Daugherty v. Dugger, 87-3707

Citation839 F.2d 1426
Decision Date12 February 1988
Docket NumberNo. 87-3707,87-3707
PartiesJeffery Joseph DAUGHERTY, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, and Robert A. Butterworth, Attorney General, State of Florida, Respondents-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

John P. Dean, Donovan, Leisure, Newton & Irvine, Washington, D.C., for petitioner-appellant.

Richard Martell, Asst. Atty. Gen. of Florida, Daytona Beach, Fla., for respondents-appellees.

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

Before RONEY, Chief Judge, HILL and HATCHETT, Circuit Judges.

PER CURIAM:

Jeffery Joseph Daugherty, the appellant, appeals the district court's denial of his petition for writ of habeas corpus. Challenging

only his sentence, Daugherty contends that: (1) his lawyer's failure to object to a jury instruction and to introduce expert psychiatric testimony constituted ineffective assistance of counsel; (2) the district court failed to consider evidence of nonstatutory mitigating circumstances; and (3) the prosecution exercised its discretion arbitrarily in seeking the death penalty. We affirm.

FACTS

Jeffery Joseph Daugherty and his girl friend, Bonnie Heath, traveled from Michigan to Florida in January, 1976. During the trip, Daugherty committed a series of murders and armed robberies. In February, 1976, he robbed a convenience store killing an attendant and seriously wounding the attendant's husband.

In March, in Melbourne, Florida, Daugherty and Heath picked up Lavonne Sailer who was hitchhiking. After taking her to an isolated area, Daugherty ordered Sailer to get out of the automobile. Daugherty robbed Sailer of $15, then shot her five times in the back of the head at close range with a 22 caliber pistol. For the next twenty days, Daugherty and Heath committed a series of murders and robberies. Prior to his conviction and sentence for the Sailer murder, Daugherty received sentences for these additional crimes.

PROCEEDINGS

Daugherty pleaded guilty to the first-degree murder, robbery, and kidnapping of Sailer. The court empaneled a jury to recommend a sentence for the murder. The state presented evidence concerning the details of the murder and of convictions Daugherty received for other murders, robberies, and assaults committed during the crime spree. The jury recommended a sentence of death. The judge imposed the death sentence for the murder and consecutive life sentences for the robbery and kidnapping. In support of the death sentence, the state trial court found two statutory aggravating circumstances and no statutory or nonstatutory mitigating circumstances. As aggravating circumstances, the trial court found Sailer's murder "was committed for pecuniary gain" and that Daugherty "was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person." Fla.Stat. Sec. 921.141(5)(b) and (f). The trial court listed the previous convictions it relied upon:

(1) First degree murder conviction for the Flagler County, Florida killing of a woman in her sixties. Daugherty shot her in the left shoulder and right temple while robbing her.

(2) Conviction for the stabbing murder of a woman committed while Daugherty robbed her place of business in Volusia County, Florida.

(3) While robbing a gas station Daugherty shot the young attendant twice in the side, once in the bridge of the nose, and once under the chin. He received convictions for criminal homicide, criminal conspiracy, robbery and crimes committed with firearms.

(4) In Altoona, Pennsylvania, Daugherty robbed a music store clerk with a firearm, assaulting the woman until she lost consciousness. He received convictions for robbery, aggravated assault, simple assault and crimes committed with firearms.

(5) Daugherty received additional convictions in Pennsylvania for aggravated and simple assault, burglary, robbery and crimes committed with firearms.

(6) In Virginia Daugherty received convictions for armed robbery and using a firearm while committing a felony.

(7) Daugherty killed a convenience store clerk by shooting her in the body and head. He received convictions for criminal homicide, criminal conspiracy, and robbery.

At the sentencing hearing, Daugherty testified about the crimes he had committed, his remorse for the murders, his childhood, and his religious conversion. A prison chaplain testified to the sincerity of Daugherty's religious beliefs. The jury unanimously recommended a sentence of death, which the trial court imposed and which, on direct appeal, the Florida Supreme Daugherty then filed a motion for post-conviction relief in the Circuit Court for Brevard County, Florida. After an evidentiary hearing, the court denied the motion, and the Florida Supreme Court subsequently affirmed. On August 20, 1987, Daugherty filed his third petition for writ of certiorari seeking review of this latest decision of the Florida Supreme Court. Then on August 24, 1987, the Governor of Florida signed a death warrant. Daugherty's execution was scheduled for October 15, 1987. In mid-September, 1987, Daugherty unsuccessfully moved the Florida Supreme Court for stay of execution. Daugherty then filed a petition for writ of habeas corpus in the federal district court. The district court denied his petition. On October 13, 1987, this court granted Daugherty an indefinite stay of execution to allow review of the district court's order.

Court affirmed. The United States Supreme Court denied Daugherty's petition for writ of certiorari. The Florida Supreme Court then denied Daugherty's petition for writ of habeas corpus without requiring a response from the state. Daugherty sought review of this denial through another petition for writ of certiorari. The United States Supreme Court also denied relief.

ISSUES

Daugherty presents four issues on appeal. First, he contends that he received ineffective assistance of counsel at the sentencing hearing because his lawyer failed to object to an unconstitutional instruction to the jury defining one of the statutory aggravating circumstances. Second, he contends that he received ineffective assistance of counsel when his lawyer failed to arrange for a psychological evaluation and failed to introduce expert psychiatric testimony at the hearing. Third, he contends that the district court failed to consider nonstatutory mitigating circumstances. Fourth, he contends that the government's request for the death penalty amounted to an arbitrary exercise of prosecutorial discretion.

DISCUSSION
1. Ineffective Assistance: The Sentencing Instruction

Daugherty contends he received ineffective assistance of counsel when his lawyer failed to object to the sentencing court's jury instruction defining one of the statutory aggravating circumstances. The statute expresses the circumstance as follows: "The capital felony was especially heinous, atrocious, or cruel." Fla.Stat. Sec. 921.141(5)(h). The trial court defined for the jury "heinous, atrocious, or cruel" as follows:

Heinous means extremely wicket [sic] or shockingly evil. Atrocious means outrageously wicked and foul. Cruel means designed to inflict a high degree of pain. Utter indifference to or adjoined [sic] of the suffering of others, pitiless. 1

Daugherty contends that from the court's instruction, the jury might have determined the killing, by five gunshot wounds to the head, constituted a heinous, atrocious, or cruel murder despite evidence that the first gunshot would have rendered the victim unconscious; therefore, she was unable to suffer during the infliction of the other four gunshots.

To prove ineffective assistance of counsel, Daugherty must show that the instruction was improper, that a reasonably competent attorney would have objected to the instruction, and the failure to object was prejudicial. See Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674, 693 (1984).

Because our task is not to grade counsel's performance, but to determine whether counsel's performance impaired the defense, we resolve this issue solely under the prejudice prong of Strickland, 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699. To determine whether Daugherty was prejudiced by the instruction, we assume that it was unconstitutionally vague, that reasonably effective counsel would have objected to the instruction, that the jury did in fact find the murder "especially heinous, atrocious, or cruel," and that had the jury been properly instructed, it would not have found the murder "especially heinous, atrocious, or cruel." Given these assumptions, the narrow issue becomes whether the evidence of statutory aggravating circumstances, other than of an "especially heinous, atrocious, or cruel" murder, so clearly outweighs the evidence of statutory and nonstatutory mitigating circumstances that no reasonable probability exists that the sentencing jury would not have recommended a sentence of death had it been properly instructed. Strickland, 466 U.S. at 695, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. Strickland also involved a Florida death row inmate's federal habeas corpus petition challenging the effectiveness of his counsel at the sentencing proceeding, which followed the inmate's plea of guilty to murder. As stated in Strickland,

when a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer--including an appellate court, to the extent it independently reweighs the evidence--would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.

Strickland, 466 U.S. at 695, 104 S.Ct. 2069, 80 L.Ed.2d at 698. The Supreme Court defined a reasonable probability as "a probability sufficient to undermine confidence in the outcome." Strickland, ...

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