Harris v. Dugger

Decision Date16 May 1989
Docket NumberNo. 88-5612,88-5612
Citation874 F.2d 756
PartiesTheodore Christopher HARRIS, Petitioner-Appellant, v. Richard DUGGER, Secretary, Department of Corrections, State of Florida, Robert Butterworth, Attorney General, State of Florida, Respondents-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Daniel L. Rabinowitz, McCarter & English, Lance Cassak, Keith E. Lynott, Newark, N.J., for petitioner-appellant.

Charles M. Fahlbusch, Atty. Gen., Dept. of Legal Affairs, Miami, Fla., for respondents-appellees.

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

Before HILL, VANCE and ANDERSON, Circuit Judges.

HILL, Circuit Judge:

Theodore Christopher Harris, a Florida prisoner convicted of first-degree murder and sentenced to death, appeals the denial of his petition for the writ of habeas corpus. The issues presented are whether the appellant's confession resulted from an illegal arrest and police coercion, in violation of the Fourth and Fourteenth Amendments, and whether Harris' lawyers rendered ineffective assistance of counsel during the penalty phase of his trial, in violation of the Sixth and Fourteenth Amendments.


The victim, Essie Daniels, a seventy-three year old woman, was found dead in her Miami home on the morning of March 22, 1981. An autopsy revealed that she had been stabbed approximately fifty times and had been beaten with a blunt instrument. Police officers found blood spattered over the walls and furnishings of the bedroom, living room and kitchen, indicating that Daniels had attempted to escape the assailant while she was being attacked. A subsequent criminal investigation focused on Theodore Harris as a suspect, and on April 14, 1981, the police arrested the appellant pursuant to a warrant. Harris first denied his involvement in the murder, but after a six hour interrogation, he confessed to having killed the victim.

Harris told the police that he had gone to the victim's home in order to rob her, not to kill her. Upon entering the home, however, Essie Daniels, carrying a kitchen knife in her hand, confronted Harris. A violent struggle ensued, and the victim struck the appellant with the knife first, severely lacerating his hand. Harris then seized the knife, whereupon he repeatedly stabbed the victim. After the attack ended, Harris proceeded to the victim's bedroom, emptied her pocket book, and took approximately $30.

On April 28, 1981, a Dade County, Florida, grand jury indicted Harris for murder in the first degree, as well as for burglary with assault and robbery. Prior to trial, the defense moved to suppress the appellant's confession, and the judge held an evidentiary hearing. At that hearing, Harris argued that the confession had resulted from an unlawful arrest and police coercion. In attacking the arrest, the appellant relied on Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), contending that the investigating police officer had made deliberate misrepresentations of material facts in the affidavit of probable cause used to obtain the arrest warrant. 1 The court rejected this claim, however, finding that Franks had not been satisfied since "there was no deliberate falsity or reckless disregard by the investigating police agencies.... Moreover, assuming arguendo, there even was a falsity or disregard, there remains sufficient contents within the warrant affidavit to support a finding of probable cause."

The appellant also challenged the legality of the confession by arguing that it was involuntary. Evidence at the suppression hearing established that at the time of arrest, Harris had a cast on his right forearm which interfered with his wrists being handcuffed behind his back, as police regulations required. So, the police handcuffed Harris' right elbow to his left wrist behind his back. The appellant remained handcuffed while sitting in an aluminum chair throughout the six hour interrogation. Harris testified that during this time the police beat, tortured and threatened him to obtain his confession. However, police officers testifying for the state denied that Harris had been physically or emotionally abused in any way. The officers stated that Harris stayed calm, unemotional throughout the interrogation, that he never complained of discomfort or pain and did not request an attorney although receiving the warnings mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), several times. The state court found the officers' version of the interrogation more credible and concluded that Harris had confessed voluntarily.

Harris neither testified nor did the defense call any witnesses during the guilt-innocence phase of the trial. The jury convicted the appellant of first-degree murder, burglary and robbery. During the penalty phase of the trial, the state presented medical testimony concerning the nature of the victim's injuries and the resulting pain that she had suffered. The state introduced additional evidence that Harris had previously been convicted of robbery and was on parole at the time of the murder. Harris presented no evidence in mitigation or rebuttal. Subsequently, the jury rendered a recommendation of death by a vote of eight to four, and the judge imposed the death penalty. 2 The Supreme Court of Florida affirmed the convictions and the death sentence. Harris v. State, 438 So.2d 787 (Fla.1983), cert. denied, 466 U.S. 963, 104 S.Ct. 2181, 80 L.Ed.2d 563 (1984). The court agreed that Harris had not satisfied Franks v. Delaware in proving an unlawful arrest and found that the record supported the trial court's conclusion that the confession was voluntary. Id. at 793-94. Thereafter, Harris filed a petition for the writ of habeas corpus in the Supreme Court of Florida alleging ineffective assistance of appellate counsel which the court denied. Harris v. Wainwright, 473 So.2d 1246, 1247 (Fla.1985).

The appellant then filed a motion for post-conviction relief in the state trial court pursuant to Florida Rule of Criminal Procedure 3.850. He alleged, inter alia, that his two trial lawyers, Alfred Williams and Pedro Echarte, had rendered ineffective assistance of counsel during the penalty phase of his trial by failing to investigate, prepare or present any mitigation evidence. The state court held an evidentiary hearing in June, 1988, at which Williams and Echarte testified. Both lawyers stated that neither one of them had properly investigated Harris' background. Neither lawyer had obtained Harris' school or military records. Neither one had traveled to Jacksonville, Florida, Harris' hometown, to meet the appellant's parents, sister, brother-in-law, niece, friends, employers and neighbors to learn whether they could offer beneficial mitigation evidence. In fact, the lawyers' testimony demonstrated that, prior to the day of sentencing, neither had performed any investigation in advance for the penalty hearing. Their testimony indicates that their failure to investigate occurred because each believed that the other was preparing the penalty phase of the trial:

Q. Now, Mr. Williams, who was responsible for the preparation of the penalty phase of this case as between yourself and Mr. Echarte?

A. Mr. Echarte.


Q. Mr. [Echarte], between you and Mr. Williams, which of you was responsible for the preparation of the penalty phase in this trial?

A. Mr. Williams.

Other testimony indicated that the lawyers employed an investigator to assist them in preparing the Harris case. However, no evidence demonstrated that Williams or Echarte ever received or relied on background information developed by the investigator concerning the penalty phase. Williams testified, for example, that he assumed that Echarte and the investigator were working jointly to develop mitigation evidence. But, Echarte testified to the contrary, stating that he neither assigned the investigator to research Harris' background nor did the work himself. 3

As a result, the lawyers had no evidence to offer in mitigation at the commencement of the sentencing hearing on Saturday, September 26, 1981. Williams thus requested a continuance, which the court granted until Tuesday, September 29. In that time, the record demonstrates that the attorneys attempted to contact Harris' ex-wife and one of his Miami friends to obtain some mitigation testimony. However, the ex-wife's hospitalization in Jacksonville precluded her from appearing at the penalty hearing and the friend, according to Williams, refused to testify. The record is unclear as to whether the lawyers made any other attempts to contact witnesses. Thus, at the Tuesday hearing, no friends or relatives testified on Harris' behalf, and Williams explained the absence of family members to the sentencing jury in his closing statement by stating that Harris' "family has turned against him because he was accused of this act."

However, at the Rule 3.850 hearing in state court, the appellant contended that Williams had mischaracterized the Harris family's feelings about the appellant. Harris presented witnesses, including his sister, brother-in-law, niece, ex-wife and a minister, who stated that they would have gladly testified at the sentencing hearing on Harris' behalf. With the exception of Harris' ex-wife, who had been hospitalized at the time of the hearing, the witnesses blamed their absence on the fact that neither of Harris' lawyers nor the investigator had contacted them in regard to the penalty phase. The witnesses also stated that, given the opportunity, they would have described Harris to the sentencing jury as a kind, decent man, a dependable employee, a family man, dedicated to his son, his niece and his ex-wife's other children. All of the witnesses found value in the appellant's life, despite his incarceration and prior criminal conduct. Echarte testified at the Rule 3.850 hearing that he would have presented these witnesses at sentencing had he known about...

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