Pope v. Sec'y for the Dep't of Corr.

• Court: U.S. Court of Appeals — Eleventh Circuit
• Writing for the Court: MARCUS
• Citation: Pope v. Sec'y for the Dep't of Corr., 680 F.3d 1271, 23 Fla. L. Weekly Fed. C 1033 (11th Cir. 2012)
• Decision Date: 15 May 2012
• Docket Number: No. 09–10773.,09–10773.
• Parties: Thomas Dewey POPE, Petitioner–Appellant, Cross–Appellee, v. SECRETARY FOR the DEPARTMENT OF CORRECTIONS, Walter A. McNeil, Respondent–Appellee, Cross–Appellant.

680 F.3d 1271

23 Fla. L. Weekly Fed. C 1033

Thomas Dewey POPE, Petitioner–Appellant, Cross–Appellee,

v.SECRETARY FOR the DEPARTMENT OF CORRECTIONS, Walter A. McNeil, Respondent–Appellee, Cross–Appellant.

No. 09–10773.

United States Court of Appeals, Eleventh Circuit.

May 15, 2012.

Celeste Bacchi (Court–Appointed), Fed. Pub. Def., Los Angeles, CA, Rachel Lawrence Day (Court–Appointed), William M. Hennis, III (Court–Appointed), Neal Andre Dupree (Court–Appointed), CCRC–South, Fort Lauderdale, FL, Todd Gerald Scher (Court–Appointed), Special Assistant CCRC–South, Miami Beach, FL, for Petitioner–Appellant Cross–Appellee.

Leslie T. Campbell, Office of the Atty. Gen., West Palm Beach, FL, for Respondent–Appellee, Cross–Appellant.

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

Before TJOFLAT, MARCUS and BLACK, Circuit Judges.

MARCUS, Circuit Judge:

Petitioner Thomas Dewey Pope was convicted on three counts of first degree murder for the deaths of Caesar Di Russo, Albert Preston Doranz, and Kristine A. Walters, and was sentenced to death in Florida's state courts for the murder of Walters. On collateral review of this capital case, the district court granted in part the petitioner's federal application for writ of habeas corpus, finding that trial counsel was ineffective during the penalty phase of the trial by failing to develop and present substantial mitigating evidence to the jury, and by failing to object to the prosecutor's closing argument to the jury that Pope preferred a death sentence over life imprisonment. The district court rejected the remainder of Pope's petition, holding, among other things, that trial counsel was not ineffective during the guilt phase of the trial. While we affirm the district court's denial of habeas relief as to Pope's guilt-phase ineffectiveness claims, we vacate the district court's grant of habeas relief concerning Pope's penalty-phase ineffectiveness claims, and remand for the district court to hold an evidentiary hearing on those claims.

I.

A. The Murders and Pope's Trial

Based on the evidence presented at trial, the Florida Supreme Court recited the essential facts of the triple homicide in this way:

On January 19, 1981, the bodies of Al Doranz and Caesar Di Russo were discovered in an apartment rented to Kristine Walters. Both had been dead several days but Di Russo's body was in a more advanced state of decomposition than Doranz's. Both victims had been shot, Doranz three times and Di Russo five times. A spent .22 caliber shell casing was found under Di Russo's body. Three days later, the body of Kristine Walters was found floating in a canal. She had been shot six times with exploding ammunition, her skull was fractured and she had been thrown into the canal while still breathing.

All three victims had been shot with exploding ammunition, so ballistics comparison was impossible. However, parts of an AR–7 rifle were found in the canal near Walters's body and the spent shell casing under Di Russo's body had been fired from an AR–7 weapon.

Investigation led to appellant's girlfriend, Susan Eckard, and ultimately police were able to show that Doranz purchased an AR–7 rifle for Pope shortly before the murder. Eckard and Pope admitted being with Doranz and Walters at Walters's apartment on Friday night, the night Doranz and Di Russo were killed. Eckard later testified that Pope had arranged a drug deal with Doranz and Di Russo. She stated that she and Pope left Walters's apartment to visit Clarence “Buddy” Lagle and to pick up some hamburgers. They then returned to the apartment where Pope and Doranz convinced Walters to go with Eckard to the apartment where Pope had been staying.

Later that same night, Pope arrived at his apartment and told the women there had been trouble and that Doranz had been injured but that it was best for Walters to stay away from him for a while. Eckard said she knew that Di Russo and Doranz were dead, and that she had known Pope intended to kill them at this point. The next day, Walters checked into a nearby motel, where Pope supplied her with quaaludes and cocaine. On Sunday, Pope told Walters he would take her to see Doranz. Eckard testified that Pope had told her that he knew he had to get rid of Walters but that he regretted it because he had become fond of her. According to Eckard, Pope described Walters's murder when he returned and said the gun had broken when he beat Walters over the head with it. The next day Eckard went with Pope to the scene of the crime to collect fragments of the broken stock and to look for the missing trigger assembly and receiver.

Buddy Lagle told the police he had made a silencer for the AR–7 rifle at Pope's request. Because Lagle planned to leave the jurisdiction to take a job on a ship in the Virgin Islands, he was deposed on videotape pursuant to an order granting the state's motion to perpetuate testimony. When the state was unable to produce him at trial, the videotape was admitted into evidence.

Pope v. State, 441 So.2d 1073, 1074–75 (Fla.1983). As noted, Pope's ex-girlfriend, Susan Eckard,¹ testified against him at trial, providing much of the damaging testimony. Pope also testified, denying that he had killed anyone.

Pope was convicted on three counts of first degree murder for the deaths of Caesar Di Russo, Albert Preston Doranz, and Kristine A. Walters. After the jury's guilty verdict, but before the penalty phase, Pope and his trial counsel ² had this exchange with the court, outside the jury's presence:

Eber: I have discussed the situation that is presently before us with Mr. Pope. I have discussed it informally with the Court. Mr. Pope does not wish me to argue to the jury at this point. I understand that it is my obligation as his attorney to do so, however. Mr. Pope feels that it is my obligation, as his attorney, to follow his wishes in this situation. I believe he may have something he desires to say, if the Court would entertain that. But I have told him, and I believe that it is my obligation to make a presentation to the jury.

The Court: Alright. If you want to say anything, Mr. Pope, you may.

Pope: I'd really rather not have him make a presentation on my behalf to the jury. You only have two choices, and I know what my choice is. I know I'm not trying to take your job, that is not what I want and is not necessarily what you are going to give me; but I would rather have the death sentence than the twenty-five years in prison.

The Court: Alright. I still think you ought to speak on his behalf as your obligation. You made your wishes known. I can understand that. Thank you. Bring the jury in.

During closing arguments, the prosecutor informed the jury that “Mr. Pope has announced that he would rather receive a death penalty than life imprisonment. I would say to you that your verdict, your recommendation, should not be based on that.” Notably, defense counsel Eber did not object to this salient comment. Thereafter, the jury recommended life sentences for the murders of Di Russo and Doranz, and the death penalty for the murder of Walters. The jury voted nine to three for death.

The trial judge adopted the jury's sentencing recommendations. In so doing, the judge found four aggravating circumstances surrounding Walters's murder: (1) Pope was previously convicted of another capital felony (the murders of Di Russo and Doranz), Fla. Stat. § 921.141(5)(b); (2) the capital felony was committed for the purpose of avoiding a lawful arrest (for the murders of Di Russo and Doranz), id. § 921.141(5)(e); (3) the capital felony was especially heinous, atrocious, or cruel (in part because Pope failed to show any remorse), id. § 921.141(5)(h); and (4) the capital felony was a homicide committed in a cold, calculated, and premeditated manner (because Pope spent two days with Walters before murdering her), id. § 921.141(5)(i). The judge found one mitigating circumstance, the “catchall” provision, Fla. Stat. § 921.141(6)(h), because Pope had served in Vietnam and was honorably discharged from the Marines. The trial judge then sentenced Pope to die.

B. Post–Trial State Court Proceedings

Pope filed a direct appeal to the Florida Supreme Court, arguing, among other things, that the trial court erred in allowing Lagle's videotaped deposition to be presented to the jury. The Florida Supreme Court affirmed the convictions and sentences. Pope, 441 So.2d at 1074.

Pope's collateral attack began when he filed in state court a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, claiming the ineffective assistance of counsel. The motion raised twelve errors by trial counsel, including the five guilt-phase ineffectiveness claims before us in this appeal, as well as two penalty-phase ineffectiveness claims: (1) counsel's failure to object to improper comments made by the court and the prosecutor; and (2) counsel's failure to present mitigating evidence drawn from Pope's background. The trial court held that except for two of his claims, Pope's allegations were either insufficient to state a claim for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), or were specifically refuted by the record.

As for the two remaining claims, the court rejected the first one—concerning ineffective assistance stemming from the introduction of Lagle's videotaped deposition—because it found, after conducting an evidentiary hearing on the issue, that Lagle was indeed unavailable for trial. An evidentiary hearing was set on the second of Pope's remaining claims—that his trial counsel was ineffective for using the “Vietnam Syndrome Defense” against Pope's wishes. After the evidentiary hearing, the court denied this claim too, finding that Pope knew, understood, and concurred in his trial counsel's opinion that Dr. William Weitz's testimony regarding the Vietnam Syndrome Defense should be used during the...