Scott v. Dugger, 88-5536
| Decision Date | 14 December 1989 |
| Docket Number | No. 88-5536,88-5536 |
| Citation | 891 F.2d 800 |
| Parties | Paul William SCOTT, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Department of Corrections, State of Florida, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Paul Morris, Coral Gables, Fla., for petitioner-appellant.
Jim Smith, Atty. Gen., Lee Rosenthal, Richard G. Bartmon, James J. Carney, Asst. Attys. Gen., West Palm Beach, Fla., for respondent-appellee.
Appeal for the United States District Court for the Southern District of Florida.
Before HATCHETT and ANDERSON, Circuit Judges, and HILL, Senior Circuit Judge.
We affirm the district court rulings in this capital case.
On December 4, 1978, between 7 and 10 p.m., appellant, Paul William Scott, Charles Soutullo, and Richard Kondian, engaged in a conversation that Soutullo's girlfriend (Felicia) could not hear. According to Soutullo, the appellant and Kondian asked him to join them in robbing Jim Alessi and killing him by injecting battery acid into his body. Soutullo refused to join and told Felicia about the conversation. Late that evening, Alessi arrived at his father's house to borrow the father's station wagon. Alessi, Kondian, and the appellant then left Alessi's father's house in the station wagon and another vehicle.
A jury convicted the appellant of murder after the state trial court instructed them on premeditated and felony murder theories. In accordance with the jury's recommendation, the trial court imposed the death sentence. On automatic appeal, the Supreme Court of Florida affirmed the conviction and the judgment. Scott v. State, 411 So.2d 866 (Fla.1982). That court also affirmed the denial of all relief in state habeas corpus proceedings. Scott v. Wainwright, 433 So.2d 974 (Fla.1983).
The state of Florida scheduled the appellant's execution for June 7, 1983. On June 8, 1983, the United States District Court for the Southern District of Florida stayed the execution and allowed the appellant to file an amended petition. The original and amended petitions for habeas corpus presented thirty-one issues. On January 10, the district court stayed all proceedings and allowed the appellant to file claims in state court for exhaustion purposes. The district court indicated explicitly that the appellant should present to the state courts all claims that he would later present to the federal courts. When the appellant presented his claims to the state circuit court, the circuit court denied all relief, and the Supreme Court of Florida affirmed. Scott v. State, 513 So.2d 653 (Fla.1987). Following the denial of all claims in the state court system, the appellant returned for a final disposition of his claims in the district court. On May 26, 1988, the district court rejected all of the appellant's claims. Scott v. Dugger, 686 F.Supp. 1488 (S.D.Fla.1988).
The appellant contends that his lawyer rendered ineffective assistance at the guilt and penalty phases of the trial, that his jury was not selected from a cross-section of the community, that the state's evidence was insufficient to prove felony murder, that the trial court improperly excluded relevant mitigating evidence, that the instructions to the jury improperly described the role of the jury in the sentencing process, and that the Florida aggravating circumstance of "especially heinous, atrocious, or cruel" is unconstitutional.
The state contends that no error was committed during the course of the trial, that one of appellant's claims is barred, and that the Florida aggravating circumstance of "especially heinous, atrocious, or cruel" has been so limited by the Florida Supreme Court as to render it constitutional.
We discuss the issues below, in the order listed:
1. Whether the appellant's sixth amendment right to effective assistance of counsel was violated at the guilt phase of his trial;
2. whether appellant's sixth and fourteenth amendment rights to a jury selected from a cross-section of the community was violated;
3. whether the evidence was sufficient to support a conviction for felony murder;
4. whether appellant's sixth amendment right to effective assistance of counsel was violated by his lawyer's failure to present mitigating evidence at the penalty phase of his trial;
5. whether the trial court violated appellant's eighth and fourteenth amendment rights by excluding relevant mitigating evidence;
6. whether the district court erred in denying appellant the right to amend his petition; and
7. whether Florida's aggravating circumstance of "especially heinous, atrocious, or cruel" is unconstitutional.
The standard for judging an ineffective assistance of counsel claim is found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland's two-part test, the criminal defendant must first show that his lawyer's performance was so deficient that the lawyer was not functioning as the counsel guaranteed by the sixth amendment. The second part of Strickland's test is often called the "prejudice" prong and requires the defendant to show a "reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different." Strickland at 694, 104 S.Ct. at 2068. See Harrison v. Jones, 880 F.2d 1279, 1281 (11th Cir.); Bennett v. Fortner, 863 F.2d 804, 809 (11th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 2077, 104 L.Ed.2d 641 (1989).
Appellant bases his ineffective assistance of counsel claim on his lawyer's failure to investigate and present evidence regarding the theory that the appellant was not present in Alessi's home at the time of the murder. Appellant also asserts that his counsel failed to cross-examine the state medical examiner, and that his counsel failed to present evidence to impeach Soutullo.
Appellant's counsel did not render ineffective assistance by failing to present the theory that appellant was not in Alessi's home at the time of the murder. The Supreme Court of Florida considered appellant's clemency testimony on this issue. In the clemency hearing, appellant testified that Kondian deliberately engaged in sex with Alessi so that appellant could rummage through the house for things to steal. Appellant now argues, however, that his lawyer should have presented a "defense of others" theory. Such a defense would contradict appellant's clemency testimony and present a theory that Alessi attempted to rape Kondian and that appellant came to Kondian's aid. The defense theory would also assert that, after successfully interrupting the rape attempt, appellant left the house while Alessi was still alive. Obviously, appellant's clemency hearing testimony proved such a defense false. Thus, appellant's lawyer could not have rendered ineffective assistance by failing or refusing to present a false defense. The district court so found, and we agree.
Additionally, the idea for this defense came from Kondian's statement to the Rhode Island police when they arrested him. On that occasion, Kondian stated that he and appellant were at Alessi's house in connection with a drug transaction, and that Alessi tried to rape him. While Kondian and Alessi fought, Kondian stated, appellant joined the fight and hit Alessi repeatedly.
Further, appellant's lawyer would have faced two monumental problems in presenting such a defense. First, the Supreme Court of Florida found, and we agree, that Kondian's testimony was unavailable. Kondian was awaiting trial for Alessi's murder at the time of appellant's trial. Kondian's lawyer testified at the evidentiary hearing in the state court that he would not have allowed Kondian to testify as to any of the facts of the murder in any manner. Second, Kondian told the Rhode Island police that appellant had beaten Alessi with his (Kondian's) role in the fight being minimal. Hence, the "defense of another" defense was not available. Even if Kondian's testimony had been available, the physical evidence refuted such a theory: the physical evidence indicated that Alessi had been beaten after being tied with the cords.
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