Bolender argued that the jury's recommendation was reasonable because the victims were armed cocaine dealers who may have been planning to rob the defendants, Macker received a comparatively light sentence, and only Macker testified as to who shot, stabbed, and killed the victims. The Florida Supreme Court did not agree, finding

... that the victims were armed cocaine dealers does not justify a night of robbery, torture, kidnapping, and murder. Two of the victims were unarmed and present at the Macker residence because of a previous agreement with Bolender.

The disparity between Bolender's death sentences and Macker's twelve concurrent life sentences is supported by the facts. Bolender acted as the leader and organizer in these crimes and inflicted most of the torture leading to the victims' deaths.... Macker's role was less significant, and there is no evidence that he participated in the stabbing and shooting of the victims. (Citations omitted) .... Based on the evidence and testimony at trial, we agree with the trial court that virtually no reasonable person could differ on the sentence.

Bolender, 422 So.2d at 837.

The Florida Supreme Court further noted that Bolender presented no testimony showing any mitigating circumstance, statutory or nonstatutory. In the absence of any evidence of mitigating circumstances, disapproval of two aggravating factors does not require reversal of the death sentence. Id. at 838, citing Demps v. State, 395 So.2d 501 (Fla.1981), cert. denied, Demps v. Florida, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981).

Bolender then filed a Petition for Writ of Certiorari with the United States Supreme Court, which was denied on May 16, 1983. The petition alleged violations of federal constitutional rights which had not been argued to the Florida Supreme Court.

On August 1, 1983, Bolender filed a motion to set aside judgment and sentence pursuant to Rule 3.850, Fla.R.Crim.P., due to ineffective assistance of counsel in failing to obtain Thompson's testimony and failing to present mitigating evidence at the penalty phase. Bolender's first death warrant was signed on January 31, 1984. The trial court issued a stay of execution and ordered an evidentiary hearing.

On January 4, 1985, an evidentiary hearing was held before Circuit Judge Herbert M. Klein on the claim of ineffective assistance of counsel for failure to present mitigating evidence. Judge Klein heard testimony from Bolender's mother and sister as to Bolender's background, and the fact that they had discussed this background with Bolender's trial attorney prior to trial....