Matire v. Wainwright
| Decision Date | 09 March 1987 |
| Docket Number | No. 84-5705,84-5705 |
| Parties | Louis MATIRE, Petitioner-Appellant, v. Louie WAINWRIGHT, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Louis Matire, pro se.
John E. Bergendahl, Asst. Federal Public Defender, Miami, Fla., for petitioner-appellant.
Penny H. Brill, Diane Leeds, Asst. Attys. Gen., West Palm Beach, Fla., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before JOHNSON and ANDERSON, Circuit Judges, and GARZA *, Senior Circuit Judge.
Matire appeals the district court's denial of his petition for writ of habeas corpus with regard to his claim of ineffective assistance of appellate counsel on his direct appeal. Matire is currently in the custody of Louie L. Wainwright, Secretary of the Florida Department of Corrections. Matire was found guilty of first degree murder and sentenced to life imprisonment in 1968.
In 1967, Matire was romantically involved with and sometimes lived with Dianne Benhardt, who was separated from her husband Robert Benhardt. In mid-May, 1967, Dianne indicated to Matire that her son was moving to Florida from New Jersey, where he was living with her husband, to live with her and that Matire would no longer be able to live with her. It also appears that Dianne attempted to terminate her relationship with Matire at about that time. 1 During the course of these discussions, Matire became very upset and threatened to go to New Jersey and "kill the whole family." He claimed to have broken Dianne's television and record player and slashed many of her clothes with a knife. Matire also threatened suicide if things didn't work out between him and Dianne.
On May 27, 1967, Robert Benhardt arrived unexpectedly in Ft. Lauderdale to attempt to reconcile with his wife. The following evening he went to the Bahia Cabana where Dianne was working as a cocktail waitress. Matire subsequently arrived at the bar. After apparently overhearing a remark which identified Robert Benhardt as Dianne's husband, Matire began talking with him. The two men engaged in conversation with no show of animosity or altercation. At this time Dianne indicated to Matire her intent to reconcile with her husband. Without any evidence of animosity toward Dianne's husband, Matire left the bar at approximately 11:30 p.m. and went to his brother's home to obtain his brother's .22 caliber pistol. Matire told his brother that he intended to kill himself with the gun.
Matire returned to the Bahia Cabana with the gun which he testified was concealed inside his shirt. None of the witnesses who testified at the trial could say that Matire had a gun in sight when he re-entered the bar. Two witnesses testified that on Matire's return to the bar Robert Benhardt said something to Matire such as "no, you don't," "what are you doing," or "don't be silly." Gallagher, called as a witness by the state, testified that he heard Benhardt say something like "What the hell are you doing," that Robert Benhardt swung off his barstool and came toward Matire, that Benhardt shoved Matire backwards, and that a struggle ensued over the gun. No other witness contradicted this version of the events. In the course of the struggle both Matire and Robert Benhardt received gunshot wounds. After Benhardt slumped to the floor, Matire, as he fled the scene, waved the gun and threatened those in the bar not to move. Benhardt died as a result of the wounds he received.
Matire was arrested shortly after the shooting and taken to the hospital. He was informed of his rights at the time of the arrest and declined to make a statement. He was informed of his rights again at the hospital and again declined to make a statement. However, while at the hospital Matire made incriminating statements to his mother within the hearing of police officers. Specifically, Matire's statement to his mother was reported by the officer who was guarding him as:
[Matire and his mother] had trusted [Dianne] and she had told him that she loved him. Now that this happened he wanted to die....
[Matire's mother] told him that he had done wrong by shooting Benhardt ... and he stated that he didn't care, and if he didn't die tonight he would shoot him again and make sure that he was dead ... he would shoot him again if he had the chance.... He then babbled on how he did not care what happened to him.
At the trial, the prosecutor asked the arresting officer whether he had informed Matire of his rights and whether Matire had made a statement. The arresting officer responded that he had informed Matire of his rights and that Matire had not made a statement. The full text of this first comment on Matire's post-arrest silence is set forth as follows:
Tr. 537-38. Matire's counsel moved for a mistrial on the basis of this first comment on his post-arrest silence. The trial court summarily denied the motion.
A police officer testifying later made a second comment on Matire's post-arrest silence. The officer stated that at the hospital he had advised Matire of his rights and that Matire replied he did not wish to make a statement. The officer also reported the incriminating statements described above which he overheard Matire make to his mother. Matire's defense counsel did not object to the admission of these statements.
Matire presented an insanity defense. In closing argument the prosecutor made further comment on Matire's post-arrest silence by two explicit references to Matire's refusal to make a statement in the context of rebutting the insanity defense. In full, the third comment was:
The very first thing that happened to that man [after his arrest], the very first thing after that, they warned him of his civil rights that he may have, and asked if he wanted to say anything, and he said no.
From there--they knew he was wounded--they took him over to the hospital to be treated. As an added precaution, as soon as he came into the hospital in the emergency ward, you heard Officer McLellan. He testified that he was brought in and Sergeant Bruce Lieberman gave him--again told him what his civil rights were, told him he didn't have to say anything; and he also testified that the man was rattling. He babbled on, or he was emotionally upset.
Of course, he was emotionally upset. There is no question in the world. We wouldn't say that he wasn't emotionally upset. He killed a man. I am sure the stark realization of what he had done was fully upon him.
The medical testimony that you heard was that he was just--all of it--the sheer enormity of the whole thing was upon it. In fact, even after he said he didn't want to make a statement, he had to talk. He had to say something. He talked to his mother.
He said, "What kind of a girl is that, Mother, that would do that thing to me," and he went on.
He said, "I don't want to live myself, but if he isn't dead, I will do it--I will shoot him again."
This is a man who is upset fully, but cognizant of what he did, fully cognizant of what he did. He knew he shot somebody.
Tr. 809-10. The jury convicted Matire of first-degree murder and recommended mercy. The trial court sentenced Matire to life imprisonment.
On direct appeal, Matire's appellate counsel raised one issue, trial court error in failing to submit a written set of instructions to the jury. Matire's conviction and sentence were affirmed. Matire brought three separate collateral attacks on his conviction in state court. The first of these raised the competency to stand trial issue. The Florida Appellate Court summarily affirmed Matire's conviction and sentence without opinion. 375 So.2d 920 (Fla.App. 4th 1979). The second collateral attack raised the Fifth Amendment issue. In his brief, Matire's counsel discussed only the first comment on Matire's post-arrest silence. The Fifth Amendment issue was dismissed because Matire had not raised it on direct appeal. The Florida Appellate Court affirmed the dismissal with the proviso that the dismissal was "without prejudice, however, to appellant filing a petition for habeas corpus ... based upon an allegation of ineffective assistance of appellate counsel." 403 So.2d 1049, 1050 (Fla.App.4th 1981). Matire subsequently filed a third petition for post-conviction relief based on ineffective assistance of appellate counsel as to the Fifth Amendment issue. While the first comment was clearly relied upon, it is unclear from the record whether either Matire or the state court relied upon the second and third comments as instances of ineffective assistance as well. This petition was considered on its merits and denied without opinion by the Florida courts.
After all these appeals were denied, Matire filed the instant petition for writ of habeas corpus in federal court,...
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