Palmes v. Wainwright, 83-3554

Citation725 F.2d 1511
Decision Date17 February 1984
Docket NumberNo. 83-3554,83-3554
PartiesTimothy Charles PALMES, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Florida Dept. of Offender Rehabilitation, Charles G. Strickland, Jr., Superintendent of Fla. State Prison at Starke, Florida, and Jim Smith, Attorney General of State of Florida, Respondents-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Thomas B. McCoun, III, St. Petersburg, Fla., for petitioner-appellant.

Carolyn M. Snurkowski, Asst. Atty. Gen., Dept. of Legal Affairs, Miami, Fla., for respondents-appellees.

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

Before FAY and HENDERSON, Circuit Judges, and BOYLE *, District Judge.

FAY, Circuit Judge:

In 1977, a jury convicted the appellant, Timothy Charles Palmes, of first degree murder. The appellant waived his right to jury sentence recommendation. After a sentencing hearing, the Florida circuit judge sentenced him to death. The Florida Supreme Court affirmed the conviction and sentence, and the United States Supreme Court denied certiorari, Palmes v. State, 397 So.2d 648 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981).

On May 18, 1982 the Governor of Florida signed a death warrant for appellant's execution. On June 7, 1982 appellant initiated a federal habeas corpus petition in the United States District Court for the Middle District of Florida. The district court stayed appellant's execution and granted leave to amend the petition. 1 The petition was amended in August 1982. The district court stayed the proceedings and ordered appellant to exhaust state remedies on the new claims. Appellant then filed a motion to vacate in the state trial court which was denied in October, 1982. In January, 1983, the Florida Supreme Court affirmed the trial judge's denial of the motion. Palmes v. State, 425 So.2d 4 (Fla.1983).

In January, 1983, appellant filed a Second Amended Petition for a Writ of Habeas Corpus in the district court for the Middle District of Florida. The district judge denied the petition and this appeal was taken. We affirm the district judge's denial of relief.

Appellant raises eleven issues, but only seven are properly before this court. The remaining four issues are barred from review according to Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (See infra Part IV). The issues properly before this court are:

I. (a) Whether the admission into evidence of the appellant's statements and confessions violate his constitutional rights in that the statements were not voluntarily made; and

(b) Whether the admission into evidence of such statements denied the appellant a fair trial.

II. Whether appellant was denied the effective assistance of counsel when:

(a) First appointed counsel failed to render any legal assistance on behalf of the appellant at a critical stage of his case.

(b) Second appointed counsel failed to raise the issue concerning the appellant's illegal arrest.

(c) Second appointed counsel failed to object to the court's excusing for cause jurors expressing death penalty scruples.

(d) Counsel failed to object to comments touching upon appellant's fifth amendment rights.

III. Whether the trial judge's sentence of death is contrary to the eighth and fourteenth amendments.

FACTS

In August or September 1976, the appellant and Ronald Straight offered to collect the victim's delinquent business accounts for him. The victim refused to employ the appellant, prompting the appellant to say, "You know, I am going to kill him." 2 On October 3, 1976 the appellant with his girlfriend, Jane Alpert, and Ronald Straight purchased lumber, hardware, and cement with which the appellant built a heavy box large enough to hold a man.

The next day the group implemented their murder plan. Jane Alpert lured the victim into an apartment where the appellant and Ronald Straight were waiting for him. The appellant and Straight hit the victim on the head three times with a blunt instrument and stabbed him fourteen times. The victim's body was placed in the box, cement was added and it was dumped in the St. John's River. The appellant, Straight, and Alpert fled, taking the victim's car, money, and personal effects with them. Appellant, Alpert, and Straight were apprehended in California. On October 14, 1976 Ms. Alpert was returned to Jacksonville, Florida. She was given immunity from prosecution in exchange for her testimony in the prosecution of the appellant and Ronald Straight.

Appellant was returned to Jacksonville on October 22, 1976. He was advised of his constitutional rights and then questioned by police. At appellant's first appearance on October 23rd a public defender was appointed to represent him. On October 24th appellant was again advised of his rights and further interrogated. He did not request counsel and answered the police questions. Appellant did, however, refuse to sign a written waiver of rights and refused to make any statement until he had spoken with Jane Alpert. After speaking with Alpert appellant directed police officers to the place where the victim's body was thrown into the river.

On October 28th appellant was indicted for first degree murder. On October 29th he asked to speak with the police. He was again advised of his rights and specifically stated he did not want a lawyer. Appellant then signed a written waiver of rights and gave his confession. Also on October 29th the public defender's office requested and was granted permission to withdraw as appellant's counsel due to conflict. Between October 23rd and October 29th the public defender's office had no contact with appellant. He was never interviewed or advised by any attorney during this period.

The appellant's defense was largely his own testimony. He testified that Jane Alpert, acting alone, murdered the victim. His involvement was only to aid her after she had committed the murder.

I. USE OF APPELLANT'S CONFESSION AT TRIAL
(a) Was the Confession Voluntarily Given?

Appellant asserts that the incriminating statements and confession were not voluntarily and freely made. This contention belies the facts adduced at the hearing on the Motion to Suppress. On October 22nd, upon arrival in Jacksonville, appellant was given his Miranda warnings and was briefly questioned. On October 24th at 2:40 p.m. questioning resumed after appellant was again informed of his rights. Appellant indicated then that he was willing to speak with the officers. The interrogation ended at 6:30 p.m., after appellant indicated he wished to talk to his girlfriend, Jane Alpert, before he would be willing to give a statement.

At 7:40 p.m. that evening police officers resumed the interrogation while attempting to contact the state attorney's office to obtain permission for Jane Alpert to telephone the appellant. Before this session, appellant was again informed of his constitutional rights and police officers questioned him "off and on" until midnight when Jane Alpert called. Appellant spoke to Alpert briefly and hung up after she told him she was getting her life in order and she was through with him. Appellant then said he would take the police to the location of the victim's body. At 12:30 a.m. on October 25th appellant was again informed of his constitutional rights before he led police officers to the site where the victim's body had been dumped into the St. John's River. After pointing out the location the appellant was driven back to jail. On the ride back to the county jail the appellant related some of the facts of the murder to police officers. At no time during the questioning between October 22nd and October 25th did the appellant state that he wanted an attorney or that he did not want to speak to the police officers. However, he did refuse to sign a written waiver of rights form.

After returning the appellant to jail in the early morning hours of October 25th, police personnel made no attempt to contact or further question him. On October 28th he was indicted for first degree murder. On October 29th appellant told jailhouse trustees that he wished to speak with police officers. The officers were not immediately contacted so appellant prevailed upon the jail chaplain to phone the police requesting that they meet with him.

At 4:00 p.m. on October 29th the police met with appellant. He indicated he wanted to make a statement. He was again informed of his rights and exhaustively questioned about whether he wanted an attorney. He said he did not, and signed a written waiver of rights form. It took an hour for appellant to relate his statement which was transcribed and notarized by a court reporter. During that hour appellant was again read his Miranda rights after he had taken a break to go to the bathroom.

The district court found that the uncontroverted testimony indicated that petitioner was mentally alert during all of these interrogations. The physical circumstances of the questioning were comfortable and the appellant was given food and water and allowed to use the bathroom. The physical circumstances and manner of interrogation do not suggest coercion.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) established that incriminating statements made by a defendant during a custodial interrogation are admissible into evidence if adequate measures are taken to apprise the defendant of his privilege against self-incrimination. The defendant must "voluntarily, knowingly, and intelligently" waive his privilege. The voluntariness of appellant's confession is gauged by the totality of the circumstances. Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1884, 68 L.Ed.2d 378 (1981).

The record is clear that the transcribed confession taken on October 29th was voluntary. Appellant initiated the interview, was exhaustively made aware of his rights, 3 and signed the written waiver form. Perhaps most indicative of the voluntariness is that...

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