Demps v. Wainwright
| Decision Date | 02 December 1986 |
| Docket Number | No. 85-3985,85-3985 |
| Court | U.S. Court of Appeals — Eleventh Circuit |
| Parties | Bennie E. DEMPS, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections, and Jim Smith, Attorney General, State of Florida, Respondents-Appellees. |
Deborah A. Ellis, Morris Dees, J. Richard Cohen, Montgomery, Ala., for petitioner-appellant.
Mark C. Menser, Asst. Atty. Gen., Tallahassee, Fla., for respondents-appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before FAY, JOHNSON and CLARK, Circuit Judges.
Bennie E. Demps, (hereinafter petitioner), appeals from a denial of his petition for habeas corpus on the following grounds: (1) that the district court erred in dismissing petitioner's claim that the state failed to reveal a deal with its key witness, (2) that the district court erred in dismissing petitioner's claim that the trial court unconstitutionally limited the cross examination of the state's key witness, and (3) that the district court erred in refusing to grant an evidentiary hearing on petitioner's claim that the state substantially interfered with a defense witness. We affirm the denial of petitioner's claim that the state failed to reveal a deal with its key witness, but for reasons other than those advanced by the district court. We also affirm the district court with respect to the cross examination and witness interference claims.
On September 6, 1976, personnel at the Florida State Prison (hereinafter FSP) found Alfred Sturgis, a prisoner, in his cell bleeding from stab wounds. En route to the hospital where he would later die, Sturgis gave a dying declaration naming his three assailants: Harry Mungin, James Jackson and petitioner, all fellow inmates. 1 At the time of the crime, petitioner was at FSP serving sentences for two prior first degree murder convictions and for convictions from various other crimes. Petitioner had in fact been sentenced to death in connection with his two previous murder convictions, however, this sentence was later reduced pursuant to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
In addition to the dying declaration of Sturgis, the state's case against the three defendants included the testimony of the sole eyewitness to the crime, inmate Larry Hathaway. Hathaway corroborated Sturgis' dying declaration by testifying at trial that, as he passed along a corridor at FSP, he witnessed Mungin standing in a cell doorway, apparently acting as a lookout. As Hathaway walked past Mungin, he noticed petitioner was holding Sturgis as Jackson stabbed him. Fearing that other inmates would retaliate (Sturgis was apparently killed for being a "snitch"), Hathaway first informed investigators he knew nothing of the Sturgis killing. Prior to trial, another inmate, Michael Squires, informed petitioner's co-defendant, Mungin, that he had evidence impeaching Hathaway's testimony. According to Squires, Hathaway had confided he was not a witness to the killing and knew nothing about the incident. Subsequently, Squires was listed as a defense witness for petitioner and his co-defendants. The record reveals, however, that neither petitioner or his co-defendants made any attempt to have Squires testify at trial.
During the trial, Hathaway was called as a witness by the state to give his eyewitness On March 16, 1978, petitioner and his co-defendants were convicted of the first-degree murder of Sturgis. The jury recommended the death penalty for petitioner, and on April 17, 1978, the trial court sentenced petitioner to death by electrocution. The Florida Supreme Court affirmed on appeal. Demps v. State, 395 So.2d 501 (Fla.1981). The United States Supreme Court denied certiorari on October 13, 1981. Demps v. Florida, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981).
testimony. Prior to Hathaway's testimony, the trial court conducted an in-chambers hearing to determine the scope of permissible cross-examination of Hathaway by defense counsel. Counsel for petitioner argued the state had promised Hathaway a transfer with his homosexual lover, Robert Zeigler, 2 to another correctional institution in exchange for Hathaway's testifying on behalf of the state. The trial court allowed cross-examination of Hathaway with respect to petitioner's claim that Hathaway was to be transferred with Zeigler in exchange for Hathaway's testimony. The trial court denied the petitioner's request to raise the homosexuality issue finding it inflammatory and irrelevant, but allowed petitioner to establish that Hathaway and Zeigler were "very close friends."
Petitioner initiated post-conviction proceedings pursuant to Fla.R.Crim.P. 3.850, 3 arguing, inter alia, that there was improper inducement of Hathaway's testimony by state officials and that the state through the Department of Corrections interfered with a defense witness, Michael Squires. This was the first time petitioner raised the claim of state interference with Squires' decision to testify. The trial court denied petitioner's motion without a hearing. The Florida Supreme Court reviewed the trial court's summary rejection and affirmed the trial court on all of petitioner's claims except the claim of state interference with defense witness, Squires. Demps v. State, 416 So.2d 808, 809 (Fla.1982). The case was remanded for an evidentiary hearing on petitioner's claim of state interference with Squires. Id. at 810. After the evidentiary hearing, the trial court found petitioner had failed to prove his claim of state interference with Squire's testimony "by any believable evidence." This decision was affirmed on appeal. Demps v. State, 462 So.2d 1074 (Fla.1984). Petitioner then filed for a writ of habeas corpus in the United States District Court for the Middle District of Florida alleging: (1) that the state failed to reveal a deal with Hathaway, (2) the trial court erred in limiting the cross-examination of Hathaway and, (3) that the state interfered with defense witness Squires. After oral argument, the district court denied relief. Subsequently, petitioner appealed to this court.
In the district court, petitioner again argued the trial court erred in disallowing any reference to Hathaway's homosexual relationship with Zeigler. Petitioner's position is that the state transferred Hathaway and Zeigler in exchange for Hathaway's testimony. This claim was first raised during the state trial in an in-chambers conference prior to petitioner's cross-examination of Hathaway. During this conference, the following colloquy occurred between the court and counsel. Mr. Carroll (counsel for petitioner): .. what we're saying is that they have bought their testimony by getting a transfer and that the testimony that they are giving ...
The Court: Well you can talk about getting transferred, I'm not going to prohibit you from asking about that.
Mr. Carroll: The reason we need to get into their relationship is because that is the bottom line of their transfer, that is why they wanted a transfer.
Mr. Elwell (counsel for the state): Where is that supported other than your statement?
We are ... unpersuaded that the [trial] court erred in forbidding reference to Larry Hathaway's homosexuality on cross-examination. A trial judge enjoys broad discretion in determining the permissible scope of cross-examination. Ho Yin Wong v. State, 359 So.2d 460 (Fla. 3d DCA 1978); Baisden v. State, 203 So.2d 194 (Fla. 4th DCA 1967). The trial court here quite properly concluded that the inflammatory and prejudicial effect of evidence relating to Hathaway's homosexuality far outweighed its dubious relevance. See Proffitt v. State, 315 So.2d 461 (Fla.1975).
Id. at 505. Petitioner then moved for post conviction relief pursuant to Fla.R.Crim.P. 3.850 alleging improper inducement, on behalf of the state, regarding Hathaway's testimony. The trial court summarily rejected petitioner's claim. The Supreme Court of Florida affirmed the trial court with respect to petitioner's claim of improper state inducement regarding Hathaway's testimony, Demps, 416 So.2d 808, 809 (Fla.1982), stating:
The fourth claim is that the state illegally solicited the testimony of its central witness, Larry Hathaway, through inducements. This claim was effectively raised on direct appeal when appellant attacked the trial court's disallowance of evidence showing Hathaway was homosexual and that his testimony was given in exchange for a transfer to a prison with his lover. See Demps v. State, 395 So.2d at 504.
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