King v. Strickland, 82-5306

• Citation: 714 F.2d 1481
• Decision Date: 02 September 1983
• Docket Number: No. 82-5306,82-5306
• Parties: Amos Lee KING, Jr., Petitioner-Appellant, v. Charles G. STRICKLAND, Jr., Warden, Florida State Penitentiary, Louie L. Wainwright, and Jim Smith, Attorney General, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1481

714 F.2d 1481

Amos Lee KING, Jr., Petitioner-Appellant, v. Charles G. STRICKLAND, Jr., Warden, Florida State Penitentiary, Louie L. Wainwright, and Jim Smith Attorney General, Respondents-Appellees.

No. 82-5306.

United States Court of Appeals Eleventh Circuit.

Sept. 2, 1983.

Baya Harrison, III, Tallahassee, Fla., for petitioner-appellant.

Michael J. Kotler, Asst. Atty. Gen., Tampa, Fla., for respondents-appellants.

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

Before RONEY and KRAVITCH, Circuit Judges, and TUTTLE, Senior Circuit Judge.

RONEY, Circuit Judge:

Convicted of first degree murder and sentenced to death, Amos Lee King, Jr. appeals the federal district court's denial of his petition for a writ of habeas corpus. He raises a number of arguments as to both conviction and sentence. Although we affirm on all issues raised as to the conviction, we hold that counsel was ineffective during the penalty phase. We discuss King's other claims going to the validity of the sentence, as to which we find no error. As to these latter points, we affirm.

In March of 1977, King was an inmate at Tarpon Springs Community Correctional Center, a minimum security work release facility, where he was serving a sentence for larceny of a firearm. On March 17 he worked at a Clearwater restaurant from 5:00 p.m. until 1:00 a.m. the following morning. An inmate van picked him up at around 1:30 a.m., and he checked back into the facility at approximately 2:35 a.m. At about 3:40 a.m., the prison counselor, James McDonough, discovered King missing during a routine bed check. McDonough found King outside the building with blood on his pants. After McDonough escorted King back into the facility, a fight broke out between the two in which King repeatedly stabbed McDonough with a knife. King then fled the facility.

In the meantime a fire had broken out at a house approximately 1,500 feet from the correctional center. Police arrived at around 4:05 a.m. and discovered the dead body of Natalie Brady. She had received numerous injuries, including two stab wounds, bruises, and a ragged tear of the vagina which apparently had been caused by blood-stained knitting needles found at the scene. There was evidence of forced sexual intercourse. Arson investigators concluded the fire had been set intentionally sometime between 3:00 and 3:30 a.m.

King voluntarily turned himself in that afternoon. He was indicted for the first degree murder of Natalie Brady, arson, robbery of her home, and involuntary sexual battery. He also was separately charged in a direct information with the attempted murder of McDonough and escape from prison. Over the objection of King's counsel, the indictment and information offenses were consolidated into one case for trial.

The government presented strong circumstantial evidence of King's guilt on the murder charge. Joan Wood, the medical examiner who performed an autopsy on the deceased, for example, testified that King's blood type was present in Brady's vaginal washings. Wood stated that if Brady's assailant had raped Brady with his pants on after causing the tear to the wall of her vagina, blood would have been present on the clothing, as McDonough had found on the crotch area of King's pants. She testified the paring knife used by King to assault McDonough was "consistent" with the wounds found on Brady, but she admitted she could not say this knife caused the wound. A knife salesman testified that the paring knife was manufactured by the same company and was similar in design to other kitchen knives found in Brady's house. An old friend of the deceased testified that the paring knife resembled one Brady kept in her house.

The jury found King guilty of all the offenses alleged, including the first degree murder charge, and recommended the death penalty, which the trial court imposed. The Florida Supreme Court affirmed the convictions and death sentence, King v. State, 390 So.2d 315 (Fla.1980), cert. denied, 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 825 (1981). The Florida courts also denied collateral relief after an evidentiary hearing. King v. State, 407 So.2d 904 (Fla.1981). The United States District Court for the Middle District of Florida then denied King's petition for federal habeas corpus relief in an unpublished opinion, but issued a certificate of probable cause to appeal. This appeal ensued.

Ineffective Assistance of Counsel

In order to understand the basis on which we hold counsel to have been ineffective at the penalty stage of the trial, it is helpful to discuss petitioner's arguments as to the guilt phase.

The sixth amendment guarantees a criminal defendant the right to counsel reasonably likely to render, and rendering, reasonably effective assistance. Baty v. Balkcom, 661 F.2d 391, 394 (5th Cir. Unit B 1981), cert. denied, 456 U.S. 1011, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982); Washington v. Estelle, 648 F.2d 276, 278-79 (5th Cir.), cert. denied, 454 U.S. 899, 102 S.Ct. 402, 70 L.Ed.2d 216 (1981). In judging whether this standard has been met, the totality of circumstances and the entire record must be considered. Goodwin v. Balkcom, 684 F.2d 794, 804 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1798, 76 L.Ed.2d 364 (1983); Nelson v. Estelle, 642 F.2d 903, 906 (5th Cir.1981). The burden is on the habeas corpus petitioner to establish ineffectiveness and prejudice. Washington v. Strickland, 693 F.2d 1243 (5th Cir. Unit B 1982) (en banc), cert. granted, --- U.S. ----, 103 S.Ct. 2451, 77 L.Ed.2d 1332 (1983).

Whether effective assistance has been afforded is a mixed question of law and fact. Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714-15, 64 L.Ed.2d 333 (1980); Harris v. Oliver, 645 F.2d 327, 330, n. 3 (5th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 687, 70 L.Ed.2d 650 (1981). Therefore this Court has held that a state court's determination of constitutionally effective assistance is not entitled to a presumption of correctness under 28 U.S.C.A. § 2254(d), and that the federal district court's determination is not protected by the clearly erroneous standard of review on appeal. Goodwin v. Balkcom, 684 F.2d 794, 804 (11th Cir.1982). Of course, the historical or primary facts found by the state courts are entitled to a presumption of correctness in a 28 U.S.C.A. § 2254 proceeding in federal court. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Mason v. Balcom, 531 F.2d 717, 721-22 (5th Cir.1976).

King was represented by two attorneys from the local public defender's office, Thomas Cole and Anthony Rondolino. Cole, now deceased, was lead counsel, with Rondolino joining the case one week before trial. Although both attorneys were experienced in criminal defense work, neither had handled a death case before.

At the outset, we note that unlike most of the ineffectiveness cases that come before us, in this case two competent attorneys testified at an evidentiary hearing before the state trial court on the motion for collateral relief that King's counsel was not adequate to afford the defendant a fair trial. The state produced no testimony to the contrary. The two testifying attorneys were support counsel Rondolino and Pat Doherty, a Florida defense attorney experienced in death cases. The state judge, who had presided at King's trial, allowed Doherty to proffer his testimony, but ruled it inadmissible because Doherty's standard for judging ineffectiveness did not comport with that of the Florida Supreme Court, as enunciated in Knight v. State, 394 So.2d 997 (Fla.1981). The Florida Supreme Court did consider Doherty's proffered testimony, however, King v. State, 407 So.2d at 905, and therefore we do also, without relying on this Circuit's rejection of the Knight standard. Washington v. Strickland, 693 F.2d 1243, 1267 n. 10 (5th Cir. Unit B 1982) (en banc ), cert. granted, --- U.S. ----, 103 S.Ct. 2451, 77 L.Ed.2d 1332 (1983). Doherty's testimony, like Rondolino's, is part of the record on appeal.

Guilt Stage

The picture of lead counsel Cole painted by Rondolino and Doherty is of a skilled criminal attorney who for a variety of reasons, some of which were beyond his control, was not ready to proceed to trial. Doherty, who was a friend of Cole's and was at the time of trial in the same Public Defender's office as Cole, testified, for example, that Cole was exhausted during the trial. Cole had been working on a separate criminal case involving a defendant named Scott. The Scott case ended in acquittal 11 days before King's trial began. Doherty testified as to the effect of the Scott case on preparation for King's defense.

... Mr. Cole fervently believed in this person's [Scott's] innocence, this man protested his innocence at every turn in the road. This was probably the biggest case Tom Cole ever had as a criminal lawyer. He worried about it day and night and it was in that set of circumstances that the Amos Lee King case was being prepared, if it was being prepared.

In other words, what I am saying to you, at every turn in the road, Amos King's case was being overshadowed by the Scott case. It was a consuming interest of Mr. Cole.

Rondolino, who resided with Cole at the time, confirmed Doherty's account of Cole's engulfing involvement in the Scott case. The trial record reveals Cole's stating on one occasion, "Judge, I am beat, I have got to go home and get some sleep", and stating on another occasion, "I can't think any more." One tangible example of how the Scott case seems to have adversely affected Cole's preparation for the King case is the course of defense depositions of government witnesses. Most of the depositions were taken between the first Scott trial, which resulted in a mistrial, and the second. At least 26 were taken in one day and 11 on another. Other depositions were not taken until after King's trial had begun.

Rondolino described another adverse factor in the preparation...