Christopher v. State of Fla.

• Citation: 582 F. Supp. 633
• Decision Date: 13 March 1984
• Docket Number: No. 82-1293-Civ-JLK.,82-1293-Civ-JLK.
• Parties: William D. CHRISTOPHER, Petitioner, v. STATE OF FLORIDA, Respondent.
• Court: U.S. District Court — Southern District of Florida

582 F. Supp. 633

William D. CHRISTOPHER, Petitioner, v. STATE OF FLORIDA, Respondent.

No. 82-1293-Civ-JLK.

United States District Court, S.D. Florida.

March 13, 1984.

COPYRIGHT MATERIAL OMITTED

Joseph Daye, Fort Lauderdale, Fla., for petitioner.

William E. Taylor, Asst. Atty. Gen., Tampa, Fla., for respondent.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

JAMES LAWRENCE KING, District Judge.

On June 15, 1982, a death warrant was signed by the Governor of the State of Florida for the execution of William D. Christopher. Mr. Christopher then filed this Petition for Writ of Habeas Corpus seeking a stay of execution. The stay was granted on June 23, 1982, to permit this court to review the federal constitutional claims of petitioner. 541 F.Supp. 734.

In June of 1982, the United States Court of Appeals had under consideration a case challenging the alleged consideration of ex parte information by Justices of the Florida Supreme Court. The Petitioner Christopher raised this identical issue in his petition and asked for a stay until the appellate process was completed. The Eleventh Circuit Court of Appeals, in Ford v. Strickland, 676 F.2d 434, cert. den. ___ U.S. ___, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983) rejected the contention that the Florida Supreme Court had unconstitutionally considered such information in these cases. This court then proceeded to hold several hearings on all of the issues raised in Mr. Christopher's petition for Habeas Corpus.

FACTUAL BACKGROUND

The tragic events of this case commenced in 1962, with the birth of Norma Sands in Memphis, Tennessee, as the daughter of William D. Christopher and Patricia Sands. Christopher, the petitioner herein, was not married to his daughter's mother and was in prison at the time she was born. Patricia Sands, unable to provide for the baby under these circumstances gave the child to her close friend, Bertha Skillin, to raise. Eventually, Bertha left Memphis and moved to Florida with Norma, all the while maintaining a good relationship with the natural mother, Patricia Sands. Norma met her father, William Christopher, for the first time in the summer of 1977, when she returned to Memphis for a vacation visit with her natural mother. She was thirteen years old at this point in her life.

Norma's next encounter with her father was in 1977, when the petitioner showed up in Naples, Florida, where she was living with her adoptive mother, Bertha Skillin and Bertha's companion, George Ahern. George and Bertha, feeling sorry for the petitioner, invited Christopher to move in with them temporarily until he could find a place to stay.

Within a short period of time Christopher and Norma developed an incestuous relationship, and decided to leave Naples and return to Memphis. Realizing that Bertha would never approve of her teenage adoptive daughter leaving Florida with Christopher, they devised a plan to leave secretly. On the morning of August 21, 1977, Christopher planned to drive Norma to school, returning to the house to pick up their personal belongings while George and Bertha were out and leaving for Memphis after school let out.

Unfortunately for Bertha, she discovered Christopher's plan, confronted him and attempted to call the police. Christopher killed her with a gun shot to the head, and dragged her bleeding body from the kitchen, down the hall, where he concealed it in the bathroom.

Later in the morning, an unsuspecting George Ahern returned from an early morning fishing trip. Without telling Ahern that he had just murdered Bertha and hidden her body in the back bathroom, Christopher asked Ahern for a loan. Ahern agreed and Christopher accompanied him to the Naples Bank where $300.00 was withdrawn from George and Bertha's account and given to the petitioner. After returning to the apartment Christopher and Ahern engaged in an argument resulting in Ahern being knocked to the floor. Ahern ran from Christopher, down the hall and into the bedroom, slamming the door shut. Christopher pushed open the door and shot Ahern twice, once in the arm and once in the head, killing him.

Leaving the two murder victims in the apartment, Christopher then picked Norma up from school and fled to Tennessee where he was apprehended on September 22, 1977. Shortly thereafter, he gave a statement to Memphis police confessing to both murders.

PROCEDURAL BACKGROUND

A. The State of Florida tried petitioner twice for the murders of Bertha Skillin and George Ahern. The first trial, in May 1978 resulted in a hung jury and mistrial. At the second trial, Christopher was convicted by a jury of two counts of first degree murder and on August 18, 1978, he was sentenced to death, as recommended by the jury. The conviction and sentence were affirmed on appeal by the Supreme Court of Florida. 407 So.2d 198 (Fla.1981), cert. den. 456 U.S. 910, 102 S.Ct. 1761, 72 L.Ed.2d 169 (1982). The Florida Supreme Court reviewed the case a second time in June 1982, on an appeal from an order denying a motion to vacate, set aside, or correct sentence and on a petition for writ of error coram nobis. The Florida Supreme Court again upheld the conviction and sentence. 416 So.2d 450 (Fla.1982).

B. In the course of the two appeals, the Florida Supreme Court reviewed thirteen issues:

1. denial of psychological and psychiatric examinations

2. proportionality of sentence

3. admissibility of the polygraph examination

4. consideration of ex parte information by the Florida Supreme Court

5. improper processing of the death warrant

6. selective exclusion of jurors

7. effective assistance of counsel

8. the existence of evidence showing a motive for Norma Sands to have committed the murders

9. the existence of new evidence showing that Norma Sands committed the murders

10. admissibility of the defendant's confession

11. admissibility of evidence of the defendant's sexual relationship with his daughter

12. propriety of the trial court's refusal to order a sodium pentothal examination

13. consideration of aggravating and mitigating factors.

The petitioner Christopher now seeks federal habeas corpus relief asserting eleven constitutional errors. Bearing in mind the words of Justice White,

Under 28 U.S.C. § 2241, a writ of habeas corpus disturbing a state-court judgment may issue only if it is found that a prisoner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3) (1976). A federal court may not issue the writ on the basis of a perceived error of state law. Pulley v. Harris, ___ U.S. ___, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984).

We turn to a consideration of petitioner's contentions.

I. AGGRAVATING AND MITIGATING CIRCUMSTANCES

The Florida death penalty statute was described in Barclay v. Florida, ___ U.S. ___, 103 S.Ct. 3418, 3429, 77 L.Ed.2d 1134 (1983)

Florida has adopted a "trifurcated" procedure for identifying the persons convicted of a capital felony who shall be sentenced to death. See Tedder v. State, 322 So.2d 908, 910 (Fla.1975). Procedurally it consists of a determination of guilt or innocence by the jury, an advisory sentence by the jury, and an actual sentence imposed by the trial judge.

This sentencing procedure was upheld in Proffitt v. Florida, 428 U.S. 242, 248, 96 S.Ct. 2960, 2965, 49 L.Ed.2d 913 (1976) holding:

If a defendant is found guilty of a capital offense, a separate evidentiary hearing is held before the trial judge and jury to determine his sentence. Evidence may be presented on any matter the judge deems relevant to sentencing and must include matters relating to certain legislatively specified aggravating and mitigating circumstances. Both the prosecution and the defense may present argument. .... At the conclusion of the hearing the jury is directed to consider whether sufficient mitigating circumstances exist ... which outweigh the aggravating circumstances found to exist; and ... based on these considerations, whether the defendant should be sentenced to life imprisonment or death. §§ 921.141(2)(b) and (c) (Supp. 1976-1977).¹

The jury's verdict is determined by majority vote. It is only advisory; the actual sentence is determined by the trial judge ...

The trial judge is also directed to weigh the statutory aggravating and mitigating circumstances when he determines the sentence to be imposed on a defendant. The statute requires that if the trial court imposes a sentence of death, "it shall set forth in writing its findings upon which the sentence of death is based as to the facts: (a) that sufficient statutory aggravating circumstances exist ... and (b) that there are insufficient statutory² mitigating circumstances ... to outweigh the aggravating circumstances. §§ 921.141(3) (Supp. 1976-1977)³

The Florida Supreme Court has stated that:

"... The procedure to be followed by the trial judges and juries is not a mere counting process of X number of aggravating circumstances and Y number of mitigating circumstances, but rather a reasoned judgment as to what factual situations require the imposition of death and which can be satisfied by life imprisonment in light of the totality of the circumstances present." ... Elledge v. State, 346 So.2d 998, 1003 (Fla.1977), quoting State v. Dixon, 283 So.2d 1, 10 (Fla.1973). See Barclay v. Florida supra 103 S.Ct. at 3431.

"This determination requires the trial judge to focus on the circumstances of the crime and the character of the individual defendant." Proffitt v. Florida, supra 428 U.S. at 251, 96 S.Ct. at 2966.

If a defendant is sentenced to die, the Florida Supreme Court can review that case in light of other decisions and determine if the death penalty is too great. State v. Dixon, supra at 10.⁴

Petitioner asserts that the Florida courts have not properly construed the law pertaining to aggravating and mitigating circumstances in this case.

A. INSUFFICIENCY OF FINDING OF AGGRAVATION THAT CHRISTOPHER HAD PRIOR CONVICTIONS FOR ATTEMPTED RAPE AND ASSAULT...