Filed: Sep. 22, 1998
Latest Update: Feb. 21, 2020
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT 09/22/98 No. 97-3355 THOMAS K. KAHN CLERK D. C. Docket No. 93-1055-CIV-ORL-22 TERRY MELVIN SIMS, Petitioner-Appellee, Cross-Appellant, versus HARRY K. SINGLETARY, JR., Secretary, Florida Department of Corrections, Respondent-Appellant, Cross-Appellant. Appeals from the United States District Court for the Middle District of Florida (September 22, 1998) Before DUBINA, CARNES and HUL
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT 09/22/98 No. 97-3355 THOMAS K. KAHN CLERK D. C. Docket No. 93-1055-CIV-ORL-22 TERRY MELVIN SIMS, Petitioner-Appellee, Cross-Appellant, versus HARRY K. SINGLETARY, JR., Secretary, Florida Department of Corrections, Respondent-Appellant, Cross-Appellant. Appeals from the United States District Court for the Middle District of Florida (September 22, 1998) Before DUBINA, CARNES and HULL..
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PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
09/22/98
No. 97-3355 THOMAS K. KAHN
CLERK
D. C. Docket No. 93-1055-CIV-ORL-22
TERRY MELVIN SIMS,
Petitioner-Appellee,
Cross-Appellant,
versus
HARRY K. SINGLETARY, JR.,
Secretary, Florida Department
of Corrections,
Respondent-Appellant,
Cross-Appellant.
Appeals from the United States District Court
for the Middle District of Florida
(September 22, 1998)
Before DUBINA, CARNES and HULL, Circuit Judges.
DUBINA, Circuit Judge:
The State of Florida (“the State”) appeals the district court’s judgment granting in
part Terry Melvin Sims’s (“Sims”) petition for federal habeas corpus relief as to his death
sentence. Sims cross-appeals the district court’s judgment denying his claims challenging
the validity of his conviction. After reviewing the entire record in this case, and having
the benefit of oral argument and the parties’s briefs, we affirm the district court’s
judgment denying habeas relief as to Sims’s guilt stage issues, but we reverse the district
court’s judgment granting habeas relief as to Sims’s sentencing stage issues.
I. BACKGROUND
A. FACTS
The facts are recited verbatim from the Florida Supreme Court’s opinion on direct
review of Sims’s conviction and sentence.
Terry Melvin Sims was convicted for the first-degree murder of George
Pfeil, an off-duty deputy sheriff who entered a pharmacy while it was being
robbed by Sims and three other men. Two of these other participants,
Curtis Baldree and B.B. Halsell, were the state’s chief witnesses. They
testified that Sims and Baldree armed themselves with pistols and entered
the pharmacy, while Halsell and the fourth participant, Gene Robinson,
waited in a car a short distance away. Baldree said that he went to the back
of the store to rob the pharmacist while Sims stayed at the front of the store
watching the door. Sims ordered the customers and employees to the back
of the store and into the bathroom. While Pfeil came into the store he and
Sims exchanged gunfire. Pfeil was shot twice and Sims was wounded in
the hip. Sims and Baldree escaped the scene and later joined their
accomplices. The four men then departed the area.
This account of the robbery and the shooting was confirmed by pharmacist
Robert Duncan, Duncan’s wife and daughter both of whom worked at the
store, and two customers who identified appellant. One of the customers,
William Guggenheim, testified that he tried to leave the store when he saw
a man pointing a gun at the pharmacist. He was stopped by Sims who took
2
his wallet. Guggenheim said he then saw Sims shoot a man who was
entering through the front door.
The main theory of defense was mistaken identity. The defense attempted
to discredit Baldree and Halsell on the basis of their bad character, drug
addiction, criminal records, and the plea arrangements between them and
the state. The defense attacked the identification testimony of one of the
customers as the product of a suggestive photographic line-up and
questioned the testimony of Guggenheim on the basis of his earlier failure
to choose appellant from a photographic line-up. The defense then
presented evidence of appellant’s resemblance to another individual said to
be a frequent criminal associate of Baldree and Halsell.
The jury returned verdicts of guilty of first-degree murder and robbery. At
the sentencing phase, the state presented a certified copy of a 1971 Orange
County conviction for assault with intent to rob. The defense presented
witnesses who testified to appellant’s good character and difficult
background circumstances. The jury recommended death. Finding several
aggravating circumstances and no mitigating circumstances, the trial judge
adopted this recommendation.
Sims v. State, 444 So. 2d 922, 923-24 (Fla. 1983).
B. PROCEDURAL HISTORY
Sims’s conviction and sentence were affirmed on direct appeal. Sims v. State, 444
So. 2d 922 (Fla. 1983). Sims raised numerous issues on direct appeal: (1) whether he was
denied his Sixth Amendment right to cross-examine a witness when the trial court
curtailed defense counsel’s cross-examination of Baldree; (2) whether the trial court erred
in denying his motion for mistrial when a witness mentioned using Sims’s “mug shot” in
a photographic display; (3) whether the trial court erred in excluding from evidence
documents corroborative of a defense witness’s testimony; (4) whether the prosecutor
made several improper comments during his closing argument; (5) whether the trial court
3
erred by not granting his request for an evidentiary hearing on whether the exclusion of
potential jurors unalterably opposed to the death penalty results in a jury predisposed
toward conviction; (6) whether Sims was improperly prevented from further questioning a
juror in a post-trial hearing about whether the jurors had considered Sims’s failure to
testify in reaching their verdict; (7) whether the trial court erred in allowing the jury to
return verdicts on multiple and inconsistent counts; and (8) whether the trial court
properly imposed a sentence of death. The Florida Supreme Court found no merit to
issues one, two, three, five, six, and seven. 444 So. 2d at 923-24. The court found issue
four to be procedurally barred because counsel failed to object at trial to the prosecutor’s
alleged improper comments. Therefore, the issue was not preserved for appeal. See State
v. Cumbie,
380 So. 2d 1031, 1033 (Fla. 1980).
With respect to the sentencing issues, the Florida Supreme Court determined that
two aggravating circumstances were improperly “double-counted” and that the
aggravating factor that the murder was heinous, atrocious, or cruel was improper, but
harmless. 444 So. 2d at 926. Despite these errors, and in light of no mitigating
circumstances, the court found that the death sentence was nonetheless appropriate. The
court found three aggravating circumstances valid: that the capital felony was committed
in the course of a robbery, that it was committed for the purpose of avoiding arrest, and
that Sims had previously been convicted of life-threatening crimes.
Id. Thus, “[w]here
there are some aggravating and no mitigating circumstances, death is presumed to be the
appropriate punishment.”
Id.
4
Sims filed a petition for habeas relief in the state court and later voluntarily
dismissed that petition. Sims then filed a motion to vacate the judgment and sentence and
a motion for collateral relief pursuant to Florida Rule of Criminal Procedure 3.850. The
trial court addressed both motions in its order. R.Vol. 12, Tab 7. Sims challenged his
conviction and sentence raising numerous issues: (1) whether his attorneys provided
ineffective counsel at the guilt stage proceedings because they failed (a) to explain why
further cross-examination of witness Baldree was necessary, (b) to challenge the alleged
misidentification of Sims by witness Sue Kovec due to her hypnosis, (c) to object to
improper closing argument by the prosecutor, and (d) to object to and request a hearing
on the necessity of numerous security measures employed at trial; (2) whether the
prosecutor knowingly used perjured testimony regarding the full extent of the bargain
Halsell received from the State for his testimony; (3) whether Sims’s attorneys were
ineffective at the penalty phase because their guilt stage errors affected their performance
at sentencing and because they failed to object to the prosecutor’s attempts to develop
sympathy for the victim; (4) whether the death sentence is unconstitutional because no
court found that Sims had the specific intent to cause the victim’s death; (5) whether the
death penalty is imposed in an arbitrary and discriminatory manner; (6) whether the death
sentence is unreliable because the court told the jury that the sentencing decision was not
their sole responsibility; (7) whether Sims’s attorneys were ineffective for failing to attack
the photo line-up the witnesses saw; (8) whether Sims’s attorneys were ineffective for
failing to adequately investigate and present additional evidence supporting the defense
5
theory that Terry Wayne Gayle, not Sims, was the fourth participant in the robbery; (9)
whether the State withheld exculpatory evidence (receipt of lock pullers bearing Gayle’s
signature); (10) whether there was Hitchcock1 error; (11) whether Sims was prevented
from showing evidence of sentencing disparity between himself and his co-participants;
(12) whether the prosecutor improperly used victim impact evidence; (13) whether
counsel failed to investigate, develop, and present additional evidence of mitigation; (14)
whether there was a failure to investigate the prior violent felonies and present available
evidence to mitigate or exclude them; and (15) whether the trial court erred in failing to
adequately inform the jury of the impact of its recommendation. After conducting an
evidentiary hearing on Sims’s motions for post-conviction relief, the trial court denied
relief. The Florida Supreme Court affirmed the trial court’s judgment. Sims v. State, 602
So. 2d 1253 (Fla. 1992).
Sims next filed a state petition for writ of habeas corpus in the Florida Supreme
Court.2 The Florida Supreme Court denied relief, finding all claims procedurally barred
1
Hitchcock v. Dugger, 481 U.S. 393 (1987) (a death sentence may be
unconstitutional if the trial judge instructs the advisory jury not to consider, and the trial
judge himself refuses to consider, evidence of non-statutory mitigating circumstances).
2
Sims’s state habeas petition contained the following claims: (1) whether Sims
was denied a complete appellate review of his conviction and sentence in his direct
appeal; (2) whether the penalty phase jury was permitted to weigh invalid or
impermissibly vague aggravating factors; (3) whether the Florida Supreme Court applied
an automatic affirmance of his sentence; (4) whether the trial court erred in repeatedly
chastising defense counsel in the jury’s presence; (5) whether Sims was denied his right
to be present during portions of his trial; (6) whether the trial court erred in failing to
instruct the jury to return a special verdict indicating whether it was convicting Sims of
6
except for the ineffective assistance of appellate counsel claim, which the court denied on
the merits. Sims v. Singletary, 622 So. 2d 980, 981 (Fla. 1993).
Sims then filed a petition for writ of habeas corpus relief under 28 U.S.C. § 2254
in the federal district court. The district court issued an order denying Sims’s petition for
habeas relief as to his conviction, but granting it as to his death sentence. For the reasons
that follow, we affirm the district court’s judgment denying habeas relief on Sims’s guilt
stage claims but reverse the judgment insofar as it grants habeas relief on Sims’s penalty
stage claims.
II. STANDARD OF REVIEW
The district court’s grant or denial of habeas corpus relief is reviewed de novo.
Byrd v. Hasty, 142 F.3d 1395, 1396 (11th Cir. 1998). “A district court’s factual findings
in a habeas corpus proceeding are reviewed for clear error.”
Id. An ineffective assistance
of counsel claim is a mixed question of law and fact which we review de novo. Dobbs v.
Turpin,
142 F.3d 1383, 1386 (11th Cir. 1998).
III. ISSUES
1. Whether Sims’s attorneys were ineffective for the following reasons:
a. failure to challenge the “suggestive identification procedures;”
b. failure to object to the use of hypnotically-induced testimony;
felony murder or premeditated murder; (7) whether Sims was denied his right to a reliable
and nonarbitrary sentencing determination; and (8) whether Sims’s appellate counsel was
ineffective.
7
c. failure to object to the use of shackles on the defendant;
d. failure to adequately confront and cross-examine Baldree;
e. failure to object to improper prosecutorial comment; and
f. counsel’s commission of numerous omissions and errors that undermined
confidence in the verdict.
2. Whether Sims’s constitutional rights were violated when unreliable
hypnotically enhanced testimony was used against him.
3. Whether the trial court unconstitutionally curtailed defense counsel’s cross-
examination of witness Curtis Baldree.
4. Whether the prosecution failed to reveal the actual terms of the plea agreement
extended to James “B.B.” Halsell in exchange for his testimony.3
5. Whether the prosecution withheld exculpatory documentary and testimonial
evidence.
6. Whether there was prosecutorial misconduct during closing argument at the
penalty stage.
7. Whether the trial court erred when it denied Sims’s request for an evidentiary
hearing to determine the “prosecution-proneness” of the jury empaneled in his case.
8. Whether Sims was denied a fair trial because the trial court denied a motion for
mistrial based on a witness’s reference to Sims’s “mug shot” during trial.
3
The district court framed this argument in terms of a violation of Giglio v.
United States, 405 U.S. 150 (1972).
8
9. Whether Sims’s federal rights were violated when the trial court ended post-
trial inquiry of a juror and denied Sims’s motion for a new trial.
10. Whether the trial court erred in permitting the jury to return general verdicts on
allegedly multiple and inconsistent counts of first degree murder.
11. Whether Sims received ineffective assistance of appellate counsel on direct
appeal.
12. Whether Sims was denied the right to present a defense and have a fair trial
because of the trial court’s exclusion of three documents.
13. Whether errors during the guilt phase require vacating Sims’s death sentence.
14. Whether there was constitutional error with regard to Sims’s sentencing due to
a Hitchcock violation.
IV. DISCUSSION
A. Guilt Stage Issues
1. Ineffective Assistance of Counsel at the Guilt-Stage
The law regarding ineffective assistance of counsel claims is well settled and well
documented. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set
forth a two-part test for analyzing ineffective assistance of counsel claims. According to
Strickland,
First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
9
errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
Strickland, 466 U.S. at 687. “When applying Strickland, we are free to dispose of
ineffectiveness claims on either of its two grounds.” Oats v. Singletary,
141 F.3d 1018,
1023 (11th Cir. 1998).
The various claims of ineffective assistance of counsel asserted by Sims are as
follows:
(a) Sims claims that his attorneys provided ineffective counsel by failing to
challenge the suggestive identification procedures at trial. Sims complains that a
photographic line-up and media coverage interfered with the in-court identification of
him by witnesses Sue Kovec (“Kovec”), William Guggenheim (“Guggenheim”), and
Colleen Duncan (“Colleen”). The record discloses that Sims’s counsel filed a pre-trial
motion to suppress the suggestive identification procedures. R. Vol. 5, p. 958, 968; Vol.
7, pp. 1165-1211; Vol. 14, pp. 220, 300.4 The trial court conducted an evidentiary
hearing and denied the motion. R. Vol. 5, p. 972. There is nothing in the record to
suggest that the photographic line-up was suggestive. Detective Ralph Salerno
(“Salerno”) testified that he showed the photographic line-up to the witnesses. R. Vol. 7,
p. 1174; Vol. 14, p. 645. Robert Duncan (“Duncan”), the pharmacist, was unable to
identify anyone; Guggenheim identified Baldree; and Kovec identified Baldree and Sims.
4
The record of Sims’s trial and post-conviction hearing will be designated as “R.
Vol. ___.” The record on appeal, consisting of the district court’s order, will be
designated as “ROA, Vol. ___.”
10
Salerno showed the line-up to these witnesses because they had all indicated that they
would be able to identify the perpetrators again. The fact that Kovec was the only
witness to identify Sims indicates that the photographic line-up was not suggestive.
Additionally, defense counsel cross-examined all of the witnesses regarding their in-court
identification of Sims. Accordingly, their failure to object at trial to the alleged
suggestiveness of the photographic line-up cannot be deemed legally deficient.
(b) Sims argues that his lawyers provided ineffective counsel by failing to object
to the use of hypnotically-enhanced testimony. Specifically, Sims claims that counsel
should have (1) thoroughly cross-examined the witnesses at trial regarding their hypnosis
sessions and (2) argued that the testimony of the hypnotically refreshed witnesses should
have been excluded under state law in effect at the time this case was tried in 1978. Both
arguments center around the testimony of Duncan, Guggenheim, and Kovec, who were
subjected to hypnosis a few days after the crime. The hypnotist, Bruce Drazen
(“Drazen”), had been conducting hypnotic sessions for the police department for several
years, although he had no formal educational training in hypnosis. R. Vol. 13, pp. 34-36.
Drazen had not read the statements of the witnesses and had no knowledge of what the
suspects looked like. Id. at 48. The main thrust of his hypnosis sessions was to develop
better details of the perpetrators.
Id. at 50. Either during or immediately after the
hypnosis sessions, the witnesses talked to a police artist who attempted to draw pictures
reflecting the characteristics of the alleged perpetrators.
Id. at 59.
11
The record indicates that Sims’s counsel did file a pre-trial motion to strike the
introduction of the hypnotically refreshed testimony, but apparently did not follow up on
that motion. During the trial, counsel did not cross-examine the witnesses about their
hypnosis sessions. At Sims’s Rule 3.850 hearing, one of Sims’s lawyers, Bill Heffernan
(“Heffernan”), stated that he did not research the question of whether hypnotically
refreshed testimony was admissible. Sims’s other lawyer, Mark Rabinowitz
(“Rabinowitz”), testified that he did conduct research on the subject and concluded that
the testimony was admissible. In its ruling on Sims’s Rule 3.850 motion, the trial
court noted that the use of hypnotically refreshed testimony was permitted at the time of
Sims’s trial, although it was later discredited in Bundy v. State, 471 So. 2d 9 (Fla. 1985),
and determined to be inadmissible. Thus, counsel could not be held ineffective for failing
to object to testimony that was admissible at the time of Sims’s trial. Additionally,
Sims’s counsel determined that the witnesses’s credibility could be attacked by other
means. The trial court found that “[t]his decision falls within the wide range of
professionally competent assistance that counsel must make in every trial. Furthermore,
counsel is not required to anticipate changes in the law resulting from subsequent court
decisions.” R. Vol. 12, Tab 7, p. 5.
On appeal, the Florida Supreme Court affirmed the trial court’s ruling, noting that
in 1978, “it was evident that forensic hypnosis was often employed.” 602 So. 2d at 1256.
The court further found that even if counsel had been ineffective, Sims was not
prejudiced within the meaning of Strickland. First, Drazen did not know what the
12
perpetrators looked like, so his questions could not have been suggestive. Second, the
State presented the testimony of Sims’s two accomplices who identified Sims as the
triggerman so that the hypnotically refreshed testimony was not the only evidence on this
point. Moreover, even if the Bundy analysis had been available at the time of Sims’s
trial, much of the hypnotized witnesses’s testimony would still have been admissible. 602
So. 2d at 1256. See Stringer v. Black,
503 U.S. 232, 235 (1992)(federal courts will not
challenge a state court’s determination of state law).
Under the circumstances of the case, we cannot find that counsel’s performance
fell outside the range of reasonably competent assistance. Counsel’s testimony at the
Rule 3.850 hearing supports a reasonable interpretation that there was a strategic decision
on counsel’s part not to attempt to mount an attack on the unreliability of hypnotically
refreshed testimony. R. Vol. 13, pp. 147-57; Vol. 14, pp. 303-08. Sims’s attorneys felt
confident that they could attack the reliability of the witnesses’s identification on cross-
examination. Accordingly, under our precedents dealing with tactical choice by counsel,
we conclude there was no deficient performance. See e.g. Davis v. Singletary, 119 F.3d
1471, 1477 (11th Cir. 1997)(attorney’s failure to attempt to impeach a witness on grounds
that the witness had been hypnotized was reasonable, tactical decision because bringing
to the jury’s attention the fact that a prosecution witness had been hypnotized would have
run the risk of bolstering that witness’s testimony in the eyes of the jury), cert. denied,
118 S. Ct. 1848 (1998); Spaziano v. Singletary,
36 F.3d 1028, 1039 (11th Cir.
1994)(counsel made a strategic decision to keep from the jury the fact of the hypnosis).
13
See also Thompson v. Nagle, 118 F.3d 1442, 1452 (11th Cir. 1997)(defense counsel’s
decision to present a mental health defense based on the testimony of the defendant’s
father and one mental health expert was strategic choice since this strategy would prevent
the admission of damaging testimony at trial), cert. denied,
118 S. Ct. 1071 (1998);
Lambrix v. Singletary,
72 F.3d 1500, 1504-05 (11th Cir. 1996)(counsel’s decision not to
present a wealth of evidence of chemical dependency was a tactical choice since counsel
determined that such evidence would be detrimental rather than beneficial in the
sentencing phase), aff’d,
520 U.S. 518 (1997); Mills v. Singletary,
63 F.3d 999, 1024-26
(11th Cir. 1995)(counsel’s decision to curtail further investigation into co-defendant’s
psychiatric treatment comported with trial strategy and counsel’s decision not to present
additional mitigating evidence was reasonable), cert. denied,
517 U.S. 1214 (1996). In
sum, we agree with the state courts that this strategic decision was not one of those
relatively rare strategic decisions that is outside the wide range of reasonable professional
assistance.5
Sims also argues that his counsel should have been aware of two recent decisions
of the Florida District Court of Appeals, Third District, which held that hypnotically
5
The district court determined that counsel did not perform reasonably in
addressing the use of hypnotically enhanced testimony; however, the court concluded that
Sims could show no prejudice from counsel’s deficient performance. Thus, under
Strickland, Sims’s claim of ineffectiveness did not merit relief. As noted infra, however,
the district court found that counsel’s inadequate performance in failing to address the use
of hypnotically enhanced testimony, along with other factors, precluded a finding of
harmlessness on the Hitchcock claim and warranted habeas relief as to the sentence of
death.
14
refreshed testimony was inadmissible. See Rodriguez v. State, 327 So. 2d 903, 904 (Fla.
3rd Dist.Ct.App. 1976); Shockey v. State,
338 So. 2d 33, 37 (Fla. 3rd Dist.Ct.App. 1976).
He contends that the trial court and counsel were bound by these opinions although the
trial court was not in the third district court of appeals. Even if the trial court were bound
by these decisions, they are distinguishable. In Rodriguez, the court addressed the sole
question of whether the trial court erred by prohibiting the admission of statements made
by the defendant under hypnosis. This is materially different from the hypnotically
refreshed testimony of witnesses used in Sims’s case. The Rodriguez court found no
abuse by the trial court in disallowing the hypnotically induced statements of the
defendant, but noted that it “remains unconvinced of the reliability of statements procured
by way of
hypnosis.” 327 So. 2d at 904. This is not a definitive statement regarding the
admissibility of hypnotically refreshed testimony such that counsel would have known
that hypnotically refreshed testimony was not admissible in this case. Additionally, in
Shockey, the defendant filed a motion for new trial relying upon evidence from his
accomplice’s hypnotic session which tended to corroborate the defendant’s version of the
crime. The court found that the trial court properly denied the motion because the
hypnotically induced testimony was not
admissible. 338 So. 2d at 37. Again, the Shockey
decision is not a definitive statement regarding the use of hypnotically refreshed
testimony such that Sims’s counsel should have known it was admissible in his case.
As the Florida Supreme Court noted on appeal of Sims’s denial of post-conviction
relief, the use of forensic hypnosis was admissible at the time of Sims’s trial. “It was not
15
until seven years later that this Court held that hypnotically obtained testimony was
inadmissible.” 602 So. 2d at 1256 (citing Bundy v. State,
471 So. 2d 9 (Fla. 1985)). If the
Rodriguez and Shockey decisions had been binding on the trial court, the Florida
Supreme Court would have indicated that in its opinion, but it did not. We will not
challenge a state court’s determination of state law. See Stringer v. Black,
503 U.S. 232,
235 (1992)(“It would be a strange rule of federalism that ignores the view of the highest
court of a State as to the meaning of its own law.”); Parker v. Dugger,
498 U.S. 308, 327
(1991)(White, J., dissenting)(“It is axiomatic that . . . the views of the State’s highest
court with respect to state law are binding on the federal courts.”)(citations and quotation
omitted); Cargill v. Turpin,
120 F.3d 1366, 1381 (11th Cir 1997)(“We are not at liberty to
challenge this state court determination of state law.”), cert. denied,
118 S. Ct. 1529
(1998).
Accordingly, we are not persuaded that Sims’s attorneys were ineffective by
failing to object to the use of hypnotically refreshed testimony since the law at the time of
Sims’s trial supported the admissibility of such testimony. Assuming arguendo that
Sims’s attorneys were ineffective based on this failure to object, Sims has shown no
prejudice within the meaning of Strickland. As previously noted, Drazen did not know
what the killer looked like when he conducted the hypnosis sessions, so his questions
were not suggestive. Further, assuming that none of the hypnotized witnesses testified,
the State presented the testimony of Sims’s accomplices who identified Sims as the
triggerman. Sims cannot demonstrate that a reasonable possibility exists that the result of
16
the proceedings would have been different. He is entitled to no relief on this claim of
ineffectiveness.
(c) Sims claims that his attorneys were ineffective due to their failure to object
when Sims was brought into court wearing shackles or to object to the extra security
measures in place during his trial. At Sims’s Rule 3.850 hearing Heffernan testified that
he did object to the shackles and that the trial court ordered them removed. R. Vol. 13, p.
146. One of the prosecutors testified that Sims was shackled at the start of trial, but he
thought Sims was brought in and seated before the jury entered the courtroom. R. Vol.
14, pp. 268-70. Rabinowitz stated that Sims came into the courtroom in shackles and Bill
[Heffernan] objected, but the trial court denied the motion. Rabinowitz further stated that
“[w]e were placed in a position that if we stood up, – started asking the jury, we would be
responsible for poisoning the venire.” R. Vol. 14, p. 312.
The record belies Sims’s claim that counsel failed to object to the use of shackles.
It was clear that counsel did object and then made a strategic decision not to call attention
to the shackles. There is no merit to this claim.
Sims also argues that counsel should have objected to the extra security measures
in place during his trial. At the post-conviction hearing, Heffernan commented that
security was very tight, but he made no mention of how this affected his representation of
Sims. R. Vol. 13, p. 144. In light of Sims’s failure to show how this prejudiced his right
to a fair trial, he is entitled to no relief on this claim.
17
(d) Sims argues that counsel failed to confront adequately and cross-examine one
of the State’s key witnesses, Curtis Baldree. The substantive component of this claim
was presented on direct appeal and decided adversely to Sims. 444 So. 2d at 924. Sims
did not raise this specific claim as one of ineffective assistance of counsel in his post-
conviction proceeding. Therefore, the claim is procedurally defaulted for our purpose,
and the district court erred in considering the claim on the merits. See Footman v.
Singletary,
978 F.2d 1207, 1211 (11th Cir. 1992).6
(e) Sims argues that his lawyers were ineffective for failing to object to improper
prosecutorial comment and argument and improper judicial instruction. During the
course of the trial, the trial judge corrected Sims’s counsel twice during voir dire,
admonished counsel several times during opening argument, and advised counsel to
“move on” during cross-examination of two witnesses. These admonitions by the trial
court were done to correct misstatements of counsel. When Sims’s counsel objected, the
court similarly corrected the prosecutor. R. Vol. 1, p. 93. Sims also claims that the trial
court improperly instructed defense counsel to discuss only the evidence. Three of the
four rulings by the trial court were in response to appropriate objections by the
prosecutor. R. Vol. 2, pp. 240, 241, 245. A review of the record demonstrates that none
of the trial court’s comments conveyed its opinion about the evidence or either party’s
case. There was no impropriety in the trial court’s rulings or comments.
6
The State argued in its response to Sims’s federal habeas petition that this
particular claim was procedurally barred. ROA, Vol. 2, Tab 17, pp. 23-24.
18
Sims contends that the trial court continually interrupted counsel’s examination of
witnesses and denigrated defense counsel’s questioning of two key state witnesses.
Having reviewed the record, we see no indication that these admonitions directly or
indirectly influenced the jury. The trial court had complete control of the case and his
courtroom. The court treated all parties equitably in ensuring that Sims received a fair
trial. Counsel’s decision not to challenge the trial court’s comments cannot be deemed
deficient.
Sims claims he received ineffective counsel because his lawyers failed to object to
improper prosecutorial comments and argument. The prosecutor’s comments of which
Sims complains here consist of vouching for the credibility of witnesses, referring to
evidence not in the record, and attesting to the guilt of the defendant. Sims’s counsel did
not object during the closing argument to these comments. Heffernan stated at the post-
conviction hearing that he overlooked the objection at closing, but also commented that
“it doesn’t make a difference what a lawyer says at closing. . . . [the] court goes to great
lengths to instruct [the] jury that what counsel says in closing is not evidence.” R. Vol.
13, p. 189.
We conclude that counsel’s actions were not deficient; however, assuming
arguendo that counsel’s failure to object to the prosecutor’s comments constituted
ineffective assistance, Sims has shown no prejudice as a result of this inaction. Five
eyewitnesses, including two accomplices, identified Sims during the trial as the
19
participant in the murder/robbery. Considering this eyewitness testimony, the
prosecutor’s comments did not prejudice Sims’s trial.
(f) Sims argues that his lawyers committed numerous errors and omissions during
trial which undermined confidence in the verdict. After reading the record and
determining that all of Sims’s claims of ineffectiveness are without merit, we conclude
that this claim too must fail. A defendant is entitled to a fair trial, not a flawless one.
Rose v. Clark, 478 U.S. 570, 579 (1986). Our review of the record convinces us that
Sims received extremely effective counsel. His attorneys vigorously cross-examined the
State’s witnesses and argued for the exclusion of vital evidence. Moreover, we note that
the trial court complemented defense counsel on their performance. R. Vol. 4, p. 768.
Based on the totality of the circumstances, Sims’s counsels’ performance did not
undermine confidence in the verdict.
2. The use of hypnotically enhanced testimony
Sims claims that his Fifth, Sixth, Eighth, and Fourteenth Amendment rights were
violated during trial when the State used unreliable hypnotically enhanced testimony.
The district court addressed this claim on the merits and denied relief. A merits
determination is not necessary, however, because the claim is barred by the non-
retroactivity doctrine of Teague v. Lane, 489 U.S. 288 (1989) (bars retroactive application
in a 28 U.S.C. § 2254 proceeding of any rule of law which had not been announced at the
time the petitioner’s conviction became final). See Spaziano v.
Singletary, 36 F.3d at
1043, (applying three steps of Teague: first step is to determine when the defendant’s
20
conviction and sentence became final; second step is determining whether the rule the
habeas petitioner seeks or upon which he relies is a new one; third step is determining
whether either of the two exceptions -- rules that place conduct beyond the reach of
criminal law or new watershed rules of criminal procedure which implicate the
fundamental fairness and accuracy of the criminal proceeding -- is applicable) (citations
omitted). The conviction and sentence in this case became final for Teague purposes on
June 11, 1984, (when the United States Supreme Court denied certiorari) while the
conviction and sentence in Spaziano became final on July 2, 1984. Spaziano controls the
disposition of this claim because we determined in that case that the Teague bar applied
to the use of hypnotically enhanced testimony.7 Accordingly, the same rationale applies
in Sims’s case and he is entitled to no relief on this claim.
3. Defense counsel’s cross-examination of Baldree
7
The State also contends that this claim is procedurally barred because it could
have been, but was not raised, on direct appeal. In Sims’s Rule 3.850 petition, he claimed
that he was entitled to reversal based upon Florida Supreme Court’s decision in Bundy v.
State, 471 So. 2d 9 (Fla. 1985). Bundy was not decided on federal constitutional grounds
and the Florida Supreme Court’s denial of relief on Sims’s claim was predicated solely on
Florida law. Thus, Sims’s claim is procedurally defaulted. See Coleman v. Thompson,
501 U.S. 722 (1991). Although the Supreme Court has admonished us that when the
State argues that a claim is both Teague barred and procedurally barred, we ordinarily
should decide the procedural bar issue, see Lambrix v. Singletary,
520 U.S. 518, ___,
117
S. Ct. 517, 523 (1997), we decline to do so in this case because the application of Teague
is substantially clearer. Davis v. Singletary,
119 F.3d 1471, 1477-78 (11th Cir.
1998)(deciding that Teague, instead of procedural bar, was more clearly applicable to bar
retroactive application of Espinosa v. Florida,
505 U.S. 1079 (1992)).
21
This issue was addressed by the Florida Supreme Court on direct appeal and
decided adversely to Sims. 444 So. 2d at 924. The record indicates that the trial court
abruptly halted defense counsel’s cross-examination of Baldree when he began to
question Baldree about the individual whom Sims was said to resemble. Defense counsel
conducted extensive cross-examination of Baldree, and the State’s objection and the
court’s ruling came only after the defense went into matters beyond the scope of
Baldree’s direct examination. Defense counsel could have made a proffer to show the
relevance of the information they were seeking to bring before the jury, but they did not.8
Accordingly, we find no Sixth Amendment violation.
4. False evidence claim
Sims contends that the prosecution failed to reveal the actual terms of the plea
agreement extended to Halsell for his testimony. According to Sims, during trial, the
prosecutor falsely argued that Halsell’s plea agreement included a ten year capped
sentence which he had begun to serve at the time of trial. However, Halsell had not yet
been sentenced at the time of trial and when he was actually sentenced, he received only a
8
Sims relies on the statement by the Florida Supreme Court that defense counsel
could have made a proffer to show the relevance of the information they were seeking to
introduce to support his claim of ineffective assistance of counsel for failing to make a
proffer and explain why the information was vital. Sims argued in his Rule 3.850 petition
that trial counsel would have brought out the relationship between Robinson (another
participant in the crime who was waiting in the “getaway” car) and Gayle (Sims’s look-a-
like) as opposed to Baldree and Gayle. In his federal habeas petition, Sims relies upon
the Baldree-Gayle connection. This claim, as discussed infra, is procedurally barred
because it was not presented to the state courts. See Wainwright v. Sykes, 433 U.S. 72
(1977); Footman v.
Singletary, 978 F.2d at 1211.
22
two year term of imprisonment. The Florida Supreme Court found this issue without
merit, see Sims v. State, 602 So. 2d at 1257; so did the district court. We agree with its
findings.
At trial, the prosecution asked Halsell if he was under a ten year sentence for
armed robbery and he replied that he was. R. Vol. 2, p. 299. The prosecution later asked
if part of their deal was to cap his sentence at ten years and Halsell responded yes. R.
Vol. 2, p. 300. At the Rule 3.850 hearing, both defense counsel testified that they
understood that Halsell’s sentence would consist of a ten year cap. R. Vol. 13 & 14, p.
162-63, 278-79, 284-85, 315. Having read the record in its entirety, we see no deliberate
deception by the prosecution. Accordingly, Sims’s claim lacks merit.
5. Brady claim
Sims argues that the State violated Brady v. Maryland, 373 U.S. 83 (1963), when it
withheld exculpatory evidence he alleges would have linked Gayle to the crime. The
alleged exculpatory evidence was a receipt for the purchase of “lock pullers”9 and a claim
that the seller of the lock pullers had identified a photograph of Gayle as the buyer. Sims
argues that this exculpatory evidence prejudiced him because it links Gayle to Robinson
and shows that Gayle and Robinson together purchased the lock pullers that were used in
the instant robbery. Sims contends this evidence would have supported his theory of
defense that Gayle was the fourth participant in the crime, not Sims.
9
Lock pullers are used by individuals to steal cars. The lock puller provides
access to the ignition of a car and enables the thief to start the car without a key.
23
In order to establish a violation of Brady, Sims must demonstrate the following:
(1) that the Government possessed evidence favorable to the defendant
(including impeachment evidence); (2) that the defendant does not possess
the evidence nor could he obtain it himself with any reasonable diligence;
(3) that the prosecution suppressed the favorable evidence; and (4) that had
the evidence been disclosed to the defense, a reasonable probability exists
that the outcome of the proceedings would have been different.
United States v. Meros, 866 F.2d 1304, 1308 (11th Cir. 1989)(citations omitted). For
Brady purposes, evidence is material “only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have been
different.” United States v. Stewart,
820 F.2d 370, 374 (11th Cir. 1987)(quotations &
citation omitted). “The question is not whether the defendant would more likely than not
have received a different verdict with the evidence, but whether in its absence he received
a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v.
Whitley,
514 U.S. 419, 434 (1995).
Sims abandoned the photograph component of this claim on appeal of the denial of
his motion for post-conviction relief. Therefore, this portion of the argument is
procedurally barred for federal habeas purposes. Lindsey v. Smith, 820 F.2d 1137, 1143
(11th Cir. 1987). The receipt portion of this argument lacks merit. The evidence was not
“material” in the Brady sense. The receipt was undated and unsigned and could not have
connected Gayle to Robinson. This evidence in no way demonstrates that Gayle was at
the robbery/murder scene and, therefore, it was immaterial. In light of the evidence
24
establishing Sims as the triggerman, the exclusion of this document did not affect the
outcome of Sims’s trial.
6. Prosecutorial misconduct during closing argument at the penalty stage
Sims alleges that the prosecutor made several egregious statements during closing
argument that denied him a fair trial. Specifically, the prosecutor vouched for the
credibility of witnesses, expressed his personal belief in Sims’s guilt, made personal
attacks on defense counsel, and referred to evidence not presented at trial. This claim was
raised on direct appeal, and the Florida Supreme Court found the issue procedurally
barred because it was not preserved for appellate review. 444 So. 2d at 924. We conclude
the district court correctly determined that the claim was procedurally barred for federal
habeas purposes.
A federal court must dismiss those claims that are procedurally barred under state
law. Harris v. Reed, 489 U.S. 255 (1989). Since the Florida Supreme Court found this
claim to be procedurally barred, we are precluded from addressing the merits of this claim
unless Sims can show “cause and prejudice” for his procedural default or that he is
“actually innocent.” Johnson v. Singletary,
938 F.2d 1166, 1174-75 (11th Cir. 1991).
Sims has not demonstrated that either exception applies to his case. Accordingly, the
claim is procedurally barred.
7. Evidentiary hearing on the prosecution-proneness of the jury
The district court determined that this issue lacks merit. We agree. In Lockhart v.
McCree, 476 U.S. 162 (1986), the Supreme Court held that a defendant was not entitled
25
to have on the jury individuals who are unalterably opposed to the death penalty.
Accordingly, the trial court did not err when it denied Sims’s motion for an evidentiary
hearing to determine the “prosecution proneness” of the empaneled jury.
8. Denial of motion for mistrial
Sims asserts that he was denied a fair trial because the trial court denied his motion
for mistrial based on a witness’s reference to Sims’s “mug shots.” The Florida Supreme
Court rejected this argument on direct appeal. 444 So. 2d at 924. The court found that
“[s]ince these words were used by a defense witness and did not specifically refer to a
prior conviction, we find that this vague reference to other possible criminal activity was
not so prejudicial as to require a new trial.”
Id. The district court also denied Sims relief
on this claim.
During the prosecutor’s cross-examination of defense witness Detective Salerno,
the witness mentioned that he had a “mug book” before he compiled the photographic
line-up. R. Vol. 4, p. 650. Defense counsel objected to this “mug book” reference and
the trial court overruled the objection. The witness later referred to a “mug shot” of Sims.
Id. at 651. Defense counsel objected and moved for a mistrial. The trial court overruled
the objection and admonished the witness not to use “that phrase again.”
Id. at 652.
In habeas corpus proceedings, federal courts generally do not review a state court’s
admission of evidence. McCoy v. Newsome, 953 F.2d 1252, 1265 (11th Cir. 1992). We
will not grant federal habeas corpus relief based on an evidentiary ruling unless the ruling
affects the fundamental fairness of the trial.
Id. Accord Baxter v. Thomas,
45 F.3d 1501,
26
1509 (11th Cir.)(evidentiary ruling claims reviewed only to determine whether the error
“was of such magnitude as to deny fundamental fairness”), cert. denied, ___U.S ___, 116
S. Ct. 385 (1995). Sims cannot demonstrate that the trial court’s admission of this
evidence adversely affected his trial. Additionally, such trial court errors are subject to
the harmless error analysis and will not be the basis of federal habeas relief unless the
error “had substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht v. Abrahamson,
507 U.S. 619, 623 (1993)(quotation omitted). In light of the
identification testimony showing Sims as the triggerman, the brief reference to the “mug
shots” did not have a substantial and injurious effect or influence on the jury verdict.
9. Post-trial inquiry of juror
Sims claims that his federal rights were violated when the trial court ended post-
trial inquiry of a juror and denied Sims’s motion for a new trial. Defense counsel
requested to interview the jurors following their verdict, and during the examination, one
juror testified that the jury talked freely about the fact that Sims did not take the stand and
testify in his own behalf. At this point, the trial court halted the interview.
Sims raised this issue on direct appeal, and the Florida Supreme Court concluded
that the jury had been properly instructed not to consider Sims’s failure to testify and that
the trial court had not erred in refusing to delve further into the matter. 444 So. 2d at 924-
25. “The general rule in Florida is that a juror’s testimony is relevant only if it concerns
matters which do not essentially inhere in the verdict
itself.” 444 So. 2d at 925 (citing
Florida cases). The Florida Supreme Court commented that a juror’s “consideration of a
27
defendant’s failure to testify is not the same as considering evidence outside the record,
but is rather an example of its misunderstanding or not following the instructions of the
court.” Id. The district court agreed, and so do we.
Although Sims contends that his Fifth, Sixth, Eighth, and Fourteenth Amendment
rights were violated, he offers nothing to support his allegations. In light of this failure
and the identification testimony showing Sims as the triggerman, Sims is entitled to no
relief on this claim. Moreover, the trial court instructed the jury that Sims had no
obligation to testify and that the State had to prove Sims’s guilt beyond a reasonable
doubt. See R. Vol. 4, p. 744. We must assume that the jury followed the instructions of
the trial court. United States v. Chandler, 996 F.2d 1073, 1088 (11th Cir. 1993)(“The jury
is presumed to follow the instructions they are given.”), cert. denied,
512 U.S. 1227
(1994).
10. General verdicts on allegedly multiple and inconsistent counts
Sims argues that the trial court erred in permitting the jury to return general
verdicts on allegedly multiple and inconsistent counts of first degree murder. Sims states
that the crime of murder was charged in alternative counts and that the trial court erred in
denying his motion to require the State to select and pursue only one of the two counts.
The Florida Supreme Court rejected this contention on direct appeal. 444 So. 2d at 925.
The district court correctly denied this claim on the basis of Schad v. Arizona,
501 U.S.
624, 644-45 (1991), in which the Supreme Court rejected a petitioner’s contention that a
general guilty verdict that fails to differentiate between premeditated and felony murder is
28
constitutionally inadequate. The jury did not need to agree on the precise theory of first
degree murder, only the offense itself. The jury’s verdict was not fundamentally flawed.
11. Ineffective assistance of appellate counsel
Sims claims that his appellate counsel was ineffective for failing to raise numerous
issues on appeal: (1) that the trial court committed fundamental error by repeatedly
chastising defense counsel in the jury’s presence; (2) that Sims was denied the right to be
present at his trial; (3) that the failure to require a special verdict violated Sims’s right to a
unanimous jury verdict; and (4) that requiring Sims to prove that death was not the
appropriate punishment violated his right to a reliable and non-arbitrary sentencing
determination. In addition, Sims claims his appellate counsel was ineffective for failing
(a) to ensure a complete record or file a supplemental brief, (b) to argue denial of Sims’s
right to be present at all stages of his trial, (c) to challenge the denial of the motion for
change of venue, and (d) to challenge the denial of the motion to suppress identification
testimony. Sims raised numerous claims of ineffective assistance of appellate counsel in
his state habeas motion. R. Vol. 27, Tab 1. Issues one, three, and four were not raised in
that petition. The remaining grounds were addressed and rejected by the Florida Supreme
Court. Sims v. Singletary, 622 So. 2d 980 (Fla. 1993).
A federal court must dismiss those claims or portions of claims that either (1) have
been explicitly ruled procedurally barred by the highest state court considering the claims,
Harris v. Reed, 489 U.S. 255, 261-62 (1989), or (2) are not exhausted but would clearly
be barred if returned to state court.
Id. at 269-70 (O’Connor, J., concurring); Coleman v.
29
Thompson, 501 U.S. 722, 735 n.1 (1991). This procedural bar applies to claims of
ineffective assistance of counsel in habeas cases. Footman v.
Singletary, 978 F.2d at
1211. Thus, claims one, three, and four are procedurally barred because they were not
presented in the state courts and would be barred if they were now presented there.10
Sims cannot establish “cause and prejudice” or “actual innocence” to excuse his
procedural default. Johnson v. Singletary,
938 F.2d 1166, 1174-75 (11th Cir. 1991).
Accordingly, these claims are procedurally defaulted.
As noted earlier, claims two and (a) through (d) were asserted by Sims in his state
habeas petition, see R. Vol. 27, Tab 1, pp. 73-83, and were rejected by the Florida
Supreme Court. 622 So. 2d at 981 (“We find no other valid basis for a claim of
ineffectiveness here.”). Our review of the record demonstrates that none of the claims of
ineffective assistance of appellate counsel merit relief.11
12. Denial of right to present a defense and have a fair trial
Sims asserts that he was denied the right to present a defense and have a fair trial
based on the trial court’s exclusion of three documents. This claim was not, but could
have been, raised on direct appeal or in Sims’s state post-conviction motion. The failure
10
See Doyle v. Singletary, 655 So. 2d 1120, 1121 (Fla. 1995)(ineffective
assistance of appellate counsel claims not raised in first habeas petition are procedurally
barred from being raised in a subsequent habeas petition).
11
The district court discussed the merits of Sims’s claims of ineffective assistance
of appellate counsel and found no merit. We defer to the district court’s findings on this
claim. ROA, Vol. 3, Tab 33, pp. 35-40.
30
to raise this claim to the state courts is a procedural default that bars federal habeas
review of the claim. Wainwright v. Sykes, 433 U.S. 72 (1977). Further, Sims’s failure to
raise this claim in his Rule 3.850 motion is a procedural default for habeas purposes.
Bolender v. Singletary,
16 F.3d 1547, 1569 n. 29 (11th Cir. 1994). Accordingly, this
claim is procedurally barred.
In conclusion, we affirm the district court’s denial of federal habeas relief on the
guilt stage issues raised by Sims. We now turn to the sentencing stage issues, upon which
the district court granted Sims relief.
B. Penalty Stage Issues
1. Whether errors during the guilt phase require vacating the death sentence
Sims claims that numerous errors occurred during the guilt phase which require
vacating his death sentence. These alleged errors were ineffectiveness of counsel,
unnecessary use of shackles and excessive security measures, unreliable identification
testimony, and the prosecutor’s knowing use of perjured testimony. The Florida Supreme
Court rejected Sims’s contention on appeal from the denial of Sims’s motion for post-
conviction relief, 602 So. 2d at 1253, 1258; however, the district court determined that
these alleged errors cumulatively resulted in prejudice to Sims during the sentencing
phase. The district court’s holding is erroneous.
The district court’s reliance on the ineffective assistance of counsel at the guilt
stage claim is based upon the hypnosis issue which is foreclosed by binding precedent,
see Spaziano, and it is inconsistent with the district court’s holding that counsel was not
31
ineffective at the guilt phase because the prejudice component had not been established.
ROA, Vol. 3, Tab 33, pp. 11-17. The district court’s holding as to the
shackling/excessive security measures claim is incorrect because this “claim” was never
pled by Sims. Sims raised this claim in the context of an ineffective assistance of counsel
claim, and the district court properly denied relief. Id. at pp. 8-9. Thus, the substantive
shackling claim is procedurally barred because it was never presented to the state courts,
see Wainwright v. Sykes,
433 U.S. 72 (1977), and the district court’s reliance on it to
grant sentencing stage relief is erroneous.
The district court also relied on the unreliable hypnotically induced identification
testimony as cumulative error which prejudiced Sims. As stated previously, this claim is
barred by the non-retroactivity doctrine of Teague. Accordingly, the district court’s
reliance on this claim is misplaced.
The final cumulative error component was the district court’s finding that the State
knowingly used perjured testimony when the prosecutor argued that Halsell’s plea
agreement included a ten year sentence which he had begun to serve at the time of the
trial knowing that Halsell had not yet been sentenced. This finding is inconsistent with
the district court’s finding that there was no Giglio violation. ROA, Vol. 3, Tab 33, p. 19.
Accordingly, the district court erred in finding cumulative guilt stage error which
prejudiced Sims during the penalty phase.
2. Whether the Hitchcock error requires vacating the death sentence
32
Sims also alleges that there was constitutional error with regard to his sentencing
because the jury, trial judge, and the reviewing court were limited in their consideration
of mitigating evidence.12 Sims contends that a violation of Hitchcock v. Dugger, 481 U.S.
393 (1987), occurred which entitles him to penalty phase relief. The Florida Supreme
Court found Hitchcock error, but concluded that it was
harmless. 602 So. 2d at 1257. The
district court reached a contrary conclusion. ROA, Vol. 3, Tab 33, p. 44. We disagree
with the district court’s conclusion because it committed several legal errors in
determining that the Hitchcock error was not harmless beyond a reasonable doubt.
As the Florida Supreme Court noted, the jury instruction was “not a model of
clarity.” 602 So. 2d at 1257. In its instruction, the trial court listed the aggravating factors
which the jury could consider, see R. Vol. 5, p. 43-45, then mentioned the mitigating
circumstances. The pertinent portion of the instruction read: “The mitigating
circumstances which you may consider if established by the evidence among others are
these: . . .”
Id. at 45. The trial court then listed the statutory mitigating factors for the
jury to consider. The trial court’s only reference to non-statutory mitigating factors was
the phrase “among others.” Defense counsel did present non-statutory mitigating
evidence at the sentencing hearing via testimony from a young woman with whom Sims
had lived, the woman’s mother and daughter, and a fellow inmate at the jail who testified
12
These specific claims were listed in Sims’s federal habeas petition as issues XI,
XII, XIII, and XV. See ROA, Vol. 2, Tab 20, pp. 106-162.
33
to Sims’s attempt to counsel another inmate away from a life of crime. Id. at pp. 8-12,
13-20, 21-23, & 24-27.
We conclude that the trial court’s instructions did not limit the jury’s consideration
of non-statutory mitigating circumstances and therefore did not constitute a Hitchcock
error. See Buchanan v. Angelone, ___ U.S. ___, ___, 118 S. Ct. 757, 761
(1998)(reiterating the principle that a “sentencer may not be precluded from considering,
and may not refuse to consider, any constitutionally relevant mitigating evidence.”).
Sims’s sentencer was not precluded from considering all relevant mitigating evidence.
The trial court instructed the jury to consider certain mitigating factors, among others.
This instruction did not preclude the jury from considering all the mitigating evidence
presented by defense counsel but, instead, instructed them to consider all the evidence
that was presented. Accordingly, there was no Hitchcock error in this case.
Assuming arguendo that there was a Hitchcock error, the error was harmless
beyond a reasonable doubt. We employ the Brecht v. Abrahamson, 507 U.S. 619 (1993),
harmless error analysis to the Hitchcock error. See Williams v. Singletary,
114 F.3d 177,
180 (11th Cir. 1997)(“Brecht applies only at the second step of the inquiry in determining
if an already established error is harmless.”), cert. denied,
118 S. Ct. 712 (1998).
In Booker v. Singletary, 90 F.3d 440, 442 (11th Cir. 1996), we stated:
In Brecht, the Court held that Chapman’s [v. California, 386 U.S. 18
(1967)] standard of “harmless beyond a reasonable doubt” was inapplicable
to habeas corpus review. In place of Chapman, the Court substituted the
standard established by Kotteakos v. United States, 328 U.S. 750,
66 S. Ct.
1239,
90 L. Ed. 1557 (1946), for resolving the harmless error issue on the
34
direct review of a criminal conviction. The Kotteakos standard asks
whether the error “had substantial and injurious effect or influence in
determining the jury’s verdict.” By substituting Kotteakos’ standard for
Chapman’s, the Court in Brecht made it easier for a state to show that a
constitutional violation did not prejudice an habeas petitioner’s case.
90 F.3d at 442 (11th Cir. 1996)(citations omitted). We have held that Hitchcock errors are
“trial type” errors governed by Brecht. See e.g., Horsley v. State of Ala.,
45 F.3d 1486,
1492 (11th Cir. 1995); Boldender v. Singletary,
16 F.3d 1547 (11th Cir. 1994).
The Florida Supreme Court found that there was other non-statutory mitigating
evidence that could have been presented to the jury for their consideration, but it was not
overwhelming in light of the aggravating factors. 602 So. 2d at 1257. The district court
disagreed and found that there was no evidentiary support for the allegedly “valid”
aggravating factors. The district court found that the only evidence relating to the first
factor (that Sims had previously been convicted of a violent felony) was a stipulation read
by the prosecutor which informed the jury that Sims had previously been convicted of
assault with attempt to commit robbery. The district court cites no authority for the
proposition that a stipulation is not adequate evidence. The district court found that the
second aggravating factor (that the capital felony was committed while the defendant was
engaged in the commission of the robbery) was established, but this factor alone cannot
be sufficient to support a death sentence. As to the third factor, the district court found no
evidence in the record from which the jury could find beyond a reasonable doubt that the
capital felony was committed for the purpose of avoiding or preventing a lawful arrest.
35
As its basis for this finding, the district court stated that there is no evidence in the record
that the victim was a deputy sheriff.
On the contrary, we find sufficient support in the record for this aggravating factor.
One of Sims’s co-defendants, Halsell, testified that Sims came to the motel room bleeding
and said he killed a cop. R. Vol. 2, pp. 316, 350. Baldree also testified that Sims stated
he killed a cop. R. Vol. 3, p. 437. A bystander testified that she saw a deputy draw a gun.
R. Vol. 3, p. 470. Accordingly, the district court clearly erred in finding no evidentiary
support for the valid aggravating factors.
The district court found that in light of the other non-statutory mitigating evidence
which could have been presented, if counsel had been effective, the death sentence was
not appropriate considering the lack of evidentiary support of the valid aggravating
factors. We first observe that most of the non-statutory mitigating evidence which
Sims’s asserts was not presented actually was presented. Defense counsel presented the
testimony of a woman with whom Sims had lived and nursed while she was ill, the
woman’s mother and daughter, and a fellow inmate. The only specific information
defense counsel did not present was evidence of Sims’s troubled childhood. Sims argues
that counsel’s failure to present this evidence was ineffective assistance. We disagree.
Defense counsel stated at the Rule 3.850 hearing that Sims specifically told them not to
bother his family members. R. Vol. 13, p. 230. His attorneys explained the necessity of
mitigation to Sims, but he would not provide them any information. Counsel cannot be
deemed deficient for failing to present additional evidence of mitigation of which they
36
were unaware due to Sims’s refusal to assist them in obtaining the information. The
record discloses that defense counsel performed well. Accordingly, the district court
erred in finding that Sims’s attorneys were ineffective in failing to present non-statutory
mitigating evidence at the penalty phase.
The district court also determined that it was error for the sentencing court not to
consider the evidence of sentencing disparity between Sims and his co-defendants. This
error, according to the district court, also contributed to the substantial and injurious
effect or influence underlying the jury’s sentencing recommendation. The Florida
Supreme Court specifically held that the disparity between Sims’s sentence and the
sentences his co-defendants received is not a mitigating factor. 602 So. 2d at 1257. We
reject Sims’s argument that his co-defendant’s lesser sentences constituted a mitigating
factor, since the evidence shows that Sims was the triggerman. See Marek v. Singletary,
62 F.3d 1295, 1302 (11th Cir. 1995). As elicited from counsel at oral argument before this
panel, the jury and the court knew that one of the co-defendants was only going to
receive a two-year sentence and thought the other defendant was receiving a ten-year
sentence. Thus, the court knew most of the sentence disparity facts anyway and this fact
negates Sims’s contention. Accordingly, this alleged mitigating factor was not really
mitigating after all and the district court erred in concluding that it had a substantial and
injurious effect on the jury’s sentencing determination.
The district court then enumerated several sentencing stage errors which, in the
court’s judgment, preclude a finding that the Hitchcock error was harmless beyond a
37
reasonable doubt. ROA, Tab 33, pp. 48-49.13 The first three reasons14 are a restatement
that there was a Hitchcock error. As we stated previously, there was no Hitchcock error
and even assuming that there was error, it was harmless. Thus, we disagree with the
district court’s determination that numerous guilt stage and penalty stage errors preclude a
finding that the Hitchcock error was harmless.
First, the district court found that the trial judge and jury would not have sentenced
Sims to death or recommended a death sentence, respectively, if they had properly
weighed the aggravating factor or factors. As stated previously, the aggravating factors
were valid and supported by record evidence. Second, the district court also found that
the jury was not informed of the importance of its recommendation. The district court
cites no authority for this holding. Assuming, however, that this is a cognizable claim
under Caldwell v. Mississippi, 472 U.S. 320 (1985)15, the Teague bar would apply
13
The district court also enumerated four guilt stage errors which preclude a
finding that the Hitchcock error was harmless: (1) prosecutorial misconduct; (2) use of
hypnotically enhanced testimony; (3) ineffective assistance of counsel as to the
hypnotically enhanced testimony; and (4) the heightened security could have made the
death penalty vote more likely. As stated previously, none of these claims merits guilt
stage relief and, accordingly, cannot form the basis of sentencing stage relief.
14
These enumerated reasons are: (1) the trial judge failed to properly charge the
jury regarding nonstatutory mitigating factors; (2) the trial judge permitted the prosecutor
to make final argument which told the jury that they could only consider the statutory
mitigating factors; and (3) when the jury’s confusion concerning mitigating and
aggravating factors was made known by way of a request for a copy of the Florida statute
which set forth the factors to be considered, the trial judge failed to clear up the confusion
and recharged the jury with the same inadequate charge given previously.
15
In Caldwell, the Court held that the Eighth Amendment may be violated when a
prosecutor minimizes the jury’s sense of responsibility in its determination that death is
38
because Caldwell announced a new rule of law which does not come within Teague’s
exception for watershed rules fundamental to the integrity of the criminal proceeding.
See Sawyer v. Smith, 497 U.S. 227, 229 (1990).
Next, the district court found that the prosecutor made improper and prejudicial
arguments relating to the victim which had the result of inviting the jury to consider
impermissible aggravating factors. This claim is based on Booth v. Maryland, 482 U.S.
496 (1987), which was overruled in Payne v. Tennessee,
501 U.S. 808 (1991). The net
result is that victim impact statements and arguments are permissible. Thus, the district
court’s reliance on this claim is misplaced.
Fourth, the district court found that the jury was not properly advised of the
alternative sentence of life with a mandatory minimum of twenty-five years. We are at a
loss to understand the district court’s reliance on this claim since it was never raised in the
state courts and, thus, is procedurally barred. See Wainwright v. Sykes, 433 U.S. 72
(1977).
Fifth, the district court found that the trial court improperly considered a 1958
common law robbery conviction in aggravation when no evidentiary basis existed for the
conviction. This ignores the fact that there was another conviction supporting that
aggravating circumstance – a 1971 assault with intent to commit robbery. 602 So. 2d at
1258. Accordingly, any error involving the 1958 conviction was harmless.
Id.
the appropriate punishment. 472 U.S. at 340.
39
Sixth, the district court relied on the fact that the prosecutor failed to provide
evidence relating to the sentencing disparities of Sims and the co-defendants. As stated
previously, this is not a mitigating circumstance because Sims was the triggerman.
Lastly, the district court found that trial counsel was ineffective at sentencing. The
district court concluded that the defense attorneys did not take their responsibilities at the
sentencing stage seriously. We disagree. The record discloses that defense counsel
presented non-statutory mitigating evidence at the sentencing stage. The record also
reveals that defense counsel made an effective argument at the sentencing stage. A
defense attorney has limited resources and must make the best decisions possible
regarding allocating resources based upon his or her knowledge and experience. As the
trial court noted, defense counsel did a commendable job. R. Vol. 4, p. 768.
For the foregoing reasons, we reverse the district court’s grant of sentencing stage
relief and remand this case with directions that the district court reinstate the death
penalty. We affirm the district court’s denial of habeas relief as to the guilt stage errors.
AFFIRMED in part, REVERSED in part, and REMANDED.
40
