Demps v. Dugger

• Decision Date: 28 March 1989
• Docket Number: No. 87-3767,87-3767
• Citation: 874 F.2d 1385
• Parties: Bennie E. DEMPS, Petitioner-Appellant, v. Richard L. DUGGER, as Secretary, Department of Corrections, State of Florida, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1385

874 F.2d 1385

Bennie E. DEMPS, Petitioner-Appellant, v. Richard L. DUGGER, as Secretary, Department of Corrections State of Florida, Respondent-Appellee.

No. 87-3767.

United States Court of Appeals Eleventh Circuit.

March 28, 1989.

As Amended June 13, 1989.

Michael A. Mello, South Royalton, Vt., for petitioner-appellant.

Mark Menser, Asst. Atty. Gen., Tallahassee, Fla., for respondent-appellee.

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

Before FAY, JOHNSON and CLARK, Circuit Judges.

FAY, Circuit Judge:

This appeal concerns the third federal habeas corpus petition filed by Bennie E. Demps, pursuant to 28 U.S.C. Sec. 2254. In 1978, Demps was convicted of the jailhouse murder of a fellow inmate and sentenced to death. His third habeas petition sets forth four claims for relief: 1) Petitioner's capital sentencing proceeding did not comport with Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), or Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and therefore, resentencing is required because the state cannot demonstrate that the error was harmless; 2) The comments made to the sentencing jury diluted their responsibility in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); 3) The state withheld critical exculpatory evidence regarding its witness, Larry Hathaway, in violation of petitioner's sixth, eighth and fourteenth amendment rights; and 4) Petitioner's trial counsel was prejudicially ineffective for failing to impeach Hathaway and for failing to introduce mitigating evidence regarding petitioner's background. The federal district court denied relief on all four claims. ¹ We affirm.

I. Background

A. Facts

This court has already reviewed and set forth the facts giving rise to the petitioner's conviction. See Demps v. Wainwright, 805 F.2d 1426 (11th Cir.1986). We therefore only generally outline the facts established at trial. On September 6, 1976, Alfred Sturgis was found in his cell in Florida State Prison bleeding from stab wounds. On the way to the hospital, Sturgis in a dying declaration told A.V. Rhoden, a correctional officer, that Demps, Jackson and Mungin had been the assailants. At the time of the stabbing, Demps was serving sentences for the first-degree murder of two persons and the attempted murder of another. ²

Inmates Bennie Demps, James Jackson and Harry Mungin were indicted, tried and convicted of first degree murder. At trial, in addition to Rhoden's testimony regarding Sturgis' dying declaration, the state presented testimony of Larry Hathaway, a fellow inmate of the defendants. In exchange for Hathaway's testimony, the state agreed to transfer Hathaway to another correctional institution with his homosexual lover, Robert Zeigler. ³ Hathaway testified that as he walked along a prison corridor, he witnessed Mungin standing in a cell doorway, apparently acting as a lookout. As Hathaway passed by Mungin, he saw Demps holding Sturgis down while Jackson stabbed him. At the sentencing phase of the trial, the jury recommended the death penalty for Jackson and Demps, and life imprisonment for Mungin. The trial judge sentenced Mungin and Jackson to life, but sentenced Demps to death.

B. Procedural Posture

On appeal, the Florida Supreme Court affirmed Demps' death sentence and the United States Supreme Court denied certiorari. Demps v. State, 395 So.2d 501 (Fla.), cert. denied, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981). ⁴ Thereafter, petitioner filed a motion to vacate, set aside or correct the judgment which the state trial court denied without a hearing. ⁵ The Florida Supreme Court affirmed the trial court ruling on all claims except for the petitioner's claim of state interference with a defense witness, which was remanded for an evidentiary hearing. Demps v. State, 416 So.2d 808, 809 (1982). The trial court conducted a hearing and again denied the petitioner's motion. The denial was affirmed on appeal. Demps v. State, 462 So.2d 1074 (Fla.1984).

On March 28, 1985, Demps filed a petition for a writ of habeas corpus in federal district court raising six grounds for relief. ⁶ The district court denied relief on all grounds and this court affirmed. Demps v. Wainwright, 805 F.2d 1426 (11th Cir.1986). The Supreme Court denied certiorari. Demps v. Dugger, --- U.S. ----, 108 S.Ct. 209, 98 L.Ed.2d 160 (1987). On December 17, 1985, the petitioner filed a second writ of habeas corpus alleging that the excusing of jurors opposed to the death penalty denied the petitioner an impartial jury from a cross-section of the community in violation of his sixth and fourteenth amendment rights. The district court dismissed the petition and the petitioner did not appeal.

The Governor of Florida signed a second death warrant and the petitioner's execution was scheduled for Thursday, November 5, 1987 at 7:00 a.m. The petitioner returned to the Florida Supreme Court seeking a stay of execution on the ground that his sentencing proceeding was unconstitutional under the authority of Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). The Florida Supreme Court denied relief, finding the Hitchcock error harmless. Demps v. Dugger, 514 So.2d 1092 (Fla.1987). Following this denial, the petitioner again filed an emergency motion to vacate the sentence in state trial court which was denied. On appeal, the Florida Supreme Court affirmed. Demps v. State, 515 So.2d 196 (Fla.1987). Thereafter, the petitioner filed his third petition for habeas relief in federal district court raising the four issues set forth above. The district court denied relief on all grounds and the petitioner appealed to this court challenging the district court's rulings. We review each issue respectively.

II. Hitchcock Claim

Petitioner first contends that according to Hitchcock the jury instructions unconstitutionally precluded the jury from considering mitigating circumstances not enumerated in the Florida death penalty statute, Fla.Stat. Sec. 921.141 (1975). In Hitchcock, the advisory jury was instructed not to consider, and the sentencing judge refused to consider, evidence of nonstatutory mitigating circumstances. The Supreme Court found this violated petitioner's constitutional right to "present [at the sentencing hearing] any and all relevant mitigating evidence that is available." Hitchcock, supra, at 399, 107 S.Ct. at 1824 (quoting Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986)). The eighth and fourteenth amendments require the sentencer to consider all relevant mitigating evidence in capital cases. Hitchcock, 107 S.Ct. at 1822 (citations omitted); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). ⁷

In this case, the judge gave an instruction functionally identical to that given in Hitchcock. ⁸ Hence, we assume the jury did not consider any nonstatutory mitigating evidence in making their sentencing recommendation. ⁹ However, evidence in the record leads us to conclude that the judge in fact did consider the nonstatutory mitigating evidence in carrying out his role as the primary sentencer. ¹⁰ In this case, we refrain from deciding whether both the judge and the jury must refuse or be prohibited from considering nonstatutory mitigating evidence to constitute a Hitchcock error. ¹¹ Since a harmless error does not merit reversal, we address the preliminary question of whether the alleged Hitchcock error in this case is harmless. ¹²

First, we stress that an alleged Hitchcock error is evaluated on a case-by-case basis. See Knight v. Dugger, 863 F.2d 705 (11th Cir.1988). To determine whether an error occurred and whether it affected the jury requires an indepth review of the entire record. Id. at 708. Further, evaluating whether an error is harmless is governed by the strict Chapman criterion. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The error must be harmless beyond a reasonable doubt. Id. at 24, 87 S.Ct. at 828. To be harmless in the Hitchcock context, the court must determine beyond a reasonable doubt that the proposed mitigating evidence regarding the defendant's character would not have influenced the jury to recommend a life sentence.

In this case, we conclude beyond a reasonable doubt that the proposed mitigating evidence would not have persuaded the jury to recommend life. Petitioner presented four types of evidence which he alleges would have influenced the jury to recommend life. First, petitioner argues that his "honorable military combat service" would have supported a jury recommendation of life. The evidence, however, reflected something quite different than "honorable military combat service." On November 20, 1969, Demps enlisted in the United States Marine Corps for a two year period. His service record revealed one special court-martial conviction and two nonjudicial punishments for five assaults, communication of a threat, and disobeying a lawful order. Due to these offenses, after eleven months of service, Demps received a dishonorable discharge in November, 1970. ¹³ In January, 1979, under a special discharge review program, Demps' dishonorable discharge was upgraded to a general discharge. Contrary to petitioner's allegations that he had served in military combat, the record reflects no evidence indicating any overseas combat experience. Rather, the record shows that Demps had been stationed at Camp LeJeune, North Carolina. We do not believe Demps' military record reflected at all favorably on his character and hence, we are persuaded that the evidence would not have influenced the jury to recommend life.

Second, petitioner presented evidence to the jury of his history of drug abuse and argues that this was evidence which would have mitigated his death sentence. It is true that a history of drug...