Davis v. Singletary

• Decision Date: 11 August 1997
• Docket Number: No. 94-2872,94-2872
• Parties: 11 Fla. L. Weekly Fed. C 315 Allen Lee DAVIS, Petitioner-Appellant, v. Harry K. SINGLETARY, Jr., Secretary, Florida Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1471

119 F.3d 1471

11 Fla. L. Weekly Fed. C 315

Allen Lee DAVIS, Petitioner-Appellant, v. Harry K. SINGLETARY, Jr., Secretary, Florida Department of

Corrections, Respondent-Appellee.

No. 94-2872.

United States Court of Appeals, Eleventh Circuit.

Aug. 11, 1997.

Stephen M. Kissinger, Tallahassee, Florida, for Petitioner-Appellant.

Mark C. Menser, Gypsy Cowheard Bailey and Mark S. Dunn, Asst. Attys. Gen., Tallahassee, Florida, for Respondent-Appellee.

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

Before EDMONDSON, BIRCH and CARNES, Circuit Judges.

CARNES, Circuit Judge:

Allen Lee Davis was convicted and sentenced to death in Florida for the brutal murders of Nancy Weiler, her ten-year-old daughter Kristina, and five-year-old daughter Katherine. The murders occurred in the Weiler home in Jacksonville, Florida, on May 11, 1982.

In denying Davis' petition for a writ of habeas corpus, 28 U.S.C. § 2254, the district court issued a detailed opinion thoroughly discussing the extensive procedural history of the case, the relevant facts, and the legal issues Davis raised in the district court. See Davis v. Singletary, 853 F.Supp. 1492 (M.D.Fla.1994). Because that opinion is published, except where necessary we will not repeat here what has been said there. Most of the issues Davis has raised before us on appeal from the district court's denial of habeas relief concern his death sentence, but some go to the validity of his murder convictions. We will first address those guilt stage issues.

I. THE GUILT STAGE ISSUES

A. THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM RELATING TO THE INSANITY DEFENSE

Although he raised additional ones in the district court, 853 F.Supp. at 1509-10 n. 7, in this Court Davis presses only two guilt stage ineffective assistance of counsel issues.

The first such claim Davis presses here is that trial counsel was ineffective for failing to investigate and present an insanity defense. In support of that claim, Davis proffered to the district court a report of Dr. Harry Krop, a licensed psychologist, who stated his opinion that Davis had been insane at the time of the offense in 1982. Dr. Krop's report was generated in 1986, which was three and one-half years after Davis was convicted. See 853 F.Supp. at 1543. Davis contends that the allegations of his complaint, backed up by Dr. Krop's report, at least entitled him to an evidentiary hearing on the issue.

However, we have held that a habeas petitioner is not entitled to an evidentiary hearing on a claim, even one supported by an affidavit, where the record conclusively establishes that he is not entitled to relief on that claim. See Spaziano v. Singletary, 36 F.3d 1028, 1037 (11th Cir.1994) (holding the district court had not erred in denying an evidentiary hearing, because "the record trumps the Schwarz affidavit and conclusively shows that this claim is without merit"); see also Bolender v. Singletary, 16 F.3d 1547, 1565 n. 25 (11th Cir.1994) (rejecting an affidavit that was inconsistent with what a review of the record revealed); Stano v. Dugger, 901 F.2d 898, 899 (11th Cir.1990) ("The petitioner will not be entitled to an evidentiary hearing when his claims are ... 'contentions that in the face of the record are wholly incredible.' ") (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977)). Here, the record of Davis' prior state court proceedings, including his trial, and the record of the three-day evidentiary hearing the district court held on related issues involving Davis' mental state, collectively refute this claim to such an extent that Davis is not entitled to an evidentiary hearing on it. See, e.g., 853 F.Supp. at 1530-48.

Davis was originally represented by two assistant public defenders, who had to withdraw because of a conflict of interest. Experienced criminal defense attorney Frank Tassone was then appointed to represent Davis. During the course of a number of interviews, Davis, though uninvited to do so, told Tassone the details of the crime. When asked at the evidentiary hearing in the district court what Davis had told him about why he had picked the Weilers to rob, and what had happened once Davis was inside their home, Tassone testified:

He noted that Mr. Weiler's--excuse me that Mr. Davis's mother and stepfather resided next door or within two houses of the Weiler home. He had noticed that Mr. Weiler traveled a lot, he didn't know what type of work he did.

He noted that there were two children that were in the home with Mrs. Weiler. And I believe this occurred late in the afternoon. He entered the home, and prior he had taken a handgun that his stepfather had in the kitchen. He indicated that, I think, he surprised and confronted Mrs. Weiler and the children and attempted to engage them in some conversation. She essentially ordered Mr. Davis out of the house, at which point Mr. Davis--and I'm not too sure of the scenario, which occurred first, either hit Mrs. Weiler with the weapon. I remember him telling me that Mrs. Weiler told her children to run. And then he told me that, how one of the children was killed in the bedroom.

H.Tr. at 123-24. Tassone further testified that Davis had related to him how he killed one of the children:

She was bound with her hands behind her back, that she was hit, I believe, in the head with the barrel of the gun, or the grips on the gun, and I believe she was then shot.

....

I think there was substantial crying and screaming by the children. I can't remember if there was any other conversation.

Id. at 124. Davis told Tassone "the gory details of a rather grizzly homicide scene." Id. at 196-97. He also told Tassone why he had committed the crime:

When Mr. Davis first talked to me about that, he said something snapped after he got inside the house. In subsequent conversations he indicated that he felt that there were items in the house that could be taken. And I think that was from the nature of the neighborhood, that it was an upper middle class neighborhood.

Id. at 124-25. Davis described to attorney Tassone how he had disposed of the murder weapon, and what had happened to the Nikon camera he stole from the house. See id. at 125.

By the time Tassone entered the case, Davis' prior attorneys had arranged for him to be examined by Dr. Ernest Miller, a qualified forensic psychiatrist who had conducted thousands of forensic evaluations over the course of his career. 853 F.Supp. at 1547; H.Tr. at 251. They selected Dr. Miller because he was a leading expert in the area, and they respected his opinion. H.Tr. at 247-48.

After thoroughly interviewing, examining and testing Davis, once with the use of sodium Amytal, and conducting neurological screening and administering an electroencephalogram, Dr. Miller concluded that Davis had a normal I.Q., was competent to stand trial, "[c]ertainly he was not psychotic," H.Tr. at 253-70, and there was no insanity defense for him. See 853 F.Supp. at 1537-38. Miller's diagnosis was that Davis was an antisocial personality, and that he also had a psychosexual disorder, pedophilia, which means that "children are the primary sexual object of Mr. Davis." H.Tr. at 272-73. The crime was not, in Dr. Miller's opinion, the product of insanity but instead was the product of Davis' desire for money; he had chosen the house he did because it looked like a good place to rob. H.Tr. at 265, 271.

Even after receiving the unequivocally negative report from Dr. Miller, Tassone persisted in his effort to build a mental state defense. He successfully moved the court to appoint a neurological expert, because he "wanted to make absolutely certain that there was no type of chronic or congenital brain damage or brain dysfunction that Mr. Davis was suffering from." H.Tr. at 150-51. As a result of Tassone's efforts, the court appointed Dr. Glenn Pohlman, a neurologist. After examining, testing, and questioning Davis in detail, Dr. Pohlman issued a written report finding that Davis was normal in all respects except for reduced hearing due to a large amount of ear wax. Otherwise, Dr. Pohlman found Davis had a "normal neurological examination, a normal neurological history and ... a normal electroencephalogram." 853 F.Supp. at 1537-38.

Even in the face of Dr. Miller's and Dr. Pohlman's reports, Tassone went further. "Out of an abundance of caution," he moved the court to appoint yet another expert, a psychologist or another psychiatrist to examine and evaluate Davis. That motion was denied. H.Tr. at 154. Tassone made that effort even though Davis had never said anything to indicate he was mentally impaired. H.Tr. at 128-31.

In spite of all Tassone did, Davis contends that he rendered ineffective assistance of counsel because he did not produce and utilize expert opinion testimony, such as that outlined in Dr. Krop's report. If given an evidentiary hearing, Davis argues he could prove Dr. Krop's opinion that Davis was insane at the time of the offense and thereby establish that attorney Tassone rendered ineffective assistance in this respect. No evidentiary hearing is necessary to demonstrate that this contention is meritless. First, we have held more than once that the mere fact a defendant can find, years after the fact, a mental health expert who will testify favorably for him does not demonstrate that trial counsel was ineffective for failing to produce that expert at trial. See, e.g., Horsley v. State of Alabama, 45 F.3d 1486, 1495 (11th Cir.1995) ("That experts were found who would testify favorably years later is irrelevant."); Elledge v. Dugger, 823 F.2d 1439 (11th Cir.1987). Second, attorney Tassone's futile efforts to develop an insanity defense in this case exceed the efforts of attorneys in other cases where we have rejected ineffective assistance claims relating to insanity defense. See, e.g., Bertolotti v. Dugger, 883 F.2d 1503, 1509-15 (11th Cir.1989); Stephens v. Kemp, 846 F.2d...