Duest v. Singletary
| Decision Date | 15 July 1992 |
| Docket Number | No. 90-6009,90-6009 |
| Parties | Lloyd DUEST, Petitioner-Appellant, v. Harry K. SINGLETARY, JR., Secretary, Florida Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Martin J. McClain, Tallahassee, Fla., for petitioner-appellant.
Celia A. Terenzio, Asst. Atty. Gen., West Palm Beach, Fla., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before TJOFLAT, Chief Judge, KRAVITCH and COX, Circuit Judges.
Petitioner Duest was convicted of the first-degree murder of John Pope and sentenced to death. The Florida Supreme Court affirmed Duest's conviction and sentence on direct appeal, Duest v. State, 462 So.2d 446 (Fla.1985), and denied all post-conviction relief. Duest v. Dugger, 555 So.2d 849 (Fla.1990). Duest now appeals from the district court's denial of a writ of habeas corpus, which petitioner sought on several grounds. We affirm the district court's denial of relief with respect to Duest's conviction for first-degree murder. Because, however, the sentencing jury's consideration of a conviction and sentence later vacated by the Commonwealth of Massachusetts constituted reversible error under the Eighth Amendment and Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), we vacate Duest's death sentence and remand to the district court.
John Pope was last seen alive on February 15, 1982 (President's Day), in Ft. Lauderdale, Florida, and was found dead early the following morning. Duest was arrested April 18, 1982, and on May 21, 1982, was charged by indictment with Pope's murder. During the March 1983 trial, held in Broward County, Florida, Duest relied on an alibi defense, presenting both testimonial and documentary evidence that he had been in Massachusetts throughout President's Day Weekend (February 13-15) 1982 and until April 5, 1982, on which date he had arrived in Florida on a Trailways bus. In response, the prosecution presented seven witnesses, all of whom testified that they had seen Duest in the Ft. Lauderdale area during President's Day Weekend, and some of whom testified that they had seen Duest with Pope hours before the latter was found dead. Although the prosecution suggested that Duest's alibi witnesses had merely confused the dates of his appearance in and departure from Massachusetts, the prosecution never explicitly argued that Duest had not been in Massachusetts on April 5. The jury convicted Duest of first-degree murder on March 18, 1983.
On the following day, the penalty phase of the proceedings commenced. At this time, the government sought, inter alia, to show that Duest's prior criminal record contained two convictions for crimes of violence. Under Florida law, such crimes constitute an aggravating circumstance to be weighed by a sentencing jury against evidence of statutory and nonstatutory mitigating evidence. Fla.Stat.Ann. § 921.141(5)(b). 1 To establish this aggravating circumstance, the prosecution introduced into evidence two convictions from the Commonwealth of Massachusetts: one for armed robbery, and the other for armed assault with intent to murder. 2 After the introduction of the second conviction, the sentencing court spoke to the jury as follows:
State's Exhibit No. 2 is a certified copy from the Commonwealth of Massachusetts. Superior Court, Department of the Trial Court. This is a conviction for armed assault to murder. The defendant pled guilty on January 13, 1971, and was sentenced to a term not exceeding ten years, nor less than five years.
I will read this Indictment to you, also. It says, " .
Trial Transcript at 1574-75. The court gave to the jury no additional facts regarding this conviction other than those contained in the Indictment.
After the jury returned from deliberating over Duest's sentence, it asked to see the criminal records pertaining to Duest's Massachusetts convictions. Id. at 1631. The court proceeded to re-read to the jury each indictment and notice of guilty plea and sentence. Id. at 1631-33. After this second reading, the jury returned to its deliberations, and subsequently recommended a sentence of death by a seven to five vote. It is not clear from the record how much time elapsed between the time the court re-read the prior convictions to the jury and the time that the jury recommended death; the sentencing phase, however, lasted only one day. On April 24, 1983, the trial court accepted the jury's recommendation and sentenced Duest to death. The trial court found four aggravating factors to exist, including the "prior crimes of violence" circumstance listed in Fla.Stat.Ann. § 921.141(5)(b), and none of the statutory mitigating factors listed in Fla.Stat.Ann. § 921.141(6).
The Florida Supreme Court affirmed Duest's first-degree murder conviction and death sentence. Duest v. State, 462 So.2d 446 (Fla.1985). Subsequently, the Massachusetts Court of Appeals vacated Duest's conviction for armed assault with intent to murder on the grounds that the indictment did not charge Duest with conduct sufficient to prove he acted with intent to murder. Commonwealth v. Duest, 26 Mass.App.Ct. 137, 524 N.E.2d 1368 (1988). 3 On October 20, 1988, the armed assault charge against Duest was nolle prossed. Duest then moved for post-conviction relief under Fla.R.Crim.P. 3.850, alleging, inter alia, that the sentencing jury's consideration of Duest's vacated prior conviction in Massachusetts was invalid, and that resentencing was required. While conducting discovery after the filing of that motion, Duest's counsel discovered in the State files containing Duest's personal effects a Trailways bus ticket, bearing no name, showing travel from Boston to Ft. Lauderdale on April 5, 1982. Duest proceeded to amend his 3.850 motion to include a claim that the government, by withholding the bus ticket, had withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that therefore a new trial was necessary. On January 4, 1989, the trial court held evidentiary hearings on the Brady issue and on Duest's claim that the jury's consideration of the vacated Massachusetts conviction required resentencing, but ultimately denied Duest all relief on the 3.850 motion. At the hearings, the State conceded that the defendant had put on a wealth of non-statutory mitigating evidence at trial.
Duest then petitioned for a writ of habeas corpus in state court, alleging, inter alia, (1) the Brady violation referred to supra, as well as other Brady claims; (2) that the sentencing jury's improper consideration of a prior conviction that had subsequently been vacated by the Massachusetts courts entitled Duest to a new sentencing proceeding, under Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988); and (3) ineffective assistance of counsel at the guilt, sentencing and appellate phases of the proceedings.
The Florida Supreme Court denied habeas relief and affirmed the trial court's denial of Duest's motion for Rule 3.850 post-conviction relief. Duest v. Dugger, 555 So.2d 849 (Fla.1990). On the Brady issue, the Court held that although the State had inadvertently failed to furnish the bus ticket to the defense, the introduction of the ticket would not have affected the outcome of the case, given the jury's complete rejection of Duest's alibi defense. Duest v. Dugger, 555 So.2d at 850-51. The Court also rejected Duest's claim under Johnson v. Mississippi, stating that it "believe[d] beyond a reasonable doubt that Duest would still have received a sentence of death without evidence of [the vacated] conviction." Id. at 851. The Florida Supreme Court also denied relief on the remainder of Duest's claims.
Duest then petitioned for habeas relief in Federal District Court, asserting 25 different claims. In an Order dated September 19, 1990, the district court denied relief on all claims, holding that some of the claims were procedurally barred, and that others had no merit. Duest v. Dugger, No. 90-6045-CIV-RYSKAMP (S.D.Fla. Sept. 19, 1990) (hereinafter "September 19 Order"). Duest appeals the district court's determination as to several of these claims. Specifically, Duest makes the following arguments before this court:
(1) Duest is entitled to a new trial in light of the government's withholding of material exculpatory evidence under Brady (Issue I);
(2) Resentencing is appropriate because of the sentencing jury's impermissible consideration of the vacated Massachusetts conviction (Issue II);
(3) An evidentiary hearing on the issue of ineffective assistance of counsel at sentencing must be held in district court (Issue III);
(4) Duest was denied effective assistance of counsel at trial by virtue of his lawyer's failure to object to improper prosecutorial statements during the guilt and sentencing phases (Issue IV);
(5) Duest was denied effective assistance of appellate counsel by virtue of appellate counsel's failure to raise several different issues on appeal (Issue V);
(6) There was insufficient evidence to convict Duest of first-degree murder (Issue VI);
(7) The trial court committed reversible error at sentencing by issuing insufficient...
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