Stewart v. Secretary, Dept. of Corrections

• Decision Date: 31 January 2007
• Docket Number: No. 06-11684.,06-11684.
• Citation: 476 F.3d 1193
• Parties: Kenneth Allen STEWART, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

476 F.3d 1193

Kenneth Allen STEWART, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.

No. 06-11684.

United States Court of Appeals, Eleventh Circuit.

January 31, 2007.

Robert A. Norgard, Bartow, FL, for Stewart.

Carol M. Dittmar, Tampa, FL, for Respondents-Appellees.

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

Before DUBINA, HULL and MARCUS, Circuit Judges.

HULL, Circuit Judge:

In this capital case, Kenneth Stewart appeals the district court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. The only issues on which Stewart was granted a certificate of appealability are whether Stewart's trial counsel was ineffective in failing to: (1) provide the mental health expert witness with all available information to identify possible mitigating circumstances; and (2) adequately investigate and prepare mitigating evidence for the penalty phase. After review and oral argument, we affirm.

I. BACKGROUND

A. Guilt Phase

In August 1986, a jury in the Circuit Court of Hillsborough County, Florida convicted Stewart of first-degree felony murder, attempted second-degree murder with a firearm, armed robbery, and arson. On direct appeal, the Florida Supreme Court affirmed the convictions and described how Stewart murdered Mark Harris and shot Michele Acosta after they picked Stewart up from hitchhiking, as follows:

[O]n April [14,] 1985, Michele Acosta and Mark Harris picked up appellant, Kenneth Stewart, while he was hitchhiking. When Acosta stopped to drop Stewart off, he struck her on the head with the butt of a gun and fired three shots, hitting Acosta in the shoulder and Harris in the spine. Stewart then forced Acosta and Harris from the car before driving off and picking up a friend, Terry Smith. The two removed items from the car's trunk[,] and Stewart burned the car after telling Smith that the car belonged to a woman and man whom he had shot. Acosta recovered from her injuries; Harris later died.

Stewart v. State, 549 So.2d 171, 172 (Fla. 1989).

Indeed, at trial, the state presented overwhelming evidence of Stewart's guilt. Among the many witnesses, Acosta described Stewart's actions as the eyewitness and surviving victim. After the murder, Stewart picked up his friend Terry Smith in Acosta's car. Smith testified that Stewart had admitted the shootings to him and burned the car to eliminate fingerprints.¹ Detective George Lease testified that he overheard Stewart admit the shootings during a telephone conversation with Stewart's grandmother.²

Forensic evidence linked the bullets recovered from the crime scene with the gun and ammunition found in Stewart's possession at his arrest. A search of Stewart's apartment yielded the items he and Smith had taken from Acosta's car.

Given the overwhelming evidence, Stewart's trial counsel conceded that Stewart shot Harris and Acosta and presented no evidence in Stewart's defense.³ Stewart v. State, 549 So.2d at 172. Instead, trial counsel argued that Acosta's car lunged forward to throw Stewart off-balance, which caused Stewart's gun to discharge accidentally. Accordingly, trial counsel argued that Stewart was guilty of aggravated battery and manslaughter or, at the most, second-degree murder,⁴ but not first-degree murder. After deliberation, the jury unanimously found Stewart guilty of the first-degree murder of Harris, the attempted murder of Acosta, armed robbery, and arson.

B. Penalty Phase

During the penalty phase, the state presented evidence of Stewart's three prior violent felony convictions. Specifically, the state called witnesses Anne Badstein, a court clerk for the Circuit Court of Hillsborough County, and Anthony Morone, a deputy sheriff of the Hillsborough County Sheriff's Office. Badstein and Morone verified court records showing Stewart's prior convictions for attempted first-degree murder, aggravated assault, and attempted armed robbery. These verified court records contained only the judgments, which showed that Stewart was convicted of these three crimes on June 9, 1986, and did not reveal any factual circumstances of these crimes.⁵ The state introduced these authenticated records into evidence.

As mitigating evidence, Stewart presented the testimony of family members, friends, and a psychiatrist in order to establish evidence of extreme mental disturbance and impaired capacity.

Bruce Scarpo, Stewart's stepfather, described Stewart's violent early childhood with his biological mother and her family. Mr. Scarpo testified that he married Stewart's mother and had raised Stewart from eighteen months old. According to Mr. Scarpo, family members of Stewart's mother frequently visited his house and were often drunk and violent. When Stewart was three years old, Stewart's mother abandoned him with Mr. Scarpo, who filed for divorce. Two years later, Mr. Scarpo entered a relationship with another woman, Joanne Scarpo, and continued to raise Stewart with Joanne Scarpo's three children. Mr. Scarpo compared their family life to "The Waltons," denied ever abusing Stewart, and claimed that Stewart was a typical child who blended in with the family.

Mr. Scarpo claimed that Stewart had no major problems until Stewart discovered at age thirteen that Mr. Scarpo was not his biological father. After learning that his mother had committed suicide and his father was killed in a bar fight, Stewart ran away from Scarpo's home to live with his grandparents. Thereafter, Stewart had his first juvenile criminal conviction, and his grandparents returned custody to Mr. Scarpo. At this point, Mr. Scarpo testified that Stewart transformed from being an average student with few discipline problems to an introverted child filled with animosity who repeatedly skipped school and blamed Mr. Scarpo for his father's death.

James Hayward, who hosted Stewart for several months in 1977, testified next for the defense. Hayward stated that when Stewart was thirteen years old, Stewart learned that: (1) his mother had committed suicide; (2) Mr. Scarpo was not his biological father; (3) his biological father was killed in a bar fight; (4) his uncle was murdered in 1968; and (5) his two aunts were killed in a car accident.

Dr. Walter Afield, M.D., a psychiatrist, was Stewart's next witness. Dr. Afield evaluated Stewart twice before preparing his psychiatric report and met with Stewart again the night before the penalty phase testimony. Dr. Afield conducted psychological and neurological testing on Stewart, reviewed Stewart's medical records and other documents, and consulted with other doctors who had examined Stewart.

As a result of his evaluation, Dr. Afield found that Stewart had suffered significant childhood trauma. Dr. Afield noted that the first five years of life are crucial to childhood development and that most personality disorders are firmly established by this age. Dr. Afield stated that Stewart was exposed at an early age to "bad abuse" with his biological mother and opined that this violent upbringing had locked in a tendency toward violence by age five. Specifically, Dr. Afield testified that based on the history of violence and abuse, "[Stewart] has no control over his destiny, in my opinion, when you have gone this far. It's very difficult to control." Accordingly, Dr. Afield determined that Stewart "has been programmed from early on. This is a textbook [case] on how to raise a murderer." Although Dr. Afield noted that Stewart could appreciate the criminality of his conduct and that he did not belong in a mental hospital, he concluded, "[Stewart] does have an impairment in terms of conforming his conduct to the capacity of the law. I don't think he has total control [of] it."

Dr. Afield also testified that Mr. Scarpo provided a reasonable amount of stability, but he expressed doubt that anyone could have altered Stewart's downhill course. Dr. Afield stated that the series of tragic revelations about Stewart's family when Stewart was thirteen was "the final blow" and the "trigger" for Stewart's future violent behavior.

Dr. Afield also noted that Stewart had multiple suicide attempts and had visited his mother's grave with a gun and bottle of whiskey. Dr. Afield testified that these events indicated severe mental disturbance. Dr. Afield concluded that Stewart was suffering from chronic depression and sociopathic disorder and found him incapable of rehabilitation.

Joyce Engle, a rehabilitative services worker who befriended Stewart, was the fourth mitigation witness. Engle stated that Stewart was remorseful about the killing and was suffering from emotional problems because of his parents' deaths.

Lash LaRue, a family friend, then testified about his visits to the Scarpo household when Stewart was a young boy. In LaRue's view, Stewart was a normal boy until he was thirteen or fourteen. Mr. Scarpo told LaRue that Stewart's attitude changed after Stewart learned that Mr. Scarpo was not his biological father.

Stewart next presented the deposition testimony of Susan Medlin, one of his stepsisters. Medlin testified that Stewart had a troubled childhood because he felt out of place in the Scarpo household. According to Medlin, Stewart was grief-stricken when he learned that Mr. Scarpo was not his biological father, and Stewart afterwards had serious criminal problems.

Joanne Scarpo, Stewart's stepmother,⁶ was the final mitigation witness. Joanne Scarpo said that Stewart was a jovial boy who idolized Mr. Scarpo and resented the other children. She claimed that after Stewart learned at age thirteen that Mr. Scarpo was not his biological father, he was a very troubled, brooding boy who started getting into legal trouble. Joanne Scarpo testified that Stewart showed remorse for his crime.

Following closing arguments and deliberation, the jury, by a 10 to 2 vote, recommended that Stewart be sentenced to death.

C. Sentencing Hearings

After...