Way v. Dugger, s. 72201

• Decision Date: 06 September 1990
• Docket Number: 73649,Nos. 72201,s. 72201
• Citation: 568 So.2d 1263
• Parties: 15 Fla. L. Weekly S456 Fred Lewis WAY, Petitioner, v. Richard L. DUGGER, etc., Respondent. Fred Lewis WAY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1263

568 So.2d 1263

15 Fla. L. Weekly S456

Fred Lewis WAY, Petitioner, v. Richard L. DUGGER, etc., Respondent.

Fred Lewis WAY, Appellant, v. STATE of Florida, Appellee.

Nos. 72201, 73649.

Supreme Court of Florida.

Sept. 6, 1990.

Rehearing Denied Nov. 27, 1990.

Larry Helm Spalding, Capital Collateral Representative, Billy H. Nolas, Chief Asst. CCR, and Martin J. McClain, Staff Atty., Office of the Capital Collateral Representative, Tallahassee, for petitioner/appellant.

Robert A. Butterworth, Atty. Gen., and Peggy A. Quince and Robert J. Krauss, Asst. Attys. Gen., Tampa, for respondent/appellee.

PER CURIAM.

Fred Lewis Way, a state prisoner under a sentence of death, petitions this Court for a writ of habeas corpus (No. 72,201) and appeals from the denial of his motion for postconviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. We have jurisdiction. Art. V, § 3(b)(1), (9), Fla. Const.

Way was indicted in connection with the killings of his wife, Carol, and his daughter, Adrienne. The state presented evidence that Way, who was having marital difficulties, argued with his wife in the garage of their Tampa home, ultimately striking her in the head with a hammer. He called Adrienne into the garage and also struck her in the head with a hammer. He then set both mother and daughter, and the garage, on fire. The medical examiner testified that either the blows to the head or the fire could have caused the deaths. The jury, rejecting Way's defense that the mother and daughter were killed while engaged in mutual combat, found him guilty of second-degree murder in the killing of Carol Way but of first-degree murder for the killing of Adrienne. The jury recommended the death penalty; the trial judge imposed it; and this Court affirmed the judgment and sentence. ¹

Way raises a number of issues regarding both the guilt and penalty phases of his trial, but only two merit discussion.

Way argues that the trial testimony of his surviving daughter, Tiffany, was unreliable because it was induced by hypnosis and that trial counsel was ineffective in failing to seek to exclude it. In support of this assertion, Way notes that the statements Tiffany gave to police on the day of the killings and the day after differed materially from her testimony at trial. Because a hypnosis session preceded the trial testimony, Way attributes the differences to the hypnosis.

Hypnotically induced testimony is per se inadmissible today in the courts of Florida. In Bundy v. State, 471 So.2d 9 (Fla.1985), cert. denied, 479 U.S. 894, 107 S.Ct. 295, 93 L.Ed.2d 269 (1986), this Court declared that testimony by a witness whose memory has been refreshed by hypnosis is inadmissible because it is unreliable. At the same time, we recognized an important exception: A hypnotized witness does not become incompetent and, in fact, can "testify to all events other than the new matter discovered at the hypnotic session." Id. at 19.

Under the facts of this case there was no ineffective assistance of counsel for failing to seek to exclude Tiffany Way's testimony. It should be noted that Bundy had not yet been decided at the time of Way's trial, so his counsel did not have the benefit of that decision. Furthermore, the record does not demonstrate that Tiffany Way's testimony at trial was induced or refreshed by hypnosis.

Tiffany Way gave five statements. The first two were given to police shortly after the killings. Both times she said she heard her mother and her sister in the garage but that her father was not there. She heard Carol and Adrienne arguing and then saw a flaming, rusty can rolling through the garage. At a deposition given in October, she said Adrienne had not been in the garage and there had been no argument between her and Carol. It was her mother and father who were in the garage, and she and Adrienne were playing a game in her room. Her father called Adrienne to the garage, and a few moments later Tiffany heard screaming and saw the garage on fire. At the hypnosis session, some nine days later, she told much the same story as at the deposition, although in more detail. In December, she testified at the trial and told essentially the same story as she had at deposition. ² The one major difference came in this exchange on direct examination:

Q--Why did you tell the detectives that you heard your mother and your sister arguing?

A--Because that is what my dad had said and I didn't want my dad to get in trouble.

Had it come out in the hypnosis session that Tiffany's original account was designed to be consistent with her father's version of events in order to protect him, that part of the testimony would not have been admissible under Bundy. However, Tiffany did not make this statement in the hypnosis session, which did not venture into the discrepancies between her earlier and later statements. Indeed, her trial testimony is more like her deposition testimony than it is like the account she gave while under hypnosis.

Even if Tiffany's testimony with respect to why she changed her statement were deemed to be the result of the hypnotic session, measured by the Bundy standard for convictions which were in the appeal process when that case was decided, ³ Way's conviction would still have been affirmed. If Tiffany's reason for changing her statements were excluded, there was more than sufficient evidence to uphold the conviction, not the least of which was that Way was seen disposing of a hammer late in the day of the killings. In order to accept Way's version of events, one would have to conclude that Adrienne and her mother hit each other over the head simultaneously and fell into different portions of the garage, after which the garage was set on fire. ⁴

Way also argues that he is entitled to relief because the jury instructions in the penalty phase were improper. Specifically, he points out that the jury was not told that it could consider in mitigation any other aspect of Way's character or record or any other circumstance of the offense. ⁵ It was error not to give this instruction, ⁶ Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), though that error is subject to a harmless error analysis. Delap v. Dugger, 513 So.2d 659 (Fla.1987).

In this instance, we are not convinced that the error was harmless beyond a reasonable doubt. See Floyd v. State, 497 So.2d 1211 (Fla.1986). At the outset, it should be noted that the jury only voted seven to five to recommend death. Furthermore, there was considerable nonstatutory evidence introduced. Indeed, in the order denying the motion for postconviction relief, the judge pointed out that the jury had heard evidence which revealed the following important facts about Way:

1. The Defendant's father died when the Defendant was young, the Defendant's mother lived on social security and suffered debilitating medical problems and the Defendant had eight brothers and sisters.

2. The Defendant was an extremely loving and caring father and husband who spent much time with his wife and children and has resolved certain marital problems he was having with his wife prior to her death.

3. The Defendant had served his country in the United States Air Force.

4. The Defendant was active in various social and civic organizations.

5. The Defendant was an extremely hard working, trustworthy and honest employee of the Federal Aviation Administration and his job responsibility involved the safety of people's lives. Moreover, the Defendant was characterized as an excellent teacher and instructor.

6. The Defendant had an excellent reputation for honesty and peacefulness. Furthermore, the Defendant's reputation in the highly competitive area of the Federal Aviation Administration was unexcelled and his opportunity for continued advancement in that organization was good.

7. The Defendant's general educational and employment background, including his advancement in his profession, was presented in...